MWCC NO. 96 12870-F-9157

BARBARA GAIL HUGGINS                                                                                                           CLAIMANT

vs.

GREAT SOUTHERN FOODS, INC., D/B/A SUPER VALUE                                                      EMPLOYER
AND
ARGONAUT INSURANCE COMPANY                                                                                            CARRIER

REPRESENTING CLAIMANT:
Honorable Keith S. Carlton, Attorney at Law, Corinth, Mississippi

REPRESENTING DEFENDANT:
Honorable David B. McLaurin, Attorney at Law, Tupelo, Mississippi
 

The Commission heard the above styled cause on October 23, 2000 in the offices of the Mississippi Workers' Compensation Commission in Jackson, Mississippi on the "Employer and Carrier's Petition for Appeal from the Order of the Administrative Judge".

Having heard the arguments offered on behalf of the parties and having thoroughly studied the record and the applicable law, the Commission affirms the "Order of the Administrative Judge" dated February 29, 2000.

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

MISSISSIPPI WORKERS' COMPENSATION COMMISSION
BY: BARRETT SMITH
BARNEY SCHOBY
BEVERLY BOLTON
COMMISSIONERS

ATTEST:
Joann McDonald, Secretary
___________________________
 

MWCC No. 96 12870-F-9157

BARBARA GAIL HUGGINS                                                                                                             CLAIMANT

vs.

SUPER VALUE                                                                                                                                   EMPLOYER
AND
ARGONAUT INSURANCE COMPANY                                                                                             CARRIER

APPEARING FOR CLAIMANT:
Mr. Keith S. Carlton, Attorney at Law, Corinth, MS

APPEARING FOR EMPLOYER-CARRIER:
Mr. David B. McLaurin, Attorney at Law, Tupelo, MS
 

Claimant alleged that she had a work-related accident on August 5, 1996, injuring her neck, right shoulder, and back. The Employer-Carrier admitted compensability and paid medical expenses and temporary disability benefits. The hearing was held at the Pontotoc County Courthouse in Pontotoc, Mississippi, on October 21, 1999.
 

1 . A work-related accident occurred on August 5, 1996, injuring Claimant's neck, right shoulder, and back.

2. Claimant's average weekly wage on the date of the work accident was $240.00.

3. There is no remaining issue to be decided regarding temporary total disability. The Employer-Carrier paid temporary disability from August 15, 1996, until August 11, 1998.

4. There is no remaining issue to be decided regarding the reasonableness and necessity of medical treatment.

5. Claimant reached maximum medical improvement on July 23, 1998.
 

1 . The existence and extent of permanent disability attributable to the workrelated accident.

2. Whether Claimant is entitled to recover penalties and interest on disability payments not timely made.
 

Claimant is a 46 year old resident of Alcorn County, Mississippi, with a seventh grade education and G.E.D. Claimant attended a local community college for a partial semester in nursing. She has worked in various factories as a sewing machine operator and as a cashier in grocery stores and retail chain stores. She began working for the Employer in February 1995.
 
At the Employer, Claimant said she was produce manager, and her duties included making orders, stocking vegetables and produce, cleaning, and lifting boxes of produce weighing up to fifty pounds. Claimant stated that when a produce truck arrived at the store, she had to unload the fruit and vegetables. Claimant testified that on August 5, 1996, she was removing produce off a pallet in the back room when she picked up a fifty pound box of baking potatoes. When the box slipped, Claimant felt her shoulder pop and an immediate burning pain in her neck. Claimant stated she informed the Assistant Manager, Rodney, but finished working that day.
 
Claimant said she later had to visit the local emergency room. The doctor there referred her to her regular family physician, Dr. Carl Welch. Claimant said Dr. Welch referred her to Dr. Thomas Miller, who later retired, and then she saw Dr. Crosby. Claimant stated that she received nerve blocks and later had surgery in July 1997. Because she was still in pain, Dr. Crosby referred Claimant to Dr. Foropoulos. Dr. Foropoulos operated on Claimant in March 1998 and released her in July 1998.
 
Claimant stated she took her physician's note to the Employer and spoke with Mr. Hudson in September or October 1998. Claimant stated that Mr. Hudson only offered her a cashier position, which she said she was willing to attempt. However, Claimant said Hudson reviewed the physician's note and stated he would get back in touch with her after speaking with his attorneys. Claimant stated that since that time, there has been no further contact from the Employer.
 
