MELINDA O. GREEN CLAIMANT
vs.
BMA OF MAGEE D/B/A CENTRAL DIALYSIS OF MAGEE
EMPLOYER
AND
CONTINENTAL CASUALTY COMPANY
CARRIER
APPEARING FOR CLAIMANT:
Honorable Daniel D. Ware, Attorney at Law, Magee,
Mississippi
APPEARING FOR DEFENDANTS:
Honorable James E. Higginbotham, Attorney at
Law, Jackson, Mississippi
The Commission heard the above styled cause on February 14, 2000 in the offices of the Mississippi Workers' Compensation Commission in Jackson, Mississippi on "Claimant's Notice of Appeal to 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 October 18, 1999.
SO ORDERED, this the 16th day of February, 2000.
MISSISSIPPI WORKERS' COMPENSATION COMMISSION
BY: Barney Schoby
COMMISSIONERS
ATTEST:
Brenda H. Goolsby, Secretary
___________________________
MWCC NO. 96 03834-G-2434
MELINDA O. GREEN EMPLOYER
vs.
BMA OF MAGEE D/B/A CENTRAL DIALYSIS OF MAGEE
EMPLOYER
AND
CONTINENTAL CASUALTY COMPANY
CARRIER
APPEARING FOR CLAIMANT:
Daniel D. Ware, Esquire, Magee, Mississippi
APPEARING FOR DEFENDANTS:
James E. Higginbotham, Esquire, Jackson, Mississippi
The claimant filed her petition on March 30, 1998,
alleging a work-related injury to her back occurring on March 1, 1996.
The employer and carrier duly answered admitting the claimant's allegation
of injur y. The employer and carrier raised affirmative defenses
of apportionment and intervening injury and reserved the right to add additional
defenses. A hearing of this matter was conducted on July 9, 1999, whereupon
the record was held open pending submission of the medical records of Dr.
Robert McGuire. The record was closed upon submission of Dr. McGuire's
re cords on August 17, 1999.
Prior to opening the record the parties were able to stipulate to the following:
2. That all related medical costs had been paid through the services provided by Dr. Robert McGuire; and
3. That General Exhibits 1-3, as set out on the Exhibit Inventory made a part of the record, were admissible as evidence.
1. The extent of injury, if any, sustained as a result of the incident described by the claimant as occurring on March 1, 1996.
2. The extent of disability, if any, sustained as a result of the incident described by the claimant as occurring on March 1, 1996.
3. The cause of any disability from which the claimant may now suffer.
4. Whether the claimant's pre-existing degenerative disc disease materially contributes to the effects of the episode described as occurring on March 1, 1996.
5. Whether employer and carrier are liable for medical treatment provided to claimant by Dr. Michael Weaver.
6. Penalties and interest.
The claimant is 35 years of age and resides in Magee. She has a high school diploma, two and one-half years of college, and is a certified Registered Medical Assistant. Prior to being employed at Central Dialysis in 1994, the claimant worked as a counter-person and food server at fast food restaurants, was a cashier cook at a Jitney food center, and was a factory worker, twisting small wires for use in lighting fixtures.
Ms. Green worked as a Ward Technician at Central Dialysis. Her duties included assisting patients to dialysis machines, filling "bicarb jugs", and wiping down machines at the end of the day. According to the claimant, the bicarb jugs weighed 25-30 pounds when full, and she was required to shake each container to mix the solution. The number of jugs which the claimant filled, and the number of patients with whom she worked, varied by shift. Several other employees worked with her contemporaneously performing the same tasks.
Ms. Green's Petition To Controvert alleges an acute injury on March 1, 1996, while lifting bicarb jugs. She testified that she began to experience sharp, severe, pain in her back and legs while working with the jugs, and that she reported this to Laura Hudgins. 1 The claimant also testified that she had experienced back pain for approximately five months prior to March 1, 1996, which she attributed to her work..
The claimant testified that March 1, 1996, was a Friday, and that she spent the weekend in bed with severe back and leg pain. The claimant testified that she first sought medical treatment for her symptoms on Monday, March 4, 1996, when she saw Dr. Dennis Adams, 2 whose office is in Mendenhall. She testified that she did not go to a hospital Emergency Room over the weekend because she could not afford it. According to the claimant, Dr. Adams took her off work and referred her to Dr. Pat Barrett, an orthopaedic specialist.
