                                                                                     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,                           )
v.                                             )
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 20 18 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.



                                              1
       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, 1 a friend who was in a coma, and that EHHI terminated
her on July 9 because she could not work due to her condition. 2 Dr. Oliver diagnosed "(1)
[s]evere 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) [p]ersonality disorder Cluster B Type." During her psychiatric therapy, Ms.
Mollica continued seeing Dr. Musick for pain management.

        In May 20 19, 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 ofLyrica 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]ecommending psychiatry evaluation [regarding if] Lyrica [is] causing significant

1
 Ms. Mollica and her spouse separated four years before their divorce was final in July 2019.
2
 Ms. Mollica paid out-of-pocket for psychiatric medications and medication evaluations after she lost her
health insurance following her termination.

                                                    2
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
         3
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.



3
    Ms. Mollica also saw a therapist twice as a child.

                                                         3
       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 i~ury; (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 20 19, 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 ofher 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. 4

    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

4
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.




                                6
                                     APPENDIX

Exhibits:
   1. Wage Statement
   2. Change of Employee Information Form
   3. Affidavit of Gena N. Mollica
   4. Correspondence from Dr. Ahmed Ibrahim
   5. 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

Technical record:
   1. Petition for Benefit Determination
   2. Dispute Certification Notice
   3. Request for Expedited Hearing
   4. Motion to Continue Expedited Hearing
   5. Brief Opposing Employer's Motion to Continue Expedited Hearing and
       Supporting Request for Expedited Hearing
   6. Employee's Notice of Filing of Amended List of Witnesses
   7. Notice ofFiling of Medical Records
   8. Notice ofFiling of Supplemented Medical Records
   9. 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.

                                          7
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 ofF iling of Medical Records
22. Notice of Filing of Additional Medical Records




                                     8
                           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,                          X       cyware@thewarelawfirm.com
Employee's Attorney
G. Graham Thompson,                      X       gthompson@cskl.law
Employer's Attorney




                                               ~ hl\W~~
                                       PennySlir1ll1;,rkOfC
                                       Court of Workers' Compensation Claims
                                       WC.CourtClerk@tn.gov




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