MWCC NO. 93 04351-F-7699
RICKY D. EAKEN CLAIMANT
vs.
CENTRAL FABRICATORS, INC.
EMPLOYER
AND
INSURANCE COMPANY OF NORTH AMERICA
CARRIER
REPRESENTING CLAIMANT:
Honorable John P. Fox, Attorney at Law, Houston,
Mississippi
REPRESENTING DEFENDANT:
Honorable Pete Markow, Attorney at Law, Jackson,
Mississippi
The Commission heard the above styled cause on December 4, 2000, in the offices of the Mississippi Workers' Compensation Commission, Jackson, Mississippi on the Employer/Carrier's "Petition for Review" by the Full Commission.
Having heard the arguments offered on behalf of the parties and having thoroughly studied the record and the applicable law, the Commission affirms the "Order of Administrative Judge" dated January 10, 2000, and the "Petition to Abate Appeal and Reopen" filed herein by the Claimant be and the same is hereby denied.
SO ORDERED, this the 13th day of December, 2000.
MISSISSIPPI WORKERS' COMPENSATION COMMISSION
BY: BARRETT SMITH
BARNEY SCHOBY
BEVERLY BOLTON
COMMISSIONERS
ATTEST:
Joann McDonald, Secretary
___________________________
MWCC NO. 93 04351-F-7699-A
RICKY D. EAKEN CLAIMANT
vs.
CENTRAL FABRICATORS, INC.
EMPLOYER
AND
INSURANCE COMPANY OF NORTH AMERICA
CARRIER
APPEARING FOR THE CLAIMANT:
Honorable John P. Fox, Houston, Mississippi
APPEARING FOR THE EMPLOYER AND CARRIER:
Honorable S. DeAnn Thomas, Jackson, Mississippi
On July 3, 1996, the claimant filed a petition
to controvert alleging that on February 13, 1992, he received a work-related
injury to his back. At the outset, the employer and carrier provided some
medical services and supplies while the claimant continued to work at his
job. After the filing of the petition to controvert, however, the employer
and carrier denied the compensability of the injury, contending that Mr.
Eaken's claim was barred by the applicable statute of limitations. Mr.
Eaken is still working at his same job. A hearing was held in the Attala
County Courthouse in Kosciusko, Mississippi, on December 20, 1999.
The parties stipulated that the claimant's average
weekly wage on February 13, 1992, was $395.64.
The issues to be resolved by the Administrative Judge are as follows:
1. Whether this claim is barred by the two-year statute of limitations as set forth in Mississippi Code Annotated Section 71-3-35 (1);
2. Whether the claimant received a work-related injury to his back on February 13, 1992, as alleged in the petition to controvert; and, if so,
3. Whether the employer/carrier received timely notice of a work-related injury;
4. The existence/extent of disability resulting from the work injury; and
5. For what medical treatment are the employer
and carrier responsible.
Ricky Dale Eaken is forty-two years old and a resident of Ethel, Mississippi. He is married and has three children, ages 20, 18, and 14. Two of the children live at home with him and his wife, and his wife does not work. Mr. Eaken testified at the hearing in a very articulate manner.
Mr. Eaken went through the eleventh grade in school and obtained a GED certificate. He also took a six-month course in welding at the Kosciusko Skill Center. He has always worked in welding and fabricating.
Since 1992, Mr. Eaken has been working for Central Fabricators in Kosciusko doing welding and fabrication. His starting wage was $9.50 an hour. On February 13, 1992, he was making about $10.50 an hour. He currently earns about $12.90 an hour and time-and-a-half for overtime. He works from 50 to 50-1/2 hours a week.
Mr. Eaken testified that he tries not to lift anything now and he uses the cranes for heavy items. When he first began work for Central Fabricators, however, he had to lift heavy weights, up to about seventy-five pounds, and there was a forklift but no overhead crane. He had to cut large plates of metal weighing 600 pounds each. Two people had to manually pull the sheets of metal into the cutting machine, moving the sheets from one table to another.
Before the accident of February 13, 1992, Mr. Eaken was in good health. At a prior job, a beam fell off a table onto his leg, injuring his leg and causing him to be off work six weeks. At a later time he pulled some muscles and was off a few days.
