                                                                                 FILED
                                                                                Sep 10, 2019
                                                                               02:26 PM(CT)
                                                                             TENNESSEE COURT OF
                                                                            WORKERS' COMPENSATION
                                                                                   CLAIMS




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

Michael Nickens,                            )   Docket No. 2018-06-2263
            Employee,                       )
v.                                          )
Anitox Corp.,                               )   State File No. 19179-2018
            Employer,                       )
And                                         )
National Liability & Fire Ins. Co.,         )   Judge Kenneth M. Switzer
            Carrier.                        )


       EXPEDITED HEARING ORDER DENYING REQUESTED RELIEF
                    (DECISION ON THE RECORD)


       Michael Nickens inhaled an unknown substance while working for Anitox
Corporation. Anitox briefly accepted the claim but later denied it. While the claim was
accepted, Mr. Nickens used a prescription card to pay for medication. He seeks an order
that Anitox reauthorize the card. Anitox opposes the request on grounds that the treating
physician has not prescribed any medication necessary to treat Mr. Nickens's pulmonary
and heart conditions. The Court agrees and denies the requested relief.

                                      Claim History

       Mr. Nickens's petition for benefit determination alleged exposure to a "toxic
substance" at work on December 11, 20 17. Anitox denied the claim on February 5, 20 18.

       At a scheduling hearing in May 2019, the parties informed the Court that Mr.
Nickens treated on his own and reached maximum medical improvement in the fall of
2018. The Court set discovery deadlines in anticipation of scheduling a compensation
hearing.

      Mr. Nickens filed a motion for medical benefits in July seeking reauthorization of



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the prescription card and attorney fees. 1 The Court construed the motion as a request for
expedited hearing and ordered Mr. Nickens to complete an affidavit, set a deadline for
Anitox to respond to the requested relief, and clarified that the sole issue is Mr. Nickens's
entitlement to the prescription card.

           After the hearing, Mr. Nickens filed an affidavit stating:

         At some point in time, I was provided a prescription card from the workers'
         compensation insurer to use in order to fill my medications needed to treat
         and manage the symptoms arising from this injury. That card was recently
         declined by the pharmacist and I was informed that the card was no longer
         active. I am seeking further medical benefits and to have the prescription
         card reactivated.

       Other than his affidavit, Mr. Nickens submitted no medical proof or other
evidence supporting his entitlement to the requested relief. Among its objections, Anitox
argued there was no "outstanding prescription that is necessary" relating to his pulmonary
or cardiac conditions.

                              Findings of Fact and Conclusions of Law

       Mr. Nickens must show at an expedited hearing that he 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, 20 15).

       The parties' evidence and arguments focused largely on whether Mr. Nickens's
heart failure and stroke were work-related. However, judicial economy dictates that the
Court need not decide that question at this point, using the relaxed standard described
above, because Mr. Nickens did not meet his burden regarding his requested relief.

       Tennessee Code Annotated section 50-6-204(a)(l)(A) requires employers to
provide injured employees medication made reasonably necessary by the work accident.
Here, Mr. Nickens presented detailed expert opinions on medical causation, but he
offered vague information about the medical necessity of his requested relief- reissuance
of the prescription card. His affidavit mentioned "medications needed to treat and
manage the symptoms arising from this injury." However, Mr. Nickens offered no
evidence, medical or lay, identifying the medicine he was prescribed, who prescribed it,
and why it was reasonably necessary to treat his alleged injuries.

          For these reasons, the Court holds he is unlikely to prevail at a hearing on the

1
    Mr. Nickens agreed to reserve the attorney fee request until the compensation hearing.

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merits on his entitlement to the prescription card and denies the request at this time. The
Court will address medical causation after the compensation hearing.

        It is ORDERED.

                                          ENTERED September 10, 2019.




                                          Court of Workers' Compensa

                                       APPENDIX

The Court considered the following documents:

   1.  Petition for Benefit Determination
   2.  Dispute Certification Notice
   3.  Request for Scheduling Hearing
   4.  Order on Scheduling Hearing
   5.  Motion to Compel Medical Benefits
       a. Progress notes, Dr. Sevin, November 1, 2018
       b. Forms C-30A, C-32, Dr. Sevin, May 9, 2019
       c. Dr. Sevin's response to causation letter, May 9, 2019
       d. Medical opinion statement of Dr. Sevin (supplement to C-32)
       e. Dr. Sevin's CV
   6. Response to Motion to Compel Medical Benefits
       a. C-20, First Report oflnjury
       b. First Report of Injury
       c. Notice of Denial of Claim
       d. Notice ofDenial
   7. Defendants' Response to Plaintiffs First Requests for Admission
   8. Medical opinion statement of David Slosky, M.D.
   9. Motion to Compel Discovery
   10. Order on Motion to Compel Medical Benefits and Setting the Case for an
       Expedited Hearing/Decision on the Record
   11. Affidavit of Michael Nickens
   12. Response Brief to Employee's Motion to Compel Benefits
       a. Rule 72 Statement of Jacqueline Hannigan and payment log
       b. Excerpt from Mr. Nickens's deposition transcript
       c. Progress notes, Dr. Sevin, November 1, 2018
       d. Progress notes, Drs. Reagan/Tuchman, December 27, 2017

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       e. Progress notes, Dr. Slosky, April 26, 2018
       f. Progress notes, Ms. Pierce, April 5, 2018
       g. Progress notes, Ms. Lord, March 27, 2018
       h. Records review of Patient Michael Nickens, Dr. Kreth
       i. Report, Dr. Milstone
   13.Employee's Notice of Objection
   14. Employer's Response to Employee's Objection to Medical Statements
   15. Docketing Notice

                            CERTIFICATE OF SERVICE

      I certify that a copy of the Expedited Hearing Order was sent as indicated on
September 10, 20 19.

Name                      Certified   Via         Via    Service sent to:
                           Mail       Fax        Email
Michael Fisher,                                   X      michael@rocky_lawfirm.com
Employee's attorney
Allen Callison,                                   X      Allen.callison@mgclaw.com
Em_l)_loyer' s attorney



                                            ~~ -,;/
                                       PE~0UM, COURT CLERK
                                       WC.Court r, erk@tn.gov




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