MWCC NO: 95 14871-F-6014
CAROLYN WRIGHT CLAIMANT
vs.
KRUEGER INTERNATIONAL, INC. EMPLOYER
AND
ST. PAUL FIRE AND MARINE INSURANCE CO. CARRIER
REPRESENTING
CLAIMANT :
Honorable
Al Chadick, Attorney at Law, Kosciusko, Mississippi
REPRESENTING
DEFENDANT :
Honorable
Andrew D. Sweat, Attorney at Law, Jackson, Mississippi
The Commission heard the above styled cause on January 10, 2000, in the offices of the Mississippi Workers' Compensation Commission, Jackson, Mississippi on the Claimant's "Petition for Review" by the Full Commission.
Having heard the arguments offered on behalf of the parties and having thoroughly studied the record and the applicable law, the Commission affirms the "Order of Administrative Judge" dated June 29, 1999.
SO ORDERED, this the 11th day of January, 2000.
MISSISSIPPI
WORKERS' COMPENSATION COMMISSION
BY:
Mike Marsh
Barney
Schoby
COMMISSIONERS
ATTEST:
Brenda H. Goolsby, Secretary
___________________________
MWCC No. 95 14871-F-6014
CAROLYN WRIGHT CLAIMANT
vs.
KRUEGER INTERNATIONAL, INC. EMPLOYER
AND
ST. PAUL FIRE AND MARINE INSURANCE CO. CARRIER
APPEARING FOR CLAIMANT :
Honorable Al
Chadick, Attorney at Law, Kosciusko, Mississippi
APPEARING FOR DEFENDANT :
Honorable Andrew
D. Sweat, Attorney at Law, Jackson, Mississippi
A hearing was held on March 16, 1999 at 11:00 a.m. at the Montgomery County Courthouse located in Winona, Mississippi. After a period of time this record was finally closed.
This cause concerns an admitted injury suffered by the claimant while in the employ of the instant employer on or about the date alleged in the Petition to Controvert namely, July 10, 1995.
Prior to going on to the record the parties entered into the following stipulations: The average weekly wage of the claimant was determined to be $232.80 per week; the date of maximum medical improvement was designated to be June 7, 1996.
Evidence was entered into this cause as follows:
The existence,
nature and extent of disability attributable to the injury.
Claimant testified on the occasion of this hearing that she was injured while lifting a 60 inch round table for this employer. The claimant is currently 33 years of age and separated from her husband. She entered but did not finish the 10th grade and never achieved a GED. The claimant has 2 children. The claimant further testified to no additional training, vocational or otherwise. One of her first jobs was working at a Wendy's in Tupelo, Mississippi as a cook and waitress. An additional job was at Multicraft making parts as an assembler for this employer. She also worked at Wards Restaurant as a cook and later went on to Tyler Homes Hospital as a nursing aid lifting patients, etc. Claimant also worked as a seamstress at a sewing factory and ran a press for that employer. In April, 1994 claimant started at Krueger "bullnosing the tables." This necessitated the handling of sixty inch round table tops. She would run a router around the edge of the table then "bullnose" the table with plastic and trim it out. Claimant testified these table tops weigh sixty to seventy pounds apiece. Other tops weigh upwards to 100 pounds. Claimant also worked in the Zylon Department sanding the wooden and metal chairs. She would use a sand block for this procedure. Claimant worked in the bullnosing department the majority of the time. In July, 1995 the claimant was hurt while on the job. She first went and sought the services of Dr. Middleton who gave her pills and a shot. She was off work for a few days. She went back to work, had recurring pain and was referred on to Dr. Anderson. She attempted a return to work in June, 1996 in the Zylon Department. The claimant kept working until about six months later on or around September, 1996. The claimant said she was moved out of the Zylon Department and sent to sand a door down. She indicated she needed help flipping over the door and testified she could not do it without help. Claimant said she was called to the office and told by "Cissy" to go home and not come back. Claimant went back onto the floor of the plant. She was told to leave the floor by "Skeet" and to "go out the door before I call the police." Claimant was then escorted out. The claimant had returned to the work after the injury at the same, equal or greater wages as they had gotten an across-board raise. She made from $6.50 to $6.75 per hour. The claimant was terminated in September, 1996. The claimant testified she then started looking for work and has done some private sitting for Dr. Middleton, caring for his ailing sister. Claimant now works for Wal-Mart as a cashier and also as a sales clerk. Claimant testified this job is within her restrictions