                                                                                                                    FILED
                                                                                                                   JUNE 2,2016

                                                                                                                  1N COURT OF
                                                                                                             WORKIRS ' COMPE NSATION
                                                                                                                    CLAIMS

                 TENNESSEE BUREAU OF WORKERS' COMPENSATION                                                          Time: 9:24 AM
                IN THE COURT OF WORKERS' COMPENSATION CLAIMS
                                AT COOKEVILLE

Christopher Miller                                           )    Docket No.: 2015-04-0196
            Employee,                                        )
v.                                                           )    State File Number: 54638-2015
TRW Automotive U.S., LLC                                     )
         Employer.                                           )    Judge Robert Durham



            EXPEDITED HEARING ORDER DENYING MEDICAL BENEFITS


       THIS CAUSE came before the undersigned Workers ' Compensation Judge on
May 17, 2016, upon the Request for Expedited Hearing (REH) filed by the employee,
Christopher Miller, on January 20, 2016, pursuant to Tennessee Code Annotated section
50-6-239 (2015) to determine if the employer, TRW Automotive U.S., LLC, is obligated
to pay for Mr. Miller's emergency room treatment incurred on July 9, 2014. 1

       The dispositive issue is whether Mr. Miller sustained an injury to his left forearm
that arose primarily out of and in the course and scope of her employment with TRW. 2 A
secondary issue is whether Mr. Miller was justified in seeking unauthorized emergency
room treatment on July 9, 2014, and is thus entitled to reimbursement for that expense.
The Court finds the evidence submitted by Mr. Miller is sufficient to establish that upon
providing notice on July 9, 2014, he would have been entitled to a panel of authorized
physicians from which he could have chosen an authorized physician for evaluation, and
if necessary, treatment of his alleged work-related injury. However, the evidence is
insufficient at this time to establish he is likely to prevail at a hearing on the merits
regarding the need for emergency treatment or the reasonableness and necessity of the
expenses incurred on July 9, 2014.



1
  At the hearing, Mr. Miller stipulated the only medical benefit requested was reimbursement for the emergency
room visit.
2
    Additional information regarding the technical record and exhibits is attached to this Order as an Appendix.

                                                            1
                                     History of Claim

       Mr. Miller is a thirty-seven-year-old resident of Cumberland County, Tennessee,
who worked on a production line for TRW. (T.R. 1 at 1.) Mr. Miller testified his
primary duty involved operating a machine referred to as a "baronizer," which he
described as being similar to a drill press. He also frequently operated a "wash machine,"
located next to the "baronizer" station, which cleaned lubricant from parts using caustic
cleaning fluids. The operation of both machines required him to wear heavy gloves.

       Mr. Miller further testified he developed a rash on his left forearm in December
2013, which he believed was causally related to exposure to chemicals while working at
TRW. The only place he developed the rash was on his forearm, which was the only part
of his body regularly exposed to the chemicals. Mr. Miller stated the rash was only a
minor irritation at first, but as it lingered, he reported it to Kathy Paris, TRW's workers'
compensation claim administrator, in June 2014. Ms. Paris did not provide a panel of
physicians at that time.

       Mr. Miller stated he again spoke with Ms. Paris regarding the rash at the beginning
of his shift on July 9. He testified she indicated he could seek medical attention, but
produced some hydrocortisone cream and asked him to try it for a few days to see if it
helped. He agreed to do so.

       Mr. Miller testified that on the evening of July 9, his co-worker, Kelvin Jumper,
attempted to get his attention to assist him with the wash machine to make sure he
correctly filled it with washing fluid. Mr. Miller further claimed that when he did not
tum his attention from his station, Mr. Jumper grabbed him by the left forearm with a
gloved hand covered in washing fluid. Mr. Miller averred he felt immediate and intense
pain in his forearm that he had not previously experienced.

       Mr. Miller testified he went to his line supervisor, Justin Harpe, and told him that
Mr. Jumper grabbed him with a glove covered in cleaning fluid and requested Mr. Harpe
go with him to the emergency room. Mr. Harpe told Mr. Miller he could not do so
without first talking with Ms. Paris. He called Ms. Paris on her personal phone and
informed her that Mr. Miller's rash appeared minor to him, but Mr. Miller insisted on
seeking immediate medical attention. Mr. Miller testified Mr. Harpe refused to let him
talk with Ms. Paris; however, Ms. Paris testified she tried to talk to him, but he refused to
take the telephone. In any event, Mr. Miller insisted on going to the emergency room
that night despite the fact that Mr. Harpe told him TRW would not authorize the visit.
After arriving at University Medical Center (UMC), the hospital called for authorization,
which TRW refused to give. Mr. Miller submitted the expense on his health insurance.

