                                                                                                                     FILED
                                                                                                                  October 28, 2015
                                                                                                                   D C Ol.iRTOF
                                                                                                               WORKIRS' CO:\IPEC\SATIOC\
                                                                                                                         CL.~iS


                                                                                                                     Time: 9:37 A-'1




             IN THE COURT OF WORKERS' COMPENSATION CLAIMS
                              AT KINGSPORT

DARRELL MANUEL                                             )    Docket No.: 2015-02-0108
        Employee,                                          )
v.                                                         )    State File Number: 11930/2015
A-1 WORKFORCE, INC.                                        )
         Employer,                                         )    Judge Brian K. Addington
And                                                        )
TECHNOLOGY INSURANCE                                       )
         Insurance Carrier.                                )


                  EXPEDITED HEARING ORDER DENYING BENEFITS


      This matter came before the undersigned Workers' Compensation Judge on the
Request for Expedited Hearing filed by the Employee, Darrel Manuel, on June 23 , 2015 .
The present focus of this case is the compensability of Mr. Manuel's exposure injury.
The central legal issue is whether the injury arose primarily out of and in the course and
scope of employment. For the reasons set forth below, the Court finds the injury not
compensable and denies the requested relief at this time. 1

                                               History of Claim

       Mr. Manuel is a thirty-five--year-old resident of Washington County, Tennessee.
(T.R. 1 at 1.) Prior to the alleged injury addressed by this Order, Mr. Manuel presented
to Johnson City Medical Center (JCMC) on December 1, 2012, for non-cardiac chest
wall pain and bronchitis. (Ex. 2, JCMC records at 275.) The provider at JCMC
prescribed a Z-pack and Vento lin, an inhaler. !d. at 277.

        Mr. Manuel testified he worked as a temporary worker performing "bag-out" on
an assembly line at Fiber Innovation Technology (FIT). He had previously worked at
this site without any issues. Mr. Manuel returned to FIT on Thursday, February 6, 2015,
and noticed his worksite contained diesel boom-trucks, which were installing electrical
parts and machines. Mr. Manuel smelled diesel fumes and reported the smell and a
1
   A complete listing of the technical record and exhibits admitted at the Expedited Hearing is attached to this Order
as an appendiX'

                                                           1
headache to A-1 Workforce, his employer. Mr. Manuel worked on February 7, 2015,
without incident. The diesel trucks were not in use that day.

       On February 10, 2015, Mr. Manuel went to work, and the diesel trucks were in use
again. He opened a bay door of the plant for ventilation because he felt nauseous, but a
FIT employee told him the door must remain closed. Mr. Manuel complained about his
heart racing, so a FIT maintenance man told him where to find aspirin in the plant. Mr.
Manuel took them and also ate a pack of crackers. Mr. Manuel felt worse after eating the
crackers. He told Chad Defriece, a FIT employee, that he was feeling ill, and Mr.
Defriece went outside with him to get some air. Mr. Manuel felt better outside.

       When Mr. Manuel returned inside, his stomach started rolling and he vomited the
crackers in the bathroom. Mr. Manuel started sweating, and his chest became tight. Mr.
Defriece took Mr. Manuel back outside. Mr. Defriece checked Mr. Manuel's pulse, and
told him it was high. Mr. Manuel requested to speak to a nurse. Mr. Defriece told his
supervisor, and the supervisor asked Mr. Manuel if he needed to be examined. Mr.
Manuel replied he might need to be examined elsewhere if there were no nurse on-site.
Mr. Defriece's supervisor told him to call someone. Mr. Manuel called his mother-in-
law, and she took him to JCMC.

        When Mr. Manuel arrived at JCMC, he informed the intake worker that he
suffered chest pain. /d. at 18. He testified he told the intake workers that he suffered
diesel smoke inhalation and was rushed to an observation room. JCMC records reflect he
told the admitting physician, Dr. Garik Misenar, that the chest pain started one day prior
to admission would last for one to two hours before stopping and then would reoccur. /d.
at 21. The providers noted substance abuse and possible family history of CAD as risk
        2
factors. Mr. Manuel reported smoking one pack of cigarettes a day and occasional
marijuana usage. /d.

