MWCC NO. 98 06322-G-2766

JOYCE M. FORTENBERRY                                                                                                                CLAIMANT

vs.

K.L.H. INDUSTRIES, INC.                                                                                                                  EMPLOYER
AND
MISSISSIPPI MANUFACTURERS ASSOCIATION
WORKERS' COMPENSATION GROUP                                                                                               CARRIER

REPRESENTING CLAIMANT:
Hon. Mariano Barvie', Attorney at Law, Gulfport, Mississippi

REPRESENTING DEFENDANT:
Hon. Ronald T. Russell, Attorney at Law, Gulfport, Mississippi
 

The Commission heard the above styled cause on May 8, 2000 in the offices of the Mississippi Workers' Compensation Commission in Jackson, Mississippi on the claimant's "Petition for Review before 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 December 1, 1999.

SO ORDERED, this the 10th day of May, 2000.

MISSISSIPPI WORKERS' COMPENSATION COMMISSION
BY: Ben Smith
Barney Schoby
Beverly Bolton
COMMISSIONERS

ATTEST:
Brenda H. Goolsby, Secretary
___________________________

JOYCE M. FORTENBERRY                                                                                                            CLAIMANT

vs.

K. L. H., INDUSTRIES, INC.                                                                                                           EMPLOYER
AND
MISSISSIPPI MANUFACTURERS ASSOCIATION
WORKERS' COMPENSATION GROUP                                                                                            CARRIER

APPEARING FOR CLAIMANT:
Honorable James K. Wetzel, Attorney of the firm of
James K. Wetzel & Associates
Post Office Box I, Gulfport, MS  39502

APPEARING FOR EMPLOYER AND CARRIER:
Honorable Ronald T. Russell, Attorney of the firm of
Bryant, Clark, Dukes, Blakeslee, Ramsay & Hammond, P.L.L.C.
Post Office Box 10, Gulfport, MS  39502
 

A hearing was held in Gulfport, Mississippi, on the claim of Joyce M. Fortenberry for workers' compensation benefits allegedly resulting from injuries sustained while in the course and scope of her employment with the Employer herein on or about December 23, 1997.

Medical testimony in this matter was submitted in the form of depositions of Betty Logan, Nurse Practitioner, Dr. Wendell R. Helveston, Neurologist, and Dr. Dinesh Goel, Neurologist. In addition, the affidavits and medical records of Dr. Salil Tiwari, Dr. Bernard Patrick, Betty Logan, Nurse Practitioner, Forrest General Hospital and Prentiss Regional Hospital were also introduced in this matter as medical testimony. Other Exhibits that were introduced into evidence at the hearing included the deposition of the Claimant and the attendance records of Claimant's supervisor, Sammi Lyne Kirkley.
 

The issues for adjudication herein are as follows:

1 . Whether or not the Claimant sustained a work related injury as alleged;

2. The nature, existence, and extent of temporary and permanent disability, if any;

3. The date of maximum medical improvement;

4. The issue of unauthorized medical treatment;

5. The Claimant's average weekly wage;

6. Whether or not the Claimant suffered from a pre-existing disease, lesion or handicap, and, if so, the degree of apportionment to be applied.
 

The Claimant herein is a 55 year old female who was hired by the Employer in 1992, to work as a splicer in their automotive wiring harness plant in Prentiss, Mississippi. Before she left her employment with this Employer, she was diagnosed with a thyroid tumor and she underwent radiation treatment for the defective thyroid in February, 1998. In her deposition the Claimant admitted that she had applied for a leave of absence under the Family Medical Leave Act and advised her supervisor at the time that she left her employment that she was having problems with her thyroid.

The Claimant alleges that on December 23, 1997, she was splicing wires at her machine and lifting on the arms of the machine when something popped in her neck. She allegedly experienced an immediate surge of pain up to the top of her head all the way back down to bottom of her feet causing entire body numbness but particularly in the arms and hands. She is specifically alleging that as a result of this incident, she sustained an injury to her neck and problems with both hands. In her deposition and in her trial testimony, she denied that she had ever injured her neck or had any problems with her neck before December 23, 1997. She denied that prior to 1997, she had experienced problems with either of her arms. It was the Claimant's contention that immediately following the accidental injury on December 23, 1997, she reported the injury to her supervisor, Sammi Lyne Kirkley. The Claimant at the time of her deposition on August 31, 1998, was of the opinion that the first doctor that she saw following her alleged accident was Dr. Dinesh Goel. However, the medical records of Nurse Practitioner, Betty Logan and the depositional testimony of Betty Logan reflect that she actually saw the Claimant on December 24, 1997, the day after the alleged accident. Although the Claimant testified in her deposition that Betty Logan did not treat her for problems involving her neck, this contention was totally contradicted by the medical records and testimony of Betty Logan.

