Opinion affirms alleged mental injury

By Jane Salem, staff attorney, Nashville

On Tuesday, the Appeals Board released the last opinion from the cases at the March 24 oral arguments reviewing expedited hearing orders. The opinion, Mollica v. EHHI Holdings, reiterates the importance of obtaining medical proof when causation is disputed.

Facts

Gena Mollica hurt her back in 2017 working as a home health aide. EHHI accepted the claim, and a panel-selected physician ultimately performed surgery. Afterward, he placed restrictions and later referred her for pain management. Mollica chose Dr. Steven Musick from a panel.

A few months later, Dr. Musick prescribed Lyrica and recommended a second opinion with an orthopedic surgeon for her continuing back pain. The second-opinion surgeon increased the Lyrica dosage. At a return visit with Dr. Musick, he noted the higher dosage caused “foggy sensorium.” By then, Mollica was working from home part-time with restrictions.

In late April or early May 2019, Mollica checked into an out-patient mental-health facility. She also continued treating with Dr. Musick, who noted that she reported severe depression and that she “does not believe Lyrica has caused this but is wondering if [Lyrica] is adding [to] it.” She stopped working in May.

Mollica returned to Dr. Musick in June, after she stopped the Lyrica and began an intensive outpatient psychiatric program. She requested that he refer her to a psychiatrist through workers’ compensation due to her worsening depression that she attributed to the Lyrica. He referred her 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 her to continue her outpatient treatment program under her personal health insurance.

In July, Dr. Musick took Mollica off 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.” At a September visit, he noted she was looking for work but was unsuccessful due to her restrictions.

A month later, Dr. Musick responded to Mollica’s causation letter, which asked whether her work contributed more than 50% in causing a new mental injury. He responded, “I continue to recommend psychiatry to evaluate [and] recommend if Lyrica caused psychological deterioration [and] treatment if so under Workers[’] Compensation.” When asked if her work contributed more than 50% in causing an aggravation of a pre-existing condition, Dr. Musick marked “yes” and commented, “[b]ut still need psychiatry to evaluate [and] state for certainty.” EHHI declined to authorize the referral or provide a panel of psychiatrists.

In October 2019, the surgeon who’d offered a second opinion left his medical practice and referred Mollica to Dr. Adam Caputo for continued treatment for her back. EHHI didn’t offer a new panel or authorize this treatment.

After an expedited hearing, the trial court ordered 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 opinion

EHHI argued that Mollica didn’t suffer a new, work-related mental injury or aggravation of a pre-existing mental condition, but rather her condition is pre-existing and caused by events in her personal life. Mollica countered that the Lyrica aggravated her underlying mental condition, resulting in a compensable aggravation of a pre-existing condition.

Writing for the three-judge Board, Judge Pele Godkin reminded that the Workers’ Compensation Law allows an authorized treating physician to make referrals to specialists, and when a referral is made, the employer is deemed to have accepted it unless it offers a panel of specialists within three business days.

“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,” Judge Godkin wrote.

“Employer’s interpretation of Employee’s prior treatment records and its belief regarding 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.”

EHHI additionally argued that the trial court erred in ordering it to authorize the referral to Dr. Caputo for orthopedic treatment. The Board applied similar reasoning to reject this contention.

“Employer has provided no medical proof that contradicts [the surgeon’s] opinions or recommendations and has offered no rationale or legal argument on appeal to explain why it refused to authorize the referral,” Judge Godkin wrote.

Next, EHHI asserted that the trial court erred by ordering it to reimburse Mollica’s medical expenses for her psychiatric treatment. The Board agreed and reversed.

At the expedited hearing, Mollica testified about the unauthorized psychiatric treatment and offered receipts.

“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,” Judge Godkin wrote.

The Board further reasoned that Dr. Musick, the only physician to offer a causation opinion about the depression, said a psychiatrist’s opinion was needed to address causation. He also encouraged Mollica to continue her outpatient psychiatric program 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 final issue was temporary total disability benefits. The Board affirmed part of the order awarding temporary disability benefits from May 10 through September 11, 2019, but reversed the portion continuing the award because on the latter date, Mollica saw Dr. Musick, who noted she was looking for work. The Board concluded that the award should have stopped at that point and vacated the portion of the order for benefits until Mollica is no longer eligible.

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Photo by Judge Brian Addington, Gray.

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