MWCC NO. 94-11045-G-2153

MELISSA J. HARRELL                                                                                                                      CLAIMANT

vs.

TIME WARNER/CAPITOL CABLEVISION                                                                                    EMPLOYER
AND
TRAVELERS/AETNA PROPERTY CASUALTY CORPORATION                                                   CARRIER

APPEARING FOR CLAIMANT:
Honorable Lance L. Stevens, Attorney at Law, Jackson, Mississippi

APPEARING FOR DEFENDANTS:
Honorable Richard M. Edmonson, Jr., Attorney at Law, Jackson, Mississippi
 

The Commission heard the above styled cause on September 18, 2000 in the offices of the Mississippi Workers' Compensation Commission in Jackson, Mississippi on "Claimant's Notice of Appeal to 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 June 16, 2000.

SO ORDERED, this the 20th day of September, 2000.

MISSISSIPPI WORKERS' COMPENSATION COMMISSION
BY: Barrett Smith
Barney Schoby
Beverly Bolton
COMMISSIONERS

ATTEST:
Joann McDonald
___________________________
 

MWCC No. 94 11045-G-2153

MELISSA J. HARRELL                                                                                                                    CLAIMANT

vs.

TIME WARNER/CAPITOL CABLEVISION                                                                                  EMPLOYER
AND
TRAVELERS/AETNA PROPERTY CASUALTY CORPORATION                                                 CARRIER

REPRESENTING THE CLAIMANT:
Lance L. Stevens, Esq., 1855 Lakeland Drive, Suite Q-230, Jackson, MS 39216

REPRESENTING THE EMPLOYER AND CARRIER:
Richard M. Edmondson, Jr., Esq., P. O. Box 13669, Jackson, MS 39236
 

The claimant alleges that she sustained an injury to her lower back and right shoulder during the course and scope of her employment on June 6, 1994, and that the lower back injury eventually resulted in a condition known as "interstitial cystitis." The claimant alleges a resulting permanent disability and loss of wage earning capacity based upon her injuries and the interstitial cystitis. The employer and carrier admitted compensability of the lower back injury, although liability was denied for any other injuries. The employer and carrier further deny that the claimant is entitled to any permanent disability benefits as a result of her lower back injury. A hearing in this matter was held in Jackson on January 21, 2000, after which the record was kept open pending submission of briefs by the parties, and was then closed on February 10, 2000 upon receipt of the briefs.
 

Prior to the hearing the parties were able to stipulate to the following:

1 . That the claimant's average weekly wage at the time of her injury was $292.78;

2. That the claimant reached a point of maximum medical improvement in regard to her back on October 6, 1997, per Dr. David Collipp;

3. That the claimant had been paid temporary total disability benefits in the aggregate amount of $16,666.38, said payments having covered the intervals of June 9, 1994 to September 22, 1994, January 8, 1996 to January 12, 1996 and February 10, 1997 to October 20, 1997; and also that the claimant had been paid permanent partial disability benefits in the amount of $19,276.80 from October 21, 1997 to September 20, 1999.

4. That General Exhibits 1 - 10, as set out on the exhibit list herein, were admissible as evidence.

During the course of the hearing, a Time Warner termination document concerning the claimant was admitted as Claimant Exhibit 11, medical records from the MEA Clinic were admitted as Employer/Carrier Exhibit 12, and Social Security Administration records concerning the claimant were admitted as Claimant Exhibit 13.
 

The claimant is a 38 year old resident of Raymond, Mississippi, who completed high school and attended approximately two years of nursing school through St. Dominic, with additional schooling in forensic pathology through Hinds Jr. College; however, no degree was ever obtained. Her first full time job began at Capitol Cablevision in approximately 1984, when she was 24 years old. She worked at Capitol for 10 years in telemarketing and as a sales representative. Her duties as a customer sales representative including handling customer concerns, such as checking out convertor boxes, remotes and different types of cabling.

Ms. Harrell testified that on approximately June 6, 1994, she was taking some mail to Building "C" and that she was walking over a ramp between Buildings "A" and "B" when she tripped and fell over a mat, landing on the ramp with her right palm down and her right elbow in her stomach. However, the claimant admitted that she first began having back problems on or about June 12, 1989, and she underwent surgery by Dr. Bernard Patrick in April, 1991. On or about February 8, 1994, Dr. Patrick performed a second surgical procedure to her lower back.¹  She testified that she was doing "quite well" after her second surgical procedure and that she had been released to return to work by Dr. Patrick about 6 weeks prior to tripping and falling on the mat in question.