If the Claimant had truly had an injury to her neck that she reported to her supervisor immediately on December 23, 1997, it would stand to reason that she also would have reported the same injury to Betty Logan when she was treated for those complaints the day after the alleged accident. To the contrary, Betty Logan, a Nurse Practitioner with the Hattiesburg Clinic, testified in her deposition that she saw the Claimant on December 24, 1997, with complaints of posterior shoulder pain, left upper shoulder pain, posterior neck pain, and complaints involving the entire left hand at which time the Claimant informed her that she had not had any recent injury to her back or neck nor had she had any past injury. The additional history that she received from the Claimant at that time was that the Claimant had previously been placed on Robaxisal and Relafen by another health care provider but that she had been off of those medications for a week. Consequently, this information clearly contradicts Claimant's present contentions that these problems arose on December 23, 1997, as she would have already been taking medication for these problems prior to that date.

Ms. Logan testified that Robaxisal is used for treating muscle injuries. Ms. Logan explained that she is a Certified Nurse Practitioner with a Masters Degree in Nursing. A Nurse Practitioner performs the same role as a Family Medical Doctor and she works in conjunction with a supervising physician, Dr. Diane Moran. She examines, diagnoses, and treats patients with the usual medical conditions that are treated by a Family Practitioner and she is licensed to prescribe all medications except narcotic or scheduled medications. She further testified that she sees patients with work related injuries that occur at the Employer's facilities, but she did not see the Claimant as a workers' compensation patient. She explained that if a patient is referred to them by K.L.H. Industries, Inc., they authorize treatment under the workers' compensation insurance. She explained that her procedure in other such injuries requires her to contact the plant nurse and get authorization before treating patient who allegedly are injured at K.L.H. This did not occur in this particular matter because the Claimant at no time furnished her a history of being injured on the job at K.L.H. During Ms. Logan's examination of the Claimant on December 24, 1997, the complaints involving the Claimant's neck did not radiate to her arms. She requested x-rays of Claimant's cervical spine which were reported as normal with the disc spaces well preserved and no abnormalities with the vertebral bodies.

When the Claimant was next seen by Ms. Logan on January 13, 1998, it was for the same complaints at which time the Claimant again denied that she had any recent injury or surgery involving her back or neck, and she was not treated as a workers' compensation patient at that visit. Ms. Logan referred the Claimant to Dr. Wendell R. Helveston, a neurologist of Hattiesburg for nerve conduction studies of both arms. When these studies were reported by Dr. Helveston to Ms. Logan as being normal, Ms. Logan stated that she had no objective basis to recommend additional treatment for the Claimant. Specifically, she stated that she did not refer her to Dr. Dinesh Goel, Dr. Salil Tiwari or, Dr. Bernard Patrick. She acknowledged that she could not relate the Claimant's complaints on those visits to any injury on the job as she got a negative history of any injury from the Claimant.

Dr. Wendell R. Helveston, a expert in clinical neurophysiology and neurology testified that he saw the Claimant on one occasion, January 22, 1998. He obtained a medical history at that occasion and there was no history related to him of any injury. He conducted EMG and nerve conduction velocity studies of both of the Claimant's arms and hands to test whether or not the patient had a dysfunction of the peripheral nerves leading from the neck into the arms and to test to see whether or not there was initiation or disruption of the nerves at the level of the neck or in the arms. It was his conclusion that these tests were normal. He stated that based upon these studies he was of the opinion that the Claimant did not have a significant entrapment of the median nerve at the wrist which is referred to as carpal tunnel syndrome. He further testified that she did not show any evidence of a cervical radiculopathy, and based upon the lack of a history of a work related injury and based further upon the normal studies, he was unable to venture an opinion that Claimant suffered a work related cervical spine injury. He confirmed that diabetes and thyroid disease have both been linked to numerous neurological problems that would affect the hands and the feet. He stated that if the Claimant had recently undergone surgery of the cervical spine involving C4-5 and if this surgery did not relieve symptoms of numbness in the hands and it was progressing to the feet as well, this would give him cause as a neurologist to question that there might be some other cause of the Claimant's complaints.

