MWCC NO. 98-00317-G-3281
LAURA McNAIR CLAIMANT
vs.
SANDERSON FARMS, INC.
EMPLOYER
(SELF-INSURED)
REPRESENTING CLAIMANT:
J. Peyton Randolph, II, Esquire, Jackson, MS
REPRESENTING EMPLOYER:
Richard O. Burson, Esquire, Laurel, MS
This matter was heard by the Commission on June
26, 2000 pursuant to the Claimant's Petition for Review. The Claimant takes
issue in several respects with an Order of the Administrative Judge entered
January 26, 2000. Therein the Administrative Judge held that Ms. McNair
suffered from bilateral carpal tunnel syndrome and was entitled to certain
temporary total disability benefits, and permanent partial disability benefits
for a 40% occupational loss of use of the right arm. As to the left arm,
the Judge held that any occupational disability involving the left arm
was due to employments other than at Sanderson Farms, and consequently,
Sanderson Farms was not liable for permanent disability benefits involving
the left arm under the last injurious exposure rule.
On review, we deal only with the liability of Sanderson Farms for temporary and/or permanent disability benefits involving Ms. McNair's left arm. We agree with the Judge's resolution of the issues relative to the right arm and with the Judge's finding that Ms. McNair is not permanently and totally disabled. We affirm these aspect of the Order accordingly.
Ms. McNair undeniably developed carpal tunnel syndrome in both of her upper extremities while working for Sanderson Farms. She began the subject employment in July 1994 and first sought treatment for right and left hand pain at the Greentree Medical Clinic on December 27, 1997. She was referred to D. Michael Weaver for further treatment.
Dr. Weaver first saw Ms. McNair on January 7, 1998. She reported right and left wrist pain which had been developing for approximately one year, with the pain becoming progressively worse on the right, or dominant side. Dr. Weaver's impression at this time was carpal tunnel syndrome bilaterally, with more significant symptoms on the right. He ordered EMG and nerve conduction studies to confirm his impression and these tests were carried out on January 14, 1998. These tests showed carpal tunnel syndrome with "approximately equal involvement of both sides."
Because Ms. McNair was having greater pain on her dominant right side, she elected to undergo a carpal tunnel release on the right arm only on January 29, 1998. This decision was in line with Dr. Weaver's preference for treating one side at a time, starting with the most bothersome. By April 27, 1998 Dr. Weaver noted that Ms. McNair had reached maximum medical improvement from this procedure and he assigned her a 5 % permanent medical impairment rating.2 Insofar as restrictions, Dr. Weaver explained that he generally does not assign specific restrictions and prefers instead to let his patients try whatever they find tolerable. By this time Ms. McNair had decided not to return to work at Sanderson Farms because she thought it unwise to return to the same job that caused her problems in the first place. She testified that her left hand was continuing to hurt even after recovering from the surgery on her right hand, but she wanted to wait a while longer until she had surgery on the left.
On May 13 Ms. McNair started work as a cook for ConvaRest Nursing Home in Mendenhall. This employment lasted only until June 7, 1998. Ms. McNair testified that she just wasn't capable of performing the work because of continuing problems with her hands and arms. Her husband testified that she started experiencing the same problems as at Sanderson Farms and he advised her to quit the job at ConvaRest, which she did.
Ms. McNair then started work for Hattiesburg Cable on August 11, 1998 but quit after only three days because she started developing hand and arm problems again, Just like at Sanderson Farms. She has not worked anywhere since, other than a little bit of baby sitting work.
She returned to Dr. Weaver on October 5, 1998
still complaining of pain in both arms, this time worse on the left. Dr.
Weaver noted that Ms. McNair still did not want surgery on her left wrist.
He saw her again on October 19, 1998 and he noted she was stable on the
left and still opposed to further surgery. When Ms. McNair returned on
December 30, 1998, Dr. Weaver noted she was having increased problems with
her left wrist and was now ready to undergo surgery which was carried out
on January 7, 1999. By March 1, 1999 Dr. Weaver felt Ms, McNair could return
to work using the left arm, and as with the right arm, he assigned a 5%
medical impairment.
The Employer makes much ado of the fact that Ms. McNair did not have surgery on her left wrist, and did not incur any disability related to the left arm, until long after she stopped working at Sanderson Farms. The Employer contends that whatever temporary or permanent disability Ms. McNair incurred with regard to her left arm was not caused by her employment at Sanderson Farms but is instead causally related to her employment at ConvaRest and/or Hattiesburg Cable. Sanderson argues that Ms. McNair suffered additional injurious exposures at ConvaRest and Hattiesburg Cable, both of which contributed significantly to her left arm disability, and therefore exonerate it of any further liability to Ms. McNair. In so arguing, the Employer invokes the defenses of intervening cause and/or last injurious exposure.3
The last injurious exposure rule provides that "when a disability develops gradually, or when it comes as the result of a succession of accidents, the insurance carrier covering the risk at the time of the most recent injury or exposure bearing a causal relation to the disability is usually liable for entire compensation." Singer Co. v. Smith, 362 So.2d 590, 593 (Miss. 1978). In applying this rule it is important to remember that the alleged successive exposures must Indeed be injurious before liability can be shifted to a subsequent employer. That is, "if the claimant continues to suffer pain while working for the new employer but there is no incident which independently contributes to the disabling injury, liability does not arise." Cedeno v. Moran Hauling, 2000 WL 471532 at p.5 (Miss. App. 2000). If nothing occurred during Ms. McNair's employments subsequent to Sanderson Farms which bears any measurable causal relationship to her disability, then Sanderson Farms stands liable for any and all disability which Ms. McNair has incurred as the result of left carpal tunnel syndrome. United Methodist Senior Services v. Ice, 749 So.2d 1227, 1230 (Miss.App. 1999).
