MWCC NO. 99-03765-G-2388
LEARANCE BLACKMON CLAIMANT
vs.
ALLEN CANNING COMPANY
SELF-INSURED EMPLOYER
APPEARING FOR CLAIMANT:
Honorable A. Horace Brewer, Attorney at Law,
Jackson, Mississippi
APPEARING FOR DEFENDANT:
Honorable Stephen J. Carmody, Attorney at Law,
Jackson, Mississippi
The Commission heard the above styled cause on June 5, 2000 in the offices of the Mississippi Workers' Compensation Commission in Jackson, Mississippi on "Employer/Carrier's Petition for Appeal from the Order of the Administrative Judge".
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 September 13, 1999.
SO ORDERED, this the 14th day of June, 2000.
MISSISSIPPI WORKERS' COMPENSATION COMMISSION
BY: Ben Smith
Barney Schoby
Beverly Bolton
COMMISSIONERS
ATTEST:
Brenda H. Goolsby, Secretary
___________________________
MWCC NO. 98 03765-G-2388-A
LEARANCE BLACKMON CLAIMANT
vs.
ALLEN CANNING COMPANY
SELF-INSURED EMPLOYER
APPEARING FOR CLAIMANT:
A. Horace Brewer, Esquire, Jackson, Mississippi
APPEARING FOR EMPLOYER:
Stephen J. Carmody, Esquire, Jackson, Mississippi
On March 24, 1998, the claimant, Learance Blackmon,
filed a petition to controvert alleging that on January 28, 1998, she received
a work-related injury to her left knee at Allen Canning Company, a vegetable
canning company and self-insured employer in Moorhead, Mississippi, where
she had worked for twenty-three years. The employer denied the compensability
of the injury and did not pay any workers' compensation benefits, although
Ms. Blackmon received some sick pay. A hearing was held in this matter
in the Sunflower County Courthouse in Indianola, Mississippi, on August
31, 1999.
The issues to be resolved by the Administrative Judge are as follows:
1. Whether Ms. Blackmon received a work-related injury to her left knee as alleged in the petition to controvert; and
2. Her average weekly wage on March 24, 1998,
which the parties stipulated could be figured from wage information submitted
into evidence by the employer.
The claimant, Learance Blackmon, is sixty-one years old and a resident of Indianola. At the hearing, she talked in a low tone of voice and her manner of speaking made it difficult to understand what she said. She would frequently have to repeat her answers two or three times. She appeared to have limited education and understanding. A form in her personnel file indicates that she did not complete elementary school.
Learance Blackmon was a longtime employee of Allen Canning Company, and she said her duties and responsibilities remained the same during the entire twenty-three years she worked there. She worked "clean up" on the evening shift beginning at 6:00 p.m. and continuing until her tasks were completed. Her duties included picking up spilled vegetables from the floor, and sweeping and washing down the floor and equipment.
According to Ms. Blackmon, on January 28, 1998, about 9:00 p.m., or three hours after she began her shift, she went up some steps to get a water hose. When she came down the ladder, she missed the last two steps and fell on her left knee. She said she hurt her right hand, too, but it was not as bad as her knee. She thought that no one saw her fall. At her deposition, she testified that she lay on the floor for fifteen or twenty minutes because she could not move, then sat down. She did not say this at the hearing.
According to Ms. Blackmon, she told Bud Mullen, her supervisor, and her sister Mary Ann, who worked in the same area, about what happened. When she fell, Bud was sitting between the green lines about twelve feet away. She said she told him, "Bud, I fell and hurt my knee," and he replied, "It ain't nothing but arthritis." She responded, "You don't fall and have no arthritis." Ms. Blackmon's sister Mary Ann overheard the conversation with Bud. Ms. Blackmon continued to work for several hours and finished her shift and went home as usual. She said her leg was swollen and painful and the morning after her shift ended she sought medical treatment.
Ms. Blackmon testified that she had no problems with her left knee before January 28, 1998, and she had never had medical treatment for her left knee before. She had never been diagnosed with arthritis or had medical treatment for arthritis. She had been in no car wrecks. About a year before, Ms. Blackmon had fallen at work and injured her tailbone. She missed three or four days of work after seeking medical treatment, and Allen Canning Company paid her medical bills.
