MWCC NO. 97-16818-G-1782
DAVID BRIAN BRADLEY CLAIMANT
vs.
HOMER SKELTON FORD
EMPLOYER
AND
MISSISSIPPI AUTOMOBILE DEALERS ASSOCIATION
SELF-INSURED FUND AND MONUMENTAL GENERAL CASUALTY
COMPANY
CARRIERS
REPRESENTING CLAIMANT:
Steven G. Roberts, Esquire, Memphis, TN
REPRESENTING EMPLOYER/CARRIER:
Richard C. Coker, Esquire, Jackson, MS Harvey
L. Fiser, Esquire, Jackson, MS
This claim was considered on the record by the
Commission on June 26, 2000 pursuant to a Petition for Review filed by
the Employer and the Mississippi Automobile Dealers Association Self-Insured
Fund (hereafter "MADA"). It is admitted that David Bryan Bradley is entitled
to workers' compensation benefits for an injury he sustained while working
for the Employer. The only question is which of the two insurers bears
responsibility for the payment of these benefits. In an Order entered January
13, 2000 the Administrative Judge concluded that MADA was solely responsible.1
David Bradley first injured himself on September 13, 1996. He did not seek medical treatment until January 23, 1997, and he first became disabled as a result of this injury in August 1997. MADA insured Homer Skelton Ford prior to January 1, 1997, and Monumental General Casualty Company insured Homer Skelton Ford effective January 1, 1997.
Mr. Bradley testified that he was first hired by Homer Skelton Ford on June 24, 1996 as a service technician. On September 13, 1996, while removing a tire from a vehicle, Mr. Bradley said he twisted in order to set the tire on the ground and he immediately felt a pop in his back. Mr. Bradley did not immediately seek any medical attention and continued to work and perform his regular duties despite developing back pain and, later, left hip and leg pain. Mr. Bradley testified that he was new to Homer Skelton Ford and did not want to cause any trouble by reporting an injury. He was unknowledgeable about workers' compensation and it was his understanding that group health insurance benefits would be available to him effective January 1, 1997. He made up his mind to simply tough it out until after January 1, 1997 and then seek medical attention if the problem persisted, which it did.
He first sought treatment for his back on January 23, 1997 from Dr. Lee McCallum. According to Mr. Bradley, Dr. McCallum referred him to Dr. Crosby, whom he saw on February 10, 1997. He received conservative treatment but lost no time from work. In June or July of 1997 Mr. Bradley developed unbearable left leg pain and he returned to Dr. Crosby on August It, 1997. Dr. Crosby diagnosed acute herniated disc, took Mr. Bradley off work immediately, and performed surgery thereafter on August 17, 1997, as well as a repeat surgery on October 16, 1997.
Mr. Bradley denied being involved in any other accidents or Incidents between September 13, 1996 and August 1997 which could have caused the herniated disc for which he underwent surgery. He testified that his back simply and gradually got worse over time, to the point of becoming disabling in August 1997.
Dr. McCallum's records reflect that Mr. Bradley was first seen there on January 23, 1997 for complaints of dizziness which started a couple of days prior, and for low back pain which had persisted for several months. An MRI test conducted on January 29, 1997 at Dr. McCallum's request identified degenerative changes in the L4-5 and L5-S1 disc space along with a "mild left paracentral disc protrusion at L5-S1 which appears to impinge on the L5 nerve root." He was thereafter referred to Dr. Glenn Crosby for neurosurgical evaluation.
Dr. Crosby first saw Mr. Bradley on February 10, 197 for complaints of lower back pain originating several months prior, along with "a radicular component in to his left lower extremity particularly in the anterior aspect of his upper leg" which had developed over the previous few weeks. Dr. Crosby at first prescribed medication to treat Mr. Bradley and suggested more invasive treatment if the pain persisted.