Dr. Barrett's records indicate that he treated the claimant from March 26, 1996, through June 6, 1996. She testified that she explained her symptoms to Dr. Barrett at her initial visit, and she completed a pain drawing at that time describing the location of her pain. The claimant testified that Dr. Barrett examined her, ordered tests, and in May 1996 told her to return to work. She testified in her deposition that she attempted to return to her regular job although she could barely walk, and was only able to work two hours. The claimant testified that she returned to work a second time in May, and agreed that her duties were sedentary, working with files at a desk and lifting less than five pounds; she testified, however, that she was only able to perform this work for four hours, and obtained permission to leave work and return to Dr. Barrett. The claimant testified that Dr. Barrett released her to full duty in June, 1996, and at request, referred her to Dr. Robert McGuire, also an orthopaedic specialist.
Claimant was treated by Dr. McGuire for approximately two years, and she testified that she voluntarily abandoned the treatment of Dr. McGuire after reviewing a transcript of his August 4, 1998, deposition testimony, and requested that Dr. Adams refer her to Dr. Michael Weaver, also an orthopaedic specialist, without prior authorization from her employer's compensation carrier or the Commission. 3 The claimant testified that Dr. McGuire did not release her to return to work, but she conceded that he did tell her to increase her activities.
Ms. Green testified that Dr. Weaver told her she had a bulging disc, and treated her with physical therapy. She conceded that she did not know whether a bulging disc differed from degenerative disc disease. The claimant testified that Dr. Weaver has told her to do whatever her body allows her to do, but conceded that Dr. Weaver has not stated that she is unable to work. She has not seen Dr. Weaver since November 30, 1998.
The claimant testified that she continues to experience head, neck, back and leg pain, but she conceded that no physician has stated that she has a head or neck injury. Her leg pain includes tingling and numbness, and in her discovery deposition she stated that her left leg is growing steadily smaller; she also testified that she brought this to Dr. Weaver's attention, and he told her it was probably due to her "nerve injury". 4
Ms Green testified that no physician, other than Dr. Barrett, has told her to return to work, and she testified that she continues to see Dr. Adams periodically.
The claimant testified that she has not worked since May, 1996. Over objection, she was allowed to testify that she sought employment at a local "unemployment" office, and was told that they would not refer her for work. Ms. Green conceded that she told the "unemployment" representative that he had been injured and was not able to work, and there is no evidence that she has made other attempts to find employment. 5 The claimant describes a sedentary lifestyle, but concedes that she has driven as far as Jackson, buys her own groceries, cooks for her family, and cleans house (claimant stated that she did not vacuum or mop).
Ms. Green testified that she has not attempted to return to work at Central Dialysis since May 1996. She stated that she received a telephone call from Robin Jones at Central Dialysis and was told that she had been released by Dr. Barrett to return to work, and that she had gone to Dr. Adams as soon as Dr. Barrett told her to return to work and had gotten an off-work slip from him. 6
Ms. Eloise Jackson testified on behalf of the claimant. Ms. Jackson is a Registered Nurse, and is also employed at Central Dialysis. Ms. Jackson did not witness an accident on March 1, 1996, but did testify that the claimant exhibited an abnormal demeanor, walking slowly and stiffly, as though she had a catch in her back, for at least three day s prior to lea ving Central Dialysis on March 1, 1996. Ms. Jackson stated that she was asked by the claimant to look at her back and she noted that claimant had a knot on her back. 7
Dr. Barrett's records disclose that he first saw the claimant on March 26, 1996, with a complaint of pain throughout her back and her entire right leg (pain drawing). 8 On her pain drawing Ms. Green indicated her severe pain began "when I was mopping." During Dr. Barrett's initial examination, he noted the majority of the claimant's symptoms to be in the upper lumbar and thoracic area, and diagnosed thoracic pain with possible disc damage. On April 4, 1996, Dr. Barrett interpreted a thoracic MRI as normal, and stated that claimant probably had a thoracic strain. On April 22, 1996, Dr. Barrett released her to light work with no lifting, and only two hours of standing. On June 6, 1996, Dr. Barrett recorded that the claimant did not try to return to light work, and that she requested a referral to Dr. McGuire. Dr. Barrett stated that she should be able to handle light duty and released her to full duty.
