1 

TENNESSEE BUREAU OF WORKERS’ COMPENSATION 

WORKERS’ COMPENSATION APPEALS BOARD 

Gary Birchett ) Docket Nos. 2010-07-0030 

 ) 2010-07-0031 

v. ) 

 ) State File Nos. 2792-2017 

Gambrell Hickory Mill ) 2793-2017 

) 

Appeal from the Court of Workers’ ) 

Compensation Claims ) 

Allen Phillips, Judge )

Affirmed and Remanded – Filed November 8, 2017 

The claimant asserted he sustained two work-related injuries while working for the 

alleged employer as a diesel mechanic. The alleged employer, a manufacturer of ax 

handles, denied that the claimant was its employee but asserted that he was an 

independent contractor who was allowed to operate his diesel repair business out of the 

manufacturer’s shop. Following an expedited hearing, the trial court concluded that the 

claimant was an independent contractor rather than an employee, and it denied the 

claimant’s request for medical and temporary disability benefits. The claimant has 

appealed, asserting that the trial court erred in several evidentiary rulings. However, the 

claimant did not file a transcript of the expedited hearing, a statement of the evidence, or 

a brief setting out his argument on appeal. We affirm the trial court’s determination and 

remand this case for any further proceedings that may be necessary. 

Judge Timothy W. Conner delivered the opinion of the Appeals Board in which Judge 

Marshall L. Davidson, III, and Judge David F. Hensley joined. 

Gary Birchett, Bethel Springs, Tennessee, employee-appellant, pro se

Lewis Cobb, Jackson, Tennessee, for the employer-appellee, Gambrell Hickory Mill 
2

Memorandum Opinion1

Gary Birchett (“Claimant”), a diesel mechanic, alleges he suffered injuries on two 

separate occasions while employed at Gambrell Hickory Mill (“Gambrell”), a facility that 

manufactures ax handles. Gambrell, however, denied that Claimant was an employee 

and asserted he was an independent contractor. After conducting an expedited hearing, 

considering the testimony of the parties and their witnesses, and reviewing the documents 

admitted into evidence, the trial court found Gambrell’s witnesses’ testimony more 

credible and concluded Claimant was an independent contractor. Claimant has appealed.

In his notice of appeal, Claimant asserts that the trial court erred in: (1) allowing a 

witness to testify about an alleged motorcycle accident; (2) concluding that Gambrell’s 

documentary evidence accurately reflected the work Claimant did for Gambrell; and (3) 

not requiring Gambrell to produce a Form 1099 Claimant apparently requested. Claimant 

further alleges that “some of the things that were sustained made it into exhibits.” 

Notably, however, Claimant does not dispute the trial court’s ultimate conclusion that he 

was an independent contractor rather than an employee.

Other than filing his notice of appeal, Claimant has not filed anything in support of 

his appeal. He provided neither a transcript of the expedited hearing nor a statement of 

the evidence. Moreover, he has not filed a brief or position statement explaining how he 

believes the trial court erred in its evidentiary decisions.

As we have noted in numerous prior cases, our ability to conduct meaningful 

appellate review is significantly hampered when an appellant fails to provide a transcript 

of the hearing or statement of the evidence, and fails to offer any substantive argument on 

appeal. See, e.g., Walton v. Averitt Express, Inc., No. 2015-08-0306, 2017 TN Wrk. 

Comp. App. Bd. LEXIS 37, at *3 (Tenn. Workers’ Comp. App. Bd. June 2, 2017). 

Without a transcript or a statement of the evidence, we cannot know what evidence was 

presented to the trial court beyond the exhibits that were admitted into evidence and the 

testimony as summarized in the trial court’s order. See Britt v. Chambers, No. W2006-

00061-COA-R3-CV, 2007 Tenn. App. LEXIS 38, at *8 (Tenn. Ct. App. Jan. 25, 2007).

Review of a trial court’s decision is accompanied by a presumption that the factual 

findings are correct. 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 

statement of the evidence.” Britt, 2007 Tenn. App. LEXIS 38, at *7. See also Leek v. 

Powell, 884 S.W.2d 118, 121 (Tenn. Ct. App. 1994) (“In the absence of a transcript or a 

statement of the evidence, we must conclusively presume that every fact admissible 

under the pleadings was found or should have been found favorably to the appellee.”). 

 1 “The Appeals Board may, in an effort to secure a just and speedy determination of matters on appeal and 

with the concurrence of all judges, decide an appeal by an abbreviated order or by memorandum opinion, 

whichever the Appeals Board deems appropriate, in cases that are not legally and/or factually novel or 

complex.” Appeals Bd. Prac. & Proc. § 1.3.
3 

As noted by the Tennessee Court of Appeals, “[a]n incomplete 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). Moreover, 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. Ct. App. Dec. 21, 2012). 

Furthermore, Employee has not filed a brief or position statement in support of his 

appeal and has offered no substantive argument explaining how he believes the trial court 

erred in denying his claim, and we decline to do so for him. We note that Employee is 

self-represented in this appeal, as he was in the trial court. Parties who decide to 

represent themselves are entitled to fair and equal treatment by the courts. Whitaker v. 

Whirlpool Corp., 32 S.W.3d 222, 227 (Tenn. Ct. App. 2000). Yet, as explained by the 

Tennessee Court of Appeals: 

The courts should take into account that many pro se litigants have no legal 

training and little familiarity with the judicial system. However, the courts 

must also be mindful of the boundary between fairness to a pro se litigant 

and unfairness to the pro se litigant’s adversary. Thus, the courts must not 

excuse pro se litigants from complying with the same substantive and 

procedural rules that represented parties are expected to observe. . . . Pro se 

litigants should not be permitted to shift the burden of the litigation to the 

courts or to their adversaries. 

Hessmer v. Hessmer, 138 S.W.3d 901, 903-04 (Tenn. Ct. App. 2003) (citations omitted). 

The trial court in this case concluded that Claimant had failed to present sufficient 

evidence to show he was likely to succeed at trial in proving he was an “employee” as 

that term is defined in Tennessee Code Annotated section 50-6-102(12) (2017). Claimant 

has not alleged on appeal that the trial court’s determination as to his status as an 

independent contractor was incorrect. Consistent with established Tennessee law as 

discussed above, we presume the trial court’s decision on this issue is supported by the 

evidence. Therefore, the trial court’s order is affirmed in all respects, and this case is 

remanded for any further proceedings that may be necessary. 
 TENNESSEE BUREAU OF WORKERS’ COMPENSATION

 WORKERS’ COMPENSATION APPEALS BOARD

Gary Birchett ) Docket No. 2017-07-0030

) 2017-07-0031

v. ) 

) State File No. 2792-2017

Gambrell Hickory Mill ) 2793-2017

)

)

CERTIFICATE OF SERVICE 

I hereby certify that a true and correct copy of the Appeals Board’s decision in the 

referenced case was sent to the following recipients by the following methods of service 

on this the 8th day of November, 2017. 

Name Certified 

Mail

First Class 

Mail

Via 

Fax

Fax 

Number

Via 

Email

Email Address

Gary Birchett X X 2051 Major Hill Road

Bethel Springs, TN 38315; 

lbirchett10@yahoo.com

Lewis Cobb X lewiscobb@spraginslaw.com

Allen Phillips, 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

Matthew Salyer

Clerk, Workers’ Compensation Appeals Board

220 French Landing Dr., Ste. 1-B 

Nashville, TN 37243 

Telephone: 615-253-1606 

Electronic Mail: WCAppeals.Clerk@tn.gov