MWCC NO. 94-16717-F-8313
SANDRA SIMONS CLAIMANT
vs.
FOAMEX PRODUCTS, INC.
EMPLOYER
AND
THE INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA
CARRIER
APPEARING FOR CLAIMANT:
Honorable Duncan L. Lott, Attorney at Law, Booneville,
Mississippi
APPEARING FOR DEFENDANTS:
Honorable Andrew Hughes, Attorney at Law, Tupelo,
Mississippi
The Commission heard the above styled cause on May 8, 2000 in the offices of the Mississippi Workers' Compensation Commission in Jackson, Mississippi on "Claimant's Petition for Review of Order of Administrative Judge".
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 the Administrative Judge" dated October 19, 1999.
SO ORDERED, this the 9th day of May, 2000.
MISSISSIPPI WORKERS' COMPENSATION COMMISSION
BY: Ben Smith
Barney Schoby
Beverly Bolton
COMMISSIONERS
ATTEST:
Brenda H. Goolsby, Secretary
___________________________
MWCC NO. 94 16717-F-8313
SANDRA SIMONS CLAIMANT
vs.
FOAMEX PRODUCTS, INC.
EMPLOYER
AND
THE INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA
CARRIER
REPRESENTING THE CLAIMANT:
Mr. Duncan Lee Lott, Attorney at Law, Booneville,
Mississippi
REPRESENTING THE EMPLOYER-CARRIER:
Mr. David B. McLaurin, Attorney at Law, Tupelo,
Mississippi
Mr. Andrew Hughes, Attorney at Law, Tupelo, Mississippi
Claimant alleged that a work-related accident
occurred on August 29, 1994, in the form of bilateral carpal syndrome.
The Employer-Carrier admitted compensability and paid temporary disability
and medical expenses. The hearing was held on June 16, 1999, at the Lee
County Justice Center in Tupelo, Mississippi. Post-hearing briefs were
submitted, and the record was closed August 31, 1999.
1. Claimant received work-related injuries to her upper extremities in the form of bilateral carpal syndrome on August 29, 1994.
2. Claimant's average weekly wage on the date of the work accident was $289.20.
3. Claimant began working for the Employer on April 25, 1994, and she last worked at the Employer on October 5, 1995.
4. There is no issue to be decided concerning the reasonableness and necessity of medical treatment.
5. If Ms. Pam Lamb were called to testify by Claimant,
her testimony would be substantially and materially the same as Ms. Dorothy
Duncan's testimony.
1. The existence and extent of additional temporary disability after July 16, 1997, attributable to the work-related accident.
2. The existence and extent of permanent disability attributable to the work-related accident, particularly whether the scheduled member injuries arise to a whole body injury under the Smith v. Jackson Construction Company1 analysis.
3. Whether Claimant has reached maximum medical improvement, and if so, the date.
4. Whether Claimant is entitled to recover penalties
and interest on disability payments not timely made.
Claimant is a 50-year old resident of Itawamba County, Mississippi, with a high school degree. She previously worked at Walgreen's, stocking and clerking then later as the bookkeeper handling time cards and payroll. Claimant has also worked in a fast food restaurant as the food preparer and cashier, at a manufacturer as a sewing machine operator, and then at the Employer beginning in April 1994. Claimant said she was an assembler at the Employer and used a glue gun, scissors, and knife. She testified that her position required repetitive use of her hands by pushing and pulling, as well as grasping. Claimant is right dominant.
Beginning in September 1994, Claimant had several surgeries on both hands by Dr. Massey and Dr. Geissler. Claimant stated that her employment with the Employer was terminated on October 5, 1995. After leaving the Employer, Claimant said that she worked 28 hours at a local fast food restaurant sometime before November 1996; however, Claimant said that she had pain and tingling in her arms so she quit. Claimant testified that in December 1997, she applied for work at three different places - a supermarket, a grocery store, and a fast-food restaurant - but received no job offers. She said that she began receiving Social Security benefits in April 1998.
