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TENNESSEE BUREAU OF WORKERS’ COMPENSATION

WORKERS’ COMPENSATION APPEALS BOARD

Kine Gueye ) Docket No. 2016-08-0701

) 

v. ) State File No. 29588-2015

) 

Federal Express Corporation ) 

) 

) 

Appeal from the Court of Workers’ ) 

Compensation Claims, ) 

Robert V. Durham, Judge ) 

Affirmed and Certified as Final - Filed December 28, 2017

The employee alleges she is entitled to additional benefits as a result of a work-related 

fall that the employer stipulated resulted in a compensable low back strain. In a previous 

appeal, the employee asserted the trial court erred in denying medical care for a variety of 

complaints she alleged to be causally related to her fall, and we affirmed the trial court’s 

denial of the requested benefits. Following a trial, the court denied additional medical 

benefits based upon its determination that the employee did not prove her current 

complaints arose primarily out of and in the course and scope of her employment. The 

trial court denied additional temporary disability benefits and permanent disability 

benefits based upon the employee’s failure to offer any proof of additional periods of 

temporary disability or permanent disability caused by the work injury. The employee 

has appealed. We affirm the trial court’s decision and certify the court’s order as final.

Judge David F. Hensley delivered the opinion of the Appeals Board in which Presiding 

Judge Marshall L. Davidson, III, and Judge Timothy W. Conner joined.

Kine Gueye, Cordova, Tennessee, employee-appellant, pro se

Joseph Fletcher, Memphis, Tennessee, for the employer-appellee, Federal Express 

Corporation

Factual and Procedural Background

Kine Gueye (“Employee”) was injured while working in the course and scope of 

her employment with Federal Express Corporation (“Employer”) on April 9, 2015, when

several boxes came down a conveyer belt at the same time, causing her to fall backwards. 
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She timely reported an injury to her low back, and Employer accepted the claim as 

compensable. Medical treatment was initiated with Dr. Arsen Manugian, whom 

Employee selected from a panel of physicians, and temporary disability benefits were 

paid.

In our prior opinion affirming the trial court’s interlocutory order denying 

requested medical benefits, we addressed Employee’s treatment with Dr. Manugian and 

several other providers as follows:

Employee’s complaints immediately after the incident were of low back 

pain. Dr. Manugian’s records reflect a history of Bell’s palsy, complaints 

of headache, and numbness, tingling, and weakness in Employee’s arms 

and legs. Dr. Manugian diagnosed Employee with a low back sprain, 

assigned work restrictions, and ordered a course of conservative care.

Employee testified that after returning to regular duty, she experienced 

increased pain and other symptoms. She returned to Dr. Manugian on May 

11, 2015 with complaints of increasing pain in her lower back that radiated 

into her right buttock and thigh. Dr. Manugian ordered additional testing, 

including an MRI and, later, a bone scan, and placed her on work 

restrictions. At a follow-up visit on May 28, 2015, Employee complained 

of continuing symptoms, and Dr. Manugian documented having a “[l]ong 

discussion trying to explain to [Employee] that the area of spondylolysis 

was probably preexisting and the injury at work was not a significant 

contributing factor.”

Employee continued to complain of pain and various other symptoms and, 

on June 18, 2015, Dr. Manugian included the following in his report:

At this point in time, I have had great difficulty and spent a 

significant amount of time trying to explain to Ms. Gueye that 

her grade 1 spondylolisthesis, which on bone scan is not 

active, was preexisting . . . to her injury; and she did 

aggravate her back with strain that at this point in time is 

better and will continue to do so if she does continue with her

exercise program . . . .

She is having great difficulty appreciating and understanding 

the underlying preexisting spondylolisthesis. I have 

recommended she return back to regular duty, home 

exercises, and reevaluate one final time in a week and 

expected to be released at MMI. The symptoms of her leg, 

which she described and required an emergency room visit 
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are not in direct relation to her back injury; and she is also 

having difficulties accepting this.