and she is still working at the Wal-Mart. She achieved $5.90 upon initial presentation at this company and now makes $6.14 per hour. She only worked 28 hours initially and then got up to her present capacity of 36 hours per week. As to the claimant's present condition she indicates that she has pain and has to take Advil at least four times a day. She has trouble lifting heavy objects and has trouble performing housework. Reference is hereby made to Employer and Carrier Exhibit 6, the return to work slips relative to the claimant which indicated she could return to work with no restrictions. Upon her return to work at the Zylon Department the claimant said she was not required to do any heavy lifting, i.e. over 25 pounds. Also, after she produced a slip with a "no sanding" restriction, she was then not asked to sand. Her last day of work was September 18, 1996. She had a conversation on that date with Cissy Carpenter. She was asked:
The employer and carrier called Cissy Carpenter, the special projects manage at Krueger International and an employee for the past seven years. She testified that on September 18, 1996 she talked directly with the claimant. She is located within the front office of the plant. Ms. Carpenter was told that the claimant was refusing to do a job. Carolyn Wright said she was refusing to "do the door." Carolyn Wright said sanding was a restriction, i.e., no sanding and no lifting over 25 pounds. Ms. Carpenter said to go to the underrail department and as to lifting over 25 pounds, she would have help in that department. The claimant refused to report to the underrail department and left Ms. Carpenter's office. Ms. Carpenter then contacted Mr. Kendrick. Ms. Carpenter did not say she was terminating her, rather there was no other work available other than that in the underrail department. It was noted that Ms. Crawford had sent the claimant to sand and putty a door. Claimant felt she did have legitimate medical reasons for initially refusing the job that Ms. Crawford instructed her to do.
Ms. Diane Crawford was called by employer and carrier and it was noted that she is a lead person for Krueger International and was the claimant's supervisor before and after her return. Ms. Crawford asked Ms. Wright to sand a door. Ms. Wright ref used " I then asked her to putty the door, she once again ref used. " There is apparently a distinction here between the sanding and the puttying of this door. Ms. Crawford said, "I will have to go to Ms. Carpenter." Ms. Crawford then got Walter Lee to "do the door" for her. Ms. Crawford was told to bring Ms. Wright to Ms. Carpenter's office. Ms. Crawford was there for the entirety of the conversation. She indicated the claimant, in response to the controversy, stated "By tomorrow I'll have restrictions on those too." Ms. Wright said she was not going to leave. Ms. Crawford had called in Mr. Kendrick who escorted her out of the plant. Ms. Crawford said they would accommodate her as to lifting and there was always help available when she did return to work. Ms. Crawford is still a lead person at Krueger International and had made sure that her department knew that the claimant should not lift over 25 pounds and as to the sanding, Ms. Crawford found out about that later and instructed the claimant to perform no sanding.
Bobby Kendrick, the Human Resource Manager since August, 1994 at Krueger International, was called in this cause. He indicated that the return to work slip he was privy to was "double checked" and indicated no restrictions on the part of the claimant. As to the table arms t hat the claimant had to deal with in her job he noted that they were light in nature. As to any Zylon product, they were 16 to 70 pounds in maximum weights employed. He also testified that the claimant did on September 4, 1996 bring in her own excuse. Mr. Kendrick explained all that is contained in composite Exhibit 6. He said Ms. Wright was upset and hostile and used vulgar language. Mr. Kendrick told her to go home and come back to see him at 7:00 a.m. the next morning. He never received a call from the claimant and she did not come back the following day. After three days of no shows/no calls, then an employee is terminated because this is a Krueger policy. They feel that in such an instance the employee is assumed to have voluntarily quit. Mr. Kendrick said he tried to accommodate workers when they return to work. Mr. Kendrick said that although claimant never called him, he in turn never called her. He also felt that Dr. Anderson as the treating physician would have to make the call as to any work restrictions and this was what they relied on.