Claimant said that she currently has problems cooking, handling coins,
opening doors with handles or knobs, and dressing herself due to the buttons
and zippers. She said she can no longer do any physical activities or sports
and has problems sleeping. Claimant testified that she still has pain in
her right hand up to her elbow. She feels that she can no longer return
to her previous employment at the Employer due to the repetitive use of
her fingers and hands. She also feels that she can no longer drive since
her hands are numb. Although Claimant admitted she has not seen a physician
in over a year, she claimed that the tips of her fingers have lost feeling
in the last four
months.
Claimant said that she currently wears braces on both arms, which make her wrists feel better. She admitted that no doctor actually prescribed the braces, but she related that she was told to wear them if they helped. Claimant testified that her last position with the Employer was handling paperwork only although she did move foam around from time to time.
Ms. Dorothy Duncan testified for the Claimant. She stated that she worked with Claimant in the same department at the Employer during August 1994. Duncan described the position as requiring continuous pressure and gripping of glue guns. She also stated that they normally worked over eight hours per day. Duncan recalled Claimant complaining of wrist pain and problems when placing pressure on the glue gun. Duncan testified that when Claimant returned to work after her surgeries, she was in a different job that was specifically created for Claimant. Duncan confirmed that the position did not exist prior to Claimant's return to work.
Mr. Walker Powell, occupational therapist with the North Mississippi Medical Center, testified for Claimant. Powell stated that he has administered functional capacity examinations for three years. He confirmed that he handled the 1997 functional capacity examination of Claimant (Exhibit 14).
Powell stated that he did not use the blood pressure/heart rate checks for the types of tests that were performed by Claimant during the functional capacity examination. He said that he evaluated only Claimant's arms, hands, and fingers. Powell asserted that the results from Claimant's functional capacity examination indicated that she gave maximum effort during the evaluation and that she fit into the sedentary work level.
Powell described a "sedentary" position as involving no repetitive movement and very little lifting. He said that he used the definition from the Dictionary of Occupational Titles. Powell opined that Claimant could work "in some capacity" within the parameters of the 1997 functional capacity examination.
Mr. Robert Honeycutt, vocational consultant, testified for Claimant as an expert in vocational rehabilitation assessment.2 Honeycutt stated that he testified during Claimant's social security disability hearing as an impartial witness called by the Social Security Administration. Honeycutt testified that he interviewed Claimant, administered an IQ test, and reviewed various physician reports. He felt that Claimant's lack of manual dexterity had a big impact on the sedentary range she could work. He opined that Claimant could not return to her previous employment and that she was disabled from any work at this time. While Honeycutt stated that Claimant's only semi-skilled employment was at Walgreen's, he did not understand that Claimant had handled bookkeeping responsibilities at that position.
Honeycutt testified that his responsibility was only to evaluate Claimant and not to attempt to find employment for her. He assumed that Claimant could not grasp, lift, or feel during his evaluation of her employment possibilities. Honeycutt stated that he did not personally contact any employers on Claimant's job search list.
Ms. Jennifer Oubre, vocational consultant, testified for the Employer-Carrier as an expert in rehabilitative counseling. Oubre testified that her office initially evaluated Claimant in December 1996 and conducted a job search in January 1998. Oubre stated that she performed another evaluation on May 19, 1999.
Oubre testified that several reports were issued containing potential employment opportunities for Claimant. She said such reports were issued in February 1997, January 1998, and May 1999. She confirmed that a labor market survey was performed.
Oubre testified that she contacted every potential employer on the May 1999 list she prepared in order to verify the availability of the position. She said that in making her evaluation and performing her job search, she considered the 1997 functional capacity examination, Dr. Gray's restrictions, and Claimant's deposition testimony. Oubre stated that she later contacted all the employers except three on her May 1999 list, and none of the employers had a record of an application by Claimant. Although there were no physician restrictions on driving, Oubre considered Claimant's deposition testimony that she had problems driving.
Oubre testified that follow-up on previous job search lists showed that Claimant had not contacted or applied at any of the job listings. While Oubre felt that Claimant could perform the jobs listed on the job search, she conceded that Claimant was unable to return to her previous job at the Employer.
