### F~ED July 18,2016

1N COURT OF \\ORKIRS' COl\IPENSATION CLAIMS

TENNESSEEBUREAUOFWORKERS' COMPENSATION INTHE COURTOFWORKERS' COMPENSATIONCLAIMS ATNASHVILLE
RonaldPool,Employee, 

### v. JarmonD&QTransport, Employer, And RiverportInsuranceCompany, Carrier. ) DocketNo.: 2015-06-0510 ) ) ) StateFile Number: 48782-2015 ) ) ) JudgeKenneth M. Switzer )

EXPEDITEDHEARING ORDERDENYING COMPENSABILITY Time7:J.SAl\1

This matter came before the undersigned Workers' Compensation Judge on July 14, 2016, on the Request for Expedited Hearing filed by the Employee, Ronald Pool, pursuant to Tennessee Code Annotated section 50-6-239 (2015). The present focus of this case is the compensability ofan occupational disease Mr. Pool allegedly sustained while working for Jarmon D&Q Transport. For the reasons set forth below, the Court finds Mr. Pool failed to satisfy his burden to show the alleged injury arose primarily out ofand in the course and scope ofemployment. Therefore, his claim is not compensable, and he is notentitledto any additional workers' compensationbenefits atthis time. 1 HistoryofClaim
This is Mr. Pool's second expedited hearing. The Court issued its first Expedited Hearing Order Granting Medical Benefits on November 17, 2015. (T.R. 2.) Jarmon appealed, and the Appeals Board remanded the case for additional consideration regarding the legal sufficiency of Mr. Pool's notice of injury. The Court issued its Expedited Hearing Order on Remand on January 13, 2016. (T.R. 3.) The Court incorporates byreference and supplements those orders withthe additional facts and legal analysis, below, to the previous ExpeditedHearing Orders.

1A complete listing ofthe technical record and exhibits admitted at the Expedited Hearing is attachedto this Order as an appendix. 1In compliance with the previous Expedited Hearing Orders, Jarmon offered a panel ofallergists, and Mr. Pool selectedDr. Jane Choi. Mr. Pool saw Dr. Choi on April 21, 2016. At that office visit, he met a nurse case manager assigned to his claim, Tara Mulderig. Accordingto Mr. Pool, Ms. Mulderig spoke to Dr. Choi outsidehis presence.
Mr. Pool testifiedhe provided copies ofhis medical records to Dr. Choi. (Ex. 2 at 5-6.) Records from the visit contain a history explaining Mr. Pool's beliefthat he suffers work-related respiratory problems and listing mold as a "trigger." (Ex. 1at 3.) Dr. Choi examined him, and her staffpreformed skin and pulmonary function testing. Mr. Pool understood that a nurse performing the skin testing found mold allergies. The records listed the following impressions: "Chronic allergic rhinitis

- rather severe seasonal and perennial sensitivities, but not significant mold sensitivity on testing today," and, "History of fatigue and various other chronic symptoms which cannot be clearly explainedbyhypersensitivityto aeroallergens ormold spores." !d.
Mr. Pool recently sought additional, unauthorized care from Dr. Holley and Dr. Kroser. Dr. Kroser ordered a CT scan, which results are unavailable. Mr. Pool did not introducerecords from treatment with these doctors.
Mr. Pool filed a Request for Expedited Hearing on June 13, 2016. (T.R. 1.) At the hearing, he argued Dr. Choi's opinions are unreliable because Ms. Mulderig exerted improper influence upon her and/or the records were "tampered with." In his affidavit, he asked this Court to order that Jarmon provide medical treatment with a mold specialist. Findings ofFactand Conclusions ofLaw EvidentiaryRulings
As an initial matter, Jarmon introduced into evidence two letters from its counsel to Dr. Choi and Dr. Giri Korivi, the previous authorized treating physician, respectively dated April 20, 2016, and June 6, 2016. (Exs. 3, 4, for identification only.) Dr. Korivi signed and dated his response on June 7, 2016, while fax markings indicate Dr. Choi returned hers on June 6, 2016. Jarmon filed the letters with the Court Clerk on July 13, 2016, one day prior to the Expedited Hearing. Tennessee Compilation Rules and Regulations 0800-02-21-.14(1)(b) (2015) provides: "Immediately upon receiving the motion [for expedited hearing], butin no event laterthan five (5) business days after the motion is filed with the clerk, the opposing party shall submit all information in its possession demonstrating that the employee is not entitled to temporary disability or medical benefits." As previously stated, Mr. Pool filed his hearing request on June 13, 2016. Jarmon filed the letters long past the five-business-day window ofJune 20, 2016,