According to Mr. Eaken, on February 13, 1992, while moving heavy sheets of metal, he 'felt pain between his shoulder blades. He said Berlie Tindoll, his supervisor, was helping him cut the plates that day.
The next day, February 14, 1992, Mr. Eaken went to a chiropractor, a Dr. Donovan in Columbus, Mississippi. He does not remember whether he told anyone at work that he was going to see Dr. Donovan. He said he paid for Dr. Donovan out of his own pocket and probably saw him about a total of twenty-five times, about fifteen times in February 1992. He stayed off work two or three days when he was treating with Dr. Donovan. Later, he looked for a chiropractor closer to his home rather than eighty miles away.
About a month after the February 13, 1992, incident, Mr. Eaken reported to his employer that he was going to the chiropractor, Dr. Donovan. The employer or carrier paid Dr. Donovan. Mr. Eaken missed a half day or whole day each time he went to Dr. Donovan. Then in October 1992 he started seeing Dr. Joe Boswell in Philadelphia, Mississippi, because Dr. Boswell's office was closer. He did not return to Dr. Donovan after he started to see Dr. Boswell. The employer or carrier paid for treatments with Dr. Boswell for a while. Mr. Eaken saw Dr. Boswell about once a week or once every two weeks. He could not recall a month going by without treatment by Dr. Boswell.
In February 1993, Dr. Boswell referred Mr. Eaken to Dr. Joseph W. Farina, neurologist in Meridian, and Mr. Eaken saw Dr. Farina one time. Dr. Farina did an x-ray and gave him a TENS unit. Mr. Eaken testified he got no relief from the TENS unit and returned it to Dr. Farina.
Subsequently, in July 1995, Mr. Eaken saw Dr. Walter Eckman, neurosurgeon in Tupelo, at the referral of the workers' compensation carrier. Dr. Eckman did an MRI of the lumbar spine and did not recommend surgery but instead a course of physical therapy of approximately eighteen sessions. Mr. Eaken completed twelve or thirteen sessions and then told Dr. Eckman he was getting worse and not better, Dr. Eckman ordered an MRI of the thoracic spine at that time. He last saw Dr. Eckman in October 1995.
Then Mr. Eaken went to a Dr. Calvin Ramsey in Lexington, Mississippi, who referred him to Dr. John C. Neill, neurosurgeon in Jackson, in October 1995. Mr. Eaken saw Dr. Neill on one occasion. The employer and carrier paid Dr. Neill but not Dr. Ramsey.
Mr. Eaken said he is in pain all day, and he takes medication for the pain. The last time he saw a doctor was the week before the hearing when he saw a chiropractor. The week before he saw Dr. Charles R. Secrest, general practitioner in Houston, Mississippi. Dr. Secrest prescribes muscle relaxers and pain medication, and he offers a type of therapy, a cortisone shot once a month, and some "low-grade pills" to take every day. Mr. Eaken takes four medications a day and also four Ibuprofen or Bufferin tablets. Mr. Eaken has also seen Dr. Rebecca Doss, chiropractor in Memphis. He has paid Dr. Boswell, Dr. Doss, and Dr. Secrest out of his pocket.
Abut a year or two ago, Dr. Secrest put him in the hospital for about three days. Mr. Eaken returned to work the next day. He has not missed more than three days consecutively.
In July 1997, Mr. Eaken consulted Dr. Alexandre Solomon, neurosurgeon in Jackson, and he underwent a myelogram. and CT scan. Mr. Eaken testified that one of the secretaries at the plant, not a doctor, suggested Dr. Solomon to Mr. Eaken, but Dr.. Solomon's notes indicate a referral from Dr. Secrest. Mr. Eaken testified that he asked the carrier to pay Dr. Solomon, but the payment was denied and Dr. Solomon has not been paid.
Mr. Eaken received a raise two-and-a-half years ago. The owner of the plant, Billy Atwood, told Mr. Eaken he was not going to give him another raise, that he was making as much as he needed to make.
Some days Mr. Eaken is unable to go to work, and he calls in for a vacation day so he can stay at home or go to the doctor. In 1992 and 1993, Mr. Eaken missed about one day a week for doctor's appointments, and he continues to do the same. From 1992 until January 8,1997, he missed about four weeks of work when he took vacation days and stayed at home because he did not feel like working.
