MWCC NO. 97-08293-G-0911
DEBORAH M. GILES CLAIMANT
vs.
THE MYRTLES HEALTH CARE FACILITY
EMPLOYER
AND
MISSISSIPPI HEALTH CARE ASSOCIATION
CARRIER
REPRESENTING CLAIMANT:
Honorable Joe M. Ragland, Attorney at Law, Jackson,
Mississippi
REPRESENTING DEFENDANTS:
Honorable Betty B. Arinder, Attorney at Law,
Jackson, Mississippi
The above styled cause came on for consideration by the Commission in the offices of the Mississippi Workers' Compensation Commission in Jackson, Mississippi on "Claimant's Petition for Review by Full Commission".
Having thoroughly studied the record in this cause and the applicable law, the Commission affirms the "Order of Administrative Judge" dated June 23, 1999.
SO ORDERED, this the 27th day of March, 2000.
MISSISSIPPI WORKERS' COMPENSATION COMMISSION
BY: Barney Schoby
Beverly Bolton
COMMISSIONERS
ATTEST:
Brenda H. Goolsby, Secretary
___________________________
MWCC NO. 97 08293-G-0911-C
DEBORAH M. GILES CLAIMANT
vs.
THE MYRTLES HEALTH CARE FACILITY
EMPLOYER
AND
MISSISSIPPI HEALTH CARE ASSOCIATION
CARRIER
APPEARING FOR THE CLAIMANT:
Honorable Joe M. Ragland, Attorney at Law, Jackson,
MS 39205.
APPEARING FOR THE EMPLOYER AND CARRIER:
Honorable Betty Burton Arinder, Attorney at Law,
Jackson, MS 39236-3429.
On September 5, 1997, the claimant, Deborah M.
Giles, filed a Petition to Controvert alleging that on May 30, 1997, she
sustained a work-related injury to her back, ribs and legs while working
as a nursing assistant for the Myrtles Health Care Facility in Columbia,
Mississippi. A hearing was held at the Mississippi Workers' Compensation
Commission, 1428 Lakeland Drive, Jackson, Mississippi on May 7, 1999.
The parties have stipulated that the claimant
did sustain a compensable injury on May 30, 1997. The parties have also
stipulated that the claimant's average weekly wage on the date of injury
was $163.22.
The issues to be resolved by the Administrative Judge are as follows:
1. Whether the claimant sustained any temporary total disability as a result of the compensable injury;
2. Whether the claimant sustained any permanent disability or loss of wage-earning capacity as a result of the compensable injury; and
3. Whether the charges for medical treatment incurred
by the claimant with Dr. Holly Fink, Dr. Robert McGuire, Wesley Medical
Center, and Dr. David McKellar were medically reasonable and necessary
as a result of the compensable injury and whether the employer and carrier
are responsible for the payment of the charges incurred with these doctors.
The following exhibits were entered into evidence at the hearing:
1. Claimant's Exhibit No. 1 - Medical Records Affidavit from Wesley Medical Center;
2. Claimant's Exhibit No. 2 - Medical Records Affidavit from Dr. Holly Fink;
3. Claimant's Exhibit No. 3 - Medical records of University Orthopaedic Associates;
4. Claimant's Exhibit No. 4 - Medical records of Dr. Robert Herrington;
5. General Exhibit No. 5 - Medical Records Affidavit of Dr. Michael Fromke;
6. General Exhibit No. 6 - Medical Records Affidavit of Dr. Bertha Blanchard; and
7. General Exhibit No. 7 - Independent Medical
Evaluation Report of Dr. Robert R. Smith.
Deborah Giles testified that she is 35-years old and a resident of Columbia, Mississippi. She is married and lives with her husband. Ms. Giles testified that she weights 155 pounds. Ms. Giles has a 10th-grade education. She did not obtain her GED certificate but did attend certified nursing assistant training and received certification in 1990 after passing a written test.
In the past, Ms. Giles has had a newspaper route, has worked as a cashier, has worked as a child-care worker and has worked as a fire safety trainer with a fire department.
