1 TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS

AT KNOXVILLE

PAUL GOOK E NBARGER
, ) Docket N o. 2021

- 03

- 0696

Employee, )

v. )
KROGER COMPANY )

Employer , ) State File No. 59262

- 2018
A nd )
ABIGAIL HUDGENS
, )

Administrator of the Bureau of Workers’ Compensation, Subsequent Injury Fund

. ) ) ) Judge Brian K. Addington

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
volunt ary payment, so that the statute of limitations bar s his case. After a June 3, 2022 hearing, the Court hold s 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. Go okenbarger 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 origin ally 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 r eached an agreement

, and Dr. Bolt performed surgery, a fter 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. 

### FILED Jun 08, 2022 07:12 AM(CT)

TENNESSEE COURT OF
WORKERS' COMPENSATION

CLAIMS2

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 h e believed that he would continue to have
medical treatment for life because he ha d sustained a work injury. However, w hen 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 need s med ical treatment for the pain in his back
that radiate s 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 a t work and is suffering with pain associated with his injury. However, Kroger presented a defense that the statute of
limitations ha s run. According to Tennessee Code Annotated § 50

- 6

- 203(b)(2) (2018), a claim is barred unless an injured worker files a pe tition 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 bene fits 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 fi led his petition for benefit determination.

I T 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.3

ENTERED June 8
, 20 22

.

______________________________________ 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 Record s 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 C ertification Notice 3. Hearing Request (Expedited)
4. Hearing Request (Scheduling) 5. Employer’s Expedited Hearing Brief4 CERTIFICATE OF SERVICE

I certify that a copy of the Show Cause Order was sent on June 8 , 2022

.

Name Certified

Mail Fax Email Service sent to:

Paul Gookenbarger

, Employee X X 305 Ashley Dr. Seymour, TN 37865 paul2401@sbcglobal.net Heather Douglas

, Employer’s Attorney X hdouglas@manierherod.com jmacnair@manierherod.com Lindsay Hall

, Fund Attorney X lindsay.n.hall@tn.gov

______________________________________ PENNY SHRUM, COURT CLERK wc.courtclerk@tn.govFor self

- represented litigants: Help from an Ombudsman is available at 800

- 332

- 2667. 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 f ile 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 B ureau 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

complete d 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 busine ss 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 Appe als 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 mu st 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 sta tement. 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.LB -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

- 21

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

__ ____________________________________________ [Signature of appellant or attorney for appellant]