1 TENNESSEE BUREAU OF WOR KERS’ COMPENSATION

WORKERS’ COMPENSAT ION APPEALS BOARD

Daryl Holmes ) Docket No. 2017-08-0504 ) v. ) State File No. 31584-2017 )

Ellis Watkins d/b/a Wat kins Lawn Care ) ) ) Appeal from the Court of Workers’ ) Compensation Claims ) Deana C. Seymour, Judge )

Affirmed and Remanded – Filed February 13, 2018

In this interlocutory appeal, the employee suffered a severe laceration to his right hand caused by a chainsaw while he was helping his employer remove f allen tree limbs. The employer did not have workers’ compensation insurance and maint ained he was exempted from having such insurance because he employed less th an five persons. The trial court concluded that, as a “construction service provider ” as that term is defined in Tennessee Code Annotated section 50-6-902 (2017), the employer was required to have workers’ compensation insurance if he had one or more employees . It further concluded the employee was entitled to a panel of physicians, but it deni ed the employee’s request for past medical expenses and te mporary disability benefits. T he employer has appealed.

We affirm the decision of the tri al court and remand the case.

Judge Timothy W. Conner delivere d the opinion of the Appeals Bo ard in which Presiding Judge Marshall L. Davidson, III, a nd Judge David F. Hensley joi ned.

Ellis Watkins d/b/a Watkins Lawn Care, Memphis, Tennessee, empl oyer-appellant, pro

se

James Blount, IV, Collierville, T ennessee, for the employee-app ellee, Daryl Holmes2 Memorandum Opinion 1

Daryl Holmes (“Employee”) worked for Ellis Watkins d/b/a Watki ns Lawn Care (“Employer”). 2 On March 17, 2017, Employee and Employer were working at a lo cation in Shelby County, Tennessee, removing fallen tree limbs. As Em ployer used a chainsaw to cut the limbs, Employee was pulling the limbs. In the cours e of this work, the chainsaw struck and severely l acerated Employee’s right hand. Employee sought emergency care and underwent sur gery to repair a lacerated tend on. He was hospitalized for three days.

Employer did not provide Employee a panel of physicians, did n ot pay medical bills, and did not initiate benef its of any kind pursuant to th e Tennessee Workers’ Compensation Act. Subsequently, a Bureau of Workers’ Compensat ion compliance specialist investigated Employer’ s lack of workers’ compensatio n insurance as of the date of the injury and produced a r eport summarizing his findings. According to the trial court’s expedited hearing order, the parties stipulated to the admissibility of this report during the expedited hearing, and it was admitted into evidence

.

Following the expedited hearing, during which the trial court heard and considered testimony from the par ties, the court entered an order finding that Employer qualified as a “construction service provider” subject to workers’ compensatio n laws, and that it must provide Employee a panel of physi cians. However, the trial cou rt determined Employee

had not come forward with suffici ent evidence at the expedited hearing to support the reimbursement of past medical e xpenses or the payment of tempor ary disability benefits.

Employer filed a notice of appeal, but did not file a transcri pt of the expedited hearing, a statement of the evidence, or a brief. Instead, Emp loyer filed a one-paragraph,

hand-written statement in which he “disagree[d] with any and al l claims regarding [Employee].” He further asserted that Employee’s claims were “ fraudulent and frivolous” and that his position was “based solely on the sworn affidavits and documents

submitted to the courts.” He offe red no argument as to how the trial court erred in its

consideration of the evide nce or its determinations.

As we have noted on numerous occasions in the past, our abilit y to conduct meaningful appellate review is s ignificantly hampered when an a ppellant fails to provide a transcript of the hearing or s tatement of the evidence, and f ails to offer any substantive

1 “The Appeals Board may, in an effort to secure a just and spee dy determination of m atters on appeal and with the concurrence of all judges, decide an appeal by an abbr eviated order or by memorandum opinion, whichever the Appeals Board deems appropriate, in cases that ar e not legally and/or factually novel or complex.” Appeals Bd. Prac. & Proc. § 1.3.

2 The parties provided no transcript of the expedited hearing or statement of the evidence. As such, we have gleaned the facts from the pleadings, exhibits, and the tr ial court’s expedited hearing order.3 argument on appeal. See, e.g.

, Hardin v. Dewayn e’s Quality Metals , No. 2015-07-0067, 2015 TN Wrk. Comp. App. Bd. LEXIS 45, at *3-4 (Tenn. Workers’ C omp. App. Bd. Nov. 18, 2015). Without a transcript or a statement of the evi dence, we cannot know what evidence was presented to the trial court beyond the exhib its that were admitted into evidence and the testimony as summarized in the trial court’s o rder. See Britt v.

