Ventura, Valdez v. Ccon Metals USA, Inc. ( 2018 )

FILED
Jun 26, 2018
02:20 PM(CT)
TENNESSEE COURT OF
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TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT JACKSON
VALDEZ VENTURA, ) Docket No. 2015-07-0194
Employee )
Vv. ) State File No. 64310-2015
)
CCON METALS USA, INC., )
Employer ) Judge Amber E. Luttrell
EXPEDITED HEARING ORDER DENYING REQUESTED BENEFITS
The Court convened an Expedited Hearing on June 4, 2018, on Mr. Ventura’s
request for medical and temporary disability benefits for alleged lead poisoning arising
out of his employment. The issue is whether Mr. Ventura is likely to prevail at a hearing
on the merits in establishing entitlement to these benefits. For the following reasons, the
Court holds Mr. Ventura did not come forward with sufficient evidence to meet this
burden and denies his request.
History of Claim
Mr. Ventura worked for CCon Metals.’ He did not testify regarding his job duties
or the work he performed that allegedly caused his illness. In his Petition for Benefit
Determination, Mr. Ventura listed the date of injury as June 25, 2015, and stated, “I went
to get checked in June, then from June to December I had fatigue and couldn’t digest.
Had [too] much iron/[lead] in me. We spoke to Mike Conn [sic] and he said he will take
care and never did.” In his affidavit, Mr. Ventura stated,
[I] started having diarrhea and losing strength and when I started getting my
lead checked is when it all started. Since the day that it has occurred I have
been [weak] since, I’ve taken medicine and to present time I have not been
able to have strength and work because of it.
At the hearing, Mr. Ventura testified on direct examination that, “all I want is for them to
' Mr. Ventura testified with the assistance of Miguel Soto, a registered Spanish court interpreter.
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WORKERS' COMPENSATION
pay the doctors in Henderson and compensation for all the time that I’ve lost so I can get
better.””
On cross-examination, Mr. Ventura testified he quit his job at CCon Metals on
June 19, 2015, because he could not work due to illness and stated, “they would not send
me to a doctor.” He indicated his symptoms began sometime prior to June 19. He told his
employer he felt sick and could not keep food down and requested treatment. According
to Mr. Ventura, someone from CCon took him to a Savannah doctor for testing but no
treatment. He testified that two weeks later, he still felt sick, was losing strength, and
resigned. Mr. Ventura stated he then sought medical treatment from his physician, Dr.
Schwartz.
Mr. Ventura acknowledged that he was angry when he spoke to his supervisor,
Mike Pugh, on the day he resigned because CCon requested he wear coveralls as part of
its safety protocol. He explained he already suffered from lead exposure and could not
wear the coveralls because he had to visit the restroom many times per day due to his
illness. Mr. Ventura denied receiving any information from CCon Metals about the
dangers of lead exposure.
Medical Treatment
Approximately four months following his resignation, CCon Metals provided Mr.
Ventura a panel of physicians from which he selected Dr. Timothy Linder. Mr. Ventura
saw Dr. Linder on October 13, and Dr. Linder noted, “Pt states he thinks he has lead
poison from previous job. He has diarrhea a lot and after eating very little, itches all over,
and his [right] hand 4" digit hurts. He had labs drawn for lead level results were 34. Also
back hurting and muscle weakness.” Dr. Linder ordered blood work and noted, “level
brought with pt was only 34, will repeat level but do not suspect lead as cause.”
Mr. Ventura returned to Dr. Linder and reported some improvement, but he still
complained of abdominal cramps and muscle aches. Dr. Linder diagnosed epigastric
abdominal pain and indicated, “Pt having multiple issues that do not seem to be related to
his lead exposure. I recommend he see his primary doctor .. . for follow up.” In a
separate note, Dr. Linder concluded, “lead levels are normal, having stomach problems
and muscle aches, feel he needs abdomen work up and muscle work up but do not feel it
is related to lead level.” Dr. Linder later completed a Form C32, which confirmed his
opinion that Mr. Ventura did not suffer an employment-related injury.
Mike Pugh and Joseph Pugh testified for CCon Metals.
