MWCC NO. 95-13491-G-2620

MARY E. KILLIAN                                                                                                                             CLAIMANT

vs.

WINN-DIXIE #576                                                                                                                               EMPLOYER
SELF-INSURED

APPEARING FOR CLAIMANT:
Honorable James T. Graham, Attorney at Law, Columbus, Mississippi

APPEARING FOR DEFENDANT:
Honorable Leland S. Smith, III, Attorney at Law, Jackson, Mississippi
 

The Commission heard the above styled cause on April 10, 2000 in the offices of the Mississippi Workers' Compensation Commission in Jackson, Mississippi on "Claimant's Petition for Review of Decision of Administrative Law 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 Administrative Judge" dated December 13, 1999.

SO ORDERED, this the 11th day of April, 2000.

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

ATTEST:
Brenda H. Goolsby, Secretary
___________________________
 

MWCC NO. 95 13491-G-2620

MARY E. KILLIAN                                                                                                                           CLAIMANT

vs.

WINN-DIXIE #576                                                                                                                             EMPLOYER
AND
WINN-DIXIE MONTGOMERY, INC.                                                                                                CARRIER

APPEARING FOR CLAIMANT:
Mr. James Tyson Graham, Attorney at Law, Columbus, Mississippi

APPEARING FOR THE EMPLOYER:
Mr. Leland S. Smith, III, Attorney at Law, Jackson, Mississippi
 

Claimant alleged that a work-related accident occurred on August 18, 1995, injuring her back. The Employer admitted the compensability of the injury. A hearing was held on the issues of disability, medical treatment, and maximum medical improvement on July 1, 1999, at the Lowndes County Courthouse in Columbus, Mississippi. At the end of the hearing, the record was held open for additional information from the Employer on Claimant's Application for Employment with Personal Finance. The record was closed on September 7, 1999.
 

1 . Claimant had a work-related accident on August 18, 1995, injuring her back.

2. Claimant's average weekly wage on the date of the work accident was $214.00.

3. The parties agreed that Gemini Security provided private security services to the county schools from August 1997, until May 1995, and that Gemini Security has received no application for employment from Claimant.
 

1. The existence and extent of temporary disability attributable to the work-related accident.

2. The existence and extent of permanent disability attributable to the work-related accident.

3. The reasonableness and necessity of medical treatment, particularly any treatment rendered after Dr. Dulligan, including but not limited to the treatment rendered by Dr. Hensarling, Dr. Vohra, and Dr. Summers.

4. Whether or not Claimant has reached maximum medical improvement, and if so, the date.

5. Whether Claimant is entitled to penalties and interest on any disability payments not timely made.
 

Claimant is a thirty-eight year old resident of Lowndes County, Mississippi, with a varied work history, including experience as a cashier at a convenience store, a sewing machine operator, a cook, a parts manager, and a security guard. Claimant testified that while working as a security guard she had an ankle injury, which kept her from going to the Law Enforcement Academy. As a result, she stopped working in 1992 and did not work again until 1995 when she began working at the Employer as a cook. In that position, Claimant said she was responsible for waiting on customers, cutting meat, and unloading trucks.

Claimant stated that on August 18, 1995, she fell at work hurting her back and right ankle. However, she said that her right ankle injury has resolved and is no longer a problem. Claimant testified that she went to the emergency room after her accident and was referred to Dr. Linton by the emergency room physician. She said that Dr. Linton referred her to Dr. Dulligan, who eventually closed his practice and left town.

Claimant admitted that Dr. Linton did not take her off work. She also conceded that Dr. Dulligan released her to light duty work with restrictions. Claimant stated that she attempted to return to work but her pain was too severe to allow her to continue working. She testified that she tried the to work as a cashier in the cheese shop, but she could not sit on the high stool or bend to retrieve items. Claimant stated that she sought approval for additional medical treatment but the Employer refused so she sought treatment from Dr. Hensarling, who referred her to Dr. Vohra. Claimant recalled that she also saw Dr. Crockerall at the Semmes-Murphey Clinic and Dr. Walter Eckman, at the Employer's request.

Claimant stated that she currently cannot return to work for the Employer since she feels she can no longer lift, stoop, and bend, which she stated was required for the position. Claimant said that she can no longer perform housework, play softball, tie her own shoes, or bathe herself. Claimant testified that in sometime in January 1996 or 1997, she sought employment at other places with no success. (Exhibit 4). Claimant admitted that no physician has told her not to work.

Mr. Ricky Killian, spouse of Claimant, testified that he has observed Claimant having difficulties handling housework and performing physical activities. He stated that before the work accident in August 1995, Claimant had no physical problems whatsoever except for her 1992 ankle injury when she was working in security. Killian admitted that Claimant still cooks, cleans, drives, and shops to a certain extent: however, he maintained that Claimant still has physical difficulties.

Mr. Emanuel Betros, retired location manager for the Employer, testified that he worked with Claimant at the Employer. He stated that the Employer has a light-duty program for injured workers. He admitted that he did not deal with Claimant personally since the assistant manager, James Brown, handled the matter. He testified that Claimant would have been offered light duty jobs as a greeter or as a cashier in the cheese shop. He stated that a greeter can sit or stand as needed. He also stated that as a cashier in the cheese shop, Claimant would not have to lift, bend or stoop. However, Betros admitted that he had no personal knowledge of whether or not Brown actually offered Claimant the greeter job. He stated that Claimant never returned to work in her previous position or applied for a different position.

