MWCC NO: 97 12825-G-1113
MYRTLE JACKSON CLAIMANT
vs.
DUO-FAST CORPORATION
EMPLOYER
AND
SENTRY INSURANCE COMPANY
CARRIER
REPRESENTING CLAIMANT:
Honorable Al Chadick, Attorney at Law, Kosciusko,
Mississippi
Honorable Mike Steele, Attorney at Law, Kosciusko,
Mississippi
REPRESENTING DEFENDANT:
Honorable William S. Adams, Attorney at Law,
Cleveland, Mississippi
Honorable Gerald Jacks, Attorney at Law, Cleveland,
Mississippi
The Commission heard the above styled cause on August 14, 2000, in the offices of the Mississippi Workers' Compensation Commission, Jackson, Mississippi on the Claimant's "Petition for Review" by the Full Commission.
Having heard the arguments offered on behalf of the parties and having thoroughly studied the record and the applicable law, the Commission affirms the "Order of Administrative Judge" dated March 20, 2000.
SO ORDERED, this the 15th day of August, 2000.
MISSISSIPPI WORKERS' COMPENSATION COMMISSION
BY: Barrett Smith
Barney Schoby
Beverly Bolton
COMMISSIONERS
ATTEST:
Joann McDonald, Secretary
___________________________
MWCC No. 97 12825-G-1 113
MYRTLE JACKSON CLAIMANT
vs.
DUO FAST CORPORATION
EMPLOYER
AND
SENTRY INSURANCE, A MUTUAL COMPANY
CARRIER
A hearing was held on October 26, 1999 at 1:30 P.M. at the Bolivar County Courthouse located in Cleveland, Mississippi. This cause is a wholly contested claim and centers around the issue of whether or not a work-related injury occurred on or about the date alleged in the Petition to Controvert and if so the existence, nature and extent of disability attributable to the injury inclusive of the date of maximum medical improvement.
Prior to going onto the record the parties entered the following stipulations:
Claimant received $2,678.59 in Group Health Disability payments.
Exhibit 2: Insurance forms.
The claimant testified on the occasion of this hearing that she is 36 years old, started the eleventh grade, and completed the tenth grade. She testified to no training, vocational or otherwise and no further formal education. After exiting school, she indicated that she was a baker at Popeye's and also worked at the Holiday Inn for approximately four and one half years. Claimant worked also at Third Wave Day Care, working with preschool children. She then went on to Duo Fast in November of 1993. Claimant noted that she ran the "B" machine standing and sitting only occasionally. She was manufacturing metal coils that are fairly heavy, some weighing close to fifty (50) pounds. Claimant also ran the smasher machine, smashing nails. On the date of injury, alleged to be May 20th, 1997, the claimant testified she was running the smashing machine when she hit her knee on a big, metal bin about three (3) feet in height. The metal bin hit the claimant at knee level. She did not hit the floor and eased up slowly. She testified that she hit the bin on the outside of her left knee and the impact felt like "when you hit your funny bone." Claimant worked the third shift. She testified that she told Lovie Fairs, her supervisor, about hitting the bin. After she told "Lovie" she finished out the day. Two days later she sought the services of Dr. Brock as her knee was swollen. Dr. Brock then referred her on to Dr. Frank. Dr. Frank performed surgery on the claimant on July 25th, 1997. In September, 1997 Dr. Frank told her to go back and "try." She only lasted one hour. The next day she went back to Dr. Frank and this precipitated an on-off working situation for the claimant. In January, 1998 she went back to Duo Fast working on one of the machines similar to her previous employ. She noted that the items handled are not "really" heavy and and that she is making the same money at essentially the same job. As to her present condition, she testified that stair climbing will make her knee "catch." She testified to no medications for pain, not even over the counter medications. The claimant testified that she told a Ms. Cox at the plant that her bills were not being paid by workers' compensation. Ms. Cox informed her that no accident report was filled out. Claimant testified that to her knowledge the Employer-Carrier has paid no temporary total disability or medical payments and the medical bills incurred were paid by Aetna through her Group Health policy. The claimant testified that she did not tell Drs. Brock and Frank initially but did later tell Dr. Frank about her knee and her encounter with the metal bin. She also testified to a motor vehicle accident about five days before Dr. Frank's second release of the claimant in October, 1997. The Employer-Carrier contends that the motor vehicle accident was a left-sided "hit" and effected her left shoulder and left knee. The claimant was asked, "Did your left knee get "hit" in the accident?" She answered, I don't know." The claimant testified that she now makes "actually" more money at Duo Fast than pre-injury and that she could provide no witnesses to this alleged incident. As to her October attempt to return to work, the claimant testified she worked "on and off" until January, 1998 when she returned completely, "so to speak." She has had no further treatment of her knee after Dr. Frank's release. The claimant indicated that indeed she did get short term disability for her knee and also short term disability for the recovery after her motor vehicle accident. The claimant testified in conclusion that she knew of no witnesses to her accident and that she never tried to obtain any witnesses to corroborate her story.
