MWCC NO: 98 12285-G-3767
JAMES MICHAEL BRITT CLAIMANT
vs.
EMERSON ELECTRIC COMPANY
EMPLOYER
SELF-INSURED
REPRESENTING CLAIMANT :
Honorable Keith S. Carlton, Attorney at Law,
Corinth, Mississippi
REPRESENTING DEFENDANT :
Honorable S. T. Rayburn, Attorney at Law, Oxford,
Mississippi
The Commission heard the above styled cause on January 24, 2000, in the offices of the Mississippi Workers' Compensation Commission, Jackson, Mississippi on the Employer/Carrier's "Petition for Review" by the Full Commission.
Having heard the arguments offered on behalf of the parties and having thoroughly studied the record and the applicable law, the Commission affirms the "Order of Administrative Judge" dated September 17, 1999.
SO ORDERED, this the 25th day of January, 2000.
MISSISSIPPI WORKERS' COMPENSATION COMMISSION
BY: Mike Marsh
Barney Schoby
Beverly Bolton
COMMISSIONERS
ATTEST:
Brenda H. Goolsby, Secretary
___________________________
MWCC NO. 98 12285-G-3767-A
JAMES MICHAEL BRITT CLAIMANT
vs.
EMERSON ELECTRIC COMPANY
EMPLOYER
SELF-INSURED
APPEARING FOR THE CLAIMANT :
Keith S. Carlton, Esquire, Corinth, Mississippi
APPEARING FOR THE EMPLOYER :
S. T. Rayburn, Esquire, Oxford, Mississippi
On September 16, 1998, the claimant, James Michael
Britt, a fifteen-year employee of Emerson Electric, the employer herein,
filed a petition to controvert alleging that on August 10, 1998, he received
a work-related injury to his low back and legs. The employer denied the
compensability of the injury and did not pay any workers' compensation
benefits, although the claimant received twenty-six weeks of short-term
disability benefits at the rate of $130.00 a week and group health insurance
medical benefits provided by the employer. A hearing was held in the Panola
County Courthouse in Batesville, Mississippi, on August 24, 1999.
The parties stipulated as follows
1. The claimant's average weekly wage on August 10, 1998, was $637.70;
2. The date of maximum medical improvement was
April 1, 1999, according to the testimony of his treating physician, Dr.
Cicala.
The issues to be resolved by the Administrative Judge are as follows:
1. Whether the claimant received a work-related injury to his lower back and legs on August 10, 1998, as alleged in the petition to controvert; and
2. If so, the existence/extent of disability resulting from the injury; and
3. Whether apportionment of permanent disability
is applicable in this case.
James Michael ("Mike") Britt is forty-three years old and a resident of Oxford, Mississippi. He is married and has one stepson. He is 5'11-1/2" tall and weighs 130 pounds. He graduated from Lafayette High School in 1976 and attended part of one semester at community college. He has not had any special vocational training.
After Mr. Britt left school, he worked two years on an assembly line upholstering furniture at Futorian furniture factory in Okolona. He built side arms and front panels and was required to lift chair frames weighing about fifteen pounds. Then he worked as a mechanic at Rebel Chevrolet in Oxford for about two years. He worked in the body shop and parts department. He was required to lift about thirty pounds, for example, a car door or a battery. Subsequently, he went into the body shop business for himself for about two years.
In October 1983, Mr. Britt began his employment with Emerson Electric Company. He started on the assembly line, then, after about two months, he moved to the maintenance department, where he worked for approximately fourteen years. He was required to repair anything that needed maintenance, such as conveyors, machinery, and ovens, and he also did plumbing and electrical work. He had to pick up electric motors and parts weighing nearly 100 pounds. He often worked more than forty hours a week.
In the past, when he was sixteen years old, Mr. Britt had a motorcycle accident. He broke his right leg, and he has limped ever since. Mr. Britt testified that the limp did not hinder him in his work at Emerson Electric. He also had surgeries In 1988 and 1990, one on each knee. He testified, however, that after the surgeries, he was able to return to his Job at Emerson Electric and do his work without problems.
