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.: 20 2 3

- 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

CLAIMSDr. Lochemes then referred Mr. Olguin to a spine surgeon, and Mr. Olguin select ed Dr. Glen Crosby from a panel

. After a nother 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, p ain 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 utiliz ation review. Utilization review denied the
surgery , and the m edical d irector upheld the denial

. On July 17, 2023
, Dr. Crosby stated in his final medical report that he believe d 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. Gr een, 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 res ponded 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 argue d 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 decision s , 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 stat ing he did not show up to an appointment, and a nurse’s note dated December 13, 2022 . The Court sustain s 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 conside rs 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 mess ages and the email subject line accompanying those text messages, and the subject lines of two other emails

. The Court sustains the objection s to these documents

.

Aztec additionally objected to an email from Mr. Olguin to the Bureau of Workers’ Compensat ion 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 objecti ons 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 weigh ed

. Aztec also object ed to Mr. Olguin’s request for a second opinion and his challenge of the m edical d irector’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 m edical d irector’s findings, Tenn essee Comp ilation R

ules And Regulations 0800

- 02

- 06

- .0 7 (202 2 ) 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

. F urther
, he d id not seek a re vi ew of the denial in his request for exp edited hearing. Thus, t he Court sustains the objection as to challenging the

m edical d irector’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) ; McCordv. 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 phy sician 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 add itional 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 opinio n. T herefore
, 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. Olg u in is entit l ed to a second opinion and surgery m ight be denied, Dr. Crosby remains Mr. Olguin’s authorize d 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 p arties 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 5 3, 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 Com pliance Program by email to WCCompliance.Program@tn.gov

. ENTERED April 17 , 202 4.

________________________________________ Judge Shaterra R. Marion Court of Workers’ Compensation ClaimsAPPENDIX

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 Ledg er 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 Filings13. 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.govFor self

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

- 332

- 2667. Right to Appeal : If you disagree with th e 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 f ile it with the Clerk of the Court of Workers’ Compensation Claims before the expiration of the deadline.  If the order being appealed is “ e xpedited” (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 C ompensation O rder was filed. Wh en 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 al ternative, 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 A ppeal. 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, y ou may r equest from the C ourt C lerk 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 C ourt C lerk

. The Court Clerk will prepare the record for submission to the Appeal s 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 C ourt C lerk 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’ 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]