On January 28, 1998, Ms. Blackmon was living with her father and daughter Angela Shelby. The morning after her shift that had began on that evening, Ms. Blaclanon's daughter drove her to see Dr. Arthur Wood, her family doctor in Leland. She said she told Dr. Wood she "had fell on the job." Dr. Wood subsequently referred her to Dr. Jeff Almand, orthopaedic surgeon in Greenville, whom she first saw on February 3, 1998.
Dr. Almand did surgery on her left knee on February 24, 1998, and at one point later on he consulted his partner, Dr. Mark Wolgin, for a second opinion about Ms. Blackmon's problem. She testified that she recovered from the surgery but still has pain and swelling in her knee. She has difficulty standing for a long time, but she can drive. She can still cook and make up her beds. Her last doctor's visit to Dr. Almand was on June 30, 1998.
On October 5, 1998, at her deposition, Ms. Blackmon said she did not want Dr. Almand to operate again because he did not fix her knee the first time., At the hearing, Ms., Blackmon said she would be willing to undergo additional treatment to her knee if the company were ordered to provide her medical benefits. She said she had no money to pay for medical treatment.
About three weeks after the alleged injury, Ms. Blackmon spoke to Linda Faye Ball, the office manager at Allen Canning Company, about her knee injury. She said she told Ms. Ball she had fallen and gotten hurt, and Ms. Ball asked her if Bud had written it up. Ms. Blackmon said, "No." Ms. Ball told her someone would have to write it up. Ms. Blackmon talked to Bud at work one night and also went to his house that week to ask him to write it up. She and her daughter confronted Bud and asked him to sign a statement but he would not do it. Ms. Blackmon testified that Bud told her he had not written it up because "Steve told him to forget it," referring to Steve Oswalt, the plant manager.
In June 1998, Ms. Blackmon went back to Allen Canning Company and worked two days. She said, however, that her left leg and left foot swole. Since then she has not worked or applied for work anywhere else.
When Ms. Blackmon hurt her tailbone in 1997, she reported the injury to her supervisor and the supervisor logged it on the first aid log. She said, however, that she did not go to the first aid lab this time when she fell on her left knee. Her accident was not logged in on the first aid log. She knew that in the past even something as insignificant as a cut finger would be logged in on the first aid report.
In February 1998, Ms. Blackmon applied for short-term disability benefits through the insurance company providing disability benefits for her at Allen Canning Company, but she was told she could not get them. She said she filled out her forms showing the right date. The papers indicate the insurance company would not pay the disability benefits because she was claiming the injury to work related.
Mary Ann Little, the claimant's sister, testified for the claimant that she worked for Allen Canning Company for five years. Ms. Little remembered that on January 28, 1998, Learance was coming down from the catwalk and she missed the last two steps and fell to the floor. Ms. Little said she saw Ms. Blackmon fall because she and Bud Mullen were talking about ten feet away when it happened. She did not think Mr. Mullen was looking, however. She also said that before that incident, someone had "chunked a can" and hit Ms. Blackmon on the same leg, causing her ankle to swell.
According to Ms. Little, her sister hopped over to where she and Bud were sitting and talking, and Ms. Blackmon told Bud she fell and hurt her knee. Ms. Little could not remember which knee was the hurt one. Ms. Little said she did not go over to check on her or help her sister; she was on her break. She did not think Ms. Blackmon lay on the floor for as long as fifteen minutes; she explained it may have seemed like fifteen minutes to her sister but was not that long. Ms. Little testified that she is no longer working at Allen Canning Company. She was terminated; it was Bud who told her she was fired.
Angela Denise Little Shelby, the claimant's daughter, testified for the claimant that she currently lives in Memphis. She was living with her mother, however, on January 29, 1998, when her mother came home after her shift and was hopping. Ms. Shelby said she asked her mother why she was hopping and her mother said she fell at work and her leg was swollen.
Ms. Shelby suggested to her mother that she go to the doctor, and Ms. Shelby drove her mother to Dr. Wood's office that morning. Ms. Shelby was there at the doctor's office and heard Ms. Blackmon tell Dr. Wood that she had fallen at work and hurt herself The office staff asked Ms. Blackmon how she was going to pay for it and Ms. Shelby responded that it was workers' compensation because her mother had hurt herself on the job. Her mother paid cash because the staff had to have paper work to take care of the payment. Ms. Shelby said she took her mother back to Dr. Wood, and to all her appointments with Dr. Almand. Ms. Shelby testified that her mother told Dr. Almand that she hurt her knee at work.
