MWCC NO. 97-00216-F-9024
ELMER L. REA CLAMIANT
vs.
RUST ENGINEERING
EMPLOYER
AND
LIBERTY MUTUAL INSURANCE CO.
CARRIER
APPEARING FOR CLAIMANT:
Honorable Gary L. Carnathan, Attorney at Law, Tupelo, Mississippi
APPEARING FOR DEFENDANTS:
Honorable Keith Pearson, Attorney at Law, Oxford,
Mississippi
The Commission heard the above styled cause on June 12, 2000 in the offices of the Mississippi Workers' Compensation Commission in Jackson, Mississippi on Claimant's "Notice of Appeal".
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 August 31, 1999.
SO ORDERED, this the 13th day of June, 2000.
MISSISSIPPI WORKERS' COMPENSATION COMMISSION
BY: Ben Smith
Barney Schoby
COMMISSIONERS
ATTEST:
Brenda H. Goolsby, Secretary
___________________________
MWCC No. 97 002164-9024
ELMER L. REA CLAIMANT
vs.
RUST ENGINEERING
EMPLOYER
AND
LIBERTY MUTUAL INSURANCE CO.
CARRIER
APPEARING FOR CLAIMANT:
Honorable Gary Lee Carnathan, Attorney at Law,
Tupelo, Mississippi
APPEARING FOR DEFENDANTS:
Honorable George E. Read, Attorney at Law, Oxford,
Mississippi
The claimant filed a Petition to Controvert on
January 6, 1997, alleging that he sustained a work-related injury to his
left leg on July 5, 1996. The employer and carrier initially denied the
injury, but subsequently accepted the claimant's claim for benefits for
his injury to his left leg. The claimant filed an Amended Petition to Controvert
on January 20, 1998, alleging that on July 5, 1996, he received a workrelated
injury to his left leg and back. The employer and carrier filed an Amended
Answer on January 29, 1998, admitting that the claimant had injured his
left leg, but denying any injury to his back. A hearing was held in the
Monroe County Courthouse in Aberdeen, Mississippi on June 29, 1999.
1. Claimant's average weekly wage on the date of injury was $559.99.
2. Claimant suffered a compensable injury to his
left leg on July 5, 1996.
1. Whether or not the claimant suffered a work-related injury to his back on July 5, 1996.
2. The existence and extent of permanent disability attributable to the injury.
3. The reasonableness and necessity of the medical
treatment of Dr. Cannella.
A hearing was held in this matter on June 29, 1999, at the Monroe County Courthouse in Aberdeen, Mississippi. The claimant testified on his own behalf. The employer/carrier called Eddie Harris as a witness. The following documents were offered into evidence as general exhibits:
Claimant testified that he sustained a work-related injury on July 5, 1996, while in the course and scope of his employment with Rust Engineering. He was working on pipes throughout the Vista Chemical building, when he slipped and fell. Claimant testified that he fell on his back, landing on some beams and lumber behind him. He climbed to a higher beam and sat for a couple of hours. He then left work and went to Dr. Arthur Brown, a general practitioner, in Aberdeen, Mississippi. Claimant testified that he did not work the next two (2) days, which were Saturday and Sunday but did report to work on Monday. Claimant attempted to work, but eventually had to see the company nurse for his leg. He testified that the safety guy, whom he later identified as Eddie Harris, the employer's representative at the hearing came by and looked at his leg. He said either Eddie Harris or some other employee helped him to his truck so he could see Dr. Brown. Dr. Brown sent claimant to the hospital, where he remained for five (5) or six (6) days.
Claimant testified that after his release from the hospital he returned to work. He did light duty work for a short period of time, then left his employment at Rust Engineering. Claimant could not remember the exact reason for his departure from Rust Engineering, but thought he left because he was told he wasn't needed anymore. Later claimant acknowledged that Rust Engineering had contacted him on several occasions about work on other projects they had going on.
Claimant testified that after he left Rust Engineering he got a job about two (2) months later at Rebel Engineering as an electrician. He did-this work for about three (3) weeks and was paid about $9.00 per hour. The next month he got a job at Lackey Electric in Hamilton, Mississippi, as an electrician. He was a supervisor and was paid about $12.00 per hour. He did this job until he had back surgery in October, 1997.
Claimant testified that he continued to see Dr. Brown for his back and leg after his release from the hospital in July, 1996. - He saw Dr. Brown several times in 1996 and 1997. Claimant said he was also seen at the Singing River Hospital in Pascagoula, Mississippi in the fall of 1996, while he was on the Mississippi Gulf Coast. Claimant testified that he went to Singing River Hospital because of his back pain. Claimant testified that during the second half of 1997, he went back to Dr. Gilliland in Tupelo, Mississippi, because of his leg and back pain. Dr. Gilliland referred the claimant to Dr. Dominic Cannella , a neurosurgeon in Tupelo, Mississippi. Claimant testified that Dr. Cannella has done two (2) surgeries on his back and has recommended a third surgery.