After this testimony, it was duly recorded that the claimant was called back in rebuttal to some of the comments made by the workers at Krueger. She testified as follows:
Dr. Robert P. Christopher a physician who practices the specialty of physical and rehabilitative medicine in Memphis, Tennessee testified by deposition in this cause. He noted that he saw Mrs. Wright on July 24, 1998 and took from her a pertinent history at that time. She noted that she was 33 years of age, in good health working at Krueger International when sometime around July, 1995 she sustained an injury. She noted that at first she did not report same because she did not think she was severely injured, but within two or three days the pain started going from her back down the back of her left leg almost to her heel. He also recited her medical treatment history. After a review of all pertinent prior medical treatment he asked her what her complaints were on the date that he saw her. She said she was still having intermittent back pain. She indicated it was not there all the time, but that it would "come and go" and she also had pain in her left leg usually present at the same time the back pain was there. Claimant said it was present for a considerable part of every day, but there were some times when she was relieved of her pain. She noted that her left leg felt weak to her and said it had given way on her several times, but she had not fallen to the ground. She also complained that the pain would wake her up at night and sometimes she had to get out of bed in order to reduce the pain. She noted to him that after she was laid off from Krueger that she had been for the year prior to his seeing her working as a cashier at the Wal-Mart Store and this job required her to be on her feet eight hours a day and she said that she cannot stand in one position for more than 20 or 30 minutes and has to move around in order to remain comfortable. She does, however, seem to be able to sit for long periods of time without any increase in her back pain. She indicated work had an affect on her back and leg pain which seemed to get worse as she goes through the work day at Wal-Mart. Her only medication at the time of this presentation was over the counter medication, mainly Tylenol. She was not taking any prescription medications. He performed a physical examination on her. Dr. Christopher noted that by observing her it was his form of reference that a person with back problems who is having a lot of pain, usually while he is taking the history will tend to sort of shift their weight from one hip to the other and get up and walk around. He did not observe this with reference to Ms. Wright. She was able to sit quietly during the 30 minutes he devoted to taking the history. He was not saying she was in no pain at all, but it was certainly not severe enough to cause any change in her behavior. He indicated upon physical examination he did find on the left side a noted muscle spasm which he termed as moderate. He testified that "of course" her complaints of pain performing any of the activities he observed are subjective because he is depending on what she told him, but what she told him was consistent with what he felt was a muscle spasm present on the left. He noted on straight leg raising tests she actually complained of pain in her upper back which he could not explain physiologically and would not consider that a positive test for sciatic nerve irritation as that is not where one would perceive the pain. Dr. Christopher came up with a diagnosis at that time and noted that based on the history and his examination his diagnosis was that she had chronic lumbosacral myofascial strain of the low back. To break this down, chronic means it has been there for a long time, lumbosacral means lower back, myo means muscle and fascia is the connective tissue that hold the tissue to the bone. With the type of muscle spasm she showed, he felt this was evidence of the strain of the muscle and the attachment of the muscle to the bone. He had to conclude that it was secondary to multiple lifting injuries that she had while working for Krueger International, as she did not give to him a history of any other back injuries and also told him she had never had back trouble before she worked there. He had no other conclusion to draw except that it came from the work based on the history that she had given him. Dr. Christopher based all his observations on reasonable medical probability and also as regards any permanent impairment, he noted that consultation was made to the Guides of the Evaluation of Permanent Impairment Fourth Edition published by the AMA. He noted that the impairment would be considered to be minor and it would provide a 5% impairment to the body as a whole. As to restrictions, he testified that she should not do any job which required her to lift objects weighing more than 25 pounds frequently and 35 pounds occasionally. Frequently would mean several times an hour and occasionally would mean no more than once an hour in an eight hour day. He also felt that she should avoid work that requires frequent bending from the waist, crawling, stooping, squatting and stair climbing. He felt as well that she should avoid jobs where she had to be on her feet for long periods of time and she should ask to be able to sit down for two or three minutes once or twice during the work day. He told the claimant that these observations did not affect her maximum abilities to do things, but rather, were restrictions he felt she had to observe if she did not want to have further problems with her back. Dr. Christopher would call them preventive restrictions. As