MWCC NO. 97-13801-G-2671

SANDRA, IRENE ODOM                                                                                                                    CLAIMANT

vs.

TYSON FOODS, INC.                                                                                                                           EMPLOYER
(SELF-INSURED)

REPRESENTING CLAIMANT :
Al Chadick, Esquire, Kosciusko, MS
P. Shawn Harris, Esquire, Forest, MS

REPRESENTING EMPLOYER :
Dan Baker, Esquire, Jackson, MS
 

This matter was heard by the Commission on November 15, 1999 pursuant to the Employer's and Carrier's Petition of Appeal and the Claimant's Cross-Petition of Appeal. The question raised by both parties is whether the Administrative Judge, in her Opinion issued August 20, 1999, awarded too much or too little in permanent disability benefits to Ms. Odom.
 

We agree with the Judge's finding that Ms. Odom suffers from a type of cervical and/or thoracic facet dysfunction with associated neck and shoulder pain and also suffers separately from bilateral carpal tunnel syndrome as the result of her employment with Tyson Foods. ¹ The parties have further stipulated Ms. Odom was temporarily and totally disabled from these injuries from

August 11, 1997 through September 13, 1997, from May 15, 1998 through October 10, 1998, and from October 21, 1998 through February 22, 1999. Her average weekly wage for present purposes is agreed by the parties to be $260.40 and her date of maximum medical improvement is agreed to be February 22, 1999. This leaves the question of permanent disability which the Judge found to be minimal with regard to Ms. Odom's cervical injury and to be 50% with regard to each upper extremity as the result of the carpal tunnel syndrome.

Addressing Ms. Odom's bilateral carpal tunnel syndrome first, we are reminded that she is entitled to permanent disability benefits therefor in an amount commensurate with her medical/ functional loss of use, or her occupational impairment, whichever is greater. And the extent of her occupational disability is determined by reference to her loss of wage earning capacity in the same or other employment. See Betty Robinson v. Tri-Lakes, Ltd. and Mississippi Manufacturer's Association W.C. Group , MWCC No. 94-13678-F-8709 (June 7, 1999 & July 7, 1999), and cases cited therein.

The evidence in this case shows that Ms. Odom has suffered a medical/functional loss of use of her arms of 5% to 10%, depending on whether the estimate of Dr. Freeland or Dr. Staggs is used. Ms. Odom is unquestionably able to work, and has in fact been consistently employed by Tyson since being given medical clearance to resume employment. Significantly, Ms. Odom has continued to work for Tyson Foods at wages which exceed her pre-injury earnings.

Under these circumstances, the Law presumes that Ms. Odom has not suffered any permanent loss of wage earning capacity. General Elec. Co. v. McKinnon , 507 So.2d at 365. However, a determination of permanent occupational disability involves more than "a comparison of the pre-injury and post-injury earnings" and the presumption which arises when these latter numbers equal or exceed the former may be rebutted by the claimant.

. . . post injury earnings equal to or in excess of pre-injury earnings are strong evidence of non-impairment of earning capacity, but . . . the presumption arising therefrom may be rebutted by evidence on the part of the claimant that the post-injury earnings are unreliable due to: increase in general wage levels since the time of the accident, claimant's own greater maturity and training, longer hours worked by claimant after the accident, payment of wages disproportionate to capacity out of sympathy to claimant, and the temporary and unpredictable character of post-injury earnings. [citations omitted].

Moreover, this list is certainly not an exclusive one. . . . [A]ny factor or condition which causes the actual post-injury wages to become a less reliable indicator or earning capacity will be considered.

In the case at hand, the Judge found that in spite of the fact that Ms. Odom received wages post-injury which equaled or exceeded her pre-injury wages she was nonetheless occupationally disabled as the result of the injury to her upper extremities. The Judge noted that Ms. Odom is working under medical restrictions which limit her employment to eight hours per day and which limit the amount of upper extremity repetition she can endure. She is regarded physically as capable of medium level work with no lifting from floor level of greater than 34 pounds.

Even Tyson concedes that Ms. Odom is not capable of performing the same job as before her injury, although she is capable of performing other similar jobs which Tyson allows Ms. Odom to work at her own pace. And to Tyson's credit, they have done a commendable and admirable job of making work available for Ms. Odom which falls within her restrictions.

Also relevant, as pointed out by the Judge, is the fact the Ms. Odom is 40 years old, has a 12th grade education and has a work history involving primarily the repetitive use of her hands and arms in a manufacturing line type environment. While she is, obviously, still quite capable of performing the substantial acts of this type of employment, there is also no disputing that her production has been diminished somewhat.

Based on her age, her education and experience, the nature of her upper extremity impairments and restrictions, her current wages, and the accommodations provided by Tyson, the Judge concluded that the bilateral carpal tunnel syndrome from which Ms. Odom suffers has resulted in a 50% occupational disability. Our own review of the evidence leads us to agree that Ms. Odom's capacity to earn has been diminished somewhat by the injury to her upper extremities, but not to the extent of 50%. Instead, we find based on the evidence as a whole that Ms. Odom has sustained a 30% reduction in her earning capacity as the result of bilateral carpal tunnel syndrome and in entitled to permanent partial disability benefits accordingly, subject to the limits of Miss. Code Ann. § 71-3-17 (c)(10 (Rev. 1995).

