MISSISSIPPI WORKERS' COMPENSATION COMMISSION

MWCC NO. 98-15098-G-4316

SHELIA G. GARNER                                                                                                                         CLAIMANT

vs.

K L H INDUSTRIES, INC.                                                                                                               EMPLOYER
AND
MS MANUFACTURERS ASSOCIATION WORKERS' COMPENSATION GROUP                  CARRIER

APPEARING FOR CLAIMANT:
Honorable J. David Garner, Attorney at Law, Jackson, Mississippi

APPEARING FOR DEFENDANTS:
Honorable Anne Sanders, Attorney at Law, Jackson, Mississippi
 

FULL COMMISSION ORDER

The Commission heard the above styled cause on October 30, 2000 in the offices of the Mississippi Workers' Compensation Commission in Jackson, Mississippi on Claimant's "Petition for Review Before Full Commission" and Employer/Carrier's "Response to Petition for Review Before 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 "Opinion ofthe AdrMinistrative Judge" dated June 12, 2000.

SO ORDERED, this the 1st day of November, 2000.

MISSISSIPPI WORKERS' COMPENSATION COMMISSION
BY: BARRETT SMITH
BARNEY SCHOBY
BEVERLY BOLTON
COMMISSIONERS

ATTEST:
Joann McDonald
___________________________
 

MISSISSIPPI WORKERS' COMPENSATION COMMISSION

MWCC NO. 98 15098-G-4316-C-00

SHELIA G. GARNER                                                                                                                        CLAIMANT

vs.

KLH INDUSTRIES, INC.                                                                                                                 EMPLOYER
AND
MS. MANUFACTURERS ASSN. WORKERS' COMPENSATION TRUST                                  CARRIER

APPEARING FOR CLAIMANT:
David Garner, Attorney at Law, Jackson, Mississippi

APPEARING FOR EMPLOYER AND CARRIER:
Anne Sanders, Attorney at Law, Jackson, Mississippi
 

OPINION OF THE ADMINISTRATIVE JUDGE

The claimant, Shelia Garner, sustained admittedly compensable work-related injuries (bilateral carpal tunnel syndrome) with onset on or about August 31, 1998 while she was in the employ of KLH Industries, Inc. (hereinafter "KLH"). A hearing on the merits of the Petition to Controvert was held on May 23, 2000 in the Jefferson Davis County Courthouse, Prentiss, Mississippi. The parties stipulated to the following facts:

1 . The claimant's average weekly wage at the time of injury was $234.72, rendering a compensation rate of $156.49.

2. The claimant reached maximum medical improvement (hereinafter "MMI") after her first surgical procedure on December 22, 1998.

3. The claimant reached MMI after her second surgical procedure on September 16, 1999.

4. The employer and carrier have paid $3,465.99 in temporary total disability benefits1 but have not paid the 5% permanent impairment rating to the claimant's right hand.
 

ISSUES FOR DECISION

The issues for decision by the Administrative Judge are as follows:

SUMMARY OF THE RELEVANT EVIDENCE

The claimant, Shelia Garner, is a 30 year old resident of Silver Creek, Mississippi, who graduated from high school and has had no other vocational training. She testified that she began working at KLH during her last year of high school and thereafter worked at KLH during numerous periods including 1987 to 1989, 1989 to 1990, 1990 to 1991 and 1993 to 1999. During these periods of employment, the claimant performed numerous jobs at KLH including the following:

The claimant testified that the size of the harnesses differed but that the heaviest harnesses weighed approximately 10 to 12 pounds.

The claimant testified that she began experiencing problems with her hands, specifically numbness in the right hand, at the Prentiss Complex Building. The reported this to the plant nurse, who wrapped her hand and gave her medication for pain relief. While she was working as a taper, her problems increased and she made an appointment with her physicians, Dr. Edalat and Dr. Goel. She reported this to the company, who requested that she go to the company physician. The claimant reported to Betty Logan, as requested; Betty Logan diagnosed carpal tunnel syndrome and gave the claimant a prescription for pain relief and relief of inflammation. On the claimant's second visit to Dr. Logan, she was referred to Dr. Michael Weaver.

The claimant testified that she first saw Dr. Weaver in April of 1998. He performed a physical examination of her wrists, prescribed medications and ordered a nerve conduction study. On her second visit to Dr. Weaver, he gave her the results of the diagnostic study and treated the claimant with steroid shots, which, according to the claimant, had little effect.

Ultimately, Dr. Weaver performed a carpal tunnel release of her right carpal tunnel on October 22, 1998. She testified that after the surgery, her wrist did not improve and when she returned to work she suffered much the same symptoms as she had prior to the surgery. She returned to Dr. Weaver with complaints of right arm muscle spasm and additional job problems, specifically with taping and plugging. Dr. Weaver gave her additional medication, but to no particular good effect.

