TENNESSEE BUREAU OF WORKERS’ COMPENSATION 

IN THE COURT OF WORKERS’ COMPENSATION CLAIMS 

AT MEMPHIS 

MIGUEL OLGUIN,

 Employee, 

v. 

AZTEC MASONRY, INC., 

 Employer, 

And

BRIDGEFIELD CASUALTY INSURANCE 

CO., 

Carrier.

) Docket No.: 2023-08-6277

) 

) 

) State File No.: 86864-2021 

) 

) 

) Judge Shaterra R. Marion 

) 

) 

) 

____________________________________________________________________________

EXPEDITED HEARING ORDER GRANTING IN PART AND DENYING IN PART 

(DECISION ON THE RECORD) 

The Court held an expedited hearing on the record on Mr. Olguin’s request for 

benefits relating to a November 15, 2021 injury. Specifically, he requests temporary 

benefits, an earlier appointment for pain management, and a second opinion on a denied 

disc replacement surgery. 

The Court finds Mr. Olguin is not entitled to temporary total disability benefits, as 

his only treatment is for pain management, or to an earlier pain management appointment. 

However, he is entitled to a second opinion. 

History of Claim

 Mr. Olguin alleged a back injury after a coworker dropped a heavy stone they were 

both carrying. He first saw Dr. John Lochemes, who ordered an MRI, which showed a 

ruptured disc without nerve compression. Dr. Lochemes ordered physical therapy and a 

nerve block, but they did not relieve Mr. Olguin’s symptoms. 

FILED

Apr 17, 2024

12:44 PM(CT)

TENNESSEE COURT OF

WORKERS' COMPENSATION

CLAIMS
Dr. Lochemes then referred Mr. Olguin to a spine surgeon, and Mr. Olguin selected 

Dr. Glen Crosby from a panel. After another nerve block, Mr. Olguin still reported back 

pain radiating into his right leg.

Dr. Crosby ordered another MRI, which showed a collapsed and ruptured disc. He 

offered surgery, but Mr. Olguin wanted to try pain management with Dr. Phillip Green

first. However, pain management and continued physical therapy failed to relieve Mr. 

Olguin’s symptoms, so he returned to Dr. Crosby.

Dr. Crosby recommended a total disc replacement. Mr. Olguin wished to proceed, 

but Aztec submitted the surgery request to utilization review. Utilization review denied the 

surgery, and the medical director upheld the denial.

On July 17, 2023, Dr. Crosby stated in his final medical report that he believed Mr. 

Olguin would require future treatment. He also gave Mr. Olguin an impairment rating of 

14%. For the date of maximum medical improvement, Dr. Crosby put “referral to pain 

management.”

After being released from Dr. Crosby, Mr. Olguin returned to Dr. Green, who made 

a referral of additional pain management. Claims Specialist Anne Hoffman testified that as 

of March 6, 2024, five different pain management providers had declined to treat Mr. 

Olguin, including Dr. Green, and four other providers have not responded at all. Mr. Olguin 

testified that Pain Management Centers of America contacted him on March 7, and 

scheduled an appointment for October 14. He has requested a sooner visit if possible. 

Mr. Olguin argued that he is not at maximum medical improvement based on Dr. 

Crosby’s final medical report, but Aztec disagreed. Mr. Olguin also requested a second 

opinion from Dr. Crosby on the total disc replacement surgery. Aztec stated that since Dr. 

Crosby ordered the surgery, the request should be denied.

Findings of Fact and Conclusions of Law

Evidentiary Rulings

Before discussing the substantive decisions, the Court first considers the evidentiary 

objections raised by both parties.

Mr. Olguin made two sets of objections. His first set was to a note stating he did not 

show up to an appointment, and a nurse’s note dated December 13, 2022. The Court 

sustains his objections because a doctor did not sign either document. 
Mr. Olguin next objected to the employer’s wage statement on the grounds that 

certain weeks had inaccurate pay information. The Court overrules the objection as to 

admissibility but considers his argument that the wage statement is inaccurate.

