1 TENNESSEE BUREAU OF WOR KERS’ COMPENSATION

WORKERS’ COMPENSAT ION APPEALS BOARD

Giovanna Meier ) Docket No. 2015-02-0179 )

v. ) State File No. 42423-2015 ) Lowe’s Home Centers, Inc., et al. ) ) ) Appeal from the Court of Workers’ ) Compensation Claims, ) Brian K. Addington, Judge )

Affirmed and Certified as F inal – Filed November 2, 2017

The employee alleges suffering injuries to her knee and back wh en she picked up bags of concrete while working for her employer. Following an expedite d hearing, the trial court determined the employee had not presented sufficient proof to e stablish she would likely prevail at trial in proving a co mpensable injury and declined to award benefits. The employee appealed, and we affirm ed. The parties proceeded to t rial, and the trial court again declined to award benefits , concluding the employee had n ot shown by a preponderance of the evidence th at her injuries arose primarily out of and in the course and scope of her employment. The employee has again appealed. We affirm and certify

the trial court’s order as final.

Presiding Judge Marshall L. Dav idson, III, delivered the opinio n of the Appeals Board in which Judge David F. H ensley and Judge Timothy W. Conner joined

.

George Todd East, Ki ngsport, Tennessee, for the employee-appell ant, Giovanna Meier

Jess Maples, Knoxville, Tennessee, for the employer-appellee, L owe’s Home Centers,

Inc.2 Memorandum Opinion 1

This is the second appeal of this case. In the first appeal, w e set out the relevant

facts as follows:

Giovanna Meier (“Employee”) allege s that she suffered an injury to her back on April 27, 2015, when she transferred bags of concrete f rom one cart to another while working for Lowe’s Home Centers, Inc. (“Employer”). She described a t wisting motion, f ollowed by a p op in her knee. Employee offered conflicting information regarding wheth er she felt immediate pain but, in any event, she did not seek medical trea tment that day. According to the trial court’s order, Employee testified she and her husband were on their way to the emergency room to have her inj ury evaluated the next day when she asked her husband to stop at a store for a

loaf of bread. She testified that when she bent over to retrie ve the bread from a shelf, she felt intense pa in. She proceeded to the emer gency room and was evaluated.

Employer denied the claim as not arising out of the employment, and Employee filed a petition for bene fit determination. Following an expedited hearing, the trial cour t determined there was insuffi cient medical proof to establish a causal link between the employment and the purported injury. The trial court noted that Employee initially reported a knee injury and later claimed a back injury. The court denied relief and E mployee appealed.

Meier v. Lowe’s Home Centers, Inc. , No. 2015-02-0179, 2016 TN Wrk. Comp. App. Bd. LEXIS 30, at *1-2 (Tenn. Workers ’ Comp. App. Bd. July 27, 2016)

.

On appeal, we affirmed the trial court’s denial of benefits, no ting the absence of a transcript of the expedited hear ing or a statement of the evide nce. Consistent with established Tennessee law, we pr esumed the trial court’s factua l findings were supported by sufficient evidence and upheld the trial court’s decision. Id. at *3-4.

The parties proceeded to trial, and Employee attempted to offe r expert medical proof via a Standard Form Medical Report (Form C-32) from Dr. R ichard Duncan. However, the trial court excluded that evidence and accompanyin g documents because the report did not contain a statement of the physician’s quali fications or a supporting

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. § 1.3.3 affidavit. 2 Although Employee requested that the trial court take judicia l notice of Dr. Duncan’s qualifications, the tri al court declined to do so.

Following the trial, the court entered an order declining to f ind the claim compensable, explaining that Employee’s testimony was inconsist ent with the history Dr. Duncan set out in his records review. In addition, the trial c ourt noted that Employee had informed neither Dr. Duncan nor Dr. Benjamin Knox (who had trea ted her knee complaints) of the incident that occurred when she stopped to b uy bread on the way to the emergency room. The trial court concluded that, as Dr. Duncan was unaware of that incident, he could not have cons idered all causes in rendering his causation opinion as required by Tennessee Code Annotated section 50-6-102(14)(D). Because Employee failed to meet her burden of establishing a compensable injury, the trial court declined to award benefits. Employee has appealed.

