The opinion
FILED
October 16,2017
TN COURT OF
WORKERS’ COMPENSATION
CLAIMS
Time: 4:30 PM
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT KNOXVILLE
JOHN MATTHEW SKINNER, ) Docket No.: 2016-03-1322
Employee, )
V. )
MARION ENVIRONMENTAL, INC., ) State File No.: 94447-2016
Employer, )
And )
GREENWICH INSURANCE CoO., ) Judge Pamela B. Johnson
Carrier. )
EXPEDITED HEARING ORDER GRANTING BENEFITS
(Decision on the Record)
This matter came before the undersigned Workers’ Compensation Judge for an
Expedited Hearing. John Matthew Skinner filed a Request for Expedited Hearing on July
24, 2017, seeking a decision on the record instead of convening an evidentiary hearing.
Marion Environmental, Inc. filed its response on August 18, 2017, but did not request an
evidentiary hearing. The Court issued a Docketing Notice on August 24, 2017, listing the
documents filed. The Court gave the parties until September 5, 2017, to file position
statements and any objection to the admissibility of the listed documents. Marion filed
Objections to Admissibility on September 5, 2017, and, with leave of Court, Mr. Skinner
filed his response to the admissibility objections on September 26, 2017.
Upon careful consideration of the record, this Court finds it needs no additional
information to determine whether Mr. Skinner is likely to prevail at a hearing on the
merits of the claim. Therefore, under Tennessee Code Annotated section 50-6-239(d)(2)
(2016) and Tennessee Compilation Rules and Regulations 0800-02-21-.14(1)(c) (2016),
the Court decides this matter upon a review of the written materials.
The central legal issue is whether Mr. Skinner is likely to prevail at a hearing on
the merits regarding entitlement to medical and temporary total disability benefits, and
attorney’s fees. For the reasons set forth below, the Court holds Mr. Skinner came
forward with sufficient evidence demonstrating he is likely to prevail at a hearing on the
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merits that he provided proper notice of his injury and entitled to a panel of physicians.
This Court concludes Mr. Skinner is not entitled to any of the other requested benefits at
this time.
History of Claim
A review of the written materials revealed the following facts.’ Mr. Skinner
worked for Marion as an Emergency Manager/ Incident Commander/ Hazmat Response
Technician and the Knoxville Branch Manager for approximately ten years. During his
employment, his work projects exposed him to many hazardous and toxic materials,
including but not limited to: molds, heavy metals, petroleum-based substances, fungal
contamination, and other chemical and biological materials. He alleged exposure to
fungal contamination, through investigations and remediations, on more than 200
occasions from mid-2011 through June 2016.
Marion disputed Mr. Skinner’s alleged exposures. Ellen Gallant, owner and
president of Marion, contended 95% of Mr. Skinner’s job did not involve mold or toxic
waste but most often involved analytical and administrative functions. Ms. Gallant stated
that when Mr. Skinner’s work involved mold or toxic waste, the appropriate personal
protective equipment (PPE) and safety protocols protected him. Drake Taylor, a Marion
employee whom Mr. Skinner supervised, stated Mr. Skinner always used the proper PPE
when working on a job site. Ms. Gallant and Mr. Taylor also indicated Mr. Skinner
purchased a home in 2011 with extensive black mold in the basement, which he
remediated himself? Mr. Taylor additionally stated Mr. Skinner built a living space in
the basement of the home where he currently resides while his son lives in the upper level
of the home.
Mr. Skinner alleged he was reasonably healthy with only sinus issues becoming
problematic in the last three to five years. In March 2014, he experienced an
unexplainable pulmonary embolism, which caused scarring in his lungs and pulmonary
hypertension. On May 1, 2016, he was Project Manager over the remediation of a 1,000-
person homeless camp. The project lasted two weeks and required the removal by hand
of personal belongings and debris, including water-soaked clothing, bedding, trash,
hypodermic needles, and other waste. He suffered problems with sinus drainage,
inability to focus, memory, disconnection, and balance through December 2016.
'Marion raised objections to the admissibility of several documents that Mr. Skinner submitted. The
Court considered those objections and Mr. Skinner’s responses and ruled on each in the attached
Appendix.
