MWCC NO.00 04217-G-9003-D

RONNIE TURNER                                                                                                                                                                                               CLAIMANT

V.

CORNERSTONE PROPANE d/b/a
SYNERGY GAS OF LAUREL                                                                                                                                                                             EMPLOYER
AND
FIDELITY AND GUARANTY INSURANCE CO.                                                                                                                                                 CARRIER

REPRESENTING CLAIMANT:
F. Douglas Montague, III, Attorney at Law, Hattiesburg, Mississippi

REPRESENTING EMPLOYER AND CARRIER:
Donald V. Burch, Attorney at Law, Jackson, Mississippi
 
 

The Commission heard the above styled and numbered cause on October 15, 2001 in the offices of the Mississippi Workers' Compensation Commission in Jackson, Mississippi on the claimant's "Petition for Review before the Full Commission", the "Cross-Appeal of Employer and Carrier", the claimant's "Second Motion to Supplement Medical Records" and the employer and carrier's "Motion to Strike'.The essential argument on appeal made by the claimant is that the Administrative judge erred when she awarded the claimant temporary partial benefits for a period from May 2, 2000 until September 29, 2000; the claimant contends he was and continues to be temporarily totally disabled. The employer and carrier contend that the Administrative Judge was too generous to the claimant and that the evidence in the record does not support her award of temporary total or partial disability

In addition, the claimant filed a motion to request that the Commission admit into evidence and consider the medical records of Doctors David Lee and David McKellar, which were attached to the Second Motion to Supplement Medical Records which was filed with the Commission, while the employer and carrier moves that the Commission strike this evidence as violative of the Commission's procedural rules.

After a thorough examination of the record on appeal, the Commission acts as follows:
 

1. to deny the claimant's motion;¹

2. to grant the employer and carrier's motion;

3. to reverse the finding of the Administrative Judge on the issue of temporary disability, substituting its finding of fact that the claimant failed to prove entitlement to temporary partial disability benefits. This finding is based exclusively on the weight of the medical testimony in the record and the impact of this testimony on the facts as presented by the claimant, his wife, and other lay witnesses.

The Commission, having reviewed the medical evidence thoroughly, finds that the testimony offered by the medical experts and the fact witnesses, taken as a whole, compels the conclusion that substantial weight of evidence does not support the finding made by the Administrative judge that the claimant is entitled to temporary partial indemnity benefits. In support of this conclusion, the Commission notes that it has considered and relied upon the following facts:

1. The claimant initially chose Donnie Baker, a nurse practitioner in Ellisville, to treat him for his work-related injury which occurred March 29, 2000.

2. The claimant came to be treated by Dr. Kerry~Bernardo on May 1, 2000 as a result of a referral from the chain of treatment commenced by nurse practitioner Baker.

3. The claimant was uncooperative with Dr. Bernardo's treatment as well as dissatisfied with same.

4. There is no dispute that, regardless of how the claimant felt about Dr. Bernardo, the physician treated him on May 1, 2000 in the course of a legitimate referral chain from the claimant's initial choice of medical service providers, and it is undisputed that as of May 1, 2000,, the predominate expert opinion on the claimant's condition is the opinion of Dr. Bernardo.

5. On May 1, 2000, Dr. Bernardo conducted a physical examination which caused him to note that the claimant was experiencing mild spasm in his paraspinous neck muscles as well as spasm in the thoracic paraspinous muscles.

6. As a result of the physical findings noted by Dr. Bernardo on May 1, 2000, he diagnosed cervical, thoracic and lumbar sprains or strains or a muscle injury, prescribed a muscle relaxer, Soma, and a course of physical therapy.

7. As a result of the physical findings noted by Dr. Bernardo on May 1, 2000, as well as his diagnosis based on those findings, he opined that the claimant could return to work in a sedentary capacity.

8. The claimant attempted work on two occasions after May 1, 2000, those being May 8 and 9, but failed to conclude either day due to self-limiting behavior.

9. Thereafter, the employer solicited the claimant on four occasions in writing and on numerous occasions by telephone to return to work in a work position which would be in keeping with Dr. Bernardo's restriction of the claimant to sedentary work.

10. The claimant's relationship with Dr. Bernardo was terminated in May of 2000 due to facts as reflected in the record which indicate a mutual distrust in the physician-patient relationship and which appear to be focused upon the claimant's self-limiting behavior and the physician's inability to treat the claimant as a result.

11. The claimant, who had been treating with Dr. Richard Conn as a result of a unrelated but allegedly work-connected knee injury, sought a referral from Dr. Conn to someone to treat the claimant's complaints which he described as arising out of the March 29, 2000 injury.

12. Dr. Conn referred the claimant to Dr. David Lee, who first saw the claimant on August 29, 2000.

13. Between May 1, 2000 and August 29, 2000, the claimant received no treatment from a physician for the symptoms of his work-related injury.

