Sims v. River Hills Club, MWCC No. 95-17378-F-5887, September 2000

MISSISSIPPI WORKERS' COMPENSATION COMMISSION

MWCC NO. 95-17378-F-5887

DORA SIMS CLAIMANT

vs.

RIVER HILLS CLUB OF JACKSON EMPLOYER
AND
MISSISSIPPI RESTAURANT ASSOCIATION WORKERS' COMPENSATION TRUST CARRIER

REPRESENTING CLAIMANT:
R. Kelly Kyle, Esquire, Jackson, MS

REPRESENTING EMPLOYER/CARRIER:
Jefferson Skelton, Esquire, Ridgeland, MS

COMMISSION ORDER

This matter was originally heard by the Commission on November 15, 1999 pursuant to the Employer's and Carrier's Petition for Review, and the Claimant's Cross-Petition for Review. The issue then was whether and to what extent the Claimant was entitled to temporary and permanent disability benefits as the result of admittedly compensable leg injuries. In an Order issued September 10, 1999 the Administrative Judge awarded the Claimant temporary total disability benefits from November 17, 1993 through September 28, 1998, and permanent partial disability benefits for a 50% medical/functional impairment to the injured leg.

Following the initial hearing, the Commission entered an Order on February 1, 2000 which found and concluded as follows:

Dora Sims sustained admittedly compensable injuries to both of her legs while working as a cook for the River Hills Club of Jackson, and for present purposes, the onset date of these injuries is considered to be November 17, 1993. It is also undisputed that Ms. Sims sustained no permanent disability or impairment to her left leg.

Ms. Sims was treated extensively for her injuries by Dr. Seshadri Raju who first saw Ms. Sims on November 22, 1995 for chronic venous insufficiency and ulcers on both legs. Dr. Raju ultimately performed four separate venous reconstructive surgeries on Ms. Sims' legs from January 1996 to January 1998.

Dr. Raju first concluded that Ms. Sims reached maximum medical improvement on December 3, 1997 and had a 50 % impairment of her right leg. However, he noted at the time that she still had some venous insufficiency which should be treated with another vein stripping procedure.

Following this additional procedure, Dr. Raju found that Ms. Sims was at maximum medical improvement on April 21, 1998. He placed no restrictions on her activities and found no permanent impairment of either leg. He specifically stated she was capable of returning to work full time as a cook.

Dr. Raju later changed the date of maximum medical improvement to May 15, 1998. However, he still felt that Ms. Sims was without permanent impairment or restriction.

Dr. Raju changed the date of maximum medical improvement for the last time to September 28, 1998. At this time, he also determined that Ms. Sims had a permanent impairment to her right leg of 50%.

In his testimony, Dr. Raju explained that from an objective medical standpoint, Ms. Sims had reached her maximum improvement by April 21, 1998. However, he saw her on two subsequent occasions for continuing complaints of leg pain, and based solely on these subjective pain complaints, he revised her maximum medical improvement dates.

Dr. Raju also testified that his decision to ultimately assign a 50% right leg impairment rating to Ms. Sims was based solely on her subjective complaints of pain. He conceded that all of the objective indicators of function in the leg were normal. Still, it was his clinical judgment based on the subjective, and hence immeasurable, complaints of pain that Ms. Sims had sustained a 50% impairment of her right leg.

At the request of the Employer and Carrier, Dr. Edward E. Rigdon reviewed the medical records of Ms. Sims and the deposition testimony of Ms. Sims and Dr. Raju. Dr. Rigdon is Chief of the Division of General and Vascular Surgery at the University of Mississippi Medical Center. He concluded that Ms. Sims had reached her maximum medical improvement on December 3, 1997. He also felt that Ms. Sims had some permanent impairment but no more than 9%. The only physical limitation Dr. Rigdon felt Ms. Sims would have "is pain in her legs on prolonged standing." However, he felt that with "properly fitted and properly worn compressive hose" Ms. Sims should be able to maintain essentially normal activities.

