MWCC NO. 96-08648-G-3046

VIRGINIA STEELE                                                                                                                               CLAIMANT

vs.

CONFISH, INC.                                                                                                                                     EMPLOYER
(SELF-INSURED)

REPRESENTING CLAIMANT:
Michael H. Steele, Esquire, Kosciusko, MS

REPRESENTING EMPLOYER:
G. Davis Peterson, Esquire, Jackson, MS
 

This matter was heard by the Commission on May 1, 2000 pursuant to the Employer's Petition for Review of Decision of Administrative Judge. The Order of Administrative Judge to which this Petition is directed was issued January 11, 2000 and therein Ms. Steele was awarded temporary total disability benefits in addition to reasonable and necessary medical treatment, but was denied permanent disability benefits. The Employer argues that the award of benefits for temporary total disability was excessive, and that it should not be ordered to pay for the treatment rendered by Dr. Guy T. Vise, Jr.
 

Taking the second issue first, the Employer contends that Ms. Steele had already accepted the medical services offered by her employer before seeking treatment from Dr. Vise, and that, consequently, she thereby made her one choice of physician under Miss. Code Ann. §71-3-15(1) (Rev. 1995). According to the Employer, the Claimant's decision to seek treatment from Dr.
Vise was an additional choice of physician not permitted by §71-3-15(1).

According to the evidence, Ms. Steele was seen first for her hand and arm problems by Dr. Rizwan on May 23, 1996. He soon referred her to Dr. Tilton, who in turn referred her to Dr. Vohra, who in turn referred Ms. Steele to Dr. Geissler. Dr. Tilton deemed her to be at maximum medical improvement and capable of returning to work without restrictions as of July 17, 1996. Thereafter, it appears that Ms. Steele continued working for the Employer during the course of her periodic treatment, except for a period of several months during 1997 when Ms. Steele was absent from work for reasons unrelated to her injury.

Sometime in 1998 Ms. Steele sought additional treatment from her family physician, Dr. Ronnie Meyers. According to Ms. Steele, it was Dr. Meyers who referred her to Dr. Vise, and she was taken off work by Dr. Vise from July 1, 1998 until August 5, 1998 with a diagnosis of chronic repetitive motion disorder syndrome.

Ms. Steele testified without contradiction that she sought treatment from her family physician, Dr. Meyers, but that her employer "denied me the right to my family doctor." This, apparently, was the first time that Ms. Steele attempted to exercise her right to choose a doctor as allowed by Miss. Code Ann. §71-3-15(1) (Rev. 1995). Notes from Dr. Tilton refer to Dr. Rizwan, the first physician Ms. Steele saw, as "the Company Doctor." And, of course, all subsequent treatment, with the exception of Drs. Meyers and Vise, followed a line of referral originating with Dr. Rizwan. The Employer, in arguing against the findings by the Administrative Judge, more or less concedes that all treatment for Ms. Steele prior to Dr. Vise consisted of "medical services offered her by her employer."

Concerning the Employer's objection to paying for the treatment rendered by Dr. Vise, the Administrative Judge found it was not unreasonable for Ms. Steele to have sought treatment from "her own specialist" given the continuation of pain and discomfort she experienced even after being treated by other physicians previously. The Judge thus obligated the Employer to pay for this treatment.

We agree with the Judge that the Employer is liable under the Law to pay for the services rendered by Dr. Vise because the only conclusion we can draw from the record is that Ms. Steele's selection of Dr. Ronnie Meyers to render treatment constituted her first and only choice of physician in accordance with §71-3-15(1) of the Law. Consequently, Dr. Meyers' referral of Ms. Steele to Dr. Vise for further treatment was an acceptable referral by the chosen physician to a specialist and the Employer's liability for this treatment arises clearly from the terms of the applicable statute.

