MWCC NOS. 98 07719-G-3052;
98 07720-G-3053
98 07721-G-3054; 98 07722-G-3055
DWIGHT EUBANKS CLAIMANT
vs.
PROFESSIONAL BUILDING SERVICES
EMPLOYER
AND
LIBERTY MUTUAL INSURANCE COMPANY
CARRIER
REPRESENTING CLAIMANT:
Hon. Roderick D. Ward, III, Attorney at Law,
Jackson, Mississippi
REPRESENTING DEFENDANT:
Hon. Silas McCharen, Attorney at Law, Jackson,
Mississippi
The Commission heard the above styled cause on March 13, 2000 in the offices of the Mississippi Workers' Compensation Commission in Jackson, Mississippi on the "Claimant's Notice of Appeal to 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 November 15,1999.
SO ORDERED, this the 16th day of March, 2000.
MISSISSIPPI WORKERS' COMPENSATION COMMISSION
BY: Barney Schoby
Beverly Bolton
COMMISSIONERS
ATTEST:
Brenda H. Goolsby, Secretary
___________________________
MWCC NOS. 98 07719-G-3052
E-21, 98 07720-G-3053-E-21,
98 07721-G-3054-21, & 98 07722-G-3055-E-21
DWIGHT EUBANKS CLAIMANT
vs.
PROFESSIONAL BUILDING SERVICES EMPLOYER
AND
LIBERTY MUTUAL INSURANCE COMPANY CARRIER
APPEARING FOR THE CLAIMANT:
Rod Ward, Esquire, Jackson, Mississippi
APPEARING FOR THE EMPLOYER AND CARRIER:
Silas McCharen, Esquire, Jackson, Mississippi
On June 12, 1998, the claimant filed four petitions to controvert alleging that on October 20, 1997, October 28, 1997, November 6, 1997, and November 19, 1997, he received work-related injuries to his back and various other parts of his body, including his left hip, left side, left leg, buttocks, and arms, while working for Professional Building Services at King's Daughters Hospital in Yazoo City, Mississippi. The employer and carrier have denied the compensability of the alleged injuries and have not paid workers' compensation benefits, medical or otherwise.
A hearing was held in Hearing Room "A" at the Mississippi Workers' Compensation Commission in Jackson, Mississippi, on February 19, 1999, on the issue of compensability.
The record was held open after the hearing for
the parties to obtain the medical records from the Veterans Administration
(V.A.) and to take the deposition of one or more of the V.A. doctors. Additionally,
the claimant requested that the matter be
placed on the inactive docket as he was undergoing surgery at the V.A.
in July 1999.
The following exhibits were received into evidence after the hearing:
16. The deposition of Dr. Padnia Surapaneni, physiatrist at the V.A. Hospital in Jackson, taken May 19, 1999; and
17. Supplementary medical records from the Veterans Administration.
The issue to be resolved by the Administrative
Judge is whether any back, left leg, left hip, and/or left side injuries
sustained by Dwight Eubanks arose out of and in the course of his employment
with Staff Leasing and/or Professional Building Services at King's Daughters
Hospital in Yazoo City, Mississippi.
Dwight Eubanks testified that he is thirty-eight years old and a resident of Hattiesburg, Mississippi. He is divorced and has four children. One of his children, aged twenty-one, lives in California, and the other three, teenagers, live In Grand Rapids, Michigan. Mr. Eubanks testified in a very articulate fashion at the hearing.
Mr. Eubanks said he has lived in the Homeless
Veterans Base Camp in Hattiesburg, Mississippi, since March 3, 1998. Before
that he lived in Yazoo City on Wise Street. In 1993, he underwent substance
abuse rehabilitation in Battle Creek, Michigan, for three months. He relapsed
the end of 1997 and subsequently went through the thirty-day drug program
at the V.A. Hospital in Jackson. He also went through three months of after
care in Moselle, Mississippi, and then he was assigned to the Homeless
Veterans Base Camp in Hattiesburg. He continues to do drug rehabilitation.
