MWCC NO. 98-07507-G-3009

AMANDA TYSON                                                                                                                                CLAIMANT

vs.

KENDRICK HEADSTART                                                                                                                 EMPLOYER
AND
THE TRAVELERS INSURANCE COMPANY                                                                                     CARRIER

APPEARING FOR CLAIMANT:
Honorable Keith S. Carlton, Attorney at Law, Corinth, Mississippi

APPEARING FOR DEFENDANTS:
Honorable Franklin Williams, Attorney at Law, Oxford, Mississippi
 

The Commission heard the above styled cause on June 26, 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 the Administrative Judge" dated January 18, 2000.

Claimant's "Motion to Admit Additional Evidence", filed with the MWCC June 19, 2000, Is granted.

SO ORDERED, this the 28th day of June, 2000.

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

ATTEST:
Brenda H. Goolsby, Secretary
___________________________
 

MWCC No. 98 07507-G-3009

AMANDA TYSON                                                                                                                               CLAIMANT

vs.

KENDRICK HEADSTART                                                                                                                EMPLOYER
AND
THE TRAVELERS INSURANCE COMPANY                                                                                    CARRIER

APPEARING FOR CLAIMANT:
Mr. Keith S. Carlton, Attorney at-Law, Corinth, Mississippi

APPEARING FOR DEFENDANT:
Mr. Franklin Williams, Attorney at Law, Oxford, Mississippi
 

Claimant alleged that on February 19, 1998, she injured her back and neck while working on the Employer's work premises. The Employer-Carrier denied compensability and paid no medical expenses or temporary disability benefits. The hearing was held at the Alcorn County Courthouse in Corinth, Mississippi, on September 22, 1999.
 

1. The parties agreed that there was no issue to be decided regarding the reasonableness and necessity of medical treatment.

2. The parties stipulated that Dr. Crosby placed Claimant at maximum medical improvement on November 4, 1998.
 

1. Whether or not a work related accident occurred on February 19, 1998, injuring Claimant's back and neck.

2. Claimant's average weekly wage on the date of the alleged work accident.

3. The existence and extent of temporary disability attributable to the accident alleged in the petition.

4. The existence and extent of permanent disability attributable to the accident alleged in the petition. The Employer-Carrier also raised the issue of apportionment for Claimant's pre-existing back condition.

5. Whether Claimant is entitled to recover penalties and interest on disability payments not timely made.
 

Claimant is a 28-year-old resident of Alcorn County, Mississippi, who has a high school diploma and two semesters of community college. She has worked as a cashier, cook, waitress, teacher and assembly-line worker. Claimant testified that she began work at the Employer on February 16, 1993, as a teacher's aide. Claimant stated that at the Employer, she worked in a room of 18-19 children who were 3-4 years old. She described her responsibilities as serving the children breakfast, assisting them with personal hygiene and instructing the children. Claimant said that she worked 7 hours per day for 5 days per week at $6.82 per hour.

Claimant stated that she began having back problems in 1996 and had surgery in November 1997. Claimant said that she returned to work on January 7, 1998, when her physician, Dr. Crosby, released her to return to work with restrictions from repetitive bending and lifting over 15 pounds. However, Claimant explained that these restrictions were to continue for only 6 weeks and end in March 1998.

When Claimant returned to work in January 1998, she assisted a teacher named Tammy Irvin. Claimant alleged that two weeks after returning to work, Irvin had to leave work due to hernia surgery. Since no teacher replaced Irvin, Claimant had to work in the classroom without assistance.

Claimant recalled that on February 1 9F 1998, she was stacking the sleeping mats after the children's nap time when she lifted a mat and felt imme&6te pain from her lower back to her neck. She agreed that the mats were not heavy and a stack would only weigh from five to ten pounds. Claimant said that she told a co-worker, Sarah Day, that she hurt her back that day.

Claimant claimed that the Employer's administrator, Hester Bugg, was out of town that day working in Jackson, so Claimant could not report the injury to her. Claimant admitted that she did not report the injury to the lead teacher that day, who was Teresa Nash. Claimant stated that she received no training whatsoever at the Employer on how to handle or report work accidents. Claimant explained that her spouse is on disability but that did not give her knowledge on how to handle workers' compensation claims.

Claimant testified that she went to the local emergency room due to her pain where she was advised to see her back specialist. Claimant asserted that she told both the emergency room physician and her back specialist, Dr. Crosby, that she hurt herself at work. Claimant was unsure of the exact day that she, spoke with Bugg about the incident. However, Claimant maintained that she telephoned Bugg at home when Bugg returned to Corinth and reported a work accident. Claimant stated that Bugg never gave her a report to complete or any other documentation. Claimant agreed that Bugg constantly stressed the need for documentation in the workplace.

