MWCC NO. 95 01819-G-4440
MWCC NO. 98 15590-G -5167
MWCC NO. 00 08088-G-8792
TESSIE ECHOLS CLAIMANT
VS.
CHROMCRAFT
EMPLOYER
AND
LIBERTY MUTUAL FIRE INSURANCE COMPANY
CARRIERS
EMPLOYERS INSURANCE OF WAUSAU
REPRESENTING CLAIMANT:
John Leslie Bailey, Attorney at Law
P. 0. Box 568
Batesville, MS 38606-0568
REPRESENTING EMPLOYER/LIBERTY MUTUAL FIRE INS. CO.:
George E. Read, Attorney at Law
P. 0. Box 1396
Oxford, MS 38655-1396
REPRESENTING EMPLOYER/EMPLOYERS INSURANCE OF WAUSAU:
Ben Logan. Attorney at Law
P. 0. Box 68
Tupelo, MS 38802-0068
ORDER OF ADMINISTRATIVE JUDGE
On July 15, 1994, claimant slipped and fell in oil on the floor, thereby injuring her right index finger and right wrist. She also alleged that she had carpal tunnel syndrome of the right upper extremity. The employer's worker's compensation carrier at the time of the first injury was Employer's Insurance of Wausau. It paid claimant both medical and disability benefits as a result of this injury.
Claimant returned to work, but on June 4, 1997 she sustained a repetitive motion injury to her left upper extremity as the result of her work as a sewing machine operator. The employer's worker's compensation carrier at the time of the second injury was Liberty Mutual Fire Insurance Company. The employer/carrier admitted the compensability of both of these injuries and paid claimant medical benefits and disability benefits for a period of time.
Claimant again returned to work after the second injury, but she sustained
a third injury to her left upper extremity on or about July 1, 1998 as
a result of her work as a sewing machine operator. The third injury involved
her left upper extremity and was diagnosed as tendonitis secondary to the
repetitive motion required by her work as a sewing machine operator. The
employer/Liberty Mutual Fire Ins. Co. again admitted the compensability
of the third injury. The primary issue to be resolved is the extent of
permanent disability attributable to the second injury on June 4, 1997.
STIPULATIONS
1. Claimant's average weekly wage on June 4, 1997 was $481.871
2. Employer's Insurance of Wausau's coverage ended and Liberty Mutual Fire Insurance Company's coverage began on May 1, 1995.
3. Claimant's average weekly wage on July 15, 1994 was $234.00, which thereby entitles her to a compensation rate of $156.00.
4. Employer's Insurance of Wausau agrees to pay claimant permanent partial disability benefits for the 5% permanent impairment rating to her right upper extremity, plus applicable penalties and interest, from the date of Dr. Calandruccio's deposition.
ISSUES
The issues in this case are:
1. the extent of permanent disability attributable to claimant's injury on June 4, 1997; and
2. whether claimant is entitled to a 10% penalty on any untimely paid
installments of compensation pursuant to Section 71-3-37(5).
EVALUATION OF THE EVIDENCE
Claimant is a fifty-five-year-old resident of Coldwater, Mississippi. She has an eleventh grade education. For the past 32 1/2 years, she has worked for Chromcraft. Although she has performed several different jobs during her tenure with the employer, her first job was as a sander on the table line. Next she made buttons. For the past eighteen to twenty years, she has worked as a sewing machine operator and seamstress.
Claimant testified that she first injured her dominant right hand on July 15, 1994 when she slipped and fell in oil and injured her index finger and wrist. Orthopedic surgeon Dr. James H. Calandruccio performed surgery on her right index finger. She returned to light duty after surgery as a data entry operator in the office for one month. When this job ended due to lack of work, she was off work until April 5, 1995. She then returned to work as a sewing machine operator. Claimant testified that she over used and put more pressure on her left hand to protect her right hand when she returned to her regular job, and that the fingers and wrist of her left hand began to hurt. Her left hand also began to go to sleep and feel numb.
Claimant testified that she sustained a second injury -- a repetitive motion injury to her left arm -- on June 4, 1997. Dr. Calandruccio treated claimant conservatively for carpal tunnel syndrome from June 11, 1997 to October 16, 1998 when he performed a carpal tunnel release on the left. However claimant testified that the surgery not only was not helpful, it made her condition worse. When Dr. Calandruccio released her to light duty, she again performed office work until this job was no longer available. She then was off work until she returned to her regular job as a seamstress and upholsterer in January 1999.
