F~ED 

Nlay 2 0, 2016 

1N COURT OF 

"ORKIRS' COMPENSATION 

CLAIMS 

TENNESSEE BUREAU OF WORKERS' COMPENSATION 

IN THE COURT OF WORKERS' COMPENSATION CLAIMS 

AT KINGSPORT 

Elizabeth Otey 

Employee, 

v. 

Sears Holding Corporation 

Employer. 

) Docket No.: 2015-02-0490 

) 

) State File Number: 100303-2014 

) 

) Judge Brian K. Addington 

EXPEDITED HEARING ORDER FOR 

MEDICAL BENEFITS 

Time: 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 of the 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 

medical benefits under the Workers' Compensation Law. 

History of Claim 

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 

of the C5-C6 disc space. !d. According to Ms. Otey's testimony, Dr. Testerman referred 

her to Dr. Lorio, his partner. 

Dr. Lorio examined Ms. Otey on April 2, 2015, and following the examination, 

1 Sears Holding Corporation owns Kmart. 

2 The parties did not list compensability as an issue on the Dispute Certification Notice. 

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recommended 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 of surgery 

or another epidural. !d. 

Though no documentation of the review was placed into evidence, the parties 

mentioned Dr. Lorio's recommendation went through Utilization Review. 

However, in response to a letter from Ms. Otey's attorney dated March 14, 2016, 

Dr. Lorio confirmed his recommendation of surgery. (Ex. 4 at 2.) 

During presentation of evidence, the parties mentioned Dr. Lorio's examination of 

Ms. Otey on April 25, 2016. No record of that examination was introduced into 

evidence, but Ms. Otey testified she saw Dr. Lorio that day, and he preferred to 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 at the Expedited Hearing 

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 concerned the delay and interference with Dr. Lorio's surgical 

recommendation. 

Sears' arguments at the Expedited Hearing 

Sears asserted that the issue of surgery 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 of Facts and Conclusions of Law 

In this workers' compensation case, Ms. Otey has the burden of proof on all 

essential elements of her 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, 20 15). However, Ms. Otey need not prove every element of her claim by a 

preponderance of the evidence in order to obtain relief at an Expedited Hearing. McCord 

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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 a hearing on the 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 of Dr. 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 of the 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 

recommended by Dr. Lorio to treat her December 2014 injury. 

IT IS, THEREFORE, ORDERED as follows: 

1. Sears is responsible for reasonable and necessary medical treatment by Dr. Lorio 

as a result of Ms. Otey's work injury. 

2. This matter is set for an Initial (Scheduling) Hearing on June 28, 2016, at 1:30 

p.m. Eastern. 

ENTERED this the 20th day of May, 2016. 

~ ( L. ,.----- I Judge Brian K. Addington 

Court of Workers' Compensation Claims 

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

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Initial (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 participate in the Initial Hearing. 

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 

your further participation. All conferences are set using Eastern Time. 

Right to 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. Complete the enclosed fonn entitled: "Expedited Hearing Notice of Appeal." 

2. File the completed form with the Court Clerk within seven business days of the 

date the Workers' Compensation Judge entered the Expedited Hearing Order. 

3. Serve a copy of the Expedited Hearing Notice of Appeal upon the opposing party. 

4. The appealing party is responsible for payment of a filing fee in the amount of 

$75.00. Within ten calendar days after the filing of a notice of appeal, payment 

must be received by check, money order, or credit card payment. Payments can be 

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 

of Indigency, on a form prescribed by the Bureau, seeking a waiver of the filing 

fee. The Affidavit of Indigency may be filed contemporaneously with the Notice 

of Appeal or must be filed within ten calendar days thereafter. The Appeals Board 

will consider the Affidavit of Indigency 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 of having 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 of Appeal. Alternatively, the parties may file a joint statement of 

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the 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 submitted to the Clerk of the Appeals Board. 

6. If the appellant elects to file a position statement in support of the interlocutory 

appeal, the appellant shall file such position statement with the Court Clerk within 

five business days of the expiration of the 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 of the filing of the appellant's 

position statement. All position statements pertaining to an appeal of an 

interlocutory order 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. 

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APPENDIX 

Exhibits: 

1. Affidavit of Elizabeth Otey; 

2. Medical records Neuro-Spine Solutions April2, 2015; 

3. Medical records Neuro-Spine Solutions April30, 2015; 

4. Collective Exhibit of Dr. Lorio's records; 

5. Richard Salamone, Ph.D. psychological evaluation report. 

Technical record: 4 

1. Petition for Benefit Determination; 

2. Dispute Certification Notice; 

3. Request for Expedited Hearing; and, 

4. Motion to Amend Dispute Certification Notice. 5 

CERTIFICATE OF SERVICE 

I hereby certify that a true and correct copy of the Expedited Hearing Order was 

sent to the following recipients by the following methods of service on May 20, 2016. 

Name Certified Mail First Class Mail 

D. Beiger, Esq. 

C. Brown, Esq. 

Via Email Service Sent To: 

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 withdrew this Motion at the Expedited Hearing. 

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