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TENNESSEE BUREAU OF WORKERS’ COMPENSATION

WORKERS’ COMPENSATION APPEALS BOARD

David Moffitt ) Docket No. 2016-02-0282

)

v. )

) State File No. 40249-2016

Allied Metals Company, et al. ) 

)

)

Appeal from the Court of Workers’ )

Compensation Claims )

Brian K. Addington, Judge )

Affirmed and Certified as Final – Filed April 30, 2018

The employee alleged injuries to his low back, neck, and right arm as a result of jumping 

from a table where he had been standing to assist co-workers bend sheet metal. After 

receiving authorized medical treatment for his low-back injury, the employee sought 

treatment for his cervical condition from unauthorized providers. Following a trial, the 

court awarded the employee temporary disability benefits, permanent partial disability 

benefits, and ongoing medical benefits for his lumbar injury, but concluded the employee 

failed to prove he suffered a cervical injury arising primarily out of the work-related 

incident. The employee has appealed the denial of benefits for his alleged cervical injury. 

We affirm the trial court’s decision, deem the appeal frivolous but decline to assess 

attorneys’ fees or costs, and certify the order as final.

Judge David F. Hensley delivered the opinion of the Appeals Board in which Presiding 

Judge Marshall L. Davidson, III, and Judge Timothy W. Conner joined.

Larry V. Roberts, Johnson City, Tennessee, for the employee-appellant, David Moffitt

Brent R. Laman, Knoxville, Tennessee, for the employer-appellee, Allied Metals 

Company
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Memorandum Opinion1

David Moffitt (“Employee”) worked as a welder for Allied Metals Company 

(“Employer”). On March 26, 2015, he suffered injuries when he jumped from a table

where he was assisting co-workers bend sheet metal.2 Employee promptly reported his 

injury to his supervisor, telling him that he had injured his back and that his pain travelled 

into his leg. He did not immediately request medical care and completed his shift before

going home. The next morning his wife called Employer and requested medical care for 

Employee. As a result, Employee was seen by Dr. Michael Anders at MedWorks

Occupational Medicine on March 30, 2015. According to the trial court’s order, 

Employee testified that he complained of hand pain during the initial examination with 

Dr. Anders, although the medical records make no mention of those complaints. Dr. 

Anders diagnosed Employee with an acute low-back strain.3

Employee ultimately came under the care of Dr. Richard Duncan, an orthopedic 

surgeon at Watauga Orthopaedics. After providing conservative care, Dr. Duncan placed 

Employee at maximum medical improvement on June 17, 2015 and assigned a 3% 

permanent anatomical impairment rating. Employee returned to Dr. Duncan on June 29, 

2015. The report noted that Employee was complaining of continued low-back pain and 

“[a]lso non work related right arm on occasion.” The “Assessment/Plan” in the report 

noted “Cervical spondylosis without myelopathy – Right – non-comp related,” which was 

consistent with the “Discussion” section of the report that stated Employee’s “right arm 

symptoms [were] unrelated to work.” In his deposition, Dr. Duncan testified he did not 

believe Employee’s cervical injury was related to his March 26, 2015 work injury. 

Employer denied benefits for the alleged cervical/right arm injury based on Dr. Duncan’s 

opinions and Employee’s alleged failure to initially report a neck injury.

Employee’s family physician referred him to an orthopedic surgeon, Dr. Morgan 

Lorio, for his cervical complaints. On July 24, 2015, Employee saw James L. Myers, a 

physician’s assistant in Dr. Lorio’s office. The record of that visit states Employee 

injured his back “quite some time ago” when he jumped down from a table at work and 

indicates Employee later experienced cervical pain that radiated into his upper 

extremities. The physician’s assistant diagnosed cervicalgia and recommended a cervical 

 

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“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.

2 We have not been provided with a transcript of the trial court proceedings or a statement of the evidence. 

Accordingly, we glean the facts from the trial court’s order and other information contained in the record 

on appeal.

3 There is no dispute on appeal regarding Employee’s low-back injury, treatment, or the benefits awarded 

related to that injury. Accordingly, we forego a discussion of that part of the claim.
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MRI, which was obtained on July 29, 2015. The results of the MRI were addressed at 

Employee’s second visit with the physician’s assistant on August 3, 2015. The report of 

that visit stated the MRI “shows marked disc degeneration . . . at C5-6 and C6-7 with 

paracentral disc herniation to the right at C5-6 and to a lesser extent at C6-7.” Dr. Lorio 

performed an anterior discectomy and fusion at C5-6 and C6-7 on August 25, 2015.

On October 12, 2015, during Employee’s post-surgical recovery period, Employer 

sent Employee to Dr. Jim Brasfield, a neurosurgeon, for a second opinion regarding his 

low-back condition. Dr. Brasfield diagnosed Employee with a lumbar sprain that he 

related to Employee’s work injury. He testified in his deposition that he agreed with Dr. 

Duncan’s opinion that Employee’s cervical injury was unrelated to the March 26, 2015 

injury.

Employee continued treating with Dr. Lorio and his physician’s assistant. On

January 9, 2016, Dr. Lorio placed Employee at maximum medical improvement for his 

cervical condition and assigned a 15% medical impairment rating. In his deposition, he 

testified the results of the July 29, 2015 cervical MRI indicated an “acute” disc herniation 

that he considered to have been present “[u]p to four months, maybe a little longer.” 

