1 TENNESSEE BUREAU OF WORKERS’ COMPENSATION

IN THE COURT OF WORKERS’ COMPENSATION CLAIMS

AT MURFREESBORO

ALEJANDRA FRAUSTO

, ) Docket No. 201 9

- 05

- 1276

Employee, )

v. )

MARKETING & SALES MGMT. ) State File No. 93585

- 2018 CORP., )

Employer, )

A nd )

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 M s

. Frausto is likely to prove at a hearing on the merits that s he is entitled to chiropractic treatment

. To receive these benefits, Ms. Frausto must show that h er need for

additional treatment a rose primarily out of an d in the course and scope of her employment.

The Court holds M s. 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 test ified 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

CLAIMS2

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 F act and Conclusions of Law

M s

. Frausto must provide sufficient evidence from which th e Court might determine

s he would likely prevail at a hearing on the merits. See Tenn. Code Ann. § 50

- 6

- 239(d)(1) (20 20 ); 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 h er alleged injuries arose primarily out of an d in the course and scope of h er employment. This includes the requirement of show ing , “to a reasonable degree of medical certainty that [the incident] contributed more th an 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 wit h 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. Fraus to seeks. See B aker
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 “a ccept 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

s he 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

.3

IT IS, THEREFORE, ORDERE D as follows:

1. M s

. 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 2 4 , 2021 , at 9:0 0 a.m. The parties

must call toll

- free at 855

- 874

- 0473 to participate. Failure to call m ight 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. Pet ition for Benefit Determination

2. Dispute Certification Notice

3. Request for Ex pedited Hearing

4. MSM’s Witness and Exhibit List

5. MSM’s Expedited Hearing Position Statement4 CERTIFICATE OF SERVICE

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

14 , 202 1

.

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