        Mr. Manuel underwent several tests on February 11, 2015, and the consulting
physician, Dr. Kais Al Balbissi, decided to do a heart catheterization. /d. at 22. While
undergoing tests, and for the entire time he was at the hospital, Mr. Manuel testified he
suffered a bitter taste in his mouth, his chest was tight, and he constantly smelled diesel.
Nurse records from February 11, 2015, indicate the following: 7:30 a.m. Mr. Manuel
denied any needs; 10:08 a.m. he ate; 11:39 a.m. he was sitting in bed, denied any needs
and had no complaints; 5:06p.m. he had no needs and no complaints, 7:20p.m. he was
sitting in bed watching television with no needs or complaints. !d. at 168-9.

       Dr. AI Balbissi performed the heart catheterization on February 12, 2015. The
results were normal. !d. at 28. Dr. AI Balbissi recommended, "Aggressive risk factor
modification. Imdur 15 mg po qday considering possibility of vasopastic angina (Patient

2
    CAD is coronary artery disease.

                                             2
CP was precipitated by inhalation of fumes). Patient counseled and advised to
discontinue smoking." /d. JCMC discharged Mr. Manuel later that day. !d. at 18.
JCMC provided Mr. Manuel a work excuse until February 17, 2015, with work
restrictions of limited use of the groin for four days and personal restrictions of no lifting
over thirty-five pounds until February 15, 2015. (Ex. 6.) These restrictions came from
his heart catheterization.

        On February 17, 2015, Mr. Manuel and several FIT employees filled out an
accident investigation form. The report noted the "sweet smell" Mr. Manuel complained
about. (Ex. 5.) FIT acknowledged ventilation issues and recommended that a door be
left open. ld.

       A-1 Workforce was unable to accommodate Mr. Manuel's restrictions. It
provided him a letter on February 23, 2015, stating it had no work for him until a doctor
released him to full duty. (Ex. 7.)

        Mr. Manuel saw Dr. Al Balbissi again on March 2, 2015. Mr. Manuel complained
of chest pain. (Ex. 1, ETSU Physicians at 1.) His blood pressure was very high. Mr.
Manuel reported smelling diesel and other chemical smells at work for a fracking
company. !d. He did not want to return to work due to pain in his leg. !d. Dr. AI
Balbissi noted, "He was started on Isosorbide for possible vasospastic angina. He is
having severe HA (headache) on it." Id. Dr. AI Balbissi stopped the Isosorbide. ld. at 3.
Dr. AI Balbissi's assessment was atypical chest pain, hypertension, and right-groin pain.
ld. at 2. Dr. AI Balbissi provided Mr. Manuel a work excuse until March 16, 2015. /d. at
31.

      On March 3, 2015, A-1 Workforce offered Mr. Manuel work he previously
performed in a kitchen at a conference center. Mr. Manuel declined the offer. (Ex. 8.)

       On March 18, 2015, Dr. AI Balbissi examined Mr. Manuel again. Mr. Manuel
complained of leg pain. (Ex. 2, ETSU Physicians at 55.) Dr. AI Balbissi noted
prescription medication had helped Mr. Manuel's chest pain. ld. Mr. Manuel reported
only suffering chest pain when he was anxious. !d. Dr. AI Balbissi' s assessment was
hypertension and atypical chest pain. !d. at 57.

      On April1, 2015, Dr. AI Balbissi re-examined Mr. Manuel. Dr. Al Balbissi noted,
"Mr. Manuel is a 34 year old male who recently underwent a heart cath that showed no
CAD and possible vasospastic angina related to inhalation of fumes." ld. at 47. Mr.
Manuel continued to complain of right-leg pain. ld. Dr. AI Balbissi's assessment was
hypertension and right-leg pain. !d. at 49.

     Dr. Thomas Perry examined Mr. Manuel at the request of Dr. AI Balbissi. Mr.
Manuel's history to Dr. Perry included exposure to carbon monoxide via diesel fumes at

                                              3
work. (Ex. 2, Tri-State Mtn. Neurology at 3.) Dr. Perry examined Mr. Manuel's leg and
recommended an EMG. !d. at 4. On April 15, 2015, Dr. Perry issued a letter stating that
Mr. Manuel should refrain from any heavy lifting or vigorous activity for four to six
months. !d. at 1. Mr. Manuel provided the note to A-1 Workforce.