In 1993, Mr. Britt had lower back surgery. He returned to Emerson Electric after four weeks. He was not supposed to do any climbing, but one of the first jobs he was assigned required him to climb a ladder. From 1993 until August 1998, Mr. Britt was able to do his regular job in maintenance.
Mr. Britt's family doctor is Dr. Richard Glasgow in Oxford. Mr. Britt has been seeing Dr. Glasgow for about ten years. He has been diagnosed with arthritis; he said it bother s him all over, makes him sore and achy, in his shoulders one day and in his arms or legs the next. It also caused him to have some soreness in his back. He was prescribed Flexeril, an anti-inflammatory medication, which he has taken off and on, usually a week or two at a time.
In September 1991, Emerson Electric put Mr. Britt on the day shift after Dr. Glasgow recommended he not work the night shift because of the damp night air and worsening of health problems. He did the same work, just at a different shift, Before August 1998, it had been about two years since he had seen Dr. Glasgow for back complaints.
On Monday, August 10, 1998, Mr. Britt was rebuilding a lacer machine. He went to his tool box and slipped in some oil on the floor, his feet went forward, and he threw his arm back to catch himself. He felt a snap in his back, up above the spot where he had surgery five years before. Mr. Britt said he did not have an accident during the weekend before August 10, 1998.
Mr. Britt reported the injury to the plant nurse, Moreice Parker. Ms. Parker put some ointment on his back, gave him some pain tablets, and told him to try to work some more, Mr. Britt also reported the problem to his supervisor, James Turner. He showed him where the injury occurred and the footprint In the oil on the floor. Mr. Britt continued to try to work. He checked in with the plant nurse the next day, and she gave him some more pain tablets.
The next day, Mr. Britt could hardly move, and he went to see Dr. Glasgow. Mr. Britt had severe back pain and pain in his right leg. He said it was his left leg that had been affected in 1993. Dr. Glasgow took x-rays, kept him off work, and sent him to Dr. Joseph Hudson, specialist in neurosurgery at the Semmes-Murphey Clinic in Memphis.
Dr. Hudson did an MRI and myelogram and found a ruptured disc. Mr. Britt had surgery in October 1998. He said the surgery stopped the pain in his leg but not in his back. Dr. Hudson took one more MRI and released him to Dr. Glasgow's care. Dr. Glasgow referred him to Dr. Claudio Feler, another neurosurgeon at the Semmes-Murphey Clinic, who referred him to Dr. Roger Cicala, a pain specialist in Memphis.
Dr. Cicala put Mr. Britt on a TENS unit and prescribed some medication. Dr. Cicala released him April 1, 1999, with restrictions. Mr. Britt last saw Dr. Cicala about two weeks before the hearing. Dr. Cicala advised exercise and continuing with the TENS unit. Mr. Britt has a return appointment for December 1999.
Mr. Britt took Dr. Cicala's release with restrictions to Mr. Rucker at Emerson Electric in April 1999. Mr. Rucker told Mr. Britt the company had nothing for him to do within those restrictions. Mr. Britt has had no further contact with Emerson Electric.
Mr. Britt also sought employment elsewhere. He checked at numerous places. beginning in April 1999, in Oxford, Pontotoc, Batesville, and Tupelo. Some of the prospective employers he contacted were Belk Ford, Whitten Tire Barn, Barrie's Chevron, Big Star, Auto Zone, General Dollar Store, Southland Body Shop, Lynch Oil Company, Better Brands Distributors, Livingston Auto Parts, Ron's Music, Tommy's A ntiques, Ray's Truck Stop, Tidwell Salvage Grocery, Amo co Food Shop, The Depot, Nationwide Pawn Shop, Dowdle Gas, Sears, Ray's Snacks, Bea's Antiques, The Fish Store, Oxford Pawn Shop, Yamaha Golf Cars, C & P Pawn, Amoco Sky Mart, and B & W Upholstery in Oxford; Turner Cycle, Brad's Electronics, Crew Motor Company, Sunset Motor Sales, Pontotoc Auto Glass, and John's Body Shop in Pontotoc; Pepsi Cola, Heafner's Motors, Panco, and Dunlap & Kyle Company in Batesville; and Polaris in Tupelo.