Chambers , No. W2006-00061-COA-R3-CV, 20 07 Tenn. App. LEXIS 38, at *8 (T enn. Ct. App. Jan. 25, 2007). Review of a trial court’s decision is accompanied by a presumption that the factual findings are correct. See Tenn. Code Ann. § 50-6-239(c)(7) (2017). Accordingly, “it is essential that the appellate court be provided with a transcript of the trial proceedings or a st atement of the evidence.” Britt , 2007 Tenn. App. LEXIS 38, at *7; see also Estate of Cockrill , No. M2010-00663-COA-R3-CV, 2010 Tenn. App. LEXIS 754, at *11-12 (Tenn. Ct. App. Dec. 2, 2010) (“In cases w here no transcript or statement of the evidence is filed, the appellate court is requ ired to presume that the record, had it been properly preserved, would have supported th e action of the trial court.”). As noted by the Tennessee Court of Appeals, “[a]n in complete appellate record is fatal to an appeal on the facts,” Piper v. Piper , No. M2005-02541-COA-R3-CV, 2007 Tenn. App. LEXIS 70, at *11 (Tenn. Ct. App. Feb. 1, 2007), and a reviewing court “must conclusively presume that the evidence presented supported the facts as found by the trial court,” Whitesell v. Moore , No. M2011-02745-COA-R3-CV , 2012 Tenn. App. LEXIS 894, at *10 (Tenn. C t. App. Dec. 21, 2012).

Here, the absence of a transcript or statement of the evidence and the absence of any meaningful argument on appeal renders us unable to conclude that the evidence preponderates against the decision of the trial court. Accordi ngly, the trial court’s conclusion that Employer is subject to Tennessee’s Workers’ Com pensation Law and is responsible for workers’ compens ation benefits is affirmed.

Furthermore, we find this appeal to be frivolous. As we have noted in prior cases, a frivolous appeal is one that is devoid of merit or brought so lely for delay. Yarbrough v.
Protective Servs. Co., Inc. , No. 2015-08-0574, 2016 TN Wrk. Comp. App. Bd. LEXIS 3, at *11 (Tenn. Workers’ Comp. A pp. Bd. Jan. 25, 2016). “[P]arti es should not be required to endure the hassle and expens e of baseless litigation. Nor s hould appellate courts be required to waste time and resources on appeals that have no re alistic chance of success.”

Id. at *10-11. We are mindful that Employer has represented himse lf in this case. However, that does not excuse him from complying with the same procedural and substantive requirements as represented parties. See, e.g.

, Walton v. Averitt Express, Inc.

, No. 2015-08-0306, 2017 TN Wrk. Comp. App. Bd. LEXIS 37, at *5 ( Tenn. Workers’ Comp. App. Bd. June 2, 2017) (“courts must not excuse pro se li tigants from complying with the same substantive and pr ocedural rules that represented parties are expected to observe”). Although we conclude that this appeal had no realis tic chance of success and is frivolous, we exercise our dis cretion on this occasion not t o assess attorneys’ fees or costs against Employer. See Tenn. Comp. R. & Regs. 0800-02-22-.04(6) (2015). Accordingly, the trial court’s decision is affirmed, and the ca se is remanded.TENNESSEE BUREAU OF WORKERS’ COMPENSATION

WORKERS’ COMPENSATION APPEALS BOARD

Daryl Holmes ) Docket No. 2017-08-0504
)

v. ) State File No. 31584-2017
)
Ellis Watkins d/b/a Watkins Lawn Care )

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the Appeals Bo ard’s decision in the referenced case was sent to the following recipients by the following methods of service on this the 13th day of February, 2018.

Name Certified

Mail First Class

Mail Via

Fax Fax

Number Via

Email Email Address

James Blount, IV X jimmy@blountfirm.com

Ellis Watkins X 617 N. Merton Street Memphis, TN 38112

Deana C. Seymour, Judge X Via Electronic Mail

Kenneth M. Switzer, Chief Judge X Via Electronic Mail

Penny Shrum, Clerk,

Court of Workers’ Compensation Claims X Penny.Patterson-Shrum@tn.gov

Jeanette Baird Deputy Clerk, Workers’ Compensation Appeals Board 220 French Landing Dr., Ste. 1-B Nashville, TN 37243 Telephone: 615-253-0064

Electronic Mail: WCAppeals.Clerk@tn.gov