                                                                                 FILED
                                                                               May 13, 2019
                                                                               09:56 AM(CT)
                                                                             TENNESSEE COURT OF
                                                                            WORKERS' COMPENSATION
                                                                                   CLAIMS




           TENNESSEE BUREAU OF WORKERS' COMPENSATION
          IN THE COURT OF WORKERS' COMPENSATION CLAIMS
                             AT GRAY

ISRAEL LARA,                               )    Docket No. 2016-02-0501
         Employee,                         )
v.                                         )
PROGRESS RAIL SERVICES,                    )    State File No. 94197-2015
CORP.,                                     )
         Employer,                         )
and                                        )
LIBERTY MUTUAL,                            )    Judge Brian K. Addington
         Carrier.                          )


                          EXPEDITED HEARING ORDER


       The Court conducted an Expedited Hearing on May 8, 2019, on Mr. Lara's
entitlement to additional medical benefits and temporary disability benefits. The medical
evidence indicates Mr. Lara does not need medical treatment for his injury, and he
provided no work excuse in excess of a week's duration. Thus, Mr. Lara did not come
forward with sufficient evidence that he would likely prevail at a hearing on the merits,
and the Court denies the requested benefits.
                                   History of Claim
       Mr. Lara worked as a general laborer for Progress Rail Services Corporation. He
suffered pain in his low back on November 17, 2015, when a co-worker dropped the
other side of material the two were holding. Mr. Lara was unable to continue work that
day and reported the injury to his supervisor. When he continued to complain about the
pain, Progress Rail provided medical treatment the next day.
       Mr. Lara first treated with Medical Care on November 19. X-rays indicated
degenerative disc narrowing and chronic disco genic sclerosis at L5-S 1. The providers
gave him a work excuse for five days and light-duty work for one week. Mr. Lara
returned to full-duty work on November 23. Because of his continued pain, Medical
Care referred Mr. Lara to pain management.


                                            1
        Dr. Michael Wilkinson, a pain management specialist, administered two facet
injections, but his pain did not improve. Dr. Wilkinson referred Mr. Lara to a
neurosurgeon.
        Mr. Lara saw neurosurgeon Dr. Jim Brasfield, who ran a full series of diagnostic
tests including an MRI, nuclear bone scan, and EMG. The tests results were normal or
showed only degenerative or chronic issues. Dr. Brasfield placed Mr. Lara at maximum
medical improvement (MMI) on March 26, 20 18, and stated he suffered no permanent
impairment or restrictions and needed no further treatment or medication.
       Despite Dr. Brasfield's opinion, Mr. Lara continued to suffer pain and requested
additional medical treatment. Eventually, Progress Rail sent Mr. Lara to another
neurosurgeon, Dr. Travis Burt, for an ex.amination in March 2019. Dr. Burt reviewed Mr.
Lara's prior medical records and examined him. He agreed with Dr. Brasfield that Mr.
Lara did not suffer any impairment and that his current complaints did not relate to the
November 17, 2015 incident.
       Mr. Lara argued that his back still hurt and he could not easily perform daily
functions. He blamed Progress Rail for not taking his injury seriously. He requested
payment of prior medical treatment, continued medical treatment, plus temporary total
and/or temporary partial disability for the time period between his return to work and
when Dr. Brasfield placed him at MMI.
       Progress Rail agreed to pay past medical bills incurred on November 23, 2015,
April 8, 2016, April25, 2016, June 11, 2018, August 7, 2018, and August 21, 2018. It
argued that Mr. Lara had not proven that his current need for medical treatment relates to
his work injury or that he was entitled to temporary disability benefits.
                       Findings of Fact and Conclusions of Law
       Mr. Lara has the burden of proof on all elements of his claim. Scott v. Integrity
Staffing Solutions, 2015 TN Wrk. Comp. App. Bd. LEXIS 24, at *6 (Aug. 18, 2015). At
this stage, he need not prove every element of his claim by a preponderance of the
evidence to obtain relief, but he must present sufficient evidence that he is likely to
prevail at a hearing on the merits. Tenn. Code Ann.§ 50-6-239(d)(l) (2018).
       The Court understands Mr. Lara has pain that affects his daily life, but the medical
records indicate that he is at MMI, his current complaints do not relate to the November
17, 2015 incident, and any issues from his work incident have resolved. An injured
employee is entitled only to medical treatment that is made reasonably necessary due to a
work injury. Tenn. Code Ann. § 50-6-204(a)(l)(A). Mr. Lara did not present any
medical opinion that he needs medical treatment due to the work incident. Thus, the
Court holds he is not likely to succeed at trial in proving the need for additional medical
treatment.