*Thomas B. Lasley confirmed Ms. Gallant’s and Mr. Taylor’s statements that Mr. Skinner remediated a
home with extensive black mold.
In late November or early December 2016, Mr. Skinner notified Ms. Gallant? that
he experienced ongoing health problems and requested a panel of physicians to evaluate
his health problems. Mr. Skinner claimed his chronic sinus problems resulted in
debilitating gagging and vomiting of clear mucus, sores in his naval cavity and on his
neck and ears, nosebleeds, nausea, fatigue, and sensitivity to environmental changes.
Marion denied the request due to lack of substantiation of illness and exposure.
The parties offered contrasting explanations regarding the basis of Mr. Skinner’s
separation from Marion. Mr. Skinner reported to his medical providers that he retired
June 1, 2016, due to his health problems. Marion representatives indicated it terminated
Mr. Skinner on June 23, 2016, due to intoxication on a job site and possible driving of the
company vehicle while under the influence. Marion offered an optional alcohol
rehabilitation program for potential rehire; Mr. Skinner declined.
Mr. Skinner filed his Petition for Benefit Determination (PBD) on December 8,
2016, and, during the mediation process, Marion purportedly offered Mr. Skinner a panel
of physicians for evaluation of his condition. He declined to select a physician.
Mr. Skinner sought medical treatment on his own from Dr. John L. Wilson, Jr. at
Great Smokies Medical Center (GSMC) on January 4, 2017. Mr. Skinner reported a
twenty-five-year history of hazmat remediation and specifically noted his recent
homeless-camp-cleanup project “seemed to be the tipping point in his health.” Dr.
Wilson concluded that Mr. Skinner developed chronic inflammatory response syndrome
(CIRS). Additionally, Dr. Wilson found that Mr. Skinner’s exposure to numerous and
varied toxins including mold and mycotoxins over the course of years of hazmat work
was the most likely cause of his CIRS. Dr. Wilson charged Mr. Skinner $5,773.95 from
January 4, 2017, through June 12, 2017 for his services.’
Dr. Wilson referred him to Dr. Cynthia Libert, a GSMC colleague, for additional
testing. Dr. Libert treated Mr. Skinner for epistaxis, contact with, and (suspected)
exposure to mold (toxic), postnasal drip, and unspecified chronic sinusitis. Dr. Libert
noted a history of occupational exposure to toxic mold and stated she suspected the mold
exposure contributed to the development of both Mr. Skinner’s chronic sinus problems
and current medical problems. Dr. Libert referred him to Dr. R.J. Oenbrink, a physician
trained and certified in treatment of CIRS, for further evaluation and management.
*In his PBD, Mr. Skinner noted he reported the injury to Ms. Gallant on November 30, 2016. In his
Affidavit, Mr. Skinner stated he reported his ongoing health problem to Ms. Gallant on December 5,
2016. The First Report of Work Injury noted Mr. Skinner notified Marion on November 30, 2016.
“Mr. Skinner’s charges included expenses for office visits, testing, telephone evaluations, special letters,
and copies.
a ed
Mr. Skinner first saw Dr. Oenbrink on April 13, 2017. Dr. Oenbrink diagnosed a
myriad of conditions and noted the word “maybe” in the section of his report pertaining
to CIRS. However, in follow-up visits, Dr. Oenbrink diagnosed CIRS. In his response to
a questionnaire from Mr. Skinner’s attorney, Dr. Oenbrink indicated Mr. Skinner’s CIRS
was a natural incident of his work at Marion due to exposure to toxic mold substances.
Dr. Oenbrink further indicated that it is very unlikely that Mr. Skinner’s illnesses
originated from a hazard to which he was equally exposed outside of his employment.
Stated another way, Dr. Oenbrink said Mr. Skinner’s illnesses were incidental to the
character of his employment as a mold specialist at Marion and not independent of his
employment relationship.”
Marion introduced Dr. Oenbrink’s disciplinary record from the North Carolina
Medical Board (NCMB). On September 12, 2014, the NCMB indefinitely suspended his
medical license for unprofessional conduct and making of false statements. The NCMB
stayed the suspension on Dr. Oenbrink’s satisfaction of certain conditions including
physical presence of a chaperone for all patient encounters and utilization of a practice
mentor.
