MWCC NO. 98 05876-G-2723

JUDY SALYER                                                                                                                                   CLAIMANT

vs.

ACTION INDUSTRIES, INC.                                                                                                          EMPLOYER
SELF INSURED

REPRESENTING CLAIMANT :
Hon. William Lowery Sneed, Attorney at Law, Pontotoc, Mississippi

REPRESENTING DEFENDANT :
Hon. Robert P. Thompson, Attorney at Law, Ridgeland, Mississippi
 

The Commission heard the above styled cause on January 24, 2000 in the offices of the Mississippi Workers' Compensation Commission in Jackson, Mississippi on the "Claimant's Notice of Appeal of Administrative Judge's Order" and Employer/Carrier "Notice of Cross-Appeal to the Full Commission".

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 the Administrative Judge" dated October 12,1999.

SO ORDERED, this the 26th day of January, 2000.

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

ATTEST:
Brenda H. Goolsby, Secretary
___________________________
 

MWCC NO. 98 05876-G-2723

JUDY SALYER                                                                                                                                    CLAIMANT

vs.

ACTION INDUSTRIES, INC.                                                                                                           EMPLOYER
SELF-INSURED

APPEARING FOR CLAIMANT :
Honorable William Lowery Sneed, Attorney at Law, Pontotoc, Mississippi

APPEARING FOR SELF-INSURED EMPLOYER :
Honorable Robert P. Thompson, Attorney at Law, Ridgeland, Mississippi
 

The claimant filed a Petition to Controvert on May 6, 1998, alleging that she suffered a work-related injury to her lower back, right leg, and right hip in July of 1997, during the course and scope of her employment with Action Industries, Inc. The employer denied compensability of the injury and paid no benefits. A hearing was held in this matter at the Lee County Justice Center in Tupelo, Mississippi, on August 19,1999.
 

1. Claimant's average weekly wage on the date of the injury was $429.09.

2. Claimant's date of maximum medical improvement was May 22, 1998.

3. The date of the alleged injury was July 23, 1997.
 

1 . Whether or not a work-related injury occurred on the date alleged in the Petition to Controvert.

2. The existence and extent of temporary disability attributable to the injury.

3. The existence and extent of permanent disability attributable to the injury.

4. Whether penalties and interest are applicable.
 

A hearing was held in this matter on August 19, 1999, at the Lee County Justice Center in Tupelo, Mississippi. The claimant testified on her own behalf. Additionally, she offered into evidence the medical records/affidavits of Dr. Thomas McDonald and Dr. R. B. Robinson; work search reports; and a copy of a photograph showing the claimant's work station. The employer called Bruce Brawner as a witness. Additionally, the employer offered into evidence the deposition of Dr. Thomas McDonald and a composite of letters from Brawner & Associates.

The claimant testified that she is a resident of Tupelo, Mississippi. She attended the 11th grade but did not graduate from high school. Claimant said she later acquired a GED. Additionally, she completed training as a nurse's aide.

The claimant testified that most of her prior employment history involved working for Red Kap Industries in Tupelo, Mississippi for approximately 22 years. She later worked for Home Health as a nurse's aide for a short period of time. She earned
approximately $8.00 an hour at Red Kap Industries and $6.50 an hour a t Home Health. W hile at Red Kap Industries, claimant worked in the cutting room and also as a supervisor. Claimant met Harry Salyer, whom she later married. Upon marriage, she had to leave Red Kap Industries due to a nepotism policy.

Claimant testified that she began her employment with Action Industries in November of 1996. She worked as a bundler. This job required repetitive lifting, bending, stretching and stooping. Claimant testified that this repetitive type work caused pain in her lower back, right leg and right hip area. Claimant said she first advised Steve McCord, the cutting room supervisor, about her back pain around November of 1996. Subsequently, in February of 1997 she told him that the pain had progressed to her hip and leg. Claimant said Mr. McCord told her that he could not advise her to go to the doctor. Claimant further stated that Mr. McCord told her that she should see a doctor, if she felt she needed to do so for her pain.

