The opinion
FILED
Apr 27, 2018
03:56 PM(CT)
TENNESSEE COURT OF
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT MEMPHIS
JOHN WASHINGTON, ) Docket No. 2017-08-1205
Employee, )
Vv. ) State File No. 69226-2017
UPS GROUND FREIGHT, INC., )
Employer, ) Judge Allen Phillips
And )
LIBERTY MUTUAL INS. CO. )
Carrier. )
EXPEDITED HEARING ORDER FOR MEDICAL BENEFITS
Mr. Washington requested additional medical and temporary disability benefits for
his September 7, 2017 work injury. UPS asserted it had paid all benefits to which Mr.
Washington is entitled. The Court heard the disputed issues on April 11, 2018, and holds
Mr. Washington is entitled to continuing medical benefits under the Workers’
Compensation Law.
History of Claim
On September 7, Mr. Washington was struck in the head by a metal bar while
working for UPS. UPS transported him to Concentra Medical Center where a provider
recommended treatment at an emergency facility. Mr. Washington was then seen at
Methodist Hospital where CT scans of his brain and cervical spine were normal. The
provider diagnosed a closed head injury, mild concussion, fractured tooth, lacerated
tongue, and a head contusion. The provider told Mr. Washington to follow-up with a
primary care provider if he did not improve.
On September 8, Mr. Washington experienced a headache and blurred vision. He
sought unauthorized treatment at Panola Medical Center (Panola) where a CT scan of the
head was “negative.” The provider diagnosed a concussion and headache. The discharge
note again mentioned follow-up with a primary care physician.
UPS provided Mr. Washington a panel of physicians which, at Mr. Washington’s
l
WORKERS' COMPENSATION
request, included his personal physician, Dr. Cary Mettetal. Dr. Mettetal diagnosed Mr.
Washington with post-concussion syndrome and neck strain. He recommended Mr.
Washington immediately stop wearing a cervical collar and referred him to a neurologist.
Dr. Mettetal advised Mr. Washington to remain off work until seeing a neurologist and
also restricted him from driving. He instructed Mr. Washington to return in one week.
On September 19, UPS provided Mr. Washington with a panel of neurologists
from which he chose Dr. Mohammed Assaf. Mr. Washington said he chose Dr. Assaf
because “someone he respects” had a favorable opinion of the doctor. However, after
learning Dr. Assaf could not see him until October 26, Mr. Washington selected Dr.
Nadel. Subsequently, Mr. Washington changed his mind again and opted to see Dr. Assaf
as originally requested. UPS scheduled an appointment with Dr. Assaf for October 30.
On October 3, Mr. Washington went back to the emergency room at Panola where
he reported a headache and dizziness. The provider diagnosed a cervical disc disorder and
vertigo and noted Mr. Washington was scheduled to see a neurologist on October 30. The
provider noted the “patient’s presenting complaint does not qualify as a certified
emergency.”
On October 11, Mr. Washington returned to Dr. Mettetal who noted he still wore a
cervical collar. He told Mr. Washington to immediately stop wearing the collar so his
neck might move more freely. He kept Mr. Washington off work and advised him to
avoid strenuous activities but to otherwise “return to all other usual duties at home.” Dr.
Mettetal coordinated the scheduling of a brain and cervical MRI at Panola.
On October 19, Dr. Mettetal wrote a letter stating Mr. Washington needed a
“personal care assistant until his appointment with the neurologist.” He deferred to the
neurologist regarding any further need for an assistant. Mr. Washington also demanded
UPS provide him a wheelchair and a walker. UPS consulted a home health care provider
for options and sought clarification from Dr. Mettetal regarding the extent of the personal
care Mr. Washington needed. Dr. Mettetal did not respond.
On October 26, both MRIs were interpreted as normal. Mr. Washington returned
to the emergency room at Panola later that evening requesting pain medications. The
emergency room provider noted that the “patient’s presenting complaint does not qualify
as a certified emergency.”
Dr. Assaf saw Mr. Washington on October 30 and diagnosed post-concussion
syndrome, low back pain and cervical disc degeneration. He recommended Mr.
