MWCC NO. 99-00165-G4554
DAVID H. SMITH CLAIMANT
vs.
UNIVERSITY OF MISSISSIPPI MEDICAL CENTER
EMPLOYER
AND
MISSISSIPPI INSTITUTIONS OF HIGHER LEARNING
CARRIER
REPRESENTING CLAIMANT:
Kenneth Miller, Esquire, Jackson, MS
REPRESENTING EMPLOYER/CARRIER:
Robert Carpenter, Esquire, Jackson, MS
This matter was heard by the Commission on July 10, 2000 pursuant to the Employer's and Carrier's Petition of Appeal which seeks review of an Opinion of the Administrative Judge dated January 5, 2000. The Administrative Judge awarded the Claimant permanent total disability benefits in addition to medical benefits for an admittedly compensable neck and back injury.
Also before the Commission is the Claimant's Motion
for Introduction of Additional Evidence, as well as the Employer's and
Carrier's Motion for the Introduction of Additional Evidence. Both of these
Motions are submitted pursuant to Mississippi Worker's Compensation Commission
Procedural Rule 9 which gives the Commission discretion to admit additional
evidence on review of a claim. Having considered both Motions, we hereby
grant each and direct that the documents attached to each1
be marked accordingly as the next numbered exhibits and made a part of
the evidentiary record to be considered in this matter.
By way of stipulation, the parties agree that David Smith first injured his neck and back sometime in March 1993 and that he ultimately reached maximum medical improvement from his injury and treatment on December 16, 1996, as per the findings of Dr. Robert McGuire. At the time of his injury, Mr. Smith was earning an average of $404.39 per week. The only question presented to the Judge, and to us, is whether and to what extent Mr. Smith is permanently disabled as a result of this injury.
Mr. Smith began work as a carpenter at University Medical Center in 1992. Following his injury, he underwent cervical disc surgery with fusion on November 5, 1996. At Mr. Smith's request, his treating physician Dr. Robert McGuire released him for light duty work on November 18, and on December 16, 1996 Dr. McGuire gave him clearance to return to regular duty with the following conditions: no heavy overhead work or repetitive flexion or extension of the cervical spine, avoid keeping the neck in an extended position for any extended period of time, and avoid lifting more than 30 to 50 pounds.
Dr. David Collipp, who evaluated Mr. Smith on June 3, 1998, cautioned him as well against excessive overhead work and lifting, but otherwise did not preclude him from work.
Mr. Smith returned to his work as a carpenter and continued in this capacity until August 29, 1998 when he terminated his employment. During this period Mr. Smith earned as much or more money that prior to his injury. Admittedly, Mr. Smith had to adjust some of his work habits to accommodate his restrictions, and the Employer allowed this as needed. However, there is nothing in the record to suggest that Mr. Smith is now wholly unable to work and earn wages. Although Mr. Smith argues that he ultimately terminated his employment because he was physically unable to continue the work, he admitted that the need to stay home and care for his wife, who is largely bedridden by a degenerative spine ailment, was a major factor influencing his decision.
Mr. Smith thereafter applied for and was granted
disability retirement by the State of Mississippi Public Employees Retirement
System. He has not made any significant effort to find other, and perhaps
more suitable employment since. Not only does the unfortunate condition
of his wife prohibit him from accepting full time employment, he also acknowledged
that his decision not to seek full time employment has been influenced
in part by the annual earnings limitation attached to his retirement benefit.
These things notwithstanding, Mr. Smith has managed to continue working
part time performing odds jobs for pay, including carpentry work.
The fact that Mr. Smith was able to return to his regular employment for nearly two years post injury and earn as much or more money than before creates a presumption that he has suffered no loss of wage earning capacity because of his injury, and hence, no permanent disability. General Elec. Co. v. McKinnon, 507 So. 2d 363, 365 (Miss. 1987); Miss. Code Ann. §71-3-3(i) (Rev. 1995). This presumption that Mr. Smith's earning capacity has not been diminished by his injury may be rebutted by evidence which shows his post-injury earnings are unreliable indicators of earning capacity because of (1) a general increase in wage levels, (2) the Claimant's own greater maturity and training, (3) longer hours worked by the Claimant, (4) payment of sympathy wages by the Employer which are disproportionate to Claimant's output, and/or (5) the temporary and unpredictable character of the post injury earnings. Id.