After addressing some of the medical records of Dr. Duncan that were presented to him 

and the report of Dr. Brasfield’s evaluation of Employee’s low back, Dr. Lorio was asked 

his opinion concerning the cause of Employee’s cervical injury. He stated Employee 

“had a lifting/twisting strain that induced a herniation to his neck.” He responded 

affirmatively when asked whether that would be “consistent with the type of mechanism 

of injury” that occurred on March 26, 2015. Additionally, Dr. Lorio testified that his 

treatment of Employee, including the cervical fusion, was reasonable and necessary as a 

result of the work injury. 

At trial, the court determined Employee sustained a compensable lumbar injury

and awarded medical benefits and temporary and permanent partial disability benefits for 

that condition. However, the trial court found Employee had not suffered a compensable 

cervical injury. The court found that the physicians offering expert opinions were 

“equally qualified to render expert medical testimony,” but noted that none of the 

doctors’ testimony was persuasive because “Drs. Duncan, Lorio and Brasfield either did 

not have or [did not] thoroughly review the other physicians’ notes before their 

deposition[s].” The trial court stated that “the attorneys asked the physicians to give 

opinions without providing them a complete picture of the facts.” However, based upon 

Tennessee Code Annotated section 50-6-102(14)(E) (2017), the trial court determined 

that Dr. Duncan’s causation opinion was presumed correct and that “Dr. Lorio’s opinion 

failed to rebut Dr. Duncan’s opinion by a preponderance of the evidence.” 

Employee filed a notice of appeal identifying the compensability of his alleged 

neck injury and his entitlement to temporary total and permanent partial disability 

benefits resulting from the upper back injury as the issues on appeal. However, 
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Employee failed to file a transcript of the trial court proceedings, a joint statement of the 

evidence, or a brief on appeal.4 Employee has provided no explanation or argument on 

appeal setting out how he contends the trial court erred in deciding his case, and we 

decline to speculate as to the nature of his contentions on appeal. See Sneed v. Bd. of 

Prof’l Responsibility of the Sup. Ct. of Tenn., 301 S.W.3d 603, 615 (Tenn. 2010). 

When an appellant fails to provide a transcript of the trial or statement of the 

evidence, and fails to offer any substantive argument on appeal, an appellate court’s 

ability to conduct meaningful appellate review is significantly hampered. Holmes v. Ellis 

Watkins d/b/a Watkins Lawn Care, No. 2017-08-0504, 2018 TN Wrk. Comp. App. Bd. 

LEXIS 7, at *3-4 (Tenn. Workers’ Comp. App. Bd. Feb. 13, 2018). Without a transcript 

or 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. Id. 

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). Thus, “it is essential 

that the appellate court be provided with a transcript of the trial proceedings or a 

statement of the evidence.” Britt v. Chambers, No. W2006-00061-COA-R3-CV, 2007 

Tenn. App. LEXIS 38, at *7 (Tenn. Ct. App. Jan. 25, 2007). 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), 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. Ct. App. 

Dec. 21, 2012). 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 where no transcript 

or statement of the evidence is filed, the appellate court is required to presume that the 

record, had it been properly preserved, would have supported the action of the trial 

court.”). 

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. The totality of the evidence 

introduced in the trial court is unknown, and we decline to speculate as to the nature and 

extent of the proof presented to the trial court. Patton v. General Motors, No. 2016-05-

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 On February 14, 2018, Employee filed a “Notice and Motion to Accept Late Filing of Statement of the 

Evidence and Testimony of Joy Moffitt.” On February 20, 2018, we denied the motion to accept the 

“statement of the evidence,” as the document submitted failed to comply with Tenn. Comp. R. & Regs. 

0800-02-22-.03(1) (2018). After permitting Employer time to respond to Employee’s motion, we entered 

an order on March 5, 2018 declining to accept a partial transcript of the proceedings before the trial court, 

as Ms. Moffitt was one of multiple witnesses and Employee provided no explanation as to why her 

testimony was relevant to the issues raised on appeal. 
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0749, 2017 TN Wrk. Comp. App. Bd. LEXIS 3, at *2-3 (Tenn. Workers’ Comp. App. 

Bd. Jan. 17, 2017).

Furthermore, we are compelled to address the frivolous nature of this appeal. As 

we have previously noted, a frivolous appeal is one that is devoid of merit or brought 

solely 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. App. Bd. Jan. 25, 2016). 

“[P]arties should not be required to endure the hassle and expense of baseless litigation. 

Nor should appellate courts be required to waste time and resources on appeals that have 

no realistic chance of success.” Id. at *10-11. The record on appeal is so inadequate in 

this case that we conclude Employee’s appeal is frivolous. Although we conclude this 

appeal had no realistic chance of success and is frivolous, we exercise our discretion not 

to assess attorneys’ fees or costs. See Tenn. Comp. R. & Regs. 0800-02-22-.04(6) 

(2018). Accordingly, we affirm the decision of the trial court and certify its order as 

final. 
 

 TENNESSEE BUREAU OF WORKERS’ COMPENSATION

 WORKERS’ COMPENSATION APPEALS BOARD

David Moffitt ) Docket No. 2016-02-0282

)

v. ) State File No. 40249-2016

) 

Allied Metals Company, et al. )

)

)

Appeal from the Court of Workers’ )

Compensation Claims )

Brian K. Addington, Judge )

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 30th day of April, 2018.

Name Certified 

Mail

First Class 

Mail

Via 

Fax

Fax 

Number

Via 

Email

Sent to: 

Larry V. Roberts X larry.roberts@larryvroberts.com

susan.elliott@larryvroberts.com

Brent R. Laman X brlaman@mijs.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

 

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