Kanbi, Cecilia v. Claudia Ghanem, d/b/a Kebab Gyros , 2023 TN WC 19 ( 2023 )

FILED
Mar 20, 2023
08:14 AM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT NASHVILLE
Cecilia Kanbi, ) Docket No. 2020-06-1501
Employee, )
v. )
Claudia Ghanem, d/b/a Kebab Gyros, ) State File No. 66043-2020
Employer, )
And )
Society Ins. Co., ) Judge Kenneth M. Switzer
Carrier. )
EXPEDITED HEARING ORDER
The Court held an expedited hearing on March 15 on Cecilia Kanbi’s request for
additional medical benefits with a physician other than Dr. Jeffrey Willers. Kebab Gyros
opposed the request. For the reasons below, the Court orders that Kebab Gyros must
schedule a return appointment for the authorized treating physician, Dr. Willers, to
reevaluate Ms. Kanbi and assign maximum medical improvement and an impairment
rating. If he is unwilling to do so, Kebab Gyros must offer her a panel of orthopedic
specialists.
Claim History
Ms. Kanbi suffered injuries from an armed robbery while working at Kebab Gyros
on November 4, 2019.1 She first saw Dr. Scott Dube, selected from a panel, for a gunshot
injury to her right foot. He referred her to podiatrist Dr. Tod Bushman. Dr. Bushman
performed surgery in May 2021, but Ms. Kanbi had continued pain, particularly in her third
toe.
Dr. Bushman then thought it might be necessary to amputate the toe. Ms. Kanbi did
not initially agree, so Kebab Gyros authorized a second opinion with orthopedic surgeon
Dr. Willers. Dr. Willers agreed that the amputation was the correct course of action.
1
She also suffered a mental injury, which was ultimately accepted and is not at issue at this time.
1
Dr. Willers wrote, “She states that she would prefer that I perform the surgery.” Ms.
Kanbi testified that the carrier “tricked” her into agreeing to Dr. Willers as the surgeon but
offered no supporting documentary proof. Ms. Kanbi was represented by an attorney at
that time.
The amputation occurred in April 2022, and Ms. Kanbi followed up with Dr. Willers
four times. The records from these visits state that she showed improvement each time but
also reported continuing foot pain. She underwent physical therapy and was prescribed
various medications, with little success in relieving her symptoms.
At the final visit in July, Ms. Kanbi reported “a significant amount of nerve pain.”
After an examination, Dr. Willers wrote:
Objectively her foot looks great. Her swelling is almost nonexistent. Her
tenderness is markedly less than it was prior to surgery. I do not have a great
explanation for all of her subjective reports of pain given her fairly benign
exam today. . . . I do not think orthopedically I have any additional treatment
options to offer.
Dr. Willers referred Ms. Kanbi to Dr. Jeffrey Hazlewood for pain management. He
deferred placing her at maximum medical improvement or assigning an impairment rating.
Dr. Willers wrote that the rating “really will be more of the case upon her nerve pain than
anything.” Dr. Willers restricted her from standing and walking for more than four hours
per day and recommended hourly sit-down breaks as needed.
Ms. Kanbi’s visits with Dr. Hazlewood, a pain management and physical
medicine/rehabilitation specialist, began in August. He ruled out complex regional pain
syndrome and recommended several strategies, including a change in medication. Dr.
Hazlewood agreed with Dr. Willers’s restrictions and increased her medications.
In October, Dr. Hazlewood informally placed Ms. Kanbi at maximum medical
improvement but also wrote that Dr. Willers should do this from an orthopedic standpoint.
However, he noted that he would do so if Dr. Willers preferred.
In November, Dr. Hazlewood repeated the pronouncement of maximum medical
improvement. Dr. Hazlewood placed a one-percent impairment rating. He also noted, “I
cannot write permanent restrictions for just pain tolerance for nonspecific neuralgic pain
without CRPS. Therefore, from an orthopedic stand point [sic] I will say return duty
without restrictions.” At the most recent visit in February 2023, Dr. Hazlewood prescribed
an h-wave unit. Ms. Kanbi continues to treat with him.
2
In the meantime, Ms. Kanbi returned to Dr. Bushman in early February 2023. After
examining her foot, he recommended “follow up with pain management concerning
diagnoses potential reflex sympathetic dystrophy or chronic regional pain syndrome” and
“follow-up [sic] with pain management and/or further orthopedic physician.”
Ms. Kanbi testified that the pain makes sleep difficult and that she cannot drive.
She uses a cane, although none of the medical records mentions its necessity.