Claimant testified that after seeing Dr. Crosby, she returned to work from February until May 1998, when the school year ended and all employees were laid off for the summer. She said that she had surgery in July 1998, but did not recover as she did from the first surgery. Claimant stated she improved somewhat after the second surgery since she lost weight and participated in water aerobics. However, Claimant described her pain in her lower back as constant and that her neck and legs also hurt. She said she now has problems with sitting, standing, and driving.

Claimant stated that she discussed her neck pain with Dr. Crosby, but he wanted to treat her lower back first and deal with her neck later. Claimant admitted that she teaches water aerobics at the Corinth Sports Plex three to four hours per week at $5.15 per hour. She also works as a lifeguard when necessary, and she stated, that she only worked in that capacity two times during the past summer.

Claimant testified that since November 1998, after being released by Dr. Crosby, she has searched for work unsuccessfully. She admitted that she is looking for a light-duty position. She stated that after receiving a list of potential employment opportunities from the vocational rehabilitation expert, she tried to find work at those places without success.

As to her physical condhion, Claimant testified that she had fibrornyalgia and arthritis in her shoulder and knees prior to the incident at work. She remembered having blood clots in 1991 during child birth but stated that the problem resolved itself. She also recalled a 1996 motor vehicle accident causing her to have whiplash but she stated that she did not miss work since she was already out for the summer. Claimant stated that although her back began hurting in 1996, she was not claiming workers' compensation benefits for that injury. Claimant stated that none of her prior physical conditions caused her to miss work.

Ms. Sarah Day testified for the Claimant. Ms. Day stated that she worked as bus driver/janitor at the Employer in 1997 and 1998, until she resigned on August 2 1, 1998. Day recalled that Claimant complained of hurting her back after lifting mats in February 1998. Day stated that she was aware of Claimant's prior back problems as well as some conflict between Claimant and some of the other coworkers. Day confirmed that Tammy Irvin left on sick leave when Claimant first returned to work in January 1998. Day also recalled Claimant complained that she was not getting any assistance from co-workers while Irvin was off work.

Ms. Teresa Nash testified for the Employer-Carrier. Nash stated that she has been lead teacher for several years at the Employer, and i3s such, she is in charge of supervising the staff and reporting to the Administrator. Nash stated that Claimant had physical problems and limitations both before and after the first back surgery. However, Nash said that the Claimant's job was not physical and not difficult. Nash recalled that after Claimant's 1996 motor vehicle accident, Claimant brought a folding chair to work to sit and rest periodically.

Nash remembered Claimant's requesting assistance in January 1998, but Nash admitted that it was difficult to offer assistance since she had her own classroom to handle. She was aware of lifting restrictions that Claimant had when she first returned to work in January 1998, and she was also aware that Claimant had a classroom by herself for about two weeks when the teacher was out sick.

Nash confirmed that Claimant did not follow proper procedure and did not report any work accident to her. Nash testified that all workers attend an orientation, where procedures for reporting work accidents are discussed. Although Nash testified that Claimant missed work for physical problems prior to the alleged work accident, she stated that the time sheets were missing from the Employer so that Claimant's time could not be verified.

Mr. David Stewart, vocational rehabilitation expert, testified for the EmployerCarrier. He met with Claimant in June 1999 and performed a labor market survey. He testified that with Claimant's varied work background and the current employment situation in her locale, she would be able to find a position even in the sedentary work range. Stewart reviewed Claimant's job search list and decided that she was not seeking employment within her current physical restrictions. He testified that he contacted some of the employers listed in his labor market survey which Claimant said that she contacted, and he found that the employers did not recall Claimant applying for work with them and had no applications on file.

Ms. Hester Bugg, center administrator for the Employer, testified that she supervised the teachers and the aides at the Employer. She confirmed that in her absence, Nash would be in charge of supervision. Bugg confirmed Claimant worked for the Employer for five years and was a good worker. Bugg stated that Claimant did not report a work accident to her although Claimant had been instructed on procedures for reporting work accidents.

Likewise, Bugg denied that Claimant telephone her at home to report a work accident. Bugg stated that Claimant went to doctors all of the time, and she had to caution Claimant about using too many sick days. Bugg confirmed that Tammy Irvin ,was absent for two weeks in February 1998 and that Claimant was responsible for the classroom.

Dr. Glen Crosby, Jr., neurosurgeon with the Semmes-Murphey Clinic, began treating Claimant in August 1997 for chronic lower back pain. He ordered and reviewed an MRI, myelogram, and post-myelogram CT. Dr. Crosby diagnosed Claimant with a herniated disc at the L5-S1 level on the right, and in November 1997 he performed a hemilaminectomy and diskectomy with foraminotomy exploration of the L4-5 level. On January 7, 1998, Dr. Crosby noted that Claimant was having no pain in her back or legs with only intermittent pain in the upper part of her right leg. He allowed her to return to work with no repetitive bending and no lifting of over fifteen pounds. Dr. Crosby stated that those restrictions would only be for three months and then she would be released to full-duty work on March 1, 1998.

