The opinion
FILED
Dec 16, 2019
09:46 AM(ET)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT CHATTANOOGA
Gena N. Mollica, ) Docket No.: 2018-01-0702
Employee, )
Vv. )
EHHI Holdings, Inc. DBA Advanced )
Home Care Management, Inc. DBA ) State File No.: 66743-2017
Encompass Home Health, )
Employer, )
And )
Amerisure Mutual Ins. Company, ) Judge Audrey Headrick
Carrier. )
)
EXPEDITED HEARING ORDER FOR MEDICAL AND TEMPORARY
DISABILITY BENEFITS
Ms. Mollica requested that EHHI provide medical and temporary disability
benefits. _EHHI accepted her back injury but did not provide treatment with an
orthopedist after her treating physician left the practice. It also denied her allegation that
use of Lyrica aggravated a pre-existing mental condition. The Court convened an
Expedited Hearing on December 5, 2019, and holds Ms. Mollica is entitled to the
requested benefits.
History of Claim
Ms. Mollica underwent back surgery and afterward selected Dr. Steven Musick
from a panel of pain-management specialists. To treat ongoing back pain and
radiculopathy, Dr. Musick prescribed Gabapentin in September 2018 and cautioned Ms.
Mollica to watch for mood changes, dizziness, and grogginess or fogginess. Ms. Mollica
experienced these side-effects, so Dr. Musick replaced Gabapentin with Lyrica in
December 2018.
Ms. Mollica testified that her mental condition declined by May 2019. She
experienced memory problems, confusion, agitation, crying episodes, and the “deepest
depression [she] had ever felt.” She began having suicidal thoughts. Gay Wood, her
nurse case manager, told Ms. Mollica that Lyrica caused those symptoms in other
patients, and Ms. Mollica concluded that Lyrica caused her mental decline.
Because of the suicidal thoughts, Ms. Mollica checked herself into Valley
Behaviorial Health Services for daily out-patient therapy. There she saw Dr. Gregory
Oliver, a psychiatrist, and told him of her belief that Lyrica caused her symptoms. Ms.
Mollica discussed multiple stressors with Dr. Oliver and a social worker. During
childhood, she suffered emotional, physical, and sexual abuse. Regarding current
stressors, Ms. Mollica disclosed she had a dysfunctional relationship with her partner, a
pending divorce from her spouse,' a friend who was in a coma, and that EHHI terminated
her on July 9 because she could not work due to her condition.” Dr. Oliver diagnosed “(1)
[s]Jevere recurrent major depression without psychotic features; (2) [p]artner relational
problems; (3) [h]istory of posttraumatic stress disorder (PTSD); (4) [h]x of nonepileptic
seizures; (5) [personality disorder Cluster B Type.” During her psychiatric therapy, Ms.
Mollica continued seeing Dr. Musick for pain management.
In May 2019, Dr. Musick stated, “Lyrica could be adding into increased depressed
mood but [it] does not appear to be the only factor.” In June, Dr. Musick made a
“[p]sychiatry referral [to Dr. Aslam Sandvi] under Worker’s [sic] Compensation to
determine work relatedness and potential treatment for significant worsening depression
that started when she was on Lyrica.” Ms. Mollica had neither taken anti-depressants in
the year before the onset of her symptoms nor did she have problems from the
medications even when she did. In July, Dr. Musick took Ms. Mollica off work “due to
depression flare/aggravation from May 10 until present date and continuing secondary to
depression as a result of Lyrica use.” Ms. Mollica informed Dr. Musick she attempted to
suicide in May, and he noted that Lyrica can cause significant problems with depression
and suicidal risk. As to Dr. Musick’s referral, EHHI neither authorized treatment with
Dr. Sandvi nor provided a panel.
In October, Dr. Musick responded to a causation letter from Ms. Mollica’s
counsel. When asked if the employment contributed more than fifty percent in
aggravating a pre-existing condition, Dr. Musick checked “yes” and wrote, “[b]ut still
need psychiatry to evaluate & state for certainty.” Dr. Musick’s responded similarly
when asked about whether the employment contributed more than fifty percent to the
need for psychological/psychiatric treatment. Specifically, he wrote that he was,
“[r]jecommending psychiatry evaluation [regarding if] Lyrica [is] causing significant
' Ms. Mollica and her spouse separated four years before their divorce was final in July 2019.
* Ms. Mollica paid out-of-pocket for psychiatric medications and medication evaluations after she lost her
health insurance following her termination.
depression aggravation & treatment if so.” As of November, Dr. Musick continued to
recommend a psychiatric evaluation.
