This Administrative Judge finds that the claimant Gary Graham has had a change in condition, a worsening of his medical condition, and that there has been a mistake in a determination of fact such as to warrant reopening of his case pursuant to Mississippi Code Annotated §71-3-53 (1990). At the time of the last hearing in April 1998, Mr. Graham had been relatively asymptomatic for more than two years and able to enjoy his work at his father's farm. The medical testimony at the prior hearing indicated that Mr. Graham's continuing problems were not related to his November 1994 work injury.

The testimony of Dr. Keith Williams, contained in his February 9, 2000, deposition, is new and significant evidence about Mr. Graham's medical condition. It is different evidence from what this Administrative Judge saw at the April 1998 hearing and incorporates a greater period of time by more than two years. Dr. Williams has offered an opinion that Mr. Graham needs a back fusion and that his symptoms have continued to worsen in the more than four years since the prior back surgery performed by Dr. Kaplan. Dr. Williams saw Mr. Graham two times in 1999 and had the benefit of an MRI taken in December 1998. Dr. Williams specifically related the worsened symptoms to the 1994 work injury and resulting surgery.

The Employer/Carrier argues several reasons why Mr. Graham's claim should not have been reopened and additional medical benefits awarded to him. We find one reason dispositive.

As previously mentioned, the parties agreed the issue before the Administrative Judge was whether Mr. Graham's claim should be reopened under Miss. Code Ann. §71-3-53 (Rev. 2000) and additional medical benefits awarded to him. More specifically, the issue is whether Mr. Graham has undergone a sufficient change in condition since the Administrative Judge issued her Order July 13, 1998, and whether this Order contains a mistake in determination of fact regarding causal connection.

The Administrative Judge found that Mr. Graham's condition has significantly worsened since the hearing and order in 1998, thus satisfying the change in condition requirement of §71-3-53. The Judge also found the deposition testimony of Dr. Keith Williams supported a causal connection between Mr. Graham's work related injury in 1994 and his current problems, thus establishing that the July 13, 1998 Order mistakenly found Mr. Graham's ongoing problems not to be work related.

Our review of the testimony of Dr. Williams is, however, quite different. Dr. Williamstestified that Mr. Graham's condition in 1999 was basically the same as it was in 1997 when he returned to Dr. Kaplan, only that his symptoms have worsened somewhat. Dr. Williams also testified that Mr. Graham's current problems were due to spondylolysis and/or spondylolisthesis, and not to any recurring problems with the ruptured disc which was surgically repaired by Dr. Kaplan in 1995. Dr. Kaplan previously testified likewise. Moreover, Dr. Kaplan previously testified that the spondylolysis and spondylolisthesis were neither caused, contributed to or aggravated by Mr. Graham's, work injury, a fact not disputed by Dr. Williams who testified that he could not say what caused these two conditions.

Consequently, both Dr. Kaplan and Dr. Williams agree that while Mr. Graham has gradually become more symptomatic over the years, though not markedly so, his symptoms relate to two underlying conditions which themselves are not related to his 1994 industrial injury. The fact that Mr. Graham's symptoms now are very similar to the symptoms he displayed since 1994, only worse, is as irrelevant and it is unfortunate. The more legally significant fact is that the overwhelming weight of the medical evidence suggests that Mr. Graham continues to suffer from underlying conditions which are themselves unrelated to his original work injury. Thus, even if Mr. Graham has suffered a change in condition, that change is not the result of any work related injury and is therefore not compensable.

Also, the Administrative Judge found in 1998 that there was a lack of sufficient evidence to prove any causal connection between the problems Mr. Graham returned to Dr. Kaplan for in 1997 and his work related injury in 1994. The additional testimony of Dr. Williams, and the additional medical records offered by Mr. Graham, has not, in our opinion, rendered this finding suspect or mistaken. The evidence still fails to support a sufficient connection between the original injury in 1994 and Mr. Graham's current problems.

