Meeks, Bryant v. Nyrstar Clarksville, Inc. ( 2023 )

FILED
May 09, 2023
07:00 AM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT NASHVILLE
Bryant Meeks, ) Docket No. 2022-06-0936
Employee, )
v. )
Nyrstar Clarksville, Inc., ) State File No. 65517-2021
Employer, )
And )
Great American Spirit Insurance Co., ) Judge Kenneth M. Switzer
Carrier. )
EXPEDITED HEARING ORDER
(Decision on the Record)
Bryant Leo Meeks seeks workers’ compensation benefits, alleging that he
contracted an autoimmune condition and skin lesions from drinking unsafe water while
working at Nyrstar Clarksville, Inc. Nyrstar counters that his claim is barred by the statute
of limitations and his injuries did not arise primarily from work.
After reviewing all admissible documents, the Court finds that the proof is
insufficient to show that the statute of limitations bars Mr. Meeks’s claim. However, Mr.
Meeks did not provide a medical opinion connecting his condition to his employment.
Therefore, he is unlikely to prevail at trial in proving that his condition arose primarily
from work. His requested benefits are denied at this time.
Claim History
At this stage of the case, the relevant facts are as follows.1
Mr. Meeks filed a completed petition for benefit determination on August 23, 2021.
The petition lists a date of injury of August 6, 2021, but Mr. Meeks testified that his former
1
The pleadings and evidence in this case are lengthy and detailed. Nyrstar objected to the admissibility of
numerous documents, which the Court ruled on in the appendix to this order.
1
attorney wrote that date, and he does not know why. Mr. Meeks filed an amended petition
on May 23, 2022, with a date of injury of “6-2020” and “diagnosis pending.” The petition
also gives a date of injury as “6-2020 – 9-2020.”
In the petitions, Mr. Meeks alleged he drank water from a hose while working at
Nyrstar. Specifically, he consumed this water for approximately ninety days until a co-
worker told him to stop. A declaration from Kevin Cook, Nyrstar’s Safety, Health,
Environment and Quality Manager, stated that Mr. Meeks was instructed to stop drinking
the water on June 12, 2020.
Approximately two weeks later, per his affidavit, Mr. Meeks began experiencing
difficulty breathing, fatigue, dehydration, confusion, memory loss, and “painful seizures in
a fetal position.” He believed he had the coronavirus. On July 18, per the admissions,
Nyrstar put Mr. Meeks on leave to get tested and to quarantine.2 Eventually he tested
negative for covid. Mr. Meeks’s affidavit does not say when he came to believe that he
had contracted an occupational disease.
Nyrstar terminated Mr. Meeks on August 31, 2020. Per his responses to Nyrstar’s
interrogatories, he has not worked since.
According to his affidavit, in March 2021, Mr. Meeks began seeing a series of
doctors to obtain a diagnosis and treatment. He saw emergency room providers, his
primary care physician, and multiple specialists, including two dermatologists, an
immunologist, a rheumatologist, a hematologist, and a respiratory expert.
On review of the admissible records, osteopath/dermatologist Dr. Kimberly Lehman
diagnosed “impetigo: erosions with yellow-honey colored crust distributed on the arms,
face, and trunk” at a July 2021 visit. Then in December 2021, Dr. Susan Kroop, a
rheumatologist, diagnosed prurigo nodularis, dyspnea on exertion, and heavy metal
exposure.3 Dr. Kroop noted, “I am concerned patient has underlying heavy metal toxicity
driving myriad of [symptoms].” Neither doctor took Mr. Meeks off work. In addition, as
documented by multiple photos, Mr. Meeks has developed a skin condition characterized
by rashes, blistering, oozing blood, and pus.
Mr. Meeks admitted at his deposition that a hematologist, an asthma expert, Dr.
Kroop, and two dermatologists did not say his current conditions were caused by drinking
contaminated water at work.
