             IN THE COURT OF WORKERS' COMPENSATION CLAIMS
                              AT NASHVILLE

Ronald Pool,                                              )    Docket No.: 2015-06-0510
                  Employee,                               )
v.                                                        )    State File Number: 48782-2015
Jarmon D&Q Transport,                                     )
            Employer,                                     )    Chief Judge Kenneth M. Switzer
And                                                       )
Riverport Insurance Company                               )
            Carrier.                                      )
                                                          )

        EXPEDITED HEARING ORDER GRANTING MEDICAL BENEFITS


       This matter came before the undersigned workers' compensation judge on the
Request for Expedited Hearing filed by the employee, Ronald Pool, pursuant to
Tennessee Code Annotated section 50-6-239 (2014). The present focus of this case is
whether Mr. Pool is entitled to additional medical benefits and temporary total disability
benefits relative to an occupational disease he allegedly sustained while working for
Jarmon D&Q Transport. The central legal issues are whether Mr. Pool introduced
sufficient evidence for the Court to determine that he is likely to prevail at a hearing on
the merits: 1) regarding the sufficiency of notice; and, 2) if his injury arose primarily out
of and in the course and scope of her employment. For the reasons set forth below, the
Court finds that Jarmon's denial of Mr. Pool's claim was premature and he is entitled to
an opinion on causation from the referral physician. However, Mr. Pool failed to satisfy
his burden regarding his entitlement to temporary total disability benefits. Therefore, the
Court denies his request at this time. 1

                                               History of Claim

      Mr. Pool is a forty-seven-year-old resident of Montgomery County, Tennessee.
(T.R. 1 at 1.) He worked for Jarmon as a shuttle driver. !d. He testified that his
employment began in July 2014. According to Mr. Pool, he began experiencing severe
headaches and respiratory problems, including frequently recurring sinus infections, from
1
 A complete listing of the technical record and exhibits admitted at the Expedited Hearing is attached to this Order
as an appendix.

                                                          1
inhaling mold in the shuttle vehicles.

      On February 11, 2015, providers at the Tennessee Department of Health in
Clarksville diagnosed Mr. Pool with asthma. (Ex. 2 at 21.) He subsequently sought
emergency care on April 25, 2015, at Gateway Medical Center, where Dr. Troy Harris
diagnosed pneumonia. !d. at 48. Mr. Pool testified that this encounter led him to "start
my own investigation in private" about his condition.

       Mr. Pool gave verbal notice of the injury to his supervisor, Tim Hubree, on June
25, 2015. The First Report of Work Injury or Illness states, "EE came to the employer
with mold samples that he got from the vans that is causing EE an allergic reaction to
sinus area." (Ex. 4.) Mr. Pool confirmed in his testimony that he showed Mr. Hubree
evidence of mold in petri trays. He testified that, before that date, he did not know "how
to prove his case" because he was afraid of Jarmon's owner. In addition, Mr. Pool said in
his recorded statement:

         Well, I, I had went to the doctor the, the day before, and, uh, you know, w
         [sic], I'm paying out of my own pocket for this stuff here, so ... I, I didn't
         realize that it, you know, I just, I just looked up the stuff on the internet. I
         didn't know that I could claim Workman's Comp for, uh, sickness.

(Ex. 9 at 7.)

        Jarmon offered a panel on June 25, 2015, from which Mr. Pool selected Premier
Medical. (Ex. 5.) Mr. Pool saw Dr. Korivi Giriprasadarao on June 26, 2015, who
assessed "allergic rhinitis" and "worker in work-related incident." (Ex. 1 at 3.) Dr.
Giriprasadarao additionally made an "allergy & immunology referral." !d. at 3, 4. The
referral form stated the diagnosis as, "[a]llergic rhinitis, cause unspecified." He returned
Mr. Pool to work on that same day, but restricted him to "[a]void allergen exposure." !d.
at 5. Mr. Pool conceded on cross-examination that no healthcare providers told him his
condition is work-related or excused him from work regarding his alleged work injury.

       Jarmon offered a panel of allergists on July 2, 2015, from which Mr. Pool chose
Dr. John Overholt. (Ex. 6.) However, before he could see him, Jarmon denied the claim
on July 7, 2015, stating the injury did not meet "TN definition of causation Section 50-6-
301."2 (Ex. 7 at 2.)