Roland Anku and Anthony Amofa additionally testified. Mr. Anku is a coworker,
who was present on the day she was shot. He has known Ms. Kanbi for approximately
twenty-five years and attested to her strong work ethic. Mr. Amofa is a friend. He
translated documents for her and interpreted discussions between Ms. Kanbi and her former
attorney. Mr. Amofa said that she never needed the cane until after the accident and
treatment.
Ms. Kanbi’s affidavit asks the Court to “order another doctor opinion and overruled
[sic] Dr. Willers’s conclusion, and or accept Dr. T. Bushman’s [diagnosis].”
Findings of Fact and Conclusions of Law
To grant Ms. Kanbi’s request, she must prove she is likely to prevail at a hearing on
the merits. Tenn. Code Ann. § 50-6-239(d)(1) (2022); McCord v. Advantage Human
Resourcing, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015).
The Workers’ Compensation Law states that an employer must furnish medical
treatment made reasonably necessary by a work injury. Tenn. Code Ann. § 50-6-
204(a)(1)(A). Kebab Gyros accepted the claim and has complied with this obligation by
authorizing care with several treating physicians: Drs. Dube, Bushman, and Willers, as
well as pain management with Dr. Hazlewood.
Ms. Kanbi sincerely testified that despite this lengthy treatment, her foot pain
remains and has altered her ability to sleep, work, and drive. Her witnesses generally
supported this testimony. The Court finds them all credible.
But the Court must also consider the medical proof, starting with Dr. Dube. Since
he was selected from a panel, he was the first authorized treating physician under section
50-6-204(a)(3)(i). Subdivision -204(a)(3)(A)(ii) allows a treating physician chosen from a
panel to make referrals to a specialty physician when necessary, which is how Dr. Bushman
became involved.
Once Dr. Bushman gave amputation as a possible option, this entitled Ms. Kanbi to
a second opinion regarding the proposed surgery with Dr. Willers under subdivision -
204(a)(3)(C). Then Dr. Willers became the treating physician by the parties’ agreement.
3
The Court recognizes Ms. Kanbi’s disagreement that she chose him to perform the
amputation. However, the medical records do not support her contention. Ms. Kanbi was
represented by competent counsel at the time, and she agreed to the surgery on the
scheduled date.
Dr. Hazlewood has been treating Ms. Kanbi for pain management under subdivision
-204(j).
The doctors’ roles as described under the statute guide how the Court should regard
their opinions. Section 50-6-204(H) states that “[a]ny treatment recommended by a
physician . . . selected pursuant to this subdivision (a)(3) or by referral, if applicable, shall
be presumed to be medically necessary[.]” Williams v. People Ready, Inc., 2022 TN Wrk.
Comp. App. Bd. LEXIS 23, at *7 (June 2, 2022). Moreover, more than one doctor may be
an authorized treating physician. See Johnson v. Inspire Brands d/b/a Blazin Wings. Inc.,
2022 TN Wrk. Comp. App. Bd. LEXIS 35, at *23-24 (Sept. 7, 2022) (the legislature’s use
of the term “the treating physician” in the statute does not signal the legislature’s intent for
there to be only one physician entitled to a presumption of correctness). Therefore, the
opinions of both Drs. Bushman and Willers are presumed correct regarding medical
necessity.
Dr. Bushman recently wrote that Ms. Kanbi should continue with pain management
“and/or further orthopedic physician.” These recommendations are presumed correct. Dr.
Hazlewood’s records do not mention whether she could benefit from further orthopedic
treatment. Therefore, relying on Dr. Bushman’s opinion, the Court finds Ms. Kanbi is
likely to prevail at a hearing on the merits that she is entitled to additional orthopedic
treatment.
Dr. Willers is the most appropriate choice to treat her, given that he is an orthopedic
surgeon, and he is the authorized treating physician who performed surgery and saw her
several times. Further, Dr. Willers has not referred her back to any other treating doctor.
Tenn. Code Ann. § 50-6-204(3)(E). Ms. Kanbi expressed dissatisfaction with him. The
Court understands her concern. However, she offered no legal basis for the Court to
designate any other physician.
As for Dr. Hazlewood, subdivision -204(j)(i) states that a treating physician may
refer an “employee for pain management encompassing pharmacological,
nonpharmacological and other approaches to manage chronic pain.” Dr. Hazlewood
provided this treatment and continues to do so.
However, Dr. Hazlewood also assigned maximum medical improvement from an
orthopedic standpoint and an impairment rating. As solely a pain management doctor, the
statute does not envision him completing those tasks—nor is he qualified to place an
employee at maximum medical improvement for a specialty that he does not possess.
4
Tennessee Code Annotated section 50-6-204(k)(1) states that all permanent
impairment ratings “shall be assigned by the treating physician[.]” In addition, Tennessee
Compilation Rules and Regulations 0800-02-17-.25(1)-(2) (September 2021) reads, “The
authorized treating physician is required and responsible for the employee’s maximum
medical improvement (MMI) date and providing the employee’s impairment rating for the
injury the physician is treating.” (Emphasis added). Notably, the statute and rule use
mandatory language and make no exception for when a treating physician declines to make
these critical decisions in a workers’ compensation case.