Employee raises two issues in her brief: (1) whether the trial court erred in “speculating” if Dr. Knox and D r. Duncan considered all causes in rendering their causation opinions, and (2) whethe r the trial court erred in ex cluding Dr. Duncan’s C-32 report. Employer responds that Employee’s brief does not compl y with Rule 27 of the Tennessee Rules of Appellate Procedure, 3 and that the trial court did not err in concluding Employee had failed to carry her burden of proof in establishing a compensable injury o r in excluding Dr. Dunc an’s C-32 report.

A.

As an initial matter, we note that Employee has requested that we grant permission to appeal the trial court’s decision. However, a party seeking to appeal a trial court’s

decision to this Board need onl y timely file a notice of appeal and, assuming the appeal is properly perfected, we must resolve the appeal. See Tenn. Code Ann. § 50-6-

2 A “party may introduce direct testimony from a physician throug h a written medical report” that “shall be signed by the physician making the report bearing an origina l signature.” Tenn. Code Ann. § 50-6- 235(c)(1). However, “[a] reproduced medical report that is not originally signed is not admissible as evidence unless accompanied by an originally signed affidavit f rom the physician or the submitting attorney verifying the contents of the report.” Id. In addition, “[a]ny written medical report sought to be introduced into evidence shall include within the body of the r eport or as an attachment a statement of qualifications of the person making the report.” Id.

3 By their own terms, the Tennessee Rules of Appellate Procedure apply to proceedings before the Supreme Court, Court of Appeals, and Court of Criminal Appeals. Tenn. R. App. P. 1. Thus, while we may look to these rules for guidance, we are not governed by th em. Morgan v. Macy’s , No. 2016-08- 0270, 2016 TN Wrk. Comp. App. Bd. LEXIS 39, at *25 (Tenn. Worke rs’ Comp. App. Bd. Aug. 31, 2016) (“Although the Tennessee Rules of Appellate Procedure are not binding on us, they are persuasive authority and we may resort to them for guidance.”); Yarbrough v. Protective Services Co., Inc. , No. 2015-08-0574, 2016 TN Wrk. Comp. App. Bd. LEXIS 3, at *12 (Tenn . Workers’ Comp. App. Bd. Jan. 25, 2016) (The rules of appella te procedure, “while instructive , do not control the appellate process before this Board.”).4 217(a)(2)(A) (2016). In other words, an appeal to this Board i s an appeal as of right, not a discretionary appeal as Employ ee suggests. Thus, although Em ployee has moved for “permission to appeal,” it is unnecessary for us to grant such permission.

B.

In its analysis of the case, the trial court made clear that i t had considered the testimony of Employee and her husband from the expedited hearin g, as well as Employee’s testimony at the com pensation hearing. Although a t ranscript of the compensation hearing has been provided, a transcript of the exp edited hearing has not. Nor was it provided in the appeal of the expedited hearing orde r so as to be a part of that record. Thus, the record before us does not contain all the te stimony considered by the trial court, which impairs our ability to conduct a meaningful review of the court’s assessment of that proof. Withou t a transcript of the expedite d hearing, we have no way of knowing the nature of the testimony presented to and conside red by the trial court and must, therefore, presume that the trial court’s decision was su pported by sufficient

evidence. See Vulcan Materials Co. v. Watson , No. M2003-00975-WC-R3-CV, 2004 Tenn. LEXIS 451, at *7 (Tenn. Wor kers’ Comp. Pane l May 19, 2004 ) (“In the absence of an adequate record on appeal, th is Court must presume the trial court’s rulings were supported by suffi cient evidence.”). 4

