1 TENNESSEE BUREAU OF W ORKERS’ COMPENSATION WORKERS’ COMPENSAT ION 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 Fin al - 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 r esulted 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 cau sally 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 determin ation that the employee did not prove her current complaints arose primarily out of and in the course and scope o f her employment. The trial court denied additional te mporary disability benefits and permanent disability benefits based upon the employee’s failure to offer any proof o f additional periods of temporary disability or permanent disability caused by the work i njury. The employee has appealed. We affirm the trial court’s decision and certifythe court’s order as final.

Judge David F. Hensley delivered the opinion of the Appeals Board in which Presiding Judge Marshall L. Davidson, III, a nd Judge Timothy W. Conner jo ined.

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 injur ed while working in the course and scope of her employment with Federal Expre ss Corporation (“Employer”) on April 9, 2015, when several boxes came down a conveyer belt at the same time, causi ng her to fall backwards.2 She timely reported an injury to her low back, and Employer acc epted the claim as compensable. Medical treatment w as initiated with Dr. Arsen Ma nugian, whom Employee selected from a panel of physicians, and temporary disa bility benefits were paid.

In our prior opinion affirming the trial court’s interlocutory order denying requested medical benefits, we addressed Employee’s treatment w ith Dr. Manugian and several other providers as follows:

Employee’s complaints immediatel y after the incident were of lo w 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 o rdered a course of conservativ e care.

Employee testified that after ret urning to regular duty, she experienced increased pain and other symptoms . She returned to Dr. Manugianon May 11, 2015 with complaints of increasing pain in her lower back that radiated into her right buttock and thig h. Dr. Manugian ordered addition al testing, including an MRI and, later, a bone scan, and placed her on wor k restrictions. At a follow-up visit on May 28, 2015, Employee co mplained of continuing symptoms, and Dr. Manugian documented having a “[ l]ong discussion trying to explain to [Employee] that the area of spon dylolysis was probably preexisting and the injury at work was not a signi ficant contributing factor.”

Employee continued to complain of pain and various other sympto ms and, on June 18, 2015, Dr. Manugian i ncluded the following in his re port:

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 visit3 are not in direct relation to her back injury; and she is also having difficulties accepting this.

Employee returned to Dr. Manugi an on June 25, 2015, complaining of low back pain and pain extending in to 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 regar ding her ongoing complaints and tried to “explain, in great detail, rega rding the underlying preexisting spondyloli sthesis that is not active on clinical studies at present.” He released h er to return to work with no restrictions and placed her at maximum medical improvement with no permanent impairment. She informed Dr. Manu gian she wanted a second opini on and stated she had alreadyseen another physician.

On August 11, 2015, Employee saw an unauthorized physician, Dr. Manuel Carro, with complaints of burning in both legs. After undergoin g nerve studies, Employee returned to Dr. Carro, who noted that the obj ective 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 apossible Chiari 1 malformation and noted she did not appear to have the malformation but did have a histo ry 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 a ssociated with blurred vision, slurred speech, and bilateral arm weakness and numbness. Employee also described back pain that radiate d to both thighs and caused her to have leg weakness and numbness. Dr. Shen noted the character of the head aches was consistent with Chiari headaches and that her arm symptoms were consistent with carpal tunnel syndrome. At a December 9, 2015 appointment, Dr. Shen diagnosedEmployee with headaches, weakne ss, “hereditary and idiopathic neur opathy,” compression of the brai n, and tremor, and observed that Employee’s neurologic symptoms dated back to 2008 when medical records indicated she was seen for symptoms c onsistent with Bell’s palsy.

On March 11, 2016, Employee saw Dr. Tulio Bertorini, another neurologist, who evaluated her fo r her neurological complaints, observing that he was “not certain of organic etiology of this patient’s problems.” He noted that, “[o]ther than the tre mor and unsteadiness, [he was] not impressed with her neurological examination.” Additional evaluations and4 tests revealed no objective cau se of Employee’s multiple and ev olving complaints. On September 1, 2016, Dr. Bertorini provided corres pondence stating that there was “[n]o cl ear anatomical cause” for her co mplaints 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 h earing order, and this appeal, E mployee was not represented by counsel at trial. She was the only witness to te stify 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 he aring, which is problematic given that the trial judge took judicial notice of that testimony and considered it. The exhibits consid ered by the trial judge were the same exhibits admitted into evidence at the expedited hearing and included voluminous med ical records but no deposition transcripts , medical or otherwise.

Noting that numerous physicians e valuated Employee and that the only physician to address causation had no explan ation for Employee’s complain ts, the trial court found that Employee failed to establishthat 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 entitle d to additional temporary disa bility benefits or to permanent disability benefits, the court likewise denied Employ ee’s request for those benefits. However, because the parties stipulated that Employe e suffered a compensable low back strain, the court awarde d future medical treatment rea sonably necessary as a result of the injury. Employee has appealed.

