Frausto, Alejandra v. Marketing & Sales MGMT. Corp. , 2021 TN WC 246 ( 2021 )

FILED
Dec 02, 2021
08:24 AM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT MURFREESBORO
ALEJANDRA FRAUSTO, ) Docket No. 2019-05-1276
Employee, )
v. )
MARKETING & SALES MGMT. ) State File No. 93585-2018
CORP., )
Employer, )
And )
ERIE INS. EXCHANGE. ) Judge Dale Tipps
Carrier. )
COMPENSATION ORDER
The Court held a Compensation Hearing in this case on November 30, 2021. After
the parties stipulated to several facts, the remaining issues are whether Ms. Frausto is
entitled to additional medical treatment and permanent disability benefits. For the reasons
below, the Court holds that Ms. Frausto is entitled to permanent disability benefits and
lifetime medical benefits.
Claim History
The parties agreed that Ms. Frausto suffered physical injuries in the course and
scope of her employment with MSM on November 20, 2018. MSM accepted the claim
and provided medical treatment. She continued to work for MSM until June 18, 2019, and
her average weekly wage was $330.19.
As for the proof at trial, Ms. Frausto testified that she injured her back while
wrapping items in plastic. Although it took several days after she first reported the injury,
her supervisor eventually took her to a clinic.1 She ultimately began treating with Dr.
1
The majority of Ms. Frausto’s testimony centered around her dissatisfaction with the way her claim was
handled. This included descriptions of the initial delay in providing treatment and problems with MSM
accommodating her restrictions, as well as allegations of supervisors harassing and shouting at her. As the
Court explained in its Expedited Hearing Order, it is sympathetic but has no remedy available for these
1
David West.
Dr. West’s C-32 Medical Report shows that he is an orthopedic surgeon who treated
Ms. Frausto for several months in 2019. After seventeen physical therapy sessions and an
MRI, he concluded that she suffered from a mechanical sprain/strain with no surgical
lesion. Dr. West placed Ms. Frausto at maximum medical improvement on May 2, 2019,
and assigned a one-percent permanent impairment rating, as well as some permanent
restrictions.
At the hearing, Ms. Frausto complained of continuing back pain and suggested she
needs more treatment. However, she admitted on cross-examination that she has declined
several offers from MSM to authorize a return visit to Dr. West. Ms. Frausto also
confirmed that no doctors took her completely off work and that she continued to work for
MSM while treating.
Findings of Fact and Conclusions of Law
Ms. Frausto, as the employee in a workers’ compensation claim, has the burden of
proof on all essential elements of her claim. Scott v. Integrity Staffing Solutions, 2015 TN
Wrk. Comp. App. Bd. LEXIS 24, at *6 (Aug. 18, 2015). At a compensation hearing, she
must show by a preponderance of the evidence that she is entitled to the requested benefits.
Willis v. All Staff, 2015 TN Wrk. Comp. App. Bd. LEXIS 42, at *18 (Nov. 9, 2015).
Because MSM stipulated to the compensability of Ms. Frausto’s injury, the Court considers
her entitlement to the benefits identified in the Dispute Certification Notice.
When a worker suffers a compensable work injury, reaches maximum medical
improvement, and is assigned a permanent medical impairment rating, she is entitled to
receive permanent disability benefits. See Tenn. Code Ann. § 50-6-207(3)(A).
Here, Dr. West’s one-percent impairment rating is unrebutted. Therefore, Ms.
Frausto is entitled to a permanent partial impairment award of $990.59 (1% of 450 weeks
multiplied by $220.13). Because she returned to work at MSM at the same rate of pay for
more than 4.5 weeks, she is not entitled to increased permanent partial disability benefits.
See Tenn. Code Ann. § 50-6-207(3)(B).
As to medical benefits, “[T]he employer or the employer’s agent shall furnish, free
of charge to the employee, such medical and surgical treatment . . . made reasonably
necessary by accident[.]” Tenn. Code Ann. § 50-6-204(a)(1)(A). Since the parties have
stipulated to the compensability of Ms. Frausto’s injuries, MSM is responsible for her
future medical treatment under this provision. Thus, she is entitled to continuing medical
treatment with Dr. West.
allegations.
2
IT IS, THEREFORE, ORDERED as follows:
1. Marketing & Sales Management Corp. shall provide Ms. Frausto future medical
benefits under Tennessee Code Annotated section 50-6-204(a)(1)(A). Dr. David
West remains the treating physician.
