Abdelshahaed, Reazkallah v. Taylor Farms

FILED
Mar 22, 2022
08:41 AM(CT)
TENNESSEE
WORKERS' COMPENSATION
APPEALS BOARD
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD
Reazkallah Abdelshahaed ) Docket No. 2020-05-0836
)
v. ) State File No. 56254-2020
)
Taylor Farms, et al. )
)
)
Appeal from the Court of Workers’ )
Compensation Claims )
Dale A. Tipps, Judge )
Affirmed and Certified as Final
The employee alleged a work-related repetitive injury to his right hand. He initially
sought unauthorized medical treatment and then selected an authorized physician from an
employer-provided panel. Following a compensation hearing, the trial court concluded
the employee was not entitled to workers’ compensation benefits because he did not
prove his alleged injury was primarily caused by his work for the employer. The
employee has appealed. We affirm the trial court’s decision and certify it as final.
Judge Pele I. Godkin delivered the opinion of the Appeals Board in which Presiding
Judge Timothy W. Conner and Judge David F. Hensley joined.
Reazkallah Abdelshahaed, LaVergne, Tennessee, employee-appellant, pro se
Peter S. Rosen, Nashville, Tennessee, for the employer-appellee, Taylor Farms
Memorandum Opinion 1
Reazkallah Abdelshahaed (“Employee”) was employed by Taylor Farms
(“Employer”) when he allegedly suffered a work-related repetitive trauma injury to his
right ring finger. After reporting the injury to Employer, he initially sought unauthorized
medical treatment with Dr. Adam Cochran because he believed Employer was
unreasonably delaying medical care. Dr. Cochran took him off work for a period of time
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 appeal by an abbreviated order or by memorandum opinion,
whichever the appeals board deems appropriate, in cases that are not legally and/or factually novel or
complex.” Tenn. Comp. R. & Regs. 0800-02-22-.03(1) (2020).
1
and provided a note indicating the “[t]rigger finger is most likely work related. (51%
more likely).” Employer subsequently provided a panel of physicians from which
Employee selected Dr. Joseph Weick. Dr. Weick examined Employee and agreed with
Dr. Cochran’s diagnosis of trigger finger in the right ring finger. With respect to
causation, Dr. Weick stated there is “no evidence that this is specifically work related.
[Employee] has no specific history of injury and under Tennessee law this is not work
related, 0% work related.” Employer filed a notice of denial the following day based on
the authorized physician’s causation opinion.
Employee filed a petition for benefits, and a dispute certification notice was issued
on November 12, 2020, identifying the disputed issues as compensability, medical
benefits, and temporary disability benefits. Following an expedited hearing, the trial
court issued an order denying the requested benefits. In reaching its conclusion, the court
stated that both physicians’ causation opinions were flawed. In the trial court’s view, Dr.
Weick’s opinion was based on a misunderstanding or misstatement of Tennessee law,
and Dr. Cochran’s opinion failed to address whether Employee’s injury “was primarily
caused by the work or merely related to it.” However, the court noted that, as the
authorized physician selected from a panel of physicians, Dr. Weick’s causation opinion
was entitled to a statutory presumption of correctness and, without a sufficient contrary
medical opinion, Employee had failed to rebut that presumption. 2 Employee appealed,
and on May 27, 2021, we affirmed the decision of the trial court and remanded the case.
Following our remand, the trial court entered a scheduling order and, on December
9, 2021, held a trial to determine if Employee was entitled to medical and disability
benefits. At trial, Employee asked the court to compel Employer to send him to a
specialist but submitted no medical proof that his injury arose primarily out of his
employment. The trial court noted Employee referred to a causation opinion from Dr.
Cochran, but Employee never attempted to move the document into evidence. Because
Employee provided no medical proof of causation, the trial court found Employee had
failed to establish by a preponderance of the evidence that his injury arose primarily out
of and in the course and scope of his employment. Thus, the court concluded Employee
was not entitled to workers’ compensation benefits. Employee has appealed.