Claimant testified that she first sought medical treatment from Dr. Nell Moore. She also saw Dr. Rudd Robinson, who referred her to Dr. Thomas McDonald. She was released by Dr. McDonald to return to work in May of 1998. Claimant said when she was released by Dr. McDonald to light duty work, she was not accommodated by Action Industries. Claimant testified that she experiences pain in her hips when she works long hours. However, she does not experience a great deal of pain when she works 4 to 5 hours per day.

Claimant testified of her attempts to secure employment after her release to return to work. Claimant said she worked a short time for Video Express. She was responsible for opening and closing the store, waiting on customers, re-shelving videos, and collecting/keeping an account of the money. She made $5.25 per hour. Claimant worked at Video Express until it closed in October of 1998.

Claimant testified that she was unemployed from the time she left Video Express until March of 1999. During this time she sought approximately 17 jobs, which are set forth on the work search reports marked as Exhibit 5. These reports show an assortment of jobs including assembly line work, pattern cutting, stock receiving, gluing, receptionist, and clerical.

At the time of the hearing, claimant said she was employed at T. J. Maxx at a rate of $6.25 per hour. She began working in the processing department at T. J. Maxx in March of 1999. Claimant testified that in this capacity she processes incoming merchandise. She does some bending and leaning, but no heavy lifting. Claimant testified that she is happy with her job at T. J. Maxx and has no desire to leave. She believes there is opportunity for advancement at T. J. Maxx, because some employees are making as much as $9.00 per hour. Claimant further testified that her "hip" will not let her return to her former employment and she "cannot handle 12-hour days anywhere." Claimant testified that she was not seeing a doctor at the time of the hearing.

Harry Salyer, claimant's husband, testified on her behalf. He is the plant manager for Red Kap Industries. Mr. Salyer said he has been with Red Kap Industries for approximately 21 years. Mr. Salyer testified that the claimant started experiencing some problems with her lower back and right hip area in early 1997. She informed her employer in February of 1997. He testified that the claimant continues to have problems. He said claimant's hip bothers her, when she sits for long periods of time. Mr. Salyer testified that the claimant is able to perform her "day to day duties" but her hip bothers her on days when she works approximately 10 hours or more.

On cross-examination, Mr. Salyer testified that Red Kap Industries is in the manufacturing business and is competitive in pay with other manufacturers in the area. He testified that at the time of the hearing Red Kap Industries had three (3) job openings that paid approximately $9.71 per hour. Mr. Salyer said he and the claimant walk three (3) times a week for approximately 30 minutes.

Bruce Brawner, a vocational rehabilitation counselor, testified on behalf of the employer. He has been a vocational rehabilitation counselor since 1978 and has worked for both claimants and employers. Mr. Brawner said he conducted a vocational evaluation of the claimant by obtaining personal information; reviewing the medical records of Dr. Moore, Dr. Robinson, Dr. McDonald and Dr. Phillips; and reviewing the deposition of Dr. McDonald. Additionally, he conducted a labor market survey.

Mr. Brawner testified that based on his evaluation it is his opinion to a reasonable degree of medical probability that the claimant is capable of obtaining employment in the area at a rate of $8.00 to $9.00 per hour. Mr. Brawner said he did a labor market search locating a variety of jobs as set forth in Exhibit 4.

Dr. Thomas McDonald, a neurosurgeon in Tupelo, Mississippi, testified that he first saw the claimant on July 23, 1997. She reported that she was having back, right hip and right leg pain that had been ongoing since November of 1996. Claimant related to him that she started a job that was repetitive which required pulling and reaching, when she developed soreness in the right shoulder blade. Claimant said the pain radiated into the right hip and outside the right leg into the ankle. However, the pain was more severe in the right hip.

Dr. McDonald testified that he performed a physical examination of the claimant. His impression was that the claimant had an inflammatory process in the iliotibial band. He injected the posterior and lateral hip areas with Depomedral and started her on samples of Relafin, a nonsteroidal anti-inflammatory drug.

Dr. McDonald testified that he saw the claimant several times during follow-up visits. Her pain pattern had not changed. When he saw her again on August 14, 1997 after her MRI scan, she showed a degenerative disc which was old and did not seem to be encroaching on either the foramia of either side or on the central canal. Otherwise the scan looked okay. He encouraged the claimant to join the Wellness Center and keep on a course of stretching exercises. She was discharged to return as needed.

