1 TENNESSEE BUREAU OF WOR KERS’ COMPENSATION

WORKERS’ COMPENSAT ION APPEALS BOARD

Ameenah House ) Docke t Nos. 2015-01-0125 ) 2015-01-0126

v. ) ) State File Nos. 92682-2014 Amazon.com, Inc., et al. ) 28711-2015 ) ) Appeal from the Court of Workers’ ) Compensation Claims ) Thomas Wyatt, Judge )

Affirmed and Certified as Final - Filed October 6, 2017

In these consolidated claims, the employee alleges she suffered back injuries as a result of separate incidents occurring in the course of her employment . Following the first incident, the employee was diagnosed with a low-back strain by a physician selected from an employer-provided panel. The employee alleged she suff ered two additional incidents that resulted in increased symptoms in her low back. She did not receive

authorized medical treatment fo llowing these two incidents, but treated with her own physicians and chiropractors. T he employer obtained an indepen dent medical evaluation, and the evaluating physician opined that none of the employee’s complaints were causally related to her employment and that none of the alleged incidents resulted in any impairment or restrictions. Following a trial in which the court addressed the employee’s claims arising out of the second and third alleged incidents, t he court found the employee had not established that she suffered compensable work-related injuries and declined to award benefits. The employee has appealed. We affirm the tria l court’s decision and certify the trial court’s order as final.

Judge David F. Hensley delivered the opinion of the Appeals Boa rd in which Presiding Judge Marshall L. Davidson, III, and Judge Timothy W. Conner jo ined.

Ameenah House, Cleveland, Tenness ee, employee-appellant, pro se

W. Troy Hart and Kristen C. Ste venson, Knoxville, Tennessee, fo r the employerappellee, Amazon.com, Inc.2 Memorandum Opinion 1

Ameenah House (“Employee”) alle ged she experienced three incid ents in the course of her employment with Amazon.com, Inc. (“Employer”), wh ich resulted in injuries to her low back. The f irst incident occurred on Octob er 28, 2014, when Employee asserted that the repetitive lifting duties of her pos ition on a loading dock caused her back pain. She selected Dr. Christopher Palmer from a panel of physicians provided by Employer and was see n by him on one occasion. He s tated in a November 5, 2014 report that he “did not see any particular trauma or injur y,” and that he thought “she is probably just asking a little bit more of her back than accu stomed.” Employee did not file a petition for benefit determination as a result of the Oc tober 28, 2014 incident. Thus, the trial court did not address the compensability of the October 2014 incident, and no issue on appeal concerns that incident.

Employee alleged a second incident occurring on November 20, 2 014, when the forklift on which she was standing was struck from behind by an other forklift. She described feeling a jolt, and she sought medical care the same day at AmCare, Employer’s in-house medical facility. It is unclear from the record whether she was offered a panel of physicians. E mployer asserts it provided a panel and Employee declined to select a physician from a panel, resulting in its denial of the claim based upon Employee’s alleged failure to accept the medical care it offere d. By contrast, Employee denied that she refused to select a physician from a panel foll owing this incident. She did, however, seek treatment on her own from Dr. Steve Williams , a chiropractor, and she participated in physical therapy ordered by him.

Employee reported a third incident occurring on the morning of April 6, 2015. She alleged she was assaulted by a co-worker who grabbed her cl othing and “slammed” her down on a pallet. She explained that she did not feel imme diate pain, but began to start hurting in the afternoon, and by the time she got home fr om her shift, her pain had increased such that she sought emergency medical care. Accordi ng to the trial court’s order denying benefits, Employee testified at trial that “the A pril 6 incident was the ‘icing on the cake’ in worsening her pa in to its current level.” She continued to receive chiropractic care from Dr. Willia ms and subsequently received c are from another chiropractor for whom she had begun working part-time, Dr. Evan Willing. In addition,

she obtained an evaluation from Dr. James Little, although it i s unclear how she came to see Dr. Little. Employer denied the claim arising out of the A pril 6, 2015 incident based upon its assertion that Employ ee’s injury resulted from horsepl ay and her violation of safety rules amounting to willful misconduct.

