Salih, Ahmed v. Ean Holdings, LLC

2024 TN WC 66
CourtTennessee Court of Workers' Compensation Claims
DecidedSeptember 12, 2024
Docket2023-06-8324, 2023-06-8394
StatusPublished

This text of 2024 TN WC 66 (Salih, Ahmed v. Ean Holdings, LLC) is published on Counsel Stack Legal Research, covering Tennessee Court of Workers' Compensation Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Salih, Ahmed v. Ean Holdings, LLC, 2024 TN WC 66 (Tenn. Super. Ct. 2024).

Opinion

FILED Sep 12, 2024 12:38 PM(CT) TENNESSEE COURT OF WORKERS' COMPENSATION CLAIMS

TENNESSEE BUREAU OF WORKERS’ COMPENSATION IN THE COURT OF WORKERS’ COMPENSATION CLAIMS AT NASHVILLE

AHMED SALIH, ) Docket Nos. 2023-06-8324 ) 2023-06-8394 Employee, ) v. ) EAN HOLDINGS, LLC, ) State File Nos. 44935-2022 Employer, ) 9562-2023 and ) FARMINGTON CASUALTY CO., ) Judge Joshua Davis Baker Carrier. )

EXPEDITED HEARING ORDER GRANTING BENEFITS

At an August 20, 2024 expedited hearing, Mr. Salih requested medical benefits for injuries suffered after slipping and falling onto his left side in two separate work accidents. In one claim, he sought authorization of a direct referral from his treating physician to an orthopedic spine specialist. In the other, he sought a panel of physicians for medical treatment. Because he is likely to prevail on both requests at a final hearing, the Court grants his requested relief.

Claim History

At his job detailing cars, Mr. Salih slipped and fell twice in a nine-month period, falling both times onto his left side. On May 18, 2022, he slipped on soapy water. On February 1, 2023, he slipped on black ice.

After his first fall, Mr. Salih chose Concentra from a panel. A physician’s assistant recommended an EMG and ultimately referred Mr. Salih to a hand specialist. Three months after the fall, Dr. Jeffery Hazlewood performed an EMG and reported “mild left focal median neuropathy at the wrist, consistent with Carpal Tunnel Syndrome” without “any other focal nerve entrapment (ulnar or radial), cervical radiculopathy or brachial plexopathy in the left upper extremity, or generalized polyneuropathy.”

1 A month later, EAN Holdings gave Mr. Salih a panel of hand specialists, from which he chose Dr. Todd Rubin. After conservative treatment, Dr. Rubin performed a left carpal tunnel release in March 2023. He placed Mr. Salih at maximum medical improvement in March 2024 and assigned a 2% impairment.

Just weeks before his carpal tunnel surgery, Mr. Salih fell again on March 1, 2023. He testified he was not given a Choice of Physician form; rather, his supervisor drove him to Concentra, where he was receiving treatment from his first fall. The supervisor testified by declaration that he “orally informed” Mr. Salih of his physician choices and that Mr. Salih selected Concentra. Mr. Salih denied this assertion.

Mr. Salih underwent an MRI of his left arm and left elbow that yielded normal results. The physician’s assistant released him in April 2023, instructing him to follow up with Dr. Rubin, who was treating his wrist injury from the first fall. However, Mr. Salih could not treat with Dr. Rubin for any new injuries because EAN Holdings had only authorized him to treat the first injury.

On October 27, 2023, Dr. Rubin noted Mr. Salih had complaints of numbness, tingling, and radiating symptoms in his left arm. So he referred him to orthopedic spine specialist Dr. John Burleson. He explained, “Given the clinical exam and the diminished sensation in the hand, I am recommending an evaluation from Ortho Spine [to rule out] impingement or cervical radiculopathy/stenosis.” The referral portion of the record read:

Roughly two weeks later, the adjuster filed a partial Notice of Denial for the 2022 injury, which read, “The Cervical and Thoracic components of the back are not accepted for this claim. They did not arise out of the course and scope of employment.”