to further treatment protocol, he felt it was his strong recommendation she should go back to Dr. Anderson for consideration of an epidural steroid block. He felt that she should also talk with Dr. Anderson about a TENS Unit. Dr. Christopher said it was his experience that TENS units are often helpful in relieving back pain. He noted that when saw the claimant on July 24, 1998 it was approximately three years after the accident that she told him about when she was working at Krueger International and he certainly had no knowledge of her condition before the first time he examined her on that date other than by looking at past medical reports. Indeed, he had no first hand knowledge. He noted that she was referred to him by Mr. Chadick, claimant's attorney. Dr. Christopher agreed that there was no herniated disc and the accuracy of statements related to him by the claimant as far as any statements appearing in his report, would be based on the accuracy of claimant's statements to him. He noted that if Dr Anderson testified that he could find no objective findings to support any complaints of pain or to support any claim of disability or impairment beginning in the Spring of 1996 up until the time he released her from treatment and the last time he saw her in August, 1997, he could not disagree with or refute those findings since he was not examining her in that time frame. He testified that she did not appear to be in any acute or severe pain noting that she was able to sit through the time he took her history, which was about 30 minutes, without displaying any indication of pain. Reference was also made to some of the inconsistencies in her examination and this physician said he could not explain these findings and when he did the straight leg raising test in the supine position that 30 degrees to the left she had some upper back pain and then on the right at 40 degrees she had some upper back pain and that was a symptom or response that he could not medically explain. One explanation for this could be of symptom magnification. The reason that the straight leg raising in the supine position is employed and then again in the sitting position is to see if you get consistent results from the test as it is the same test that is just performed at two different positions and is meant to elicit the same response and he indicated that he got inconsistent results when he performed the testing. Reference was made to the Wadell's Test named after Dr. Wadell and an article in reference thereto. Wadell's signs are reflective of what one would call non-physiologic signs of back pain, in other words you cannot explain same on an anatomical or physiologic basis. One of them is an inconsistency between supine and sitting straight leg raising testing. According to Dr. Wadell there are two reasons why that can happen. One, if the patient is faking and the other is they may have a psychiatric component to their pain. Another indicator on is sensory neurologic examination which would reveal sensitivity to pin pricking at the lower extremity. This did not follow a dermatornal pattern, rather the claimant just indicated that the whole leg felt sensitive to her. These were the two non-clinical or non-medical findings from her exam. He noted that the basis for his diagnosis would be primarily or centrally the muscle spasm that he found in her back which would be an objective medical findings. And, again, if Dr. Anderson testified that he could not find any objective medical findings such as muscle spasms during the time that he released her to return to work in the Spring of 1996 up until the time that he last her in August 1997, he could not disagree or refute such a finding. As to his assignment of a 5% impairment rating, the basis of that was that she had chronic complaints of pain. This would be coupled with the one objective medical finding in the form of a muscle spasm or what one may term a non-uniform loss of motion.
Dr. William E. Anderson, III, an orthopedic surgeon, testified by deposition in this cause noting that he did have an occasion to treat a patient named Carolyn Wright having first seen Ms. Wright on September 18, 1995 upon referral from Dr. Middleton from Winona. On that date Ms. Wright gave him an history that she had injured her lower back at work when she was attempting to lift a heavy table some time in August, 1995. He took from her a pertinent work and medical history and performed a physical examination on the claimant. She exhibited no neurological deficits on exam. He reviewed the x-rays, the CT scans from Winona and both of these studies were felt to be within normal limits. On review of same he felt she did not have a ruptured disc, based on the CT scan and though she was having a back strain and some sciatica, meaning some referred pain down the course of the sciatic nerve on the left side. His recommendation was to place her on an eight day course of Prednisone, which is a tablet form of the steroid. She was to be followed up by a non-steroid anti-inflammatory. He fitted her with a lumbosacral support to wear when she was "up and about" and she was to return in ten days. She summarily returned on September 28, 1995 stating no improvement and noted tingling and numbness in the left foot which she had not been experiencing previously. Her straight leg raising test was basically unchanged and again he found no actual motor deficit such as weakness in the left leg. He ordered an MRI scan of the lower back "just to be sure" about the presence or absence of a ruptured disc. He was to see her back when same was achieved. She returned on October 6, and the MRI scan was reported as