1 “The Appeals Board may, in an effort to secure a just and spee dy determination of m atters on appeal and with the concurrence of all judges, decide an appeal by an abbr eviated order or by memorandum opinion, whichever the Appeals Board deems appropriate, in cases that ar e not legally and/or factually novel or complex.” Appeals Bd. Prac. & Proc. § 1.3.3

On June 1, 20 15

, Employee filed p etitio ns for benefit determina tion as a result of

the November 2014 and April 2015 incidents. The record on appe al is silent as to proceed ings or filings subsequen t to July 2 015, until a schedul ing order was entered on February 28, 2017, setting the con solid ated cases for trial on June 1, 2017

.

Employer arranged for Employee to be seen b y Dr. Jay Jolley for an independent

medical evaluation on February 6, 2017. After reviewing Employ ee’s medical records, some of which pre-dated the alle ged incidents, and examining Em plo yee, he testified in a depositio n that Employee did not su stain a work-related injury a s a r e s u l t o f a n y o f t h e three alleged incidents and that she had no impairment or restr ictions associated with any

of the alleg ed incidents. Dr. Jo lley associated Employee’s complaints with pre-existing

arthritis and opined that, while she was a surgical cand idate, her problems were not causally related to her employment.

At trial, Emp loyee introduced numerous medical records in su pp ort of her claims,

b ut none of the reco rds ad mitted into eviden ce in cluded an opin ion that Emplo yee’s back

cond ition arose primarily out of and in the cou rse and scope of h er e m p l oy m e n t

. Emp loyee presented the testimony of Dr. Willing in person. Alt hough the reco rd on appeal does not include a transcript of the proceedings in the trial court or a joint

statement of the evidence, the trial court’s o rder reflects tha t Dr. Willing reviewed an MRI of Employee’s lumbar spine and diagnosed her with a “broad- based disc bulg e that compromised fifty-percent of the effected [sic] disc.” The tri al co urt’s order additio nally stated that Dr. Willing assig ned a twelve percent whole body me dical imp airment rating,

but that he was n ot asked to provide an opin ion addressing caus ation. Dr. Willing apparently testified that a person struck by a machine can sust ain an injury, b ut,
accordin g to the trial court’s or der, “Chiropractor Willing mad e this statement outsid e the context of any specific informa tio n properly posed to him about the facts o f [Employee’s] alleged injuries.”

The trial co urt den ied benefits, concludin g Employee had n ot met her burden of establishing she suffered an injury arising primarily out of an d in the course and sco pe of her employment. The court noted that although Employee introdu ced expert opinions

fro m Dr. Little and Dr. Willin g indicating she had a p ermanent medical impairment,

neither offered a causation opinion. The trial court concluded that the o nly doctor who offered an op inion on causation was Dr. Jolley, who opined Empl oyee did not suffer any injuries arising primarily o ut o f the employment.

Emp loyee has app ealed. She filed two sep arate notices of appea l

, t h e f i r s t o f

which used the Bureau’s form for an expedited hearin g no tice of appeal and on which she

stated th e following:

1 1/20/2 014 claim I deny signing a letter stating I refused a pa nel doctor [that] was offered to me. I have not seen this letter. 4/6 /15 claim denied4 because of horse play. There was no horse play when this injur y happen [sic] and horse play was n ever proven by [Employer].

Along with her initial notice of appeal, Employee submitted a p osition statement that included factual assertions that do not appear in the record an d for which there were no

references to the record. The position statement was accompani ed by a medical

document that the trial court ex cluded from evid ence at trial a nd a transcript of a deposition of Dr. Willing that was not admitted into evidence i n the trial court. 2
Employee filed a second notice of appeal on the Bureau’s form f or a compensation hearing notice of appeal, which in cluded a statement of issues similar to that in the initial notice of appeal. However, Employee has not cited any authorit y for the position she asserts, nor has she provided any meaningful legal argument des cribing any errors she

contends to have been ma de by the trial court.