Mr. Bradley was originally scheduled to return in three weeks to see Dr. Crosby, but he missed this appointment and did not see Dr. Crosby again until August 11, 1997. Mr. Bradley reported the recent development of severe left lower leg pain and decreased sensation in the posterior lateral aspect of his left leg. Dr. Crosby's examination led him to conclude that Mr. Bradley now had an acute herniated disc. He arranged for an MRI test to be done immediately and advised Mr. Bradley to remain in bed. The MRI test confirmed a left sided disc herniation at L5-S1 and surgery was performed on August 19, 1997.
A repeat surgery was performed October 14, 1997 to repair a recurrent disc herniation at L5-S1. This was followed by a third surgery on April 23, 1998 for the same problem. Dr. Crosby continued to see Mr. Bradley intermittently through September 14, 1998, at which time he referred Mr. Bradley to a pain clinic for further treatment.
When asked what he thought caused the acute disc
herniation he first identified in August 1997, Dr. Crosby stated that he
did not know. Mr. Bradley never gave any indication that a specific event
or trauma had occurred since Dr, Crosby first saw him in February 1997
and none was apparent. In fact, Dr. Crosby testified that the disc herniation
Mr. Bradley had in August 1997 was the same one he had in February 1997
and the progression of the herniation to the point that surgery was needed
could have occurred naturally with the passage of time and without any
further injurious eVent. Given the history, it was Dr. Crosby's opinion
that the recurrent back problems suffered by Mr. Bradley were traceable
to his initial injury in September 1996.
Monumental General Casualty argues that it was properly exonerated because Mr. Bradley first injured his back on September 13, 1996, prior to the effective date of its coverage, and he did not thereafter suffer any new or additional injurious events so as to break the causal link between his original injury and his subsequent disability. Therefore, Monumental contends, liability for this claim should continue to rest with MADA, the entity providing coverage on September 13, 1996.
MADA, on the other hand, argues that the liability should be determined as of the date Mr. Bradley's injury first became disabling, or alternatively, that liability should be determined by application of the last injurious exposure rule. Both of these argument are based on MADA's unsupported assumption that Mr. Bradley's disability is the result of his having suffered more than one injurious event.
MADA argues repeatedly that Mr. Bradley suffered a latent Injury, or that his injury did not manifest itself or become compensable until August 1997 when he first became disabled, or that there was more than one injurious event which contributed to his disability, or that some intervening cause arose after January 1, 1997 which severed the causal link between Mr. Bradley's injury in September 1996 and his ultimately disability in August 1997. The problem with these various arguments is that they are unsupported both in fact and in law.
In the first place, the overwhelming weight of the credible evidence proves that Mr. Bradley suffered one primary injury on September 13, 1996, and that this injury gradually worsened until the point of becoming totally disabling in August 1997. There is nothing other than the pure speculation of MADA to suggest there were any other intervening or injurious events which contributed to Mr. Bradley's disability. Dr. Crosby agreed, given this history, that Mr. Bradley's current back problems and his disability therefrom were directly traceable to the injury he described as having occurred on September 13, 1996.
Accordingly, this claim does not call for the application of the last injurious exposure rule, or for the discharge of MADA's liability based on the principle of intervening superseding cause. As to the last injurious exposure rule, its purpose "is to set a definite and certain time for liability to attach and thus avoid the often difficult task of determining which of a series of injuries caused the disability or which of a series of exposures caused the disabling disease. In the absence of difficulty in locating a definite and certain time, the rule has no application." Singer Company v. Smith, 362 So. 2d 590, 593 (Miss. 1978). In this case, there is absolutely no "difficulty in locating a definite and certain time" of the injury for the proof shows there was but one injury, and not a "series of injuries. " Id. There likewise was no subsequent or intervening cause for Mr. Bradley's disability. See also United Methodist Senior Services v. Ice, 749 So. 2d 1227 (Miss. App. 1999).
