Sanker, Jason v. Nacarato Trucks, Inc. ( 2016 )

Nlay 16 2016
TN COURT OF
WORKERS' COl\JPE NSATION
CLAIMS
Time: 3:03 Pl\1
TENNESSEE BUREAU OF WORKERS' COMPENSATION
IN THE COURT OF WORKERS' COMPENSATION CLAIMS
AT NASHVILLE
Jason Sanker, ) Docket No.: 2016-06-0101
Employee, )
v. ) State File Number: 76713-2015
Nacarato Trucks, Inc., )
Employer, ) Judge Kenneth M. Switzer
And )
FFVA Mutual, )
Insurance Carrier. )
)
EXPEDITED HEARING ORDER GRANTING ADDITIONAL MEDICAL
BENEFITS
This case came before the undersigned workers' compensation judge on the
Request for Expedited Hearing filed by the employee, Jason Sanker, pursuant to
Tennessee Code Annotated section 50-6-239 (20 15). The present focus of this matter is
Mr. Sanker's entitlement to additional medical benefits. The central legal issue is
whether Mr. Sanker suffered a compensable injury on September 9, 2015, while working
for the employer, Nacarato Trucks, Inc.
At the April 7, 2016 expedited hearing, the Court heard Employer's Motion for an
Independent Medical Examination. The Court took the motion under advisement and
subsequently issued an order granting the I.M.E. and reserving ruling on the Mr. Sanker's
entitlement to benefits until the Court had an opportunity to consider the I.M.E.
physician's findings along with the other evidence. (T.R. 11.) The Court received the
I.M.E. physician's report on May 10, 2016. Having duly considered the I.M.E. report
and supplemental argument regarding it, as well as evidence and argument from the
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Mr. Sanker's entitlement to past temporary total disability benefits is checked as an issue on the Dispute
Certification Notice. In Mr. Sanker's January 21, 2016 position statement, he indicated he seeks past temporary
total disability benefits from November 24, 20 I 5, through December 2 I, 20 I 5. However, at the expedited hearing,
Mr. Sanker's counsel withdrew that request. The Court considers any other issues listed on the Dispute Certification
Notice but not raised at the expedited hearing as waived.
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expedited hearing, for the reasons set forth below, the Court finds Mr. Sanker is likely to
prove he suffered a comQensable injury on September 9, 2016, and is entitled to
additional medical benefits?
History of Claim3
Mr. Sanker is a thirty-six-year-old resident of Dickson County, Tennessee. (T.R.
1.) He works at Nacarato Trucks, Inc., a Volvo truck dealer, as a service technician. (Ex.
3.)
On September 9, 2015, 4 while performing his job duties, Mr. Sanker felt a "pop"
in his back and experienced immediate, severe pain. (Ex. 2 at 1.) He reported the claim,
Nacarato offered a panel, 5 and Mr. Sanker selected Dr. Tarek Elalayli, the physician who
treated Mr. Sanker for a previous workers' compensation injury to his low back sustained
on July 1, 2014. The previous injury required two operations, and resulted in the
assignment of a seven percent impairment rating to the body as a whole. (Ex. 7.) Mr.
Sanker stated in his affidavit he recovered from the previous injury. (Ex. 2 at 1.)
Dr. Elalayli saw Mr. Sanker on September 30, 2015, where he wrote as history:
"He states that he was doing 100% better until he had a new injury on 9/18/15. He was
laying on his back and pushing hard with a ratchet and felt a pop in his lower back. He
had immediate pain in the lower back with radiation to the left leg." (Ex. 1 at 82.) Dr.
Elalayli further noted, "Patient has reinjured his back after a new work injury on
9/18/2015. Prior to that injury, he was doing quite well." Id. at 83. Dr. Elalayli treated
Mr. Sanker <;onservatively for approximately seven weeks, noting at a November 18,
2015 office visit that surgery might be the only option ifMr. Sanker did not improve. Id.
at 102.
In a document entitled "Medical Questionnaire," (See generally Ex. 2 at 105),
Nacarato asked Dr. Elalayli, "Can you state within a reasonable degree of medical
certainty whether Mr. Sanker's current condition was equally caused by both his prior
low back injuries, which necessitated surgery in November 2014 and a redo surgery in
April2015, along with his alleged September 18, 2015 accident[?]" In his November 18,
2
A complete listing of the technical record and exhibits is attached to this order as an appendix.
3
Mr. Sanker did not appear at the expedited hearing, and neither side called any witnesses. The Court, therefore,
wrote the History of Claim in reliance upon the exhibits and technical record.