II.

The question for us is when Ms. Sims reached maximum medical improvement (and consequently, when her period of temporary disability ended), and the extent of her permanent disability.¹ Concerning maximum medical improvement, we are reminded that this is the point in time following injury when the injured worker "reaches the maximum benefit from medical treatment" or "is cured or as far restored as the permanent character of his injuries will permit." Triangle Distributors v. Russell, 268 So.2d 911, 912 (Miss. 1972).

In reviewing the evidence in this claim, it seems clear to us that Ms. Sims reached the point of maximum improvement on April 21, 1998. Although Dr. Raju subsequently changed his opinion as to Ms. Sims' date of maximum improvement on two separate occasions, his testimony indicates he did so strictly because of the continuing complaints of pain by Ms. Sims. Dr. Raju acknowledged that Ms. Sims' physical condition did not change subsequent to April 21, 1998. It seems, therefore, that whether and to what extent Ms. Sims continued to experience pain after Dr. Raju had restored her physical condition and function as far as the nature of her injury would permit is a factor to be considered in determining the extent of her permanent disability.

We find, therefore, that Ms. Sims reached maximum medical improvement on April 21, 1998 and the Order of Administrative Judge is hereby amended accordingly. The Employer and Carrier are hereby ordered to pay temporary total disability benefits to Ms. Sims from November 17, 1993 through April 21, 1998, with credit for any such benefits previously paid, and except for any week during which Ms. Sims worked and earned wages.

On this latter point, Ms. Sims admitted that she worked as a sitter earning $300.00 per month from October 1996 through October 1998, and she may also have worked and earned wages from the River Hills Club or other employer previously. In either event: We have reasoned previously that temporary disability benefits are payable during the period of an injured employee's recovery from injury or illness, but only so long as the injured employee is disabled within the meaning of the Law. And the employee is regarded as disabled within the meaning of the Law only to the extent he or she is experiencing a total or partial loss of wage earning capacity. Temporary disability benefits represent a substitute for wages lost by the employee during the period of their recovery from injury. If the employee is still technically in recovery, but has returned to work and is suffering no loss of wages, then temporary disability benefits are not payable. Arender v. National Sales, Inc., 193 So.2d 579, 587 (Miss. 1966) (payments for temporary disability extend only during continuance of "disability" and/or until MMI); Mid-South Packers, Inc. v. Hanson, 253 Miss. 703, 178 So.2d 689, 691 (1965) (no benefits due during temporary period while claimant working and earning full pay); James E. Montgomery v. Cooper Tire & Rubber Company, MWCC No. 92-06479-E-8336, 91-19468-E-8337 (Oct. 10, 1994).

To further refine the point, benefits for temporary total disability are payable when the employee is completely unable to engage in work [because of his/her injury] and is therefore suffering a total, yet temporary, loss of wage earning capacity. Miss. Code Ann. §71-3-17(b) (Rev. 1995). Benefits for temporary partial disability are payable when the employee is able to work, but is not earning full pay and is therefore suffering a partial, yet temporary, decrease in wage earning capacity. Miss. Code Ann. §71-3-21 (Rev. 1995).

Certainly, then, one who is capable of work and is actually working and earning wages during the period prior to reaching maximum medical improvement may not at the same time be regarded as temporarily totally disabled. Temporary disability within the meaning of the Law is an occupational condition which cannot legally or factually co-exist in one who is able to earn and is actually earning wages. Miss. Code Ann. §71-3-3(i) (Rev. 1995) (defining "disability" as the incapacity because of injury to earn wages). Consequently, [Ms. Sims] is not entitled to temporary total disability benefits for any week in which [s]he earned [her] full pre-injury wage, or $[263.97] per week. And for any week in which [s]he earned less than $[263.9]7], [s]he is entitled only to temporary partial disability benefits.