No such evidence in rebuttal appears in this case.
The evidence as a whole leads us to the conclusion that Mr. Smith was and
is capable of returning to employment which is comparably gainful to his
pre-injury employment. This has been demonstrated in large part by his
nearly two year post injury return to his former job, which by all accounts
be performed admirably and without significant accommodation. There is
no credible medical evidence suggesting he is physically unable to work,
and it appears to us the only thing limiting him from full time, comparably
gainful employment are the unfortunate personal issues with which he has
to deal.
The Opinion of the Administrative Judge is therefore reversed and vacated, and Mr. Smith's claim for permanent disability benefits is hereby denied and dismissed.
SO ORDERED this the 6th day of September, 2000.
MISSISSIPPI WORKERS' COMPENSATION COMMISSION
Barrett Smith
Barney Schoby
Beverly Bolton
ATTEST:
Joann McDonald, Secretary
___________________________
MWCC NO. 99 00165-G-4554-E-23
DAVID H. SMITH CLAIMANT
vs.
UNIVERSITY OF MISSISSIPPI MEDICAL CENTER
EMPLOYER
AND
MISSISSIPPI INSTITUTIONS OF HIGHER LEARNING
SELF-INSURED
APPEARING FOR CLAIMANT:
The Honorable Kenneth Miller, Attorney at Law,
Jackson, Mississippi
APPEARING FOR EMPLOYER:
The Honorable Robert Carpenter, Attorney at Law,
Jackson, Mississippi
The claimant, David H. Smith, sustained an admittedly compensable injury while in the employ of the University of Mississippi Medical Center (hereinafter "UMC"). At the hearing on the merits of the claimant's Petition to Controvert held on the 1st day of November, 1999 in the Offices of the Mississippi Workers' Compensation Commission, Jackson, Mississippi, the parties stipulated to the following facts:
The sole issue remaining for decision of the Administrative
Judge is the extent of permanent disability resulting to the claimant from
his compensable injury.
The claimant, David H. Smith, is a 62 year old resident of Crystal Springs, Mississippi. He graduated from high school in Ebensburg, Pennsylvania in 1955. He has had benefit of no vocational training. He entered the military service in January of 1956, serving on two years of active duty as a tank mechanic. Thereafter, he returned to Ebensburg, where he worked as a carpenter for a year. He then moved to the Los Angeles area and drove a truck in the late 1950s, also performing carpentry work, although he did not join a carpenter's union in California.
The claimant testified that in 1975 he moved to Mississippi and commenced working at Grand Gulf, where he was employed for six years as a carpenter, specifically erecting heavy steel forms for concrete walls four feet thick which surrounded the reactors. Thereafter, the claimant opened his own business, D & D Construction, and commenced performing carpentry work, primarily remodeling residences. He ran D & D Construction until 1992 when he became employed at UMC.
The claimant testified that he was hired into UMC as a carpenter to perform physical facilities repair and maintenance. He worked with a 12 man crew, but each man had different duties. He was assigned to perform repair and maintenance on the exterior of 10 buildings, some on campus and some off campus. He worked independently of other members of the crew, had his own truck furnished by UMC, made his own rounds to the 10 buildings to observe the repairs needed, and would requisition aid from his supervisor when needed.
The claimant testified that he first experienced physical problems with his neck and back on March of 1993 when he attempted to replace a heavy steel door. He was carrying the door up a flight of stairs when he strained his back and neck. He reported the injury to his supervisor immediately and was sent to the employee health department. An agent in the employee health department sent him to physical therapy. When the physical therapy did not rectify the claimant's problem, he was referred to Dr. McGuire for treatment. Dr. McGuire first attempted to rectify the claimant's problem with traction. After two weeks of traction, this course of treatment was discontinued, but the claimant continued under Dr. McGuire's conservative care until November of 1996, when Dr. McGuire performed surgery.