On January 30, 1998, Ms. Shelby took her mother and talked to the lady at the front desk of Allen Canning Company because there was no paperwork about the accident. 'Men they talked to Linda Faye Ball. Then Steve Oswalt, the plant manager, asked to see Ms. Blackmon. Ms. Shelby went with her mother to the plant, but she did not go into the meeting with her mother and Mr. Oswalt.
Ms. Shelby testified that she and her mother also went to the plant a week or so after the accident to talk to Bud Mullen. They saw Bud and asked him about the paperwork, and he said he didn't know anything about any paperwork and then just walked off. Ms. Shelby said she did not take her mother to Bud Mullen's house; she thought her brother did that.
John P. ("Bud") Mullen, Jr. testified for the employer that he is the cleanup supervisor at Allen Canning Company. He has been there nine years. He worked the same shift as Learance Blackmon. He explained that the company's procedure regarding a work-related injury is that the employee reports the injury to him and he fills out the first aid log with the information. He did not fill out an accident report about Ms. Blackmon because he was not aware she had had an accident.
About two weeks after the alleged injury, Ms. Blackmon came back up to the plant with her daughter. Ms. Blackmon's daughter insisted that Mr. Mullen sign a form to authorize her mother to go to the doctor. He said he told them he was not authorized to do that. His wife told him they came by the house to see him. He could not remember what time; he was either not at home or asleep.
Mr. Mullen admitted that he joked around about arthritis with Ms. Blackmon. He said they would talk about arthritis and say "we must be getting old" for about a year before the alleged injury.
Linda Faye Ball testified for the employer and carrier that she has been front office secretary at Allen Canning Company for five years, She is familiar with the procedures with reporting on-the-job injuries, and she said the employee reports the injury to the supervisor, the supervisor reports it to the front office, and a report is faxed to the corporate office in Arkansas. She said she first learned on February 17, 1998, that Ms. Blackmon was claiming an on-the-job injury, Ms. Ball said she had to fax a report to the corporate office.
Also, on February 3, 1998, Ms. Ball wrote a note about a doctor's report she had received about Ms. Blackmon. When Ms. Blackmon came to see her later, Ms. Ball asked Ms. Blackmon if Bud Mullen had filled out an accident report on her, and Ms. Blackmon said, "No." Ms. Ball told her she would need to ask Bud to fill out an accident report. A week later, Ms. Blackmon came back and talked to Steve Oswalt.
Ms. Ball's note of February 3, 1998, appears in the claimant's disability file which was admitted 'into evidence at the hearing. The file indicates that Ms. Blackmon did not receive disability benefits because "Not Covered Due to Workers Compensation." (Exhibit 8).
The file contains a statement from Dr. Jeff Almand where he stated that Ms. Blackmon's condition arose out of her employment. He began treating her on February 3, 1998, and he said her symptoms first appeared a "month prior to 2/3/98." He said she was totally disabled from February 3, 1998, to the "present," meaning the date he signed this statement, February 16, 1998.
Ms. Blackmon checked on the disability insurance claim statement that she might be eligible for workers' compensation benefits. She filled in the blank about when her accident or illness began as "Jan. About 5 Day 98." (Exhibit 8). On her initial claim form, dated February 16, 1998, Ms. Blackmon put that the date her symptoms first appeared was January 28,1998.
Dr. Arthur E. Wood, family practitioner in Leland, Mississippi, testified by deposition dated February 15, 1999. Dr. Wood said he first saw Learance Blackmon on June 11, 1979, for complaints not related to her knee or wrist. The first time he saw Ms. Blackmon for knee or wrist complaints was eighteen years later, on January 29, 1998. He testified that his records do not indicate any designation that this was a work-related injury.
Upon examination, Dr. Wood noticed the right medial meniscus in the lower part of her left knee, as well as varicose veins and a superficial vein thrombosis, and decreased range of motion and pain in her right hand. Dr. Wood referred her to Dr. Almand, after advising crutches and medication. On February 10, 1998, Ms. Blackmon asked Dr. Wood to review her x-rays and MRI. On April 13, 1998, she came to him for a swollen and painful left knee. He recommended another appointment with Dr. Almand.