Mr. Britt testified that he was looking for light-duty jobs in sales or other positions. He put in applications at some places; others were not taking applications. He said Heafner Motors in Batesville seemed interested but did not offer him a job as a mechanic.
According to Mr. Britt, he has constant pain in his back, sometimes worse than others. He cannot mow the grass or use the weedeater or do repairs on his house. He has severe pain and has to stay in bed taking medication for three or four days at a time. He cannot sit for a long time. He walks and exercises to build up his strength and mobility, and he is able to walk an eighth of a mile.
Mr. Britt admitted he rides a four-wheeler to the mailbox and over to his neighbor's house. His has ridden his four-wheeler on some trails behind his house. He has also done some light welding. He testified that he no longer enjoys hunting and fishing like he once did. He sometimes uses a cane because he has fallen a couple of times and the cane helps him keep his balance. He said he is weak and has no stamina. He can drive a car but has trouble getting in and out of a car.
Before the injury in 1998, Mr. Britt had a mobile lube service in addition to his Job at Emerson Electric. He went to people's houses and did lube work on their cars. He said he is no longer able to do this.
Linda Britt came to the hearing prepared to testify in her husband's behalf The parties stipulated,. however, that she would offer testimony that would be cumulative and corroborative of that offered by the claimant.
The claimant's sister, Mary LaJune Mills, testified in the claimant's behalf She was with her brother on Sunday night, August 9, 1998, the evening before the alleged work injury, at her mother's house, until about 830 p.m. It was Mr. Britt's birthday celebration, and her mother and stepfather, her husband, and the claimant and his wife were there. Ms. Mills did not notice Mr. Britt having any physical problems.
After August 10, 1998, Ms. Mills noticed her brother having problems. He was stiff and had difficulty getting around. He told her about getting hurt when he slipped on some oil at work. Ms. Mills lives a quarter mile from her brother and sees him on a regular basis. She has noticed a change in his physical condition. He now walks with a cane, he hurts more, he is not like himself and cannot get around like he used to do. She said she was aware that he suffered from arthritis in the past but it did not seem to bother him that much.
Annie Keel, the claimant's mother, came to the hearing to testify in her son's behalf The parties stipulated, however, that she would offer testimony that would be cumulative and corroborative of that offered by his sister, Mary LaJune Mills.
Hank Malone testified by deposition dated January 28, 1999, that he has worked for Emerson Electric for twenty-one years. He has been maintenance supervisor for two years; before becoming supervisor he was a maintenance worker. He was Mike Britt's supervisor for two years. Before August 1998, he knew Mike Britt limped, or dragged his right leg when he was walking, but had never heard him complain about it. Mike Britt came to him on August 10, 1998, and told him he had slipped in some oil and hurt his back. Mr. Malone went with Mr. Britt to the nurse's station. He said he had no reason to think that Br' did not slip in the oil as he said he did.
Tommy Lee Evans testified by deposition dated January 28, 1999, that he has worked for Emerson Electric for twenty-six years and he was manufacturing engineer. He worked out of the maintenance department and he knew Mike Britt well. He did not remember a conversation about arthritis but recalled that before the alleged work injury in August 1998 Mr. Britt occasionally commented that his back hurt or was stiff. He had noticed Mr. Britt limping before August 1998 and knew that he had had back surgery in the past. On the morning of August 10, 1998, Mr. Evans was standing around with a group of workers at the beginning of the work day and noticed Mr. Britt was limping when he came into the building. He did not think it was anything unusual.