There is absolutely no credible evidence to prove that Ms. Steele had previously accepted the medical services offered by the Employer as her own selection. The Law states that ja] physician to whom the employee is referred by [her] employer shall not constitute the employee's selection, unless the employee, in writing, accepts the employer's referral as [her] own selection. " Miss. Code Ann. §71-3-15(1) (Rev. 1995). There is no proof of any such written acceptance by Ms. Steele. Furthermore, her own uncontradicted testimony that she was denied the right to seek treatment from her chosen family doctor belles the Employer's claim that Ms. Steele accepted the Employer's tender of treatment as her own selection.
 

Turning now to the Employer's claim that the Judge's award of temporary total disability benefits from May 23, 1996 through August 5, 1998 is excessive, we agree, notwithstanding the Judge's allowance of credit against this award "for any and all monies, wages or benefits previously paid to the claimant during this time frame."¹ The best the evidence shows is that Ms. Steele was temporarily and totally disabled as a result of her injury from May 23, 1996 through July 17, 1996, and again from July 1, 1998 through August 5, 1998.

We therefore amend the Order of Administrative Judge dated January It, 2000 to provide that the Employer shall pay temporary total disability benefits to Ms. Steele for the period May 23, 1996 through July 17, 1996, and for the period July 1, 1998 through August 5, 1998. The Employer may take credit for any temporary disability benefits previously paid. In all other respects, the Order of Administrative Judge is affirmed.

SO ORDERED this the 26th day of May, 2000.

MISSISSIPPI WORKERS' COMPENSATION COMMISSION
Barney Schoby
Beverly Bolton

ATTEST:
Brenda H. Goolsby, Secretary
___________________________
 

MWCC NO. 96 08648-G-3046

VIRGINIA STEELE                                                                                                                             CLAIMANT

vs.

CONFISH, INC.                                                                                                                                   EMPLOYER
AND
SELF-INSURED

APPEARING FOR CLAIMANT:
Honorable Michael H. Steele, Attorney at Law, Kosciusko, Mississippi

APPEARING FOR SELF-INSURED EMPLOYER:
Honorable G. Davis Peterson, Attorney at Law, Jackson, Mississippi
 

A hearing was held on September 22, 1999 at approximately 1:30 p.m. at the LeFlore County Courthouse located in Greenwood, Mississippi. This cause concerns an admitted injury suffered by the claimant while in the employ of the instant employer. After a period of time the record was finally closed and this opinion rendered.

Stipulations entered into by the parties are as follows:

1. The average weekly wage of the claimant was determined to be $221.33 per week;

2. It is noted and stipulated that $1,843.82 has been tendered to the claimant in the form of temporary total disability payments, and, further, that certain medical benefits have been tendered to the claimant and satisfied with the exception of the medical benefits and services of Dr. Guy T. Vise, Jr.

Evidence was entered into this cause as follows:. Claimant Exhibit 1, Deposition of Dr. Rahul Vohra; Claimant Exhibit 2, Medic-al Records of Dr. William 13, Geissler; Claimant Exhibit 3, Medical Records of Dr. Rizwan; Claimant Exhibit 4, Medical Records Affidavit, unsigned, of Dr. Frank M. Tilton; Claimant Exhibit 5, Medical Records Affidavit of Dr. Guy T. Vise, Jr.; General Exhibit 6, Wage and Employment Information.
 

The existence, nature and extent of disability attributable to the injury, inclusive of the date of maximum medical improvement, if attained, and, further, the liability or no of the employer-carrier, self-insured, for medical treatment rendered to the claimant more specifically described as the treatment of Dr. Guy T. Vise, Jr.
 

