                                                                                  FILED
                                                                                Aug 15, 2019
                                                                                10:35 AM(CT)
                                                                                 TENNESSEE
                                                                            WORKERS' COMPENSATION
                                                                               APPEALS BOARD

            TENNESSEE BUREAU OF WORKERS’ COMPENSATION
               WORKERS’ COMPENSATION APPEALS BOARD

Terri Holdway                              ) Docket No. 2017-08-0751
                                           )
v.                                         ) State File No. 15611-2016
                                           )
Lakeside Behavioral Health Systems, et al. )
                                           )
                                           )
Appeal from the Court of Workers’          )
Compensation Claims                        )
Thomas L. Wyatt, Judge                     )

                            Affirmed and Certified as Final

Following a physical assault in the workplace, the employee initiated a claim for
workers’ compensation benefits for her alleged physical and mental injuries. The
employer accepted the claim for the physical injuries but denied that the employee’s
alleged mental injury arose primarily out of the work incident. Following a trial, the
court concluded the employee did not prove by a preponderance of the evidence that she
developed a mental injury arising primarily out of and in the course and scope of her
employment and denied benefits for the alleged mental injury. The employee has
appealed. Having thoroughly reviewed the record, we conclude the preponderance of the
evidence supports the trial court’s determination. We affirm the trial court’s decision and
certify it as final.

Judge David F. Hensley delivered the opinion of the Appeals Board in which Presiding
Judge Marshall L. Davidson, III, and Judge Timothy W. Conner joined.

Monica R. Rejaei, Memphis, Tennessee, for the employee-appellant, Terri Holdway

Gregory H. Fuller, Brentwood, Tennessee, for the employer-appellee, Lakeside
Behavioral Health Systems

                         Factual and Procedural Background

       Terri Holdway (“Employee”) was sixty-five years of age when she was assaulted
in the workplace while in the course and scope of her employment as a registered nurse
with Lakeside Behavioral Health Systems (“Employer”). On February 24, 2016, she was
in one of Employer’s medication rooms for the purpose of dispensing medications to

                                            1
patients when a male patient jumped over the lower part of a Dutch door to gain entry to
the medication room. 1 In the process of moving toward a counter where medications
were located, the patient knocked Employee down, resulting in severe injuries. 2

       On March 8, 2016, Employee underwent an open reduction with internal fixation
for complex fractures on the right side of her face performed by Dr. Lawrence W. Weeda,
Jr. In addition to receiving treatment from Dr. Weeda, Employee was evaluated by an
eye doctor and a dentist. She complained to Dr. Weeda about neurological issues and
was provided a panel of physicians from which she selected Dr. Barbara Cape.
Employee testified she told Dr. Cape she had anxiety and “how scared [she] was of
everything,” but, according to Employee, Dr. Cape “didn’t see a whole lot” and did not
find any neurological problems.

       Employee testified that, on post-surgical visits, she was evaluated by medical
residents and estimated she saw “at least four” over the course of her treatment with Dr.
Weeda. Although she could not recall the names of any of the residents, Employee said
she told the residents how nervous she was and that she was having a hard time leaving
her house and was “afraid to go out.” She testified one of the residents encouraged her to
consider a psychological evaluation, but that Employer never offered her a panel from
which she could select a physician for such evaluation. Employee admitted that, as far as
she could recall, Dr. Weeda never made a referral for a psychological evaluation. She
further admitted that she did not recall any conversations with Employer’s insurer in
which she requested a psychological referral. However, Employee maintains that she
told several people at work that she “needed to see somebody” because she “wasn’t doing
very well.” Employer’s Human Resources Director, Lori Deason, testified she did not
recall any conversations with Employee during which Employee requested a
psychological evaluation or a panel of psychologists or psychiatrists.

        When asked about her daily activities following the February 2016 incident,
Employee testified “[i]t’s hard to take care of daily activities,” adding that she did not
care about doing that. She testified that when she went out in public “[a] lot of times [she
felt] scared,” but she didn’t know what she was scared of, “just [s]cared.”


