Pool, Ronald v. Jarmon D&Q Transport

FILED
January 4, 2016
TENNESSEE
WORKERS' COMPENSATION
APPEALS BOARD
Time: 1 :35 P. M.
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 )
)
)
Appeal from the Court of Workers' )
Compensation Claims )
Kenneth M. Switzer, Chief Judge )
Vacated and Remanded-Filed January 4, 2016
In this interlocutory appeal, the employee alleges he suffered an occupational disease as a
result of exposure to mold in his employment as a shuttle van driver. The employer
denied the claim, asserting that the employee failed to give timely notice of his alleged
condition and that the employee's condition did not arise primarily out of the
employment. Following an expedited hearing, the trial court concluded that the
employee presented sufficient evidence from which the court determined he would likely
prevail at a hearing on the merits with respect to the notice issue. Thus, the trial court
ordered the employer to authorize medical treatment by a specialist for the purpose of
obtaining a causation opinion. The employer has appealed. Because neither the parties
nor the trial court addressed the statutory notice requirements applicable to a claim for
benefits resulting from an occupational disease, we vacate the trial court's order and
remand the case for the trial court's consideration of the applicable statutory notice
requirements.
Judge David F. Hensley delivered the opinion of the Appeals Board, in which Judge
Marshall L. Davidson, III, and Judge Timothy W. Conner joined.
Duane Willis, Nashville, Tennessee, for the employer-appellant, Jarmon D&Q Transport
Ronald Pool, Clarksville, Tennessee, pro se
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Factual and Procedural Background
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."
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
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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."
Employee filed a Petition for Benefit Determination requesting medical and
temporary disability benefits. Following unsuccessful mediation, Employee requested an
expedited hearing, which was conducted on November 10, 2015. The trial court
determined that Employee presented sufficient evidence "from which this . Court
concludes that he is likely to prevail at a hearing on the merits regarding the sufficiency
of notice." Additionally, the trial court found that although Employee did not establish
by a preponderance of the evidence that his condition was work-related, he met the lesser
standard of proof required in an expedited hearing for medical benefits to be initiated
prior to trial. The court ordered Employer to provide an evaluation by Dr. Overholt, the
allergist Employee selected from the Employer-provided panel. Employer timely filed a
notice of appeal questioning ( 1) whether the evidence preponderates against the trial
court's determination that Employee gave timely notice of his alleged occupational
disease, and (2) whether the evidence preponderates against the trial court's conclusion
1
that Employee is entitled to medical benefits.
Standard of Review
The standard we apply 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;
L In the Expedited Hearing Notice of Appeal, Employer also asserts that the "granting of benefits in [an]
expedited hearing violates due process." However, Employer does not mention this issue in its brief on
appeal. "It is not the role of the courts, trial or appellate, to research or construct a litigant's case or
arguments for him or her, and where a party fails to develop an argument in support of his or her
contention or merely constructs a skeletal argument, the issue is waived." Sneed v. Bd. of Prof'/
Responsibility of the Sup. Ct. of Tenn., 301 S.W.3d 603, 615 (Tenn. 2010). Consistent with this settled
principle, we deem this issue waived in this interlocutory appeal.
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(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
In its expedited hearing order, the trial court noted Employer's contention that
Tennessee Code Annotated section 50-6-301 "dictates the non-compensability of
[Employee's] claim because [Employee] cannot show that a causal link exists between
his work and the injury." While agreeing with Employer that "a definitive opinion on
causation has yet to be rendered," the trial court correctly noted that the Workers'
Compensation Reform Act of 2013 "repealed section 50-6-301 in its entirety as of July 1,
2014." Although this section remains in effect as to injuries occurring prior to July 1,
2014, it is not applicable to injuries occurring on or after July 1, 2014.
The trial court relied on Tennessee Code Annotated section 50-6-20l(b)(l) (2014)
in its analysis of the notice issue, which provides as follows:
In those cases where the injuries occur as the result of gradual or
cumulative events or trauma, then the injured employee ... shall provide
notice of the injury to the employer within thirty (30) days after the
employee ... [k]nows or reasonably should know that the employee has
suffered a work-related injury that has resulted in permanent physical
impairment.
In its brief on appeal, Employer likewise focuses on section 50-6-201 and the reasons
supporting its position that Employee failed to provide timely notice of his alleged
occupational disease. However, neither the parties nor the trial court addressed
Tennessee Code Annotated section 50-6-305(a) (2015), which specifies the time within
which an employee must provide notice of an occupational disease, the type of condition
asserted by Employee in this case. That statute states:
Within 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.
Tenn. Code Ann.§ 50-6-305(a) (2015) (emphasis added).
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Here, neither the trial court nor the parties. addressed when "the first distinct
manifestation" of Employee's alleged occupational disease occurred as contemplated by
section 50-6-305; rather, the trial court, relying upon section 50-6-201, analyzed the
notice requirement based on whether Employee "acted reasonably in waiting until he
possessed what he believed to be objective proof, beyond simply his own suspicion, that
mold in the work vehicles made him sick." Indeed, as far as this record shows, there is
no mention of the occupational disease notice requirement embodied in section 50-6-305.
Consequently, the trial court's decision is vacated and the case remanded for a
determination of whether Employee provided timely notice of his alleged occupational
disease under section 50-6-305.
Before concluding, we note that the trial court stated Employee "has a right to a
causation opinion to determine whether his injury is work-related." We respectfully
disagree. While an injured worker who meets the applicable statutory requirements is
entitled to medical benefits, there is no "right to a causation opinion" as such. See
generally Tenn. Code Ann. § 50-6-204(d)(9), (g)(2)(B) (2015). If a trial court determines
that medical benefits are appropriate, the court can order the initiation of such benefits.
However, it is the parties' responsibility to secure expert opinions or other evidence
necessary to address any applicable burden of proof. Nevertheless, in light of our
resolution of the notice issue, it is unnecessary for us to reach the merits of Employer's
issue concerning whether the evidence preponderates against the trial court's conclusion
that Employee is entitled to medical benefits.
Conclusion
For the foregoing reasons, the trial court's decision is vacated and the case is
remanded.
David F. Hensley, Jud
Workers' Compensation Appeals Board
5
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 4th day of January, 2016.
Name Certified First Class Via Fax Via Email Address
Mail Mail Fax Number Email
Ronald Pool X 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