MWCC NO. 97 15149-G-1865

GLORIA J. NICHOLS-BANKS                                                                                                            CLAIMANT

vs.

LENSCRAFTERS                                                                                                                                   EMPLOYER
AND
LIBERTY MUTUAL INSURANCE COMPANY                                                                                     CARRIER

REPRESENTING CLAIMANT :
Honorable J. Peyton Randolph, II, Attorney at Law, Jackson, Mississippi

REPRESENTING DEFENDANT :
Honorable Donald V. Burch, Attorney at Law, Jackson, Mississippi
 

The Commission heard the above styled cause on November 1, 1999, 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 July 6, 1999.

SO ORDERED , this the 4th day of January, 2000.

MISSISSIPPI WORKERS' COMPENSATION COMMISSION
BY: Mike Marsh
Barney Schoby
Beverly Bolton
COMMISSIONERS

ATTEST:
Brenda H. Goolsby, Secretary
___________________________
 

MWCC NO. 97 15149-G-1865-A

GLORIA J. NICHOLS-BANKS                                                                                                          CLAIMANT

vs.

LENSCRAFTERS                                                                                                                                EMPLOYER
AND
LIBERTY MUTUAL INSURANCE COMPANY                                                                                  CARRIER

APPEARING FOR THE CLAIMANT :
J. Peyton Randolph II, Esquire, Jackson, Mississippi

APPEARING FOR THE EMPLOYER AND CARRIER :
Donald V. Burch, Esquire, Jackson, Mississippi
 

On January 14, 1998, the claimant filed a petition to controvert alleging that on July 11, 1997, she received a work-related injury to her lower back and left hip. The employer and carrier admitted the compensability of the injury, provided medical services and supplies, and paid temporary total disability benefits from August 11 until December 17, 1997, in the total amount of $4,304.91. A dispute arose, however, regarding the extent of disability resulting from the work injury, and a hearing was held at the Mississippi Workers' Compensation Commission Hearing Room "A" in Jackson, Mississippi, on February 22, 1999.

The record was held open after the hearing for the parties to complete the medical evidence. On February 26, 1999, the employer and carrier submitted the medical records affidavit and medical report of Dr. Michael Winkelmann, which has been received into evidence as Exhibit 8, in the place of the medical report already marked for introduction into evidence, and on June 1, 1999, the claimant filed the deposition of Dr. Michael Winkelmann taken May 26, 1999, which has been received into evidence as Exhibit 11.
 

The parties stipulated that the claimant's average weekly wage on July 11, 1997, was $350.40.
 

The issues to be resolved by the Administrative Judge are as follows:

1. The extent of disability resulting from the admittedly compensable work injury of July 11, 1997; and

2. Whether the employer and carrier are liable for the charges of the University Medical Center and University Orthopaedic Associates for medical treatment rendered the claimant.
 

After high school, Ms. Nichols-Banks worked as a cashier at Kentucky Fried Chicken for about two years. The job required her to be on her feet all day. She worked as an assistant reading instructor at Velma Jackson School in Madison County. She testified that this job required a lot of walking, for instance, when taking children to the bathroom or to the playground.

In August 1990, Ms. Nichols-Banks began work at Lenscrafters in Ridgeland as a stock person and lab technician. She controlled incoming and outcoming shipments and special orders, and she made eyeglasses.

On July 11, 1997, Ms. Nichols-Banks was checking in shipments when she tripped over a box, slid, and fell to the tiled concrete floor on her left side. She went to Methodist Convenient Care Clinic and was off work about three days. When she returned to work, she was very sore. She worked while sitting down checking in frames and lenses. She continued to work although she was in pain. On about July 15, 1997, she saw the doctor again and had a pain injection. She had a second injection and started physical therapy at Methodist Hospital in August 1997. She last worked on August 9, 1997.

Later, Ms. Nichols-Banks saw Dr. Wesley Granger, her family physician in Canton, who referred her to Dr. David Gandy, orthopaedic surgeon in Jackson. Ms. Nichols-Banks said she was having sharp pains in the lower left part of her back and left hip at the time. Dr. Gandy referred her to Dr. Lon Alexander, neurosurgeon in Jackson, who wanted to refer her to Dr. Jeffrey Summers, pain management specialist, and Dr. Rahul Vohra, a physical medicine and rehabilitation specialist at the Institute of Physical Medicine in Jackson, but she saw Dr. Robert Smith, another neurosurgeon, instead, apparently at the instance of the carrier.