Claimant stated she met with Jennifer Oubre, vocational rehabilitation specialist, in March 1999. She said she contacted all of the places listed in Oubre's April 22, 1999, letter. She said she contacted the places between April and August 1999, and received no offers of employment from any employer on the list. Claimant said she conducted her own job search at various retail stores, service stations, and restaurants. She also said she visited local hotels and factories. Claimant stated she sought employment at thirty to forty places, but found no position within the restrictions given to her by Dr. Crosby and Dr. Foropoulos. Claimant testified her last job search was conducted September 3, 1999. She maintained that she wanted to work within her restrictions.

Claimant testified that although surgeries did improve her condition, she still has problems with physical activities. She said she experiences some moderate, constant pain in her right shoulder and arm. She said that she has trouble reaching overhead and backwards. Claimant said she also still has pain in her neck and lower back. She estimates that she can lift no more than ten pounds due to her lower back and that she cannot lift more than five pounds with her right arm. Claimant stated that prior to her work accident, she had no physical problems.
 
Mr. Sam Cox, vocational rehabilitation expert, testified for the Employer-Carrier. Cox met and evaluated Claimant on February 24, 1999, at which time he took an extensive educational and medical history. Cox said he also reviewed depositions and medical records. In reviewing Claimant's potential employment situation, Cox noted Claimant had restrictions only for one extremity so he included potential jobs with occasional heavier lifting for the other extremity.
 
Cox testif ieo that in May 1999, he contacted the employers on his list and found Claimant did not fill out applications. Cox testified he also conducted more research in July 1999, and the potential employers had no applications and did not recall Claimant. Cox stated he also received Claimant's hand-written job search list in August or September 1999, and he followed up on those employers in October 1999. He said he found no record of applications except at two places.
 
Cox testified that Claimant had no restrictions from sitting, standing or walking. He opined that Claimant had aspects of both sedentary and light-duty positions. He explained that the Dictionary of Occupational Titles has five categories: very heavy, heavy, medium, light and sedentary. Cox felt that although Claimant's lifting restrictions did not meet the light level, she could still sit, stand, and walk. However, he agreed Claimant could no longer perform in the medium category. He likewise agreed that Claimant's prior position as a produce manager fell into the medium category.
 
Cox maintained, however, that Claimant was still employable at least in the minimum wage category of $5.15 per hour. He testified that Claimant could possibly enter the market at her same rate of pre-accident pay of $6.00 per hour. Cox estimated that Claimant was eligible for fifteen to twenty percent of all jobs, but he agreed that Claimant could not physically perform 80% of all potential jobs. However, he maintained that Claimant should not have any loss of wage-earning capacity since she is semi-skilled and the current unemployment rate is very low.
 
Dr. Glen Allen Crosby, II, neurosurgeon, began treating Claimant on September 11, 1996, for problems with her lower back, upper back, right arm, hand, and neck. He found Claimant's reflexes and sensory examination to be normal with some evidence of radicular pain with straight leg raising. He treated Claimant conservatively and ordered diagnostic studies, physical therapy, and anti-inflammatory medication. Dr. Crosby diagnosed Claimant with severe spondylitic disease, which he opined was exacerbated by her work accident. He performed an anterior cervical diskectomy and fusion at the C4-5 and C5-6 level in July 1997. Although Claimant's pain improved, Dr. Crosby noted in August 1997 that Claimant still had pain in her right shoulder, neck and arm.

Dr. Crosby referred Claimant to an orthopedic surgeon, Dr. Foropoulos, for evaluation of her shoulder. However, Dr. Crosby continued to treat Claimant for her continued neck and back pain. Dr. Crosby felt that Claimant reached maximum medical
improvement on January 7, 1998, and he decided Claimant would not be able to return to work in her pre-injury position since it required lifting and repetitive motion. He continued to treat Claimant until September 1998. He also felt Claimant had a lumbar strain which would not need surgical intervention.
 
Dr. Crosby opined that Claimant had a 10% permanent medical impairment as a result of her injury and surgery. He said the impairment rating did not include any impairment to Claimant's shoulder. He testified Claimant should avoid repetitive motion and lifting anything heavier than ten pounds. Dr. Crosby referred Claimant back to her primary care physician, Dr. Carl Welch, in January 1999 with the suggestion of continued intermittent use of anti-inflammatories and muscle relaxers. Dr. John E. Foropoulos, orthopedic surgeon, first saw Claimant on September 18, 1997, for right shoulder pain. He ordered diagnostic studies and diagnosed Claimant with rotator cuff tenclinitis with acrornioclavicular joint arthritis. He ordered prescription medication and exercises. After an MRI scan on February 7, 1998, he found a tear of the supraspinatus tendon and a spur. He performed surgery on March 25, 1998, to repair Claimant's rotator cuff tear and remove the distal clavicle.
 
