MWCC NO. 0004217-G-9003

RONNIE W. TURNER                                                                                                                                                                                         CLAIMANT

VS.

CORNERSTONE PROPANE, L.P.                                                                                                                                                                     EMPLOYER
AND
FIDELITY AND GUARANTY INSURANCE COMPANY                                                                                                                                   CARRIER

APPEARING FOR CLAIMANT:
Honorable F. Douglas Montague, III, Attorney at Law, Hattiesburg, MS

APPEARING FOR EMPLOYER AND CARRIER:
Honorable Donald V. Burch, Attorney at Law, Jackson, MS

The Claimant filed a Petition to Controvert on July 26,2000, alleging a work-related injury on March 29, 2000. The Employer and Carrier admitted compensability of the injury, but contested the extent of temporary disability. A hearing was held in this matter on February 6, 2001, at the Simpson County Courthouse in Mendenhall, Mississippi. On or about March 12, 2001, the Claimant's Attorney filed a Motion to Supplement Medical Records. On or about March 13, 2001, the Employer and Carrier's Attorney filed an objection stating that the motion was untimely and inappropriate. Further, to allow same after the record had been closed would be prejudicial to the Employer and Carrier. Since the parties have not raised the issue of permanent disability at this time, I find that the Claimant's request to supplement medical records is granted, but not for purposes of this order on the contested issues referenced below.

1. The existence and extent of temporary disability attributable to the injury.

2. The reasonableness and necessity of the medical treatment of Drs. David Lee, Donald Conerly, Robert McGuire and David McKellar.

A hearing was held in this matter on February 6, 2001, at the Simpson County Courthouse in Mendenhall, Mississippi. The Claimant testified in his own behalf and called his wife, Kerry Turner. as a witness. Additionally, he offered into evidence the following:
 

Claimant's Exhibit 5: Forest General Hospital Emergency Room Records dated April 21, 2000;

Claimant's Exhibit 6: Forest General Hospital Emergency Room Discharge Record dated April 21, 2000;

Claimant's Exhibit 7: Off Work Slip dated May 1, 2000;

Claimant's Exhibit 8: Prescription Forms;

Claimant's Exhibit 9: A letter from Dr. Bernardo dated May 16, 2000;

Claimant's Exhibit 10: Medical records from Dr. Robert McGuire;
 

 
Employer/Carrier Exhibit 1: A wage statement for Ronnie W. Turner;

Employer/Carrier Exhibit 2: Deposition of Dr. Robert Smith;

Employer/Carrier Exhibit 3: Deposition of Dr. David Lee:

Employer/Carrier Exhibit 4: Deposition of Dr. Kerry Bernardo;

Employer/Carrier Exhibit 11: Letter from Susan Wood to Ronnie Turner;

Employer/Carrier Exhibit 12: Letter from Danny Fuller to Ronnie Turner;

Employer/Carrier Exhibit 13: Letter from Danny Fuller to Ronnie Turner;

Employer/Carrier Exhibit 14: Letter from Susan Wood to Ronnie Turner;

Employer/Carrier Exhibit 15: Return To Work Activity sheet

Claimant testified that he had pain and aburning sensation in his back immediately following the March 29, 2000, injury. Claimant said he originally believed he had pulled a muscle in his back. He did not report the injury to his supervisors, because he didn't want to complain. Claimant testified that he began to feel pain in his back the next day, so he reported his injury to Fred Warren, his branch manager. He sought treatment at the EllisvilIe Clinic. He was treated by Donald Scoggins, a licensed nurse practitioner, who took Claimant off work and gave him pain medication. Claimant said he treated with Scoggins for approximately 1-1/2 weeks, returning to be treated by Ms. Baker, another licensed nurse practitioner, who referred him to Dr. Kerry Bernardo.

Claimant testified that he first saw Dr. Bernardo on or about May 1, 2000. Claimant said Dr. Bernardo administered an examination, prescribed muscle relaxants and physical therapy, and released him to return to work on or about May 3, 2000. Claimant testified that he requested an MRI from Dr. Bemardo because he was in too much pain to return to work. However, Dr. Bernardo refused.