Insofar as Ms. Odom's cervical injury is concerned, we do not find the evidence sufficient to prove a loss of wage earning capacity over and above or in addition to that payable for the injury to her upper extremities. The Judge's award of permanent partial disability benefits "in recompense of the disabling effects of the work related portion of the claimant's cervical injuries" is therefore vacated and held for naught.
 

The Opinion of the Administrative Judge dated August 20, 1999 is affirmed in all respects, except as to permanent disability. That part of the Judge's Opinion which awards permanent partial disability benefits for the right and left upper extremity is hereby amended to provide that the Employer and Carrier pay sai d benefits for a total period of only 120 weeks, representing a 30% occupational impairment, and that part of the Judge's Opinion which awards permanent partial disability benefits for Ms. Odom's cervical injury is hereby vacated and held for na ught.

SO ORDERED this the 12th day of January, 2000.

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

ATTEST:
Brenda H. Goolsby, Secretary
___________________________
 

MWCC NO. 97 13801-G-2671-D-00

SANDRA ODOM CLAIMANT

VERSUS

TYSON FOODS, INC. EMPLOYER

SELF-INSURED

APPEARING FOR CLAIMANT :
The Honorable Al Chadick, Attorney at Law, Kosciusko, Mississippi
The Honorable P. Shawn Harris, Attorney at Law, Forest, Mississippi

APPEARING FOR EMPLOYER :
The Honorable Dan Baker, Attorney at Law, Jackson, Mississippi
 

The claimant, Sandra Odom, alleges that she sustained work related injuries while in the employ of the Tyson Foods, Inc. (hereinafter "Tyson"). She alleges bilateral carpal tunnel syndrome with onset on April 13, 1997; Tyson found these injuries admittedly compensable. The claimant amended to include injuries to her neck, whole body, and psychological overlay in addition to the carpal tunnel syndrome. The compensability of these additional injuries were denied by the employer The hearing on the merits of the claimant's claims was held in the Scott County Courthouse, Forest, Mississippi, on the 4th day of August, 1999.

At the hearing, the parties stipulated to the following facts

1. The average weekly wage of the claimant at the time of the onset of the alleged injuries was $260.40, with a corresponding compensation rate of $173.65

2. Temporary total disability compensation benefits were paid by Tyson during the following periods:
August 11 through September 13, 1997; May 15 through October 10, 1998; and October 21, 1998 through February 22,1999.

3. The claimant reached maximum medical improvement on February 22, 1999.

The following issues remain for decision of the Administrative Law Judge:

1. The compensability of the claimant's alleged injuries to her neck, whole body and psyche;

2. Assuming arguendo the compensability of all of the claimant's claims, the extent and duration of the claimant's temporary total disability as to each specific injury;

3. Assuming arguendo the compensability of all of the claimant's claims, the extent and nature of permanent disability as to each specific injury, if any, coupled with a determination of loss of wage earning capacity and/or loss of industrial use, if any, resulting from the disability;

4. Whether the claimant is entitled to reasonable and necessary medical treatment at the expense of the employer, specifically the treatment of Dr. Alan Freeland;

5. Penalties and interest, if any.

The claimant, Sandra Odom, is a 40 year old resident of Forest, Scott County, Mississippi. She completed high school at Scott County High School in 1976. She has had benefit of no other education or vocational or technical training.

The claimant testified that she is right hand dominant. She also testified that prior to her employment at Tyson, she had never experienced any physical problems related to her hands, arms, shoulders or neck.

The claimant testified to employment at two employers prior to Tyson. After she graduated from high school, she took a job at the Sunbeam plant in Forest. There she worked on the line for five years adjusting alarms This job required her to take an alarm off a belt on the assembly line, to adjust its volume by using pliers to turn the lever which controlled volume, and to replace it on the belt. She demonstrated the movement required of her right hand and arm with the pliers. It consisted of a twisting motion at the wrist to adjust the volume. She testified that in addition to adjusting alarms, she often packed the previously adjusted alarms and put the boxes on a skid. She testified that all tasks performed at Sunbeam were repetitive in nature. She left Sunbeam after working for five years. Her reason for leaving was her marriage.

Some time later, after her children grew older, she began working at Superior Carbon Products in Walnut Grove, which manufactured alternators. Here she performed two jobs on the line. One job required her to work with a brush, a copper disk, and a type of powder, placing the copper disk in a small groove in the alternator and taping it down using her right hand. The other job required her to operate a welding machine, taking alternators from boxes and placing the alternators in the welding machine, operating the machine by pushing a button, and then re-packing the alternators in boxes. She worked at Superior for four years.

The claimant began her employment at Tyson in 1989. She was initially assigned to the liver department, where she worked for three years. She described the job as picking up livers by hand which come down a chute to a table, placing the livers in one or two pound cups, and packing and taping the cups. After three years, she moved to the stuffing table. At the stuffing table, she placed wrapped giblet parts back into the chicken cavity as the chickens came by on a shackle line. She did this job for a couple of years and then moved to the gib-wrap machine. At this position, which she held for approximately six months, she ran the machine and placed the gizzard in the wrap. The wrap (created by the machine) then went to the next two people on the line where livers and necks were added to the wrap. After leaving the gib-wrap position, the claimant moved into the packing department Her responsibilities during the period of time that she worked in this department, which she characterized as "six or seven months, maybe longer", were to pick up whole chickens out of a vat, put them in a lug ² , move a full lug to the roller bed, and put it on the bed. This is the position the claimant was performing when she was injured.

