MWCC NO. 98-04088-G-3935
SHIRLEY ANN JACKSON CLAIMANT
vs.
B. C. ROGERS PROCESSORS, INC.
EMPLOYER
(SELF-INSURED)
REPRESENTING CLAIMANT:
Leon Miller, Esquire, Jackson, MS
John Griffin Jones, Esquire, Jackson, MS
REPRESENTING EMPLOYER:
Dave Peterson, Esquire, Jackson, MS
This matter was heard by the Commission on August
7, 2000 pursuant to the Employer's Petition for Review. The Employer seeks
review of an Opinion of the Administrative Judge dated April 13, 2000 which
awarded the Claimant temporary and permanent disability benefits, as well
as medical benefits, for an injury to her neck and back.
MISSISSIPPI WORKERS' COMPENSATION COMMISSION
Ben Barrett Smith
Barney Schoby
ATTEST:
Joann McDonald, Secretary
___________________________
MWCC NO. 98 04088-G-3935
SHIRLEY ANN JACKSON CLAIMANT
vs.
B. C. ROGERS PROCESSORS, INC.
EMPLOYER
SELF-INSURED
APPEARING FOR CLAIMANT:
Leon Miller, Attorney at Law, Jackson, Mississippi
John Griffin Jones, Attorney at Law, Jackson,
Mississippi
APPEARING FOR EMPLOYER:
Dave Peterson, Attorney at Law, Jackson, Mississippi
The claimant alleged a work-related injury which had onset prior to March 12, 1998 while she was in the employ of B. C. Rogers Processors, Inc. (hereinafter "Rogers"). Claimant's injury was admitted by the employer; subsequently, the employer has taken the position that there is no connection between the injury sustained by the claimant and the surgery that she underwent, that the limitations and restrictions result from the surgery and not the injury, and thus any disability suffered by the claimant is not related to the injury at work. At the hearing on the merits of the claimant's Petition to Controvert, held on March 20, 2000 in the Mississippi Workers' Compensation Commission's building in Jackson, Mississippi, the parties stipulated to the following:
1 . The claimant's average weekly wage as of the date of injury was $352.00, rendering a compensation rate of $234.68.
2. The claimant reached maximum medical improvement on October 26, 1999 pursuant to the testimony of Dr. John Frenz.
3. The claimant gave timely notice to the employer of her March 12, 1998 injury.
4. In exhibit CL-4, in the first sentence of the
second paragraph, the reference "your doctor"
relates to Dr. Kendall Blake, the employer's General Rule 9 physician,
while the reference to the May 25, 1999 physician
is to Dr. John Frenz, the claimant's treating
physician.
As a result of a dispute over the necessity of
the claimant's surgery by Dr. Frenz, the employer
moved that the undersigned obtain an IME in order to assist her in the
determination of this cause. This motion was filed,
ore tenus, and the hearing on the motion was
held on March 10, 2000. On that date, the undersigned determined to carry
the motion with the hearing on the merits.
At this time, after a review of the medical testimony, the undersigned
has determined that resulting information would not be of significant assistance
in determining the claim. The motion of the employer
be, and the same hereby is, denied.
The issues for decision by the Administrative Judge are as follows:
The claimant, Shirley Ann Jackson, is a 44 year old resident of Morton, Mississippi. She completed the 8 1h grade, and subsequently obtained a GED. She has been afforded no vocational training and has no skills other than those associated with her work in the poultry industry.
Ms. Jackson testified that she began working in
the poultry industry when she was 16 years old, and has worked solely in
that industry since that time, except for medical leave associated with
her pregnancies and an appendectomy. She testified that she has been employed
by Rogers since 1984.
The claimant testified that in January of 1998,
she had responsibilities in the hatchery which revolved around setting
up a line with rubber tubing and syringes, mixing vaccine, keeping the
line moving with vaccine supplies and, at the end of the shift, reversing
the procedure and cleaning and bringing down the line with the tubing,
syringes and vaccine. Sometime thereafter, new job duties were added. She
testified that in addition to her prior duties, which constituted a full-time
job, she began counting chickens and lifting them, alone and in boxes.
She testified that she had been doing this job for approximately three
weeks prior to March 12, 1998, and shortly after she began this job she
experienced an onset of pain in her neck and lower back. She continued
to perform these duties, as well as her other duties,
on a regular basis, and reported the pain to her supervisor, Albert Frazier.