Regarding her mental health, Ms. Mollica received counseling from 2009 through
2014.° Past diagnoses included PTSD, dysthymia (persistent, low-grade depression),
non-epileptic, psychogenic seizures, and a suicide attempt. During the hearing, Ms.
Mollica admitted to threatening suicide once previously.
Aside from Ms. Mollica’s mental-health treatment, she testified she has not
received any orthopedic treatment for her back since October 2019. Dr.
Venkatanarayanan Ganapathy, an authorized treating physician, left his practice and
referred Ms. Mollica to treat with his colleague, Dr. Adam Caputo. EHHI did not
authorize treatment with Dr. Caputo or provide a panel.
Ms. Mollica asked the Court to order EHHI to authorize the referral to Dr. Sandvi,
a psychiatrist; reimburse out-of-pocket expenses for psychiatric medications and
medication evaluations; authorize back treatment with orthopedist, Dr. Caputo; pay past
and ongoing temporary disability benefits; and assess a twenty-five percent penalty for
non-payment of temporary disability benefits. EHHI disputed Ms. Mollica’s requests and
argued that Lyrica did not cause her mental condition. It contended that her mental
condition is a continuation of her previous mental conditions stemming from childhood
traumas and dysfunctional interpersonal relationships.
Findings of Fact and Conclusions of Law
Standard Applied
To prevail at an expedited hearing, Ms. Mollica must show a likelihood of
prevailing at a hearing on the merits. See Tenn. Code Ann. § 50-6-239(d)(1) (2019). The
Court holds she did.
Medical Benefits
To receive medical benefits, Ms. Mollica must show, to a reasonable degree of
medical certainty, that the employment “contributed more than fifty percent (50%) in
causing the .. . disablement or need for medical treatment, considering all causes.” Tenn.
Code Ann. § 50-6-102(14). Further, an aggravation of a pre-existing condition is
compensable only if “it can be shown to a reasonable degree of medical certainty that the
aggravation arose primarily out of and in the course and scope of employment.” /d.
* Ms. Mollica also saw a therapist twice as a child.
Regarding her request for the psychiatric referral, Dr. Musick, her panel physician,
referred Ms. Mollica to Dr. Sandvi. When the treating physician refers the employee to a
specialist physician, the employer must provide a panel of specialists within three
business days unless it accepts the referral. Tenn. Code Ann. § 50-6-204(a). EHHI did
not provide a panel, and the Court holds that it must schedule and authorize an evaluation
with Dr. Sandvi.
Likewise, regarding her request for the orthopedic referral, Dr. Ganapathy, an
authorized treating physician, referred Ms. Mollica to Dr. Caputo. Since EHHI did not
provide a panel, the Court holds that it must schedule and authorize treatment with Dr.
Caputo.
As for Ms. Mollica’s out-of-pocket medical expenses, the Court finds the bills and
receipts reasonable, necessary, and related to the aggravation of her pre-existing mental
condition.
Temporary Disability Benefits
Turning now to temporary disability benefits, Ms. Mollica must prove (1) she
became disabled from working due to a compensable injury; (2) a causal connection
between the injury and her inability to work; and (3) the duration of her disability. Jones
v. Crencor Leasing and Sales, TN Wrk. Comp. App. Bd. LEXIS 48, at *7 (Dec. 11,
2015).
Here, Dr. Musick took Ms. Mollica off work from May 10 forward due to an
aggravation of her depression from Lyrica use. He causally related Ms. Mollica’s
inability to work to her mental condition and Lyrica usage but deferred to Dr. Sandvi, a
psychiatrist, to confirm his opinion. As a panel physician, Dr. Musick’s opinions
regarding causation “shall be presumed correct but this presumption shall be rebuttable
by a preponderance of the evidence.” Tenn. Code Ann. § 50-6-102 (14)(E). The
psychological records that EHHI submitted from 2009 to the present, as well as Ms.
Mollica’s acknowledgement of past psychological problems, do not rebut Dr. Musick’s
opinion. Her unrebutted testimony is that she did not receive counseling from 2014 until
she sought treatment at Valley in May 2019, and she did not take antidepressants after
January 2018 until May 2019.
The Court finds Ms. Mollica credible, and the employee’s lay testimony is
relevant to determine causation. Tennessee law has long held that medical testimony is
not to be “read and evaluated in a vacuum,” and medical proof “must be considered in
conjunction with the lay testimony of the employee as to how the injury occurred and the
employee’s subsequent condition.” Thomas v. Aetna Life & Cas. Co., 812 S.W.2d 278,
283 (Tenn. 1991). Before May 2019, Ms. Mollica worked full-time for EHHI without
taking antidepressants or counseling. After taking Lyrica for several months, Ms.