Aztec also made various objections. It first objected to Mr. Olguin’s statement, “I 

have extreme pain constantlye [sic], bilateral facet disease, disc protrusion with significant 

canal stenosis” as a lay witness statement on expert matters. The Court overrules the 

objection to the extent that Mr. Olguin can testify to his pain but sustains the objection as 

to the part of the statement on his specific diagnoses.

Aztec next objected to the following on hearsay and relevancy grounds: “Patient 

Authorization for Release of Medical Records,” a “Nurse’s Note” dated June 23, 2023, two 

transcribed voicemail messages, a Form C-35A “Notice of Appeal Rights for a Utilization 

Review Denial,” text messages and the email subject line accompanying those text 

messages, and the subject lines of two other emails. The Court sustains the objections to

these documents.

Aztec additionally objected to an email from Mr. Olguin to the Bureau of Workers’ 

Compensation on March 16, 2024; however this was merely an email to the court clerk and 

not submitted as evidence.

Aztec further objected to the entirety of Mr. Olguin’s affidavit as irrelevant. This 

objection is overruled. The Court also overrules Aztec’s objections to claims specialist 

Sheila Ulrich’s statements as hearsay, given that she is a party opponent. Aztec’s objection 

to Mr. Olguin’s statement on the rock’s weight he lifted is likewise overruled. While not 

an expert, Mr. Olguin can testify to how much he thinks it weighed.

Aztec also objected to Mr. Olguin’s request for a second opinion and his challenge

of the medical director’s decision upholding the surgery denial. As to his request for a 

second opinion, the Court will consider his request, so the objection to this request is 

overruled. 

However, to challenge the medical director’s findings, Tennessee Compilation

Rules And Regulations 0800-02-06-.07 (2022) requires a petition for benefit determination 

be filed within 15 calendar days of receipt of the denial. Mr. Olguin did not offer proof that 

he complied with the 15-day deadline. Further, he did not seek a review of the denial in his

request for expedited hearing. Thus, the Court sustains the objection as to challenging the 

medical director’s findings.

Substantive Decisions

Mr. Olguin has the burden of proving he is likely to prevail at trial on medical and 

temporary benefits for his back injury. Tenn. Code Ann. § 50-6-239(c)(6) (2023); McCord 
v. Advantage Human Resourcing, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9 

(Mar. 27, 2015).

The law has a conclusive presumption about Mr. Olguin’s entitlement to temporary 

total disability benefits. Tennessee Code Annotated section 50-6-207(1)(E) states that an 

employee “shall be conclusively presumed to be at maximum medical improvement when 

the treating physician ends all active medical treatment and the only care provided is for 

the treatment of pain.”

Here, though Dr. Crosby’s final report does not list a date of maximum medical 

improvement, he wrote “referral to pain management” on the date of maximum medical 

improvement line. Dr. Green only treated him for pain and referred him solely for 

additional pain management. Thus, under the statute, Mr. Olguin is conclusively presumed 

to be at maximum medical improvement, and his request for reinstatement of temporary 

total disability benefits is denied.

As for his entitlement to a second opinion, section 50-6-204(a)(3)(C) permits this 

on the issue of surgery and diagnosis. This second opinion comes from a panel of two 

physicians practicing in the same specialty as the physician recommending the surgery. Id.

If a panel of specialists has already been provided, the employee may choose from one of 

the two remaining specialists on the panel for a second opinion. Id. This position is 

reinforced by the Appeals Board, which has stated that a surgical recommendation is one 

way to trigger an employee’s entitlement to a second opinion under section 50-6-

204(a)(3)(C). Bassham v. Lowe’s Home Ctrs., Inc., 2023 TN Wrk. Comp. App. Bd. LEXIS 

19, at *5 (May 1, 2023).

In this case, Mr. Olguin wishes to have a second surgical opinion. Therefore, the 

Court orders Aztec to supply a second opinion on the recommended total disc replacement 

surgery from a specialist chosen by Mr. Olguin from the remaining doctors on his original 

panel.

