                                                                                   FILED

                                                                               TN COUKI'OF
                                                                           WORKERS' om,fEl,INSATION
                                                                                 et.'ill.IS

                                                                                  Tim.!!' 1:09 PM
            TENNESSEE BUREAU OF WORKERS' COMPENSATION
              COURT OF WORKERS' COMPENSATION CLAIMS
                           AT JACKSON

KATHERINE POUNDERS,                           )   Docket No.: 2016-07-0373
        Employee,                             )
v.                                            )
PACKAGING CORPORATION OF                      )   State File Number: 9057 2016
AMERICA,                                      )
         Employer,                            )
And                                           )
INDEMNITY INSURANCE CO.                       )   Judge Amber E. Luttrell
OF NORTH AMERICA,                             )
         Insurance Carrier.                   )


      EXPEDITED HEARING ORDER DENYING REQUESTED BENEFITS


       This matter came before the undersigned Workers' Compensation Judge on
January 26, 2017, upon the Request for Expedited Hearing filed by Katherine Pounders.
Ms. Pounders requested medical and temporary disability benefits for her alleged work-
injury. The central legal issue is whether Ms. Pounders came forward with sufficient
evidence for the Court to determine she is likely to prevail at a hearing on the merits that
she suffered an injury arising primarily out of and in the course and scope of her
employment. For the reasons set forth below, the Court holds that she did not and thus is
not entitled to the requested benefits at this time.

                                    History of Claim

        The hearing established the following facts. Ms. Pounders, a self-represented
litigant, worked for Packaging Corporation of America (PCA) as a shift crew leader. Ms.
Pounders alleged work-related injuries on January 11 and 15, 2016, when exposed to
aerosol disinfectant spray used to combat the flu virus in the office.

        Ms. Pounders testified that PCA's custodian, Jerry Crockett, sprayed a disinfectant
in the shipping office on January 11. The parties adamantly disputed precisely where Mr.
Crockett sprayed the disinfectant, the type used, and the amount sprayed. Ms. Pounders

                                             1
testified Mr. Crockett sprayed a heavy amount of an unknown disinfectant immediately
in her small office area. Mr. Crockett testified he sprayed "just a little" lemon-scented
Lysol in the hallway and bathroom outside her office. 1 As a result, Ms. Pounders began
sneezing and coughing, and the parties agreed that Ms. Pounders complained and
requested Mr. Crockett stop spraying the disinfectant. Mr. Crockett complied with her
request. That evening, Ms. Pounders called her family medical provider, Debbie McFalls,
CFNP-BC, to schedule an appointment.

      Ms. Pounders alleged a second incident on January 15, when Mr. Crockett again
sprayed a disinfectant near her work area, which caused Ms. Pounders similar symptoms.
Mr. Crockett denied spraying anything on the 15 1h. Ms. Pounders reported both incidents
to David Mead, her supervisor/foreman,· who sent her to first aid. Ms. Pounders
subsequently spoke to Richard Childers, PCA's safety manager. Ms. Pounders informed
Mr. Childers that her illness was due to her exposure to the disinfectant spray.

       Mr. Childers testified that Mr. Crockett only sprayed over-the-counter Lysol in the
building during flu season. Mr. Childers first learned of Ms. Pounders' complaints on
January 20, when Ms. Pounders reported the incidents to him, and he spoke to Mr.
Crockett.

       According to Ms. Pounders, she became very ill following these incidents at work,
was hospitalized in late January, and last worked for PCA in July 2016. Ms. Pounders
stated she finally recovered and could do everything she did prior to her injury as of June
2016.

        Based on the medical records admitted into evidence, Ms. Pounders saw NP
McFalls the day after her first work exposure to disinfecting spray. The history indicated
Ms. Pounders complained of sinus drainage, non-productive cough, nasal congestion,
chest pain with cough, and stated she had taken three dosages of a Zpak. NP McFalls
diagnosed a viral upper respiratory infection. (Ex. 2 at 11-18.) At the hearing, Ms.
Pounders disputed the history recorded in NP McFalls' record. She testified she told the
intake nurse and NP McFalls what happened at work but asserted it was not recorded in
the medical record. She agreed with the portion of the history that stated she requested a
right elbow shot and complained of right foot pain.

