                            NONPRECEDENTIAL DISPOSITION
                             To be cited only in accordance with
                                      Fed. R. App. P. 32.1

              United States Court of Appeals
                                    For the Seventh Circuit
                                    Chicago, Illinois 60604

                                Submitted September 19, 2012*
                                 Decided November 21, 2012

                                             Before

                            FRANK H. EASTERBROOK, Chief Judge

                            ANN CLAIRE WILLIAMS, Circuit Judge

                            DAVID F. HAMILTON, Circuit Judge

No. 12-1074

PERCY MYRICK,                                      Appeal from the United States District
     Plaintiff-Appellant,                          Court for the Central District of Illinois.

       v.                                          No. 11-cv-2284

KEITH ANGLIN, et al.,                              Michael P. McCuskey,
     Defendants-Appellees.                         Judge.

                                           ORDER
         Percy Myrick, an Illinois inmate, alleges in this suit under 42 U.S.C. § 1983 that a
long list of administrators, guards, and healthcare staff at Danville Correctional Center
denied him medical treatment, adequate clothing, and basic hygiene items. Myrick’s litany
of claims against these unrelated defendants should have prompted the district court to
dismiss the improperly joined defendants or carve the action into separate lawsuits,
see Wheeler v. Wexford Health Sources, Inc., 689 F.3d 680, 683 (7th Cir. 2012); Owens v. Hinsley,

       *
        The appellees were not served with process in the district court and are not
participating in this appeal. After examining the appellant’s brief and the record, we have
concluded that oral argument is unnecessary. Thus, the appeal is submitted on the
appellant’s brief and the record. See FED. R. APP. P. 34(a)(2)(C).
No. 12-1074                                                                               Page 2

635 F.3d 950, 952 (7th Cir. 2011); George v. Smith, 507 F.3d 605, 606–07 (7th Cir. 2007), but
misjoinder is not a jurisdictional flaw and the court instead plowed ahead. After convening
a video conference with Myrick as an aid in screening his complaint, see 28 U.S.C. § 1915A,
the court dismissed the action for failure to state a claim. We conclude that the dismissal of
several claims and defendants was error.

        Our review of Myrick’s complaint is de novo, and for now, in evaluating its
sufficiency, we accept Myrick’s factual allegations as true. See Arnett v. Webster, 658 F.3d
742, 751 (7th Cir. 2011). By the time he filed his complaint in December 2011, Myrick had
been incarcerated at Danville for nearly eight years. In November 2008 a member of the
medical staff prescribed a hernia belt (or “truss”) for a painful abdominal hernia. But the
prescription was not filled despite Myrick’s repeated protests to Warden Keith Anglin,
Assistant Warden Victor Calloway, and healthcare administrator Mary Miller. After two
years of inaction, the medical staff gave Myrick another prescription, but, as before, the
prescription was not filled. At one point a hernia belt did arrive, but it was too small to fit
Myrick, and so he waited again while promised a larger size. Finally, around September
2010, he saw Dr. Talbot, who rescinded the prescription rather than fill it. Talbot told
Myrick that, in lieu of a hernia belt, he should restrict his movement. All the while Myrick
was experiencing pain from the condition.

        Meanwhile, in July 2009 Myrick was diagnosed with genital herpes. Defendant
Williams, a nurse practitioner, supplied him with a topical ointment, but it proved
ineffective. He told her that he was suffering from a painful flare-up, but Williams refused
alternative treatment. Myrick also complained in writing to Warden Anglin and to Miller,
but neither responded. Only after his condition had continued unabated for 11 months did
another member of the medical staff intervene: Myrick was at the healthcare unit for a
physical, and the examiner questioned why his herpes had gone untreated. He was
prescribed a drug that alleviated the flare-up, and since then has not experienced another.

       In August 2010, Myrick went without soap for a period of approximately 11 days.
He had received a half bar from defendant Clauson, who told him that it should last an
entire month. It lasted, however, only a few days. When Myrick finally asked for more
soap, Clauson gave him another half bar. Around this same time, Myrick was exposed to
dust from the vents in his cell that made it difficult for him to breathe. He wrote Warden
Anglin about the ventilation and also asked for supplies to clean his cell. Anglin replied
that Myrick could request a mop and a broom to clean his cell and also told him to notify
Majors Wright and Brown so that they could arrange for the vent to be cleaned. Myrick did
notify Wright and Brown, but his letters went unanswered.
No. 12-1074                                                                              Page 3

        By late October 2010, Myrick was suffering from a “skin issue” and visited the
healthcare unit, where defendant Elanie, a physician’s assistant, denied him treatment. A
week later, this condition had become an “outbreak on [his] body.” Myrick also had
developed a sore on his head. He returned to the healthcare unit, but again he was denied
treatment, this time by Dr. Talbot. His condition persisted, and by July 2011 he was
suffering from a “very, very painful” boil on his buttocks. He twice asked defendant
Dopkins, a prison guard, for permission to visit the healthcare unit, complaining that the
“pain was excruciating.” Dopkins refused. When Myrick visited the health care unit the
next day, defendant Barbor, a nurse, gave him Tylenol and an antibiotic, but five days later
his “boil” tested positive for methicillin-resistant Staphylococcus aureus (MRSA). A sore on
his right arm also tested positive for MRSA. Myrick was isolated for four days and treated
with antibiotics until the infection was resolved. While in isolation, Barbor and another
nurse refused to allow him to shower and forced him to sleep in sheets soiled with pus and
blood. Myrick was released, but his head sore remained untreated and bled onto his
pillowcase. When Myrick asked another guard, defendant Cannon, to call the clothing
room to get him a new pillowcase, Cannon refused.

        All of these persons are named as defendants in Myrick’s complaint. He claims that
he was denied constitutionally adequate medical treatment for his hernia, genital herpes,
and skin infections. Myrick also claims that he suffered unconstitutional conditions of
confinement because he was housed in a “filthy cell,” was not given more soap, lacked
clean clothes and bedding, and was exposed to dust that made breathing difficult. After
reviewing the complaint and briefly questioning Myrick during the video conference, the
district court dismissed the complaint. The court did not issue a written statement of
reasons, but it commented on several of Myrick’s claims during the video conference and,
in a step that we recommend to all district courts that use such screening conferences,
ordered a transcript of that conference prepared in response to Myrick's appeal. The court
told Myrick that his hernia was not a serious medical condition and that his allegations did
not suggest that medical staff had been deliberately indifferent—which, the judge said,
“means they didn’t see you.” And neither is genital herpes a serious medical condition, the
court continued, because it “can’t kill you.” The court added that Myrick did not have a
constitutional right to new clothing, nor did he have a plausible claim concerning his dirty
cell unless he could show resulting medical harm. On appeal Myrick argues that all of his
claims should be reinstated.

        To plead an Eighth Amendment violation for the denial of medical care, an inmate’s
complaint must allege both an objectively serious medical condition and an official’s
deliberate indifference to that condition. See Farmer v. Brennan, 511 U.S. 825, 834 (1994);
Arnett, 658 F.3d at 750; Lee v. Young, 533 F.3d 505, 509 (7th Cir. 2008). A medical condition is
No. 12-1074                                                                             Page 4

sufficiently serious if the failure to treat the condition could result in the unnecessary and
wanton infliction of pain and the condition has either been diagnosed by a physician as
mandating treatment or the need for treatment would be obvious to a layperson. See Gomez
v. Randle, 680 F.3d 859, 865 (7th Cir. 2012); Roe v. Elyea, 631 F.3d 843, 857 (7th Cir. 2011);
Gutierrez v. Peters, 111 F.3d 1364, 1373–74 (7th Cir. 1997). Deliberate indifference can be
proven by showing that a prison official knows of and disregards a substantial risk to an
inmate. See Arnett, 658 F.3d at 751.

        A hernia can be a serious medical problem. See Gonzalez v. Feinerman, 663 F.3d 311,
314 (7th Cir. 2011); Johnson v. Doughty, 433 F.3d 1001, 1014 (7th Cir. 2006). And Myrick
alleged that his untreated herpes and hernia were painful and had been recognized by
medical staff as requiring treatment; if his allegations are true, these conditions were
objectively serious. See Gomez, 680 F.3d at 865; Gutierrez, 111 F.3d at 1374. Likewise,
Myrick’s claim of “excruciating pain” from his skin infections, including the MRSA
infections, presented a sufficiently serious condition to support an Eighth Amendment
claim. See Gonzalez, 663 F.3d at 314; Gutierrez, 111 F.3d at 1370–71.