2
Nyrstar argued that Mr. Meeks gave notice that day, but the pleadings allege that he notified Kathy
Spiceland on August 16, 2021, and Eric Lilly on “8-2020.”
3
Prurigo nodularis is a “chronic skin disorder characterized by the presence of hard, extremely itchy bumps
known as nodules.” The cause of the condition is unknown. Yale Medicine,
https://www.yalemedicine.org/conditions/prurigo-nodularis-overview (last visited May 4, 2023).
2
Mr. Meeks contended that he suffers from a life-threatening autoimmune condition,
heavy metal poisoning, and kidney/liver failure, because he consumed tap water while
working for Nyrstar. He requested medical and temporary disability benefits.
Nyrstar has never paid benefits, asserting, among other arguments, that Mr. Meeks
did not file his claim within the statute of limitations, and no medical proof shows his
alleged condition arose primarily out of his employment.4
Findings of Fact and Conclusions of Law
The timeliness of Mr. Meeks’s claim is the threshold issue.
Mr. Meeks alleged an occupational injury in his two completed and filed petitions.
The Workers’ Compensation Law states that the “partial or total incapacity for work
resulting from an occupational disease shall be treated as the happening of an injury by
accident[.]” Tenn. Code Ann. § 50-6-303(a)(1) (2022).
Further, the right to compensation for an occupational disease shall be forever
barred unless a claim is initiated under section 50-6-203; provided that the applicable time
limitation shall commence as of the date of the beginning of the incapacity for work
resulting from an occupational disease. Tenn. Code Ann. § 50-6-306(a) (Emphasis added).
Nyrstar never paid benefits, so under subdivision -203(b)(1), the right to compensation is
barred unless a petition is filed within one year after the accident resulting in injury.
As to the date of injury, in Adams v. American Zinc Company of Tennessee, 326
S.W.2d 425, 427 (Tenn. 1959), the Tennessee Supreme Court wrote that it is “commonly
known that these occupational diseases are progressive.” Further, “‘the beginning’ of the
incapacity for work resulting from an occupational disease . . . is when such occupational
disease, with the knowledge of the employee, or knowledge that he should have had in the
exercise of reasonable caution, that he has an occupational disease and that it has
injuriously affected his capacity to work to a degree amounting to a compensable
disability.” Id. at 428 (Emphasis added).
The Appeals Board considered somewhat similar circumstances in Morgan v.
Lockheed Martin Corporation, 2019 TN Wrk. Comp. App. Bd. LEXIS 76 (Dec. 3, 2019).
The Board affirmed a denial of summary judgment in an occupational disease claim. Citing
Adams, the Board observed, “[Q]uestions involving the commencement of the running of
the statute of limitations in workers’ compensation cases most often are factual in nature.”
Id. at *8.
4
Nyrstar also argued that Mr. Meeks did not prove that the “process water” he consumed at work is toxic.
In addition, “notice” and “failure to state a claim upon which relief mat be granted” are listed as defenses
on the dispute certification notice, but Nyrstar did not raise them in its brief. Given the other rulings in this
case, the Court need not decide these at this time.
3
On this record, the Court is unable to find facts regarding when the statute of
limitations commenced. In the amended petition, Mr. Meeks alleged dates of injury of “6-
2020” and “6-2020 – 9-2020” without giving a date certain. If Mr. Meeks began to suspect
that he suffers from an occupational disease in September of 2020, as he pleaded, then he
timely filed his first petition on August 23, 2021, before the statute of limitations ran.
The parties agreed that on June 12, 2020, a coworker told Mr. Meeks to stop
drinking the water. But that does not mean that Mr. Meeks knew on June 12, 2020, that he
had an occupational disease that had injuriously affected his capacity to work. In fact, the
proof shows otherwise. Mr. Meeks testified that he continued working after that date and
his symptoms began on an unspecified date in July 2020. On July 18, Mr. Meeks believed
he may have contracted the coronavirus, and he was taken off work for quarantine and
testing. The proof does not give a date when Mr. Meeks’s alleged occupational disease
injuriously affected his ability to work. Nor has he shown that a physician diagnosed an
occupational disease.