Dr. Michael P. Dulligan, neurosurgeon with Mississippi Neurosurgery, saw Claimant on August 30, 1995, upon referral from Dr. Russell Linton. He ordered and reviewed an MRI and CT scan which he decided showed a "little" bulge at the L4-5 and the L5-S1 disc levels. However, he noted that the tests did not show any explanation for Claimant's pain. He advised Claimant to undergo a myelogram, which she refused.

Dr. Dulligan recommended water therapy and continued to treat Claimant through November 1995. He took Claimant off work from August 30, 1995, until November 21, 1995, at which time he released Claimant to return to work with no lifting, bending, or twisting for two weeks and then return to normal duties. He advised Claimant to obtain a second opinion.

Dr. Walter W. Eckman, neurosurgeon, saw Claimant on November 3, 1995. He noted that Claimant had an "essentially normal" lumbar MRI and CT scan with a mild central and left bulge at the L5-S1 disc. However, he did not have the actual films to review. He advised Claimant to remain off work initially and participate in an exercise program. According to Dr. Eckman's notes, Claimant elected to continue treatment with Dr. Dulligan since Dr. Eckman's office was so far away.

Dr. John R. Crockerall, neurosurgeon with the Semmes-Murphey Clinic, saw Claimant on March 29, 1996. He decided Claimant showed signs of "a great deal of functional overlay" and advised a referral to a pain clinic. Dr. Crockerall stated that Claimant did not have a surgical lesion and that she had no permanent impairment. He felt that Claimant could be appropriately rehabilitated to return to work.

Dr. Rahul Vohra, physiatrist with Southern Physical Medicine and Rehabilitation Association, began treating Claimant on October 11, 1996, upon referral from Dr. Jeff Summers. Dr. Vohra's examination showed tenderness and mild spasms in the lumbar spine with a negative straight leg raising test. He reviewed the October 16, 1995, lumbar MRI report which said Claimant had a mild lateral disc herniation at the L5-S1 level. He ordered and reviewed nerve conduction studies, which he found to be negative for any nerve damage. In December 1996, Dr. Vohra advised Claimant to participate in an aggressive therapy program. Dr. Vohra opined that Claimant had some problems with her SI joint with some muscular involvement.

Although Dr. Vohra felt that Claimant was not at maximum medical improvement on the date of the last visit in December 1996, he opined that if Claimant sought no further treatment then she would have a permanent medical impairment of 5% to the whole person. Dr. Vohra did not have Claimant's previous medical records during Claimant's treatment.
 

I base the following findings on a preponderance of the evidence, including medical proof as required by the Act:

1. Claimant sustained a work-related injury to her lower back on August 18, 1995.

2. Claimant's average weekly wage on the date of the work accident was $214.00.

3. Claimant was temporarily, totally disabled from August 19, 1995 until November 21, 1995, the date she was returned to work by her primary treating neurosurgeon, Dr. Dulligan.

4. Claimant reached maximum medical improvement on November 21, 1995, the date Claimant was released to return to work by her primary treating specialist.

5. As to permanent disability for a whole-body injury, Claimant must prove by a preponderance of the evidence that the injury produced a bona fide physical impairment, which is permanent in nature, and that as a result thereof she has suffered a loss of wage-earning capacity. The medical evidence showed that Claimant has some mild permanent physical impairment in her lower back. This evidence is bolstered by Claimant's testimony of pain and problems with certain activities. Therefore, Claimant has satisfied the first part of the test for permanent disability benefits. As to the second aspect, a loss of wage-earning capacity, Claimant attempted to return to work and also has sought employment.

Therefore, based upon the evidence as a whole, I find Claimant has sustained a five percent (5%) loss of wage-earning capacity due to the injuries she received from her work accident.

6. As to Claimant's medical treatment, the only evidence concerning the treatment by Dr. Hensarling and Dr. Summers is Claimant's admission that she did not seek prior authorization of their treatment. Therefore, I find that the Employer-Carrier is not financially responsible for the treatment rendered by Dr. Hensarling and Dr. Summers. Moreover, since Dr. Vohra was not in the appropriate chain of referral required by Miss. Code Ann. §71-3-15(l) (Rev. 1995), the Employer-Carrier is not financially responsible for the treatment rendered by him.

7. 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 Claimant as follows:

1. Temporary total disability benefits of $142.74 per week from August 19, 1995, until November 21, 1995. There shall be added to each installment of compensation not timely paid the statutory penalty of ten percent (10%) thereof as provided in Miss. Code Ann. Section 71-3-37(5) (Rev. 1995) together with interest at the legal rate from and after the date the Petition to Controvert was filed. The Employer is entitled to credit for any wages earned by Claimant or any payments of disability heretofore made to Claimant.

2. Permanent partial disability benefits of $7.14 per week beginning November 21, 1995, and continuing for a period of 450 weeks thereafter. There shall be added to each installment of compensation not timely paid the equivalent of ten percent (10%) thereof as provided in Miss. Code Ann. Section 71-3-37(5) (Rev. 1995) together with interest at the legal rate from and after the date the Petition to Controvert was filed. Employer is entitled to proper credit for any such payments of compensation heretofore made to Claimant.

3. 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. Section 71-3-15 (Rev. 1995) and the medical fee schedule.

SO ORDERED AND ADJUDGED this the 15th day of 1999.

TAMMY GREEN HARTHCOCK
ADMINISTRATIVE JUDGE

ATTEST:
Brenda H. Goolsby, Secretary