Winningham, Robert v. Perdue Farms, Inc.

TENNESSEE BUREAU OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD

Robert Winningham ) Docket No. 2017-04-0013
)
v. ) State File No. 97169-2016
)
Perdue Farms, Inc., et al. )
)
)
Appeal from the Court of Workers’ )
Compensation Claims )
Robert V. Durham, Judge )

Affirmed and Remanded—Filed August 11, 2017

The employee, a worker at a chicken processing plant, alleged an injury to his left arm as
a result of lifting bags of breading used in preparing the employer’s product. The
authorized physician opined there was no work-related injury, and the employer denied
the claim. After an expedited hearing, the trial court found the employee had presented
insufficient evidence of an injury arising primarily out of his employment and denied
benefits. The employee has appealed. We affirm the trial court’s decision and remand
the case.

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

Robert Winningham, Algood, Tennessee, employee-appellant, pro se

Walter S. Fitzpatrick III, Cookeville, Tennessee, for the employer-appellee, Perdue
Farms, Inc.

Memorandum Opinion1

Robert Winningham (“Employee”) alleges suffering injuries to his left arm as a
result of lifting bags of breading in the course of his employment with Perdue Farms, Inc.
(“Employer”). Employer provided a panel of physicians, and Employee chose Dr. Toney
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“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.

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Hudson from the panel. Dr. Hudson saw Employee on December 13, 2016, at which
time he opined that Employee’s condition was not work-related as there was “absolutely
no history of an injury at work.” In an affidavit dated April 24, 2017, Dr. Hudson stated
that “[w]ithin a reasonable degree of medical certainty, [he] did not find any significant
evidence of any medical injury, condition, or problem.” He also stated that Employee’s
“left forearm discomfort does not primarily arise out of his employment activities at
[Employer]. It is further [his] opinion . . . that the cause of [Employee’s] left forearm
discomfort does not more than 50% arise out of his employment.” In a supplemental
affidavit, Dr. Hudson indicated he had reviewed Employee’s job description and that his
opinion remained unchanged. After an expedited hearing, the trial court declined to
award benefits. Employee has appealed.

Employee has provided no brief or argument on appeal setting out how he
contends the trial court erred in deciding his case, and we decline to speculate as to the
nature of his contentions on appeal. Sneed v. Bd. of Prof’l Responsibility of the Supreme
Court of Tenn., 301 S.W.3d 603, 615 (Tenn. 2010) (“It is not the role of the courts, trial
or appellate, to research or construct a litigant’s case or arguments for him or her.”).
Furthermore, we have not been provided a statement of the evidence or transcript of the
proceedings in the trial court. Thus, 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 decision was 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 . . .
was found or should have been found favorably to the appellee.”).

A frivolous appeal is one that is devoid of merit, Combustion Eng’g, Inc. v.
Kennedy, 562 S.W.2d 202, 205 (Tenn. 1978), and has no reasonable chance of
succeeding, Davis v. Gulf Ins. Grp., 546 S.W.2d 583, 586 (Tenn. 1977). This is such an
appeal. However, we exercise our discretion under Tenn. Comp. R. & Regs. 0800-02-22-
.04(6) (2016) not to impose sanctions at this time.

The decision of the trial court is affirmed and the case is remanded for any further
proceedings that may be necessary.

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TENNESSEE BUREAU OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD

Robert Winningham ) Docket No. 2017-04-0013
)
v. ) State File No. 97169-2016
)
Perdue Farms, Inc., 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 11th day of August, 2017.
Name Certified First Class Via Fax Via Email Address
Mail Mail Fax Number Email

Robert Winningham X 228 Mirandy Road
Cookeville, TN 38506
Walter S. "Pat" X fitzlaw@mooreraderfitzpatrick.com
Fitzpatrick, III
Robert V. Durham, 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