Gookenbarger, Paul v. Kroger Company , 2022 TN WC 46 ( 2022 )

FILED
Jun 08, 2022
07:12 AM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT KNOXVILLE
PAUL GOOKENBARGER, ) Docket No. 2021-03-0696
Employee, )
v. )
KROGER COMPANY )
Employer, ) State File No. 59262-2018
And )
ABIGAIL HUDGENS, )
Administrator of the )
Bureau of Workers’ Compensation, ) Judge Brian K. Addington
Subsequent Injury Fund. )
EXPEDITED HEARING ORDER
DENYING MEDICAL BENEFITS
Paul Gookenbarger filed a request for expedited hearing seeking additional medical
benefits with Dr. Patrick Bolt for his back injury. Kroger defended on the grounds that Mr.
Gookenbarger did not file a petition for benefit determination within one year of the last
voluntary payment, so that the statute of limitations bars his case. After a June 3, 2022
hearing, the Court holds at this time that Mr. Gookenbarger is not likely to succeed at a
hearing on the merits in proving he timely filed his case.
Claim History
Mr. Gookenbarger testified that he injured his back lifting crates on July 20, 2018.
He treated first with a walk-in clinic, but he then selected Dr. Bolt from a panel of
physicians, when the providers at the clinic made an orthopedic referral.
Dr. Bolt originally ordered injections and/or surgery. However, Kroger denied the
surgery through utilization review, which felt physical therapy was more appropriate. Dr.
Bolt disagreed with any physical therapy before injections or surgery. Eventually, the
parties reached an agreement, and Dr. Bolt performed surgery, after which Mr.
Gookenbarger underwent physical therapy. Dr. Bolt released Mr. Gookenbarger for work
and assigned a nine-percent whole body impairment on September 11, 2019.
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According to Kristy Lykins, claims adjuster, the last payment made by Kroger on
Mr. Gookenbarger’s claim was to Dr. Bolt on October 10, 2019. She then twice reached
out by letter to Mr. Gookenbarger to settle his case but received no reply.
Mr. Gookenbarger testified that he did not receive any correspondence from Kroger
after his last appointment with Dr. Bolt, but he believed that he would continue to have
medical treatment for life because he had sustained a work injury. However, when he later
tried to get medical treatment, Kroger told him his case was closed. To obtain medical
benefits, he filed a petition for benefit determination on July 9, 2021.
Mr. Gookenbarger argued that he needs medical treatment for the pain in his back
that radiates into his right leg. Kroger countered that the statute of limitations had run, thus
barring his claim.
Findings of Fact and Conclusions of Law
At an expedited hearing, Mr. Gookenbarger must provide sufficient evidence to
show he is likely to prevail at a hearing on the merits. See Tenn. Code Ann. § 50-6-
239(d)(1) (2021); McCord v. Advantage Human Resourcing, 2015 TN Wrk. Comp. App.
Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015).
Mr. Gookenbarger has shown that he injured his back at work and is suffering with
pain associated with his injury. However, Kroger presented a defense that the statute of
limitations has run. According to Tennessee Code Annotated § 50-6-203(b)(2) (2018), a
claim is barred unless an injured worker files a petition for benefit determination within
one year of the last authorized doctor visit or last payment of compensation.
Here, Mr. Gookenbarger testified he filed his petition on July 9, 2021, and Ms.
Lykins testified by affidavit that Kroger last paid benefits on October 10, 2019. Thus, Mr.
Gookenbarger filed his petition more than one year after Kroger’s last payment on his
claim. At this time, the Court finds that Mr. Gookenbarger is unlikely to succeed at a
hearing on the merits in proving he timely filed his petition for benefit determination.
IT IS ORDERED AS FOLLOWS:
1. The Court denies Mr. Gookenbarger’s request for medical benefits.
2. The Court sets a Scheduling Hearing on July 11, 2022, at 10:00 a.m.
Eastern Time. The parties must call 855-543-5044 to participate in the
hearing. Failure to call may result in a determination of issues without the
party’s participation.
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ENTERED June 8, 2022.
______________________________________
BRIAN K. ADDINGTON, JUDGE
Court of Workers’ Compensation Claims
APPENDIX
Exhibits
1. Rule 72 Declaration of Paul Gookenbarger
2. First Report of Injury
3. Wage Statement
4. Employee’s Choice of Physicians
5. Medical Records of Dr. Patrick Bolt
6. Correspondence
7. Employer’s Notice of Filing
Affidavit of Kristy Lykins
Dr. Patrick Bolt medical record
Technical record
1. Petition for Benefit Determination
2. Dispute Certification Notice
3. Hearing Request (Expedited)
4. Hearing Request (Scheduling)
5. Employer’s Expedited Hearing Brief
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CERTIFICATE OF SERVICE
I certify that a copy of the Show Cause Order was sent on June 8, 2022.
Name Certified Fax Email Service sent to:
Mail
Paul Gookenbarger, X X 305 Ashley Dr.
Employee Seymour, TN 37865
paul2401@sbcglobal.net
Heather Douglas, X hdouglas@manierherod.com
Employer’s Attorney jmacnair@manierherod.com
Lindsay Hall, X lindsay.n.hall@tn.gov
Fund Attorney
______________________________________
PENNY SHRUM, COURT CLERK
wc.courtclerk@tn.gov
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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: “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.
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