MWCC NO. 98-03588-G-2369
BOBBY L. JONES CLAIMANT
vs.
SMITH'S BAKERY, INC. EMPLOYER
AND
INSURANCE CO. OF THE STATE OF PENNSYLVANIA CARRIER
REPRESENTING CLAIMANT:
Honorable Leslie C. Gates, Attorney at Law, Meridian,
Mississippi
REPRESENTING DEFENDANTS:
Honorable William M. McKinley, Attorney at Law,
Jackson, Mississippi
The above styled cause came on for consideration by the Commission in the offices of the Mississippi Workers' Compensation Commission in Jackson, Mississippi on Claimant's "Petition for Review of Decision of Administrative Judge by Full Commission" and Claimant's "Motion for Admission of Additional Evidence upon Review Before The Full Commission" and Employer/Carrier's "Response to Motion for Admission of Additional Evidence upon Review Before The Full Commission".
Claimant's "Motion for Admission of Additional Evidence" filed with the MWCC March 23, 2000, is granted.
Having thoroughly studied the record in this cause and the applicable law, the Commission affirms the "Opinion of the Administrative Judge" dated January 18, 2000.
SO ORDERED, this the 9th day of August, 2000.
MISSISSIPPI WORKERS' COMPENSATION COMMISSION
BY: Barrett Smith
Barney Schoby
COMMISSIONERS
ATTEST:
Joann McDonald, Secretary
___________________________
MWCC NO. 98 03588-4-2369-D-00
BOBBY L. JONES CLAIMANT
vs.
SMITH'S BAKERY, INC.
EMPLOYER
AND
INSURANCE CO. OF THE STATE OF PENNSYLVANIA
CARRIER
APPEARING FOR CLAIMANT:
The Honorable Leslie C. Gates, Attorney at Law,
Meridian, Mississippi
APPEARING FOR EMPLOYER/CARRIER:
The Honorable William M. McKinley, Attorney at
Law Jackson, Mississippi
The claimant, Bobby L. Jones, alleges that he sustained an injury on January 15, 1998 while in the employ of Smith's Bakery, Inc. (hereinafter "Smith's"). A hearing was held on the 16th day of December, 1999. In the Lauderdale County Courthouse, Meridian, Mississippi, on the issue of compensability only. At the hearing, the parties stipulated to the following facts:
1. An event occurred on January 15, 1998.
2. The claimants average weekly wage at the time
of the alleged injury was $280.20, rendering a compensation rate of $186.80.
The sole issue for decision of the Administrative
Judge in this hearing is whether the claimant sustained a compensable injury
as a result of the event which occurred on January 15, 1998.
The claimant, Bobby L. Jones, was employed in the shipping and receiving department with Smith on January 15, 1998 when he alleges that he was injured as a result of an incident that admittedly occurred on that date. It seems that the claimant was rolling a bread rack containing bread destined for the city route to a designated area of the plant when a wheel of the rack that was "wobbly" caused the rack to bit and fall on his right ankle and log. The claimant testified that the rack was loaded with 24 trays filled with regular loaves of regular broad. He testified that this rack was six feet tall and two and one-half to three feet wide and fully loaded would weigh between 600 and 700 pounds. On cross examination, he admitted that he described the rack as one with 48 trays, and at this point does not recall whether he was pushing the larger or smaller rack when the Incident occurred. The claimant is five feet six inches tall.
The claimant indicated that he was not sure that anyone saw the rack tilt and fall, but Mike Arrington, a co-employee who works a city route, realized what had happened and came over to help him out from under the rack. He also indicated dud his foreman, Clyde, saw the rack on to floor and asked if the claimant was okay, to which the claimant responded affirmatively and told his foreman that Mr. Arrington had assisted him at the time of the incident. The claimant testified that at this point in time, his right ankle and leg was not hurting, just "stinging"; he could walk without trouble and he continued to work. During the remainder of the day (the incident occurred before lunch), however, his ankle and leg began to hurt. He noted that the ankle and leg never swelled; it merely hurt and the pain became progressively worse. He went to the company's physician, Dr. Jordan, after he got off work. In response to an inquiry from Dr. Jordan, he explained what happened. Dr. Jordan examined the claimant's right leg and foot, which he found to be red, but not swollen. Dr. Jordan sent the claimant to Anderson Hospital emergency room where he saw a physician who diagnosed the claimant' s condition as a severe sprain. The emergency room physician directed the claimant to soak the right foot and ankle, elevate it, and he prescribed medications. The emergency room physician also kept the claimant off work for four days. The claimant procured the medication and went home, following the physician's advice. He testified that soaking did not relieve his pain. He also called the night foreman, Clarence, and indicated that he would be off work for four days.
