Mollica, Gena N. v. EHHI Holdings, Inc.

FILED

Apr 21, 2020

10:33 AM(CT)

TENNESSEE

WORKERS' COMPENSATION

APPEALS BOARD

TENNESSEE BUREAU OF WORKERS’ COMPENSATION

WORKERS’ COMPENSATION APPEALS BOARD

Gena N. Mollica ) Docket No. 2018-01-0702

)

v. ) State File No. 66743-2017

)

EHHI Holdings, Inc., d/b/a Advanced )

Home Care Management, Inc., d/b/a )

Encompass Home Health, et al. )

)

)

Appeal from the Court of Workers’ ) Heard March 24, 2020, at Knoxville

Compensation Claims )

Audrey A. Headrick, Judge )

Affirmed in Part, Modified in Part, Reversed in Part, and Remanded

In this interlocutory appeal, the employee alleged she suffered an aggravation of a pre-

existing mental condition as a result of medication she was taking to treat a compensable

work-related physical injury. The employer denied that a compensable aggravation

occurred and refused to authorize a referral to a psychiatrist made by the employee’s

authorized physician. The employer also failed to authorize a referral to an orthopedic

specialist made by the employee’s treating orthopedist. Following an expedited hearing,

the trial court determined the employee had come forward with sufficient evidence to

show she would likely prevail at trial in establishing her entitlement to benefits. The

court ordered the employer to authorize the psychiatrist referral, to authorize the

orthopedist referral, to pay temporary disability benefits, and to reimburse the employee’s

out-of-pocket medical expenses. The employer has appealed. We affirm the trial court’s

determinations to order the employer to authorize causally-related treatment with the

physicians to whom the employee was referred. We modify the trial court’s order for

temporary disability benefits, and we reverse the portion of the court’s order compelling

the employer to pay the employee’s out-of-pocket medical expenses. Finally, we find the

employee’s argument that the appeal is frivolous to be without merit, and we remand the

case.

Judge Pele I. Godkin delivered the opinion of the Appeals Board in which Presiding

Judge Timothy W. Conner and Judge David F. Hensley joined.

G. Graham Thompson, Chattanooga, Tennessee, for the employer-appellant, EHHI

Holdings, Inc.

1

Carmen Y. Ware, Chattanooga, Tennessee, for the employee-appellee, Gena N. Mollica

Factual and Procedural Background

On August 28, 2017, Gena Mollica (“Employee”) injured her back while working

as a home health aide for EHHI Holdings, Inc. (“Employer”). The injury was accepted as

compensable, and Employer initiated benefits, including medical treatment. Employee

underwent a lumbar discectomy with Dr. Barry Vaughn, Employee’s authorized

physician. Dr. Vaughn placed Employee at maximum medical improvement on July 24,

2018, and imposed permanent restrictions of no lifting over 20 pounds frequently, 40

pounds occasionally, and no repetitive bending or squatting. Upon release, Dr. Vaughn

referred Employee to pain management for treatment of residual symptoms associated

with her back injury. Employer provided a panel of pain management physicians from

which Employee selected Dr. Steven Musick.

Employee first saw Dr. Musick on August 29, 2018. The record of that visit

reflects that Dr. Musick continued the restrictions imposed by Dr. Vaughn and prescribed

Gabapentin for Employee’s ongoing pain and radicular symptoms. At a September 26,

2019 appointment, Employee reported experiencing increased pain, and Dr. Musick

ordered an MRI of Employee’s lumbar spine to consider additional treatment options due

to her persistent radiculitis. Dr. Musick recommended Employee continue taking the

Gabapentin to see if it improved her radicular complaints. Following the MRI, Employee

returned to Dr. Musick on December 3, 2018, reporting that she had stopped taking

Gabapentin because it was making her forgetful. According to Dr. Musick, MRI images

revealed a “recurrent left paracentral disc extrusion” compressing the left L5 nerve root.

Dr. Musick replaced Gabapentin with Lyrica and recommended a second opinion with an

orthopedic surgeon to discuss additional surgical options.

Employee saw Dr. Venkatanarayanan Ganapathy on January 31, 2019, for a

surgical evaluation. Dr. Ganapathy noted that the most recent MRI showed what

appeared to be an L4-L5 left-sided lumbar laminectomy, adding that he was able to

“appreciate scarring with no definitive recurrent disc [herniation] based on the

postcontrast study.” He also documented disc degeneration including the loss of disc

height at L5-S1. Dr. Ganapathy recommended additional testing, an increase in the

dosage of Lyrica, physical therapy, and dry needling. 1 He also reported that he did “not

feel the patient [was] at maximum medical capacity.” At a follow-up visit with Dr.