In December, Dr. Hazlewood completed a records review for EAN Holdings, in which he stated a spine specialist was unnecessary because of the lack of documented cervical complaints and the lack of evidence of cervical radiculopathy from EMG tests. He wrote, “I do not see that he suffered any cervical injury” before concluding, “I have no problem with an orthopedic spine specialist evaluating him to try to determine why is he [sic] having these symptoms[,] but . . . there is no evidence that he has an objective cervical radiculopathy.” He also placed Mr. Salih at maximum medical improvement for his 2022 injury with a 1% impairment.

Seven months later, Mr. Salih submitted to an employer’s examination with Dr. Hazlewood. He noted Mr. Salih “has not had a[n] MRI scan or any evaluation of his cervical spine or shoulder” and “never had any evaluation of his thoracic pain.” Still, he

2 reiterated a cervical spine evaluation was unnecessary and unrelated to the first fall, based on the lack of documentation of cervical complaints and no evidence of cervical radiculopathy from the EMG results. He did, however, recommend an MRI of Mr. Salih’s left shoulder for a possible rotator cuff tear.

As a result, EAN Holdings authorized a return visit to Concentra just before the expedited hearing to examine Mr. Salih’s left shoulder, and they assigned restrictions and ordered an MRI.

Findings of Fact and Conclusions of Law

Mr. Salih must prove he is likely to prevail at a final hearing on his requested benefits. Tenn. Code Ann. § 50-6-239(d)(1) (2023); McCord v. Advantage Human Resourcing, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015).

For his first injury, he seeks authorization of Dr. Rubin’s direct referral to Dr. Burleson. For his second injury, he requests a panel of physicians for evaluation and treatment. He also sought attorney’s fees in both claims.

May 18, 2022 injury

Treatment recommendations and referrals by an authorized physician, like Dr. Rubin, are presumed medically necessary for treatment of a work injury. Tenn. Code Ann. § 50-6-204(a)(3)(H). Further, when an authorized physician refers an injured worker directly to a specialist physician, like Dr. Rubin’s referral to Dr. Burleson, the employer has accepted that referral unless a panel is offered within three business days. Id. at - 204(a)(3)(A)(ii).

Dr. Rubin’s referral is presumed medically necessary, and Dr. Hazlewood’s opinion is insufficient here to overcome that presumption. He is a physical medicine, pain management and rehabilitation doctor, not an orthopedic spine specialist. Importantly, Dr. Rubin’s referral does not mean he believes Mr. Salih suffered a cervical injury; it means he needs the opinion of an orthopedic spine specialist.

Workers’ Compensation Law does not require Mr. Salih to prove he suffered a cervical injury to obtain an evaluation. While “an employer has a right to investigate and deny an employee’s claim based on its factual assertion that the alleged work accident did not occur as reported, or as the result of asserting an affirmative defense . . . an employer’s assertion that an employee has no medical evidence supporting his or her claim does not, standing alone, excuse it from [its] statutory obligations.. . . .” Hawes v. McLane Co., Inc., 2021 TN Wrk. Comp. App. Bd. LEXIS 30, at *9-10 (Aug. 25, 2021).

3 EAN Holdings has misstated the relevant issue and misconstrued both its legal obligation and Mr. Salih’s burden of proof. Here, like in Beech v. G4S Secure Solutions (USA), Inc.:

The issue is not whether Employee has come forward with sufficient evidence to convince the trial court that the referral was medically necessary or that his alleged psychological injury is causally related to the work incident . . . . [T]he relevant issue is whether Employee came forward with sufficient proof from which the trial court could conclude a panel-selected treating physician made a referral to a specialist.

Beech v. G4S Secure Solutions (USA), Inc., 2020 TN Wrk. Comp. App. Bd. LEXIS 71, at *9-10 (Dec. 16, 2020).

Evidence shows Dr. Rubin referred Mr. Salih directly to Dr.

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Related

§ 50-6-204
Tennessee § 50-6-204(a)(3)(H)
§ 50-6-239
Tennessee § 50-6-239(d)(1)

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2024 TN WC 66, Counsel Stack Legal Research, https://law.counselstack.com/opinion/salih-ahmed-v-ean-holdings-llc-tennworkcompcl-2024.