### COURT OF WORKERS' COMPENSATION CLAIMS DIVISION OF WORKERS' COMPENSATION

EMPLOYEE: Michael Weiland DOCKET#: 2014-08-0020 STATE FILE#: 64544-2014 FILED
J anuary 28, 2015

T:-; COURT OF WORKERS' CO:lli'E:-.-SATIO:-.- CLAUI S Time: 7: 15 A. \1



### EMPLOYER: Fedex Express Co. DATE OF INJURY: August 1, 2014 INSURANCE CARRIERffP A: Sedgwick CMS EXPEDITED HEARING ORDER THIS CAUSE carne before the undersigned Workers' CompensationJudgeuponthe Request for Expedited Hearing filed by Employee, Michael Weiland (Mr. Weiland). Mr. Weiland filed a Request for Expedited Hearing with the Tennessee Court ofWorkers' Compensation Claims, Division ofWorkers' Compensation, on September 29, 2014, pursuant to Tennessee Code Annotated section 50-6-239 to determine whetherthe provisionofmedical benefits and/or temporary disability benefits is appropriate. Employee requested an evidentiary hearing. The Court conducted a telephonic hearing beginning on January 15,2015, and reconvening on January 22, 2015. Mr. Weiland appearedprose. Attorney Jonathan May represented Fedex Express Co. (Fedex) and its TPA, Sedgwick CMS. Considering the positions ofthe parties, the applicable lawand all ofthe evidence submitted, the Courtherebyfinds thatEmployee is not entitled to medical benefits or temporary disability benefits. 

### ANALYSIS Issues 1. Whether Employee sustainedan injury that aroseprimarily out of and in the course and scope of employment with Employer. 2. Whether Employer is obligated toprovide medical benefits and/or temporary disability benefits.

