                                                                                  FILED
                                                                                 Jan 22, 2020
                                                                                09:19 AM(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, P A,                           )
         Insurer.                            )



     COMPENSATION HEARING ORDER GRANTING SUMMARY JUDGMENT


        This case came before the Court on January 15, 2019, on NElS's Motion for
Summary Judgment! Upon review of the record, the Court holds that NElS is entitled to
judgment as a matter of law regarding Mr. Kassmieh's entitlement to additional benefits
for his head injury.

                                    History of Claim

      Mr. Kassmieh suffered a head injury on July 19, 2017, while working for NElS.
He asserted the injury caused unrelenting right-eye pain, headaches, and tinnitus. NElS
provided authorized treatment with two neurologists and an ophthalmologist, but none
found an objective reason for his complaints.

       One of the neurologists,   Dr. Stephen Graham, concluded that Mr. Kassmieh's
subjective complaints were "far   out of proportion" to his "very minor head injury" and
determined he was at maximum      medical improvement. He released Mr. Kassmieh with
no restrictions or impairment     and stated he did not need additional neurological



motion.

                                            1
treatment.

       Mr. Kassmieh also treated with an unauthorized neurologist, Dr. Joy Derwenskus.
Although she treated his headaches and facial pain, she did not provide a causation
opinion for the first expedited hearing. Based on Dr. Graham's opinion and the lack of
contrary medical evidence, the Court denied Mr. Kassmieh's request for additional
benefits.

        Shortly afterward, Mr. Kassmieh filed another petition for benefit determination,
this time with a causation letter from Dr. Derwenskus. She stated she believed it likely
that Mr. Kassmieh's "persistent headaches [were] related to the injury he sustained when
he walked into the doorframe." She based this opinion on his account of the accident and
his assertion that he did not have headaches before. At a second expedited hearing, the
Court again denied Mr. Kassmieh's request, given that Dr. Derwenskus's letter did not
establish the likelihood of proving his symptoms arose primarily out of and in the course
and scope of employment. 2

        NElS then filed a Motion for Summary Judgment with a statement of material
facts. In response, Mr. Kassmieh took Dr. Derwenskus's deposition, which he served and
filed on January 7. He also responded to the statement of material facts but did not serve
and file these responses until January 10.

                       Findings of Fact and Conclusions of Law


       The party moving for summary judgment shall prevail if it: (1) submits affirmative
evidence that negates an essential element of the nonmoving party's claim; or (2)
demonstrates to the Court that the nonmoving party's evidence is insufficient to establish
an essential element of the nonmoving party's claim. Tenn. Code Ann. § 20-16-101
(2019).
                                                    .
       Here, the essential element at issue is proof of causation through expert opinion.
Tennessee Code Annotated sections 50-6-102(14)(C) and (D) state that claimants must
prove through a doctor's opinion that a work-related injury more likely than not
contributed more than fifty percent in the claimant's disablement or need for treatment.
NElS both negated this essential element and demonstrated that Mr. Kassmieh's evidence
was insufficient through its undisputed statement of material facts.

     Rule 56.03 of the Tennessee Rules of Civil Procedure requires that a party seeking
summary judgment attach a concise statement of material facts. The opposing party must




                                            2
then respond to each factual statement by indicating it is undisputed or, if disputed, cite to
the record to demonstrate the dispute. Rule 56.03 states that opposing parties "must, not
later than jive days before the hearing," file and serve their responses to the statement of
material facts. (Emphasis added.)

        According to the stamp-filed date on Mr. Kassmieh's responses, he did not file
them until January 10. The hearing was on January 15. According to Rule 6.01 of the
Tennessee Rules of Civil Procedure, to calculate periods of time, the date the filing
occurred is included, but the last date of the waiting period is not. Cartwright v. Tenn.
Farmers Mut. Co., 453 S.W.3d 910, 915 (Tenn. Ct. App. 2014). If the period is less than
eleven days, weekends and legal holidays are excluded from the computation. Thus, in
this case starting from January 15 and going backward, the 15th, 14th and 13th are all
included. The l i11 and the lit\ being the weekend, are not. Therefore, Mr. Kassmieh
filed his response three days before the hearing. Thus, his responses are untimely under
Rule 56.03, and the Court will not consider them. 3

        While the lack of timeliness does not mandate entry of summary judgment, it does
prevent Mr. Kassmieh from disputing any of the facts in NElS's statement of material
facts. See United Servs. Inds., Inc. v. Sloan, 1988 Tenn. App. LEXIS 592, *4 (Tenn. Ct.
App. Sept. 28, 1988) ("An adverse party's failure to respond to a motion for summary
judgment does not relieve the moving party of the burden of establishing an entitlement
to judgment as a matter of law; rather, an absence of response only precludes factual
disputes."). The Court will not recite the whole statement but only those facts that it
finds relevant to summary judgment:
        10.     Upon further questioning, Dr. Graham opined as follows:
               a. Employee's complaints of ringing in the right ear did not
        primarily arise out of the work incident considering all causes.
               b. Employee's complaints of right eye pain, blurred VISion, and
        drainage from the right eye did not primarily arise out of the work incident,
        considering all causes.
              c. Employee's complaints of headaches did not arise primarily out of
        the work incident, considering all causes.
               d. There is no objective evidence on any testing of any injury
        sustained by Employee related to the work incident.
                e. Employee has 0% impairment.
3
  At the hearing, Mr. Kassmieh maintained that he was unable to file and serve his response in a timely
fashion because NElS's counsel was unavailable to receive it. However, even if she were unavailable,
 to mrg n         u es o IV     ac ur o te e tres                                   egu aflons requ1res
personal service on opposing counsel.

