MWCC NO. 97-12144-G-3105
ALGER MARIE LEE CLAIMANT
vs.
EAST MISSISSIPPI STATE HOSPITAL
EMPLOYER
AND
MISSISSIPPI STATE AGENCIES WORKERS'
COMPENSATION TRUST
CARRIER
REPRESENTING CLAIMANT:
Will Parker, Esquire, Meridian, MS
REPRESENTING EMPLOYER/CARRIER:
Richard Edmonson, Jr., Esquire, Jackson,
MS
This matter was heard by the Commission
on July 31, 2000 pursuant to the Claimant's Petition for Review. In an
Order dated May 4, 2000 the Administrative Judge awarded the Claimant permanent
partial disability benefits for what she determined was a 10% permanent
loss of wage earning capacity. The Claimant argues now that her permanent
disability is greater, even approaching total, while the Employer/Carrier
claims the Administrative Judge's determination is well supported and should
be affirmed.
The Claimant in this case is approximately 63 years old. She completed the eight grade in school and later obtained a G. E. D. in 1974. Her vocational history includes work in a shipping department, work in a garment factory, work as a baby sitter, work as a surgical instrument cleaner in a hospital, in addition to over 20 years of service with East Mississippi State Hospital. On July 7, 1997, while working for East Mississippi, Ms. Lee suffered an admittedly compensable back injury. Her average weekly wage at the time was $381.11.
She ultimately underwent surgery on her back and she continues to complain of lower back and right leg pain, particularly after prolonged walking or standing. She has been seen and/or treated by several physicians. Her medical, or physical, impairment has been rated anywhere from 5 % to 20%, and she is deemed physically capable of performing light to medium duty work.
Ms. Lee tried unsuccessfully to return to her job at East Mississippi State Hospital, and had made sporadic efforts to find work elsewhere, but without success. Ms. Lee has stated that she would like to return to work in some capacity consistent with her limitations and restrictions.
When we consider the whole of the evidence, it seems clear to us that Ms. Lee is not totally disabled, and is in fact willing and able to maintain gainful employment. With a more concerted effort, we feel Ms. Lee should be able to obtain gainful employment. However, her education, experience and restrictions suggest to us her earning capacity is likely to be diminished as a result of this injury.
The Administrative Judge determined that Ms. Lee has suffered a 15 % loss of wage earning capacity because of her injury. We feel her loss is approximately 30% and we hereby amend the Order of Administrative Judge accordingly. The Employer/Carrier should therefore pay the Claimant benefits for a 30% permanent partial disability pursuant to Miss. Code Ann. §71-3-17(c)(25) (Rev. 1995).1 In all other respects, the Order of Administrative Judge is affirmed.
SO ORDERED this the 2nd day of August, 2000.
MISSISSIPPI WORKERS' COMPENSATION COMMISSION
Barrett Smith
Barney Schoby
ATTEST:
JoAnn McDonald, Secretary
___________________________
MWCC No. 97 12144-G-3105
ALGER MARIE LEE CLAIMANT
vs.
EAST MISSISSIPPI STATE HOSPITAL
EMPLOYER
AND
MISSISSIPPI STATE AGENCIES WORKERS'
COMPENSATION
CARRIER
REPRESENTING THE CLAIMANT:
Mr. Will Parker, Attorney at Law, Meridian,
Mississippi
REPRESENTING THE EMPLOYER-CARRIER:
Mr. Richard Edmondson, Jr., Attorney at
Law, Jackson, Mississippi
Claimant alleged that on July 7, 1997,
she injured her back while working for the Employer. The Employer-Carrier
admitted compensability and paid medical expenses and temporary disability
benefits. The hearing was held at the Lauderdale County Courthouse in Meridian,
Mississippi, on January 12, 2000.
1. A work-related accident occurred on July 7, 1997, injuring Claimant's back.
2. Claimant's average weekly wage on the date of the work accident was $381.11.
3. The Employer-Carrier paid temporary total disability benefits in the amount of $13,109.16 from July 22, 1997, until August 17, 1998.
4. There is no remaining issue to be decided regarding the reasonableness and necessity of medical treatment. The parties agreed that Dr. Capel's evaluation was not the financial responsibility of the Employer-Carrier.
5. The parties agreed that Claimant has reached maximum medical improvement, but there was no agreement reached as to the date.
6. Claimant returned to work on the following
dates: August 17, 18, 19, 22, and 25 of 1998. Claimant's last date worked
for the Employer in this matter was August 25, 1998.