The claimant indicated that prior to the institution
of the new duties, she was in a "great" state of health. She had no medical
problems and could perform her full time duties without any difficulty.
On March 12, 1998, she testified that her neck and back began hurting -
which was a usual event. She worked to the end of her shift and then went
home, took some Advil, and went to bed. The next morning she could not
get out of bed. She called James Rushing, who helped her prepare the line
each morning, and told him that she was unable to report to work. Later
she called her supervisor and reported her condition to him.
The claimant first sought medical assistance
from Dr. Clark, who gave her pain medications, physical therapy, and kept
her off work for a week. When she returned for additional treatment, he
referred her to Dr. Frenz. Dr. Frenz performed cervical surgery in August,
1998, including a bone fusion, a metal plate for de-stabilization, and
removal of two disks. She also testified that Dr. Frenz treated her with
medication and heat for her low back injury.
The claimant testified that after the cervical
surgery, the severity of her pain was lessened. However, she testified
that on a pain scale of one to ten, with ten being greatest, and one being
least, her pain level averaged 8 to 10 even after the cervical surgery.
She testified that her pain prior to the surgery was so great that she
often had to lie down, standing and sitting for any extended period was
impossible for her, and she took medication for pain almost constantly.
The claimant testified that Dr. Frenz had
performed low back surgery, removing a disk,
in January 1995. She was off work for five weeks
and then returned to work doing her regular job with no restrictions or
limitations. The claimant testified that after she had recovered from her
surgery in 1995, she found herself to be "in better [physical condition]
than I'd ever been."
On October 26, 1999, the claimant testified that
Dr. Frenz allowed her to return to light duty with the following restrictions:
The claimant testified that she currently works from two to four days a week, half a day. She testified that many days she is in so much pain that she cannot get out of bed to go to work. She testified that she averages working 12 to 16 hours per week at an hourly rate of $6.95 per hour.
The claimant testified that she has received an award from the Social Security Administration for disability on the basis of her back and neck complaints. She has no other medical problems except those associated with her back and neck.
Relative to a job search and vocational efforts,
the claimant testified that she met with Sam Cox and applied at each entity
which Mr. Cox had suggested (included in exhibit 3 to exhibit E/C-1 3)
but had been offered no employment. She further testified that she had
taken initiative to look for work closer to her home, as evidenced by the
job search log in evidence (exhibit CL-9) but likewise had been offered
no employment. She testified that due to the pain generated by riding in
an automobile or driving same, it would be difficult for her to work in
a locale as far from her residence as Jackson. She testified that although
she does not think that she is capable of performing the tasks of any job
for which she applied, she would like to work, would be willing to give
any job opportunity an honest effort, and was willing to work, as evidenced
by her continued employment at Rogers.
The claimant testified that she spent only 10
minutes with Dr. Kendall Blake in his examination of her.
The claimant discussed her return to work under
the conditions established by Dr. Frenz and testified that in a conversation
with the workers' compensation administrator at Rogers', Cheryl McGee,
and was told that if the claimant would work 4 hours a day and receive
payment from Rogers, that she would be compensated 4 hours per day from
workers' compensation. However, the claimant indicated that this did not
occur and when she inquired about her workers' compensation check,
the claimant was told that her condition was contributed
to by her weight and therefore no compensation would be forthcoming.
On cross-examination, the claimant reiterated that her injury occurred after she had been weighing chickens for two to three weeks; this she reiterated even in light of being advised that her supervisor, Albert Frazier, would testify that she was injured after only two or three days.
Ms. Jackson indicated that she continued to see Dr. Frenz as late as March 14, 2000, and that she received heat treatments from Dr. Frenz for her back injury as recently as February 2000.
The claimant concluded that she is acquainted
with all jobs in the hatchery and does not believe that there is another
job there which she could perform.
A post-injury wage statement provided by the
employer reflects that the claimant has a post-injury wage of $102.85 per
week. It also reflects that the claimant returned to work on a part-time
basis on March 1, 1999.
