1 TENNESSEE BUREAU OF WORKERS’ COMPENSATION

WORKERS’ COMPENSAT I ON APPEALS BOARD

Stephanie Smith ) D ocket No. 2016

- 08

- 0977 )

v. ) S tate File N o. 67360

- 2016 ) TJ Maxx, et al. ) ) ) Appeal from the Court of Workers’ ) Compensation Claims ) Allen Phillips

, Judge )

Affirmed and Certified as Final

— Filed April 12 , 2019

The e mployee , a worker in the clothing section of a store, sought medical and disability

benefits for plantar fasciitis and a puncture wound to her foot. The employer accepted the compensability of the puncture wound but denied that it was responsible for benefits relating to the plantar fasciitis. Following an expedited hearing, the trial court found the employee had not established entitlement to benefits other than for those medical benefits made reasonable and necessary for treatment of the puncture wound. That order was not appealed. Following a trial, the court found the employee remained entitled to medical benefits made reasonable and necessary as a result of the puncture wound but declined to order any other benefits. The employ ee has appealed. W e affirm the trial court’s

decision and certify its order as final.

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.

Stephanie Smith

, Memphis

, Tennessee, employ ee

- appellant, pro se

David Riley

, Memphis, Tennessee, for the employ er

- appellee, TJ Maxx2 Memorandum Opinion 1

Stephanie Smith (“Employee”) , a resident of Shelby County, Tennessee, worked

for TJ Maxx (“Employer”) when she suffered a puncture wound to her right foot on July 2, 2016

, af ter stepping on the sharp hook of a security tag. Employer provided a panel of physicians from which Employee selected orthopedic surgeon Dr. John Lochemes.

Employee saw Dr. Lochemes on August 30, 2016 , at which time he ordered an MRI of her right foot t o rule out any foreign bodies, abscesses, or infections. He released

her with restrictions of “sit

- down only work.” The MRI revealed a ganglion cyst unrelated to the puncture wound . At a follow

- up appointment on September 9, 2016, Dr.

Lochemes reviewed the MRI findings with Employee and released her to full duty.

Employee continued to experience pain and sought additional medical treatment on her own. She visited the emergency room and saw specialists in internal medicine and podiatry and ultimately received a diagnosis of plantar fasciitis. Employee returned to Dr. Lochemes on October 11, 2016, complaining of pain in the area of her foot where the puncture had occurred. Dr. Lochemes confirmed the diagnosis of plantar fasciitis in her right heel . He also noted she was experiencing pain and restricted motion in h er right hip

. An x

- ray revealed osteoarthritis. Dr. Lochemes concluded th e plantar fasci itis and hip issues were un related to Employee’s work and released her with no permanent impairment or restrictions

.

Employee sought further care from Dr. Paige Whit tle on November 17, 2016. Although the record on appeal does not include medical records from Dr. Whittle, she completed a C

- 32 Standard Form Medical Report . Dr. Whittle described Employee’s injury as a “puncture wound right arch, plantar fasciitis

, ” rec ommended she work a limited number of hours per day , and indicated her employment more likely than not

caused her need for treatment.

At an expedited hearing, Employee requested medical and temporary disability benefits, specifically asking that Employer pay for her unauthorized medical treatment and temporary disability benefits . The court found Employee had not established

entitlement to benefits other than for those medical benefits made reasonable and necessary for treatment of the puncture wound

. Th e court also found Employee offered insufficient evidence of the amounts or periods of temporary disability. Employee did not appeal that order.

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 a ppeal by an abbreviated order or by memorandum opinion, whichever the Board deems appropriate, in cases that are not legally and/or factually novel or complex.” Appeals Bd. Prac. & Proc. § 1.3.3 At trial , Employee again sought medical benefits

, payment of medical bills, and temporary disability benefits related to her plantar fasciitis as well as her puncture

wound. She also requested permanent disability benefits

. Employer asserted it had paid all owed benefits and maintained Employee’s planta r fasciitis was not work related. T he

trial court ruled that Employee was entitled to reasonable and necessary medical care for the puncture wound but n ot for permanent disability benefits or tempo rary disability benefits for that injury. Further, the court found Employee was not entitled to benefits

rel ated to her plantar fasciitis

. Employee has appealed.

Employee filed two notices of appeal

, the latter of which included an attached

“ statement of the i ssues

. ” 2 In the first notice of appeal, Employee identifie s the disputed

issues as “appeal of causation,” “ appeal denial of benefits and los[t] wages,” “false findings of fact and erroneous,” “corruption, violation of ethic [sic] conduct, wrong doing, not disclosing all information or considering all factual evidence.” Her second

notic e of appeal state s
, “I appeal denial of causation, benefits of disability (TTD & PPD), loss of wages, medical bills incurred as a result from injury, deny the accuracy of the history of claim as described in compensation hearing order. Appealing on the basis of corruption and false documentation presented by opposing attorney.”