       Mr. Pool filed a Petition for Benefit Determination seeking additional medical
benefits and past and continuing temporary total disability benefits. (T.R. 1.) The parties

2
  Jarmon's position statement reiterates that Tennessee Code Annotated section 50-6-30 I dictates the non-
compensability of Mr. Pool's claim because Mr. Pool cannot show that a causal link exists between his work and the
injury. (T.R. 2 at 2.) While this Court agrees that a definitive opinion on causation has yet to be rendered, it notes
that the Workers' Compensation Reform Act of2013 deleted section 50-6-30 I in its entirety as of July 1, 2014.

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did not resolve the disputed issues through mediation, and the Mediating Specialist filed a
Dispute Certification Notice. (T.R. 3.) Mr. Pool filed a Request for Expedited Hearing
(T.R. 4.), and this Court heard the matter on November 10, 2015. Mr. Pool asserted that
he sustained an occupational disease arising primarily out of and in the course and scope
of employment with Jarmon. Jarmon countered that it properly denied Mr. Pool's claim
because Mr. Pool failed to provide adequate notice of the injury and failed to prove a
causal relationship between his condition and his work.

                              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. !d.

                                                      Notice

         Tennessee Code Annotated section 50-6-201(b)(l) (2014) provides in pertinent
part:

         In those cases where the injuries occur as the result of gradual or
         cumulative events or trauma, then the injured employee or the injured
         employee's representative shall provide notice of the injury to the employer
         within thirty (30) days after the employee ... [k]nows or reasonably should
         know that the employee has suffered a work-related injury[.]

(Emphasis added.)

3
 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 1, 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.
LEXIS 6, at *13 n.4 (Tenn. Workers' Comp. App. Bd. Mar. 27, 2015).

                                                          3
       The notice requirement contained in section 50-6-201 "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." Jones v. Sterling Last Corp., 962 S.W.2d 469, 471 (Tenn. 1998);
Hosford v. Red Rover Preschool, No. 2014-05-0002, 2014 TN Wrk. Comp. App. Bd.
LEXIS 1, at *15 (Tenn. Workers' Comp. App. Bd. Oct. 2, 2014). Consequently, "the
giving of statutory notice to the employer is an absolute prerequisite to the right of an
employee to recover compensation under the workers' compensation law." Bogus v.
Manpower Temp. Serv., 823 S.W.2d 544, 546 (Tenn. 1992). When lack of notice is
raised as a defense, the burden is on the employee to show that notice was given, the
employer had actual notice, or the failure to give notice was reasonable under the
circumstances. Tenn. Code Ann.§ 50-6-201(a)(l) (2014); Jones, 962 S.W.2d at 472.
       Mr. Pool alleged an occupational disease as a result of continued exposure to toxic
mold. Mr. Pool credibly testified he did not notify Jarmon of his condition until he
believed he had proof mold was present in the vans. The Court finds he acted reasonably
in waiting until he possessed what he believed to be objective proof, beyond simply his
own suspicion, that mold in the work vehicles made him sick. The Court further finds the
timing of Mr. Pool's notice in no way inhibited Jarmon from timely investigating the
facts while they were still readily accessible. Therefore, as a matter of law, Mr. Pool has
come forward with sufficient evidence from which this Court concludes that he is likely
to prevail at a hearing on the merits regarding the sufficiency of notice.

                                    Medical Benefits

       The Workers' Compensation Law defines mJunes, including occupational
diseases, so that: "'Injury' and 'personal injury' mean an . . . occupational disease
including diseases of the lung ... arising primarily out of and in the course and scope of
employment, that causes ... the need for medical treatment[.]" Tenn. Code Ann. § 50-6-
102(13) (2015). Further, "An injury 'arises primarily out of and in the course and scope
of employment' only if it has been shown by a preponderance of the evidence that the
employment contributed more than fifty percent (50%) in causing the injury, considering
all causes." Tenn. Code Ann. § 50-6-102(13)(B) (2015).