The claimant testified that she initially noticed pain and numbness in the Fingers of her fight hand, left shoulder pain, and a bit of left hand pain. She reported the injury to her supervisor, Billy Williams, who sent her to the plant nurse, Mary Anderson. Ms. Anderson asked which physician the claimant desired to have treat her. She indicated that she would like to go to Dr. Harrell, her family physician in Forest. She related that she visited with Dr. Harrell, who thought the claimant suffered from carpal tunnel syndrome; he treated her with medication and prescribed light duty work She was placed at the end of the roller bed where the lugs were placed and was required to place ice or CO ₂ on the tops of the hens in the lugs and then push the lug down for the next worker to place a top on the lug. In order to release the ice or CO ₂ , she placed the lug under a chute and pushed a button to release the ice or CO ₂ . She had shoulder trouble with this position and returned to Dr. Harrell.

Dr. Harrell referred the claimant to Dr. Irvin Martin at Rush Medical Center in Meridian. Dr Martin conducted a nerve conduction study, prescribed medication and scheduled surgery on the claimants right hand in August 1997. After surgery she was treated by Dr. Martin with medication ³ , was taken off work for a period, and took physical therapy in Dr. Harrell's office.

When the claimant was released by Dr Martin to return to work, she was placed on a job sorting meat Chicken pieces (breasts, legs, and wings) would come out in front of her, and she was required to put the pieces in bags or boxes. She was allowed to work at her own pace. Nevertheless she continued to have problems. She described these problems to Dr. Martin: she was experiencing shoulder and right arm pain, and left arm pain extending down the extremity from her shoulder. Dr Martin referred her to Dr. Pearson, also at Rush, who treated her with injections and medications. She saw little improvement as a result.

Dr. Pearson referred the claimant to Dr. Malloy, also at Rush. Dr. Malloy performed a cervical MRI and a second nerve conduction study. ⁴ He noted the claimant's need for left carpal tunnel surgery, which he performed After the surgery, Dr Malloy treated the claimant with medication, took her off work, and prescribed a regime of physical therapy involving both upper extremities which she completed at an institution in Forest Then he referred the claimant back to Dr. Pearson.

Dr. Pearson considered the claimant's complaints and performed a cervical myelogram. The claimant had post-myelogram complications and was sent by Dr Pearson to Baptist Hospital in order to have a blood patch repair where the myelogram had invaded. After recovery from the blood patch repair, she saw Dr. Pearson once or twice in February of 1999. He referred the claimant to Dr. Staggs for a functional capacities evaluation and rating. Subsequently Dr Pearson released the claimant on February 2Z 1999, telling her that there was nothing further he could do which would help her. He continued her medications due to her complaints of shoulder, arm and hand pain.

The claimant returned to Tyson in February of 1999 and was placed in the re-work department. Her task there was scooping and weighing gizzards. She used a five pound scoop and filled an 11 pound bag with gizzards and then moved the bag into a box. She described the physical aspects of the task and reported that it was not the weight of the bag or box of gizzards that caused her problems but rather the repetitive scooping and moving of the right hand which caused problems. She complained of the problems to Ms. Anderson and was removed from this position after about six weeks. She was then assigned to make boxes and to do the same re-work job that she had done after returning from her right carpal tunnel surgery. ⁵ She testified that the boxes come out flat and she was required to unfold and shape the box, place it on the line, and put stickers on it. She testified that she could work at her own pace. For a while she rotated from boxes to re-work, performing each task for approximately two and one-half hours. She never performed either of these tasks before she was injured. Recently the claimant was taken off rotation and performs only the box job. She testified that it was her understanding that this move was made at Dr. Pearson's direction.

The claimant testified that she could not perform any of the jobs that she held at Tyson pre-injury because they require continuous movement of her arms. She testified that she could not perform the job that she held at Superior or Sunbeam for the same reason. She testified that even in her current, light duty job at Tyson, her hands hurt and swell. She is currently taking Vioxx for pain, prescribed by Dr Pearson, as well as a muscle relaxer and medication that Pam Thrash in Dr. Harrell's office has prescribed to aid her in sleeping while experiencing arm and shoulder pain. The claimant testified that due to her injury, she is unable to work in her garden, do yard work, sweep, vacuum or mop due to fight shoulder and hand pain. On cross examination, the claimant testified that she had missed three or four days from work since February 23, 1999 because of shoulder pain. For this pain she was treated by Pam Thrash at Dr. Harrel's office. ⁶ She also testified that she had not tried to perform any of the jobs that she had held at Superior or Sunbeam since her release by Dr. Pearson in February of 1999 nor had she given the descriptions of these jobs to her physician in order to obtain his opinion as to whether she was capable of performing these jobs.

The claimant readily admitted that Tyson had done a good job of working with her and her treating physicians to place her in a position that she could perform, with her restrictions. She admitted that after she complained about the gizzard job to Ms. Anderson, Ms. Anderson was able to re-engineer the job so that she did not have to lift the 11 pound bag of gizzards. She reported, however, that lifting was not the cause of her arm pain-it was the scooping motion and the twisting motion moving the gizzards along in a bag or box, "continuously moving my hands, not the weight." Ms. Odom testified that Ms. Anderson had told her that she could work at her own pace on the gizzard job but she was unable to do so because "there are a lot of gizzards coming out and you have to keep up."