* Mr. Ventura did not recall the names of the physicians he saw for testing or treatment, but he referred to
them by their locations. The Court understood the “Savannah doctor” to be a physician who ran blood
work on CCon Metal employees. The “Henderson doctor” appeared to be Dr. Schwartz, Mr. Ventura’s
personal physician, and the “Selmer doctor” was Dr. Linder, the panel doctor.
ps
Mike Pugh’s Testimony
Mike Pugh is the Operations Manager for CCon Metals. He supervised Mr.
Ventura. He testified regarding the company’s safety requirements and his interactions
with Mr. Ventura leading up to his resignation.
Mr. Pugh testified Mr. Ventura worked in the “breaking room,” but he did not
describe his job duties. He testified that CCon requires employees to wear safety
equipment to protect them from lead residue or acid spills. It also transports employees to
a physician every six months for blood work to test for lead. Mr. Pugh testified that Mr.
Ventura was regularly tested and never had an elevated level that required he be removed
from his job.
Mr. Pugh also testified that CCon explained its safety rules to employees and
ensured that all employees complied. When CCon hired Mr. Ventura in 2014, it required
employees to wear aprons, rubber gloves, and respirators. Mr. Pugh testified that CCon’s
safety requirements “evolved” over time to make the company safer. Around the time
that Mr. Ventura resigned, CCon updated its safety protocol by requiring employees to
wear coveralls. Mr. Pugh stated once the coverall program started, all employees were
required to use them. He discussed the coverall requirement with Mr. Ventura on June 19
and confirmed that Mr. Ventura refused to wear them. Mr. Pugh testified that, had Mr.
Ventura not quit, he would have been terminated for his refusal.
Concerning Mr. Ventura’s alleged injury, Mr. Pugh testified he “did not recall”
Mr. Ventura alleging before he resigned that he believed his illness was due to lead
exposure. When he learned that Mr. Ventura alleged a work injury, Mr. Pugh gave him a
panel of physicians. Mr. Pugh recalled that after Mr. Ventura saw Dr. Linder, Mr.
Ventura and his friend/interpreter, Pico, came to see him and were “complaining of
problems.” Mr. Pugh informed Mr. Ventura he understood his lead levels were okay and
did not believe his issues were work-related.
Joseph Pugh’s Testimony
Joseph Pugh is the President/Owner of CCon Metals. He testified that CCon
Metals paid Dr. Linder’s office on May 16, 2016, by credit card, which was the only
authorized payment for medical treatment. He denied paying any bills provided by Mr.
Ventura and stated he only paid Dr. Linder. CCon did not provide any evidence
indicating it filed a Notice of Controversy or Notice of Denial.
Findings of Fact and Conclusions of Law
To prove a compensable injury, Mr. Ventura must show that his condition was
caused by an incident or specific set of incidents, identifiable by time and place of
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occurrence and that it arose primarily out of and in the course and scope of his
employment. Further, he must show “to a reasonable degree of medical certainty that the
employment contributed more than fifty percent (50%) in causing the death, disablement
or need for medical treatment, considering all causes.” See Tenn. Code Ann. § 50-6-
102(14)(B). The term “reasonable degree of medical certainty” means that “in the
opinion of the physician, it is more likely than not considering all causes, as opposed to
speculation or possibility.” See Tenn. Code Ann. §50-6-102(14)(D). Thus, causation must
be established by expert medical evidence.
However, Mr. Ventura need not prove every element of his claim by a
preponderance of the evidence at this Expedited Hearing in order to obtain relief. 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. McCord v. Advantage Human Resourcing,
2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015).
Here, CCon primarily contended that Mr. Ventura failed to come forward with
proof to establish a compensable injury under Tennessee Code Annotated section 50-6-
102. Specifically, it argued Mr. Ventura failed to come forward with any medical
evidence causally relating his illness to his employment. Alternatively, CCon argued that
Mr. Ventura’s claim was barred due to his willful misconduct and failure to use a safety
device under Tennessee Code Annotated section 50-6-110(a)(1) and (4) and the statute of
limitations.