Ms. Harrell testified that she returned to work at Capitol shortly after the fall occurred and that she continued working until approximately November, 1994, when she had to go out for an emergency hysterectomy, which is not alleged to be a part of this claim. She did not return to Capitol after that surgical procedure, however, and she next worked for Truvision/Wireless One beginning in August, 1995. While the claimant was admittedly terminated by Capitol after she went out for the emergency hysterectomy, it is not alleged that her termination was due to the June, 1994, injury.

Ms. Harrell stated that she was a corporate telesales and telemarketing supervisor at Wireless One and that she earned between $28,000.00 and $30,000.00 per year with that employer. She testified that she last worked for Wireless One on August 2, 1996, when she was terminated after she told her supervisor, Wait Eilers, that she was about to be out for back surgery; however, she admitted that her separation letter from Wireless One indicated that she was being terminated due to a corporate merger. The claimant did not testify as to any additional employment subsequent to Wireless One, nor did she testify in regard to any job attempts which may have taken place subsequent to August 2, 1996.

The claimant stated that she first began noticing urological and/or bladder problems in approximately February, 1996, when she went to Dr. Darden North, thinking that it was a gynecological problem. She was apparently already scheduled to undergo a gynecological procedure by Dr. North and she stated that Dr. Charles Secrest evaluated her for interstitial cystitis while Dr. North was performing surgery. Dr. Secrest diagnosed her with interstitial cystitis and referred her to Dr. John Aldridge for further treatment. The claimant testified that, at present, she continues to experience pain in her lower back and right shoulder up to her neck. She testified that she also continues to experience urological problems which affect her daily living and necessitate her urinating an extreme number of times every day. Ms. Harrell further testified that she is in pain 24 hours a day, 7 days a week, and that she does not know how she can work for another employer, mainly due to her urinary problems. She stated that her urologists have not released her to return to work and that she has been unable to search for another job due to the problems indicated hereinabove. The claimant explained that her ongoing pain is alternately focused in her right shoulder and arm or her lower back, and that her shoulder pain has gotten increasingly worse since her work accident. She stated that she mentioned her shoulder complaint to Dr. Patrick, but he nevertheless treated only her back, and that she also complained about her shoulder to Drs. Joe (MEA Clinic), Blaylock, Collipp and McGuire.

On cross-examination, Ms. Harrell admitted having problems with her back since approximately 1989, when she injured the same while lifting a wastebasket. She also admitted to periodic flare-ups with her lower back after Dr. Patrick's surgical procedure in 1991 and she admittedly reinjured her lower back in January, 1994, while bending over to pick-up her child. Furthermore, Ms. Harrell admitted having "gynecological" problems since the birth of her child in 1991. Ms. Harrell admitted that the period of time she missed from work at Capitol from February through May, 1994, was related to her second back surgery, which was not the result of a work-related incident. The work which she missed subsequent to October or November, 1994, through the end of that year was due to her hysterectomy, which was also not work-related. Ms. Harrell stated that when she was terminated by Capitol, she was told by her supervisor that she had exhausted her FMLA leave by going out again for the hysterectomy. She admitted that her urological problems did not begin until February or March, 1996, a little less than 2 years after the fall in question.

Upon further cross-examination, the claimant admitted that she was able to work on a full-time basis with Wireless One and that she did not require any accommodations for her back or urological symptoms.

Mr. Walt Eilers testified on behalf of the employer and carrier. He stated that he was the claimant's supervisor at Wireless One during her employment tenure from August of 1995 through August 1996. He stated that she was an excellent employee and that he was unaware of any absences which she may have experienced due to her back or urological symptoms, although he was aware that she was having lower back problems as a result of her prior injuries and surgeries. He testified that the claimant was terminated on August 6, 1996, because the company needed someone else to help run a new "call center" which they were in the process of building. He denied that the claimant's termination had anything to do with her lower back problems and he denied any knowledge that the claimant may have been about to go out for another back surgery.

Ms. Johnny Denman also testified on behalf of the employer and carrier. She indicated that she has been the Human Resources Director for the employer herein since February, 1999. She stated that, based upon her review of the claimant's personnel file, Ms. Harrell had been terminated because she had used up all of her FMLA leave and they needed to hire another employee to take her position. She denied that any of the claimant's workers' compensation-related absences were counted against her under the FMLA and she denied that Ms. Harrell's termination had anything whatsoever to do with the injury of June 6, 1994.