Ms. Giles began work for The Myrtles Health Care facility in 1990. She resigned in September, 1993 and returned to The Myrtles Health Care facility on September 21, 1994. At the time of her injury, Ms. Giles had an average weekly wage of $163.22.
According to Ms. Giles, her position at The Myrtles Health Care Facility required her to tend to the daily needs of the residents of the nursing facility. She testified that on May 30, 1997, she was transferring a resident from a wheel chair to the toilet when the resident started to collapse. Ms. Giles injured her lower back while assisting the patient to keep him from falling. Ms. Giles reported the injury to The Myrtles Health Care facility. Later that day when her pain increased, Ms. Giles reported to the nursing home administrator, Jeanette Crain, that the pain had worsened. An appointment was scheduled for Ms. Giles to be evaluated by Dr. Robert Herrington. After Ms. Giles did not improve with the treatment he had rendered, Dr. Herrington referred Ms. Giles to Dr. Michael Fromke for evaluation and treatment. After performing diagnostic studies, Dr. Frornke referred Ms. Giles for epidural steroid injections. At the time, the epidural steroid injections did not improve Ms. Giles' condition. Therefore, she reftised the third injection in a series of three. Ms. Giles then returned to Dr. Herrington and requested a second opinion. Dr. Herrington referred the claimant to Dr. Bertha Blanchard.
Dr. Blanchard ordered physical therapy and an EMG and nerve conduction velocity studies. The EMG/NCV revealed a pinched nerve in the L5 area. Therefore, Dr. Blanchard performed a myelograrn which was reported as normal. Dr. Blanchard then referred the claimant to Dr. Holly Fink for treatment of musculoskeletal pain.
According to the claimant, Dr. Fink then referred Ms. Giles to Dr. David McKellar and to Dr. Robert McGuire.
Ms. Giles testified that she had not attempted to return to employment at The Myrtles Health Care facility and had not contacted anyone at The Myrtles Health Care facility about the possibility of returning to the nursing home in a light-duty position. She admitted that she was still certified as a nursing assistant.
Ms. Giles testified that she had attempted to find employment with five potential employers. On April 26, 1999, she inquired as to a light-duty position at Columbia Health and Rehabilitation. There was no light-duty position available, and Ms. Giles did not complete an application. On April 26, 1999, Ms. Giles inquired as to a light-duty position at Marion County General Hospital. There was no light-duty available and Ms. Giles did not complete an application. On April 26, 1999, Ms. Giles inquired at Wilkerson Holmes as to a light-duty position. There was no light-duty position available, and Ms. Giles did not complete an application. On April 26, 1999, Ms. Giles inquired at Hattiesburg Convalescent Center as to a light-duty position. There was no light-duty position available, and Ms. Giles did not complete an application. On May 6, 1999, Ms. Giles inquired at The Grove as to a light-duty position. There was no light-duty position available, but Ms. Giles did complete an application. This was the extent of Ms. Giles' efforts to find employment following her release to return to work.
Ms. Jeanette Crain testified that she is the administrator at The Myrtles Health Care facility and was the administrator at the time Deborah Giles was employed at The Myrtles and at the time Deborah Giles sustained the compensable injury. Ms. Crain testified that Ms. Giles was a good employee and that Ms. Giles had a good rapport with the nursing home residents. Ms. Crain testified that at no time following her injury did Ms. Giles contact The Myrtles about returning to work. It is the policy of The Myrtles Health Care Facility to return all injured employees to work. Ms. Crain testified that she always remained willing to work with Ms. Giles to allow her to return to employment at The Myrtles. At the time that Ms. Giles was released to return to work by Dr. Fronike, there was a position available for Ms. Giles at The Myrtles Health Care facility. There was also a position available at the time that Dr. Robert Smith stated his opinion that Ms. Giles could return to work with some lifting restrictions. Specifically, Ms. Crain testified that she would have been able to place Ms. Giles in the beauty shop of the nursing facility. She testified that Ms. Giles had worked in the beauty shop in the past and was able to assist the residents with their grooming. Ms. Giles testified that there were also multiple light-duty tasks which Ms. Giles could complete such as taking vital signs, charting, getting ice and water for residents, assisting with grooming, etc. Ms. Crain also testified that Ms. Giles would have returned to work at the same rate of pay and that all employees were raised to $6.00 per hour in 1998, and that Ms. Giles would have been eligible for the rate increase.