        "Arising out of employment" refers to causation. Reeser v. Yellow Freight Sys.,
Inc., 938 S.W.2d 690, 692 (Tenn. 1997); Hosford, 2014 TN Wrk. Comp. App. Bd.
LEXIS 1, at *20. 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). The mere presence of the employee at the place of injury because of the
employment is not enough, as the injury must result from a hazard peculiar to the work or

                                            4
be caused by a risk inherent in the nature of the work. Blankenship, 164 S. W.3d at 354.
Accordingly, "an injury purely coincidental, or contemporaneous, or collateral, with the
employment . . . will not cause the injury . . . to be considered as arising out of the
employment." Jackson v. Clark & Fay, Inc., 270 S.W.2d 389, 390 (Tenn. 1954).
Traditionally, a workers' compensation claimant had to establish by expert medical
evidence the causal relationship between the alleged injury and the claimant's
employment activity, "[e]xcept in the most obvious, simple and routine cases." Cloyd v.
Hartco Flooring Co., 274 S.W.3d 638, 643 (Tenn. 2008) (quoting Orman v. Williams
Sonoma, Inc., 803 S.W.2d 672,676 (Tenn. 1991)).

        Applying these principles, the court finds that this case is not obvious, simple and
routine, and therefore medical proof of causation is necessary. The authorized provider,
Dr. Giriprasadarao, assessed Mr. Pool as a "worker in work-related incident." This
statement, after only one office visit, arguably, does not meet the preponderance of
evidence standard. However, at this time, Mr. Pool need not meet that standard. Rather,
he must come forward with sufficient evidence from which this Court may conclude that
he is likely to prevail at a hearing on the merits regarding causation.

       In McCord, the Workers' Compensation Appeals Board held in part:

      [A]n employee need not prove each and every element of his or her claim
      by a preponderance of the evidence at an expedited hearing to be entitled to
      temporary disability or medical benefits, but must instead present evidence
      sufficient for the trial court to conclude that the employee would likely
      prevail at a hearing on the merits in accordance with the express terms of
      section 50-6-239(d)(l). A contrary rule would require many injured
      workers to seek out, obtain, and pay for a medical evaluation or treatment
      before his or her employer would have any obligation to provide medical
      benefits. The delays inherent in such an approach, not to mention the cost
      barrier for many workers, would be inconsistent with a fair, expeditious,
      and efficient workers' compensation system. See Tenn. Code Ann. § 4-3-
      1409(b)(2)(A) (2014).

McCord, supra, at *9-10. Further, this lower 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. Car/ex Glass Co., No. 2015-01-0012,
2015 TN Wrk. Comp. App. Bd. LEXIS 39, at *6 (Tenn. Workers' Comp. App. Bd. Sept.
29, 2015) (emphasis added).

      Tennessee law requires an employer to provide, free of charge to the employee,
such medical and surgical treatment made reasonably necessary by the accident. Tenn.

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Code Ann. § 50-6-204(a)(l)(A) (2014). Mr. Pool has an injury. At this point, however,
it is not entirely clear from a medical standpoint whether the work caused the injury. Mr.
Pool has a right to a causation opinion to determine whether his injury is work-related.
The Court, therefore, finds that Jarmon must provide Mr. Pool an additional medical
evaluation for an opinion on medical causation.              Mr. Pool testified that Dr.
Giriprasadarao referred him to an allergist, and Mr. Pool selected Dr. Overholt from a
panel provided by Jarmon. The causation opinion shall come from Dr. Overholt, or, in
the event he is unwilling to provide such an opinion, from another physician selected by
Mr. Pool from a panel of allergists provided by Jarmon. If medical causation is
established, Jarmon shall provide continuing, reasonable and necessary care with Dr.
Overholt or the panel physician.

                           Temporary Total Disability Benefits

       To establish entitlement to temporary total disability benefits as contemplated in
Tennessee Code Annotated section 50-6-207(1) (2015), an employee must show that (1)
he or she was totally disabled from work as a result of a compensable injury; (2) that a
causal connection exists between the injury and the employee's inability to work; and (3)
the duration of the period of the employee's disability. Gray v. Cullom Mack, Tool &
Die, Inc., 152 S.W.3d 439, 443 (Tenn. 2004); Jewell v. Cobble Construction and Arcus
Restoration, No. 2014-05-0003, 2015 TN Wrk. Comp. App. Bd. LEXIS 1, at *21 (Tenn.
Workers' Comp. App. Bd. Jan. 12, 2015).