Although Mr. Olguin is entitled to a second opinion and surgery might be denied, 

Dr. Crosby remains Mr. Olguin’s authorized treating physician. Section 240(d) allows 

parties to settle the issue of future medical benefits once reviewed and approved by a judge. 

But “[u]nless a court terminates an employee’s entitlement to medical benefits or approves 

a settlement in which the parties reach a compromise on the issue of future medical 

benefits, an injured worker remains entitled to reasonable and necessary medical treatment 

causally-related to the work injury.” Limberakis v. Pro-Tech Sec., Inc., 2017 TN Wrk. 

Comp. App. Bd. LEXIS 53, at *7 (Sept. 12, 2017).

The Court has not terminated Mr. Olguin’s benefits; therefore he is still entitled to 

reasonable and necessary medical treatment causally related to his work injury. That 

includes a return visit to his authorized treating physician, Dr. Crosby.
For his upcoming pain management appointment in October, the Court finds that 

Aztec has made reasonable attempts to locate different providers and a sooner appointment

for his pain management. Thus, the Court cannot order an appointment be made sooner at 

this time. That said, if Aztec’s efforts do result in a provider who is willing to see Mr. 

Olguin sooner than October, the Court requests that they communicate that earlier date to 

Mr. Olguin. 

IT IS, THEREFORE, ORDERED as follows: 

1. Mr. Olguin’s request to have temporary disability benefits reinstated is denied. 

2. Mr. Olguin’s request for a second opinion on his total disc replacement surgery is 

granted. 

3. Mr. Olguin’s request to have a sooner pain management appointment is denied. 

4. The Court sets a status conference for June 17, 2024, at 1:30 p.m. Central Time. 

The parties must call 866-943-0014. Failure to call might result in a determination 

of the issues without the party’s participation. 

5. Unless interlocutory appeal of the Expedited Hearing Order is filed, compliance 

with this Order must occur no later than seven business days from the date of entry 

of this Order as required by Tennessee Code Annotated section 50-6-239(d)(3). The 

insurer must submit confirmation of compliance with this Order to the Bureau by 

email to WCCompliance.Program@tn.gov no later than the seventh business day 

after entry of this Order. Failure to submit the necessary confirmation within the 

period of compliance may result in a penalty assessment for non-compliance. For 

questions as to compliance, please contact the Workers’ Compensation Compliance 

Program by email to WCCompliance.Program@tn.gov. 

ENTERED April 17, 2024. 

________________________________________ 

 Judge Shaterra R. Marion 

Court of Workers’ Compensation Claims 
APPENDIX 

Exhibits: 

1. Employee Affidavit

2. Employee-filed Medical Records (Excluding Filings Found Inadmissible) 

3. Employee Wage Information 

4. Employee Wage Statement 

5. Employer-filed Medical Records (Excluding Filing Found Inadmissible) 

6. Affidavit of Anne Hofmann 

7. Affidavit of Sheila Ulrich 

8. Petition for Benefit Determination, with Exhibits 

9. Dispute Certification Notice, with Objections 

10.Request for Scheduling Hearing, with Affidavit 

11.Request for Expedited Hearing, with Affidavit 

12.Wage Statement 

13.Executed Physician Panels 

14.Medical Benefit Payout Ledger 

15.Temporary Disability Benefit Payout Ledger

16.The Medical Director’s Denial of Total Disc Replacement at L5 

Marked for Identification: 

1. Employer document 0005 

2. December 13, 2022 Nurse’s Note 

3. Patient Authorization for Release of Medical Records 

4. June 23, 2023 Nurses Note, 

5. Two transcribed voicemail messages filed on February 7, 2024, 

6. Form C-35A “Notice of Appeal Rights for a Utilization Review Denial 

7. Text messages, and email subject line accompanying those text messages, 

8. Two emails filed by Mr. Olguin on March 21, 2024 

Technical Record: 