Therefore, on this record, Nyrstar has not shown that Mr. Meeks is unlikely to
prevail at a hearing on the merits that he filed his petition after the statute of limitations
expired.
Nyrstar also argued that Mr. Meeks has not shown medical causation linking his
alleged condition to drinking water at work. On this point, Mr. Meeks must show that he
suffered an “injury” as defined in the Workers’ Compensation Law.
Tennessee Code Annotated section 50-6-102(12) states that an “injury” includes an
“occupational disease including diseases of the heart, lung and hypertension . . . arising
primarily out of and in the course and scope of employment, that causes . . . disablement
or the need for medical treatment.” Further, an injury causes disablement or the need for
medical treatment only if it has been shown “to a reasonable degree of medical certainty
that it contributed more than fifty percent (50%)” in causing the disablement or need for
medical treatment, considering all causes. “Shown to a 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. Id
By Mr. Meeks’s admission, no physician has stated that his condition fits within this
statutory definition. He relies on the opinion of a nurse practitioner, which the Court cannot
consider. Mr. Meeks sincerely believes that drinking the water from the hose at Nyrstar
caused his illness. This, however, is argument not proof. See Lurz v. Int’l Paper Co., 2018
TN Wrk. Comp. App. Bd. LEXIS 8, at *17 (Feb. 14, 2018) (parties cannot rely solely on
their own medical interpretations of the evidence to successfully support their arguments).
4
Mr. Meeks, as the employee in a workers’ compensation case, has the burden of
proving all essential elements of his claim for benefits. Scott v. Integrity Staffing Solutions,
2015 TN Wrk. Comp. App. Bd. LEXIS 24, at *6 (Aug. 18, 2015). At an expedited hearing,
he must show that he is likely to prevail at a hearing on the merits. Tenn. Code Ann. § 50-
6-239(d)(1). The Court holds that he has done neither at this time. Nothing precludes him
from obtaining additional medical evidence for consideration at a later hearing.
IT IS, THEREFORE, ORDERED AS FOLLOWS:
1. Mr. Meeks’s requested relief is denied at this time.
2. This case is set for a status hearing on July 10, 2023, at 10:30 a.m. Central. You
must call 615-532-9552 or 866-943-0025 to participate.
ENTERED May 9, 2023.
________________________________________
JUDGE KENNETH M. SWITZER
Court of Workers’ Compensation Claims
5
APPENDIX
Exhibits and technical record:
1. Petition for Benefit Determination
2. Wage statement
3. Dispute Certification Notice and employer’s additional issues (email to Cheryl
Ploeger from defense counsel, February 6, 2023)
4. Order Resetting Status Hearing
5. Hearing Request
6. Poisoned at Work
7. Declaration of Mr. Meeks
8. Employee’s Responses to Employer’s and Insurance Carrier’s first Set of
Interrogatories
9. Photographs
10. Medical Records
a. Pinnacle Dermatology-Dr. Lehman only
b. Dr. Susan Kroop
11. Employee’s Request for Production of Documents
12. Employee’s Pre-Compensation Hearing Statement
13. Employer’s Notice of Objection to Employee’s C-32 Form
14. Request for Scheduling Hearing
15. Employer’s First Set of Requests for Admission to Employee
16. Status Hearing Order
17. Notice of Filing Excerpts from the Deposition of Bryant Leo Meeks
18. Employer’s Position Statement
a. Petitions
b. Declaration of Kevin Cook
c. Declaration of Madeline Boles
19. Docketing Order
20. Motion to Withdraw and affidavit
21. Status Order
22. Employer’s and Carrier’s Evidentiary Objections
6
Nyrstar’s objections
Nyrstar objected to many of the documents in the file, mostly on grounds of
relevance and hearsay. “Relevant evidence” means “evidence having any tendency to
make the existence of any fact that is of consequence to the determination of the action
more probable or less probable than it would be without the evidence.” Tenn. R. Evid.