The intervening cause rule is very similar in
that it holds a second or subsequent employer liable if "the second workplace
independently contribute[s] to the disability." 749 So.2d at 123 1. "On
the other hand, 'if the second incident does not contribute even slightly
to the causation of the disabling injury,' the first employer remains liable
for all." Id.
In this case, Ms. McNair undeniably developed carpal tunnel syndrome as a result of her employment with Sanderson Farms, and while so employed. Though she was considered a candidate for surgery on both the left and right arm from the time she was first diagnosed, she chose to have surgery initially on the right arm because her symptoms were more pronounced in her right hand and arm, her dominant member. This choice was consistent with her doctor's recommendation to treat one side at the time. That she had equal involvement of carpal tunnel syndrome in both arms was, however, confirmed by studies carried out on January 14, 1998, well before she attempted any work elsewhere.
In its effort to rid itself of any further liability regarding Ms. McNair's left arm, Sanderson Farms hammers away at the fact that Ms. McNair did not experience enough difficulty with her left arm, to the point of opting for surgery, until after she worked for ConvaRest and Hattiesburg Cable. However, the fact that Ms. McNair chose not to undergo carpal tunnel release surgery on her left arm until after she left Sanderson Farms tells only part of the story.
First, we consider the nature of her subsequent employments. Granted, they involved repetitive tasks which could be said to aggravate an existing case of carpal tunnel syndrome. However, the question is whether these employments were truly injurious. The employment at ConvaRest lasted only from May 13, 1998 to June 7, 1998, while the job at Hattiesburg Cable lasted a mere 3 days starting August 11, 1998.
Ms. McNair testified that she continued to have problems with her left hand and arm from the time she was first diagnosed and she just wasn't capable of performing the work at ConvaRest or Hattiesburg Cable because of continuing problems with her hands and arms. Her husband testified that she started experiencing the same problems as at Sanderson Farms and he advised her to quit the job at ConvaRest, which she did. The same story held true for the job at Hattiesburg Cable; she immediately started developing hand and arm problems again, just like at Sanderson Farms. She has not worked anywhere since, other than a little bit of baby sitting work. She ultimately elected to undergo surgery on her left wrist on January 7, 1999.
Dr. Weaver was asked about the relationship between Ms. McNair's left carpal tunnel syndrome and her work at Sanderson Farms, ConvaRest and Hattiesburg Cable. He said without question her work at Sanderson Farms caused her to develop bilateral carpal tunnel syndrome. He also stated that persons with bilateral carpal tunnel syndrome who undergo surgery on the dominant side usually favor the other side for a period of time and this leads to a natural worsening on the non-dominant side. He noted as early as April 1998 that Ms. McNair was already experiencing a worsening of her condition on the left, and he considered her then a candidate for surgery but he understood she was trying to put it off for as long as possible.
Dr. Weaver acknowledged that any repetitive activity Ms. McNair engaged in after her employment with Sanderson Farms could contribute to a worsening of her symptoms, and that she obviously had a material change in her symptoms by the time he saw her in October 1998 because she was then ready to undergo another surgery. However, her symptoms were just as likely to have worsened naturally over time whether she tried other work or not. As Dr. Weaver stated, once you get carpal tunnel syndrome "it doesn't just go away." As we understand his testimony, she was as much a candidate for surgery on the left when she was first diagnosed with bilateral carpal tunnel syndrome as she was when she finally decided to have surgery. Only her symptoms grew worse over time, and though the attempt to work at ConvaRest and Hattiesburg Cable contributed to a worsening of her symptoms, these brief periods of employment did not necessarily change or aggravate the underlying condition to the point of constituting a successive or intervening injury.
It is simply too much for us to conclude that these brief periods of employment with ConvaRest and Hattiesburg Cable were in any way injurious or in any meaningful way contributed to the development of temporary and permanent disability with regard to Ms. McNair's left arm. She was injured to the point that surgery on both the left and right arm was recommended before she ever left the employment of Sanderson Farms. She elected to undergo right carpal tunnel surgery first and later reluctantly agreed to left carpal tunnel surgery. It seems to us the development of temporary and permanent disability with regard to the left arm was the sole and direct result of Ms. McNair's employment at Sanderson Farms, coupled with her personal decision to delay surgery for as long as she could bear the continuing pain and discomfort of carpal tunnel syndrome.