We therefore reverse and set aside the Order of Administrative Judge dated November 6, 2000. Mr. Graham's request to reopen his claim and obtain additional medical treatment at the expense of the Employer/Carrier is denied and dismissed accordingly.

SO ORDERED this the 25th day of June, 2001.

MISSISSIPPI WORKERS' COMPENSATION COMMISSION
BARRETT SMITH
BARNEY SCHOBY
LYDIA QUARLES

ATTEST:
Jo Ann McDonald, Secretary
___________________________
 

MWCC NO. 94-21196-F-9546-A
 

GARRY R. GRAHAM   vs.  HAGER HINGE COMPANY   AND  EMPLOYERS INSURANCE OF WAUSAU, A MUTUAL COMPANY

CLAIMANT     EMPLOYER CARRIER

 
APPEARING FOR THE CLAIMANT:
Michael H. Steele, Esquire, Kosciusko, Mississippi

APPEARING FOR THE EMPLOYER AND CARRIER:
H. Byron Carter, III, Esquire, Jackson, Mississippi
 

This matter came on for hearing on the claimant's request to reopen the case. The hearing was held in Hearing Room A of the Mississippi Workers' Compensation Commission's Building in. Jackson, Mississippi, on October 23, 2000.
 

The parties stipulated that all disability benefits have been paid pursuant to the prior order of this Administrative Judge dated July 13, 1998.
 

On March 19, 1997, the claimant, Garry Graham, filed a petition to controvert alleging that on November 30, 1994, he received a work-related injury to his back while working for the Hager Hinge Company in Greenville, Mississippi. He had worked for that employer for three or four years as an electrostatic paint machine operator. The employer and carrier admitted the compensability of the back injury, provided medical services and supplies, and paid temporary total disability benefits from December 1, 1994, until April 10, 1995, in the total amount of $4,303.56.

The claimant was treated by Dr. Edward S. Kaplan, neurosurgeon in Memphis, and he underwent back surgery in February 1995 because of a left paracentral disc herniation at L4-L5 and two preexisting conditions, spondylolisthesis and spondylolysis. Mr. Graham returned to light-duty work at Hager Hinge Company in April 1995, and Dr. Kaplan released him from treatment on September 1, 1995. Dr. Kaplan assigned a permanent impairment rating of 10% to the body as a whole.

Mr. Graham continued his employment with Hager Hinge Company until November 1995, when he went to work for his father, a farmer in Aubrey, Arkansas. He earned $400.00 a week working for his father, primarily in a supervisory capacity.

A year and a half later, on March 17, 1997, Mr. Graham returned to see Dr. Kaplan, complaining of low back, right thigh, leg and foot pain. Dr. Kaplan recommended another MRI and a consultation with Dr. Keith Williams, orthopaedic surgeon at the Campbell Clinic in Memphis, regarding the possibility of a back fusion. The MRI was not authorized by the employer or carrier, and Mr. Graham did not see Dr. Williams in 1997. When asked if the March 1997 complaints were related to the work injury of November 1994, Dr. Kaplan replied, "I have to assume that it could be related to the injury of October 1994 but I am not absolutely certain nor is the patient." (Exhibit 5, p. 22).

Mr. Graham had an employer's medical evaluation by Dr. Riley Jones, orthopaedic surgeon in Memphis, on November 3, 1997. Dr. Jones noted symptom magnification signs during the physical examination. He opined Mr. Graham did not need an MRI or a back fusion and stated any new problems were not related to the 1994 work injury.

A hearing was held before the undersigned Administrative Judge on April 28, 1998. The issues were:

1. The extent of disability resulting from the work injury; and

2. Whether the employer and carrier are liable for paying for a lumbar MRI as recommended in March 1997 by Dr. Kaplan.

1. Employer/Carrier: Pre-injury wage statement, hand-written;

2. Employer/Carrier: Pre-injury wage statement, computer print-out;

3. Employer/Carrier: Post injury wage statement, computer print-out;

4. Claimant: Affidavit and medical records of Dr. Edward S. Kaplan;

5. General: Deposition of Dr. Kaplan, dated May 6, 1997;

6. Employer/Carrier: Deposition of Dr. Riley Jones, dated April 6, 1998;

7. Claimant: Supplemental medical records of Dr. Kaplan;

8. Employer/Carrier: Claimant's tax returns for 1994-95-96;

9. General: Claimant's deposition, dated July 17, 1997;

10. Claimant: Collective exhibit of medical bills.

1. Garry R. Graham received a work-related injury to his lower back on November 30, 1994, as alleged in the petition to controvert and admitted by the employer and carrier.

