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.
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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