Washington remove his neck brace and that he undergo a MRI of the lumbar spine. Dr.
Assaf completed a form that said Mr. Washington did not need a personal assistant or a
cane. Dr. Assaf noted Mr. Washington had recorded the office visit and had “talked to
many lawyers.” On October 31, the doctor wrote that he “did not wish to see Mr.
2
Washington back in [his] office again” because of their disagreement about the treatment
plan.
Mr. Washington believed neither Dr. Mettetal nor Dr. Assaf performed a proper
evaluation. He “reported” them both to their respective state physician licensing boards,
questioned the validity of their diagnoses and accused them of “falsifying” his records.
He said he spoke with a representative of “HIPPA” who explained the method of
requesting a provider to change medical records; he offered no documentation that he did
so. Mr. Washington testified he only recorded a conversation with Dr. Assaf’s office
manager.
Mr. Washington underwent a lumbar MRI at Panola Medical Center on November
27 that revealed disc disease at several levels. He returned to the emergency room later
that day requesting refills of medications prescribed by Dr. Mettetal. The provider stated
he could not “prescribe narcotics for long term pain management” and recommended a
physiatrist evaluation.
On December 6, UPS suspended payment of temporary disability benefits to Mr.
Washington because “he repeatedly and intentionally refused to follow medical advice
and treatment.” Nevertheless, UPS provided Mr. Washington a second panel of
neurologists on December 17.
Mr. Washington chose Dr. Feiyu Chen from the second panel and personally sent
his medical records via e-mail to Dr. Chen’s office manager. In that e-mail, he described
his symptoms and further stated that he had been “illegally denied effective medical
treatment” and that two “so-called treating doctors” had provided “unethical, unjust,
illegal and inferior” medical treatment. He noted he had filed “complaints” against both
doctors. Dr. Chen declined to see Mr. Washington.
UPS then provided a third panel of neurologists on December 22. Mr. Washington
rejected this panel because it included a physician, Dr. James Wang, that he claimed
would not see workers’ compensation patients. On December 31, Mr. Washington again
went to the emergency room seeking medication and “papers for home health services.”
The provider declined both requests and noted Mr. Washington’s complaints did not
“qualify as a certified emergency.”
UPS provided a fourth panel of neurologists on January 9, 2018, from which Mr.
Washington chose Dr. Bola Adamolekun, who declined to see him.
On February 1, Mr. Washington sent an email to Sarah Moore, UPS’s claims
handler, stating that he was making requests to amend his “intentionally falsified records”
from Drs. Mettetal and Assaf and that he was “in talks with the government to have legal
actions taken against” the doctors. Despite this e-mail, UPS provided a fifth panel of
3
neurologists, but Mr. Washington rejected the panel because he said one of the physicians
offered, Dr. Laverne Lovell, did not treat head injuries. UPS also told Mr. Washington it
would not approve payment for any future emergency room visits.
After rejecting the fifth panel of neurologists, Mr. Washington declined to choose
any physicians. At the hearing, he explained he wanted replacements for the refusing or
unchosen neurologists for “variety.” He also maintained the remaining neurologists have
“bad reviews” based upon his on-line research. He contended those reviews are
completely trustworthy.
Mr. Washington maintained his desire for a physician, including a psychiatrist, to
evaluate all the physical and mental issues that he attributes to the September 7 incident.
He contended he needs evaluation for dizziness, migraines, depression, anxiety, PTSD,
and spinal pain.” He asked that the Court “allow [him] the opportunity to seek treating
doctors outside the [workers’ compensation system] completely.”
Mr. Washington asked that UPS pay his personal care assistant an hourly rate for
eight hours per day and forty hours per week from “day one” to current. He requested
payment of outstanding emergency room bills from Panola Medical Center and
reinstatement of temporary disability from December 6 and ongoing as well as a twenty-
five percent penalty on the unpaid amounts. He asked that the Court adjust the
compensation rate on UPS’s wage statement to reflect a “one dollar per hour raise,” the
total amount of hours worked, and include his income from a second job.