      Dr. Terry noted Mr. Manuel suffered a possible traumatic nerve injury to his
femoral nerve when he examined him again on June 22, 2015. !d. at 2. Dr. Terry
scheduled a return appointment for October 21, 2015. !d.

        On June 23, 2015, Dr. Hal Roseman, a cardiologist, issued a report following a
record review. (Ex. 2, Roseman at 1.) Dr. Roseman noted that the JCMC medical
records indicated Mr. Manuel's chest pain started one day prior to admission. !d. at 2.
Dr. Roseman opined Mr. Manuel's expose to fumes may not have been the source of the
symptoms that caused the hospitalization if he experienced chest pain the day prior. !d.
at 5. He opined that the exposure to fumes would be unlikely to have caused a cardiac
syndrome, and that Mr. Manuel's chest discomfort was atypical for coronary syndrome.
Id. at 5-6. Dr. Roseman opined there was no causal relationship between Mr. Manuel's
exposure to diesel exhaust fumes and his subsequent cardiac treatment. !d. at 9.

       Mr. Manuel testified he has not worked since February 10, 2015. Mr. Manuel's
average weekly wage was $227.73 with a corresponding compensation rate of $151.82.
(Ex. 3.) Mr. Manuel testified he placed the medical treatment on his personal insurance.

       Mr. Manuel filed a Petition for Benefit Determination seeking medical and
temporary disability benefits. (T .R. 1 at 1.) The parties did not resolve the disputed
issues through mediation, and the Mediating Specialist filed a Dispute Certification
Notice. (T.R. 2.) Mr. Manuel filed a Request for Expedited Hearing. (T.R. 3.) This
Court heard the matter on October 15, 2016.

        Mr. Manuel asserted he needed to go to the doctor on February 10, 2015, because
he never suffered such symptoms before, and he believes his symptoms are related to the
diesel fumes he smelled at work. He asked the Court to order payment of his medical
bills and temporary disability benefits for the time he missed work.

       A-1 Workforce asserted that Dr. Roseman found no connection between Mr.
Manuel's work and the treatment he received. Mr. Manuel did not receive authorized
care, but sought emergency care because he thought his symptoms were related to his
work. He has, however, presented insufficient evidence to prove a causal relationship.
A-1 Workforce asked the Court to deny Mr. Manuel's request for medical and temporary
disability benefits.




                                           4
                              Findings of Fact and Conclusions of Law

       The Workers' Compensation Law shall not be remedially or liberally construed in
favor of either party but shall be construed fairly, impartially and in accordance with
basic principles of statutory construction favoring neither the employee nor
employer. Tenn. Code Ann. § 50-6-116 (2014). The employee in a workers'
compensation claim has the burden of proof on all essential elements of a claim. Tindall
v. Waring Park Ass 'n, 725 S.W.2d 935, 937 (Tenn. 1987); 3 Scott v. Integrity Staffing
Solutions, No. 2015-01-0055, 2015 TN Wrk. Comp. App. Bd. LEXIS 24, at *6 (Tenn.
Workers' Comp. App. Bd. Aug. 18, 2015). An employee need not prove every element
of his or her claim by a preponderance of the evidence in order to obtain relief at an
expedited hearing. McCord v. Advantage Human Resourcing, No. 2014-06-0063, 2015
TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9 (Tenn. Workers' Comp. App. Bd. Mar. 27,
20 15). At an expedited hearing, an employee has the burden to come forward with
sufficient evidence from which the trial court can determine that the employee is likely to
prevail at a hearing on the merits. I d.

       To be compensable under the Workers' Compensation Law, an injury, including
an occupational disease of the heart and lungs, must arise primarily out of and occur in
the course and scope of the employment. Tenn. Code Ann. § 50-6-102(13) (2014).
Arising out of employment refers to causation. Reeser v. Yellow Freight Sys., Inc., 938
S.W.2d 690, 692 (Tenn. 1997); Hosford v. Red Rover Preschool, No. 2014-05-0002,
2014 TN Wrk. Comp. App. Bd. LEXIS 1, at *20 (Tenn. Workers' Comp. App. Bd. Oct.
2, 2014) . An injury arises out of employment when there is a causal connection between
the conditions under which the work is required to be performed and the resulting injury.
Fritts v. Safety Nat '/ Cas. Corp., 163 S.W.3d 673, 678 (Tenn. 2005). Put another way,
the element of causation is satisfied when the "injury has a rational, causal connection to
the work." Braden v. Sears, Roebuck & Co. , 833 S.W.2d 496, 498 (Tenn. 1992).