The claimant testified on the occasion of this hearing that she was born on May 16, 1965. She worked as a fillet sizer for the instant employer, starting in 1995, and testified to a date of injury of May 23, 1996. The claimant obtained a tenth grade formal education and did not achieve a GED subsequent thereto. As the services of Dr. Vise are under scrutiny, she was asked to explain why she went to see Dr. Vise. She testified that Dr. Vise was her personal choice and had also been recommended by her family physician. It is noted for the record the name of such family physician is unknown and no records from him were entered in support of this cause. Since August, 1998, when she indicates Dr. Vise released her, she went back to her same job of fillet sizer. She still does this job and works for the same company. She also performs the duties of a packer. As to her present condition, she noted pain and swelling, particularly on the right, and some tenderness. The claimant related that when sizing she still wears a splint on the right arm. On cross-examination, she indicated that she had suffered from right carpal tunnel syndrome when working for South Fresh Farms and had surgery performed for the resolution of this injury. This resulted in a Mississippi Workers' Compensation Commission case that was settled for $6,000.00 in January of 1992. Between the years-of 1992 and 1995 the claimant worked as a cashier for the Chevron Convenience Store located nearby in Belzoni, Mississippi,. She noted that she saw Dr. Daniel Dare in 1991 who advised her not to go back to any repetitive work activities. March of 1999 was the last time she saw Dr. Rahul Vohra. From 1997 to 1998 she saw Dr. Geisler "maybe" only one time. In July of 1998 the claimant went to see Dr. Vise after four other doctors had treated her and she saw Dr. Vise approximately three times. Since her injury of May 23, 1996 she has had no surgery and none is recommended. The claimant testified in conclusion that she has no return appointments scheduled in this cause.