For its part, UPS agreed the incident of September 7 occurred but maintained it
had paid to Mr. Washington all benefits to which he is entitled. If Mr. Washington desires
further evaluation and treatment, UPS contended he must choose one of the remaining
neurologists on the multiple panels it provided. Further, it contended it did not authorize
Mr. Washington’s treatment at Panola Medical Center emergency room and that the
medical proof does not support payments to a personal care assistant.
Findings of Fact and Conclusions of Law
Mr. Washington must present sufficient evidence demonstrating he is likely to
prevail at a hearing on the merits. Tenn. Code Ann. § 50-6-239(d)(1) (2017). Though
proceeding unrepresented, the Court cannot excuse Mr. Washington from complying with
the same substantive and procedural rules that represented parties are expected to
'Mr. Washington went to the Panola Medical Center emergency room on February 6, but no records of that visit are
in evidence.
* In support of his position, Mr. Washington submitted various articles regarding how his injury might cause his
alleged conditions. The Court granted UPS’s Motion in Limine and excluded these documents. Mr. Washington
asked the Court to reverse this finding in correspondence to the Clerk and requested the undersigned Workers’
Compensation Judge recuse himself “at any time he felt he could not be fair.” The Court declined to reverse the
holding of the motion in limine and to recuse itself.
observe.” Walton v. Averitt Express, Inc., 2017 TN Wrk. Comp. App. Bd. LEXIS 37, at
*5 (June 2, 2017).
Medical benefits
a) Further medical treatment
Mr. Washington requests a physician to treat his alleged work-related conditions
and prefers a physician outside of the workers’ compensation system. The Court cannot
order UPS to pay for a physician outside of workers’ compensation. However, the Court
holds Mr. Washington is entitled to further reasonable, necessary, and related treatment
from an authorized neurologist but he must select a physician from one of the previously
provided panels.
Tennessee Code Annotated section 50-6-204(a)(1)(A) provides an employer shall
furnish medical benefits to an employee made reasonably necessary by a work injury. As
part of that requirement, section 204(a)(3)(A)(i) provides an employer shall designate a
panel of three or more independent reputable physicians to treat an injured employee and
that the employee shall select one as the treating physician. (Emphasis added). These
statutes make clear that the employer has the right to select the physicians, Atlas Powder
Co. v. Grant, 293 S.W.2d 180, 181 (1956), and also makes clear that the employee must
choose a treating physician from those provided by the employer. Russell v. Genesco,
Inc., 651 S.W.2d 206, 211 (Tenn. 1983).
In this case, UPS first provided Mr. Washington a panel that included Dr.
Mettetal, as Mr. Washington requested. Since then, UPS has provided Mr. Washington
five panels of neurologists. The Court finds UPS has complied fully with the statutory
requirement that it provide Mr. Washington with physicians to treat his injury. However,
Mr. Washington has not complied with his statutory duty to choose a neurologist.
Mr. Washington contests the competency of some of the physicians provided by
UPS. However, he bases his opinions solely upon “reviews” of the physicians by
unnamed and unknown parties. He produced no credible evidence of any incompetence
on the part of the unselected neurologists. Moreover, the record supports a finding that
Mr. Washington’s actions of directly contacting neurologists and making unfounded
allegations against others has hampered his receipt of additional treatment. The Court
holds UPS is not required to provide any other physicians under these circumstances.
Finally, Mr. Washington has not shown entitlement to evaluation by any specialty
except neurology. Because Mr. Washington is not a physician, he cannot determine what
treatment is reasonable and necessary for his injury, including his subjective belief that he
needs a psychiatric evaluation and home health care. Russell v. Dana Corp., No. M2015-
00800-SC-R3-WC, 2016 Tenn. LEXIS 520, at *21-22 (Tenn. Workers’ Comp. Panel
August 1, 2016). Likewise, the Court can only order treatment recommended by an
5
authorized physician. Currently, the only recommended treatment is a neurology
evaluation. Thus, Mr. Washington must choose another neurologist from those already
provided if he desires further medical treatment.
b) Emergency room bills
UPS risks having to pay for unauthorized treatment if it does not provide medical
treatment under Tennessee Code Annotated section 50-6-204(a)(1)(A). Hackney v.
