                                                                                    FILED
                                                                                  Apr 05, 2019
                                                                                 02:18 PM(CT)
                                                                               TENNESSEE COURT OF
                                                                              WORKERS' COMPENSATION
                                                                                     CLAIMS




            TENNESSEE BUREAU OF WORKERS' COMPENSATION
           IN THE COURT OF WORKERS' COMPENSATION CLAIMS
                          AT MURFREESBORO

MICHAEL KASSMIEH,                             )   Docket No.: 2018-05-1079
         Employee,                            )
v.                                            )
                                              )
NElS, INC.,                                   )   State File No.: 54818-2017
              Employer,                       )
And                                           )
                                              )
NAT'L UNION FIRE INS. CO.                     )   Judge Robert Durham
OF PITTSBURG, PA,                             )
         Insurer.                             )



              EXPEDITED HEARING ORDER DENYING BENEFITS


       This case came before the Court for an Expedited Hearing on March 29, 2019.
The issues are whether Mr. Kassmieh provided sufficient medical proof to establish that
his complaints of facial pain, headaches, and tinnitus were caused by his employment,
and if so, to which benefits is he entitled. The Court holds Mr. Kassmieh is unlikely to
succeed at trial in establishing medical causation and thus denies his request for benefits.

                                    History of Claim

       Mr. Kassmieh was working as an auditor for NElS on July 19, 2017, when he
slammed the right side of his head into a glass door while attempting to enter a client's
building. He did not lose consciousness but experienced immediate pain. He went home,
contacted his supervisor, and then took pictures of his face, which showed significant
bruising and swelling around his right eye, right cheek and lips. Due to continued pain,
Mr. Kassmieh went to the emergency room five days later and underwent aCT scan of
his head that was negative.

       NElS accepted the claim as compensable and provided Mr. Kassmieh with a panel
of neurologists from which he chose Dr. Garrison Strickland. After evaluation, Dr.
Strickland diagnosed a traumatic head injury and ordered a brain MRI, which only

                                             1
revealed chronic sinusitis. He prescribed medication and kept Mr. Kassmieh off work for
one week.

       At his next visit, Mr. Kassmieh complained of severe right-eye pain, particularly
in bright light or when working on a computer. Dr. Strickland referred him to an
ophthalmologist for the eye pain, and NElS duly provided a panel from which Mr.
Kassmieh chose Dr. James Loden. Dr. Loden found unrelated cataracts and indicated
Mr. Kassmieh should continue treating with a neurologist for his pain.

       Mr. Kassmieh then returned to Dr. Strickland, who concluded that he did not have
any further treatment to offer. According to his notes, Mr. Kassmieh was "quite
unhappy" with the situation. Dr. Strickland recommended that he see another neurologist
and did not schedule him for follow-up.

        NElS then authorized another neurologist from the original panel, Dr. Steve
Graham, to provide care. Dr. Graham noted on December 18 that Mr. Kassmieh
complained of continued right-sided headaches as well as a persistent burning, aching
sensation from his right eye to his right ear that significantly worsened with reading or
computer use. His impression was "persistent post-traumatic headache ... with a normal
neurological examination." He prescribed Gabapentin and stated he could return to work
full duty.

       When Mr. Kassmieh returned, he told Dr. Graham that his headache improved but
he had not returned to full duty because of eye pain. Dr. Graham noted Mr. Kassmieh's
ophthalmologist did not observe any abnormalities that explained the eye pain, but he
nevertheless recommended a follow-up due to continued complaints. However, from a
neurological standpoint, he determined there were no long-term neurological deficits and
Mr. Kassmieh was at maximum medical improvement. He again recommended full duty
with no restrictions. Subsequently, there was some dispute as to whether Mr. Kassmieh
was taking his medication as prescribed, and Dr. Graham did not schedule any further
appointments.

       Mr. Kassmieh then began treating with an unauthorized neurologist, Dr. Joy
Derwenskus. She ordered another MRI, and the report noted small areas of signal change
that were non-specific and "can occur in the setting of headaches/migraines." In her
notes, Dr. Derwenskus observed that Mr. Kassmieh complained of persistent right-eye
problems as well as tinnitus in his right ear. She reviewed the MRI and found it revealed
sinus changes and one possible "enhancement" in the brain that could merit additional
study. In her last note included in the record, Dr. Derwenskus increased Mr. Kassmieh's
medication and recommended a repeat MRI.

      On February 1, 2019, Mr. Kassmieh saw an ear-nose-throat specialist, Dr.
Brannon Mangus. Dr. Mangus reviewed the repeat MRI ordered by Dr. Derwenskus and

                                            2
noted it did not reveal any acute abnormality other than chronic sinusitis, which he did
not feel was responsible for Mr. Kassmieh's complaints.

       Mr. Kassmieh returned to Dr. Graham on February 4 for an evaluation at NElS'
request. Dr. Graham noted a clinically normal neurological examination. He concluded
that Mr. Kassmieh's subjective complaints were "far out of proportion" to the "very
minor head injury" he suffered in July 2017. He further stated that, from a neurological
standpoint, no additional medications or treatments were indicated and Mr. Kassmieh did
not have any restrictions.