Clyde Hendershot v. Weiser Security Systems. Inc., MWCC No. 97-08017-G-0280 (May 25, 1999).

We also explained in Hendershot how a simple allowance of credit against an award of temporary disability benefits for wages earned did not yield a proper result. In the first place, it is patently improper under the Law to give an employer or carrier credit against an award for wages or other collateral benefits which are earned by a claimant. Second, this approach is flawed mathematically.

For example, in week 36, from February 17 to February 23, 1996, Hendershot earned total wages of $190.00. This is $10.00 less than his average weekly wage prior to injury, and thus renders him temporarily and partially disabled for that week. Under the statutory formula for temporary partial disability he is entitled to workers' compensation benefits for that week in the amount of $6.67, which is two-thirds of the difference between his pre-injury weekly wage and his earnings for that week. Miss. Code Ann. §71-3-21 (Rev. 1995). This is in addition to the $190.00 in wages he earned from his work. Utilizing the approach employed by the Administrative Judge, however, Hendershot would receive nothing [other than his wages] since the wages he earned ($190.00) and which would be credited are in excess of the compensation she found payable for that week ($135.00), again despite the fact Hendershot has a $10.00 loss in wages for that week because of his injury.

Clyde Hendershot v. Weiser Security Systems, Inc., MWCC No. 97-08017-G-0280 (May 25, 1999).

We therefore direct the Employer and Carrier to pay temporary disability benefits to Ms. Sims consistent with the above.

As for the extent of permanent disability sustained by Ms. Sims we have two medical estimates of her functional loss of use. One estimate says her functional impairment is no more than 9% while the other estimate puts her functional impairment at 50%. This latter estimate is based largely on the fact that Ms. Sims continued to register complaints of pain which were both subjective and immeasurable, but which Dr. Raju felt were nonetheless credible. Dr. Rigdon, on the other hand, never examined Ms. Sims but he conceded that Ms. Sims was likely to suffer from recurring pain.

It is significant to us that Dr. Rigdon did not have the opportunity to physically examine Ms. Sims and to determine for himself the credibility of her complaints because Ms. Sims failed to present herself for examination. This necessarily hindered his ability
in our judgement to render a complete opinion as to Ms. Sims' condition and impairment. This fact also hinders our ability to render a fully informed decision on the extent of her permanent disability since the impairment rating of her long time treating physician is based solely on her continuing complaints of pain, and hence, on her credibility.

The Employer/Carrier attempted to exercise its right, wisely in our view, to a second medical opinion on this important question. Miss. Code Ann. §71-3-15 (1) (Rev. 1995). Unfortunately, the Claimant would not cooperate. Before we render any final decision, however, we would like for Dr. Rigdon to reevaluate Ms. Sims. To this end, Dr. Rigdon should have the opportunity to visit with Ms. Sims and to conduct an appropriate interview and whatever physical examination or testing he deems necessary in order to fully determine the extent of her current functional impairment.

The Commission therefore directs and orders the Claimant to undergo an independent medical evaluation and examination by DR. EDWARD RIGDON ON THURSDAY FEBRUARY 10, 2000 AT 9:00 A.M. AT HIS OFFICES AT 348 CROSSGATES BOULEVARD, SUITE 2500, BRANDON, MISSISSIPPI, TELEPHONE (601)-825-1975 . The Employer/Carrier will bear the entire expense of this evaluation, including mileage expense reimbursement paid in advance to the Claimant, and reimbursement for any other necessary travel expenses incurred by Claimant. All bills and charges for treatment should be submitted by Dr. Rigdon to Mississippi Restaurant Association Workers' Compensation Trust c/o RSKCO, Post Office Box 1799, Ridgeland, MS 39158. FAILURE OF THE CLAIMANT TO MAKE HERSELF AVAILABLE FOR SUCH EVALUATION AND EXAMINATION MAY RESULT M DISMISSAL OF HER CLAIM FOR WORKERS' COMPENSATION BENEFITS.

