                                                                                                             F~ED

                                                                                                         August 10, 2016

                                                                                                          TN COURT OF
                                                                                                     WORKERS' CO!\IP.E SATION
                                                                                                            CLAIMS

                                                                                                             Time 7:15AM



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

LANDON FOWLER,                                            )    Docket No.: 2016-08-0212
        Employee,                                         )
                                                          )
v.                                                        )
MUELLER INDUSTRIES,                                       )    State File No. 8325-2016
         Employer,                                        )
                                                          )
and                                                       )
SEDGWICK CMS,                                             )    Judge Allen Phillips
        Insurance Carrier.                                )


     EXPEDITED HEARING ORDER DENYING MEDICAL AND TEMPORARY
                            BENEFITS


        This matter came before the undersigned Workers' Compensation Judge on July
14, 2016, upon the Request for Expedited Hearing filed by Landon Fowler pursuant to
Tennessee Code Annotated section 50-6-239 (2015). Mr. Fowler requests medical and
temporary disability benefits for an alleged exposure injury. Mueller asserts that he failed
to established causation of his alleged injury, that he failed to provide proper notice of his
injury, and that he failed to file his claim within the applicable statute of limitations. The
Court finds the dispositive issue is causation and, for the reasons set forth below, holds
Mr. Fowler has not come forward with sufficient evidence of causation for this Court to
determine he would likely succeed at a hearing on the merits. 1 Accordingly, the Court
denies his request for benefits. 2

                                              History of Claim

         Mr. Fowler is a sixty-seven-year-old resident of Tipton County, Tennessee, who

1
  The notice and statute of limitations issues need not be addressed.
2
  The Court has attached a complete listing of the technical record and exhibits admitted at the Expedited Hearing to
this Order as an appendix.
    operated the "chroming machine" at Mueller. The chroming machine features a part
    known as the "squirrel cage," a structure containing a blower that vents fumes away from
    the operator. A malfunction of the squirrel cage forms the basis of Mr. Fowler's case.

       Mr. Fowler offered different versions of when the onset of symptoms began. He
alleged by affidavit that: "On or about June 1, 2014/ I began suffering breathing
problems, constant shaking, vertigo, stomach ulcers and stomach polyps due to inhaling
reverse exhaust on a chroming machine at Muller [sic] Industries while performing the
requirements of my job as a polish/chrome operator." (Ex. 4.) At the hearing, he testified
he began having stomach issues in the "middle of spring of last year," referring to 20 15.
(Emphasis added.) Regardless of the date of onset, Mr. Fowler testified he never suffered
any of his alleged health problems prior to the alleged work exposure.

       Mr. Fowler testified he continued operating the chroming machine until December
8, 2015, when he began "shaking," having leg cramps, and feeling ''terrible." He reported
these symptoms to his supervisor and sought medical evaluation from Dr. Samuel
Johnson, his personal physician. According to Mr. Fowler, Dr. Johnson diagnosed
"sepsis" in his right leg and breathing difficulties. Dr. Johnson hospitalized Mr. Fowler
for one week but did not provide Mr. Fowler an opinion regarding the cause of his
ailments. Mr. Fowler offered all of Dr. Johnson's notes from July 2014 through March
2016. (Ex. 7.)

        Ms. Crystal Buckner, Mueller's Human Resources Manager, testified Mr. Fowler
reported feeling ill on December 8, 2015. She assisted Mr. Fowler with the completion of
a short-term disability (STD) application that listed his health conditions as "CVA,
sepsis, and dehydration." (Ex. 11.) On the medical STD certification, Dr. Johnson marked
that the conditions were not work-related. !d. Mr. Fowler testified he drew STD until "the
end of January 2016," when he returned to work; Ms. Buckner clarified Mr. Fowler
actually drew benefits until he returned to work on February 2. On that date, Mr. Fowler
told Ms. Buckner he related his illnesses to chroming machine exhaust. She reported the
claim to Mueller's workers' compensation carrier, who completed a First Report of
Injury. (Ex. 1.)

       Prior to February 2, Ms. Buckner became aware Mr. Fowler suspected possible
exposure. Mr. Fowler's suspicion stemmed from comments he heard while attending a
Christmas party at Mueller in December 2015, and shortly after his release from the
hospital. Namely, Mr. Billy Bishop, a maintenance person at Mueller, told Mr. Fowler
that another employee improperly wired the squirrel cage in July 2014, causing the
blower not to vent air in any direction. Mr. Bishop testified by affidavit he personally
repaired the machine in November 2015. Ms. Buckner admitted Mueller became aware of

3
 At the hearing, Mr. Fowler testified the date he noticed symptoms was approximately July 1, 2014, rather than June
I, 2014. This technicality is not dispositive to the outcome.

                                                        2
    the malfunction when Mr. Bishop brought it to her attention.

