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
1
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.
1
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 asl