Standard of Review

The standard we apply in reviewing a trial court’s decision pre sumes that the court’s factual findings are correct unless the preponderance o f the evidence is otherwise. See Tenn. Code Ann. § 50-6-239(c)(7) (2017) (“There shall be a pres umption that the findings and conclusions of the workers’ compensation judge are correct, unless the preponderance of the evidence is otherwise.”). However, we rev iew 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. Worke rs’ Comp. Panel Dec. 9, 2016) (“A trial court’s conclusions of law are reviewed de novo upon the record with no presumption of correctne ss.”). Moreover, the interpreta tion and application of statutes and regulations concern i ssues of law, which we review de novo with no presumption of correctness afforded to the trial court’s findin gs. See Seiber v. Reeves Logging , 284 S.W.3d 294, 298 (Tenn. 2009); Hadzic v. Averitt Express , No. 2014-02-5 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, Employe e failed to identify any issues for our review. In her brief, Employee included what she identified as “legal issue s I am presented [sic]” to the Appeals Board, but none of the nineteen matters that were li sted constitute issues for appellate review. Rather, Employee identified medical or other records or statements from such records, several of wh ich were not admitted into evid ence. Employee failed to identify any legal errors that the trial court is alleged to hav e 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 o r supporting any alleged error by the tri al court. In addition, Employee’s brief addressed a med ical evaluation that occurred su bsequent 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 tes timony, exhibits, or other materials that were not properly admitted into evidence at the hearing before the trial judge.”).

As stated by the Tennessee Suprem e Court, “[i]t is not the role of the courts, trial or appellate, to research or cons truct a litigant’s case or argu ments for him or her.” Sneed v. Bd. of Prof’l Responsibil ity of the Sup. Ct. of Tenn. , 301 S.W.3d 603, 615 (Tenn. 2010). Were we to search the record for possible errors and rais e issues and arguments for Employee, we would essentia lly be acting as her counsel. T he law prohibits us from doing so, as appellate courts w ill not “dig through the record in an attempt to discover arguments or issues that [a pro s e party] may have made had [th at 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, a t *5 (Tenn. Ct. App. Aug. 12, 20 15).

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 betw een fairness to a pro se litigan t and unfairness to the pro se litigant’s adversary. Thus, the court s must not excuse pro se litigants from complying with the same substantiv e and procedural rules that represented parties are expected to obser ve. . . . Pro se litigants should not be permitted to shift the burden of the li tigation to the courts or to their adversaries.

Hessmer v. Hessmer , 138 S.W.3d 901, 903-04 (Tenn . Ct. App. 2003) (citations omitt ed).6 In short, it is unclear how Employee contends the trial court e rred 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 consid er all the exhibits – all the do cuments that were made exhibits at the expedited hearing in January as well as the tes timony provided at that hearing.” In its order denying benefits, the court stated that i t “takes judicial notice of testimony heard and exhibits adm itted into evidence at the prio r in-person Expedited Hearing.”

Judicial notice is defined as “[a] court’s acceptance, for purp oses of convenience and without requiring a party’s proof, of a well-known and indi sputable fact.” Black’s Law Dictionary (10th ed. 2014). “ Resort to judicial notice is, h owever, subject to limitations, as indicated by Rule 201 of the Tennessee Rules of Ev idence . . . .” State v. Lawson , 291 S.W.3d 864, 868 (Tenn. 2009). Rule 201(b) of the Tennesse e Rules of Evidence provides, in pertinent part, the following:

Kinds of Facts. A judicially noticed fact must be one not subj ect to reasonable dispute, in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of a ccurate and ready determination by resort t o sources whose accuracy cannot reasonably be questioned.

As the advisory comment to Tennes see Rule of Evid ence 201 notes , taking judicial notice of a fact “does not involve admis sion 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]vid ence that a competent witness under oath or affirmation gives at trial or i n an affidavit or deposition.” B lack’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 fact s that are suitable in a subse quent 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 taki ng judicial notice and the tenor of the matter noticed may r esult in the noticed fact bein g “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 a ttack 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 trial7 courts against taking judicial notice of prior testimony or exhi bits previously submitted as part of an interlocutory proceed ing as a matter of course and wi thout limitation as to content, and without identifying the particular facts for whichthe court has determined that no evidence is necessary. 1

Conclusion

The trial court’s decision is a ffirmed and its order is certifi ed as final.

1 Declaring material from prior hearings to be admitted into evid ence through the vehicle of judicial notice and without reference to Rule 201 appears to be commonpla ce 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. Cl aims Aug. 21, 2017); Wilson v. Dana Holding Corp. , No. 2015-07-0143, 2017 TN Wrk. Comp. LEXIS 132 (Tenn. Ct. Wor kers’ 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. Work ers’ 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, 20 17); Johnson v. Pilgrim’s Pride, Inc. , No. 2015-01-0273, 2016 TN Wrk. Comp. LEXIS 170 (Tenn. Ct. Wor kers’ Comp. Claims Nov. 4, 2016).7(11(66((%85($82):25.(56¶&203(16$7,21 :25.(56¶&203(16$7,21$33($/6%2$5'

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