Neumayr, Theodore v. First Fleey, Inc. , 2019 TN WC 112 ( 2019 )

FILED
Jul 22, 2019
01:57 PM(CT)
CLAIMS
Thoth
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT MURFREESBORO
THEODORE NEUMAYR, ) Docket No. 2018-05-0777
Employee, )
Vv. )
FIRST FLEET, INC., ) State File No. 56192-2018
Employer, )
And )
XL INS. AMERICA, INC., ) Judge Kenneth M. Switzer
Carrier. )
EXPEDITED HEARING ORDER DENYING BENEFITS
The Court convened an Expedited Hearing on July 10, 2019. The issue is whether
Mr. Neumayr established he is likely to prove entitlement to benefits for an alleged injury
to his lungs and a later stroke from exposure to exhaust fumes. The Court holds that Mr.
Neumayr is unlikely to prove medical causation and denies his request for benefits.
History of Claim
Mr. Neumayr drove a tractor-trailer for First Fleet. He testified that in
January/February 2018, he placed his truck in First Fleet’s shop four times to repair a
defect that allowed exhaust fumes into the truck’s cab. He asserted that even though First
Fleet told him each time that it fixed the problem, he continued to experience difficulties.
He further testified that he was in excellent health before the fumes began invading his
cab. However, since exposure, he began suffering severe headaches and dizziness.
Mr. Neumayr stated that on February 13, exhaust fumes in his truck caused him to
“black out” and clip a parked car with his trailer. He testified he informed his dispatcher
of the accident and that it was due to the fumes in his cab. However, he did not seek
medical attention nor did he inform police of the incident, despite testifying that he was
so dizzy he did not get out of his truck for fear of losing his balance. After the accident,
Mr. Neumayr drove for another ten hours before resting.
Ms. Maggie Engel, claims representative for First Fleet, testified that the company
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TENNESSEE COURT OF
WORKERS' COMPENSATION
did not know about Mr. Neumayr’s accident until February 15. She stated that First Fleet
records do not indicate Mr. Neumayr reported the accident before then or that he ever
stated he “blacked out” due to exhaust fumes before filing a petition for benefit
determination several months later. First Fleet terminated Mr. Neumayr on February 15,
citing multiple wrecks as the reason.
Mr. Neumayr testified that he went to the VA Hospital the day after his
termination and requested a carbon monoxide test. The test results, dated February 20,
indicated “very high” levels of carbon monoxide in his blood, as interpreted by Karen
Leidy, N.P. She recommended that Mr. Neumayr stay out of his truck until it was fixed.
On February 21, N.P. Leidy wrote to Mr. Neumayr that she consulted a
pulmonologist, Dr. Carl Green, regarding the elevated carbon monoxide level. Dr. Green
indicated that Mr. Neumayr should reduce his exposure to “excess diesel fumes” or find a
new profession.
Approximately two weeks after his termination, Mr. Neumayr found employment
driving a dump truck for Volunteer Materials. He testified that he continued to
experience severe headaches and dizziness. On March 15, he suffered a cerebellar stroke
while on the job for Volunteer. He received emergency treatment and incurred a bill for
$2,134.00. Mr. Neumayr did not present any medical proof causally relating his stroke to
exposure to exhaust fumes. He acknowledged that the doctors told him they could not
directly relate the stroke to exposure.
Mr. Neumayr claimed that he was out of work from March 15 until May 13 due to
the stroke. He requested the Court order First Fleet to pay the emergency room bill and
temporary total disability benefits.
Findings of Fact and Conclusions of Law
Mr. Neumayr must present sufficient evidence that he is likely to prevail at a
hearing on the merits. See Tenn. Code Ann. § 50-6-239(d)(1)(2018); McCord v.
Advantage Human Resourcing, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9
(Mar. 27, 2015).
The threshold issue is causation. To prevail, Mr. Neumayr must show he is likely
to prove that his stroke arose primarily from exposure to exhaust fumes while working
for First Fleet. To do that, he must establish “to a reasonable degree of medical certainty
that [the injury] contributed more than fifty percent (50%) in causing the death,
disablement or need for medical treatment, considering all causes.” Reasonable degree of
medical certainty means “it is more likely than not considering all causes, as opposed to
speculation or uncertainty.” See Tenn. Code Ann. § 50-6-102(14). Thus, causation must
be established by expert medical testimony, and it must be by more than “speculation or
2
possibility.” Jd.