Dr. John A. Frenz, a neurosurgeon practicing in Brandon, Mississippi, testified on behalf of the claimant by deposition. Dr. Frenz performed surgery on the claimant on three occasions, in 1994, 1995, and 1998.2 He testified that with regard to the 1995 treatment, he first saw the claimant on January 10, 1995 on referral from her family physician, Dr. Clark, who indicated to Dr. Frenz that he had been treating her for symptoms of lumbar nerve root compression syndrome without adequate relief. On physical examination, the claimant exhibited intense low back muscle spasm, positive left straight leg raising tests, severe weakness of the muscles of the left leg and foot, decreased sensation in the left leg and foot, and restricted low back motion. Dr. Frenz reviewed an MRI which had been performed on January 4, 1995, but determined that they were too blurred for him to be able to make a decision relative to treatment. At the physician's request, the claimant agreed to undergo a myelogram of the lumbar spine. This procedure revealed a very large and evident abnormality in the lumbar spine consistent with herniation of a disk. Surgery was accomplished on January 1, 1995 and the claimant was released from the hospital on the 3rd.3 Dr. Frenz followed the claimant for several months, releasing her to full time work on May 23, 1995.
Dr. Frenz testified that he next saw the claimant
on March 25, 1998, again on referral from Dr. Clark. Ms. Jackson reported
that her duties at the plant had changed and as a result, she began to
experience onset of neck pain and low back pain radiating into her left
extremity on or about March 12, 1998. Dr. Clark had been treating the claimant
conservatively but the claimant had not improved sufficiently to return
to work.
Dr. Frenz performed a physical examination and
found tightness or spasm of the neck muscles resulting in a 50% restriction
in range of neck motion. There was also low back restriction, primarily
because of muscular spacisity and soreness. He also noted tenderness in
the sacroiliac joints and positive straight leg raising test with decreased
left leg and foot sensation. As a result of the examination, Dr. Frenz
diagnosed cervical and lumbar paraspinal sprain and strain and intermittent
left lumbar radicular syndrome. Dr. Frenz prescribed continued conservative
treatment and required the claimant to return in 10 to 12 days to follow-up.
On April 2, 1998, he reviewed the claimant, changed medications and ordered
X rays of her cervical and lumbar spine.
A week later, the physician reviewed the x rays
with the claimant, noting spondylosis or calcium deposit bone spur formation.
However, the claimant had reported moderate improvement and was agreeable
to returning to light duty work.
Ms. Jackson returned to the physician on April
13, 1998. She was symptomatic and was exhibiting intense spasm and restricted
motion as well as decreased sensation in the left leg, despite medication,
physical therapy and other treatments. The physician added suspicion of
spinal disk displacement or spinal stenosis to the claimant's diagnoses
and ordered a myelogram, which was performed on April 23, 1998. A week
later, he reviewed the myelogram results and also indicated that he observed
depression onset in the claimant, adding an anti-depressant medication
to her pharmaceutical regime. Thereafter, the claimant appeared to respond
somewhat, and on May 6, 1998 had determined to return to work on a light
duty basis. In late May, while wearing a back brace, she continued to experience
spasm, restricted movement and radiculopathy. A cervical collar was added
and on May 28, 1998 it was determined that she was temporarily disabled
to return to work. On June 4, 1998, the claimant's symptoms had appeared
to worsen. Dr. Frenz once again observed the myelogram and CT scan and
determined that there was evidence of narrowing at L3-4 and L4-5, together
with a soft-tissue defect at C5-6.
Dr. Frenz continued to follow the claimant, but
her condition did not improve. Dr. Frenz sought a new MRI on June 25, 1998
and observed that it demonstrated cervical narrowing of the disk between
vertebras numbered five and six and disk intrusion into the front of the
spinal canal at C5-6 and to a lesser degree at C6-7. Treatment rendered,
including a series of epidural steroid injections, resulted in no substantial
relief, and the claimant underwent surgery at the
hands of Dr. Frenz on August 18, 1998 for the purpose, according to the
physician, of removing abnormalities at levels C5-6 and C6-7, together
with the excise of calcium deposit bone spurs. Dr. Frenz utilized the claimant's
own bone to graft supported by a metal stabilizing plate. The claimant
was discharged from the hospital on August 20, 1998.
Dr. Frenz followed the claimant after the surgery.
Although the incisions were healing well, the claimant complained of various
symptoms. However, the claimant was returned to work on March 1, 1999 with
temporary restrictions of lifting no more than 15 pounds, standing and
walking no more than 30 minutes at a time, four hours a day, with no squatting,
stooping, crawling or repetitively twisting. During the periods that she
continued working four hours per day, she was experiencing some muscle
ache and soreness but was particularly pleased with relief that she had
received from cervical pain during this time.