The claimant testified that he lost no time from work as a result of his injury up until the time of his cervical surgery. After the surgery, Dr. McGuire kept him off work for six weeks and then he returned to the same job at UMC and resumed his regular duties. After his return to work, he continued to have neck pain which gradually increased in intensity and began to go down into his shoulders. He also developed carpal tunnel syndrome. He also began to have headaches when he returned to work after the cervical surgery. He associated the constant headaches with neck pain and returned to Dr. McGuire for treatment. Dr. McGuire referred the claimant to a neurologist, Dr. Corbett, for treatment and ultimately to Dr. Strong for pain management. Dr. McGuire also opined to the claimant that he should apply for PEERS disability retirement, which he did.2 The claimant was granted disability retirement. His last day at UMC was August 29, 1998.
The claimant testified that he has both looked for employment and has engaged in small carpentry jobs since August 29, 1998.3 He avoids jobs which will require him to perform overhead work, as these tasks intensify his headaches. He describes his headaches as constant, and prescriptions provided by Dr. Strong include MS Contin (30 mg. twice a day), Neurontin (300 mg. three times a day) and Ultram (50 mg. four times a day). Even with the medication, the claimant experiences severe headaches once or twice a week. These headaches require him to lay down, his vision becomes blurry, and he is unable to drive during these attacks. He testified that the headaches, particularly the severe ones, have affected his ability to look for work and, in his opinion, restrict him from taking a full time job. The claimant has candidly admitted that other issues restrict him from taking a full time job, too. His wife is bedridden with a spine condition and he is required to care for her. In addition, he is limited by his PEERS disability retirement from earning wages that would be consistent with full time employment.
Mr. Smith testified that he has been made aware of employment opportunities supplied to him by Bruce Brauner, and applied for each position that Mr. Brauner located except the security position at Northpark Mall.4 He testified that as a result of his applications, he was offered positions with Gun Sight Detective Agency in Jackson and at Pendleton's Security Agency in Jackson, offering $5.15 and $5.20 respectively. He testified that he felt physically unable to perform the tasks required on a regular basis because of his headaches. He testified that although he is willing to work a 40 hour week, his severe headaches appear with regularity and he would not be able to hold a 40 hour a week position. He testified that during the period that he returned to UMC after his surgery and before his disability retirement had been approved, even with the assistance of his supervisor, working 40 hours a week was "miserable" to him.
When asked specifically about his carpentry jobs, he described jobs for the following individuals: Ms. Lela Bell in Crystal Springs, Mr. Burt Young in Crystal Springs, Jack Underwood in Jackson, Mr. R. Alan Mize in Jackson, Ms. Peggy Coleman in Crystal Springs, B & C Auto Supply, Ms. Laurie Womack and Mr. Martin Willoughby in Crystal Springs.
On cross-examination, the claimant admitted that after his surgery, he returned to his regular occupation at UMC, but was advised by his supervisor to call if he needed help or assistance with his tasks. He admitted that UMC did not ask him to retire, that his supervisor knew and followed his situation and knew that he was applying for PEERS disability. At the time of his retirement, the claimant was earning $10.70 per hour.
Bruce Brauner testified as an expert in the field of vocational rehabilitation on behalf of the employer. He testified that he was hired on May 19, 1999 to perform a job survey analysis and find a job for the claimant. He contacted the claimant's attorney and arranged a meeting with the claimant on June 10, 1999. On that occasion, he sought from the claimant an understanding of his social background, education, vocational history, military history, past medical history, current medical condition, and the aspects of his current medical condition that the claimant identified as his main problems. As a result of the interview, Mr. Brauner found that the claimant was a 61 year old individual with a high school education and a good work history, including as a liquor store owner/manager, millwright, carpenter, forklift operator, cabinet maker, military service, and pipe insulator. By reviewing the claimant's medical history, he determined that the claimant had back surgery in the 1980s, performed by Dr. George Purvis, and cervical problems since 1993, when he began being followed by Dr. Robert McGuire, ultimately ending in cervical surgery and referral for pain management. Mr. Bratiner testified that on March 29, 1999 Dr. McGuire gave the claimant permanent work limitations which included an ability to do light to medium work, with no overhead lifting, and no physical requirement which would keep the claimant's head in a strained position. He noted that Dr. Collipp and the functional capacity evaluation that he requested, confirmed Dr. McGuire's restrictions, and that Dr. Collipp's lifting restrictions included no lifting over 15 to 30 pounds on a routine basis. In evaluating these restrictions against the claimant's position at UMC, he opined that the UMC job would not be described as a "heavy" job although he did not do a job analysis of that position, and further opined, although he could not say with certainty, that the claimant "possibly could" perform his position at UMC and remain within the permanent restrictions.
