                                                                                    FILED
                                                                                  Jul 22, 2019
                                                                                 01:57 PM(CT)
                                                                               TENNESSEE COURT OF
                                                                              WORKERS' COMPENSATION
                                                                                     CLAIMS



            TENNESSEE BUREAU OF WORKERS' COMPENSATION
           IN THE COURT OF WORKERS' COMPENSATION CLAIMS
                          AT MURFREESBORO

THEODORE NEUMA YR,                            )   Docket No. 2018-05-0777
        Employee,                             )
v.                                            )
FIRST FLEET, INC.,                            )   State File No. 56192-2018
          Employer,                           )
And                                           )
XL INS. AMERICA, INC.,                        )   Judge Kenneth M. Switzer
          Carrier.                            )


              EXPEDITED HEARING ORDER DENYING BENEFITS


        The Court convened an Expedited Hearing on July 10, 2019. The issue is whether
Mr. Neumayr established he is likely to prove entitlement to benefits for an alleged injury
to his lungs and a later stroke from exposure to exhaust fumes. The Court holds that Mr.
Neumayr is unlikely to prove medical causation and denies his request for benefits.

                                     History of Claim

       Mr. Neumayr drove a tractor-trailer for First Fleet. He testified that in
January/February 2018, he placed his truck in First Fleet's shop four times to repair a
defect that allowed exhaust fumes into the truck's cab. He asserted that even though First
Fleet told him each time that it fixed the problem, he continued to experience difficulties.
He further testified that he was in excellent health before the fumes began invading his
cab. However, since exposure, he began suffering severe headaches and dizziness.

       Mr. Neumayr stated that on February 13, exhaust fumes in his truck caused him to
"black out" and clip a parked car with his trailer. He testified he informed his dispatcher
of the accident and that it was due to the fumes in his cab. However, he did not seek
medical attention nor did he inform police of the incident, despite testifying that he was
so dizzy he did not get out of his truck for fear of losing his balance. After the accident,
Mr. Neumayr drove for another ten hours before resting.

       Ms. Maggie Engel, claims representative for First Fleet, testified that the company

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did not know about Mr. Neumayr's accident until February 15. She stated that First Fleet
records do not indicate Mr. Neumayr reported the accident before then or that he ever
stated he "blacked out" due to exhaust fumes before filing a petition for benefit
determination several months later. First Fleet terminated Mr. Neumayr on February 15,
citing multiple wrecks as the reason.

       Mr. Neumayr testified that he went to the VA Hospital the day after his
termination and requested a carbon monoxide test. The test results, dated February 20,
indicated "very high" levels of carbon monoxide in his blood, as interpreted by Karen
Leidy, N.P. She recommended that Mr. Neumayr stay out of his truck until it was fixed.

       On February 21, N.P. Leidy wrote to Mr. Neumayr that she consulted a
pulmonologist, Dr. Carl Green, regarding the elevated carbon monoxide level. Dr. Green
indicated that Mr. Neumayr should reduce his exposure to "excess diesel fumes" or find a
new profession.

       Approximately two weeks after his termination, Mr. Neumayr found employment
driving a dump truck for Volunteer Materials. He testified that he continued to
experience severe headaches and dizziness. On March 15, he suffered a cerebellar stroke
while on the job for Volunteer. He received emergency treatment and incurred a bill for
$2,134.00. Mr. Neumayr did not present any medical proof causally relating his stroke to
exposure to exhaust fumes. He acknowledged that the doctors told him they could not
directly relate the stroke to exposure.

        Mr. Neumayr claimed that he was out of work from March 15 until May 13 due to
the stroke. He requested the Court order First Fleet to pay the emergency room bill and
temporary total disability benefits.

                       Findings of Fact and Conclusions of Law

       Mr. Neumayr must present sufficient evidence that he is likely to prevail at a
hearing on the merits. See Tenn. Code Ann. § 50-6-239(d)(1)(2018); McCord v.
Advantage Human Resourcing, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9
(Mar. 27, 2015).

       The threshold issue is causation. To prevail, Mr. Neumayr must show he is likely
to prove that his stroke arose primarily from exposure to exhaust fumes while working
for First Fleet. To do that, he must establish "to a reasonable degree of medical certainty
that [the injury] contributed more than fifty percent (50%) in causing the death,
disablement or need for medical treatment, considering all causes." Reasonable degree of
medical certainty means "it is more likely than not considering all causes, as opposed to
speculation or uncertainty." See Tenn. Code Ann. § 50-6-102(14). Thus, causation must
be established by expert medical testimony, and it must be by more than "speculation or

                                            2
possibility." !d.

       Mr. Neumayr might be able to establish he suffered from exposure to fumes and
even that it was due to driving a defective truck for First Fleet. The Court has no reason
to doubt Mr. Neumayr on this point. However, no medical evidence established a
connection between his exposure and his stroke, which occurred two weeks after his
employment with First Fleet ended. Although Mr. Neumayr received treatment at the
VA Hospital for the stroke, he did not offer any opinions from his treating doctors
regarding causation. In fact, he testified that his physicians told him that they could only
say that the stroke could be related to the exposure, which is insufficient to establish
causation. !d.

        The Court further finds that Mr. Neumayr's evidence is insufficient to establish he
is likely to prevail at trial even with regard to the provision of a panel of physicians. See
Tenn. Code Ann. § 50-6-204. Medical evidence is generally required in order to
establish a causal relationship, "[e]xcept in the most obvious, simple and routine cases."
Cloyd v. Hartco Flooring Co., 274 S.W.3d 638, 643 (Tenn. 2008). Here, Mr. Neumayr
did not provide any written opinion from his treating doctors that even addressed a
possible causal connection between his stroke and exhaust fume exposure. Mr. Neumayr
only offered speculation and conjecture as to the cause of his stroke, which cannot serve
as justification for the provision of benefits. Tenn. Code Ann. section 50-6-102(14 ).

       IT IS, THEREFORE, ORDERED that:

  1.   Mr. Neumayr's request for worker's compensation benefits is denied at this time.

  2.   This matter is set for a Scheduling Hearing on September 9, 2019, at 2:00 p.m.
       C.T. The parties or their counsel must call 615-253-0010 or toll-free at 855-689-
       9049 to participate in the hearing. Failure to call might result in a determination of
       the issues without your participation.

ENTERED ON JULYl- ~ 2019.




                                   Robert V. Durham, Judge
                                   Court of Workers' Compensation Claims




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                                         APPENDIX

 Technical Record

    1.   Petition for Benefit Determination
    2.   Dispute Certification Notice
    3.   Order on Show Cause Hearing
    4.   Request for Expedited Hearing
    5.   Objection to Hearing on the Record
    6.   Order Setting In-Person Hearing
    7.   First Fleet's Expedited Hearing Position Statement

 Exhibits

    1.   Mr. Neumayr's affidavit
    2.   Record from Centennial Medical Center
    3.   Medical Bill from Centennial
    4.   Carbon Monoxide test results
    5.   Letter from VA Hospital to Mr. Neumayr



                               CERTIFICATE OF SERVICE

         I certify that a copy of this order was sent as indicated on July 22
                                                                           _, 2019.

Name                Certified Mail   Via Fax         Via Email   Service sent to:
Theodore            X                                            1856 Sawgrass Lane
Neumayr                                                          Chapel Hill, TN 3 7034
Christen                                             X           cblackbum@lewisthomason.com
Blackburn



                                                         & _ ~~ '
                                               Penny
                                               Court
                                                         S~lerk of Court
                                                         of ;~rs' Compensation Claims
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