Moreice Parker testified by deposition dated January 28, 1999, that she has worked as plant nurse for Emerson Electric for three years. Before that she worked as an LPN at the hospital in Oxford. She saw Mike Britt before August 10, 1998, when he would come in for pain medication such as Aleve. She was aware that he had back surgery fo ur or five years before, and she knew he limped and complained about aches and pains and arthritis. Ms. Parker saw mike Britt on August 10, 1998, when he came to her and said he slipped in some oil while working on a lacer and complained of pain in his lower back. He asked for medicine, and she gave him Aleve and told him to report the incident to his supervisor.
Richard Lee Jones testified by deposition dated January 28, 1999, that he has worked at Emerson Electric for twenty-six years, and he is an electronic technician in the maintenance department. He knew Mike Britt from working with him four or five years on the same shift in the same department. He knew Mr. Britt had had back surgery several years before and that he limped or hobbled around the plant. He said sometimes Mr. Britt's level of productivity would not be "up to snuff' on days when he appeared to have physical problems. He saw Mr. Britt before the alleged slip-in-the-oil incident and thought he looked the same as he did when he first reported to work that morning, before the alleged slip.
James Anthony ("Jim") Turner testified by deposition dated January 28, 1999, that he has worked for Emerson Electric for thirty-five years and 'is plant engineering supervisor. He said his basic responsibility is overall maintenance in the plant, that is, building, grounds, and equipment. He knew James Michael Britt at Emerson Electric. He had noticed Mr. Britt limping and moaning and groaning about aches and pains but doing his job nonetheless.
About a week after the alleged accident, Mr. Turner gave a statement that on August 10,1998,
The medical records of Dr. Wayne T. Lamar, orthopaedic surgeon in Oxford, were received into evidence. Dr. Lamar treated James Mike Britt In 1974 for an injury to his right leg that occurred in a motorcycle accident. On August 21, 1974, Dr. Lamar noted Mr. Britt walks with only a slight limp now due to residual stiffness in his ankle which should completely resolve." (Exhibit 5, p. 2).
On February 20, 1975, Dr. Lamar noted that Mr. Britt fell over a motor and injured his left knee. He said, "He walks without a limp." Dr. Lamar diagnosed sprain of the left knee with contusion. He discharged him from treatment.
On June 6, 1988, Dr. Lamar reported that James Michael Britt came to see him and "is a somewhat poor historian gives a vague history of a left knee injury in 1984 when he injured his knee when he slipped on some oil." (Exhibit 5, p. 3). He complained of swelling in the knee, and Dr. Lamar recommended arthroscopic surgery which he performed on June 14,1988.
On June 5, 1990, Dr. Lamar saw Mr. Britt again for complaints of right knee pain. He continued to treat Mr. Britt and recommended arthroscopic surgery on the right knee, which he performed on August 6, 1990. Dr. Lamar discharged Mr. Britt on September 24, 1990, after assigning a permanent impairment of 10% to the leg.
The medical records of Dr. Thomas L. Windham, neurosurgeon in Oxford, were admitted 'into evidence. Dr. Windham first saw Mr. Britt on June 9, 1993, for complaints of leg hip and leg pain with numbness for about a year, some on the right side, and some lower back pain. He noted Mr. Britt had previously been treated for fibromyalgia and had undergone a rheumatology evaluation. Dr. Windham recommended an MRI of the spine, and the testing revealed a large lateral disc rupture. Dr. Windham ordered a myelogram which showed a lateral disc rupture at the L-4/5 level, and he recommended surgery that he performed on July 2, 1993. Dr. Windham released Mr. Britt to light work duty on August 2, 1993, recommending no heavy lifting.
Dr. Windham continued to follow up with Mr. Britt and noted on August 26, 1993, that Mr. Britt "returns reasonably well. He is back at work. He is on Advil." (Exhibit 5, p. 4). Dr. Windham asked Mr. Britt to return in a month if he should have any symptoms.