Claimant also testified that, between May 1, 2000, and May 16, 2000, he had several conversations with Dr. Bemardo's nurse, which resulted in his ending treatment with Dr. Bernardo. Claimant admitted Dr. Bemardo sent him a letter requesting he find a different doctor and ended the physician relationship with him. Claimant also testified that Dr. Bernardo made no specific referrals to any other physicians.

According to the Claimant, after being told by Dr. Bernardo's office that he would no longer treat him, Claimant sought treatment with his family doctor, Dr. Donald Conerly on or about May 12, 2000. Dr. Conerly ordered an MRI of the thoracic spine. The MRJ performed at the clinic on May 24, 2000, was of the cervical spine.

Claimant testified he injured his right knee in 1999, when he stepped in a hole. While Claimant was seeking treatment for the injury to his back, Claimant testified he was treating with Dr. Richard Conn for his knee injury. Claimant testified that during an appointment for his knee, he requested that Dr. Conn refer him to another doctor to have an MRI on his back. Claimant then related that Dr. Conn referred him to Dr. David Lee, whom he saw five or six times. Claimant also testified he was subsequently referred to other doctors by Dr. Lee. Claimant testified that none of the bills submitted by Dr. Lee or those physicians he saw after Dr. Bernardo were paid by the Employer and Carrier.

Claimant testified that upon being released by Dr. Bernardo, he attempted to return to work. According to the Claimant's testimony, he arrived at work but began to feel dizzy due to his medication. He informed the Employer that he could not stay at work.

Claimant testified he was subjected to continual harassment by Fred Warren, his branch manager. According to the Claimant, Mr. Warren repeatedly abused him through the use of profanity and obscene language. Further, he accused Mr. Warren of making derogatory comments as to the death of a family member approximately three weeks prior to the injury. Claimant testified he was unable to return to work due to the continued harassment he was subjected to by Mr. Warren.

On cross-examination, Claimant denied that, on the day he attempted to retum to work but was too dizzy to continue, he drove his own truck away from the Employer's premises. Claimant also denied he was given a disciplinary write-up by Mr. Warren on the day the alleged injury occurred for refusing to make a service run approximately twelve miles outside of his normal delivery area. Claimant admitted receiving the letters admitted into evidence from Susan Wood and Danny Fuller of Comerstone Propane, advising that the Employer was able to accommodate his work restrictions and requesting his return to work. Claimant said he was in too much pain to return to work. Additionally, the medication made him dizzy and he was subjected to harassment on the job.

Claimant confirmed that he became dissatisfied with Dr. Bernardo and stated he was not given a thorough exam before Dr. Bernardo reached his prognosis. He denied verbally assaulting Dr. Bernardo or his nurse and denied such was the reason for Dr. Bernardo's dismissal of him as a patient.

Claimant's wife, Kerry Turner, was called to testify for the Claimant. Mrs. Turner testified that she and the Claimant had been married 26 years and that her husband primarily worked as a driver and part-time preacher. She corroborated Claimant's testimony that he complains of pain in his back, shoulder and neck. She said the Claimant is unable to assist with household chores and he mostly sits in a chair all day.

Fred Warren was called as the first witness for the Employer and Carrier. Mr. Warren testified that he was the branch manager of the Employer's place of business on March 29, 2000. Mr. Warren further testified that the Claimant made no report of any injury on the date it was alleged to have occurred.

Mr. Warren testified that on the day of his injury, the Claimant complained to the secretary that he did not want to do certain gas calls. One was in his area and the other was a service call for a location 12 miles outside of the Claimant's normal service area. Mr. Warren said he assigned Claimant to make the call because the only other serviceman available would have to drive a longer distance. He testified that the Claimant initially refused to take the call because he wanted to go home. He said the Claimant reported the injury the next day.

Mr. Warren testified that the Claimant asked him to fire him so he could draw unemployment benefits. He testified that when the Claimant was released to light duty work, he was told to answer the telephone only. Mr. Warren said he ran an errand and when he returned the Claimant was leaving. He testified that the Claimant never told him why he was refusing to do the work.