The medical records of Dr. Bernard Patrick were introduced into evidence as Exhibit No. 1. They revealed that the claimant's low back symptoms originated in 1989 when she was lifting a wastebasket. She had an acute exacerbation in February, 1991 and, in April, 1991, she had a severe acute attack of back pain with right leg radiation while batting a softball. On April 17, 1991, he removed a centrally extruded disc at the L-5, S-1 level and he explored the L4-5 disc, which was found to be normal. She was released to return to work as of March 1, 1992, and she did well thereafter for approximately 2 1/2 years.

Dr. Patrick's records reflect that the claimant returned to him on January 28, 1994, indicating that she had done well until one month prior when, while bending over to pick-up her child, her back "popped," causing an acute burning pain radiating from the sacrum to her neck. A subsequent MRI study revealed a recurrent disc rupture at the L-5,S-1 level on the right, the site of her prior surgery, and a second surgical procedure was performed on February 8, 1994, to remove a recurrent extruded disc fragment. Subsequent to the second surgical procedure, she continued to complain of lower back and bilateral leg pain and she was rehospitalized on February 26, 1994, for the same. On March 4, 1994, she was improved and discharged home, although she returned again on May 20, 1994, complaining of some low back pain, although she had returned to Capitol by that time doing office work. Dr. Patrick recommended that she continue to wear a full corset for at least another month and he placed her on Xanax.

It does appear that the claimant returned to Dr. Patrick until August 4, 1994, at which time she reported failing at work on June 6, and she complained of worsening chronic low back pain and increasing low back spasm. She had not worked since June 9, 1994. At the time of her August 4 visit, Dr. Patrick felt that she was having pain primarily arising from her incision and secondary to spasm which he indicated she tended to develop rather quickly with low back pain. Subsequent objective studies, including a myelogram and post-myelogram CT scan, were normal, as was a bone scan. On September 16, 1994, Ms. Harrell volunteered to Dr. Patrick that she was ready to return to work on a trial basis and he concurred. Dr. Patrick indicated that, in his opinion, the claimant could continue to perform secretarial work, although she would need to be restricted from activities involving frequent stooping, bending or heavy lifting. He also indicated that Ms. Harrell was in a temporary total disability status, as a result of her back symptoms, from June 9, through September 16, 1994, and that she would have a 5 % to 7 % permanent impairment rating to her body as a whole, although it is not clear whether the permanent impairment rating is related to her prior injuries and surgeries or to the injury which occurred on June 6, 1994. There is no mention of a shoulder complaint in Dr. Patrick's records.

The medical records of Dr. Russell Blaylock were introduced into evidence as Exhibit No. 2. Such reveal that he only saw the claimant on one occasion, May 9, 1995, at the referral of Dr. Patrick. Dr. Blaylock took history from the claimant of her two prior back surgeries and of a recurrence of her back pain which took place on or about February 7, 1994. The claimant also reported the fall which occurred in June, 1994. Dr. Blaylock performed a neurological examination on Ms. Harrell and he recommended a right sacroiliac joint injection, although no further surgery. He also performed a lumbar MRI study on the date of the office visit and such reflected only mild degenerative and post-operative changes at the L-5,S-1 level on the right, without evidence of recurrent herniated disc. There is no mention of a shoulder complaint in Dr. Blaylock's records.

The medical records of Dr. William Thompson, which were introduced into evidence as Exhibit No. 3, indicate that he saw claimant on May 23, 1995, at the referral of Dr. Patrick. At that point, a history was taken that the claimant had developed gynecological difficulties and eventually had to have a hysterectomy in October, 1994, although she was also complaining of increasing lower back pain. Dr. Thompson diagnosed a post-laminectomy status continued back and leg pain, although he did not believe that she had an operative lesion and he recommended a trial of epidural steroid injections. As before, there is no mention of a shoulder complaint in Dr. Thompson's records.

The claimant's medical records from Dr. Collipp were introduced into evidence as Exhibit No. 5. Those indicate that he saw the claimant on April 30, 1997, on a referral from Dr. Lon Alexander, whose records were not introduced. He appeared to treat Ms. Harrell conservatively for lumbar and cervical strains and on October 2, 1997, he had her undergo a functional capacity evaluation which revealed a great deal of pain amplification and symptom exaggeration. According to the FCE report, the evaluation team was of the opinion that the claimant could nonetheless be released to return to work at a sedentary to light level. On October 6, 1997, Dr. Collipp concurred with the findings on the FCE and he believed that she had reached a point of maximum medical improvement. He assigned a 12% permanent impairment rating to the claimant's body as a whole due to her pre-existing injuries and surgeries and he gave an additional 5% for the workers' compensation injury of June 6, 1994.