Findings of Fact and Conclusions of Law
The following legal principles govern this case. Because this case is in a posture
of an Expedited Hearing, Mr. Skinner need not prove every element of his claim by a
preponderance of the evidence in order to obtain relief. McCord v. Advantage Human
Resourcing, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015).
Instead, he must come forward with sufficient evidence from which this Court might
determine he is likely to prevail at a hearing on the merits. Jd.; Tenn. Code Ann. § 50-6-
239(d)(1).
Notice
The Workers’ Compensation Law provides that “[w]ithin thirty (30) days after the
first distinct manifestation of an occupational disease, the employee . . . shall give written
notice thereof to the employer[.]” Tenn. Code Ann. § 50-6-305(a). The notice
requirement exists so that an employer “will have the opportunity to make a timely
investigation of the facts while still readily accessible, and to enable the employer to
provide timely and proper treatment for the injured employee.” Pool v. Jarmon D&Q
Transp., 2016 TN Wrk. Comp. App. Bd. 9, at *7-8 (Feb. 18, 2016). Thus, “the giving of
statutory notice to the employer is an absolute prerequisite to the right of an employee to
°The medical records indicated Mr. Skinner and Dr. Oenbrink exchanged numerous emails discussing
both Mr. Skinner’s medical status and their personal lives. In an email to Mr. Skinner, Dr. Oenbrink
commented, “So many folks getting screwed by attorneys, insurers, no way out after paying premiums for
prolonged periods of time, essentially receiving a death sentence that involves prolonged suffering and
debility.”
recover compensation under the workers’ compensation law. Jd. The Tennessee
Supreme Court noted the time to provide notice to the employer starts to “run in [an]
occupational disease case from the time the employee . . . knew or had reason to believe
that he was suffering from an occupational disease and that there was a causal connection
between his disability and occupation.” Christopher v. Consol. Coal Co., 440 S.W.2d
281, 286 (Tenn. 1969). “It is for the same reason that our Courts hold that before the
statute begins to run there must be knowledge upon the part of the employee, or
knowledge that he should have had, that he has an occupational disease and that it has
affected his capacity to work to a compensable extent.” Adams v. Am. Zinc Co., 326
S.W.2d 425, 427 (Tenn. 1959).
In Pool, the Appeals Board considered the notice requirement in a similar mold
exposure case resulting in illness. The Appeals Board stated the employee was required
to report his occupational illness when he knew or should have known that he had such a
condition and that it was caused by workplace exposures. The Appeals Board also noted
an employee may report his belief that he suffers from an occupational illness before an
actual diagnosis from a physician. Further, the Appeals Board stated, “[e]ven though
notice is not given and the employer is without knowledge this will not bar a claim, as a
rule, unless the employer has been prejudiced by lack of notice.” /d. at *10-11.
Here, a dispute exists concerning the reason for Mr. Skinner’s separation from
Marion in June 2016. The medical records indicate Mr. Skinner reported to Marion that
his symptoms forced him to retire. Conversely, Marion claimed it terminated Mr.
Skinner due to his intoxication while at a job site. As such, the date his illness
manifested itself and affected his capacity to work is unclear. However, the record is
clear that Marion received notice of Mr. Skinner’s alleged occupational illness on
November 30, 2016, or December 1, 2016, prior to his diagnosis of CIRS. Marion did
not establish it was prejudiced by the purported delay even assuming Mr. Skinner was
required to provide notice thirty days following his separation from Marion in June 2016.
Accordingly, this Court concludes Mr. Skinner came forward with sufficient evidence
demonstrating he is likely to prevail at a hearing on the merits that he provided sufficient
notice of his occupational illness.
Causation
To be compensable, an injury must arise primarily out of and occur in the course
and scope of the employment. Tenn. Code Ann. § 50-6-102(14). An injury means “an
occupational disease . . . arising primarily out of and in the course and scope of
employment, that causes death, disablement or the need for medical treatment of the
employee.” Jd. For an injury to be accidental, it must be “caused by a specific incident,
or set of incidents, arising primarily out of and in the course and scope of employment,
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
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degree of medical certainty that the aggravation arose primarily out of and in the course
and scope of employment.” Tenn. Code Ann. § 50-6-102(14)(A).