      The physician chart from UMC noted Mr. Miller claimed to suffer from a
chemical bum with the symptoms beginning gradually approximately one month earlier.

                                             2
(Ex. 5 at 2.) The record states, "Pt. states that he is being repeatedly exposed to
potassium hydroxide at work. The chemical gets sprayed on his skin and he is having a
burning type reaction. Pt. c/o ongoing rash with burning sensation when exposed to
water or creams." !d. On examination, a physician's assistant noted a "moderate rash"
and described it as "erythematous, excoriated, nonspecific contact dermatitis on the
palmar aspect of left forearm and dorsal aspect of left forearm." !d. at 3. The hospital
provided Mr. Miller with a corticosteroid injection and discharged him from care. !d. at
4. Although UMC's medical bill was made an exhibit for identification purposes, Mr.
Miller did not offer it into evidence.

       Mr. Miller claimed that on July 10, the rash developed bleeding sores. At the
hearing, he introduced a photograph of his left forearm he testified he took on July 10.
(Ex. 12.) He also completed an incident report for TRW that day. (Ex. 18.) The report
asked that he describe the accident in detail. Although the designated box contained
ample space for a detailed explanation, Mr. Miller simply wrote, "Put hydrocortisone on
an [sic] rash area that has resulted from continued exposure to KHO." !d. There is no
mention of Mr. Jumper grabbing his arm. On examination, Mr. Miller testified a page
was missing from the report.

        Mr. Miller also offered a TOSHA Citation and Notification of Penalty, issued after
he requested TOSHA conduct an investigation of TRW. (Ex. 6 at 3.) 3 The Citation noted
that, according to the material data sheet for the product used in the parts washer, it could
cause irritation of the skin and eyes. !d. at 9. TOSHA proposed issuing a fine in part
because TRW did not provide gloves, goggles, or facilities to drench the eyes and body
for employees using the parts washer. !d.

       On cross-examination, Mr. Miller admitted he had wanted to transfer to another
workstation for some time prior to his alleged injury, but TRW had given the job to
another employee. He further admitted he felt TRW's decision showed favoritism to the
other employee. Mr. Miller admitted occasionally sleeping in his van with his dog, but
denied he exhibited poor hygiene. Mr. Miller testified he only returned to work on the
"baronizer" on one occasion following this incident, but when he did so, he again
developed a rash on his left forearm.

        Mr. Harpe testified on behalf of TRW pursuant to subpoena. He testified he had
not worked for TRW for approximately a year and a half. According to Mr. Harpe, on
July 9, 2014, Mr. Miller alleged Mr. Jumper improperly used the wash machine and
sprayed him with cleaning fluid. (Ex. 11 at 1.) When Mr. Miller demanded to go to the
emergency room, Mr. Harpe examined Mr. Miller's rash. He described it as being very
red, but minor in nature. He did not feel it warranted emergency treatment, but called
3
  TRW objected to the TOSHA report at the hearing, and the Court took its objection under advisement. Upon
review, the Court finds the report constitutes a hearsay exception pursuant to Rule 803(8) of the Tennessee Rules of
Evidence (20 15). Therefore, TRW's objection is overruled.

                                                         3
Ms. Paris to advise her of the situation. He then relayed to Mr. Miller that TRW would
not authorize emergency room treatment, but he could come in the next day and obtain a
physician from a panel. Mr. Miller refused to wait and left the factory.

        Mr. Harpe testified Mr. Miller never told him Mr. Jumper grabbed him with a
gloved hand covered in cleaning solution, and that the first time he ever heard this
allegation was when TRW's counsel asked him about it on examination. He further
testified Mr. Miller exhibited poor hygiene while at work.

       Ms. Paris also testified for TRW. She testified that if Mr. Miller had come in to
work on July 10, she would have provided him with a panel from which he could have
chosen an authorized physician and received treatment that day, but none of the doctors
on the panel was available on the evening of July 9. She also testified Mr. Miller never
told her Mr. Jumper grabbed him by the forearm with a glove covered in cleaning fluid,
and the first time she heard this account was at the hearing. She further testified TRW
had received several complaints from co-workers regarding Mr. Miller's hygiene.