4
Mollica checked herself into daily outpatient therapy due to her suicidal thoughts. When
considering Dr. Musick’s opinion and Ms. Mollica’s testimony, the Court holds that she
provided sufficient evidence at this interlocutory stage to establish entitlement to
temporary total disability benefits.
Non-Payment or Late Payment of Temporary Disability Benefits
Ms. Mollica requested that the Court assess a twenty-five percent penalty for
EHHI’s non-payment of temporary disability benefits. Tennessee Code Annotated
section 50-6-205(b)(3) authorizes a workers’ compensation judge to assess a twenty-five-
percent penalty when an employer “fails to pay, or untimely pays, temporary disability
benefits within twenty (20) days after the employer has knowledge of any disability that
would qualify for benefits under this chapter.” However, this section also provides EHHI
the opportunity to argue why the Court should not issue a penalty. Therefore, EHHI
shall respond on or before Friday, December 27, 2019, stating why the Court should
not assess this civil penalty for nonpayment of past-due temporary disability
benefits.
IT IS, THEREFORE, ORDERED as follows:
1. EHHI shall schedule and authorize Ms. Mollica to see Dr. Sandvi for a psychiatric
evaluation and treatment and to see Dr. Caputo for orthopedic treatment. Further,
EHHI shall reimburse Ms. Mollica for out-of-pocket expenses incurred for
treatment of her mental condition from May 2019 to the present.
2. EHHI shall pay past-due temporary total disability benefits at the agreed weekly
compensation rate of $868.28 in the lump-sum amount of $27,412.84."
3. EHHI shall continue to pay to temporary total disability benefits until Ms. Mollica
is no longer eligible for those benefits.
4. This case is set for a Status Hearing on Tuesday, February 4, 2020, at 10:00 a.m.
Eastern Time. You must call 423-634-0164 or toll-free at 855-383-0001 to
participate.
5. Unless interlocutory appeal of the Expedited Hearing Order is filed, compliance
with this Order must occur no later than seven business days from the date of its
entry under Tennessee Code Annotated section 50-6-239(d)(3). Amerisure must
submit confirmation of compliance with this Order to the Bureau by email to
WCCompliance.Program@tn.gov no later than the seventh business day after
entry of this Order. Failure to submit the necessary confirmation within the period
“The parties stipulated that Ms. Mollica’s average weekly wage is $1,302.37.
5
of compliance may result in a penalty assessment for non-compliance. For
questions regarding compliance, please contact the Workers’ Compensation
Compliance Unit via email at WCCompliance.Program@tn.gov.
ENTERED December 16, 2019.
rhs , /\ nN /
Cus Lonteod i C4 \
Judge Audrey A.Headrick
Court of Workers’ Compensation Claims
APPENDIX
Exhibits:
1. Wage Statement
Change of Employee Information Form
Affidavit of Gena N. Mollica
Correspondence from Dr. Ahmed Ibrahim
Medical records:
a. Dr. Steven Musick
b. Dr. Venkatanarayanan Ganapathy
6. Medical records:
a. Dr. Oliver Gregory
b. Wendy K. Bovell, LCSW
c. Aspire Health Alliance
d. North River Associates
7. Text exchange between Ms. Mollica and Ms. Wood
8. Walgreen handout on Lyrica
9. Tri-State Psychiatry receipts
10. Walmart Pharmacy receipts
ye
Technical record:
Petition for Benefit Determination
Dispute Certification Notice
Request for Expedited Hearing
Motion to Continue Expedited Hearing
Brief Opposing Employer’s Motion to Continue Expedited Hearing and
Supporting Request for Expedited Hearing
Employee’s Notice of Filing of Amended List of Witnesses
Notice of Filing of Medical Records
Notice of Filing of Supplemented Medical Records
Employee’s Notice of Filing of List of Exhibits
10. Employee’s Notice of Filing of Medical Record Certification,
11.Order Denying Motion to Continue
12.Employer’s Plain and Concise Statement and List of Witnesses and Exhibits to be
Introduced at the Expedited Hearing
13.Motion to Compel Employee’s Discovery Responses and Second Motion to
Continue Expedited Hearing
14.Order Granting Motion to Compel Discovery Responses and Second Motion to
Continue Expedited Hearing
15._Employee’s Notice of Service of Discovery Responses
16. Motion to Reconsider and/or Amend Order Continuing the Expedited Hearing
17.Employee’s Notice of Filing of Competency Statement from Dr. Gina Delagrado,
Ph.D.
ee ee
oO NID
18.Employee’s Supplement to Notice of Filing of Competency Statement from Dr.
Gina Delagrado, Ph.D.
