                                                                                                           Fll__ED
                                                                                                         May 18,2016

                                                                                                          TN COUKf O:f
                                                                                                 \l ORKIRS' COl\IPINSATION
                                                                                                              CLAIMS

                                                                                                           Time: 1:39 Pl\1

                TENNESSEE BUREAU OF WORKERS' COMPENSATION
                  COURT OF WORKERS' COMPENSATION CLAIMS
                             AT CHATTANOOGA

Bart C. Munyan,                                           )    Docket No.: 2015-01-0255
           Employee,                                      )
v.                                                        )    State File No.: 68808-2015
PCL Industrial Construction Co.,                          )
           Employer,                                      )    Judge Thomas Wyatt
And                                                       )
                                                          )
Old Republic Ins. Co.,                                    )
            Carrier.                                      )

     EXPEDITED HEARING ORDER DENYING MEDICAL AND TEMPORARY
                        DISABILITY BENEFITS


        This case came before the undersigned Workers' Compensation Judge on May 10,
2016, upon the Request for Expedited Hearing filed by the employee, Bart C. Munyan,
pursuant to Tennessee Code Annotated section 50-6-239 (2015). The hearing focused on
whether Mr. Munyan submitted sufficient evidence to establish he is likely to prevail at a
hearing on the merits that his injury arose primarily out of and in the course and scope of
employment. For the reasons set forth below, the Court finds Mr. Munyan is not entitled
to the requested medical and temporary disability benefits. 1

                                               History of Claim

       Mr. Munyan is a forty-two-year-old resident of Bradley County, Tennessee. (T.R.
1 at 1.) He alleged that, on March 21, 2015, he broke his jaw and injured his shoulder
when he lost consciousness and fell at a friend's house. On that date, Mr. Munyan
worked for PCL Industrial Construction Co. (PCL) at the construction site of the Wacker
Chemical plant in Bradley County, Tennessee. (T. R. 1 at 1; Ex. 6 at 1.) In his Petition
for Benefit Determination, Mr. Munyan described the alleged causal link between his
fall and his work at PCL as follows: "Due to illegal, unsanitary, and disrespectful (sic)
1
  A complete listing of the technical record and exhibits admitted at the Expedited Hearing is attached to this Order
as an appendix.


                                                          1
work conditions, i (sic) suffered extreme dehydration, a smus infection, and an ear
infection that resulted in a fall and broken jawbone." Id.

       PCL hired Mr. Munyan on February 9, 2015. (Ex. 4.) PCL's pay records
indicated Mr. Munyan worked between forty-seven to sixty hours per week during each
of the six weeks he worked for PCL before the date of the alleged injury. (Ex. 5.) Mr.
Munyan testified the number of hours dedicated to the job exceeded the paid hours in
PCL's records by two to four hours per day because of the time spent in traffic jams
created by several hundred PCL employees arriving for and leaving work at the same
time.

        In the affidavit he filed with his Request for Expedited Hearing, Mr. Munyan
listed the following factors that allegedly connected his work at PCL to the illnesses that
he claims caused him to lose consciousness and fall:

          1. PCL transported him and other co-employees to and from the job site in
             school buses designed for children. This required him to sit in an
             environment with insufficient fresh air while exposed to the coughs and
             sneezes of co-employees. (Ex. 1 at 2;)

          2. PCL required all employees to touch a hand scanner to enter the job site.
             PCL did not provide a station for employees to wash their hands before
             using the hand scanner and did not sanitize the scanner after each employee
             used it. !d.

          3. The traffic jams that occurred while arrtvmg and leaving the worksite
             caused stress and exhaustion. Id.

          4. PCL would not allow employees to bring their own water to the worksite
             and, if it provided water at all, provided it in dirty kegs. !d. at 3;

          5. Earlier quring the week prior to the date Mr. Munyan fell, he worked with a
             sick employee. The foreman sent the employee to sick call and Mr.
             Munyan did not see him again. Id. at 4.

          6. PCL did not let Mr. Munyan go to sick call to determine if working closely
             to the sick employee infected him. Id.

Mr. Munyan testified consistently with the above allegations during the Expedited
Hearing.

       Mr. Munyan fell on Saturday, March 21, 2015. (Ex. 1 at 1.) According to records
introduced by PCL, Mr. Munyan worked all five work days between March 16 and

                                            2
    March 20. (Ex. 8 at 34-38.) Mr. Munyan signed Post Task Review documents at the end
    of each shift he worked between March 16 and March 20. /d. On each document, he
    acknowledged by signature that no injury or unplanned incident occurred on the day in
    question. /d. Mr. Munyan testified he signed the documents because PCL would have
    fired him had he refused. Irrespective of what his signature on the Post Task Review
    documents might indicate, Mr. Munyan testified he orally communicated to his foreman
    his concerns about the unhealthy conditions on the worksite.