Musick in March, the physician documented that Employee’s increased Lyrica dosage

had resulted in the development of “foggy sensorium.” Employee continued to work for

1

Dry needling, also known as intramuscular needling, is a therapy technique in which thin filaments are

inserted into trigger-point musculature in an effort to relieve pain. Int’l J. Sports Phys. Ther., 2015 Jun;

10(3): 402-18, https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4458928/ (last visited Apr. 17, 2020).

2

Employer from home part-time as a triage nurse, and her work restrictions remained in

place.

In late April or early May 2019, Employee checked into Parkridge Valley

(“Valley”) for out-patient mental health treatment where she was seen by Dr. Gregory

Oliver, a psychiatrist. 2 Employee also continued treating with Dr. Musick. The record of

Employee’s May 13 visit with Dr. Musick reflected that she had recently become

severely depressed and had been getting worse for months. Dr. Musick reported that

Employee “does not believe Lyrica has caused this but is wondering if [Lyrica] is adding

[to] it.” Employee advised Dr. Musick that she had begun treatment at Valley and

reported that she continued to work as a triage nurse part-time from home.

Employee next saw Dr. Musick on June 7 and described continued depression that,

according to Dr. Musick’s report, “became an issue while she was on Lyrica.”

Employee reported she had discontinued Lyrica and had begun an intensive outpatient

program at Valley. She requested Dr. Musick refer her to a psychiatrist through workers’

compensation due to her worsening depression that she attributed to her Lyrica usage.

Dr. Musick referred Employee to Dr. Aslam Sandvi to determine “work relatedness” and

“potential treatment for significant worsening depression that started when [Employee]

was on Lyrica.” He also encouraged Employee to continue her outpatient treatment

program under her personal health insurance.

In a July 31 report, Dr. Musick noted that his previous referral for a psychiatry

evaluation had not been approved. He took Employee off of work retroactively to May

10, 2019, due to her “depression flare/aggravation from May until present date and

continuing secondary to depression as a result of Lyrica use.” Dr. Musick next saw

Employee on September 11 and noted her “[s]ignificant decompensation with increased

depression, likely associated with Lyrica use.” On October 22, Dr. Musick responded to

a causation letter sent by Employee. Asked whether the employment contributed more

than 50% in causing a new mental injury, Dr. Musick responded, “[a]s stated previously

in my note from 6/7/19 – I continue to recommend psychiatry to evaluate [and]

recommend if Lyrica caused psychological deterioration [and] treatment if so under

Workers[’] Compensation.” (Underline in original.) When asked if the employment

contributed more than 50% in causing an aggravation of a pre-existing condition, Dr.

Musick marked “yes,” referred to his previous response, and commented, “[b]ut still need

psychiatry to evaluate [and] state for certainty.” Employer declined to authorize the

referral or provide a panel of psychiatrists, asserting that neither a new mental injury nor

any aggravation of a pre-existing condition was causally related to Employee’s work.

2

Because the records of Employee’s treatment at Valley are not included in the record, we cannot

determine the exact date of her admission. Employee testified that she believed her admission occurred at

the end of April or beginning of May. Employer alleged Employee did not report for her shift on May 5,

2019, and that it later learned she had sought mental health treatment during that time.

3

In October 2019, Dr. Ganapathy, who was still treating Employee for her ongoing

orthopedic complaints, left his medical practice. Prior to leaving, he referred Employee

to Dr. Adam Caputo for continued medical treatment for her back condition. Employer

did not offer a new panel or authorize treatment with Dr. Caputo.

Following the filing of a petition for benefits, Employee requested an expedited

hearing in which she sought an order requiring Employer to: (1) authorize the referral to

the psychiatrist, Dr. Sandvi; (2) authorize the referral to the orthopedist, Dr. Caputo; (3)

reimburse Employee for her out-of-pocket expenses for psychiatric medication and

evaluations that she sought on her own; and (4) pay past and ongoing temporary

disability benefits. In addition, Employee asked the court to assess a twenty-five percent

penalty against Employer for non-payment of temporary disability benefits. Following

the expedited hearing, the trial court concluded Employee had come forward with

sufficient evidence to indicate she was likely to prevail at trial regarding the provision of

a psychiatric evaluation with Dr. Sandvi, orthopedic treatment with Dr. Caputo,

reimbursement of medical expenses, and payment of past and ongoing temporary

disability benefits. The trial court stated it would address Employee’s request for a

twenty-five percent penalty at a later date. Employer has appealed.

