                                                                                FILED
                                                                              Dec 12, 2018
                                                                             11:34 AM(CT)
                                                                           TENNESSEE COURT OF
                                                                          WORKERS' COMPENSATION
                                                                                 CLAIMS




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

LOUIS WILSON,                              ) Docket Number: 2018-02-0115
         Employee,                          )
v.                                         )
O.G. KELLEY and CO.,                       )    State File Number: 12598-2018
          Employer,                        )
and                                        )
THE HARTFORD,                              ) Judge Brian K. Addington
          Carrier.                         )

                          EXPEDITED HEARING ORDER


      This case came before the Court on December 4, 2018, on Mr. Wilson's request
for medical and temporary total disability benefits for illness from lead exposure. O.G.
Kelley (Kelley) countered that Mr. Wilson did not provide proper notice or present
competent expert medical evidence to show his illness was work-related. For the reasons
below, the Court holds Mr. Wilson is likely to succeed at a hearing on the merits in
proving entitlement to a panel of physicians but not temporary disability benefits.

                                   History of Claim

       Mr. Wilson worked as a machinist and foreman for Kelley, a lead products
producer, from the 1990s until July 2017. His job required milling and burning lead
products. In late 2005, Mr. Wilson began experiencing numbness and swelling in his
legs, feet and hands, frequent headaches, and cognitive and stomach problems.   He
sought treatment from Dr. Richard Rolen.

        Mr. Wilson told Dr. Rolen about his lead exposure at work and home. Mr. Wilson
testified lead paint and ceramic manufacturing caused his lead exposure at home. Mr.
Wilson's lead test indicated a blood-lead level of 71, and Dr. Rolen referred him to Dr.
Ray Lamb for treatment.

      Mr. Wilson complained of fatigue, weight loss, headaches, and general anxiety to
Dr. Lamb. Dr. Lamb also tested his blood, which results indicated a blood-lead level of

                                           1
60. Dr. Lamb prescribed medication and continued to monitor his lead level over
continued visits; however, his treatment notes ceased in March 2006. Mr. Wilson
testified his home lead exposure ended at this time.

       After treating with Dr. Lamb, Mr. Wilson continued to experience reflux, chest
pain, fatigue and high blood pressure, so in October 2016 he sought treatment with Dr.
Raymond Merrick, a cardiologist and internist. 1 Dr. Merrick noted Mr. Wilson's
occupational lead exposure and referred him to a hematologist, and he came under the
care of Dr. Charles Famoyin.

        Dr. Famoyin noted Mr. Wilson's occupational lead exposure and that his lead
blood level was 37.7 in June 2017. Although Mr. Wilson's lead level was elevated, he
felt it was too low to order chelation therapy. Dr. Famoyin recommended further
monitoring, but he was unsure whether all his medical problems derived solely from lead
toxicity.

        In early July 2017, Mr. Wilson was hospitalized for pain and other symptoms. His
primary concern following discharge was his heart. Based on what his providers told
him, he decided to quit his job on July 7. Afterward, Social Security granted him
disability benefits.

       While on disability, Mr. Wilson continued treatment with Drs. Merrick and
Famoyin. On February 14, 2018, Dr. Merrick diagnosed hypertension, depression, lead
exposure (chronic), neuropathy and fatigue, and he determined his employment with
Kelley contributed more than fifty percent in causing the condition. He also found Mr.
Wilson permanently and totally disabled. After months of testing, Dr. Famoyin found his
lead level remained at 21.6.

       Kelley declined to accept Dr. Merrick's disability statement, so Mr. Wilson filed a
Petition for Benefit Determination (PBD) on February 20, which Kelley acknowledged it
received. When the parties could not reach an agreement, Mr. Wilson filed a Request for
Expedited Hearing.

       In anticipation of the hearing, the parties deposed Dr. Merrick. He testified Mr.
Wilson did not tell him about lead exposure outside work. He could not say Mr. Wilson
was at maximum medical improvement (MMI) because "he could not predict the future,"
but he recommended no current treatment beyond the monitoring Dr. Famoyin ordered.