Ms. Nichols-Banks tried to see Dr. Robert McGuire, orthopaedic surgeon at the University Orthopaedic Associates in Jackson, but instead she saw Dr. Audrey Tsao at the University Orthopaedic Associates. Ms. Nichols-Banks went there on her own, not at a doctor's referral. She continued to see Dr. Tsao who called in Dr. McGuire for a consultation in April of 1998. Dr. Tsao referred Ms. Nichols-Banks to the pain clinic at the University Medical Center, and she underwent injections in her sacroiliac joint. She said the short-term relief did not last. The carrier has not paid any of the medical charges from the University Orthopaedic Associates or University Medical Center.

According to Ms. Nichols-Banks, she has pain in her hip and back, and she has difficulty sitting on her left side. She takes Darvocet-N-100 and other pain medication for pain relief. She said. she is unable to function after taking her medicine. She takes hot baths and naps, sleeping most of the day, although sometimes she watches television. She said she can only stand on her right leg for about ten minutes, without a cane or crutches. She said bending is painful, she has difficulty driving because her car has a five-speed shift, and she cannot sleep at night. Her mother and mother-in-law and other family members help her with her housework and cooking. She said she does not want to have surgery.

According to Ms. Nichols-Banks, before the fall at Lenscrafters she did a lot of aerobics with a treadmill and abs machine. She jogged and used a jump rope and ran up and down stairs.

At the hearing, Ms. Nichols-Banks carried a cane. Throughout the hearing, she grimaced, she seemed barely able to speak to testify, although she spoke very articulately, and she sat perched in an awkward-looking position on the front edge of the chair. She said Dr. David Gandy prescribed the cane. She said she also uses crutches which Dr. Tsao prescribed in February 1998. Ms. Nichols-Banks testified that Dr. Tsao prescribed Ultram, and Dr. Tsang prescribed the Darvocet-N-100. Dr. Granger prescribed the Ultram also.

Ms. Nichols-Banks has attempted to find work. She said she went to several insurance agencies in Canton, and she inquired about work at the Madison County Medical Center in Canton. She registered at the state employment office and also took a test for employment with the United States Post Office. She has not been offered employment. Some prospective employers were not hiring and not accepting applications.

Jasper Banks, the claimant's husband, Mrs. Melvin Banks, the claimant's mother-in-law, and Gerald and Michael Nichols, the claimant's brothers, came to the hearing prepared to testify in the claimant's behalf The parties stipulated, however, that they would offer testimony that would be cumulative and corroborative of that already offered by the claimant.

The medical records of Dr. David J. Gandy, orthopaedic surgeon with Capital Orthopaedic Clinic in Jackson, were admitted into evidence. Dr. Gandy examined Ms. Nichols-Banks on October 8, 1997, for complaints of pain in the hip and low back. He diagnosed questionable SI Joint disruption and ordered her lumbar MRI from St. Dominic Hospital to see if it showed the SI joint. On October 17, 1997, Dr. Gandy noted the MRI scan was negative, and he reviewed it with four radiologists at St. Dominic's. He suggested a bone scan to investigate the SI joint further.

On December 10, 1997, Dr Gandy noted that the "bone scan showed only some faint diffuse activity in the right foot and ankle most likely related to alteration weight bearing due to painful left foot." (Exhibit 4). He said he had nothing else to offer her. He released her to light-duty work on December 18, 1997.

On January 6, 1998, Dr. Gandy stated Ms. Nichols-Banks had written him requesting a second opinion from Dr. Robert McGuire, and he thought that a reasonable request. On January 9,1998, Dr. Gandy said he would recommend the employer keep Ms. Nichols-Banks off work until she could see Dr. McGuire. On January 12, 1998, Dr. Gandy rescinded the return-to-work permission and referred Ms. Nichols-Bank to Dr. Lon Alexander for an evaluation. Then the carrier wanted her to go to Dr. Robert Smith instead. On March 19, 1998, Dr. Gandy noted Dr. Alexander had referred Ms. Nichols-Banks to Dr. Summers and Dr. Vohra, and Dr. Gandy suggested she follow Dr. Alexander's recommendations. He reiterated he had nothing to offer her.

Dr. Audrey K. Tsao, board-certified orthopaedic surgeon at the University Orthopaedic Associates, testified by deposition dated November 10, 1998, that she first saw Ms. Nichols-Banks on February 12, 1998, for complaints of discomfort and pain in her left hip, back and buttock area resulting from a work injury in July 1997. Dr. Tsao diagnosed possible SI joint problem, with secondary problems of iliotibial band tendonitis and bursitis. Dr. Tsao treated her with medication and injections and referred her to Dr. Brian Tsang, a pain anesthesiologist. Dr. Tsao saw Ms. Nichols-Banks again on March 11, 1998, and she referred her to Dr. McGuire for an appointment on April 17, 1998. Dr. Tsao noted that Dr. McGuire agreed that she had SI joint dysfunction.