Standard of Review

The standard we apply in reviewing a trial court’s decision presumes that the

court’s factual findings are correct unless the preponderance of the evidence is otherwise.

See Tenn. Code Ann. § 50-6-239(c)(7) (2019). When the trial judge has had the

opportunity to observe a witness’s demeanor and to hear in-court testimony, we give

considerable deference to factual findings made by the trial court. Madden v. Holland

Grp. of Tenn., Inc., 277 S.W.3d 896, 898 (Tenn. 2009). However, “[n]o similar

deference need be afforded the trial court’s findings based upon documentary evidence.”

Goodman v. Schwarz Paper Co., No. W2016-02594-SC-R3-WC, 2018 Tenn. LEXIS 8, at

*6 (Tenn. Workers’ Comp. Panel Jan. 18, 2018). Similarly, the interpretation and

application of statutes and regulations are questions of law that are reviewed de novo with

no presumption of correctness afforded the trial court’s conclusions. See Mansell v.

Bridgestone Firestone N. Am. Tire, LLC, 417 S.W.3d 393, 399 (Tenn. 2013). We are

also mindful of our obligation to construe the workers’ compensation statutes “fairly,

impartially, and in accordance with basic principles of statutory construction” and in a

way that does not favor either the employee or the employer. Tenn. Code Ann. § 50-6-

116 (2019).

Analysis

Employer identified five issues on appeal, which we have combined and restated

as follows: (1) whether the trial court erred in requiring Employer to authorize the referral

to Dr. Sandvi; (2) whether the trial court erred in requiring Employer to authorize the

4

referral to Dr. Caputo; (3) whether the trial court erred in requiring Employer to

reimburse Employee for past medical expenses related to her alleged mental condition;

and (4) whether the trial court erred in ordering payment of past and ongoing temporary

disability benefits. In addition, Employee presents two issues: (1) whether the trial court

should have assessed a penalty against Employer for its failure to timely pay temporary

disability benefits and (2) whether Employer’s appeal is frivolous.

Psychiatric Referral

Employer disputes Employee’s assertion that she suffered a new work-related

mental injury or aggravation of a pre-existing mental condition. Employer does not

dispute that Employee suffers from the symptoms she alleges, but it contends her

condition is pre-existing and was caused by events in her personal life rather than the

medication prescribed for her work-related injury. In contrast, Employee maintains that

her underlying mental condition was aggravated by her use of Lyrica, resulting in a

compensable aggravation of her pre-existing condition.

It is undisputed that Dr. Musick referred Employee to Dr. Sandvi for a psychiatric

evaluation that he believes is necessary as a result of Employee’s Lyrica use. Tennessee

Code Annotated section 50-6-204(a)(3)(A)(ii) contemplates that, when appropriate, a

“treating physician selected in accordance with this subdivision (a)(3)(A) shall make

referrals to a specialist physician, surgeon, or chiropractor and immediately notify the

employer.” When such a referral is made, “[t]he employer shall be deemed to have

accepted the referral, unless the employer, within three (3) business days, provides the

employee a panel of three (3) or more independent reputable physicians, surgeons,

chiropractors or specialty practice groups.” Tenn. Code Ann. § 50-6-204(a)(3)(A)(ii).

As a result, in the present case, the burden of proof was on Employer to show that Dr.

Musick’s referral was not medically appropriate as a result of the compensable physical

injury. Moreover, any treatment recommended by a physician chosen from a panel or by

referral is presumed to be medically necessary. Tenn. Code Ann. § 50-6-204(a)(3)(H).

While Employer does not dispute that Dr. Musick is the authorized physician or

that he made a referral for a psychiatric evaluation that he believes may be work related,

it does dispute whether Employee’s current complaints of a mental injury are causally

related to her employment. In support of its position, Employer relies on Employee’s

history of mental health treatment and the fact that, during the relevant time period,

Employee had numerous traumatic events occur in her life. However, Employer has

offered no opinion other than its own that the need for the psychiatric referral is unrelated

to Employee’s work. As we have previously stated, “parties and their lawyers cannot

rely solely on their own medical interpretations of the evidence to successfully support

their arguments.” Lurz v. International Paper Co., No. 2015-02-0462, 2018 TN Wrk.

Comp. App. Bd. LEXIS 8, at *17 (Tenn. Workers’ Comp. App. Bd. Feb. 14, 2018).