1
 Mr. Wilson introduced no notes from this visit, but Dr. Merrick's November 16, 2016 notes reference a
visit occurred.


                                                  2
       At the hearing, Mr. Wilson argued that he was entitled to medical and temporary
disability benefits based on Dr. Merrick's opinion. Kelley countered that Dr. Merrick's
opinion was invalid and should be excluded because he did not know about Mr. Wilson's
lead exposure outside work and he lacked the necessary expertise to give a lead-exposure
opinion. It also argued that Mr. Wilson failed to provide proper notice.

                        Findings of Fact and Conclusions of Law

       Mr. Wilson must present sufficient evidence that he is likely to prevail at a hearing
on the merits. Tenn. Code Ann. § 50-6-239( d)( 1) (20 18).

         First, regarding Kelley's notice defense, an injured employee must give written
notice of an injury within fifteen days unless it can be shown that the employer had actual
knowledge of the accident. Tenn. Code Ann. § 50-6-201(a)(l). When the employer
raises lack of notice as a defense, the burden is on the employee to show either the
employer had actual notice, that he provided notice, or that his failure to give notice was
reasonable under the circumstances. Hosford v. Red Rover Preschool, 2014 TN Wrk.
Comp. App. Bd. LEXIS 1, at * 15 (Oct. 2, 2014 ). The notice requirement "exists so that
an employer will have an opportunity to make a timely investigation of the facts while
still readily accessible, and to enable the employer to provide timely and proper treatment
for an injured employee." !d.

       Although Mr. Wilson never provided written notice before he quit, Kelley
acknowledged it received his PBD in February 2018. Dr. Merrick provided his causation
opinion on February 14, and Mr. Wilson filed the PBD on February 20. Within six days
of learning his work primarily caused his physical ailments, he informed the employer
through the PBD. The Court holds he would likely prevail in proving timely notice.

       Concerning medical benefits, Dr. Merrick primarily related Mr. Wilson's health
problems to lead exposure at work. Kelley asserted his opinion was invalid because he is
a cardiologist and internist, not an exposure expert, and his opinion was based on faulty
information because he did not know about Mr. Wilson's lead exposure outside work.
The Court finds these arguments unpersuasive.

        Mr. Wilson presented an opinion from a physician, while Kelley relied on its own
interpretations, rather than countervailing expert proof. "Parties and their lawyers cannot
rely solely on their own medical interpretations of the evidence to successfully support
their arguments." Lurz v. Int'l Paper Co., 2018 TN Wrk. Comp. App. Bd. LEXIS 8, at
*17 (Feb. 14, 2018). Moreover, nothing in the record indicated Mr. Wilson misled any
doctor about his complaints. Further, he need not prove compensability by a
preponderance of the evidence at this time. He must only show he would likely succeed
at a hearing on the merits in proving entitlement to a panel of physicians.


                                             3
      In addition to Dr. Merrick, Dr. Famoyin's medical records also indicated Mr.
Wilson suffered lead exposure and needed monitoring. Also, no one questioned whether
Mr. Wilson worked with lead for over twenty years. Since the Court holds he is likely to
succeed at a hearing on the merits, Kelley shall provide a panel of hematologists and
schedule an appointment with the physician he chooses.

       The second issue concerns temporary total disability benefits. The Court finds Mr.
Wilson failed to prove entitlement to temporary total disability benefits at this time. To
recover temporary total disability benefits, he must show ( 1) he is totally disabled and
unable to work due to a compensable injury, (2) the work injury and inability to work are
causally connected, and (3) the duration of the disability. Jewell v. Cobble Constr. and
Arcus Restoration, 2015 TN Wrk. Comp. App. Bd. LEXIS 1, at *21 (Jan. 12, 2015).

