                                                                                              FILED
                                                                                           May 23, 2019
                                                                                           02:40 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, P A,                                 )
         Insurer.                                  )



                EXPEDITED HEARING ORDER DENYING BENEFITS


       This case came before the Court for a second Expedited Hearing. 1 Fallowing the
parties' agreement to accept a decision based on a record review, the Court issued a
Docketing Notice on May 13, 2019.

       The issue is whether additional documents Mr. Kassmieh provided contain
sufficient medical proof to establish that his eye pain, headaches, and tinnitus were
primarily caused by his work injury. The Court holds that, despite this new information,
Mr. Kassmieh remains unlikely to succeed at trial in establishing medical causation and
thus denies his request for benefits.

                                         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
could find an objective reason for his complaints.

1
 The Court issued an expedited hearing order on April 5, 2019. The findings offact and conclusions of
law from that order are incorporated herein.

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       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 is at maximum medical improvement (MMI) from his accident. He
released Mr. Kassmieh with no restrictions or impairment and stated he needed no
additional neurological treatment.

        Mr. Kassmieh also treated with an unauthorized neurologist, Dr. Joy Derwenskus.
Although she treated him for 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 benefits
as to his current symptoms.

        Shortly thereafter, Mr. Kassmieh filed another petition for benefit determination,
this time with a causation letter from Dr. Derwenskus. She believed it likely that Mr.
Kassmieh's "persistent headaches are 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.

                       Findings of Fact and Conclusions of Law

       Mr. Kassmieh need not 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 he is likely to prevail at a hearing on the merits. See Tenn. Code Ann. § 50-
6-239(d)(1) (2018); McCord v. Advantage Human Resourcing, 2015 TN Wrk. Comp.
App. Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015).

        The primary issue remains causation. To prevail, Mr. Kassmieh must show he is
likely to prove that his current complaints arose primarily from the July 19, 2017
incident. 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." !d.

       Here, the only doctors to address causation are Dr. Graham and Dr. Derwenskus.
Dr. Graham stated that Mr. Kassmieh did not have any long-term neurological defects
and was at MMI for his work accident despite his continued complaints, which were "far
out of proportion to his very minor head injury." He also stated that from a neurological
standpoint, Mr. Kassmieh did not require any further restrictions or treatment for the
work accident. The Court finds that Dr. Graham's statements establish that he does not

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believe Mr. Kassmieh's current complaints are causally related to his work injury. As an
authorized physician, Dr. Graham's opinions are presumed correct and can only be
rebutted by a preponderance of the evidence. Tenn. Code Ann. § 50-6-102(12)(A)(ii).

        In an attempt at rebuttal, Mr. Kassmieh offered Dr. Derwenskus's letter, which
states that Mr. Kassmieh's headaches were "likely" related to his work injury, based on
his history. While the law does not require a doctor to use exact statutory language when
addressing causation, the language must be sufficient to establish the likelihood of
meeting the standard at trial. See, Joiner v. United Parcel Service, Inc., 2018 TN Wrk.
Comp. App. Bd., LEXIS 54, at *21 (Sept. 14, 2018). In this case, Dr. Derwenskus's
opinion that the headaches are "likely related" does not meet the requirement that the
symptoms arose primarily out of the work injury. This is insufficient to rebut Dr.
Graham's opinion, particularly given the lack of objective findings and the absence of a
diagnosis for Mr. Kassmieh's symptoms.

        Thus, the Court holds that Mr. Kassmieh has yet to establish he is likely to prove
causation for his current symptoms, and his request for medical treatment and temporary
disability benefits for those symptoms is denied.

       IT IS, THEREFORE, ORDERED that:

  1.   Mr. Kassmieh's request for medical treatment for headaches, eye pain, and tinnitus
       is denied at this time. However, NElS shall continue to 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 July 3, 2019, at 10:00 a.m. C.S.T.
       The parties or their counsel must call615-253-0010 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.

ENTERED THIS THE 23 DAY OF MAY, 2019.




                                      ert V. Durham, Judge
                                   Court of Workers' Compensation Claims




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