The records of Dr. Robert Herrington reflect that Dr. Herrington first examined Ms. Giles on May 30, 1997, with complaints of pain in the side and with having a burning sensation down the back of her leg. Dr. Herrington's examination revealed a negative straight-leg raising test. X-rays failed to reveal any fracture. Dr. Herrington's assessment was a contusion of the chest wall and a possible back injury with nerve root inflammation. Dr. Herrington placed the claimant on restricted activity and prescribed medication. He advised Ms. Giles not to work until re-evaluated. When Ms. Giles returned to Dr. Herrington on June 3, 1997, she was given an injection. Ms. Giles was admitted to the hospital by Dr. Herrington on June 9, 1997, after failing to obtain any significant relief. She was admitted to the hospital for intensive bed rest, physical therapy and medication. While hospitalized, Ms. Giles underwent a CT scan of the lumbar spine. The CT scan was essentially normal. After being released from the hospital, Ms. Giles returned to Dr. Herrington on June 24, 1997. On that date, she had a positive straight-leg raising test. Dr. Herrington referred Ms. Giles to Dr. Michael Fronike for evaluation and treatment.
Dr. Michael Fronike, a neurosurgeon practicing in Hattiesburg, Mississippi, evaluated Ms. Giles on July 17, 1997. At that time, Ms. Giles was complaining of back pain, radiating into the right buttock and down the right lower extremity. Dr. Fromke reviewed an MRI which had been previously performed. The MRI of the lumbar spine was normal, showing no ruptured disk, no nerve root compression and no neural element compromise. Dr. Fronike's examination revealed 515 positive signs for Waddell's testing which indicated a flinctional component to her pain syndrome. Dr. Frornke's impressions were atypical low back pain with atypical bilateral right greater than left lower extremity pain; mild muscular strain; normal neurological exam; and normal MRI. Dr. Frornke recommended ftirther conservative treatment, including medication, and an epidural steroid injection.
An epidural steroid injection was performed by Dr. Darrell Burnham on August 1, 1997. Dr. Burnham's impressions were possible back strain, possible sacroiliac pain, possible facette arthropathy; very definite symptom amplification in nearly every area tested; and extremely low threshold for pain tolerance.
Ms. Giles returned to Dr. Fronike on September 22, 1997. At that time, Ms. Giles described lower back pain and bilateral lower extremity pain. At that point, Ms. Giles had completed two epidural steroid injections with Dr. Burnham and with Dr. Siccard. She reported that she did not obtain any relief from either steroid injection. On physical examination, Ms. Giles again tested positive for five of five signs tested for Waddell symptomology. Based upon his examination of Ms. Giles, Dr. Fromke reported that Ms Giles was at maximum medical improvement. It was his impression that the examination was suggestive of a functional pain syndrome and overamplification of pain syndrome. Dr. Frornke reported that Ms. Giles was at maximum medical improvement. He stated that she would have no disability rating as a result of her compensable injury. He also stated that Ms Giles could return to work at full duty with no restrictions.
Ms. Giles then returned to Dr. Robert Herrington on September 29, 1997, and reported that she did not feel that she was able to go back to work. Dr. Herrington prescribed medication and increased activity.
Ms. Giles again returned to Dr. Herrington on October 23, 1997, with complaints of persistent back pain. At that time Dr. Herrington recommended that Ms. Giles seek a neurological or neurosurgical evaluation. On October 29, 1997, Ms. Giles returned to Dr. Herrington and was referred, upon her request, to Dr. Bertha Blanchard.
The medical records of Dr. Bertha J. Blanchard revealed that Dr. Blanchard evaluated Ms. Giles on November 13, 1997. Dr. Blanchard's impression was persistent low back pain that appeared to have resulted from an injury on May 30,1997. Dr. Blanchard prescribed medication and a four-week course of physical therapy.