1. The existence and extent of temporary disability attributable to the work accident.
2. The existence and extent of permanent disability attributable to the work accident.
3. Whether Claimant is entitled to recover
penalties and interest on disability payments not timely made.
Claimant is a 63-year-old resident of Lauderdale County, Mississippi, with an eighth grade education and Certificate of G.E.D. earned in 1974. Claimant has worked in a shipping department, in a garment factory, as a baby sitter, and as a surgical instrument cleaner at a hospital. Claimant testified she worked at the Employer from 1975 until 1986, then returned to work at the Employer in 1987 and worked there until her work accident in 1997. In 1987, Claimant began working in the Community Services Department as a Direct Care Worker. Claimant stated she was later promoted to Direct Care Alternate Supervisor.
In her position as a Direct Care Worker and Supervisor, Claimant stated she had to cook and clean for eight (8) to twelve (12) patients living in the Community Services Home. She said she was required to vacuum, mop, sweep, and clean bathrooms. Claimant also said that patients sometimes fought each other and that she was required to separate them and hold them down until help could arrive from the hospital. Claimant recalled that the hospital was two (2) miles away and responses to requests for assistance took a twenty (20) to thirty (30) minutes.
Claimant testified that on July 7, 1997, she hurt her back while working at the Community Services Home. Claimant stated she eventually underwent back surgery; however, Claimant asserted her lower back and right leg still hurt even after the surgery. Claimant claimed that any extensive walking or standing caused her pain. She said she returned to work at the Employer in the same position for approximately five days, but she said she had to leave due to her constant pain.
Claimant testified that on her first day of returning to work, two (2) patients were arguing and a co-worker had to separate them. Claimant said this incident was reported to the hospital. However, Claimant felt that had the altercation occurred while she was working alone at the Community Services Home, she would not have been physically able to handle the situation, Claimant testified that on her last day of working for the Employer in August 1998, she called her supervisor, Jennifer Higgason, and reported that she could no longer work due to her pain.
Claimant asserted that she could no longer perform the duties required of her as a Direct Care Worker/Supervisor for the Employer. She felt that any physical activity aggravated her leg and back pain. Claimant agreed that the Community Services Department was easier than other wards, but she was concerned that she would not physically be able to handle any altercations that may arise between the patients.
Claimant testified that since leaving the Employer in August 1998, she has searched for employment at various places including retail stores, the state unemployment office, restaurants, and a convalescent home. In all, Claimant has sought for employment at approximately fifteen (15) places without success. Claimant stated she performed her job search in July, August, and October 1999. Claimant admitted she wrote a letter of retirement on December 31, 1998, which was entered as Exhibit 12. That letter indicated Claimant was retiring from the Employer effective December 31, 1998. However, at the hearing, Claimant testified she was not receiving retirement benefits and wished to return to work.
Ms. Dorothy Sweeney, former Director or Nursing and Community Services at the Employer from 1975 until 1996, testified for the Claimant.2 She stated Claimant worked under her supervision for approximately ten (10) years while at the Employer. She said Claimant was an excellent employee. Sweeney described the Community Services Division of the Employer as including a half-way house, group home, and training unit for chemically dependant patients and/or patients with mental difficulties. She confirmed that the Employer is a mental hospital which owns and operates the homes and training units in the Community Services Department. These homes and training units are scattered throughout Meridian.
Sweeney stated that usually there was one Direct Care Worker per Community Services Home who usually worked alone. She confirmed the patients in the homes were usually on medication and could sometimes become violent. Sweeney described the Direct Care Worker responsibilities as caring for patients, supervising chores performed by patients, and dispensing medication. She agreed patients would art times become unruly and physically agitated. She stated that Direct Care Workers also had household duties such as cooking, cleaning, and vacuuming.
Ms. Jennifer Higgason testified for the Employer-Carrier. Higgason works in the Community Services Department at the Employer and has been Assistant Director of Nurses for over one (1) year. Having worked at the Employer before being promoted to Assistant Director, Higgason stated she knew Claimant and worked with Claimant before Claimant's work accident in 1997. Higgason described the job duties of a Direct Care Worker as assisting patients, insuring patients performed the required chores, caring for patients' daily needs, preparing one (1) meal per shift, assisting with cleaning at the homes, and attending activities with patients. She stated that the one (1) meal preparation required of a Direct Care Worker was for a maximum of twelve (12) patients.