The Commission respectfully requests Dr. Rigdon to conduct a complete and thorough examination and evaluation of the Claimant. Dr. Rigdon may consider this Order as proper authorization to conduct whatever diagnostic studies or tests he deems reasonable and necessary, and to consult with other medical providers or physicians to the extent he deems such consultations necessary to properly evaluate and assess the Claimant's current condition.

The Claimant and the Employer/Carrier are hereby directed to furnish Dr. Rigdon all relevant medical records, reports, test results and other information at least ten (10) days prior to the date of Claimant's appointment. X-ray or other radiographic films may be furnished by the Claimant on the day of the examination.

Within thirty (30) days from the date of final examination, Dr. Rigdon is requested to submit a written narrative report to the Commission. This report should address the following topics: 1) the nature and extent of permanent functional impairment, if any, which the Claimant has as the result of her leg injuries. Dr. Rigdon's medical report shall, upon receipt by the Commission, be made a part of the evidentiary record in this matter and considered along with all other evidence previously submitted by the parties.

Upon receipt of Dr. Rigdon's report, the Commission will forward copies of the report to all parties. Any party desiring to depose Dr. Rigdon must notify the Commission and opposing parties within ten (10) days of receipt of the report. The party requesting such deposition shall bear all of the costs thereof, and a transcript of the deposition shall be submitted to the Commission and shall be made a part of the evidentiary record in this matter.

The Commission further directs all parties and their legal representatives or other persons acting on their behalf to refrain from discussing or attempting to discuss any aspect of this claim with Dr. Rigdon or his assistants or consultants or employees until after the written report of Dr. Rigdon has been filed with the Commission, and then only pursuant to a properly noticed deposition as provided for herein or other recognized rules of procedure and conduct.

III.

A final decision on the question of permanent disability involving Ms. Sims' right leg is hereby stayed until the Commission has received and considered the additional report of Dr. Rigdon. In all other respects, the Order of Administrative Judge dated September 10, 1999 is affirmed and amended as provided herein.

On June 6, 2000 Ms. Sims underwent an examination by Dr. Rigdon as provided in our previous Order. Subsequent thereto Dr. Rigdon submitted his written report to the Commission and he also submitted to a deposition regarding his findings. The transcript of this deposition along with Dr. Rigdon's written report have been filed with the Commission and they are hereby admitted as evidence in this matter and shall be numbered as the next exhibit and made a part of the record accordingly.

Turning to the merits of the last remaining issue in this matter, we are reminded that Dr. Raju treated Ms. Sims extensively and he ultimately assigned her a 50% impairment to her right leg based primarily on her continued complaints of pain. Dr. Rigdon initially determined based on the records available to him that Ms. Sims' impairment was in the range of 0% to 9%.

In his most recent deposition Dr. Rigdon testified regarding his June 6, 2000 examination of Ms. Sims. He noted that she was very cooperative and she explained how her legs would hurt after constant standing for two or three hours; however, she could take a break and elevate her legs and then return to her normal activities. Ms. Sims told Dr. Rigdon that she continues to operate her own restaurant and, in his words, "she was ... very straightforward about being able to operate it as much as she wanted to" in spite of her legs.

On examination, Ms. Sims presented with brawny edema on both legs, several scars which looked like healed ulcerations, and few varicose veins on the surface of her skin but nothing serious. Pulses in the arteries of her legs were good. Dr. Rigdon's diagnosis was chronic venous insufficiency, or post-phlebitic syndrome.

He explained this is a permanent condition with no known cure, but one which is nonetheless manageable with relative ease. No unusual therapy or medication is required. The best treatment is to avoid trauma to the legs, elevate the legs as needed and wear graded compression hose as needed.