2. The average weekly wage of the claimant on November 30, 1994, was $428.60, as figured from a wage statement submitted into evidence by the employer. He additionally was paid fringe benefits equivalent to approximately 35% of his gross wages.

3. Because of the work injury, the claimant was temporarily totally disabled from December 1, 1994, until September 1, 1995, when Dr. Kaplan released him from treatment, except for the days when he was able to work and earn his regular wage.

4. Because of the work injury, Garry Graham has sustained a permanent los of wage-earning capacity in the amount of 20% of his average weekly wage of $428.60, that is, $85.72 a week. He has had a herniated disc and back surgery because of the work injury, and he suffered an aggravation of some long-standing preexisting conditions. He is restricted from heavy manual labor. He is not a high school graduate and, although he has many valuable skills, he would find that some of the employment doors open to him in the past would not now be available to him because of the surgery and resulting physical limitations.

5. The employer and carrier are not responsible for the MRI recommended by Dr. Kaplan. Dr. Jones said the MRI was not needed at all, and Dr. Kaplan said he did not know whether the 1997 problems experienced by Mr. Graham were related to the work injury or not. The medical support is simply not there for the recommendation of an MRI two and a half years after the work injury, particularly when Mr. Graham went without medical treatment for a year and a half, working all that time at either Hager Hinge Company or his father's farm, and then displayed symptom magnification at the employer's medical evaluation performed by Dr. Jones. It certainly seems most reasonable to conclude that the new problems experienced by Mr. Graham in 1997 are not related to the work injury of November 1994. This would be consistent with the testimony of Dr. Jones and not inconsistent with what Dr. Kaplan said.

1. Temporary total disability benefits at the rate of $243.75 per week beginning December 1, 1994, and continuing until September 1, 1995, with credit for any such payments already made by the employer or carrier or for wages earned by the claimant during this time;

2. Permanent partial disability benefits at the rate of $57.15 per week beginning September 1, 1995, and continuing for a period not to exceed 450 weeks;

3. Penalties and interest on all due and unpaid compensation benefits;

4. Provide medical services and supplies as required by the nature of the claimant's injury and the process of his recovery therefrom pursuant to Mississippi Code Annotated §71-3-15 (1972), as amended, General Rule 12, and the Medical Fee Schedule.

The employer and carrier filed a Notice of Final Payment on September 30,1999, that indicated a lump-sum payment of $23,740.35, was made to the claimant. The Commission file was closed on October 4, 1999. The next activity in the file was entered on December 15, 1999, upon receipt of the claimant's notice of deposition of Dr. Keith Williams at the Campbell Clinic in Memphis. Then the claimant filed a pretrial statement on August 22, 2000. The parties convened for a hearing on October 23, 2000, agreeing that the primary issue to be resolved was whether the employer and carrier should be ordered to provide additional medical treatment to the claimant.
 

The issues to be resolved by the Administrative Judge are:

1. Whether the claimant has proved that since the July 13, 1998, Order of Administrative Judge there has been a change in conditions or mistake in a determination of fact so as to warrant reopening of this case; and

2. If so, whether the employer and carrier are responsible for providing additional medical treatment or other benefits to the claimant.
 

