Valentine, Sandra v. Kellogg Companies

TENNESSEE BUREAU OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD

Sandra Valentine ) Docket No. 2016-08-0288
)
v. )
) State File No. 1969-2016
Kellogg Companies )
)
)
Appeal from the Court of Workers’ )
Compensation Claims )
Allen Phillips, Judge )

Affirmed and Certified as Final – Filed May 3, 2017

The employee alleged she suffered a mental injury arising out of and in the course and
scope of her employment. Following an expedited hearing, the trial court denied her
request for benefits. Thereafter, the employee failed to participate in two status
conferences and failed to appear for a show cause hearing. As a result, the trial court
dismissed her mental injury claim with prejudice. The employee has appealed. We
affirm the trial court’s determination and certify the order of dismissal as final.

Judge Timothy W. Conner delivered the opinion of the Appeals Board in which Presiding
Judge Marshall L. Davidson, III, and Judge David F. Hensley joined.

Sandra Valentine, Memphis, Tennessee, employee-appellant, pro se

Thomas J. Smith, Nashville, Tennessee, for the employer-appellee, Kellogg Companies

Memorandum Opinion1

Sandra Valentine (“Employee”) was employed as a production line worker by
Kellogg Companies (“Employer”). In September 2014, she reported a left thumb injury
that was accepted as compensable. Following that work injury, Employee claimed she
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.
1
experienced “retaliation and harassment” at work, culminating in a “mental breakdown”
on or about November 10, 2015. She sought workers’ compensation benefits for her
alleged mental injury, and Employer denied the claim, asserting that Employee’s
psychological condition did not arise primarily out of and in the course and scope of her
employment.

Following unsuccessful mediation, a dispute certification notice was issued and a
request for an expedited hearing was filed. After the expedited hearing, the trial court
entered an order denying the requested benefits.2 Employee did not appeal this order.

Thereafter, the trial court scheduled a status conference for October 17, 2016.
Counsel for Employer appeared, but Employee did not. Another status conference was
set for January 17, 2017, but neither party appeared. The trial court then set a show cause
hearing and specifically advised the parties that “[f]ailure to appear may result in a
dismissal of the case.” Counsel for Employer appeared for the show cause hearing, but
Employee did not. The trial court issued an order on February 1, 2017, dismissing
Employee’s claim with prejudice. Employee has appealed.

In her notice of appeal, Employee alleges she was unable to attend the status
conferences due to medical treatment unrelated to her workers’ compensation claim. She
further alleges she attempted to participate in the show cause hearing by telephone, but
was unable to get through. She attached to her notice of appeal doctors’ notes
documenting her recent, non-work-related medical treatment.

Tennessee Rule of Civil Procedure 41.02 governs involuntary dismissals.
Specifically, Rule 41.02(1) provides that a case may be dismissed “[f]or failure . . . to
prosecute or to comply with these rules or any order of court.” Thus, under the rule, a
trial court is authorized to dismiss a claim for (1) failure to prosecute, (2) failure to
comply with the rules of civil procedure, or (3) failure to comply with an order of the
court. Significantly, such a dismissal operates as an adjudication of the case on its merits
unless otherwise specified in the order. Tenn. R. Civ. P. 41.02(3).

In Lightfoot v. Xerox Business Services, No. 2015-01-0233, 2016 TN Wrk. Comp.
App. Bd. LEXIS 43 (Tenn. Workers’ Comp. App. Bd. Sept. 12, 2016), we addressed the
dismissal of an action under similar circumstances. The employee in Lightfoot failed to
comply with several orders of the trial court, which resulted in dismissal of her claim
with prejudice. In affirming the decision on appeal, we relied on a Tennessee Supreme
Court case in holding that “‘a trial court may under certain circumstances and upon
adequate grounds therefor, sua sponte order the involuntary dismissal of an action.’” Id.
at *16 (quoting Harris v. Baptist Mem’l Hosp., 574 S.W.2d 730, 731 (Tenn. 1978)).

2
We have not been provided transcripts of the expedited hearing, the status conferences, or the show
cause hearing.
2
Furthermore, we reasoned, “[i]n determining whether a case should be dismissed for
failure to prosecute, the trial judge may ‘inspect the entire procedural history of the case
before deciding whether to dismiss it for want of prosecution. Each case, of course, must
be evaluated within its own procedural context.’” Id. at *19-20 (quoting Sheaffer v.
Warehouse Employees Union, 408 F.2d 204, 206 (D.C. Cir. 1969)).

Employee’s appeal in the present case suffers from two defects that hinder
appellate review. First, Employee has provided no meaningful argument as to how the
trial court erred in dismissing her case. Other than the statements written on her notice of
appeal, she failed to identify any issues for review, failed to file a position statement or
brief on appeal, and failed to cite any rule, statute, or precedent supporting her position.
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 her 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” 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 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).

Second, Employee included with her notice of appeal purported testimony and
attachments that were not admitted as evidence and not considered by the trial court.
“[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.” 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). Thus, we cannot consider Employee’s factual
statements written on her notice of appeal or the medical documents attached to her
notice of appeal.

Consequently, we conclude that the trial judge did not err in dismissing
Employee’s mental injury claim with prejudice under the circumstances presented. The
trial court’s decision is affirmed and the order of dismissal is certified as final.

3
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD

Sandra Valentine ) Docket No. 2016-08-0288
)
v. ) State File No. 1969-2016
)
Kellogg Companies )

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 3rd day of May, 2017.
Name Certified First Class Via Fax Via Email Address
Mail Mail Fax Number Email

Sandra Valentine X X Valentines1@hotmail.com
7242 Autumn Forrest Dr.
Memphis, TN 38125
Thomas J. Smith X tjs@spicerfirm.com
Allen Phillips, 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

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