Frausto, Alejandra v. Marketing & Sales Mgmt., Corp. , 2021 TN WC 173 ( 2021 )

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. )
EXPEDITED HEARING ORDER DENYING BENEFITS
This case came before the Court on April 6, 2021, for an Expedited Hearing on
whether Ms. Frausto is likely to prove at a hearing on the merits that she is entitled to
chiropractic treatment. To receive these benefits, Ms. Frausto must show that her need for
additional treatment arose primarily out of and in the course and scope of her employment.
The Court holds Ms. Frausto was unable to meet this burden and denies the requested
benefits at this time.
History of Claim
Ms. Frausto injured her back while working for Marketing & Sales Management
(MSM) on November 20, 2018. She reported the injury, and MSM provided medical
treatment at Concentra Medical Center. After treating Ms. Frausto for lumbar strain for a
few weeks, Concentra referred her to Dr. David West, an orthopedic spine specialist. MSM
approved the referral, and Ms. Frausto saw Dr. West on February 14.
Dr. West assessed non-surgical chronic low-back pain and ordered additional
physical therapy. After a functional capacity evaluation, he released Ms. Frausto at
maximum medical improvement on May 2.
Ms. Frausto testified she continues to suffer from low-back pain and asked that the
1
Court order MSM to provide chiropractic treatment.! MSM responded that she is not
entitled to the requested treatment because her authorized doctor, Dr. West, did not
recommend it. MSM also maintained it has consistently offered Ms. Frausto a return to
Dr. West and continues to do so, but she has always declined.
Findings of Fact and Conclusions of Law
Ms. Frausto must provide sufficient evidence from which the Court might determine
she would likely prevail at a hearing on the merits. See Tenn. Code Ann. § 50-6-239(d)(1)
(2020); McCord v. Advantage Human Resourcing, 2015 TN Wrk. Comp. App. Bd. LEXIS
6, at *7-8, 9 (Mar. 27, 2015). To prove entitlement to medical treatment, she must show
that her alleged injuries arose primarily out of and in the course and scope of her
employment. This includes the requirement of showing, “to a reasonable degree of medical
certainty that [the incident] contributed more than fifty percent (50%) in causing the. . .
need for medical treatment, considering all causes.” “Shown to a reasonable degree of
medical certainty” means that, in the opinion of the treating physician, it is more likely than
not considering all causes as opposed to speculation or possibility. See Tenn. Code Ann.
§ 50-6-102(14).
MSM has provided Ms. Frausto with medical treatment, including the orthopedic
specialist recommended by her first provider. The Court understands Ms. Frausto is
dissatisfied with the results of her medical care, but she has not identified any legal basis
that would justify an order for additional medical benefits, such as chiropractic treatment.
None of the authorized physicians has made that referral, and the Court cannot form its
own medical opinion. Instead, Ms. Frausto must provide medical evidence that the
purported need for a chiropractor arose primarily out of this accident. Without that proof,
the Court has no authority to order the chiropractic treatment Ms. Frausto seeks. See Baker
v. Electrolux, 2017 TN Wrk. Comp. App. Bd. LEXIS 65, at *7-10 (Oct. 20, 2017).
Further, as noted above, MSM has discharged its statutory obligation to provide
medical benefits made reasonably necessary by the reported injury. Tennessee Code
Annotated section 50-6-204(a)(3)(A)(@i) requires Ms. Frausto to “accept the medical
benefits afforded under this section” and allows employers to designate the panel doctors
who are authorized to provide those benefits. She admitted that MSM offered her a return
to Dr. West, which she declined, and she presented no evidence that MSM ever refused a
return appointment. Thus, it appears treatment with the authorized doctor is still available.
Without proof that MSM failed to provide required treatment, Ms. Frausto has not shown
she is likely to succeed on a claim for additional medical benefits.
' Ms. Frausto also wanted the Court to order MSM to pay her settlement demand. The Court explained that
it has no authority to issue such an order. Similarly, although the Court is sympathetic to the problems she
encountered when trying to return to work within her medical restrictions, it has no remedy available for
those problems.
IT IS, THEREFORE, ORDERED as follows:
1. Ms. Frausto’s claim against Marketing & Sales Management for additional medical
benefits is denied at this time.
2. This case is set for a Scheduling Hearing on June 24, 2021, at 9:00 a.m. The parties
must call toll-free at 855-874-0473 to participate. Failure to call might result in a
determination of the issues without your further participation. All conferences are
set using Central Time.
ENTERED April 14, 2021.
—.
OLE” 2D
Judge Dale Tipps
Court of Workers’ Compensation Claims
APPENDIX
Exhibits:
1. Ms. Frausto’s Rule 72 Statement in Support of Request for Expedited Hearing
2. Rule 72 Declaration of Jeffrey Cain
3. Indexed medical records
Technical record:
Petition for Benefit Determination
Dispute Certification Notice
Request for Expedited Hearing
MSM’s Witness and Exhibit List
MSM’s Expedited Hearing Position Statement
wWRwWNS
CERTIFICATE OF SERVICE
I certify that a copy of the Expedited Hearing Order was sent as indicated on April
14, 2021.
Name Certified | Email | Service Sent To
Mail
Alejandra Frausto X X 406 Highland Avenue
Smyrna, TN 37167
fraustogabi @ gmail.com
Catherine Dugan, xX cate @petersonwhite.com
Employer’s Attorney
MOST xX patsy.bumbalough @tn.gov
peggy.haley @tn.gov
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Penny Shrumy, Clerk of Court
Court of Workers’ Compensation Claims
WC.CourtClerk @ th.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: “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
conceming 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/
wce.courtclerk@tn.gov | 1-800-332-2667
Docket No.:
State File No.:
Date of injury:
Employee
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):
0 Expedited Hearing Order filed on O Motion Order filed on
0 Compensation Order filed on C1 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): fo 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 lof 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 | 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