Mr. Brauner testified to the jobs that he located for the claimant:
Mr. Brauner testified that although he is aware of the claimant's subjective complaints, he does not credit these complaints, but has determined jobs available to the claimant with reliance on the physicians' limitations and the results of the functional capacity evaluation. He noted that neither Dr. McGuire or Dr. Smith put any work limitations on the claimant as a result of his headaches. Mr. Brauner did admit that, if the claimant is affected by headaches "as he has testified" then the headaches would affect the claimant's ability to be present at work on a regular basis. However, it would not make him unemployable.
Mr. Brauner admitted that he was familiar with Dr. Collipp's opinion that if the claimant continued his job at UMC he would risk significant physical damage. Based on that opinion, Mr. Brauner opined that the claimant should not continue in that employment and that he would not be able to perform that position without accommodation.
Mr. Bratiner testified that the claimant's primary vocation throughout his life was that of a carpenter or millwright and that these occupations would be off limits to the claimant in his current condition without accommodation. He also testified that the claimant would be unable to drive a forklift in most situations because would often require looking up for taking items from high places or placing them there with the lift.
Dr. David Collipp, testified by medical records affidavit. The records reveal that the claimant saw Dr. Collipp as the result of a request from PEERS, which was seeking to evaluate whether or not the claimant was entitled to Mississippi's disability compensation available to employees who warrant such benefits. Dr. Collipp saw the claimant on June 3, 1998, took a history from the claimant, performed a physical examination, and offered an opinion relative to the claimant's employability. Specifically, as a result of the physical examination, Dr. Collipp noted the following:
Dr. Corbett followed with the claimant on August 19, 1997. The claimant reported that neither Naprosyn nor Ultram were helpful for his holocranial headaches. Dr. Corbett began the claimant on Amitriptyline 10 mgs. in the evenings, with instructions to gradually increase the Amitriptyline dosage to 50 mgs.
Dr. William B. Geissler, an orthopaedic surgeon at UMC, testified by medical records affidavit. Dr. Geissler began seeing the claimant in December of 1997 for symptoms related to abductor pollicis brevis, resulting from carpal tunnel syndrome or chronic denervation at C6. Dr. Geissler followed the claimant through July of 1998, being hesitant to perform a release for various reasons, including negative EMG studies.
In October of 1998 the claimant was complaining of right shoulder pain, which Dr. Geissler determined to be rotator cuff tendonitis. Due to the pain in the supraclavicular area, he injected the claimant with 1 cc of Celestone mixed with 10 of Lidocaine, which gave good immediate relief. Dr. Geissler prescribed a physical therapy protocol for the claimant and continued to follow him, noting that he had mentioned continued carpal tunnel symptoms.
In December of 1998, the claimant reported to Dr. Geissler that therapy had helped his shoulder but he was continuing to suffer numbness in his fingers. The claimant was discharged by Dr. Geissler to return as needed.
Dr. Robert C. Strong of the UMC Department of Anesthesiology testified by medical records affidavit. Dr. Strong's records reveal that he followed the claimant during most of calendar 1998, identifying the claimant's pain syndromes and providing various prescriptions for pain alleviation, also suggesting acupuncture to relieve the claimant's cervical pain.
Contained in Dr. Strong's records is a note from Dr. McGuire which states: "[a]s per the AMA guidelines, the multilevel cervical spondylosis changes that he has with the limited range of motion and fusion is 11% from the cervical spine to the body as a whole."7
Dr. Robert A. McGuire testified by deposition as an expert in the field of orthopaedic surgery. Dr. McGuire testified that he first saw the claimant on June 4, 1993 and at that time the claimant reported the work injury involving a heavy door and his resulting neck, left shoulder and left arm pain. Dr. McGuire performed a physical examination of the claimant on that date and found the claimant to have increased pain with extension and lateral bending of the spine, and decrepitous that is palpable with flexion/extension of the neck, together with decreased brachioradialis reflex and biceps reflex, left. Dr. McGuire reviewed films which revealed narrowing of the disc space at C5-6 with an osteophyte present and formed the impression of cervical spondylosis with C6 radiculopathy. Dr. McGuire began conservative treatment including a cervical collar, traction and an anti-inflammatory.