According to Dr. Frenz, when he saw the claimant
on June 14, 1999, she inquired as to whether she could be placed on a permanent
four-hour-per-day restriction performing the duties that she had been performing
while working at this status. According to the physician, the claimant
reached maximum medical improvement on June 22, 1999 with the following
restrictions: no repetitive stooping, squatting, twisting, turning, crawling
or assuming awkward positions; no lifting in excess of 15 pounds; limiting
exposure to cold or damp conditions; limiting exposure to walking on hard
or uneven surfaces. On cross-examination, he changed the date of
maximum medical improvement to April 13, 1999 Dr. Frenz opined that the
claimant could not return to the activities that she was doing prior to
the onset of her 1998 symptoms. He further opined that the claimant had
sustained a 12 to 14% permanent medical impairment
to her body as a whole as a result of her low back injury and an additional
12 to 14% permanent medical impairment to her body as a whole as a result
of her cervical difficulties. He finally opined that there is a causal
relationship between the increased work requirements and the 1998 onset
of the claimant's symptoms which resulted in the impairments, restrictions
and limitations which he expressed. Dr. Frenz testified that he was unable
to differentiate the percentage of restrictions which relate to the lumbar
problems of the claimant versus the cervical problems of the claimant.
Dr. Frenz affirmed that the 1998 surgery and related treatment were pre-certified
with the employer and he has received payment for all of his treatment
of the claimant.
On cross-examination the physician was asked to explain why, following the lumbar surgery (a non-work related surgery), she was released to full duty without restriction while, following the cervical surgery (a work-related surgery), she was released with significant restrictions. Dr. Frenz suggested that his restrictions were based on his desire to return the claimant to work after cervical surgery at less than full intensity based on the fact that, in his opinion, the additional work requirements which were assigned in 1998 represented the causative factor for the onset of symptoms. Dr. Frenz admitted that the claimant had specifically asked to be released to permanent part-time (restricted to four hour per day) duty, but it is his opinion, to a reasonable degree of medical certainty, that the claimant should not work more than four hours a day. He bases this opinion on the claimant's reports of problems in this limited work situation and the fact that the claimant was precluded from attending a work-hardening program that he suggested. Dr. Frenz testified that had she attended the program, he might have determined whether she is permanently restricted to her present limitations or whether she could progress into work of more intensity or duration. He further testified that he would not be opposed to the claimant's attempting to work for more than four hours per day.
Dr. Frenz testified that his records contain no
identifiable event which would contribute to the claimant's 1998 injury
or specify its onset and that, in this respect, her history is like the
history she gave relative to her 1995 injury-no identifiable date, time
or specific event.
Dr. Frenz testified that on her first visit in
1998, the claimant complained of radicular symptoms in her left leg, but
no radicular symptoms associated with her upper extremities. He noted that
it was unlikely that the spondylosis or osteophyte formation would be related
to the claimant's work. He admitted that when he reviewed the claimant's
cervical myelogram and post-myelogram CT on April 27, 1998, he did not
opine that surgery was indicated or that a frank herniation or nerve root
compression was in evidence. He added that the diagnostics did not adequately
or completely explain her ongoing complaints either, so an MRI was suggested.
However, it is clear from the physician's testimony that the myelogram
and post-myelogram CT did not immediately indicate to him that surgery
was indicated. In reviewing the MRI, Dr. Frenz did not identify a frank
herniation at any level; he did identify a free fragment of disk into the
spinal canal, something that Dr. Frenz indicates is often referred to as
a sequestered disk herniation. He was unable to identify, based on the
MRI, whether a piece of disk had broken free as a separate fragment. However,
he testified that the diagnostic studies do confirm that something about
the claimant's spine is not normal.
The medical records of Dr. Frenz, which are attached as an exhibit to his deposition and are also in evidence as exhibit CL-2, confirm his deposition testimony.
Rankin Medical Center Rehabilitation Services records were introduced into evidence by medical record affidavit. These notes cover the period of time in August and September of 1999. They note that the claimant appeared to complete the exercises but was quite guarded with activity and often reported to the therapist no improvement or progression. Ultimately, the claimant was discharged from therapy because she was not progressing.
Exhibit CL-4 requests that the claimant apply
for a Leave of Absence from the employer if she us unable to work for an
eight hour per day period.