1
 A Dutch door is a door that is split horizontally across the middle to allow the top half to open while the
bottom half remains closed.
2
  The record is unclear as to the exact manner in which the assault occurred. Employee testified she told
the patient she would get his medication and turned to walk to the counter to check the chart for the
appropriate medication, stating that “is the last thing [she] remember[s]” before waking up on the floor
bleeding from her head and face while others, including nurses, medics, and patients, had surrounded her.
Employer’s Human Resources Director testified she reviewed a video of the incident and observed a male
patient rushing through the opening and moving toward the counter while Employee was in his pathway,
knocking Employee down. Medical records include varied accounts of the incident with some indicating
the patient struck Employee in the face with his fists.
                                                     2
        Employee returned to work with Employer in April 2016 and continued working
for approximately eight months until she resigned on December 8, 2016. She testified
that when she returned to work she was “hypervigilant” in distributing medications to
patients and experienced on-going anxiety. During the eight months following her return
to work, there were other episodes in which patients were verbally or physically abusive
to her, including one patient who spit on her and threw a wheelchair at her. Employee
testified “it just got too intense.” She expressed frustration that Employer “did nothing to
change the situation where [she] got hurt.”

        On December 8, 2016, Employee reported to work and discovered the facility was
short-staffed. She testified she was instructed to take on additional responsibilities
regarding the distribution of medications to patients. Employee decided she was unable
to perform her work duties. She wrote a resignation letter that she gave to her supervisor
and left the facility. After leaving, she thought more about her actions and called
Employer to advise that she wanted to rescind her resignation. A meeting was scheduled
for the following day for Employee to discuss the situation with Ms. Deason.

       Ms. Deason testified that in the meeting Employee wanted to rescind her
resignation and “explained that she was anxious and fearful that she would not be able to
take care of the patients,” adding that “[s]he was very clear that she was not fearful of the
patient[s] but of her ability to take care of them [] [a]nd that’s the reason that she left.”
Ms. Deason told Employee that because she had abandoned her job the previous day, she
would not be allowed to return to work. She suggested Employee contact the company’s
Employee Assistance Program (“EAP”).

       Ms. Deason was questioned about Employee’s resignation letter in which
Employee wrote that she was resigning “due to medical and emotional issues that have
come up since [she] was attacked by a patient in February.” Asked about Employer’s
“corrective action report,” which indicated Employee’s termination was for “personal
reasons,” and why the resignation letter “didn’t get added as a reason for [Employee’s]
departure,” Ms. Deason responded that “[t]here are a limited number of items [she] can
choose in [her] electronic database for reasons why a person would leave,” and “an
injury” is not one of them. She added that, “in our conversation, the injury did not come
up, just [Employee’s] feelings about how she could not take care of the patients.”
Although Ms. Deason testified she never discussed a referral for a psychological
evaluation in the meeting, she said she did recommend that Employee contact
Employer’s EAP due to Employee being “anxious.” Because of the confidential nature
of such programs, Ms. Deason did not know if Employee ever contacted Employer’s
EAP.

        At the time of the trial, Employee was sixty-eight years of age. She attended the
trial in a wheelchair because she had “extreme arthritis in [her] knees.” She testified her
arthritis was not related to her on-the-job injury, but said she “also uses a wheelchair for

                                             3
panic and anxiety when [she] can’t walk.” Asked whether she attributed her inability to
walk to the 2016 work injury, she testified “[i]t didn’t affect my walking per se. It
affected my mental state to where I cannot do it.” Employee also testified she told Dr.
Joel Reisman, a psychiatrist engaged by Employer to evaluate Employee, that, “at times,”
she had trouble walking due to her post traumatic stress disorder (“PTSD”) symptoms.
Employee further testified that she had a stroke in September 2018, which she explained
“caused my balance to be off,” adding that she “fell a lot during 2017.” Employee
testified she has not worked since leaving her job with Employer in December 2016.