       In addition to these witnesses, TRW also submitted the affidavits of Kelvin
Jumper and Adam Stevens. Mr. Jumper stated the washing fluid never sprayed or got
close to Mr. Miller. He further testified he never developed a rash from working with the
fluid. He also testified as to Mr. Miller's poor hygiene. Mr. Stevens, Employee
Relations Manager for TRW, cited several instances regarding Mr. Miller's hygiene.

       Finally, TRW submitted the First Report of Injury, dated July 11, 2014, which
describes the alleged injury as, "performing regular duties, left arm started burning and
turning red." (Ex. 19.)

       Mr. Miller filed a Petition for Benefit Determination seeking medical benefits on
December 9, 2015. The parties did not resolve the disputed issues through mediation,
and the Mediating Specialist filed a Dispute Certification Notice on January 7, 2016. Mr.
Miller filed an REH on January 20, 2016. In the affidavit attached to the REH, Mr.
Miller did not allege Mr. Jumper grabbed his forearm with a gloved hand covered in
washing fluid. (Ex. 7.) The Court heard the matter on May 17, 2016.

       At the Expedited Hearing, Mr. Miller asserted he sustained a job-related injury
when exposed to caustic cleaning fluids while working at TRW. He further contended
the exposure was sufficiently serious to warrant unauthorized emergency medical
treatment. Thus, he is entitled to reimbursement for medical expenses incurred during his
emergency room visit on July 9, 2014. TRW countered that Mr. Miller failed to establish
a causal connection between his rash and his exposure to chemicals at TRW; furthermore,
even if a causal connection did exist, Mr. Miller failed to establish that the unauthorized
emergent treatment he received was reasonable or necessary. As a result, TRW argued
the Court should deny Mr. Miller's request for reimbursement.

                                            4
                       Findings of Fact and Conclusions of Law

        The Court considers the following legal principles in reaching its conclusions in
this matter. The Court must interpret the Workers' Compensation Law fairly, impartially
and in accordance with basic principles of statutory construction favoring neither the
employee nor employer. Tenn. Code Ann. § 50-6-116 (2015). The employee in a
workers' compensation claim has the burden of proof on all essential elements of a claim.
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).

       Mr. Miller need not prove every element of his 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, 2015). At an expedited hearing, Mr. Miller
has the burden to come forward with sufficient evidence from which the trial court can
determine he is likely to prevail at a hearing on the merits. !d. This lesser evidentiary
standard "does not relieve an employee of the burden of producing evidence of an injury
by accident that arose primarily out of and in the course and scope of employment at an
expedited hearing, but allows some relief to be granted if that evidence does not rise to
the level of a 'preponderance of the evidence."' Buchanan v. Carlex Glass Co., No.
2015-01-0012, 2015 TN Wrk. Comp. App. Bd. LEXIS 39, at *6 (Tenn. Workers' Comp.
App. Bd. Sept. 29, 2015).

       TRW asserts Mr. Miller failed to produce sufficient evidence to show he is likely
to prevail on the issue of causation regarding his alleged work-related rash. In order to
establish causation, an employee must prove "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." Tenn. Code Ann. §
50-6-102(14)(C) (2015). The term "reasonable degree of medical certainty" means that,
"in the opinion of the physician, it is more likely than not considering all causes, as
opposed to speculation or possibility." Tenn. Code Ann. § 50-6-102(14)(D) (2015).
Thus, causation must be established by expert medical testimony, and it must be more
than "speculation or possibility" on the part of the doctor. !d.

       In this instance, the Court finds Mr. Miller failed to produce any expert medical
evidence linking his rash to his employment with TRW. The medical records provided
diagnose Mr. Miller with contact dermatitis, but fail to give any opinion as to causation
other than a recitation of his history. (Ex. 5 at 2.) As a result, he has provided
insufficient evidence to establish he is likely to prevail on the issue of compensability.