In Dr. Windham's records is a note from Dr. James J. Nakashima, rheumatologist in Memphis, who saw Mr. Britt for a diagnosis of "Fibromyalgia, Possible early spondyloarthropathy." (Exhibit 5, p. 9). Dr. Nakashima's notes indicate Mr. Britt complained of
The medical records of Dr. Joseph S. Hudson, neurosurgeon at the Semmes-Murphey Clinic in Memphis were received into evidence. Dr. Glasgow referred James Michael Britt to Dr. Hudson who initially saw him on August 24, 1998, for evaluation of back and leg symptoms. Mr. Britt told Dr. Hudson about his surgery by Dr. Windham in 1992 or so. Dr. Hudson noted,
On September 2, 1998, Dr. Hudson reported Mr. Britt's MRI showed a right paracentral disc bulge at the 2-3 level. Dr. Hudson did not recommend surgery but instead a continued conservative regimen of anti-inflammatory drugs, physical therapy, and perhaps an epidural block. On September 21, 1998, Dr. Hudson saw Mr. Britt again at the referral of Dr. Glasgow. Dr. Hudson ordered a myelogram and post-myelograrn CT scan which showed a defect at the 2-3 level on the right side. Dr. Hudson suggested surgery which he performed on October 6, 1998. On November 11, 1998, Dr. Hudson noted Mr. Britt needed a back rehab program and kept him off work until he could complete it.
On December 14, 1998, Dr. Hudson noted Mr. Britt did not make any progress in therapy. Dr. Hudson dictated, "I think this man's end result is not going to be very good. I encouraged him the best I could to continue his stretching, his walking and to try and increase his activities." (Exhibit 3, p. 30). On January 11, 1999, Mr. Britt returned to see Dr. Hudson complaining of continued back pain. Dr. Hudson ordered another MRI which did not show a surgical lesion. Dr. Hudson dictated
The medical report of Dr. Claudio Feler, neurosurgeon at the Semmes-Murphey Clinic in Memphis, was contained in the records of Dr. Hudson. Dr. Feler examined Mr. Britt on February 2, 1999, at the referral of Dr. Glasgow because of chronic back and right leg pain. Dr. Feler ordered diagnostic testing and consultation with Dr. Roger Cicala.
Dr. Roger S. Cicala, board-certified anesthesiologist and pain medicine specialist at the Methodist Pain Institute in Memphis, testified by deposition dated May 10, 1999, that he saw James Michael Britt on February 24, 1999, at the referral of Dr. Feler. Mr. Britt told Dr. Cicala that he had back surgery in 1993 and had done well afterwards until an accident at work on August 1998. Then he had surgery followed by chronic pain.
Dr. Cicala examined Mr. Britt and found right paraspinous spasms in the lumbar area of the back. Dr. Cicala and Dr. Feler reviewed his MRI films and thought they were probably normal as far as surgical scarring. Dr. Cicala referred to Mr. Britt's problem as muscle necrosis. He explained:
Dr. Cicala next saw Mr. Britt on April 1, 1999, and recommended chronic maintenance c are. Dr. Cicala continued the various medications and the muscle stimulator and asked to see him every ninety days. Dr. Cicala assigned April 1, 1999, as the date of maximum medical improvement and recommended Mr. Britt not lift more than ten pounds and not to do repetitive stretching or bending, or twisting, stooping, crawling, or climbing. He said Mr. Britt needed to be able to move about and alternate positions frequently and that because of the medication should not operate dangerous machinery.
Dr. Richard M. Glasgow, family practitioner in Oxford, testified by deposition dated July 21, 1999, that he had been treating James Michael Britt since February 1991. Dr. Glasgow said Mr. Britt had problems with arthralgia and back pain, muscle pains, leg pains, spasms, and so forth for a long time, and had a long history of generalized arthritic-type complaints all over his body. Dr. Glasgow saw Mr. Britt in the summer of 1996 and diagnosed fibromyalgia for his chronic complaints of muscle pain. He did not see Mr. Britt between November 1996 and August 1997, when he saw him for right arm and shoulder pain. In March 1998 and June 1998, Mr. Britt consulted Dr. Glasgow again for right shoulder pain. In July 1998, Mr. Britt had a cut on his hand. For two years prior to August 1998, Dr. Glasgow did not treat Mr. Britt for back pain.