This is also not a case of latent injury, but instead of latent disability. Mr. Bradley suffered a single work related injury on September 13, 1996, but due to the circumstances herein he did not become disabled until August 11, 1997. The proof shows that Bradley suffered no other injuries thereafter. "Thus, there was only one accident and one injury." J.H. Moon & Sons, Inc. v. Johnson, 753 So. 2d 445, 449 (Miss. 1999).
"A latent injury," on the other hand, "is an injury
that a reasonably prudent man would not be aware of at "the moment it was
sustained." 753 So. 2d at 448. And we know from the evidence in this case
that Mr. Bradley was aware of his injury the moment it occurred even if
he failed to appreciate the extent thereof.
The Administrative Judge concluded, as we do, that nothing occurred to Mr. Bradley subsequent to September 13, 1996 which would legally compel or justify our shifting of the responsibility for this claim from MADA to Monumental. We, therefore, affirm the Order of Administrative Judge dated January 13, 2000.
SO ORDERED this the 17th day of August, 2000.
MISSISSIPPI WORKERS' COMPENSATION COMMISSION
Barrett Smith
Barney Schoby
Beverly Bolton
ATTEST:
Joann McDonald, Secretary
___________________________
MWCC NO. 97 16818-G-1782-A
DAVID BRYAN BRADLEY CLAIMANT
vs.
HOMER SKELTON FORD
EMPLOYER
AND
MISSISSIPPI AUTOMOBILE DEALERS ASSOCIATION
SELF INSURERS FUND
CARRIER NO. 1
AND
MONUMENTAL GENERAL CASUALTY COMPANY CARRIER NO. 2
APPEARING FOR THE CLAIMANT:
Steven G. Roberts, Esquire, Memphis, Tennessee
APPEARING FOR THE EMPLOYER AND CARRIER NO. 1:
Richard C. Coker, Esquire, Jackson, Mississippi
APPEARING FOR THE EMPLOYER AND CARRIER NO. 2:
Harvey L. Fiser, Esquire, Jackson, Mississippi
The claimant, David Bryan Bradley, filed petitions
to controvert on January 2, 1998, and August 24, 1998, alleging that on
September 13, 1996, he received a work-related injury to his lower back
while working for the employer, Homer Skelton Ford. He did not seek medical
treatment for the injury until January 23, 1997, and he did not miss any
time from work until August 1997. On the date of injury, September 13,
1996, the employer was self-insured for workers' compensation purposes
through the Mississippi Automobile Dealers Association Self Insurers Fund,
but on January 1, 1997, Monumental General Casualty Company became the
carrier. The two carriers disagreed about which was responsible for workers'
compensation benefits to the claimant, and by order dated December 17,
1998, this Administrative Judge ordered the two carriers to share equally
in the payment of workers' compensation benefits to the claimant until
the disagreement could be resolved. Several conferences were held about
this matter, and- a hearing on the record was conducted in the Lafayette
County Courthouse in Oxford, Mississippi, on December 9, 1999. The case
was held in abeyance after the hearing for the carriers to submit memoranda
of law.
The parties stipulated as follows:
1. Monumental General Casualty Company became the carrier for the employer, Homer Skelton Ford, on January 1, 1997.
2. On September 13,1996, the date of injury alleged by the claimant, Homer Skelton Ford was self insured and a member of the Mississippi Automobile Dealers Association Self Insurers Fund.
3. The employer filed a B-3 Form, Employer's First Report of Injury or Occupational Disease, showing September 13, 1996, as the date of injury;
4. All temporary total disability and medical benefits have been paid to date, except for approximately $400.00 paid by the claimant as co-payments to group health insurance, which amount is not in dispute.
5. The carriers have paid workers' compensation benefits pursuant to an order compelling benefits, dated December 17, 1998, ordering the carriers to share the benefits equally until such time as a determination could be made as to which party is solely liable.
6. The claimant's average weekly wage on September
13, 1996, can be figured from the wage statement submitted into evidence
by the employer.
The primary issue to be resolved by the Administrative
Judge is which carrier is liable for workers' compensation benefits to
the claimant.
