Randall, Wilma v. Food Lion and Delhaize America, Inc. , 2023 TN WC App. 47 ( 2023 )

FILED
Oct 16, 2023
08:58 AM(CT)
TENNESSEE
WORKERS' COMPENSATION
APPEALS BOARD
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD
Wilma Randall ) Docket No. 2021-02-0225
)
v. ) State File No. 1723-2021
)
Food Lion and Delhaize America, Inc., et al. )
)
)
Appeal from the Court of Workers’ ) Heard October 5, 2023
Compensation Claims ) at Knoxville
Brian K. Addington, Judge )
Affirmed and Remanded
The employee filed an interlocutory request for medical treatment she claims is needed
due to repeated exposures to cleaning supplies used in the course and scope of her
employment. The employer denied the claim, asserting there is no evidence that the
employee’s alleged pulmonary conditions arose primarily from or were aggravated by
workplace exposures to cleaning chemicals. Following an expedited hearing, the trial
court determined that the employee had not come forward with sufficient evidence
indicating a likelihood of prevailing at trial on the issue of medical causation, and the
employee has appealed. Upon careful consideration of the record and arguments of
counsel, we affirm the trial court’s order and remand the case.
Presiding Judge Timothy W. Conner delivered the opinion of the Appeals Board in which
Judge Pele I. Godkin and Judge Meredith B. Weaver joined.
G. Todd East, Kingsport, Tennessee, for the employee-appellant, Wilma Randall
Daniel I. Hall, Bristol, Tennessee, for the employer-appellee, Delhaize America, Inc.
Factual and Procedural Background
Wilma Randall (“Employee”) worked in the deli and bakery sections of a Food
Lion store in Erwin, Tennessee, apparently operated by Delhaize America, Inc.
(“Employer”). Employee was usually responsible for closing those areas of the store
each night and was required to disassemble and clean the mechanical slicers and a
rotisserie and to clean countertops, windows, doors, and floors. In performing these
activities, she used cleaning supplies provided by Employer.
1
Beginning in or about June 2020, Employee experienced chronic coughing and
other pulmonary symptoms. She subsequently reported to Employer that she believed
her symptoms were caused by her repeated exposure to the chemicals she used to clean
her work areas. She noted that Employer had changed to a different supplier of such
cleaning supplies in Spring 2020, and the new cleaning agents smelled stronger than the
old ones and left a metallic taste in her mouth.
Employee sought treatment at an emergency room in September 2020, and a chest
x-ray completed during that visit indicated Employee had “no active airspace disease or
edema” and “no acute infiltrate.” She was diagnosed with bronchitis and prescribed
medications. Employee returned to the emergency room twice in October 2020 due to
“ongoing cough and wheezing for several days despite antibiotics.” During the first of
those visits, the physician concluded she did not suffer from any “emergency pathology”
and referred her to her primary care physician. A week later, Employee was hospitalized
due to “community acquired pneumonia” and “suspected 2019 novel coronavirus
infection.” A CT scan revealed “bilateral upper lobe ground glass opacities,” but
COVID-19 tests were negative. In a “Discharge Summary,” Dr. Imran Ali Khan opined
Employee suffered from “hypersensitivity pneumonitis” and referred Employee to a
pulmonologist. Employee was also advised to “avoid exposure to dust at work which
could have been the contributing cause for her shortness of breath and hypersensitivity
pneumonitis.”
Thereafter, Employee sought treatment from a pulmonologist, Dr. April Lambert-
Drwiega, who diagnosed Employee in November 2020 with reactive airways disease,
interstitial lung disease, and pneumonitis, among other diagnoses. 1 Employee described
to Dr. Lambert the cleaning agents she used at work for “cleaning and sanitizing” and the
effect she believed those chemicals were having on her breathing. Dr. Lambert ordered
pulmonary function testing and a CT scan and prescribed several medications.
In February 2021, Dr. Lambert reviewed the results of Employee’s most recent CT
scan and noted evidence of “persistent diffuse airspace opacity.” She further noted that
pulmonary function testing revealed “small airway disease but no other abnormality.” In
response to Employee’s request, Dr. Lambert released Employee to return to work as of
March 1, 2021, and advised her to avoid workplace chemicals “because they cause a lot
of respiratory irritation for her.”
In March 2021, Dr. Lambert performed a diagnostic bronchoscopy and biopsy.
The post-procedure diagnosis was listed as “multilobar lung infiltrate,” and the biopsy
culture tested negative. Employee was advised to continue taking medications as
prescribed. In September 2021, in response to a written questionnaire from Employee,
1
During her deposition, Dr. Lambert-Drwiega testified that she was typically addressed as “Dr. Lambert,”
which we will do in this opinion.