The medical records of Dr. Robert McGuire were introduced into evidence as Exhibit No. 6. He performed an independent medical evaluation, at the request of this Administrative Judge, on February 8, 1999. At that time, the claimant reported injuring her back and right shoulder when she tripped and fell at work in June, 1994. She also reported that she began developing bladder problems approximately 2 years after that incident and that she had undergone multiple treatment modalities for the same. The question at that point was whether her lower back problems were the cause of her interstitial cystitis. Dr. McGuire performed a physical examination on the claimant, as well as a review of her medical records, and he was of the opinion as a result that a surgical fusion would not likely alter her present situation and he concurred with Dr. Collipp's impairment rating and date of maximum medical improvement. In regard to the claimant's urological problems, he offered to defer to the claimant's other treating physicians in that regard, Drs. Secrest and Aldridge. Finally, Dr. McGuire indicated that the claimant may have a rotator cuff tear in her right shoulder and he opined that it was possible that the injury in question could have been the cause. He therefore recommended an evaluation by a shoulder specialist for possible surgery.

The claimant's medical records from Dr. Rand Voorhies at Oschner Clinic in New Orleans were introduced into evidence as Exhibit No. 4. The same reflect that the claimant underwent multiple studies in regard to her low back and urological symptoms in May and August, 1996. According to a note from Dr. Voorhies, the claimant underwent an anorectal manometry and a pudendal nerve terminal motor latency study and the same showed no evidence of "nerve damage." That letter also indicates that a Dr. Prats was of the opinion that the claimant probably did have interstitial cystitis, although probably did not have a neurogenic bladder. Apparently, some type of conflict arose between the claimant and the physicians at Oschner and Dr. Voorhies recommended that she be transferred back to a practitioner in the Jackson, Mississippi, area.

The deposition testimony of Drs. Aldridge and Secrest, in addition to their medical records, were introduced as Exhibits No. 7, 8 and 10, respectively. Dr. Secrest, a urologist, testified that he initially performed a cystoscopy on the claimant's bladder on March 14, 1996, while she was already undergoing a laparoscopy by Dr. North for pelvic pain. Dr. Secrest stated that he found that she had a limited bladder capacity, along with other physical findings, which led him to a diagnosis of interstitial cystitis, which is essentially a painful bladder condition of undetermined cause that presents with symptoms such as pelvic pain and urinary frequency. He testified that while it is a benign disease, it can wax and wane over a period of time and it is a chronic condition. Dr. Secrest again stated that there is no known cause for interstitial cystitis. He stated that on April 3, 1996, he performed a bladder washing in order to rule out cancer and that procedure again confirmed that she had interstitial cystitis.

On May 13, 1997, he performed video-urodynamics, which is analogous to an EKG of the bladder, and such revealed pelvic floor spasticity which he thought was secondary to pain and the interstitial cystitis. However, that study ruled out a neurogenic bladder as a cause of the claimant's symptoms. Dr. Secrest stated that there would be no way to state based upon a reasonable degree of medical certainty that interstitial cystitis is related to back injuries, although he believed that such could be related to a neurologic disease in some way. Further, Dr. Secrest was not aware that the claimant's two prior surgical procedures pre-existed the subject workers' compensation claim and he admitted that it would be impossible to state which event, injury or surgery may have led up to her diagnosis of interstitial cystitis. Dr. Secrest also admitted that the interstitial cystitis could be related to scar tissue which may have resulted from one of her prior surgical procedures. In summary, Dr. Secrest felt that while Ms. Harrell's interstitial cystitis may be causally related to nerve damage in some way, he was unable to state to a reasonable degree of medical certainty that her problems were related to the injury of June 6, 1994, especially in light of her prior back problems and surgeries.

Dr. Aldridge, another urologist, testified that he evaluated the claimant on July 16, 1996, at the referral of Dr. Secrest. He indicated that she reported to him that she was having bladder discomfort and that she was having to get up 5 or 6 times a night to urinate, in addition to urinating about every 30 minutes during the day. He felt that, based upon his physical examination of the claimant, she had a urological problem which could have been related to her lower back problems, more than likely neurogenic in nature. However, Dr. Aldridge was unable to relate the claimant's neurogenic problems to her June 6, 1994, accident to a reasonable degree of medical certainty and he admitted that he condition could be related to scar tissue as a result of one of her prior back surgeries. He admitted that there is simply no way to tell whether her urological problems, which began 2 years after the subject incident, were related to the fall which occurred on June 6, 1994.

