Opinion

Alvarez, Toriba v. LFC Enterprises, Inc.

  • 2024 TN WC 18
Court
Tennessee Court of Workers' Compensation Claims
Filed
Mar 8, 2024
Status
Published
On the bench
Lisa A. Lowe
Cited by
0 cases

The opinion

FILED

Mar 08, 2024

02:55 PM(ET)

TENNESSEE COURT OF

WORKERS' COMPENSATION

CLAIMS

TENNESSEE BUREAU OF WORKERS’ COMPENSATION

IN THE COURT OF WORKERS’ COMPENSATION CLAIMS

AT KNOXVILLE

TORIBA ALVAREZ, ) Docket No. 2019-03-1529

Employee, )

v. )

LFC ENTERPRISES, INC., ) State File No. 17046-2019

Employer. )

And )

TRAVELERS, ) Judge Lisa A. Lowe

Carrier. )

EXPEDITED HEARING ORDER GRANTING BENEFITS

LFC Enterprises accepted Ms. Alvarez’s left-ankle injury as compensable and

authorized treatment. The current issue involves approval of either a nerve block or a nerve

stimulator implant trial ordered by pain management. LFC denied the treatment based on

utilization review. After a March 6, 2024 hearing, the Court holds that Ms. Alvarez is

likely to prevail at a hearing on the merits on entitlement to a nerve block.

History of Claim

In February 2019, Ms. Alvarez sustained a left-ankle injury while working. She

received conservative orthopedic treatment. Ultimately the orthopedist placed her at

maximum medical improvement and assigned a 3% impairment rating. However, because

of continued pain, Ms. Alvarez also received authorized pain management treatment.

During pain management, she underwent two nerve blocks in her ankle, which did

not help much. Then she had a peripheral nerve block1, which provided significant

improvement. Her pain level went from a 7 or 8 to a 2 or 3, and she reported 80% pain

relief for three months before the pain gradually reoccurred.

Based on the improvement, pain management ordered another peripheral nerve

1

Ms. Alvarez’s son testified the peripheral nerve block was given in Ms. Alvarez’s shin area.

1

block noting:

This is probably the least invasive and least inconvenient for intervention . .

. as opposed to a peripheral nerve stimulator trial and implantation. . . . It’s

worth noting [she] is not receiving any type of continuous daily opioid

therapy, so the only means of pain relief and improvement in her quality of

life is this peripheral nerve block.

LFC did not approve the peripheral nerve block. Pain management again wrote that

Ms. Alvarez had excellent results from the last peripheral nerve block, and she needed

another injection to manage her nerve injury symptoms.

LFC sent the order to utilization review. The reviewer denied the nerve block

because Ms. Alvarez’s pain returned after the first nerve block and limited information was

provided regarding other failed conservative treatment measures. In response, pain

management outlined in the treatment notes conservative care measures that Ms. Alvarez

treated with a boot, physical therapy, steroid shots, and medications. Further, pain

management noted, “her pain remains virtually untreated due to the continued denial of

care by the workers’ compensation carrier.”

Pain management continued to recommend the peripheral nerve block, and LFC

continued to deny authorization. Finally, pain management offered a peripheral nerve

stimulator trial and implant if successful. They noted that procedure is more invasive and

costly, but an option since LFC would not approve the nerve block.

Ultimately pain management submitted an order for the nerve stimulator trial and

wrote that “workers’ compensation continues to deny services to this minority female

Hispanic injured worker based on an unknown set of guidelines.” LFC sent the order to

utilization review, which denied the treatment because “there is insufficient evidence to

support the safety and effectiveness and no documentation of exceptional factors.”

Findings of Fact and Conclusions of Law

Ms. Alvarez must prove a likelihood of prevailing at a hearing on the merits that she

is entitled to the requested benefits. Tenn. Code Ann. § 50-6-239(d)(1) (2023); McCord v.

Advantage Human Resourcing, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9 (Mar.

27, 2015).