2
Dr. Lambert marked “yes” when asked whether Employee’s lung conditions were “due to
exposure to chemicals she was required to use while performing the duties of her job.” In
a handwritten addendum, Dr. Lambert clarified that Employee’s exposure to workplace
chemicals “worsened her breathing.” She indicated Employee had reached maximum
medical improvement but could not state when. 2
Employer denied her claim, asserting that Employee’s pulmonary condition did
not arise primarily out of her employment and was not aggravated by her alleged
workplace exposures to cleaning supplies. Further, Employer asserted that Employee has
a history of pulmonary issues, including multiple episodes of bronchitis and sinusitis,
dating back to at least 2008. Finally, although admitting that its distributor of cleaning
supplies changed in 2020, Employer argued there was no significant difference between
the cleaning agents used prior to the date of the change and those used after. In
preparation for an expedited hearing, Employer produced an expert opinion from Dr.
Christopher Holstege, a toxicologist, indicating that he believed Employee had contracted
an infectious illness, likely COVID-19, in early-to-mid 2020 and was experiencing
lingering pulmonary symptoms related to that illness. Employee responded that she was
tested for COVID-19 several times in Fall 2020 and received a negative result each time.
Following an expedited hearing, the trial court denied Employee’s request for
medical benefits, reasoning that Employee had not come forward with sufficient evidence
indicating a likelihood of prevailing at trial in proving the occurrence of a compensable
occupational illness or accident. Employee has appealed.
Standard of Review
The standard we apply in reviewing the trial court’s decision presumes that the
court’s factual findings are correct unless the preponderance of the evidence is otherwise.
See Tenn. Code Ann. § 50-6-239(c)(7) (2022). However, we need not give deference to a
trial court’s findings “based upon documentary evidence such as depositions.” Goodman
v. Schwarz Paper Co., No. W2016-02594-SC-R3-WC, 2018 Tenn. LEXIS 8, at *6 (Tenn.
Workers’ Comp. Panel Jan. 18, 2018). The interpretation and application of statutes and
regulations are questions of law that are reviewed de novo with no presumption of
correctness afforded the trial court’s conclusions. See Mansell v. Bridgestone Firestone
N. Am. Tire, LLC, 417 S.W.3d 393, 399 (Tenn. 2013). We are also mindful of our
obligation to construe the workers’ compensation statutes “fairly, impartially, and in
accordance with basic principles of statutory construction” and in a way that does not
favor either the employee or the employer. Tenn. Code Ann. § 50-6-116 (2022).
2
Dr. Lambert later testified Employee likely reached maximum medical improvement in June 2022.
3
Analysis
On appeal, Employee asserts the trial court erred in denying her interlocutory
request for medical benefits because “[h]er treating physician causally connected her
injuries/diagnosis.” As we have noted previously, although an injured worker retains the
burden of proof at all stages of a workers’ compensation claim, a trial court can grant
relief at an expedited hearing if the court is satisfied that the employee has met the burden
of showing that he or she is likely to prevail at a hearing on the merits. Tenn. Code Ann.
§ 50-6-239(d)(1). In making this determination, the trial court can consider both expert
medical opinions and corroborative lay testimony. See, e.g., Thomas v. Zipp Express,
No. 2015-06-0546, 2016 TN Wrk. Comp. App. Bd. LEXIS 35, at *12-13 (Tenn.
Workers’ Comp. App. Bd. Aug. 2, 2016).
Tennessee Code Annotated section 50-6-102(12) defines “injury” to include
occupational diseases “including diseases of the heart [and] lung . . . arising primarily out
of and in the course and scope of employment.” The phrase “arising primarily out of and
in the course and scope of employment” has been defined to mean “that the employment
contributed more than fifty percent (50%) in causing . . . the need for medical treatment,
considering all causes.” Tenn. Code Ann. § 50-6-102(12)(B). Thus, at an expedited
hearing where an employee seeks medical benefits allegedly necessitated by an
occupational disease, the employee must come forward with sufficient evidence that he
or she is likely to prevail at trial in proving that the employment contributed more than
50% in causing the occupational disease.
Moreover, it is well established that a trial judge “has the discretion to conclude
that the opinion of one expert should be accepted over that of another expert.” Reagan v.
Tennplasco, No. M2005-02020-WC-R3-CV, 2006 Tenn. LEXIS 1209, at *10 (Tenn.
Workers’ Comp. Panel Dec. 27, 2006). As explained by the Tennessee Supreme Court,
“[w]hen faced . . . with conflicting medical testimony . . ., it is within the discretion of the
trial judge to conclude that the opinion of certain experts should be accepted over that of
other experts and that it contains the more probable explanation.” Thomas v. Aetna Life
and Cas. Co., 812 S.W.2d 278, 283 (Tenn. 1991) (internal quotation marks omitted). We
review such determinations for an abuse of discretion. Barnes v. Yasuda Fire & Marine
Ins. Co., No. W2000-02559-SC-WCM-CV, 2001 Tenn. LEXIS 696, at *11 (Tenn.
Workers’ Comp. Panel Sept. 24, 2001) (“[W]e cannot say the trial court abused its
discretion” by concluding “the opinion of certain experts should be accepted over that of
other experts.”).