Three new exhibits were received into evidence:

11. Claimant: Affidavit/medical records of St. Bernards Regional Medical Center;

12. Claimant: Deposition of Dr. Keith Williams, dated February 29, 2000; and

13. Claimant: Affidavit and medical records of Dr. Don Ball.

The claimant, Garry Graham, is now thirty-one years old and a resident of Wynne, Arkansas. At the time of the April 1998 hearing, he was working on his father's 2,700-acre arm in Arkansas. He began in November 1995 and continued to work there until February of 2000. Mr. Graham worked as supervisor and manager of farming for his father, a wheat, rice, cotton, and soybean farmer. There were three or four other people working on the farm. The claimant's duties required him to tell other workers what to do. Mr. Graham said he did not do much lifting heavier than a ratchet.

On the farm, Mr. Graham drove a combine and tractors, and he said the equipment was not hard to drive. They had air-ride seats and were air-conditioned and very comfortable with plenty of leg room - "like a Cadillac." He did not do much bouncing around, and he also could stop when he needed to do so. He had to climb steps to get in the equipment, probably five times a day.

Mr. Graham's father stopped his fanning business in September 2000. Mr. Graham moved in February 2000 because he knew his father was planning to go out of business. He went to work for a friend who has a farm in Cherry Valley, Arkansas. He thought he was to do supervisory work like he had done for his father, and he expected to earn a salary $550.00 a week. Before he knew it however, the friend was asking him to do physical labor that he thought would hurt him, such as picking up implement tires and other heavy work that required a lot of bending and pulling up. There was also a dispute about wages the first week, and Mr. Graham quit after about two weeks.

Mr. Graham has not worked since then. He has talked with a cabinet maker and also a painter about the possibility of a job, but he has not been offered employment. He said he told these prospective employers about his back problems.

In February 2000, Mr. Graham moved to Wynne, Arkansas He testified that his father hired some people to move his household, but he lifted things like lamps, a deer head, pillows, and things like that.

In March or April of 2000, Mr. Graham and his wife opened a home and lawn service. The business is just now starting to get kicked off Mr. Graham said he is not quite as well off with the new business as he was on his dad's farm. The job requires that he do small carpentry jobs and yard mowing. He has a riding lawn mower. The mowing involves bouncing, but he can rest when he wants to and work at his own pace. He does a little edging with a gas-powered gas edger. He works about three or four days a week. He has done some occasional auto mechanic work like change spark plugs. He said he has difficulty straightening up when he bends over to punch a nail gun.

Mr. Graham has not had any car wrecks since April 1998. He has not had an accident at home or fallen in the tub or any such incident. He did not strain himself on the job on his father's farm.

According to Mr. Graham, his pain is getting worse. He is willing to have a psychiatric evaluation as recommended by Dr. Keith Williams, as well as the back surgery. Mr. Graham said nothing new happened to him, but the symptoms have just gotten worse since the surgery in 1995. Mr. Graham said he could not stand up straight.

Mr. Graham consulted Dr. Don Ball, a family doctor in Marianna, Arkansas. He went to Dr. Ball to get the referral to a pain clinic. He saw him three or four times. He said he wanted to "knock the sharpness off the pain." Dr. Ball gave him some anti-inflammatory medications and other medicines that Mr. Graham described as "off the wall."

Dr. Ball referred Mr. Graham to Dr. Mark Hackbarth at the Center for Pain Management in Jonesboro, Arkansas. Mr. Graham made nine or ten visits to Dr. Hackbarth. Mr. Graham said he was "treated like a guinea pig," and given different types of injections and different medicines. He said the treatment made him miserable.

The workers' compensation carrier has not paid for Dr. Ball or Dr. Hackbarth. The claimant has paid his own medical bills.

Since the hearing in April 1998, Mr. Graham has had the MRI recommended by Dr. Kaplan and he has seen Dr. Williams two more times. He wants to have the fusion to "have a chance to be pretty well normal." He wants to be able to walk a lot farther to hunt and be able to do things with his daughter. Now he walks only about twenty yards to hunt. When he sits in a boat too long fishing for crappie, he has pain. When he bends over to tie a shoe lace, he has trouble standing up again.

Mr. Graham still smokes but he plans to undergo hypnosis to try to stop smoking. He wants to be "normal for a thirty-one-year old."

