TENNESSEE BUREAU OF WORKERS’ COMPENSATION IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT GRAY CHARLES HURD, ) Docket Number: 2019-02-0414 Employee, ) Vv. ) AERUS, LLC, ) State File Number: 61567-2019 Employer, ) and ) ACCIDENT FUND INSURANCE ) Judge Brian K. Addington COMPANY OF AMERICA, ) Insurance Carrier. )
EXPEDITED HEARING ORDER
The Court held an expedited hearing on October 23, 2020, to determine whether Charles Hurd is entitled to medical benefits for mold exposure at work. After reviewing the testimony and evidence submitted, the Court finds Mr. Hurd is not entitled to medical benefits at this time.
History of Claim
Mr. Hurd worked for Aerus, LLC, as a service manager at the Kingsport, Tennessee location. Through the years, Mr. Hurd, a chronic smoker, suffered with COPD and allergic rhinitis. He sought treatment for these conditions with his primary care providers and occasionally complained about allergy-like symptoms to his manager, although he missed no work.
Aerus informed Mr. Hurd in the fall of 2018 that it was closing the Kingsport office. Before its closure, he and his manager noticed mold in the building. Later testing showed elevated mold spores in part of the building. Mr. Hurd last worked on October 1, 2018.
Mr. Hurd continued to have allergy-like symptoms after his job ended, so he began treatment with Dr. Marke Pienkowski, an allergy specialist, in January 2019. He complained of allergy symptoms and significant mold exposure at work. Dr. Pienkowski diagnosed asthma, allergic rhinitis to pollen and pet dander, and food allergies. He started
1 Mr. Hurd on a series of injections. Dr. Pienkowski did not relate any of his symptoms to his work.
Mr. Hurd’s condition did not improve to his satisfaction, so he reported an injury to Aerus on August 23, 2019. Aerus initially provided him a panel of physicians but then denied his claim for lack of notice and proof of a work injury. Mr. Hurd never saw a panel physician and filed a Petition for Benefit Determination in response to Aerus’s denial.
As part of its investigation, Aerus retained Environmental Specialist Jariod Mattert to review Mr. Hurd’s claim. He determined there was no way to tell whether the mold level at Mr. Hurd’s work was elevated above outside levels because Mr. Hurd’s late report of injury kept Aerus from doing simultaneous sampling.
Aerus also asked Dr. Steve Kraman to review Mr. Hurd’s medical records. Dr. Kraman determined that it was not clear from which condition Mr. Hurd suffered, but even if mold aggravated his existing conditions, his symptoms would have resolved once he was no longer exposed to mold at work.
Mr. Hurd requested past and future medical benefits. Aerus asked the Court to deny his request because he failed to give proper notice of his injury and no physician linked his need for medical treatment to his work.
Findings of Fact and Conclusions of Law
Mr. Hurd must show that he is likely to prevail at a hearing on the merits regarding whether he is entitled to medical benefits and payment of past medical benefits. See Tenn. Code Ann. § 50-6-239(d)(1) (2019); McCord v. Advantage Human Resourcing, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015).
It is unclear to the Court whether Mr. Hurd is alleging a new injury or aggravation of a pre-existing condition. Regardless, he must submit proof that his injury or aggravation arose primarily out of and in the course and scope of his work. See Tenn. Code Ann. § 50- 6-102(14)(A).
However, Mr. Hurd did not present any medical opinion showing that he suffered an injury or an aggravation of a pre-existing condition that primarily arose from his work. Rather, Aerus provided the only expert opinions on this issue and those experts concluded that Mr. Hurd’s condition could not be linked to his work or would be resolved by now. Therefore, the Court must hold that Mr. Hurd is unlikely to prevail at a hearing on the merits, and his request for medical benefits is denied at this time. IT IS, THEREFORE, ORDERED as follows:
1. Mr. Hurd’s request for medical benefits is denied at this time.
2. This matter is set for a Scheduling Hearing on November 19, 2020, at 10:30 a.m. Eastern Time. The parties must call 855-543-5044 toll-free to participate in the hearing. Failure to appear by telephone may result in a determination of the issues without your further participation.
ENTERED October 28, 2020.
/s/ Brian K. Addington BRIAN K. ADDINGTON, JUDGE Court of Workers’ Compensation Claims
APPENDIX
Exhibits
9.