        Myrick also alleges deliberate indifference with respect to these ailments. Delaying
treatment may constitute deliberate indifference if the delay exacerbates the injury or
unnecessarily prolongs an inmate’s pain. See Estelle v. Gamble, 429 U.S. 97, 104–05 (1976);
McGowan v. Hulick, 612 F.3d 636, 640 (7th Cir. 2010). Although a difference in medical
opinion between an inmate and prison medical staff does not support a claim of cruel and
unusual punishment, see Berry v. Peterman, 604 F.3d 435, 441 (7th Cir. 2010); Ciarpaglini v.
Saini, 352 F.3d 328, 331 (7th Cir. 2003), Myrick alleges that without the prescribed hernia
belt and because of the delay in treatment for his herpes he suffered unnecessary pain. And
despite the district court’s assertion that a finding of deliberate indifference would require
that doctors refused even to see Myrick, a prisoner need not show that he was literally
ignored to prevail on an Eighth Amendment claim. Sherrod v. Lingle, 223 F.3d 605, 611 (7th
Cir. 2000); Greeno v. Daley, 414 F.3d 645, 653 (7th Cir. 2005). Nor may prison healthcare staff
persist with treatment they know to be ineffective when reasonable alternatives are
available. See Berry, 604 F.3d at 441–42. The district court therefore erred in dismissing
Myrick’s claims against Talbot, Williams, and (although we question whether she was
qualified to give Myrick the treatment he sought) Elanie. Dismissal also was premature
with respect to Myrick’s claim against Dopkins, who refused to let Myrick visit the
healthcare unit despite his claim of excruciating pain.

        Dismissal also was improper as to healthcare administrator Mary Miller. Although
in his complaint Myrick does not discuss extensively Miller’s personal role in his treatment,
he does allege that he complained to her directly about the medical staff’s failure to fill his
No. 12-1074                                                                                Page 5

prescription for a hernia belt, as well as the absence of treatment for his herpes. Moreover,
at this stage Miller’s position justifies the inference that she bore some responsibility for the
delay in Myrick’s treatment. See Duncan v. Duckworth, 644 F.2d 653, 655 (7th Cir. 1981);
see also Antonelli v. Sheahan, 81 F.3d 1422, 1428 (7th Cir. 1996). Miller’s position would also
allow her to identify those responsible for the treatment delays. See Antonelli, 81 F.3d at
1428; Duncan, 644 F.2d at 655.

        Also sufficient is Myrick’s claim that the dust from his cell’s vent caused him pain
and difficulty breathing. Myrick alleges that Warden Anglin told him to alert Majors
Wright and Brown about the faulty ventilation, and although he did so, these two
defendants did nothing to correct the problem. Complaints of inadequate ventilation may
state a claim for relief, Board v. Farnham, 394 F.3d 469, 485–86 (7th Cir. 2005); see Ciarpaglini,
352 F.3d at 331, and Myrick’s complaint is not so implausible that the district court could
dismiss it at the pleading stage.

      The rest of Myrick’s claims, however, fall short. First, although he claims that the
inadequate medical care resulted from an order by Warden Anglin and his assistants to cut
medical costs, Myrick’s complaint does not plausibly suggest the existence of such a policy.
“Threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.” See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

        Likewise deficient is Myrick’s claim that he was denied soap by defendant Clauson.
To plead an Eighth Amendment claim of unconstitutional conditions of confinement, an
inmate must allege that prison officials denied him “the minimal civilized measure of life’s
necessities,” Farmer, 511 U.S. at 834 (quotation marks and citation omitted), which would
include hygiene items such as soap, Gillis v. Litscher, 468 F.3d 488, 493 (7th Cir. 2006).
Myrick’s complaint does say that at one point he went without soap for 11 days, but his
allegations do not suggest that he asked for more and was refused. Indeed, the one time
that Myrick told Clauson that his soap supply had run out, Clauson gave him more.

       Myrick also fails to state a claim against the nurses and guards who refused his
requests for showers or new clothes and bedding. We have noted that limiting inmates to
weekly showers does not violate the Eighth Amendment. See Henderson v. Lane, 979 F.2d
466, 468–69 (7th Cir. 1992); Davenport v. DeRobertis, 844 F.2d 1310, 1316 (7th Cir. 1988).
Moreover, Myrick does not allege that he was prevented from washing at the sink. See
Davenport, 844 F.2d at 1316. Nor does he claim that the denial of new bedding and clothing
exacerbated or prolonged his medical conditions or that he could not wash his clothes and
bedding.
No. 12-1074                                                                              Page 6

        Finally, Myrick does not state a plausible claim for relief based on the condition of
his cell. Although he did not receive the specific cleaning supplies he requested, Myrick
does not allege that he was unable to clean his cell with supplies available to him.

        Accordingly, the judgment of the district court is VACATED as to defendants
Talbot, Williams, Elanie, Miller, Dopkins, Wright, and Brown, and the case is REMANDED
for further proceedings against those defendants. In all other respects the judgment is
AFFIRMED. On remand, we suggest that the district court consider recruiting counsel
for Myrick.


J-S71014-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    GERONIMO ROSADO                            :
                                               :
                       Appellant               :   No. 2402 EDA 2019

         Appeal from the Judgment of Sentence Entered July 23, 2019
     In the Court of Common Pleas of Chester County Criminal Division at
                       No(s): CP-15-SA-0000053-2019

BEFORE: BOWES, J., MURRAY, J., and McLAUGHLIN, J.

MEMORANDUM BY BOWES, J.:                                 FILED APRIL 06, 2020

       Geronimo Rosado appeals pro se from his judgment of sentence of a

$500.00 fine, imposed after he was convicted of the summary offense of

driving while under a license suspension.1 After thorough review, we affirm,

finding all issues waived.

____________________________________________

1 Preliminarily, we examined whether Appellant was entitled to counsel in the
proceedings below and on appeal, a question we may raise sua sponte. See
Commonwealth v. Johnson, 158 A.3d 117 (Pa.Super. 2017)
(acknowledging that we will address sua sponte whether an appellant was
entitled to counsel and/or whether that right was properly waived). For a
summary offense, a defendant is entitled to counsel if “there is a reasonable
likelihood of a sentence of imprisonment or probation.” Pa.R.Crim.P. 454.
Appellant was originally charged with driving under suspension, DUI-related,
pursuant to 75 Pa.C.S. § 1543(b)(1), found guilty of that offense by the district
justice, and sentenced to sixty days of imprisonment and a fine. Arguably, he
was entitled to counsel at that proceeding because there was a reasonable
likelihood of a sentence of imprisonment upon a finding of guilty of that
J-S71014-19

       Appellant was arrested on July 31, 2018, for driving with a suspended

license, DUI-related.2 See Traffic Citation, 7/31/18. Prior to the hearing, the

district justice appointed the Office of the Public Defender to represent

Appellant, and directed Appellant to meet with counsel that afternoon to

secure representation.        The record indicates that no counsel entered an

appearance for Appellant. On January 11, 2019, Magisterial District Judge

Bret M. Binder found Appellant guilty of the charged offense, and sentenced

him to sixty days of imprisonment and a $500 fine.        See Order Imposing

Sentence, 1/11/19.

       On February 6, 2019, Appellant filed a summary appeal to the court of

common pleas. See Summary Appeal Docket. On the day of trial, the court

approved the Commonwealth’s request to amend the charge to driving while

operator’s privilege suspended or revoked pursuant to 75 Pa.C.S. § 1543(a).

____________________________________________

offense. However, Appellant appealed, and on the morning of the summary
appeal trial de novo, the Commonwealth successfully moved to amend the
charge to a violation of § 1543(a), driving while operator’s privilege suspended
or revoked, which carries no penalty of imprisonment. The trial court found
Appellant guilty of that offense and imposed a fine. Based on the charge as
amended, we find that Appellant was not entitled to counsel at trial or in this
appeal.