Employer’s interpretation of Employee’s prior treatment records and its belief regarding

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the cause of her current mental complaints, absent supporting expert medical proof, are

not sufficient to overcome the trial court’s determination of the appropriateness of Dr.

Musick’s referral to Dr. Sandvi for psychiatric evaluation and treatment. Accordingly,

the evidence does not preponderate against the trial court’s determination to order

Employer to authorize the referral to Dr. Sandvi.

Orthopedic Referral

Employer also asserts the trial court erred in ordering Employer to authorize the

referral by Dr. Ganapathy to Dr. Caputo for orthopedic treatment. Yet, Employer has

provided no medical proof that contradicts Dr. Ganapathy’s opinions or

recommendations and has offered no rationale or legal argument on appeal to explain

why it refused to authorize the referral. Instead, Employer presents a single statement

concerning the referral, arguing that any causation opinion of Dr. Caputo “would not be

entitled to a presumption of correctness under [Tennessee Code Annotated § 50-6-

102(14)(E)].”

As discussed above, upon the referral from Dr. Ganapathy, Employer had three

business days to provide Employee with a panel of providers or it would be deemed to

have accepted the referral. Tenn. Code Ann. § 50-6-204(a)(3)(A)(ii). It is undisputed

that Dr. Ganapathy was the authorized physician for Employee’s compensable back

injury and that Dr. Ganapathy left his practice in October 2019. In a medical note of

October 8, 2019, Dr. Ganapathy referred Employee to Dr. Caputo for continuing medical

treatment. At the expedited hearing, Employee testified that she had not seen an

orthopedic specialist since October 2019 because Employer did not approve medical

treatment with Dr. Caputo. The preponderance of the proof supports the trial court’s

determination to order Employer to authorize the referral to Dr. Caputo.

Out-of-Pocket Medical Expenses

Next, based on Employer’s assertion that the aggravation of Employee’s pre-

existing mental condition is not work related, Employer asserts the trial court erred in

requiring it to reimburse medical expenses incurred by Employee for her psychiatric

evaluation and treatment. Employer additionally contends that Employee sought

unauthorized treatment from Valley without advising it of her need for medical care. As

a result, Employer insists the treatment was unauthorized.

Employee has provided certain receipts reflecting her payments for some medical

care and medications. However, she has not provided any medical records associated

with those receipts or any expert medical opinion indicating these expenses were

reasonable, necessary, or causally related to her work injury. It is impossible to tell, other

than with respect to the receipts for medication, what treatment was received. Dr.

Musick, the only physician to offer a causation opinion regarding Employee’s psychiatric

6

complaints, indicated that the expert opinion of a psychiatrist was needed to address

causation. In addition, Dr. Musick encouraged Employee to continue with her outpatient

program at Valley under her personal health insurance, which implies he was offering no

opinion on the reasonableness and necessity of that treatment as it relates to her alleged

work injury.

The trial court concluded that the medical expenses Employee incurred and paid

for her alleged mental injury were reasonable, necessary, and causally related to the

aggravation of her pre-existing mental condition. However, there is no proof in the

record, other than Employee’s testimony, that the medical expenses Employee presented

for reimbursement were incurred as a result of her compensable work injury or that the

expenses were reasonable and necessary. Thus, we reverse the portion of the trial court’s

order requiring Employer to reimburse Employee’s out-of-pocket medical expenses.

Temporary Disability

To qualify for temporary total disability benefits, an employee must establish: (1)

that he or she became disabled from working due to a compensable injury; (2) that there

is a causal connection between the injury and the inability to work; and (3) the duration

of the period of disability. Jones v. Crencor Leasing and Sales, No. 2015-06-0332, 2015

TN Wrk. Comp. App. Bd. LEXIS 48, at *7 (Tenn. Workers’ Comp. App. Bd. Dec. 11,

2015) (citing Simpson v. Satterfield, 564 S.W.2d 953, 955 (Tenn. 1978)). An employee’s

entitlement to temporary total disability benefits ends when the employee either reaches

maximum medical improvement or is able to return to work. See Simpson, 564 S.W.2d at

955 (“Temporary total disability benefits are terminated either by the ability to return to

work or attainment of maximum recovery.”).

In an office note dated May 13, 2019, Dr. Musick noted that Employee continued

to work as a triage nurse part-time from home. In his June 7, 2019 note, however, he

stated that Employee had “not been working recently with her depression issues.” A

Change of Employee Information Form, electronically signed by Employee’s supervisor,

reflected Employee’s last day worked was May 5, 2019, and her termination date was

July 9, 2019. On July 16, 2019, Dr. Ahmed Ibrahim, the psychiatrist Employee saw on

her own through Valley, provided correspondence indicating that Employee could

“resume [a] full time schedule beginning on 8/2/19.” Subsequently, on July 31, 2019, Dr.