Dr. McGuire, an orthopaedic specialist, testified by deposition (General Exhibit No. 1). Dr. McGuire first saw the claimant on September 23, 1996, when he recorded a history of a gradual onset of back pain on March 1, 1996, after moving bicarb jugs, without specific incident. Dr. McGuire's examination on that date disclosed no muscle spasm, no instability, and a normal neurological examination. Dr. McGuire testified that he reviewed the claimant's thoracic and lumbar MRI studies and found mild desiccation at L5-S1 consistent with age; Dr. McGuire then diagnosed mild degenerative disc disease which, in his opinion, existed prior to March 1, 1996. Dr. McGuire further testified that the March 1, 1996, incident described by the claimant in her testimony did not cause injury to her spine. McGuire testified that he saw the claimant on November 25, 1996, after she had been through physical therapy, and that she was "doing well" at that time. Dr. McGuire testified that her physical examination on November 25, 1996, was normal, and that he told the claimant she could return to light duty work and assigned her a five percent (5%) permanent medical impairment due to degenerative changes. Dr. McGuire testified that her medical impairment was not caused by the March 1, 1996, incident to which she testified , but was related solely to her preexisting degenerative disc disease; according to Dr. McGuire, she would have a five percent (5%) permanent medical impairment because of her degenerative disease without a March 1, 1996, event.
Dr. McGuire next saw the claimant on March 28, 1997, when he recorded that she had returned to work and had experienced severe leg pain. During this evaluation, Dr. McGuire noted a positive straight leg raise on the left, decreased SI sensory distribution, and deceased sensation on the left side. Dr. McGuire stated that these were new findings representing a change in her condition, and he ordered an MRI, which he stated did not disclose a disc herniation. Dr. McGuire testified that the changes demonstrated on March 28, 1997, were attributable to the natural waxing and waning of her degenerative disc disease; he stated that the claimant's new symptoms, and his diagnosis, on that date, were unrelated to the March 1, 1996, incident to which she testified.
Dr. McGuire testified that he ordered a discogram due to the claimant's persistent complaints. The discogram, which was performed in June, 1998, was interpreted by Dr. McGuire as showing a desiccated disc at L5-S1 with a large right sided annular tear and minimal diffuse disc bulge. Dr. McGuire testified that neither the annular tear nor possible disc herniation reported by the radiologist were related to the March 1, 1996, incident to which the claimant testified. Dr. McGuire explained that the "annular tear" represented a bulge or weakness in the fibrous tissue surrounding the disc which had no relevance to her March 1, 1996, complaints. Dr. McGuire also testified that the claimant had no evidence of nerve r oot impingement, and concluded that her pain could be chemical irritation rather than mechanical pain. Dr. McGuire testified that fusion surgery had a fifty to seventy percent (50-70%) chance of relieving the claimant's pain, and that he offered her surgery if she desired, but that the prolonged recovery period and marginal chances of improving the symptoms woul d probably lead him to reject the surgery for himself. Dr. McGuire also noted that the condition often improved without surgery. Dr. McGuire concluded that any symptom precipitated by an event on March 1, 1996, was temporary and had resolved without injuring the claimant's lumbar spine and without causing impairment.