Dr. McGuire continued to follow the claimant, who had modified his work but had continued to work. They discussed surgical options but the claimant was reluctant to have surgery. In September of 1996, the claimant, who had been followed by Dr. McGuire regularly during this three year period, noted that he was experiencing increasing, progressive pain in his left neck, shoulder and arm with a C6 distribution. On September 30, 1996 the physician noted that there was "a change in the physical exam at that time"8 and that the claimant was "really starting to develop some neurologic problems, whereas before it had just been more of a pain pattern."9 An MRI scan at C5-6, taken around this time, revealed that the level was stenotic with an osteophyte narrowing the foramen, the disc being "completely gone"10 with narrowing of the foramen where the nerve exits. Still, the claimant did not desire surgery. Dr. McGuire continued a conservative regime, and although there was a temporary improvement, the claimant ultimately experienced digression and on October 21, 1996 determined that surgery should proceed. Dr. McGuire performed an anterior diskectomy and innerbody fusion at C5-6 on November 5, 1996, finding precisely what had been projected on the MRI scan earlier-the disc at C5-6 being "essentially worn out with a big osteophyte formation causing compression on the nerve itself."11
The claimant returned to the physician two weeks after the surgery, wanting to return to work on a light duty status. Dr. McGuire agreed. He continued to follow the claimant regularly and noted that by February of 1997 the claimant was doing extremely well from the standpoint of his surgery but was beginning to have headaches which revealed a new pattern. Dr. Smith associated Dr. Corbett, who, as previously noted, diagnosed rare cervicogenic headaches (which were, in Dr. Corbett's opinion, causally related to the work injury).
In July of 1997, the claimant was experiencing dizziness and was again referred to Dr. Corbett, who ruled out blood vessel constriction and resulting stroke. Later, the claimant experienced numbness in the hands, which was ultimately determined to be more consistent with chronic level C6 changes than carpal tunnel syndrome, a result of Dr. Geissler's input.
By January of 1998, the claimant's primary problems related to extension. According to the physician, the claimant could do reasonably well if he were not required to hold his head in an extended position for any period of time. He still suffered parasthesias in his hands but it was not progressive. By July of 1998, the claimant's complaints were as in January. On August 27, 1998, Dr. McGuire awarded the claimant an 11% permanent medical impairment rating from the cervical spine to the body as a whole. Relative to limitations and restrictions, Dr. McGuire specified a job without the following components:
Dr. McGuire testified from a review of Dr. Strong's medical notes that the claimant was currently on the following medications per Dr. Strong's recommendation: Vioxx (a nonsteroidal anti-inflammatory), MS Contin (a long-acting pain medication) and Neurontin (an antiseizure medicine often used to treat chronic pain components). Dr. McGuire testified that Neurontin causes drowsiness and could affect ones judgment, noting that often those who take Neurontin get a disassociated feeling on the medication. Dr. McGuire also noted that Neurontin could have impact on an individual's ability to drive safely.
Dr. McGuire testified that the claimant had revealed
that at all times that he had been treating the claimant, the claimant
had been able to adjust his work at UMC to meet whatever restrictions his
physicians thought necessary for him. Dr. McGuire further testified that
so long as the claimant performed within the restrictions imposed, the
physician would have no objection to him performing job duties.
Upon consideration of the lay and expert testimony in this matter, along with documentary evidence and together with the applicable law, the Administrative Judge finds as follows:
1 . The claimant sustained an admittedly compensable injury in 1993 while in the employ of UMC.
2. The claimant was temporarily disabled from the date of his injury through December 16, 1996.
3. The claimant reached maximum medical improvement on December 16, 1996 with an 11% permanent impairment rating to his body as a whole and permanent restrictions and limitations as assigned by Dr. McGuire, to-wit: no heavy overhead work, no repetitive flexion or extension of the cervical spine, no sustained extension of the neck for any period of time, and a lifting limitation of less than 30 to 50 pounds.