Claimant testified that she has continued to work as a seamstress since January 1999 although this job requires her to constantly move both hands, wrists and elbows. She testified that she sews different types of seats and backs, that she sews two seams on the ends of the seats and backs, and that some seats require her to fold little pleats with her fingers in the corners of both the seats and backs.
Claimant also testified that the performance of her job as a sewing machine operator has exacerbated her condition, and that she has experienced left hand pain and swelling every day since January 1999. She specifically testified that her repetitive work activities cause bilateral hand and wrist pain which radiate to her elbows and shoulders. She also testified that the arm pain is constant, especially on the left side. She also reported that both her hands go to sleep before the end of the day and she loses control of her left pain. She often seeks treatment for these symptoms from the plant nurse who applies ice to her left arm. She also wears a cup on her elbow and she stretches her arms up and overhead every two hours per the recommendation of orthopedic surgeon Dr. James H. Calandruccio.
Claimant further testified that the impairment to her left upper extremity has prevented her from working at her pre-injury level of performance and has thereby diminished her capacity to earn wages. Before the 1997 injury to her left arm, she could complete 75 seat backs in one hour and she earned $300.00 to $400.00 per week ($200.00 a week plus production.) However she currently sometimes makes $200.00 or less a week, and she sometimes sews only 26 seats and backs per hour.2 Although claimant testified that she earned $24,485.23 in 1997 and $18, 394.25 in 1999 (per W-2's marked Exhibit 3), the wage statement marked Exhibit 4 shows claimant earned $19,614.25 in 1999, including $6,521.11 in bonus pay.3 She also testified that she worked fewer hours in 1999 than she did in 1997. She testified that she currently earns $7.72 an hour, and that she has received several across-the-board pay raises since 1994.
Claimant testified that the employer has not accommodated her since she returned to work in January 1999, although her supervisor will not allow her to perform the more physically challenging work such as sewing the newer model chairs with grommets or those that require the seamstress to pull the fabric to align the cloth. She testified that she asked the employer for other work, that the employer told her that they would consider her request, but that she was never advised of or offered another job except for a sorting job which she could not perform because of the lifting requirements. She also testified that the sorterjob did not require less repetitive movement than her job as a seamstress, that it paid more than herjob as a seamstress, and that the person she would have replaced also hurt her arms performing that job. Claimant testified that she does not lift more than 15 to 20 pounds in her current job.
Claimant credibly testified that her left hand condition is progressively worsening, and that she would "quit because it hurts that bad" if her husband were employed. She also testified that she sometimes loses control of both hands, that her left hand goes to sleep, and that she loses feeling in her left hand. She specifically testified that her left hand had accidently slid under the machine because of her inability to feel and thereby guide her hand, and that a needle had punctured and broken in her finger last month for this reason. She also testified that she drops objects because of the loss of feeling in her left hand, and that she can not peel vegetables, screw bottle tops or wring out a mop with her left hand.
Robert T. (Bobby) Lowery, supervisor over the sewing and upholstery department for thirty- eight years and claimant's supervisor for twenty years, testified that claimant resumed her regular job as a sewing machine operator and sewed the same lines upon returning to work after the second injury. He also testified that claimant sews the new lines, including grommets: "everybody sews everything — when you run out of work on your line you sew on another line."
Lowery further testified that claimant has performed herjob well since returning to work, that she is as good or better than anyone else on the line, and that she has never refused or declined to perform any work. He estimated that her current production is very close to her pre-injury production. However he admitted that she has complained about her arm since returning to work, that her work as a sewing machine operator is a repetitive motion job that has also affected other employees, and that he is sure that her arms hurt. He also admitted that she has reported to the plant nurse because of swelling "once a month or something like that," and that he has heard that claimant has complained of losing control of her left arm although he had never witnessed such an incident. He did recall that claimant had recently had a needle stuck in her left arm.
Lowery testified that he offered claimant the sorter job when that position became available because it involved less repetitive hand movement, but that she was not interested. He testified that the sorter job did require lifting, but that an employee can "pick up a little or a lot." He described a large bundle as being two feet high and weighing 15 pounds.
Lowery testified that the sewing department has worked less hours in 2000, as the number of hours worked per week fluctuates over the years. He also testified that claimant made 200% production and more before the injury, but he was not sure if her production rates had reached that level post-injury. He admitted that claimant's post-injury wage statement showed she did not always make production, and that he could not tell if she reached 200% production post injury because the rates change every year if the employees exceed the rate.
