Kleeberg, Monica v. Environmental Solutions Systems

TENNESSEE BUREAU OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD

Monica Kleeberg ) Docket No. 2015-01-0134
)
v. ) State File No. 72298-2015
)
Environmental Solutions Systems, et al. )
)
)
Appeal from the Court of Workers’ )
Compensation Claims, )
Thomas Wyatt, Judge )

Affirmed and Certified as Final - Filed September 22, 2017

The employee, a housekeeper at a hotel, fractured her left wrist when she fell while
performing housekeeping duties on the hotel’s premises. Following a trial on the merits,
the court awarded permanent partial disability benefits and ongoing medical benefits
against her direct employer and against two employers the court determined to be
statutory employers. The trial court denied the employee’s request for past medical
expenses and temporary disability benefits, concluding the employee failed to offer
evidence of the medical expenses allegedly incurred prior to trial and failed to prove a
connection between her claimed temporary disability and her work injury. The employee
has appealed. Having carefully reviewed the record, we affirm the trial court’s decision
and certify it 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.

Monica Kleeberg, Ooltewah, Tennessee, employee-appellant, pro se

Alex B. Morrison and Kristen C. Stevenson, Knoxville, Tennessee, for the employers-
appellees, Embassy Suites by Hilton – Chattanooga Hamilton Place and Certistaff, Inc.

Michael A. Anderson and Jeremy M. Cothern, Chattanooga, Tennessee, for employer-
appellee, Environmental Solutions Systems

1
MEMORANDUM OPINION1

Monica Kleeberg (“Employee”) is a fifty-three-year-old resident of Hamilton
County, Tennessee, whose ability to understand and speak English is limited. She
fractured her left wrist in a fall on May 9, 2015, while in the course and scope of her
employment as a hotel housekeeper. She was treated at Erlanger Hospital’s emergency
department for left wrist pain, after which she was referred to orthopedic surgeon Dr. J.
Woodfin Kennedy. Dr. Kennedy initially examined Employee on May 14, 2015, and
diagnosed a left distal radius fracture. On June 1, 2015, he performed an open reduction
with internal fixation to surgically repair the fracture. He determined that Employee
reached her maximum medical recovery on April 7, 2016, and opined that her injury
resulted in a permanent medical impairment of 4% to the whole body.

Employee’s initial petition for benefit determination was filed on June 12, 2015.
It identified her employer as Profit Line Services (“Profit Line”) and stated that “they
won’t pay [her] claim.”2 On August 3, 2015, Employee filed a request for expedited
hearing on the record without an evidentiary hearing. A dispute certification notice filed
on August 4, 2015 identified Profit Line, Environmental Solutions Systems
(“Environmental Solutions”), and Embassy Suites by Hilton-Chattanooga Hamilton
Place/Certistaff, Inc. (“Embassy Suites”), as employers. It stated that “[e]ach of the
employers listed deny [sic] that they owe benefits. The employers state that the
employee is a contractor and not an employee.” On September 8, 2015, Employee filed
two additional petitions for benefit determination, again alleging “they won’t pay [her]
claim.” One petition identified Embassy Suites as the employer, and the other identified
the employer as Environmental Solutions.

On September 23, 2015, the trial court issued an order addressing Employee’s
initial petition for benefit determination. The order required Profit Line to provide “past
and future medical benefits for [Employee’s] compensable left-wrist injury, including but
not limited to payment of all reasonable and necessary treatment of her injury at Erlanger
Medical Center and by . . . Dr. J. Woodfin Kennedy.” The trial court denied Employee’s
claim for temporary disability benefits, finding “[t]he record is silent as to whether
[Employee] worked after her injury.”

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
Neither an attorney for nor a representative of Profit Line or its workers’ compensation carrier appeared
at any proceeding in the Court of Workers’ Compensation Claims or in this appeal, and no documents
were submitted or arguments made by Profit Line or its workers’ compensation carrier with respect to
Ms. Kleeberg’s claim for benefits.

2
On October 9, 2015, a mediator filed a dispute certification notice addressing the
claim against Environmental Solutions, which stated “[Environmental Solutions] asserts
that they are not the employer and therefore are not responsible for the employee’s
workers’ compensation claim.” On January 29, 2016, the mediator issued a dispute
certification notice addressing the claim against Embassy Suites that included identical
language reflecting Embassy Suites’ assertion that it was not responsible for Employee’s
claim. The trial court consolidated the three claims, after which Embassy Suites and
Environmental Solutions filed motions for summary judgment, which the trial court
denied.3

The case was tried on May 2, 2017. The primary issues, as identified by the trial
court, were (1) whether Employee was an independent contractor; (2) whether Employee
established that her injury arose primarily out of and in the course and scope of her
employment; (3) the benefits, if any, to which Employee was entitled; and (4) whether
Embassy Suites and Environmental Solutions were statutory employers.

