Nigmatyanov, Rashelle v. Lowe's Home Centers, Inc. , 2019 TN WC 156 ( 2019 )

TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT NASHVILLE
RASHELLE NIGMATYANOV, )
Employee, ) Docket No. 2018-06-2320
)
v. ) State File No. 67955-2018
)
LOWE’S HOME CENTERS, INC., ) Judge Joshua D. Baker
Employer. )
EXPEDITED HEARING ORDER
The Court convened an expedited hearing on October 29, 2019, to consider
whether Ms. Nigmatyanov is entitled to medical treatment and reimbursement of past
medical expenses for her right-shoulder injury. For the reasons below, the Court finds
her request premature and denies her relief at this time.
Claim History
In a previous order, the Court granted Ms. Nigmatyanov a panel of orthopedists to
evaluate and treat her right-shoulder if the panel physician determined her condition was
causally-related to her employment. At this hearing, Ms. Nigmatyanov asked for
ongoing medical treatment and reimbursement of medical expenses she incurred for
treatment before the Court’s prior order for a panel. She testified that Lowe’s provided
the panel in accordance with the order, she chose a doctor, and he evaluated her on
October 16.’ She did not testify that Lowe’s had denied her medical benefits since the
Court’s previous order.
" She filed the record for that visit on October 21, and Lowe’s objected to its admissibility on the ground
that it was untimely filed under Tenn. Comp. Rule & Reg. 0800-02-21-16(2)(a). The Court sustained
Lowe’s objection.
Findings of Fact and Conclusions of Law
To prevail at this expedited hearing, Ms. Nigmatyanov must provide sufficient
evidence that she would prevail at a hearing on the merits. Here, she claimed Lowe’s
wrongfully denied her treatment and asked the Court to order Lowe’s provide it.
Regarding her request for rermbursement of expenses, she must establish that they were
reasonable and necessary. See Tenn. Code Ann. § 50-6-239(d)(1) (2019); Miller v.
Logan’s Roadhouse, Inc., et al., 2018 TN Wrk. App. Bd. LEXIS 59, at *12-13 (Nov. 15,
2018). The Court holds Ms. Nigmatyanov failed to provide sufficient proof on both
issues.
The Workers’ Compensation Law requires an employer to provide injured workers
“medical and surgical treatment . . . as ordered by the attending physician . . . made
reasonably necessary by accident as defined in this chapter.” Tenn. Code Ann. § 50-6-
204(a)(1)(A). An authorized physician’s treatment recommendations are presumed
reasonable and necessary. /d. at 50-6-204(a)(3)(H). An employer risks being required to
pay for unauthorized treatment if it does not provide treatment made reasonably
necessary by the work injury. See Young v. Young Elec. Co., 2016 TN Wrk. Comp. App.
Bd. LEXIS 24, at *16 (May 25, 2016).
Ms. Nigmatyanov presented no expert medical proof linking her prior treatment to
her workplace accident. Therefore, any decision concerning reimbursement of past
medical expenses would be premature. Further, as Ms. Nigmatyanov admitted Lowe’s
provided her a panel and scheduled an appointment, the Court has no reason to order
Lowe’s to provide treatment at this time. Consequently, the Court denies Ms.
Nigmatyanov’s requests at this time.
It is ORDERED as follows:
1. Ms. Nigmatyanov’s request for additional medical treatment or reimbursement of
medical expenses is denied at this time.
2. This case is set for a status conference on January 27, 2020, at 9:00 a.m. (CST).
The parties must call 615-741-2113 to participate in the hearing. Failure to call
might result in a determination of issues without the party’s participation.
ENTERED OCTOBER 31, 2019.
J oshtia Davis Baker, Judge
Court of Workers’ Compensation Claims
2
APPENDIX
Exhibits:
1. Medical Records
2. Rule 72 Declaration of Ms. Nigmatyanov
3. Medical Bills
Technical Record:
Petition for Benefit Determination
Dispute Certification Notice
Request for Expedited Hearing filed September 10, 2019
Request for Expedited Hearing filed February 22, 2019
Employer’s Response to Employee’s Request for Expedited Hearing
Employee’s Notice of Filing of Medical Records
Employee’s Motion to Compel Exam
Employer’s Response to Employee’s Motion to Compel Exam
Expedited Hearing Order
10. Notice of Filing of Employee’s Choice of Physician
11.Employee’s Motion to Continue
12. Order Granting Continuance
13.Employer’s Motion to Continue
14. Order Granting Continuance
15. Employee’s Motion to Compel
16. Employer’s Exhibit List
17. Order Granting Motion to Compel
18. Employer’s Motion to Alter or Amend Order Compelling Discovery
19. Employee’s Exhibit List
20. Employee’s Response to Employer’s Motion to Alter or Amend Order
CHNAKRWN =
CERTIFICATE OF SERVICE
I certify that a copy of this Order was sent as indicated on October 31, 2019.
Name Certified | Fax | Email | Service sent to:
Mail
Rashelle Nigmatyanov, x Shelme2222 @ gmail.com
Employee
Carolina Martin, xX Carolina.martin @ leitnerfirm.com
Employer’s Attorney
Yo |i
Liane By, ea
Pejny Shyam, Court Clerk
Court of Workers’ Compensation Claims
C.CourtClerk @ tn.gov
WwW.
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