      However, an employee does not have to prove compensability in order to establish
the employer is obligated to provide a panel of physicians from which he may choose an

                                            5
authorized physician. McCord, supra, at                         * 16,   17.      In McCord, the Workers'
Compensation Appeals Board found:

         [W]hether the alleged work accident resulted in a compensable injury has
         yet to be determined. Therefore, while Employee has not proven by a
         preponderance of the evidence that she suffered an injury arising primarily
         out of and in the course and scope of employment, she has satisfied her
         burden at this interlocutory stage to support an Order compelling Employer
         to provide a panel of physicians.

!d. Thus, the question becomes whether Mr. Miller provided sufficient evidence to
satisfy his "burden at this interlocutory stage" that he was entitled to a panel of
physicians on July 9, 2014. !d. at 17.

        The administrative rules governing an employer's obligation to provide a panel
state, "[ u]pon notice of any workplace injury, other than a minor injury for which no
person could reasonably believe requires treatment from a physician, the employer shall
immediately provide the injured employee a panel of physicians that meets the statutory
requirements for treatment of the injury." Tenn. Comp. R. & Regs. 0800-02-01-.25(1)
(20 15). An employer who fails to comply with this rule without good cause could be
assessed a civil penalty of up to $5,000. !d.

        The Court finds Mr. Miller's job with TRW exposed him to caustic chemicals
without adequate protection, as noted in the TOSHA citation. (Ex. 6.) Furthermore, it is
undisputed that 1) Mr. Miller had a rash on the exposed area of his left forearm, 2) he did
not have a rash anywhere else on his body and, 3) he did not have a rash prior to his
employment with TRW. TRW attempted to suggest Mr. Miller's rash was caused by
poor hygiene, but there is no evidence to support this assertion, and the Court is
unpersuaded by TRW's argument. Therefore, the Court finds Mr. Miller provided
sufficient evidence to satisfy his "burden at this interlocutory stage" that he was entitled
to a panel of physicians on July 9, 2014. Id. at 17.

       However, Mr. Miller refused to wait to choose an authorized physician from a
panel offered by TRW, and instead chose to seek emergent care after Mr. Harpe
explicitly informed him TRW would not authorize it. Whether an employee is justified
in seeking payment for unauthorized medical expenses from an employer depends upon
the circumstances of each case. Buchanan v. Mission Ins. Co., 713 S.W.2d 654, 656
(Tenn. 1986). 4 In Buchanan, the Supreme Court concluded that the statute:

4
  The Tennessee Workers' Compensation Appeals Board allows reliance on precedent from the Tennessee Supreme
Court " unless it is evident that the Supreme Court's decision or rationale relied 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 analysis that has since been addressed by the general assembly through statutory
amendments." McCord v. Advantage Human Resourcing, No. 2014-06.:0063 , 2015 TN Wrk. Comp. App. Bd.

                                                          6
        [M]akes it clear that the intent [of the Legislature] . . . was for the
        employee to certainly do no less than consult his employer before incurring
        the expenses called for by that statute if the employee expects the employer
        to pay for it. The opposite would seem to be against public policy.

Id at 657. In addition, the Tennessee Supreme Court has held that when an employee
receives medical care for a work-related injury that the employer did not authorize, the
employee must establish the necessity and reasonableness of the charges before the
employer is responsible. Moore v. Town ofCollierville, 124 S.W.3d 93, 98 (Tenn. 2004).

        In this matter, Mr. Miller attempted to justify his need for emergent care by
claiming Mr. Jumper grabbed his left forearm with a glove covered in cleaning fluid, thus
severely exacerbating his symptoms. However, given the entire record before it, the
Court finds Mr. Miller is not credible regarding this account. Mr. Harpe and Ms. Paris
both testified the first time they heard this particular account was at the hearing on May
17. The accident report completed by Mr. Miller on July 10 does not describe any
incident involving Mr. Jumper, and while Mr. Miller claims there is a second page, he did
not produce it. The Court finds the form made an exhibit appears to be complete for all
intents and purposes. (Ex. 18.)

       Furthermore, neither the medical records, nor Mr. Jumper's affidavit or Mt.
Miller's affidavit, contain any reference to Mr. Jumper grabbing Mr. Miller's arm. Mr.
Miller's account is entirely uncorroborated by any of the evidence submitted. As a result,
the Court finds the weight of the evidence does not support Mr. Miller's description of
Mr. Jumper grabbing his arm and exacerbating his symptoms.