        Finally, Mr. Kassmieh testified that he never suffered from headaches or facial
pain before hitting his head. He also stated that he was an exemplary employee for NElS,
but his pain forced him to significantly reduce his work hours.

                       Findings of Fact and Conclusions of Law

       Mr. Kassmieh does not have to prove every element of his claim by a
preponderance of the evidence to obtain relief at an expedited hearing. Instead, he must
present sufficient evidence that she is likely to prevail at a hearing on the merits. See
Tenn. Code Ann. § 50-6-239(d)(l) (2018); McCord v. Advantage Human Resourcing,
2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015).

       The primary issue is causation. NElS does not dispute that Mr. Kassmieh
sustained a work injury on July 19, 2017. However, it contends that he did not show that
he is likely to prove that his complaints of headaches, facial pain and tinnitus arose
primarily from that injury. 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 possibility" on the part of the doctor. !d.

        Here, only Dr. Graham specifically addressed this issue, who stated that Mr.
Kassmieh's complaints were far out of proportion to his "very minor head injury."
Further, he did not believe the injury warranted further treatment, medication or
restrictions from a neurological standpoint. As an authorized physician, Dr. Graham's
opinions are given a presumption of correctness that can only be rebutted by a
preponderance of the evidence. Tenn. Code Ann. § 50-6-102(12)(A)(ii). Mr. Kassmieh
did not provide any doctor's opinion that the complaints for which he is currently seeking
treatment were actually caused by his accident. Thus, the medical evidence at this stage
fails to establish the likelihood of proving his current complaints are causally related to
his accident.

                                             3
       However, given that Mr. Kassmieh suffered a work-related injury, he is entitled to
treatment for any conditions stemming from that injury, which NElS shall continue to
provide. Since Mr. Kassmieh did not establish the likelihood of prevailing on causation
for any of the complaints he submits are disabling, it is unnecessary for the Court to
address temporary disability benefits at this time.

       IT IS, THEREFORE, ORDERED that:

  1.   Mr. Kassmieh's request for medical treatment for headache and pain from his right
       eye to his right ear and tinnitus in his right hear is denied at this time. However,
       NElS shall provide reasonable and necessary treatment for any conditions arising
       primarily from his work injury.

  2.   Mr. Kassmieh's request for disability benefits is denied at this time.

  3.   This matter is set for a Scheduling Hearing on May 15, 2019, at 1:30 p.m. C.S.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 may result in a determination of the
       issues without your participation.

  4.   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 Insurer or Self-Insured Employer 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 by email at
       WCCompliance.Program@tn.gov.



ENTERED THIS THE 5th DAY OF APRIL, 2019.




                                    obert V. Durham, dge
                                   Court of Workers' Compensation Claims



                                             4
                                       APPENDIX

Technical Record

   1.   Petition for Benefit Determination
   2.   Dispute Certification Notice
   3.   Request for Expedited Hearing
   4.   Notice of Expedited Hearing
   5.   NElS' position statement

Exhibits

   1.   Medical records of Dr. Mangus
   2.   Medical record of Dr. Woods
   3.   Photographs
   4.   Wage statement
   5.   Mr. Kassmieh's affidavit
   6.   Medical records of Drs. Graham, Strickland and Loden; C-42 panels
   7.   Medical records ofDr. Derwenskus
   8.   Photographs
   9.   MRI report



                             CERTIFICATE OF SERVICE

       I hereby certify that a true and correct copy of the foregoing was sent to the
following recipients by the following methods of service on April 5, 2019.

Name                      Certified     Via        Via    Service sent to:
                           Mail         Fax       Email
Michael Kassmieh             X                      X     310 1 Lance lot Drive,
                                                          Murfreesboro, 1N 37127
                                                          Mkas2734@gmail.com
Catherine Dugan                                    X      cate@petersonwhite.com




                                                       m, Clerk of Court
                                                       orkers' Compensation Claims



                                              5
                           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.
 .
ll                                                                                                                 .I




                                    Tennessee Bureau of Workers' Compensation
                                           220 French Landing Drive, 1-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, I 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 All Dependents:

             - - - - - - - - - - - - - - - - - Relationship: - - - - - - - - - - - - -

             - - - - - - - - - - - - - - - - - Relationship: - - - - - - - - - - - - -

             - - - - - - - - - - - - - - -- -                 Relationship: - - - - - - - - - - - --

             - - - - - - - - - - - - - - - - - Relationship: - - - - - - - - - - - - -

     6. I am 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. I receive or expect to receive money from the following sources:

             AFDC            $            per month           beginning
             SSI             $            per month           beginning
             Retirement      $            per month           beginning
             Disability      $            per month           beginning
             Unemployment $               per month           beginning
             Worker's Camp.$              per month           beginning
             Other           $            per month           beginning



     LB-1108 (REV 11/15)                                                                               RDA 11082
9. My expenses are: ' ;                                                     !•
                                                                             '

        Rent/House Payment $              per month     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




I 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

_ _ _ dayof _____________ ,20____




NOTARY PUBLIC

My Commission Expires:_ _ _ _ _ __ _




LB-1108 (REV 11/15)                                                                         RDA 11082