        Employee acknowledged in her testimony that she had suffered from anxiety prior
to the 2016 work incident. She testified that her anxiety increased in 2015 due to an
increase in her workload, working longer hours, and fatigue. As a result, she saw her
primary care physician who prescribed Zoloft, but Employee stated she only took the
medication “a couple of times” because of how it made her feel. She also acknowledged
that, at the time she saw her primary care physician in 2015, she had other issues that she
discussed with her doctor, including her father’s illness and the death of her dog. As
stated by the trial court, the record of Employee’s 2015 visit “noted that [Employee] said
her ‘life was out of control,’” and that Employee “reported depression, anxiety, fatigue,
weight change, sleep disturbance, and decreased concentration.” At trial, Employee
denied that the anxiety she was experiencing in 2015 had any impact on her ability to
perform her job duties.

                                Expert Medical Testimony

       Following her resignation, Employee contacted Employer’s EAP and was referred
to Wendy Holdsworth, a licensed clinical social worker, who she began seeing in January
2017. Employee reported some improvement in her symptoms, but testified she
continued to experience panic attacks and anxiety symptoms. She also sought treatment
from a nurse practitioner, Mark Hesselrode, who diagnosed her with restless leg
syndrome, generalized anxiety disorder, PTSD, and panic disorder. In March 2017, Mr.
Hesselrode prescribed Employee an antidepressant medication.

       During his deposition, the authorized physician, Dr. Weeda, described his initial
evaluation of Employee in the emergency room and the surgery he later performed.
Following the surgery, Dr. Weeda prescribed antibiotics and pain medications.
Postoperatively, Employee complained of blurry vision, which Dr. Weeda described as a
common symptom following the type of surgery Employee had undergone. In his April
6, 2016 report, Dr. Weeda noted that the patient was “very upset.” He explained that
“she said she had psychological issues after the incident and in the way that it happened.”
Dr. Weeda testified that he supervised several medical residents as part of the medical
training program run by his department, and that one of his residents had written on the
report that Employee was “encouraged to see a psychologist or a psychiatrist for issues
that she was describing.” Dr. Weeda acknowledged during his testimony that this was

                                            4
one of the residents who participated in Employee’s care and who was under his direct
supervision. As to the recommendation, Dr. Weeda testified, “it’s not uncommon with
the trauma patients that we see that it takes them a while to get over the psychological
trauma that occurs. . . . [I]n the two or three times we see them postoperatively, . . . if we
feel that they’re . . . having psychological issues, we will frequently make the
recommendation.” When Dr. Weeda was asked whether he agreed with the resident’s
recommendation, he replied, “I think that’s reasonable.”

       On May 2, 2018, Employee was evaluated by a board-certified psychiatrist, Dr.
Melvin Goldin. Dr. Goldin testified that Employee suffered from PTSD that was more
than fifty percent caused by the February 2016 work incident. Dr. Goldin concluded
Employee would retain a ten percent permanent impairment as a result of her PTSD. He
also testified she would “require psychotherapy for probably years and
pharmacotherapy . . . for at least as long.” Dr. Goldin recommended that Employee not
return to work in a psychiatric unit.

       At Employer’s request, Employee was evaluated by Dr. Joel Reisman, also a
board-certified psychiatrist. Dr. Reisman reviewed records from multiple providers as
well as deposition testimony of Employee and other experts. He conducted an
examination of Employee and prepared a lengthy report summarizing the information he
had reviewed and the opinions he had formed. Dr. Reisman concluded that Employee did
not suffer from PTSD and that she had not been honest regarding her mental health
treatment prior to the incident at work. He also concluded that Employee’s anxiety
disorder pre-existed the work incident. On cross-examination, Dr. Reisman admitted that
the only indication of prior treatment for a psychological condition was in 2015. He also
acknowledged that Employee had been prescribed medication to treat her psychological
condition after the work incident.