The claimant returned to Dr. Blanchard on January 15, 1998, for follow-up of the persistent low back pain. Because Ms. Giles had not improved, Dr. Blanchard had ordered a myelogram. and a myelogram CT scan. Both diagnostic studies were completely normal. Dr. Blanchard continued the claimant's medication and told the claimant that as the last resort they would try to get her to a chiropractor. Dr. Blanchard also reported that it would be best for her to obtain a functional capacity assessment prior to her attempting to return to work.
On February 13, 1998, Dr. Blanchard reported in her notes that the functional capacity evaluation revealed severe symptom magnification. Dr. Blanchard recommended no limitations on Ms. Giles' work. Dr. Blanchard released the claimant from her care.
Medical records were also submitted from Dr. Holly Fink. Those records revealed that Dr. Fink treated Ms. Giles for an extended period of time. The first treatment was apparently performed on February 2, 1998. The last examination was apparently done on April 26, 1999, for the purposes of a permanent impairment rating. It was the opinion of Dr. Fink that Ms. Giles had reached maximum medical improvement as of April 26, 1999. It was Dr. Fink's opinion that Ms. Giles had a permanent impairment rating of the whole person of 82% as a result of her work-related injury.
On referral from Dr. Holly Fink, the claimant was evaluated by Dr. David L. McKellar on April 15, 1998. Dr. McKellar did not have pertinent imaging studies available and did not have pertinent medical records available for his review. Dr. McKellar's assessment was lumbar degenerative disk disease with disk bulging in the lower lumbar and lumbosacral spine with a possibility of a left L-5 radiculopathy. Dr. McKellar recommended a lumbar epidural steroid injection at L-5 with consideration of repeat injection based upon the patient's response. Dr. McKellar performed the lumbar epidural steroid injection on April 15, 1998.
The claimant returned to Dr. McKellar on April 30, 1998. Again, an epidural steroid injection was performed.
Dr. McKellar performed a third epidural steroid injection on June 4,1998, and recommended that Ms. Giles be evaluated by Dr. Robert McGuire for a surgical opinion.
Dr. Robert McGuire evaluated Ms. Giles on August 28,1998. Dr. McGuire did not have the MRI scans, the myelogram, the CT scans, or the EMG studies available for his review. Apparently, he did not have the medical records from the treating physicians for his review. Dr. McGuire reported that he was hesitant to make any recommendations for treatment because he had not had an opportunity to review the diagnostic studies or the medical records. There is an addendum dated September 4, 1998, in which Dr. McGuire recommended consultation with a hip specialist, Dr. Audrey Taso.
There is also a letter from Dr. McGuire dated September 4, 1998, to Dr. David McKellar in which Dr. McGuire reported that he did not see anything surgically that he could do to improve the claimant's condition. He reported that the alignment of the spine was normal without excessive mobility and that he did not see anything which would suggest any nerve root compression either in the central canal or the lateral recesses.
On September 9, 1998, claimant filed a Motion for Continuance, requesting that she be allowed to obtain additional medical treatment from Dr. Audrey Taso. The claimant's Motion for Continuance was granted. The claimant's request for additional medical treatment was denied.
On September 28, 1998, the employer and carrier filed a Motion for Independent Medical Evaluation, requesting that this Administrative Judge direct an independent medical evaluation with a physician of this Administrative Judge's choosing to evaluate the medical evidence and to render an independent opinion as to the necessity for additional medical treatment and the extent, if any, of the claimant's temporary and permanent disability.
On October 13, 1998, this Administrative Judge entered an Order compelling independent medical evaluation with Dr. Robert R. Smith, a neurosurgeon, practicing in Jackson, Mississippi. Dr. Smith was requested to address Ms. Giles' diagnosis, whether she had attained maximum medical improvement, whether she had any permanent medical impairment and whether she required additional medical treatment.
Dr. Robert Smith evaluated Ms. Giles on November
10, 1998. He had available for review all medical records and all diagnostic
studies. Dr. Smith agreed that Ms. Giles had reached maximum medical improvement
and that she could be released to return to work for lifting at least up
to 20-30% of the patient's body weight. Dr. Smith did not assign any permanent
impairment as a result of the work-related injury.
