The Show Must Go On

By Jane Salem, staff attorney, Nashville

The Tennessee Workers’ Compensation Appeals Board held oral arguments by phone rather than the traditional in-person appearances on Tuesday.

Counsel gave compelling arguments and withstood some fairly rigorous questioning from the judges, and decorum was maintained throughout, despite the unusual circumstances.

What follows is a brief recap of the arguments. This will be a two-part article. Part one covers the morning’s arguments; part two will summarize the afternoon’s proceedings.

 Dueling experts

In Johnston v. Siskin Steel & Supply Co., the employer challenged medical causation and an award of permanent partial disability benefits in an occupational disease case after a compensation hearing.

Johnny Johnston suffered liver, heart, and kidney damage that he alleged was the result of about 40 years’ exposure to heavy metals while working at Siskin Steel. The trial boiled down to a battle of the experts regarding medical causation.

Siskin Steel argued that the trial court erred by giving greater weight to the causation opinions of a neuropsychiatrist specializing in pain management and an internal medicine physician/pharmacist with a specialty in toxicology, over its three experts specializing in cardiology, nephrology, and gastroenterology.

Siskin Steel additionally contended that Johnston’s experts relied on articles they “pulled from the internet involving rodents.” These experts, per Siskin, improperly cited results from a hair test to support their conclusions, when the test acknowledged that hair samples were typically contaminated and shouldn’t be used to diagnose conditions.

Attorney John Barringer said that Johnston’s experts weren’t qualified, noting that they had no board certifications in any of the employee’s comorbidities. “I could not put them on a panel to treat this individual,” Barringer said, while his experts were “all board-certified in their respective fields. … They’re all testifying in fields that they know, because they’re handling these patients every single day.

As for the articles, Barringer noted that many were abstracts and not even complete studies, and some didn’t support Johnston’s position.

Johnston’s attorney, Linn Guerrero Justice, countered, “This case is simply about poisons. This is a case about Mr. Johnston having not one, but four heavy metals in his body at toxic and extremely dangerous levels.”

Guerrero Justice said that one of her experts was board-certified in neuropsychiatry, while the other was the only expert in the case with knowledge of toxicology. The latter regularly orders heavy-metal testing, while only one of the defense experts had ever ordered it.

She acknowledged that the studies Johnston’s experts relied on involved animals not humans but said it would be “at the very least unethical and likely illegal” to conduct the same studies using humans. As for the hair testing, Guerrero Justice cited her experts’ opinion that hair testing is the “gold standard” when measuring long-term exposure to heavy metals.

Did Lyrica cause a mental injury?

In Mollica v. EHHI Holdings, Inc., the employer appealed an expedited hearing order granting medical benefits for an alleged mental injury and awarding payment of past medical benefits.

Gena Mollica suffered a back injury at work, and an authorized treating physician and pain management specialist, Dr. Steven Musick, prescribed Lyrica, among other medications. Mollica alleged that Lyrica aggravated her pre-existing psychological condition so profoundly that she ultimately sought outpatient mental-health treatment. Afterward, Dr. Musik referred her for psychiatric care, but EHHI didn’t authorize this treatment.

Mollica said the mental injury, caused by the Lyrica, was a compensable aggravation of her preexisting condition. EHHI argued that she had mental-health problems before the work injury and while treating, which were unrelated to work.

Attorney Graham Thompson said, “Ms. Mollica apparently would like us to believe that this is entirely because of her Lyrica prescription from Dr. Musick—that it caused her such significant symptoms of depression and anxiety that she had to check herself into a behavioral health hospital. But your honors, this didn’t all happen in a vacuum. There were a number of significant traumatic emotional experiences in her personal life during that time.”

Specifically, about the same time she was on Lyrica, Mollica was finalizing a divorce, breaking up with a significant other, and dealing with a close friend’s hospitalization and medically-induced coma for a chronic illness.