1. Petition for Benefit Determination 

2. Dispute Certification Notice, with Objections 

3. Request for Scheduling Hearing, with Affidavit 

4. Request for Expedited Hearing, with Affidavit 

5. Motion for Hearing on the Record 

6. Employer’s Prehearing Brief 

7. Employer’s Witness and Exhibit List 

8. Order Granting Motion for Hearing on the Record 

9. Order on Filing Medical Records for Expedited Hearing 

10.Employee’s Motion to Reconsider Hearing on the Record 

11.Order Denying Motion to Reconsider Hearing on the Record 

12.Employer’s Objections to Employee’s Filings 
13.Employee’s First Objections to Employer’s Filings (Objections to Medical 

Records) 

14.Employee’s Second Objections to Employer’s Filings (Objection to Wage 

Statement) 

CERTIFICATE OF SERVICE 

I certify that a copy of this order was sent as indicated on April 17, 2024. 

Name U.S. 

Mail

Via 

Email

Service sent to:

Miguel Olguin,

Employee 

X X 941 Clarington Drive

Southaven, MS 38671 

BinCasR8@protonmail.com

Nicholas Peterson,

Employer’s Attorney

X nick.peterson@petersonwhite.com

garrett.belcher@petersonwhite.com

_____________________________________ 

 Penny Shrum, Court Clerk

Court of Workers’ Compensation Claims 

WC.CourtClerk@tn.gov
For self-represented litigants: Help from an Ombudsman is available at 800-332-2667.

Right to Appeal:

If you disagree with the Court’s Order, you may appeal to the Workers’ Compensation 

Appeals Board. To do so, you must:

1. Complete the enclosed form entitled “Notice of Appeal” and file it with the Clerk of the 

Court of Workers’ Compensation Claims before the expiration of the deadline.

 If the order being appealed is “expedited” (also called “interlocutory”), or if the 

order does not dispose of the case in its entirety, the notice of appeal must be filed 

within seven (7) business days of the date the order was filed.

 If the order being appealed is a “Compensation Order,” or if it resolves all issues 

in the case, the notice of appeal must be filed within thirty (30) calendar days of 

the date the Compensation Order was filed.

When filing the Notice of Appeal, you must serve a copy on the opposing party (or attorney,

if represented). 

2. You must pay, via check, money order, or credit card, a $75.00 filing fee within ten calendar 

days after filing the Notice of Appeal. Payments can be made in-person at any Bureau 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 filing fee. You must file the fully-completed 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 your appeal.

3. You are responsible for ensuring a complete record is presented on appeal. If no court 

reporter was present at the hearing, you may request from the Court Clerk the audio 

recording of the hearing for a $25.00 fee. If you choose to submit a transcript as part of your 

appeal, which the Appeals Board has emphasized is important for a meaningful review of 

the case, a licensed court reporter must prepare the transcript, and you must file it with the 

Court Clerk. The Court Clerk will prepare the record for submission to the Appeals Board, 

and you will receive notice once it has been submitted. For deadlines related to the filing of 

transcripts, statements of the evidence, and briefs on appeal, see the applicable rules on the 

Bureau’s website at https://www.tn.gov/wcappealsboard. (Click the “Read Rules” button.)

4. After the Workers’ Compensation Judge approves the record and the Court Clerk transmits 

it to the Appeals Board, a docketing notice will be sent to the parties.

If neither party timely files an appeal with the Appeals Board, the Court Order 

becomes enforceable. See Tenn. Code Ann. § 50-6-239(d)(3) (expedited/interlocutory 

orders) and Tenn. Code Ann. § 50-6-239(c)(7) (compensation orders).
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’ Compensation 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 filed 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: ________________________________________________________ Phone: ___________________ 

Email: __________________________________________________________ 

Attorney’s Name: ______________________________________________ BPR#: _______________________ 

Attorney’s Email: ______________________________________________ Phone: _______________________ 

Attorney’s Address: _________________________________________________________________________ 

* 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 

Appellee’s Address: ______________________________________________ Phone: ____________________ 

Email: _________________________________________________________ 

Attorney’s Name: _____________________________________________ BPR#: ________________________ 

Attorney’s Email: _____________________________________________ Phone: _______________________ 

Attorney’s Address: _________________________________________________________________________ 

* 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]