The records of Dr. McGuire were also received into evidence, 9 and corroborate Dr. McGuire's sworn deposition testimony concerning the nature of the claimant's problem and recommended treatment. A pain drawing completed by Ms. Green on September 23, 1996, discloses symptoms which differ from those depicted in her March 26, 1996, pain drawing for Dr. Barrett; according to this document, the "precipitating event" on March 1, 1996, occurred while picking up bottles of fluid but without specific incident. A September 23, 1996, office note confirms Dr. McGuire's diagnosis of mild degenerative disc disease and affirms Dr. Barrett's recommendation that the claimant was fit for light duty work. On November 25, 1996, Dr. McGuire stated that she had a five percent (5%) permanent medical impairment, which he explained in this deposition testimony was caused by her degenerative disc disease and not her March 1, 1996 event. On March 28, 1997, Dr. McGuire noted changes in the claimant's complaints and physical examination, which he explained in detail in his sworn deposition testimony were new symptoms unrelated to the March 1, 1996, incident to which she testified. Dr. McGuire's March 31, 1997, note confirms his deposition testimony that a new MRI study disclosed no findings to account for the claimant's symptoms, and he wrote her on April 2, 1997, stating that the MRI showed only degenerative changes. On July 31, 1997, Dr. McGuire again wrote the claimant, advising her that there was no evidence of acute injury as the result of a work related accident, and that her diagnostic findings demonstrated only normal degeneration of the spi ne. On September 29, 1997, Dr. McGuire reiterated to her that her problem was degenerative, and stated that "by history" her problem was related to picking up material at work since her pain complaints had been "fairly consistent since that time." 10 Dr. McGuire's June 19, 1998, note confirms his testimony that fusion surgery held a fifty percent chance of improving the claimant's condition, and Dr. McGuire conveyed his recommendations to her in a letter dated June 19, 1998, in which he offered her surgery should she wish to go forward with the procedure. 11
The records of Dr. Michael Weaver were received
into evidence on behalf of the claimant. 12 Dr.
Weaver first saw Ms. Green on October 28, 1998, with a history that she
"hurt her back at work two years ago, was lifting some kind of bicarbonate
jugs weighing 25-30 pounds..." Claimant told Dr. Weaver that her treating
physicians were Dr. Adams and Dr. McPherson (who performed her discogram
study at the request of Dr. McGuire), and apparently did not disclose to
Dr. Weaver that she had been treated by Dr. McGuire for the preceding two
years. Dr. Weaver's examination on that date was normal, and he recommended
another MRI study. Dr. Weaver's November 11, 1998, office note recites
that the claimant's MRI showed only degenerative disc disease at L5-S1,
without stenosis, nerve root encroachment, or herniation. Dr. Weaver concluded
that she had a seven-to-eight percent (7-8%) "partial disability", but
added that he did not see anything which would make her
permanently disabled. Dr. Weaver stated that
he would not recommend surgery.
Dr. Weaver last saw the claimant on November 30,
1998, when she told him she required "something stating specifically (sic)
work-related injury In response, Dr. Weaver wrote that, based upon her
history of an episode two years earlier lifting 25-30 pound jugs "... her
back pain does seem to be related to that episode..." 13
Dr. Weaver noted that the claimant's examination on that date
was negative and that she was doing "quite well."
After consideration of the relevant evidence and applicable law, the Administrative Judge finds and concludes as follows:
1. The claimant probably sustained episodic back pain while at work on March 1, 1996. The employer and carrier have offered no evidence to contradict the claimant's report of back pain as described by Nurse Hudgins in her injury report. Ms. Green has variously described her onset of pain as occurring while lifting jugs, walking down the hall, and mopping, which seems to be consistent with her history to Dr. McGuire that the onset of back pain on March 1, 1996, was gradual and without specific incident. Nurse Jackson's testimony, however, as well as the claimant's own admission of back pain for six months, clearly indicate that the claimant's degenerative disc disease was producing limiting symptoms long before March 1, 1996.
2. Although Dr. Barrett released the claimant to full duty on June 6, 1996, and Dr. McGuire stated as early as September 23, 1996, that she was able to return to light duty work, the claimant was probably temporarily totally disabled as a result of the back pain which she suffered on March 1, 1996, for a period commencing on that date and ending not later than November 25, 1996, the date that Dr. McGuire noted that she was doing well, and assigned her a permanent medical impairment. On the claimant's next visit to Dr. McGuire, March 28, 1997, she complained of other symptoms brought on by unrelated activities. Dr. Weaver's records do not dispute that the claimant was already at maximum medical improvement when he first examined her on October 28, 1998.
3. The claimant reached maximum medical improvement from the effects of her March 1, 1996, activities on November 25, 1996, without permanent medical impairment. According to Dr. McGuire, any condition developing on March 1, 1996, was temporary in nature, and completely resolved without permanent impairment or limitation. The deposition testimony of Dr. McGuire with regard to the nature and cause of the claimant's symptoms, which was based upon a history of longstanding back complaints, is more probative than his written records, which contain no indication of the claimant's pre-existing back complaints. Dr. Weaver did not testify live or by deposition, and the value of his opinion must be judged in light of his understanding of the facts as reflected in his records, namely, a sudden onset of back pain on March 1, 1996, without previous back pain. Dr. Weaver's November 30, 1998, opinion that the claimant's condition is related to the March 1, 199 6, incident described to him by the claimant, is therefore predicated on incorrect and incomplete information, and is not considered probative.