The claimant has not looked for employment outside Tyson. She earns the same or greater wages in her current position as she did pre-injury.

Ms. Odom could not return to the pre-injury gizzard cup job or stuffing job because these jobs are no longer performed in the plant.

Mary Anderson, the nurse supervisor in the Tyson plant where the claimant is employed, testified that when an employee suffers an on-the-job injury the employee is to report it to the health office, as the claimant did. Ms. Anderson testified that the claimant has not complained to her about the box room job and that she has observed no inability on the part of the claimant to perform the box room job. Ms. Anderson testified that she and the claimant had a conversation a week prior to the hearing in which the claimant indicated that she liked the box room job and was having no problems.

Ms. Anderson testified that she had contact with Dr. Pearson's office and he had approved the gizzard job, the box room job and the re-work job. Ms. Anderson testified that the claimant was taken off the rotation and placed exclusively in boxes not because of Dr. Pearson's direction but because the position became available, supervisors talked and consulted with the claimant, and the claimant determined to take the position.

Ms. Anderson admitted that Dr. Pearson related that the claimant should 'try to avoid repetitive motion." She candidly testified that "every job in the plant is a repetitive motion job" but at the current (box room) job the claimant can work at her own pace. She testified that she took the claimant from the gizzard job because of the complaints the claimant described and for no other reason.

Dr. Alan Freeland, an orthopaedic surgeon, testified on behalf of the claimant by deposition. Dr. Freeland testified that he first saw the claimant on October 1, 1998 for an independent medical evaluation on referral by claimant's counsel. He took a history of her as a 39 year old, right handed woman who had worked at Tyson for nine and one-half years. She reported gradual onset of bilateral upper extremity pain, reported April 13, 1997. Dr. Ahmed in Forest, Mississippi, performed an EMG and nerve conduction study on July 17, 1997 which demonstrated bilateral carpal tunnel syndrome, worse on the right than on the left with no evidence of axonal loss. A right release had been performed by Dr. Martin on August 15, 1997 and the claimant reported excellent symptomatic relief. Thereafter the claimant had seen a number of physicians and has persistent problems. Dr. Bailey evaluated the claimant's left shoulder, Or Pearson, a pain management specialist, evaluated and treated her, as did Dr. Malloy, a neurosurgeon. Differential diagnosis include left supra spinatus nerve neuropathy, cervical spine discopothy or radiculitis, lower cervical-upper thoracic facet joint syndromes from C6 to T3, myofescial pain, myotesdal pain with multiple trigger points, reflex sympathetic dystrophy, and depression with psychological overlay. These diagnoses were made in the first half of 1998 During this time an MRI of the cervical spine was performed, it demonstrated C5-6 and C6-7 degenerative disk disease and right hemiation at C5-6 Or Malloy reviewed the MRI results and found central disk bulging of the cervical spine but did not rind a pathology which would explain the claimant's left-sided complaints. Or Freeland reported that Dr. Malloy thought a left carpal tunnel release would be most beneficial. This was performed on May 5, 1998. From this surgery the claimant did not experience relief

The claimant reported to Dr Freeland that her pain is well localized to the lateral border of her left shoulder in the lateral scapula region near the supra scapular notch and the lateral portion of the scapular spine, where she reports sharp and aching pain radiating down the posterior aspect of her left arm and the posterior aspect of all of her fingers, although the thumb is spared. The pain is constant upon rest and aggravated with activity. Injections in this area resulted in some relief facet injections from C6 to T3 were performed on February 17, and March 18, 1998.

The physical examination that Dr. Freeland performed revealed full range of motion, extension and flexion of the cervical spine with exacerbation of left shoulder pain on extremes of the motions, specifically in the region of the supra scapular nerve, not the neck. The examination was essentially negative save well localized and severe point tenderness over the supra spinatus area in the region of the supra spinatus notch of the scapula. With this examination, Dr. Freeland developed a provocation sign by objectively reproducing the pain which is the subject of the claimant's subjective complaints. Dr. Freeland considered it to confirm the presence of supra scapular nerve injury.

After completing the physical examination and reviewing the claimant's history and medical reports, he determined the following diagnoses.

• residuals of bilateral carpal tunnel syndrome, both largely resolved;

• supra scapular nerve entrapment at the supra scapular notch and groove of the left scapula;

• multifactorial components of the left shoulder problems, including C6 to T3 facet syndrome, myofascial pain, complex chronic regional pain, or cervical spine radiculopathy.

Dr. Freeland testified that the EMG and nerve conduction studies he requested had been performed on December 7, 1998. Dr Freeland opined that the diagnostic studies revealed the following.

• very mild right distal median sensory slowing without axon loss. ⁷

• completely normal neurophysiologic data left. ⁸

Dr. Freeland testified that the claimant's impairment rating for her bilateral carpal tunnel injuries is five per cent to each upper extremity He opined that the bilateral carpal tunnel injuries are work related.

Dr. Eric Pearson, board certified in anesthesiology and pain management, testified by deposition on behalf of the claimant. Dr. Pearson testified that he First saw the claimant on January 20, 1998, when he took a history from her. On that date, the claimant's primary complaint was left neck and shoulder pain with radiation to the elbow. Her physical examination revealed tenderness along the side of her neck and along her left shoulder as well as her left scapular region. Dr. Pearson's initial impression was that the claimant suffered supra scapular neuralgia, pain in the distribution of the supra scapular nerve, possibly cervical disk disease and complex regional pain syndrome (sometimes denominated as sympathetic nerve pain syndrome or reflex sympathetic dystrophy).