Mr. Eubanks was born in Yazoo City, Mississippi,
where he graduated from high school in 1977. He also attended Grand Rapids
Junior College, studying business and computer programming, in approximately
1982 and 1983. Mr. Eubanks served the United States Navy as a Seaman. He
was in the Navy for a little more than three years, when he was honorably
discharged. In 1981 and 1998, he made claims against the government for
a service-related disability for flat feet, both of which claims were denied.
After that, Mr. Eubanks moved to Grand Rapids,
Michigan, and he worked in the personnel field for a Kent County government
program for two or three years as a clerk-typist in a warehouse. He left
Michigan and moved to Dallas, Texas, where he worked for a construction
company doing highway construction. He helped build forms and drove trucks
for about six months.
In 1984, Mr. Eubanks was employed by Provident
American Insurance Company in training to be an insurance adjustor. He
said he wanted an office job, and he was a good typist. He worked there
for a few months and earned about $1,100 but got homesick for Michigan
and quit the job and returned to Michigan.
When Mr. Eubanks returned to Michigan, he worked
for a few temporary companies. He did custodial, industrial, and construction
work for three or four years. He then worked as a shipping and receiving
clerk at Wolverine Coil and Spring Company in Grand Rapids, Michigan. He
subsequently went back to construction work building and erecting commercial
structures. The construction work was sometimes seasonal, and he would
fill in with light industrial work for temporary services. At the hearing,
Mr. Eubanks testified that he could not get back into clerical work because
he does not know how to use a computer.
In 1989, Mr. Eubanks was employed by Oven Fresh Bakery in Grand Rapids, Michigan. Mr. Eubanks was a mixer, running a dough mixing machine. There was syrup and bread all over the floor, and he walked across the floor and slipped and fell on his back. He said he injured his cervical and lumbar spine. He saw a doctor at a clinic, and he received workers' compensation benefits. He settled that case for $70,000 in December 1990. He testified that he was unable to work for about two years as a result of that injury.
In December 1992, while in Grand Rapids working
for a temporary agency in an unheated warehouse of office furniture, Mr.
Eubanks slipped and fell. He fell on his left side, and
he had some tingling in his left leg. He did not go back to work for that
company. He filed a workers' compensation case, but he subsequently dropped
it.
Mr. Eubanks could not remember where he worked
between 1993 and 1995. He testified he thought he worked for some temporary
agencies in Michigan.
In 1995, Mr. Eubanks came back to Yazoo City and worked for two or three months for Harmony Construction Company, which was based in Lake Charles, Louisiana, doing steel erection at the Mississippi Chemical Company in Yazoo City. He applied for work there in March 1995, and he did not put anything about prior back injuries or prior workers' compensation claims on his application, although there were specific questions about those matters on the application.
While working there as a craft helper assisting any skilled tradesman on the job, Mr. Eubanks lifted a wooden crane platform and hurt his back. He was laid off from the job, he had problems with his back, and he was treated by Dr. Wallace Weatherly, orthopaedic surgeon in Jackson, beginning in May 1995. The construction company provided workers' compensation benefits.
Mr. Eubanks saw Dr. Weatherly until February 13, 1996. Dr. Weatherly sent Mr. Eubanks to Dr. Carroll McLeod after that, he underwent four steroid injections, and he did a work hardening program. He settled that workers' compensation case for $17,000.
In October 1995, Mr. Eubanks and Dale Buckner
were in an automobile accident. Mr. Buckner was driving the car, and Mr.
Eubanks was a passenger. Mr. Eubanks was injured
in the accident, aggravating his back injury. He
attempted to get benefits from the insurance company of the driver of the
other car, and he received approximately $2,700.
The next employment Mr. Eubanks had was in the
fall of 1997 for Professional Building Services, through their leasing
company, Staff Leasing, at the King's Daughters Hospital in Yazoo City.
He worked at that job for approximately two months. He said he received
four injuries, on October 20 and 28, and November 6 and 19, 1997.
