MWCC NO. 99-03378-G-5104
CHRIS S. PHILLIPS CLAIMANT
vs.
GRAND CASINO-TUNICA
EMPLOYER
AND
THE INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA
CARRIER
APPEARING FOR CLAIMANT:
Honorable M. Lee Graves, Attorney at Law, Clarksdale,
Mississippi
APPEARING FOR DEFENDANTS:
Honorable Wesla S. Leech, Attorney at Law, Mendenhall,
Mississippi
The Commission heard the above styled cause on November 20, 2000 in the offices of the Mississippi Workers' Compensation Commission in Jackson, Mississippi on Claimant's "Petition for Review".
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 of the Administrative Judge" dated July 31, 2000.
SO ORDERED, this the 27th day of November, 2000.
MISSISSIPPI WORKERS' COMPENSATION COMMISSION
BY: BARRETT SMITH
BARNEY SCHOBY
COMMISSIONERS
ATTEST:
Joann McDonald, Secretary
___________________________
CHRIS S. PHILLIPS CLAIMANT
vs.
GRAND CASINO-TUNICA EMPLOYER
THE INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA CARRIER
REPRESENTING THE CLAIMANT:
M. Lee Graves, Esquire, Clarksdale, Mississippi 38614-0865
REPRESENTING THE DEFENDANT:
Virginia Gautier, Esquire, Jackson, Mississippi 39205-0427
Chris S. Phillips contends that he experienced a work-related injury
to his back while employed by Grand Casino Tunica (Grand). Because the
Employer/Carrier denied compensability, a hearing was held at the Coahoma
County Courthouse in Clarksdale, Mississippi, on March 29, 2000. Considering
all of the evidence, the Administrative Judge finds that Mr. Phillips sustained
a compensable injury and is entitled to temporary, but not permanent, benefits.
At the hearing the parties stipulated to these facts:
1 . The Claimant worked for the Grand in September 1998;
2. The Claimant's average weekly wage in September 1998 was $262.88; and,
3. The Employer/Carrier did not pay the Claimant any benefits.
The parties identified these issues:
1. Whether the Claimant sustained a work-related injury on or about the date alleged in the Petition to Controvert;
2. The existence and extent of temporary disability attributable to the injury;
3. The existence and extent of permanent disability attributable to the injury;
4. The related issue of the existence and extent of loss of wage-earning capacity;
5. Whether the Claimant made reasonable efforts to find employment; and,
6. The date of maximum medical improvement.
1. Chris S. Phillips's Testimony
According to his testimony at the hearing, Chris S. Phillips is thirty-two years old and graduated from high school in Sacramento, California. After high school he worked for a year as a room service waiter at the Lake Tahoe Hyatt Regency Hotel.
Mr. Phillips returned to school for two years at Sacramento City College. After college he worked as a waiter, bellhop, concierge manager, banquet bar manager, conference center manager, and food service manager at the Radisson Hotel in Sacramento.
Leaving California for Mississippi, Mr. Phillips tended bar at the Village Sports Club in Biloxi for eight months. When the Grand opened in June 1996, he went to work there as a bartender.
In September 1998 Mr. Phillips worked in the Delta Blues Service Bar at the Grand. One morning about 9:00 he picked up a tub of ice and felt something pull in his lower back. Mr. Phillips completed his shift and returned to work the next day.
During a smoke break on the day after the accident, Mr. Phillips told his supervisor, Rita Varble, about his back injury. Ms. Varble asked him about filling out the paperwork to report the accident, but he replied that there was no need to do so. Mr. Phillips continued working.
Mr. Phillips's back was "weak" for about a week. He told his wife about the injury, and she applied a heating pad. At first Mr. Phillips was not in much pain, but as time passed the pain grew more intense. The pain also spread from his back to his leg, and his leg became numb. These physical conditions made it "difficult" for Mr. Phillips to work an eight hour day or to move very quickly. During this period, Mr. Phillips told Ms. Varble about his back several times, and she switched him to less busy bars. In Mr. Phillips's works Ms. Varble was to very accommodating" in making those arrangements.
Mr. Phillips's pain continued to intensify, so he saw Dr. Nash, who did not perform any tests but took Mr. Phillips off work for four days.1 Later in the third week of February 1999, Mr. Phillips told Ms. Varble that he needed to leave work to see a doctor. He then saw Dr. Rutherford and a few days later Dr. Jackson at the same clinic. Dr. Rutherford obtained an MRI and found a ruptured disc. Mr. Phillips was referred to Dr. Craig Clark who recommended surgery.