Dr. McGuire's medical report dated April 17, 1998, was admitted into evidence as part of Exhibit 7. He examined Ms. Nichols-Banks on April 17, 1998, and found, "She is exquisitely tender over the left SI joint, somewhat out of proportion to what would be expected." Dr. McGuire diagnosed SI arthritis. He recommended she follow up with Dr. Tsang for an SI block and then back to Dr. Tsao, and noted, I do not see any evidence of a neurologic abnormality at this time."

Dr. Tsao examined Ms. Nichols-Banks again on May 1, 1998, after she had been helped by an injection in the SI joint by Dr. Tsang. Dr. Tsao saw her again on May 27, 1998, after a second injection by Dr. Tsang. Ms. Nichols-Banks reported only temporary relief from the injection. Dr. Tsao saw Ms. Nichols-Banks again on July 15, 1998, and when Ms. Nichols-Banks asked her what else she could do, Dr. Tsao said the only thing she knew was something called sacroiliac joint fusion that she did not do. Dr. Tsao said Dr. McGuire did that surgery, and she referred Ms. Nichols-Banks back to him. Dr. Tsao said Ms. Nichols-Banks saw Dr. McGuire again on October 2, 1998, and he had discussed the possible surgery with her. Dr. Tsao noted on October 2, 1998, that Ms. Nichols-Banks was on crutches. They discussed the possible surgery.

When asked about maximum medical improvement, Dr. Tsao said Ms. Nichols-Banks was as good as she was going to get on October 2, 1998. Dr. Tsao said Ms. Nichols-Banks was still using a cane or crutches full-time and was unable to sit or walk for prolonged periods of time. Dr. Tsao said she should not lift or carry anything while using crutches and should not stand on uneven or hard surfaces.

When asked about the crutches specifically, Dr. Tsao said Ms. Nichols-Banks came to her on crutches. Dr. Tsao did not prescribe the crutches. When asked about "positive evidence" that Ms. Nichols-Banks had SI joint trouble, Dr. Tsao answered, "her injections." (Exhibit 1, p. 16).

The medical report of Dr. Robert Smith, neurosurgeon in Jackson, was admitted into evidence, and Dr. Smith testified by deposition dated December 1, 1998. Dr. Smith saw Ms. Nichols-Banks on March 2, 1998, for a second opinion relating to her complaints of sharp pain in the low back and left hip sometimes radiating down the left leg to the foot. Dr. Smith found no spasm in her back and no significant loss of motion. The straight-leg-raising test was normal. He found no pathological reflexes and no motor weakness. The sensory examination was normal, and she had no atrophy or fasciculation

After the physical examination, Dr. Smith stated, "There are no compelling neurological or mechanical findings to suggest lumbar back disease. At this point I do not see any long range impairments or restrictions. I would release the patient back to productive work." (Exhibit 3).

At his deposition on December 1, 1998, Dr. Smith stated that Ms. Nichols-Banks could go back to "some light productive work." (Exhibit 1, p. 5). He said she had reached maximum medical improvement by the time he saw her on March 2,1998. He did not think she needed surgery for SI joint syndrome.

The medical report of Dr. Michael Winkelmann, physical medicine and rehabilitation specialist at the Institute of Physical Medicine in Jackson, dated February 17, 1999, was admitted into evidence, and Dr. Winkelmann testified by deposition dated May 26, 1999. Dr. Winkelmann examined Ms. Nichols-Banks on February 17, 1999, at the request of the employer and carrier for an employer's medical examination. Dr. Winkelmann noted an MRI and x-rays were negative except for some degenerative disc disease at the T7 and 8 level of the spine.

Dr. Winkelmann did a complete physical examination of Ms. Nichols-Banks, except for a pelvic examination. He said Ms. Nichols-Banks told him she exhibited some decreased sensitivity in the entire left leg, but he found her description to not follow dermatomal distribution, meaning there were not objective findings to support her subjective complaints which Dr. Winkelmann described as "a v ery wishy-washy symptom rather than - than a clear deficit." (Exhibit 11, p. 15). Dr. Winkelmann noted that he had difficulty determining the pathology because of Ms. Nichols-Banks' self-limiting behavior. Dr. Winkelmann found her to have good mobility of her joints, however, although he suspected some arthritic changes of the joint surfaces.

Dr. Winkelmann diagnosed left-sided sacrolliltis related to the work injury, and he assigned a permanent partial disability rating of 3% which Included a consideration of her complaints of pain and discomfort. Dr. Winkelmann stated that he did not think an SI fusion would help her and did not think additional physical therapy was indicated either. In his report, Dr. Winkelmann suggested she see Dr. Jeff Summers for SI joint injection and that she undergo a functional capacity evaluation.
 

After carefully considering the pleadings, pretrial statements, lay and medical evidence, stipulation about average weekly wage, the demeanor of the witness at the hearing, and the applicable law, the Administrative Judge finds as follows:

1. Gloria J. Nichols-Banks received an admittedly compensable, work-related injury to her back and left hip on July 11, 1997.