According to Mr. Eubanks, on October 20,1997,
Mr. Eubanks and co-employee Dale Buckner were in the hallway doing the
floors. The floor was slippery, and Mr. Eubanks fell. He went to the emergency
room at the hospital, although he did not particularly feel a need to do
so. On October 28, 1997, his feet got caught in a cord, and he fell on
his buttocks. He reported that he fell, and he went back to the emergency
room for X-rays. He did not have any real problems from those two incidents.
On November 6,1997, Mr. Eubanks slipped and fell
in the wax again. He said he was too embarrassed to go to the emergency
room. On November 19, 1997, he was in the laboratory, he laid the stripper
down, and he got tangled up in the cord and slipped and fell on his buttocks
again. He did not go to the emergency room or seek medical treatment.
After November 19, 1997, Mr. Eubanks was sore,
and he called in to Professional Building Services to report a problem
with his back. His employer told him the contract was finished with the
hospital and he did not need to report to work. Mr. Eubanks completed an
incident report with his employer.
In 1996 or 1997, Mr. Eubanks took an exam to be a substitute teacher in Yazoo City. He passed the exam. He said that now the requirements for substitute teachers have been raised. He has looked for work at one or two places.
Since his employment with Professional Building Services at King's Daughters Hospital, Mr. Eubanks has had a job with Labor Finders in Hattiesburg. He has done construction work for Georgia-Pacific, working about fourteen days and earning about $7.00 an hour. He was a fire watch supervisor there watching welders. Mr. Eubanks said the job required a lot of walking. He was offered a permanent position by Georgia-Pacific, but he did not have transportation to get back and forth to work, so he turned the job down.
Mr. Eubanks also worked at a place that makes concrete slabs, and he worked for a construction company constructing the Jitney Premiere on Highway 98. He could not remember how long he was employed there.
Daryl Watkins testified that he is a resident of Jackson. He is an X-ray technician at King's Daughters Hospital in Yazoo City and a radiation therapist at the V.A. Hospital in Jackson. He remembered Dwight Eubanks cleaning and waxing floors at King's Daughters Hospital, although he could not recall the exact date. He saw Mr. Eubanks walk across the floor, which was slick, and fall down on his "tail." He said Mr. Eubanks got back up and continued to do his work. Later, Mr. Watkins was called to do X-rays on Mr. Eubanks at the emergency room of the hospital. He thought he took X-rays of Mr. Eubanks on two occasions.
Brenda Hill testified that she is a resident of Yazoo City and an employee in the laboratory of King's Daughters Hospital in Yazoo City. She has worked there twelve years. She went to junior high school with Dwight Eubanks and also knew him when he worked at King's Daughters Hospital. She recalled that Mr. Eubanks fell while working at the Hospital while buffing or stripping the floor near her work area. The floor was slippery and he was running the buffing machine, when he slipped and fell backwards to a sitting position. He was holding on to the machine trying to keep from falling. She thought the other person working with Mr. Eubanks helped him get up. She asked Mr. Eubanks if he were okay, and he said, "Yes." She could not remember the exact date of the incident. She remembered that he had fallen on another occasion before that.
Pamela Ellis testified that she works in the housekeeping department at King's Daughters Hospital in Yazoo City, where she has worked for four years. She knew Dwight Eubanks while he was working at the Hospital. She could not recall the exact date but she remembered Dwight Eubanks falling at work. She said he was buffing and waxing the floors when he accidentally slipped down and fell on the floor, hitting the floor hard. She asked him if he were hurt, he said he hurt his "behind," and she suggested he go to the emergency room.
The medical records of Dr. Allen C. Hoekzema of Grand Rapids, Michigan, were received into evidence. Dr. Hoekzema examined Mr. Eubanks on June 5, 1989, on referral after an injury at Oven Fresh Bakery on or about May 14, 1989. Mr. Eubanks complained of constant discomfort in the low back area over the tailbone, tingling in his left leg and arm, stiffness in the lower base of the neck, and extreme headaches. X-rays revealed no problems with the spine, hips, SI joints, tailbone, or pelvis. Dr. Hoekzema diagnosed contusion of the coccyx, with evidence of radiculopathy. On November 7, 1989, Dr. Hoekzema examined Mr. Eubanks for complaints of low back pain. He diagnosed radiculopathy at L5 on the left and improving contusion to the coccyx. He recommended a CT scan of the lumbar spine.