On June 3, 1998, Dr. Wood saw Ms. Blackmon and noted she had seen Dr. Almand on May 27, 1998, and had been released to return to work on June 1, 1998. He wrote that she worked Monday and Tuesday nights but had pain in her knee and calf muscle. He also noted:
Dr. Wood saw Ms. Blackmon again on November 2, 1998, for sore throat and other symptoms not related to her knee or wrist. He noted that Ms. Blackmon wanted a note that she fell. He wrote a note on a prescription pad stating,
When asked about whether he remembered anything about Ms. Blackmon telling him that she had a work-related injury when she came to see him on January 29, 1998, Dr. Wood responded that he did not but on or about November 2, 1998,
Juanita A. Simmons testified by deposition dated February 15,1999, that she had been a nurse for Dr. Wood for two years. She remembered asking Learance Blackmon on her first or second visit to Dr. Wood if she had hurt herself at work and was this "workmen's comp"? (Exhibit 6, p. 4). She said she could not recall whether it was the first or second visit that Ms. Blackmon said it was a work-related problem. Ms. Simmons said she usually put "at work" or some designation in the file first thing, but there was no notation on January 29, 1998. She said Ms. Blackmon paid for all her office visits.
Arlene C. Brown testified by deposition dated February 15, 1999, that she is the secretary, receptionist, and office manager for Dr. Wood. She remembered when Ms. Blackmon came in to see Dr. Wood in January 1998. Ms. Brown said Ms. Blackmon did not tell her she had been injured at work on her first visit to Dr. Wood. She said it was not until the referral to Dr. Almand that she became aware Ms. Blackmon's problem might be the subject of a workers' compensation claim. She said she had no recollections about how Ms. Blackmon injured her right hand or left knee. She said she learned "after the fact," after talking with Dr. Wood and Juanita Simmons, that Ms. Blackmon had said her injury was work related on her second visit to the clinic.
The medical records of Dr. Jeff D. Alman and Dr. Mark A. Wolgin, orthopaedic surgeons in Greenville, were received into evidence. Dr. Almand saw Learance Blackmon on February 3, 1998, for complaints of pain in her right wrist and in the medial aspect of her left knee. His notes state:
Dr. Almand examined her and diagnosed medial meniscus tear of the left knee and deQuervain's syndrome of the right wrist. He gave her some medication and a wrist splint and ordered an MRI of the left knee. Dr. Almand did surgery on February 24, 1998, a "diagnostic arthroscopy with debridement and osteochondral drilling of grade IV condylar defect, left medial femoral condyle." (Exhibit 1).
On February 26, 1998, Dr. Almand examined Ms. Blackmon and said he would probably release her to return to work after one more week. On March 9, 1998, Dr. Almand noted that he wanted her to be non weight bearing for five more weeks, and he ordered some physical therapy. On follow up on April 6,1998, Dr. Almand allowed Ms. Blackmon to bear full weight, although he suggested she continue physical therapy.
On April 14,1998, Ms. Blackmon complained of some continuing pain in the medial aspect of her left knee and some pain in the back of her knee and calf that was worse on ambulation. Dr. Almand said he would keep her off work for a month, continuing her therapy. He ordered a venous Doppler test to rule out deep venous thrombosis and asked her to return in one month. Dr. Almand said Ms. Blackmon might need a knee replacement in the future.
On May 27, 1998, Dr. Almand reported that Ms. Blackmon could go back to work full time on the following Monday (June 1, 1998). On June 16, 1998, however, Ms. Blackmon told Dr. Almand she had pain in the medial aspect of her knee going down into her leg and foot. Dr. Almand said,
By my examination, I feel that her pain is out of proportion to what her true problem is. I think she may be malingering. I am going to send her to Mark A. Wolgin, M.D. for a second opinion.
On June 24,1998, Dr. Almand noted that Ms. Blackmon came in with complaints of pain in her knee with difficulty in ambulating and working. He suggested cartilage transplants (mosaicplasty), and she told him she wanted to seek disability. Dr. Almand again recommended a second opinion by his partner, Dr. Wolgin.
