TENNESSEE BUREAU OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD
Horace Wade Thomas ) Docket No. 2015-06-0546
)
v. ) State File No. 57850-2015
)
Zipp Express, et al. )
)
)
Appeal from the Court of Workers’ )
Compensation Claims )
Joshua D. Baker, Judge )
Affirmed and Remanded - Filed November 30, 2017
This third interlocutory appeal arises from the trial court’s denial of the employee’s
motion for medical treatment. In the initial appeal, we affirmed the trial court’s order
requiring the employer to provide medical benefits stemming from the employee’s
syncopal episode that occurred in the course of his employment. The employer
subsequently filed a motion for summary judgment, which the trial court denied. We
affirmed that denial in the second appeal. Thereafter, the employee filed a motion
seeking additional medical benefits, which the trial court denied based upon its
determination that the employee failed to prove a causal relationship between his injury
and his need for additional medical treatment. In this appeal, the employee asserts the
trial court erred in denying his motion. We affirm the trial court’s denial of the motion
and remand the case for additional proceedings as may be necessary.
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.
Horace Wade Thomas, Lebanon, Tennessee, employee-appellant, pro se
B. Duane Willis and David E. Goudie, Nashville, Tennessee, for the employer-appellee,
Zipp Express
1
Memorandum Opinion1
Horace Wade Thomas (“Employee”) alleges he suffered injuries arising out of and
occurring in the course of his employment as a truck driver with Zipp Express
(“Employer”). He asserts that on February 19, 2015, after a particularly long trip
involving delays due to inclement weather and a significant period of time being stranded
in his truck, he passed out while standing in a truck stop as a result of his exhaustion,
striking his head and suffering injuries due to the fall. Employer denied the claim,
asserting Employee’s injuries were idiopathic and did not arise out of the employment.
Following an expedited hearing, the trial court concluded Employee was likely to
prevail at a hearing on the merits in establishing he suffered a compensable injury and
ordered Employer to provide a panel of “neurological specialists” from which Employee
could choose a treating physician. Employer appealed that decision, and we affirmed the
trial court’s determination. See Thomas v. Zipp Express, No. 2015-06-0546, 2016 TN
Wrk. Comp. App. Bd. LEXIS 35 (Tenn. Workers’ Comp. App. Bd. Aug. 2, 2016).
The neurologist Employee selected from the panel, Dr. Garrison Strickland, stated
in a report that he was “unable to say if work contributed more than 50% or less than
50%” in causing Employee’s syncopal episode. Thereafter, Employer filed a motion for
summary judgment relying on Dr. Strickland’s opinion as well as the opinions of Dr.
Blake Garside and Dr. Robert Weiss, who performed records reviews at Employer’s
request. Drs. Garside and Weiss opined that Employee’s syncopal episode was not
causally related to his employment. Relying on an emergency room record indicating the
doctor’s impression that Employee suffered “syncope, probably due to sleep loss,” and
the treating physician’s report indicating he suspected “sleep deprivation played a role in
[Employee’s] syncope,” the trial court concluded there were material facts in dispute and
denied Employer’s motion for summary judgment. Employer appealed, and we affirmed
the trial court’s denial of Employer’s summary judgment motion. See Thomas v. Zipp
Express, No. 2015-06-0546, 2017 TN Wrk. Comp. App. Bd. LEXIS 22 (Tenn. Workers’
Comp. App. Bd. Mar. 15, 2017).
Dr. Strickland subsequently signed a letter to Employer wherein he stated “I am
unable to discern causation in this case” and recommended “referral to Dr. Steven
Graham of Nashville for another neurologic opinion.” Employer sent Dr. Graham a letter
confirming an appointment for Employee’s evaluation, which advised that Dr. Strickland
had referred Employee “for evaluation by you to address causation.” The letter was
accompanied by Employee’s medical records and a video from the truck stop that showed
Employee’s syncopal episode. In addition, the letter provided a description of the events
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.