After the four days of rest the emergency room physician had suggested, the claimant returned to work. Within five or so days after his return to the job, he began to notice changes in the appearance of his right leg and he began to "hobble" because of the pain. The claimant indicated that he believed that the changes in his leg were a direct result of the pushing and pulling of heavy racks filled with bread which caused constant additional stress and strain injuries to his already injured extremity.
On February 10, 1998, the claimant determined that he could no longer work because of the condition of his right foot and ankle. He came to work and advised Clyde Moore that he had to go home. When he took off his right shoe, he realized that his right foot was turning "green". This was the first time that he saw discoloration in his extremity. He immediately sought assistance from his next door neighbor, who took him to the Anderson Hospital emergency room. The claimant testified that by the time he arrived at the emergency room, he was "totally out of it" and "really in pain" and thus remembers little of the ordeal. He does know that Dr. Billups served as his primary treating physician, that he was first put on a "machine" and later that day underwent emergency surgery. The claimant testified that as a result of the surgery, he sustained scars on his right thigh.
The claimant testified that as a result of the condition and resulting surgery, he cannot walk for long periods of time nor stand for long periods of time. He has not worked since his surgery. He indicated that Dr. Billups has told him that he needs further medical treatment and procedures, including an arteriogram.
It is the claimants position that he continues to be employed by Smith, although Earth Grains bought Smith out in March of 1999. He testified that this is so because he always called in when he was going to be required to take medical leave.
The claimant testified that prior to January 15, 1998, he had experienced no prior symptoms of injury, damage or illness associated with his right foot, ankle and leg. Prior to January 15, 1998, the claimant testified that he jogged to work, he sustained a normal blood pressure range, and he had never been diagnosed with diabetes. He attributes the surgery he underwent on February 10, 1998 to the injury his right lower extremity sustained an the date of his January 15, 1998 injury when the rack felt on his right foot and ankle. He testified that between January 15 and February 10, 1998, no event occurred which impacted his right lower extremity in any way.
On cross-examination, the claimant testified very clearly that the rack fell "right on the top front of his right ankle" and then "slid off the ankle" as he attempted to pull his foot out from under the rack. He further testified that he told Dr. Jordan, the company physician, precisely what happened and has no explanation as to why Dr. Jordan's notes do not reveal the history that he gave.
Counsel for the employer and carrier cross-examined the claimant in depth relative to his understanding of medical notes provided by Dr. Jordan and nurse's notes at Dr. Jordan's office, specifically the claimants prior assent to the veracity of the medical notes. Although the claimant obfuscated somewhat about whether or not he concurred with Dr. Jordan's notes relative to the history of the claimants January 15 injury, he ultimately concurred with Dr. Jordan's statements.
Counsel for the employer and carrier likewise cross-examined the claimant in depth relative to his understanding of the medical notes provided by Dr. Billups, relating a "two day history of pain in the right foot which came on suddenly at work" versus his testimony on direct examination of a gradual onset of pain subsequent to the January 15 injury. The claimant testified that he does not concur with the history reflected by Dr. Billups and that history was not disclosed to Dr. Billups by the claimant. The claimant likewise disputed the history revealed by Dr. Touchstone, a heart specialist who was called in by Dr. Billups for a consult who related that a rack fell "near him" and not on him in January 1998.
The claimant testified that although he was to follow with Dr. Clark after May of 1998, he only went once because he had no funds to pay for Dr. Clark's services. However, when he was incarcerated in the Lauderdale County Jail for non-payment of child support he requested medical attention and specifically a urine test to check the level of protein (anti-thrombin 3) in the urine.
The claimant testified that he specifically asked Dr. Billups to assist him in procuring coverage through Physicians' Mutual, a disability policy that he had obtained, and Dr. Billups did so. When cross-examined about this document (included in general exhibit 2) he testified that the correct date for the response to the inquiry: "Date of the accident or first symptoms of the sickness" was February 10, 1998 and opposed to February 9, 1998.
The claimant testified that prior to January 15, 1998, to his knowledge he had never had a urine test performed to check for protein in the urine.
Ricky Spaulding, the plant manager at Earth Grains in Meridian testified that on January 15,1998 he was employed at Smith as general manager and the claimant was an employee. He testified that the Smith plant was bought by Earth Grains, employees were given a 60 day notice and thereafter the Smith production facility closed. He testified that the claimant should have received his notice of termination on January 6, 1998 to be effective March 23, 1998. Smith also held a meeting to explain the purchase to its employees. Mr. Spaulding does not know if the claimant attended the meeting, but he does know that the claimant was aware that he was being terminated and would no longer be working at the bakery after March 23, 1998 because prior to that date the claimant came to him and inquired about severance.
