MWCC NO. 95 09738-F-4828
MARY BRIDGETTE NEWCOMB CLAIMANT
vs.
KEL-TECH
EMPLOYER
UNINSURED
REPRESENTING CLAIMANT:
Hon. Daniel K. Tucker, Attorney at Law, Booneville,
Mississippi
REPRESENTING DEFENDANT:
Hon. Gary Lee Carnathan, Attorney at Law, Tupelo,
Mississippi
The Commission heard the above styled cause on May 22, 2000 in the offices of the Mississippi Workers' Compensation Commission in Jackson, Mississippi on the employer's "Notice of Appeal".
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 November 16, 1999.
SO ORDERED, this the day of 2000.
MISSISSIPPI WORKERS' COMPENSATION COMMISSION
BY: Ben Smith
Barney Schoby
COMMISSIONERS
ATTEST:
Brenda H. Goolsby, Secretary
___________________________
MWCC No. 95 09738-F-4828
MARY BRIDGETTE NEWCOMB CLAIMANT
vs.
KEL-TECH
EMPLOYER
UNINSURED
APPEARING FOR CLAIMANT:
Honorable Daniel K. Tucker, Attorney at Law, Booneville, Mississippi
APPEARING FOR DEFENDANT:
Honorable Gary Lee Carnathan, Attorney at Law, Tupelo, Mississippi
This matter was first heard during a hearing on the merits on January 29, 1997, and an Order was issued by Administrative Judge Charles Pearce on or about February 5, 1997. The procedural aspect of the case since that time, is as follows: Appeal to the Full Commission by the Employer/Carrier, Kel-Tech, with a Full Commission Order being rendered on or about July 2, 1997, affirming the Order of the Administrative Judge; Appeal to the Circuit Court of Lee County, Mississippi, with an Order issued on September 5, 1997, affirming the findings of the Full Commission and the Administrative Judge; Appeal to the Court of Appeals of the State of Mississippi with an Order issued on or about August 25, 1998, from said State Appeals Court, ordering that the Appeal be dismissed and that the case be remanded back to the Mississippi Workers' Compensation Commission for further proceedings.
This Administrative Judge finds it unnecessary to retry the issues already
decided in the decision dated February 5, 1997, and
respectfully re-adopts those findings in their entirety, along with the
entire record of the January 29, 1997 hearing.
It is stipulated by the parties that this matter
be resolved and a Final Order entered by adopting the prior record in its
entirety and by considering the additional medical evidence of Dr. James
L. White, marked as General Exhibit 3 and the Affidavit of the Claimant,
marked as Exhibit 4.
1. Whether the claimant has reached maximum medical improvement.
2. The existence and extent of temporary disability attributable to the injury.
3. The existence and extent of permanent disability attributable to the injury.
4. Whether the claimant is entitled to recover penalties and interest on disability payments not timely paid.
5. Whether the claimant is entitled to future
medical benefits.
The Court by Order dated March 15, 1999, ordered the employer, Kel-Tech Security, to pay for a consultative examination of Dr. James L. White, the claimant's treating physician. In the March 23, 1999 consultation examination, Dr. James L. White stated that he was unable to give an exact time of when the claimant reached maximum medical improvement, but estimated that it "probably was within a couple of months to six months following metal removal." Claimant's Exhibit 2, a medical records affidavit and medical records from North Mississippi Medical Center, shows that the removal of the hardware from the left distal radius was conducted on or about August 9, 1995. The record shows that the claimant attempted to go back to work in March of 1995, and worked part-time for approximately thirteen weeks. After that, she did not work any more for Kel-Tech.
Dr. James L. White stated that the claimant had post-traumatic degenerative changes in the wrist as evidenced by films that he took on the day of the examination. Additionally, she has loss of dorsal flexion, volar flexion and radial/ulnar deviation. He estimated that the claimant had suffered a 15% impairment to the upper extremity and that her condition would probably get worse with time as her post-traumatic arthritis gets worse. Dr. White also opined that there is a possibility that the claimant will need a future wrist arthrodesis.
The claimant has submitted an Affidavit marked as Exhibit 4 that sets
out her current pains and limitations. Claimant said her wrist is in constant
pain, she cannot lift anything over 2 to 3 pounds, she can hardly bend,
she cannot do anything strenuous and she can only use her hand 1% of the
day.