14. It was Dr. Lee's opinion on August 29, 2000, based on a physical examination performed that day, that the claimant had no organic physical conditions arising from the March 29, 2000 injury except degenerative changes in the spine which were age-related.

15. Dr. Lee's testimony in his deposition dated January 5, 2001 reflects that as of August 29, 2000 the claimant was capable of performing employment, specifically that the claimant could perform sedentary work activities so long as he was not required to stand for long periods of time, which, in the physician's opinion, could be painful to the claimant.²

16. Dr. Lee placed the following restrictions on the claimant's ability to return to work in late September 2000: no lifting over 15 pounds, no repetitive bending; no prolonged standing or sitting.

17. With the assistance of an EMG nerve conduction study and three MRIs, Dr. Lee concluded in late September 2000 that the claimant had multiple small thoracic disk protrusions and some flattening of the spinal cord but noted no impingement and determined that the claimant was not a surgical candidate.

18. Dr. Lee referred the claimant to numerous physicians, including Doctors David McKellar, Donald Connerly and Robert McGuire.³

19. Both the claimant and Dr. Lee admit that neither sought or obtained authorization for treatment from either the employer and carrier or the Commission.

20. Doctors McKellar, Connerly and McGuire all conclude that the claimant's problem is one of pain management, Dr. McGuire noting in his evaluation that he did not doubt the claimant's complaints and that the degenerative changes present were consistent with the claimant's symptoms, but the predominant problem of axial pain does not warrant surgical intervention.⁴

21. The claimant's medical records and Dr. Lee's deposition were reviewed by Dr. Robert Smith, who evaluated the claimant's condition on behalf of the employer and carrier for purposes of a General Rule 9 examination.

22. Dr. Smith did not perform a physical examination on the claimant nor come into physical contact with the claimant, performing an evaluation based exclusively on records and the transcribed testimony of Dr. Lee which was given on January 5, 2001.

23. Dr. Smith reviewed the medical records, the deposition testimony of Dr. Lee and the EMG nerve conduction study and thoracic MRI scan ordered by Dr. Lee and performed in August of 2000, a second MRI also ordered by Dr. Lee and performed on September 5, 2000⁵, and a third MRI performed on September 22, 2000.

24. Dr. Smith detected degenerative changes at the L2-3 levels but no cord compression, suggested that the claimant was not a candidate for surgical intervention, and that he was not prevented from performing gainful employment as a result of the injury, although lifting should be limited.

25. Dr. Smith also offered the opinion that the injury described by the claimant to nurse practitioners and physicians who treated him was inconsistent with the claimant's complaints, the results of the MRIs and the objective physical findings noted by the medical service providers to the date of Dr. Smith's opinion.

26. There is a dearth of evidence to support the claimant's claims of harassment on the job such that to return to work for the employer would be unpalatable.

27. There has been work available to the claimant from the employer which would be consistent with the restrictions placed on the claimant by Dr. Lee in late September 2000.

The claimant in a workers' compensation case has a threshold burden. He must show an accidental injury arising Out of and in the course of employment and a causal connection between the injury and the claimed disability. In the present case, the claimant has met this threshold burden. However, the claimant has a further burden. He must demonstrate his entitlement to indemnity benefits which result from his disability. This is the precise issue that the employer and carrier raised when they admitted the claimant's injury of March 29, 2000 but denied the extent of temporary disability and the reasonableness and necessity of medical treatment from physicians commencing with Dr. David Lee and his referral chain. In the opinion of the Commission, the claimant has not effectively demonstrated that he is entitled to indemnity benefits for the period subsequent to May 1, 2000. The Commission reached this conclusion primarily based on the expert medical testimony -- offered in this case, together with the testimony of lay witnesses.

The Commission is well aware that the Act is to be given liberal construction and that doubtful cases should be resolved in favorof compensation.⁶However, the Commission is called upon to apply "common knowledge, common experience and common sense" when weighing the evidence.⁷ The adherence to a liberal construction of the Act does not avoid the requirement for the claimant to proffer proof prerequisite to recovery. Several factors have been considered by the Commission and given weight in its determination. Many of these factors are provided by the uncontradicted testimony of the claimant and the long train of medical service providers solicited by the claimant, as noted on pages 3-6 of this opinion. The following conclusions are noteworthy: (1) The claimant admitted and articulated during his testimony self-limiting behavior. (2) The claimant did not seek and receive treatment for his March 29, 2000 injury from May 1, 2000 until August 29, 2000. (3) The claimant's complaints to his various medical service providers are inconsistent — including low back pain, upper neck pain, neck pain and shoulder pain. (4) There is no medical evidence which reflects that the injury resulted in particular organic findings; the medical consensus is that physical factors revealed by the MRIs requested by Dr. Lee demonstrate degenerative age-related conditions and not a condition which would necessarily result from a lifting injury, although in the opinion of several physicians treating the claimant, these degenerative changes are consistentwith the complaints of pain articulated by the claimant. (5) The claimant made only a minimal effort to return to work after he was released to sedentary duty by Dr. Bernardo. (6) Dr. Lee's testimony (up and until June 18, 2007)8confirms Dr. Bernardo's opinion that the claimant could perform sedentary work. (7) The employer, in requesting the claimant to return to work in writing on four occasions after May 1, 2000 and by telephone on several other occasions, has gone far beyond its legal obligation to return the claimant to work.