SNINAUNE WN
Affidavit of Mr. Hurd
First Report of Injury
Wage Statement
Employee's Choice of Physician
Notice of Denial of Claim for Compensation
Certificate of Mold Analysis (Pro Lab)
Photographs and statements filed by Mr. Hurd on 5/18/20
Photographs (filed by Mr. Hurd on 5/18/20 not included in Employer's compilation)
Email correspondence filed by Mr. Hurd
10. Statement of Pamela Hurd
11. Statement of Rebecca Carter
12. Declaration of Jariod Mattert
13. Statements filed by Mr. Hurd on 5/18/20
14. Providence Medical Clinic (Records not included in Employer's compilation)
15. Bristol Regional Medical Center (12/20/16 and 12/28/16)
16. Employer's Compilation of Exhibits for Expedited Hearing (filed 5/20/2020)
17. Collective Exhibits filed by Mr. Hurd on 10/15/20 (Identification Purposes Only)
Technical Record
1. Petition for Benefit Determination
2. Dispute Certification Notice
3. Request for Expedited Hearing
4. Employers Position Statement for Expedited Hearing
5. ER’s Witness and Exhibit List
6. Motion for Scheduling Hearing
7. EE’s Response to Motion for Scheduling Hearing
8. Motion in Limine to Exclude Irrelevant and Untimely Evidence
CERTIFICATE OF SERVICE I certify a copy of this Order was sent on October 28, 2020. Name Certified | Fax | Email Service sent to: Mail
Charles Hurd, xX xX 2124 Faulk Ln. Employee Kingsport, TN 37660
tngrandmawof3(@gmail.com
Jennifer White and Stephen Stovall, Employer’s Attorneys
jennifer. white@petersonwhite.com stephen. stovall@petersonwhite.com
/ [ fy J “MUA x)
PENNY SHRUM, COURT CLERK we.courtclerk@tn.gov
Lh
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: “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.
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TENNESSEE BUREAU OF WORKERS’ COMPENSATION IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT GRAY CHARLES HURD, ) Docket Number: 2019-02-0414 Employee, ) Vv. ) AERUS, LLC, ) State File Number: 61567-2019 Employer, ) and ) ACCIDENT FUND INSURANCE ) Judge Brian K. Addington COMPANY OF AMERICA, ) Insurance Carrier. )
EXPEDITED HEARING ORDER
The Court held an expedited hearing on October 23, 2020, to determine whether Charles Hurd is entitled to medical benefits for mold exposure at work. After reviewing the testimony and evidence submitted, the Court finds Mr. Hurd is not entitled to medical benefits at this time.
History of Claim
Mr. Hurd worked for Aerus, LLC, as a service manager at the Kingsport, Tennessee location. Through the years, Mr. Hurd, a chronic smoker, suffered with COPD and allergic rhinitis. He sought treatment for these conditions with his primary care providers and occasionally complained about allergy-like symptoms to his manager, although he missed no work.
Aerus informed Mr. Hurd in the fall of 2018 that it was closing the Kingsport office. Before its closure, he and his manager noticed mold in the building. Later testing showed elevated mold spores in part of the building. Mr. Hurd last worked on October 1, 2018.
Mr. Hurd continued to have allergy-like symptoms after his job ended, so he began treatment with Dr. Marke Pienkowski, an allergy specialist, in January 2019. He complained of allergy symptoms and significant mold exposure at work. Dr. Pienkowski diagnosed asthma, allergic rhinitis to pollen and pet dander, and food allergies. He started
1 Mr. Hurd on a series of injections. Dr. Pienkowski did not relate any of his symptoms to his work.
Mr. Hurd’s condition did not improve to his satisfaction, so he reported an injury to Aerus on August 23, 2019. Aerus initially provided him a panel of physicians but then denied his claim for lack of notice and proof of a work injury. Mr. Hurd never saw a panel physician and filed a Petition for Benefit Determination in response to Aerus’s denial.
As part of its investigation, Aerus retained Environmental Specialist Jariod Mattert to review Mr. Hurd’s claim. He determined there was no way to tell whether the mold level at Mr. Hurd’s work was elevated above outside levels because Mr. Hurd’s late report of injury kept Aerus from doing simultaneous sampling.