Mr. Todd Kelly with Inphoto Surveillance, testified that he videotaped Claimant performing daily activities at a flea market, including assisting customers, hanging clothes, lifting, carrying gallon jugs, and disciplining children He identified Exhibit 24 as the videotape he personally recorded on October 17 and 18, 1997.3
Ms. Stephanie Aarsvold, with Inphoto Surveillance, testified that she recorded Claimant's activities on April 13, 1999, and April 18, 1999. Aarsvold testified that Claimant did have arm splints on during her observation. She observed Claimant walking, bending, carrying various items, and pulling weeds in her yard.
In rebuttal, Claimant testified that she did contact some employers on the January 14, 1998, job search list which was entered as Exhibit 20. Claimant testified that she initiated contact a week after receiving the letter. She said that she spoke with Red Roof Inn, Trace Inn, Ramada Inn, and Bryant Furniture. However, she said that she did not apply at Star Systems or North Mississippi Medical Center. She said she has not received any job offers from her effort.
Dr. Grayden A. Tubb, family medicine practitioner, began treating Claimant in August 1994 for a diagnosis of bilateral carpal tunnel syndrome. He referred Claimant to Dr. Fred Mitchell Massey in September 1994 and did not see Claimant again until May 8, 1996. He noted Claimant's complaints of pain and difficulty with both hands. He also recorded that Claimant said she worked five days at a fast food restaurant but she was unable to continue the work due to pain. Dr. Tubb advised Claimant at that time to return to Dr. Geissler for evaluation and treatment. He did not see Claimant again until January 1997, at which time he recorded Claimant's complaints of pain and numbness in both hands and wrists. He found Claimant to be neurologically intact and advised her to return to Dr. Massey.
Dr. Tubb last saw Claimant on June 16, 1997, at which time he noted that Claimant either had scar tissue from the previous surgery or developed recurrent carpal tunnel syndrome. He testified that Claimant had chronic pain syndrome in her hands. At that last visit, Dr. Tubb did not feel that Claimant could return to her previous position with the Employer. Dr. Tubb did not have an opinion as to whether or not Claimant was at maximum medical improvement since he had not seen her since June 1997.
Dr. Fred Mitchell Massey, with the Tupelo Orthopedic Clinic, began treating Claimant in September 1994 for bilateral carpal tunnel syndrome upon referral by Dr. Grayden Tubb. Dr. Massey testified that he obtained nerve conduction studies which confirmed the diagnosis of bilateral carpal tunnel syndrome. He performed a right carpal tunnel release in September 1994 and a left carpal tunnel release in October 1994. Dr. Massey released Claimant on November 22, 1994, with a two percent (2%) permanent medical impairment to each upper extremity. However, he began treating her again in January 1995 for sensory hypesthesia on the ulnar aspect of the ring and third finger which he stated would increase her impairment to five percent (5%) for the right upper extremity.
Dr. Massey treated Claimant in March 1995 for tendonitis in her left thumb, which he stated would be caused by repetitive use of her hand. He operated on her thumb in April 1995. Afterwards, Claimant continued to complain of pain in her right wrist; however,. Dr. Massey released her on April 27, 1995, to light duty work with no heavy lifting by the right arm since he found no other neurological deficit. He continued to treat her until August 1995 for tendonitis in her wrist.
Dr. Massey stated that, Claimant was not seen again until January 1997 for complaints of symptoms related to her carpal tunnel syndrome. He ordered additional nerve conduction studies in May 1997, which revealed mild to moderate carpal tunnel syndrome on the left and moderate to severe carpal tunnel syndrome on the right. Dr. Massey then referred Claimant to Dr. Howard Holaday, and he has not seen Claimant since that time. He testified that Claimant's permanent neuron damage was related to her initial diagnosis of carpal tunnel syndrome. Dr. Massey did not feel that Claimant could work during her second round of treatment by him from January 9, 1997, until May 13, 1997, and he did not feel that Claimant had reached maximum medical improvement as of the last visit due to the pending surgical consultation.