Mr. Warren testified that the Claimant was known as a "complainer" and had complained of back aches and pains for at least a month prior to the date of the alleged injury. However, at no time prior to the alleged injury did the Claimant ever ask for any medical treatment related to these aches and pains. Mr. Warren further testified that he had never used profanity directed towards the Claimant, but on the date of the alleged injury he had instructed a co-worker to bring the Claimant back to the main office to discuss the Claimant's use of profanity in front of the female co-workers. Mr. Warren strenuously denied harassing the Claimant, or making derogatory or profane statements regarding the death of any member of the Claimant's family.

Susan Wood, Risk Manager for Cornerstone Propane, was called as a corporate representative for the Employer. Ms. Wood testified that the Claimant did not return to work after the May 11, 2000, letter (Exhibit 13), and confirmed the letters entered as Employer and Carrier Exhibits 11 and 14 were sent by her to the Claimant advising him of the doctor's release, Cornerstone Propane's ability to accommodate his restriction and requesting that he return to work. Ms. Wood testified that she had no recollection as to whether the Claimant had complained of any harassment at the workplace, but stated if he had she would have referred it in the normal course of business to the Human Relations Department of Cornerstone Propane for investigation. Ms. Wood also testified that she did not tell Claimant that Mr. Warren had previously been warned about the use of profanity in the work place. Ms. Wood denied that she talked to Dr. Bernardo's office and informed them that Fred Warren claimed Mr. Turner was a malingerer. Ms. Wood testified that she felt the tension between Fred Warren the Claimant was solely a personality conflict.

Danny Fuller, Human Relations Director for Cornerstone Propane, was called as the next witness for the Employer and Carrier. Mr. Fuller testified he had been employed by Cornerstone Propane in this capacity for the previous three years. Mr. Fuller stated that the Claimant had told him he was being harassed by Mr. Warren, and could not return to work, but that the Claimant offered no details or specific allegations. Mr. Fuller testified that he investigated Claimant's allegations of harassment by interviewing other office personnel present at the time of the alleged altercations, but every employee he contacted regarding the alleged harassment denied any such occurrence. Mr. Fuller also testified that he wrote letters previously admitted as Employer and Carrier's exhibits, stating he understood Claimant had been released to work by Dr. Bernardo, that cornerstone Propane was able to accommodate his restrictions, and that Claimant was expected to return to work.

Dr. Kerry Bernardo testified that he treated the Claimant on referral from Tamberlyn Baker, the nurse practitioner in Ellisville, Mississippi. Dr. Bernardo testified that he first saw the Claimant on or about May 1, 2000, at which time the Claimant complained of low back pain, upper back pain, neck pain, shoulder pain and right arm pain. Dr. Bernardo testified that according to the history given to him by the Claimant, the Claimant alleged he experienced such pain while he was lifting blocks weighing approximately 70 pounds at the Employer's place of business. Dr. Bernardo stated that, upon physical examination, he noted some mild spasms in Claimant's paraspinous muscles in his neck as well as some spasms in the thoracic paraspinous muscles. Based on these findings, Dr. Bernardo diagnosed Claimant with cervical, thoracic and lumbar sprains/strain or muscle injury. He prescribed a course of physical therapy and Soma, a potent muscle relaxant. Dr. Bernardo also testified that the Claimant was able to return to work at that time in a position such as answering telephones.

Dr. Bernardo testified that on May 8, 2000, the Claimant called to state he had attempted to return to work but had left due to extreme dizziness caused by his medication. To alleviate this dizziness, Dr. Bemardo prescribed Skelaxin, which would not cause dizziness to the Claimant. Dr. Bemardo also testified that on May 9, 2000, the Claimant's wife called his office stating that the Claimant could not work because of the pain pills he was taking. Dr. Bemardo testified that he instructed Claimant's wife that he did not need to take any pain pills. She was told he needed to take his muscle relaxants and do his physical therapy. Dr. Bernardo said his nurse, Renee, called the Claimant and spoke with him on the telephone later that same day. The Claimant was told that Dr. Bemardo saw no reason why he could not go to work to answer the telephone. The Claimant insisted that his pain was so great that he could not sit there and answer the telephone all day. Claimant was then told that Dr. Bemardo would give him a note stating that he was able to walk and change positions. However, Claimant said that was "ridiculous." Dr. Bernardo testified that both the Claimant and his wife thought the Claimant had more problems than he thought the Claimant had. He then told the Claimant that he was free to find another physician, but that he needed an authorization from Claimant to release his records. The Claimant said that was "ridiculous" and that he was going to get a lawyer. Dr. Bernardo said that was the last time he saw the Claimant.