2for its response. The letters are inadmissible.2

Mr. Pool soughtto introduce medical records from GatewayMedical Center dated March 27, 2016, and filed with the Court on March 31, 2016. He asserted the records document additional symptomology from the alleged mold exposure, in particular, neck swelling. Jarmon objected to their admissibility, arguing the records are signed by a registered nurse and are not relevant. The Court marked the records as Exhibit 5 for identificationpurposes only andreservedruling. Upon closer examination, the Court observes Dr. Rachel Root's electronic signature in multiple places, and therefore they are properly authenticated. However, as our Supreme Court held, "Once authenticity has been established relevance must be shown," and, "'Relevant evidence' means evidence having any tendency to make the existence of anyfact that is ofconsequence to the determination of the action more probable or less probable than it would be without the evidence." State v. Banks, 564 S.W.2d 947, 949 (Tenn. 1978) (emphasis added). Mr. Pool acknowledged that, within theprofferedrecords, no one at Gateway offered any statements linkingthe neck swelling to mold exposure. Causation is the central issue before the Court. The information contained within these treatmentnotes do notmake causation more orless probable. The Court sustains Jarmon's objection and declines to admittheminto evidence.3 Compensability Turning now to causation, as previously stated in the November 2015 Expedited Hearing Order, at an expedited hearing, Mr. Pool, has the burden to come forward with sufficient evidence from which this Court can determine he is likely to prevail at a hearing on the merits. McCord v. Advantage Human Resourcing, No. 2014-06-0063, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9 (Tenn. Workers' Comp. App. Bd. Mar. 27, 2015).
The Workers' Compensation Law defines injuries, including occupational diseases, so that: "'Injury' and 'personal injury' mean an
. . . occupational disease including diseases ofthe lung

... arising primarily out ofand in the course and scope of employment, that causes
...the need for medical treatment[.]" Tenn. Code Ann. §50-6- 102(14) (2015). Further, "An injury 'arisesprimarily out ofand in the course and scope ofemployment' only ifit has been shown by a preponderance ofthe evidence that the

2 The purpose ofRule 0800-02-21-.14(1)(b) is to promote fundamental fairness at an expeditedhearing and to avoid trial by ambush. The rule's requirements provide the other party with appropriate time to respond and/or rebut the proffered evidence. This Court will not allow arepresented party to sidestep a clearrule to its advantage over a selfrepresented litigant. In the expeditedhearingphase, fundamental fairness and common sense mustprevail.

3 Mr. Pool additionally sought to introduce records ofhis Department of Transportation medical examinations, asserting they document a lack ofmold-related symptoms prior to employment with Jarmon. At the hearing, the Court sustainedJarmon's objection to the records' relevance. 3employment contributed more than fifty percent (50%) in causing the injury, considering all causes." Tenn. Code Ann. § 50-6-102(14)(B) (2015). "Arising out ofemployment" refers to causation, orwork-relatedness. See Hosfordv. RedRoverPreschool, No. 2014- 05-0002, 2014 TN Wrk. Comp. App. Bd. LEXIS 1, at *20 (Tenn. Workers' Comp. App. Bd. Oct. 2, 2014). The opinion ofDr. Choi, the authorized treating physician, whom Mr. Pool selected from Jarmon's designated panel ofphysicians pursuant to Tennessee Code Annotated section 50-6-204(a)(3), "shall be presumed correct on the issue ofcausation but this presumption shall be rebuttable by a preponderance ofthe evidence[.]" Tenn. CodeAnn.§ 50-6-102(14)(E) (2015). Applying these principles, the Court finds Dr. Choi, the authorized treating physician, after examining Mr. Pool, reviewing the results ofskin and pulmonarytesting, and reading his medical records, concluded Mr. Pool's chronic allergic rhinitis did not manifest as significant mold sensitivity. She further opinedMr. Pool's history offatigue and various other chronic symptoms "cannot be clearly explained by hypersensitivity to aeroallergens or mold spores." At no point has Mr. Pool proven to this Court's satisfaction that he was, indeed, exposed to mold at work. Moreover, Dr. Choi's causation opinion is presumed correct. Although contendingthere was collusion ofsome sort, Mr. Pool provided no evidence to substantiate his claim that Ms. Mulderig influenced Dr. Choi's expert opinions or that the medical records were in any way altered. Further, while he indicated he is seeking additional care outside ofworkers' compensation, he introduced no medical records from these providers addressing causation into evidence at the hearing. Mr. Pool did not rebut the presumption of correctnessthe Workers' CompensationLaw affords Dr. Choi's opinion. Thus, he has not come forward with sufficient evidence from which this Court may conclude he is likely to prevail at a hearing on the merits regarding causation. At this time, Jarmon is under no obligation to provide additional medical benefits, nor is it obligatedtoprovidetemporary disabilitybenefits.
IT IS, THEREFORE, ORDERED as follows:
I. Mr. Pool's requests for additional medical benefits and temporary disability benefits are denied at this time.
2. This matter is set for an Initial (Scheduling) Hearing on September 6, 2016, at 1:30p.m.
ENTERED this the 18th day ofJuly, 2016.