                                                   3
              f. Employee does not need further treatment that would be directly
       related to the work incident.
       11.    Employee has no medical proof establishing work-related causation
       with regard to the allegations of right eye pain or right ear pain or ringing.
       Further Employee has no competent medical proof establishing work-
       related causation with regard to his complaints of headaches. No physician
       has opined and no medical evidence whatsoever has established that
       Employee's alleged workplace incident contributed more than fifty percent
       in causing his alleged condition, considering all causes.
      12.    Employee's only medical evidence in this case in relation to
      Employee's alleged headaches; however, Employee's headaches are
      essentially resolved and his only remaining alleged condition is pain in the
      right eye area, for which there is no medical evidence or expert opinion.
      13.    There is no proof in this case establishing that the alleged workplace
      incident contributed more than fifty percent in causing any disablement or
      the need for any medical treatment.
       Given that these facts are undisputed, they serve to provide "affirmative
evidence," in the form of Dr. Graham's opinion, which negates the essential element of
causation. They also establish that Mr. Kassmieh has no expert opinion that proves a
causal relation between his current symptoms and his work injury, and thus his proof is
insufficient. Tenn. Code Ann. § 50-6-102(14). As a result, NElS is entitled to judgment
as a matter of law as to whether Mr. Kassmieh sustained a work-related injury that left
him disabled or in need of additional treatment.

       However, even if Mr. Kassmieh had timely disputed the statement of material
facts, NElS would still prevail. To counter Dr. Graham's opinion, Mr. Kassmieh took
Dr. Derwenskus's deposition. Dr. Derwenskus repeatedly stated that it was "possible"
that his accident caused his headache and eye pain, particularly since he did not report
these symptoms before the accident, but she could not "give a percentage to what would
be the causation[.]" Dr. Derwenskus's opinion is exemplified by the following passage,
which both parties cited:

      Q: Again, given the history that I gave you that I never had any trauma
      before, and you stated it's-most likely my injury is related to the accident.
      Is that fair to say? It's as you put it, it's likely the persistence of headaches
      are related to injury sustained when walking into the-

      A: Yeah.

                                              any InJUry e ore.

                                             4
      A: As I said, definitely trauma can - it is possible trauma can lead to
      headaches.

      Since Mr. Kassmieh only presented "speculation or possibility" as medical
evidence, he did not meet the statutory requirement for causation. Tenn. Code Ann. § 50-
6-102(14)(D). Thus, summary judgment would still be appropriate even without the
undisputed statement of material facts. 4

      IT IS, THEREFORE, ORDERED that:

   1. NElS's Motion for Summary Judgment is granted, and Mr. Kassmieh's claim is
      dismissed with prejudice to its refiling.

   2. Absent an appeal, this Order shall become final in thirty days.

   3. The filing fee of $150.00 is taxed to NElS under Tenn. Comp. R. & Regs. 0800-
      02-21-.07, to be paid to the Court Clerk and for which execution may issue as
      necessary.

   4. NElS shall prepare and file the SD-2 with the Court Clerk within ten days of this
      order becoming final.

ENTERED January 22, 2020.




                                  Robert V. Durham, Judge
                                  Court of Workers' Compensation        laims




                                            5
                                       APPENDIX

Technical Record

   1. Motion for Summary Judgment with NElS's brief
   2. Order Continuing Summary Judgment Hearing
   3. Order Setting Summary Judgment Hearing

Exhibits

   1.   NElS's Statement of Material Facts
   2.   Mr. Kassmieh's Response to Statement of Material Facts
   3.   Medical records previously submitted during Expedited Hearings
   4.   Previous Expedited Hearing Orders
   5.   Dr. Derwenskus' s deposition.




                             CERTIFICATE OF SERVICE

        A copy of this order was sent as indicated on January 22, 2020.

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




                                                           , Clerk of Court
                                                          rkers' Compensation Claims




                                              6
                                 II
                                  I                                                       'I



                          Compensation Hearing Order Right to Appeal:

     If you disagree with this Compensation Hearing Order, you may appeal to the Workers'
Compensation Appeals Board or the Tennessee Supreme Court. To appeal to the Workers'
Compensation Appeals Board, you must:

    1. Complete the enclosed form entitled: "Compensation Hearing Notice of Appeal," and file
       the form with the Clerk of the Court of Workers' Compensation Claims within thirty
       calendar days of the date the compensation hearing order was filed. When filing the
       Notice of Appeal, you must serve a copy upon the opposing party (or attorney, if
       represented).

   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 ofthe filing 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 lndigency will
      result in dismissal of your 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. A licensed court
        reporter must prepare a transcript and file it with the court clerk within fifteen calendar
        days of the filing the Notice of Appeal. Alternatively, you may file a statement of the
        evidence prepared jointly by both parties within fifteen calendar 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
        of the evidence 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. After the Workers' Compensation Judge approves the record and the court clerk transmits
      it to the Appeals Board, a docketing notice will be sent to the parties. The appealing
      party has fifteen calendar days after the date of that notice to submit a brief to the
      Appeals Board. See the Practices and Procedures of the Workers' Compensation
      Appeals Board.

To appeal your case directly to the Tennessee Supreme Court, the Compensation Hearing
Order must be final and you must comply with the Tennessee Rules of Appellate
Procedure. If neither party timely files an appeal with the Appeals Board, the trial court's
Order will become final by operation of law thirty calendar days after entry. See Tenn.
Code Ann.§ 50-6-239(c)(7).
For self-represented litigants: Help from an Ombudsman is available at 800-332-2667.
II                                                                                                                      I.
 '                                                                                                                       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:     ! ~                                                      li
                                                                                  I
                          '

        Rent/House Payment $              per month     Med icai/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
