### TENNESSEE BUREAU OFWORKERS' COMPENSATION IN THE COURT OFWORKERS' COMPENSATIONCLAIMS AT NASHVILLE Michael Nickens, Employee, ) DocketNo. 2018-06-2263 ) 

### v. Anitox Corp., Employer, And National Liability & 

### FireIns. Co., Carrier. ) 

### ) StateFile No. 19179-2018 ) ) 

### ) Judge Kenneth M. Switzer )



### EXPEDITEDHEARING ORDERDENYINGREQUESTED RELIEF (DECISIONONTHE 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 andheart conditions. The Court agrees and denies the requestedrelief. 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

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

CLAIMSthe 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 thatthe sole issue is Mr. Nickens's entitlementto theprescription 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 That card was recently declined by the pharmacist and I was informed that the card was no longer active.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 cardreactivated.

Other than his affidavit, Mr. Nickens submitted no medical proof or other evidence supporting his entitlementto the requested relief. Among its objections, Anitox arguedthere was no "outstandingprescription that is necessary" relatingto his pulmonary or cardiac conditions. Findings ofFact and Conclusions ofLaw 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, 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, becauseMr. Nickens didnotmeet his burdenregarding his requestedrelief. 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 ofhis 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 totreathis alleged injuries. For these reasons, the Court holds he is unlikely to prevail at a hearing on the

1Mr. 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. Itis ORDERED. ENTERED September 10, 2019.

CourtofWorkers' Compensa APPENDIX 

### The Court consideredthe following documents: 1. Petition for Benefit Determination 2. Dispute CertificationNotice 3. Request for Scheduling Hearing 4. Order on SchedulingHearing 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'sresponse to causation letter, May 9, 2019 d. Medical opinion statement ofDr. Sevin (supplementto C-32) e. Dr. Sevin's CV 6. Response to Motion to Compel Medical Benefits a. C-20, FirstReport oflnjury b. First Report ofInjury c. Notice ofDenial ofClaim d. Notice ofDenial 7. Defendants' Response to PlaintiffsFirstRequests for Admission 8. Medical opinion statement ofDavid Slosky, M.D. 9. Motionto Compel Discovery 10. Order on Motion to Compel Medical Benefits and Setting the Case for an Expedited Hearing/Decision on the Record 11.Affidavit ofMichaelNickens 12.Response Briefto Employee's Motion to Compel Benefits a. Rule 72 Statement ofJacqueline Hannigan andpayment 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 3e. 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 ofPatientMichael Nickens, Dr. Kreth 

### i. Report, Dr. Milstone 13.Employee'sNotice ofObjection 14.Employer's Responseto 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 1 0, 2019. Name Certified Mail Michael Fisher, Employee's attorney Allen Callison, Em_l)_loyer's attorney Via Via Service sentto: Fax Email X michael@rocky_lawfirm.com X Allen.callison@mgclaw.com



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

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