Dr. Kendall Blake testified by deposition as
an expert in the field of orthopaedic surgery. He testified that he saw
the claimant on one occasion, January 4, 1999, on request of the Markow,
Walker & Reeves law firm for an independent medical evaluation. She
reported a history to Dr. Blake which is consistent with the claimant's
direct testimony. He also noted that he reviewed diagnostic tools, including
x-rays performed on April 23, 1998 and interpreted by Dr. Nancy Burrows,
a radiologist and noted that Dr. Burrows interpreted the films as completely
normal. He also noted that the claimant advised him that her symptoms regarding
her neck and shoulders were completely unchanged after the cervical spine
surgery. Dr. Blake said that this fact was the likely result of two factors:
either the claimant simply didn't respond to this type of surgery or the
claimant did not have the diagnosis ascribed to her and thus her pain was
not coming from degenerative changes and ruptures in her neck and repair
would not result in improvement.
Dr. Blake performed a physical examination of the claimant. His examination revealed no evidence of spasm, good range of motion for someone who had two vertebral levels fused, a completely normal neurological examination save slight loss of circumference of her left calf, compared to the right, slight depression in the reflex of her left knee, together with obesity. He concluded that the claimant had "no physical residual associated with her neck problems"4 and indicated that her examination was essentially normal with no evidence of objective physical findings to warrant any restrictions or limitations with respect to the claimant's work activities or other activities.
Dr. Blake testified that it was unclear to him why the claimant underwent surgery at her cervical level. In his opinion there were no "real hard findings" to support surgery. He testified that a myelogram and post-myelogram CT is a far more accurate diagnostic tool for evaluating a problem such as the claimant's and the radiologist interpreted the cervical myelogram with post-myelogram CT as absolutely normal. No evidence of extrinsic pressure on the thecal sack could be identified; no body abnormalities were noted; no evidence of spinal stenosis encroaching on the diameter of the claimant's cervical canal was present.
The physician opined that the claimant is not suited to work that requires prolonged standing or any kind of lifting or exertion as a result of her two-level cervical fusion, degenerative disk disease at two levels of the lower back, possibly a third level, and the claimant's obesity, whether these physical symptoms or situations are work related. Dr. Blake opined that the claimant's limitations on activity arose approximately 80% from her lumbar condition and about 20% from her cervical condition. He testified that at her age and with her weight, it is far more likely that her back problems will progress than that her cervical problems will progress.
In Dr. Blake's opinion, when he examined the claimant on January 4, 1999, she had reached maximum medical improvement with regard to her cervical complaints. He intimated that her back condition was progressive and degenerative and would probably continue to deteriorate over the balance of the claimant's lifetime. He testified that in light of his examination of the claimant on January 4, 1999, any condition related to her lower back that she reported as commencing in February or March of 1998 would have been a flare-up, a temporary condition which would have subsided, and not a permanent condition.
Dr. Blake opined that the claimant should undergo an aggressive fitness program before returning to work. Dr. Blake described the program that the claimant's condition warranted as one which would be of six months duration at a minimum, including weight loss, water aerobics, musculature strengthening, a walking program and significant lifestyle changes. After she had the opportunity to undergo such a program, he believes that the claimant could work a 40 hour week in a limited, sedentary capacity.
Dr. Blake testified that in his opinion the claimant
has a permanent impairment associated with both her lumbar and cervical
problems. He suggested, without benefit of reference to the AMA Guidelines,
that the claimant's impairment rating to the lumbar spine is in the range
of 10% to the body as a whole. He was unable, without benefit of reference
to the AMA Guidelines, to rate the claimant's medical impairment to her
cervical spine
On cross-examination, Dr. Blake testified that
the claimant needed to undergo an aggressive fitness program before she
would be able to work, and that in his opinion, at the time he saw her,
she was unable to work due to her physical condition. Dr.
Blake's opinion is that only when the
claimant has completed such a program will she be able to return to work.
Dr. Blake had the opportunity to review x-rays
of the claimant, including the myelogram and post myelogram CAT scans of
both the cervical and lumbar areas, dated April 23, 1998, and the MRI studies
of both cervical and lumbar areas, dated June 23, 1998. In Dr. Blake's
opinion, all studies were normal.
Eduardo Esguerra testified by deposition that
he is the hatchery manager. He is acquainted with the job the claimant
currently performs four hours a day. Her job is to occasionally lay a piece
of paper in a box. He did not characterize the job as a full time job and
indicated that when the claimant is not present in the plant, four other
people in the chick room do this job. He testified that this particular
job was created for the claimant when he came to the hatchery and when
she leaves the employment of the employer this job will be eliminated.