Dr. McDonald testified that the next time he saw the claimant was February 5, 1998. Dr. Rudd Robinson referred her back to him for an injection. Once again, the claimant's neurological examination was normal. She was given an injection that day and told to return for several follow-up visits for her pain.

Dr. McDonald testified that he last saw the claimant on or about May 22, 1998. Once again, her neurological exam was normal. His impression was iliotibial band tendonitis. Dr. McDonald said he told the claimant at that time that she only needed to return to his office, if she had any significant problems. That was the last time he saw her. Dr. McDonald testified that he released the claimant to light duty work with the expectation that she could gradually return to work in a more full duty capacity. It was his opinion that the claimant reached maximum medical improvement on May 22, 1998 with no permanent impairment. Further, it was his opinion after reviewing a picture of the claimant's work station that her job "could account for being either an aggravating cause or a precipitating cause of her sacroiliac subchondral, subtroconturate bursitis and iliotibial band syndrome.

Dr. Robinson's medical records show that he treated the claimant for a sacroiliac ligament strain and right iliotibial band syndrome beginning July 14,11997. He referred the claimant to Dr. Thomas McDonald for injection therapy of the sacroiliac joint and iliotibial band, and to Dr. Clyde Phillips for the same type treatment. She returned to work on December 5, 1997 with restrictions of no stretching with her upper extremities and no severe rotational stress on the lumbar spine.

Dr. Robinson's medical records show that the claimant returned on February 3, 1998 for a re-evaluation of her right sacroiliac ligament strain and her right iliotibial band syndrome. She was referred back to Dr. McDonald for re-injection.
 

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. The claimant suf fered a compensable work-related injury on July 23, 1997 dur ing the course and scope of her employment with Action Industries, Inc.

2. Claimant's average weekly wage on the date of the injury was $429.09, as stipulated by the parties.

3. The claimant was temporarily totally disabled from July 23, 1997 until she reached maximum medical improvement on May 22, 1998.

4. The claimant has not met her burden of proof of permanent disability and loss of wage earning capacity. Dr. McDonald testified that the claimant reached maximum medical improvement on May 22, 1998 with no permanent impairment. The evidence does not show that the claimant sought further medical attention. Further, the claimant testified that she was not seeing a doctor at the time of the hearing. At the time of the hearing the claimant was employed at T.J. Maxx making $6.25 per hour. The claimant testified that she was happy with that job and had no desire to leave. Further, she believes there is opportunity for advancement.

5. The claimant suffering from a compensable injury is entitled to reasonable and necessary medical treatment and by law the employer is obligated to furnish and provide the claimant with reasonable and necessary medical services and supplies such as the nature of her injury and the process of her recovery may require, consistent with Mississippi Code Annotated, § 71-3-15 (1972).

6. The claimant is entitled to penalties on each installment of compensation not timely paid the equivalent of 10 percent thereof as provided in Mississippi Code Annotated, § 71-3-37 (5) (11972), together with interest at the legal rate on all unpaid installments.
 

IT IS, THEREFORE, ORDERED AND ADJUDGED that the employer shall pay and provide compensation benefits as follows:

1. Temporary total disability benefits of $270.67 per week from July 23, 1 997 through May 22, 1998, with p roper credit for any such payments heretofore made by the employer or any wages earned by the claimant during this period of time. There shall be added to each installment of compensation not timely paid the equivalent of 10 percent thereof as provided in Mississippi Code Annotated, § 71-3-37 (5)(1972), together with interest at the legal rate on all unpaid installments.

2. Pay for, furnish and provide to the claimant all reasonable and necessary medical services and supplies such as the nature of her injury or the process of her recovery may require pursuant to § 71-3-15 (1972) as amended, and the Medical Fee Schedule.

SO ORDERED this the 12th day of October, 1999.

MELBA DIXON
ADMINISTRATIVE JUDGE

ATTEST:
Brenda H. Goolsby, Secretary