Integrity Staffing Solutions, Inc., 2016 TN Wrk Comp App Bd LEXIS 29 at *8 July 22,
2016). However, Mr. Washington must also give UPS an opportunity to provide
treatment before seeking it on his own. Whether he, or any employee, is justified in
seeking additional treatment without consulting the employer depends on _ the
circumstances of each case. /d. at *9. Here, Mr. Washington testified he was aware of the
requirement that he consult with UPS before seeking unauthorized treatment, and he said
he has deliberately avoided seeking another physician on his own. Rather than selecting a
panel physician, he sought emergency room care at Panola on several occasions and
requested UPS pay those bills.
The circumstances of this case do not indicate Mr. Washington needed
“emergency” treatment on the dates in question. The emergency room notes from Panola
on three separate occasions stated that Mr. Washington’s presenting complaints did not
constitute a true emergency. At another, the provider noted normal MRIs and said he
could not prescribe narcotics to Mr. Washington long term. Notably, the latter emergency
room visit occurred on the same day as the lumbar MRI, and the evidence does not
establish any untoward event during the performance of that test to prompt emergency
care. The Court holds the evidence does not establish any justification for the emergency
room care and denies Mr. Washington’s request for payment of the bills generated by it.
c) Personal care assistant
Tennessee Code Annotated section 50-6-204(a)(1)(A) states that medical
treatment required to be provided by an employer may include “nursing services as
ordered by the attending physician.” Here, Dr. Mettetal said in a letter of October 19,
2017, that Mr. Washington was “in need of a personal care assistant until his appointment
with the neurologist.” This recommendation is not for nursing services, and the Court
holds such recommendation is beyond the scope of reasonable and necessary medical
benefits recoverable under the statute. The Court denies Mr. Washington’s request for
payments to his personal care assistant.
Temporary disability benefits
UPS stopped paying temporary disability benefits on December 7, 2017, because
it contended Mr. Washington refused to accept medical benefits. The Court agrees.
6
Tennessee Code Annotated section 50-6-204(d)(8) provides that:
If the injured employee refuses to comply with any reasonable request for
examination or fo accept the medical or specialized services that the employer is
required to furnish under this chapter, the injured employee's right to
compensation shall be suspended and no compensation shall be due and payable
while the injured employee continues to refuse. (Emphasis added).
Here, UPS offered Mr. Washington medical benefits by providing him three
separate panels of physicians between September 8 and December 6, the period it paid
him temporary disability benefits. During that period, it paid for treatment by Drs.
Mettetal and Assaf, and for a lumbar MRI performed on November 27. Dr. Assaf
restricted Mr. Washington from work only until performance of that MRI.
The Court finds Mr. Washington did not comply with Dr. Assaf’s
recommendations based solely on his subjective disagreement with the doctor’s
recommendations. As noted, Mr. Washington cannot provide his own opinion as to the
appropriateness of medical treatment. Russell, supra. Further, Mr. Washington admits he
declined to accept care from any other neurologist UPS offered. This refusal to accept
medical services justified UPS’s suspension of temporary benefits, and it may continue to
do so until Mr. Washington complies by selecting a panel physician. Given this holding,
the Court need not address Mr. Washington’s request for a twenty-five percent penalty on
unpaid benefits.
Wage rate
Mr. Washington contests the compensation rate UPS used for temporary disability
benefits. He contends first that UPS miscalculated his earnings on the wage statement and
further that it did not include his earnings from a personal business on that statement. The
Court rejects both arguments.
Tennessee Code Annotated section 50-6-102(3)(A) provides that an employee’s
average weekly wage “means the earnings of the injured employee in the employment in
which the injured employee was working at the time of the injury during the period of
fifty-two (52) weeks immediately preceding the date of the injury divided by fifty-two
(52).” The average weekly wage is then multiplied by sixty-six and two-thirds percent to
obtain the weekly compensation rate for temporary disability benefits. Tenn. Code Ann. §
50-6-207(1)(A).