Mr. Esguerra testified that he requested the claimant
take a leave of absence if she could not work for eight hours in any position
that he needed her to work in. He requested that she leave because he wanted
to eliminate positions that he does not need in the hatchery. He indicated
that he did not need Ms. Jackson in the hatchery performing the job that
she is currently doing.
Richard Dwayne Gilreath, the egg procurement,
pick-up and delivery, chick line supervisor at the hatchery, testified
by deposition that he knew the claimant and became her supervisor following
her return to work in 1999. Mr. Gilreath described the claimant's job as
placing a piece of paper into a box if, after the box went through the
destacker and the paper layer machines, it was missing a piece of paper.
He testified that if the claimant is not present in the hatchery, then
other people on the floor do her job. If the claimant were to leave her
employment, she would not be replaced.
Mr. Gilreath testified that he was not aware
that the claimant has been asked to take a leave of absence. He suggested
that if the claimant wanted to attempt to work for eight hours a day, he
would allow that, but he does not have the authority to make that decision
on his own. However, if the claimant came to work with a release to work
for eight hours, he could make that decision on his own without assistance
from a higher authority. Mr. Gilreath testified that he does not need the
claimant in her position.
Albert Lee Frazier testified that he supervised
the claimant from 1984 until her injury in 1998. He testified that the
claimant was an excellent employee. He testified that when the claimant
returned to work after her 1995 surgery, she had completely and fully recovered
and was able to perform the same duties that she did prior to surgery.
However, he admitted that between one and three times a week, from the
time she returned from her 1995 surgery until she went off work in 1998,
she would ask for assistance with the vaccine. He would move it so that
the claimant did not have to move it herself.
Mr. Frazier testified that the claimant's duties
changed in early 1998. Management determined that the claimant did not
have enough to do just to mix vaccine and he wanted her to count chicks
as well. He testified that at the time of the onset of the 1998 injury,
the claimant was the only employee counting chickens, and chickens to be
counted were approximately 1,000 chickens per machine operating 28 to 32
machines a day. Although he does not remember how many days she
counted chickens, he testified that by the second day she was bent over
and complained of her back hurting. He cannot recall
how long the claimant continued to count chicks.
Exhibit CL-10 is a Notice of Decision from the
Social Security Administration finding that, based on the injuries and
treatment that are the subject of the workers' compensation claim, the
claimant is disabled within the meaning of the Social Security Act, beginning
March 12, 1998.
Dr. Nancy Burrow, a radiologist, testified by
deposition as an expert in the field of radiology. She testified that she
performed and interpreted diagnostic studies of the claimant on April 23,
1998, including a lumbar and cervical myelogram, lumbar CT and cervical
CT. She testified that on the lumbar studies she found evidence of the
claimant's previous surgery but, otherwise, no other abnormality was noted.
She reiterated that the was no evidence of cord displacement or compression
and no evidence of a disk bulge. The radiologist declined to testify that
there was no indication that surgery was necessary, noting it is not within
her purview to make decisions on surgery. The witness testified that the
cervical studies were normal and there was no evidence of herniation at
any cervical level or disk bulge at any cervical level.
Dr. Burrow testified that she did not read studies
taken on June 23, 1998. These studies were read by Dr. Allen Yates. She
testified that Dr. Yates found the following:
Mr. Cox opined that the claimant was suited to
sedentary work and he located several suitable
jobs which are reflected in exhibit 3 to his deposition. It is Mr. Cox's
opinion that the claimant can perform the jobs listed in exhibit 3. He
also indicated that the claimant actually made application at each employer
identified by him.
Mr. Cox conceded that the post-injury wage earning
capacity demonstrated by the claimant in a created job is a less reliable
indicator of her post injury wage earning capacity than a post injury wage
in a usual job.