An injury is deemed to arise primarily out of and in the course and scope of
employment “only if it has been shown by a preponderance of the evidence that the
employment contributed more than fifty percent (50%) in causing the injury, considering
all causes.” Tenn. Code Ann. § 50-6-102(14)(B). Further, “[a]n injury causes death,
disablement or the need for medical treatment only if it has been shown to a reasonable
degree of medical certainty that it contributed more than fifty percent (50%) in causing
the death, disablement or need for medical treatment, considering all causes.” Tenn.
Code Ann. § 50-6-102(14)(C). An injury is shown to a reasonable degree of medical
certainty if “in the opinion of the physician, it is more likely than not considering all
causes, as opposed to speculation or possibility.” Tenn. Code Ann. § 50-6-102(14).
Here, the issue is whether Mr. Skinner’s symptoms arose primarily out of the work
he performed at Marion. While Mr. Skinner produced documentation from his physician
stating a diagnosis of CIRS related to his employment, Dr. Oenbrink’s records are silent
as to the black mold remediation Mr. Skinner performed at his home. Additionally, this
Court finds Marion successfully attacked Dr. Oenbrink’s credibility based upon the
physician’s NCMB disciplinary report finding Dr. Oenbrink made a false statement and
engaged in unprofessional conduct. Dr. Oenbrink himself suggested bias against insurers
in his email commentary to Mr. Skinner.
Marion admitted it offered Mr. Skinner a selection from a qualified panel of
physicians in the Knoxville area to evaluate his alleged occupational illness and its causal
relationship to his employment at Marion. However, Mr. Skinner purportedly declined
the proffered panel.
Upon careful review of the written materials, the Court concludes Mr. Skinner did
not come forward with sufficient evidence that he is likely to prevail at a hearing on the
merits that his alleged occupational illness arose primarily out of and in the course and
scope of his employment with Marion at this time. However, this Court holds Mr.
Skinner established sufficient notice of his alleged occupational illness, which entitles
him to a panel of physicians for the evaluation and treatment of a work-related
occupational illness. Therefore, Mr. Skinner shall select a physician from the panel
previously provided by Marion, and this selected physician shall become the authorized
treating physician.
In light of this Court’s conclusions above, Mr. Skinner’s claims for reimbursement
of past medical expenses, temporary disability benefits, and attorney’s fees are denied at
this time. Mr. Skinner shall have the right to pursue these benefits at a later Expedited or
Compensation Hearing.
IT IS, THEREFORE, ORDERED as follows:
l.
Mr. Skinner shall select a physician from the previously offered panel for
evaluation and treatment of his alleged occupational illness. The physician
selected from the panel shall become the authorized treating physician under
Tennessee Code Annotated section 50-6-204.
Mr. Skinner’s claim for reimbursement of past medical expenses, temporary
disability benefits, and attorney’s fees is denied at this time, but he retains the right
to pursue these benefits at a later date.
This matter is set for a Scheduling Hearing on November 20, 2017, at 1:30 p.m.
Eastern Time. The parties must call (865) 594-0091 or (toll-free) (855) 543-5041
to participate in the Scheduling Hearing. Failure to appear by telephone may
result in a determination of the issues without your participation.
Unless interlocutory appeal of the Expedited Hearing Order is filed, compliance
with this Order must occur no later than seven business days from the date of entry
of this Order as required by Tennessee Code Annotated section 50-6-239(d)(3).
The Carrier must submit confirmation of compliance with this Order to the Bureau
by email to WCCompliance.Program@tn.gov no later than the seventh business
day after entry of this Order. Failure to submit the necessary confirmation within
the period of compliance may result in a penalty assessment for non-compliance.
For questions regarding compliance, please contact the Workers’ Compensation
Compliance Unit via email WCCompliance.Program(@tn.gov.
ENTERED the 16th day of October, 2017.
2 te P) Moor
PAMELA B. JOHNSON, JUDGE
Court of Worker’s Compensation Claims
APPENDIX
The Court reviewed the entire case file in reaching its decision. Specifically, the
Court reviewed the following documents, marked as exhibits for ease of reference:
Exhibits:
1. Petition for Benefit Determination
2. Dispute Certification Notice
a.