           Mr. Bishop further testified that the "improper setup caused the chroming machine
    to release reverse exhaust into the air." (Ex. 5.) Also, Mr. Bishop stated he "believ[ed]
    Mr. Fowler inhaled reverse exhaust from the chroming machine for a long period of
    time." !d.

       Because of Mr. Fowler's exposure suspicions, Ms. Buckner retained an industrial
hygienist to perform testing of the air quality near the chroming machine. (Ex. 13.)
Nothing in this report caused Ms. Buckner, on behalf of Mueller, to take further action
regarding the chroming machine. Also, Ms. Buckner confirmed Mueller participated in a
voluntary TOSHA program involving routine inspections and, she was aware of no issues
with the chroming machine raised by such inspections. She knew of no other employees
suffering ill effects from any exposure.

        Mr. Fowler worked from February 2 until May, when he again began "feeling
bad" and sought further care from Dr. Johnson. He did not elaborate further regarding his
condition but, testified he was admitted to the hospital for overnight observation. He
testified he told Dr. Johnson of his alleged exposures to chrome exhaust and that Dr.
Johnson told him he "didn't know" of any relation between such alleged exposure and his
health conditions. A "Medical Request Form" for STD completed by Dr. Johnson on
June 20 listed the diagnoses as "1) CVA; 2) HTN; 3) GERD and 4) Cardiomyopathy."
(Ex. 9.) Dr. Johnson checked "No" beside the question "Is this condition work-related?"
!d.

       Because of his continued problems, Mr. Fowler sought further care from a Dr.
Zaidi, a pulmonologist. 4 He told Dr. Zaidi he suffered from shortness of breath and that
he had been exposed to fumes at work. As of the hearing, he had seen Dr. Zaidi on three
occasions and had undergone a chest x-ray and "some more tests." According to Mr.
Fowler, Dr. Zaidi made no diagnosis but told him that, if he were to stay away from
"chemicals" for six months, that "he should have no problems." On cross-examination,
Mr. Fowler admitted he had no medical record stating his conditions were work-related.

        Mr. Fowler requested medical evaluation for his alleged exposure, specifically
requesting a panel of physicians. However, he preferred Dr. Zaidi be designated the
authorized treating physician. Further, he claimed entitlement to temporary total
disability for the period of December 8, 2015, through "January 2016," and for a second
period of"May 2016," onward.

4
 Mr. Fowler offered Dr. Zaidi's records, but Mueller objected on grounds the records were not submitted ten days
prior to the Expedited Hearing. Mr. Fowler argued he received the records fewer than ten days previous. The Court
advised Mr. Fowler it would exclude the records pursuant to Tennessee Compilation Rules & Regulations 0800-02-
21-.16(6)(a) and Rule 7.0l(A) of the Practices and Procedures of this Court because the records were not filed
within ten days of the hearing. Mr. Fowler elected to proceed.

                                                       3
           Mueller argued Mr. Fowler had not shown an exposure to any harmful substance. 5
    However, even if he had, Mr. Fowler produced no medical evidence establishing a causal
    relationship between his ailments and his employment at Mueller.

                              Findings of Fact and Conclusions of Law

                                              Standard Applied

       At this Expedited Hearing, Mr. Fowler need not prove every element of his claim
by a preponderance of the evidence in order to obtain relief. 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). Instead, he must come forward
with sufficient evidence from which this Court might determine he is likely to prevail at a
hearing on the merits. !d.; Tenn. Code Ann. § 50-6-239(d)(1) (20 15).

                                                   Causation

        Mr. Fowler must establish an injury by accident arising primarily out of and in the
course and scope of employment that causes disablement or the need for medical
treatment. Tenn. Code Ann. § 50-6-102(14) (2015). The injury must be caused by a
"specific incident or set of incidents identifiable by time and place of occurrence." Tenn.
Code Ann. § 50-6-102(14)(A) (2015).

      As our Appeals Board explained in Smiley v. Four Seasons Coach Leasing, Inc.,
Nos. 2016-06-0104 and 2016-06-0105, 2016 TN Wrk. Comp. App Bd. LEXIS 28 (Tenn.
Workers' Comp. App. Bd. July 15, 2016):

          A "set of incidents," by definition, cannot occur instantaneously, but must
          occur over some period of time. Thus, to establish a compensable injury by
          accident, an employee need not prove a single, sudden event accompanied
          by the immediate onset of pain or other symptoms, but can meet his . . .
          burden at an expedited hearing by presenting evidence from which the trial
          court can determine he ... is likely to prove a compensable set of incidents
          over an identifiable period of time.

!d. at 22. Thus, Mr. Fowler might establish a compensable injury if he presents evidence
his conditions arose primarily from exposure to chroming machine exhaust over an
identifiable period. Based upon the evidence presented, the Court holds he has not met

5
  Mueller moved for a "directed verdict" at the close of Mr. Fowler's proof. The Court considered the motion as one
for involuntary dismissal pursuant to Tennessee Rule of Civil Procedure 41.02(2). The Court overruled the motion at
that time and took the matter under advisement. The result within this Order renders a determination on the motion
unnecessary.