       Mr. Manuel asserted that he suffered an injury from smelling fumes, but he
presented no proof of causation. At most, Dr. AI Balbissi noted Mr. Manuel possibly
suffered angina and added, in parentheses, that fume inhalation "precipitated" his chest
pain. Dr. AI Balbissi later noted Mr. Manuel suffered atypical chest pain and
hypertension. He did not causally relate these conditions to Mr. Manuel's work.

       Dr. Roseman noted Mr. Manuel reported during intake that his chest pain started
the day prior to February 10, 2015. Mr. Manuel testified he meant that his chest pain

3
  The Tennessee Workers' Compensation Appeals Board all ows reliance on precedent from the Tennessee Supreme
Court " unless it is evident that the Supreme Court's dec ision or rationale reued on a remedial interpretation of pre-
July I, 2014 statutes that it relied on specific statutory language no longer contained in the Workers' Compensation
Law, and/or that it relied on an ana lysis that has since been addressed by the general assembly through staMory
amendments." McCord v. Advantage Human Resourcing, No. 2014-06-0063, 2015 TN Wrk. Comp. App. Bd.
LEXIS 6, *13 n.4 (Tenn. Workers' Comp. App. Bd. Mar. 27, 2015).

                                                          5
started on Thursday, February 6, 2015, but he provided conflicting testimony on this
issue. He testified he only experienced a headache February 6 and was fine the next day
at work.

       The medical notes further conflict with Mr. Manuel's testimony, as they reflect he
told Dr. Misenar that his chest hurt for a few hours would stop and then start again. This
is inconsistent with Mr. Manuel's testimony that he was fine until he smelled the fumes
on February 10, 2015, and then rushed to the hospital for emergency care because his
chest hurt.

       The medical notes at JCMC make no mention of the inhalation of fumes during
February 10-11, 2015. It was only after the normal heart catheterization on February 12,
2015, that Dr. AI Balbissi mentioned fume inhalation. The Court finds it implausible
that Mr. Manuel would rush to an emergency room with complaints of chest pain
associated with fume inhalation and there be no mention of fume inhalation in the
medical records from the first two days of his hospital stage. Rather, the record reflects
Mr. Manuel rushed to the hospital and complained of chest pain that he said had started
the day prior.

       In addition, Mr. Manuel testified he suffered a bitter taste in his mouth, chest
tightness, and constantly smelled diesel while in the hospital. He also testified he felt
worse at the hospital. Yet, the nursing records of October 11, 2015, indicate he had no
complaints or needs.

       Dr. AI Balbissi did not make a definitive causation statement. He only stated that
Mr. Manuel possibly suffered angina. This does not meet the statutory definition of an
injury arising primarily out of and in the course and scope of employment.

       Mr. Manuel felt ill at work, but the Court finds, however, that he failed to prove a
causal relationship between his symptoms and his work.

       The Court finds that Mr. Manuel has not proven he suffered a compensable work
injury. Therefore, he has not come forward with sufficient evidence from which this
Court can conclude that he is likely to prevail at a hearing on the merits. His request for
medical and temporary disability benefits is denied at this time.


IT IS, THEREFORE, ORDERED as follows:

   1. Mr. Manuel's claim against A-1 Workforce, Inc. for temporary disability and
       medical benefits is denied.

   2. This matter is set for an Initial (Scheduling) Hearing on November 18, 2015, at

                                             6
      2:00p.m. Eastern time.


      ENTERED this the 28th day of October, 2015.



                                  Judge Brian K. Addingt
                                  Court of Workers' Compensation Claims


Initial (Scheduling) Hearing:

      A Scheduling Hearing has been set with Judge Brian K. Addington, Court of
Workers' Compensation Claims. You must call 865-594-6538 or toll-free at 855-
543-5044 to participate in the Initial Hearing.

       Please Note: You must call in on the scheduled date/time to
participate. Failure to call in may result in a determination of the issues without
your further participation. All conferences are set using Eastern Time (ET).