Insofar as permanent restrictions are concerned, Dr. Rigdon stated that no specific restrictions were necessary. Instead, Ms. Sims would be advised to try and avoid any traumatic injury to her legs and to elevate them as needed. Regarding her impairment, Dr. Rigdon testified that Ms. Sims's condition justified a permanent medical impairment in the range of 10% to 39% with her particular injury falling "clearly in the low end of that [range]" at about 10%.

Dr. Rigdon was questioned as to why he increased her rating from before. He explained that when he first rated Ms. Sims, he did so based on the description he had been given of Ms. Sims's condition which was contained in her medical records. At that time he did not have the benefit of a physical examination. The one thing he saw in the examination which did not come through in her prior records was the "persistent edema" and this "puts [her] in a little bit of a higher category" according to the American Medical Association guidelines.

C.
Having consider this matter further, including the latest information from Dr. Rigdon, we hereby find that Ms. Sims is entitled to temporary disability benefits as provided in our February 1, 2000 Order, and to permanent partial disability benefits for a 50 % impairment to her right leg, commencing April 22, 1998 and continuing for a period of 87.5 weeks at the rate of $175.99 per week.

The Order of Administrative Judge dated September 10, 1999 is hereby reversed as to temporary disability; in all other respects, the Order is affirmed.

SO ORDERED this the 14th day of September, 2000.

MISSISSIPPI WORKERS' COMPENSATION COMMISSION
Barney J. Schoby
Beverly Bolton

ATTEST:
Joann McDonald, Secretary
___________________________

MISSISSIPPI WORKERS' COMPENSATION COMMISSION
MWCC NO. 95 17378-F-5887

DORA SIMS CLAIMANT

vs.

RIVER HILLS CLUB OF JACKSON EMPLOYER
AND
MISSISSIPPI RESTAURANT ASSOCIATION WORKERS' COMPENSATION TRUST CARRIER

REPRESENTING THE CLAIMANT:
Honorable R. Kelly Kyle and Honorable Roger Doolittle, Attorneys at Law, Jackson, Mississippi

REPRESENTING EMPLOYER AND CARRIER:
Honorable Jefferson Skelton, Attorney at Law, Ridgeland, Mississippi

ORDER OF ADMINISTRATIVE JUDGE

A hearing was held on May 14, 1999, at the Mississippi Workers' Compensation Building located in Jackson, Mississippi at approximately 2:15 p.m. This cause concerns an admitted injury suffered by the claimant while in the employ of the instant employer. Prior to going onto the record in this cause the parties entered into a singular stipulation concerning the average weekly wage of the claimant which was determined to be $263.97.

Evidence was entered into this cause as follows: Claimant Exhibit 1, Deposition of Dr. Seshadri Raju; Employer and Carrier Exhibit 2, Physician's Affidavit of Dr. Edward E. Rigdon; Employer and Carrier Exhibit 3, Employee Counseling Notice.

ISSUE
The existence, nature and extent of disability attributable to the injury inclusive of the date of maximum medical improvement.
SUMMARY AND EVALUATION OF RELEVANT EVIDENCE
Claimant testified on the occasion of this hearing that she was born on January 22, 1948 and is currently 51 years old. As to her past work history, claimant indicated she has worked in the past primarily as a cook and baker. The date of injury is reported to be November 17, 1993. The claimant testified that after multiple surgeries for her work-related injury, she went back to work at River Hills on a Saturday and after working "eight or so" hours and then Sunday she worked "two", on the following Monday her right leg was "really" hurting her. She testified that standing for long periods of time is the catalyst here. The claimant worked as a baker for River Hills Club. She worked from 6:00 a.m. until and basically achieved around nine to ten hours a day, particularly when parties were scheduled at the club. The claimant had worked for River Hills for eleven and one-half years. Claimant testified she was fired by River Hills after her injury and her surgeries. She has been a sitter for an older lady and has worked for Two Sisters Restaurant. In October of 1998 she opened her own restaurant in Raymond, Mississippi. The claimant testified that now that she is her own boss so she can set her own pace and take the frequent breaks she needs. Claimant takes Coumadin, 1 per day as proscribed by Dr. Raju. She wears elastic braces on her legs which have to be replaced every six weeks. Claimant indicated in the past she had tried support hose, but they were insufficient for the containment of her leg. It is noted this is a scheduled member case concerning the right leg of the claimant. She testified that she wears the braces, however, on both the right and left leg.