After the claimant rested, the defense called Lovie Fairs who was claimant's immediate supervisor on the alleged date of injury in 1997. The claimant told Lovie Fair she hit her shin or bumped her knee, but she was "o.k." Lovie Fair asked her later that night on the shift and she said, at or near the end of her shift she was "o.k." Ms. Fair testified if there really was an injury, we would have to make a report and take the person to the doctor. Ms. Fair testified that she had no idea really when the claimant's statement was made to her, as it was several years ago. Ms. Fair related that she never knew anything about a workers' compensation claim until after the surgery when she was in the claimant's home for a visit. She testified as well that the claimant was a good employee and was also her friend and that she had known her for a long time.
Dr. H. William Frank testified by Medical Records Affidavit in this cause noting that he saw the claimant on first presentation on June 5, 1997 upon a referral from Dr. Charles F. Brock, Jr. of the Cleveland Clinic. She presented for evaluation of the persistent pain and swelling in her left knee that apparently had its onset about two and a half (2 1/2) weeks prior. He noted that she could not recall any specific precipitating trauma, but the pain did occur upon arising from a seated position. Since then she had had persistent pain localized in the medial joint line but has not had any significant symptoms of "buckling" or "giving way" of the knee rather a reoccurring catching pain in the medial aspect. His noted impression at that time was a popliteal cyst, common in adults, secondary to an internal derangement on the knee. The knee most likely exhibited a degenerative tear of the medial meniscus and in all likelihood this would be a horizontal type of tear that is not causing recurrent impingement but is responsible for a recurrent synovitis. He recommended a conservative course of treatment with continuation of anti-inflammatory medication and also physical therapy. If this was unsuccessful, he was going to recommend that they arthroscope the knee joint. On July 25, 1997 Dr. Frank performed a surgical procedure on the claimant in the form of an arthroscopy of the left knee. The arthroscopy included a chondroplasty retropatellar surface and removal of multiple loose bodies and a resection of the plica. He continued to treat the claimant and monitored her physical therapy which occurred from August 18, 1997 to September 17, 1997 at the Cleveland Rehabilitation Center. By September 22, 1997 he indicated that her physical status was such that she was able to return to work effective on that date. This return to full duty was preceded by several abortive returns to work which were limited in nature to light duty only. Dr. Frank continued to treat the claimant seeing her several times in 1997 and three visits in Calendar Year 1998. The last entry is a progress note dated July 21, 1998. On March 17, 1999 in response to the claimant's attorney's request via a letter he noted that his diagnosis is of retropatellar chondromalacia with loose cartilaginous bodies and a plica involving the left knee. He reiterated that she had undergone arthroscopic surgery of the left knee on July 25, 1997 where they completed the chondroplasty of the retropatellar surface and removed the loose cartilaginous bodies as well as resecting the plica. Dr. Frank's permanent impairment rating was based on his last examination of Ms. Jackson which had occurred on July 21, 1998 and he noted that based on objective findings at that time consisting of an arthritic change at the retropatellar surface he would rate this as a seven (7%) lower extremity impairment. Dr. Frank noted that these findings would be consistent with a history of a direct blow to the left knee and the contusion would have to be fairly significant to produce a lesion of this nature.
Employer and Carrier exhibit 2 containing Duo
Fast Corporation records indicating the disability benefits that the claimant
applied for and apparently achieved through the auspices of the company.
These indicate she received a weekly benefit of $150.00 and include claim
information on a medical benefits request form whereupon the claim was
indicated to be not related to her employment nor to an accident. The provider's
statement was signed by Dr. Brock and indicated a diagnosis as to the nature
of the illness or injury as being a synovial cyst of popliteal space.
Upon evaluation of all testimony, lay and medical, and based on preponderance of the evidence supported by applicable law, I hereby render the following findings of fact:
1. It is conclusory in nature that the claimant did not indicate to Dr. Brock upon first presentation to him that this was a work-related injury and or illness. Significant is the fact that when a worker is injured, particularly one who has been in the same company for a number of years, they are aware of the procedures in place as regards to the reporting of such injuries. It would have been ordinary and natural for her to have recounted this event where she had the first occasion to see Dr. Brock. However, absent is such a recitation. Further, upon referral by Dr. Brock to Dr. Frank she once again did not reveal to this doctor any type of work-relatedness as regards her injury. Lack of witnesses to an incident at work is also probative. Although all claimants are deemed to be credible and benefits of doubt will be resolved in favor of the claimant, there still must be a preponderance which can be coupled with lay and medical corrobation that such a work-related incident did occur which resulted in some disability and or illness. Dr. Frank, her treating physician in this cause and the one who performed the surgery for the resolution of her condition, indicated that this would require a very direct blow to the left knee from the outside area to have contributed to and/or created such a lesion. There is no evidence that this was because of a metal bin knocking into her on the workplace floor.
2. The claimant by her own admission and actions never reported this as a work-related injury when applying for her group insurance and she should have been aware of the significance and/or the difference between a group disability form and the notification to your employer of an injury. Therefore, it is the decision of the undersigned that the claimant has failed to substantiate and/or satisfy the burden by preponderance of the evidence that this was a work-related injury.
IT IS, THEREFORE, ORDERED AND ADJUDGED that the claimant's claim for workers' compensation benefits be in the same is hereby denied.
SO ORDERED this the 20th day of March, 2000.
VIRGINIA WILSON MOUNGER
ADMINISTRATIVE JUDGE
ATTEST:
Brenda H. Goolsby, Secretary