After carefully considering the demeanor of the witnesses at the hearing and the medical evidence which has been presented as well as the applicable law, this Administrative Judge finds as follows:
2. Ms. Giles was temporarily and totally disabled because of the compensable injury from May 31,1997, through February 13,1998, the date upon Dr. Blanchard released the claimant to return to work with no limitations.
3. Ms. Giles has not sustained any permanent disability or loss of wage-earning capacity as a result of her compensable injury. The only medical evidence produced by the claimant to support her claim of a medical disability is the opinion of Dr. Holly Fink, a chiropractor. Dr. Fink's opinion is not credible in light of the negative MRI scan, the negative myelograrn and the negative CT scans as well as the neurosurgical opinions of Dr. Michael Fromke and Dr. Robert R. Smith.
Dr. Robert R. Smith did recommend that Ms. Giles limit her lifting; however, the fact that a claimant is not restored to the same physical condition she exhibited before an injury is not sufficient to find a permanent occupational disability. Ms. Giles bears the burden of proof to show that she cannot earn the same wages following the injury which she was receiving at the time of her injury in either the same or other employment. When a claimant chooses not to return to her pre-injury employer, the claimant bears the burden of proof on loss of wage earning capacity. Pale v. Ruleville Health Care Center, 687 So. 2d 1221 (Miss. 1997); Jordan v. Hercules, 600 So. 2d 179 (Miss. 1992).
Ms. Giles has argued that her unsuccessful attempts to find other employment proved that she suffered a loss of wage-earning capacity as a result of her compensable injury. However, this Administrative Judge find that Ms. Giles' attempt to find employment can be described, at best, as half-hearted. She sought employment only the week prior to the hearing at only five businesses. She actually completed only one application for employment prior to the hearing. Furthermore, she did not attempt to return to work at The Myrtles Health Care facility, and this Administrative Judge finds Ms. Crain's testimony as to the availability of work credible. Therefore, this Administrative Judge finds that Ms. Giles has not met her burden of proof as to either medical disability or loss of wage-earning capacity. Therefore, she is not entitled to any permanent partial disability benefits.
4. This Administrative Judge further finds that the medical services rendered by Dr. David McKellar, Wesley Medical Center and Dr. Robert McGuire were not medically reasonable or medically necessary as a result of the claimant's compensable injury. Further, those services were not provided pursuant to the provisions of the fee scheduled enacted by the Mississippi Workers' Compensation Commission pursuant to legislative authority.
Insofar as the medical treatment rendered by Dr. Holly Fink is concerned, this Administrative Judge finds that any services provided by Dr. Holly Fink beyond those authorized by this Administrative Judge's prior Order, dated March 23, 1998, were neither medically necessary or medically reasonable and that those services were rendered contrary to the provisions of the fee schedule enacted by the Mississippi Workers' Compensation Commission pursuant to legislative authority. This Administrative Judge finds that the disputed services rendered by Dr. Holly Fink, Dr. David McKellar, and Dr. Robert McGuire were not necessary to permit the claimant's recovery and restoration to health and vocational opportunity as a result of her industrial injury.
IT IS, THEREFORE, ORDERED AS FOLLOWS:
1. The employer and carrier are to pay temporary total disability benefits to the claimant from May 31, 1997, through February 13, 1998, with credit for all payments previously made by the employer and carrier;
2. The employer and carrier are to pay for the medical treatment previously rendered by Dr. Robert Herrington, Dr. Michael Fromke and Dr. Bertha Blanchard;
3. The employer and carrier are to pay for the medical services rendered by Dr. Holly Fink as previously ordered by this Administrative Judge, and as previously pre certified by the employer and carrier pursuant to the Mississippi Fee Schedule.
4. The claimant is entitled to no permanent partial disability benefits;
5. The employer and carrier are not responsible for payment of charges incurred by the claimant with Dr. David McKellar, Dr. Robert McGuire or Wesley Medical Center or for payment of additional charges incurred with Dr. Holly Fink.
SO ORDERED this the 23rd day of June, 1999.
W. A. THORNTON
ADMINISTRATIVE JUDGE
ATTEST:
Brenda H. Goolsby, Secretary