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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 

FILED

Apr 14, 2021

09:22 PM(CT)

TENNESSEE COURT OF

WORKERS' COMPENSATION

CLAIMS
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Court order MSM to provide chiropractic treatment.1 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.

1 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.
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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.

_____________________________________

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:

1. Petition for Benefit Determination

2. Dispute Certification Notice

3. Request for Expedited Hearing

4. MSM’s Witness and Exhibit List

5. MSM’s Expedited Hearing Position Statement
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CERTIFICATE OF SERVICE

I certify that a copy of the Expedited Hearing Order was sent as indicated on April

14, 2021.

Name Certified 

Mail

Email Service Sent To

Alejandra Frausto X X 406 Highland Avenue

Smyrna, TN 37167

fraustogabi@gmail.com

Catherine Dugan,

Employer’s Attorney

X cate@petersonwhite.com

MOST X patsy.bumbalough@tn.gov

peggy.haley@tn.gov

_____________________________________

Penny Shrum, Clerk of Court

Court of Workers’ Compensation Claims

WC.CourtClerk@tn.gov