        Dr. Merrick found Mr. Wilson permanently and totally disabled on February 2018,
approximately seven months after he quit his job, but later he equivocated on his opinion
in his deposition. If an employee is permanently and totally disabled, he is entitled to
permanent benefits not temporary benefits. Mr. Wilson provided no other proof that a
doctor took him off work. As Dr. Merrick's opinion is equivocal on MMI and work
status, Mr. Wilson has not proven that he is likely to succeed at a hearing on the merits on
this issue.

IT IS, THEREFORE, ORDERED as follows:
   1. Kelley shall provide a panel of hematologists and schedule an appointment with
      the physician Mr. Wilson selects.

   2. Mr. Wilson's request for temporary disability benefits is denied at this time.

   3. This matter is set for a Scheduling Hearing on January 29, 2019, at 2:00 p.m.
      (EDT). You must call toll-free at 855-543-5044 to participate in the Hearing.
      Failure to call in may result in a determination of the issues without your
      further participation.

   4. Unless interlocutory appeal of the Expedited Hearing Order is filed, compliance
      with this Order must occur no later than seven business days from the date of entry
      of this Order as required by Tennessee Code Annotated section 50-6-239(d)(3).
      The Insurer or Self-Insured Employer must submit confirmation of compliance
      with this Order to tQ.e Bureau by email to WC 'omplia n e.Program@tn .gov no
      later than the seventh business day after entry of this Order. Failure to submit the
      necessary confirmation within the period of compliance may result in a penalty
      assessment for non-compliance. For questions regarding complianc~. please
      contact the Workers' Compensation Compliance Unit via email at
      W Cmnpliance.Program@tn .gov.

                                             4
   ENTERED this the 12th day of December, 2018.


                                         /S/ Brian K. Addington
                                        BRIAN K. ADDINGTON, JUDGE
                                        Court of Workers' Compensation Claims


                                    APPENDIX
Exhibits:
   1. Mr. Wilson's Affidavit
   2. Wage Statement
   3. Compilation of Medical Records
   4. Digital Capture of Kelley's webpage
   5. Deposition of Dr. Merrick

Technical Record:
   1. PBD
   2. Dispute Certification Notice
   3. Request for Expedited Hearing
   4. Mr. Wilson's Position Statement
   5. Mr. Wilson's Exhibit List
   6. Mr. Wilson's Witness List
   7. Kelley's Position Statement
   8. Kelley's Witness List




                                            5
                          CERTIFICATE OF SERVICE

       I certifY that a true and correct copy of the Order was sent to the following
recipients by the following methods of service on December 12,2018.

Name                      Certified Fax       Email    Service sent to:
                          Mail
Daniel Bieger,                                X        dan@biegerlaw .com
Employee's Attorney
Joseph Ballard,                               X       joseph. ballard@thehartford.com
Employer's Attorney


                                        ~ f)          :Mv~ ~
                                      ~HRUM,COURTCLERK
                                      w~.~~t;M~rk.Ci .tn.gov




                                          6
                           Expedited Hearing Order Right to Appeal:

     If you disagree with this Expedited Hearing Order, you may appeal to the Workers’
Compensation Appeals Board. To appeal an expedited hearing order, you must:

   1. Complete the enclosed form entitled: “Expedited Hearing Notice of Appeal,” and file the
      form with the Clerk of the Court of Workers’ Compensation Claims within seven
      business days of the date the expedited hearing order was filed. When filing the Notice
      of Appeal, you must serve a copy upon all parties.

   2. You must pay, via check, money order, or credit card, a $75.00 filing fee within ten
      calendar days after filing of the Notice of Appeal. Payments can be made in-person at
      any Bureau office or by U.S. mail, hand-delivery, or other delivery service. In the
      alternative, you may file an Affidavit of Indigency (form available on the Bureau’s
      website or any Bureau office) seeking a waiver of the fee. You must file the fully-
      completed Affidavit of Indigency within ten calendar days of filing the Notice of
      Appeal. Failure to timely pay the filing fee or file the Affidavit of Indigency will
      result in dismissal of the appeal.

