Harper, Randall v. USF Holland Trucking Co. , 2015 TN WC App. 49 ( 2015 )

TENNESSEE BUREAU OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD
Randall Harper ) Docket No. 2015-06-1067
)
v. )
) State File No. 47262-2015
USF Holland Trucking Company )
)
)
Appeal from the Court of Workers’ )
Compensation Claims )
Robert Durham, Judge )
Affirmed and Remanded – Filed December 18, 2015
In this interlocutory appeal, the employee contends that he developed cellulitis from a
spider or insect bite in a Michigan motel while in the course of his employment as a truck
driver. Although the employee initially received authorized medical treatment, the
employer ultimately denied the claim. Following a review of the record without an
evidentiary hearing, the trial court determined that the employee had not presented
sufficient proof of an injury arising primarily out of and in the course and scope of his
employment to warrant the payment of benefits prior to trial. After a careful review of
the record, we affirm.
Judge Marshall L. Davidson, III, delivered the opinion of the Appeals Board, in which
Judge David F. Hensley and Judge Timothy W. Conner joined.
Randall Harper, Lebanon, Tennessee, employee-appellant, pro se
Stephen Heard, Nashville, Tennessee, for the employer-appellee, USF Holland Trucking
Company
Factual and Procedural Background
Randall Harper (“Employee”), a fifty-two-year-old resident of Wilson County,
Tennessee, worked for USF Holland Trucking Company (“Employer”) as an over-the-
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road truck driver. On June 16, 2015, Employee was staying in a motel in Michigan while
on a route for Employer when he began to feel sick and lightheaded, and he informed his
dispatcher that he would not be able to drive. The following morning, Employee was
examined at a Michigan clinic called Med 1. Employee’s affidavit submitted with his
Request for Expedited Hearing reflects that he showed the attending physician a spot on
his leg and the doctor informed him that he “had been bitten by something.” He was
prescribed antibiotics and released to drive home to see his primary care physician.
Employer instructed Employee to continue on his route. Thus, the following day,
June 18, 2015, Employee was in Ohio when his condition worsened. He contacted
Employer and was instructed to seek emergency medical care. Accordingly, he went to a
hospital where he was admitted and given antibiotics. When he appeared at the
emergency room, his chief complaint was “[t]here is something wrong with my leg. Not
sure if I got bit by something or what.” The treating physician at the hospital, Dr. Allison
Dollman, noted that Employee reported feeling nauseated and fatigued. Employee
informed Dr. Dollman that he was a truck driver and, when he removed his socks on June
17, 2015, he saw redness and swelling in his left leg. He denied having suffered any
recent trauma or injury, though he did have a previous fracture in the same leg.
Employee was diagnosed with cellulitis and a skin infection, and he remained in the
hospital until June 20, 2015, at which time he was sent home for follow-up with his
primary care physician.
Employee returned to Tennessee and was directed by Employer to see a physician
at Concentra on June 22, 2015 for an evaluation of his ability to drive. The attending
physician determined that Employee was at maximum medical improvement but
restricted him from driving until he was cleared by his primary care physician as a result
of “functional limitations.”
On June 26, 2015, Employee saw his primary care physician, Dr. Lisa Kellogg,
who kept him off work and referred him to Sumner Wound Care. Employee began
treating with Dr. John Pinkston at Sumner Wound Care on June 30, 2015. Dr. Pinkston’s
record of that date reflects that Employee “got what was a small bite he thought on his
left lower extremity. It became infected.” Dr. Pinkston provided wound care through the
end of July when, on July 31, 2015, he returned Employee to work without restrictions
and placed him at maximum medical improvement.
Employer denied further benefits, and Employee filed a Petition for Benefit
Determination. After performing a record review at Employee’s request, the trial court
denied benefits based on a finding that Employee had not presented sufficient evidence
regarding whether he suffered an injury arising primarily out of and in the course and
scope of his employment to prevail at a hearing on the merits. Employee appealed.
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Standard of Review
The standard we apply in reviewing a trial court’s decision is statutorily mandated
and limited in scope. Specifically, “[t]here shall be a presumption that the findings and
conclusions of the workers’ compensation judge are correct, unless the preponderance of
the evidence is otherwise.” Tenn. Code Ann. § 50-6-239(c)(7) (2014). The trial court’s
decision must be upheld unless the rights of a party “have been prejudiced because
findings, inferences, conclusions, or decisions of a workers’ compensation judge:
(A) Violate constitutional or statutory provisions;
(B) Exceed the statutory authority of the workers’ compensation judge;
(C) Do not comply with lawful procedure;
(D) Are arbitrary, capricious, characterized by abuse of discretion, or
clearly an unwarranted exercise of discretion;
(E) Are not supported by evidence that is both substantial and material
in the light of the entire record.”
Tenn. Code Ann. § 50-6-217(a)(3) (2015). Like other courts applying the standards
embodied in section 50-6-217(a)(3), we will not disturb the decision of the trial court
absent the limited circumstances identified in the statute.