The claimant, David Bryan Bradley is thirty-four years old and a resident of Memphis. His father is a physician, Dr. James F. Bradley, Jr., in Jonesboro, Arkansas. The claimant graduated from high school in Jonesboro, and he attended the University of North Florida, Arkansas State University in Jonesboro, and Shelby State in Memphis. He did not earn a college degree. He served three years in the U. S. Navy. He has taken numerous training classes sponsored by Ford Motors for automobile technicians. He testified at the hearing in a very articulate fashion.
This is Mr. Bradley's first workers' compensation case. He had no significant problems with his back before September 1996.
Mr. Bradley first began work for Homer Skelton Ford in June 1996, as a service technician. He made a set wage per hour, approximately minimum wage, and he was paid commissions based on the work he did. His commissions varied from week to week without any consistency. A variance in commission from one week to the next was not indicative of his physical condition. He said the summer is typically the most productive season.
On September 13, 1996, Mr. Bradley had a vehicle on a lift at about a chest high level. He pulled a tire off the vehicle and twisted his body while setting the tire down on his tool box. He felt and heard something pop in his back, a "very excruciating pain." (Exhibit 7, p. 21). That day he reported the accident to his supervisor. He thought he completed his shift, but he was not sure.
As a matter of fact, Mr. Bradley did not miss a day of work or any of his regular work duties until August 1997, nearly a year later. His work involved a lot of bending and twisting, and his back condition continued to worsen gradually over several months. The pain went from his back to his hip and down his left leg. He could not recall a specific time when the pain moved from his back to his leg.
According to Mr. Bradley, he was not eligible for the employer's group health insurance until January 1, 1997, after his probationary period at work, and he simply treated himself with over-the-counter medication until he had insurance. He said he was ignorant about workers' compensation and how it worked, and he was waiting to go to the doctor until he had health insurance for payment. He said he would have sought medical treatment in September 1996 if he had had health insurance or workers' compensation benefits then.
Mr. Bradley also testified that he did not go to the doctor in September 1997 because he had just started for the company and he did not want to "make waves" or cause trouble with the company. He did not think his back problem was that serious at the time, and he knew he would be getting group health insurance on January 1, 1997, after the waiting period.
After September 13, 1996, and before he first went to the doctor in January 1997, Mr. Bradley experienced difficulties performing his job. According to Mr. Bradley, he had to modify his work habits to do the job, and he solicited more help from co-workers. As time went on, he increasingly needed assistance to do things such as pulling a transmission out of a vehicle, things he had done by himself before. He used a broader range of tools to keep from bending over. Before September 13, 1996, he would have lifted an intake off by hand; after, he asked for assistance.
On January 23,1997, Mr. Bradley sought medical treatment from Dr. Lee McCallum, a general practitioner in Memphis. This was the first time he had seen Dr. McCallum; he chose him to be his primary physician because of his office location.
When he presented to Dr. McCallum the first time, Mr. Bradley reported dizziness and an ear problem while flying. He had experienced the ear problem while flying back from a family trip to Denver for a week to attend the Super Bowl. He also complained to Dr. McCallum of low back pain. Mr. Bradley testified that he made the appointment with Dr. McCallum because of his back problems. By the time he got to the appointment with Dr. McCallum, he had the ear problem; that was not why he scheduled the appointment. Mr. Bradley did not report to Dr. McCallum that he had had a work-related injury.
Dr. McCallum wanted Mr. Bradley to see Dr. Glenn Crosby, neurosurgeon at the Semmes-Murphey Clinic in Memphis, and he first saw Dr. Crosby on February 10, 1997. He complained of back pain, but he did not tell Dr. Crosby that he had a work-related injury. Neither Dr. McCallum nor Dr. Crosby took him off work or assigned work restrictions.
