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
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
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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
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:
* Attach an additional sheet for each additional Appellee *
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:
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