                                             2
        Concerning temporary disability benefits, the evidence shows that the providers at
Medical Care took Mr. Lara off work for five days, and he was under light-duty
restrictions for only one week. Mr. Lara did not provide any other work excuses or
provide evidence that Progress Rail failed to accommodate his restrictions. No
temporary disability benefits are due to an employee for the first seven days of disability.
Tenn. Code Ann. § 50-6-206(a). Because Mr. Lara only missed five days of work, he is
not entitled to temporary total disability benefits. Since his restrictions only lasted one
week, he is not entitled to temporary partial disability benefits. Thus, the Court finds he
is not likely to succeed at trial in proving he is entitled temporary total or partial disability
benefits.
IT IS, THEREFORE, ORDERED as follows:

    1. Mr. Lara has not demonstrated he is presently entitled to medical treatment for his
       back injury under Tennessee Code Annotated section 50-6-204. Therefore, his
       request for medical treatment is denied at this time.

   2. Mr. Lara's request for temporary total or partial disability benefits is denied at this
      time.

   3. This matter is set for a Status Hearing on September 16, 2019, at 10:00 a.m.
      Eastern Time. You must call 855-543-5044 toll-free, to participate. Failure to call
      may result in a determination of the issues without your participation.

ENTERED May 13, 2019.



                                            Is/ Brian K. Addington
                                            BRIAN K. ADDINGTON, JUDGE
                                            Court of Workers' Compensation Claims


                                          Appendix

Exhibits:
1. Mr. Lara's affidavit
2. Wage Statement
3. Medical Bills (collective)
4. Medical records of Medical Care, PLLC
5. Medical records ofPMA Surgery Center, LLC
6. Medical records of Tri Cities Spine
7. Pay stubs from November 5, 2015 through June 2, 2016

                                               3
8. Mr. Lara's earnings record from November 13, 2014 through November 17, 2016
9. Letter of resignation
10. Medical records of Dr. Jim Brasfield
11. Dan Salmon's affidavit
12. Medical records of Highlands Neurosurgery
13. Scott Jagger's affidavit

Technical Record:
1. Petition for Benefit Determination
2. Dispute Certification Notice
3. Request for Expedited Hearing
4. Motion to Amend Dispute Certification Notice
5. Supplement to Motion to Amend Dispute Certification Notice
6. Motion to Extend Expedited Hearing Deadlines
7. Notice ofFiling of Wage Statement
8. Progress Rail's Witness List for the Expedited Hearing
9. Employer's Position Statement
10. Motion to Exclude Exhibits Submitted by Israel Lara
11. Order Denying Motions to Amend Dispute Certification Notice



                          CERTIFICATE OF SERVICE

       I certify that a true and correct copy of the Order was sent to the following
recipients by the following methods of service on May 13, 20 19.

         Name            Certified   Fax       Email   Service sent to:
                          Mail
Israel Lara,                                           3121 W. Walnut St. #2
Employee                    X                   X      Johnson City, TN 37604
                                                       napomusono08_@_hotmail.com
Eric Shen,                                             eric.shen@libertymutual.com
Employer's Attorney                             X



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                                           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