Her disability was not independently caused or contributed to by her work at ConvaRest or Hattiesburg Cable. She could just as easily have elected to undergo surgery on the left arm immediately after recovering from surgery on her right arm, and before she ever tried to work at ConvaRest, and Sanderson Farms would clearly be responsible. Seen in this light, her underlying condition did not change during the time period in question; only her symptoms grew worse. That she chose to wait until January 1999 to undergo this procedure, and that she worked very briefly in the interim, does not prove that Sanderson Farms is relieved of any further liability by virtue of some successive or intervening injury or occurrence.
As In Ice, the
pain did worsen with her brief attempts to resume employment, "but that
is not the same as saying that the [underlying] condition was aggravated.
Pain is a symptom of an injury; that the pain worsens with certain activity
does not mean the activity is increasing the injury but only that the activity
is painful as a result of the injury." 749 So. 2d at 1232. We are not convinced
in this case that Ms. McNair's brief periods of employment with ConvaRest
or Hattiesburg Cable aggravated her injury or caused
or contributed to her ultimate disability in any way sufficient to justify
the discharge of Sanderson Farms as the responsible party.
We therefore reverse the Administrative Judge's decision with regard to Ms. McNair's left arm. We hereby order the Employer to pay for and provide all appropriate medical treatment to Ms. McNair for her left sided carpal tunnel syndrome. We further order the Employer to pay temporary total disability benefits to Ms. McNair from January 7, 1999 through March 1, 1999, and to pay permanent partial disability benefits for what we find, based on the evidence as a whole,4 is a 30% loss of use of the left arm.
In all other respects, the Order of Administrative Judge is affirmed.
SO ORDERED this the 9th day of August, 2000.
MISSISSIPPI WORKERS' COMPENSATION COMMISSION
Barrett Smith
Barney Schoby
ATTEST:
Joann McDonald, Secretary
___________________________
MWCC No. 98 00317-G-3281-D
LAURA McNAIR CLAIMANT
vs.
SANDERSON FARMS, INC.
EMPLOYER
(SELF-INSURED)
REPRESENTING THE CLAIMANT:
J. Peyton Randolph, II, Esq., Jackson, Mississippi
REPRESENTING THE EMPLOYER:
Richard O. Burson, Esq., Laurel, Mississippi
The claimant filed her petition to controvert
on July 9, 1998, alleging repetitive motion injuries to both upper extremities
arising on December 24, 1997. The employer duly answered admitting injuries
to both hands and wrists only, but disputing the extent of disability.
In an amended pretrial statement filed on May 18, 1999, the employer raised
the affirmative defense of independent intervening cause regarding the
alleged disability to the claimant's left wrist. Hearing of this matter
on the merits was begun in Collins, Mississippi on June 8, 1999 and concluded
in Jackson, Mississippi on August 6, 1999. After the second session the
record was kept open for the admission of additional medical evidence and
pending the submission of briefs by the parties. The record was then closed
upon receipt of the claimant's brief on October 13, 1999.
Prior to testimony at the first hearing session the parties were able to stipulate to the following:
1 . That the claimant's average weekly wage as of December 24, 1997 was $284.00;
2. That the claimant reached maximum medical improvement from her right upper extremity injury on February 29, 1998;
3. That the employer had paid for all related medical services to date; and,
4. That General Exhibits 1 - 5, as set out on the Exhibit Inventory made a part of the record, were admissible as evidence. Following the close of testimony at the second hearing session, the parties stipulated that the claimant would obtain and submit medical records from Dr. Michael Weaver pertaining to any examination(s) of the claimant occurring after June 8, 1999, which records would be admissible without affidavit as General Exhibit 9. These records were submitted on September 7, 1999, and were thus marked and admitted.
At the outset of the first hearing session the
employer submitted the deposition testimony, with exhibits, of Pete Mills,
a vocational rehabilitation expert, to which the claimant's attorney objected
because Mr. Mills had not interviewed Ms. McNair. The deposition was admitted
over the objection as Employer's Exhibit 6, once the evidence revealed
that the claimant's attorney had rejected Mr. Mill's offer to interview
the claimant and assist her with job placement, that Mr. Mills was otherwise
entirely qualified to testify as an expert, and that the claimant's attorney
had had the opportunity to cross examine Mills at the deposition.
Ms. McNair testified in support of her claim. She is 38 years old and lives with her husband and two children in Mt. Olive. She testified that she quit Mt. Olive High School during the eighth grade5 and has had no subsequent vocational or specialized training. Ms. McNair stated that her first job after high school was as a bag stapler and chicken hanger at the Collinswood6 chicken processing plant in Collins, beginning in August of 1980.7 She left Collinswood in January of 1986 and went to work at Covington Needleworks, where she sewed on an assembly line. She began the subject work tenure at the Sanderson Farms chicken processing plant in Collins in July of 1994, working first as a thigh trimmer and then as a breast trimmer. In each of these positions she worked on a production line where she would hold the chicken pieces with her left hand and trim excess fat using scissors with her right hand. She is right-hand dominant, and she testified she began experiencing numbness and tingling in her right hand while working as a breast trimmer in the latter part of 1997, which she initially self-treated by soaking her hand in water at home.