The defense called Sandy Christopher, the bookkeeper at River Hills. She noted that the reason for termination of the claimant was due to her not reporting to work for one week or having any contact with the employer which was in clear violation of the club policy in place and in that regard.

Dr. Seshadri Raju testified by deposition in this cause noting that the claimant first presented to him on November 22, 1995 and presented with symptoms and signs of chronic venous insufficiency. She also had leg ulcers present in both legs that had "acted up" from time to time. At the time she saw him, claimant told this physician she had had the ulcers for about ten years. Dr. Raju is a noted venous specialist in the Jackson Area. He testified that she had both superficial and deep venous problems, so he recommended a modality of treatment which included venous reconstructive surgery in a staged fashion on both legs, or bilaterally. They performed one stage and allowed her to recuperate and then another stage was initiated. There were several procedures altogether, four or five in number for her resolution. Dr. Raju operated on the left side on January 11, 1996 and then on March 14, 1996 operated behind the knee on the right side. On December 2, 1996, claimant had surgery on the left side and then some vein stripping on the tight side on January 13, 1998. Altogether, four procedures, staged over a period of time on both lower extremities were performed. She had presented with a history of being a cook at River Hills Club. This doctor was asked, based upon the occupational history that she related to him, his examination and expertise, whether or not he had an opinion based upon a reasonable degree of medical probability or certainty as to the causation of her maladies and he noted he was not sure whether it was caused by her job, but he was fairly certain that her job as described made the condition worse. That is to say it either aggravated or exacerbated, particularly because she had to stand on her feet all day long. Dr. Raju last saw the claimant on September 29, 1998 and does not have a return visit scheduled, rather a PRN return visit. As to any medication maintenance, claimant would require mostly pain medication which he is not prescribing. She is possibly getting some over-the-counter because of the right leg and the left leg is reported to be doing fine and is not considered in any contemplation of disability. He was asked if he had an opinion as well to the same applicable standard as to any impairment, either to the left or right extremity, and he noted that as to both legs, the ulcers have not recurred since surgery so the problem of ulceration has been taken care of and she continues to have pain on the right lower extremity, but the left side is not bothering her. Dr. Raju noted that pain is a symptom of venous insufficiency and there is no objective way of measuring pain. So, even though all of the laboratory parameters have improved or normalized, on the basis of fact that she continues to complain of pain in the right lower extremity and says she is unable to stand on her feet and work, he noted that he felt she was disabled to the extent of a 50 percent right lower limb disability, and felt that she had reached maximum medical benefit as of September 29, 1998. Dr. Raju also felt as to any permanent limitations relative to her ability to stand at least as it pertains to the right extremity, the problem is when one stands up, the symptoms got aggravated so pain is the major symptom and because of the presence of pain she is limited to the fact that she cannot stand for more than 30 minutes at any given time. In considering her level of education that would pretty much take her out of the job market, he opined. Dr. Raju testified that over an eight hour period she could only stand about 30 minutes at a stretch and could not sit in one place for more than 3 or 4 hours without discomfort. Further, she cannot lift weights beyond 20 pounds and cannot push or pull anything over 50 pounds. This would increase pressure on the extremity and when you push and strain it pushes blood to the lower extremities. Dr. Raju clarified that he performed surgery on this lady on four different occasions and on three of these occasions he performed surgery on the right leg and on one occasion the left leg. The doctor also opined that veins carry blood flow and there are various parameters that one can measure in the laboratory. Chronic venous insufficiency has got multiple facets. One cannot measure each and every one of them. Some things can be measured objectively, and what can be measured objectively has improved. One major element of what she has is pain, and pain is notoriously difficult or impossible to measure. Therefore, everything else improved except for the pain. He also reiterated that he did not consider that the claimant had reached maximum medical improvement on April 21, 1998, but rather that was a medical improvement date as to the benefit of one of the surgical procedures and he felt unequivocally that the claimant reached maximum medical improvement on September 28, 1998. He indicated that pain is a symptom and when she tried to go back to work and then came in and saw him on June 24, 1998 she told him she had gone back to work, but had recurrence of pain in the right lower extremity. The left leg was doing "OK" and at that time he had nothing further to offer. Dr. Raju noted she was on circaid, which is leg support, and he prescribed some hydrotherapy and leg exercises for two weeks, physiotherapy at that time, and that did not make any improvement. Claimant came and saw him on September 29, 1998 and said because of pain she "couldn't cut it." Dr. Raju stated he wished he could look further into the future and see how a patient was going to do, but he was not able to do so and therefore the maximum medical benefit was more properly designated on the latter date. He testified that based on all the lab data and so on, he felt she could go back to work initially. "Basically you let them try and see how they do, and there are things that we cannot measure, and if those things show up, they just show up".