Dr. Hoekzema saw Mr. Eubanks again on November 29,1989, and noted the CT scan showed a relative canal narrowing at the L5-L6 level with diffuse bulging of the discs and a prominent thecal sac density at the L6-SI level. He recommended a myelogram to rule out disc herniation. On December 11, 1989, the myelogram showed disc herniation at L4-5.
On February 13, 1990, Dr. Hoekzema saw Dwight Eubanks again after a referral to a Dr. Hedeman who did not recommend surgery but epidural injections instead. On March 26, 1990, Dr. Hoekzema saw Mr. Eubanks and diagnosed small disc herniation at the L4-L5 level and left L5 radiculopathy per EMG testing. He referred Mr. Eubanks to Dr. Gracias. Dr. Hoekzema saw Mr. Eubanks again on August 22, 1990, after an MRI ordered by Dr. Gracias. The cervical MRI showed disc protrusion or herniation at C5-C6 and C6-C7.
The medical records of Dr. Desiderio F. Ines, neurologist at the Kent Neurological Associates in Grand Rapids, Michigan, were received into evidence. Dr. Ines examined Dwight Eubanks on September 24, 1990, for an injury in May 1989. Dr. Ines noted Mr. Eubanks had back pain, left leg pain, and cramps in the right leg, with intermittent neck pain, intermittent balance problems, and some weakness in both legs. Dr. Ines diagnosed cervical and lumbar radiculopathy with possible cervical myelopathy and recommended a complete myelogram. On October 4, 1990, Dr. Vicente C. Gracias, neurosurgeon at the Kent Neurological Associates, noted Mr. Eubanks came in with his recent myelogram which Dr. Gracias described as "really not impressive." (Exhibit 12, p. 3).
The medical records of Dr. Wallace Weatherly,
orthopaedic surgeon in Jackson, were received into evidence. Dr. Weatherly
first saw Dwight Eubanks on May 25,1995, for injury to his back while lifting
150 pounds on the job for Turner Industries in Yazoo City. Upon examination,
Dr. Weatherly diagnosed lumbar strain with possible cervical strain. He
said X-rays revealed a little degeneration at the 4-5 level. On June 15,
1995, Dr. Weatherly suggested an MRI scan which was basically normal. On
June 29, 1995, Dr. Weatherly ordered a bone scan which was normal. On July
6, 1995, Dr. Weatherly examined Mr. Eubanks and found him to have nonorganic
pain in the lower lumbar spine. He recommended work hardening. On August
1, 1995, Dr. Weatherly noted Mr. Eubanks had had an injection by an anesthesiologist.
On August 22, 1995, Mr. Eubanks told Dr. Weatherly
he was no better. Dr. Weatherly said he did not need surgery and noted,
The medical records of Dr. Carroll McLeod, anesthesiologist in Jackson, were received into evidence. Dr. McLeod first saw Dwight Eubanks on July 26, 1995, at the referral of Dr. Wallace Weatherly for evaluation of chronic low back pain that began on April 19, 1995. Dr. McLeod administered an epidural steroid injection at the L4-5 level of the spine. He did the same on August 16, October 4, and December 6, 1995. Dr. McLeod released Mr. Eubanks back to Dr. Weatherly on December 20, 1995.
On January 30, 1996, Dr. Weatherly saw Mr. Eubanks again and noted he was no better after four epidural steroid injections. On February 13, 1996, Dr. Weatherly examined Dwight Eubanks who requested an operation. Dr. Weatherly recommended conservative treatment, however. On March 26, 1996, Mr. Eubanks said he could not stand the pain any longer and wanted to have surgery by a neurosurgeon. Dr. Weatherly referred him to Dr. Philip Azordegan.
