Holmes v. Ellis Watkins d/b/a Watkins Lawn Care

TENNESSEE BUREAU OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD

Daryl Holmes ) Docket No. 2017-08-0504
)
v. ) State File No. 31584-2017
)
Ellis Watkins d/b/a Watkins Lawn Care )
)
)
Appeal from the Court of Workers’ )
Compensation Claims )
Deana C. Seymour, Judge )

Affirmed and Remanded – Filed February 13, 2018

In this interlocutory appeal, the employee suffered a severe laceration to his right hand
caused by a chainsaw while he was helping his employer remove fallen tree limbs. The
employer did not have workers’ compensation insurance and maintained he was
exempted from having such insurance because he employed less than five persons. The
trial court concluded that, as a “construction service provider” as that term is defined in
Tennessee Code Annotated section 50-6-902 (2017), the employer was required to have
workers’ compensation insurance if he had one or more employees. It further concluded
the employee was entitled to a panel of physicians, but it denied the employee’s request
for past medical expenses and temporary disability benefits. The employer has appealed.
We affirm the decision of the trial court and remand the case.

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.

Ellis Watkins d/b/a Watkins Lawn Care, Memphis, Tennessee, employer-appellant, pro
se

James Blount, IV, Collierville, Tennessee, for the employee-appellee, Daryl Holmes

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Memorandum Opinion1

Daryl Holmes (“Employee”) worked for Ellis Watkins d/b/a Watkins Lawn Care
(“Employer”).2 On March 17, 2017, Employee and Employer were working at a location
in Shelby County, Tennessee, removing fallen tree limbs. As Employer used a chainsaw
to cut the limbs, Employee was pulling the limbs. In the course of this work, the
chainsaw struck and severely lacerated Employee’s right hand. Employee sought
emergency care and underwent surgery to repair a lacerated tendon. He was hospitalized
for three days.

Employer did not provide Employee a panel of physicians, did not pay medical
bills, and did not initiate benefits of any kind pursuant to the Tennessee Workers’
Compensation Act. Subsequently, a Bureau of Workers’ Compensation compliance
specialist investigated Employer’s lack of workers’ compensation insurance as of the date
of the injury and produced a report summarizing his findings. According to the trial
court’s expedited hearing order, the parties stipulated to the admissibility of this report
during the expedited hearing, and it was admitted into evidence.

Following the expedited hearing, during which the trial court heard and considered
testimony from the parties, the court entered an order finding that Employer qualified as a
“construction service provider” subject to workers’ compensation laws, and that it must
provide Employee a panel of physicians. However, the trial court determined Employee
had not come forward with sufficient evidence at the expedited hearing to support the
reimbursement of past medical expenses or the payment of temporary disability benefits.

Employer filed a notice of appeal, but did not file a transcript of the expedited
hearing, a statement of the evidence, or a brief. Instead, Employer filed a one-paragraph,
hand-written statement in which he “disagree[d] with any and all claims regarding
[Employee].” He further asserted that Employee’s claims were “fraudulent and
frivolous” and that his position was “based solely on the sworn affidavits and documents
submitted to the courts.” He offered no argument as to how the trial court erred in its
consideration of the evidence or its determinations.

As we have noted on numerous occasions in the past, our ability to conduct
meaningful appellate review is significantly hampered when an appellant fails to provide
a transcript of the hearing or statement of the evidence, and fails to offer any substantive

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
The parties provided no transcript of the expedited hearing or statement of the evidence. As such, we
have gleaned the facts from the pleadings, exhibits, and the trial court’s expedited hearing order.

2
argument on appeal. See, e.g., Hardin v. Dewayne’s Quality Metals, No. 2015-07-0067,
2015 TN Wrk. Comp. App. Bd. LEXIS 45, at *3-4 (Tenn. Workers’ Comp. App. Bd.
Nov. 18, 2015). Without a transcript or a 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. See Britt v.
Chambers, No. W2006-00061-COA-R3-CV, 2007 Tenn. App. LEXIS 38, at *8 (Tenn.
Ct. App. Jan. 25, 2007). 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). Accordingly, “it is essential that the appellate court be provided with a transcript
of the trial proceedings or a statement of the evidence.” Britt, 2007 Tenn. App. LEXIS
38, at *7; 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.”). 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).

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. Accordingly, the trial court’s
conclusion that Employer is subject to Tennessee’s Workers’ Compensation Law and is
responsible for workers’ compensation benefits is affirmed.

Furthermore, we find this appeal to be frivolous. As we have noted in prior cases,
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. We are mindful that Employer has represented himself in this case.
However, that does not excuse him from complying with the same procedural and
substantive requirements as represented parties. See, e.g., Walton v. Averitt Express, Inc.,
No. 2015-08-0306, 2017 TN Wrk. Comp. App. Bd. LEXIS 37, at *5 (Tenn. Workers’
Comp. App. Bd. June 2, 2017) (“courts must not excuse pro se litigants from complying
with the same substantive and procedural rules that represented parties are expected to
observe”). Although we conclude that this appeal had no realistic chance of success and
is frivolous, we exercise our discretion on this occasion not to assess attorneys’ fees or
costs against Employer. See Tenn. Comp. R. & Regs. 0800-02-22-.04(6) (2015).
Accordingly, the trial court’s decision is affirmed, and the case is remanded.

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TENNESSEE BUREAU OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD

Daryl Holmes ) Docket No. 2017-08-0504
)
v. ) State File No. 31584-2017
)
Ellis Watkins d/b/a Watkins Lawn Care )

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 13th day of February, 2018.
Name Certified First Class Via Fax Via Email Address
Mail Mail Fax Number Email

James Blount, IV X jimmy@blountfirm.com
Ellis Watkins X 617 N. Merton Street
Memphis, TN 38112
Deana C. Seymour, X Via Electronic Mail
Judge
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