The claimant reported her continued problems to her employer and requested to be seen by Dr. Goel. The employer refused to approve Dr. Goel for the claimant's treatment. The claimant then hired an attorney and at that time chose Dr. Freeland as her choice of treating physician. Dr. Freeland requested a nerve conduction study and a cold tolerance test and, after sharing the test results with her, diagnosed right carpal tunnel syndrome and performed a second release, a different procedure from that performed by Dr. Weaver. The claimant testified that the second release occurred approximately when her line of the plant was closing down. By the time she was released by Dr. Freeland to return to work, KLH had shut its doors.

The claimant testified that the second surgery has resulted in some improvement, but she still has problems including numbness, sharp pain through the arm, and muscle spasm. She testified that she is unable to do activities which require repetitive motion because her right hand tires quickly. This precludes her from mopping, washing dishes, moving heavy pots and other items, doing her own hair, washing clothes or folding towels.

The claimant testified that when she reached MMI after the second surgery she began searching for employment. She testified that she sought employment with the following entities:

She testified that of the places she applied, the C Store and the Pizza Inn and Pizza Hut were not hiring. All other entities were hiring. The claimant has not found employment.

The claimant testified that she has not returned to Dr. Freeland for treatment since he released her at MMI, but has requested that he telephone in prescription medications for her. She related that so long as she is not performing repetitive activities, she has no need for the medications.

On cross-examination, the claimant admitted that she was returned to work by Dr. Weaver after her first release with no restrictions, and that she returned to the same job at the same wage. She testified that she could perform the job, but that she was not "able" to perform the job. She explained this by testifying that prior to her employment injury, she was able to work a double shift and often did, but after the injury and the release, she was no longer able to work a double shift or extensive overtime. She was reminded of her deposition testimony when she testified that she could still perform her job at KLH, she just performed it more slowly. She acquiesced in that testimony.

The claimant also admitted that Dr. Freeland returned her to work from her second surgery with no restrictions. She also testified that her result from Dr. Freeland was, in her opinion, much superior to the result from Dr. Weaver and that had KLH been in operation when Dr. Freeland released her to return to work, that she would have returned to KLH and tried to work there.

The claimant related on cross-examination that she currently experiences no left sided problems.

The parties stipulated that Nellie Newsome, if called to testify, would testify that she was the claimant's supervisor at KLH; that after the claimant returned from her first surgery, she observed the claimant performing the taping and pluggingjobs and likewise observed the claimant responding to numbness in her hands; she knew that the claimant sent to the nurse on occasion, who taped her wrist and provided her with pain medication; that the claimant's problem continued to worsen after her first surgery and that she was symptomatic at such time as the line on which the claimant worked was shut down.

The parties further stipulated that Lynn Garner, husband of the claimant, LaShirley Garner, daughter of the claimant, and Kimberly Gholar, sister-in-law of the claimant, if called to testify, would corroborate the claimant's testimony relative to the claimant's inability to hold heavy objects, inability to do her hair, lack of grip strength, and that these observations were made by them post surgery.

Dr. Michael Weaver testified by medical records affidavit that he began treating the claimant on October 1, 1998 on referral by Betty Logan, noted positive Tinel's and Phalen's signs in the claimant's right upper extremity in October of 1998 and obtained nerve conduction studies and EMG's to confirm his diagnosis of bilateral carpal tunnel syndrome. Conservative treatment for some period, including injections and splinting, did not fully relieve the claimant's symptoms. Dr. Weaver performed a right carpal tunnel release on October 22, 1998. On October 27, 1998 he indicated that the incision looked good, no evidence of infection. He noted soreness in the incision site with little bruising proximally and distally and thumb soreness, placed her in a leather splint, and removed sutures a week later. November 12, 1998 the claimant returned complaining of soreness in the incision area. Dr. Weaver indicated "excellent range of motion" at this time. He noted predisposing factors, including diabetes and sarcoid. Dr. Weaver continued to follow the claimant's progress, urging advancing activities. On December 23, 1998 Dr. Weaver opined "she can make an attempt to return to work on 01/05/98 (sic) .... she will have a 5% permanent partial disability related to her carpal tunnel on the right side." On January 20, 1999 he observed "If she cannot hold up to do repetitive activities, then she needs to seek activities which require less repetitive motion." On February 24, 1999 he noted "my personal opinion is that she would probably best benefit from change of jobs that would not require as much repetitive activity.' On March 22, 1999 he observed "excellent range of motion of her digits, good palpable pulses .... May be at activities as she feels comfortable." In early May of 1999, Dr. Weaver noted that the claimant returned with complaints of mild discomfort while back working and it was his opinion that she could continue working.