Exhibit 4, claimant's post injury wage statement, shows that her average weekly wage in 1999 was $463.47, and that her average weekly wage from January 2000 to May 7, 2000 was $461.26.
Orthopedic surgeon Dr. James Calandruccio testified by deposition that he first saw claimant on January 11, 1995. On January 20, 1995, he performed reconstructive surgery to her right index finger. She was temporarily totally disabled from January 11, 1995 to April 10, 1995 when he released her without restrictions. On May 31, 1995, he treated her for probable right carpal tunnel syndrome, early. Although claimant's electrical studies were negative, he thought she had early carpal tunnel on the right. Dr. Calandruccio continued to treat claimant, and on December 20, 1995 he noted that she was still performing her regular job although she had continued symptoms on both sides. He diagnosed mild carpal tunnel syndrome. On December 29, 1995, he assessed a 500 permanent partial impairment to her right upper extremity, one-half of which was for the acute injury to her right index finger and one-half of which was for her right carpal tunnel syndrome. He released her to return to work without restrictions.
When Dr. Calandruccio next saw claimant on June 11, 1997, she complained of continued numbness in her left hand. On August 6, 1997, her electrical studies were consistent with left carpal tunnel syndrome. On October 16, 1998, he performed a left carpal tunnel release. On November 25, 1998, he released her to modified duty. On January 29, 1999, Dr. Calandruccio found that claimant had swelling and pain as well as decreased grip and pinch strength in her left hand. However, on the same date, he concluded that she had reached maximum medical improvement with a 5% permanent impairment to her left upper extremity. He did not assess any permanent work restrictions to either upper extremity then or when he last saw her on February 24. 1999.
Dr. Callendrucio testified that claimant's work as a sewing machine operator probably caused her left arm condition. He also testified that it was possible that her employment caused her right carpal tunnel syndrome. He testified that the tendinitis in claimant's left elbow and wrist for which she was treated by Dr. Michael DeShazo is separate from carpal tunnel syndrome, but that it is consistent with her work as a sewing machine operator. He also testified that 10 to 20% of surgery patients do not improve, that pne of several reasons for their lack of improvement is the resumption of repetitive activities, and that he would not dispute that claimant is one of the 10 to 20% of patients who did not improve with surgery. However he testified that he could not answer the question of whether she should continue her work as a sewing machine operator, as many people have carpal tunnel syndrome who do not perform repetitive work activities and he did not "know for sure at this particular place of employment whether the incidence of carpal tunnel syndrome is greater than that of the general population."
Dr. Calandruccio 's most recent record which was received by the Commission on October 23, 2000. shows that he last evaluated her on August 16, 2000. He noted that claimant continued to have problems with left upper extremity pain. She reported intermittent numbness in her fingers as well as burning pain up into her shoulder. She stated the burning pain was constant, that she had started having loss of control, and that her hand was "going in towards the sewing machine.~' On examination, he noted no swelling about her surgical site. There was no significant tenderness over her surgical scar. He also noted good skin temperature and turgor in all digits, full range of motion of her fingers, good finger sensation, and negative Wright's and Adson's tests. He diagnosed continued pain in her left upper extremity following the carpal tunnel release. He also noted that claimant did plan to continue to work, that she did have pain at work, but that "she has continued to work so I will make no change in her work status at this time."
Physical medicine specialist Dr. Robert Christopher testified by deposition
that claimant's records show that she first saw Dr. Calandruccio for an
injury to her right index finger on July 15, 1994. Dr. Calandruccio diagnosed
claimant's injury as a tear of the ligament that holds the finger to the
hand. He ultimately performed surgery to repair the ligament and released
her on December 29, 1995 with a S% permanent impairment rating to
the right upper extremity. On June 11, 1997,
claimant sought treatment from Dr. Calandruccio for numbness of her
left fingers which he diagnosed as carpal tunnel syndrome on the left.
He performed a release on the left on October 16, 1998, and he released
her to return to full duty on January 29, 1999. Claimant told Dr. Christopher
that neither of Dr. Calandruccio's surgeries had benefitted her.
Dr. Christopher testified that when he saw claimant in June 1999, she reported pain while sewing upholstery, as her job required a great deal of forceful pulling of upholstery material with both her hands. On the date of his exam, she was having right index finger pain; left hand pain. numbness, and tingling; left elbow pain; left shoulder pain radiating into her left arm; right shoulder pain; and weakness and loss of sensation in both hands. She reported that her symptoms were aggravated by her work activities. She also reported that she had swelling daily in her left arm and forearm which worsened as her work day progressed. She had occasional swelling of her right hand.