Mr. Phillips then notified his supervisor, Ms. Varble, and the beverage manager, Cindy Hart, about his impending surgery. Because he would be off work for several months after the operation, Mr. Phillips quit his job at the Grand.2
On March 16, 1999, Dr. Clark operated on Mr. Phillips's back. Dr. Clark sent Mr. Phillips home after a couple of days and advised him to stay in bed for four or five weeks.
In the meantime, Mr. Phillips became depressed because he was not able to work, did not feel well, and had not received any benefits from the Employer/Carrier. The depression began a week or two before his back surgery and then grew worse in June 1999 when he had a kidney stone removed and a hernia operation.
In May 1999 Mr. Phillips was treated at Charter Hospital for depression. The depression continued into 2000 because Mr. Phillips was not "able to provide for my family" and because of his medical problems.
In January 2000 Mr. Phillips began searching for a job. He contacted Harrah's Casino, reported his back injury, and was not offered a job. During the third week in February 2000, he attended a job fair for Fitzgerald's Casino, mentioned his back injury, and was not hired.
The week before the hearing, the Grand notified Mr. Phillips of a possible job. Although he had enjoyed working at the Grand, Mr. Phillips was concerned that he would be harassed if he returned to his former employer and that he would not be able to stand for eight hours a day.
At the time of the hearing, Mr. Phillips's back condition continued to limit his physical activities. Before the injury he had been a dedicated golfer, but he cannot play now. He avoids sudden moves, and it is difficult for him to stand for eight hours. He is not able to lift as much now as he could before the injury, and when he does lift, his back becomes stiff. These physical limitations directly affect his ability to work as a bartender because a bartender is always on his feet, constantly moving his hands, lifting, walking, bending, and twisting.
On cross-examination, Mr. Phillip admitted that no one had witnessed his injury and that he could not remember the date of the accident. He finished his shift without informing anyone of the injury. He never asked anyone at the Grand to send him to a doctor for his back.
Between the time of the injury in September 1998 and the end of February 1999, Mr. Phillips missed work because of his back on only February 18-21. By then, the pain had grown more severe causing him to see a doctor.
Mr. Phillips had a normal marriage with the normal ups and downs. His relationship with a female employee at the Grand had caused a problem in his marriage, but that situation had been resolved.
After his surgery Mr. Phillips did not attempt to return to the Grand. In fact, he did not respond to the recent letter from the Grand about a possible job. Mr. Phillips did not recall saying in his 1999 deposition that he was tired of working in the Blues Bar. He did not desire to return after his back surgery.
Concerning his job search, Mr. Phillips posted his resume on the Internet but did not contact an employment service. He read the employment ads in The Commercial Appeal every day because he lived about ten minutes from Memphis, and that is how he learned about the potential jobs at Harrah's and Fitzgerald's.
On rebuttal, Mr. Phillips stated that his wife had never kicked him in the back.
2. Dr. Craig Clark's Testimony
Dr. Craig Clark, a neurosurgeon, testified by deposition. He first saw Mr. Phillips on March 10, 1999, on a referral from Dr. Nash. At that time Mr. Phillips reported that he had hurt his back lifting a bucket of ice. Then the pain had disappeared, so he had not reported the injury to his employer; however, in February 1999 the pain had returned.
An MRI showed a large disc rupture at L5-S1 on the left and a nerve root compression at S1. On March 16, 1999, Dr. Craig performed a partial hemilaminectomy with microdiskectormy at the L5-S-1 level. When Mr. Phillips attained maximum medical improvement on May 17, 1999, Dr. Clark assigned him a permanent partial impairment rating of ten percent to the body as a whole, but with no work restrictions.
Concerning the cause of Mr. Phillip's condition, Dr. Clark opined, "Presuming the accuracy of the history and information provided by Mr. Phillips, I would say that to a reasonable degree of medical certainty the incident as described [i.e., lifting the bucket of ice] would be consistent with being able to be causative of a ruptured disc."3 On cross-examination Dr. Clark stated that he had not placed any work restrictions on Mr. Phillips. Dr Clark also testified that many people were able to work for several months after rupturing a disc. Dr. Clark added that another event --- other than lifting a tub of ice --- could have caused Mr. Phillips's injury.