Mr. Spaulding spent time describing the racks used by Smith; his description was not dissimilar to the description given by the claimant except as to weight which Mr. Spaulding testified would not exceed 300 pounds. Mr. Spaulding testified that he received no reports of racks failing during the time he was employed with Smith and that the claimants personnel file reveals no report of accident or injury on January 15, 1998. He was aware that the claimant was to be off work for four days following January 15, 1998 and was receiving medical treatment but received no report of what happened to require the claimant to need medical treatment. He testified that subsequent to January 15, 1998, the only knowledge that he received of the claimants condition was a call from the emergency room on February 10 when he learned that the claimant had a blood clot and would not be returning to work for some period of time. He did not know and was not advised that the treatment for the blood clot required surgery nor was he advised that the claimant underwent surgery. At that time he did not realize and was not told that the claimant was pursuing a workers' compensation claim. His first notice of the claimant's claim came from a routine mailing from the Commission.
Mr. Spaulding testified that he knows little about the transaction between Smith and Earth Grains except that Earth Grains bought the Smith assets. He has no knowledge of transactions between the two entities relative to accounts or obligations.
Mr. Spaulding testified that Earth Grains did not employ Smith employees; to the contrary, his testimony is that Earth Grains "did not hire hardly any Smith employees."
General exhibit 1 reveals the following facts:
On February 27, 1998 the claimant was again seen by Dr. Billups who found that the wounds were healing, the claimant was experiencing palpable pulse at the foot and had increased ambulation, mild edema but no signs of infection. Dr. Billups opined that the etiology of the claimants hypercoaguable state appears to have been from his nephrotic syndrome.
Dr. Billups continued to follow the claimant determining on March 27,1998 that the claimant may have sustained permanent vascular injury from the extensive emboli or he may suffer from underlying vascular disease which has not yet been diagnosed due to the thrombus in his vessels. Dr. Billups determined to do additional diagnostic testing and revealed on April 1, 1998 that non-invasive diagnostic testing showed no evidence of occlusive disease down to the level of his right ankle. By May 8, 1998, Dr. Billups opined that he suspected the claimant was suffering a chronic destruction of the small vessels in his foot suggesting permanent damage to the distal vasculature. Dr. Billups suggested rearteriogram to insure that there were no other correctable lesions present, and ordered a renal profile. Prior to this, the claimant was to present to Dr. Clark for a consult relative to the questions of necrotic range Porteinuria.
The claimant did not follow with Dr. Clark due to loss of insurance.
Dr. Billups' records include an Attending Physician Statement directed to Physicians Mutual Insurance Company which notes that the claimant's injury was the result of sickness, rather than accident and further noted that a claim would not be presented to workers' compensation. The attached claimants statement notes that the date of accident or first symptoms of sickness was February 9, 1998 and a physician was first seen on February 10, 1998. This document was signed by the claimant.
Dr. Billups testified by deposition that he is board certified in general surgery and treated the claimant beginning on February 10, 1998 when he presented to the emergency room and was evaluated to have obvious loss of blood flow to his right leg by the emergency room physician. Dr. Billups concurred with the emergency room physician's evaluation, obtained an arteriogram which confirmed the evaluation and performed emergency surgery to remove blood clots from the arteries of the right leg. Dr. Billups testified that the blood dots extended from the hip region's iliac arteries all the way down to the foot level and all the blood vessels were full of clots.
Dr. Billups testified that there were no other obvious signs of clotting in any other region of the claimants body and an extensive work-up following surgery seemed to confirm the absence of clotting in other areas.
Dr. Billups testified that as the result of consultations with other physicians, the claimants testing indicated that the claimant suffered from nephrotic syndrome which he described as "a kidney condition which makes the blood clot ... and can cause a spontaneous formation of blood clots in the vessels...."1 Dr. Billups testified that with nephrotic syndrome, a patient loses protein through the urine, develops swelling in the extremities, and very commonly has the associated condition of hypercoagulable state which promotes spontaneous clotting.
Dr. Billups referred the claimant to a kidney specialist (Dr. Clark) but the claimant has not visited the physician.
Dr. Billups testified that he last saw the claimant in December of 1998 and found him to be suffering from intermittent claudication resulting from insufficient blood flow of the right leg, limiting his activity. As a result of the claudication, Dr. Billups has suggested an arterlogram and possible bypass surgery on the claimants right leg.