Higgason described Claimant as a good worker. She recalled Claimant returning to work in August 1998, at which time Higgason said she met with Claimant and Melanie Howard to review Claimant's job description and duties. Higgason testified Claimant worked for approximately a week and then did not return to work again. Since she had no conversation with Claimant, Higgason did not know why Claimant quit working for the Employer.
Higgason was unaware of any altercations taking place at the home where Claimant worked. However, she testified that the Direct Care Workers are instructed to not physically intervene in any altercations between patients, to call and report the incident, and to request assistance. Higgason stated there were no altercations reported by Claimant at her home.
Ms. Melanie Howard, Director of Nurses, testified for the Employer-Carrier. Howard confirmed that she was Higgason's Supervisor and has been working with the Employer for approximately eleven (11) years. Howard stated she worked with Claimant but that Claimant's direct supervisor was Higgason. Howard confirmed that Exhibit 9 contained the job responsibilities of Direct Care Workers such as Claimant. She noted that these were duties signed by Claimant on August 10, 1998.
Howard stated Claimant signed and dated the forms in Exhibit 9 at the meeting which occurred when Claimant returned to work in 1998. Howard testified that at the meeting they discussed Claimant's restrictions to insure Claimant could perform the job duties required of the position to which she was returning. She described Claimant as a good and dependable worker.
Howard testified she prepared and sent the memorandum entered as Exhibit 10 after checking Claimant's physical restrictions against the job responsibilities of a Direct Care Alternate Supervisor. She recited the physical restrictions of Claimant and stated that Claimant would continue to perform the regular duties, The memorandum also mentions that a meeting was set with Claimant for the next Monday, August 9, 1998, with a notation that the Claimant would be given a copy of the duties at that meeting.
Howard testified she also sent another memorandum on September 1, 1998, regarding Claimant's return to work in August 1998. (Exhibit 13) Howard noted that out of the eleven (11) days Claimant was scheduled to work, Claimant only worked three (3) full days and two (2) half days. Howard testified she did not know why Claimant quit working, and she had no communications from Claimant about a termination. She stated Claimant did not report any physical problems performing job duties after she returned to work in August 1998.
Howard agreed with Sweeney's testimony regarding the Direct Care Worker's Job requirements. Howard admitted that a vast majority of the patients in the homes were diagnosed as being schizophrenic. She agreed that Direct Care Workers worked alone with the patients in the homes. However, Howard stated that during her tenure of working with Claimant, she was unaware of any physical altercations requiring intervention. Howard testified that in reviewing Claimant's physical restrictions and the job responsibilities, she did not feel that any of the job duties were outside Claimant's physical restrictions.
The records of the Immediate Care Clinic show Claimant was seen on July 28, 1997, for complaints of pain in her lower back, right leg, and lower stomach area. The diagnosis was a lower back strain with sciatic nerve irritation. Claimant was treated with medication.
Dr. Donald F. Pringle with the Family Practice Department of Rush Medical Group began treating Claimant in December 1997. On August 24, 1998, he noted Claimant stopped working two (2) days prior saying that she could not "keep up with it." Claimant denied having lower back pain, but she reported muscle spasms in her back. While he prescribed medication for Claimant, he noted, "I don't know what else I can do for this woman." He continued to treat Claimant for her diabetes, but he referred her to another physician for a disability rating. In May 1998, Dr. Pringle prescribed medication for the mild muscle spasms in Claimant's back.
On September 1, 1998, Dr. Pringle gave Claimant a note indicating only that Claimant felt she was unable to work. He stated that he was not qualified to opine on Claimant's disability. He saw Claimant again on September 21, 1998, but did not treat Claimant for her back problems.
The medical records of the Rush Foundation Hospital contain an MRI dated August 4, 1997, which showed facet and ligamentous hypertrophy at several levels in the lower back with evidence of degenerative disc disease and a large central disc extrusion at the L4-5 level and a disc bulge at L5-1 level. There was also a result sheet from a motor nerve conduction study taken August 4, 1997, with essentially normal results except for minimal findings possibly compatible with mild polyneuropathy. These records indicate Claimant was admitted to the hospital for a partial hemilaminectomy at the L4-5 on the right with an associated L4-5 diskectomy on August 5, 1997. This operation was performed by Dr. Orhan Ilercil.
Claimant was also admitted to the hospital on February 4, 1998, for complaints of lower back pain radiating into her right leg. There was an evaluation by Dr. Lynn Staggs on January 12, 1999. Dr. Staggs diagnosed Claimant with back pain status post lumbar diskectomy with a permanent medical impairment of twenty percent (20%) to the body as a whole. However, another record indicates Dr. Staggs gave Claimant a 5 % permanent medical impairment and noted that Claimant could perform in a light/medium category of work.