Dr. Raju also clarified by virtue of cross-examination, that the basis of his change of opinion first concerning Ms. Sims' date of maximum medical improvement and his opinion of whether or not she has any permanent impairment to her right leg, that both are based entirely on her subject complaints of pain and nothing else. And there are no objective tests that can measure pain. Therefore, it is safe to say that all objective tests have normalized, but they do not reflect the status of pain. He testified that he changed later to the 50% impairment rating and based it on AMA Guidelines. Dr. Raju noted that the AMA Guidelines go into loss of functionality of the limb; and, as pain is a component of functionality, it is pretty much his clinical estimation of the degree of pain that she has, and "so on and so forth". He testified it was left up to the physician to decide how much functionality the patient retains. Dr. Raju felt that she had enough pain to have a 50% loss of lower extremity function of the right leg and although the book does not specifically point that out, It is basically one of clinical judgment. Dr. Raju stated you have to use some common sense when assigning these impairment ratings. "If you lose the entire leg it is 100%, the patient has got a problem with the use of the leg. And you cannot make the argument that unless a person loses the leg completely they cannot get any functional impairment to the lower extremity". He also raised as a caveat that you cannot interpret AMA Guidelines literally as same does not cover every possible clinical situation. This was his opinion and his considered clinical judgment, whether or not it is consistent with the AMA Guidelines. It was revealed in conclusion that Dr. Raju had relied on the Guides to Evaluation of Permanent Impairment, Second Edition, which was copyrighted in 1984 and did not have the current edition of AMA Guidelines, Fourth Edition.

The employer and carrier entered a Physician's Affidavit of Dr. Edward E. Rigdon who is with the Department of Surgery at the University Medical Center and has a practice limited to vascular surgery. Dr. Rigdon did not actually examine the claimant but rather reviewed the records which were provided to him including the depositions of Dr. Raju and Dora Sims, as well as Dr. Raju's office medical records. It was his opinion that Ms. Sims reached maximum improvement on December 3, 1997 based on descriptions given by Dr. Raju and Ms. Sims' office documents. Subsequent to that visit the date of maximum improvement was changed on two occasions, but he felt that this was an entirely subjective problem and all objective documentation indicated she was significantly improved. Dr. Rigdon did think that Ms. Sims suffered from some permanent impairment in the right leg and based on AMA Guidelines he placed it in Class 1, which was 0-9%. He further felt that as to physical limitations Ms. Sims was likely to have pain in her legs on prolonged standing and every patient that he had seen with this degree of venous insufficiency can be very well controlled with compressive hose. Properly fitted and properly worn compressive hose should allow her essentially normal physical activity such as walking and even prolonged standing. Dr. Rigdon did think it would be reasonable that she should have midmorning and early afternoon breaks where she can elevate her feet and, if necessary, remove the compressive hose. Otherwise, he felt she should be able to do essentially normal activity and this is why his impairment rating was so low. It is noted in conclusion that Dr. Edward E. Rigdon is the Chief of the Division of General and Vascular Surgery. It is also pointed out for purposes of clarification and probative value associated herewith that Dr. Rigdon performed an employer medical evaluation based on records only and did not actually visit with the claimant in a clinical setting or at all.