       Following trial, the court concluded Employee had not met her burden of proving
she developed a mental injury arising primarily out of and in the course and scope of her
employment. The court denied workers’ compensation benefits for Employee’s mental
injury claim and her requests for attorneys’ fees and a penalty. The court awarded on-
going medical benefits for her physical injuries. Employee 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) (2018). 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.”

                                              5
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 (2018).

                                        Analysis

       Tennessee’s Workers’ Compensation Law has long recognized that psychological
claims may be compensable. In accordance with Tennessee Code Annotated section 50-
6-102(14) (2018), mental injuries are compensable if they arise primarily out of and in
the course and scope of employment. Moreover, the law defines a mental injury as:

      [A] loss of mental faculties or a mental or behavioral disorder, arising
      primarily out of a compensable physical injury or an identifiable work
      related event resulting in a sudden or unusual stimulus, and shall not
      include a psychological or psychiatric response due to the loss of
      employment or employment opportunities.

Tenn. Code Ann. § 50-6-102(17).

      Mental injury claims generally fall into one of two categories: those that arise
primarily from an accident with a compensable physical injury and those that are caused
by a sudden or unusual mental stimulus. The law concerning mental injuries has been
summarized as follows:

       The Tennessee Supreme Court has long recognized two factual situations in
       which employees may recover workers’ compensation benefits for mental
       disorders. First, recovery has been allowed for a mental injury by accident
       or occupational disease, standing alone, if the mental disorder is “caused by
       an identifiable stressful, work-related event that produces a sudden mental
       stimulus such as fright, shock, or excessive unexpected anxiety.” Second,
       compensation for psychological injuries has been allowed when an
       employee sustains a compensable work-related injury by accident and
       thereafter experiences a mental disorder which is caused by the
       compensable work-related injury.

Bressler v. H & H Specialty Coatings, Inc., No. W2007-02902-WC-R3-WC, 2009 Tenn.
LEXIS 41, at *12 (Tenn. Workers’ Comp. Panel Mar. 9, 2009) (citations omitted).

                                            6
       In the present case, it is undisputed that Employee suffered a compensable
physical injury. It is also undisputed that she does not remember the physical assault.
Thus, the relevant question under these circumstances is whether Employee proved by a
preponderance of the evidence that her alleged mental injury arose primarily from the
compensable physical injury. In making this determination, it is unnecessary to
determine whether Employee identified a sudden or unusual mental stimulus beyond
ordinary work stress because that requirement applies only in those cases where an
employee is alleging a mental injury without an accompanying physical injury. See, e.g.,
Woods v. State, No. W2005-02119-SC-WCM-CV, 2006 Tenn. LEXIS 970, at *9 (Tenn.
Workers’ Comp. Panel Oct. 30, 2006) (discussing mental injuries that “accompany a
work-related physical injury and aggravate the pre-existing mental problems of the
worker”).

       In addition, an employee who has a pre-existing mental condition may establish
the compensability of a mental injury arising from a compensable physical injury if he or
she can prove by a preponderance of the evidence a compensable aggravation of a pre-
existing mental condition. As we have discussed previously,

      [a]n employer takes an employee “as is” and assumes the responsibility of
      the employee having a pre-existing condition aggravated by a work-related
      injury that might not affect an otherwise healthy person. An employer may
      be liable for disability resulting from injuries sustained by an employee
      arising out of and in the course of his employment even though it
      aggravates a previous condition with resulting disability far greater than
      otherwise would have been the case.