Mr. Washington contested the wages UPS reported on the wage statement because
he said it did not include all of the wages he earned at UPS. However, he produced no
documentation to support that argument. He also contended the total wages should
include a one dollar per hour yearly raise. The statute does not allow addition of this raise
unless it occurred in the fifty-two weeks prior to injury. If Mr. Washington received the
7
raise in the preceding fifty-two week period, the wage statement amount would reflect it.
If he received the raise after that time, then it is not included.
Further, Mr. Washington cannot include earnings from his personal business in the
calculation of his average weekly wage and corresponding compensation rate. The
average weekly wage used to calculate benefits is only the wage earned in the
employment in which the employee was working when injured. Acklie v. Carrier, 785
S.W.2d 355, 359 (Tenn. 1990).
Based on the wage statement, Mr. Washington’s average weekly wage was
$499.59, and sixty-six and two thirds of that amount is $333.06, the rate at which UPS
paid benefits. Thus, the Court holds Mr. Washington is not entitled to additional
temporary disability benefits at this time.
IT IS, THEREFORE, ORDERED as follows:
1. The Court orders that UPS allow Mr. Washington to choose another neurologist
from those remaining on the previously provided panels. Mr. Washington may
choose one of the neurologists to be his authorized treating physician. If Mr.
Washington does not do so, UPS may continue suspension of any benefits to
which he is otherwise entitled under the Workers’ Compensation Law.
2. The Court denies Mr. Washington’s request for additional temporary benefits and
the other requested medical benefits at this time.
3. This matter is set for a telephonic Status Hearing on Tuesday, June 26, 2018, at
11:00 a.m. Central Time. The parties must call toll-free at 855-543-5038 to
participate in the hearing. Failure to call may result in a determination of the issues
without a party’s further participation. Z
ENTERED this the 27" day of spl aqi Wi ‘
Judge Allen Phillips \
Court of Workers’ Compé¢nsation Claims
APPENDIX
Exhibits:
1. Affidavit of John Washington, including his statement of demands
. Affidavit of Sarah Moore, including attachments
First Report of Work Injury
Wage Statement
Employee’s Exhibits A, B, C, D, E, F, I, M, O, P, R and S (Excluded by Motion in
Limine and marked for identification only)
6. Employee’s Exhibits G and W (Extraneous handwritten statements on these
records were excluded by Motion in Limine)
7. Collective Medical Records with Index of Concentra, Methodist Hospital, Panola
Medical Center, Mettetal Family Medicine and Mohammed Assaf
8. Employee’s Exhibit H, K, L, N, Q, T, U, V and X
9. Letter from UPS to Mr. Washington regarding work status
10. E-mail from Mr. Washington to Sarah Moore regarding Dr. Assaf’s discontinuing
treatment
11. Additional Emergency Room records
Aw
Technical record:
1. Petition for Benefit Determination
Dispute Certification Notice
Request for Expedited Hearing
Employer’s Amended Motion to Reschedule Expedited Hearing
Employee’s Response to Motion to Reschedule Expedited Hearing
Order Resetting Expedited Hearing
UPS’s Motion in Limine
Employee’s Response to Motion in Limine
Order Granting Motion in Limine
10. UPS’s Expedited Hearing Memorandum
11.Employee’s “Rebuttal” to Order Granting Motion in Limine
12.Order Denying Motion for Reversal of Motion in Limine and Denying Recusal
ON DARWY
CERTIFICATE OF SERVICE
I certify that a true and correct copy of this Expedited Hearing Order was sent to
the following recipients by the following methods of service on this the 27" day of April,
2018.
Name Via Email | Service sent to:
John Washington, Self-Represented x Washingtonjohn73@gmail.com
Employee
Garrett Estep, Attorney for Employer X gestep@farris-law.com
Jur ld —
Pénny Sarum, Court Clerk
Court of Workers’ Compensation Claims
10