The deposition of Dr. Jackson Fowler was introduced into evidence as Exhibit No. 9. Dr. Fowler testified that he is the Chief of the Division of Urology at University Medical Center and that he had been a Board certified urologist for 19 years. Dr. Fowler stated that he was asked to see the claimant on one occasion and that he was provided with a complete copy of her medical records prior to that time. He indicated that he evaluated Ms. Harrell approximately 2 months before the date of his deposition on September 27, 1999, at which time she reported urinary frequency and urgency, a sensation of incomplete bladder emptying and discomfort with intercourse. Dr. Fowler admitted that he did not perform a physical examination on the claimant because she had already been extensively worked up and there were no additional diagnostic studies which he felt were warranted. Nonetheless, based upon his meeting with Ms. Harrell and his review of her medical records, he had no conclusive reason to believe that the fall in question led to her urological disorders. He felt that although she did have a diagnosis of interstitial cystitis and not a neurogenic bladder dysfunction, he did not believe that the same was related to the fall due to her extensive pre-existing back problems and the fact that her symptoms did not begin for approximately 2 years after the fall. In fact, Dr. Fowler did not believe that any of the claimant's back problems led up to the interstitial cystitis because he was not aware of any convincing data that back injuries and neurological diseases lead to the same.
 

Upon consideration of the relevant evidence and the applicable law, the Administrative Judge finds and concludes as follows:

1 . The claimant suffered a compensable aggravation to her lower back during the course and scope of her employment on June 6, 1994, when she tripped and fell.

2. The claimant's average weekly wage at the time of the subject injury was $292.78, per stipulation of the parties.

3. The claimant reached maximum medical improvement from her compensable low back aggravation on October 6, 1997, and she sustained a 5% permanent functional impairment to her whole person as a result of the aggravation.

4. The claimant has not shown that she is entitled to any temporary total disability benefits beyond the amount stipulated to have been previously paid, namely $16,666.38.

5. The claimant has failed to prove by a preponderance of the credible evidence that she sustained a compensable injury to her right shoulder on June 6, 1994, or that her admittedly compensable lower back injury caused or contributed to a subsequent interstitial cystitis, the symptoms of which began approximately 2 years after the date of injury. According to the testimony of three Board certified urologists in this matter, none were able to state the specific injury of June 6, 1994, caused or accelerated her lower back problems such that interstitial cystitis was the result. In addition, all three admitted that the etiology of interstitial cystitis is unknown at this time, although back injuries may play a role in the development of the same. Likewise, it does not appear that Drs. Secrest or Aldridge were aware that the claimant's preexisting back problems and her prior surgical procedures by Dr. Patrick were not in any way related to the fall in June, 1994. Given the substantial pre-existing nature of the claimant's lower back problems and the fact that her urological problems did not begin for almost 2 years after the accident in question, the Administrative Judge is of the opinion that medical testimony in this case has failed to relate the claimant's interstitial cystitis to the fall to a reasonable degree of medical certainty. In regard to the right shoulder, there does not appear to be any documentation of a problem with that member until she underwent a functional capacity evaluation at the referral of Dr. Collipp on October 1, 1997, more than 3 years after the subject accident.

6. Considering the foregoing along with the claimant's age, her education and work experience, the nature of her injury and when viewing the medical evidence as a whole, there is sufficient credible evidence to support the conclusion that she has suffered a 15% loss of wage earning capacity as a result of the subject injury.
 

IT IS, THEREFORE, ORDERED AND ADJUDGED that the employer and carrier pay and provide workers' compensation benefits to the claimant as follows:

1. Permanent partial disability benefits at the rate of $29.28 for 450 weeks from and after October 6, 1997, with proper credit allowed for any such benefits previously paid. To each such installment not timely paid there is added the 10% statutory penalty, along with interest at the legal rate from and after the filing of the Petition.

2. Such medical services and supplies as may reasonably be required by the nature of the claimant's back injury and the process of her recovery therefrom, subject to the Medical Fee Schedule. It is specifically ordered that the employer and carrier are not responsible for any of the claimant's medical services and/or supplies which may be related to her urological or right shoulder symptoms.

SO ORDERED this the 16th day of June, 2000.

JAMES HOME BEST
ADMINISTRATIVE JUDGE

ATTEST:
Brenda H. Goolsby, Secretary
___________________________

1. It is not being alleged that the claimant's prior back injuries and surgeries before June 6, 1994, are or were work-related.