Mr. Neumayr might be able to establish he suffered from exposure to fumes and
even that it was due to driving a defective truck for First Fleet. The Court has no reason
to doubt Mr. Neumayr on this point. However, no medical evidence established a
connection between his exposure and his stroke, which occurred two weeks after his
employment with First Fleet ended. Although Mr. Neumayr received treatment at the
VA Hospital for the stroke, he did not offer any opinions from his treating doctors
regarding causation. In fact, he testified that his physicians told him that they could only
say that the stroke could be related to the exposure, which is insufficient to establish
causation. /d.
The Court further finds that Mr. Neumayr’s evidence is insufficient to establish he
is likely to prevail at trial even with regard to the provision of a panel of physicians. See
Tenn. Code Ann. § 50-6-204. Medical evidence is generally required in order to
establish a causal relationship, “[e]xcept in the most obvious, simple and routine cases.”
Cloyd v. Hartco Flooring Co., 274 S.W.3d 638, 643 (Tenn. 2008). Here, Mr. Neumayr
did not provide any written opinion from his treating doctors that even addressed a
possible causal connection between his stroke and exhaust fume exposure. Mr. Neumayr
only offered speculation and conjecture as to the cause of his stroke, which cannot serve
as justification for the provision of benefits. Tenn. Code Ann. section 50-6-102(14).
IT IS, THEREFORE, ORDERED that:
1. Mr. Neumayr’s request for worker’s compensation benefits is denied at this time.
2. This matter is set for a Scheduling Hearing on September 9, 2019, at 2:00 p.m.
C.T. The parties or their counsel must call 615-253-0010 or toll-free at 855-689-
9049 to participate in the hearing. Failure to call might result in a determination of
the issues without your participation.
ENTERED ON JULY22, 2019.
Robert V. Durham, Judge |
Court of Workers’ Compensation Claims
APPENDIX
Technical Record
we ee br be
Petition for Benefit Determination
Dispute Certification Notice
Order on Show Cause Hearing
Request for Expedited Hearing
Objection to Hearing on the Record
Order Setting In-Person Hearing
First Fleet’s Expedited Hearing Position Statement
Exhibits
Mr. Neumayr’s affidavit
1
2. Record from Centennial Medical Center
3.
4
5
Medical Bill from Centennial
. Carbon Monoxide test results
. Letter from VA Hospital to Mr. Neumayr
CERTIFICATE OF SERVICE
I certify that a copy of this order was sent as indicated on July 22, 2019.
Name Certified Mail | Via Fax Via Email Service sent to:
Theodore Xx 1856 Sawgrass Lane
Neumayr Chapel Hill, TN 37034
Christen x cblackburn@lewisthomason.com
Blackburn
fang Hn
Penny Shruny, Clerk of Court
Court of Workers’ Compensation Claims
Expedited Hearing Order Right to Appeal:
If you disagree with this Expedited Hearing Order, you may appeal to the Workers’
Compensation Appeals Board. To appeal an expedited hearing order, you must:
1. Complete the enclosed form entitled: “Expedited Hearing Notice of Appeal,” and file the
form with the Clerk of the Court of Workers’ Compensation Claims within seven
business days of the date the expedited hearing order was filed. When filing the Notice
of Appeal, you must serve a copy upon all parties.
2. You must pay, via check, money order, or credit card, a $75.00 filing fee within ten
calendar days after filing of the Notice of Appeal. Payments can be made in-person at
any Bureau office or by U.S. mail, hand-delivery, or other delivery service. In the
alternative, you may file an Affidavit of Indigency (form available on the Bureau’s
website or any Bureau office) seeking a waiver of the fee. You must file the fully-
completed Affidavit of Indigency within ten calendar days of filing the Notice of
Appeal. Failure to timely pay the filing fee or file the Affidavit of Indigency will
result in dismissal of the appeal.
3. You bear the responsibility of ensuring a complete record on appeal. You may request
from the court clerk the audio recording of the hearing for a $25.00 fee. If a transcript of
the proceedings is to be filed, a licensed court reporter must prepare the transcript and file
it with the court clerk within ten business days of the filing the Notice of
Appeal. Alternatively, you may file a statement of the evidence prepared jointly by both
parties within ten business days of the filing of the Notice of Appeal. The statement of
the evidence must convey a complete and accurate account of the hearing. The Workers’
Compensation Judge must approve the statement before the record is submitted to the
Appeals Board. If the Appeals Board is called upon to review testimony or other proof
concerning factual matters, the absence of a transcript or statement of the evidence can be
a significant obstacle to meaningful appellate review.