4. The claimant has a five percent (5%) permanent partial impairment which is related solely to her pre-existing degenerative disc disease. It is uncontradicted that the claimant was suffering from pre-existing degenerative disc disease, and Dr. McGuire expressly stated that she would have a five percent (5%) rating regardless of the events of March 1, 1996.
5. The claimant has not demonstrated that she has a loss of wage earning capacity within the meaning and intent of the Act, regardless of the cause of the five percent (5%) impairment assigned by Dr. McGuire. The claimant refused to return to work within her limitations notwithstanding the opinion of Dr. Barrett and Dr. McGuire that she could return to these duties. The claimant has never returned to Central Dialysis for work, and she has not demonstrated a reasonable effort to find other employment. The only evidence she offered on this issue is that she went to a local "unemployment" office, reported that she had been hurt and could not work, and asked if there was any work available within that restriction. It is no small wonder that claimant was then able to testify that the "unemployment" office employee responded that there was no work she could perform. A claimant seeking permanent disability benefits for a non-scheduled injury must make reasonable efforts to find work after reaching maximum medical recovery in order to prove a loss of wage-earning capacity. See Coulter v. Harvey , 190 So. 2d 894, 897 (Miss. 1966) (claimant nearly 70 years old denied benefits on failure to seek employment); Compere's Nursing Home v. Biddy , 243 So . 2d 413, 414 (Miss. 1971); Thompson v. Wells-Lamont Corp. , 362 So. 2d 638, 640-41 (Miss. 1978); Sardis Luggage Co. v. Wilson , 374 So. 2d 826, 828-29 (Miss. 1979); Pontotoc Wire Products Co. v. Ferguson , 384 So. 2d 601,603-4 (Miss. 1980); Georgia Pacific Corp, v. Taplin , 586 So. 2d 823, 828 (Miss. 1991); Jordan v. Hercules. Inc., 600 So. 2d 179, 183 (Miss. 1992); Barnes v. Jones Lumber Co., 637 S o. 2d 867,869-70 (Miss. 1994); Hale v. Ruleville Health Care Center , 687 So.2d 1221, 1226-27 (Miss. 1997). This rule is grounded in the Compensation Act's definition of disability as "incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or other employment ..." Miss. Code Ann. Section 71-3-3 (I) (Supp. 1998).
6. Dr. Michael Weaver was not a physician authorized to treat claimant within the meaning and intent of Miss. Code Ann., § 71-3-15, and the employer and carrier are not liable for expenses incurred as a result of treatment by or at the instance of Dr. Weaver. Claimant's choice of physician was Dr. Adams. Dr. Adams referred claimant to Dr. Barrett, an orthopaedic specialist. At claimant's request, Dr. Barrett referred her to Dr. McGuire, also an orthopaedic specialist. The carrier authorized Dr. McGuire to treat claimant. Claimant became unhappy with Dr. McGuire, obviously because of his deposition testimony that her complaints were not related to the March 1, 1996, incident which she has described, and sought treatment by Dr. Weaver. Miss. Code Ann., § 71-3-15 provides that treatment by a physician within the same sub-specialty must be authorized by the carrier or the Commission, but claimant sought treatment from Dr. Weaver without such authorization. Therefore, the employer and carrier are liable only for treatment by and at the instance of Dr. Adams, Dr. Barrett, and Dr. McGuire, through November 25, 1996.
7. Claimant's average weekly wage on March 1,
1996 was $244.55.
1. Pay temporary total disability benefits in the amount of $163.31 per week for the period commencing March 2, 1996, and ending November 25, 1996, giving credit for any such ben efits which have been previous paid.
2. P ay for all medical services and supplies necessary to claimant's treatment for this accident which wa s provided by and at the instance of Dr. Dennis Adams, Dr. Patrick Barrett, and Dr. Robert McGuire, through November 25, 1997.