Employee returned to Dr. Manugian on June 25, 2015, complaining of low 

back pain and pain extending into her mid-thoracic and cervical area. She 

described having been involved in a rear-end collision because she could 

not lift her leg and apply force to the brakes of her vehicle. Dr. Manugian 

noted that he had another “long discussion” with Employee regarding her 

ongoing complaints and tried to “explain, in great detail, regarding the 

underlying preexisting spondylolisthesis that is not active on clinical 

studies at present.” He released her to return to work with no restrictions 

and placed her at maximum medical improvement with no permanent

impairment. She informed Dr. Manugian she wanted a second opinion and 

stated she had already seen another physician.

On August 11, 2015, Employee saw an unauthorized physician, Dr. Manuel 

Carro, with complaints of burning in both legs. After undergoing nerve 

studies, Employee returned to Dr. Carro, who noted that the objective 

testing was unremarkable. Employee also saw Dr. Jason Weaver, a 

neurosurgeon, on November 4, 2015 for complaints of headaches and 

numbness and tingling in her arms. He reviewed a head MRI for a possible 

Chiari 1 malformation and noted she did not appear to have the 

malformation but did have a history of Bell’s palsy. Dr. Weaver did not 

recommend surgery.

Employee also treated with a neurologist, Dr. Lihong Shen, for a myriad of 

complaints, including headaches associated with blurred vision, slurred 

speech, and bilateral arm weakness and numbness. Employee also 

described back pain that radiated to both thighs and caused her to have leg 

weakness and numbness. Dr. Shen noted the character of the headaches 

was consistent with Chiari headaches and that her arm symptoms were 

consistent with carpal tunnel syndrome. At a December 9, 2015 

appointment, Dr. Shen diagnosed Employee with headaches, weakness, 

“hereditary and idiopathic neuropathy,” compression of the brain, and 

tremor, and observed that Employee’s neurologic symptoms dated back to 

2008 when medical records indicated she was seen for symptoms consistent 

with Bell’s palsy.

On March 11, 2016, Employee saw Dr. Tulio Bertorini, another 

neurologist, who evaluated her for her neurological complaints, observing 

that he was “not certain of organic etiology of this patient’s problems.” He 

noted that, “[o]ther than the tremor and unsteadiness, [he was] not 

impressed with her neurological examination.” Additional evaluations and 
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tests revealed no objective cause of Employee’s multiple and evolving 

complaints. On September 1, 2016, Dr. Bertorini provided correspondence 

stating that there was “[n]o clear anatomical cause” for her complaints of 

generalized muscle weakness and dizziness.

Gueye v. Federal Express Corp., No. 2016-08-0701, 2017 TN Wrk. Comp. App. Bd. 

LEXIS 20, at *2-6 (Tenn. Workers’ Comp. App. Bd. Mar. 10, 2017).

A trial was conducted on August 31, 2017. As in the expedited hearing, the appeal 

of the trial court’s expedited hearing order, and this appeal, Employee was not 

represented by counsel at trial. She was the only witness to testify at trial, and the record 

on appeal includes a transcript of that testimony. However, the record on appeal does not 

include a transcript of Employee’s testimony at the expedited hearing, which is 

problematic given that the trial judge took judicial notice of that testimony and 

considered it. The exhibits considered by the trial judge were the same exhibits admitted 

into evidence at the expedited hearing and included voluminous medical records but no 

deposition transcripts, medical or otherwise.

Noting that numerous physicians evaluated Employee and that the only physician 

to address causation had no explanation for Employee’s complaints, the trial court found

that Employee failed to establish that her ongoing complaints arose primarily out of and 

in the course and scope of her employment. In addition, since Employee offered no 

medical proof that she was entitled to additional temporary disability benefits or to 

permanent disability benefits, the court likewise denied Employee’s request for those

benefits. However, because the parties stipulated that Employee suffered a compensable 

low back strain, the court awarded future medical treatment reasonably necessary as a 

result of the injury. Employee has appealed.

Standard of Review

The standard we apply in reviewing a trial court’s decision presumes that the 

court’s factual findings are correct unless the preponderance of the evidence is otherwise. 

See Tenn. Code Ann. § 50-6-239(c)(7) (2017) (“There shall be a presumption that the 

findings and conclusions of the workers’ compensation judge are correct, unless the 

preponderance of the evidence is otherwise.”). However, we review questions of law de 

novo with no presumption of correctness. See Am. Mining Ins. Co. v. Campbell, No. 