       With that in mind, the question remains whether it was reasonable or necessary for
Mr. Miller to seek unauthorized emergent treatment on July 9, 2014. The Court finds Mr.
Miller had suffered from the rash for at least several weeks, if not months. The rash was
limited to his left forearm. He agreed to try hydrocortisone cream to treat the rash before
his shift began. Mr. Harpe testified that while the area was red, the rash appeared to be
mild. Ms. Paris testified that if Mr. Miller had come to her office on July 10, he could
have seen an authorized physician chosen from TRW's panel that day.

       At the emergency room, UMC did not perform any tests regarding the rash. They
discharged him from the hospital that same evening after providing pain medication and
steroids, and told him to follow-up with his primary care physician in two to three days.
Finally, Mr. Miller failed to enter the expenses from this emergency room visit into
evidence.



LEXIS 6, *13 n.4 (Tenn. Workers' Comp. App. Bd. Mar. 27, 2015).

                                                     7
       Under the circumstances, the Court finds Mr. Miller provided insufficient
evidence to establish he would be likely to prevail at trial regarding the reasonableness
and necessity of his emergency medical treatment on July 9, 2014. As a result, the Court
denies Mr. Miller's request for reimbursement at this time.

  IT IS, THEREFORE, ORDERED as follows :

  1.   Mr. Miller's request for reimbursement of medical expenses is denied.

 2. This matter is set for Initial Hearing/Status Conference on June 27, 2016, at 1:30
 p.m.C.T.

 3. 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) (2015). The Insurer or Self-Insured Employer must submit confirmation
 of compliance with this Order to the Bureau by email to
 WCCompliance.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.

4.    For questions regarding compliance, please contact the Workers' Compensation
Compliance Unit via email WCCompliance.Program@tn.gov or by calling (615) 253-
1471.

ENTERED THIS THE 2nd DAY OF JUNE, 2016.



                            ~udge Court of Workers' Compensation Claims




Initial Hearing:

                                           8
         An Initial Hearing/Status Conference has been set with Judge Robert
 Durham, Court of Workers' Compensation Claims. You must call 615-253-0010 or
 toll-free at 866-689-9049 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 Central Time (CT).

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
       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 fiJe the Affidavit of
       Indigency 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

                                             9
   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
   appeal, the appellant shall file such position statement with the Court Clerk within
   five 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 five 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.




                                        10
                                    APPENDIX

Exhibits:

1.    First Report of Injury dated December 22, 2015;
2.    Notice ofDenial;
3.    Affidavit and certified record from University Medical Center (UMC);
4.    Medical expense forms from UMC (marked for J.D. only);
5.    Physician Chart from UMC;
6.    TOSHA report;
7.    Affidavit of Christopher Miller;
8.    Affidavit of Kelvin Jumper;
9.    Affidavit of Adam Stevens;
10.   Affidavit of Kathy Paris;
11.   Affidavit of Justin Harpe;
12.   Picture ofMr. Miller's left forearm;
13.   Picture of barrel;
14.   Picture ofMr. Miller's van;
15.   Picture of Mr. Miller's van;
16.   Collective pictures ofMr. Miller's van;
17.   E-mail from Mr. Miller dated August 13, 2015;
18.   TRW Incident Assessment Report;
19.   First Report of Injury dated July 11, 2014;
20.   Collective pictures of Mr. Miller's workstation.

Technical Record:

1.    Petition for Benefit Determination;
2.    Request for Expedited Hearing;
3.    Dispute Certification Notice;
4.    TRW's Motion for telephonic Expedited Hearing;
5.    Order Denying TRW's Motion for telephonic hearing;
6.    Pre-Hearing Order;
7.    Subpoena for Justin Harpe;
8.    Amended Order from Judge Lisa Knott dated April1, 2015;
9.    Order Dismissing Request for Assistance.




                                         11
                           CERTIFICATE OF SERVICE

       I hereby certify that a true and correct copy of the Expedited Hearing Order
Denying Medical Benefits was sent to the following recipients by the following methods
of service on this the 2nd day of June, 20 16.

Name                    Certified    Via         Via    Service sent to:
                         Mail        Fax        Email
 Christopher Miller        X                     X      318 Timothy Drive, Crossville,
                                                        Tennessee 38572
                                                        Columbo 76@Tamil.com
Lane Moore                                       X      Lane@moorerader.com




                                                1 m, Clerk of Court
                                       Court of orkers' Compensation Claims
                                       WC.CourtCJerk@tn.gov




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