Right to Appeal:

       Tennessee Law allows any party who disagrees with this Expedited Hearing Order
to appeal the decision to the Workers' Compensation Appeals Board. To file a Notice of
Appeal, you must:

   1. Complete the enclosed form entitled: "Expedited Hearing Notice of Appeal."

   2. File the completed form with the Court Clerk within seven business days of the
      date the Workers' Compensation Judge entered the Expedited Hearing Order.

   3. Serve a copy of the Expedited Hearing Notice of Appeal upon the opposing party.

   4. The appealing party is responsible for payment of a filing fee in the amount of
      $75.00. Within ten calendar days after the filing of a notice of appeal, payment
      must be received by check, money order, or credit card payment. Payments can be
      made in person at any Bureau office or by United States mail, hand-delivery, or
      other delivery service. In the alternative, the appealing party may file an Affidavit
      of Indigency, on a form prescribed by the Bureau, seeking a waiver of the filing
      fee. The Affidavit of Indigency may be filed contemporaneously with the Notice
      of Appeal or must be filed within ten calendar days thereafter. The Appeals Board

                                            7
      will consider the Affidavit of Indigency and issue an Order granting or denying
      the request for a waiver of the filing fee as soon thereafter as is
      practicable. Failure to timely pay the filing fee or file the Affidavit of
      lndigency in accordance with this section shall result in dismissal of the
      appeal.

   5. The parties, having the responsibility of ensuring a complete record on appeal,
      may request, from the Court Clerk, the audio recording of the hearing for the
      purpose of having a transcript prepared by a licensed court reporter and filing it
      with the Court Clerk within ten calendar days of the filing of the Expedited
      Hearing Notice of Appeal. Alternatively, the parties may file a joint statement of
      the evidence within ten calendar days of the filing of the Expedited Hearing
      Notice of Appeal. The statement of the evidence must convey a complete and
      accurate account of what transpired in the Court of Workers' Compensation
      Claims and must be approved by the workers' compensation judge before the
      record is submitted to the Clerk of the Appeals Board.

   6. If the appellant elects to file a position statement in support of the interlocutory
      appe_al, the appellant shall file such position statement with the Court Clerk within
      three business days of the expiration of the time to file a transcript or statement of
      the evidence, specifying the issues presented for review and including any
      argument in support thereof. A party opposing the appeal shall file a response, if
      any, with the Court Clerk within three business days of the filing of the appellant's
      position statement. All position statements pertaining to an appeal of an
      interlocutory order should include: (1) a statement summarizing the facts of the
      case from the evidence admitted during the expedited hearing; (2) a statement
      summarizing the disposition of the case as a result of the expedited hearing; (3) a
      statement of the issue(s) presented for review; and (4) an argument, citing
      appropriate statutes, case law, or other authority.


                                       APPENDIX

Exhibits:
1.     Affidavit: Mr. Manuel
2.     Collective Medical Records
3.     Wage Statement
4.     First Reports of Injury
5.     Accident Investigation Form
6.     Return to Work Slip
7.     Employer's Notice of no work for Mr. Manuel
8.     Employer Email concerning Mr. Manuel's work status


                                             8
 Technical record: 4
 1.    Petition for Benefit Determination April 30, 2015
 2.    Dispute Certification Notice, June 22 2015
 3.    Request for Expedited Hearing, June 23,2015




                                    CERTIFICATE OF SERVICE

        I hereby certify that a true and correct copy of the Expedited Hearing Order
 Denying Benefits was sent to the following recipients by the following methods of
 service on this the 28th day of October, 2015.


Name                     Certified     First     Via    Fax    Via              Email/Mail Address
                         Mail          Class     Fax    Number Email
                                       Mail
Darrell Manuel                X          X                                      204 West Chilhowie Ave.
                                                                                Johnson C!!J, TN 37604
E. Han-ison, Esq.                                                      X        eharrison_@_wimberlylawson.com




                                                                      , Clerk of Court
                                                                      kers' Compensation Claims
                                                    WC.Court       ~ lerk(a).tn.gov




 4
     The Court did not consider attachments to Technical Record filings unless admitted into evidence during the
 Expedited Hearing. The Court considered factual statements in these filings or any attachments to them as
 allegations unless established by the evidence.

                                                        9
