The opinion
FILED
Mar 07, 2019
01:39 PM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS' COMPENSATION
IN THE COURT OF WORKERS' COMPENSATION CLAIMS
AT NASHVILLE
Barbara Bauknecht, ) Docket No. 2018-06-2365
Employee, )
v. )
Five Star Quality Care, Inc., d/b/a ) State File No. 50910-2018
Morningside Assisted Living, )
Employer, )
And )
Safety National Casualty Corp., ) Judge Kenneth M. Switzer
Carrier. )
EXPEDITED HEARING ORDER GRANTING MEDICAL BENEFITS
The Court held an expedited hearing on March 7, 2019, on Barbara Bauknecht's
entitlement to additional medical benefits (back surgery- fusion and laminectomy) from
a work injury at Five Star Quality Care, d/b/a Morningside Assisted Living. She seeks an
order that Five Star authorize the recommended surgery. Because Ms. Bauknecht met
her burden to show that the surgery is medically necessary, the Court grants the requested
relief.
History of Claim
Ms. Bauknecht worked at Five Star's assisted living facility. The job entails
occasionally lifting patients weighing as much as 200 pounds or more. She testified that
on July 4, 2018, she saw a coworker attempting to prevent a large patient's fall. She went
to assist, and while doing so felt a sudden "pop" in her low back.
Five Star accepted the claim, and Dr. Edward Mackey provided authorized
treatment. Ms. Bauknecht introduced medical records from two visits with him. On
October 24, Dr. Mackey diagnosed left-side sciatica; other intervertebral disc
degeneration, lumbar region; and low-back pain. He recommended physical therapy and
surgery, explaining:
1
She has progressive weakness and she is falling. Her symptoms are
certainly consistent with the stenosis and disc protrusion at the L4-L5 level.
I have recommended Medrol Dosepak as well as [a] flexion exercise
program. I do not believe that nonoperative management will be
successful, so I have gone ahead and written orders for decompressive
laminectomy and fusion. She will need bilateral facetectomies at L4-L5
level given the amount of foramina! stenosis she has[,] and this will make
her unstable. I agree with the recommendations for fusion and . . .
laminectomy at 4-5 level.
Records from the next visit on November 21 indicate that the carrier denied the
surgery. 1 In the meantime, Ms. Bauknecht took the Medrol Dosepak and participated in
physical therapy. She attended seven sessions, which she said did not alleviate her pain.
Ms. Bauknecht testified that, over the course of her treatment, Dr. Mackey examined her
and reviewed x-rays and MRI results with her. Since becoming injured, her low-back
pain has gradually worsened.
Five Star presented no medical evidence m opposition to Dr. Mackey's
recommended surgical treatment.
Findings of Fact and Conclusions of Law
At an expedited hearing, Ms. Bauknecht must present sufficient evidence that she
is likely to prevail at a hearing on the merits. See Tenn. Code Ann. § 50-6-239(d)(l)
(2018); McCord v. Advantage Human Resourcing, 2015 TN Wrk. Comp. App. Bd.
LEXIS 6, at *7-8, 9 (Mar. 27, 2015).
Five Star argued that the proposed surgery is not reasonably necessary. The Court
disagrees. A review of Dr. Mackey's records shows that he examined Ms. Bauknecht
and considered the results of objective testing. Although he did not believe non-operative
management would be successful, he prescribed a Medrol Dosepak and physical therapy.
He believed surgery to be her only option.
Tennessee Code Annotated section 50-6-204(a)(3)(H) provides that any treatment
recommended by a panel-selected physician is presumed medically necessary. It is
undisputed that Dr. Mackey is the authorized treating physician, and Five Star offered no
contrary medical proof to rebut the presumption. Thus, the Court holds that Ms.
Bauknecht is likely to prevail at a hearing on the merits regarding the recommended
surgery and grants her request.
1
Five Star attempted to introduce the Affidavit of Dr. Robert Snyder into evidence, presumably in support
of a utilization review report and appeal decision. Ms. Bauknecht objected, arguing that Five Star failed
to file the affidavit more than ten business days before the date of the expedited hearing as required by
Tenn. Comp. R. & Regs. 0800-02-21-.14(1 )(b) (May, 20 18). The Court sustained the objection.