       Dr. Giriprasadarao returned Mr. Pool to work on June 26, 2015, but restricted him
to "[a]void allergen exposure." Mr. Pool conceded on cross-examination that no
healthcare providers excused him from work regarding his injury. Therefore, Mr. Pool
has not come forward with sufficient evidence to show he is likely to prevail at a hearing
on the merits regarding temporary total disability. Further, as previously noted, Mr. Pool
has not yet established causation. Therefore, at this time, the Court denies Mr. Pool's
request for temporary total disability benefits.

IT IS, THEREFORE, ORDERED as follows:

   1. Jarmon or its workers' compensation carrier shall authorize medical treatment by
      Dr. John Overholt for Mr. Pool's injuries as required by Tennessee Code
      Annotated section 50-6-204 (2014). Dr. Overholt shall render an opinion on
      whether Mr. Pool's condition is work-related. In the event Dr. Overholt is
      unwilling to provide such an opinion, another physician, selected by Mr. Pool
      from a panel of allergists provided by Jarmon, shall render a causation opinion. If
      medical causation is established, Jarmon shall provide continuing, reasonable and
      necessary care with Dr. Overholt or the panel physician. Mr. Pool shall furnish
      medical bills relative to the authorized provider's treatment to Jarmon or its
      workers' compensation carrier.

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

   3. This matter is set for an Initial (Scheduling) Hearing on January 6, 2016, at 9:30
      a.m.

   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)
      (2014). The Insurer or Self-Insured Employer must submit confirmation of
      compliance      with    this     Order    to    the   Bureau     by    email     to
      W Compliance.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.

   5. For questions regarding compliance, please contact the Workers' Compensation
      Compliance Unit via email WCCompliance.Program@tn.gov or by calling (615)
      253-1471 or (615) 532-1309.


      ENTERED this the 17th day of November, 2015.




                                   Court of Workers' Compensa

Injtial (Scheduling) Hearing:

        An Initial (Scheduling) Hearing has been set with Chief Judge Kenneth M.
Switzer, Court of Workers' Compensation Claims. You must call 615-532-9552 or
toll-free at 866-943-0025 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.


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:

                                             7
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 file 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
   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
   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 ofthe 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

                                          8
statement of the issue(s) presented for review; and (4) an argument, citing
appropriate statutes, case law, or other authority.




                                 9
                                               APPENDIX

Exhibits:

    1. Authorized Provider Medical Records of Ronald Pool: Premier Medical Group
    2. Unauthorized Medical Records: Tennessee Department of Health, Gateway
        Medical Center, Premier Imaging
    3. Affidavit of Ronald Pool, October 5, 2015
    4. First Report of Work Injury/Illness Form, June 25, 2015
    5. Form C-42, Choice ofPhysician Form, June 25, 2015
    6. Form C-42, Choice of Physician Form, July 2, 2015
    7. Denial letter from carrier to Mr. Pool, and Form C-23, Notice of Denial of Claim,
        July 7, 2015
    8. Form C-41, Wage Statement, August 3, 2015
    9. Recorded statement transcript
    10. Paycheck stubs (3 pages)
    11. Revised Form C-41, Wage Statement, late-filed

Technical record: 4
   1. Petition for Benefit Determination, July 14, 2015
   2. Employer's position statement, September 1, 2015
   3. Dispute Certification Notice, September 3, 2015 (Incorporates a DCN in which
      Jarmon added several additional issues for adjudication)
   4. Request for Expedited Hearing, October 5, 2015
   5. Employee's position statement, October 22, 2015




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.


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                           CERTIFICATE OF SERVICE

       I hereby certify that a true and correct copy of the Expedited Hearing Order
Granting Medical Benefits was sent to the following recipients by the following methods
of service on this the 17th day ofNovember, 2015.


Name                       Certified Via        Via     Service sent to:
                           Mail      Fax        Email
Ronald Pool,                   X                  X     ronaldleepool@aol.com
Self-represented
Duane Willis,                                     X     dwillis@morganakins.com
Employer's Counsel




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