2 The specific facts giving rise to the charge are unavailable. The proceeding
at the magisterial district court was not recorded, as is generally the
procedure. The certified record does not contain the notes of testimony from
the de novo trial that is the subject of our review because Appellant did not
order the transcript.

                                           -2-
J-S71014-19

Following the trial de novo on July 23, 2019, the court found Appellant guilty

of the charge as amended, and sentenced him to pay a $500 fine.

      Appellant timely appealed to this Court and was ordered by the trial

court to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on

appeal.   Appellant filed a rambling concise statement comprising sixteen

pages, prompting the trial court to conclude in its September 20, 2019 opinion

that all issues were waived because Appellant did not properly raise them.

See Trial Court Opinion, 9/20/19, at 2.

      Appellant filed his brief in this appeal, and the Commonwealth moved to

quash the appeal for two reasons: Appellant did not order the transcript of the

proceedings below and, his Rule 1925(b) concise statement was too vague to

preserve any issues. This Court denied the motion on November 3, 2019,

without prejudice to the Commonwealth to pursue these contentions with the

merits panel.

      Appellant presents one issue for our review:

      1. Whether the trial court abused its discretion by allowing
         malicious prosecution to present a defense under the
         provisions of Title 75.1543 (A). Uniform Commercial Driver’s
         Act, pursuant (1) Pa.75.Title. 1501(Drivers to Licensed)
         without (2). Pa. 75, Title. 1540. (Surrender of Driver's License)
         in effect, in subsequent connection to (3).Pa. 75. Title. 1510.
         At (e). Use of Identification Card, to deny sui-juris to present
         an effective (3). Three prong defense, and pursuant to
         Pa.75.Title. 1510 (e). In pertinent part; (( It shall be a defense
         to the prosecution under this subsection that the person was
         not presented with notice of the provisions of this subsection)).
         And following a 1543 (b). Citation that the Commonwealth
         failed to state a prima facie case to impose a guilty verdict and
         fine of $500 of a 1543(a).?

                                      -3-
J-S71014-19

Appellant’s brief at 7. Generally, the argument portion of Appellant’s brief

relates to his contention that Title 75, and statutes enacted in the name of

public safety, violate the Fourteenth Amendment right to travel, in effect,

“converting the exercise of a Constitutional Right into a crime.” Appellant’s

brief at 11.

      Our standard of review from the judgment of sentence in a summary

case is well settled:

      Our standard of review from an appeal of a summary conviction
      heard de novo by the trial court is limited to a determination of
      whether an error of law has been committed and whether the
      findings of fact are supported by competent evidence. The
      adjudication of the trial court will not be disturbed on appeal
      absent a manifest abuse of discretion.

Commonwealth v. Marizzaldi, 814 A.2d 249, 251 (Pa.Super. 2002)

(internal citations and quotation omitted).

      On appeal, the Commonwealth urges this Court to affirm Appellant’s

conviction because he failed to properly raise any issues in his non-conforming

pro se brief. Commonwealth’s brief at 4. The Commonwealth also maintains

that Appellant’s failure to supply the reviewing court with a record of his trial

gives this Court nothing to review. Id.

      Preliminarily, we note that Appellant does not indicate where he

preserved below the issue he now raises on appeal, as required by Rule 302.

Issues not raised below are waived on appeal. See Pa.R.A.P. 302(a) (“Issues

not raised in the lower court are waived and cannot be raised for the first time

                                      -4-
J-S71014-19

on appeal.”). Nor did he identify this precise issue in his sixteen-page Rule

1925(b) concise statement. The closest he came was an allegation that “[t]he

trial court erred when Robert J. Shenkin abused its discretion enforcing Title

75.   In contrary to the Constitution which violates inalienable rights.”

Appellant’s Concise Statement of Errors Complained of on Appeal, 9/13/19, at

13. The trial court was unable to ascertain from the latter statement the gist

of Appellant’s claim of error.

      We have held that a concise statement that is too vague to allow the

trial court to understand the issues raised on appeal is the functional

equivalent of no concise statement at all and preserves no issues for review.

See Commonwealth v. Dowling, 778 A.2d 683, 686-87 (Pa.Super. 2001).

The purpose of the rule is to “aid trial judges in identifying and focusing upon

those issues which the parties plan to raise on appeal.” Id. at 686. Here,

due to the vague nature of Appellant’s Rule 1925(b) concise statement, the

trial court was unable to provide this Court with any insight as to this issue.

      Finally, even if Appellant’s claims were not waived for the foregoing

reasons, his brief does not contain coherent, well-reasoned, argument in

support of his constitutional challenge to Title 75.    As the Commonwealth

correctly notes, “[i]t is an appellant’s duty to present arguments that are

sufficiently developed for appellate review.”     Commonwealth’s brief at 7

(quoting Commonwealth v. Gould, 912 A.2d 869, 873 (Pa.Super. 2006).

Appellate courts do not act as counsel and develop arguments for an appellant.

                                     -5-
J-S71014-19

Gould, supra at 873. While we are willing to liberally construe filings of a

pro se litigant, pro se status does not confer any special benefit upon an

appellant. See Commonwealth v. Lyons, 833 A.2d 245, 252 (Pa.Super.

2003). The deficiencies in Appellant’s argument impede meaningful appellate

review.

     For all of the foregoing reasons, we find Appellant’s issues waived for

purposes of this appeal.

     Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/6/2020

                                   -6-


                 IN THE SUPREME COURT OF PENNSYLVANIA
                             MIDDLE DISTRICT

COMMONWEALTH OF PENNSYLVANIA,               : No. 40 MAL 2017
                                            :
                   Respondent               :
                                            : Petition for Allowance of Appeal from
                                            : the Order of the Superior Court
            v.                              :
                                            :
                                            :
JOSEPH S. EMEL, SR.,                        :
                                            :
                   Petitioner               :

                                       ORDER

PER CURIAM

     AND NOW, this 5th day of June, 2017, the Petition for Allowance of Appeal is

DENIED.

     Justice Wecht did not participate in the consideration or decision of this matter.


510 U.S. 956
Heltonv.United States.
No. 93-6118.
Supreme Court of United States.
November 1, 1993.

1
Appeal from the C. A. 9th Cir.

2
Certiorari denied. Reported below: 996 F. 2d 1228.


          Supreme Court of Florida
                                  ____________

                                  No. SC18-853
                                  ____________

     IN RE: AMENDMENTS TO FLORIDA FAMILY LAW RULE OF
                    PROCEDURE 12.407.

                                December 13, 2018

PER CURIAM.

      This matter is before the Court for consideration of proposed amendments to

the Florida Family Law Rules of Procedure. We have jurisdiction. See art. V,

§ 2(a), Fla. Const.

                                 BACKGROUND

      The Family Law Rules Committee previously proposed amendments to rule

12.407 in its 2017 regular-cycle report. In re Amends. to Fla. Family Law Rules of

Pro.—2017 Regular-Cycle Report, 227 So. 3d 115, 116 (Fla. 2017). The Court,

concerned that the amendments “might produce the unintended consequences of

(1) prohibiting children from entering a courthouse building, and (2) directly

conflicting with certain provisions of Florida Rule of Juvenile Procedure 8.255,

especially in the context of Unified Family Court Proceedings,” declined to adopt
the amendments. Id. Instead, the Court “refer[red] these issues back to the Family

Law Rules Committee, the Steering Committee on Families and Children in the

Court, and the Juvenile Court Rules Committee for further joint consideration.” Id.