The deposition of Dr. David Lee indicates that he first saw the Claimant on or about August 28, 2000, complaining of pain in his neck, back and both arms. He was referred by Dr. Richard Conn, who was treating the Claimant for an unrelated knee injury. After examining the Claimant and reviewing films previously taken, it was Dr. Lee's impression that the Claimant had significant back and neck pain that couldn't really localize to a specific region at a particular point with the studies that he had. He then obtained EMG nerve conduction studies as well as a thoracic MRI scan. They did not reveal evidence of abnormality aside from some prolonged spasm in his left trapezius muscle. Another MM was done on September 5, 2000. This was a substandard MRI which read out as normal MM. Dr. Lee said this prompted him to obtain an MM scan with a more powerful magnet that would be able to visualize that area in a person as large as the Claimant.

A follow-up MRI was done on September 22, 2000, which revealed multiple small thoracic disk protrusions. Additionally, there was evidence of some flattening of the spinal cord, but no cord signal change at T3-4 and T4-5.Dr. Lee testified that he treated the Claimant for a period of time with medications, therapy and epidural injections. However, he did not respond to any of these modalities. He then referred the Claimant to Dr. Robert McGuire, an orthopedic spine specialist, to see if he had any alternative treatments or other options that he had not exhausted conservatively. He felt surgery should be a last resort.

Dr. Lee opined that based on the amount of pain the Claimant said he was in, it would be very difficult for him to perform any activity requiring any lifting, bending, prolonged standing or sitting. However, Claimant would not be precluded from doing sedentary type work activities, as long as they 'didn't have severe pain from prolonged standing." Additionally, he felt that the Claimant would not be able to perform any repetitive bending or lift objects greater that 15 pounds. It was his opinion that the Claimant's date of maximum medical improvement would have been within six months of his initial complaint of back pain. This would be around August or September of 2000. He did not have an opinion regarding an impairment rating at that time because he wanted the Claimant to see Dr. McGuire.

The deposition of Dr. Robert Smith indicated he reviewed Claimant's medical records and Dr. Lee's deposition for the purposes of rendering an opinion in this matter. Dr. Smith testified that, according to Claimant's prior MRI scan, degenerative changes at the L2-3 levels were detected, however, there were no pinched nerves or spinal cord compression. Based on the records reviewed, Dr. Smith determined no surgery was recommended for the Claimant. Dr. Smith also testified that the injury alleged would not have been consistent with Claimants complaints and the objective findings of the MRI and medical practitioners who had treated the Claimant. Based on these reviews, Dr. Smith also testified that the Claimant was not prevented from seeking gainful employment by virtue of the alleged injury. He would, however, restrict the Claimant's lifting.

Having heard the evidence presented by the parties and having considered same, I base the following findings on a preponderance of the evidence including, medical proof as required by the Act:
 

1. Claimant suffered a compensable injury on or about March 29, 2000.

2. Claimant was temporarily totally disabled from March 29, 2000, until he was released to light duty work by Dr. Bernardo on or about May 1, 2000. He testified that the Claimant was able to retum to work at that time in a position such as answering the telephone. Dr. Bernardo further testified that the Claimant called his office on May 8, 2000, to state that he had attempted to return to work, but had left due to extreme dizziness caused by his medication. To alleviate this dizziness, he prescribed skelaxin which would not cause dizziness. Further, in response to a call from the Claimant's wife on May 9, 2000, stating that he was not able to work because of the pain pills that he was taking for his pain, Dr. Bernardo advised that the Claimant did not need to take any pain pills. He should take his muscle relaxants and do physical therapy. The evidence shows that the Claimant insisted that his pain was so great that he could not sit and answer the telephone all day. However, when the Claimant was told that Dr. Bernardo would give him a note stating that he should be allowed to walk and change positions, the Claimant responded by saying that was "ridiculous."