The clinical notes and medical depositional testimony of Dr. Dinesh Goel would also appear to be in conflict with the Claimant's sworn testimony in this matter. When the Claimant was seen by Dr. Goel and Dr. Tiwari, she used her health insurance to pay for her visits. According to Dr. Goel, he had treated the Claimant for a number of years dating back to sometime around 1982. At that time she had been involved in an automobile accident and had suffered a descalping injury across her head that required multiple stitches. Although the Claimant denied ever having any neck complaints in the past, Dr. Goel's records reflect that he saw her on January 4, 1983, at which time she complained of neck pain on the left side of her neck that had been going on for two or three months. Dr. Goel also treated the Claimant in December, 1984, for a broken nose that was sustained in another automobile accident. X-rays of her skull and shoulder were performed at that time.

Dr. Goel again saw the Claimant August 28, 1993, at which time her complaints were those of blackouts spells since 1991, where her neck gets stiff followed by a blackout spell. She reported at that time having experienced headaches since another automobile accident in 1991, and she also voiced additional complaints of anxiety, depression, and neck pain.

The first time that Dr. Goel actually saw the Claimant following the alleged injury of December 23, 1997, was an office visit of February 4, 1998. As the Claimant supposedly saw Dr. Goel for her work related injury and he was suppose to be her treating physician for that injury, one would expect to find that the Claimant had actually reported an alleged injury to him. Yet, Dr. Goel recorded absolutely no history of an injury on the job as described by the Claimant at the February 4, 1998, visit nor at any other visit. Further more, Dr. Goel was totally unaware that the Claimant would have seen Dr. Helveston or Betty Logan prior to his visit. At that time she was complaining of problems involving her hands and arthralgia of the spine and stiffness of the neck. On that basis, he referred her to Dr. Tiwari for neurological evaluation. The complaints of neck stiffness would appear to be very similar to those she complained of in 1993, that had been going on since 1991. As Dr. Goel suspected that she may have carpal tunnel syndrome, he referred her to Dr. Salil Tiwari for a complete neurological workup.

Dr. Tiwari's records reflect that he first saw the Claimant on February 9, 1998, at which time he filled out a patient history and examination form. The history revealed at that time that the Claimant reported a closed head injury with lacerations to the forehead that had been surgically repaired by Dr. Goel. Dr. Goel confirmed that this was the descalping injury that occurred in 1982. The next heading on the report of Dr. Tiwari inquires about the history of spine and head injury. Dr. Tiwari's notes reflect that at that time she reported no history of spine and head injury other than the one described in the past medical and past surgical history. There was absolutely no history recorded of any trauma such as the one that the Claimant allegedly sustained on December 23, 1997. According to Dr. Goel, when he saw the Claimant on March 4, 1998, her complaints were neck pain, arthritis, neuropathy of both hands, neuropathy of both feet at which time he diagnosed a possible neuropathy, recommended a B-12 injection, folic acid, and further recommended that she return to work on March 9, 1998. Once again there was a total absence of any history of a work related injury.

The Claimant was eventually referred by Dr. Tiwari to Dr. Bernard Patrick, a neurosurgeon in Jackson, Mississippi. The Claimant acknowledged that she did not get authorization from the workers' compensation insurance Carrier in this matter before treating with Dr. Goel, Dr. Tiwari or Dr. Patrick. She used a health insurance policy for treatment by all of these doctors. Dr. Patrick performed a surgical procedure on the Claimant's cervical spine on April 15, 1998, and the history that he obtained at that time was that the Claimant had been having intermittent difficulty with complaints of recurrent neck pain and associated intermittent numbness of her hands, all of which obviously would have been going on a long time before December 23, 1997. Dr. Patrick further notes that her pain and numbness became constant and progressive development of awkwardness and weakness in the hands with inability to button her blouse or open jars and doors in December, 1997. The factor that brought her to him for medical attention was progressive weakness and numbness in the hands. Absolutely no history of a specific injury to the Claimant neck was recorded in the medical records of Dr. Patrick. Dr. Patrick has released the Claimant to return to some type of work, but the Claimant acknowledged at the hearing that she has not attempted to return to work anywhere.