Mollica’s attorney, Carmen Ware, countered that the depression that predated the physical work injury was low-grade, and that in the year before the injury, she needed no treatment for it. Ware said it was the nurse case manager who initially noticed the significant change in Mollica’s behavior once she started Lyrica. Her depression became so severe that she attempted suicide more than once after starting Lyrica.

“I don’t know that the life stressors that she had she could not have handled, had the Lyrica not been introduced,” Ware said.

Ware said that a panel-selected physician made the referral, but EHHI didn’t investigate Mollica’s mental-health history for months afterward.

The trial court ordered payment of past medical treatment regarding the mental injury. Judge David Hensley asked whether the proof supported the order; were the bills reasonable and necessary? Ware said the treatment was presumed so. Thompson disagreed, noting that Mollica sought treatment at the behavioral health center on her own.

The trial judge additionally ordered that EHHI honor a referral by an authorized physician to an orthopedist for Mollica’s back injury. Presiding Judge Tim Conner pointedly asked Thompson why his client didn’t do so. He replied that the carrier began the process of putting together a panel, but it wasn’t completed due to the carrier’s changes in personnel.

Jurisdiction, limitations, and the discovery rule

Finally, in Nickerson v. Knox County Government, the employer said the trial court erred by denying summary judgment in a mental-injury case where the employer argued the case was time-barred.

Angela Nickerson worked as a forensics technician for the sheriff’s department beginning in 1998. She investigated cases involving catastrophic and sexual injuries to children, including at least one death. She changed positions within the department in 2011 and alleged no other traumatic incidents afterward. She claimed she wasn’t diagnosed with post-traumatic stress disorder until 2018. Nickerson argued the discovery rule applied, so that the statute of limitations was tolled until she discovered she had a work-related condition.

As a threshold matter, Judge Hensley questioned whether the Court of Workers’ Compensation Claims and the Appeals Board had jurisdiction. The Reform Act conferred those courts with jurisdiction for cases with dates of injury on and after July 1, 2014. The trial court hadn’t ruled on the issue.

Judge Hensley said, “It appears to me that the only way the Court of Workers’ Compensation Claims or this court could possibly have jurisdiction would somehow have to come under the theory of a gradual injury, such that every day she continued to work there would be another exposure that would extend the date of injury until she was terminated. But even that presents a problem, because she left the department in which she says she was exposed to this sudden, unexpected stimulus in 2011. So I’ve got some real issues that this tribunal is going to have to address.”

Attorney Evan Hauser responded that Nickerson testified that the events happened in 2011 or earlier, and, “If the Court finds that those were specific events, extraordinary to her job, that caused extraordinary stimulus, or a series of events, then this Court may not have subject matter jurisdiction.”

He continued, “From the County’s perspective, I’ve simply adopted the approach that the plaintiff gets to choose her forum or her venue, and we’ve been proceeding accordingly.” Hauser said that he assumed the employee would argue that the date of injury occurred in 2018, when she received her PTSD diagnosis.

Nickerson’s lawyer, Tony Farmer, said the date of incapacity is critical. “The way I have conceived this claim, it is a claim that evolved through her ongoing police work that was precipitated by a series – in this case, a two-incident series as far as we understand this disease, that precipitated her symptoms ‒ that began arising sometime after 2011, and in 2018 reached the point where they became disabling. And I believe the point that they became disabling is the key factual element in terms of, when did she know she had a compensable claim?”

Nickerson continued to work in the law-enforcement environment until 2018, he added.

Ultimately, the Board agreed that the parties should brief the jurisdiction issue.

As to the issues previously briefed, Hauser argued that Nickerson saw four treatment providers in 2015 who discussed the possibility of PTSD, and therefore she had “constructive notice” of her PTSD more than one year before she filed her claim. As a result, her 2018 claim was not timely-filed.

But Farmer responded no case law or statute places an “affirmative duty” on an injured worker to seek a diagnosis but only that a worker should act reasonably under the circumstances.


sunrise 1

sunrise 2

Photos of the sunrise en route to Knoxville on March 24 taken by Judge Pele Godkin. No, she wasn’t driving.

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