        Ms. Pounders testified PCA subsequently sent her to Dr. Joseph Peters following
her conversation with Mr. Childers. Ms. Pounders gave Dr. Peters a history of exposure
to Lysol at work that was sprayed in another room and caused symptoms of hoarseness,
dry cough, right rib pain, watery eyes, and dyspnea. !d. at 19. The parties only admitted
the first page of Dr. Peters' records into evidence, which indicated Ms. Pounders' history,
medications, and medical and social history. The parties did not submit any additional

1
    The Court notes Ms. Pounders stated in her Affidavit she was exposed to Lysol, which made her sick. (Ex. 1.)

                                                           2
 pages documenting Dr. Peters' diagnosis or causation opinion.

        Ms. Pounders also saw Dr. Wayne McAlpin, a pulmonologist, in April 2016. (Ex.
 4.) She gave Dr. McAlpin a history of exposure to a spray at work. She reported
 coughing, chest congestion, and wheezing since the exposure. She further reported she
 was hospitalized for several days and treated with antibiotics and steroids. Following
 examination, Dr. McAlpin diagnosed underlying bronchospasm or asthma. At a follow-
 up visit, he altered Ms. Pounders' medication and diagnosed shortness of breath with
 unclear etiology.

         Ms. Pounders testified she sought treatment mostly with Dr. Joseph Pratt for her
 condition. The parties did not admit Dr. Pratt's treatment records into evidence; however,
 they admitted two signed letters from Dr. Pratt. By letter dated July 11, 2016, Dr. Pratt
 stated, "Katherine Pounders is a patient of mine whom I believe because of occupational
 exposure to cleaners, triggered her illness. Patient has no history of prior illnesses until
 exposed to these cleaners." (Ex. 2 at 22.) PCA's counsel subsequently sent
 correspondence and records to Dr. Pratt for review. In response, Dr. Pratt sent a letter
 dated January 10, 2017, which stated:

         The purpose of this letter is to inform all involved parties in this matter that
         after further review of prior medical records, it appears Ms. Pounders'
         respiratory symptoms have in fact been an issue in the past. The symptoms
         she presented with to my clinic could be multi factorial in nature. It is my
         opinion the spray type cleaners are a possible trigger for her previously
         diagnosed asthma. She has apparently visited multiple other providers with
         similar symptoms and has a history of respiratory illnesses in the past. I
         cannot assign a certain percentage of involvement that these agents may
         have exacerbated her condition at the time of her visit at my clinic.

 !d. at 25 .

         Finally, PCA introduced prior records of Dr. David Chase into evidence from
, 2013 and 2014, which revealed Dr. Chase diagnosed Ms. Pounders with asthma and
  chronic bronchitis. On cross-examination at the hearing, Ms. Pounders testified her 2013
  symptoms were caused by an acute exposure to an "orange substance" used to fumigate
  her office. She did not report a workers' compensation injury at that time.

        At the hearing, Ms. Pounders argued she was not sick prior to her work exposure
 to the aerosol disinfectant spray. She asserted her illness caused her to retire sooner than
 she planned, and she requested compensation for her time off work. Ms. Pounders did not
 offer any documents supporting her claim for temporary disability benefits for time off
 work.


                                                3
        Relying on Dr. Pratt's medical opinion, PCA countered that Ms. Pounders did not
come forward with sufficient medical evidence from which the Court may conclude she
is likely to prevail on the merits at trial for the requested benefits.

                        Findings of Fact and Conclusions of Law

       The following legal principles apply in this case. Because this case is in a posture
of an Expedited Hearing, Ms. Pounders need not prove every element of her claim by a
preponderance of the evidence in order to obtain relief. McCord v. Advantage Human
Resourcing, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015).
Instead, she must come forward with sufficient evidence from which this Court might
determine she is likely to prevail at a hearing on the merits. !d.; Tenn. Code Ann. § 50-6-
239(d)(l) (2016).