Dr. Pearson saw the claimant ten days later noting that the claimant continued to have pain in the same area with muscle spasm present over the trapezius muscle on the left, which could be indicative of "simple muscular strain versus stiprescepular nerve involvement versus cervical and thoracic facet pain. ⁹ Dr. Pearson performed a suprescapular nerve block on her left side the diagnostic as well as therapeutic purposes. This block only stopped 50% of the pain, a significant portion of pain remained after the block. Since it was Dr Pearson's opinion that relief from the block should have been 100% if the pain was from the supra scapular nerve, he suggested and performed thoracic and cervical facet blocks and physical therapy, including myofascial release and range of motion therapy The claimant was totally pain free after these injections. The injections were repeated on March 18, 1998 with the same result-total pain relief.

Around this time Dr. Pearson had recommended that the claimant's work place level be moved from waist level to mid-chest level in order to relieve some of the strain on her neck and reaching that was associated with her job. This had not occurred.

Pain had returned by April 9, 1998. On that visit, Dr. Pearson recommended a neurologic evaluation in order to rule out cervical radiculopathy. He continued her on Ultram, Robaxin, Cataflam, DaKepin and Klonopin, all for pain. She returned on April 29, 1998. Her pain complaints were the same, but she also complained of some pain in both wrists on this visit She had seen Dr Malloy, a neurosurgeon, in the interim. Dr. Malloy had recommended left carpal tunnel release, and Dr. Pearson concurred. He also recommended psychological testing although he denied that the claimant was experiencing overt psychological problems.

The claimant returned to Dr. Pearson on June 8, 1998. The left carpal tunnel release had been performed and the claimant reported a bit of relief but numbness in her left hand, weakness in her left arm and pain that radiated from her left shoulder to her arm. A physical examination revealed left neck and shoulder tenderness and sensory changes on the left hand and forearm. Dr. Pearson determined that myelogram, and post-myelogram CT scan would help delineate problems arising from the herniated cervical disk at C5-6. She was referred back to Dr. Malloy for this procedure.

The claimant returned to Dr. Pearson on July 28, 1998 with her left sided complaints as well as right wrist pain and numbness in the right hand A physical examination revealed left-sided tenderness and sensory changes in the left arm. He indicated that the sensory changes would be indicative of possible nerve root injury He continued the medications the claimant was on and added Laureate 10 and prescribed EMG and NCI of the left upper extremity. At that time, he concurred in a second opinion that the claimant sought.

The claimant returned to Dr. Pearson because of increased pain in her left shoulder, arm and neck on October 20, 1998. After physical examination and listening to her complaints, Dr. Pearson was concerned about the possibility of cervical radiculopathy. He felt that Dr. Forehand's suggestion of an evaluation by a shoulder surgeon was reasonable and again sought a CT myelogram and psychological testing. On January 20, 1999, Dr. Pearson saw the claimant again and opined that the claimant needed the cervical myelogram and post-myelogram CT and, if no cervical pathology was present, a functional capacity examination.

Dr. Pearson saw the claimant on February 2, 1999 while she was hospitalized for the myelogram, which revealed degenerative changes in the cervical spine, a small fight-sided C6-7 herniation and a small central C5-6 herniation. There was, however, no evidence of nerve root compression or cervical pathology which was causing her left-sided pain.

The claimant's functional capacity examination was performed on February 19, 1999. Dr Pearson saw the claimant again three days later, when her complaints were the same. At this time, Dr. Pearson diagnosed the following.

• cervical disk disease and cervical spondylosis with neck pain, together with a herniated cervical disk that did not explain left arm pain;

• regional myofascial pain disorder involving her trapezius muscles bilaterally, aggravated by activity;

• sleep dysfunction;

• cervical and thoracic facet dysfunction associated with shoulder pain;

• post-carpal tunnel syndrome.

Dr. Pearson testified that he had reviewed the functional capacity examination and noted the following facts illustrated by the examination:

• claimant could work at medium level for an eight hour day;

• claimant participated fully in all tasks;

• consistent in grip strength without obvious malingering;

Dr. Pearson opined that given the claimant's history and the nature of the job that the claimant performed at Tyson the diagnoses of cervical and thoracic facet dysfunction with associated myofascial pain to the shoulders and the neck were work-related. He agreed with the orthopaedic surgeon and deferred to his finding that the bilateral carpal tunnel syndrome and releases were work-ralated. He did not believe that the claimant's cervical disk disease was attributable to the claimant's work activities.

On the claimant's last visit Dr. Pearson stopped ail of the claimant's medications as she had reported that they were not working for her. He prescribed Remeron, an antidepressant which also helps with pain syndrome including myofascial pain.

Dr. Pearson had the claimant evaluated by Dr Lynn Staggs, a psychiatrist at Rush Medical Center, in order to obtain an impairment rating. Dr. Pearson opined that so long as Tyson could provide "medium level [work], no lifting from floor greater than 34 pounds" and "decreased repetition of jobs and rotate jobs" then those jobs would be acceptable. Dr. Pearson approved the claimant for following the regime set forth in Mary Anderson's letter to Dr. Pearson which is made exhibit 2 to the deposition. ¹² The physician approved the claimant for no other job in the plant but noted that other jobs which were within the parameters set forth earlier would be acceptable.

