Juboori, Mohammed v. PRESBYTERIAN HOMES OF TENNESSEE , 2020 TN WC 91 ( 2020 )

TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT KNOXVILLE
MOHAMMED JUBOORI, ) Docket No. 2020-03-0080
Employee, )
)
V. ) State File No. 8004-2020
)
PRESBYTERIAN HOMES OF )
TENNESSEE, )
Employer. ) Judge Lisa A. Lowe
EXPEDITED HEARING ORDER
DENYING ADDITIONAL MEDICAL BENEFITS
This case came before the Court for an Expedited Hearing on September 2, 2020.1
Mr. Juboori initially injured his left foot on February 28, 2018, and Presbyterian Homes of
Tennessee (PHT) provided authorized treatment with Dr. William McPeake.? He allegedly
reinjured that foot on November 24, 2018. The issue is whether Mr. Juboori established a
likelihood of success at trial in proving entitlement to treatment with a different physician
and temporary disability benefits. For the reasons below, the Court holds Mr. Juboori is
unlikely to succeed at trial on the requested benefits.
History of Claim
Mr. Juboori worked as a dietary aide for PHT. He injured his left foot when a stack
of dishes fell on it, and PHT authorized treatment with Dr. McPeake.
Mr. Juboori saw Dr. McPeake in April 2018. Diagnostic testing revealed “mild soft
tissue swelling as well as a fracture of the medial sesamoid, age undetermined.” Dr.
McPeake ordered an MRI, and he recommended that Mr. Juboori use a cast-boot and
' Due to COVID-19 concerms, the parties agreed to conduct the Expedited Hearing by telephone with the
aid of an Arabic interpreter.
Mr. Juboori filed a separate Petition for Benefit Determination for the February 28, 2018 injury, and the
Court held a telephonic Expedited Hearing and issued an Order Denying Benefits in that case.
1
proceed with weight-bearing as comfortable. At a follow-up appointment, Dr. McPeake
stated that Mr. Juboori could return to work for four hours per day for one month then
return to full duty, but he should avoid “impact loading activities.”
Mr. Juboori returned to work but reinjured his foot on November 24, 2018, when he
“slipped and twisted his foot, striking an object with a significant degree of force.” He saw
Dr. McPeake afterward and complained of constant pain. Mr. Juboori said he was unable
to work since the injury. X-rays showed he likely had an impacted fracture of the first-
metatarsal head. Despite Mr. Juboori’s continued complaints, Dr. McPeake asked him to
resume wearing conventional shoes, stop using crutches, and proceed with full weight-
bearing. Mr. Juboori continued to wear the boot-cast.
After additional diagnostic testing showed fracture alignment and no evidence of
arthritis, Dr. McPeake again instructed Mr. Juboori to use regular shoes and return to
walking and standing. He released Mr. Juboori to return to work four hours per day for
three weeks, then progress to full-duty work.
After Dr. McPeake released him, Mr. Juboori sought non-authorized emergency
treatment before returning to Dr. McPeake in July 2019. He complained that he could not
hold his foot to the floor or tolerate anyone touching it. Dr. McPeake reviewed the ER
diagnostic testing and noted no evidence of acute changes or pathology that required
treatment. Dr. McPeake repeated his recommendation that Mr. Juboori wear normal shoes,
discontinue the use of his boot, and proceed with weight-bearing activities. He also noted,
“T think his complaints in regards to his foot cannot be substantiated with physical findings
[other] than his subjective complaints of pain.”
Dr. McPeake completed a final medical report placing Mr. Juboori at maximum
medical improvement (MMI) on July 11, 2019, and he assigned a three-percent impairment
rating to the body as a whole. He anticipated Mr. Juboori would need no further treatment
for his February 2018 injury.
Mr. Juboori testified that an attorney advised that he obtain an impairment rating.
He went to Dr. McPeake’s office, but staff refused to give him the impairment report and
said he would have to make an appointment. Mr. Juboori returned to Dr. McPeake, who
ordered x-rays, but Mr. Juboori refused. Dr. McPeake noted that with Mr. Juboori’s lack
of cooperation, he could not provide an impairment rating, and he discharged him from
treatment. Mr. Juboori stated he did not want an exam because he did not want an
impairment rating for his condition at that time.4 Rather, he wanted Dr. McPeake to
provide an impairment rating for “when his foot was bad.”