      In response to this Court’s request that the three committees work together

to address the Court’s concerns, the Family Law Rules Committee (FLR

Committee), Juvenile Court Rules Committee (JCR Committee), and the Steering

Committee on Families and Children in the Court (Steering Committee) have filed

a joint out-of-cycle report proposing amendments to Florida Family Law Rule of

Procedure 12.407 (Testimony and Attendance of Minor Child). The Court

published the proposed amendments in the July 15, 2018, edition of The Florida

Bar News. One comment was received from Eleventh Judicial Circuit Court Judge

Scott M. Bernstein. The committees submitted a joint response, declining to make

the change suggested by Judge Bernstein but making further editorial amendments

not related to the comment. Upon consideration of the committees’ report, the

comment received, and the joint response, we adopt the amendments to the Florida

Family Law Rules of Procedure as proposed in the response. 1

      1. Other minor and editorial amendments are also made.

                                       -2-
                                 AMENDMENTS

      The committees propose adding the subdivision titles “Prohibition,”

“Related Proceedings,” and “Uncontested Adoption” to rule 12.407. Additionally,

the committees propose substantially rewording the rule to address this Court’s

concerns. Under the subtitle “Prohibition,” the amended rule prohibits children

who are witnesses, potential witnesses, or related to family law cases from being

deposed or brought to a deposition, being subpoenaed to attend a family law

proceeding, or being present at a family law proceeding without prior order from

the court, unless otherwise provided by law or another rule of procedure. Under

the subtitle “Related Proceedings,” the rule clarifies that in family law proceedings

held concurrently with proceedings governed by the Florida Rules of Juvenile

Procedure, the Florida Rules of Juvenile Procedure govern as to the child’s

appearance in court. Under the subtitle “Uncontested Adoption,” the rule makes

clear that it does not apply in uncontested adoption proceedings. Finally, the

committees added a comment further clarifying that the rule is not intended to

prohibit children who are unrelated to the litigation from attending court or

depositions in family law cases, and is, instead, intended to protect children who

may be harmed by unnecessary involvement in family law proceedings.

                                        -3-
                                 CONCLUSION

      We commend the Family Law Rules Committee, the Juvenile Court Rules

Committee, and the Steering Committee on Families and Children in the Court for

working collaboratively on the amendments to Rule 12.407 to successfully address

this Court’s concerns. Accordingly, the Florida Family Law Rules of Procedure

are amended as set forth in the appendix to this opinion. Language added to the

rules is underscored; deleted language is struck through.

      The amended rule shall become effective upon release of this opinion.

      It is so ordered.

CANADY, C.J., and PARIENTE, LEWIS, QUINCE, POLSTON, LABARGA,
and LAWSON, JJ., concur.

ANY MOTION FOR REHEARING OR CLARIFICATION MUST BE FILED
WITHIN SEVEN DAYS. A RESPONSE TO THE MOTION FOR
REHEARING/CLARIFICATION MAY BE FILED WITHIN FIVE DAYS
AFTER THE FILING OF THE MOTION FOR REHEARING/CLARIFICATION.
THE FILING OF A MOTION FOR REHEARING SHALL NOT ALTER THE
EFFECTIVE DATE OF THESE AMENDMENTS.

Original Proceeding – Florida Family Law Rules of Procedure

Maria Liliana Obradovich, Chair, Family Law Rules Committee, Tampa, Florida,
and Robert Joseph Merlin, Past Chair, Family Law Rules Committee, Coral
Gables, Florida; David Neal Silverstein, Chair, Juvenile Court Rules Committee,
Bradenton, Florida, and Kara Ann Fenlon, Past Chair, Juvenile Court Rules
Committee, Tallahassee, Florida; Honorable Christine Hissam Greider, Chair,
Steering Committee on Children and Families in the Court; and Joshua E. Doyle,
Executive Director, and Mikalla Andies Davis, Staff Liaison, The Florida Bar,
Tallahassee, Florida,

      for Petitioner

                                        -4-
Honorable Scott M. Bernstein, Judge, and Patricia Gladson, General Counsel,
Eleventh Judicial Circuit, Miami, Florida,

      Responding with comments

                                      -5-
                                    APPENDIX

RULE 12.407.       TESTIMONY AND ATTENDANCE OF MINOR CHILD

      (a) Prohibition. Unless otherwise provided by law or another rule of
procedure, children who are witnesses, potential witnesses, or related to a family
law case, are prohibited from being No minor child shall be deposed or brought to
a deposition, brought to court to appear as a witness or to attend a hearing, orfrom
being subpoenaed to appear at any hearing family law proceeding, or from
attending any family law proceedings without prior order of the court based on
good cause shown unless in an emergency situation.

      (b) Related Proceedings. In a family law proceeding held concurrently
with a proceeding governed by the Florida Rules of Juvenile Procedure, the Florida
Rules of Juvenile Procedure govern as to the child’s appearance in court.

     (c) Uncontested Adoption. This provisionrule shalldoes not apply to
uncontested adoption proceedings.

                               Court Commentary

        1995 Adoption. This rule is intended to afford additional protection to
minor children by avoiding any unnecessary involvement of children in family law
litigation. While due process considerations prohibit an absolute ban on child
testimony, this rule requires that a judge determine whether a child’s testimony is
necessary and relevant to issues before the court prior to a child being required to
testify.

                                 Committee Notes

      2018_Amendment. This rule is not intended to prohibit children who are
unrelated to the litigation from attending court or depositions in family law cases
for educational purposes and other reasons. This rule is intended to protect children
who may be harmed by unnecessary involvement in family law proceedings.
Children who may be harmed by unnecessary involvement include children who
may be the subject of the family law case and children who are witnesses, are
potential witnesses, or have extensive involvement with the family that is the
subject of a current family law case.