Here, the trial court considered the opinions of two medical experts. Dr. Lambert
testified that she acquired her degree in osteopathic medicine, completed an internship in
internal medicine, and completed a fellowship in pulmonary medicine and critical care.
She has practiced in Tennessee for twelve years and currently works in a pulmonary
practice. She treated Employee beginning in November 2020 and has examined her five
4
or six times. She diagnosed Employee with hypersensitivity pneumonitis and reactive
airway disease. During her direct testimony, Dr. Lambert stated that she believed
Employee’s symptoms “were as a result of being exposed to . . . noxious fumes at work,”
which she then specified were “the cleaning agents at work.”
On cross-examination, Dr. Lambert acknowledged that she is not board-certified
in pulmonology or toxicology and does not generally treat infectious diseases. Prior to
her deposition, Dr. Lambert did not review Employee’s medical records from her
emergency room visit in September 2020, but did review a discharge summary following
her hospitalization in October 2020. She did not review any of Employee’s medical
records prior to 2020 and was not aware of any pre-existing history of pulmonary
problems. With respect to a possible COVID-19 diagnosis, Dr. Lambert admitted that
tests done more than three months after symptoms develop may be negative despite an
earlier infection. She also agreed that some patients who contract COVID-19 develop
“long-term effects.”
Dr. Lambert also acknowledged during cross-examination that she was not aware
of the identities or types of chemicals Employee used at work and did not know the
extent or duration of any such exposures. She theorized that any cleaning agent with
bleach or ammonia could have been a cause, but she was unaware of whether any of the
cleaning agents Employee used at work contained those chemicals. She was not aware of
any “large acute exposure” to workplace cleaning agents that required immediate medical
attention, and she did not know how long Employee had been using the workplace
cleaning agents. Finally, Dr. Lambert agreed that, in late 2020, the most common
differential diagnosis for a patient showing radiological evidence of “ground glass
opacities” was COVID-19.
Employer presented the testimony of Dr. Christopher Holstege, a physician board-
certified in emergency medicine and medical toxicology. He currently serves as Chief of
the Division of Medical Toxicology at the University of Virginia, where he has worked
since 1999. He testified that he “routinely” treats patients who suffered from chemical
exposures. With respect to the current case, Dr. Holstege testified he had reviewed
Employee’s medical records, both before and after her alleged workplace exposures. He
also reviewed radiological studies and informational documents regarding Employer’s
cleaning agents and Employer’s “training materials” addressing how cleaning supplies
are utilized at Employer’s worksite. Dr. Holstege concluded that Employee’s pulmonary
conditions were not caused by occupational exposure to chemicals or cleaning agents.
In support of his causation opinion, Dr. Holstege noted a significant pre-existing
history of pulmonary symptoms, prior treatment with inhalers and steroids, and other
evidence of repeated episodes of bronchitis. Dr. Holstege also noted that chemical
exposures that are significant enough to cause the type of symptoms Employee had
experienced would also likely cause symptoms to other body parts such as the eyes, but
5
there were no such indications in the medical records. Based on his review of emergency
room and hospital records dated in Fall 2020, as well as the prior medical records and
radiological studies, Dr. Holstege opined that Employee had suffered from an infectious
process in mid-2020 – likely COVID-19 – and was experiencing long-term symptoms
from that infection.
In reviewing the trial court’s determinations, we cannot conclude that the trial
court erred in its evaluation of the expert medical proof submitted at this interlocutory
stage of the case. The trial court concluded that Dr. Holstege’s opinion was entitled to
greater weight because he had reviewed a more complete set of medical records,
radiological studies, and documentation regarding the cleaning agents used in
Employee’s workplace. Dr. Lambert, on the other hand, acknowledged she had not
reviewed those same materials prior to forming her opinion. In short, our review of the
record indicates the evidence does not preponderate against the trial court’s
determinations.
Conclusion
For the foregoing reasons, we affirm the trial court’s order and remand the case.
Costs on appeal are taxed to Employee.
6
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD
Wilma Randall ) Docket No. 2021-02-0225
)
v. ) State File No. 1723-2021
)
Food Lion and Delhaize America, Inc., et al. )
)
)
Appeal from the Court of Workers’ ) Heard October 5, 2023
Compensation Claims ) at Knoxville
Brian K. Addington, Judge )
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 16th day
of October, 2023.
Name Certified First Class Via Via Sent to:
Mail Mail Fax Email
Todd East X todd@toddeast.com
jennifer@toddeast.com
Daniel Hall X dhall@midkifflaw.com
mkupp@midkifflaw.com
Brian K. Addington, Judge X Via Electronic Mail
Kenneth M. Switzer, Chief Judge X Via Electronic Mail
Penny Shrum, Clerk, Court of X penny.patterson-shrum@tn.gov
Workers’ Compensation Claims
Olivia Yearwood
Clerk, Workers’ Compensation Appeals Board
220 French Landing Dr., Ste. 1-B
Nashville, TN 37243
Telephone: 615-253-1606
Electronic Mail: WCAppeals.Clerk@tn.gov