4.01. (2022). “Hearsay” is a “statement, other than one made by the declarant while
testifying, offered in evidence to prove the truth of the matter asserted,” and it is generally
not admissible. Tenn. R. Evid. 801(c), 802. Each objection is addressed below.
Jenni White Barnes.
Sustained. Tennessee Compilation Rules and Regulations 0800-02-21-.16(2)(b)
(February, 2022) states that medical records are self-authenticating and admissible when
signed by a physician. Because Ms. Barnes is not a physician, the records are not
admissible. Ms. Barnes is a nurse practitioner and therefore not qualified to give an expert
opinion on causation. Dorsey v. Amazon.com, 2015 TN Wrk. Comp. App. Bd. LEXIS 13,
at *10 (May 14, 2015). As for the forms, Tennessee Code Annotated section 50-6-
235(c)(1) states that they are to be completed by “a physician.” Therefore, the following
was not considered:
◼ Medical records
◼ Forms C-32, C-30.
TOSHA communications.
Sustained. It is irrelevant if Nyrstar violated safety standards by any alleged failure
to label the tap water as non-drinkable, or if it took subsequent remedial measures to label
the hose. “One of the fundamental purposes of workers’ compensation law is to
compensate employees for work-related injuries irrespective of fault.” Lang v. Nissan N.
Am., Inc., 170 S.W.3d 564, 572 (Tenn. 2005) (Emphasis added). The documents are also
inadmissible hearsay and include:
◼ Emails, Mr. Meeks and Russell Dugan
◼ Department of Labor and Workforce Development, Division of Occupational Safety
and Health, letter to Mr. Meeks, August 13, 2021
◼ Department of Labor and Workforce Development, Division of Occupational Safety
and Health, letter to Kevin Cook, August 13, 2021
◼ TOSHA case file activity sheet
◼ TOSHA Notice of Alleged Safety or Health Hazards
◼ TOSHA-staff emails
◼ Purchase requisition-labels
◼ Nyrstar responses to TOSHA complaint
◼ TOSHA 9/3/21 letters closing complaint.
7
Dr. Smarda.
Sustained. Nyrstar objected that he is not qualified to give opinions on medical
causation because he is not a doctor. The Court agrees. Dorsey, supra, and on grounds of
relevance and hearsay. The Court did not consider:
◼ Communications between him and Mr. Meeks
◼ Curriculum vitae
◼ Interview.
Nyrstar communications to Mr. Meeks.
Sustained as to relevance. The circumstances of Mr. Meek’s separation are not
relevant to the issues of the timeliness of his petition or medical causation. They are also
inadmissible hearsay. The Court did not consider:
◼ Letter from Gladivee Garcia to Mr. Meeks
◼ Email correspondence between Robert Winton and Mr. Meeks.
Poisoned at work.
Overruled. The Court considers this as argument. “The courts give pro se litigants
who are untrained in the law a certain amount of leeway in drafting their pleadings and
briefs.” Silas v. Brock Servs., 2015 TN Wrk. Comp. App. Bd. LEXIS 35, at *11 (Oct. 2,
2015).
Employee’s Responses to Employer’s and Insurance Carrier’s first Set of Interrogatories.
Overruled, as these are sworn responses and relevant. Inserted images were not
considered, as they are hearsay.
Medical Records.
Nyrstar objected to all records as not signed by physicians. This objection is
overruled as to Dr. Susan Kroop. She is a medical doctor.
As to Pinnacle Dermatology, the objection is sustained in part and overruled in part.
The Court considered records electronically signed by Dr. Kimberly Lehman but no
records signed by nurse practitioners.
The Court sustained the objection to these nurse practitioners and a doctor of
optometry:
◼ Chrystelle Cluck
◼ Stacey Michelin
◼ Keyly Knechtel
◼ Tennova emergency room nurse practitioners
◼ Matthew Drew
Finally, the objection is sustained as to the Labcorp records, which are unsigned.