On cross-examination, claimant testified that on July 5, 1996, he told his supervisor Charlie Hewlett, a/k/a., "Shorty" that he had hurt his left leg and back at work that day, after he had fallen. Claimant also stated that he told Dr. Brown that he had hurt his left leg and back at work after he had fallen. Claimant testified thaton the following Monday, when he reported to work, he told the plant nurse and Eddie Harris that he had hurt his left leg and back at work on the previous Friday. Additionally, he told hospital personnel that he had injured his left leg and back, while working for Rust Engineering on July 5, 1996.
On cross-examination, claimant said he could not explain why Dr. Brown's records do not have any indication of the injury to his back until November 4, 1996. Additionally, he could not explain why the Singing River Hospital records of admission for November 8, 1996, had a history of low back pain for a week that started after he coughed and sneezed.
Eddie Harris testified on behalf of the employer and carrier. Mr. Harris testified that he is a safety director for Rust Engineering. He was the safety director for Rust's Vista Chemical Plant Project in Aberdeen, Mississippi, at the time of the claimant's alleged injury. Mr. Harris testified that every new employee goes through a detailed safety orientation that he personally conducts. He said he always stressed the need to report every injury, because the company produced chemicals that could cause infections in even small cuts. Mr. Harris stated that the first time he met the claimant was when he was called by the plant nurse to see the claimant's leg. He looked at the claimant's leg and suggested he see Dr. Brown, the company doctor. Mr. Harris testified that the claimant never reported any work injury to him other than the problem with his leg. He said even when the claimant returned to work he never informed him of any work-related injury or accident to his back. Although claimant returned to work with no restrictions, Mr. Harris stated that he allowed him to do light duty work until he was ready for regular duty work. He could not recall why or when the claimant left his employment at Rust Engineering.
Charles Hewlett testified by deposition. Mr. Hewlett acknowledged that his nick name was "Shorty" and that he worked for Rust Engineering. He worked on the project in Aberdeen in 1995, 1996, 1997 as the electrical foreman. Mr. Hewlett testified that when an employee is injured on the job, he should report the injury to him. He would then complete the necessary paper work and take the employee to the safety department. Mr. Hewlett did not remember the claimant working for him but, acknowledged it was possible. He said no employee ever came to him and reported that a co-worker had been injured. Additionally, Mr. Hewlett testified that if the claimant had worked for him and reported getting hurt, he would have documented the injury.
Dr. Arthur Brown, a family physician in Aberdeen, Mississippi, testified by deposition taken on September 11, 1997. Dr. Brown testified that he first saw the claimant on July 8, 1996 with an abrasion, laceration, and redness/ swelling to his left leg. Initially the claimant did not state how he had injured his leg, other than he had bumped it. Later the claimant stated he had bumped it on some steps or grating or something at the plant where he was working. Claimant stated he did not want it turned in as work related, because he was afraid he would lose his job. Dr. Brown testified that he began treating claimant's left leg with antibiotics, because of an infection in the leg. Claimant returned to Dr. Brown the next day and his leg was no better, so Dr. Brown hospitalized the claimant from July 9-13, 1996. Upon discharge from the hospital claimant's leg looked much better and he reported no significant pain. Dr. Brown reported that he saw the claimant for follow-up on July 19, 1996. At that time the claimant was having no problems.
Dr. Brown testified that he saw the claimant several times after that, but those visits were unrelated to his left leg, until the claimant returned on May 22, 1997, complaining of left leg pain. Claimant reported a three (3) month onset of left leg pain. Dr. Brown ordered some vascular studies and a check of claimant's diabetes. Dr. Brown opined that the claimant's left leg problems at that time were unrelated to his injury in July 1996, but were due to complications from diabetes. He opined that the claimant reached maximum medical improvement from the July, 1996 work injury on July 19, 1996 with no restrictions and no rating.
Attached to Dr. Brown's deposition exhibits were complete copies of Dr. Brown's office notes and the claimant's July 13, 1996 discharge summary. They show a history of the claimant having scraped his left leg several days prior and it having gotten infected. Claimant's discharge diagnosis was "Cellulitis, left leg, (Erysipelas); non-insulin dependent diabetes mellitus, controlled; Hypertension, and peripheral vascular disease." Dr. Brown's offices notes show that he first saw the claimant on July 8, 1996 complaining about left leg pain only. Claimant returned on July 9, 1996, with left leg pain and was hospitalized. Claimant was seen on July 16, 1996, and it was noted that his Cellulitis was improved. On July 19, 1996 claimant returned and it was noted that his leg looked "wonderful" and was released to return to work. Claimant did not see Dr. Brown again until August 29, 1996. Claimant reported he had been stung by multiple yellow jackets and was reporting severe pain. No mention of claimant's leg or back is noted. Claimant returned to Dr. Brown on November 4, 1996 and reported for the first time that he was having back pain. Dr. Brown's records provide that the claimant: "started with back pain about three days ago. No mechanism of injury." Dr. Brown's diagnosis was "back pain, probably musculoskeletal." The next note of Dr. Brown shows that the claimant did not return until May 22, 1997. At that time claimant was complaining of left lower extremity pain of about three (3) months duration. Claimant saw Dr. Brown on May 28, and June 27, 1997, with left leg pain. Other than the November 4, 1996, note, Dr. Brown's records are void of any complaints of back pain and none of Dr. Brown's hospital records have any history of claimant injuring his back at work.