Ms. McNair said she eventually reported her problem to Ronnie Wade, the plant nurse who gave her a brace and some cream, and she subsequently sought outside medical help for her problem at the Greentree Medical Clinic in Mt. Olive, where she was treated first by a Dr. Taylor and then Dr. Dr. Joe Johnston. She testified that Taylor took her off work for a week and prescribed pain pills,8 and that she then returned to work after a week and was reassigned as a bone inspector, which job involved manually inspecting chicken breasts with both hands to remove bones. It was her testimony that she began to experience the numbness and tingling in her left arm, in addition to that in her right, while working as a bone inspector. She stated that at this point Dr. Johnston told her it appeared she had carpal tunnel syndrome, that there was nothing further he could do for her and that he would make an appointment for her to see Dr. Michael Weaver, and orthopedist in Hattiesburg. Ms. McNair could not initially recall any specific dates regarding her treatment at Greentree Clinic, but on cross examination she conceded that she first saw a doctor for her subject complaints in December of 1997.9
The claimant testified that she began seeing Dr. Weaver on the referral of Dr. Johnston, that he examined her and had both her hands tested, that he told her she had carpal tunnel syndrome, that he discussed with her the option of surgery in both hands, that he suggested surgery on the right hand, and that she wanted to wait to see how that turned out before deciding whether to have surgery on the left. She said her left hand was hurting at that time, but she "just decided to wait," and that Dr. Weaver performed the surgery on her right hand on January 27, 1998.
Dr. Weaver's records (Exhibit 2) reveal that he first saw the claimant on January 7, 1998, on referral from Dr. Johnston "for possible carpal tunnel syndrome of the right wrist." Ms. McNair gave Dr. Weaver a history of working at the Sanderson Farms plant as a bone inspector and having had wrist pain for about a year, predominantly on the right, but with "some left hand pain to a minimal." After a physical examination Dr. Weaver assessed her symptoms as "consistent with carpal tunnel, greater on the right side and minimal sympmatology on the left side;" he then ordered EMG and nerve conduction studies. When the claimant returned on January 21, 1998, Dr. Weaver reviewed the diagnostics with her, relating that they indeed revealed she had bilateral carpal tunnel syndrome, with "equal involvement of both upper extremities, but her right upper extremity [was] more symptomatic, secondary to this being her dominant hand." His report indicates he then discussed treatment options with her, including surgery. In his deposition (Ex. 1), Dr. Weaver stated that he told Ms. McNair she was a candidate for surgery if it bothered her enough, but her options were to live with it or to change to another job that didn't require as much repetitive activity. He said he explained to her that if he performed the carpal tunnel release, he would then try to get her back to work within six to eight weeks. She then elected to proceed with surgery on the right, which Dr. Weaver performed on January 29. He testified that the post-surgery healing process went normally and was uneventful, that she stated to him that the surgery helped her, and that he released her to attempt to return to work at the end of March. His report of March 16, 1998 indicates she was to return to work a week from that date and he would see her again in two weeks. Dr. Weaver testified he did not order a functional capacity evaluation because, "they don't tell you a whole lot" about how they're going to do eight hours a day, five days a week, 30 days a month It was his opinion that the claimant's work at Sanderson Farms caused her carpal tunnel syndrome, but he testified he did not place any work restrictions on her when he released her because he doesn't tell his carpal tunnel patients what they can or cannot do, rather he leaves it up to them to find out what their capabilities are (Ex. 1 , pp. 9-10, 17-18). Dr. Weaver stated he kept the claimant off work from the date he first saw her (January 7) until the date he released her to return to work (March 23).
Ms. McNair testified she never returned to Sanderson Farms after the surgery on her right wrist because, "I figured that's where my problem got started." She acknowledged that Dr. Weaver released her without any work restrictions and that it would be up to her from that point to see what she could do. She also testified that she did not work at all again until taking a job as a cook at ConvaRest, a nursing home in Collins, in June of 1998. But, despite the fact that the claimant did not return to work at Sanderson or anywhere else upon being released by Dr. Weaver, his records of her follow-up visits on March 30 and April 27 indicate he believed she had returned to work, and in his deposition he confirmed that he was in fact under the assumption on those occasions that she had returned to her job at the chicken plant (Ex. 1, p. 1819, 21-22). The claimant testified she was not yet ready to have surgery on her left wrist at the time Dr. Weaver released her to return to work in March of 1998; Dr. Weaver's records of the claimant's follow-up visits on March 30 and April 27 of 1998 contain no mention of the claimant complaining about her left wrist, and in his deposition Dr. Weaver stated the claimant told him "a couple of times" during this period that her left wrist was not hurting bad enough to have surgery (Ex. 1, p. 23).
