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.

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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).
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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

5
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