       To prove a compensable injury, Ms. Pounders must show her alleged injury arose
primarily out of and in the course and scope of her employment, caused by an incident, or
specific set of incidents, identifiable by time and place of occurrence, that to a reasonable
degree of medical certainty contributed more than fifty percent in causing her
disablement or need for medical treatment, considering all causes. A "reasonable degree
of medical certainty" means that, in the opinion of the treating physician, it is more likely
than not considering all causes as opposed to speculation or possibility. See Tenn. Code
Ann. § 50-6-102(14)(A- D).

        Applying these principles to the facts of this case, the Court holds that Ms.
Pounders did not come forward with sufficient evidence to satisfY her burden of proving
her condition arose primarily out of and in the course and scope of her employment at
this time. Specifically, there is insufficient medical proof to establish that Ms. Pounders'
described injury contributed more than fifty percent in causing her condition considering
all causes.

       The only medical opinion before the Court addressing causation is from Dr. Pratt.
While Dr. Pratt initially stated that Ms. Pounders' occupational exposure to cleaners
triggered her illness, he subsequently altered his opinion after reviewing Ms. Pounders'
prior medical records evidencing her history of asthma and chronic bronchitis. He
concluded, "I cannot assign a certain percentage of involvement that these agents may
have exacerbated her condition at the time of her visit to my clinic." (Ex. 2 at 25.)

       The Court recognizes that Ms. Pounders disputes these conclusions. However, Ms.
Pounders' disagreement with the physician's opinion, while genuine, is legally
insufficient to refute his conclusions. Neither Ms. Pounders nor the Court has the medical
qualifications to revise the doctor's medical opinion for him. As our Appeals Board
observed, "Judges are not well-suited to second guess a medical expert's treatment,
recommendations, and or diagnoses absent some conflicting medical evidence or some

                                             4
other countervailing evidence properly admitted into the record." Scott v. Integrity
Staffing Solutions, 2015 TN Wrk. Comp. App. Bd. LEXIS 24, at *8 (Aug. 18, 2015).
While the Court finds Ms. Pounders credible in her testimony that she suffered an
adverse reaction to the disinfecting spray, the only medical opinion the Court has before
it is the opinion of Dr. Pratt. Absent a contrary medical opinion, Ms. Pounders is unlikely
to prevail at a hearing on the merits. Thus, her request for medical and temporary
disability benefits is denied.


IT IS, THEREFORE, ORDERED as follows:

   1. Ms. Pounders' claim against Packaging Corporation of America and its workers'
      compensation carrier for the requested medical benefits and temporary total
      disability benefits is denied at this time.

   2. This matter is set for a Scheduling Hearing on March 27, 2017, at 10:30 a.m.
      Central Time. You must call toll-free at 855-543-5039 to participate in the
      hearing. Failure to call in may result in a determination of the issues without your
      further participation.


      ENTERED this the 15th day o? rruary, 2017.


                                  -J,L...(Llltn
                                           .:. . . .!. .~L~Y\~
                                  Judge Amber E. Luttrell
                                                             ~~~~
                                                                i~-=----
                                  Court of Workers' Compensation Claims




                                            5
                                       APPENDIX

Exhibits:
   1. Affidavit of Katherine Pounders
   2. Employer's Medical Records with Table of Contents
   3. Medical records ofNorth MS Pulmonology Clinic
   4. Medical records of Corinth Pulmonary Clinic and Rehabilitation
   5. Order for Evidentiary Hearing
   6. Written Statement of Katherine Pounders dated June 24, 2016

Technical record:
   1. Petition for Benefit Determination
   2. Dispute Certification Notice
   3. Request for Expedited Hearing
   4. Employer's Response to Expedited Filings
   5. Order for Evidentiary Hearing
   6. Employer's Rule 0800-02-21-.14 Statement, Witness List, and Documents


                             CERTIFICATE OF SERVICE

       I hereby certify that a true and correct copy of the Expedited Hearing Order was
sent to the following recipients by the following methods of service on this the 15th day
ofFebruary, 2017

Name                           First    Via      Service sent to:
                               Class   Email
                               Mail
Katherine Pounders,              X       X       KatherineQounders.KP50@gmail.com
Self-Represented Emp_loyee
David Drobny, Esq.,                      X       ddrobny@manierherod.com
Attorney for Employer                            me:.rirnmig@2man ierherod.com



                                                         Clerk of Court
                                                        kers' Compensation Claims




                                             6