Ms. McNair said she went to work as a cook at ConvaRest sometime in June of 1998 and that her duties there involved lifting heavy pots of food on and off the stoves, carrying the food pots to serving tables and transferring food between pots. She said this activity caused pain, numbness and tingling in both hands to the extent that she had to quit the job after about a month. On cross-examination she admitted that she never complained to her ConvaRest supervisor, Easter Fletcher, or anyone else at ConvaRest, about any problems with her hands and that she did not return to see Dr. Weaver at this time, explaining that she was not supposed to see Dr. Weaver again until a scheduled follow-up appointment in October. Dr. Weaver's records, however, indicate the claimant failed to keep a scheduled appointment on June 8, 1998 (At Ex. 2, see stamped notation, out of chronological order, beneath typed note dated March 30, 1998).10
Ms. McNair testified her next employment was with Hattiesburg (or Hood) Cable Company in Hattiesburg, starting in August of 1998, which job involved pulling and wrapping wires across circuit boards on an assembly line. On cross-examination she conceded that she had applied for this job prior to taking the ConvaRest job, that this job paid more than the ConvaRest job and that she accepted this position prior to quitting at ConvaRest. She said she worked three eight-hour days at this job before she had to quit because the pain in both her hands and wrists got worse. She said she simply did not show up for work after the third day. The claimant's Hattiesburg Cable personnel file (Ex. 5) indicates she was hired and began work there on August 11, 1998 and that she was officially terminated on August 20, 1998 after she had been absent for three days from August 14 without any word to the employer. On her employment application she claimed an eleventh grade education and stated she had had a previous workers' compensation injury to her right hand only. Ms. McNair acknowledged she did not go to any doctor upon quitting at Hattiesburg Cable, that the work there primarily bothered her left hand and that after this she didn't seek any other work in 1998.11
Dr. Weaver's office record of October 5, 1998 indicates he saw the claimant on that date in follow-up to her right carpal tunnel release. He noted she was doing fairly well on the right, with "no major problems," but was "having increasing problems with her left wrist He also stated that she did not "desire any surgical considerations at this point," so he placed her in a leather splint, prescribed anti-inflammatory medication and planned to see her again in two weeks. Weaver's record of October 19, 1998 notes that the claimant still had mild carpal tunnel symptoms on the left, but was relatively stable and still did not desire to have surgery. He also noted the claimant was not working. Ms. McNair testified she never told Dr. Weaver about her jobs at ConvaRest or Hattiesburg Cable.
Dr. Weaver's records under affidavit do not include a report of a visit by the claimant on December 30, 1998, but such a report is included as an exhibit to Weaver's deposition. The claimant apparently decided at some point between October 19 and December 30 of 1998 that her left wrist was bothering her enough to have carpal tunnel surgery. The December 30 report states this plan:
Dr. Weaver was deposed on April 15, 1999. He stated he was totally unaware of what kind of work the claimant had been doing between April and October of 1998 (Ex. 1, p 22). Even so, it was his initial. opinion that the claimant's left wrist condition in October of 1998 was still causally connected to her work at Sanderson Farms (Id.). But when presented by the defendant's attorney with a hypothetical scenario identical to the claimant's work at Hattiesburg Cable, Dr. Weaver altered his opinion. That exchange went as follows.
A. Okay.
Q. -- across a board, can you still say that the repetitive work at Sanderson was the only cause of the carpal tunnel syndrome problem you saw in October?
A. Oh, absolutely not. If she had another job doing repetitive activities, then it definitely could contribute. There's no question about that. I mean it's whatever she does repetitive whether it was working at Sanderson Farms, whether it was doing repetitive activity at home, whether -- it's just the repetitive activity.
Q. And her condition in October with respect to her left hand had changed as such from her history and the complaints she made with respect to pain that you were comfortable recommending the carpal tunnel release on the left hand at that time?
A. Right, based on her symptoms. Her saying, I hurt bad enough to want to do it.
Q. Would you say that to a reasonable degree of medical probability that was a significant material change in her condition as compared to April of '98 to what you saw in October of '98?
A, Yeah, obviously she had to change to a point where she desired surgery. There was no question there had to be a significant change.
Pete Mills, a vocational rehabilitation expert, was retained by the defendants in December of 1998 to investigate employment prospects for the claimant. Mr. Mills' deposition testimony, taken April 14, 1999, is in evidence as Exhibit 6, and attached as exhibits to the deposition are two reports from Mills to the employer's adjuster dated December 16, 1998 and May 12, 1999, respectively. Although the claimant's attorney refused to allow her to be interviewed by Mr. Mills, Mills was able to study the claimant's deposition and her medical records prior to determining that there were several minimum wage jobs available to the claimant in the Hattiesburg-Laurel area that did not require repetitive motion of the upper extremities and did not require a high school diploma.