Mr. Graham said he killed a deer two or three years ago. He hooked a four-wheeler to the dead deer and pulled it up. He testified he does not ride the four-wheeler much. He has had a new one for several months, and he has used it about two hours. Another hobby is playing the guitar. Mr. Graham wants to learn how to use a lathe and do wood turning and hopes he will be given a lathe for Christmas. There is a treadmill at his house, but he does not get on it.

Dr. Keith D. Williams, board-certified orthopaedic surgeon at the Campbell Clinic, testified by deposition dated February 29, 2000, that he saw Garry Graham three times. He first saw him on August 31, 1995, at the referral of Dr. Ed Kaplan. Mr. Graham had undergone surgery by Dr. Kaplan in February 1995, but he continued to have pain in his back and in his right leg. Dr. Kaplan wanted Dr. Williams to see Mr. Graham regarding a possible lumbar fusion. Dr. Williams examined Mr. Graham and talked to him about some home physical therapy and anti-inflammatory medications. He asked Mr. Graham to return in six to eight weeks for follow up, but the carrier would not authorize the return visit. Dr. Williams did not see Mr. Graham again for more than three years.

The medical records of Dr. Don Ball, physician in Lee County, Arkansas, were received into evidence. Garry Graham came to Dr. Ball on January 6,1999, complaining of continuing back pain since a ruptured disc and surgery two years before. Dr. Ball made a referral to Dr. Rodney Fields and prescribed Lorcet 10, a pain medication which is a controlled substance.

Dr. Keith Williams at the Campbell Clinic saw Garry Graham a second time on January 20, 1999, for chief Complaint of low back pain for four years. Mr. Graham told Dr. Williams the pain had never been completely relieved. Dr. Williams reviewed an MRI taken December 1, 1998, and he took x-rays. The x-rays showed some mild evidence of instability and a slight spondylolisthesis at the L5-S1 level which he had before. Dr. Williams said the MRI showed

Basically the same sort of findings we had seen before. Some postoperative changes and some scarring around particularly the left L5 nerve root, but I did not think he had significant disk recurrence.

The records of Dr. Ball include a note dated January 29, 1999, stating that Garry Graham requested a refill of Lorcet. Dr. Ball okayed the refill with the understanding that Mr. Graham see Dr. Fields. On June 14, 1999, Mr. Graham came to see Dr. Ball for low back pain and pulled muscle in right shoulder. Dr. Ball prescribed several medications. On June 25, 1999, he prescribed Darvocet N-100, another controlled substance pain medication which is not as strong as Lorcet 10. On July 9, 1999, there is a note stating that:

pt. called in request pain med. Darvocet is not working at all asked for Lorcet by name says Lorcet is all that helps pain... Dr. in Memphis says pt. needs surgery - pt. will not have it at this time. No meds being refilled or called in unless pt. come to office and agrees to go to pain management.

Dr. Williams saw Mr. Graham for the third and last time on August 16, 1999, for complaints of continuing pain in his back and legs, worse on the left than the right. Dr. Williams talked to Mr. Graham again about surgical treatment. Dr. Williams recommended Mr. Graham have psychological testing by Dr. Howard Jacobson, a psychologist.

Dr. Williams said L5-S1 sponylolisthesis and spondylolysis at the L5 level was the diagnosis for each time he saw Mr. Graham. Dr. Williams explained:

A spondylolysis is basically a fracture through the pars interarticulanis. A spondylolisthesis means that there is a translational movement of L5 in relation to the sacrum. Basically, the L5 slips forward on the sacrum, and often times if a person has a spondylolysis with a defect in the bone, that's what allows the spondylolisthesis to occur. There are no different types of spondylolisthesis, but that's called an isthmic spondylolisthesis which is the most common type.

When asked if the current problems were related to the November 1994 work injury, Dr. Williams responded:

Well, he does have a spondylolisthesis and, you know, that is something that occurs not uncommonly in the general, population. But at least from his history, he was not symptomatic from it. It's possible he could have had it prior to this injury and he was asymptomatic. It's also possible he didn't have it and developed it as a result of this. I cannot really - I don't have a way to distinguish between those two because I don't have any films or studies prior to November of '94 which was what would be necessary. But as far as his symptoms go, certainly they seem to be related to the injury that occurred in 94.

