          IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
                         AT MURFREESBORO

BENJAMIN FOUSE                               )   Docket No.: 2015-05-0294
         Employee,                           )
v.                                           )   State File Number: 61449-2015
CITY OF MURFREESBORO                         )
         Employer.                           )   Judge Dale Tipps
                                             )
                                             )


 EXPEDITED HEARING ORDER GRANTING MEDICAL AND TEMPORARY
                    DISABILITY BENEFITS


        This matter came before the undersigned workers’ compensation judge on the
Request for Expedited Hearing filed by the employee, Benjamin Fouse, pursuant to
Tennessee Code Annotated section 50-6-239 (2014). The present focus of this case is the
compensability of Mr. Fouse’s histoplasmosis infection and his entitlement to medical
and temporary disability benefits. The central legal issue is whether Mr. Fouse is likely
to establish he suffered an occupational disease arising primarily out of and in the course
and scope of his employment. For the reasons set forth below, the Court finds Mr. Fouse
is entitled to medical and temporary disability benefits.

                                    History of Claim

        Mr. Fouse is a thirty-one-year-old resident of Rutherford County, Tennessee. He
testified he was a seasonal worker for the Murfreesboro Parks and Recreation Department
for the last two years. On Saturday, May 30, 2015, he and two co-workers cleaned out a
storage and equipment “barn” at one of the city parks. The barn contained bird
droppings, decaying organic matter, wood, grass clippings, and commercial fertilizer.
Mr. Fouse swept out the barn after they removed the equipment. This stirred up a large
quantity of dust, which Mr. Foust breathed.

        Mr. Foust began feeling pain in his chest and having flu-like symptoms two to
three days after working in the barn. He left work early the next Tuesday because he felt
ill and went to the doctor on Wednesday. The doctor initially diagnosed a muscle pull in

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his chest. When he did not improve, Mr. Fouse went to an orthopedist. Mr. Fouse
developed a cough and began having trouble sleeping. He was admitted to the hospital
on June 7, 2015, one week after working in the barn, and remained in the hospital for
surgery and treatment until June 25, 2015.

        Records from St. Thomas Physician Services show that Mr. Fouse was diagnosed
with pulmonary histoplasmosis, sepsis, and mediastinal necrotic mass that required a
right-lung lobectomy on June 15, 2015. (Ex. 2.)

     Mr. Fouse submitted two letters from his physicians. The first, from Dr. Ward
Houck, states:

       Mr. Fouse was apparently working for the City of Murfreesboro where he
       cleaned out a barn. He was exposed to a large amount of dust and airborne
       debris. Within seventy-two hours he began to experience symptoms of
       fever and myalgia, progressing in severity until he presented with severe
       shortness of breath and pleurisy. He was found to have a dense right lower
       lobe pneumonia and mediastinal cystic mass in the subcarinal area. I was
       consulted at that time, and following my evaluation proceeded to the
       operating room for a right thorascopic drainage of his abscess, both for
       diagnostic and therapeutic purposes. He remained hospitalized for another
       week and has had ongoing treatment for what was proven to be a fulminant
       infection of Histoplasmosis. There is no doubt that this was caused by his
       occupational exposure.

(Ex. 5.)

       The second letter, from Dr. Randal Rickard, states:

       This infection with Histoplasmosis was very likely to have been acquired in
       the course of his employment. In specific, an exposure to a dusty
       environment open to infestation with birds and their droppings was the
       likely source. He describes working in a barn of this description just prior
       to the onset of the illness.

(Ex. 4.)

       Mr. Fouse filed a Petition for Benefit Determination seeking medical and
temporary disability benefits. The parties did not resolve the disputed issues through
mediation, and the Mediating Specialist filed a Dispute Certification Notice. Mr. Fouse
filed a Request for Expedited Hearing, and this Court heard the matter on December 1,
2015. At the Expedited Hearing, Mr. Fouse asserted he is entitled to reimbursement for
his medical expenses, continuing medical treatment, and temporary disability benefits.

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       During the hearing, counsel for the City stipulated to the accuracy of Mr. Fouse’s
description of his work in the barn on May 30, 2015, the diagnosis of histoplasmosis, and
the dates set out in Mr. Fouse’s affidavit as the time he missed work as a result of his
symptoms and medical treatment. The City argued, however, that histoplasmosis is
ubiquitous in this area, and that Mr. Fouse failed to present sufficient evidence that on-
the-job exposure was the primary cause of this case of histoplasmosis, rather than
general, non-work exposure.

                              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);1 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). At an expedited hearing, an employee need
not prove every element of his or her claim by a preponderance of the evidence, but must
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 consistent with Tennessee Code
Annotated section 50-6-239(d)(1) (2014). McCord v. Advantage Human Resourcing, No.
2014-06-0063, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *9 (Tenn. Workers’ Comp.
App. Bd. Mar. 27, 2015). 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).

       To be compensable under the workers’ compensation statutes, an injury (which
includes an occupational disease) must arise primarily out of and occur in the course and
scope of the employment. Tenn. Code Ann. § 50-6-102(13) (2014). Injury is defined as
“an injury by accident . . . arising primarily out of and in the course and scope of
employment, that causes death, disablement or the need for medical treatment of the
employee.” Id. For an injury to be accidental, it must be “caused by a specific incident,

1
 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).