I base the following findings on a preponderance of evidence, including medical proof as required by the Act:
1 . This Administrative Judge adopts in its entirety the record established from the January 29, 1997 hearing, including all Exhibits and all testimony offered at the hearing, as well as the Order resulting from that hearing dated February 5, 1997.
2. An issue to be decided on remand is whether or not the claimant has reached maximum medical improvement. The Administrative Judge finds that the claimant reached maximum medical improvement on or about February 9, 1996. Dr. James L. White, the claimant's treating physician, stated in his March 23, 1999, consultation examination that she probably reached maximum medical improvement within a couple of months to six months following the metal removal from her wrist. Exhibit 2 shows that the removal of hardware took place on or about August 9, 1995.
3. The second issue on remand is the existence and extent of temporary disability attributable to the injury. Based on the medical records of Dr. James L. White, the Administrative Judge finds that the claimant was temporarily totally disabled from the date of the injury of December 6, 1994 to February 9, 1996.
4. The third issue on remand is the existence and extent of permanent disability attributable to the injury. The evidence shows that Dr. White released the claimant with a 15% permanent impairment to the upper extremity. He stated that the claimant's condition would probably get worse with time as her post-traumatic arthritis gets worse. Additionally, he stated that there is a possibility that the claimant will need a future wrist arthrodesis. The claimant's Affidavit, marked as Exhibit 4, sets out her current pains and limitations. Claimant said her wrist is in constant pain, she cannot lift anything over 2 to 3 pounds, she can hardly bend, she cannot do anything strenuous and she can only use her hand 1% of the day.
Considering the evidence as a whole, this Administrative Judge finds that the claimant has suffered a 45% impairment and loss of use to her upper extremity.
5. The claimant, having suffered a compensable injury, is entitled to reasonable and necessary medical services and supplies and by law the employer is obligated to provide the claimant with reasonable and necessary medical services and supplies such as the nature of her injury and the process of her recovery may require consistent with Mississippi Code Annotated, Section 71-3-15 (1972).
6. The claimant is entitled to penalties on each
installment of compensation not timely paid the equivalent of ten percent
(10%) thereof as provided in Mississippi Code Annotated, Section 71-3-37
(5) (1972), together with interest at the legal rate on all unpaid installments.
IT IS, THEREFORE, ORDERED AND ADJUDGED
1 . That this Administrative Judge has in conjunction by stipulation of the parties, adopted the prior record in its entirety, including but not limited to, all recorded testimony, all exhibits introduced at that hearing, and the Order previously prepared on February 5, 1997.
2. That the claimant reached maximum medical improvement on February 9, 1996, and that the employer shall pay to the claimant temporary total disability benefits of $133.34 per week from December 6, 1994 through February 9, 1996. The employer is entitled to proper credit for any such payments of compensation heretofore made to the claimant and for any wages earned by the claimant during this period of time.
3. That the employer shall pay to the claimant permanent partial disability benefits of $133.34 per week for 90 weeks. The employer is entitled to credit for any such payments of compensation heretofore made to the claimant.
4. That the employer shall pay for, furnish and provide to the claimant all reasonable and necessary medical services and supplies as the nature of her injury and the process of her recovery may require, pursuant to Section 71-3-15 (1972) as amended, and the Medical Fee Schedule.
5. That there shall be added to each installment of compensation not timely paid the equivalent of ten percent (10%) thereof as provided in Section 71-3-37 (5) (1972), together with interest at the legal rate on all unpaid installments.
SO ORDERED this the 16th day of November, 1999.
MELBA DIXON
ADMINISTRATIVE JUDGE
ATTEST:
Brenda H. Goolsby, Secretary
__________________________
MWCC NO. 95 09738-F-4828
MARY BRIDGETTE NEWCOMB CLAIMANT
vs.
KEL-TECH
EMPLOYER
AND
(UNINSURED)
STATE OF MS
COUNTY OF LEE
Personally appeared before me, the undersigned authority in and for the aforesaid jurisdiction, James L. White (or, alternatively, ________________, medical records custodian), who, upon his/her oath, stated that the attached records are a true and correct copy of the medical records relating to the examination, evaluation, and/or treatment of the medical practice of James L. White, MD
James L. White MD
Signature of Affiant
Sworn to and subscribed before me, this the 8th day of October, 1999.