Ms. McNair testified that she was provided with Mr. Mills' prospective job list, contained in his report of May 12, several weeks prior to the first hearing session, and that she then made one trip each to Hattiesburg and Laurel to investigate some of the prospects. She conceded that prior to that time she had made no attempt at finding employment since being released by Dr. Weaver after her second surgery, and she acknowledged that Dr. Weaver had released her to return to work without any specific restrictions. She testified that during May of 1999 she kept some relatives' children in her home for about $10.00 per day, but this ended when the children's school term ended at the first of June.
The claimant testified she was still suffering from pain, numbness and tingling in each of her upper extremities, that these symptoms had never completely subsided on either side, that she could not do all of the housework she did prior to her carpal tunnel problems, and that she now has more trouble writing than before. She also stated that the pain, numbness and tingling in both hands became worse while she was working at ConvaRest and Hattiesburg Cable.
On the issue of the claimant's education, the employer submitted a tape recording and written transcript purportedly of an interview of the claimant by a representative of the employer's adjuster in January of 1998. These documents were admitted as composite Employer Exhibit 7 over the claimant's objection once Ms. McNair acknowledged that she recalled the interview, that she had heard the tape and that it was indeed her voice on the tape. This exhibit was admitted solely for the purpose of the following recorded exchange:
A. Ah - eleventh.
At the second hearing session the claimant's husband, Charles McNair, testified in support of her claim. Mr. McNair testified he had been married to the claimant for 13 or 14 years and that she had never experienced any problems with her hands until 1996 or 1997, at which time she began to complain of numbness and cold in both hands. It was his recollection that the claimant went to work at Hattiesburg Cable prior to ConvaRest, and that she came home from the ConvaRest job complaining of numbness and tingling in her hands and needing to use ice packs and heating pads on them. He said he often had to get out of bed in the middle of the night to help her, which caused him to lose sleep, and eventually he started falling asleep on his job. Mr. McNair testified he asked his wife to quit ConvaRest because he began to fear for his job. He said her hands continued to bother her and he had to help her with household chores such as sweeping, washing clothes and washing dishes. On cross-examination Mr. McNair acknowledged that Dr. Weaver told his wife she could return to work after the first surgery.
The claimant's mother, Fannie Ducksworth, also testified at the second hearing session. She said she visited in Ms. McNair's home nearby every morning and had been helping Laura with household chores ever since her hands had started bothering her.
Easter Fletcher, whom the claimant had earlier identified by name as her supervisor at ConvaRest, testified for the employer. Mr. Fletcher testified she was presently employed at ConvaRest, that she had been there since January of 1998, that she was the dietary manager of the facility during May and June of 1998, and that in that position she was the claimant's immediate supervisor during the time the claimant worked at ConvaRest. Ms. Fletcher identified a collection of documents offered by the employer as the contents of the claimant's ConvaRest personnel file, which documents were then admitted in the aggregate as Employer's Exhibit 8. Fletcher confirmed that the claimant filled out a ConvaRest application on May 7, 1998, that she was hired and began work on May 13, 1998, that the claimant was told about the requirements of the job by training supervisor Janice Little prior to beginning work, and that she, Fletcher, showed the claimant around initially and then continuously supervised her work. Fletcher said the claimant was a good employee who never complained about any problems with her hands during the performance of her work; that the claimant's last day at work was June 7, 1998; that the claimant was scheduled to work from June 9 to June 11, but she did not show up for work during that period; and then the claimant returned on the next pay day, June 15, and told Fletcher she was leaving because of "personal problems at home" (This testimony is corroborated by documents in the ConvaRest personnel file, Ex. 8).
Ms. McNair was called back to the stand as a rebuttal witness, and she testified she quit the ConvaRest job because her husband asked her to quit. She also reiterated that the last grade of school she completed was the seventh grade. As previously mentioned, at the close of the second hearing session it was stipulated that the claimant would obtain and provide the records of any visits she had made to Dr. Weaver during the period between the two hearing sessions, which records (if any) would then be admitted without affidavit as General Exhibit 9. On September 7, 1999 the claimant provided, under cover of a letter from her attorney, a report by Dr. Weaver dated July 7, 1999, which document was then duly marked and admitted into evidence. This report reads, in its entirety, as follows:
OBJECTIVE: Her incisions are completely healed. Has excellent range of motion of all digits as well as the wrists. Tinel's sign is negative. Basically, at this point, she is not working. She apparently was taking care of some kids when we last saw her. She 's neurovascularlly grossly intact. Still does have some wrist pain. I think this is something she's going to have in regard to permanent partial disability to both wrists. Just needs to be really careful in what she does as far as repetitive activities. There's not anything I would tel her she can't do, but she's going to have to learn her tolerances based on the fact that she had carpal tunnel releases. Overall she's doing better.
PLAN: She can use some anti-inflammatories as needed and wear her wrist splints if she needs them when she's doing anything heavy. See her back in 6 months for follow-up.
Upon consideration of the relevant evidence and the applicable law, the Administrative Judge finds and concludes as follows:
1 . The claimant has suffered the industrial disease of carpal tunnel syndrome to each of her upper extremities as a direct result of her employment with Sanderson Farms, based on the uncontested testimony of Dr. Michael Weaver.