Social Security Administration, letter to Mr. Meeks, March 25, 2022.
Sustained. Evidence from a Social Security Disability case is not admissible to
establish the existence of an employee’s permanent disability. Gonzales v. J. W. Carell
8
Enter., LLC, No. E2013-02072-SC-R3-WC, 2014 Tenn. LEXIS 1038, at *17-18 (Tenn.
Workers’ Comp. Panel Dec. 17, 2014).
Employee’s Request for Production of Documents.
Overruled. This is a pleading.
CERTIFICATE OF SERVICE
I certify that a copy of this Order was sent as indicated on May 9, 2023.
Name Regular Email Sent to:
mail
Bryant Meeks, self- X X Leomeeks1978@gmail.com
represented 5801 Buckner Rd.
employee Cumberland Furnace, TN 37051
Lee Anne Murray, X leeamurray@feeneymurray.com
Taylor Pruitt, trp@feeneymurray.com
employer’s attorneys madeline@feeneymurray.com
_______________________________________
Penny Shrum
Clerk, Court of Workers’ Compensation Claims
WC.CourtClerk@tn.gov
9
NOTICE OF APPEAL
Tennessee Bureau of Workers’ Compensation
www.tn.gov/workforce/injuries-at-work/
wc.courtclerk@tn.gov | 1-800-332-2667
Docket No.: ________________________
State File No.: ______________________
Date of Injury: _____________________
___________________________________________________________________________
Employee
v.
___________________________________________________________________________
Employer
Notice is given that ____________________________________________________________________
[List name(s) of all appealing party(ies). Use separate sheet if necessary.]
appeals the following order(s) of the Tennessee Court of Workers’ Compensation Claims to the
Workers’ Compensation Appeals Board (check one or more applicable boxes and include the date file-
stamped on the first page of the order(s) being appealed):
□ Expedited Hearing Order filed on _______________ □ Motion Order filed on ___________________
□ Compensation Order filed on__________________ □ Other Order filed on_____________________
issued by Judge _________________________________________________________________________.
Statement of the Issues on Appeal
Provide a short and plain statement of the issues on appeal or basis for relief on appeal:
________________________________________________________________________________________
________________________________________________________________________________________
________________________________________________________________________________________
________________________________________________________________________________________
Parties
Appellant(s) (Requesting Party): _________________________________________ ☐Employer ☐Employee
Address: ________________________________________________________ Phone: ___________________
Email: __________________________________________________________
Attorney’s Name: ______________________________________________ BPR#: _______________________
Attorney’s Email: ______________________________________________ Phone: _______________________
Attorney’s Address: _________________________________________________________________________
* Attach an additional sheet for each additional Appellant *
LB-1099 rev. 01/20 Page 1 of 2 RDA 11082
Employee Name: _______________________________________ Docket No.: _____________________ Date of Inj.: _______________
Appellee(s) (Opposing Party): ___________________________________________ ☐Employer ☐Employee
Appellee’s Address: ______________________________________________ Phone: ____________________
Email: _________________________________________________________
Attorney’s Name: _____________________________________________ BPR#: ________________________
Attorney’s Email: _____________________________________________ Phone: _______________________
Attorney’s Address: _________________________________________________________________________
* Attach an additional sheet for each additional Appellee *
CERTIFICATE OF SERVICE
I, _____________________________________________________________, certify that I have forwarded a
true and exact copy of this Notice of Appeal by First Class mail, postage prepaid, or in any manner as described
in Tennessee Compilation Rules & Regulations, Chapter 0800-02-21, to all parties and/or their attorneys in this
case on this the __________ day of ___________________________________, 20 ____.
______________________________________________
[Signature of appellant or attorney for appellant]
LB-1099 rev. 01/20 Page 2 of 2 RDA 11082