19.Order Granting, in Part, Motion to Reconsider and/or Amend Order Continuing
the Expedited Hearing
20. Notice of Filing of Supplemented Medical Records of Dr. Steven Musick
21. Notice of Filing of Medical Records
22. Notice of Filing of Additional Medical Records
CERTIFICATE OF SERVICE
I certify that a copy of this Expedited Hearing Order was sent as indicated on
December 16, 2019.
Name Certified Email | Service sent to:
Carmen Y. Ware, Xx cyware@thewarelawfirm.com
Employee’s Attorney
G. Graham Thompson, Xx gthompson@cskl.law
Employer’s Attorney
Cu wy | Nihil
Penny Shrum, Clerk of Court |
Court of Workers’ Compensation Claims
WC.CourtClerk@tn.gov
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: “Expedited Hearing 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
concerning 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.
Tennessee Division of Workers’ Compensation
Www ti pov/labor-wid/werompshtml
we.courtclerk@tn.gov
1-800-332-2667
Docket #:
State File #/YR:
Employee
Vv.
Employer
Notice
Notice is given that
[List name(s) of all appealing party(ies) on separate sheet if necessary]
appeals the order(s) of the Court of Workers’ Compensation Claims at
to the Workers’ Compensation Appeals
Board. [List the date(s) the order(s) was filed in the court clerk's office]
Judge
Statement of the Issues
Provide a short and plain statement of the Issues on appeal or basis for relief on appeal;
Additional Information
Type of Case [Check the most appropriate item]
( Temporary disability benefits
CO Medical benefits for current injury
C1 Medical benefits under prior order issued by the Court
List of Parties
Appellant (Requesting Party):
Address:
Party’s Phone: Email:
At Hearing: DEmployer Employee
Attorney's Name: BPR#:
Attorney's Address: Phone:
Attomey’s City, State & Zip code:
Attorney's Email:
" Attach an additional sheet for each additional Appellant *
18-1099 rev. 10/18 Page 1 of 2 RDA 11082
Employee Name: SFA: DOK:
Appellee(s)
Appellee (Opposing Party): At Hearing: Employer DEmplayee
Appellee’s Address:
Appellee’s Phone: ; Email:
Attorney's Name: BPR#: |
Attorney’s Address: Phone:
Attorney’s City, State & Zip code:
Attorney’s Email:
* Attach an odditional sheet for each additional Appellee *
CERTIFICATE OF SERVICE |
1, , certify that | have forwarded a true and exact copy of this
Expedited Hearing Notice of Appeal by First Class, United States Mall, postage prepaid, to all parties
and/or thelr attorneys in this case in accordance with Rule 0800-02-22.01(2) of the Tennessee Rules
of Board of Workers’ Compensation Appeals on this the day of ,20__
[Signature of appellant or attorney for appellant]
LB-1099 rev. 10/18 Page 2 of 2 RDA 11082
Tennessee Bureau of Workers' Compensation
220 Franch Landing Drive, I-B
Nashiville, TN 37243-1002
800-332-2667
AFFIDAVIT OF INDIGENCY
iF , having been duly swom according to law, make oath that
because of my poverty, | am undble to bear the costs of this appeal and request that the filing fee to appeal be
waived. The following facts support my poverty.
1. Full Name: 2. Address:
3. Telephone Number: 4. Date of Birth:
5. Names and Ages of All Dependents:
Relationship;
Relationship:
Relationship:
Relationship:
6. | am employed by:
My employer's address Is:
My employer's phone number is:
7. My present monthly household income, after federal income and social security taxes are deducted, is:
$
8. | receive or expect to receive money fram the following sources;
AFDC $ per month beginning
Ssl $ per month beginning
Retirement $ per month beginning
Disabllity $ per month beginning
Unemployment $ per month beginning.
Worker's Comp.$ per month beginning
Other $ per month beginning
LB-1108 (REV 11/15) RDA 11082
9. My expenses are:
Rent/House Payment $ permonth Medical/Dental $ per month
Groceries $ per month Telephone $ per month
Electricity $ per month School Supplies $ per month
Water $ per month Clothing $ per month
Gas $ per month Child Care $ per month
Transportation $ per month Child Support $__ _ per month
Car $ per month
Other $ per manth (describe: }
10. Assets:
Automobile $ (FMV)
Checking/Savings Acct. $
House $ (FMV)
Other $ e Describe:
11. My debts are:
Amount Owed To Whom
I hereby declare under the penalty of perjury that the foregoing answers are true, correct, and complete
and that | am financially unable to pay the costs of this appeal.
APPELLANT
Sworn and subscribed before me, a notary public, this
day of ,20
NOTARY PUBLIC
My Commission Expires:
LB-1108 (REV 11/15) RDA 11082