                                        -6-


76 Ill. App.3d 822 (1979)
395 N.E.2d 620
MILLEDGE S. DIXON et al., Plaintiffs-Appellants,
v.
THE CITY NATIONAL BANK OF METROPOLIS, Defendant-Appellee.
No. 79-87.
Illinois Appellate Court  Fifth District.
Opinion filed September 7, 1979.
E. Charles Geittmann, of Metropolis, for appellants.
Joseph J. Neely, of Neely & Neely, of Metropolis, for appellee.
Judgment affirmed.
Mr. JUSTICE KARNS delivered the opinion of the court:
Plaintiffs, Milledge and Irene Dixon, purchased certain real estate for $4,201 at an execution sale conducted to satisfy the judgment debt owed by Roy Moller, a joint owner of said property, to the City National Bank of Metropolis, the defendant. When the sale, and the deed issued in pursuance thereof, were subsequently voided in a previous appeal because of the sheriff's failure to set off the judgment debtor's $5,000 homestead exemption (Dixon v. Moller (1976), 42 Ill. App.3d 688, 356 N.E.2d 599), plaintiffs filed an amended complaint to recover their purchase money which was paid to defendant bank in partial satisfaction of the judgment debt, together with interest thereon from the date of sale. *823 From an order of the Circuit Court of Massac County dismissing plaintiff's amended complaint plaintiffs appeal.
The facts have been set forth in our previous opinion and need not be repeated here. In this appeal, plaintiffs argue that when an execution sale, at which they were purchasers, is rendered null and void so that they receive nothing in exchange for their consideration, they are entitled to recover back from the judgment creditor the purchase money paid at said sale and interest thereon from that date. Defendant bank responds that the purchasers at a void execution sale are legally precluded from recovering from the judgment creditor, to whom the sheriff paid the proceeds of sale, because it has long been held that purchasers at judicial and execution sales take title to property at their own risk unless they can prove, which plaintiffs have not done here, fraud, misrepresentation or a mistake of fact. Defendant further argues, however, that plaintiffs are not without a remedy because the purchasers are entitled to recovery of the amount of consideration paid for the property in question from the original judgment debtor under the doctrine of subrogation.
It has generally been held in most jurisdictions that a purchaser at an execution sale, which is either set aside for some irregularity or found to be void, is entitled to be reimbursed for the purchase money paid by him. (Annot., 142 A.L.R. 310 (1943); 30 Am.Jur.2d Executions §§ 484 et seq. (1967).) The delicate issue in this case, however, is not the purchaser's right to reimbursement, which right defendant bank does not challenge, but to whom he must look for repayment. Plaintiffs' contention that the judgment creditor is liable for this amount is supported by various policy considerations. For example, as between the purchaser and the judgment creditor, it would seem that the purchaser has a greater claim to the disputed proceeds. There is little reason for a court to award the purchase money to the creditor, who is merely entitled to recover from the judgment debtor, as against the purchaser, to whom the money belongs. To hold otherwise would give the creditor a windfall at the expense of the innocent purchaser who believes he is buying the property of the debtor. (See Martel v. Bearce (Me. 1973), 311 A.2d 540.) Furthermore, it is the creditor who has initiated the legal process and who now seeks to benefit from an execution sale which has been subsequently voided. The most equitable solution in such a situation would seem to warrant a return of the purchase money to the purchaser by the creditor and a return of all three parties to their original respective positions. The creditor, therefore, could pursue his remedies against the person or entity justly indebted to him.
While we find much appeal to this reasoning, it appears that the long line of Illinois cases discussing this situation has reached a contrary result. *824 The purchaser's remedy, if any, is not against the judgment creditor but against the debtor or possibly the sheriff who conducted the sale. In the early supreme court case of England v. Clark (1843), 5 Ill. 486, certain personal property was levied upon and sold at an execution sale as being the property of the judgment debtor. When it was later established that the property belonged to a stranger and not the debtor, the purchaser at the sale sought recovery of the purchase money from the judgment creditor, to whom it appears the proceeds had been paid. The court, in applying the doctrine of caveat emptor and thus denying plaintiff purchaser any relief against defendant creditor, stated:
"It seems there ought to be a remedy. But there are but few authorities upon the point; and the difficulty seems to be, as to the person who shall bear the responsibility, and refund the purchaser his money for which he has received no consideration. The courts seem not inclined to impose it upon the plaintiff in execution, who has but received his due, although it may not have come from his debtor, unless he is guilty of fraud, or has done some other act to charge himself; and we are of the same opinion. The liability must be upon the officer, or the defendant [debtor]. * * * [H]e [debtor] is most benefitted, by having his debt discharged by the advance and application of the purchase money." 5 Ill. 486, 492.
In 1874, the Illinois Supreme Court again addressed the applicability of the caveat emptor doctrine to void execution sales in Conwell v. Watkins (1874), 71 Ill. 488. In that case, after execution was issued following a judgment, the sheriff levied on the property of the debtor. The sheriff, however, proceeded no further with the execution until nine years later, at which time the property was sold to a purchaser. Prior to this sale, the execution lien had expired, thereby permitting the debtor to sell the property to a third party. The third party successfully brought an action to quiet title to his property caused by the unlawful execution sale prompting the purchaser to seek repayment of the purchase money. In denying relief to the purchaser, the court stated that "the maxim of caveat emptor well applies in such a case. Appellant [purchaser] took his chances in bidding, and is presumed to have known what he was buying, and all about it." 71 Ill. 488, 492.
In Alday v. Rock Island County (1892), 45 Ill. App. 62, the creditor recovered a judgment against the debtor and levied upon property which it erroneously believed belonged to the debtor. The property was sold at an execution sale with the proceeds being paid to the creditor. Upon discovering that the property belonged to a third party, the creditor refunded the purchase money and moved to set aside the original execution and sale, and for a new execution. The court in refusing to order a new execution, held, in essence, that the receipt of the proceeds *825 realized at an execution sale by a judgment creditor, even if said sale is void, discharges that portion of its claim against the debtor. The court justified its decision as follows:
"[T]he sale was made to a third party who was not interested in the judgment or concerned in obtaining satisfaction of it, and who paid his money in consideration of such right or title in the lot as he might acquire or become entitled to by reason of his purchase, and he could have no right nor be entitled to any relief in the absence of fraud or misrepresentation except upon the supposition that by his purchase he acquired a right to a title. There is no warranty of title at a judicial sale, but the rule of caveat emptor applies and the validity of the title is at the purchaser's own risk. * * * As there is no warranty on the part of a sheriff in making a judicial sale, neither is there any implied on the part of the execution creditor. * * * Gruhl [purchaser] had no claim against appellee [creditor] and no right which it could acquire and enforce by giving him the amount that he had bid at sale. Appellee [creditor] had obtained full payment of its judgment by the sale to a third party without fraud or misrepresentation, and was under no obligation to refund to him the amount lost by his own want of ordinary care. By such voluntary act it could not again make appellant its debtor without his consent." (45 Ill. App. 62, 63-64.)
Although the court stated that the purchaser would not be entitled to reimbursement from the judgment creditor, it did not express any opinion whether such purchaser could have recovered the purchase money from the debtor had he not received repayment.
The supreme court again addressed the validity of the doctrine of caveat emptor at execution and judicial sales in Hutson v. Wood (1914), 263 Ill. 376. In that case, the judgment debtor, in an effort to recover possession of property sold at an execution sale, was successful in proving the judgment, upon which the execution, levy and sale were made, was void. The court found that the sheriff's sale was equally void and therefore held that the purchasers took no title to the property. In discussing whether the purchasers were entitled to reimbursement of their purchase money, the court stated:
"The rule of caveat emptor applies to sales upon execution and judicial sales, and we know of no case where a purchaser at such sale, in the absence of a statute, has been enabled to recover the money paid, either for a defective title or where for want of power to make the sale he has acquired no title." 263 Ill. 376, 387.)
Nevertheless, as a condition to the court granting equitable relief to the owner of the property, the court required her to reimburse the purchasers for the amount they had paid to relieve the land of existing encumbrances:

*826 "[W]here a possessor or purchaser, in good faith, of real estate has paid money to discharge an existing encumbrance, having no notice of any infirmity in his title, he is entitled to be re-paid the amount of such payment by the true owner seeking to recover the possession from him." 263 Ill. 376, 389.)
In Hutson, no questions were raised challenging the judgment creditor's rights to retain the proceeds of the execution sale.
Certain Illinois cases have made it clear that where the proceeds of a void execution or judicial sale have been applied to satisfying the debt owing to the judgment creditor, the purchaser at such sale, who is therefore unable to take title to the property, becomes, in essence, subrogated to the rights of the creditor against the debtor. (See Bruschke v. Wright (1897), 166 Ill. 183; St. Louis & Sandoval Coal & Mining Co. v. Sandoval Coal & Mining Co. (1886), 116 Ill. 170; McHany v. Schenk (1878), 88 Ill. 357; Kinney v. Knoebel (1868), 51 Ill. 112; Warner v. Helm (1844), 6 Ill. 220; contra Borders v. Hodges (1895), 154 Ill. 498; Bishop v. O'Conner (1873), 69 Ill. 431.) For example, in Kinney v. Knoebel, an execution sale was declared void because of certain irregularities and because it was unauthorized. Although the court held that the purchaser at a void execution sale was chargeable with notice of the improper sale and held that he acquired no absolute title to the property allegedly sold to him, it nevertheless concluded that he was not without a remedy:
"Notwithstanding the sale was unauthorized, Morrison [purchaser] has advanced money which has paid and discharged liens of creditors to a large amount on the property; and inasmuch as he acted fairly and without fraud in his purchase, it is manifestly equitable that he should be subrogated to the rights of the creditors whose debts his money has paid * * *." 51 Ill. 112, 126.)
(See also St. Louis & Sandoval Coal & Mining Co. v. Sandoval Coal & Mining Co., in which the purchaser at a sale, conducted to dispose of an insolvent corporation's property and later found to be void, was held entitled to be subrogated to the rights of the creditors who had received the proceeds. Compare, however, Borders v. Hodges and Bishop v. O'Conner, in which the right of subrogation was denied to the purchasers at void administrators' sales even though the proceeds of the sales were used to satisfy the outstanding debts.) Apparently, these cases held that the doctrine of subrogation does not apply in the situation of a void judicial sale, but is confined to cases involving insurers, the relation of principal and surety, and guarantors, and to cases where a person, to protect his junior lien, is compelled to pay one which is superior in right.
 1 The review of the long line of Illinois cases, cited above, clearly indicates that the doctrine of caveat emptor still applies to void execution and judicial sales and that therefore the purchasers in the instant case are *827 precluded from recovering their purchase money from the judgment creditor. Their remedy, if any, is against the judgment debtor or sheriff; however, we need not decide this issue as it is not presented for our consideration.
Plaintiffs, however, argue that the Illinois cases of Wilson v. Hilligoss (1935), 278 Ill. App. 564, and Thrift v. Frittz (1880), 7 Ill. App. 55, support their position that they can recover the purchase money from the bank. In Wilson, all proceedings in a partition sale were declared void with the result that the deed to the purchaser, which deed had not been placed on record, was ordered cancelled. The court held that the checks tendered in payment for the land and still in the hands of the master awaiting the order of the court must be returned to the purchaser. In Thrift, the court refused to enforce a bid made by a purchaser at a void foreclosure sale. In justifying its decision, the court stated:
"The purchaser at a judicial sale is always entitled to such interest as the defendant actually has. If a sale from any defect in the proceedings is so void as that it can not transfer such title and interest as the defendant has, then the purchaser is not bound by his bid, but may successfully resist any action seeking its enforcement." (7 Ill. App. 55, 58.)
These cases merely suggest that where the purchase money realized from a void judicial sale has not yet been applied in satisfaction of the outstanding debt, then the purchaser may recover his payment; however, once the creditor's claim is satisfied in whole or in part out of the sale proceeds, the doctrine of caveat emptor attaches thereby precluding any recovery from the creditor by the purchaser. See Alday v. Rock Island County.
The present case is similar, if not identical, to the old Texas case of Stone v. Darnell (1860), 25 Tex. 431. In that case, the court held that where the property of a judgment debtor was sold at an execution sale, and the debtor thereafter recovered it from the purchaser for the reason that it was exempt from execution as his homestead, the purchaser had the right to recover the purchase price from the debtor, for whose benefit the money had been paid. The plaintiff in Stone had initially sued the sheriff and the debtor, but not the creditor.
In conclusion, we are compelled by precedent to apply the longstanding Illinois rule that the doctrine of caveat emptor applies broadly to void execution and judicial sales. Accordingly, we hold that a purchaser at a void execution sale, whose money has been used to satisfy in part the claim of the judgment creditor, cannot recover the purchase money from that creditor. Although we note that there is well reasoned and persuasive authority in other jurisdictions to the contrary (see Martel v. Bearce; Danner v. Murnan (1920), 43 S.D. 289, 178 N.W. 987; Dresser v. Kronberg *828 (1911), 180 Me. 423, 81 A. 487), we are hesitant to modify a rule of long duration without an opinion of the highest court of this State.
 2, 3 Lastly, we note that defendant bank's original answer, which was later abandoned and superseded by an amended answer following this court's original decision, stated that the bank was "willing to reimburse the said Milledge S. Dixon and Irene Dixon in the sum of $4,201.00 bid and paid at the sale of said premises in the event said sale is set aside." Plaintiffs now argue that this statement constituted an admission of liability and should be admitted into evidence. We agree that an admission against interest in a prior answer may be used as an evidential admission (Houser v. Michener (1974), 20 Ill. App.3d 391, 313 N.E.2d 651); however, in the present case the statement by the bank was not an admission but merely indicated that the bank was then willing, but not lawfully obligated, to reimburse plaintiffs for their loss.
For the reasons stated, the judgment of the Circuit Court of Massac County is affirmed.
Affirmed.
KUNCE and KASSERMAN, JJ., concur.