The next time Mr. Bradley saw Dr. Crosby was August 11, 1997, and Dr. Crosby noted, "Approximately one and a half months ago, he developed left leg pain." Dr. Crosby described it as insidious onset. Mr. Bradley told Dr. Crosby that the back problem was work related when he learned that the group health insurance would not pay.
Mr. Bradley also went to the emergency room in August 1997. He said he was at a birthday party standing and watching his niece. All of a sudden he "fell out," unable to support his weight. He collapsed and was taken to the emergency room.
Mr. Bradley underwent back surgery performed by Dr. Crosby in August 1997. In October 1997, Mr. Bradley was walking up and down stairs at his apartment for exercise and he lifted his child, four months old, and he had another onset of pain. He had a second surgery in October 1997, and he did not progress as well after that operation. He had a third low back surgery in April 1998. Dr. Crosby performed the three operations and has now referred Mr. Bradley to an orthopaedic specialist, Dr. Edward Pratt, for the possibility of performing a fusion on his back. Mr. Bradley had an independent medical evaluation scheduled for December 15, 1999.
Mr. Bradley has not been back to work since the date of the first surgery in August 1997. He applied for Social Security benefits and started receiving those benefits about November 1998. He received money retroactive to the date he applied, approximately November or December 1997.
The medical records of Dr. Lee McCallum, with the Family Physicians Group, P.C. in Memphis, were received into evidence. David Bradley was noted to be a new patient on January 23, 1997. He apparently complained of being dizzy while flying two days earlier, and he said he had experienced low back pain for several months. Dr. McCallum ordered an MRI of the lumbar spine. The MRI, taken January 28, 1997, showed degenerative changes in the L4-5 and L5-S1 disc and mild left paracentral disc protrusion at the L5-S1 level that appeared to impinge on the L5 nerve root. Dr. McCallum referred Mr. Bradley to Dr. Glenn Crosby, neurosurgeon at the Semmes-Murphey Clinic in Memphis, on January 31, 1997. Dr. Crosby's records are included in Dr. McCallum's file.
Dr. Glenn A. Crosby testified by depositions dated February 10 and October 13, 1999. He said he first saw David Bradley on February 10, 1997, at the referral of Dr. Lee McCallum for complaints of back and leg pain. Mr. Bradley told Dr. Crosby he had "a six month history of lower back pain that had developed a radicular component to his left leg." (Exhibit 2, p. 7). The history did not reveal when the radicular component began other than "over the past few weeks." (Exhibit 2, p. 8). Dr. Crosby diagnosed degenerative disc disease and ruptured disc at the L5 level. Dr. Crosby prescribed medication and suggested an epidural block. Dr. Crosby did not think the ruptured disc was impinging on a nerve root at that time. He told him to come back in three weeks, but Mr. Bradley canceled an appointment scheduled for March 24, 1997.
Dr. Crosby saw Mr. Bradley a second time on August 11, 1997, for complaints of back pain. Mr. Bradley stated he had developed the onset of severe left leg pain about one and a half months earlier and he had difficulty sitting. Dr. Crosby thought Mr. Bradley had an acute herniated disc and ordered an MRI and bed rest. The MRI scan, dated August 11, 1997, indicated a left-sided disc herniation at the L5-S1 level. Dr. Crosby said there was a change in symptoms from the January appointment to the August one. When asked what could cause a change, Dr. Crosby responded:
On August 19, 1997, Dr. Crosby performed surgery. He found a disc fragment that was probably causing most of the leg problems for Mr. Bradley. Then Mr. Bradley had a recurrent L5-S1 disc herniation, and Dr. Crosby performed a second surgery on October 14, 1997. On April 23, 1998, Mr. Bradley underwent a third surgery for another recurrent disc and scar tissue.
Dr. Crosby was asked the following question:
Dr. Crosby said that someone could have a herniation and not know it, depending on how bad the herniation is. When asked if Mr. Bradley would have known when the herniation occurred, Dr. Crosby answered:
After carefully considering the pleadings, pretrial statements, stipulations, lay and medical evidence, the demeanor of the witness at the hearing, and the applicable law, the Administrative Judge finds as follows:
1. The average weekly wage of the claimant David Bryan Bradley, on September 13, 1996, was $598.58, as figured from the wage statement submitted into evidence by the employer.