1Evidence Submitted The Courtreceived and consideredthe following documentation and information submitted bythe parties. The CourtmarkedExhibits 1, 2, 12, 18, 19 and 20 foridentification only. The Court admitted the remaining exhibits into evidence without objection. 1. Dispute Certification Notice (DCN), dated October 28,2014 2. Petition for Benefit Determination (PBD), filed September 29, 2014 3. First Report oflnjury (FROI) (electronic submission to TDOL) 4. Document entitled "Trip Recap" 5. Medical Record-Mayo Clinic in Arizona dated August 12, 2014 6. Medical Record-Mayo Clinic Hospital-Emergency Department Discharge Instructions dated August 6, 2014 7. Medical Record-Mayo Clinic in Arizona-Emergency Department dated August 6, 2014 8. Medical Record-Mayo Clinic inArizona-EmergencyDepartment-Addendum dated August 6, 20114 9. Document entitled "Regular Sick Account-Michael Weiland" 10. Document entitled "Monthly Calendar, July 2014, Michael Weiland" 11. Document entitled "Monthly Calendar, August 2014, Michael Weiland" 12. Sedgwick letter dated October 20, 2014 describing reason for denial 13. First Report oflnjury (FROI)(initial typed version) 14. Documententitled "Additional InformationReported" attachedto Exhibit 13 15. Wage Statement 16. Notice ofDenial (C-23) 17. Sedgwick Claim Notes 18. Mayo Clinic Influenza information from internet 19. Influenza B information from internet 20. Request for Expedited Hearing filed December 4, 2014 History ofClaim Mr. Weiland works as a pilot for Fedex. Accordingto his PBD, he "wasflying around China and contracted A-H3 (swine flu)." Only Mr. Weiland testified at the hearing. He testified that he believed that he had contracted bird flu which he believes to be an illness unique to China. Mr. Weiland obtainedmedical treatment from Mayo Clinic inArizonafollowing hisreturnto the United States. He filed a claim for worker's compensation benefits. Fedex denied the claim. The August 6, 2014, medical report from the Mayo Clinic in Arizona (Exhibits 7 and 8) notedthat Mr. Weiland had visited Chinafor two weeks andreturned to ArizonaonAugust2, 2014. The following is a summary ofthatreport. He developed symptoms ofthroatpainandcoughonJuly 30, 2014, when he was still in China. After returning to Arizona, his symptoms worsened. He is taking Ciprofloxacin and has nowdeveloped diarrhea and gastro-intestinal upset. Hedenied contact with any animals or birds while in China, and denied eating any rare or raw meat or seafood. The diagnosis was Influenza A. Mr. Weiland requested that he be tested for bird flu (avian flu). The
2clinic advisedthat they do nottest for birdflu, butthatthey would send a nasopharyngeal swabto the Arizona State Health Department for testing. It was noted that Mr. Weiland's symptoms had improved. He was discharged from the clinic and prescribed Tamiflu. The discharge instructions (Exhibit 6) listed a diagnosis ofresolving acute influenza. Mr. Weiland returned to Mayo Clinic in Arizona on August 12, 2014 (Exhibit 5). He reported persistant, non-improving symptoms after the flu. Itwas noted that he has tested positive for InfluenzaA and positive for InfluenzaAH3. Mr. Weiland submitted no othermedical records or medical evidence. No medical records or expert medical evidence were submitted establishing a causal connection between Mr. Weiland's illness and his employment. Likewise, there was no medical evidence provided that Mr. Weiland had contracted a strain ofinfluenza that was unique to China. No results oftesting for bird flu were submitted. The parties stipulated that Mr. Weiland's compensation rate is the maximum benefit. Employee's Contentions Mr. Weiland stated his main purpose in this claim is to bring awareness to Fedex ofthe problem pilots face in exposure to disease in third world countries. Fedex pilots routinely fly into airports throughout the world where there is a higher risk ofexposure to diseases such as bird flu, tuberculosis, hepatitis, and even ebola. There is a great difference in the common diseases that one would get in everyday life inthe United States, and the diseases one gets from being on a Fedextrip to a third world country. Fedexpilots are exposed to workers inthese countriesthat clean airplanes andprepare food, thereby exposing the pilots to illnesses they would not get in any capacity other than their employment as a Fedex pilot. Pilots are not inoculated against nor protected against these diseases. As a result, Fedex pilots are at risk ofserious illness as a result oftheir employment. Regarding this case, Mr. Weiland contendsthathe contracted anillness (birdflu or swine flu) that arose primarily out of and in the course and scope ofemployment with Fedex on his trip to China. He contends that Fedex should provide him medical and temporary disability benefits. Employer's Contentions Fedex disputes the compensability ofEmployee's iillness on the basis that it did not arise primarily out ofand in the course and scope ofemployment with Employer. Findings ofFact and Conclusions ofLaw StandardApplied When determining whether to award benefits, the Judge must decide whether the moving
3party is likelyto succeed onthe merits at trial giventhe informationavailable. See generally, McCall v. Nat'lHealth Care Corp., 100 S.W. 3d 209,214 (Tenn. 2003) and Tenn. Code Ann. sec. 50-6-238 (2012). The employee bears the "burden ofproving each and every element ofthe claim by a preponderance ofthe evidence." Tenn. Code Ann.§ 50-6-239(c)(6) (2014). Factual Findings Considering all admissible evidence, including the testimony ofEmployee, the Court finds that Mr. Weiland works as a pilot for Fedex. His work required him to take an extended trip to China lasting approximately two weeks. Mr. Weiland was ill upon his return to the United States and was diagnosed with influenza. No physician has opined that Employee's illness aroseprimarily out ofand in the course and scope ofemployment with Fedex. Application of Law to Facts 1. Employee failed toprove that he sustainedan injury that aroseprimarily out of andin the course andscope of employment with Employer. In Excel Polymers, LLC v. Broyles, 302 S.W.3d 268, 274 (Tenn. 2009), the Tennessee Supreme Court reviewed the standard to be applied in evaluating evidence concerning the issue of causation in workers' compensation cases: Generally speaking, a workers' compensation claimant must establishby expert medical evidence the causal relationship betweenthe alleged injury andthe claimant's employment activity, "[e]xceptin the most obvious, simple and routine cases." Cloydv. Hartco Flooring Co., 274 S.W.3d 638,643 (Tenn. 2008) (quoting Orman v. Williams Sonoma, Inc., 803 S.W.2d 672, 676 (Tenn. 1991)). The claimantmust establish causationby the preponderance of the expert medical testimony, as supplemented by the evidence oflaywitnesses. 

### !d. This case is not obvious, simple and routine. It is, therefore, required that Employee establish causation by expert medical evidence. Tennessee Code Annotated section 50-6-102(13)(2014) defines mJunes, including occupational diseases, as follows: (13) "Injury" and "personal injury" mean an injury by accident, a mental injury, occupational disease including diseases of the heart, lung and hypertension, or cumulativetrauma conditions including hearing loss, carpal tunnel syndrome or any other repetitive motion conditions, arising primarily out of and in the course and scope of employment, that causes death, disablement or the need for medical treatment ofthe employee; provided, that: (A) An injury is "accidental" only ifthe injury is causedby a specific incident, or set ofincidents, arising primarily out ofand inthe course and scope ofemployment, and is identifiable by time and place of occurrence, and shall not include the aggravation of a preexisting disease, condition or ailment unless it can be shown to a reasonable degree ofmedical certaintythatthe aggravation arose primarily outof 

### 4and in the course and scope ofemployment; (B) An injury "arises primarily out ofand in the course and scope of employment" only if it has been shown by a preponderance ofthe evidence that the employment contributed more than fifty percent (50%) in causing the injury, considering all causes; (C) An injury causes death, disablement or the need for medical treatment only ifit has been shown to a reasonable degree ofmedical certainty that it contributed more than fifty percent (50%) in causing the death, disablement or need for medical treatment, considering all causes; (D) "Shownto a reasonable degree ofmedical certainty" means that, in the opinion ofthe physician, it is more likely than not considering all causes, as opposed to speculation or possibility

