                                                                               FILED
                                                                             Apr 30, 2019
                                                                             02:29 PM(CT)
                                                                           TENNESSEE COURT OF
                                                                          WORKERS' COMPENSATION
                                                                                 CLAIMS




           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,                )   State File No. 10589-2018
INC.,                                     )
         Employer,                        )
And                                       )   Judge Joshua D. Baker
NEW HAMPSHIRE INS. CO.,                   )
         Carrier.                         )



                   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 requests. 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. In May 2017, he
complained to his primary care physician of bilateral hand pain. His doctor suspected
work-related bilateral carpal tunnel syndrome and referred him to Dr. David West. After
an EMG, Dr. West concluded that Mr. Mustafa had carpal tunnel syndrome and
recommended 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

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to use 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 authorize treatment and allow
Dr. West to be his authorized treating physician. He resumed treatment with Dr. West on
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” because “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 therapy for right-ulnar pillar pain. Dr.
Lorio did not treat Mr. Mustafa’s left hand at that time, but the medical records reflect
that he planned to recommend a left carpal 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 performing repetitive work
while recovering from a repetitive trauma injury. Dr. Lorio wrote, “Patient states that he
is not going to return to work, and that is his preogative [sic].” Dr. Lorio recommended
physical therapy, which the carrier 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 requested emergent care instead, which the carrier refused.
However, the 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 testimony and affidavit, Mr. Mustafa explained that the authorized treatment
worsened 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, he testified, “I had a feeling this
particular doctor was not going to help me anymore.”



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       Mr. Mustafa 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
acknowledged 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 benefits and that it had provided all
reasonable and necessary medical treatment but Mr. Mustafa declined to accept it,
incurring unreasonable and unnecessary medical expenses as a result.1 The Court agrees
with ADP.

       An employer is required to provide injured workers “medical and surgical
treatment . . . as ordered by the attending 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. Code Ann. § 50-6-204(a)(3)(A)(i).
When the selected physician refuses to treat the employee, the employer is required 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, the employee has the burden of demonstrating unauthorized treatment was
reasonable 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. Further,
although he requested care before visiting the emergency room, the carrier 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.

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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. Comp.
App. Bd. LEXIS 24, at *8; see 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 request 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 provided a reasonable plan to treat his bilateral
carpal tunnel condition. The Court heard no testimony showing that Dr. Lorio intended
to stop treating Mr. Mustafa before completing that plan. Rather, the evidence showed
that Mr. Mustafa diverted from Dr. Lorio’s treatment 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, the
Court holds that ADP has no duty to provide an additional panel.2

        Lastly, the Court denies Mr. Mustafa’s claim for payment of temporary disability
from February 16 to February 23. To 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 working,
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 prove his injury disabled him from
working at a trial on the merits. For this reason, the Court holds he is not entitled to
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 during that week for symptoms
unrelated to his work injury.

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  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 that party’s participation.

It is ORDERED.

ENTERED APRIL 30, 2019.



                               ______________________________________
                               Judge Joshua Davis Baker
                               Court of Workers’ Compensation Claims




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                                      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 Brief




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                             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, 2019.

 Name                      Certified     Fax       Email   Service sent to:
                            Mail
 Muhamad Mustafa,             X                            4025 Providence Ln
 Self-represented                                          Nashville, TN 37211
 Employee
 Sarah Best,                                        X      shbest@mijs.com;
 Employer’s Attorney                                       clalmeida@mijs.com




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




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