As stated by the Tennessee Suprem e Court, and as we have observ ed on numerous occasions, “[i]t is not the role of the courts, trial or appell ate, to research or construct a litigant’s case or arguments for him or her.” Sneed v. Bd. of Prof’l Responsibility of the Sup. Ct. of Tenn. , 301 S.W.3d 603, 615 (Tenn. 2010). Indeed, were we to search the record for possible errors and raise issues and arguments for E mployee, we would essentially be acting as her counsel. The law clearly prohibit s us from doing so, as appellate courts will not “dig thr ough the record in an attempt to discover arguments or issues that [a pro se party] may have made had [that party] bee n represented by counsel” as doing so “would place [the opposing party] in a distinct and likely insurmountable and unfair disadvantage.” Webb v. Sherrell , No. E2013-02724-COA -R3-CV, 2015 Tenn. App. LEXIS 645, at *5 (Tenn. Ct . App. Aug. 12, 2015). Accordin gly, we decline to conduct an “archaeological dig” i nto the record in an attempt t o discover errors that might benefit either party. McEarl v. City of Brownsville , No. W2015-00077-COA-R3-CV, 2015 Tenn. App. LEXIS 894, at *7 (Tenn. Ct. App. Nov. 6, 2015).

Moreover, Employee has not provided us with a transcript of th e proceedings in the trial court or a statement of the evidence. Without being provided a record of the testimony presented in the trial court, an appellate court “can not know what evidence was presented to the trial court, and there is no means by which [i t] can evaluate the appellant’s assertion that the evidence did not support the tri al court’s decision.” Britt v.

Chambers , No. W2006-00061-COA-R3-CV, 200 7 Tenn. App. LEXIS 38, at *8 (T enn. Ct. App. Jan. 25, 2007). The tot ality of the evidence introduc ed in the trial court is unknown, and we decline to spe culate as to the nature and ex tent of the proof presented

2 We have not considered the medical document, the transcript of Dr. Willing’s deposition, or the factual assertions Employee presented in her position statement that do not otherwise appear in the record, as none of this information was presented to the trial court and p roperly admitted into evidence. See Hadzic v. Averitt Express , No. 2014-02-0062, 2015 TN Wrk. Comp. App. Bd. LEXIS 5, at n. 4 (Tenn. Workers’ Comp. App. Bd. May 18, 2015) (“[W]e will not consider on appeal testimony, exhibits, or othe r materials that were not properly admitted into evidence at the hearing be fore the trial judge.”).5 to the trial court. Instead, co nsistent with established Tenne ssee law, we must presume that the trial court’s rulings were supported by sufficient evi dence. 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 ev ery fact admissible under the pleadings was found or s hould have been found favorab ly to the appellee.”).

For the foregoing reasons, we affirm the decision of the trial court and certify the

trial court’s order as final.TENNESSEE BUREAU OF WOR KERS’ COMPENSATION

WORKERS’ COMPENSATION APPEALS BOARD

Ameenah House ) Docket No. 2015-01-0125 ) 2015- 01-0126
)

v. ) State File No. 92682-2014

) 28711-2015 Amazon.com, Inc., et al. )

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the Appeals Bo ard’s decision in the referenced case was sent to the following recipients by the following methods of service on this the 6th day of October, 2017.

Na me Certified

Mail First Class

Mail Via

Fax Fax

Number Via

Email Email Address

Ameenah House X aminah1016@gmail.com

Kristin C. Stevenson X kcstevenson@mijs.com

W. Troy Hart X wth@mijs.com

Thomas Wyatt, Judge X Via Electronic Mail
Kenneth M. Switzer, Chief Judge X Via Electronic Mail

Penny Shrum, Clerk,

Court of Workers’ Compensation Claims X Penny.Patterson-Shrum@tn.gov

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