M2015-01478-SC-R3-WC, 2016 Tenn. LEXIS 907, at *18 (Tenn. Workers’ Comp. Panel 

Dec. 9, 2016) (“A trial court’s conclusions of law are reviewed de novo upon the record

with no presumption of correctness.”). Moreover, the interpretation and application of 

statutes and regulations concern issues of law, which we review de novo with no 

presumption of correctness afforded to the trial court’s findings. See Seiber v. Reeves

Logging, 284 S.W.3d 294, 298 (Tenn. 2009); Hadzic v. Averitt Express, No. 2014-02-
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0064, 2015 TN Wrk. Comp. App Bd. LEXIS 14, at *9 (Tenn. Workers’ Comp. App. Bd. 

May 18, 2015).

Analysis

Failure to Identify How the Trial Court Is Alleged to Have Erred

In her notice of appeal, Employee failed to identify any issues for our review. In 

her brief, Employee included what she identified as “legal issues I am presented [sic]” to 

the Appeals Board, but none of the nineteen matters that were listed constitute issues for 

appellate review. Rather, Employee identified medical or other records or statements 

from such records, several of which were not admitted into evidence. Employee failed to 

identify any legal errors that the trial court is alleged to have committed, failed to address 

the trial court’s decision in any meaningful manner, and failed to cite to any part of the 

record as evidencing or supporting any alleged error by the trial court. In addition, 

Employee’s brief addressed a medical evaluation that occurred subsequent to the August 

31, 2017 trial, which we have not considered. See Hadzic, 2015 TN Wrk. Comp. App. 

Bd. LEXIS 14, at *13 n.4 (“[W]e will not consider on appeal testimony, exhibits, or other 

materials that were not properly admitted into evidence at the hearing before the trial 

judge.”).

As stated by the Tennessee Supreme Court, “[i]t 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 essentially be acting as her counsel. The law prohibits us from 

doing so, as appellate courts will not “dig through the record in an attempt to discover 

arguments or issues that [a pro se party] may have made had [that party] been 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).

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). 

At the same time, however, courts must

be mindful of the boundary between fairness to a pro se litigant and 

unfairness to the pro se litigant’s adversary. Thus, the courts must not 

excuse pro se litigants from complying with the same 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 (Tenn. Ct. App. 2003) (citations omitted).
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In short, it is unclear how Employee contends the trial court erred in deciding her case, 

and we decline to speculate.

Judicial Notice

At the outset of the trial, the court announced that “[a]s part of the compensation 

hearing, [the court] will consider all the exhibits – all the documents that were made 

exhibits at the expedited hearing in January as well as the testimony provided at that 

hearing.” In its order denying benefits, the court stated that it “takes judicial notice of 

testimony heard and exhibits admitted into evidence at the prior in-person Expedited 

Hearing.”

Judicial notice is defined as “[a] court’s acceptance, for purposes of convenience 

and without requiring a party’s proof, of a well-known and indisputable fact.” Black’s 

Law Dictionary (10th ed. 2014). “Resort to judicial notice is, however, subject to 

limitations, as indicated by Rule 201 of the Tennessee Rules of Evidence . . . .” State v. 

Lawson, 291 S.W.3d 864, 868 (Tenn. 2009). Rule 201(b) of the Tennessee Rules of 

Evidence provides, in pertinent part, the following:

Kinds of Facts. A judicially noticed fact must be one not subject to

reasonable dispute, in that it is either (1) generally known within the

territorial jurisdiction of the trial court or (2) capable of accurate and 

ready determination by resort to sources whose accuracy cannot 

reasonably be questioned.

As the advisory comment to Tennessee Rule of Evidence 201 notes, taking judicial notice 

of a fact “does not involve admission and exclusion of evidence; rather, no evidence is 

necessary. Part (b) limits judicial notice to a relatively small class of adjudicative facts.”