Dr. Rahul Vohra testified by deposition in this cause. It is noted that Dr. Vohra is a physiatrist located in Jackson, Mississippi. He noted that he first saw Virginia Steele on September 17, 1996. At that time he had had the opportunity to review medical records that would reflect on her history prior thereto. He indicated he reviewed the records of Dr. Frank Tilton and x-ray reports done at Delta Regional Medical Center. He noted that Dr. Tilton had referred her on to him. Dr. Vohra testified that her pertinent history reflected a history of hand numbness on the right which had dated back several years to 1991. She had a right carpal tunnel release and had good results from that. However, in May of 1996 she stated she began having hand pain in both hands as well as elbow pain and some swelling in her hand. She saw Dr. Tilton who had EMG nerve conduction studies done which were normal. She also had injections in her right wrist. He reviewed the nerve conduction studies performed by Dr. Tilton and noted that those were deemed to be normal. Dr. Vohra examined her on that date and noted that her cervical examination was normal and she had good range of motion. Since she had complaints of tenderness across both wrists and tenderness in the wrist flexor musculature, he examined same and her wrist examination did not reveal any swelling. Neurologically she was felt to be intact except for some-decreased sensation in one of the fingers on the right. His early impression of this patient was that she had complaints of upper extremity pain, arm pain, more on the right than the left, the etiology of which he was unclear. He "really did not know what was going on with her" as far as what was causing her symptoms. Therefore, based upon a reasonable degree of medical probability, he did not know at that time what was causing her pain and whether or not it was causally related to her employment. He attempted to rule out any type of rheumatic process and an arthritis profile done noted a bit of abnormality in that her rheumatoid factor was minimally elevated. He next saw her on November 6, 1996. Her examination was unchanged, but she was complaining of more pain on the right than she had previously. A bone scan was performed which was normal. Therefore, his impression on that date was that she had an essentially negative work-up and he wanted to go ahead and do an MRI of her neck to make sure that some of the arm symptoms were not coming from the neck. This was performed on 12-4-96 and was revealed to be normal. Dr. Vohra also ordered and had performed x-rays of the right wrist at the same time. These were deemed to be normal as well. Therefore, the work-up that he had provided for her wrist and the cervical. area were "basically all normal" up to this point. On December 5th of the same year he saw the claimant again and there was no real change. His records state that he did not have a clear explanation for her symptomology and still did not feel comfortable in giving a definitive diagnosis or causal connection at that point. In between the time of September 17, 1996 when he initially saw her, through December 5th, he had not taken Ms. Steele off work. He next saw her in March of 1997. On that date she had complaints of diffused tenderness along the forearms, otherwise the examination remained unchanged and overall the picture was the same. He noted that he had sent her to Dr. Geissler for a second opinion. It was his understanding that Dr. Geissler felt that her complaints of swelling and pain were due to her elevated rheumatoid factor and as this may have been the cause of her complaints of swelling and pain such an elevated rheumatoid factor, secondary to repetitive motion, would indicate that the rheumatoid factor is not caused by repetitive motion work. However, it was unclear to him whether a mildly elevated rheumatoid factor was in fact diagnostic of rheumatoid arthritis and whether she actually did have an intrinsic rheumatoid problem or just a spurious lab finding. It was his opinion to the applicable standard that this was not causally related to the work that she was performing. He saw her again in May of 1997 and she related to him at that time that she felt her hands were getting worse. She stated that she had been working "on and off". He reviewed her lab tests results again and there was really nothing to indicate a significant role in her symptoms. However, he felt it would probably be wise to repeat her EMG and nerve conduction studies. He noted that as of May 20, 1997 he had an opinion based upon a reasonable degree of medical probability of a proper diagnosis for Ms. Steele which would be hand pain of unclear etiology. Ergo, if he did not have a diagnosis he could not link causation. The repeat EMG studies were performed in November of 1998 and were revealed to be normal. On November 11, 1998 her physical examination was the same. She stated to him on that date that she had gone back to work in August of 1998. He testified that as of the latter date he recommended to her that she see a rheumatologist to try to rule out rheumatoid arthritis because clearly if she does have that it is something that needs to be treated aggressively. He felt that was a possibility but other than that, he had no real recommendations and he had nothing else to offer her. She noted to him that she had been seeing her local physician and also more recently had seen Dr. Vise. Dr. Vise testified that throughout his entire treatment of her, which began in September, 1996, he did not take her off work according to his records, and he did not feel Ms. Steele should have any type of restrictions on her work for the condition that he had been seeing her for. Further, he did not assess any permanent impairment pursuant to his evaluations and diagnostic studies of Ms. Steele's condition. There were no follow up appointments scheduled. He noted for clarification that he did refer her over to the University Medical Center to see Dr. Geissler. On cross-examination with reference to the chronic repetitive motion disorder syndrome that Dr. Vise had assessed in the claimant, such is a recognized orthopedic diagnosis, but it is also a controversial one.  He reiterated that as a physician, the only way he has to know what is causing someone's symptoms is their history, "if they tell me that's what started the problem that's what would be determinable". He also noted that the old carpal tunnel surgery, which she had in 1991, and that she had gone to work after that doing repetitive work, he did not feel that to be a factor in her present complaints. He further reiterated that the rheumatoid arthritis diagnosis needed to be procured. Ms. Steele underwent two separate EMGs, one in 1996 and secondly in November, 1998, and both of these were within normal limits and testified Dr. Vise's diagnosis in 1998 of chronic repetitive disorder syndrome and a restriction of no lifting more than 15 pounds was prior to when he saw Ms. Steele in November, 1998 by approximately two to three months after the fact, and therefore, based upon Dr. Vise's evaluation and then him seeing her in November, 1998 and also performing an EMG which was in the normal limits, he would disagree with Dr. Vise's diagnosis and his 15 pound lifting restriction and opined that the diagnosis of repetitive strain disorder is primarily subjective as there is no objective testing for it.