Dr. Willers wrote in July 2022 that he had nothing further to offer. Several months
have passed since then, and he did not refuse to see Ms. Kanbi again. Therefore, Kebab
Gyros shall promptly schedule an appointment with him, so that Dr. Willers may decide
if/which additional treatment is necessary. He also must determine maximum medical
improvement and Ms. Kanbi’s impairment rating.
If Dr. Willers declines to see her, to place her at maximum medical improvement,
or to provide an impairment rating, Kebab Gyros must offer a panel of orthopedists to do
so. See Limberakis v. Pro-Tech Sec., Inc., 2017 TN Wrk. Comp. App. Bd. LEXIS 53, at
*7-10 (Sept. 12, 2017) (An injured worker is entitled to reasonably necessary additional
treatment in an accepted claim at the interlocutory stage, and if the authorized treating
physician declines to treat the employee further, a panel is appropriate.).
IT IS THEREFORE ORDERED:
1. Kebab Gyros must provide additional treatment with Dr. Willers, who must
assign maximum medical improvement and an impairment rating. If he is
unwilling to see Ms. Kanbi, Kebab Gyros must offer a panel of orthopedic
specialists to perform these tasks.
2. A status hearing is set for May 15, 2023, at 9:00 a.m. Central Time. You must
dial (615) 532-9552 or (866) 943-0035 to participate. Kebab Gyros must
arrange for a Court-certified interpreter.
3. Unless interlocutory appeal of this Expedited Hearing Order is filed, compliance
with this Order must occur by seven business days of entry of this Order as
required by Tennessee Code Annotated section 50-6-239(d)(3). The Insurer or
Self-Insured Employer must submit confirmation of compliance by email to
WCCompliance.Program@tn.gov by the compliance deadline. Failure to do so
may result in a penalty assessment for non-compliance. For compliance
questions, please contact the Workers’ Compensation Compliance Unit by email
at WCCompliance.Program@tn.gov.
5
ENTERED March 20, 2023.
________________________________________
JUDGE KENNETH M. SWITZER
Court of Workers’ Compensation Claims
Appendix
Technical record:
1. Petition for Benefit Determination
2. Dispute Certification Notice, and Employer’s Additional Information
3. Status Hearing Order, February 22, 2021
4. Status Hearing Order, May 26, 2021
5. Status Hearing Order, August 31, 2021
6. Status Hearing Order, November 16, 2021
7. Status Hearing Order, February 14, 2022
8. Motion for Status Hearing
9. Motion to Compel Medical Treatment
10. Status Hearing Order, March 8, 2022
11. Motion to Compel Temporary Disability Benefits
12. Employer’s Response/Motion to Compel Dr. Willers’ Examination
13. Employee’s Response
14. Order Granting Motion to Compel
15. Status Hearing Order, May 2, 2022
16. Status Hearing Order, May 23, 2022
17. Status Hearing Order, August 8, 2022
18. Status Hearing Order, October 18, 2022
19. Motion to Withdraw
20. Employer’s Response
21. Amended Order Granting Withdrawal and Attorney’s Lien
22. Status Hearing Order, January 18, 2022
23. Hearing Request
24. Employer’s Response to Hearing Request
25. Order Setting Expedited Hearing
Evidence:
1. Declaration of Ms. Kanbi
2. Dr. Bushman’s records, 2/6/23 only
3. Dr. Hazlewood’s records
4. Dr. Willers’s records
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CERTIFICATE OF SERVICE
I certify that a copy of this Order was sent as indicated on March 20, 2023.
Name Certified Mail Email Sent to
Mail
Cecilia Kanbi, X X ahamofa@gmail.com
employee 1201 Field Oak Court
Antioch TN 37013
G. David Hatfield, X dhatfield@gdhatfieldlaw.com
employer’s attorney
_______________________________________
Penny Shrum
Clerk, Court of Workers’ Compensation Claims
WC.CourtClerk@tn.gov
7
NOTICE OF APPEAL
Tennessee Bureau of Workers’ Compensation
www.tn.gov/workforce/injuries-at-work/
wc.courtclerk@tn.gov | 1-800-332-2667
Docket No.: ________________________
State File No.: ______________________
Date of Injury: _____________________
___________________________________________________________________________
Employee
v.
___________________________________________________________________________
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):
□ Expedited Hearing Order filed on _______________ □ Motion Order filed on ___________________
□ Compensation Order filed on__________________ □ 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 Inj.: _______________
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 I 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