Dr. Crosby testified that Claimant sought treatment again on March 25, 1998, at which time she reported picking up mats at work on February 19, 1998, and developing paih in her loWer back and progressing down into her right leg. Dr. Crosby ordered and reviewed an MRI scan, which he interpreted as indicating mostly scar tissue around the L5-S1 nerve root without any herniated fragments. He prescribed medication and referred Claimant to water aerobics. There is no mention in Dr. Crosby's notes of any complaints of pain or problems with Claimant's neck.

On May 20, 1998, Dr. Crosby noted Claimant's continuing complaints of pain in her back and right leg. He wrote, "She was recovering from this, however, when at work she's having to do a lot of bending and cleaning of tables bending forward at the hips as well as lifting up some trays." He also noted that Claimant was complaining of "chronic neck pain," so he ordered another MRI. He found a small herniated disc at the C5-6 level, which he felt was non-surgical. He also found a recurrent disc at L4 with scar tissue at the L5 level.

Dr. Crosby performed a "right re-do L4 through L5 and L5 through S1 hemilaminectomy, discectomy, lysis of adhesions, and extensive foraminotomy" on July 13, 1998. In September 1998, Dr. Crosby suspected Claimant had lumbar facet syndrome with a "very good chance" she would be unable to return to her previous employment. He placed Claimant at maximum medical improvement on November 4, 1998. He agreed with the functional capacity examination results, limiting Claimant to sedentary work with no lifting of greater than ten pounds and a 12% permanent medical impairment rating.

Dr. Crosby opined within a reasonable degree of medical certainty that Claimant's second injury was caused by lifting the mats. He stated that the diagnosis for the second injury was a recurrent disc at the L4 and L5 level. Crosby opined that Claimant's history was compatible with his diagnosis. Although Dr. Crosby stated that Claimant's restrictions and impairment rating were due to having multiple surgeries, he specifically stated, "It seems as if her present situation is more related to the second injury." However, Dr. Crosby agreed that his testimony regarding causation was based solely on Claimant's history as she reported to him. He also testified, "There is a certain percentage of people who will have a recurrent disc for any of a number of reasons, including just insidious onset."

When questioned about not finding the recurrent disc on the March 1998 MRI, Dr. Crosby testified he either did not see the disc at that time or the disc occurred later. He stated that discerning between a recurrent disc versus scar tissue is often difficult. According to Dr. Crosby, the recurrent disc could have enlarged or changed between the two MRI's.

During his testimony, Dr. Crosby reviewed the triage report from the Magnolia Hospital dated February 20, 1998. Dr. Crosby agreed that the report was consistent with the history Claimant gave him about her lower back pain beginning on February 19, 1998. However, further questioning revealed the triage report apparently did not mention any work activities. The Magnolia Hospital triage report was not offered into evidence by either party.

Dr. George A. Housley, Jr., rheumatologist with the IMA Foundation, began treating Claimant on March 11, 1998, for a myriad of complaints. He diagnosed Claimant with fibromyalgia, somatization, and polypharmacy. He noted Claimant's previous history of back surgery and wrote, "She reinjured her back and says she needs surgery again." He also noted that Claimant has had diffuse aches and pains for several years particularly in her shoulders, neck and lower back.

Dr. Housley continued to treat Claimant throughout 1998 for various complaints including knee pain, hip pain, blood clots, and depression. On September 8, 1998, the date of the last record, Dr. Housley treated Claimant for fibrornyalgia and arthralgia. In July and August 1998, Claimant reported to Dr. Housley that her back was improving and that it was not a major issue.
 

I base the following findings on a preponderance of the evidence, including medical proof as required by the Act:

1 . Claimant has not met her burden of proof that her injury of February 19, 1998, was work connected as alleged in the petition. Claimant has a varied work history and some college education. She claimed she hurt her back lifting mats at work, but then admitted that she did not report a work accident to her immediate supervisor that day. Although Claimant visited an emergency room the next day, that record was not offered into evidence.

Claimant asserted that she called the administrator some time later and reported the incident, which the administrator denied. Claimant continued to work for an additional three months until the school year ended, but she did not fill out a work accident report form during this time. Two witnesses for the Employer-Carrier credibly and consistently testified that all employees were trained in reporting work-related accidents.

Considering the testimony of witnesses and the records offered into evidence, I find Claimant has not established by a preponderance of credible evidence that she suffered a work-related accident on February 19, 1998.

2. As a result of the above finding, all other issues are moot.
 

IT IS THEREFORE ORDERED AND ADJUDGED that the Claimant's claim for workers' compensation benefits is hereby denied.

SO ORDERED this the 18th day of January, 2000.

TAMMY GREEN HARTHCOCK
ADMINISTRATIVE JUDGE

ATTEST:
Brenda H. Goolsby, Secretary