Dr. Howard Holaday, neurosurgeon with North Mississippi Neurosurgical Services, saw Claimant upon referral of Dr. Massey on July 16, 1997. Dr. Holaday noted Claimant's complaint of bilateral hand pain and paresthesias. He reviewed the 1995, 1996, and 1997 nerve conduction reports and conducted a physical examination. He found Claimant to have good distal pulses in both upper extremities and said that the Tinel's sign was negative with the Phalen's test being equivocal. He recommended repeating the EMG nerve conduction and decided not to re-operate on her carpal tunnel to explore releasing the nerve since he did not see clear objective evidence that there was progressive damage to the median nerve. Dr. Holaday testified that he would have allowed Claimant to return to unrestricted work and stay as active as possible, and then later he would recommend repeating the nerve conduction studies.
Dr. Holaday testified that Claimant could have either a continued compression of the median nerve or existing, residual damage related to her prior carpal, tunnel surgeries. He thought Claimant just had residual damage that was done to the nerve previously and that she did not have a continued case of carpal tunnel syndrome. Dr: Holaday stated that he examined Claimant only to answer the question of whether she would benefit from repeat surgery. He testified that based on the examination, her symptoms, and the EMG studies, he did not recommend additional surgery at the time he saw her.
Dr. William B. Geissler, orthopedic surgeon, treated Claimant from June 1995 until June 1996. He decided that x-rays showed Claimant's ulna was longer than her radius, giving Claimant a predisposition to having problems with the ulnar aspect of her wrist. Dr. Geissler performed arthroscopic surgery for a tear of the triangular fibrocartlidge complex, which he described as a ligament inside the wrist over the ulnar. Dr. Geissler performed a second surgery on Claimant's wrist on November 2, 1995, when he fused bones together. Dr. Geissler testified that the surgeries he performed were not related to the carpal tunnel syndrome.
With regard to Claimant's carpal tunnel syndrome, Dr. Geissler ordered and reviewed new EMG nerve conduction tests, from which he interpreted the EMG values as having "significantly improved" from her initial carpal tunnel surgery. As a result, he did not recommend any further surgery at that time. He placed Claimant at maximum medical improvement from the wrist surgeries on March 13, 1996, and gave Claimant a four percent (4%) permanent medical impairment to her right upper extremity due to her wrist problems.
Dr. Geissler treated Claimant again on May 29, 1996, for complaints of numbness in her hands. Claimant told Dr. Geissler that she had worked at a fast food restaurant for five days and experienced bilateral hand numbness. Since Claimant had positive Tinel's and Phalen's signs,- Dr. Geissler repeated EMG nerve conduction studies, which showed improvement on the right and stability on the left since the previous tests. He kept Claimant off work for three weeks and saw her again on June 24, 1996, at which time she reported some relief due to wearing braces at night. Dr. Geissler recommended that she obtain a functional capacities examination but felt that Claimant did not need further surgery.
Dr. Geissler received the functional capacities examination dated July 11, 1996, which he stated showed Claimant evidenced a good effort in performing the test. He felt that Claimant could work at the light duty level with occasional lifting up to 25 pounds. He recommended Claimant return to work in a position that did not require continuous fast repetition of the upper extremity. From the functional capacities examination results, Dr. Geissler testified that Claimant had no restrictions on bending, stooping, squatting, climbing stairs, operating foot controls, sitting or standing. He said Claimant could reach overhead and perform fine manipulation with operating hand controls occasionally. In addition, Dr. Geissler testified that Claimant could lift 7 pounds frequently, 15 pounds occasionally to shoulder level, and 10 pounds overhead occasionally.
Dr. Geissler decided Claimant reached maximum medical improvement on: July 29, 1996, but he did not give Claimant a permanent medical impairment rating since he felt that should be done by the surgeon. He did, however, opine that Claimant's last episode of carpal tunnel problems was related to her previous carpal tunnel diagnosis.
Dr. Laura Gray, physiatrist, saw Claimant on or about December 1998 for a claimant medical examination. She performed a physical examination and reviewed medical records from Dr. Holaday, Dr. Tubb, Dr. Geissler, Dr. Massey, and the North Mississippi Medical Center. She noted Claimant's complaints of numbness, pain and swelling in both hands. Based upon Claimant's subjective complaints and the physical examination, Dr. Gray felt that Claimant could no longer perform repetitive job activities which required repetitive flexion at the wrist.
