1 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 3 0 , 2021

. After the parties stipulated to several facts, the remaining issue s 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 h er employment with MSM on November 20 , 20 18

. MSM accepted the claim and p rovided medical treatment . She continued to work for MSM until June 18, 2019, and her average weekly wage was $330.19.

A s 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 restric tions , as well as allegations of supervisors harassing and shouting at her. As the Court explained in i ts Expedited Hearing Order, it is sympathetic but has no remedy available for these 

### FILED Dec 02, 2021 08:24 AM(CT)
TENNESSEE COURT OF WORKERS' COMPENSATION

CLAIMS2

David West.

Dr. West’s C

- 32 Medical Report shows that he is an orthopedic surgeon who treated Ms. Frausto f

or several mont hs 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 sh e 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 treat ing

. Findings of Fact and Conclusions of Law

Ms. Frausto, as t he employee in a workers’ compensation claim

, has the burden of proof on all essential elements of her claim. Scott v. Integrity St affing Solutions, 2015 TN Wrk. Comp. App. Bd. LEXIS 24, at *6 (Aug. 18, 2015). At a c ompensation h earing, she
must show by a preponderance of the evidence that s he 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, s he 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 en titled 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 p ermanent 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 h er future medical treatment under this provision. Thus, s he is entitled to continuing medical treatment with Dr . West

.

alleg ations

.3

IT IS, THEREFORE, ORDERED as foll ows:

1. Marketing & Sales Management Corp. shall provide Ms. Fr austo future medical benefits under Tennessee Code Annotated section 50

- 6

- 204(a)(1)(A). Dr. David West remain s 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. Pet ition 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 Me dical Report of Dr. David West4 CERTIFICATE OF SERVICE

I certify that a copy of the Compensation Hearing Order was sent as indicated on December 2

, 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

_____________________________________ Penny Shrum, Clerk of Court Court of Workers’ Compensation Claims WC.CourtClerk@tn.govLB -1099 rev. 01/20 Page 1 of 2 RDA 11082 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’ Co mpensation Appeals Board (check one or more applicable boxes and include the date filestamped on the first page of the order(s) being appealed):



### □ Expedited Hearing Order fil ed 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: _______________________________________________________

_ Ph one: ___________________ Email: __________________________________________________________ Attorney’s Na me:

_____________________________________________ _ BPR#: _______________________ Attorney’s E mail: _____________________________________________

_ Phone: _______________________ Attorney’s Ad dress:

_________________________________________________________________________ * Attach an additional sheet for each additional Appellant *LB -1099 rev. 01/20 Page 2 of 2 RDA 11082

Employee Name: _______________________________________ Docket No.: __________________

__ _ Date of Inj.:

____

___________

Appellee(s) (Opposing Party): ___________________________________________ ☐ Employer ☐ Employee App ellee’s Address:

_____________________________________________ _ Phone:

_ ___________________ Email: _________________________________________________________ Attorney’s Na me:

_____________________________________________ B PR#: ________________________ Attorney’s E mail: _____________________________________________ Phone:

_______________________ Attorney’s Ad dress:

_________________________________________________________________________ * 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

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, to all parties and/or their attorneys in this case on this the __________ day of ___________________________________, 20 ____.

__ ____________________________________________ [Signature of appellant or attorney for appellant]