4
While the First Report of Injury, prepared by Nacarato, lists the date of injury as September 18, 2015 (Ex. 5), Mr.
Sanker wrote September 9, 2015, on the Petition for Benefit Determination. The parties stipulated at the expedited
hearing to September 9, 2015, as the date of alleged injury.
5
Mr. Sanker checked the box on the PBD that he was not provided a panel. Neither party filed or introduced a
"Choice of Physicians" form into evidence at the expedited hearing, but the parties stipulated that Nacarato provided
a panel.
2
2015 reply, Dr. Elalayli checked "yes." The questionnaire then asked, "After reviewing
your medical records, please confirm that Mr. Sanker has previously been assigned a 7%
impairment rating as a result of his low back injuries that resulted in surgery in
November 2014 and April 2015, and which involves the same level that he is currently
complaining ofl.]" Dr. Elalayli wrote, "Correct." The document then states, "I hereby
certify that the information furnished is correct and am aware that my signature attests to
its accuracy. I further certify that all opinions are formulated within a reasonable degree
of medical certainty." Dr. Elalayli signed below. On November 24, 2015, Nacarato
denied the claim. (Ex. 5.)
Mr. Sanker returned to Dr. Elalayli on December 16, 2015. (Ex. 1 at 106-109.)
Dr. Elalayli wrote:
Treatment
1. Ltunbal' dfso bei'Illatlon wJtJal'ad.leulupathy .
Notca: '.l'he ls notcomponanble appears to be a form tJtat I filled out :for
work comp rfght oheo"ked off"yo&" when I was asl803 S.W.2d 672, 676 (Tenn.
1991 ). Here, with regard to the circumstances of their examination, Dr. Elalayli brings
approximately eighteen months' experience treating Mr. Sanker; Dr. Stahlman saw him
once. Further, Dr. Stahlman does not indicate his opinions are rendered to a reasonable
degree of medical certainty.
In sum, Dr. Stahlman's report fails to rebut Dr. Elalayli's opinion and, in fact,
agrees the described event caused the recurrent herniation. Stated another way, the Court
finds these experts are not actually in conflict regarding the fact that the recurrent
herniation resulted from work-related activity. Dr. Stahlman's subsequent opinion
regarding apportionment of the need for surgery, rather than the cause of the current
injury, is not legally relevant. Therefore, as a matter of law, Mr. Sanker has come
forward with sufficient evidence from which this Court concludes he is likely to prevail
at a hearing on the merits regarding the compensability of his claim.
Having so found, the Court now turns to the requested medical benefits. Mr.
Sanker satisfied his burden at this interlocutory stage to show he sustained a compensable
work injury. Thus, Nacarato must furnish, free of charge to Mr. Sanker, such medical
treatment made reasonably necessary by the accident. See Tenn. Code Ann. § 50-6-
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204(a)(l)(A) (2015). Both physicians agree the appropriate method of treatment is a
decompression, discectomy and fusion at L5-Sl. Given Dr. Elalayli's long-term
familiarity with Mr. Sanker's condition, it is appropriate he continue to serve as the
authorized treatment provider. Nacarato shall be responsible for any reasonable and
necessary treatment, including surgery.
IT IS, THEREFORE, ORDERED as follows:
1. Nacarato or its workers' compensation carrier shall provide Mr. Sanker with
medical treatment with Dr. Elalayli as the authorized treatment provider for his
injury as required by Tennessee Code Annotated section 50-6-204 (2015).
Medical bills shall be furnished to Nacarato or its workers' compensation carrier
by Mr. Sanker or the medical providers.
2. This matter is set for an Initial (Scheduling) Hearing on July 11, 2016, at 8:30a.m.
Central Time.
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)
(2015). 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 WCCompliance.Program@tn.gov or by calling (615)
253-1471 or (615) 532-1309.
ENTERED this the 16th day of May, 2016.
udge Kenneth M. WI zer
Court of Workers' Compensa Ion Claims
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Initial (Scheduling) Hearing:
An Initial (Scheduling) Hearing has been set with Judge Kenneth M. Switzer,
Court of Workers' Compensation Claims. You must call 615-532-9552 or 866-943-
0025 toll-free to participate in the Initial Hearing.
Please Note: You must call in on the scheduled date/time to
participate. Failure to call in may result in a determination of the issues without
your further participation.