            TENNESSEE BUREAU OF WORKERS’ COMPENSATION
               WORKERS’ COMPENSATION APPEALS BOARD

Nesreen Boutros                              ) Docket No. 2016-06-0418
                                             )
v.                                           ) State File No. 32833-2015
                                             )
Amazon, et al.                               )
                                             )
                                             )
Appeal from the Court of Workers’            )
Compensation Claims                          )
Kenneth M. Switzer, Chief Judge              )

                   Affirmed and Remanded-Filed November 9, 2016

In this interlocutory appeal, the employer appeals the trial court’s order requiring it to
provide a panel of physiatrists to the employee. After two visits to an urgent care facility
that the employee selected from a panel of providers made available by the employer, the
employee was referred to an orthopedic physician. After one visit with the orthopedic
physician, the physician recommended referral to a physiatrist. The employer arranged
an appointment with a physician specializing in pain management, but did not provide a
panel of physiatrists. Following the employee’s fourth visit with the pain management
specialist, the employee was discharged by the specialist. The employer denied further
benefits, asserting the employee’s injuries were not work-related. Following an
expedited hearing, the trial court found the employee would likely prevail at trial in
establishing a work-related injury, and further found that the employer had failed to
provide a panel of physiatrists after the authorized physician made a referral to a
physiatrist. Despite the employer having provided some pain management treatment, the
trial court determined the employer must provide a panel of physiatrists. The employer
has appealed. We affirm the trial court’s decision and remand the case for further
proceedings as may be necessary.

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

W. Troy Hart, Knoxville, Tennessee, for the employer-appellant, Amazon

Nesreen Boutros, Antioch, Tennessee, employee-appellee, pro se

                                             1
                            Factual and Procedural Background

        Nesreen Boutros (“Employee”) alleged that she suffered injuries to her neck,
shoulder, and arm arising primarily out of and occurring in the course and scope of her
employment with Amazon (“Employer”) on April 23, 2015. She described placing a
heavy box on a conveyor belt and feeling a “pop,” which she testified resulted in burning
pain in her neck and right arm. She presented to Employer’s on-site medical clinic and
ultimately was provided a panel of medical providers from which she selected an urgent
care facility where she was seen twice before being referred to an orthopedic physician.
After being seen by Dr. Kyle Joyner, an orthopedic surgeon, the doctor opined that
Employee’s problems were muscular in nature rather than orthopedic, and he
recommended referral to a physiatrist, stating in his report that Employee “does not need
to follow up with me.”1

       Employer arranged for Employee to begin treating with Dr. Jeffrey Hazlewood, a
pain management specialist, whom she saw four times between her first visit on May 7,
2015 and her last visit on September 14, 2015. Dr. Hazlewood’s records reflect ongoing
complaints of right shoulder and arm pain, which he consistently noted were out of
proportion to any objective findings. An MRI of Employee’s cervical spine revealed a
disc protrusion at C6-7, but Dr. Hazlewood observed that this finding did not match up
with Employee’s complaints either objectively or subjectively. After failing to appear for
two appointments and appearing late for a third, Dr. Hazlewood discharged Employee
from his care, observing that her failure to keep her appointments suggested that her
symptoms were not as severe as she reported. He released her at maximum medical
improvement as a result of what he deemed to be noncompliance. He stated that she was
released from his care and that he would see her again only if Employer requested it and
agreed to pay for the visit in the event she missed the appointment.

       Employee requested additional medical treatment, but Employer declined to
authorize any further care, arguing that, based on its receipt of Employee’s prior medical
records, she was suffering from a pre-existing condition. Employee denied she was
suffering from a pre-existing condition, asserting that discussions of right shoulder, neck,
and arm pain in earlier records were related to a diagnosis of deep vein thrombosis and
that her current pain was different in character and quality from the pain she experienced
following the deep vein thrombosis. After an expedited hearing, the trial court
determined that, because Employer had failed to provide a panel of physiatrists upon Dr.
Joyner’s referral, Employee was entitled to such a panel. Employer has appealed.

1
 Employee also saw Dr. Robert Weiss, a neurosurgeon, on a single occasion on July 14, 2015. Dr. Weiss
observed that her cervical MRI did not reveal a need for surgery and released her at maximum medical
improvement from a neurosurgical perspective, recommending that she be seen by an orthopedic hand
surgeon to rule out a radial sensory nerve issue.

                                                 2
                                   Standard of Review

       The standard we apply in reviewing a trial court’s decision is statutorily mandated
and limited in scope. Specifically, “[t]here shall be a presumption that the findings and
conclusions of the workers’ compensation judge are correct, unless the preponderance of
the evidence is otherwise.” Tenn. Code Ann. § 50-6-239(c)(7) (2015). The trial court’s
decision may be reversed or modified if the rights of a party “have been prejudiced
because findings, inferences, conclusions, or decisions of a workers’ compensation judge:

       (A)    Violate constitutional or statutory provisions;
       (B)    Exceed the statutory authority of the workers’ compensation judge;
       (C)    Do not comply with lawful procedure;
       (D)    Are arbitrary, capricious, characterized by abuse of discretion, or
              clearly an unwarranted exercise of discretion; or
       (E)    Are not supported by evidence that is both substantial and material
              in the light of the entire record.”

Tenn. Code Ann. § 50-6-217(a)(3) (2015).

                                         Analysis

        Employer raises three issues on appeal: (1) whether Employee established that she
suffered a work-related injury; (2) whether Employee established that she is entitled to
additional medical benefits; and (3) whether the trial court should have conducted an
initial hearing rather than an expedited hearing.