Ms. Blackmon saw Dr. Wolgin on June 19, 1998, and he noted the following history:
On June 25, 1998, and Dr. Almand noted that Dr. Wolgin agreed with him that she needed a mosaicplasty of her knee. He also suggested an injection, to which she agreed to have done the next week.
On June 30, 1998, however, Ms. Blackmon told Dr. Almand she did not want either injections or surgery. She again expressed her desire to apply for disability. Dr. Almand told her she was not going to get any better unless she modified her activities considerably or underwent surgery or tried injections. She said she understood but did not want any of the treatment measures. He again told her she might need a total knee replacement one day.
On September 10, 1998, Dr. Almand wrote a letter
to Ms. Blackmon's attorney stating that he could not assign a date of maximum
medical improvement or disability rating because Ms. Blackmon had refused
further treatment. On March 1, 1999, Dr. Almand wrote to Ms. Blackmon's
attorney again, stating that "I do not have any documentation in my office
notes as to whether this was a work related injury. For that reason, I
will have to defer to Mark A. Wolgin, M.D. and Dr. Arthur Wood." (Exhibit
1).
Upon consideration of the pleadings, pretrial statements, stipulation about average weekly wage, lay and medical evidence, demeanor of the witnesses at the hearing, and the applicable law, the Administrative Judge finds as follows:
1. Learance Blackmon received a work-related injury to her left knee on January 28, 1998, as alleged in the petition to controvert. Ms. Blackmon is not an articulate or educated woman; she had difficulty making herself understood at the hearing on even the simplest of questions. It is not hard to believe that she told the doctors the same story she told at the hearing but that the doctors did not understand what she was saying. It is also believable that Bud Mullen may have thought she was just making general complaints about old-age aches and pains when she was actually attempting to report an injury. He recalled her talking about arthritis because he has arthritis and a limp, but there is no indication in the record that Ms. Blackmon had any form of arthritis or had ever had a knee injury or knee complaint before January 29, 1998.
Dr. Wood, her family physician, and his staff recalled that she told them on the first or second visit that she had injured herself at work. Dr. Wood has what he described as an old-timey practice, apparently without all the paperwork of a big-city specialist's practice, and Ms. Blackmon had been an established patient of Dr. Wood for eighteen years. Dr. Wood's handwritten notes would indicate that he was interested only in her medical complaints, not in how it happened, and there is no question that she had a genuine medical complaint that resulted in surgery.
Dr. Almand's notes on the initial visit of February 3, 1998, as well as all the later visits, do not indicate that Ms. Blackmon told him that she had injured her knee at work. She did tell Dr. Wolgin in June 1998 that she had injured her knee at work when she fell coming down some steps.
As early as February 16, 1998, Ms. Blackmon put on disability claim forms that she had injured her knee at work, a notation that resulted in her short-term disability insurance benefits at work being denied because of alleged work-relatedness, while at the same time Allen Canning Company was denying her workers' compensation benefits because the company had decided that her knee problem was not work-related.
The medical records do not contain any evidence that Ms. Blackmon injured her knee somewhere other than work, and there are no "denials" of injury. Dr. Almand noted that Ms. Blackmon told him she had had knee pain for about a month, but there is no cause noted. Ms. Blackmon had not sought medical treatment a month prior.
Ms. Blackmon worked for Allen Canning Company for twenty-three years. Even if there is a component of the "wear and tear of life" in her knee problem, a great deal of the wear and tear of her life took place at Allen Canning Company. She hardly has the profile of the worker who works a short while and wants something from the company for nothing. While the medical evidence is confusing in its silence about the cause of the knee problem when she first went to the doctor, because of Ms. Blackmon's apparent lack of education, sophistication, and assertiveness and lack of ability to make herself understood without a great deal of difficulty from the listener, this case must be decided in her favor.
2. Ms. Blackmon's average weekly wage on January
28, 1998, was $299.25, as figured from the wage information submitted into
evidence within the personnel file of the claimant.
IT IS THEREFORE ORDERED that the employer provide workers' compensation benefits to the claimant for a compensable injury suffered on January 28, 1998.
SO ORDERED this the 13th day of September, 1999.
LINDA A. THOMPSON
ADMINISTRATIVE JUDGE
ATTEST:
Brenda H. Goolsby, Secretary