            TENNESSEE BUREAU OF WORKERS’ COMPENSATION
               WORKERS’ COMPENSATION APPEALS BOARD


Ronald Pool                                )       Docket No. 2015-06-0510
                                           )
v.                                         )       State File No. 48782-2015
                                           )
Jarmon D&Q Transport, et al.               )
                                           )
                                           )
Appeal from the Court of Workers’          )
Compensation Claims                        )
Kenneth M. Switzer, Chief Judge            )



                  Affirmed and Remanded - Filed February 18, 2016


In this second interlocutory appeal of this case, the employer appeals the trial court’s
decision requiring it to provide medical treatment for the employee’s alleged
occupational illness resulting from exposure to mold while working as a shuttle van
driver. A prior order entered by the trial court directed that medical benefits be provided
to the employee, but that order was vacated and the case remanded for consideration of
the employer’s notice defense in light of Tennessee Code Annotated section 50-6-305(a).
Upon remand, the trial court determined that notice was timely and issued an order for
medical benefits. The employer has appealed. We affirm the trial court’s decision and
remand the case.

Judge Marshall L. Davidson, III, delivered the opinion of the Appeals Board, in which
Judge David F. Hensley and Judge Timothy W. Conner joined.

Duane Willis, Nashville, Tennessee, for the employer-appellant, Jarmon D&Q Transport

Ronald Pool, Clarksville, Tennessee, employee-appellee, pro se


                                               1
                         Factual and Procedural Background

        This is the second interlocutory appeal of this case. We previously issued an
opinion on January 4, 2016, containing the factual history of the case, which we adopt as
set out below:

             Ronald Pool (“Employee”) is a forty-seven-year-old resident of
      Montgomery County, Tennessee, who began working as a shuttle van
      driver with Jarmon D&Q Transport (“Employer”) in July 2014. For
      approximately five weeks from September 19, 2014 to October 25, 2014,
      Employee worked primarily for another company driving shuttle vans, but
      he also worked on weekends during this period for Employer. Thereafter,
      he returned to full-time work with Employer. He claims he began
      experiencing severe headaches and respiratory problems, including
      frequently recurring sinus infections, as a result of inhaling mold in the
      shuttle vehicles he operated for Employer.

              In an affidavit filed in support of his Request for Expedited Hearing,
      Employee stated that at the end of 2014 and in January 2015, he began
      having upper respiratory symptoms “from mold in the vehicles at work.”
      In February 2015, Employee was diagnosed with asthma and was
      prescribed inhalers by providers at the Tennessee Department of Health
      (“Health Department”) in Clarksville where he was seen with a complaint
      of shortness of breath. At a subsequent visit to the Health Department on
      March 30, 2015, he complained of shortness of breath and a “sinus
      infection” for three weeks. On April 25, 2015, he sought emergency care at
      Gateway Medical Center (“Gateway”) due to complaints of “chest pain
      [and] shortness of breath.” The Gateway report states that the “[m]ost
      likely cause of his pain is pneumonia,” and that he “does have cardiac risk
      factors and I cannot exclude a cardiac source for his pain.” Employee
      testified that soon after his treatment at Gateway “my fears set in and I
      started my own investigation in private.”

             Employee testified that on June 25, 2015, he “sought help from my
      immediate supervisor Tim Hembree,” telling him that he “required medical
      treatment with a workers’ compensation doctor.” According to Employee,
      “I brought to his attention evidence of mold in a petri tray and – in petri
      trays and results that I had from my investigation on the vehicle that I was
      hired to work in.” Employer completed a First Report of Work Injury on
      the same date, which described how the “injury” occurred as follows:
      “[Employee] came to the supervisor with mold samples that he got from the
      vans that is causing [Employee] an allergic reaction to sinus area.”


                                            2
             Employer provided a panel of physicians on June 25, 2015, and
      Employee was seen the following day by Dr. Giriprasadarao Korivi, whom
      Employee selected from the panel. The history of present illness in Dr.
      Korivi’s June 26, 2015 report states that Employee “has had recurrent
      ‘sinus problems’ [and] sinus infections off and on,” and notes that
      Employee “feels fine when he is not working.” The report states that
      Employee “says it is an indoor air quality issue at work and is causing his
      allergies and repeated sinus infections.” Employee was diagnosed at the
      June 26, 2015 visit with “[a]llergic rhinitis, cause unspecified.” The
      assessment states “[w]orker in work-related accident,” and includes an
      “allergy & immunology referral.” Employee was released to work, but was
      instructed to “[a]void allergen exposure.”

             Employer offered a panel of allergists on July 2, 2015, from which
      Employee chose Dr. John Overholt. Before Employee could see Dr.
      Overholt, Employer denied the claim on July 7, 2015, stating in a letter to
      Employee that his claim was not compensable due to a “[l]ack of [i]njury
      as defined by [Tennessee Code Annotated] Section 50-6-301.”