This Administrative Judge is persuaded by a preponderance of the credible evidence that the Claimant's behavior shows some self-limitation on his part. Further, although the Claimant alleged that he could not be expected to return to ajob in which he was being harassed, the evidence does not show that such harassment occurred or that the level of any personality conflicts that may have existed prevented the Claimant from returning to work.

3. Claimant's average weekly wage on the date of injury was $405.15. This wage was computed using the wage statement admitted into evidence as Exhibit 1.

4. Claimant is temporarily partially disabled from May 2, 2000, until he reaches maximum medical improvement, It was Dr. Lee's opinion that the date of maximum medical improvement would have been within six months of his initial complaint of back pain. However, the existence and extent of permanent disability has not been raised by the parties as a contested issue to be decided herein.

5. Claimant, having suffered a compensable injury, is entitled to reasonable and necessary medical services and supplies, and by law the Employer and Carrier are obligated to provide the Claimant with reasonable and necessary medical services and supplies as the nature of his injury and the process of his recovery may require consistent with Mississippi Code Annotated, Section 71-3-15(1972), as amended and the Medical fee Schedule.

The evidence shows that both the Claimant and his wife thought he had problems greater than those diagnosed by Dr. Bernardo. Exhibit 9, a letter from Dr. Bernardo to the Claimant, provides " I find it necessary to inform you that I am withdrawing from further professional attendance upon you in the interest of patient care. Since your condition requires medical attention I suggest you place yourself under the care of another physician without delay..." The evidence shows that the Claimant went to his family doctor, Dr. Donald Conerly, who ordered an MRJ and referred him to Dr. Singh. Claimant testified that Dr. Singh would not treat him because the Carrier refused to authorize treatment. The evidence shows that the Claimant eventually sought treatment at the hands of Dr. David Lee on a referral from Dr. Richard Conn. Dr. Lee referred the Claimant to Dr. McKellar for injections. Subsequently, Dr. Lee referred the Claimant to Dr. McGuire, an orthopedic spine specialist, to see if he had any alternative treatments or other options that he had not exhausted conservatively. I, therefore, find the medical treatment rendered by Drs. Conerly, Lee, McKellar and McGuire to be reasonable and necessary under the circumstances.

6. Claimant is entitled to penalties and interest on each installment of disability compensation not timely paid, the equivalent of 10% thereof as provided in Mississippi Code Annotated, Section 71-3-37(5)(1972), together with interest at the legal rate of all unpaid installments.

IT IS, THEREFORE, ORDERED AND ADJUDGED that the Employer and Carrier pay and provide compensation benefits to the Claimant as follows:
 

1. Temporary total disability benefits in the amount of $270.11 from March 29, 2000, through May 1, 2000. The Employer and Carrier are entitled to credit for any such payments of disability benefits heretofore made to the Claimant and any wages earned by the Claimant during this period of time.

2. Temporary partial disability benefits in the amount of $132.77 beginning May 2, 2000, and continuing until September 29, 2000. The Employer and Carrier are entitled to proper credit for any such payments heretofore made to the Claimant.

3. Pay for, furnish and provide to the Claimant all reasonable and necessary medical services and supplies as the nature of his injury and the process of his recovery may require consistent with Mississippi Code Annotated, Section 71-3-15 (1972) as amended and the Medical Fee Schedule. This includes the medical services of Dr. David Lee, Dr. David McKellar, Dr. Donald Conerly and Dr. Robert McGuire.

4. Pay the statutory penalties pursuant to the provisions of Miss. Code Ann., Section 71-3-37(5) (1972).

MELBA DIXON
ADMINISTRATIVE JUDGE

ATTEST:
Jo Ann McDonald, Commission Secretary