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### TENNESSEE BUREAU OFWORKERS' COMPENSATION INTHE COURT OFWORKERS' COMPENSATIONCLAIMS AT KINGSPORT Elizabeth Otey Employee, 

### v. SearsHolding Corporation Employer. ) DocketNo.: 2015-02-0490 ) 

### ) StateFile Number: 100303-2014 ) 

### ) Judge Brian K. Addington

EXPEDITEDHEARING ORDERFOR MEDICALBENEFITS T ime: 12:04 PM

This matter came before the undersigned Workers' Compensation Judge on May 13, 2016, on the Request for Expedited Hearing filed by Elizabeth Otey pursuant to Tennessee Code Annotated section 50-6-239 (2015). The present focus ofthe case is Ms. Otey's entitlement to medical benefits from her authorized treating physician, Dr. Morgan Lorio. For the reasons set forth below, the Court finds Ms. Otey is entitled to medicalbenefits underthe Workers' Compensation Law. 

### History ofClaim Ms. Otey is a forty-seven-year-old resident of Washington County, Tennessee. (T.R. 1 at 1.) She suffered a compensable low back injury while unloading a truck at Kmart 1 on December 17, 2014.2 Sears has provided medical and temporary disability benefits. Ms. Otey came under the care of the providers at Neuro-Spine Solutions on January 30, 2015. (Ex. 4 at 3.) Dr. John Testerman noted Ms. Otey suffered a collapse ofthe C5-C6 disc space. !d. According to Ms. Otey's testimony, Dr. Testerman referred hertoDr. Lorio, his partner. Dr. Lorio examined Ms. Otey on April 2, 2015, and following the examination,

1Sears Holding Corporation owns Kmart.

2 Theparties did not list compensability as an issue on the Dispute Certification Notice. 1recommended a carpectomy at C6 with an anterior fusion at C5-C7. (Ex. 2 at 1.) On April 30, 2015, Dr. Lorio re-examined Ms. Otey and noted she underwent an epidural without much benefit. (Ex. 3.) He presented Ms. Otey with options ofsurgery or another epidural. !d. Though no documentation of the review was placed into evidence, the parties mentioned Dr. Lorio's recommendation wentthrough Utilization Review. However, in response to a letter from Ms. Otey's attorney dated March 14, 2016, Dr. Lorio confirmed his recommendation ofsurgery. (Ex. 4 at 2.) During presentation ofevidence, the parties mentioned Dr. Lorio's examination of Ms. Otey on April 25, 2016. No record of that examination was introduced into evidence, butMs. Otey testified she saw Dr. Lorio that day, and he preferredto wait until receipt of a report from Dr. Richard Salamone, Ph.D. before making further recommendations. On April 26, 2016, Ms. Otey underwent a psychological evaluation with Dr. Salamone. He opined that she was a ..most reasonable surgical candidate from a psychosocial perspective." (Ex. 5 at 5.) Ms. Otey's arguments atthe ExpeditedHearing Ms. Otey requested the surgery previously recommended by Dr. Lorio. Ms. Otey asserted that, if Dr. Lorio again recommends surgery, she wanted to proceed. Her primary dispute with Sears concernedthe delay and interference withDr. Lorio's surgical recommendation. Sears'arguments atthe ExpeditedHearing Sears asserted that the issue ofsurgery is not ripe for adjudication. Dr. Lorio had not opined on surgery following the psychological evaluation. Although it does not disagree with Ms. Otey's assertions, Sears argued the Court cannot order surgery when Dr. Lorio has not again recommended surgery. Findings ofFacts and Conclusions ofLaw In this workers' compensation case, Ms. Otey has the burden of proof on all essential elements ofher claim. Scott v. Integrity Staffing Solutions, No. 2015-01-0055, 2015 TN Wrk. Comp. App. Bd

.LEXIS 24, at *6 (Tenn. Workers' Comp. App. Bd. Aug. 18, 2015). However, Ms. Otey need not prove every element of her claim by a preponderance ofthe evidence in order to obtain reliefat an Expedited Hearing. McCord 2

### v. Advantage Human Resourcing, No. 2014-06-0063, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9 (Tenn. Workers' Comp. App. Bd. Mar. 27, 2015). Instead, she must come forward with sufficient evidence from which this court can determine that she is likely to prevail at ahearing onthe merits. 

### !d. Ms. Otey requested the Court the order surgery previously recommended by Dr. Lorio. 

### It is obvious that Dr. Lorio recommended surgery as an option as early as April 2015 and continued that recommendation in March 2016. The parties referenced but did not introduce a Utilization Review decision that apparently denied the surgery. This evidence would have been helpful to the Court in determining the status ofDr. Lorio's recommendation. In addition, the parties did not introduce Dr. Lorio's April 25, 2016 notes, but Ms. Otey testified Dr. Lorio wanted to review Dr. Salamone's recommendations before he made further recommendations.3 In light ofthe evidence presented during the Expedited Hearing, the Court cannot order the surgery Dr. Lorio recommended in 2015 and March 2016 prior to Dr. Salamone's examination, because in April 2016 Dr. Lorio wanted to review Dr. Salamone's report prior to making further surgical recommendations. However, the Court does order Sears to provide continued reasonable and necessary medical treatment recommendedby Dr. Lorio to treat herDecember2014 injury. 