                                                        4
his burden at this Expedited Hearing stage of the proceedings.

       Mr. Fowler has produced no medical evidence that his condition is related to an
alleged exposure to chroming machine exhaust at Mueller. Such failure is fatal to his
claim. The Workers' Compensation Law requires a showing that an injury contributed
more than fifty percent in causing the disablement or need for medical treatment,
considering all causes. Tenn. Code Ann. § 50-6-102(14)(C) (2015). This showing must
be to a reasonable degree of medical certainty, which means, "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(13)(D) (2014). Here, Dr. Johnson checked a
box on the STD form stating that the conditions at issue did not arise out of the
employment. A careful review of Dr. Johnson's records reveals largely illegible,
handwritten notes but, from those, the Court can find no mention of any work-relation.
This is confirmed by Mr. Fowler's own testimony that Dr. Johnson did not discuss with
him the cause of his conditions. Further, Mr. Fowler conceded he has no medical record
from any physician that attributes any of his conditions to his alleged work exposures.

        In support of his position, Mr. Fowler cites Reeser v. Yellow Freight Sys., Inc.,
938 S.W.2d 690, 692 (Tenn. 1997), for the proposition that the ''causation requirement is
satisfied if the injury has a rational, causal connection to the work" and that "any
reasonable doubt in this regard is to be construed in [his] favor." He asserts his case is
"not a novel issue," and medical proof that his injury "could be" related to his work at
Mueller is sufficient when coupled with his lay testimony from which it may be inferred
his work is the cause of his injury. (T.R. 5 at 1.)

        In making these arguments, Mr. Fowler relies upon authority inapplicable to
injuries occurring on or after July 1, 2014. Namely, this Court is not to construe the law
remedially in Mr. Fowler's favor but, rather must construe it fairly and impartially,
favoring neither he nor Mueller. Tenn. Code Ann. § 50-6-116 (2015). Further, the
applicable causation standard is the arising primarily definition of injury cited above.
However, the Court notes that, even under the prior standard, medical proof purportedly
linking an injury to the employee's work could "not be speculative or so uncertain
regarding the cause of the injury that attributing it to the plaintiffs employment would be
an arbitrary determination or a mere possibility." Tindall v. Waring Park Ass 'n, 725
S.W.2d 935, 937 (Tenn. 1987). In this case, Mr. Fowler has yet to produce any medical
proof establishing causation.

       Given the absence of causation evidence, the Court need not address Mr. Fowler's
claims for medical and temporary benefits.

IT IS, THEREFORE, ORDERED as follows:

1. Mr. Fowler's claim against Mueller for medical and temporary disability benefits is

                                             5
   denied at this time.

2. This matter is set for a Status Hearing on October 19, 2016, at 9:30 a.m. Central
   Time.

ENTERED this the lOth day of August, 2016.




                                  Judge Allen P allips
                                  Court of Workers' Com pens

Status Hearing:

       A Status Hearing has been set with Judge Allen Phillips, Court of Workers'
Compensation Claims. You must call 731-422-5263 or toll-free at 855-543-5038 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:

   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

                                            6
   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
   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.




                                         7
                                               APPENDIX

Exhibits:
   1. First Report of Work Injury;
   2. Wage Statement;
   3. Chrome Operator Job Description;
   4. Affidavit of Landon Fowler;
   5. Affidavit of Billy Bishop;
   6. Affidavit of Crystal Buckner;
   7. Medical Records ofDr. Samuel Johnson;
   8. Statement of Landon Fowler from Human Resources file;
   9. "Medical Request Form" for Short Term Disability Application;
   10. Statement ofBilly Bishop from Human Resources file;
   11. "Proof of Loss" for Short Term Disability Application;
   12. Summary of Short Term Disability payments and salary of Landon Fowler from
      December 13, 2015, through February 21, 2016; and
   13. "Industrial Hygiene Exposure Assessment Report," dated January 28, 2016.

Technical record:
   1. Petition for Benefit Determination;
   2. Dispute Certification Notice;
   3. Request for Expedited Hearing with attached affidavit of Mr. Fowler;
   4. Employer/Carrier Pre-Expedited Hearing Brief; and
   5. Position Statement of Mr. Fowler. 6




6
   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.


                                                      8
                            CERTIFICATE OF SERVICE

       I hereby certify that a true and correct copy of the Expedited Hearing Order was
sent to the following recipients by the following methods of service on this the 1oth day
of August, 2016.

Name                        Certified Via       Via     Service sent to:
                            Mail      Fax       Email
William A. Wooten, Esq.
Employee's Counsel                                X      wawooten(a),gmail.com
Kevin Washburn, Esq.
Employer's Counsel                                X     kwashbum@allensummers.com




                                                    , Clerk of Court
                                                 orkers' Compensation Claims
                                        WC.Cou rtCierk@tn .gov




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