2
leading up to Employee’s syncopal episode, a history of the medical care Employee
received following the incident, and three questions requesting Dr. Graham’s opinions
concerning the cause of the February 2015 syncopal episode and a January 2016 syncopal
episode. Based upon Dr. Graham’s responses, which indicated Employee’s initial
syncopal episode was not “more than 50% related to his work as a truck driver,”
Employer refused to authorize further treatment. Employee subsequently filed a motion
for medical treatment, requesting “the court to review prescribed medicine,” and stating
that “Employer has sent me to second doctor and I had [a] second prescription . . . which
insurance carrier has denied for a second time.”
In its response to the motion, Employer submitted Dr. Strickland’s letter
recommending the referral to Dr. Graham and the correspondence from Employer to Dr.
Graham that included Dr. Graham’s causation opinions. Employer asserted that “[b]ased
upon Dr. Graham’s opinion as the authorized treating physician, the Employer declined
further treatment recommendations as they were not reasonably related to the work
injury.” Employer requested the court to deny Employee’s motion for medical treatment,
asserting “this is not a compensable work injury for which medical treatment is due.”
Following a hearing, the trial court denied Employee’s motion, stating in its order
that Employee bears the burden of proof to “show a causal relationship between his
injury and his work to reestablish treatment,” and concluding Employee “failed to carry
his burden.” The court noted that Dr. Graham had determined that Employee’s work “did
not contribute more than fifty percent to his episode of syncope.” Stating that “[a]s the
authorized treating physician, Dr. Graham’s opinion on the cause of the syncope is
presumed correct,” the court determined that Employee “did not present sufficient
evidence to overcome the presumption.”2 Employee has appealed.
We have been provided a transcript of the hearing on Employee’s motion, and
both parties have submitted position statements for our review. However, Employee’s
position statement essentially reiterates his version of how he came to be injured and
asserts the medical proof was sufficient to establish that he “just gave out from loss of
sleep.” Although he explains his theory of his injury in detail, he provides no meaningful
legal argument to explain how the trial court erred in its disposition of the motion.
As stated by the Tennessee Supreme Court, and as we have observed on numerous
occasions, “[i]t is not the role of the courts, trial or appellate, to research or construct a
2
Tennessee Code Annotated section 50-6-102(14)(E) (2017) provides that the opinion of the treating
physician “selected by the employee from the employer’s designated panel of physicians pursuant to §
50-6-204(a)(3), shall be presumed correct on the issue of causation but this presumption shall be
rebuttable by a preponderance of the evidence.” Although Dr. Graham was not selected from a panel of
physicians as provided in this section, Employee has not raised any issues concerning whether Dr.
Graham was a treating physician or the application of the statutory presumption, and we offer no opinion
on those issues.
3
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. The law clearly prohibits us from doing so, as
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”
as 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
conduct an “archaeological dig” into the record in an attempt to discover errors that might
benefit either party. McEarl v. City of Brownsville, No. W2015-00077-COA-R3-CV,
2015 Tenn. App. LEXIS 894, at *7 (Tenn. Ct. App. Nov. 6, 2015).
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).
Our review of a trial court’s decision is accompanied by a presumption that the
court’s factual findings are correct, Tenn. Code Ann. § 50-6-239(c)(7) (2017), and, in the
absence of a meaningful argument on appeal demonstrating that the trial court erred, we
decline to disturb those findings. Accordingly, we affirm the decision of the trial court
and remand the case.
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TENNESSEE BUREAU OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD
Horace Wade Thomas ) Docket No. 2015-06-0546
)
v. ) State File No. 57850-2015
)
Zipp Express, et al. )
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 November, 2017.
Name Certified First Class Via Fax Via Email Address
Mail Mail Fax Number Email
Horace Wade Thomas X wadestruck@live.com
Duane Willis X dwillis@morganakins.com
Joshua D. Baker, Judge 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: WCAppeals.Clerk@tn.gov