The Court finds Mr. Ventura did not come forward with sufficient proof to
establish a compensable injury as required by statute. As previously stated, Mr. Ventura
is not required to prove his case by a preponderance of the evidence at this expedited
hearing stage; however, he must still come forward with sufficient evidence that a Court
may determine he is /ikely to prevail at trial in proving an injury by accident arising
primarily out of and in the course of employment.
In this case, the Court finds Mr. Ventura failed to show a work-related incident, or
specific set of incidents, identifiable by time and place of occurrence that caused his
alleged symptoms. He offered no proof of his actual job duties at CCon or the specific
employment activity or environment that allegedly caused his exposure and resulting
illness. The proof merely indicated Mr. Ventura worked in a facility where employees
could be exposed to lead and he experienced abdominal symptoms sometime in June
2015.
Moreover, Mr. Ventura did not produce any medical evidence to corroborate his
clam. The only medical proof came from Dr. Linder, the panel-selected treating
physician who completed a C-32. After reviewing Mr. Ventura’s prior blood work,
examining him, and obtaining additional blood work, Dr. Linder concluded that Mr.
Ventura’s lead levels were normal and he did not sustain an employment-related illness.
4
Dr. Linder’s causation opinion is afforded a presumption of correctness that is rebuttable
only by a preponderance of the evidence. Tenn. Code Ann. § 50-6-102(14)(E).
The Court recognizes that Mr. Ventura disputed Dr. Linder’s conclusion; however,
Mr. Ventura’s disagreement, while genuine, is legally insufficient to refute Dr. Linder’s
opinion. Concerning the employee’s burden to produce medical proof, the Workers’
Compensation Appeals Board held:
In cases ... where an employer has presented expert medical proof that the
employee’s condition is not work-related, the employee must present expert
medical proof that the alleged injury is causally related to the employment
when the case is not “obvious, simple [or] routine.” While lay testimony
may be probative on the issue of causation, it is insufficient to meet an
employee’s burden of proof in the absence of medical evidence.
Berdnik v. Fairfield Glade Cmty. Club, 2017 TN Wrk. Comp. App. Bd. LEXIS 32, at *10
(May 18, 2017) (internal citations omitted).
Based on the foregoing, the Court holds Mr. Ventura did not come forward with
sufficient proof to show he is likely to prevail at trial and denies his request for medical
and temporary disability benefits. Because Mr. Ventura did not meet his burden at this
stage, the Court holds it need not address the sufficiency of CCon’s additional safety
violation and statute of limitations defenses.
IT IS, THEREFORE, ORDERED as follows:
1. Mr. Ventura’s claim against CCon Metals USA, Inc. and its workers’
compensation carrier for the requested benefits is denied.
2. This matter is set for a telephonic Status Hearing on August 6, 2018, at 10:00
a.m. Central Time. You must call toll-free 855-543-5039 to participate in the
hearing.
ENTERED June 26, 2018.
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Judge Amber E. Luttrell
Court of Workers’ Compensation Claims
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APPENDIX
Exhibits:
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3. Dr. Linder note
4. First Report of Injury
5. Wage Statement
6.
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Mr. Ventura’s Affidavit
Mr. Ventura’s September 28, 2017 letter
Panel of Physicians
. Separation Notice
. Notice of Intent to Rely Upon Written Medical Reports
Uniform list
0. Prime Care Medical receipt
Technical record:
SS oe Se be
Petition for Benefit Determination
Dispute Certification Notice
Request for Expedited Hearing
Motion to Add Issues in Dispute
Status Hearing Order and Order Setting Expedited Hearing
Order on Employer’s Motion to Add Issues in Dispute
Employer’s Position Statement for Expedited Hearing
Employer’s Exhibit and Witness List for Expedited Hearing
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of this Expedited Hearing Order was
sent to the following recipients by the following methods of service on this the 26" day
of June, 2018.
Name First Certified | Via Service sent to:
Class Mail Email
Mail
Valdez Ventura, x x 112 Plum St.
Employee Selmer, TN 38375
Hailey David, x davidh@waldrophall.com
Employer’s Attorney smithj@waldrophall.com
“Rena Wr beet
Penny Sheum, Court Clerk ()
Court of Workers’ Compensation Claims