        Mr. Munyan testified he felt ill the entire day of March 21, 2015. He believed the
illness related to his long hours of work in unhealthy conditions at PCL. He stated he
went to a friend's house to watch a movie, but continued to feel ill while there. He stated
he tried a couple of sips of beer, but felt so bad he did not consume even one beer. Mr.
Munyan stated he stood at his friend's house, lost consciousness and fell onto his face
breaking his jaw and sustaining a bump on his head.

        Mr. Munyan testified he sought medical care at the emergency department of
Skyridge Medical Center in Cleveland, Tennessee following the fall. The Skyridge
records 2 indicate Mr. Munyan arrived at 9:42 a.m. on March 22, 2015, complaining of
facial swelling that occurred in a fall on March 21, 20 15. (Ex. 2 at 7.) The records
indicate Mr. Munyan gave a history of falling "at home" and that he described a syncopal
episode lasting three seconds as the reason he fell. /d. at 10. A CT Scan of the
maxillofacial region revealed Mr. Munyan had sinusitis and suffered "an acute fracture
dislocation of the left temporal mandibular joint." /d. at 3. The records do not document
that Mr. Munyan gave a history that conditions at work caused his illness or contributed
to his fall. 3

       On March 27, 2015, Mr. Munyan e-mailed Rosie Cortazar at PCL complaining
about his termination "due to medical reasons." (Ex. 3.) Mr. Munyan began the e-mail
by stating "I had an accident offsite and had to go to several medical appointments and
had surgery." /d. PCL's HR Manager at the Wacker site testified by affidavit that Mr.
Munyan's e-mail to Ms. Cortazar was the only notice PCL received regarding the reason
he did not report to work after March 20, 2015. (Ex. 9 at 2.)



2
  PCL's counsel objected to Mr. Munyan's introduction of the Skyridge records. Counsel acknowledged that
Tennessee Compilation Rules and Regulations 0800-02-21-.16(6)(b) (2015) allows the Court to admit medical
records bearing the signature of a physician, but objected that several of the pages encompassed in the Skyridge
records did not bear a physician's signature. The Court overruled the objection and admitted the records into
evidence because a sufficient number of the pages of the records contained physician signatures to give the Court
confidence the records accurately described the treatment Mr. Munyan received at Skyridge Medical Center on
March 22, 2015.
3
  Mr. Munyan testified he eventually had his jaw wired shut at a Veteran's Administration facility. He testified the
injury rendered him unable to work for a period of time.

                                                         3
                        Findings of Fact and Conclusions of Law

        The Court applies the following general legal principles in determining the issues
in this Expedited Hearing. Mr. Munyan bears the burden of proof on all essential
elements of his 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).
He need not, however, 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). Rather, he has the burden to come
forward with sufficient evidence from which the Court can determine that he is likely to
prevail at a hearing on the merits in establishing that his injury arose primarily out of and
in the course and scope of his employment. Id. This lesser evidentiary standard does not
relieve Mr. Munyan of the burden of producing evidence of a compensable injury, but
allows the Court to grant some relief if that evidence does not rise to the level of a
preponderance ofthe 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).

       Tennessee Code Annotated section 50-6-102(14) (2015) defines a compensable
injury under the Workers' Compensation Law as "an injury by accident." Tenn. Code
Ann. § 50-6-102(14) (2015). Subsection (A) of section 50-6-102(14) defines an
"accidental" injury as one "caused by a specific incident or set of incidents arising
primarily out of and in the course and scope of employment, and . . . identifiable by time
and place of occurrence". Subsections (B) and (C) of section 50-6-102(14) require that
the alleged work injury and any disablement or treatment necessitated thereby "[arise]
primarily out of and in the course and scope of employment" and that the "employment
[contribute] more than fifty percent (50%) in causing the [alleged injury], considering all
causes." Finally, the above-cited statute mandates that the definitional requirements of a
compensable injury "be shown to a reasonable degree of medical certainty." Tenn. Code
Ann. § 50-6-102(14)(A),(C) (2015).

