Mollica, Gena M. v. EHHI Holdings, Inc. DBA Advanced Home Care Management, Inc. DBA Encompass Home Health , 2019 TN WC 181 ( 2019 )


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  • 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:
    Mail
    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
    

Document Info

Docket Number: 2018-01-0702

Citation Numbers: 2019 TN WC 181

Judges: Audrey A. Headrick

Filed Date: 12/16/2019

Precedential Status: Precedential

Modified Date: 4/17/2021