IT IS FURTHER ORDERED AND ADJUDGED that the employer and carrier are not liable for any medical treatment rendered to claimant after November 25, 1996, including, but not limited to treatment by and at the instance of Dr. Dennis Adams and Dr. Michael Weaver.
SO ORDERED this the 18th day of October, 1999.
JAMES HOMER BEST
ADMINISTRATIVE JUDGE
ATTEST:
Brenda H. Goolsby, Secretary
___________________________
1. A written statement completed by Nurse Hudgins was introduced as Exhibit No. 3. Employer and carrier have conceded that they have no evidence to contradict the allegations set forth in Nurse Hudgins report, and contest only the cause of the symptoms and extent of injury, if any, sustained on March 1, 1996.
2. Dr. Adams' records were not submitted into evidence by either party.
3. Claimant's testimony regarding her reason for discontinuing treatment with Dr. McGuire is confusing. Claimant testified that Dr. McGuire recommended surgery prior to his deposition, but "changed his mind" concerning surgery in deposition testimony. Dr. McGuire's deposition testimony does not corroborate this assertion by claimant. Claimant has also testified that, in her opinion, Dr. McGuire's opinion changed in his deposition concerning the cause of her problems by stating in his deposition that claimant had degenerative disc disease, and claimant decided to find a doctor whom she would pay.
4. Dr. Weaver's records do not reflect a complaint of left leg atrophy, and do not show a diagnosis of "nerve injury." To the contrary, Dr. Weaver's neurological examinations were normal.
5. Claimant testified in her discovery deposition that she had "never tried to work elsewhere" since leaving Central Dialysis, but at hearing, claimant testified that she understood this to mean that she had not actually worked since leaving Central Dialysis. However, claimant also admitted her sworn response on April 19, 1999, was "No" to Employer and Carrier's Interrogatory No. 5, which asked: "Have you tried to get a job or work subsequent to the alleged injury in this case?
6. The timing of this telephone conversation is uncertain. Claimant testified at one point that it was three-four months after Dr. Barrett released her in June, 1996; however she also testified that the call took place before she began seeing Dr. McGuire (which was in September 1996), and that it may only have been a month after Dr. Barrett discharged her.
7. Dr. McGuire noted a presence of a "fullness suggestive of lipoma" during his September 23, 1996, examination. Dorland's Illustrated Medical Dictionary, 27th Edition, defines a lipoma as "a benign tumor usually composed of fatty cells." No physician has stated that this is related to claimant's employment.
8. Dr. McGuire termed claimant's complaint of total right leg pain did not follow a known dermatonal pattern, and was "non-anatomical."
9. These records were introduced over the objection of the employer and carrier. Claimant's assertion that Dr. McGuire's written records contradict his sworn testimony requires that these records be introduced, and any prejudice to employer and carrier by claimant's failure to comply with Commission procedural rules governing the introduction of medical records is outweighed by the duty of the Commission to fully develop the evidence.
10. The apparent contradiction between Dr. McGuire's July 31, 1997, letter and September 29, 1997, report, is explored in Dr. McGuire's deposition testimony. Dr. McGuire explained that claimant's condition was consistent with her history of longstanding back pain prior to March 1, 1996 (which had not been disclosed to Dr. McGuire prior to his deposition); and that the March 1, 1996, event was, at most, merely part of the waxing and waning nature of claimant's pre-existing degenerative disc disease, which produced no permanent injury to claimant.
11. This contradicts claimant's testimony, both at hearing and by deposition, that Dr. McGuire recommended surgery, but "changed his mind" in his deposition testimony.
12. The records were admitted over the objection of the employer and carrier that claimant had failed to comply with Commission procedural rules governing introduction of medical records, and on due process grounds.
13. Claimant testified that she told Dr. Weaver that she had experienced prolonged back pain prior to March 1, 1996, but his records do not record any knowledge that claimant had a history of back pain prior to March 1, 1996, and his causation opinion on November 30, 1998, is expressly predicated only on a history of an incident on March 1, 1996. Once again, Dr. Weaver did not testify by deposition or at hearing to explain his opinion, which must be evaluated solely on the basis his notes, showing no history of pre-existing problems.