... Courts have held that the statutory requirements that an injury arise out ofand in the course ofthe employment are not synonymous "althoughbothelements existto ensure a work connectionto the injury for which the employee seeks benefits.'' Blankenship v. Am. Ordnance Sys., 164 S.W.3d 350, 354 (Tenn. 2005). An injury occurs in the course ofemployment ifit takes place while the employee was performing a duty he or she was employed to perform. Finkv. Caudle, 856 S.W.2d 952,958 (Tenn. Workers' Comp. Panel1993). Thus, the course ofemploymentrequirementfocuses on the time, place, and circumstances ofthe injury. Saylor v. Lakeway Trucking, Inc., 181 S.W.3d 314, 318 (Tenn. 2005). In contrast, arising out ofemployment refers to causation. Reeser v. Yellow Freight Sys., Inc., 938 S.W.2d 690,692 (Tenn. 1997). Aninjury arises out ofemployment when there is a causal connection between the conditions under which the work is required to be performed and the resulting injury. Fritts v. Safety Nat'! Cas. Corp., 163 S.W.3d 673, 678 (Tenn. 2005). Put another way, the element ofcausation is satisfied when the "injury has a rational, causal connection to the work." Braden v. Sears, Roebuck & Co., 833 S.W.2d 496,498 (Tenn. 1992). The mere presence of the employee at the place ofinjury because ofthe employment is not enough, as the injury must result from a hazard peculiar to the work or be caused by a risk inherent in the nature ofthe work. Blankenship, 164 S.W.3d at 354. Accordingly, "an injurypurely coincidental, orcontemporaneous, orcollateral, withthe employment

... will not cause the injury

... to be considered as arising out of the employment." Jackson v. Clark & Fay, Inc., 270 S.W.2d 389, 390 (Tenn. 1954). Applying these principles to this case, this Court finds that Mr. Weiland has failed to establishby expertmedical evidence that his illness arose primarilyoutofand occurredinthe course and scope ofhis employment. No medical doctor has reported that there was a causal connection between the conditions under which Employee worked and the illness he contracted. Therefore, Employee has submitted insufficient evidence to establish that his alleged injuries arose primarily out ofhis employment.

52. Employer is not obligatedtoprovide medical or temporary disability benefits. Mr. Weiland has failed to prove that he sustained a compensable work-related injury or illness. Therefore, Fedex is not responsible for providing medical ortemporary disability benefits. IT 

### IS, THEREFORE, ORDERED THAT: 1) Employee's interlocutory request in this Expedited Hearing for medical and temporary disability benefits is denied atthis time onthe grounds that Employee has failed to prove by a preponderance ofthe evidence that he sustained an injury by accident arising primarily out ofand inthe course and scope ofemployment. This is not a Final Order. 2) This matteris setfor Initial Hearing on March 26,2015, at 9:00a.m. central standard time.
ENTERED this the 28th day ofJanuary, 2015.

# ~ Jim Umsted, Judge Court ofWorkers' Compensation Claims

Right to 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 Request for Appeal, you must: 1. Complete the enclosed form entitled: "Request for Appeal". 2. File the completed form with the Court Clerk within seven (7) business days ofthe date the Expedited Hearing Order was entered by the Workers' Compensation Judge. 3. Serve a copy ofthe Request for Appeal upon the opposing party. 4. The parties, having the responsibility ofensuring a complete record on appeal, may request from the Court Clerkthe audio recording ofthe hearing for the purpose ofhaving atranscript prepared by a licensed court reporter and filing it with the Court Clerk within ten (10) calendar days ofthe filing ofthe Expedited Hearing Notice ofAppeal. Alternatively, the parties may file a statement ofthe evidence within ten (10) calendar days ofthe filing ofthe 6Expedited HearingNotice ofAppeal. The statement ofthe evidencemustbe approvedbythe Judge before the record is submitted to the Clerk ofthe Appeals Board. 5. Ifthe appellant elects to file a position statement in support ofthe interlocutory appeal, the appealing party shall file such position statement with the Court Clerk within three (3) business days ofthe filing ofthe Expedited HearingNotice ofAppeal, specifying the issues presented for review and including any argument in supportthereof. Ifthe appellee electsto file a response in opposition to the interlocutory appeal, appellee shall do so withinthree (3) business days ofthe filing ofthe appellant's position statement.



### CERTIFICATE OF SERVICE I hereby certify that a true and correct copy ofthe Expedited Hearing Order was sent to the following recipients by the following methods ofservice on this the 28 1 h day ofJanuary, 2015.

Name Certified First Via Fax Via Email Address Mail Class Fax Number Email Mail Michael Weiland, X X unionpilot@yahoo.com Employee Jonathan May, X jmay@lewisthomason.com Employer's attorney

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