Right to Appeal :
Tennessee Law allows any party who disagrees with this Expedited Hearing Order
to appeal the decision to the Workers' Compensation Appeals Board. To file a Notice of
Appeal, you must:
1. Complete the enclosed form entitled: "Expedited Hearing Notice of Appeal."
2. File the completed form with the Court Clerk within seven business days of the
date the Workers' Compensation Judge entered the Expedited Hearing Order.
3. Serve a copy of the Expedited Hearing Notice of Appeal upon the opposing party.
4. The appealing party is responsible for payment of a filing fee in the amount of
$75.00. Within ten calendar days after the filing of a notice of appeal, payment
must be received by check, money order, or credit card payment. Payments can be
made in person at any Bureau office or by United States mail, hand-delivery, or
other delivery service. In the alternative, the appealing party may file an Affidavit
of Indigency, on a form prescribed by the Bureau, seeking a waiver of the filing
fee. The Affidavit of Indigency may be filed contemporaneously with the Notice
of Appeal or must be filed within ten calendar days thereafter. The Appeals Board
will consider the Affidavit of Indigency and issue an Order granting or denying
the request for a waiver of the filing fee as soon thereafter as is
practicable. Failure to timely pay the filing fee or file the Affidavit of
Indigency in accordance with this section shall result in dismissal of the
appeal.
5. The parties, having the responsibility of ensuring a complete record on appeal,
may request, from the Court Clerk, the audio recording of the hearing for the
purpose of having a transcript prepared by a licensed court reporter and filing it
with the Court Clerk within ten calendar days of the filing of the Expedited
Hearing Notice of Appeal. Alternatively, the parties may file a joint statement of
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the evidence within ten calendar days of the filing of the Expedited Hearing
Notice of Appeal. The statement of the evidence must convey a complete and
accurate account of what transpired in the Court of Workers' Compensation
Claims and must be approved by the workers' compensation judge before the
record is submitted to the Clerk of the Appeals Board.
6. If the appellant elects to file a position statement in support of the interlocutory
appeal, the appellant shall file such position statement with the Court Clerk within
five business days of the expiration of the time to file a transcript or statement of
the evidence, specifying the issues presented for review and including any
argument in support thereof. A party opposing the appeal shall file a response, if
any, with the Court Clerk within five business days of the filing of the appellant's
position statement. All position statements pertaining to an appeal of an
interlocutory order 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.
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APPENDIX
Exhibits:
1. Medical Records
2. Affidavit of Jason Sanker
3. FROI, September 24, 2015
4. Wage Statement, October 15, 2015
5. Notice ofDenial of Claim for Compensation, November 24, 2015
6. Deposition ofDr. Elalayli and his C.V., March 28, 2016 7
7. Petition for Benefit Determination and settlement documentation for July 2014
lllJUry
8. Independent Medical Examination, May 10, 2016
9. Independent Medical Examination, May 13, 2016-For identification only
Technical record:
1. Petition for Benefit Determination, January 25, 20 16
2. Employee's position statement, January 21, 2016
3. Employer's position statement, February 9, 2016
4. Dispute Certification Notice, February 23, 20 15; incorporates additional issues
listed in Nacarato's counsel's letter dated February 16, 2016
5. Request for Expedited Hearing, February 23, 2016
6. Notice ofDeposition, March 1, 2016
7. Employer's Motion to Compel I.M.E., March 10, 2016
8. Employee's Response to Motion to Compel I.M.E., March 15, 2016
9. Employer's Reply Brief, April 1, 2016
10. Employer's Prehearing Brief, April 6, 20 16
11. Order Granting Motion to Compel Independent Medical Examination, April 12,
2016
12. Notice of Filing I.M.E. Report, May 10, 2016
13. Employer's Supplemental Brief, May 10, 2016
14. Employee's Notice of Filing I.M.E. Report
7
The parties stipulated to the omission of Exhibit 2 to Dr. Elalayli's deposition because it consists of his treatment
notes, also marked and admitted into evidence as Exhibit 1, pages 9 through 112.
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CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the Expedited Hearing Order was
sent to the following recipients by the following methods of service on this the 16th day
ofMay, 2016.
Name Certified Via Via Service sent to:
Mail Fax Email
Marshall "Trey" X marshall@goncelaw .com;
McClarnon, wendy@J2oncelaw .com
Employee's Counsel
Alex Morrison, Todd X ABMorrison@mijs.com;
Hierd, agcroft@mijs.com;
Employer's Counsel tihierd@miis.com
Ronald McNutt, Second X Ronald.McN utt@tn.gov
Injury Fund's Counsel
Clerk of Court
ers' Compensation Claims
erk@tn.gov
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