   3. You bear the responsibility of ensuring a complete record on appeal. You may request
      from the court clerk the audio recording of the hearing for a $25.00 fee. If a transcript of
      the proceedings is to be filed, a licensed court reporter must prepare the transcript and file
      it with the court clerk within ten business days of the filing the Notice of
      Appeal. Alternatively, you may file a statement of the evidence prepared jointly by both
      parties within ten business days of the filing of the Notice of Appeal. The statement of
      the evidence must convey a complete and accurate account of the hearing. The Workers’
      Compensation Judge must approve the statement before the record is submitted to the
      Appeals Board. If the Appeals Board is called upon to review testimony or other proof
      concerning factual matters, the absence of a transcript or statement of the evidence can be
      a significant obstacle to meaningful appellate review.

   4. If you wish to file a position statement, you must file it with the court clerk within ten
      business days after the deadline to file a transcript or statement of the evidence. The
      party opposing the appeal may file a response with the court clerk within ten business
      days after you file your position statement. All position statements 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.




For self-represented litigants: Help from an Ombudsman is available at 800-332-2667.
 .
ll                                                                                                                 .I




                                    Tennessee Bureau of Workers' Compensation
                                           220 French Landing Drive, 1-B
                                             Nashville, TN 37243-1002
                                                   800-332-2667


                                               AFFIDAVIT OF INDIGENCY


     I,                                                , having been duly sworn according to law, make oath that
     because of my poverty, I am unable to bear the costs of this appeal and request that the filing fee to appeal be
     waived. The following facts support my poverty.

     1. Full Name:_ _ _ _ _ _ _ _ _ _ __                      2. Address: - - - - - - - - - - - - -

     3. Telephone Number: - - - - - - - - -                   4. Date of Birth: - - - - - - - - - - -

     5. Names and Ages of All Dependents:

             - - - - - - - - - - - - - - - - - Relationship: - - - - - - - - - - - - -

             - - - - - - - - - - - - - - - - - Relationship: - - - - - - - - - - - - -

             - - - - - - - - - - - - - - -- -                 Relationship: - - - - - - - - - - - --

             - - - - - - - - - - - - - - - - - Relationship: - - - - - - - - - - - - -

     6. I am employed by: - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - , -

             My employer's address is: - - - - - - - - - - - - - - - - - - - - - - - - -

             My employer's phone number is: - - - - - - - - - - - - - - - - - - - - - - -

     7. My present monthly household income, after federal income and social security taxes are deducted, is:

     $ _ _ _ _ _ _ ___

     8. I receive or expect to receive money from the following sources:

             AFDC            $            per month           beginning
             SSI             $            per month           beginning
             Retirement      $            per month           beginning
             Disability      $            per month           beginning
             Unemployment $               per month           beginning
             Worker's Camp.$              per month           beginning
             Other           $            per month           beginning



     LB-1108 (REV 11/15)                                                                               RDA 11082
9. My expenses are: ' ;                                                     !•
                                                                             '

        Rent/House Payment $              per month     Medical/Dental $            per month

        Groceries         $         per month           Telephone       $           per month
        Electricity       $         per month           School Supplies $           per month
        Water             $         per month           Clothing        $           per month
        Gas               $         per month           Child Care      $           per month
        Transportation $            per month           Child Support   $           per month
        Car               $          per month
        Other             $         per month (describe:


10. Assets:

        Automobile              $ _ _ __ _
                                                        (FMV) -    - - - - -- - - -
        Checking/Savings Acct. $ _ _ _ __
        House                   $ _ _ _ __
                                                        (FMV) - - -- - - -- - -
              )
        Other                   $ _ _ _ __              Describe:_ _ _ __ _ _ _ _ __


11. My debts are:

        Amount Owed                     To Whom




I hereby declare under the penalty of perjury that the foregoing answers are true, correct, and complete
and that I am financially unable to pay the costs of this appeal.




APPELLANT



Sworn and subscribed before me, a notary public, this

_ _ _ dayof _____________ ,20____




NOTARY PUBLIC

My Commission Expires:_ _ _ _ _ __ _




LB-1108 (REV 11/15)                                                                         RDA 11082