Dr. Gray stated that Claimant had a permanent disability which would prevent her from doing any type of clerical typing or any employment for which activity and motion at the wrist on a repetitive basis would be required. She recommended that Claimant undergo a functional capacity assessment before being returned to work. Upon examining the April 1997 functional capacity examination report, Dr. Gray stated that Claimant's blood pressure and pulse should have been taken before and after the test to determine whether or not she was giving maximum effort.
Dr. John Brophy, neurosurgeon, saw Claimant on January 5, 1999, for an employer medical examination. He reviewed Claimant's medical records (from Dr. Massey, Dr. Geissler, and Dr. Holaday), reviewed the functional capacity examinations, and performed a physical examination. He diagnosed Claimant as having bilateral carpal tunnel syndrome, right greater than left, with status post carpal tunnel release. He noted that Claimant had a subjective sensory deficit which seemed out of proportion to the findings of the nerve conduction studies. He also decided that Claimant had a chronic right extensor arm and wrist pain.
Dr. Brophy agreed with Dr. Holaday's assessment that there was no definite clinical evidence of significant residual median nerve compression and that Claimant's nerve conduction studies were not impressive enough to justify re-exploration. He considered her at maximum medical improvement for her carpal tunnel syndrome and recommended that she return to work within the functional capacity recommendations or that a repeat functional capacity evaluation be done. Dr. Brophy gave Claimant a permanent medical impairment rating of four percent (4%) to each upper extremity due to the median neuropathy status post carpal tunnel release; however, he was unable to recommend an impairment rating for the treatment administered by Dr. Geissler for her tendon procedures. Dr. Brophy acknowledged that his impairment rating was less than the AMA Guidelines since he felt that routine carpal tunnel syndrome patients should return to work with no restrictions. With regard to the 1997 functional capacity examination, Dr. Brophy commented that he would require documentation of the blood pressure and pulse to validate the subjective complaints of pain.
The North Mississippi Medical Center functional
capacity evaluation dated April 14, 1997, concluded that Claimant demonstrated
fair body mechanics and that Claimant was self-limiting secondary to reported
pain in the hands and wrists. The therapist recommended that Claimant not
return to a job requiring repetitive motion or frequent reaching with the
upper extremities. The therapist recommended a vocational rehabilitation
consultation to identify work opportunities.
I base the following findings on a preponderance of the evidence, including medical proof as required by the Act:
1. Claimant worked for the Employer, Foamex Products, Inc., from April 25, 1994, until October 5, 1995.
2. Claimant sustained work-related injuries to her upper extremities in the form of bilateral carpal tunnel syndrome on August 29, 1994. Her average weekly wage on that date was $289.20.
3. Claimant received medical treatment for her work injuries, and there is no remaining issue to be decided concerning the reasonableness and necessity of such treatment.
4. As to the question of whether or not Claimant has reached maximum medical improvement, several physicians examined and treated Claimant at various time periods. Claimant was first released by her orthopedic surgeon, Dr. Massey, on November 22, 1994. After additional treatment, he again released Claimant on April 27, 1995, for light duty. Dr. Massey continued to treat Claimant and stated she was again temporarily disabled from January 9, 1997, until May 13, 1997, when he referred Claimant to Dr. Holaday.
Dr. Holaday, neurosurgeon, examined Claimant on July 16, 1997, at which time he decided Claimant did not need additional surgery and that she could return to unrestricted work. Although Dr. Holaday recommended testing Claimant after a certain time period had passed, he did not change his opinion about her ability to work.
Another neurosurgeon, Dr. Brophy, saw Claimant on January 5, 1999, and he decided Claimant had already reached maximum medical improvement and could return to work with restrictions. An orthopedic surgeon, Dr. Geissler, treated Claimant in 1995 and 1996. He placed her at maximum medical improvement on July 29, 1996.