Employer and Carrier Exhibit 3 is the Employee Counseling Notice relative to the claimant's claim and noted that the reason for her counseling was failure to report to work for one week and "no contact" with the employer which resulted in a recommended action of discharge. This Exhibit was signed by the personnel director and was dated 9/8/96.

DECISION

Upon evaluation of all testimony, lay and medical, and based upon a preponderance of the evidence supported by applicable law, I hereby render the following findings of fact:

1. The claimant was temporarily and totally disabled as a result of this work-related injury from the date of injury, namely, November 17, 1993 through September 28, 1998, the date as designated to be of maximum medical benefit or improvement by her treating physician and specialist in this regard, Dr. Seshadri Raju.

2. The claimant has suffered from a permanent partial medical impairment as a result of this admitted injury in that she has suffered a functional loss of use assigned by her treating physician to be 50% and she should be compensated in a like measure for this loss.

3. It is noted for the record that the totality of circumstances herein indicate that the claimant is able to be gainfully employed in her own business at this time and that she is functioning well. It is also pointed out that Dr. Raju's comments are heavily considered in this regard and his 50% assignation is considered to be the best medical evidence since he actually treated the claimant and as a result of multiple surgeries necessary for the resolution of the injury he has monitored her the entire time. Conversely, Dr. Rigdon who had a different opinion in several regards had not ever actively treated the patient or even examined her.

ORDER

IT IS, THEREFORE ORDERED AND ADJUDGED that the employer, River Hills, and carrier, MS Restaurant Association Workers' Compensation Trust, pay workers' compensation benefits to the, claimant as follows:

1. Temporary total disability benefits in the amount of $175.99 per week commencing on November 17, 1993 and concluding through September 28, 1995, with proper credit to be given for any and all monies, wages or benefits previously paid to the claimant during this time frame.

2. Penalties and interest, if applicable, pursuant to Mississippi Code Annotated, § 71-3-37(5)(6) (1972).

3. Provide medical services and supplies as required by the nature of the claimant's injury and the process of her recovery therefrom in accordance with Mississippi Code Annotated, § 71-3-15 (1972).

4. Permanent partial disability benefits in the amount of $175.99 per week commencing on September 29, 1998 and concluding after a period of 87.50 weeks commensurate with a 50% loss of functional use of the right lower extremity and with reference to Mississippi Code Annotated, § 71-3-17(c) (1972).

SO ORDERED this the 10th day of September, 1999.

VIRGINIA WILSON MOUNGER
ADMINISTRATIVE JUDGE

ATTEST:
Brenda H. Goolsby, Secretary
____________________________

1. It should be noted that we are concerned here only with the extent of functional loss of use of the right leg sustained by Ms. Sims. The Judge found, and we agree, that Ms. Sims has shown herself capable of employment which is comparably gainful to her pre injury employment, and therefore, she has no occupational disability. See Betty Robinson v. Tri-Lakes, Ltd. and Mississippi Manufacturer's Association W.C. Group, MWCC No. 94-13678-F-8709 (June 7, 1999 & July 7, 1999). The Employer's and Carrier's characterization of the Judge's award as one for "industrial impairment" misses the mark. Industrial impairment refers to one's occupational disability, not to their medical or functional loss of use, and the Judge's award was clearly based on the 50% functional impairment assigned by Dr. Raju.