1 TENNESSEE BUREAU OF WORKERS’ COMPENSATION

IN THE COURT OF WORKERS’ COMPENSATION CLAIMS

AT NASHVILLE

MUHAMAD MUSTAFA

,

Employee, ) ) ) Docket No. 2018

- 06

- 0234

v. ) ) ADP TOTALSOURCE CO. XXIII,

INC.

, ) ) State File No. 10589

- 2018

Employer,

And NEW HAMPSHIRE INS. CO.,

Carrier. ) ) ) ) Judge Joshua D. Baker

ORDER GRANTING MEDICAL BENEFITS

At an Expedited Hearing on April 18, 2019 , Mr. Mustafa requested reimbursement

for unauthorized medical expenses , temporary disability benefits, and a new authorized treating physician. ADP Totalsource Co., XXIII, Inc. (ADP) opposed each request

. For

the reasons below, the Court denies Mr. Mustafa ’s request s . Despite this denial

, he retains his right to continuing reasonable and necessary treatment with the authorized treating physician

History of Claim

Mr. Mustafa performed repetitive work with both hands at ADP

. I n May 2017, he complained to his primary care physician of bila teral hand pain. H is doctor suspected

work

- related bilatera l carpal tunnel syndrome and referred him to Dr. David West. After an EMG, Dr. West concluded that Mr. Mustafa had carpal tunnel syndrome and

re commended right carpal tunnel release surgery.

Mr. Mustafa reported his work injury in November but said ADP delayed involving its workers’ compensation insurance carrier because his manager wanted him 

### FILED Apr 30, 2019 02:29 PM(CT)

TENNESSEE COURT OF

WORKERS' COMPENSATION

CLAIMS2

to us e his TennCare insurance instead. His doctor advised him that would be illegal and recommended he call the Bureau of Workers’ Compensation to initiate a claim

.

Eventually

, Mr. Mustafa persuaded the Carrier to auth orize treatment and a llow

Dr. West to be his authorized treating physician. He resumed treatment with Dr. West o n February 13 , 2018

, and received restrictions of no lifting, pushing, or pulling greater than ten pounds

.

After that appointment, Mr. Mustafa felt “ unhappy and dissatisfied ” with Dr.

West. He asked the adjuster to “change from Dr. West to another doctor” be cause “he

doesn’t do what I ask .” In response, the adjuster permitted him to choose Dr. Morgan

Lorio from a panel and scheduled an appointment for February 23

.

Ultimately, Dr. Lorio performed right carpal tunnel release surgery on March 26

. By May, Mr. Mustafa had completed physical thera py for right

- ulnar pillar pain. Dr.

Lorio did not treat Mr. Mustafa’s left hand at that time, bu t the medical r ecords reflect

that he planned to recommend a left c arpal tunnel release “once the right has settled down completely.” In the meantime , he injected Mr. Mustafa’s right carpal tunnel and

scheduled a follow

- up appointment.

When Mr. Mustafa returned on July 17, Dr. Lorio released him to full

- duty work

. This concerned Mr. Mustafa because as he would have been perform ing repetitive work while recovering from a repetitive trauma injury. Dr. Lorio wrote, “Patient states that he is not going to ret urn to work, and that is his preogative [sic].” Dr. Lorio recommended physical therapy

, which the c arrier authorized

. Mr. Mustafa was to return on August 14

“ for repeat evaluation of response to therapy

. ”

Mr. Mustafa did not return to work , attend any more appointments , or complete physical therapy . He request ed emergent care instead , which the c arrier refused

. However, t he nurse case manager offered to reschedule his next appointment with Dr.

Lorio from August 14 to August 6 to address his “extreme pain” complaints

. Instead of accepting the appointment

, he visited the emergency room three times between July 30 and August 25 and also saw two other unauthorized providers

.

In his tes timony and affidavit

, Mr. Mustafa explained that the authorized treatment

wors ened his pain and that being returned to work without restrictions “didn’t make any

sense .” Specifically, he complained Dr. Lorio ignored his left hand and that surgery and physical therapy had worsened his condition . Further, the doctor “cut off [his] medication and gave [him] patches to use instead , but they made [his] condition worse.”

About his decision to seek unauthorized treatment , h e testified

, “ I had a feeling this particular doctor was not going to help me anymore

. ”3

Mr. Must afa also testified that he did not work from February 16 to February 23 but was not paid temporary disability benefits. He admitting working three hours on February 16 but said prescription pain medication made him too drowsy, so he left. He sought unauthorized emergent care on February 18th and 20th. Mr. Mustafa

a cknowledged ADP provided him different, easier work while on restrictions and also paid temporary disability benefits while he recovered from surgery.

Legal Principles and Analysis

Mr. Mustafa has the burden to prove of his claim but need not prove every element by a preponderance of the evidence to receive relief at an expedited hearing. Instead, he must present sufficient evidence that he would likely prevail at a hearing on the merits.

McCord v. Advantage Human Resourcing , 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at

*7

- 8, 9 (Mar. 27, 2015). Mr. Mustafa sought reimbursement of his unauthorized medical

expenses , additional temporary disability benefits, and a new treating physician

. ADP argued it owed no further temporary disability ben efits and that it had provided all reasonable and necessary med ical treatment but Mr. Mustafa declined to accept i t

, incurring unreasonable and unnecessary medical expenses as a result. 1 The Court agr ees with ADP.