The general consensus is that Claimant has reached maximum medical improvement although the time placement varies according to the treatment/evaluation dates. Dr. Massey was Claimant's last treating specialist, and he testified Claimant was temporarily disabled since he referred her to Dr. Holaday for a surgical evaluation. After reviewing various medical records and performing an examination on July 16, 1997, Dr. Holaday decided Claimant did not require additional surgery. After that time, Claimant did not return to Dr. Massey for any additional treatment. Furthermore, she has not returned to any physician for treatment since July 1997. Based upon the evidence as a whole, I find Claimant reached maximum medical improvement on July 16, 1997.
5. Claimant received all due temporary disability payments until July 16, 1997, as stipulated. Therefore, since I find Claimant reached maximum medical improvement on July 16, 1997, she is not entitled to further temporary total disability.
6. As to permanent medical impairment, Dr. Massey, the treating orthopedic surgeon, opined that Claimant had a five per cent (5%) permanent medical impairment to her right upper extremity and two per cent (2%) to her left upper extremity. Dr. Geissler gave Claimant a four per cent (4%) permanent medical impairment rating to her right upper extremity due to her wrist problems. Dr. Brophy decided that Claimant had a four per cent (4%) permanent medical impairment to each upper extremity due to residuals from the carpal tunnel syndrome.
7. As to permanent disability, Claimant has proven she has permanent, physical restrictions from the medical evidence and vocational testimony. However, the fact remains that Claimant still has substantial functional capabilities in both upper extremities. Based upon the evidence as a whole, I find Claimant's physical impairment has resulted in a fifteen per cent (15%) vocational loss of use to her right upper extremity and a six per cent (6%) vocational loss of use to her left upper extremity.
8. Claimant is entitled to recover penalties and
interest as provided by the Act on any installments of disability not timely
paid.
IT IS THEREFORE ORDERED AND ADJUDGED that the Employer-Carrier pay and provide compensation benefits to the Claimant as follows:
1. Permanent partial disability benefits of $192.90 beginning July 16, 1997, and continuing for a period of 30 weeks as compensation for disability to Claimant's right upper extremity and then consecutively payment of permanent partial disability benefits of $192.90 continuing for an additional period of 12 weeks as compensation for disability to Claimant's left upper extremity. There shall be added to each installment of compensation not timely paid the equivalent of ten per cent (10%) thereof as provided in §71-3-37(5) of the Act together with interest at the legal rate from and after the date the petition was filed. Employer-Carrier is entitled to proper credit for any such payments of compensation heretofore made to Claimant.
2. Pay for, furnish and provide to Claimant all reasonable and necessary medical services and supplies as the nature of her injury or the process of her recovery may require in accordance with Miss. Code Ann. §71-3-15 (Rev. 1995) and the Medical Fee Schedule.
SO ORDERED AND ADJUDGED this 19th day of October, 1999.
TAMMY GREEN HARTHCOCK
ADMINISTRATIVE JUDGE
ATTEST:
Brenda H. Goolsby, Secretary
___________________________
MWCC NO. 94 16717-F-8313-B-00
SANDRA SIMONS EMPLOYEE
vs.
FOAMEX PRODUCTS, INC.
EMPLOYER
AND
THE INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA
CARRIER
This action came on for hearing on January 26, 1999, on the Objection to Filing of Medical Records Affidavit and Motion to Exclude filed in this action by the employer and carrier. The Commission having considered the same, finds that same is not well taken and is hereby overruled.
IT IS THEREFORE ORDERED that the claimant may introduce the Medical Records Affidavit of Laura Gray, M.D. into evidence at the hearing of this cause.
SO ORDERED, this the 11th day of February, 1999.
MELBA DIXON
ADMINISTRATIVE JUDGE
ATTEST:
Brenda H. Goolsby, Secretary
___________________________
1. 607 So. 2d 1119 (Miss. 1992).
2. A ruling was reserved on the admission of Exhibit 16 during Honeycutt's testimony. The Employer-Carrier's objection to such exhibit is hereby sustained.
3. The videotapes depict Claimant performing a variety of tasks using both hands and arms. Of particular note is Exhibit 24, Videotape #2, at the times of 10:41 a.m. and 11:31 a.m., Claimant utilized her fingers to work a zipper and to handle clothes. In Exhibit 24, Videotape #3, at 12:30-12:36 p.m., Claimant was packing and grasping several items.