2. The claimant became temporarily totally disabled as a result of her right carpal tunnel syndrome on December 24, 1997, the date she last worked at Sanderson, and she remained totally disabled from her right carpal tunnel syndrome until March 23, 1998, the date Dr. Weaver released her to return to work without restriction.
3. The claimant has suffered a 5% permanent medical impairment to her right upper extremity as a result of the carpal tunnel syndrome that arose out of and during the course of her employment at Sanderson Farms, according to the uncontested testimony of Dr. Michael Weaver.
4. Considering the claimant's age, her lack of a high school diploma, her previous employment primarily in occupations involving repetitive use of the upper extremities, the fact that she is right-hand dominant, and the fact that she continued to have some trouble performing repetitive activities with her right hand in her work at ConvaRest and Hattiesburg Cable following the carpal tunnel release surgery on her right wrist, the 5% medical impairment assigned by Dr. Weaver reasonably translates into a 40% occupational loss of use of the claimant's right upper extremity; the claimant has specifically failed to show, however, that she is no longer capable of performing the substantial acts of her former job at Sanderson Farms, because she never attempted to return there after being released by Dr. Weaver without restriction in March of 1998.
5. The claimant has failed to prove by a preponderance of the evidence that she was unable to perform the duties of her job at ConvaRest as a result of her carpal tunnel syndrome. It would be just as reasonable to conclude that the claimant left ConvaRest for a better paying job at Hattiesburg Cable.
6. Although the evidence is uncontroverted that the claimant's left carpal tunnel syndrome was caused by her repetitive work at Sanderson Farms, the employer argues that it is not responsible for any occupational disability resulting from the left carpal tunnel syndrome, based on the asserted affirmative defense of "independent intervening cause," which defense was duly raised in a supplemental pretrial statement and by the employer's attorney at the first hearing session.14 The intervening cause defense has been discussed in several recent Court of Appeals decisions, often in tandem with its close relative, the defense of "last injurious exposure." See, e.g., Goodwood Lumber Co. v. Entrekin, No. 1999-WC-00206-COA, slip op. at 4-5 (Ct. of Appeals, 11 /16/99); United Methodist Senior Services v. Ice, No. 1998-WC-00999COA, slip op. at 4-11 (Ct. of Appeals, 9/14/99); Wal-Mart Stores v. Fowler, No. 97-CC00004-COA, slip op. at 5 (Ct. of Appeals, 6/29/99); A.F. Leis Co. v. Harrell, No. 1998WC-01 358-COA, slip op. at 4-5 (Ct. of Appeals, 6/8/99). Of the cited cases the Ice decision provides the most reasoned and thorough treatment of these two similar defenses, although there seems to be a consensus that these are indeed affirmative defenses for which the asserting party shoulders the burden of proof. See also, Marshall Durbin Companies v. Warren, 633 So. 2d 1006, 1009 (Miss. 1994) (Employer and carrier have burden of proving affirmative defenses in workers' compensation proceedings).
The rule of intervening cause is apparently more appropriately applied in cases involving specific successive traumatic injuries on specific successive dates where there is a different employer and/or carrier on the date of the second injury. In such cases, "if the second injury is an aggravation that contributes independently to the final disability, then the courts have found the subsequent employer [and/or carrier] liable for the entire claim but if the subsequent incident does not contribute at least slightly to the causation of the disability, "the first employer [and/or carrier] remains liable for all." United Methodist Services v. Ice, at 5-6, q" Larson, Workers' Compensation, Section 95.20-95.23, at 17-157 to 17-185.
The rule of last injurious exposure appears to encompass cases involving disabilities that develop gradually, whether they arise out of specific traumatic injuries or out of industrial diseases that become disabling after multiple or successive exposures to a debilitating activity or a toxic substance. The rule has been defined as follows:
It is obvious from the foregoing that the rule of last injurious exposure is more appropriate to the subject case than is the rule of intervening cause, because carpal tunnel syndrome is an industrial disease that commonly manifests itself over time after exposure to repetitive activities, and because the employer here is arguing in substance that Ms. McNair's left carpal tunnel syndrome did not become disabling until after she had worked for at least two subsequent employers.
The weight of the credible evidence requires a finding that the claimant's left carpal tunnel syndrome indeed did not become occupationally disabling until after she had worked for ConvaRest and then Hattiesburg Cable. This finding is grounded in the fact that Ms. McNair's symptoms on the left were not significant enough for her to agree to a left carpal tunnel release until sometime between October 19 and December 30 of 1998, and is supported by Dr. Weaver's expert testimony that there was a substantial worsening of the condition of the claimant's left wrist during the time between her visits to him in April and October of 1998. Because Ms. McNair's condition on the left worsened following her work at ConvaRest and Hattiesburg Cable and did not become occupationally disabling until sometime after those employments, Sanderson Farms has met its burden of proving, under the rule of last injurious exposure as set out in the Ice and Singer decisions, that it cannot be held liable for any occupational disability to the claimant's left upper extremity.