An employer is required to provide injured workers “ medical and surgical

treatment

. . . as ordered by the a ttending physician

. . . made reasonably necessary by accident.” Tenn. Code Ann. § 50

- 6

- 204(a)(1)(A) (2018) . Likewise, employees are required to “accept the medical benefits afforded under this section ” provided that the “employee has suffered an injury and expressed a need for medical care” and selected a treating physician from the employer’s panel

. Tenn. Co de Ann. § 50

- 6

- 204(a)(3)(A)(i). When the selected physician refuses to treat the employee, the employer is requi red to provide a new authorized treating physician. See Limberakis v. Pro

- Tech Security, Inc.

, 2017 TN Wrk. Comp. App. Bd. LEXIS 53

, at *9

- 10 (Sept. 12, 2017). When treatment is disputed, t he employee has the burden of demonstrating unauthorized treatment was

reas onable and necessary. Id . at *5.

Here

, the Court finds Mr. Mustafa is not likely to prevail at a final hearing concerning reimbursement of unauthorized medical expenses incurred through emergency room visits

. Dr. Lorio provided a treatment plan for his bilateral wrist injuries

that Mr. Mustafa rejected in favor of unauthorized treatment at the emergency

. F urt her,

a lthough he requested care before visiting the emergency room, the c arrier responded

1 The Court is compelled to address the allegation that ADP instructed Mr. Mustafa to seek treatment

under TennCare for a work

- related injury. Tennessee Code Annotated section 50

- 6

- 128 provides that any employer who “knowingly, willfully, and intentionally causes a medical or wage loss claim to be paid under health or sickness and accident insurance” may be assessed a penalty of $500 by the Administrator of the Bureau of Workers’ Compensation. As the evidence at the hearing indicated this occurred, the Court has notified the Administrator by sending her a copy of this order.4

reasonably by offering the earliest available appointment with the authorized treating physician

. Mr. Mustafa presented no expert medical evidence contradicting Dr. Lorio’s treatment plan or establishing the reasonable medical necessity of the unauthorized

treatment. The Court declines to substitute its or Mr. Mustafa ’s judgment for the opinion

of a trained physician. See Scott v. Integrity Staffing Solutions , 2015 TN Wrk. C omp. App. Bd. LEXIS 24, at *8 ; s ee also Lurz v. Int ’ l Paper Co

. , 2018 TN Wrk. Comp. App. Bd. LEXIS 8, at *17 (Feb. 14, 2018). Thus , the Court denies his re quest for reimbursement of unauthorized medical expenses.

The Court also declines Mr. Mustafa ’ s request for a different authorized treating physician

. In his medical notes, Dr. Lorio provide d a reasonable plan to treat his b ilateral carpal tunnel conditio n. T he Court heard no testimony showing that Dr. Lorio intended to stop treating Mr. Mustafa before completing th at plan

. Rather

, the evidence showed

that Mr. Mustafa diverted from Dr. Lorio ’ s t reatment plan and sought care on his own

. Mr. Mustafa had the duty to accept the care provided by ADP, and his failure to do so, in

this Court ’ s view, likely extended his recovery period. Under the circumstances, t he

Court holds that ADP ha s no duty to provide an addi tional panel

. 2

Lastly, the Court denies Mr. Mustafa ’ s claim for payment of temporary disability from February 16 to February 23

. T o recover those benefits, Mr. Mustafa must show his injury disabled him from working; a causal connection exists between his injury and inability to work; and the duration of his disability. Jones v. Crencor , 2015 TN Wrk. Comp. App. Bd. LEXIS 48, at *7 (Dec. 11, 2015).

Here, Mr

. Mustafa established that he missed work from February 16 to 23.
However, he failed to show that his carpal tunnel condition disabled him from wor king

,

as Dr . West did not take him off work completely

, and ADP provided alternative work

within his medical restrictions

. While Mr. Mustafa rejected the alternative work because his prescription caused drowsiness , his own opinion about his inability to work is

insufficient to prove his claim for temporary disability

. 3 Based on the evidence presented at the hearing , the Court cannot find he would likely prov e his inj ury disabled him from working at a trial on the merits

. For this reason , the Court holds he is not entitled t o temporary disability benefits

.

It is ORDERED as follows:

2 Additionally, ADP offered Mr. Mustafa a new panel when he expressed dissatisfaction with the

treatment received from Dr. West.

3 The Court also notes that Mr. Mustafa sought emergent care twice dur ing that week for symptoms

unrelated to his work injury.5

1. The Court denies Mr. Mustafa’s request for reimbursement, temporary disability benefits, and for a new treating physician. Mr. Mustafa may

continue to treat with Dr. Lorio for his work- related injury

.

2. This matter is set for a status conference on June 14, 2019, at 10:30 a.m. (CDT). The parties, or their counsel, must call (615) 741-2113 or (855) 874-0474 toll-free to participate. Failure to call may result in a

determination of the issues without th at party’s participation

.

It is ORDERED

.

ENTERED APRIL 30, 2019.

______________________________________ Judge Joshua Davis Baker Court of Workers’ Compensation Claims6 APPENDIX

Exhibits :

1. Medical Records

2. Mr. Mustafa’s Affidavit

3. Receipts from Elite Sports Medicine

4. Choice of Physician Forms

Technical Record :

1. Petition for Benefit Determination

2. Dispute Certification Notice

3. Request for Expedited Hearing

4. ADP’s Pretrial Brief7 CERTIFICATE OF SERVICE

I certify that a true and correct copy of this Expedited Hearing Order was sent to the following recipients by these methods of service on April 30, 201 9.

Name Certified

Mail Fax Email Service sent to:

Muhamad Mustafa

, Self

- represented Employee X 4025 Providence Ln Nashville, TN 37211

Sarah Best

, Employer’s Attorney X shbest@mijs.com ; clalmeida@mijs.com

______________________________________ PENNY SHRUM, COURT CLERK wc.courtclerk@tn.gov