                                                                                                                FILED
                                                                                                             August 12, 2016

                                                                                                             TN COURT OF
                                                                                                        W ORKERS ' CO!\JPENSATION
                                                                                                                CLAIMS

                                                                                                                Time Hl:03 AM


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

JOHNNY MULLINS,                                             )   Docket No.: 2016-03-0450
          Employee,                                         )
v.                                                         )    State File No.: 25940-2016
CONSOLIDATED NUCLEAR                                       )
SECURITY, LLC,                                             )    Judge Pamela B. Johnson
          Employer,                                        )
And                                                        )
AIG INSURANCE COMPANY,                                     )
         Carrier.                                          )


         EXPEDITED HEARING ORDER GRANTING MEDICAL BENEFITS
                           (File Review Only)


        This matter came before the undersigned Workers' Compensation Judge on the
Request for Expedited Hearing (REH) filed by the Employee, Johnny Mullins, pursuant
to Tennessee Code Annotated section 50-6-239 (2015). Mr. Mullins requested that this
Court issue a ruling on his REH based on a review of the documents in the file, pursuant
to Rule 0800-02-21-.14(l)(c) (June, 2015) of the Tennessee Compilation Rules and
Regulations. The Employer, Consolidated Nuclear Security, LLC (CNS), and its carrier,
AIG Insurance Company, voiced no objection. On July 25, 2016, the Court sent a
Docketing Notice to the parties regarding the contents of the record and gave the parties
until August 3, 2016, to voice any objection to the documents contained in the record
and/or file a position statement. Neither party raised any objection to the documents
contained in the record nor filed a position statement. Considering the positions of the
parties, the applicable law, and all of the evidence submitted, the Court concludes it
needs no further information to render judgment.

        The central legal issue is whether Mr. Mullins is entitled to medical benefits for
his alleged work-related bilateral hearing loss. 1 (T.R. 1.) For the reasons set forth below,
the Court finds that Mr. Mullins presented sufficient evidence to demonstrate he is likely
1
  A complete listing of the technical record and exhibits admitted at the Expedited Hearing is attached to this Order
as an appendix.

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to prevail at a hearing on the merits. Accordingly, his request for medical benefits is
granted at this time.

                                               History of Claim

       Upon review of the record, the Court notes that Mr. Mullins is a fifty-six-year-old
resident of Roane County, Tennessee, who worked for CNS as a chemical operator. In
his Petition for Benefit Determination (PBD) filed May 9, 2016, Mr. Mullins alleged he
suffered "gradually occurring bilateral sensorineural hearing loss from exposure to
continuous loud noise and organic solvents over a lengthy period of time." (T.R. 1.) He
reported his alleged work injury to CNS, who completed an "Injury/Illness Data
Collection" form on March 24. (Ex. 1.) In the injury report, it was noted:

         Employee has expressed concerns over health issues that are possibly
         related to the long term exposure to a solvent or combination of solvents
         that are used in the facility. The seals on the storage tanks are leaking, and
         have been leaking for 8-10 years. At that time, there was not a respiratory
         protection requirement for working on routine task in the pressure vessel
         area. Recently, Industrial Hygiene acquired a new piece of instrumentation
         that provides direct readings. Industrial Hygiene was monitoring in the
         pressure vessel area twice a day. As of 3/22/16, Industrial Hygiene is not
         required to monitor because the levels have increased to the point where the
         entire pressure vessel area is a respirator area. A new style of seal was
         installed 2-3 weeks ago to try to repair the leak. The new seals did not
         work and the old style seals were put back in place to keep the facility
         running and schedules maintained.

!d.

       After filing the PBD, CNS provided Mr. Mullins with a panel of physicians and he
selected Dr. Richard Schultz on May 30, 2016. (T.R. 3-4; Ex. 2.) CNS previously
provided Mr. Mullins with a panel of physicians following an all ged January 6, 2015
hearing loss claim, an l be ele ted and tr at d with Dr. Mark Overhol1. 2 !d. Following
Mr. Mullins's selection of Dr. Schultz from the May 2016 panel, CNS's carrier denied
the selection and notified Mr. Mullins that he was required to treat with Dr. Overholt. !d.

         Mr. Mullins seeks an order allowing him to treat with Dr. Schultz for his alleged

2
  CNS filed with the Mediation Specialist the purported records of Dr. Overholt with an August I 0, 2015 date of
service. (Ex. 3 .) The medical records do not contain the signature of the treating physician or a medical
certification as required by Rule 0800-02-21-.16(6)(b) (June, 20 15) of the Tennessee Compilation Rules and
Regulations. However, Mr. Mullins did not object to the inclusion of the medical records. Despite no objection
raised, this Court finds that the medical records-with a date of service predating the alleged March 2016 hearing loss
claim- do not assist the trier of fact on the issue before it.

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    March 20 16 hearing loss claim and further seeks assessment of penalties against CNS for
    its refusal to accept Mr. Mullins's selection of Dr. Schultz as the authorized treating
    physician. 3

                              Findings of Fact and Conclusions of Law

           The Court now turns to the legal principles it must apply to grant or deny Mr.
    Mullins the medical benefits he requests. Mr. Mullins need not prove every element of
    his claim by a preponderance of the evidence in order to recover medical benefits 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). 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 in proving entitlement to
    medical treatment. Jd.; Tenn. Code Ann. § 50-6-239(d)(l) (2015).

       This lesser evidentiary standard does not relieve Mr. Mullins 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). In analyzing whether
he met his burden, the Court will not remedially or liberally construe the law in his favor,
but instead shall construe the law fairly, impartially, and in accordance with basic
principles of statutory construction favoring neither Mr. Mullins nor CNS or its carrier.
See Tenn. Code Ann. § 50-6-116 (20 15).