normal with no evidence of a ruptured disc. Her medications were changed at that time. She returned to see him on October 20. It was reported that day she had been improving and then, in the interim since the October 6 visit, after some improvement, she had a fall down some steps in her home and was basically back to the same complaint that she had had at the previous visit following her fall at home. He felt that the subsequent injury probably "flared back up" with symptoms after the showing of some improvement, so he did not change her medication. He did order some outpatient physical therapy for her to be done in Winona and gave her a two week follow-up. On November 3, when she returned she reported no improvement and her complaints were unchanged. He felt at that point that he needed to get an additional opinion from a neurosurgeon and made arrangements for her to see Dr. Jerry Engelberg at Semmes Murphy Clinic in Memphis. He understood that she did see Dr. Engelberg in his capacity as a neurosurgeon who was also sent copies of her MRI scan for his evaluation. Dr. Engelberg, after examining Ms. Wright and looking at the reports, felt there was no evidence of a ruptured disc or other surgical type problems with the back and referred her back to him for continued care. He continued to treat the patient. When he saw her on April 29, 1996 she was still complaining of low back pain. He re-x-rayed her and still saw no abnormality and just made a change in medications. He next saw her on June 7, 1996 approximately one month later. At that time she stated she was improving and most of her symptoms were primarily nocturnal by that point and she was having "good days." The medication was continued. On June 6, 1996 he released her to return to work with a return appointment for one month. Reference is made to the return to work slip of such date and which says "no restrictions per Teresa," and the doctor explained that this was probably a miscommunication between the employer and his office and that if he had intended to pose any restrictions on her in reference to that release he would have put them in the blank provided. Usually if he is not putting restrictions, in he just left the restrictions line blank as a matter of course. He next saw her on July 3, and basically her complaints were the same. He then released her to return to work on July 5, 1996. Again no restrictions were placed on her for work. He saw her on July 18, 1996 and released her once again to return to work without restrictions and a one month follow up. On August 12, 1996 her complaints were basically unchanged, "not really any better, not really any worse." She was once again released to return to work without restrictions with a one month follow up. She returned to see this doctor on September 5, 1996. His note then indicated that although she was back at work, there was apparently some confusion as to whether she should be at limited duty or full duty. It was his understanding that the confusion resulted from the fact that in the interim on at least two or more occasions claimant had been back to see Dr. Middleton whom he believed apparently suggested some restrictions, so the employer was getting conflicting signals. Dr. Middleton was the physician who referred the claimant to him initially. He is also her family physician. In any case given the fact that she was back at work, but not improving, this doctor felt it was worth a try to perhaps diminish some of the activity level and since the employer said that they had limited duty available where she would continue to work, he indicated that they should go ahead and limit her lifting to 25 pounds for a while "quite frankly to see if it would help," so on the September 5th visit he did go ahead and return her to work with a 25 pound lifting restriction. At that time however, he was able to detect no objective medical findings to support her continued complaints of pain or to support the placing of restrictions on her at work. Rather they were imposed due to the symptomatic complaints or subjective findings. Therefore, the September 5, 1996 return to work slip indicated no lifting over 25 pounds and a return appointment for one week. He saw her then on September 12, 1996. As she was still voicing the same complaints she was continued on light duty thinking that may have been what was leading to the improvement. He released her again on that date to return to work, continuing the 25 pound lifting restriction. At that time as well Ms. Wright mentioned to this doctor that one of her jobs involved hand sanding which requires a lot of rotational movement throughout the lower back so he added "no sanding" at that time. There were still no objective medical findings present. October 3, 1996 visit still revealed no objective findings. He then saw her on November 14, 1996 with no change in the complaints or his exam findings. He next saw her on December 13, 1996 and subsequently on January 27, 1997. As she was still having some night time symptoms, he placed on her bed time dose of Elavil and put her down for one month return, which was February 24, 1997. Exam and complaints were unchanged from the previous visit. On April 14, 1997 she stated she was getting better but stated she was still having some low back and left leg discomfort. He once again x-rayed her back and it was still within normal limits. He released to return her to work and a six week follow up appointment. By June 5, 1997 this doctor noted that the claimant continued to show some improvement and continued her on the same medicine regimen. He noted at that point that she may return to work without restrictions