Petition for Benefit Determination
b. First Report of Work Injury, Form C-20
mo Ao
Se
1
NAN ERY
Wage Statement, Form C-41
Notice of Denial of Claim for Compensation
Emails to/from Mediator and Mr. Skinner
IDENTIFICATION PURPOSES ONLY: Mold Calendar Search®
IDENTIFICATION PURPOSES ONLY: AmeriSci Bio-Chem
Analytical Data’
Medical Source Statement of Ability to Do Work-Related Activities®
Marion’s Position Statement
Show Cause Order
Order Setting Deadline to File Request for Hearing
Request for Scheduling Order
Order Setting Status Conference
Request for Expedited Hearing
a.
b.
Affidavit of John Matthew Skinner
IDENTIFICATION PURPOSES ONLY: Analytical Data Sheets (REH
Exhibits 1.1-1.4)’
IDENTIFICATION PURPOSES ONLY: 2013-2016 Calendar (REH
Exhibits 2-5)!°
°Marion objected on the bases of relevance, hearsay, confusing the issues and cumulative, and lack of
authentication. Mr. Skinner responded and argued the document was relevant, a statement made by the
declarant at the hearing level, and authenticated by his affidavit. The Court sustained the objections on
the bases of hearsay and lack of authentication.
"Marion objected to admissibility on the bases of relevance and lack of authentication. Mr. Skinner
responded and argued the document was relevant, a business record, and authenticated by his affidavit.
The Court sustained the objection based on lack of authentication.
’Marion objected to admissibility based on relevancy. Mr. Skinner responded and argued the statement
regarding his health and ability to work is relevant to his workers’ compensation claim. The Court agreed
and overruled the objection.
*Marion objected to admissibility on the bases of relevance and lack of authentication. Mr. Skinner
responded and argued the document was relevant, a business record, and authenticated by his affidavit.
The Court sustained the objection based on lack of authentication.
8. Notice of Filing Additional Medical Records
“G@monogsp
Table of Contents
Great Smokies Medical Center Medical Record Certification
Great Smokies Medical Center Medical Records
R.J. Oenbrink, D.O., Letter of Causation
R.J. Oenbrink, D.O., Medical Record Certification
R.J. Oenbrink, D.O., Medical Records
Great Smokies Medical Center Letter of Care, dated 05/04/17
9. Marion’: s Motion for Extension of Time
10. Agreed Order Allowing Extension of Time
11.Marion’s Response to Mr. Skinner’s Request for Expedited Hearing
j.
“Pr TWmeaocrp
First Report of Work Injury, Form C-20
Wage Statement, Form C-41
Panel of Physician, Form C-42
Affidavit of Ellen Gallant
Affidavit of Drake Taylor
Affidavit of Thomas B. Lasley
North Carolina Medical Board Record of Dr. Raymond Joseph
Oenbrink, D.O.
Dr. Oenbrink Letter to North Carolina Governor Pat McCrory
Charges under the Maryland Medical Practice Act, Case Nos. 2010-
0765 and 2010-0912
Department of Health and Human Services Letter to Ritchie C.
Shoemaker, M.D.
12. Marion’s Objections to Admissibility
13.Mr. Skinner’s Motion for Additional Time
14. Marion’s Response to Mr. Skinner’s Motion for Additional Time
15. Order Granting Mr. Skinner’s Motion for Additional Time
16.Mr. Skinner’s Responses to Marion’s Objections to Admissibility
Marion objected on the bases of relevance, hearsay, lack of original document, and lack of
authentication. Mr. Skinner responded and argued the document was relevant, a statement made by the
declarant at the hearing level, and authenticated by his affidavit. The Court sustained the objections on
the bases of hearsay, lack of original document, and lack of authentication.
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CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the Expedited Hearing Order was
sent to the following recipients by the following methods of service on the 16th day of
October, 2017.
Name Certified | Fax | Email | Service sent to:
Jonathan W. Doolan, xX jonathan(@collinsdoolan.com
Employee’s Attorney
Heather H. Douglas, xX hdouglas@manierherod.com
Employer’s Attorney
Larix Aarne
PENNY SARUM, Court Clerk
WC.Court
10
erk(@tn.gov