The claimant argues that, based upon Cooper Lighting HID v. Brisco, 749 So. 2d 199 (Miss. App. 1999) the claimant should not be expected to perform a job which he, as a truck driver, knows would not be permanent in nature. The Commission disagrees. Although the Court of Appeals is accurate in its holding in Cooper Lighting that the fact that the employer offers accommodation to the claimant to return to work does not, in and of itself, refute a claimant's claim of disability based on post injury loss of wage earning capacity, and although the claimant accurately addressed this holding in oral argument and brief, it is inapposite here. In this case, the claimant was released to sedentary duty and, according to the claimant's undisputed testimony, on that date required more treatment. Thus, the question is not whether the claimant has demonstrated a loss of wage earning capacity in a permanent sense, but whether the claimant can be afforded work that he can perform based on restrictions and limitations established by his treating physician in lieu of indemnity benefits. In this case, there is no question that the claimant could have performed sedentary work, that the work was available with the claimant's employer, that the employer solicited the claimant for this work on numerous occasions, that there were no overweening issues of harassment which would prevent the claimant from being an effective employee after May 1, 2000, and that the claimant made little or no effort to perform sedentary work for this or any other employer.

Based on the foregoing, the Commission finds that the claimant has failed to prove to a reasonable degree of medical probability or by the weight of uncontradicted lay proof that he is entitled to temporary disability to the extent awarded by the Administrative Judge.

Moreover, the Commission finds that the Administrative Judge erred when she ordered the employer and carrier to pay for the medical services and supplies provided to the claimant by Doctors Lee, McKelIar, Connerly and McGuire. Mississippi Code Annotated § 71-3-15 (1972) (as amended) and General Rule 9 allow the injured employee to select one competent physician of his choosing and such other specialists to whom he is referred by his chosen physician. The claimant has argued that this issue cannot be considered by the Commission because it was not specifically raised in the "Cross Appeal of Employer and Carrier". The claimant is accurate. Not only does the employer and carrier not raise this issue, but the employer and carrier specifically suggest by brief and argument that, except for the award of temporary partial disability, other aspects of the Administrative Judge's order should be affirmed. It should be noted, however, for the future, that the Commission intends to enforce the statute and its own promulgated rules and, based on Mississippi Code Annotated, § 71-3- 47 (1972) (as amended), has the authority as the ultimate fact-finder to do so.

It is, therefore, ORDERED, that the findings of the Commission be substituted for those of the Administrative Judge, and that her order be amended to exclude paragraph 2 found on page 12 of the Order of the Administrative Judge in this cause dated June 12, 2001.

SO ORDERED, this the 30th day of October, 2001.

MISSISSIPPI WORKERS' COMPENSATION COMMISSION
BY:  BARNEY SCHOBY
LYDIA QUARLES
COMMISSIONERS

ATTEST:
Jo Ann McDonald, Secretary
 
 

1 The Commission is troubled by the fact that the documents attached to the medical records affidavits which the claimant seeks to introduce through the vehicle of Procedural Rule 9 are not "medical records" as such but appear to be letters solicited in response to correspondence from claimant's counsel. Although not making a finding or establishing policy on whether or not correspondence from physicians included in medical records affidavits fall within the purview of Procedural Rule 9, the Commission notes that in this case the physicians' comments appear to be solicited by the claimant in a self-seeking manner. Thus, the claimant's motion is denied. However, as this case will not end with the issuance of this order, the motion may be renewed at some future date upon additional evidence, and particularly expert medical testimony, which would convince the Administrative Judge or the Commission that the correspondence accurately reflects the opinions of the physicians at the time of the correspondence that these opinions are supported by objective facts and findings evidenced in the physicians' medical records.

2 Deposition of Dr. David Lee, p. 18, lines 5-16.

3 Medical records attached to the claimant's Second Motion to Supplement Medical Records reflect that there is also a referral to Dr. Jeffrey Summers which arose out of the treatment commenced by Dr. Lee.

4 See exhibit CL-b.

5 This MRI was deemed by Dr. Lee to be "substandard" due to the claimant's girth.

6 Id. at § 32.

7 Hill v. United Timber & Lumber Co.,68 So. 2d 420 (Miss. 1953).

8 This is reflected by the attachment to claimant's Second Motion to Supplement Medical Records, which is not in evidence at this time.