After considering the lay and expert testimony adduced in this cause, together with the documentary evidence and the relevant law, the undersigned finds as follows:
1 . The claimant's disability has resulted from an injury which arose out of and in the course of the claimant's employment. The employer contends that, although the claimant suffered a compensable injury, and although it approved and paid for all medical treatment rendered by Dr. Frenz to the claimant, that a post-surgery evaluation would suggest that the surgery performed by Dr. Frenz in 1998 was unnecessary in the first place and thus, any disability resulting therefrom is not work related. This position is neither apt nor accurate. The employer does not dispute the onset of the claimant's injury in the spring of 1998. The employer did not contest that the medical treatment provided to the claimant by Dr. Frenz was unnecessary, unreasonable or unauthorized until after the treatment had been completed and the claimant returned to work under Dr. Frenz's restrictions. Disregarding the effectuality of one surgeon second-guessing the decisions made by another after the fact, it remains undisputed that the claimant had an admittedly compensable injury, was treated, and as a result of the injury and treatment, has permanent limitations and restrictions which result 'in some degree of disability as defined by the Mississippi Workers' Compensation Law (hereinafter "the Act"). This disability results, directly or indirectly, from the compensable injury.
2. The claimant was temporarily totally disabled
from March 12, 1998 until February 28, 1999,
when, according to the post-injury wage statement,
she returned to work at Rogers on a part-time
basis.
3. The claimant was temporarily partially disabled
from March 1, 1999 until October 26,
1999, when she reached maximum medical improvement.
4. The claimant has sustained a permanent disability
as a result of her 1998 injury. It is the
extent of this disability which is subject to various interpretations.
As we know, the Act defines disability as
"incapacity because of injury to earn the wages which the employee
was receiving at the time of injury in the same or other employment."
Mississippi Code Annotated, section
71-3-3(i)
(1972) (as amended). Certainly, the evidence
in the record indicates that Ms. Jackson is incapacitated in this sense.
Contributors to this conclusion are as follows:
However, these factors are complicated by the testimony of Dr. Frenz who admitted that it was the claimant requested the four-hour a day restriction and that he would not be averse to the claimant trying to work additional hours per day, together with Dr. Blake's testimony that when he evaluated her on behalf of the employer, he considered her unable to work due to her physical condition, principally her deconditioned physical situation coupled with her restrictions and her weight. Further consternation is raised by Dr. Blake's insistence that the claimant pursue a fitness program, which both Doctors Blake and Frenz indicate might enable the claimant to work more than a four-hour day, while the employer would not authorize such a program for the claimant when it was proposed for her. Thus, the claimant and the employer have unwittingly conspired to create a situation in which the claimant was precluded from the possibility of increasing her duration or intensity in a work environment.
4. The employer is not entitled to apportionment.
The testimony of the claimant, Dr. Frenz, and Albert Frazier affirm the
fact that the claimant's prior (1995) injury had completely
resolved for a period of in excess of three years before the onset of the
new injury. The weight of the medical findings
in the record do not suggest that the claimant's
prior injury is a material contributing factor in the claimant's current
condition.
IT IS, THEREFORE, ORDERED AND ADJUDGED that the employer and carrier provide to the claimant as follows:
1 . Temporary total disability benefits in the amount of $234.68 per week from March 12, 1998 through February 28, 1999, with credit for sums previously paid and for the weeks in which wages were earned by the claimant during this period;
2. Temporary partial disability benefits in the
amount of $166.30 per week from March 1, 1999
through October 2 7, 1999;
3. Permanent disability benefits in the amount
of $234.68 per week commencing October 28,
1999 for a period of 450 weeks;
4. Medical services and supplies pursuant to
Mississippi Code Annotated, section 71-3-15
(1972 and Supp. 1999) for so long as the nature of
the injury and the process of the recovery
may require, with fees and charges to be limited to that allowed pursuant
to the Mississippi Workers' Compensation Medical
Fee Schedule, including, but not limited to,
the therapeutic program suggested by Dr. Blake; and
5. Penalties on unpaid amounts of compensation
as appropriate and authorized by Mississippi
Code Annotated, section 71-3-37
(1972) and interest at the legal rate.
SO ORDERED this the 13th day of April, 2000.
LYDIA QUARLES
ADMINISTRATIVE JUDGE
ATTEST:
Brenda H. Goolsby, Secretary
___________________________
1. Although the Opinion of the Administrative Judge does not make an explicit finding that Ms. Jackson is permanently and totally disabled, both parties agree this is the essence of the Judge's award. Ms. Jackson argues the proof overwhelmingly supports the Judge's finding that she has no post injury earning capacity, while the Employer argues the Judge erred in finding the Claimant had a total loss of wage earning capacity.
2. The 1994 surgery was not the result of a work-related injury.
3. Clearly there is a conflict between the date that the physician determined that he began to treat the claimant, the date of the CT scan, and the remainder of the claimant's surgical treatment and release from hospitalization.