7. Even if the proof were insufficient to absolve Sanderson Farms of any liability for the alleged occupational disability to the claimant's left upper extremity, Ms. McNair has failed to prove that she has suffered any permanent occupational loss of use on the left beyond the five percent medical impairment assigned by Dr. Weaver. The claimant did not attempt to return to work at Sanderson Farms after either of her carpal tunnel releases and did not make a reasonable effort to find other employment after being released to return to work by Dr. Weaver without restrictions on March 1, 1999.
8. The expert testimony of Pete Mills is sufficient
to refute the claimant's contention that she is permanently and totally
disabled.
IT IS, THEREFORE, ORDERED AND ADJUDGED that Sanderson Farms pay and provide workers compensation benefits to Laura McNair as follows:
1 . Temporary total disability benefits at the rate of $189.43 per week for the period from December 24, 1997 to March 23, 1998, with proper credit for any such benefits previously paid. To each such installment not timely paid there is added the 10% statutory penalty.
2. Permanent partial disability benefits at the rate of $189.43 for a period of 80 weeks beginning March 24, 1998, representing the 40% industrial loss of use to the claimant's right upper extremity, with proper credit allowed for any such benefits previously paid. To each such installment not timely paid there is added the 10% statutory penalty, together with interest at the legal rate from and after July 9, 1998.
3. Such medical services and supplies as may reasonably be required by the nature of the claimant's right upper extremity injury and the process of her recovery therefrom, subject to the medical fee schedule.
IT IS FURTHER ORDERED AND ADJUDGED that Sanderson Farms shall not be liable for any occupational disability related to the claimant's left upper extremity.
SO ORDERED this the 26th day of January, 2000.
JAMES HOMER BEST
ADMINISTRATIVE JUDGE
ATTEST:
Brenda H. Goolsby, Secretary
___________________________
1. Commissioner Smith and Commissioner Schoby join in this Order; Commissioner Bolton would affirm the Order of the Administrative Judge and therefore dissents without a separate written opinion.
2. Interestingly, in his note of this date he says Ms. McNair can return to work as of 3/20/98. In a note from March 16, 1998 Dr. Weaver stated she could return to work " in a week", or about March 23, 1998. In deposition testimony he stated she reached maximum medical improvement about six to eight weeks after surgery, or around the end of March, 1998. Yet, the parties entered into a stipulation that Ms. McNair reached maximum medical improvement February 29, 1998 even though there were only 28 days in February during the year 1998. In his Order, the Judge awarded temporary total disability benefits through March 23, 1998. All things considered, this seems the most appropriate date of maximum medical improvement insofar as the right arm is concerned.
3. The Claimant questions whether the Employer is entitled to argue the affirmative defense of last injurious exposure because it was not properly plead or raised in advance of the hearing. However, the Employer did specifically allege as a defense that "the Claimant's alleged disability to left wrist was a result of, or caused by, an independent, intervening cause, or causes, for which they would not be liable. " As the defense of last injurious exposure is so similar to that of independent intervening cause, we think the employer's pleading provided adequate notice to the Claimant of these defenses.
4. We have considered the Claimant's age, education and prior employment, along with the 5 % medical impairment assigned by Dr. Weaver and her efforts to find other suitable employment.
5. On previous occasions the claimant had stated she completed the eleventh grade, as will be addressed herein below.
6. Collinswood subsequently either became Sanderson Farms or came to be owned by Sanderson Farms.
7. The claimant would have been 19 years old at this time.
8. The Greentree records are in evidence as General Exhibit 3 and they reveal an examination in either May or August of 1997 by Joe E. Taylor, a nurse-practitioner, for a complaint involving Ms. McNair's right hand. It is impossible to tell from this hand-written note whether the claimant was taken off work at this juncture.
9. The Greentree records indicate Dr. Johnston saw the claimant for the sole complaint of an abscessed tooth on October 24, 1997, and then saw her next on December 27, 1997. This latter handwritten report indicates she may have complained to a nurse or other staff about pain in both hands, but Dr. Johnston's writing apparently indicates a referral to the Hattiesburg Clinic for possible carpal tunnel syndrome on the right hand only.
10. The claimant's last day of work at ConvaRest was June 7, 1998, as will be further discussed herein below.
11. The claimant testified about her other job-seeking efforts between April and October of 1998, but even after listening to the tape recording of this testimony the undersigned is still unclear as to the employers allegedly contacted and the dates of those contacts.
12. There is not even a clue in the record regarding what work Dr. Weaver may have been referring to here, given the claimant's acknowledgment she never told him about ConvaRest or Hattiesburg Cable and Weaver's statement on October 19 that she was not working.
13. The ConvaRest job was not included in the hypothetical apparently because the claimant, by her own admission at the hearing, had failed to disclose this work during discovery.
14. Curiously, the employer gives this argument only cursory treatment in its brief and fails to cite any authority to support it. Yet even more curious is the fact that the claimant's brief is devoid of any mention of it whatsoever.