Dr. Neal Capel, orthopedic surgeon, saw Claimant for a medical examination on August 4, 1999. After evaluating Claimant, performing a physical examination, and reviewing diagnostic studies, Dr. Capel diagnosed Claimant with a herniated disc at the L4-5, radiculopathy in the right lower extremity with a mild nerve root fixation secondary to adhesions and scars, chronic mechanical low back pain associated with degenerative changes, and some psycho-social elements aggravating the lower back complaints of pain.
Dr. Capel opined Claimant had a permanent medical impairment of ten percent (10 %) to the whole person. He also decided Claimant's entire disability was related to her work accident. Dr. Capel did not feel Claimant could return to work in her previous position at the Employer since it involved housework and managing potentially disorderly patients. He stated that due to Claimant's age, her work potential was "markedly restricted" and that Claimant was basically unemployable. He opined that Claimant was at maximum medical improvement.
Dr. Orhan Ilercil, neurosurgeon with the Rush Medical Group, began treating Claimant on July 31, 1997, for complaints of pain in Claimant's back and lower extremities. At that time, Dr. Ilercil took Claimant off work and ordered diagnostic studies. On August 5, 1997, Dr. Ilercil performed a lumbar laminectomy and diskectomy. He continued to treat Claimant into 1998. Dr. Ilercil noted that Claimant had a stable post-operative course complicated somewhat by a superficial wound infection which later resolved.
On November 21, 1997, Dr. Ilercil felt Claimant was approaching maximum medical improvement: however, he ordered a Functional Capacity Evaluation to determine Claimant's work capacity, After the Functional Capacity Evaluation was completed November 24, 1997, the next record of treatment by Dr. Ilercil was April 24, 1998, at which time Claimant was complaining of lower back pain. Dr, Ilercil found no objective evidence of muscular spasms and no evidence of ongoing lumbar radiculopathy or weakness. Hie did not recommend any additional neurosurgical intervention and referred Claimant back to her general physician.
Dr. Ilercil saw Claimant two (2) additional times in October 1998. He felt Claimant was suffering from back pain secondary to degenerative lumbar spondylitic change. He ordered and reviewed an MRI, which he stated did not show a need for additional surgical intervention. He recommended a second neurosurgical opinion or pain treatment. He saw no indication for neurosurgical intervention nor did he see signs of any progressive neurologic deficit. Dr. Ilercil noted, "Her neurologic examination is unremarkable and there are no nerve root tension signs. She ambulates without any reservation and transfers to and from a sitting position without difficulty." Dr. Ilercil released Claimant from his care on October 30, 1998.
A Functional Capacity Evaluation was conducted on November 24, 1997, upon the request of Dr. Ilercil. The summary of findings states that Claimant could perform in the light/medium work category. That evaluation also notes that Claimant's position as a Direct Care Worker required a light level of work based upon a job description by Claimant's Supervisor. The Functional Capacity Evaluation found that Claimant could occasionally lift from the floor to the waist of up to thirty-five (35) pounds with seventeen and half (17 1/2) pounds frequently, lift from the waist to the overhead of up to twenty (20) pounds occasionally and ten (10) pounds frequently, carry up to twenty-five (25) pounds occasionally and twelve and a half (12 1/2) pounds frequently, and push and pull up to seventy-five (75) pounds occasionally and thirty-seven and a half (37 ½) pounds frequently.
Dr. Eric J. Pearson with the Pain Management Clinic initially saw Claimant on February 4, 1998, and noted Claimant's complaints of lower back pain with some right lower extremity pain. He performed a physical examination and reviewed the MRI and nerve conduction studies dated August 1997, Dr. Pearson diagnosed Claimant with degenerative disc disease and lumbar facet dysfunction with biomechanical low back pain. He wrote,
Dr. Pearson did not see Claimant again until December 3, 1998, for her continued complaints of pain in her lower back with some radiation into the right leg. He noted Claimant's medical history of diabetes, obesity and tobacco use. He diagnosed Claimant with lumbosacral disc disease with degenerative changes of the lumbar spine including facet dysfunction. He felt those changes were consistent with a chronic arthritic state. He noted that Claimant's obesity and deconditioning were complicating her pain problems. He wrote, "I believe that her primarily [sic] pain is biomechanical from the arthritic degenerative changes of her lumbar spine."