The trial court determined Employee established she was an employee and not an
independent contractor at the time of her injury. It also found the preponderance of the
evidence established “the obvious fact that [Employee] fractured her left wrist when she
fell while working at [Embassy Suites’] hotel on May 9,” such that “she is not required to
establish the work-relatedness of her left-wrist fracture by medical opinion.” The trial
court denied Employee’s request to recover the medical expenses she incurred, finding it
“has before it no evidence of the charges [Employee] incurred for the treatment of her
claimed injury.”4 The trial court determined Employee was entitled to ongoing and
future medical care reasonable and necessary for her injury and concluded “Dr. Kennedy
shall be the authorized treating physician for the provision of ongoing medical benefits.”
The court denied Employee’s request for temporary disability benefits, finding Employee
“failed to prove a connection between her claimed disability and her work injury.”
However, the court awarded permanent partial disability benefits of eighteen weeks based
upon Dr. Kennedy’s four percent whole body impairment rating. Finally, the trial court
determined both Embassy Suites and Environmental Solutions were statutory employers
as contemplated by Tennessee Code Annotated section 50-6-113(a) (2016), and, along
with Employer, were responsible for the benefits awarded to Employee.

3
Employee also filed a claim for benefits for her May 9, 2015 left wrist fracture against Russell
Florsheim, d/b/a United Resource Group. On July 20, 2016, the trial court granted summary judgment in
favor of Mr. Florsheim. Neither the order granting summary judgment and dismissing Mr. Florsheim as a
party nor the orders denying Embassy Suites’ and Environmental Solutions’ summary judgment motions
were appealed.
4
Although Employee attempted to introduce some medical bills at trial, the court excluded those from
evidence, finding they had not been properly authenticated to overcome a hearsay objection.

3
Employee has appealed. The basis of her appeal as set out in her notice of appeal
is hand-written in Spanish, and we have been provided no translation by the parties.
However, based on the record before us, it appears Employee disputes the trial court’s
denial of her request that Profit Line, Environmental Solutions, and/or Embassy Suites be
required to pay for her past medical treatment for her left wrist fracture. For the reasons
that follow, we affirm the trial court’s order in all respects.5

As is often the case in appeals filed by self-represented litigants, the record on
appeal is insufficient to permit meaningful review of the trial court’s conclusions. First,
Employee failed to file a transcript or statement of the evidence. Without a record of the
testimony presented in the trial court, an appellate court “cannot know what evidence was
presented to the trial court, and there is no means by which [it] can evaluate the
appellant’s assertion that the evidence did not support the trial court’s decision.” Britt v.
Chambers, No. W2006-00061-COA-R3-CV, 2007 Tenn. App. LEXIS 38, at *8 (Tenn.
Ct. App. Jan. 25, 2007). 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. Instead, consistent with established Tennessee law, we must presume
that the trial court’s rulings were supported by sufficient evidence. See 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.”).

Second, Employee has not filed a brief, cited any authority, or made any
meaningful argument on appeal with regard to how she believes the trial court erred.6 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
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 her counsel. The law clearly prohibits us from doing so, and
appellate courts may 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

5
Neither Environmental Solutions nor Embassy Suites appealed the trial court’s conclusions that they
were statutory employers and were responsible for paying permanent partial disability benefits and
ongoing medical benefits to the same extent as Employee’s direct employer, Profit Line. Thus, we forego
any analysis of those conclusions.
6
While Employee did submit an e-mail that she identifies as a brief, it contains no argument or authority
and identifies no issues for review.

4
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).

Finally, Employee has attempted to introduce on appeal evidence that was not
submitted to the trial court at the compensation hearing. Consistent with established
principles of appellate review, we decline to consider evidence not presented to and
considered by the trial court. See Hadzic v. Averitt Express, No. 2014-02-0064, 2015 TN
Wrk. Comp. App. Bd. LEXIS 14, at *13 n.4 (Tenn. Workers’ Comp. App. Bd. May 18,
2015) (“[W]e will not consider on appeal testimony, exhibits, or other materials that were
not properly admitted into evidence at the hearing before the trial judge.”). Accordingly,
we affirm the trial court’s order and certify it as final.

5
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD

Monica Kleeberg ) Docket No. 2015-01-0134
)
v. ) State File No. 72298-2015
)
Environmental Solutions Systems, 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 22nd day of September, 2017.
Name Certified First Class Via Fax Via Email Address
Mail Mail Fax Number Email

Monica Kleeberg X X Giancarlor20@gmail.com
c/o Monica Kleeberg 3400 Jenkins Rd.
Apt. 308 Chattanooga, TN 37421
Profit Line Services, X Rudylugo123@hotmail.com
Inc. c/o Rudy Lugo
Michael A. Anderson X manderson@pbsjlaw.com
Jeremy M. Cothern X jcothern@pbsjlaw.com
Alex B. Morrison X abmorrison@mijs.com
Kristen C. Stevenson X kcstevenson@mijs.com
Thomas L. Wyatt, 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