and return in two months for follow up. He saw her one more time after that on August 7, 1997 and he changed her medication and released her once again to return to work without restrictions and a return appointment two months hence. He has not seen her since the August, 1997 exam. Dr. Anderson noted that based upon his knowledge, experience, and expertise as an orthopedic surgeon and his examination and treatment of Carolyn Wright, he had an opinion based upon a reasonable medical probability as to whether or not claimant sustained any permanent partial impairment as a result of her injury while working for their employer in July or August, 1995, and Dr. Anderson opined that in the absence of objective findings it is really impossible to assign an impairment rating, so he would have to say that she would have no impairment rating. That is not to say that he did not believe she may have had some discomfort when she relates it to him, but he cannot without objective findings assign an impairment rating. As of the last several visits there would be no restrictions placed on her physical activities, and "quite frankly" the restrictions he replaced on her in September, 1996 were "just as much an experiment as anything else" from a stand point that she was not really improving with changing medications or at least not reporting to him any significant improvement and he felt it was worth trying to see that if you diminished but did not eliminate physical activity if it would elicit some improvement, so he did it solely for that reason. Further, when he felt like she had gotten to the point where the restrictions were not necessary anymore he lifted them. He testified that at no time after June 7, 1996 did he believe that the claimant was unable to work because of this injury and did not advise her to stay off work because of this injury any time subsequent to or after June 7, 1996. This doctor noted that his posture is that he chooses to try to believe what his patients tell him as long as he can treat them in a conservative manner that is not with "say" a habit forming drug and he has never labeled a patient as not being truthful, but by the same token as far as documenting things that need documenting he cannot do that based solely on suggestive criteria. He further elaborated on the reasons that he did not feel the claimant had any medical impairment, noting that to make a diagnosis of an intervertebral disc problem you have to have an objective finding. He testified in a burst of candor as follows:
The Medical Records Affidavit of Dr. Jerry Engelberg, a neurosurgeon at the Semmes Murphy Clinic, was entered into this cause. This is a one page entry which includes an office note relative to a visit which occurred on November 15, 1995 and states as follows:
I don't think she has any kind of surgical disc or any kind of a correctable neurosurgery problem.
Employer and
Carrier Exhibit 7 is an incident report of the claimant noting that she
was classified in an unfavorable light and the incident was deemed intolerable.
This incident report is reflective of the incident which occurred and which
is a part of this hearing today. It was noted that Diane Crawford, the
lead person on the wood edge line asked Ms. Wright to "work out" a door.
She stated, "No she couldn't sand." She was asked to turn and putty it,
she refused. The incident report was reviewed by Cissy Carpenter, as the
department supervisor, and the personnel manager, Bobby Kendrick on September
18, 1996 and September 19, 1996. Claimant was escorted out of the plant
after she refused to report to the underrail department. This incident
report is supportive of the testimony on the occasion of this hearing.
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. Claimant was temporarily totally disabled as a result of this work related injury from the date of injury namely July 10, 1995 through the date of June 7, 1996, designated by the parties as the date of maximum medical improvement of the claimant and opined by her treating physician, Dr. William E. Anderson, III.
2. Vi ewing the totality of the circumstances herein and with reference to the fact that the claimant was treated in a conservative manner for an extended period of time by her treating physician, and upon a review of all medical submitted, there is no substantiation that the claimant has suffered from any permanent impairment medical or otherwise, as a result of this admitted work-related injury and no disability of a permanent nature is found. Greater consideration is to be given to the treating physician of the claimant and in this regard the attending physician was unwavering in his response that he treated the claimant conservatively for a long period of time and indeed found no permanency therein.
IT IS, THEREFORE, ORDERED AND ADJUDGED that employer, Krueger, International, Inc., and St. Paul Fire and Marine Insurance Company, carrier, pay workers' compensation benefits to the claimant as follows:
1. Temporary total disability benefits in the amount of $155.21 commencing on July 10, 1999, and continuing through June 7, 1996 with proper credit to be given for any and all monies, wages or benefits previously paid to claimant during this time frame.
2. Penalties and interest, if applicable, pursuant to Mississippi Code Annotated, Section 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 as provided in Section 71-3-15 (1972).
IT IS FURTHER ORDERED AND ADJUDGED that the claimant's claim for any permanent benefits be and the same is hereby denied.
SO ORDERED this the 29th day of June, 1999.
VIRGINIA WILSON MOUNGER
ADMINISTRATIVE JUDGE
ATTEST:
Brenda H. Goolsby, Secretary