Dr. Billups does not recall the claimant giving him a history of injury at work prior to February 10, 1998, but he testified that it would be unlikely that an injury such as described by the claimant would contribute to blood clotting or lack of blood flow in the extremity. He testified that nephrotic syndrome is not a problem associated with trauma and that the claimant's condition did not begin at his ankle but began higher in the right leg and the clots propagated downward. Dr. Billups further opined that for a blood clot to be associated with trauma "it would take a pretty significant trauma"2 suggesting the need for a "direct injury to the blood vessel where the clot develops."3 He also opined that if an individual had nephrotic syndrome, it would be more likely that a subsequent thrombosis of a vessel would occur after trauma than in an individual who did not have nephrotic syndrome.
Dr. Billups distinguished nephrotic syndrome from nephrotic range proteinuria with the latter having a higher level of protein in the urine than normal. One of the proteins that spills over into the urine is antithrombin 3, a blood thinner naturally produced by the body.
The physician opined to a reasonable medical probability that it would not take three weeks from a severe trauma for an arterial dot to form and block the blood flow to an individual's traumatized extremity. Dr. Billups reviewed the history dictated by Dr. Touchstone and this information did not cause him to link the clotting to the earlier trauma experienced by the claimant. In Dr. Billups' opinion, the clotting the claimant suffered was a spontaneous event. In his opinion, the clots started to form within two days of the emergency operation. In his opinion, when a trauma does cause a blood clot the clot begins to form immediately and would reach an emergency situation "within a short period of time [, l]ess than a day."4
Dr. Robert Jordan testified through his medical records by stipulation and by deposition. The records reflect that on January 15, 1998 the claimant resented having pain in his right calf muscles with onset last night and that he thinks he may have hurt himself at work pulling on trays of bread. Other notes reflect a history of twisting the right leg at work last evening with persistent pain since and an ultimate diagnosis of muscle strain.
Dr. Jordan's deposition testimony reflects that he is a physician board certified in family practice who has practiced in Meridian for eight years. Dr. Jordan testified that he saw the claimant on January 15, 1998 and referred him on to his regular hospital, Anderson Hospital, and explained to him that there was a potential that he had a very serious problem. He made this determination as a result of a physical examination on the claimants right leg on that date which revealed a positive Homan's reflecting inflammation of the veins in the deep system of the calf. The physician noted swelling, limp, and extreme right calf tenderness. The claimant revealed to the physician that he had twisted his leg at work the night before and it had been painful since that time.
Dr. Jordan testified that the chances would be very low that an injury on January 15, 1998 to the artery could produce the symptoms the claimant showed on February 10. However, he testified that a muscle injury on January 15 could definitely cause artery problems which resulted on February 10. He testified that the only evidence of injury was the history that he inquired of from the claimant there was no contusion to reflect any injury.
Dr. Jordan testified that he was unable to testify to a reasonable degree of medical certainty that there exists a relationship between the claimants work and any deep venous thrombosis or any arterial problem. However, he opined that the claimant told a truthful history of twisting his leg at work on January 15; the physician was simply unable to saw to a reasonable degree of medical certainty that a deep venous thrombosis existed. Dr. Jordan declined to testify as to whether a work injury as described on January 15 could be related to the claimant's diagnosis of nephrotic range proteinuria. Although he believes that there is a possibility of a connection between the January 15 incident and the claimant's subsequent condition, he is unable to testify to a reasonable degree of medical certainty that a connection exists.
Dr. Jordan agreed with Dr. Billups that if arterial blockage resulted from an injury, it would be likely that the distal part of the foot would become black and reach emergency condition within 24 hours or so of the blockage, assuming it is a total blockage.
The medical records of Jeff Anderson Memorial Hospital were submitted under medical records affidavit These records are voluminous and parts of the records are in relatively poor condition regarding legibility. The following comments are of note relative to the sole issue of this case:
Upon consideration of the lay and expert testimony
in this matter, along with documentary evidence and together with the applicable
law, the Administration Judge finds that the claimant has Wed to prove
by a proponderance of the evidence that he sustained a work related injury.
The claimants testimony does describe a trauma which occurred on January
15, 1998 and the employer and carrier do not deny that such an event occurred,
although they have no independent proof of such an event Thus, we may take
the claimant's testimony as true, there being no reason in this case to
question the claimants veracity in describing the incident. However, the
weight of the medical evidence compels the conclusion that the medical
condition for which the claimant received treatment on and after February
10, 1998 was not a result of the January 15, 1998 incident.
IT IS, THEREFORE, ORDERED AND ADJUDGED that the claimants Petition to Controvert be, and the same hereby is DENIED AND DISMISSED as non-compensable.
SO ORDERED this the 18th day of January, 2000.
LYDIA QUARLES
ADMINISTRATIVE JUDGE
ATTEST:
Brenda H. Goolsby, Secretary
___________________________