Dr. Foropoulos continued to follow Claimant after her surgery and ordered physical therapy. He felt Claimant reached maximum medical improvement on July 23, 1998. Dr. Foropoulos stated Claimant had a 30% reduction in her rotation of the shoulder. For her shoulder injury, Dr. Foropoulos gave Claimant a 20% permanent medical impairment to her upper extremity which translated into a 12% medical impairment to Claimant's body as a whole. Dr. Foropoulos opined that Claimant's work accident aggravated her arthritis and rotator cuff tendinitis.

Dr. Foropoulos testified Claimant would be restricted from lifting over ten pounds with her right upper extremity and from repetitive overhead or shoulder level work. Dr. Foropoulos felt Claimant may not be able to work as a cashier because repetitive use of her arm could aggravate her shoulder. He last saw Claimant in June 1999, at which time Claimant continued to complain of pain in her shoulder.
 
Dr. John D. Brophy, neurosurgeon, saw Claimant for an employer medical evaluation on April 16, 1999. He performed a neurologic examination and reviewed the MRI's. He said he found no evidence of radiculopathy and felt Claimant could return to work at full duty. Dr. Brophy thought Claimant's fusion was solid without evidence of neurologic deficit and that her lumbar MRI findings were normal for her age. He agreed with the permanent medical impairment rating given by Dr. Crosby. Dr. Brophy did not restrict Claimant from working.
 
Dr. Randall Holcomb with the Orthopedic Clinic saw Claimant on April 26, 1999, for an evaluation. He agreed with the evaluation by Dr. Foropoulos that Claimant would not be able to work in a position that required lifting more than ten pounds, particularly at or above the shoulder level. He also agreed with Dr. Foropoulos' medical impairment rating.
 

I base the following findings on a preponderance of the evidence, including medical proof as required by the Act:
 
1 . Claimant received an admittedly-compensable work injury on August 5, 1996, to her neck, right shoulder, and back.

2. Claimant's average weekly wage on the date of the work accident was $240.00, as stipulated.

3. Claimant reached maximum medical improvement on July 23, 1998, as stipulated.

4. There are no remaining issues to be decided regarding temporary disability or the reasonableness and necessity of medical treatment.

5. In order to receive permanent disability benefits under workers' compensation law, the claimant must prove and actual physical injury and the loss of wage-earning capacity. Claimant has met her burden of proof that she suffered a permanent medical impairment. As to the second element of proof, Claimant's unrebutted testimony was that she presented herself to the Employer after maximum medical improvement seeking a position within the physical restrictions given by her treating physicians. Although the Employer did not offer Claimant a position, they did provide the services of a vocational rehabilitation specialist, Mr. Cox. Claimant unsuccessfully sought for work, and Cox agreed Claimant was physically unable to perform 80% of all potential employment opportunities.
 
Based upon the evidence as a whole, including Claimant's age, educational level, work history, unsuccessful job search, and physical impairment, I find Claimant has sustained a loss of wage-earning capacity in the amount of $192.00 per week.

6. Claimant is entitled to recover penalties and interest as provided by the Act on any installments of disability not timely paid.
 

IT IS THEREFORE ORDERED AND ADJUDGED that the Employer-Carrier pay and provide compensation benefits to Claimant as follows:

1 . Permanent partial disability benefits of $128.07 beginning July 24, 1998, and continuing for a period of 450 weeks as compensation for Claimant's disability from her work injuries to her neck, back and shoulder. There shall be added to each installment of compensation not timely paid the equivalent of 10% thereof as provided in Miss. Code Ann. Section 71-3-37 (5) (Rev. 1995) together with interest at the legal rate from and after the date the petition was filed. Employer-Carrieris entitled to proper credit for any such payments of compensation heretofore made to Claimant.
 
2. Pay for, furnish and provide to Claimant all reasonable and necessary medical services and supplies as the nature of her injury or the process of her recovery may require in accordance with Miss. Code Ann. Section 71-3-15 (Rev. 1995) and the Medical Fee Schedule.

SO ORDERED this the 29th day of February, 2000.

TAMMY GREEN HARTHCOCK
ADMINISTRATIVE JUDGE

ATTEST:
Brenda H. Goolsby, Secretary