Nickens. Michael v. Anitox Corp. , 2019 TN WC 135 ( 2019 )

FILED
Sep 10, 2019
02:26 PM(CT)
TENNESSEE COURT OF
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT NASHVILLE
Michael Nickens, ) Docket No. 2018-06-2263
Employee, )
Vv. )
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, 2017. Anitox denied the claim on February 5, 2018.
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
WORKERS' COMPENSATION
the prescription card and attorney fees.’ 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declined by the pharmacist and I was informed that the card was no longer
active.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)(1) (2018); McCord v.
Advantage Human Resourcing, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9
(Mar. 27, 2015).
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)(1)(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
' Mr. Nickens agreed to reserve the attorney fee request until the compensation hearing.
2
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.
Cont MW. Ow AD)
JUDGE KENNETH M. SWI oe
Court of Workers’ Compensa Claims
APPENDIX
The Court considered the following documents:
Petition for Benefit Determination
Dispute Certification Notice
Request for Scheduling Hearing
Order on Scheduling Hearing
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
e.
WRWN
. Medical opinion statement of Dr. Sevin (supplement to C-32)
Dr. Sevin’s CV
6. Response to Motion to Compel Medical Benefits
a. C-20, First Report of Injury
b. First Report of Injury
c. Notice of Denial of Claim
d. Notice of Denial
Defendants’ Response to Plaintiff's First Requests for Admission
Medical opinion statement of David Slosky, M.D.
Motion to Compel Discovery
0. 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
seas
3
mye rho
i. Report, Dr. Milstone
13.Employee’s Notice of Objection
Progress notes, Dr. Slosky, April 26, 2018
Progress notes, Ms. Pierce, April 5, 2018
Progress notes, Ms. Lord, March 27, 2018
Records review of Patient Michael Nickens, Dr. Kreth
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, 2019.
Name Certified Via Via_ | Service sent to:
Mail Fax Email
Michael Fisher, X michael@rockylawfirm.com
Employee’s attorney
Allen Callison, xX Allen.callison@mgclaw.com
Employer’s attorney
Aes AU ~—
PENNY SE fLUM, COURT CLERK
WC.CourtVCierk@tn.gov
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