Mace v. Express Serv., No. 2015-06- 0059, 2015 TN Wrk. Comp. App. Bd. LEXIS 19, at
*9-10 (Tenn. Workers’ Comp. App. Bd. June 19, 2015) (citations and internal quotation
marks omitted); see also Bryant v. Genco Stamping & Mfg. Co., 33 S.W.3d 761, 764
(Tenn. 2000) (discussing a compensable aggravation of a pre-existing mental disorder);
Duncan v. Modine Mfg. Co., No. E2000-02995-WC-R3-WC, 2002 Tenn. LEXIS 88
(Tenn. Workers’ Comp. Panel Feb. 28, 2002) (affirming an award of permanent disability
benefits due to the aggravation of a pre-existing mental disorder).

       Here, the trial court concluded that neither Employee’s testimony nor the medical
proof established that Employee’s mental symptoms following the work assault
substantially differed from those she reported to her primary care physician eight months
before the incident. The court noted that, following the assault, Employee returned to
work “and for the next eight months she successfully endured the same general work
stress that she experienced before her injury,” adding that “[i]n fact, she exhibited
sufficient mental strength to continue working . . . even after a patient spat and threw a
wheelchair at her.” Although the court did not expressly address the credibility of the
witness’s testimony, the court concluded Employee was terminated “not because of her

                                            7
disability but rather a disagreement with her supervisor,” which was not the reason
Employee asserted in her resignation letter.

        The trial court’s decision turned largely on the expert medical proof. The court
contrasted the testimony of Dr. Goldin and Dr. Reisman and concluded Employee did not
establish a mental injury arising primarily out of her employment. Specifically, the trial
court determined that both of the psychiatrists were equally qualified to assess a claim for
a psychiatric injury, but that Dr. Reisman “provided the more probable explanation for
[Employee’s] mental symptoms.” The trial court noted that Dr. Reisman had a more
complete history than Dr. Goldin, including “the fact that [Employee] sought treatment
for depression and anxiety related in part to general job stress before the work-related
assault,” which Dr. Goldin did not learn until his deposition was taken. Moreover, the
trial court concluded, as did Dr. Reisman, that Employee did not develop avoidance of
the place and circumstances of the triggering trauma that both doctors testified to be
necessary for a proper diagnosis of PTSD. A trial judge “has the discretion to conclude
that the opinion of one expert should be accepted over that of another expert.” Reagan v.
Tennplasco, No. M2005-02020-WC-R3-CV, 2006 Tenn. LEXIS 1209, at *10 (Tenn.
Workers’ Comp. Panel Dec. 27, 2006). As stated by the Tennessee Supreme Court,
“[w]hen faced . . . with conflicting medical testimony . . . , it is within the discretion of
the trial judge to conclude that the opinion of certain experts should be accepted over that
of other experts and that it contains the more probable explanation.” Thomas v. Aetna
Life & Cas. Co., 812 S.W.2d 278, 283 (Tenn. 1991) (internal quotation marks omitted).
While the medical causation opinions of Drs. Goldin and Reisman conflict, we conclude
the evidence does not preponderate against the trial court’s decision.

                                        Conclusion

       Accordingly, we affirm the trial court’s compensation hearing order and certify it
as final. Costs on appeal are taxed to Employee.




                                             8
                       TENNESSEE BUREAU OF WORKERS’ COMPENSATION
                         WORKERS’ COMPENSATION APPEALS BOARD

Terri Holdway                              )                  Docket No. 2017-08-0751
                                           )
v.                                         )                  State File No. 15611-2016
                                           )
Lakeside Behavioral Health Systems, et al. )
                                           )
                                           )
Appeal from the Court of Workers’          )
Compensation Claims                        )
Thomas L. Wyatt, 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 15th day of August, 2019.

 Name                              Certified   First   Via   Fax      Via     Sent to:
                                   Mail        Class   Fax   Number   Email
                                               Mail
 Monica R. Rejaei                                                       X     mrejaei@nstlaw.com
 Laurel Baggett                                                               lbaggett@nstlaw.com
 Peter Frech                                                            X     ppfrech@mijs.com
 Gregory H. Fuller                                                            ghfuller@mijs.com
 Julia Russo                                                                  jlrusso@mijs.com
 Thomas L. Wyatt, 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