Dr. Alan Freeland testified by deposition as an expert in the field of diseases and afflictions and injuries of the hand and wrist. He testified that he first saw the claimant on April 29, 1999 when she reported complaints of carpal tunnel syndrome, indicating that her pain was 10 of 10 when severe and 8 of 10 when average and that the pain was intermittent bilaterally. Other subjective complaints included weather-related pain, night pain, resting pain, activity related pain including pain components she described as sharp, aching, throbbing, electric shock and pins and needles. On the occasion of the claimant's first visit, Dr. Freeland performed provocative testing, including Phalen's and Tinel's, which were positive, Finklestein's and Watson's, which were negative. X-rays taken on that date were normal. Grip strength, pinch, and range of motion testing indicated relatively normal range of motion but some compromise of grip strength and rapid exchange. Inconsistency of effort was noted. He diagnosed recurrent or persistent carpal tunnel syndrome, right, and carpal tunnel syndrome, left.

When asked whether he could testify to a reasonable degree of medical certainty that her work at KLH caused or contributed to the claimant's bilateral carpal tunnel syndrome, the physician listed confounding risk factors (including obesity, sarcoid, high blood pressure, medications) but generally endorsed that the diagnosis was consistent with a work-related injury.

Dr. Freeland saw the claimant a second occasion on June 3,1999 and ordered a nerve conduction study and EMG to be performed by Dr. Graeber that day. The results noted very mild bilateral carpal tunnel syndrome from an electrophysiologic standpoint, without axion loss. Dr. Freeland recommended a second carpal tunnel procedure with more extensive incision to insure a complete release and also an ulnar fat pad transposition in order to protect and cushion the nerve and bring in blood supply.

The claimant underwent postoperative work-up evaluation and counseling on July 1, 1999 and underwent an extended right carpal tunnel release and ulnar fat pad rotational flap on July 12, 1999. Dr. Freeland followed her post-operatively, opined that she had an uncomplicated post-operative course, and testified that she reached maximum medical improvement on September 16, 1999 with a 5% permanent partial impairment of the right hand, solely the result of the residuals of her releases. He returned the claimant to unrestricted work on September 20, 1999. Dr. Freeland declined to give the claimant an impairment rating on the left due to a dearth of evidence of permanent damage on the left side.
 

DECISION

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 has incurred a work related injury, bilateral carpal tunnel syndrome.

2. The claimant was temporarily and totally disabled for two discrete periods of time; the employer and carrier has paid to the claimant all temporary total disability compensation due for those periods.

3. As a result of the injury to the claimant's right wrist, both Dr. Weaver and Dr. Freeland opined that the claimant sustained a permanent partial medical impairment of 5% to the hand; although both physicians acknowledge that the claimant was found to be mildly symptomatic, left, this condition has required no treatment and is subject to no permanent medical impairment. The question then becomes whether the occupational impact of the claimant's work related injury is greater than the degree of permanent medical impairment assigned by the physicians. In order to answer this question of occupational impact, it is necessary to consider the lay testimony of the claimant and others, as well as the expert testimony of the treating physicians.

The claimant testified that, especially between the first and second surgeries, she suffered a substantial occupational impact in that she could not do her job as rapidly as before, she could not work overtime or double shifts, and that she continued to experience symptoms, notably pain, tingling and swelling. This is corroborated by the claimant's supervisor and is not disputed by the employer or carrier. Yet, it is also a fact that the claimant returned to and adequately performed her pre-injury job after her release from her first surgery and, in the claimant's own words, she could "still do the job, but slower.' The testimony of the claimant's family members suggests that the claimant continues to be symptomatic, even though she has been unemployed since the second surgery.

On the other hand, neither physician has restricted the claimant in any way or from any particular occupation. Dr. Weaver's testimony that the claimant should selfdefine the work she could do is contrasted with his May 1999 opinion that the claimant's complaints after returning to work were of mild discomfort and based on his physical examination and her report it was his opinion that she could continue working in a repetitive motion capacity. Dr. Freeland found no reason to restrict the claimant from any activity when he released her from her second surgery, even though he testified that often individuals who had undergone carpal tunnel release were sensitive to repetitive motion activities, vibration or temperature intolerant. Indeed, Dr. Freeland felt a functional capacities evaluation unnecessary and that the permanent impairment rating was awarded for surgical residuals only and not for restrictions, limitations or the like.
 

ORDER

IT IS, THEREFORE, ORDERED AND ADJUDGED that the employer provide to the claimant as follows:

1. Permanent partial disability benefits in the amount of $156.49 per week commencing December 22, 19983 for a period of 10 weeks;

2. Medical services and supplies pursuantto 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; and

3. 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 12th day of June, 2000.

LYDIA QUARLES
ADMINISTRATIVE JUDGE

ATTEST:
Brenda H. Goolsby, Secretary
___________________________

1. The claimant agrees that this amount of temporary total compensation is the total amount of temporary compensation owed.

2. The claimant testified that at Columbia Cable she was told to report for work at 8 a.m. on a particular day, which she did, to find that the job was no longer available to her.

3. According to Dr. Freeland's testimony, no additional permanent impairment was occasioned as a result of the second surgery performed by Dr. Freeland, although clearly the claimant did undergo a period of temporary disability subsequent to the first surgery while she recovered form the second surgery. This second period of temporary disability has bene paid by the employer and carrier.