Mr. Eaken has been told by the employer he can get help to do certain jobs requiring lifting. He said there are some welding tasks that he can no longer do, and a couple of other welders have been trained to do that job.
Mr. Eaken testified that he hurts in his back and hips. He hurts a lot in the center of his back. According to Mr. Eaken, he can no longer play ball with his kids. He cannot go hunting very often, something he did with his kids. He does not raise a garden anymore, and he cannot mow the grass on a riding lawnmower. He would be "stove up in the back" for two or three days if he tried to do any of these activities. He said he would take surgery if it were recommended. Nearly every day when he gets home from the plant he takes a shower, relaxes, and gets the kids to run a massager on his back, and he sits against a vibrating pillow a good bit.
Elizabeth Eaken, Ricky Eaken's wife, came to the hearing to testify in her husband's behalf The parties stipulated, however, that she would offer testimony that would be cumulative and corroborative of that already offered by the claimant.
Berlie Tindoll testified that he is shop manager at Central Fabricators, a position he has held for twelve years. He remembered when Ricky Eaken hurt his back in 1992, although he could not recall the exact date. Mr. Tindoll said he was not there that day because he had made a trip to auction in Mobile. The next day, when he returned from the trip he had taken, he completed an accident report relating to Mr. Eaken's accident. The accident report is dated May 25, 1992; Mr. Tindoll could not explain why the report was made in May. The accident report has been received into evidence and indicates an injury described as "pull in upper back" and "back pulled while lifting steel plate." (Exhibit 11).
The file in this workers' compensation case contains a B-3 Form dated May 26, 1992, and filed by the employer and carrier on March 22, 1993, relating to an injury reported by Ricky D. Eaken. The injury date was stated to be February 13, 1992, and the description was "pulled back muscle while lifting steel plate." On the form it was noted that Mr. Eaken was being treated by Dr. I E. Donovan in Columbus. (Exhibit 8).
Mr. Tindoll said Mr. Eaken has not had a raise recently because the boss thinks that Mr. Eaken has risen as high as he can go in the company. He thought Mr. Eaken had received one or more raises since the work injury.
Mr. Tindoll looked at photographs of overhead cranes, one of which was built in Mr. Eaken's area after his injury in 1992, after general improvements were made to the shop. The company had one crane but added another one after adding onto the building. There is also a red hoist in the area. All the employees can use the cranes when they need assistance. The addition of the cranes had nothing to do with Mr. Eaken's accident or physical condition.
Mr. Tindoll testified that Mr. Eaken is out part of a day when he goes to the doctor. Mr. Eaken mentions pain occasionally, although he is not a chronic complainer. "He has pain - you can tell by looking at him." He calls in sick but not very often. He goes to the doctor fairly often, and he always reports this. He receives his regular wage when he goes to the doctor. If he is off a full day or more, he uses vacation time. He has two weeks of vacation each year, as do all other employees who have been with the company for four years or more. Mr. Tindoll remembered that in the past there have been times when Mr. Eaken has taken off several days or a week.
Mr. Tindoll testified that on the average Ricky Eaken works about fifty hours a week, receiving some overtime pay of approximately $19.00 an hour. Mr. Eaken performs the same job duties he performed prior to the date of injury in 1992. Mr. Tindoll said Mr. Eaken is a good, dependable, conscientious employee who does excellent work. Mr. Tindoll told him to get help if he needed it, as he has told all the other employees. When he needs help to lift something heavy, he gets help.
The chiropractic records of Dr. Joe L. Boswell, chiropractor in Philadelphia, Mississippi, were received into evidence. Dr. Boswell apparently first saw. Ricky Eaken on October 6, 1992, for complaints of symptoms in his middle back.
Dr. Boswell's records include a report of examination by Dr. Joseph W. Farina, Jr., at the Meridian Neurology and Headache Center, dated February 15, 1993. Dr. Farina reported that he saw Mr. Eaken at the request of Dr. Boswell for chief complaint of mid-thoracic and lumbosacral back pain. Dr. Farina saw no evidence of myelopathy or radiculopathy on clinical exam. He suggested conservative therapy with medications and a TENS unit. Dr. Farina suggested Mr. Eaken continue physical therapy with Dr. Boswell and refrain from heavy lifting.