Aerus also asked Dr. Steve Kraman to review Mr. Hurd’s medical records. Dr. Kraman determined that it was not clear from which condition Mr. Hurd suffered, but even if mold aggravated his existing conditions, his symptoms would have resolved once he was no longer exposed to mold at work.
Mr. Hurd requested past and future medical benefits. Aerus asked the Court to deny his request because he failed to give proper notice of his injury and no physician linked his need for medical treatment to his work.
Findings of Fact and Conclusions of Law
Mr. Hurd must show that he is likely to prevail at a hearing on the merits regarding whether he is entitled to medical benefits and payment of past medical benefits. See Tenn. Code Ann. § 50-6-239(d)(1) (2019); McCord v. Advantage Human Resourcing, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015).
It is unclear to the Court whether Mr. Hurd is alleging a new injury or aggravation of a pre-existing condition. Regardless, he must submit proof that his injury or aggravation arose primarily out of and in the course and scope of his work. See Tenn. Code Ann. § 50- 6-102(14)(A).
However, Mr. Hurd did not present any medical opinion showing that he suffered an injury or an aggravation of a pre-existing condition that primarily arose from his work. Rather, Aerus provided the only expert opinions on this issue and those experts concluded that Mr. Hurd’s condition could not be linked to his work or would be resolved by now. Therefore, the Court must hold that Mr. Hurd is unlikely to prevail at a hearing on the merits, and his request for medical benefits is denied at this time. IT IS, THEREFORE, ORDERED as follows:
1. Mr. Hurd’s request for medical benefits is denied at this time.
2. This matter is set for a Scheduling Hearing on November 19, 2020, at 10:30 a.m. Eastern Time. The parties must call 855-543-5044 toll-free to participate in the hearing. Failure to appear by telephone may result in a determination of the issues without your further participation.
ENTERED October 28, 2020.
/s/ Brian K. Addington BRIAN K. ADDINGTON, JUDGE Court of Workers’ Compensation Claims
APPENDIX
Exhibits
9.
SNINAUNE WN
Affidavit of Mr. Hurd
First Report of Injury
Wage Statement
Employee's Choice of Physician
Notice of Denial of Claim for Compensation
Certificate of Mold Analysis (Pro Lab)
Photographs and statements filed by Mr. Hurd on 5/18/20
Photographs (filed by Mr. Hurd on 5/18/20 not included in Employer's compilation)
Email correspondence filed by Mr. Hurd
10. Statement of Pamela Hurd
11. Statement of Rebecca Carter
12. Declaration of Jariod Mattert
13. Statements filed by Mr. Hurd on 5/18/20
14. Providence Medical Clinic (Records not included in Employer's compilation)
15. Bristol Regional Medical Center (12/20/16 and 12/28/16)
16. Employer's Compilation of Exhibits for Expedited Hearing (filed 5/20/2020)
17. Collective Exhibits filed by Mr. Hurd on 10/15/20 (Identification Purposes Only)
Technical Record
1. Petition for Benefit Determination
2. Dispute Certification Notice
3. Request for Expedited Hearing
4. Employers Position Statement for Expedited Hearing
5. ER’s Witness and Exhibit List
6. Motion for Scheduling Hearing
7. EE’s Response to Motion for Scheduling Hearing
8. Motion in Limine to Exclude Irrelevant and Untimely Evidence
CERTIFICATE OF SERVICE I certify a copy of this Order was sent on October 28, 2020. Name Certified | Fax | Email Service sent to: Mail
Charles Hurd, xX xX 2124 Faulk Ln. Employee Kingsport, TN 37660
tngrandmawof3(@gmail.com
Jennifer White and Stephen Stovall, Employer’s Attorneys
jennifer. white@petersonwhite.com stephen. stovall@petersonwhite.com
/ [ fy J “MUA x)
PENNY SHRUM, COURT CLERK we.courtclerk@tn.gov
Lh
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: “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 conceming 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.
NOTICE OF APPEAL
Tennessee Bureau of Workers’ Compensation www.tn.gov/workforce/injuries-at-work/ we.courtclerk@tn.gov | 1-800-332-2667
Docket No.: State File No.:
Date of Injury:
Employee
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):
D Expedited Hearing Order filed on UO) Motion Order filed on
O Compensation Order filed on 0 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 !nj.:
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 | 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