Then on August 12, 1998, Mr. Britt saw Dr. Glasgow
and complained of back pain after he slipped in some oil at work. Dr. Glasgow
referred Mr. Britt to Dr. Hudson and subsequently to other specialists.
After carefully considering the pleadings, pretrial statements, stipulations, lay and medical evidence, the demeanor of the witnesses at the hearing, and the applicable law, the Administrative Judge finds as follows:
1. James M. Britt received a work-related injury to his lower back on August 10, 1998, as alleged in the petition to controvert. The injury occurred on Monday morning and no one witnessed the incident, but M r. Britt reported the slip in the oil to his immediate supervisor and showed him the smeared footprint in the oil, he reported the incident to the plant nurse and asked for pain medication. He told everyone he was supposed to tell at Emerson Electric, and he told Dr. Glasgow and all the other treating physic lans exactly the same story. There is no evidence to indicate that Mr. Britt did not have the slip-in-the-oll accident exactly as he said he did. That he was limping on the morning of August 10, 1998, when he reported for work, indicates only that he limped that day as he did every other day, because of old knee injuries. The limping did not prevent him from doing his job duties for fifteen years and earning a healthy wage.
2. The average weekly wage of the claimant on August 10, 1998, was $637.70, as stipulated by the parties.
3. Because of the work injury, Mr. Britt was temporarily totally disabled from August 12, 1998, the day he consulted Dr. Glasgow, until April 1, 1999, the date assigned by Dr. Cicala as maximum medical improvement, except for any days during that time when Mr. Britt actually worked and earned wages.
4. Because of the work injury, Mr. Britt is restricted to very light work. He has a high school education and some junior college study, and he could probably find a minimum-wage job (paying $206.00 a week) if he keeps looking hard enough. His average weekly wage at Emerson Electric was $637.70, however, an d Mr. Britt has thus suffered a loss of wage earning capacity of $431.70, entitling him to maximum benefits under the Mississippi Workers' Compensation Act.
5. Apportionment of permanent disability benefits
(pursuant to Mississippi Code Annotated § 71-3-7 (1990) is not applicable
in this case. There is no doubt that Mr. Britt had a limp from some old
knee injuries, and he at times complained of aches and soreness in the
muscles in different parts of his body. For fifteen years, however, he
was able to work at Emerson Electric and satisfactorily perform his job
duties. He was working well enough on the date of injury to be earning
a wage of $637.70 a week. For apportionment to apply to reduce permanent
disability benefits, there must hav e been an occupational disa bility
before the work in jury. Stuart's Inc. v. Brown , 543 So.2d
64 9 (Miss. 1989). Mr. Britt had some physical or
medical disability but not a significant occupational disability. The fact
that his family doctor recommended Mr. Britt be allowed to work the day
shift instead the evening shift was as much because of his inability to
steep during the day as 'it was because of health or physical problems,
and then he only changed shifts, not his job duties.
IT IS THEREFORE ORDERED that the employer pay workers' compensation benefits to the claimant as follows:
1. Temporary total disability benefits at the rate of $279.78 per week beginning August 12, 1998, and continuing until April 1, 1999, with credit for any wages paid the claimant by the employer during that time;
2. Permanent partial disability benefits at the rate of $279.78 per week beginning April 2, 1999, and continuing for a period not to exceed 450 weeks, subject to the maximum amount allowable for a workers' compensation claim, as set out in Mississippi Code Annotated § 71-3-13 (2) (1992);
3. Penalties and interest on all due and unpaid compensation benefits;
4. Provide medical services and supplies as required by the nature of the claimant's injury and the process of his recovery therefrom pursuant to Mississippi Code Annotated § 71-3-15 (1995), General Rule 12, and the Medical Fee Schedule.
SO ORDERED , this the 17th day of September, 1999.
LINDA A. THOMPSON
ADMINISTRATIVE JUDGE
ATTEST:
Brenda H. Goolsby, Secretary