The opinion
FILED
December 19, 2017
TN COURT OF
WORKERS’ COMPENSATION
CLAIMS
Time: 2:32 P.M. EASTERN
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT KNOXVILLE
DARRELL MONGAR, ) Docket No.: 2017-03-0579
Employee, )
V. )
CAMPBELL COUNTY ) State File No.: 36535-2017
GOVERNMENT, )
Employer, )
And )
ABIGAIL HUDGENS, Administrator _)
of the Bureau of Workers’ )
Compensation, SUBSEQUENT )
INJURY AND VOCATIONAL )
RECOVERY FUND. )
Judge Pamela B. Johnson
EXPEDITED HEARING ORDER GRANTING MEDICAL BENEFITS
(ON-THE-RECORD DETERMINATION)
This matter came before the undersigned Workers’ Compensation Judge on
Darrell Mongar’s Request for Expedited Hearing (REH) seeking a decision on the record.
Campbell County and the Subsequent Injury Fund did not request an evidentiary hearing.
The Court issued a Docketing Notice and gave the parties until November 27,
2017, to file position statements and any objection to the admissibility of the listed
documents. Upon careful consideration of the record, this Court finds it needs no
additional information to determine whether Mr. Mongar is likely to prevail at a hearing
on the merits and decides this matter upon a review of the written materials.
The central legal issue is whether Mr. Mongar is entitled to medical benefits for
his bilateral hearing loss and tinnitus. For the reasons set forth below, the Court holds
Mr. Mongar came forward with sufficient evidence demonstrating he is likely to prevail
at a hearing on the merits on entitlement to a panel of physicians.
History of Claim
A review of the written materials revealed the following facts. Mr. Mongar
discovered he suffered hearing loss allegedly arising out of and in the course and scope of
his eighteen-year employment as a deputy sheriff and canine officer for Campbell
County. His job duties exposed him to noise from gunfire and sirens. Before this
employment, he served in the United States Marine Corps for four years and worked as a
security guard for Oak Ridge National Laboratories.
Mr. Mongar noticed a worsening of ringing in both ears in the last two to three
years of his employment at Campbell County. He acknowledged the Veterans
Administration (VA) prescribed a hearing aid for his left ear. He noticed noise was
greatly amplified during the last two to three years at Campbell County while wearing the
hearing aid. He was last exposed to his work environment on December 14, 2016, when
he took medical leave for other health issues.
Mr. Mongar saw Dr. C.M. Salekin on February 26, 2017, for an evaluation, who
noted Mr. Mongar suffered an injury to the inner ear due to chronic loud noise exposure.
He indicated Mr. Mongar’s injury involved the aggravation of a pre-existing condition
and his employment activities were primarily responsible for advancing that condition
and the need for treatment. Dr. Salekin recommended that Mr. Mongar avoid loud noise
exposure, use hearing protection, and cease working to prevent further worsening of his
multiple medical problems. Mr. Mongar has not worked since taking medical leave due
to his other conditions, which are the subject of pending litigation before this Court.
The next day, Mr. Mongar gave notice of his alleged hearing loss to Campbell
County and requested a panel of ENT physicians. Campbell County denied his request.
Mr. Mongar saw Dr. Brynae Miley, an ENT physician, on March 22 and reported
hearing loss since 1985 with worsening over the previous ten years. Mr. Mongar stated
his left ear was worse than his right. She noted noise exposure while in the Marines and
in his employment as a police officer, as well as the hearing aid that the VA prescribed.
Dr. Miley performed an audiometry test and diagnosed bilateral sensorineural hearing
loss (left ear worse than right) and bilateral tinnitus. She recommended a hearing aid for
the right ear and a brain MRI to rule out retrocochlear pathology.
Dr. Salekin later reviewed the audiogram results and diagnosed significant
occupational hearing loss and bilateral tinnitus.
Findings of Fact and Conclusions of Law
Mr. Mongar need not prove every element of his claim by a preponderance of the
evidence in order to obtain relief at an Expedited Hearing. McCord v. Advantage Human
2
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 can
determine he is likely to prevail at a hearing on the merits. /d.; Tenn. Code Ann. § 50-6-
239(d)(1) (2017).
To be compensable, an injury must arise primarily out of and in the course and
scope of the employment that causes the need for medical treatment. An injury shall not
include the aggravation of a pre-existing condition unless it can be shown to a reasonable
degree of medical certainty that the aggravation arose primarily out of and in the course
and scope of employment. See Tenn. Code Ann. § 50-6-102(14)(A).
Here, Mr. Mongar came forward with sufficient evidence demonstrating he is
likely to prevail at a hearing on the merits that his injury or aggravation of a pre-existing
condition arose primarily out of and in the course and scope of his employment. Mr.