3 PHT stated it paid Mr. Juboori temporary disability benefits for the time Dr. McPeake restricted him from
working, and Mr. Juboori did not refute the assertion.
*Mr. Juboori testified that his foot started improving since he had been staying off it.
2
Mr. Juboori testified he was not satisfied with the care provided by Dr. McPeake
and further stated that his foot pain prevents him from being able to perform his regular
activities.
PHT argued that Mr. Juboori received treatment within three weeks of the
November 2018 injury, and received temporary disability benefits from that date until July
11,2019. Dr. McPeake stated that Mr. Juboori could return to full-duty work, but he failed
to do so. Dr. McPeake also wrote on the final medical report that he did not anticipate a
need for future medical treatment. Mr. Juboori did not provide a medical opinion to refute
Dr. McPeake; therefore, he is not entitled to the requested benefits.
Findings of Fact and Conclusions of Law
Mr. Juboori must present sufficient evidence from which this Court can determine
that he is likely to prevail at trial in proving entitlement to treatment with a different
physician and temporary benefits. McCord vy. Advantage Human Resourcing, 2015 TN
Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015).
Under the Workers’ Compensation Law, an employer “shall furnish, free of charge
to the employee, such medical and surgical treatment . . . made reasonably necessary by
accident as defined in this chapter.” Tenn. Code Ann. § 50-6-204(a)(1)(A) (2019).
However, where an authorized physician has placed an injured worker at maximum
medical improvement and released him to full-duty work, the worker is not entitled to
additional medical treatment. See Petty v. Convention Prod. Rigging, 2016 TN Wrk.
Comp. App. Bd. LEXIS 95, at *18-19 (Dec. 29, 2016).
Here, TPH provided authorized medical treatment with Dr. McPeake, who placed
Mr. Juboori at MMI, released him to full-duty work, and anticipated no need for additional
treatment. Mr. Juboori offered no medical opinion to rebut Dr. McPeake’s assessments,
nor did he offer a medical opinion to establish that he currently needs medical treatment.
Therefore, he is not likely to prevail at trial regarding entitlement to additional medical
benefits. In light of this conclusion, the Court does not need to address whether he is
entitled to another panel of physicians.
Mr. Juboori’s other requested benefit suffers a similar defect. To receive temporary
total disability benefits, he must prove (1) total disability from working as the result of a
compensable injury; (2) a causal connection between the injury and the inability to work;
and (3) the duration of the period of disability. Shepherd v. Haren Constr. Co., Inc., 2016
TN Wrk. Comp. App. Bd. LEXIS 15, at *13 (Mar. 30, 2016). Mr. Juboori offered no
medical opinion to rebut Dr. McPeake’s assessment that he can work full duty, nor did he
offer a medical opinion to establish that he is restricted from working as a result of the
November 24, 2018 injury. He is unlikely to prevail on this issue as well.
3
IT IS, THEREFORE, ORDERED as follows:
1.
Mr. Juboori’s requests for a different authorized treating physician, additional
medical treatment, and temporary disability benefits are denied at this time.
. This case is set for a Scheduling Hearing on January 5, 2021, at 9:30 a.m. Eastern
Time. The parties must call 865-594-0109 or 855-383-0003 toll-free to participate
in the Scheduling Hearing. Failure to appear by telephone may result in a
determination of the issues without the party’s participation.
ENTERED September 10, 2020.
LISA A. LOWE, JUDGE
Court of Workers’ Compensation Claims
APPENDIX
Technical Record:
SAINDWNEYWN SE
9.
Petition for Benefit Determination
Dispute Certification Notice
Show Cause Order
Notice of Show Cause Hearing, dated June 11, 2020
Notice of Show Cause Hearing, dated June 15, 2020
Amended Show Cause Order
Notice of Show Cause Hearing, dated June 15, 2020
Request for Expedited Hearing
Notice of Expedited Hearing, dated July 20, 2020
10. Notice of Prehearing, dated July 30, 2020
11. PHT’s Position Statement
Exhibits:
1.
NAME WY
Affidavit of Mohammed Juboori, filed January 9, 2020
Affidavit of Mohammed Juboori, filed June 26, 2020
Statemen of Mohammed Juboori
Mr. Juboori’s Responses to Defendant’s Interrogatories and Request to Produce
First Report of Work Injury
Wage Statement
Medical Records of OrthoTennessee
8. Medical Record of Outpatient Diagnostic
9. Medical Record of University Radiology
CERTIFICATE OF SERVICE
I certify that a copy of this Order was sent as indicated on September 10, 2020.