Dr. Pearson observed that Claimant had clear pain behavior during the examination and that Claimant's secondary issues were unclear. He would not take Claimant off work based upon the history of her work accident. He felt that the work accident was consistent with her previous diagnosis of herniated disc, which he felt had been corrected.
Dr. Pearson further noted that he would
not take her off work "based on her degenerative changes of the upper lumbar
spine because these changes do not relate to the specific injury." While
Dr. Pearson felt Claimant could be a candidate for long-term disability,
he did not feel Claimant's disability was related to her work accident
but rather related to her degenerative changes. He released Claimant to
return to her primary care physician.
I base the following findings on a preponderance of the evidence, including medical proof as required by the Mississippi Workers' Compensation Act:
1. Claimant had a work accident on July 7, 1997, injuring her back, as stipulated.
2. As agreed, Claimant's average weekly wage on the date of the work accident was $381.11.
3. There is no remaining issue to be decided regarding the reasonableness and necessity of medical treatment.
4. Claimant reached maximum medical improvement on February 4, 1998, in accordance with Dr. Pearson's opinion. Although Dr. Ilercil, Claimant's treating surgeon, felt Claimant was "approaching" maximum medical improvement in November 1997, he did not see Claimant again until April 1998. Dr. Pearson was Claimant's pain management physician, and he reviewed the medical records and Functional Capacity Examination before specifically finding Claimant to be at maximum medical improvement on February 4, 1998.
5. Claimant was paid temporary total disability from July 22, 1997, until August 17, 1998. As a result of my previous finding concerning Claimant's maximum medical improvement date, no further temporary disability is owed by the Employer-Carrier.
6. As to permanent disability, Claimant must prove that she suffered a physical injury and a loss wage-earning capacity. Claimant has met her burden of proof that she has suffered a physical injury from her July 7, 1997, work accident. As to loss of wage earning capacity, Claimant conducted a job search and attempted to return to work at the Employer for approximately one (1) week in August 1998. Based upon the evidence as a whole, including Claimant's age, work history, education, job search and medical history, I find Claimant has sustained a 15% loss of wage-earning capacity due to her work accident.
7. Claimant is entitled to recover penalties and interest as provided by the Act on any installments of disability not timely paid.
8. The Employer-Carrier offered Exhibit
ID-A cat the hearing and Exhibits ID-C and ID-D after the hearing. The
Claimant objected to those exhibits. It is hereby ordered that Exhibit
ID-A is not admitted into evidence on the grounds of non-compliance with
Procedural Rule 9. In addition, Exhibits ID-C and ID-D, offered after the
hearing was held, are likewise not admitted into evidence. These exhibits
were not properly and timely offered at the merit hearing although the
Employer-Carrier was aware of the existence of these documents. In addition,
the materials contain evidence which is not relevant and also evidence
which, at this late point, cannot be refuted or rebutted by Claimant. Moreover,
a careful review of all three exhibits convinces me that had these exhibits
been admitted into evidence, my findings and decisions would not have changed.
IT IS, THEREFORE, ORDERED AND ADJUDGED that the Employer-Carrier pay and provide workers' compensation benefits to Claimant as follows:
1. Permanent partial disability benefits in the amount of $38.13 per week beginning on February 5, 1998, and continuing for a period of 450 weeks in accordance with Miss. Code Ann. Section 71-3-7(c)(25) (Rev. 1995). There shall be added to each installment of compensation not timely paid the equivalent of ten percent (10%) thereof as provided in Miss. Code Ann. Section 71-3-37(5) (Rev. 1995) together with interest at the legal rate from and after the date the petition was filed. Employer-Carrier is entitled to proper credit for any such payments of compensation heretofore made to Claimant.
2. Provide all reasonable and necessary medical services and supplies as required by the nature of the Claimant's injury and the process of her recovery therefrom in accordance with Miss. Code Ann. Section 71-3-15 (Rev. 1995) and the Medical Fee Schedule.
SO ORDERED this the 4th day of May, 2000.
TAMMY GREEN HARTHCOCK
ADMINISTRATIVE JUDGE
ATTEST:
Brenda H. Goolsby, Secretary
___________________________
1. As also provided in this section, this determination is "subject to reconsideration of the degree of such impairment by the commission on its own motion or upon application of any party in interest" if the facts warrant and if jurisdiction over the claim has not been lost by passage of the applicable statute of limitations or other cause.
2. Sweeney occupied the same position that Melanie Howard now occupies.