4. The evidence in this case reveals clearly that the claimant was at all times anxious to return to work and not to be disadvantaged or disabled by his injury. Truly, this claimant continued to work consistently from the date of his injury until his pain became so intractable that he acquiesced in the recommendation of cervical surgery that Dr. McGuire had made to him three years before. And in two weeks of his surgery, he reported to his surgeon that he was ready to return to work in some capacity, was able to work out a modified duty assignment with his employer, UMC, and returned to work with Dr. McGuire's blessings. However, of extreme importance to the undersigned is the fact that throughout the claimant's post-injury work history, he continued to suffer complaints of head, neck, and left arm and shoulder pain and ultimately, with his supervisor's approval, sought disability retirement. To this end, the physician sought by UMC to opine as to the claimant's physical condition noted, in effect, if this claimant continues to work in his modified duty assignment that he has held since recovery from his cervical surgery, he will cause significant physical damage to himself. This opinion, to be sure, is the deathknell to the claimant's wage earning capacity. It is testimony that suggests that the claimant's injury, progressive in nature, worsened until such time as it was unsatisfactory for him to continue working without a detrimental effect on his health.
5. Although the employer makes a valiant argument that the claimant has sustained no loss of wage earning capacity because he continued to work, and admitted that he could have continued to work for UMC at the time that he began to seek disability retirement, and, in fact, currently does various odd jobs in the construction field perhaps earning himself as much as $5,000 per year, this argument fails to comprehend the significance and progressive nature of the claimant's injury and resulting condition. This claimant cannot realistically earn wages in the future. Thus, at this point in his life he is permanently and totally disabled.
6. A consideration of the claimant's age, education,
and work history, together with the nature of his injury, subsequent surgery,
residual chronic pain syndromes and restrictions and limitations also affect
the award appropriate to this claimant.
IT IS, THEREFORE, ORDERED AND ADJUDGED that the employer and carrier provide to the claimant the following:
1 . Permanent total disability benefits in the amount of $264.55 per week for a period of 450 weeks;
2. Medical services and supplies for such period as the nature of the injury or the process of the recovery may require, consistent with Mississippi Code Annotated, section 71-3-15 (1972) (as amended).
SO ORDERED this the 5th day of January, 2000.
LYDIA QUARLES
ADMINISTRATIVE JUDGE
ATTEST:
Brenda H. Goolsby, Secretary
___________________________
1. Attached to the Claimant's Motion is a set of medical records from Dr. Robert C. Strong along with an appropriate medical records affidavit, and also a copy of a Decision from the Social Security Administrations' Office of Hearings and Appeals concerning the Claimant's application for disability benefits pursuant to the Social Security Act. Attached to the Employer's and Carrier's Motion is a copy of the Pretrial Statement and wage records concerning Mr. Smith's employment with the Medical Center from December 20, 1996 through August 29, 1998.
2. Dr. Collipp examined the claimant for PEERS and ultimately rendered an opinion. relative to the claimant's ability to perform his job at UMC.
3. The claimant testified that he had earned approximately $500 from these jobs in calendar 1999. Other testimony on cross-examination suggested that during calendar 1998 and 1999, he has earned at least $ 1,100 on these odd jobs.
4. With regard to this position, the claimant testified that he drove from his home to the mall on two occasions to apply for the position, but was unable to do so because the dispatcher did not know where application forms were located and the manager of the security office was not in. He also testified that he believed the position paid little over minimum wage, which poses a fiscal difficulty to an individual who would travel approximately 70 miles, round trip, to work each day to earn around $40. Although he indicated that he would accept employment 70 miles, round trip, from his residence in Crystal Springs, he did not find it financially feasible to accept a minimum wage job.
5. There was no stated salary for this position. Mr. Brauner testified that the Mississippi Employment Security Commission average for such a position is $7.83 per hour.
6. Affidavit of Dr. Collipp, p. 2, exhibit G-1.
7. This record, not present as an exhibit to Dr. McGuire's deposition, is dated August 27, 1998.