Employee is self-represented in this appeal, as he was in the trial court and in his
previous appeal. 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). However, as explained by the Court of Appeals,
courts must also 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
2
See Tenn. Code Ann. § 50-6-102(14)(E) (2021).
2
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).
In his notice of appeal, Employee asserts Employer refused to provide medical
care, prompting him to see a “doctor outside the company.” He contends that, while a
panel was subsequently offered, the doctor he selected worked in the same clinic, treated
him in an inappropriate manner, and gave him an injection “which caused [him] pain.”
Employee asserts Employer’s refusal to provide another doctor “was planned to end my
work and lose my right and this is against TN law.” Irrespective of these factual
allegations, which are not corroborated in the record on appeal, Employee failed to
identify any appealable issues or explain how he believes the trial court erred. Although
Employee submitted email correspondence in support of his appeal, which we treat as his
brief, we are unable to discern any factual or legal issues for review in Employee’s
correspondence. 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 be acting as his counsel, which the law clearly
prohibits. Webb v. Sherrell, No. E2013-02724-COA-R3-CV, 2015 Tenn. App. LEXIS
645, at *5 (Tenn. Ct. App. Aug. 12, 2015). As mandated by Tennessee Code Annotated
section 50-6-239(c)(7), we must presume the trial court’s factual findings are correct,
unless the preponderance of the evidence is otherwise.
Moreover, Employee did not file 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.” Meier v.
Lowe’s Home Centers, Inc., No. 2015-02-0179, 2016 TN Wrk. Comp. App. Bd. LEXIS
30, at *3 (Tenn. Workers’ Comp. App. Bd. July 27, 2016). Consistent with established
Tennessee law, we must presume that the trial court’s rulings were supported by
sufficient evidence. 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 every fact admissible under the pleadings was found or should have been found
favorably to the appellee.”).
Finally, Employer contends Employee’s appeal is frivolous and requests costs
and/or attorney fees. Specifically, Employer asserts “there are no valid grounds” for
Employee’s appeal, no transcript submitted, no statement of the evidence and no brief in
support of his appeal. A frivolous appeal is one that is devoid of merit or brought solely
for delay. Yarbrough v. Protective Servs. Co., Inc., No. 2015-08-0574, 2016 TN Wrk.
Comp. App. Bd. LEXIS 3, at *11 (Tenn. Workers’ Comp. App. Bd. Jan. 25, 2016).
3
“[P]arties should not be required to endure the hassle and expense of baseless litigation.
Nor should appellate courts be required to waste time and resources on appeals that have
no realistic chance of success.” Id. at *10-11 (citations omitted). We conclude
Employee’s appeal is devoid of merit and is frivolous. However, we exercise our
discretion not to award attorneys’ fees or other expenses for Employee’s frivolous appeal.
See Tenn. Comp. R. & Regs. 0800-02-22-.09(4) (2020).
For the foregoing reasons, we affirm the decision of the trial court and certify it as
final. Costs on appeal are taxed to Employee.
4
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD
Reazkallah Abdelshahaed ) Docket No. 2020-05-0836
)
v. ) State File No. 56254-2020
)
Taylor Farms, et al. )
)
)
Appeal from the Court of Workers’ )
Compensation Claims )
Dale A. Tipps, Judge )
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 22nd
day of March, 2022.
Name Certified First Class Via Via Sent to:
Mail Mail Fax Email
Reazkallah Abdelshahaed X X X reazkallahabdelshahaed@yahoo.com
456 Cedar Park Circle
La Vergne, TN, 37086
Peter Rosen X prosen@vkbarlaw.com
Dale A. Tipps, Judge X Via Electronic Mail
Kenneth M. Switzer, Chief Judge X Via Electronic Mail
Penny Shrum, Clerk, Court of X penny.patterson-shrum@tn.gov
Workers’ Compensation Claims
Olivia Yearwood
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