The Medical Records Affidavit of Dr. William B. Geissler, an orthopedic surgeon associated with University Orthopedic Associates was entered into this cause. He noted on January 22nd, 1997 that Ms. Steele was referred by Dr. Vohra for an evaluation regarding her bilateral finger swelling. He recorded that she worked at Country Skillet where. she sizes fish fillets and related that her fingers had been swelling over the past five weeks and that the left ring fingertip goes numb and swell, and she has some numbness in the right palm. Dr. Geissler did not detect on physical examination on that date any. swelling in either hand. He noted after his physical examination and a study of the radiographs, x-rays, AP lateral and oblique of the hand, showed no abnormalities. He did not see any objective finding but would like to get her medical records from Dr. Vohra, who had been evaluating her as he did not want to duplicate any of the work-up. He would recommend EMG nerve conduction studies if they had not been done, "he had assumed they had been", and he would like to see those. If those were normal and a rheumatoid screen is normal, there would be nothing else to offer her. Dr. Geissler did not think she would require any surgery. On 1-24-97 as an addendum, he noted that he had received the medical records from Dr. Vohra who had done quite a thorough work-up on Ms. Steele. A review of his notes relate she has had a negative bone scan and EMGs and cervical MRI. This is an extensive work-up for her complaints. However, her lab studies do show a positive rheumatoid factor of 22.9. Rheumatoid arthritis could be an explanation for her vague complaints of swelling during exertion and continued hand pain with intermittent numbness. She needs either referral back to Dr. Vohra for further work-up of her rheumotoid or referral to a rheumatologist. She had a normal physical exam to her hands today and he could not see any indication for surgery. With normal EMGs, one would not consider any type of nerve release. However, the positive rheumatoid factor needed to be further discussed. Dr. Geissler indicated in a letter dated March 4, 1997 that Ms. Steele did have a positive rheumatoid factor. Clinically, however, he saw no pathology that required any operative management. Because of her elevated rheumatoid factor he felt she may "indeed" have rheumatoid arthritis which would be the etiology of her swollen hands and painful joints. Because of this she was referred to a rheumatologist. He concurred with Dr. Vohra's findings. He indicates in his office note of January 26, 1998, an update on her present illness, that she came in regarding her right hand which she related swelled and continues to have numbness to her fingers. He noted that when they had seen her approximately a year ago the lab test showed a positive rheumatoid factor and he still wonders if that could be a potential etiology for her physical finding. In his plan for treatment, he revealed although she had previously had quite a thorough work-up from Dr. Vohra with normal EMGs and cervical MRI, she related she had seen yet another physician who recommended a repeat EMG. He noted he would be in agreement with that and potentially they would see if Dr. Vohra would feel it appropriate to repeat the EMG and nerve conduction test. The carpal tunnel can make you feel like your fingers swell. Also, he would repeat a rheumatoid factor and see if that was positive. If positive, he felt potentially a referral to a rheumatologist would be appropriate protocol as well.

The Medical Records of Dr. Rizwan associated with the Community Health Clinic in Isola, Mississippi, outlined the follow-up notes and plan for treatment for the claimant for her carpal tunnel problems on the right in 1996 and included the progress notes relative to the claimant's care for that injury from this Center and appear to include as a final entry the patient should be referred to a rheumatologist for expert opinion. These notes are difficult to discern in the present form but appear to be in line with her testimony and other medical references made at the hearing by lay and/or medical testimony.

The Medical Records Affidavit of Dr. Frank M. Tilton, unsigned, were entered and accepted into this cause. Dr. Tilton's records reflect testing done in the neurology lab of the Delta Regional Medical Center located in Greenville, Mississippi, which indicated that the EMG of the right upper extremity was normal and the nerve conduction times of the left upper extremity also reported to be normal. On both the upper and right extremities, he saw no motor or sensory delay at the median nerve at the wrist or the ulnar nerve at the wrist. These notes reflect the treatment that she received shortly after the discerning of problems and a diagnosis by Dr. Tilton of tennis elbow and tendonitis. He indicated that she had reached maximum medical benefit at some point in July, specifically July 17, 1996 with no restrictions, but a return visit date. Also, on 7-1-96 there were radiographic tests of the right wrist and right elbow and both appeared normal in appearance. Records also reflected the 1991 carpal tunnel syndrome, on the right, surgery that she had had and the appearances of the right extremity were unchanged from that time and revealed she would have no restrictions and could return to work in July, 1996. (The above notes were the result of her seeing Dr. Frank Tilton at the request of Dr. Rizwan.)