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or set of incidents, arising primarily out of and in the course and scope of employment,
and is identifiable by time and place of occurrence.” Tenn. Code Ann. § 50-6-
102(13)(A) (2014).

        There is no dispute as to the existence of a specific incident, identifiable by time
and place of occurrence. The City stipulated to Mr. Fouse’s description of his work in
the barn on May 30, 2015, and his resulting exposure to its dust. The issue to be resolved
is whether his histoplasmosis arose primarily arose from that exposure. “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) (2014).

      Mr. Fouse submitted two medical opinions regarding the cause of his illness. Both
opinions support his contention that his condition arose primarily from his work. Dr.
Houck’s opinion was particularly emphatic. He stated, “There is no doubt that this was
caused by his occupational exposure.”

        The City did not offer any conflicting medical opinions. Instead, both parties
submitted a number of treatises and articles about histoplasmosis, its causes, and its
endemic areas. The City relied on these materials to argue that Mr. Fouse was just as
likely to acquire the condition outside of work as in the course of his work. There is no
indication Mr. Fouse’s doctors were unaware of his relevant history or the information
contained in the research materials submitted by the parties. For this reason, the Court
declines to substitute the City’s causation argument for the unrebutted opinions of the
medical professionals. In the absence of any actual medical opinion to the contrary, the
Court finds Mr. Fouse appears likely to prevail at a hearing on the merits.

        Tennessee law requires an employer to provide “free of charge to the employee
such medical and surgical treatment . . . made reasonably necessary by accident as
defined in this chapter[.]” Tenn. Code Ann. § 50-6-204(a)(1)(A) (2014). Employers are
also required to provide an injured employee with a panel of physicians from which the
employee may select a treating physician. Tenn. Code Ann. § 50-6-204(a)(3)(A)(i)
(2014). The City denied Mr. Fouse’s claim from the outset and provided no medical
panel. Therefore, it was reasonable for Mr. Fouse to seek medical care on his own. In
such a case, an employer is liable for medical expenses incurred by an employee from a
doctor of that employee’s own choosing. Bond v. American Air Filter, 692 S.W.2d 638,
641 (Tenn. 1985). The Court therefore finds that the City is responsible for payment of
all reasonable and necessary medical expenses incurred by Mr. Fouse for treatment of his
histoplasmosis and designates Dr. Rickard as Mr. Fouse’s authorized treating physician.

       The Court further finds Mr. Fouse is entitled to temporary total disability benefits
for the stipulated period of disability from June 7, 2015, through July 6, 2015. The City

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submitted a wage statement showing an average weekly wage of $417.88, and Mr. Fouse
agreed with that calculation during the hearing.

IT IS, THEREFORE, ORDERED as follows:

   1. City of Murfreesboro shall pay all reasonable and necessary medical expenses
      incurred by Mr. Fouse for treatment of his histoplasmosis and provide Mr. Fouse
      with continuing medical treatment for these injuries as required by Tennessee
      Code Annotated section 50-6-204 (2014), with Dr. Rickard as the authorized
      treating physician. Medical bills shall be furnished to City of Murfreesboro by
      Mr. Fouse or the medical providers.

   2. The amount of temporary disability benefit is $278.59 per week based on Mr.
      Fouse’s average weekly wage of $417.88.

   3. Payment of past-due benefits in the amount of $1,193.57 shall be made for the
      period from June 7, 2015, through July 6, 2015.

   4. This matter is set for an Initial (Scheduling) Hearing on January 28, 2015, at 9:00
      a.m.

   5. 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 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.

   6. 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 7th day of December, 2015.


                                 _____________________________________
                                 Judge Dale Tipps
                                 Court of Workers’ Compensation Claims


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Initial (Scheduling) Hearing:

      An Initial (Scheduling) Hearing has been set with Judge Dale Tipps, Court of
Workers’ Compensation Claims. You must call 615-741-2112 or toll free at 855-
874-0473 to participate.

       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 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

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   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
   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.




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                                               APPENDIX

Exhibits:
   1. Affidavit of Benjamin Fouse
   2. Records from St. Thomas Physician Services
   3. Records from Family Practice Partners
   4. October 22, 2015 letter from Dr. Randall Rickard
   5. October 9, 2015 letter from Dr. Ward Houck
   6. Work Schedule and Timesheet records
   7. Written statements of co-workers
   8. Medical bills
   9. Photographs of work area
   10. Groundskeeper job description
   11. Sketch of work area
   12. First Report of Injury
   13. Wage Statement
   14. Notice of Denial
   15. Satelite photographs of work area
   16. October 8, 2015 handwritten letter
   17. Journal and research materials
   18. Website description of Barfield Crescent Park

Technical record:2
   1. Petition for Benefit Determination
   2. Dispute Certification Notice
   3. Request for Expedited Hearing




2
   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 Benefits was sent to the following recipients by the following methods of
service on this the _____
                     7th day of December, 2015.


Name                    Certified   Via        Via    Service sent to:
                         Mail       Fax       Email
Benjamin Fouse                                 X      Bpf2f@yahoo.com

Richard Rucker, Esq.                           X      rrucker@murfreesborotn.gov




                                      _____________________________________
                                      Penny Shrum, Clerk of Court
                                      Court of Workers’ Compensation Claims
                                      WC.CourtClerk@tn.gov




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