The medical records of the King's Daughters Hospital in Yazoo City were admitted into evidence. On June 11, 1997, Dwight Eubanks reported to the outpatient emergency room with complaints of a sore throat. He also complained of pain in the right index finger caused by an insect sting. On June 27, 1997, Mr. Eubanks sought treatment in the emergency room for severe back pain, stating that he was out of pain medications from the V.A. On August 1, 1997, Mr. Eubanks went to the emergency room complaining of aching in his left shoulder and numbness for four days. On August 16, 1997, Mr. Eubanks reported to the emergency room doctor that he had cramping in his abdomen and nausea after drinking some milk. The physician suspected an allergic reaction. On September 15, 1997, Mr. Eubanks reported to the emergency room complaining of numbness in his left arm that was possibly related to an injection he received three weeks earlier. On September 19 and 26, 1997, Mr. Eubanks went to the emergency room for treatment of a spider bite to his right arm.
On October 20, 1997, Mr. Eubanks reported to the emergency room stating that he fell in the X-ray department while stripping the floor, injuring his left side, hip and leg. He also complained of a headache. The physician diagnosed lumbosacral strain. On October 28, 1997, Mr. Eubanks reported to the emergency room complaining of pain in his left side, left leg and left hip after a fall while working on the clinic floor. The examining physician diagnosed hypertension, elevated blood pressure, low back pain and something about his chest.
On December 1, 1997, Dwight Eubanks went to the King's Daughters Hospital emergency room complaining of pain, stiffness and swelling in his left leg of one week's duration. The physician diagnosed sprain or slight cartilage tear of the left knee.
Dr. Weatherly's records indicate that he examined Mr. Eubanks again on October 5, 1998, for complaints of injury on the job at King's Daughters Hospital. Dr. Weatherly reviewed an MRI scan. He diagnosed multilevel degenerative disk disease and spondylosis, noting that there was no change from his previous examination, apparently referring to the treatment he rendered Mr. Eubanks from May 1995 to February 1996 for the Mississippi Chemical Company injury. Dr. Weatherly noted:
Various medical records of the Veterans Administration were received into evidence. Dwight Eubanks was seen on June 28, 1996, for complaints of low back pain and right upper leg pain. The doctor noted a history of chemical dependency. He had undergone an MRI on June 24, 1996. The physician diagnosed herniated disc and referred him to pain rehab. The MRI report dated June 24, 1996, indicated an MRI of the lumbar spine showed a protrusion of the L4-L5 intervertebral disc, mainly a left lateral protrusion. On June 28, 1996, Mr. Eubanks was seen in the pain rehab clinic for complaints of chronic low back pain and numbness in the left leg that started in April 1995.
The V.A. medical records indicate that EMG and nerve conduction studies dated September 16, 1996, were found to be within normal limits. On October 28, 1996, Mr. Eubanks was examined for complaints of chronic low back pain with radiation into the left thigh and numbness in the left foot. The diagnosis was chronic pain.
On April 28, 1997, Mr. Eubanks was seen at the V.A. Hospital for chronic low back pain. The physician prescribed medication, heat and exercises and a return in six months. On May 23, 1997, Mr. Eubanks complained of pain in the low back and left leg after an injury two years earlier. Mr. Eubanks was noted not to be working at the time of the examination. An MRI was ordered.
The medical records of Forrest General Hospital
in Hattiesburg were received into evidence. The records indicate Dwight
Eubanks reported to the hospital emergency room on March 3, 1998, for complaints
of low back pain and pain in both legs and abdomen and urinary problems.
It was noted he had a history of disk disease especially at L4 and L5.
The emergency room physician suggested a referral to a neurosurgeon.
On June 26, 1998, Mr. Eubanks presented to the
emergency room at Forrest General Hospital with complaints of toothache
on the right side for two days. The diagnosis wag tooth decay and dental
abscess. He was asked to follow up with a dentist the next day.
Dr. Padma Surapaneni, physiatrist specializing
in physical medicine and rehabilitation at the V.A. Hospital in Jackson,
testified by deposition dated May 19, 1999, that she first saw Dwight Eubanks
in August or September of 1998. She said he complained of low back pain
for several years. "Then, if I remember, he had also fallen recently before
I saw him and complained of constant low back pain." (Exhibit 16, p. 8).