Judith D. Smith
Notary Public
My Commission Expires:
March 23, 2001
Physician's name: Dr. James L. White
Specialty of practice: Tupelo Bone and Joint
Address and telephone number: 1464 Medical Park
Circle, Tupelo, MS 38801
662-844-8699
This affidavit was prepared by:
Daniel K. Tucker, MS Bar No. 8780
LANGSTON, LANGSTON, MICHAEL, BOWEN & TUCKER,
P.A.
Post Office Box 787
Booneville, Mississippi 38829
601-728-3138
___________________________
James L. White, M. D.
8 Medical Park Circle
Tupelo, MS 38801
TUPELO BONE AND JOINT CLINIC
Mary Newcomb
Page 3
July 21, 1995 She comes in today and continues to have discomfort-dorsally over the plate. We will go ahead and set her up for removal of plate and screws under general anesthesia, SSSU. (8-9-95).
8-15-95 Note Sent
8-18-95 Note Sent
9-8-95 Note Sent
March 23, 1999 This is the first time I
have seen her since August 1995. The last time I saw her in the office
was July 21, 1995. I had removed the hardware from her wrist on August
9, 1995. I have not seen her in the office since then. I am unable to give
an exact estimate of when she reached MMI, but it probably was within a
couple of months to six months following metal removal. She now has post-traumatic
degenerative changes in the wrist as is evidenced by films that I shot
today. She has loss of dorsiflexion and volar flexion and radial and ulnar
deviation at present. This is about a 15% impairment to the upper extremity.
This will probably gradually get worse with time as her post-traumatic
arthritis worsens. There is an outside possibility that if it gets bad
enough years down the road that she may possibly need a wrist arthrodesis.
I hope and doubt that this will occur, but I have to say that it is a possibility.
I told her that I would be happy to see her back if her symptoms worsen
or if she has further problems.
___________________________
MWCC NO. 95 09738-F-4828
MARY BRIDGETTE NEWCOMB CLAIMANT
vs.
KEL-TECH
EMPLOYER
AND
(UNINSURED)
STATE OF MISSISSIPPI
COUNTY OF PRENTISS
I, MARY BRIDGETTE NEWCOMB, hereby state that the following is true and correct to the best of my knowledge. I currently have the following pain and/or limitations as a result to the injury I suffered while employed with Kel-Tech with the date of injury being December 6, 1994:
1. My wrist is in constant pain as if I were having a tooth ache in my wrist;
2. I cannot lift anything over 2 or 3 pounds;
3. I can hardly bend it at all;
4. I cannot do anything strenuous; and,
5. I can only use this hand 1% of the day if any at all.
MARY BRIDGETTE NEWCOMB
Sworn to and subscribed before me, this the 5th day of October, 1999.
Christina Barnett Holloway
NOTARY PUBLIC
My Commission Expires:
April 6, 2002
___________________________
NO. 97-CC-01106 COA
KEL-TECH
vs.
MARY BRIDGETTE NEWCOMB
This matter came before this Court on appeal from a judgment of the Circuit Court of Lee County. The issue presented on appeal is whether family members employed by a business should be counted in determining whether a business has five employees and therefore falls under the Mississippi Workers' Compensation Act. The order of the administrative law judge held that Kel-Tech employed the requisite number of employees and therefore was subject to the Act and further held that the claimant suffered a work-connected injury. However, this order was not a final order since it required the claimant to seek further medical evidence before temporary and permanent disability issues could be determined. This order was affirmed both by the Full Commission and the Circuit Court of Lee County without the issue of its finality being discussed.
After having received briefs from both sides in this action addressing this issue, this Court on its own motion is constrained to dismiss this case without prejudice. "Judgments of the circuit courts, emanating from appeals from interlocutory orders of the Commission, are nullities." Bickham v. Dept. of Mental Health, 592 So. 2d 96, 98 (Miss. 1991). Therefore, the appeal in the present case is not properly before this Court since the order of the administrative law judge was interlocutory in nature. Wilson v. Mississippi Employment Sec. Commn, 643 So. 2d 538, 540 (Miss. 1994); Bickham, 592 So. 2d at 98. The Court therefore finds that the appeal should be dismissed without prejudice and remanded to the Workers' Compensation Commission for further proceedings.
THEREFORE IT IS ORDERED that on the Court's own motion the appeal in this matter be, and hereby is, dismissed without prejudice and remanded to the Mississippi Workers' Compensation Commission for further proceedings. All costs of appeal are assessed to the appellant.
SO ORDERED, this the 25th day of August, 1998.
JAMES E. THOMAS, PRESIDING JUDGE FOR THE COURT