       In Willis v. All Staff, No. 2014-05-0005, TN Wrk. Comp. App. Bd. LEXIS 42, at
*27-8 (Tenn. Workers' Comp. App. Bd. Nov. 9, 2015), the Workers' Compensation
Appeals Board held the statutory language cited above requires an employee to establish,
by medical expert proof, a causative link between an alleged injury and the employee's
work. See also Sirkin v. Trans Carriers, Inc., No. 2015-08-0292, 2016 TN Work. Comp.
App. Bd. LEXIS 22, at *7-8 (Tenn. Work. Comp. App. Bd. May 9, 2016) (vacating a
finding of causation made in the absence of a supporting medical expert opinion); and
Cullum v. K-Mac Holding Corp. d/b/a Taco Bell, No. 2014-07-0006, 2014 TN Wrk.
Comp. App. Bd. LEXIS 7, at *12 (Tenn. Workers' Comp. App. Bd. December 23, 2014)
(holding the mere recordation in a medical record that a patient described an on-the-job

                                             4
InJUry is insufficient to prove work-relatedness when the record does not contain a
specific expert medical opinion causally linking the described work incident to the injury
the patient sustained.)

       The law clearly places the burden on Mr. Munyan to prove, by expert medical
proof, that he sustained disability and the need for medical care due to his alleged work-
related injury. He did not do so. The only medical records Mr. Munyan introduced in
support of his claim were those documenting emergency treatment he received from
Skyridge Medical Center the day after he fell at a friend's house. These records do not
record that Mr. Munyan claimed his fall occurred due to adverse and unhealthy work
conditions. The records do not provide a hint of a medical expert opinion supporting a
causal relationship between the off-work fall and the conditions of his work at PCL.
Accordingly, the Court finds Mr. Munyan did not establish that, at a hearing on the
merits, he would likely prevail in showing that his fall arose primarily out of and in the
course and scope of employment. 4 The Court therefore denies, at this time, Mr.
Munyan's request for an interlocutory award of medical and temporary disability
benefits.

            IT IS, THEREFORE, ORDERED as follows:

       1. Mr. Munyan's request for an interlocutory order of medical and temporary
          disability benefits is at this time denied.

       2. This matter is set for an Initial (Scheduling) Hearing on July 20, 2016, at 9:00 a.m.
          Eastern Time. The parties shall call in to 855-747-1721 (toll-free) or 615-741-
          3061 to participate.

           ENTERED this the 18th day of


                                               Thomas Wyatt, J ud
                                               Court of Workers' Compensation Claims

Initial (Scheduling) Hearing:

      An Initial (Scheduling) Hearing has been set with Judge Thomas Wyatt, Court
of Workers' Compensation Claims. You must call 855-747-1721 (toll-free) or 615-
741-3061 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

4
    This decision makes it unnecessary for the Court to decide PCL's lack of timely notice defense.

                                                            5
your further participation.


Right to Appeal:

       Tennessee Law allows any party who disagrees with this Expedited Hearing Order
Denying 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 lndigency 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

                                            6
         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.

                                               APPENDIX

Exhibits:

1.   Affidavit of Bart C. Munyan;
2.   Medical records from Tennova Healthcare-Cleveland/Skyridge Medical Center;
3.   March 27, 2015 e-mail from Bart Munyan to Rosie Cortazar;
4.   First Report of Injury;
5.   Wage Statement with attached pay records;
6.   Job Description;
7.   Project Work Rules and Acknowledgement signed by Bart Munyan;
8.   Affidavit of Linda Oates, with attachments; and
9.   Affidavit of Billy Guthrie, with attachment.


Technical record: 5

1.   Petition for Benefit Determination, filed August 31, 2015;
2.   Dispute Certification Notice, filed October 9, 2015 ;
3.   Response of Mr. Munyan to Dispute Certification Notice, filed October 9, 2015;
4.   Position Statement ofEmployer, filed October 9, 2015;
5.   Show Cause Order, filed February 11, 2016;
6.   Request for Expedited Hearing, filed March 23, 2016; and

5
   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.




                                                      7
7. Order Scheduling In-Person Expedited Hearing, filed April4, 2016.




                           CERTIFICATE OF SERVICE

       I hereby certify that a true and correct copy of the Expedited Hearing Order
Denying Medical and Temporary Benefits was sent to the following recipients by the
following methods of service on this the 18th day of May, 2016.


Name                    Certified    Via        Via    Service sent to:
                         Mail        Fax       Email
Bart Munyan, self-                               X     munyanb@yahoo.com;
represented
Ford Little, Attorney                           X      flittle@wmbac.com
For Employer




                                       Penny Sh · m, Clerk of Court
                                       Court of orkers' Compensation Claims
                                       WC.CourtClerk@tn.gov




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