The medical records from the Singing River Hospital show that the claimant was seen at the emergency room once on November 8, 1996, complaining of back pain. Under chief complaints, the record states: "low back pain x one week - coughed & sneezed real hard & felt back pop." Also, attached to the records is the report of Dr. Bydalek, an emergency room physician. Under history, Dr. Bydalek's report states "this is a 67 year old male who, about a week ago, sneezed and pulled his back, with some pain to the lumbosacral area. Then he coughed and had increased pain there. He is now to have this evaluated. He has had some intermittent muscle spasms and pain in the back with no history of any chronic back problems."
Dr. Cannella's medical records show that he first
saw the claimant on October 30, 1997. His chief complaint was left
leg pain. He denied having any low back pain, but described pain in the
left buttock, left lateral thigh, left lateral calf, and left pretibial
area. The only history that Dr. Cannella received was that one year ago
claimant fell from a steel beam and injured his left leg. Various x-rays,
scans, and studies were done. The claimant reported back on November 11,
1997 complaining of severe left leg pain. After examining the claimant,
Dr. Cannella's impression was "low back-left leg pain secondary to lumbar
spondylosis, stenosis, and bulging disc at L4-5 on the left side." He noted
that the claimant's left leg pain was "probably on the basis of lumbar
nerve root compression." Subsequently, Dr. Canella operated on the claimant
twice and was still treating him at the time of the hearing.
Having heard the evidence presented by the parties and having considered same, I base the following findings on a preponderance of the evidence, including medical proof as required by the Act.
1. Claimant received an admittedly compensable work-related injury to his left leg on or about July 5, 1996.
2. Claimant's average weekly wage on July 5, 1996 was $559.99 as stipulated by the parties.
3. Claimant was temporarily totally disabled from July 5, 1996 until July 19, 1996, when Dr. Brown released claimant to return to regular duty work.
4. A preponderance of the evidence shows that the claimant did not suffer a compensable work-related injury to his back on July 5, 1996. The only expert testimony offered by either party relative to the claimant's alleged back injury was the medical records of Dr. Cannella. The medical evidence shows that the claimant first saw Dr. Cannella on or about October 30, 1997, approximately one (1) year and three (3) months after his July 5, 1996 fall. His chief complaint was left leg pain. He denied having any low back pain, but described pain in the left buttock, left lateral thigh, left lateral calf, and left pretibial area.
5. The claimant has not met his burden of proof of permanent disability resulting from the work-related injury.
6. The claimant, having suffered a compensable injury to his leg, is entitled to reasonable and necessary medical treatment and, by law, the employer and carrieF are obligated to furnish and provide the claimant, with reasonable medical services and supplies such as the nature of his injury and the process of his recovery may require, consistent with Mississippi Code Annotated, Section 71-3-15 (1972).
7. The claimant is entitled to penalties on each
installment of compensation not timely paid the equivalent of 10% thereof
as provided in Mississippi Code Annotated, Section 71-3-37
(5)(1972), together with the interest at the legal rate on all unpaid installments.
IT IS, THEREFORE, ORDERED AND ADJUDGED that the employer and carrier shall pay workers' compensation benefits to claimant as follows:
1 . Temporary total disability benefits at the rate of $264.44 per week beginning July 5, 1996 and continuing until July 19, 1996. There shall be added to each installment of compensation not timely paid the equivalent of 10% tereof as provided in Mississippi Code Annotated Section 71-3-37 (5) of the Act, together with interest at the legal rate on all unpaid installments. The employer/carrier is entitled to credit for any such payments of compensation heretofore made to claimant or for any wages earned by the claimant during this period of time.
2. Pay for, furnish and provide to the claimant all reasonable and necessary medical services and supplies as the nature of claimant's injury to his left leg or the process of his recovery may require pursuant to Section 71-3-15 (1972), as amended and the Medical Fee Schedule.
ORDERED this the 31st day of August, 1999.
MELBA DIXON
ADMINISTRATIVE JUDGE
ATTEST:
Brenda H. Goolsby, Secretary