Analysis
Employee has not filed a brief or position statement in support of his appeal as
permitted by Tenn. Comp. R. & Regs. 0800-02-22-.02(1) (2015) and Section 5.1 of the
Appeals Board’s Practices and Procedures. Thus, the only indication we have of his
position on appeal is a handwritten comment on the notice of appeal: “Med 1 doc’s
where [sic] never used to show initial problem (cause).” It is unclear exactly what
Employee meant by this comment, but we infer that he means medical records from the
Med 1 clinic in Michigan should have been considered by the trial court.
The record on appeal contains an exam report from Med 1 filed on November 4,
2015, one day before the trial court’s decision was filed on November 5, 2015.1 The
report was not made an exhibit and is not otherwise mentioned in the trial court’s
decision. Indeed, the trial court’s order reflects that, other than a prescription, the court
was not provided with any records from Med 1. Based on his statement in the notice of
appeal, Employee apparently believes that the Med 1 record filed on November 4, 2015
should have been considered by the trial court. Assuming for the sake of analysis
Employee is correct, we find that the information contained in the Med 1 note merely
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The report reflects that Employee was examined on June 17, 2015 and had a “[r]ash secondary to some
type of bite[.] Rx given for antibiotics for cellulitis [and Employee] is capable to drive back home.”
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corroborates other information in the record and its consideration likely would not have
altered the outcome. Thus, any error in this regard was harmless error.
Other than the vague issue raised in the notice of appeal regarding the records
from Med 1, Employee makes no argument as to how the trial court erred in deciding the
case. Thus, we have no way of knowing the nature of his contentions on appeal. As
stated by the Tennessee Supreme Court, “[i]t is not the role of the courts, trial or
appellate, to research or construct a litigant’s case or arguments for him or her.” Sneed v.
Bd. of Prof’l Responsibility of the Sup. Ct. of Tenn., 301 S.W.3d 603, 615 (Tenn. 2010).
Indeed, were we to search the record for possible errors and raise issues and arguments
for Employee, we would essentially be acting as his counsel, something the law clearly
prohibits us from doing. As explained by one court, appellate courts will not “dig
through the record in an attempt to discover arguments or issues that [a pro se party] may
have made had [that party] been represented by counsel” because doing so “would place
[the opposing party] in a distinct and likely insurmountable and unfair disadvantage.”
Webb v. Sherrell, No. E2013-02724-COA-R3-CV, 2015 Tenn. App. LEXIS 645, at *5
(Tenn. Ct. App. Aug. 12, 2015). Accordingly, we decline to search the record in an
attempt to discover errors that might benefit either party. See McEarl v. City of
Brownsville, No. W2015-00077-COA-R3-CV, 2015 Tenn. App. LEXIS 894, at *7 (Tenn.
Ct. App. Nov. 6, 2015).
The trial court determined that Employee did not present sufficient evidence to
establish that his cellulitis resulted from an insect bite or that such a bite, if one did occur,
arose primarily out of and in the course and scope of his employment. While it is not
necessary for an injured worker to prove every element of his or her claim by a
preponderance of the evidence in order to obtain relief prior to trial at an expedited
hearing, it is necessary for the injured worker to come forward with sufficient evidence
from which the trial court can determine the employee is likely to prevail at a hearing on
the merits consistent with Tennessee Code Annotated section 50-6-239(d)(1). McCord v.
Advantage Human Resourcing, No. 2014-06-0063, 2015 TN Wrk. Comp. App. Bd.
LEXIS 6, at *7-8, 9 (Tenn. Workers’ Comp. App. Bd. Mar. 27, 2015). The trial court
concluded that Employee failed to meet that burden. The record does not preponderate
against that finding. Thus, the trial court’s decision is affirmed.
Conclusion
For the foregoing reasons, we conclude that the evidence does not preponderate
against the trial court’s decision or violate any of the standards identified in Tennessee
Code Annotated section 50-6-217(a)(3). Accordingly, we affirm the trial court’s decision
and remand the case for any further proceedings that may be necessary.
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TENNESSEE BUREAU OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD
Randall Harper ) Docket No. 2015-06-1067
)
v. )
) State File No. 47262-2015
USF Holland Trucking Company )
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 18th day of December, 2015.
Name Certified First Class Via Fax Via Email Address
Mail Mail Fax Number Email
Randy Harper X randharper2@gmail.com
Stephen Heard X skheard@cornelius-collins.com
Robert Durham X Via Electronic Mail
Kenneth M. Switzer, X Via Electronic Mail
Chief Judge
Penny Shrum, Clerk, X Penny.Patterson-Shrum@tn.gov
Court of Workers’
Compensation Claims
Jeanette Baird
Deputy Clerk, Workers’ Compensation Appeals Board
220 French Landing Dr., Ste. 1-B
Nashville, TN 37243
Telephone: 615-253-0064
Electronic Mail: Jeanette.Baird@tn,gov