The medical records of St. Bernards Regional Medical Center in Jonesboro, Arkansas, were received into evidence. These records include the records of Dr. Mark A. Hackbarth of the Center for Pain Management. Dr. Hackbarth first saw the claimant on February 21, 2000, for complaints of low back and bilateral leg pain since 1994. He reported taking more than the normal doses of Ultram, Flexeril, and Lorcet 10. Dr. Hackbarth diagnosed chronic low back pain, lumbar post laminectomy syndrome, and probably lumbar facet irritation. Dr. Hackbarth noted:

Due to the patient taking excessive medications, will discontinue his present medications and have him take Trilisate 1000 mg. Ipotid. and Methadone 10 mg. Ipo Q. 12 p.r.m. pain. Discussed with patient the need for these medications to be taken only as written.

After carefully considering the prior Order of Administrative Judge dated July 13, 1998, pleadings, pretrial statements, lay and medical evidence, the demeanor of the witness at the hearing, and the applicable law, the Administrative Judge finds as follows:

1. This Administrative Judge finds that the claimant Garry Graham has had a change in condition, a worsening of his medical condition, and that there has been a mistake in a determination of fact such as to warrant reopening of his case pursuant to Mississippi Code Annotated §71-3-53 (1990). At the time of the last hearing in April 1998, Mr. Graham had been relatively asymptomatic for more than two years and able to enjoy his work at his father's farm. The medical testimony at the prior hearing indicated that Mr. Graham's continuing problems were not related to his November 1994 work injury.

The testimony of Dr. Keith Williams, contained in his February 29, 2000, deposition, is new and significant evidence about Mr. Graham's medical condition. It is different evidence from what this Administrative Judge saw at the April 1998 hearing and incorporates a greater period of time by more than two years. Dr. Williams has offered an opinion that Mr. Graham needs a back fusion and that his symptoms have continued to worsen in the more than four years since the prior back surgery performed by Dr. Kaplan. Dr. Williams saw Mr. Graham two times in 1999 and had the benefit of an MRI taken in December 1998. Dr. Williams specifically related the worsened symptoms to the 1994 work injury and resulting surgery.

2. The employer and carrier are liable for continuing medical treatment by Dr. Kaplan and/or Dr. Williams, including the 1999 visits to Dr. Williams and the 1998 MRI. The employer and carrier are responsible for any psychological testing or other testing recommended by Dr. Williams.

3. The employer and carrier are also responsible for payment of temporary total disability benefits for any period of temporary total disability which may be established by Dr. Kaplan or Dr. Williams while the claimant receives this additional medical treatment.
 

IT IS THEREFORE ORDERED that the employer and carrier pay workers' compensation benefits to the claimant as follows:

1. Provide medical services and supplies as required by the nature of the claimant's injury and the process of his recovery therefrom pursuant to Mississippi Code Annotated §71-3-15 (1995), General Rule 12, and the Medical Fee Schedule, as particularly set forth above.

2. Pay temporary total disability benefits at the rate of $243.75 per week if Dr. Keith Williams or Dr. Edward Kaplan find that Mr. Graham is temporary totally disabled while undergoing additional medical treatment.

SO ORDERED, this the 6th day of November, 2000.

LINDA A. THOMPSON
ADMINISTRATIVE JUDGE

ATTEST:
Jo Ann McDonald, Secretary
___________________________

1. While a formal motion to reopen or to compel medical treatment was not filed, Mr. Graham's attorney did file a pre-hearing statement with the Commission on August 22, 2000 which listed as the contested issues the existence and extent of permanent disability, and the reasonableness and necessity of certain medical treatment. At the hearing below, the parties agreed the Claimant was seeking to reopen his claim for the purpose of obtaining additional medical treatment and the hearing was conducted on this basis accordingly.