After Dr. Pearson's deposition was taken, he saw the claimant again for treatment on July 14, 1999. ¹³ Dr Pearson noted that the claimant continued to work, but reported her pain had worsened. Dr. Pearson prescribed Skelaxin and Vioxx, kept the claimant off work July 14-16, 1999, and scheduled the claimant for another appointment on September 9, 1999.

Dr. Lynn Staggs, a physiatrist, evaluated the claimant on April 23, 1999. Her impairment rating is as follows:

Permanent Medical Impairment Rating, based upon the Fourth Edition of the Guides to Permanent Impairment, indicates that this examinee is to be rated for mild carpal tunnel syndrome as well as left cervical radiculopathy There is electrodiagnostic evidence of bilateral carpal tunnel syndrome, as well as objective signs for left C5 radiculopathy Combined permanent medical impairment rating, for whole person is 25% based on the following. Mild carpal tunnel syndrome is categorized as 10% upper extremity impairment for each arm. This is converted into a whole person impairment of 6% for each arm. Diagnosis Related Estimates (DES) Cervical Thoracic Impairment Category III is 15%. These are subsequently combined in the combined values chart for whole person impairment and result in a 25% impairment the whole person. She has already been given an impairment rating, for prior carpal tunnel syndrome, the final impairment rating will need to be reevaluated, with prior impairment considered in apportionment.

Exhibit CL-7 is the medical records filed with the Commission. These records are rather comprehensive, and most diagnostic tests and medical/surgical procedures are addressed specifically during the medical testimony. However, these relevant notes merit comment

• Dr. Pearson's note of February 22, 1999 states: "She is to return to work at a medium level and to avoid a repetitive job if possible."

• Dr. Pearson's note of November 20, 1998 states: "She has seen Dr. Freiland (sic) in Jackson, MS, who recommended possible evaluation by shoulder specialist as well as nerve conduction studies of the supra scapular nerve. I think that evaluation of the supra scapular nerve is an excellent idea. Dr Martin's note of January 26, 1998 states: 'As far as her left upper extremity she does have lateral epicondylitis. She also has trigger points of frbromyalgia in her left upper back area."

In this case, the undersigned is faced with both scheduled member injuries and a body as a whole injury, the latter injury which is not admitted by the employer. A brief discussion of the nature of both types of injuries is appropriate here.

The legal standards historically applied by courts of this state in assessing loss of industrial use of a scheduled member are set forth in Christopher D. Cook v. The President Casino and Insurance Company of the State of Pennsylvania , No. 98-CC-00294-COA (June 8, 1999). Speaking through this opinion, the Court of Appeals stated the following:

The Workers' Compensation Act 'arbitrarily schedules the compensation payable for loss of or loss of use of a scheduled member, focusing upon a claimant's functional loss and without regard to loss of wage earning capacity.' Smith [v. Jackson Construction Co.] , 607 So. 2d [1119] at 1126 (Miss. 1992). Certainly this point can be stated no more concisely... ¹⁴

In this case, then, the fact that the claimant is presently employed by her pre-injury employer, Tyson, earning wages which are equal to or greater than her pre-injury wage is not outcome-determinative. Indeed, the factors (in addition to wage loss) that will be considered in determining the extent of the claimant's disability are the following: age, education, work background, the subject injury and impairment, motivation, credibility, sympathy, local economic conditions, and any other factor present in the case that would impact significantly on the claimant's condition.

We must also recognize the fundamental legal principles which are to be applied in determining the nature and extent of permanent disability in ta scheduled member claim, including, but not limited to:

• Can the claimant perform the substantial acts of her usual employment?

• To what extent has the claimant sustained a loss of industrial occupational use to the injured member greater than the medical impairment rating?

• If there is a basis in the evidence for concluding that there is more disability present than is represented by the impairment rating, though less than permanent and total, what considerations justify that conclusion?

When one considers that the claimant's entire work history has required her to use her hands and arms in a repetitive manner and one considers the claimant's testimony that these positions which she held prior to her employ at Tyson, as well as all positions that she held at Tyson prior to her injury, required her to engage in repetitive motion of her upper extremities, one can easily conclude that the claimant cannot perform the "substantial acts" of the claimant's "usual" employment.

There are, indeed, other considerations. Has the claimant sustained a loss of industrial/occupational use to her injured extremities which is greater than her medical impairment ratings? And if so, what support is present in the record for that position? Elements to be considered have been noted elsewhere and will not be reiterated here. in addition to those factors, there is no direct evidence regarding the predictability of post-injury earnings, but inherent in any disability analysis is the question of how long the employment will last following a final decision herein. As the Court of Appeals recently noted in Cooper Lighting HID v. Joseph Brisco, Sr. , No. 1998-WC-01024-COA (issued July 27, 1999):

In all events, the mere fact that the employer is willing, as an accommodation to an injured employee, to make some concession to the employee in terms of job duties in order to permit that employee to return to work is not, of itself, sufficient to prove that the employee has not wen his wage earning capacity permanently diminished. ¹⁵

The claimant has also sustained an injury to her body as a whole resulting from her cervical condition, Although there is one cervical condition from which the claimant suffers that is not work related ¹⁶ , the uncontradicted medical evidence suggests that the remaining cervical conditions are work-related regional myofascial pain disorder involving her trapezius muscles bilaterally and cervical and thoracic facet dysfunction associated with right shoulder pain. Dr Staggs' testimony establishes that the claimant's permanent impairment relative to the claimant's global cervical condition is 15% to the body as a whole, a portion of such impairment most likely related to the non-work related condition. Obviously, the discussion of age, education, work background, the subject injury and impairment, motivation, credibility, sympathy, local economic conditions, and any other factor present in the case that would impact significantly on the claimant's disabling condition, above, join with the characteristic measure of loss of wage earning capacity in order to determine to what extent the claimant has become disabled as a result of her cervical injury.
 