“Testimony” is defined as “[e]vidence that a competent witness under oath or 

affirmation gives at trial or in an affidavit or deposition.” Black’s Law Dictionary (10th

ed. 2014). Testimony may or may not include adjudicative facts suitable for a court to 

take judicial notice. Likewise, exhibits admitted into evidence at a prior hearing may or 

may not include adjudicative facts that are suitable in a subsequent hearing for a court to 

take judicial notice as contemplated in Rule 201. Additionally, a party’s failure to timely 

request a Rule 201(e) hearing as to the propriety of a court taking judicial notice and the 

tenor of the matter noticed may result in the noticed fact being “taken as given for 

purposes of both the trial and appellate proceedings.” See State v. Nunley, 22 S.W.3d 

282, 287 (Tenn. Crim. App. 1999). As one court has observed, “[b]ecause the effect of 

judicial notice is to deprive a party of an opportunity to use rebuttal evidence, crossexamination, and argument to attack contrary evidence, caution must be used in 

determining that a fact is beyond controversy under Rule 201(b).” Wright v. Brooke 

Group Ltd., 114 F. Supp. 2d 797, 816 (N.D. Iowa 2000). Accordingly, we caution trial 
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courts against taking judicial notice of prior testimony or exhibits previously submitted as 

part of an interlocutory proceeding as a matter of course and without limitation as to 

content, and without identifying the particular facts for which the court has determined 

that no evidence is necessary.1

Conclusion

The trial court’s decision is affirmed and its order is certified as final.

1 Declaring material from prior hearings to be admitted into evidence through the vehicle of judicial 

notice and without reference to Rule 201 appears to be commonplace in the Court of Workers’ 

Compensation Claims. See, e.g., Roper v. Allegis Grp., No. 2016-01-0546, 2017 TN Wrk. Comp. LEXIS 

162 (Tenn. Ct. Workers’ Comp. Claims Sept. 26, 2017); Magadan v. JS Gardening, LLC, No. 2016-06-

2107, 2017 TN Wrk. Comp. LEXIS 155 (Tenn. Ct. Workers’ Comp. Claims Aug. 21, 2017); Wilson v. 

Dana Holding Corp., No. 2015-07-0143, 2017 TN Wrk. Comp. LEXIS 132 (Tenn. Ct. Workers’ Comp. 

Claims July 27, 2017); Jones v. Black’s Mobile Detailing Serv., No. 2016-03-0566, 2017 TN Wrk. Comp. 

LEXIS 117 (Tenn. Ct. Workers’ Comp. Claims June 30, 2017); Coffey v. Nissan N. Am., Inc., Nos. 2016-

05-0132, -0118, 2017 TN Wrk. Comp. LEXIS 116 (Tenn. Ct. Workers’ Comp. Claims June 29, 2017);

Bufford v. Nw. Tenn. Human Res. Agency, No. 2016-07-0110, 2017 TN Wrk. Comp. LEXIS 86 (Tenn. Ct. 

Workers’ Comp. Claims May 24, 2017); Glass v. Ford Constr. Co., No. 2015-08-0638, 2017 TN Wrk. 

Comp. LEXIS 84 (Tenn. Ct. Workers’ Comp. Claims May 19, 2017); Riley v. Grp. Elec., No. 2015-06-

0886, 2017 TN Wrk. Comp. LEXIS 70 (Tenn. Workers’ Comp. Claims Apr. 26, 2017); Davis v. Life Line 

Screening of Am., Ltd., No. 2016-01-0531, 2017 TN Wrk. Comp. LEXIS 75 (Tenn. Ct. Workers’ Comp. 

Claims Apr. 25, 2017); Lawrence v. Stop N’ Shop, No. 2015-07-0147, 2017 TN Wrk. Comp. LEXIS 62 

(Tenn. Ct. Workers’ Comp. Claims Apr. 5, 2017); Walton v. Averitt Express, No. 2015-08-0306, 2017 TN 

Wrk. Comp. LEXIS 13 (Tenn. Ct. Workers’ Comp. Claims Mar. 6, 2017); Johnson v. Pilgrim’s Pride, 

Inc., No. 2015-01-0273, 2016 TN Wrk. Comp. LEXIS 170 (Tenn. Ct. Workers’ Comp. Claims Nov. 4, 

2016).
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