# Kassmieh, Michael v. NEIS, Inc.

> Tennessee Court of Workers' Compensation Claims · May 23, 2019 · 2019 TN WC 83

URL: https://www.frixlaw.com/law-library/cases/4560375

## Case

- **Court:** Tennessee Court of Workers' Compensation Claims
- **Decided:** May 23, 2019
- **Citations:** 2019 TN WC 83
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Robert Durham
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

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, )
Vv. )
)
NEIS, 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 a second Expedited Hearing.' Following 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 NEIS.
He asserted the injury caused unrelenting right-eye pain, headaches, and tinnitus. NEIS
provided authorized treatment with two neurologists and an ophthalmologist, but none
could find an objective reason for his complaints.

'The Court issued an expedited hearing order on April 5, 2019. The findings of fact and conclusions of
law from that order are incorporated herein.
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.” Jd.

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

2
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, NEIS 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 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.

ENTERED THIS THE Z3DAY OF MAY, 2019.

Robert V. Durham, J udg
Court of Workers’ Compensation Claims
APPENDIX
Technical Record

1. Petition for Benefit Determination
2. Docketing Notice

3. NEIS’s position statement

4. Mr. Kassmieh’s 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 of Dr. Derwenskus
8. Photographs
9. MRI report

10. Dr. Derwenskus’s causation letter
11. April 5, 2019 expedited hearing order

CERTIFICATE OF SERVICE

I certify that a true and correct copy of this Order was sent to these recipients by
the following methods of service on May 23, 2019.

Name Certified Via Via_ | Service sent to:
Mail Fax Email
Michael Kassmieh x xX 3101 Lancelot Drive,
Murfreesboro, TN 37127
Mkas2734@gmail.com
Catherine Dugan Xx cate@petersonwhite.com

Z dt
/
Stu y_ Xe

Peiiny Shrum, Clerk of Court
Court of Workers’ Compensation Claims

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.
LB-1099

EXPEDITED HEARING NOTICE OF APPEAL
Tennessee Division of Workers’ Compensation
www. tn.gov/labor-wid/weomp.shtml
wce.courtclerk@tn.gov
1-800-332-2667

Docket #:
State File #/YR:

Employee

Vv.

Employer
Notice
Notice is given that

[List name(s) of all appealing party(ies) on separate sheet if necessary]

appeals the order(s) of the Court of Workers’ Compensation Claims at

to the Workers’ Compensation Appeals

Board. [List the date(s) the order(s) was filed in the court clerk’s office]

Judge

Statement of the Issues
Provide a short and plain statement of the issues on appeal or basis for relief on appeal:

Additional Information
Type of Case [Check the most appropriate item]

L] Temporary disability benefits
L] Medical benefits for current injury
LC Medical benefits under prior order issued by the Court

List of Parties
Appellant (Requesting Party): At Hearing: LJEmployer LJEmployee

Address:

Party’s Phone: Email:
Attorney's Name: BPR#:
Attorney’s Address: Phone:

Attorney's City, State & Zip code:

Attorney’s Email:

* Attach an additional sheet for each additional Appellant *

rev. 10/18 Page 1 of 2 RDA 11082
Employee Name: SF#: DOI:

Appellee(s)

Appellee (Opposing Party): At Hearing: L]JEmployer LJEmployee

Appellee’s Address:

Appellee’s Phone: Email:
Attorney’s Name: BPR#:
Attorney’s Address: Phone:

Attorney’s City, State & Zip code:

Attorney’s Email:

* Attach an additional sheet for each additional Appellee *

CERTIFICATE OF SERVICE

I,
Expedited Hearing Notice of Appeal by First Class, United States Mail, postage prepaid, to all parties

and/or their attorneys in this case in accordance with Rule 0800-02-22.01(2) of the Tennessee Rules
of Board of Workers’ Compensation Appeals on this the day of , 20

, certify that | have forwarded a true and exact copy of this

[Signature of appellant or attorney for appellant]

LB-1099 rev. 10/18 Page 2 of 2 RDA 11082

Tennessee Bureau of Workers’ Compensation
220 French Landing Drive, I-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, | 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 Ail Dependents:

Relationship:

Relationship:

Relationship:

Relationship:

6. lam 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. | receive or expect to receive money from the following sources:

AFDC $ per month beginning
ssl $ per month beginning
Retirement $ per month beginning
Disability $ per month beginning
Unemployment $ per month beginning
Worker's Comp.$ per month beginning
Other $ per month beginning

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

Rent/House Payment $ permonth 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

| 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

day of , 20

NOTARY PUBLIC

My Commission Expires:

LB-1108 (REV 11/15) RDA 11082

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4560375. Public record. Not legal advice.