        The trial court initially determined that Employee presented sufficient evidence
from which the court concluded he was likely to prevail at a hearing on the merits
regarding notice and ordered Employer to provide an evaluation by Dr. Overholt, the
allergist Employee selected from the panel. On January 4, 2016, we vacated the trial
court’s decision and remanded the case for consideration of Employer’s notice defense in
light of Tennessee Code Annotated section 50-6-305, the statute that addresses notice in
occupational disease cases. On remand, the trial court determined that no additional
evidence was necessary, notice was timely provided, and that Employee was entitled to
medical benefits. Employer has appealed.

                                  Standard of Review

       The standard of review to be applied by this Board in reviewing a trial court’s
decision is statutorily mandated and limited in scope. Specifically, “[t]here shall be a
presumption that the findings and conclusions of the workers’ compensation judge are
correct, unless the preponderance of the evidence is otherwise.” Tenn. Code Ann. § 50-
6-239(c)(7) (2014). The trial court’s decision must be upheld unless the rights of a party
“have been prejudiced because findings, inferences, conclusions, or decisions of a
workers’ compensation judge:

      (A)    Violate constitutional or statutory provisions;
      (B)    Exceed the statutory authority of the workers’ compensation judge;
      (C)    Do not comply with lawful procedure;


                                            3
       (D)    Are arbitrary, capricious, characterized by abuse of discretion, or
              clearly an unwarranted exercise of discretion;
       (E)    Are not supported by evidence that is both substantial and material
              in the light of the entire record.”

Tenn. Code Ann. § 50-6-217(a)(3) (2015). Like other courts applying the standards
embodied in section 50-6-217(a)(3), we will not disturb the decision of the trial court
absent the limited circumstances identified in the statute.

                                         Analysis

        Employer maintains that Employee is not entitled to medical benefits because he
(1) failed to provide timely notice of his purported occupational injury as required by
Tennessee Code Annotated section 50-6-305(a), (2) did not meet his burden of proof at
the expedited hearing, and (3) did not provide medical evidence of causation. The trial
court found otherwise, concluding that Employee satisfied the notice requirement for
reporting an occupational disease and had presented sufficient evidence to entitle him to
medical benefits prior to trial. Based upon our review of the record, we find no error.

       The controlling statute, Tennessee Code Annotated section 50-6-305(a), provides
that “[w]ithin thirty (30) days after the first distinct manifestation of an occupational
disease, the employee, or someone in the employee’s behalf, shall give written notice
thereof to the employer in the same manner as is provided in the case of a compensable
accidental injury.” The notice requirement exists so that an employer “will have the
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 the injured employee.”
Jones v. Sterling Last Corp., 962 S.W.2d 469, 471 (Tenn. 1998). 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).

       The Tennessee Supreme Court has observed that, in occupational disease cases,
“[t]he ideal rule . . . would postpone the running of the time [to give notice] until actual
disability and a reasonably sufficient opportunity to discover the disease and its relation
to the employment occur; in fact, that is the substance of the rule applied in many of the
cases.” Christopher v. Consol. Coal Co., 440 S.W.2d 281, 284 (Tenn. 1969). Indeed, the
Court has held that the time to provide notice to the employer starts to “run in [an]
occupational disease case from the time the employee . . . knew or had reason to believe
that he was suffering from an occupational disease and that there was a causal connection
between his disability and occupation.” Id. at 286. The rationale for the rule is that
because an occupational disease “develops slowly and . . . full knowledge of it may exist
long before a compensable disability develops[,] [i]t is injury from the disease, rather
than the disease, which entitles an employee to compensation.” Adams v. Am. Zinc Co.,

                                             4
326 S.W.2d 425, 427 (Tenn. 1959). “It is for the same reason that our Courts hold that
before the statute begins to run there must be knowledge upon the part of the employee,
or knowledge that he should have had, that he has an occupational disease and that it has
affected his capacity to work to a compensable extent.” Id.

       The approach adopted by the Supreme Court decades ago has been followed in
more recent occupational disease cases.          For example, the Special Workers’
Compensation Appeals Panel has observed that “[t]he ‘first distinct manifestation’ is
when the employee knows or should know that the injury is an occupational disease.”
Clifton v. Nissan N. Am., No. M2008-01640-WC-R3-WC, 2009 Tenn. LEXIS 507, at *12
(Tenn. Workers’ Comp. Panel Aug. 18, 2009). Thus, “[a]ctual notice of the
manifestation of an occupational disease is sufficient” to trigger the notice period. Id.
This rule, adopted before the 2013 Workers’ Compensation Reform Act, does not rely on
a remedial interpretation of the law but, rather, on the common-sense notion that an
employee must know or have reason to know that the workplace exposure resulted in an
occupational illness before he or she can be expected to give notice of it.