Tennessee Code Annotated section 50-6-204(a)(1)(A) states that an employer shall

furnish, free of charge to the employee, “treatment . . . made reasonably necessary” by the

work accident. Under section 50-6-204(a)(3)(H), any treatment recommended by a

physician under this subdivision (a)(3) or by referral, shall be presumed to be medically

necessary for treatment.

2

To determine medical benefits in this case, the Court must weigh the opinions of the

authorized pain management provider and the utilization review physicians.

The utilization review physician denied the peripheral nerve block because the pain

relief did not last long and limited information on other conservative measures. However,

the utilization review physician reviewed the pain management records and included in his

report that Ms. Alvarez had bracing, steroid injections, medications, and the ankle nerve

blocks. He additionally noted that Ms. Alvarez had an 80% pain reduction that lasted three

months.

Pain management treatment recommendations are presumed reasonable and

necessary. Additionally, pain management routinely outlined in its notes the conservative

treatment Ms. Alvarez tried and failed, the relief she had from the peripheral nerve block,

and the fact that the repeated denials by the carrier has left her with no treatment at all for

her work-related nerve pain. The pain management notes clearly describe in detail why

the peripheral nerve block is warranted. Further, pain management only ordered the

peripheral nerve stimulator, a more costly and invasive treatment, because LFC would not

authorize the peripheral nerve block. But LFC denied that treatment as well.

The Court gives greater weight to the opinions of the pain management provider

and holds that Ms. Alvarez is likely to prevail on entitlement to the peripheral nerve block.

IT IS, THEREFORE, ORDERED as follows:

1. LFC Enterprises, Inc. shall provide medical care for Ms. Alvarez’s injuries as

required by Tennessee Code Annotated section 50-6-204 including, but not limited

to, authorizing the ordered peripheral nerve block.

2. The Court sets a Scheduling Hearing on June 7, 2024, at 9:30 a.m. Eastern Time.

The parties must call 865-594-0109 or 855-383-0003 to participate.

3. Unless interlocutory appeal of this Expedited Hearing Order is filed, compliance

with this Order must occur by seven business days 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 by email to

WCCompliance.Program@tn.gov by the compliance deadline. Failure to do so may

result in a penalty assessment for non-compliance.

4. For compliance questions, please contact the Workers’ Compensation Compliance

Unit by email at WCCompliance.Program@tn.gov

ENTERED on March 8, 2024.

3

_____________________________________

JUDGE LISA A. LOWE

Court of Workers’ Compensation Claims

APPENDIX

Exhibits:

1. Rule 72 Declaration of Toriba Alvarez, December 11, 2023

2. Medical Records of Associated Pain Specialists

3. Utilization Review Denial, March 30, 2023

4. Utilization Review Denial, October 25, 2023

Technical Record:

1. Petition for Benefit Determination

2. Hearing Request, December 8, 2021

3. Rule 72 Declaration of Toriba Alvarez, interpreted December 20, 2021

4. Expedited Hearing Order Granting in Part and Denying in Part

5. Dispute Certification Notice, June 20, 2023

6. Notice of Filing Wage Statement

7. Hearing Request, December 11, 2023

8. Employer’s Expedited Hearing Pre-Trial Brief

9. Employer’s Exhibit List

10. Employer’s Notice of Filing Medical Records Table of Contents

11. Employer’s Witness List

4

CERTIFICATE OF SERVICE

I certify that a copy of the Order was sent as indicated on March 8, 2024.

Name Mail Email Service sent to:

Toriba Alvarez X X 1749 Louisiana Avenue

Employee Knoxville, TN 37921

Christian.hardscapes01@gmail.com

Jennifer C. Schmidt X JSCHMID@travelers.com

Employer’s Attorney

_____________________________________

PENNY SHRUM, Court Clerk

WC.CourtClerk@tn.gov

5

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 file-

stamped 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 1 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]

LB-1099 rev. 01/20 Page 2 of 2 RDA 11082

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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