Mongar stated his eighteen-year employment as a deputy sheriff exposed him to noise
from gunfire and sirens. He further stated he noticed a worsening of the ringing in his
ears in the last two to three years of his employment at Campbell County. He
acknowledged previous difficulties with his left ear that resulted in the prescription of a
hearing aid. While wearing the hearing aid, he noticed noise was greatly amplified
during the last two to three years at Campbell County.
The evidence further demonstrated that he saw Dr. Salekin, who noted an injury to
the inner ear due to chronic loud noise exposure and that his employment activities were
primarily responsible for advancing the pre-existing condition and need for treatment.
Dr. Salekin reviewed the audiogram and diagnosed significant occupational hearing loss
and bilateral tinnitus. Likewise, Dr. Miley diagnosed bilateral sensorineural hearing loss
(left ear worse than right ear) and bilateral tinnitus.
Campbell County offered no medical evidence to contradict the findings of Dr.
Salekin or Dr. Miley. As the Workers’ Compensation Appeals Board observed, when
“(t]he only medical opinion addressing causation contained in the record is contrary to
[Employer’s] position[,] [a]bsent countervailing medical proof, this opinion must carry
the day.’” Schmidt v. City of Dickson, 2017 TN. Wrk. Comp. App. Bd. LEXIS 67, *15
(Oct. 31, 2017).
The only medical evidence before the Court is the opinions of Dr. Salekin and Dr.
Miley, who diagnosed bilateral sensorineural hearing loss and tinnitus. Dr. Salekin
further stated the employment activities were primarily responsible for advancing the pre-
existing condition and causing the need for treatment. The record is clear both physicians
knew of the pre-existing noise exposure, hearing loss, and treatment, yet still reached
their conclusions. Absent countervailing evidence, the Court must conclude that Mr.
Mongar is likely to prevail at a hearing on the merits on entitlement to a panel of ENT.
IT IS, THEREFORE, ORDERED as follows:
1. Campbell County shall provide medical benefits to Mr. Mongar, to be initiated by
providing a panel of physicians under Tennessee Code Annotated section 50-6-
204.
2. This matter is set for a Status Conference on February 22, 2018, at 10:00 a.m.
Eastern Time. The parties must call (865) 594-0091 or toll-free (855) 543-5041
to participate in the Status Conference. Failure to appear by telephone may result
in a determination of the issues without the party’s participation.
3. 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.
4. For questions regarding compliance, please contact the Workers’ Compensation
Compliance Unit via email WCCompliance.Program@in.gov.
ENTERED December 19, 2017. ——_——
hee WP) (
PAMELA B. JOHNSON, JUDGE
Court of Workers’ Compensation Claims
APPENDIX!
The Court reviewed the following documents, marked as exhibits for ease of
reference:
1. Petition for Benefit Determination with attachments
a. Documents submitted by Employee: Medical Records of Dr. Harjeet
Narula
b. Documents submitted by Employer: Position Statement Letter
c. Documents created by the Bureau
2. Dispute Certification Notice
3. Order
4. Request for Expedited Hearing with Attachments
a. Collective Exhibit 1:
i. Affidavit of Darrell Mongar
ii. Letter to Employer’s counsel
iii. Standard Form Medical Report (Form C-32) of Dr. C.M. Salekin
(02/26/17)
iv. Medical Records of Dr. Patrick Bolt
b. Collective Exhibit 2:
i. Medical Records of Dr. Brynae Miley
5. Notice of Intent to Use Standard Form Medical Reports of Dr. C.M. Salekin
i. Affidavit of Attorney
ii. Standard Form Medical Report (Form C-32) of Dr. C.M. Salekin
(02/26/17, duplicate)
iii. | Standard Form Medical Report (Form C-32) of Dr. C.M. Salekin
(04/29/17)
Docketing Notice for On-The-Record Determination
Response to Request for Expedited Hearing
8. Reply to Response to Request for Expedited Hearing
om
* Dr. Narula’s (Ex. 1) and Dr. Bolt’s (Ex. 4) records did not reference Mr. Monger’s alleged bilateral
hearing loss and tinnitus. The Court did not consider records addressing conditions other than bilateral
hearing loss or tinnitus and reminds the parties that only documents relevant to the disputed issue should
be filed. See Love v. Delta Faucet, 2016 TN. Wrk. Comp. App. Bd. LEXIS 45, at *9-11 (Sept. 19, 2016).
The Court further finds the records do not contain a table of contents and the pages are unnumbered in
violation of Rule 0800-02-21-.16(6)(c) of the Tennessee Compilation Rules and Regulations.
CERTIFICATE OF SERVICE
I 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 December 19, 2017.
Name Certified | Fax Email | Service sent to:
David H. Dunaway, xX dhdunaway(@aol.com
Employee’s Attorney
Rhonda Bradshaw, x rlb@spicerlfirm.com
Employer’s Attorney
Allison Lowry, xX allison.lowry@tn.gov
Fund’s Attorney
Pee no ae eae
‘PENNY SHRUM, COURT CLERK
we. NNY eM g0V