        In the present case, Employee asserts that he suffers from a work-related mold
exposure resulting in an illness. Pursuant to section 50-6-305(a), he was required to
report his condition within thirty days after the “first distinct manifestation.” This
requirement, as construed by the Supreme Court in Christopher and its progeny, required
that Employee report his occupational illness when he knew or should have known that
he had such a condition and that it was caused by workplace exposure(s). Employee
apprised his supervisor on June 25, 2015, that his investigation revealed mold in the van
he was assigned to drive and that he needed medical treatment from a “workers’
compensation doctor.” The next day, he was diagnosed by his authorized treating
physician, Dr. Korivi, with “[a]llergic rhinitis, cause unspecified,” though Dr. Korivi’s
assessment states “[w]orker in work-related accident.” Before Employee could see an
allergist based on Dr. Korivi’s referral, Employer denied his claim. Under these
circumstances, it is difficult to envision how Employer was prejudiced by Employee
providing notice of his alleged injury on June 25, 2015. See Crane Enamelware Co. v.
Dotson, 277 S.W. 902, 905 (Tenn. 1925) (“Even though notice is not given and the
employer is without knowledge this will not bar a claim, as a rule, unless the employer
has been prejudiced by lack of notice.”).

       Employer argues that, without a diagnosis of an occupational disease by a
physician, there is no injury and, thus, no claim. However, once an employee has
experienced a distinct manifestation of an occupational disease as discussed above, he or
she has thirty days to report it under section 50-6-305(a). There is no prohibition against
an employee reporting the employee’s belief that he or she presently suffers from an
occupational illness prior to an actual diagnosis from a physician. Employer cites no
authority, and we are aware of none, that renders notice ineffective merely because it pre-
dates a physician’s formal diagnosis.

                                            5
       Employer also argues that the trial court erred in ordering medical benefits
because the authorized physician, Dr. Korivi, noted in his assessment “allergic rhinitis,
cause unspecified.” However, Dr. Korivi’s assessment also states “[w]orker in work-
related accident,” and includes an “allergy & immunology referral” for respiratory
problems employee experiences “at work.” He also instructed Employee to “[a]void
allergen exposure.” Further, as noted above, Employee’s claim was denied before he
could see an allergist pursuant to the referral made by Dr. Korivi, the authorized treating
doctor.

        At an expedited hearing where pre-trial benefits are at issue, an employee need not
establish medical causation by a preponderance of the evidence, but must come forward
with sufficient evidence from which the trial court can determine that he or she is likely
to prevail at a hearing on the merits consistent with Tennessee Code Annotated section
50-6-239(d)(1). See 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). While the evidence supporting the trial court’s decision in this case can hardly be
described as overwhelming, this alone is not a basis for us to substitute our judgment for
that of the trial court merely because we might have chosen another alternative in the first
instance. See Neely v. Federated Rural Elec. Ins. Corp., No. 03S01-9410-CH-00099,
1995 Tenn. LEXIS 435, at *2 (Tenn. Workers’ Comp. Panel Aug. 21, 1995). Instead, we
are obligated to make our own determination regarding where the preponderance of the
evidence lies and, having done so here, cannot at this stage of the case conclude that the
trial court erred in ordering medical benefits.

                                        Conclusion

        For the foregoing reasons, we hold that the evidence does not preponderate against
the trial court’s decision at this interlocutory stage of the case. Nor does the trial court’s
decision violate any of the standards set forth in Tennessee Code Annotated section 50-6-
217(a)(3). Accordingly, the trial court’s decision is affirmed. The case is remanded for
any further proceedings that may be necessary.




                                              6
                       TENNESSEE BUREAU OF WORKERS’ COMPENSATION
                         WORKERS’ COMPENSATION APPEALS BOARD

Ronald Pool                                              )   Docket No. 2015-06-0510
                                                         )
v.                                                       )
                                                         )    State File No. 48782-2015
Jarmon D&Q Transport                                     )


                                     CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the Appeals Board’s decision in the
referenced case was sent to the following recipients by the following methods of service
on this the 18th day of February, 2016.
 Name                    Certified   First Class   Via   Fax       Via     Email Address
                         Mail        Mail          Fax   Number    Email

 Ronald Pool                                                          X    ronaldleepool@aol.com
 Duane Willis                                                         X    dwillis@morganakins.com
 Kenneth M. Switzer,                                                  X    Via Electronic Mail
 Chief Judge
 Penny Shrum, Clerk,                                                  X     Penny.Patterson-Shrum@tn.gov
 Court of Workers’
 Compensation Claims




Matthew Salyer
Clerk, Workers’ Compensation Appeals Board
220 French Landing Dr., Ste. 1-B
Nashville, TN 37243
Telephone: 615-253-1606
Electronic Mail: Matthew.Salyer@tn.gov