2. Her average weekly wage on July 11, 1997, was $350.40, as stipulated by the parties.

3. Because of the work injury, the claimant was temporarily totally disabled from July 11, 1997, until October 2, 1998, when Dr. Tsao said she had reached maximum medical improvement, except for those days when she was able to work and earn wages during that time.

4 . The evidence as a whole does not support Ms. Nichols-Banks' claim of permanent occupational disability resulting from the work injury. Her appearance at the hearing on February 22, 1994, was a classic Academy-Award-nomination performance by a claimant who is getting great secondary gain from being "disabled." Her behavior was so exaggerated that it could not be believed. She acted as if she could barely talk because of her condition. Claimants who are truly disabled do not act like Ms. Nichols-Banks at hearing.

The medical evidence as a whole does not support Ms. Nichols-Banks' claim of permanent occupational disability. Dr. Tsao is the only doctor who appeared to believe all of Ms. Nichols-Banks' subjective complaints of pain, but even Dr. Tsao admitted there were no objective findings to support the complaints of pain. At the hearing, Ms. Nichols-Banks testified that Dr. Tsao prescribed crutches for her. Dr. Tsao testified, however, that Ms. Nichols-Banks came to her using the crutches, and she did not prescribe them. Ms. Nichols-Banks testified that Dr. Gandy prescribed the cane for her, but Dr. Gandy's notes do not include a reference to a cane. All Dr. Gandy said was that he had nothing to offer her. Ms. Nichols-Banks indicated that she could not do any work that required walking or standing, but only Dr. Tsao advised any physical restrictions about walking and that only because Ms. Nichols-Banks was ambulating with crutches.

Dr. McGuire found Ms. Nichols-Banks to be exaggerating pain complaints during his examination on April 17, 1998, and Dr. Robert Smith could find nothing wrong with her on March 2, 1998. Dr. Winkelmann noted no objective findings except tenderness overlying the greater trochanter bursa, but he said he could not really ascertain her pathology because of her guarding or self-limiting behavior. He assigned a permanent medical impairment rating of 3% based on the possible left-sided sacrolliltis, a diagnosis which is suspect because of her behavior.

Other than some degenerative problems in the SI joint which were apparently temporarily aggravated by the work injury of July 11, 1997, there is nothing significantly wrong with Ms. Nichols-Banks, and she needs to return to an active life and gainful employment. Lying in bed and taking narcotic medications can cause a person to feel genuinely disabled.

Even if the degenerative problems should restrict her to light-duty work, Ms. Nichols-Banks is perfectly capable of doing very good light or sedentary work. None of the physicians she has seen has restricted her from light work. Ms. Nichols-Banks has a high school education, she was very articulate and attractive in her appearance at the hearing, and for many years she did responsible work at Lenscrafters, which would fall in the light exertional category of employment. She also has cashier experience and has worked as an assistant reading instructor at a school, other examples of light work. She lives in Madison County in the Greater Jackson area where there are plentiful employment opportunities

5. The employer and carrier are liable for the medical charges of Dr. Tsao, Dr. Tsang, and Dr. McGuire at the University Orthopaedic Associates and the University Medical Center for treatment rendered her in 1998. Ms. Nichols-Banks had asked Dr. Gandy to refer her to Dr. McGuire for a second opinion, and Dr. Gandy thought that a reasonable request, when the carrier sent her instead to Dr. Robert Smith for an employer's medical examination. Dr. Tsao is an associate of Dr. McGuire's, and Ms. Nichols-Banks was seen by her instead of Dr. McGuire. Dr. Gandy apparently also thought a referral to Dr. Jeff Summers for pain treatment reasonable, and Dr. Tsang performed the same type of services as Dr. Summers. At the hearing, Ms. Nichols-Banks referred several times to a desire for SI joint surgery by Dr. McGuire, but the medical evidence as a whole shows that she does not need surgery.
 

IT IS THEREFORE ORDERED that the employer and carrier pay workers' compensation benefits to the claimant as follows:

1. Temporary total disability benefits at the rate of $233.60 per week beginning July 11, 1997, and continuing until October 2, 1998, with credit for any such payments already made by the employer or carrier or for wages earned by the claimant during this time;

2. Penalties and interest on all due and unpaid compensation benefits;

3. Provide medical services and supplies as required by the nature of the claimant's injury and the process of her recovery therefrom pursuant to Mississippi Code Annotated § 71-3-15 (1995), General Rule 12, and the Medical Fee Schedule.

SO ORDERED , this the 6th day of July, 1999.

LINDA A. THOMPSON
ADMINISTRATIVE JUDGE

ATTEST:
Brenda H. Goolsby, Secretary