2
IT IS, THEREFORE, ORDERED as follows:
1. Five Star shall immediately authorize the recommended surgery.
2. This matter is set for a Scheduling Hearing on May 6, 2019, at 9:00 a.m. Central
Time. You must call 615-532-9552 or toll-free at 866-943-0025 to participate in
the Hearing. Failure to call might result in a determination of the issues without
your participation.
3. 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 or Self-Insured Employer 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 regarding compliance, please
contact the Workers' Compensation Compliance Unit via email at
WCCompliance.Program@tn.gov.
ENTERED March 7, 2019.
APPENDIX
Exhibits:
1. Ms. Bauknecht's Affidavit
2. Wage statement
3. Composite medical records
Technical record:
1. Petition for Benefit Determination
2. Dispute Certification Notice
3. Request for Expedited Hearing
4. Employee's Expedited Hearing Exhibit List
3
CERTIFICATE OF SERVICE
I certify that a copy of the Expedited Hearing Order was sent to these recipients by
the following methods of service on March 7, 2019.
Name Certified Via Via Service sent to:
Mail Fax Email
Stephan Karr, X steve@ flexerlaw .com
employee's lawyer monica(a),flexerlaw.com
Carolina Martin, Kenny X Carolina.martin@leitnerfirm.com
Veit, employer's lawyers Kenny_.veit@ leitnerfirm.com
Lisa.chagrnan(a),leitnerfirm.com
Court of ' rkers' Compensation Claims
WC.Cou rtCierk@tn.gov
4
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: “Expedited Hearing Notice of Appeal,” and file 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 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 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 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 business 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 Appeals 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 must 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 statement. 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.
For self-represented litigants: Help from an Ombudsman is available at 800-332-2667.
.
ll .I
Tennessee Bureau of Workers' Compensation
220 French Landing Drive, 1-B
Nashville, TN 37243-1002
800-332-2667
AFFIDAVIT OF INDIGENCY
I, , having been duly sworn according to law, make oath that
because of my poverty, I am unable to bear the costs of this appeal and request that the filing fee to appeal be
waived. The following facts support my poverty.
1. Full Name:_ _ _ _ _ _ _ _ _ _ __ 2. Address: - - - - - - - - - - - - -
3. Telephone Number: - - - - - - - - - 4. Date of Birth: - - - - - - - - - - -
5. Names and Ages of All Dependents:
- - - - - - - - - - - - - - - - - Relationship: - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - Relationship: - - - - - - - - - - - - -
- - - - - - - - - - - - - - -- - Relationship: - - - - - - - - - - - --
- - - - - - - - - - - - - - - - - Relationship: - - - - - - - - - - - - -
6. I am employed by: - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - , -
My employer's address is: - - - - - - - - - - - - - - - - - - - - - - - - -
My employer's phone number is: - - - - - - - - - - - - - - - - - - - - - - -
7. My present monthly household income, after federal income and social security taxes are deducted, is:
$ _ _ _ _ _ _ ___
8. I receive or expect to receive money from the following sources:
AFDC $ per month beginning
SSI $ per month beginning
Retirement $ per month beginning
Disability $ per month beginning
Unemployment $ per month beginning
Worker's Camp.$ per month beginning
Other $ per month beginning
LB-1108 (REV 11/15) RDA 11082
9. My expenses are: ' ; !•
'
Rent/House Payment $ per month Medical/Dental $ per month
Groceries $ per month Telephone $ per month
Electricity $ per month School Supplies $ per month
Water $ per month Clothing $ per month
Gas $ per month Child Care $ per month
Transportation $ per month Child Support $ per month
Car $ per month
Other $ per month (describe:
10. Assets:
Automobile $ _ _ __ _
(FMV) - - - - - -- - - -
Checking/Savings Acct. $ _ _ _ __
House $ _ _ _ __
(FMV) - - -- - - -- - -
)
Other $ _ _ _ __ Describe:_ _ _ __ _ _ _ _ __
11. My debts are:
Amount Owed To Whom
I hereby declare under the penalty of perjury that the foregoing answers are true, correct, and complete
and that I am financially unable to pay the costs of this appeal.
APPELLANT
Sworn and subscribed before me, a notary public, this
_ _ _ dayof _____________ ,20____
NOTARY PUBLIC
My Commission Expires:_ _ _ _ _ __ _
LB-1108 (REV 11/15) RDA 11082