### ITIS, THEREFORE, ORDERED as follows: 1. Sears is responsible for reasonable and necessary medical treatment by Dr. Lorio as aresult ofMs. Otey's work injury. 2. This matter is set for an Initial (Scheduling) Hearing on June 28, 2016, at 1:30 p.m. Eastern. 

### ENTEREDthis the 20th 

### day ofMay, 2016.

# I**~** (L. ,.----- Judge Brian K. Addington CourtofWorkers' Compensation Claims

3 The parties acknowledged Ms. Otey has not seen Dr. Lorio following Dr. Salamone'sexamination

. 3Initial (Scheduling) Hearing: A Scheduling Hearing has been set with 

### Judge Brian K. 

### Addington, Court of Workers' Compensation Claims, on June 28, 2016 at 1:30 p.m. You must call 855- 543-5044 to participatein the InitialHearing. Please Note: You must call in on the scheduled date/time to participate. Failure to call in may result in a determination of the issues without yourfurtherparticipation.All conferences are set using EasternTime. Rightto Appeal: Tennessee Law allows any party who disagrees with this Expedited Hearing Order to appeal the decision to the Workers' Compensation Appeals Board. To file a Notice of Appeal, you must: 1. Completethe enclosed fonn entitled: "Expedited HearingNotice ofAppeal." 2. File the completed form with the Court Clerk 

### within seven business days ofthe date the Workers' Compensation Judge enteredthe Expedited Hearing Order. 3. Serve a copy ofthe Expedited HearingNotice ofAppeal upon the opposingparty. 4. The appealing party is responsible for payment ofa 

### filing fee in the amount of $75.00. Within ten calendar days after the filing ofa notice ofappeal, payment mustbe received by check, money order, or credit cardpayment. Payments canbe made in person at any Bureau office or by United States mail, hand-delivery, or other delivery service. In the alternative, the appealing party may file an Affidavit ofIndigency, on a form prescribed by the Bureau, seeking a waiver ofthe filing fee. The Affidavit ofIndigency may be filed contemporaneously with the Notice ofAppeal or must be filed within ten calendar days thereafter. The Appeals Board will consider the Affidavit ofIndigency and issue an Order granting or denying the request for a waiver of the filing fee as soon thereafter as is practicable. 

### Failure to timely pay the filing fee or file the Affidavit of Indigency in accordance with this section shall result in dismissal of the appeal. 5. The parties, having the responsibility of ensuring a complete record on appeal, may request, from the Court Clerk, the audio recording of the hearing for the purpose ofhaving a transcript prepared by a licensed court reporter and filing it with the Court Clerk within ten calendar days of the filing of the Expedited Hearing Notice ofAppeal. Alternatively, the parties may file ajoint statement of 4the evidence within ten calendar days of the filing of the Expedited Hearing Notice of Appeal. The statement of the evidence must convey a complete and accurate account of what transpired in the Court of Workers' Compensation Claims and must be approved by the Workers' Compensation Judge before the record is submittedto the Clerk ofthe Appeals Board. 6. Ifthe appellant elects to file a position statement in support ofthe interlocutory appeal, the appellant shall file such position statement with the Court Clerk within five business days ofthe expiration ofthe time to file a transcript or statement of the evidence, specifying the issues presented for review and including any argument in support thereof. A party opposing the appeal shall file a response, if any, with the Court Clerk within five business days ofthe filing ofthe appellant's position statement. All position statements pertaining to an appeal of an interlocutory order should include: (1) a statement summarizing the facts ofthe case from the evidence admitted during the expedited hearing; (2) a statement summarizing the disposition ofthe case as a result ofthe expedited hearing; (3) a statement of the issue(s) presented for review; and (4) an argument, citing appropriate statutes, case law, or other authority.

5APPENDIX

Exhibits: 1. Affidavit ofElizabeth Otey; 2. Medical records Neuro-Spine Solutions April2, 2015; 3. Medical records Neuro-Spine Solutions April30, 2015; 4. Collective Exhibit ofDr. Lorio'srecords; 5. Richard Salamone, Ph.D. psychological evaluation report. Technical record: 4 1. Petition for BenefitDetermination; 2. Dispute CertificationNotice; 3. Request for ExpeditedHearing; and, 4. Motionto AmendDispute CertificationNotice.5

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy ofthe Expedited Hearing Order was senttothe following recipients by the following methods ofservice onMay 20, 2016. Name CertifiedMail First Class Mail D. Beiger, Esq. C. Brown, Esq. ViaEmail Service SentTo: X dan@biegerlaw.com X chris.brown@leitnerfirm.com

# ~S um, Cler::;;;: Court Court of orkers' Compensation Claims WC.CourtClerk@tn.gov

4 The Court did not consider attachments to Technical Record filings unless admitted into evidence during the Expedited Hearing. The Court considered factual statements in these filings or any attachments to them as allegations unless established by the evidence. 5 Ms. Otey withdrewthis Motion atthe Expedited Hearing. 6