On January 2, 1997, Dr. Boswell wrote that "Mr. Rickey Eaken has been treated in my office on a regular basis since 1992. Due to his reoccurring symptomatogy [sic] of his condition and his subjective and objective finding, it is my professional opinion to rate this patient with a 20% permanent partial disability to the body as a whole." (Exhibit 1). On November 23, 1998, Dr. Boswell wrote that he was still treating Mr. Eaken for low back and mid-thoracic pain and that his condition had not changed. He reiterated the 20% permanent partial disability rating to the body as a whole.
The medical records of Dr. Walter W. Eckman, neurosurgeon at the Aurora Spine Center in Tupelo, were received into evidence. Dr. Eckman first examined Ricky Eaken in July 1995, for complaints of back and sacroiliac pain as well as neck and interscapular pain and tension. Dr. Eckman found Mr. Eaken to have low back pain, and he ordered lumbar spine x-rays and MRI scan. Dr. Eckman noted a very small central disc protrusion or herniation at the L4-5 level, minor scoliosis convex to the left, and Dr. Eckman recorded a four-week program of vigorous exercise. Mr. Eaken reported having problems with the exercise program, and Dr. Eckman ordered a thoracic x-ray and MRI scan. The tests showed mild aging effects and curvature in the spine.
On October 18, 1995, Dr. Eckman noted:
The medical report of Dr. John C. Neill, neurosurgeon in Jackson, was received into evidence. Dr. Neill examined Ricky Eaken on October 31, 1995, at the referral of Dr. Calvin Ramsey in Lexington. Dr. Neill also reviewed several sets of x-rays and an MRI of the thoracic spine dated October 18, 1995. Dr. Neill noted degenerative disc disease at multiple levels. Dr. Neill concluded:
The chiropractic, records of Dr. Rebecca Doss, chiropractor in Memphis, were received into evidence. Dr. Doss apparently first saw Ricky Eaken on November 7, 199 5, and treated him for complaints about the thoracic and lumbosacral spine.
The medical records of Dr. Charles R. Secrest, general practitioner in Houston, Mississippi, were received into evidence. Dr. Secrest's earliest record is dated July 17, 1996, indicating Dr. Secrest saw Mr. Eaken for complaints of back pain following a February 1992 injury while lifting heavy metal plates. On July 14, 1997, Dr. Secrest reported that Ricky Eaken "has been plagued with severe sciatica for some time now. This dates back to an injury in February 1992 when he apparently had ruptured disc followed by surgery without very much relief He has been plagued since then with low back pain, sciatica, and cervical neuralgia." (Exhibit 3, p. 6). Dr. Secrest suspected a ruptured disc and recommended a consultation with a neurosurgeon.
On March 5, 1998, Dr. Secrest wrote that he continued to see Mr. Ricky Eaken as a result of the work injury at Central Fabricators. Dr. Secrest stated:
It is a miracle that he is able to work at all. He does so with assistance from fellow employees and lift devices, which have been prepared for his use.
At this time, I would consider him to have a permanent partial disability of fifty percent (50%) to the body as a whole.
The medical records of Dr. Alexandre Solomon were
admitted into evidence. Dr. Solomon examined Ricky Eaken on July 28,1997,
at the referral of Dr. Secrest. Dr. Solomon recommended a myelogram and
CT scan "for a final, definitive diagnostic study." (Exhibit 4, p. 3).
The myelogram of the lumbar spine was done on July 29, 1997, and the radiologist's
report indicates a diagnosis of "Small central bulging disc at L4-5." (Exhibit
4, p. 4). The post-myelogram CT scan of the lumbar spine, dated July 29,
1997, was normal with no evidence of herniated disc.
After carefully considering the pleadings, pretrial statements, stipulation about average weekly wage, lay and medical evidence, the demeanor of the witnesses at the hearing, and the applicable law, the Administrative Judge finds as follows:
1. The claimant, Ricky D. Eaken, received a work-related injury to his back on February 13, 1992, as alleged in the petition to controvert. He reported the injury to his supervisor, and the supervisor completed an accident report and the employer/carrier filed the required B-3 Form, first report of work injury, at the Mississippi Workers' Compensation Commission. There is no evidence to indicate that Mr. Eaken did not receive an injury as reported. He apparently suffered a back strain that aggravated an underlying degenerative back condition.