Upon consideration of the lay and expert testimony in this matter, along with documentary evidence and together with the applicable law, the Administrative Law Judge finds as follows:

1. The medical evidence supports the conclusion that the claimant sustained two distinct work-related injuries while employed by Tyson. The first can be characterized as the onset of bilateral carpal tunnel syndrome. The second has resulted in various cervical conditions. Although the employer denies the compensability of the second (cervical) injury, the weight of the medical evidence suggests that both of these injuries are compensable injuries under the Mississippi Workers' Compensation Law, section 71-3-1, et seq. (1972) (as amended), (hereinafter referred to as "the Act".) The preponderance of the evidence in the record does not support the claimant's claim of psychological overlay..

2. As a result of these injuries, the claimant was temporarily disabled for the periods established by the stipulations.- August 11 through September 13, 1997, May 15 through October 10, 1998; and October 21, 1998 through February 22, 1999. During her periods of temporary disability, the claimant was paid $173.65 per week. The claimant does not claim any other periods of temporary total disability.

3. The claimant has sustained a 10% permanent medical impairment rating to each of her upper extremities. In addition, she has sustained a 15% permanent medical impairment rating for a legion of cervical conditions, although not all of her cervical conditions are work-related.

4. With respect to the scheduled member injuries, the weight of the expert testimony compels the conclusion that the claimant has sustained a functional loss which is far in excess of her medical impairment rating. This conclusion is reached with careful attention to the following facts which are established by expert testimony, as well as by lay testimony.

• The claimant can no longer perform the tasks required to accomplish the job that she performed at the time of onset of her injuries.

• Of numerous positions available to be performed at Tyson, the claimant's physician identified only three (3) positions that the claimant could perform at the time she reached maximum medical improvement, although he indicated that other suitable jobs might be identified by Tyson. He recommended a decrease in repetitive movement and rotation of jobs. The claimant notified the plant nurse that she could not effectively perform one of these three positions without pain, apparently Ms. Anderson believed the claimant and her complaints, as she relieved the claimant of this job.

• The claimant should refrain from attempting to accomplish the following tasks: repetitive use of the upper extremities and lifting in excess of 34 pounds.

• The claimant should rotate jobs during the eight hour day and not work longer than an eight hour shift.

The claimant is a 40 year old woman with a 12th grade education. There is no evidence in the record relative to the local economic conditions where the claimant lives and works. There is little evidence that the claimant is highly motivated or extremely intelligent, her testimony, however, appears credible and consistent, and she is certainly a sympathetic character. Her limited work history reveals that her experience is exclusively working with her hands on a manufacturing line, her description of each of these jobs demonstrates that each requires repetitive motion of her upper extremities. She has not looked for employment opportunities since she has returned to Tyson after reaching maximum medical improvement.

Of medical significance are the limitations and restrictions which have resulted to the claimant post injury Dr Lynn Staggs, a physiatrist, rated the claimant as having a permanent medical impairment of 10% for each upper extremity, which, combined with the rating for her left Cervical radiculopathy (Cervical Thoracic Impairment category III for a 15% impairment to the body as a whole), computes to a 25% permanent impairment rating to the body as a whole. Limitations and restrictions placed on the claimant's ability to perform her work, in addition to the permanent medical impairment rating, are significant. Ms. Odom's treating physician issued the following limitations and restrictions. medium level [work], no lifting from floor greater than 34 pounds, limiting repetition of jobs, and rotating jobs.

In this particular Tyson plant, three jobs were approved for the claimant by her treating physician: the gizzard job, the re-work job, and the box job. The physician did say, however, that other jobs in the plant would most likely be acceptable if in doing the job the claimant was required to lift no greater than 34 pounds from floor to waist, if there was limited repetition on the job, and if the claimant could rotate among such a job and other jobs so that her physical activities would not be repetitive and continuous throughout the eight hour day. After the claimant expressed difficulty with the gizzard job to the nurse, Ms. Anderson, this job was modified for her and then she was removed from it. Currently she is performing the box job but she is not rotating among jobs. The claimant testified that she believes that she is doing the box job exclusively on order of her physician. Ms Anderson testified that the claimant is performing this job exclusively as a result of her own choice, approved by her supervisor. Regardless of which woman's testimony is factually accurate, it is clear that the claimant does not rotate among jobs and is performing a job that requires repetitive motion, although she may work at her own pace.

5. The medical testimony does not contribute any limitations or restrictions specifically to the claimants cervical injury, although the process of the claimant's recovery from this injury is no doubt impacted favorably by the implementation of the limitations. Yet as is acknowledged by all, the claimant has sustained no actual loss of wage earning capacity. It is universally recognized that actual post-injury wages create a presumption of wage earning capacity post-injury. In this case, the presumption is that the claimant's post-injury wage earning capacity is commensurate with the claimant's pre-injury wage earning capacity. That presumption is, of course, rebuttable. In addition to the factors which would rebut the presumption that are denominated by Vardaman Dunn in his treatise, Mississippi Workers' Compensation, section 67 (3" ad., 1982), the Court of Appeals in Cooper Lighting HID v. Joseph Brisco, Sr , supra, has recognized that the presumption is not determinative in all events, as here when substantial modifications and accommodations have been made by the employer (to its credit) on behalf of the claimant in order for her to continue her employment.