Aside from not having a complete record to review the trial co urt’s assessment of the evidence, Employee has faile d to make a meaningful argument regarding the issues raised on appeal. In her reci tation of the issues contained in her brief, Employee makes conclusory statements asserting the trial court erred in its di sposition of the case. Moreover, the entirety of the “Argument” section of Employee’s brief consists of a single sentence, i.e., “[f]or the aforementioned reasons employee subm its that [she] has carried the burden for a compensable wo rk related claim consistent with the alternate finding[s] of the trial judge.” As stated by our Supreme Court, “[i]t is not the role of t he courts, trial or appellate, to research or co nstruct a litigant’s case or arg uments for him or her, and where a party fails to develop an argument in support of his or her contention or merely constructs a skeletal argument, the issue is waived.” Sneed v. Bd. of Pr of’l Responsibility of the Sup. Ct. of Tenn. , 301 S.W.3d 603, 615 (Tenn. 2010). Employee’s argument summarily declaring that she should prevail is skeletal at best

. See Gomez v. SableImagination on Sand , No. E2017-00107-COA-R3-CV, 2017 Tenn. App. LEXIS 718 (Tenn. Ct. App. Oct. 26, 2017).

4 The trial court stated at the compensation hearing that, “as fa r as previous exhibits and the previous recording from the Expedited Hearing that will be made part of this record, okay?” Notwithstanding the trial court’s comment, the recording of the expedited hearing i s not included in the record on appeal and does not appear in a listing of exhibits contained in the trial court’s order.5 C.

Aside from these deficiencies, we note that in order to establ ish a compensable injury, Employee was required to prove she suffered an injury b y accident arising primarily out of and in the course and scope of her employment. Tennessee Code Annotated section 50-6-102(14) (2016). An injury arises primar ily out of and in the course and scope of the employment when the preponderance of th e evidence shows that the “employment contributed more than fifty percent (50%) in ca using the injury, considering all causes.” Tenn. Code Ann. § 50-6-102(14)(B). F urther, “[a]n injury causes death, disableme nt or the need for medical treatment onl y if it has been shown to a reasonable degree of medical certainty that it contributed more than fifty percent (50%) in causing the death, disablement or need for medical treatment , considering all causes.” Tenn. Code Ann. § 50-6-102(14)(C). ‘“Shown to a reasonable deg ree of medical certainty’ means that, in the o pinion of the physician, it is m ore likely than not considering all causes, as oppos ed to speculation or possibilit y.” Tenn. Code Ann. § 50- 6-102(14)(D).

Employee asserts, with no explan ation, that the trial court im properly “speculated” as to information considered by the physicians in rendering the ir causation opinions. However, she has pointed to nothing in the record that would su ggest Doctors Duncan and Knox did, in fact, consider t he incident in the store in fo rming their opinions or that they were even aware of the inci dent when addressing causation. Employee has directed us to nothing that would suggest the trial court’s evaluation o f the physicians’ opinions

was incorrect.

Employee also maintains that the trial court erred in excludin g Dr. Duncan’s C-32 report because she “substantially complied” with the statutory requirements governing such reports. However, she has cited no authority establishing that substantial compliance is sufficient to rende r the report admissible or eve n how she substantially complied. Moreover, Employee has failed to provide any argumen t or explanation as to how the trial court abused its discretion in declining to take judicial notice of Dr. Duncan’s credentials and excluding his report. A trial court’s decision regarding the

admission or exclusion of evidence is reviewed for an abuse of discretion, see Sanford v. Waugh & Co. , 328 S.W.3d 836, 847 (Tenn. 2010), and we fi nd no such abuse h ere.

The trial court’s decision is affirmed and its June 20, 2017 o rder is certified as

final.TENNESSEE BUREAU OF WORKERS’ COMPENSATION

WORKERS’ COMPENSATION APPEALS BOARD

Giovanna Meier ) Docket No. 2015-02-0179
)

v. ) State File No. 42423-2015
) Lowe's Home Centers, Inc., et al. )

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 2nd day of November, 2017.

Name Certified

Mail First Class

Mail Via

Fax Fax

Number Via

Email Email Address

George Todd East X todd@toddeast.com jennifer@toddeast.com

Jess Maples X jess.maples@lei tnerfirm.com

Brian K. Addington, 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