                                   Work-Related Injury

        An injured worker has the burden of proof on every essential element of his or her
claim. Tenn. Code Ann. § 50-6-239(c)(6) (2015); see also Buchanan v. Carlex Glass
Co., No. 2015-01-0012, 2015 TN Wrk. Comp. App. Bd. LEXIS 39, at *5 (Tenn.
Workers’ Comp. App. Bd. Sept. 29, 2015). At an expedited hearing, an employee is able
to meet this burden if he or she comes forward with sufficient evidence from which the
trial court can determine that the employee is likely to prevail at a hearing on the merits,
as set out in Tennessee Code Annotated section 50-6-239(d)(1) (2015). McCord v.
Advantage Human Resourcing, No. 2014-06-0063, 2015 TN Wrk. Comp. App. Bd.
LEXIS 6, at *9 (Tenn. Workers’ Comp. App. Bd. Mar. 27, 2015). This lesser evidentiary
standard “does not relieve an employee of the burden of producing evidence of an injury
by accident that arose primarily out of and in the course and scope of employment at an
expedited hearing, but allows some relief to be granted if that evidence does not rise to
the level of a ‘preponderance of the evidence.’” Buchanan, 2015 TN Wrk. Comp. App.
Bd. LEXIS 39, at *6. In reviewing a trial court’s decision that the evidence presented at
an expedited hearing is sufficient to find an employee is likely to prevail at trial, we must

                                             3
determine if the preponderance of the evidence submitted supports the trial court’s
conclusion. See Tenn. Code Ann. § 50-6-239(c)(7) (2015).

        In its expedited hearing order, the trial court observed that Employee was “open
and forthcoming in her testimony,” accrediting her description of the work incident that
occurred on April 23, 2015. Further, the trial court observed that Employee
acknowledged having previously suffered from deep vein thrombosis in her right arm,
but the judge determined that Employee had sufficiently described a qualitative
difference between the pain associated with the thrombosis and the pain associated with
her work injury. The trial court also considered Employee’s proof of excellent
performance reviews, her ability to work without restrictions before the injury, and her
inability to perform her work duties after her injury in rendering its determination that she
had presented sufficient evidence to establish she would likely succeed at a hearing on
the merits of her claim. We conclude from our review of the record that the
preponderance of the evidence supports the trial court’s determination.

                  Employee’s Entitlement to Additional Medical Benefits

       Employer’s second argument on appeal asserts that Dr. Hazlewood met “the
requirements to be an authorized treating physician,” in that he is a physiatrist and
Employee was referred to him. Employer argues that Dr. Hazlewood “released
[Employee] from care based on non-compliance and based on the lack of an objective
work related injury.” Thus, Employer concludes that Employee “is not entitled to
additional medical care from a physiatrist.” We disagree.

        Neither Dr. Hazlewood nor Dr. Joyner, the orthopedic surgeon who recommended
referral to a physiatrist, was selected from a panel of physicians. Employer asserts that it
honored a direct referral from Dr. Joyner, whom the trial court determined to be an
authorized treating physician and, thus, was not required to provide a panel of specialists
in accordance with Tennessee Code Annotated section 50-6-204(a)(3)(A)(ii) (2015). In
support of its argument, Employer submitted with its position statement on appeal an
email from Dr. Joyner’s office stating that Dr. Joyner “has recommended Dr. Jeffrey
Hazlewood . . . or Dr. William Newton.” However, this document was not an exhibit in
the trial court or otherwise considered by the trial court, and we decline to consider it.
“Evaluating a trial court’s decision on appeal necessarily entails taking into account
information the trial court had before it at the time the issues were decided by the court,
as opposed to the potentially open-ended universe of information parties may seek to
present on appeal following an adverse decision.” 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). Accordingly, “we will not consider on appeal testimony,
exhibits, or other materials that were not properly admitted into evidence at the hearing
before the trial judge.” Id.

                                             4
       Tennessee Code Annotated section 50-6-204(a)(1)(A) (2015) provides “[t]he
employer or the employer’s agent shall furnish, free of charge to the employee, such
medical and surgical treatment, . . . made reasonably necessary by accident as defined in
this chapter.” Section 50-6-204(a) further provides that an Employer is required to
“designate a group of three (3) or more independent reputable physicians, . . . from which
the injured employee shall select one (1) to be the treating physician.” Tenn. Code Ann.
§ 50-6-204(a)(3)(A)(i) (2015). When the authorized physician makes a referral to a
specific physician for specialized care, an employer “shall be deemed to have accepted
the referral, unless the employer, within three (3) business days, provides the employee a
panel of three (3) or more independent reputable physicians . . . .” Tenn. Code Ann. §
50-6-204(a)(3)(A)(ii) (2015).

        Here, the trial court observed that Employer was permitted an opportunity to
submit as evidence any physician panels that were presented to Employee, and that no
panel was submitted suggesting Employee selected Dr. Hazlewood as an authorized
physician. Moreover, Dr. Joyner’s medical records do not reflect a referral to Dr.
Hazlewood specifically; rather, the record simply refers Employee for treatment with a
physiatrist. The record on appeal does not support Employer’s assertion that Dr.
Hazlewood was, in fact, a direct referral from Dr. Joyner. The only document supporting
this assertion was not admitted into evidence at the expedited hearing. Moreover, Dr.
Hazlewood discharged Employee from his care, stating that he would only see her in
follow-up if Employer authorized another visit. Having affirmed the trial court’s
conclusion that Employee is likely to succeed on the merits of her claim, she is entitled to
reasonable and necessary medical care. Thus, the evidence does not preponderate against
the trial court’s conclusion that Employer is obligated to provide a panel of physiatrists
from which Employee may choose an authorized physician.

                       Employer’s Entitlement to an Initial Hearing

        Employer’s final issue on appeal concerns whether it should have been allowed to
proceed to an initial hearing instead of an expedited hearing. While it is unclear upon
what authority Employer relies in making this assertion, we find the argument is moot.
In its expedited hearing order, the trial court scheduled an initial hearing for November 8,
2016.

                                        Conclusion

        For the foregoing reasons, we hold that the evidence does not preponderate against
the trial court’s decision at this interlocutory stage of the case. Nor does the trial court’s
decision violate any of the standards set forth in Tennessee Code Annotated section 50-6-
217(a)(3). Accordingly, the trial court’s decision is affirmed. The case is remanded for
any further proceedings that may be necessary.

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

Nesreen Boutros                                          )   Docket No.   2016-06-0418
                                                         )
v.                                                       )   State File No. 32833-2015
                                                         )
Amazon, 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 9th day of November, 2016.
 Name                    Certified   First Class   Via   Fax      Via     Email Address
                         Mail        Mail          Fax   Number   Email

 Nesreen Boutros                                                    X     Nesreen.boutros@yahoo.com
 W. Troy Hart                                                       X     wth@mijs.com
                                                                          tbsherrill@mijs.com
 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: 615-253-1606
Electronic Mail: Jeanette.Baird@tn.gov


              In the United States Court of Federal Claims
                             OFFICE OF SPECIAL MASTERS
                                      No. 13-119V
                                  (Not to be published)

*************************
                           *
ROBERT HOFSTETTER,         *
                           *                               Filed: April 21, 2014
               Petitioner, *
                           *                               Petitioner’s Motion for a Decision;
          v.               *                               Dismissing the Petition for
                           *                               Insufficient Proof of Causation;
SECRETARY OF HEALTH AND    *                               Vaccine Act Entitlement; Denial
HUMAN SERVICES ,           *                               Without Hearing
                           *
               Respondent. *
                           *
*************************

Amy C. Gunn, St. Louis, MO, for Petitioner

Jennifer L. Reynaud, Washington, DC, for Respondent

                                         DECISION 1
       On February 14, 2013, Robert Hofstetter filed a petition for Vaccine Compensation in the
National Vaccine Injury Compensation Program 2 alleging that the diphtheria, tetanus, and

1
  Because this decision contains a reasoned explanation for my action in this case, I will post
this decision on the United States Court of Federal Claims’ website, in accordance with the E-
Government Act of 2002, Pub. L. No. 107-347, § 205, 116 Stat. 2899, 2913 (codified as
amended at 44 U.S.C. § 3501 note (2006)). As provided by 42 U.S.C. § 300aa-12(d)(4)(B),
however, the parties may object to the published decision’s inclusion of certain kinds of
confidential information. To do so, Vaccine Rule 18(b) permits each party 14 days within which
to request redaction “of any information furnished by that party: (1) that is a trade secret or
commercial or financial in substance and is privileged or confidential; or (2) that includes
medical files or similar files, the disclosure of which would constitute a clearly unwarranted
invasion of privacy.” Vaccine Rule 18(b). Otherwise, the decision will be available to the
public. Id.
2
  The National Vaccine Injury Compensation Program is set forth in Part 2 of the National
Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755, codified as amended,
42 U.S.C.A. ' 300aa-10-' 300aa-34 (West 1991 & Supp. 2002). All citations in this decision to
individual sections of the Vaccine Act are to 42 U.S.C.A. ' 300aa.
acellular pertussis (DTaP) vaccine he received on February 15, 2010 caused him to suffer
various injuries, including chronic inflammatory demyelinating polyneuropathy (CIDP).
       After gathering all of his relevant medical records, Petitioner filed a motion on April 16,
2014 seeking a decision dismissing his petition, indicating that “additional information” he had
gathered had led him to seek dismissal of his claim.