4. If you wish to file a position statement, you must file it with the court clerk within ten
business days after the deadline to file a transcript or statement of the evidence. The
party opposing the appeal may file a response with the court clerk within ten business
days after you file your position statement. All position statements 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.
For self-represented litigants: Help from an Ombudsman is available at 800-332-2667.
LB-1099
EXPEDITED HEARING NOTICE OF APPEAL
Tennessee Division of Workers’ Compensation
www. tn.gov/labor-wid/weomp.shtml
wce.courtclerk@tn.gov
1-800-332-2667
Docket #:
State File #/YR:
Employee
Vv.
Employer
Notice
Notice is given that
[List name(s) of all appealing party(ies) on separate sheet if necessary]
appeals the order(s) of the Court of Workers’ Compensation Claims at
to the Workers’ Compensation Appeals
Board. [List the date(s) the order(s) was filed in the court clerk’s office]
Judge
Statement of the Issues
Provide a short and plain statement of the issues on appeal or basis for relief on appeal:
Additional Information
Type of Case [Check the most appropriate item]
L] Temporary disability benefits
L] Medical benefits for current injury
LC Medical benefits under prior order issued by the Court
List of Parties
Appellant (Requesting Party): At Hearing: LJEmployer LJEmployee
Address:
Party’s Phone: Email:
Attorney's Name: BPR#:
Attorney’s Address: Phone:
Attorney's City, State & Zip code:
Attorney’s Email:
* Attach an additional sheet for each additional Appellant *
rev. 10/18 Page 1 of 2 RDA 11082
Employee Name: SF#: DOI:
Appellee(s)
Appellee (Opposing Party): At Hearing: L]JEmployer LJEmployee
Appellee’s Address:
Appellee’s Phone: Email:
Attorney’s Name: BPR#:
Attorney’s Address: Phone:
Attorney’s City, State & Zip code:
Attorney’s Email:
* Attach an additional sheet for each additional Appellee *
CERTIFICATE OF SERVICE
I,
Expedited Hearing Notice of Appeal by First Class, United States Mail, postage prepaid, to all parties
and/or their attorneys in this case in accordance with Rule 0800-02-22.01(2) of the Tennessee Rules
of Board of Workers’ Compensation Appeals on this the day of , 20
, certify that | have forwarded a true and exact copy of this
[Signature of appellant or attorney for appellant]
LB-1099 rev. 10/18 Page 2 of 2 RDA 11082
Tennessee Bureau of Workers’ Compensation
220 French Landing Drive, I-B
Nashville, TN 37243-1002
800-332-2667
AFFIDAVIT OF INDIGENCY
I, , having been duly sworn according to law, make oath that
because of my poverty, | am unable to bear the costs of this appeal and request that the filing fee to appeal be
waived. The following facts support my poverty.
1. Full Name: 2. Address:
3. Telephone Number: 4. Date of Birth:
5. Names and Ages of Ail Dependents:
Relationship:
Relationship:
Relationship:
Relationship:
6. lam employed by:
My employer’s address is:
My employer’s phone number is:
7. My present monthly household income, after federal income and social security taxes are deducted, is:
$
8. | receive or expect to receive money from the following sources:
AFDC $ per month beginning
ssl $ per month beginning
Retirement $ per month beginning
Disability $ per month beginning
Unemployment $ per month beginning
Worker's Comp.$ per month beginning
Other $ per month beginning
LB-1108 (REV 11/15) RDA 11082
9. My expenses are:
Rent/House Payment $ permonth Medical/Dental $ per month
Groceries $ per month Telephone $ per month
Electricity $ per month School Supplies $ per month
Water $ per month Clothing $ per month
Gas $ per month Child Care $ per month
Transportation $ per month Child Support $ per month
Car $ per month
Other $ per month (describe: )
10. Assets:
Automobile $ (FMV)
Checking/Savings Acct. $
House $ __ (FMV)
Other $ Describe:
11. My debts are:
Amount Owed To Whom
| hereby declare under the penalty of perjury that the foregoing answers are true, correct, and complete
and that I am financially unable to pay the costs of this appeal.
APPELLANT
Sworn and subscribed before me, a notary public, this
day of , 20
NOTARY PUBLIC
My Commission Expires:
LB-1108 (REV 11/15) RDA 11082