3. Dr. Joel A. Reisman's Testimony
Dr. Joel A. Reisman, a psychiatrist, testified by affidavit. At the request of the Employer/Carrier, he performed an evaluation of Mr. Phillips. Dr. Reisman reviewed Mr. Phillips's medical records, interviewed him twice, and administered a psychometric test. Dr. Reisman diagnosed Mr. Phillips's condition as "Major Depression, in remission," but opined that "any Depression Mr. Phillips may have suffered, is not related to his back injury."4
4. Leslie Phillips's Testimony
According to her testimony at the hearing, Leslie Phillips, Chris Phillips's wife, worked as a cocktail server at the Grand in September 1998. One day that month Mr. Phillips told her that he had pulled his back at work. The next day she heard Mr. Philips tell their supervisor, Rita Varble, that he had hurt his back. Ms. Varble asked Mr. Phillips about officially reporting the accident, but Mr. Phillips replied that was not necessary.
Over time, however, Mr. Phillips's back condition worsened. In response, Ms. Varble moved around bartenders to accommodate Mr. Phillips's need for less strenuous work. In fact, in Mrs. Phillips's words, Ms. Varble "went out of her way" to accommodate Mr. Phillips.
In January and February 1999 Mr. Phillips's back grew more and more painful until Mrs. Phillips told Ms. Varble that Mr. Phillips needed to leave work to see a doctor. Mrs. Phillips then went with Mr. Phillips to the doctor who referred Mr. Phillips to Dr. Clark.
After the surgery Mr. Phillips experienced a great deal of pain, which made him irritable. His irritability was aggravated by his kidney stone, hernia operation, and depression. The pain and the lack of compensation benefits produced marital stress.
Now Mr. Phillips is not as active as he was before the injury. He cannot stand or walk for long periods, cannot lift much, and cannot make quick movements.
On cross-examination, Mrs. Phillips stated that she had suspected Mr. Phillips of having an affair with a co-worker; that she had left the Grand in May or June 1999; and, that she had started work at Harrah's three months ago.
On rebuttal Mrs. Phillips denied telling Jimmy Dale Reeves that she had kicked her husband in the back; she reiterated that Ms. Varble had on three or four occasions switched bartenders to accommodate Mr. Phillips's physical condition; and, she stated that she had never kicked her husband in the back.
5. Jimmy Dale Reeves Testimony
Jimmy Dale Reeves was employed as a barback (a bartender's assistant), at the Grand from October 6, 1997, until May or June 1999. During that time he worked with both Mr. and Mrs. Phillips, and Rita Varble was also his supervisor.
Mr. Phillips never told Mr. Reeves that he had injured his back at work. Instead, Mrs. Phillips told Mr. Reeves that she had kicked Mr. Phillips in the back because he had been unfaithful.
On cross-examination Mr. Reeves testified he voluntarily left the Grand when his friends and supervisors (the beverage manager and the assistant beverage manager), were fired. Mr. Reeves did not know why the Grand had fired those managers, but he denied that he had sold drugs at the Grand.
6. Rita Varble's Testimony
Rita Varble directly supervised Mr. and Mrs. Phillips at the Grand. In September 1998 Mr. Phillips reported to Ms. Varble that he might have hurt his back two or three weeks earlier. He did not indicate that he needed to take off work because of the injury.
In March 1999 Mr. Phillips told Ms. Varble that he needed to go home because his back hurt, but he did not mention a work-related injury. She allowed Mr. Phillips to go home. This was the first time since September 1998 that Ms. Varble had noticed any change in Mr. Phillips's work habits.
When Mr. Phillips returned, he gave Ms. Varble Dr. Nash's note excusing Mr. Phillips from work and restricting his lifting to fifteen pounds. Mr. Phillips, however, did not say that his back injury was work-related and did not mention workers' compensation. Ms. Varble also stated that bartenders do not lift more than fifteen pounds.
On cross-examination Ms. Varble admitted that she did not file a report when Mr. Phillips told her that he had hurt his back. Ms. Varble did not recall switching bartenders to accommodate Mr. Phillips's back.
7. Tammy Billion's Testimony
Tammy Billions, the workers' compensation and benefits manager for the Grand, first learned of Mr. Phillips's alleged back injury when she received the Petition to Controvert on March 12, 1999. Before that date, Mr. Phillips had never requested workers' compensation benefits or submitted any medical bills for payment under workers' compensation.
Mr. Phillips never requested leave for his surgery. Instead, he quit on March 5, 1999. Later the Grand offered Mr. Phillips a job with the same pay and benefits, but he never responded.
On cross-examination, Ms. Billions testified that
the supervisor is supposed to complete a report when an employee claims
that he was injured. In the case, however, Mr. Phillips's supervisor, Ms.
Varble, did not file a report.