       To receive compensation under the Program, Mr. Hofstetter must prove either 1) that he
suffered a “Table Injury” – i.e., an injury falling within the Vaccine Injury Table – corresponding
to one of his vaccinations, or 2) that he suffered an injury that was actually caused by a
vaccine. See §§13(a)(1)(A) and 11(c)(1). An examination of the record, however, did not
uncover any evidence that Mr. Hofstetter suffered a “Table Injury.” Further, the record does not
contain a medical expert’s opinion or any other persuasive evidence indicating that Mr.
Hofstetter’s alleged injury was vaccine-caused.

        Under the Act, a petitioner may not be given a Program award based solely on the
petitioner’s claims alone. Rather, the petition must be supported by either medical records or by
the opinion of a competent physician. §13(a)(1). In this case, there is insufficient evidence in
the record for Mr. Hofstetter to meet his burden of proof. Petitioner’s claim therefore cannot
succeed and must be dismissed. §11(c)(1)(A).

      Thus, this case is dismissed for insufficient proof. The Clerk shall enter judgment
accordingly.

IT IS SO ORDERED.

                                                             /s/ Brian H. Corcoran
                                                               Brian H. Corcoran
                                                               Special Master


                                Cite as 2017 Ark. App. 363

                  ARKANSAS COURT OF APPEALS
                                      DIVISION I
                                     No. CV-16-1076

                                               Opinion Delivered: May   31, 2017
JEFFERY FORD AND SARAH FORD
                     APPELLANTS APPEAL FROM THE PULASKI
                                COUNTY CIRCUIT COURT,
V.                              SIXTH DIVISION
                                [NO. 60CV-15-943]
SAFECO INSURANCE COMPANY OF
AMERICA                         HONORABLE TIM FOX, JUDGE
                       APPELLEE
                                REVERSED AND REMANDED

                                MIKE MURPHY, Judge

       Jeffery and Sarah Ford brought suit against their homeowner’s insurance provider,

 Safeco Insurance Company of America, for denying a claim the Fords allege was caused by

 a plumbing leak. Safeco moved for summary judgment, and the trial court granted it. The

 Fords now appeal, asserting that the trial court erred in granting summary judgment. We

 reverse and remand.

       In May 2014, the Fords noticed a low spot in their living room floor. A foundation-

 repair contractor suspected a plumbing leak. An initial plumbing inspection in May did not

 detect a problem, but a second test in July concluded there was a leak somewhere under the

 house. The Fords filed a claim with their homeowner’s insurance provider, Safeco, the same

 day the leak was detected. Safeco denied the claim. The estimate to repair the damage was

 about $75,000.
                                 Cite as 2017 Ark. App. 363

       The Fords filed a complaint against Safeco alleging that the claim was covered under

their insurance policy and that Safeco had breached the contract by denying it. Safeco

moved for summary judgment, asserting that the denial was proper because the policy

explicitly excludes loss caused by both (1) settling of foundations or floors and (2) continuous

or repeated leakage or seepage of water that occurs over a period of weeks, months, or years.

       To support its first point, Safeco included with its motion an affidavit from an

engineer who stated that, in his professional opinion, “at the time of construction of the

Plaintiffs’ home, there was inadequate compaction of the fill material below the concrete

slab foundation,” and that “[a]s a result, the fill material has been settling over time, which

in turn caused the concrete slab foundation to settle.” As to the second point, Safeco

reasoned that the Fords noticed the damage in May but did not make their claim until July;

thus, to the extent a drain-line leak caused or contributed to the damage, it “would have

been occurring over a period of weeks by the time Plaintiffs submitted the Claim to Safeco.”

       The Fords responded with deposition testimony that they contacted Safeco as soon

as they knew a leak existed and provided an affidavit from their own expert, who attested

that “the damage to the Plaintiffs’ home was caused by a mechanical failure in the plumbing

system located at the premises” and that “[i]t is not possible to determine with any certainty

when the plumbing system failure occurred, and any opinion as to the time of the plumbing

malfunction would be speculative at best.”

       In a one-paragraph order devoid of findings or conclusions, the trial court granted

the motion in favor of Safeco, and the Fords now appeal. The sole issue on appeal is whether

the trial court erred in granting summary judgment.

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                                 Cite as 2017 Ark. App. 363

       Summary judgment should be granted only when it is clear that there are no genuine

issues of material fact, and the party is entitled to judgment as a matter of law. Smith v. Farm

Bureau Mut. Ins. Co. of Ark., 88 Ark. App. 22, 30–31, 194 S.W.3d 212, 218–19 (2004).

Once the moving party has established a prima facie entitlement to summary judgment, the

opposing party must meet proof with proof and demonstrate the existence of a material issue

of fact. Id. On review, we must determine whether there are any genuine issues of material

fact. Id. All proof is viewed in the light most favorable to the party resisting the motion,

with all doubts and inferences resolved against the moving party. Id.

       Safeco contends that the damages sustained by the Fords are excluded under the

policy and that summary judgement was proper. The policy covers “accidental direct

physical loss” to the home “except as limited or excluded.” A list of those limitations and

exclusions ensue. Of note, the policy excludes loss caused “directly or indirectly” by

“continuous or repeated seepage or leakage of water or steam, or the presence or

condensation of humidity, moisture or vapor which occurs over a period of weeks, months

or years” or “settling, cracking, shrinking, bulging, or expansion of pavements, patios,

foundations, walls, floors, roofs, ceilings, swimming pools, hot tubs, spas or chimneys.” It

also specifically excludes loss from “water damage,” except in cases of “overflow and escape

caused by malfunction” or “obstruction . . . of a drain or plumbing appliance.”

       Which provision of the policy may or may not apply, however, simply cannot be

ascertained at this juncture. We must first know what caused the damage. Succinctly, the

Fords argue a plumbing malfunction caused the damage to their home, and Safeco refutes

the same. On summary judgment, the Fords discarded the shielding cloak of formal

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                                 Cite as 2017 Ark. App. 363

allegations and supported their claim with deposition testimony, an expert affidavit, a loss

report, and coverage-denial letters from Safeco (each letter asserting a different policy

exclusion in support of the denial). Our caselaw is replete with the proposition that causation

is almost always a question of fact for the jury and not appropriate for summary judgment.

Green v. Alpharma, Inc., 373 Ark. 378, 395, 284 S.W.3d 29, 42 (2008).

       Safeco argues that it is immaterial whether a plumbing leak also caused, or

contributed to, the damages to the Fords’ home because of the broad lead-in clause

preceding the exclusions. That clause reads as follows:

       We do not cover loss caused directly or indirectly by any of the following excluded
       perils. Such loss is excluded regardless of any other cause or event contributing
       concurrently or in any sequence to the loss. These exclusions apply whether or not
       the loss event results in widespread damages or affects a substantial area.

       Safeco’s argument is not persuasive. This provision still contemplates first assigning a

“cause” to the loss. Safeco would have us put the cart before the horse in interpreting the

insurance policy to deny coverage without ever establishing the cause of the loss. Only

when causation is established can it be determined whether and which exclusionary

provisions might apply. An award of summary judgment was in error.

       Reversed and remanded.

       VIRDEN and WHITEAKER, JJ., agree.

       Cullen & Co., PLLC, by: Tim J. Cullen, for appellants.

       Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C., by: Stuart P. Miller and Kelly

D. Marchand, for appellee.

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