Name Mail Fax | Email | Service sent to:
Mohammed R. Juboori, xX xX 5856 Tannahill Drive
Employee’ Knoxville, TN 37909
Mohammed227768@gmail.com
Brandon Criswell, x beriswell@owclaw.com
Employer’s Attorney
{ /
Vn x ft a
PENNY SHRUM, Court Clerk
WC.CourtC Mk@tn. gov
Expedited Hearing Order Right to Appeal:
If you disagree with this Expedited Hearing Order, you may appeal to the Workers’
Compensation Appeals Board. To appeal an expedited hearing order, you must:
1. Complete the enclosed form entitled: “Notice of Appeal,” and file the form with the
Clerk of the Court of Workers’ Compensation Claims within seven business days of the
date the expedited hearing order was filed. When filing the Notice of Appeal, you must
serve a copy upon all parties.
2. You must pay, via check, money order, or credit card, a $75.00 filing fee within ten
calendar days after filing of the Notice of Appeal. Payments can be made in-person at
any Bureau office or by U.S. mail, hand-delivery, or other delivery service. In the
alternative, you may file an Affidavit of Indigency (form available on the Bureau’s
website or any Bureau office) seeking a waiver of the fee. You must file the fully-
completed Affidavit of Indigency within ten calendar days of filing the Notice of
Appeal. Failure to timely pay the filing fee or file the Affidavit of Indigency will
result in dismissal of the appeal.
3. You bear the responsibility of ensuring a complete record on appeal. You may request
from the court clerk the audio recording of the hearing for a $25.00 fee. If a transcript of
the proceedings is to be filed, a licensed court reporter must prepare the transcript and file
it with the court clerk within ten business days of the filing the Notice of
Appeal. Alternatively, you may file a statement of the evidence prepared jointly by both
parties within ten business days of the filing of the Notice of Appeal. The statement of
the evidence must convey a complete and accurate account of the hearing. The Workers’
Compensation Judge must approve the statement before the record is submitted to the
Appeals Board. If the Appeals Board is called upon to review testimony or other proof
conceming factual matters, the absence of a transcript or statement of the evidence can be
a significant obstacle to meaningful appellate review.
4. If you wish to file a position statement, you must file it with the court clerk within ten
business days after the deadline to file a transcript or statement of the evidence. The
party opposing the appeal may file a response with the court clerk within ten business
days after you file your position statement. All position statements 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.
For self-represented litigants: Help from an Ombudsman is available at 800-332-2667.
NOTICE OF APPEAL
Tennessee Bureau of Workers’ Compensation
www.tn.gov/workforce/injuries-at-work/
we.courtclerk@tn.gov | 1-800-332-2667
Docket No.:
State File No.:
Date of Injury:
Employee
Employer
Notice is given that
[List name(s) of all appealing party(ies). Use separate sheet if necessary.]
appeals the following order(s) of the Tennessee Court of Workers’ Compensation Claims to the
Workers’ Compensation Appeals Board (check one or more applicable boxes and include the date file-
stamped on the first page of the order(s) being appealed):
D Expedited Hearing Order filed on UO) Motion Order filed on
O Compensation Order filed on 0 Other Order filed on
issued by Judge
Statement of the Issues on Appeal
Provide a short and plain statement of the issues on appeal or basis for relief on appeal:
Parties
Appellant(s) (Requesting Party): ['Employer!” Employee
Address: Phone:
Email:
Attorney’s Name: BPR#:
Attorney’s Email: Phone:
Attorney’s Address:
* Attach an additional sheet for each additional Appellant *
LB-1099 rev. 01/20 Page 1 of 2 RDA 11082
Employee Name: Docket No.: Date of !nj.:
Appellee(s) (Opposing Party): [| Employer |~ Employee
Appellee’s Address: Phone:
Email:
Attorney’s Name: BPR#:
Attorney’s Email: Phone:
Attorney’s Address:
* Attach an additional sheet for each additional Appellee *
CERTIFICATE OF SERVICE
I, , certify that | have forwarded a
true and exact copy of this Notice of Appeal by First Class mail, postage prepaid, or in any manner as described
in Tennessee Compilation Rules & Regulations, Chapter 0800-02-21, to all parties and/or their attorneys in this
case on this the day of , 20
[Signature of appellant or attorney for appellant]
LB-1099 rev. 01/20 Page 2 of 2 RDA 11082