Musick took Employee off work retroactively “due to depression flare/aggravation from

May 10 until present date and continuing secondary to depression as [a] result of Lyrica

use.” On September 11, Dr. Musick reported that Employee was looking for work but

having difficulty finding work due to her current restrictions.

The trial court ordered Employer to pay temporary disability benefits from May

10, 2019, the date Dr. Musick indicated Employee’s most recent period of temporary

total disability began, through the date of the trial court’s order and ongoing until

7

Employee is no longer eligible for benefits. However, in addition to Dr. Musick’s

September 11 medical note, Employee testified that she sought employment with three

companies but was advised they were unable to accommodate her work restrictions or her

need to attend medical appointments, both of which were related to her back injury.

Moreover, counsel for Employee acknowledged during the expedited hearing that “Dr.

Musick’s notes do indicate that . . . [Employee] can resume work. She can return to work

with her current restrictions.” When an employee “becomes able to work at any

employment permitted by the nature of his [or her] injuries, temporary total disability

ends at that time.” Anderson v. Dean Truck Line, 682 S.W.2d 900, 903 (Tenn. 1984).

Considering the record in its entirety, we conclude there is sufficient evidence to

support the trial court’s order regarding the payment of past temporary total disability

benefits. However, the evidence is not presently sufficient to establish the

appropriateness of on-going temporary disability benefits. We therefore affirm the trial

court’s order for payment of past temporary total disability benefits from May 10, 2019

through September 11, 2019, but we vacate the order for any on-going temporary total

disability benefits after September 11, 2019.

Penalty/Frivolous Appeal

Employee has requested that Employer be required to pay a twenty-five percent

penalty for the late or non-payment of temporary disability benefits. The trial court

stated that it would address that issue at a later time. Because the trial court did not rule

on Employee’s request, we decline to address it. See Keyes v. Bridgestone Ams., No.

2016-06-2007, 2017 TN Wrk. Comp. App. Bd. LEXIS 33, at *7 (Tenn. Workers’ Comp.

App. Bd. May, 18, 2017) (“issues not presented to and decided by the trial court will not

be considered by an appellate court”); Cartwright v. Jackson Capital Partners, Ltd.

P’ship, 478 S.W.3d 596, 614 (Tenn. Ct. App. 2015) (“[A]ppellate courts do not sit as

self-directed boards of legal inquiry and research, but essentially as arbiters of legal

questions presented and argued by the parties before them.”).

Finally, we find no merit in Employee’s request that this appeal be deemed

frivolous.

Conclusion

Based on the foregoing, we affirm the trial court’s order requiring Employer to

authorize the referral to Dr. Sandvi and the referral to Dr. Caputo. We reverse the order

to the extent it requires Employer to reimburse Employee for out-of-pocket medical

expenses, and we modify the order for payment of temporary disability benefits as stated

above. The case is remanded, and costs are taxed to Employer.

8

TENNESSEE BUREAU OF WORKERS’ COMPENSATION

WORKERS’ COMPENSATION APPEALS BOARD

Gena N. Mollica ) Docket No. 2018-01-0702

)

v. ) State File No. 66743-2017

)

EHHI Holdings, Inc., d/b/a Advanced )

Home Care Management, Inc., d/b/a )

Encompass Home Health, et al. )

)

)

Appeal from the Court of Workers’ ) Heard March 24, 2020, at Knoxville

Compensation Claims )

Audrey A. Headrick, Judge )

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the Appeals Board’s decision in the referenced

case was sent to the following recipients by the following methods of service on this the 21st day

of April, 2020.

Name Certified First Class Via Via Sent to:

Mail Mail Fax Email

Carmen Y. Ware X cyware@thewarelawfirm.com

G. Graham Thompson X gthompson@cskl.law

Audrey A. Headrick, Judge X Via Electronic Mail

Kenneth M. Switzer, Chief Judge X Via Electronic Mail

Penny Shrum, Clerk, Court of X penny.patterson-shrum@tn.gov

Workers’ Compensation Claims

Olivia Yearwood

Clerk, Workers’ Compensation Appeals Board

220 French Landing Dr., Ste. 1-B

Nashville, TN 37243

Telephone: 615-253-1606

Electronic Mail: WCAppeals.Clerk@tn.gov