# ge Kenneth M. S "tzer CourtofWorkers' Compensati
4Initial (Scheduling) Hearing:
An Initial (Scheduling) Hearing has been set with Judge Kenneth M. Switzer, Court ofWorkers' Compensation Claims. You must call 615-532-9552 or toll-free at 866-943-0025 to participate in the Initial Hearing.
Please Note: You must call in on the scheduled date/time to participate. Failure to call in may result in a determination of the issues without yourfurther participation. Rightto Appeal:
Tennessee Law allows any party who disagrees with this Expedited Hearing Order to appeal the decision to the Workers' Compensation Appeals Board. To file a Notice of Appeal, you must:
1. Completethe enclosed form entitled: "ExpeditedHearingNotice ofAppeal."
2. File the completed form with the Court Clerk within seven business days ofthe date the Workers' CompensationJudge enteredtheExpeditedHearing Order.
3. Serve a copy oftheExpeditedHearingNotice ofAppeal upon the opposingparty.
4. The appealing party is responsible for payment ofa filing fee in the amount of $75.00. Within ten calendar days after the filing ofa notice ofappeal, payment mustbe receivedby check, money order, orcredit cardpayment. Payments can be made in person at any Bureau office or by United States mail, hand-delivery, or otherdelivery service. Inthe alternative, the appealing party may file an Affidavit ofIndigency, on a form prescribed by the Bureau, seeking a waiver ofthe filing fee. The Affidavit ofIndigency may be filed contemporaneously with the Notice ofAppeal ormustbe filed withinten calendar days thereafter. The Appeals Board will consider the Affidavit ofIndigency and issue an Order granting or denying the request for a waiver of the filing fee as soon thereafter as is practicable. Failure to timely pay the filing fee or file the Affidavit of Indigency in accordance with this section shall result in dismissal of the appeal.
5. The parties, having the responsibility of ensuring a complete record on appeal, may request, from the Court Clerk, the audio recording ofthe hearing for the purpose ofhaving a transcript prepared by a licensed court reporter and filing it with the Court Clerk within ten calendar days of the filing of the Expedited Hearing Notice ofAppeal. Alternatively, the parties may file ajoint statement of
5the evidence within ten calendar days of the filing of the Expedited Hearing Notice of Appeal. The statement ofthe evidence must convey a complete and accurate account of what transpired in the Court of Workers' Compensation Claims and must be approved by the workers' compensation judge before the record is submittedto the Clerkofthe Appeals Board.
6. Ifthe appellant elects to file a position statement in support ofthe interlocutory appeal, the appellant shall file such position statementwith the CourtClerk within five business days ofthe expiration ofthe time to file a transcript or statement of the evidence, specifYing the issues presented for review and including any argument in support thereof. A party opposing the appeal shall file a response, if any, with the Court Clerk within five business days ofthe filing ofthe appellant's position statement. All position statements pertaining to an appeal of an interlocutory order should include: (1) a statement summarizing the facts ofthe case from the evidence admitted during the expedited hearing; (2) a statement summarizing the disposition ofthe case as a result ofthe expedited hearing; (3) a statement of the issue(s) presented for review; and (4) an argument, citing appropriate statutes, case law, orotherauthority.

6APPENDIX
Exhibits: 1. Medicalrecords, Dr. Jane Choi 2. Affidavit ofRonaldPool 3. Causation letter, Dr. Choi (Identification only) 4. Causation letter, Dr. Korivi (Identification only) 5. GatewayMedical Centerrecords (Identification only)
Technicalrecord:4 1. Request for ExpeditedHearing, October 5, 2015 2. ExpeditedHearing OrderGrantingMedical Benefits,November 17, 2016 3. Expedited Hearing OrderonRemand, January 13, 2016

CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the Expedited Hearing Order Denying Compensability was sent to the following recipients by the following methods ofservice onthis the 18thday ofJuly, 2016.

Name Certified Mail RonaldPool, X Self-represented Duane Willis, Employer's Counsel Via Via Service sentto: Fax Email X ronaldleepool@aol.com
X dwillis@morganakins.com

Pe ny S m, ClerkofCourt Courtof orkers' Compensation Claims WC.CourtClerk@tn.gov

4 The Court did not consider attachments to Technical Record filings unless admitted into evidence during the Expedited Hearing. The Court considered factual statements in these filings or any attachments to them as allegations unless established by the evidence.

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