2. Marketing & Sales Management Corp. shall pay Ms. Frausto permanent partial
disability benefits of $990.59 in a lump sum.
3. Marketing & Sales Management Corp. shall pay to the Court Clerk the $150.00
filing fee under Tennessee Compilation Rules and Regulations 0800-02-21-.06
within five days of entry of this order.
4. Marketing & Sales Management Corp. shall file an SD-2 with the Court Clerk
within five days of entry of this order.
5. Unless appealed, this order shall become final thirty days after entry.
ENTERED DECEMBER 2, 2021.
_____________________________________
Judge Dale Tipps
Court of Workers’ Compensation Claims
APPENDIX
Exhibits:
1. Dr. David West’s Form C-32 Standard Form Medical Report
2. Printout of MSM Payroll Register
Technical record:
1. Petition for Benefit Determination
2. Dispute Certification Notice
3. June 30, 2021 Scheduling Order
4. MSM’s Pre-Compensation Hearing Statement
5. MSM’s Notice of Intent to Rely upon Medical Report of Dr. David West
3
CERTIFICATE OF SERVICE
I certify that a copy of the Compensation Hearing Order was sent as indicated on
December 2, 2021.
Name Certified Email Service Sent To
Mail
Alejandra Frausto X X 406 Highland Avenue
Smyrna, TN 37167
fraustogabi@gmail.com
Catherine Dugan, X cate@petersonwhite.com
Employer’s Attorney
_____________________________________
Penny Shrum, Clerk of Court
Court of Workers’ Compensation Claims
WC.CourtClerk@tn.gov
4
NOTICE OF APPEAL
Tennessee Bureau of Workers’ Compensation
www.tn.gov/workforce/injuries-at-work/
wc.courtclerk@tn.gov | 1-800-332-2667
Docket No.: ________________________
State File No.: ______________________
Date of Injury: _____________________
___________________________________________________________________________
Employee
v.
___________________________________________________________________________
Employer
Notice is given that ____________________________________________________________________
[List name(s) of all appealing party(ies). Use separate sheet if necessary.]
appeals the following order(s) of the Tennessee Court of Workers’ Compensation Claims to the
Workers’ Compensation Appeals Board (check one or more applicable boxes and include the date file-
stamped on the first page of the order(s) being appealed):
□ Expedited Hearing Order filed on _______________ □ Motion Order filed on ___________________
□ Compensation Order filed on__________________ □ Other Order filed on_____________________
issued by Judge _________________________________________________________________________.
Statement of the Issues on Appeal
Provide a short and plain statement of the issues on appeal or basis for relief on appeal:
________________________________________________________________________________________
________________________________________________________________________________________
________________________________________________________________________________________
________________________________________________________________________________________
Parties
Appellant(s) (Requesting Party): _________________________________________ ☐Employer ☐Employee
Address: ________________________________________________________ Phone: ___________________
Email: __________________________________________________________
Attorney’s Name: ______________________________________________ BPR#: _______________________
Attorney’s Email: ______________________________________________ Phone: _______________________
Attorney’s Address: _________________________________________________________________________
* Attach an additional sheet for each additional Appellant *
LB-1099 rev. 01/20 Page 1 of 2 RDA 11082
Employee Name: _______________________________________ Docket No.: _____________________ Date of Inj.: _______________
Appellee(s) (Opposing Party): ___________________________________________ ☐Employer ☐Employee
Appellee’s Address: ______________________________________________ Phone: ____________________
Email: _________________________________________________________
Attorney’s Name: _____________________________________________ BPR#: ________________________
Attorney’s Email: _____________________________________________ Phone: _______________________
Attorney’s Address: _________________________________________________________________________
* Attach an additional sheet for each additional Appellee *
CERTIFICATE OF SERVICE
I, _____________________________________________________________, certify that I have forwarded a
true and exact copy of this Notice of Appeal by First Class mail, postage prepaid, or in any manner as described
in Tennessee Compilation Rules & Regulations, Chapter 0800-02-21, to all parties and/or their attorneys in this
case on this the __________ day of ___________________________________, 20 ____.
______________________________________________
[Signature of appellant or attorney for appellant]
LB-1099 rev. 01/20 Page 2 of 2 RDA 11082