6. The claimant's average weekly wage at the time of the onset of her injuries was $260.40 as stipulated by the parties.

7. The claimant urges that she is entitled to medical services and supplies provided by Dr. Alan Freeland of University Orthopaedic Clinic. Yet it appears that the claimant chose her physician initially, with Ms. Anderson allowing her that option, so that her choice was exhausted prior to the time that she sought the (unauthorized) second opinion by Dr. Freeland. It should be noted that Dr. Pearson, the claimants primary treating physician at that time, thought that the second opinion was warranted. Nevertheless, the claimant, while being treated by Dr. Pearson, cannot seek additional evaluations or treatments and expect that they will be provided at the expense of the employer unless the employer agrees or unless the Commission has authorized same.

That being said, it does not appear that the claimant has ever been evaluated by a shoulder specialist. Dr. Pearson has opined that by injection he has determined to his satisfaction that the claimant's problems are not those about which Dr. Freeland reached his impression that the evaluation by a shoulder specialist would be warranted. However, considering that the claimant continues with pain, it seems reasonable that an evaluation by a shoulder specialist is reasonable and should be sought on behalf of the claimant at the expense of the employer.

IT IS, THEREFORE, ORDERED AND ADJUDGED that the employer and carrier provide to the claimant as follows:

1. Temporary disability compensation in the amount of $173.65 per week for the following periods: August 11 through September 13, 1997, May 15 through October 10, 1998; and October 21, 1998 through February 22, 1999 with credit for sums previously paid;

2. Permanent partial disability compensation in the amount of $173.65 per week commencing February 23, 1999 for a period of 100 weeks for the right upper extremity, with credit for any portion of the impairment rating previously paid by the employer;

3. Permanent partial disability compensation in the amount of $173.65 per week commencing after the payment of disability compensation for the right upper extremity, so as to be paid consecutively, for a period of 100 weeks for the left upper extremity, with credit for and portion of the impairment rating previously paid by the employer;

4. Permanent partial disability compensation in the amount of $10.00 per week commencing after the conclusion of payment of previously awarded compensation to be paid for the remaining 250 weeks in recompense of the disabling effects of the work related portion of the claimant's cervical injuries;

5. Provide to the claimant medical treatment, services and supplies pursuant to Miss. Code Ann. § 71-3-15 (1972) (as amended) for such period as the nature of the bilateral carpal tunnel and cervical injuries or the process of the claimant's recovery may require, such fees and charges to be limited to such charges as prevail in the same community for similar treatment and to be subject to regulation by the Commission and its fee schedule;

6. Specifically, provide a shoulder evaluation by Dr William Geissler of University Orthopaedic Clinic at the expense of the employer;

7. Penalties on unpaid amounts of compensation as appropriate and authorized by Miss. Code Ann. § 71-3-37 (1972) and interest at the legal rate.

8. The claimant's claim for psychological overlay be, and the same hereby is denied.

SO ORDERED this the 20th day of August, 1999.

LYDIA QUARLES
ADMINISTRATIVE JUDGE

ATTEST:
Brenda H. Goolsby, Secretary
___________________________

1. Where a person receives two "separate and distinct injuries" as a result of their employment, even though arising out of the same accident or series of events, permanent disability benefits may be awarded separately for each such injury. General Elec. Co. v. McKinnon , 507 So.2d 363, 366-367 (Miss. 1987).

2. The claimant described a lug as a plastic tub.

3. The claimant testified that the medications were for pain and rest, and she also received anti-inflammatories and muscle relaxers.

4. The claimant testified that it was possible that Dr. Pearson may have performed the MRI.

5. This position, described previously, is the meat sorting position which allowed her to work at her own pace.

6. The claimant testified that she sought medical assistance from Dr. Harrell instead of Dr. Pearson because Dr. Pearson said that he could do nothing more to help her.

7. Dr. Freeland opined that this loss is an expected residual of prior carpal tunnel syndrome but the changes are minor and as a result no recurrent or ongoing compression is suspected.

8. Needle EMG of the left arm, emphasizing shoulder girdle muscles, is normal, without evidence of supra scapular neuropathy or radiculopathy.

9. Deposition of Dr. Pearson, p. 9, lines 10-12.

10. Id., p. 2, lines 10-12.

11. Id., p. 28, lines 2-3.

12. These jobs were aligning boxes, re-worker, and gizzard packer.

13. See exhibit CL-4, a Therapeutic Log Sheet referencing this visit.

14. Cook , id at 8. Notably, Justice Southwick, dissenting from the majority opinion in Cook , does not dissent from the legal conclusion that in determining disability in a scheduled member case, the focus is upon a claimant's functional loss without regard to loss of wage-earning capacity.

15. The Court of Appeals, in making this statement, cited Larson's section 57.34 and O'Neal v. Multi-Purpose Mfg. Co. , 243 Miss. 775, 140 So.2d 860 (1962).

16. Cervical disk disease and cervical spondylosis with neck pain, together with herniated cervical disk.