Furt her, i n the statement of the i ssues attached to her second notice of a ppeal

, Employee assert s that the judge failed to consider “ putting [her] life at risk” by ordering her to return to Dr. Lochemes, who she state s “lied under oath and gave me an

unsanitiz ed instrument to use on my injury.” Further, Employee allege s Dr. Lochemes refused to look at her foot during her last appointment , did not provide her with copies of her medical records, and “created a fict itious scenario and corruption/ falsified

documen tation.” Employee also state s the trial court was biased, disregarded her emails requesting a second opinion , and failed to return records to her. Additionally s he claim s Employer failed to report her “first and second injury to foot” and allege s the opp osing attorney “instructed [the] court reporter not to include [her] statements in the deposition.” Finally, Employee state s her appeal is “on the basis of biasness [sic] , corruption, and medical malpractice, and other violations of TN annotations and sta tu[t]es.”

We affirm t he trial court’s decision. First, Employee asserts several issues concerning the trial court, her treating physician, and opposing counsel that , as far as we can tell, were not raised be low

. Employee’s f ailure to raise these issue s in the trial court constitutes a waiver on appeal , and we will not address these issues in the first instance

. See Keyes v. Bridgestone Ams

. , No. 2016

- 06

- 2007, 2017 TN Wrk

. Comp

. App

. Bd

. LEXIS 33, at *7 (Tenn. Workers’ Comp. App. Bd. May, 18, 2017) (“ is sues not presented to and decided by the trial court will not be c onsidered by an appellate court”); East v.

2 The notices of appeal, one filed on January 24, 2019 and th e other filed on January 28, 2019, do not identify the date of the trial court’s order being appeale d , though we assume it is the order filed on January 15, 2019. Moreover, since both notices contain the same docket number, we assume Employee is appealing but one case.4 Heritage Hosiery Mill , No. 2014

- 01

- 0009, 2014 TN Wrk

. Comp

. App

. Bd

. LEXIS 4, at
*15 n.1 ( Tenn. Workers’ Comp. App. Bd. Dec. 12, 2014) ( f ailure to raise an issue in the trial court constitutes a waiver of the issue on appeal ).

Second, Employee has not filed a brief

, and she has offered no meaningful argument explaining how she believes the trial court erred in denying her claim for

benefits or other requests for relief. “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.” Sneed v. Bd. of Prof’l Responsibility of the Sup. Ct. of Tenn. , 301 S.W.3d 603, 615 (Tenn. 2010)

. Were we to search the record for possible errors and raise issues and arguments for Employee, we would be acting as her counsel, which the law prohibits. Webb v. Sherrell , No. E2013

- 02724

- COA

- R3

- CV, 2015 Tenn. App. LEXIS 645, at *5 (Tenn. Ct. App. Aug. 12 , 2015).

Third, although testimony was presented at trial, the record does not contain a transcript or a statement of the evidence. 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 presume 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 a bsence 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. ” ).

Finally, w e note parenthetically that Employee is self

- represented in this appeal, as

s he was in the trial court. Parties who decide to represent themselves are entitled to fair and equal treatment by the courts. Whitaker v. Whirlpool Corp. , 32 S.W.3d 222, 227 (Tenn. Ct. App. 2000). Ho wever , as explained by the Court of Appeals

,

courts must also be mindful of the boundary between fairness to a pro se litigant and un fairness to the pro se litigant’ s adversary. Thus, the courts must not excuse pro se litigants from complying with the sa me substantive and procedural rules that represented parties are expected to

observe

. . . . Pro se litigants should not be permitted to shift the burden of the litigation to the courts or to their adversaries.

Hessmer v. Hessmer , 138 S.W.3d 901, 903

- 04 (T enn. Ct. App. 2003) (citations omitted). In the present case, we cannot and will not craft an argument in support of Employee’s appeal.

For the foregoing reasons, t he trial court’s order is affirmed and certified as final

.TENNESSEE BUREAU OF WORKERS’ COMPENSATION

WORKERS’ COMPENSAT I ON APPEALS BOARD

Stephanie Smith ) Docket No. 2016

- 08

- 0977 )

v. ) State File No. 67360

- 2016 )

TJ Maxx , et al. ) ) ) Appe al from the Court of Workers’ ) Compensation Claims ) Allen Phillips , Judge )

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the Appeals Board’s decis ion in the

referenced case was sent to the following recipients by the following methods of service

on this the 12th day of April

, 201 9

.

Name Certified

Mail First

Class

Mail Via

Fax Fax

Number Via

Email Sent to:

Stephanie Smith X X steffyluv@yahoo.com David Riley X driley@gwtclaw.com pwilliams@gwtclaw.com Allen Phillips

, Judge X Via Electronic Mail

Kenneth M. Switzer

, Chief Judge X Via El ectronic Mail Penny Shrum, Clerk, Court of Workers’ Compensation Claims X p enny. p atterson

- s hrum@tn.gov

Matthew Salyer Clerk, Workers’ Compensation Appeals Board 220 French Landing Dr., Ste. 1

- B Nashville, TN 37243 Telephone: 615

- 253

- 1606

Electronic Mail: WCAppeals.Clerk@tn.gov