2. The employer/carrier received appropriate notice of the work injury. There is no evidence to the contrary.
3. Mr. Eaken's claim is not barred by the two-year statute of limitations in Mississippi Code Annotated Section 71-3-35(1). The employer/carrier had notice of a work injury and provided medical benefits to Mr. Eaken. Additionally, the employer allowed him to be off work for doctor's appointments which the employer knew or should have known were related to his back complaints and paid him full salary when he was off work. This is the same as paying him full wage in lieu of temporary total disability benefits and counts to toll the statute of limitations regarding the filing of a petition to controvert. According to Mr. Eaken, he has continuously gone to either a medical doctor or a chiropractor for relief from his back problems, and the employer has continuously paid him while he was off work or required/allowed him to use vacation time. The employer/carrier cannot pay a claimant full wages or require/allow a claimant to use vacation time in lieu of workers' compensation benefits, then pull the plug by saying no benefits have been paid and therefore the period of limitations has run. That the claimant is able to continue working at his usual job is to the benefit of both the employer and the claimant.
4. The average weekly wage of the claimant on February 13, 1992, was $395.64, as stipulated by the parties.
5. The claimant has not been temporarily totally disabled more than a day or two at a time because of the work injury, but in the aggregate he has missed more than fourteen days. He testified that when he went to the doctor and missed less than half a day of work, he received his full salary. When he was off work for a full day or more at a time, he took vacation time and received full vacation pay. He testified (that he has taken a total of about four weeks of vacation pay when he should have been receiving workers' compensation benefits. The carrier is responsible for paying temporary total disability benefits to Mr. Eaken for any days missed for back problems for which he received vacation pay, a benefit earned by him due to his tenure at the company and not meant to be paid in lieu of workers' compensation benefits.
6. Mr. Eaken reached maximum medical improvement on October 18, 1995, when he last saw Dr. Eckman.
7. Mr. Eaken has not suffered permanent occupational disability because of the back injury he received on February 13, 1992. Apparently he has some degenerative problems in his spine, together with curvature of the spine, that he continuously aggravates with physical activity. He is able to continue at his job, however, and fulfill his job duties in a manner appreciated by his employer. He has received raises since the work accident and continues to work fifty or more hours a week, earning overtime pay. His employer has not made special physical accommodations for him.
8. The employer and carrier are responsible for payment of all medical services and supplies related to the claimant's back problems and rendered by or at the order of Dr. Charles Secrest, his family doctor, Dr. Joseph Farina, neurologist, and Dr. Walter Eckman and Dr. Alexandre Solomon, neurosurgical specialists, plus mileage reimbursement for those doctor visits. The employer and carrier are responsible for payment of those chiropractic services rendered Mr. Eaken in 1992 and 1993 before the effective date of the Commission's Medical Fee Schedule, and after the effective date of the Medical Fee Schedule for all chiropractic visits which would be allowed under its provisions, plus mileage reimbursement. If Mr. Eaken needed additional medical treatment provided by the employer/carrier, he should have filed a motion for medical treatment before obtaining the medical services without authorization from the employer/carrier. There are no such motions in the Commission file in this matter.
9. The employer and carrier are responsible for
additional medical services in this matter. Should Mr. Eaken wish to return
to Dr. Solomon to follow through with his recommendations, the employer
and carrier shall provide these services and anything else that Dr. Solomon
recommends relating to and required by the work injury of February 13,
1992.
IT IS THEREFORE ORDERED that the employer and carrier pay workers' compensation benefits to the claimant as follows:
1. Temporary total disability benefits at the rate of $227.18 per week beginning February 13, 1992, for any days Mr. Eaken has missed work and taken vacation pay because of his back problems; and
2. Provide medical services and supplies as required by the nature of the claimant's injury and the process of his recovery therefrom pursuant to Mississippi Code Annotated §71-3-15 (1995), General Rule 12, and the Medical Fee Schedule.
SO ORDERED, this the 10th day of January, 2000.
LINDA A. THOMPSON
ADMINISTRATIVE JUDGE
ATTEST:
Brenda H. Goolsby, Secretary