Alberta Wilson testified in behalf of the Employer and Carrier as the Employer's company representative. Ms. Wilson testified that she had reviewed all of the company records with regard to the Claimant and could find no report from the Claimant regarding a December 23, 1997, accident. Specifically, she found no history of an accident as described by the Claimant that would have occurred on December 23, 1997. There was no documentation in the personnel records to indicate that this Claimant was out on a work related injury. Finally, with regard to the attendance records for Sammi Lyne Kirkley, Claimant's supervisor, Ms. Wilson testified that the records which were kept in the usual course of business of this Employer, reflected that Sammi Lyne Kirkley did not work on December 23, 1997. This would appear to be contradictory to the Claimant's contention that she immediately reported her alleged accident to Sammi Lyne Kirkley on December 23, 1997.

In a workers' compensation claim, the Claimant has the burden of proof of establishing every essential element of the claim, and it is not sufficient to leave the matter to surmise, conjecture, or speculation. Narkeeta, Inc. v. McCoy, 153 So. 2nd 798, 800 (Miss. 1963); Flintkote Company v. Jackson, 192 So. 2nd 395, 397 (Miss. 1966); Fought v. Stuart C. Irby, 523 So. 2nd 314, 317 (Miss. 1988); and V Dunn, Mississippi Workers' Compensation, Section 265 (3rd Addition 1982).

"Injury" is defined as "accidental injury ... arising out of and in the course and scope of employment without regard to fault which results from an untoward event or events ... An untoward event shall not be presumed to have arisen out of and in the course and scope of employment..." Mississippi Code Section 71-3-3(b).

In reviewing the evidence presented at the hearing of this matter, I find that the Claimant has failed meet her burden in proving that she sustained an injury in the course and scope of her employment or that any work injury ever occurred. If find that there has been no evidence presented that the Claimant suffered from any untoward event. Further, I find no proof of any causal connection between any disability and the alleged incident of December 23, 1997. In fact, it is the opinion of this Administrative Judge that no injury or accident occurred as alleged by the Claimant on December 23, 1997.

From the outset of the cross-examination testimony of the Claimant and throughout her testimony thereafter, it was painfully obvious that Claimant was either unwilling or unable to truthfully respond to questions presented to her. Having fully observed the candor and demeanor of the Claimant during her testimony, I find her testimony unworthy of belief. She alleges a specific accidental injury occurring on December 23, 1997, that she allegedly reported to Sammi Lyne Kirkley who, according to the company's records, was not even working that date.

The next inconsistency in Claimant's proof involves medical treatment rendered to the Claimant by Betty Logan who saw the Claimant the day after the alleged accident for all of her symptoms that she now attempts to relate to an accident of December 23, 1997. However, Claimant give a history at that time of no accident or traumatic event and further furnished history of having been taking medication for the same complaints prior to the alleged accident date. Furthermore, her adamant denials of any prior neck problems or complaints are in opposition to the medical records of Dr. Goel. The report of Dr. Bernard Patrick also confirms that the Claimant had been experiencing neck problems off and on long before the date of December 23, 1997.

In viewing the evidence as a whole in this matter and in consideration of the many conflicts in the Claimant testimony with the documentary evidence as well as the depositional testimony of the various medical expert witnesses, I find that the Claimant has failed to meet her burden of proving that her injury arose out of and in the course and scope of her employment or that any work injury ever occurred as alleged. In addition, I find that the overwhelming weight of the evidence in this matter warrants a conclusion that there is no causal connection between any disability that the Claimant allegedly suffers and the alleged incident of December 23, 1997. King and Heath Construction Co. v. G. W Hester, Jr., 360 So. 2nd 692 (1978).
 

Having heard and considered all of the evidence presented in this cause, both oral and documentary, and based upon a preponderance of the same, and having observed the demeanor of the Claimant in this case, I make the following findings of fact, to-wit:

I . The Claimant has failed to adequately prove entitlement to benefits under the terms and provisions of the Mississippi Workers' Compensation Act. She has failed in the burden of proving that an untoward event occurred and that her injury arose out of and in the course and scope of her employment on December 23, 1997.
 

It is, therefore, Ordered that the Claimant's claim for benefits under the provisions of the Mississippi Workers' Compensation Act, be, and is hereby denied.

SO ORDERED this the 1st day of December, 1999.

W. A. THORNTON
ADMINISTRATIVE JUDGE

ATTEST:
Brenda H. Goolsby, Secretary