2. There is no dispute that David Bryan Bradley first felt a pain in his lower back on September 13, 1996, while handling a tire at Homer Skelton Ford. He described the pain as "excruciating" and said that he immediately began to modify his work habits, seeking assistance in lifting and using more tools to avoid bending and lifting. Mr. Bradley testified that he did not want to "make waves" with his employer about this work injury and he furthermore did not know how workers' compensation applied to his situation. Apparently the then self-insured employer did not advise him that he could go to the doctor and have the bill paid as a workers' compensation benefit. Mr. Bradley decided to wait to seek medical treatment until after his group health insurance became effective on January 1, 1997; he testified that otherwise he would have gone to the doctor in September 1996. He also was hoping that his condition was not serious and would resolve without medical intervention. He testified that he treated himself with over-the-counter drugs and hot showers and made modifications to his work style before January 1, 1997. Dr. Crosby, his treating neurosurgeon, testified that based on the history given him by Mr. Bradley, the disc herniation probably occurred in September 1996 and just gradually worsened, causing radicular pain in the summer of 1997.
Based on the evidence as a whole, it appears that
the injury to the lower back caused a disc rupture on September 13, 1996,
when Mr. Bradley felt a pop and excruciating pain after twisting to put
down a tire. The back condition gradually worsened until he was totally
disabled in August 1997, but the incident of September 13, 1996, was the
only injury. Under Mississippi workers' compensation law, an insurer whose
policy is in force at the time of a claimant's compensable injury assumes
all liability. Potts v. Lowery,
134 So. 2d 474 (Miss. 1961). If another carrier assumes coverage following
the injury, the second carrier is liable for the injury only if during
the second carrier's coverage period, the worker suffers an additional
workplace injury aggravating the injury sufficient to constitute a new
injury. Homer Skelton Ford was self insured on September 13, 1996, through
the Mississippi Automobile Dealers Association Self Insurers Fund, and
that carrier is the carrier responsible for workers' compensation benefits
to the claimant. Mr. Bradley suffered no additional aggravating injury
sufficient to be a new injury after the date Monumental General Casualty
Company began providing coverage for the employer. Monumental General Casualty
Company should be reimbursed for any workers' compensation benefits paid
to Mr. Bradley or paid on his behalf to medical providers in this case.
IT IS THEREFORE ORDERED that the employer, Homer Skelton Ford, and self-insurers fund, Mississippi Automobile Dealers Association Self Insurers Fund, are responsible for workers' compensation benefits to the claimant as follows:
1. Temporary total disability benefits at the rate of $264.55 per week beginning when Mr. Bradley first missed work in August 1997 and continuing until he reaches maximum medical improvement, with credit for any such payments already made or for wages earned by the claimant during this time; and
2. Provide medical services and supplies as required by the nature of the claimant's injury and the process of his recovery therefrom pursuant to Mississippi Code Annotated §71-3-15 (1995), General Rule 12, and the Medical Fee Schedule.
IT IS FURTHER ORDERED that the self-insurers fund, Mississippi Automobile Dealers Association Self Insurers Fund, reimburse the subsequent carrier, Monumental General Casualty Company, for any workers' compensation benefits paid to the claimant relating to this work injury.
SO ORDERED, this the 13th day of January, 2000.
LINDA A. THOMPSON
ADMINISTRATIVE JUDGE
ATTEST:
Brenda H. Goolsby, Secretary
___________________________
1. It bears noting that pending
the hearing and order by the Administrative Judge and pending review by
the Commission, both insurers have been under order to share equally in
the payment of all benefits due Mr. Bradley, pending final determination
as to which insurer is solely liable. See Miss. Code Ann. §71-3-37(13)
(Rev. 1995).