Upon consideration of the pleadings, pre-trial statements, stipulations, lay and medical evidence, demeanor of the witnesses at the hearings, and applicable law, the Administrative Judge finds these facts:
1. The Claimant, Chris S. Phillips, worked for the Grand in September 1998, as stipulated by the parties.
2. Mr. Phillips's average weekly wage in September 1998 was $262.88, as stipulated by the parties.
3. In September 1998 Mr. Phillips lifted a tub of ice at work and injured his back. He notified his supervisor, Rita Varble, but no official report was filed.
4. As time passed, the pain in Mr. Phillips's back grew more intense. Ms. Varble accommodated Mr. Phillips's back condition by occasionally moving him to less busy bars.
5. On February 18, 1999, Mr. Phillips saw Dr. Zev-David Nash who excused Mr. Phillips from work until February 22, 1999, and restricted him to lifting no more than fifteen pounds until March 15, 1999. Those four days in February were the first days Mr. Phillips missed from work because of his back.
6. Later Mr. Phillips was referred to Dr. Craig Clark, a neurosurgeon, who first saw Mr. Phillips on March 10, 1999. After an MRI revealed a large disc rupture at L5-S1, Dr. Craig on March 16, 1999, performed a partial hemilaminectomy and microdiscectomy at the L5-S1 level. Mr. Phillips attained maximum medical improvement on May 17, 1999, and Dr. Clark gave him a permanent partial impairment rating of ten percent to the body as a whole but imposed no work restrictions.
7. Mr. Phillips did not request leave for the surgery but quit his job on March 5, 1999.
8. Mr. Phillips suffered from depression during this period, but his depression was not related to his back injury.
9. From September 1998 until March 12, 1999 (when Tammy Billions, the workers' compensation and benefits manager for the Grand, received the Petition to Controvert), Mr. Phillips did not request workers' compensation benefits or submit any medical bills for payment under workers' compensation.
10. In January and February 2000 Mr. Phillips contacted Harrah's Casino and Fitzgerald's Casino about prospective jobs, told them about his back, and was not hired. Except for posting his resume on the Internet, he made no other attempt to find a job. The Grand offered Mr. Phillips a job with the same pay and benefits, but he did not want to work there again.
11. The Grand did not pay Mr. Phillips any benefits, as stipulated by the parties.
12. At the time of the hearing Mr. Phillips was
thirty-two years old and had completed two years of college. Mr. Phillips
had spent most of his working life as a bartender, waiter, a bellhop, and
as a manager for conceige, banquet bar, conference center, and food service
operations.
Mr. Phillips has the burden of proving by a preponderance of the credible evidence that he sustained an injury arising out of and in the course of his employment by the Grand and that there is a causal connection between the injury and his asserted disability. He also has the burden of proving that his asserted disability caused him to experience a loss of wage-earning capacity, and he must prove the amount of that loss.
In the present case Mr. Phillips's burden of proof boils down to two questions: (1) Did Mr. Phillips's work-related back injury in September 1998 cause the ruptured disc that was present in March 1999? (2) If so, did Mr. Phillips make a reasonable effort to find employment such that his unsuccessful job search is a reliable indication that he suffered a loss of wage-earning capacity to be used in determining any permanent disability?
As to the first issue, the Employer/Carrier argues that the work-related injury in September 1998 is too remote in time to have caused the ruptured disc. After all, Mr. Phillips did not miss any work because of his back until February 18, 1999. The Employer/Carrier asserts, instead, that Mrs. Phillips caused the ruptured disc by kicking the Claimant in the back.
The Claimant's neurosurgeon, Dr. Clark, opined, however, that the Claimant's lifting ice in September 1998 could have caused the ruptured disc that the neurosurgeon observed some seven months later in March 1999. Indeed, Dr. Clark testified that many people are able to work for several months after rupturing a disc.
Although this issue may be a close question, the Administrative Judge, based on all of the relevant evidence, finds that Mr. Phillips's work-related back injury in September 1998 is causally connected to the Claimant's ruptured disc and his resulting disability.
Accordingly, the Administrative Judge finds that Mr. Phillips is entitled to temporary disability benefits as follows:
1 . Temporary Partial Disability Benefits
Ordinarily, from the time Mr. Phillips injured his back in September 1998 until he quit on March 5, 1999, he would be entitled to temporary partial disability benefits for any week in which he actually earned less than his preinjury average weekly wage of $262.88. According to the Wage Statement, Employer/Carrier's Exhibit 2, Mr. Phillips earned less than that amount in the weeks ending September 20, September 27, December 7, and December 14, 1998; and, January 24, January 3 1, February 7, February 14, February 21, February 28, and March 7, 1999; however, Mr. Phillips testified that he did not miss any work because of his back until February 18, 1999.