Dr. Surapaneni said Mr. Eubanks did not tell him whether the pain in his
back was better or worse as a result of the fall. Dr. Surapaneni saw Mr.
Eubanks three or four times after that, last seeing him in February 1999.
She said she discharged him then because there was nothing else she could
offer him.
When asked if Mr. Eubanks were temporarily totally disabled when she
saw him, Dr. Surapaneni responded that she was not
concerned with his work history or ability to work -just
medical treatment- and that she did not know what type of work he did.
When asked whether the work he was doing waxing the floor caused the sudden
onset of problem for which she treated him, Dr. Surapaneni answered:
Subsequent medical records from the V.A. were received into evidence. A letter addressed by Dr. Swamy "To whom it may concern" indicates that the subject of the letter (Dwight Eubanks? - he is not named in the letter) was unable to work due to pain and was disabled and scheduled for surgery "due to disc disease." (Exhibit 17, p. 3). Dwight Eubanks reported to Primary Care on July 21, 1999, for routine follow-up appointment and complaints of continued low back pain as a result of
After carefully considering the pleadings, pretrial statements, stipulation about average weekly wage, lay and medical evidence, the demeanor of the witness at the hearing, and the applicable law, the Administrative Judge finds as follows:
1. On approximately four occasions in October and November 1997, the two months he worked for Professional Building Services, Dwight Eubanks fell while waxing the floor at the King's Daughters Hospital in Yazoo City. Co-workers saw him fall, and he visited the emergency room approximately two times for treatment as a result.
2. There is no medical evidence to support a claim
for disability, either temporary or permanent, as a result of the four
slip-and-fall incidents at King's Daughters Hospital. On December 1, 1997,
Mr. Eubanks went to the emergency room complaining of pain and swelling
in his left knee. At that time he apparently did not mention anything about
a back or hip injury or pain that could be considered radiating into his
leg from his back. It was nearly a year later when Mr. Eubanks went to
Dr. Weatherly, complaining of injury on the job at King's Daughters Hospital.
Dr. Weatherly thought it was the "same old disease," that is, the chronic
problems Mr. Eubanks had been experiencing for many years. Dr. Weatherly
told Mr. Eubanks to return to work and wrote in his notes that he thought
Mr. Eubanks was malingering. Dr. Surapaneni at the V.A. Hospital testified
that she treated Mr. Eubanks beginning about
August or September 1998, but she did not know anything about an injury
or what type of work Mr. Eubanks had been doing. She was unable to connect
the problems for which she treated Mr. Eubanks to any job or injury on
the job. The claimant has the burden of proving his case, and Dwight Eubanks
has not met this burden. The various medical records, beginning in 1989
when Mr. Eubanks was living in Michigan, show that he has complained of
back pain and radiation of pain into his legs or hips for years. He has
had several workers' compensation claims and received a good deal of money
in settlements although he has never undergone surgery. Something just
is not right about his story, and he was not a credible witness in his
own behalf The doctors who treated him over a significant period of time
have not connected his complaints to the work or falls at King's Daughters
Hospital in October or November 1997.
3. The average weekly wage of the claimant on
October 20 and 28, and November 6 and 19, 1997, was $220.00, as stipulated
by the parties.
4. The employer and carrier are responsible for
payment of the two visits to the emergency room at King's Daughters Hospital
on October 20 and 28,1997, but not any other medical treatment.
IT IS THEREFORE ORDERED that the employer and carrier pay for Dwight Eubanks' two visits to the emergency room at King's Daughters Hospital in Yazoo City on October 20 and 28, 1997.
IT IS FURTHER ORDERED that Dwight Eubanks' claim for additional workers' compensation benefits is hereby denied and dismissed.
SO ORDERED, this the 15th day of November, 1999.
LINDA A. THOMPSON
ADMINISTRATIVE JUDGE
ATTEST:
Brenda H. Goolsby