The Medical Records affidavit of Dr. Guy T. Vise, Jr., an orthopedic surgeon located in Jackson, Mississippi, were entered into this cause. Dr. Vise notes a visit by the claimant on March 18, 1999 with a chief complaint of right hand pain. He noticed that she had splints she was wearing at work for repetitive motion disorder. She also had right carpal tunnel surgery by Dr. Tanksley several years ago. The right wrist continues to bother her at work.. His examination showed a full range of motion in the wrist, no swelling compared to the opposite side, but she was tender over her flexor tendons at the wrist. His diagnosis was continued wrist flexor tendonitis. Dr. Vise noted that she had an appointment to see a rheumatologist and he prescribed medication and cream to rub to the wrist three to four times a day at that point. He saw her previously on August 5, 1998 and noted she was continuing to hurt in the hand and had been off work. He noted she was depressed. Further, since she had migratory pain that also involved her elbow and since she seems very tired and somewhat lethargic, he necessitated laboratory tests to rule out rheumatoid and other problems. As an addendum, he noted a problem with her knee, unrelated, and considered to be the result of a car wreck sometime ago. She was released to return to work with restrictions of 1) no lifting over 15 pounds; 2) wearing a wrist splint at work. It is noted that prior thereto on 7-1-98 Dr. Vise had noted the patient presents today with chief complaint of pain in both hands with numbness and noted an onset of 1996, greater than two years. The patient had previous surgery for right hand carpal tunnel release in 1991 and the surgery relieved the pain for five years. She does a lot of repetitive motion with her work and her fingers swell. He testified she had been employed with ConAgra since 1995 as a fillet sizer. His diagnosis was chronic repetitive motion disorder syndrome, status post carpal tunnel. He also noticed on that date that she would be off work for the next month and was returned to the clinic in one month as reflected by his notes and ultimate release in August of the same year. In a letter dated June 2, 1999, Dr. Vise opined to the claimant's attorney that there was no partial permanent impairment for her continued wrist flexor teno-tendonitis. Dr. Vise noted that she had previously had carpal tunnel surgery done by Dr. Tanksley and there may or may not be an impairment rating that he gave relative to this pre-existing carpal tunnel.

1 . The claimant was temporarily and totally disabled as a result of this admittedly work-related injury from the date of onset, namely, May 23, 1996 through the date of August 5, 1998, the date as opined by Dr. Guy T. Vise, Jr. as the date for the resolution of her injuries coincidental with his release for claimant to return to work.

2. No permanency of impairment or benefits for permanency of impairment were requested in this cause and none is found. However, it is not unadvisable for the claimant to have sought the services of Dr. Guy T. Vise, Jr. for the continued pain which she expressed on numerous occasions to numerous physicians. Although note is taken that the claimant had seen other physicians, it is not considered to be excessive that she chose her own specialist, i.e., an orthopedic surgeon in the person of Dr. Guy T. Vise, Jr. and sought services from him for some reasonable period of time. It is also opined by the professionals herein that the claimant is not a surgical candidate and no surgery is warranted in her future and she is deemed to be at maximum medical improvement.

3. The allowance of this continued or extended period of temporary total disability and the later maximum medical improvement benefit date is in accordance with the Act to allow the claimant every leeway in the successful attainment of complete recovery.
 

IT IS, THEREFORE, ORDERED AND ADJUDGED that the self-insured employer, Confish, Inc., pay workers' compensation benefits to the claimant as follows:

1. Temporary total disability benefits in the amount of $147.56 per week commencing on May 23, 1996 and concluding through August 5, 1998 with proper credit 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).

IT IS FURTHER ORDERED AND ADJUDGED that the claimant has no permanent disability as a result of this claim and none is found.

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

VIRGINIA WILSON MOUNGER
ADMINISTRATIVE JUDGE

ATTEST:
Brenda H. Goolsby, Secretary
___________________________

1. We have previously explained why temporary total disability benefits should not be awarded for any period of time during which the injured employee is working and earning wages, and also how the allowance of credit against such an award for the wages earned by the employee does not produce an equally acceptable result. See Clyde Hendershot v. Weiser Security Systems, Inc., 97-08017-G-0280 (May 25, 1999).