Mr. Phillips, therefore, is entitled to temporary partial disability payments for the weeks ending February 21, February 28, and March 7, 1999. For each such week he is entitled to "two-thirds of the difference between his pre-injury weekly wage and his earnings for that week." Hendershot v. Weiser Security Systems, Inc., MWCC No. 97-08017-G-0280, 1999 WIL 377899, at 3 (May 25, 1999).
Accordingly, Mr. Phillips is entitled to temporary partial disability payments of $81.33 for the week ending February 21, 1999; $81.33 for the week ending February 28, 1999; and, $39.92 for the week ending March 7, 1999.
2. Temporary Total Disability Benefits
From March 6, 1999, until May 17, 1999, when Mr. Phillips attained maximum medical improvement, he is entitled to temporary total disability benefits of $175.25 a week.
Turning now to the issue of the Claimant's job search, the Employer/Carrier points out that Mr. Phillips contacted only two prospective employers and refused a job offer from the Grand. For those reasons the Employer/Carrier contends that Mr. Phillips did not make a reasonable effort to find a job.
It is apparent that Mr. Phillips is a young man with a steady job history in the hotel and restaurant business, a good portion of which was spent in management. He also completed two years of college.
He resides in a part of the state with vibrant growth in the hotel and restaurant sector of the economy. In addition, Mr. Phillips testified that he lives ten minutes from Memphis, an urban center that also has a growing service industry.
The Administrative Judge finds that Mr. Phillips did not make a reasonable effort to find employment. His unsuccessful job search, therefore, is not persuasive evidence of a loss of wage-earning capacity, and the medical impairment of ten percent to the body as a whole, standing alone, is not sufficient to justify a finding that Mr. Phillips has a permanent "disability," as that term is defined in Miss. Code Ann. Section 71-3-3. (i)
Based on all of the relevant evidence, the Administrative Judge finds that Mr. Phillips did not meet his burden of proving that he sustained a permanent disability for purposes of workers' compensation benefits.
One more matter merits discussion. The Claimant did not file any medical bills from Baptist Memorial Hospital until May 5, 2000, more than a month after the hearing. The Employer/Carrier objects to the admission of the bills because:
1 . The Claimant did not provide a copy of the bills to the Employer/Carrier thirty days prior to the hearing;
2. No medical records affidavit was attached to the bills;
3. The Employer/Carrier did not have the opportunity to investigate the bills; and,
4. The Employer/Carrier did not have the opportunity to depose "the newly identified physicians reflected in these bills."
The Administrative Judge finds that the inaction
of Baptist Memorial Hospital, not the Claimant, caused this delay. To prevent
further delay and to fulfill the beneficial purposes of the Workers' Compensation
Act, the Administrative Judge admits into evidence only the Baptist Memorial
Hospital bills relating to Dr. W. Craig Clark's treatment of Mr. Phillips
from March 16, 1999, through March 18, 1999, and the Employer/Carrier is
ordered to pay those bills. All other Baptist Memorial Hospital bills are
excluded because there is no evidence linking them to Mr. Phillips's back
injury in September 1998.
IT IS, THEREFORE, ORDERED AND ADJUDGED that the Employer/Carrier shall pay workers' compensation benefits to the Claimant as follows:
1. Temporary partial disability payments of $81.33 for the week ending February 21, 1999; $81.33 for the week ending February 28, 1999; and, $39.92 for the week ending March 7, 1999.
2. Temporary total disability payments in the amount of $175.25 a week, from March 6, 1999, through May 17, 1999;
3. Penalties and interest on any due and unpaid compensation benefits; and,
4. Provide reasonable and necessary medical services and supplies as required by the nature of the Claimant's injury and the process of his recovery therefrom, pursuant to Miss. Code Ann. Section 71-3-15 (1990), as amended, and the Medical Fee Schedule.
SO ORDERED this the 31st day of July, 2000.
MARK HENRY
ADMINISTRATIVE JUDGE
ATTEST:
Joann McDonald, Secretary
___________________________
1. According to Employer/Carrier's Exhibit 4, Dr. Zev-David Nash saw Mr. Phillips on February 18, 1999, and allowed him to return to work on February 22, 1999, with no lifting above fifteen pounds until March 15, 1999. Mr. Phillips testified during cross-examination that the Grand accommodated him with light duty when he resumed working on February 22, 1999.
2. Mr. Phillips's letter of resignation was dated March 5, 1999. Employer/Carrier's Exhibit 3.
3. Claimant's Exhibit 1, Deposition of Winston Craig Clark, M. D., pp. 5-6.
4. Both quotations are from Employer/Carrier's Exhibit 5, p. 6.