       The term "injury" is defined as "an InJury by accident, or cumulative trauma
conditions including hearing loss, ... 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." McCaffery v. Cardinal Logistics, No. 2015-08-0218, 2015 TN Wrk. Comp.
App. Bd. LEXIS 50, at *8-9 (Tenn. Workers' Comp. App. Bd. Dec. 10, 2015) (emphasis
added); see also Tenn. Code Ann.§ 50-6-102(14) (2015). For an injury to be accidental,
it must be "caused by a specific incident, 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." Jd.; see also Tenn. Code Ann.§ 50-6-102(14)(A) (2015).

       In the present case, Mr. Mullins alleged in his PBD that he suffered "gradually
occurring bilateral sensorineural hearing loss from exposure to continuous loud noise and

3
 In support ofthe REH, Mr. Mullins's attorney filed an affidavit. (T.R. 10-11.) CNS did not object to the affidavit
of Mr. Mullins's counsel. While the attorney's affidavit technically complies with Rule 0800-02-21-.14( I)(a) (June,
20 15) of the Tennessee Compilation Rules and Regulations, this Court finds the affidavit of an attorney to be of no
value as the attorney derived his knowledge of the facts asserted from his client. This Court finds that the best
evidence of the facts asserted are best introduced through an employee, not his/her attorney.

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organic solvents over a lengthy period of time." (T.R. 1.) In the March 24, 2016 injury
report, Mr. Mullins more specifically noted in part:

       Employee has expressed concerns over health issues that are possibly
       related to the long term exposure to a solvent or combination of solvents
       that are used in the facility. The seals on the storage tanks are leaking, and
       have been leaking for 8-10 years.

(Ex. 1.) As such, this Court finds Mr. Mullins detailed "a specific incident, or set of
incidents ... identifiable by time and place of occurrence."

        As a result of the above finding, this Court must now determine whether Mr.
Mullins is entitled to medical benefits for his alleged March 24, 2016 work-related
bilateral hearing loss. The Workers' Compensation Law requires employers to furnish,
free of charge to the injured employee, medical treatment made reasonably necessary by
the work-related accident. See Tenn. Code Ann. § 50-6-204(a)(l)(A) (2015). The law
further states that, where an employee suffers an injury and expresses a need for medical
care, "the employer shall designate a group of three (3) or more independent reputable
physicians ... from which the injured employee shall select one (1) to be the treating
physician." Tenn. Code Ann.§ 50-6-204(a)(3)(A)(i) (2015).

       Here, CNS provided Mr. Mullins with a panel of physicians and he selected Dr.
Richard Schultz on May 30, 2016. (T.R. 3-4; Ex. 2.) Following Mr. Mullins's selection
of Dr. Schultz from the May 2016 panel, CNS's carrier denied the selection and notified
Mr. Mullins that he was required to treat with Dr. Overholt, whom he previously selected
from a January 2015 panel for a prior alleged date of injury. !d.

       As cited above, the Workers' Compensation Law requires an employer to provide
a panel to an injured employee upon notification of a work injury. The employer may not
choose to avoid the statutory panel provision by authorizing treatment with a physician
selected by the injured employee in a prior workers' compensation claim. Therefore, as a
matter of law, this Court finds that Mr. Mullins demonstrated that he is likely to prevail at
a hearing on the merits on the issue of entitlement to medical benefits, and holds that he
is entitled to medical benefits at this time. Accordingly, CNS shall authorize an
appointment with Dr. Schultz, who shall be the authorized treating physician for the
March 24, 2016 hearing loss claim.

IT IS, THEREFORE, ORDERED as follows:

   1. Medical care for Mr. Mullins's March 24, 2016 hearing loss claim shall be paid by
      CNS or its carrier, AIG, as required by Tennessee Code Annotated section 50-6-
      204 (20 15), to be initiated by CNS or AIG authorizing an appointment with Dr.


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       Schultz, who shall be the authorized treatment physician. Mr. Mullins or the
       medical providers shall furnish medical bills to CNS or AIG.

   2. This matter is set for an Initial (Scheduling) Hearing on October 26, 2016, at 9:00
      a.m. Eastern Time. The parties must call 865-594-009lor toll free at 855-543-
      5041 to participate in the Initial Hearing. Failure to appear by telephone may
      result in a determination of the issues without your further participation.

   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
      WC ompliance. 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 by email at WCCompliance.Program@tn.gov or by telephone at
      (615) 253-1471 or (615) 532-1309.

      ENTERED this the 12th day of August, 2016.




                                       HON. PAMELA B. JOHNSON
                                       Workers' Compensation Judge

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.



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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
   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

Technical Record:
      • Petition for Benefit Determination, filed May 9, 2016;
      • Employee's Objection to Dispute Certification Notice, filed June 9, 2016;
      • Dispute Certification Notice, filed June 17, 2016;
      • Request for Expedited Hearing, filed July 5, 20 16; and
      • Affidavit of Attorney John Agee, dated July 5, 2016.

       The Court reviewed the entire case file in reaching its decision. Specifically, the
Court reviewed and relied upon the following documents, marked as exhibits for ease of
reference:

Exhibits:
       • EXHIBIT 1: Injury/Illness Data Collection;
       • EXHIBIT 2: Employee's Choice of Physician, Forms C-42 ; and
       • EXHIBIT 3: Medical Report of Dr. Mark Overholt.

                            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 12th day
of August, 2016.

Name                        Certified Via       Via      Service sent to:
                            Mail      Fax       Email
John D. Agee, Esq.,                               X      jda@ridenourlaw .com
Employee's Counsel
Landon Lackey, Esq.,                              X      Landon.Lackey@cns.doe.gov
Employer's Counsel




                                                                SHRUM, Court Clerk
                                                        . . . .CourtCJerk a tn. ov




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