Upon exam, Dr. Christopher noted that the fingers of claimant's left hand and her left forearm from her wrist to her elbow were swollen. She could extend her wrist to 65 degrees although 70 degrees if normal. Her flexion was 68 degrees although the normal is 80 degrees. Range of motion of her left fingers and elbow ere normal. She had decreased sensation of both her upper extremities. He diagnosed post MP joint reconstruction of her right index finger due to her first acute injury; post release on the left with continuing pain, numbness, tingling and weakness; and mild ulnar nerve entrapment, greater due to repetitive motions. He recommended she avoid work requiring repetitive wrist and elbow motion, pushing and pulling more than 15 pounds, and lifting more than 15 pounds. He attributed the need for these restrictions to claimant's left wrist and elbow impairments. He assessed a 5% permanent medical impairment to her right upper extremity and a 19% permanent medical impairment to her left upper extremity for the median nerve entrapment at the left wrist and the ulnar nerve entrapment at the left elbow.
Dr. Michael DeShazo, a neurologist with Semmes-Murphy clinic, testified by deposition on April 25, 2000 that he first saw claimant on July 1, 1999 at Dr. Keith Davis's request regarding a finding on her EMG that she had a quivering muscle or fasciculations. Dr. Davis had seen her in April 1999 for left wrist pain radiating up her arm, carpal tunnel, and numbness on the little and ring fingers. Dr. Davis had ordered a cervical MRI which did not show a ruptured disc. Dr. DeShazo also ordered blood tests to rule out arthritis and a bone scan, all of which were negative for arthritis. The EMG conducted by Dr. Davis showed very mild slowing on the left indicating mild carpal tunnel. The right side was not tested.
Upon exam on July 1, 1999, Dr. DeShazo found that claimant had good strength with no evidence of fasciculations. He did find numbness in the ulnar nerve distribution of her left fourth and fifth fingers. He also found that claimant had tendinitis in the median aspect of the left wrist. He prescribed pain medication and anti-inflammatories.
When Dr. DeShazo next saw claimant on August 13, 1999, she was still having a lot of discomfort, primarily in the tendons. A Finkelstein's test conducted in his office indicated that she had tendonitis. He concluded she probably had tendinitis on the opposite side of the hand from the ulnar nerve, that her tendinitis was probably attributable to her work activities and was the cause of her current symptoms, and that it probably originated after her carpal tunnel release in 19974 Because she had already tried a steroid Dosepak to reduce inflammation which was not helpful and because there was no evidence of a neurologic deficit on her exam, he referred to a rheumatologist for treatment of tendinitis, such as physical therapy, steroid injections, or other anti-inflammatory medications. At the time of his deposition, Dr. DeShazo did not know whether claimant had been treated by the doctor to whom he referred her for treatment.
Dr. DeShazo testified that tendinitis is not necessarily a permanent condition as it can often disappear with rest. He testified that if claimant continued to experience tendinitis symptoms which did not respond to treatment or which recurred when she returned to work following treatment, he would restrict her from repetitive work and "she may have to find a different type of work with less repetitive motion." He deferred to the referring physician regarding claimant's current condition and the existence of any permanent impairment attributable to the tendinitis: "[the assessment of a permanent impairment rating is j a little out of my field. That's why I referred her to a rheumatologist."
The report of rheumatologist Dr. Howard. W. Marker dated June 13, 2000 and addressed to the adjuster in this cause states that he saw claimant in his office on June 8, 2000 for a rheumatological evaluation.5She complained of left upper extremity pain, but reported two prior worker's compensation injuries — one to her right index finger in 1994 and another in 1997 diagnosed as left carpal tunnel syndrome. She also reported that Dr. Calandruccio performed a release on the left in October 1998 without any relief from her symptoms. Later she was referred to neurosurgeon Dr. Keith Davis who ordered an EMG and nerve conduction studies. Since that time the pain in her left hand and carpal tunnel syndrome had persisted, and she continued to drop objects out of her left hand. She had declined a recommendation for a second surgery. Dr. DeShazo's MRI showed no cervical disc disease but a bone scan revealed uptake throughout the carpal tunnel region. Dr. DeShazo diagnosed tendinitis and stated that she should be seen by a rheumatologist for evaluation and treatment.
Upon examination, Dr. Marker found that she had tenderness over the left hand and decreased range of motion of the wrist. There was no evidence of rheumatoid nodules or gout or synovitis. She had some numbness in her fingers but no subluxation. She had decreased pin prick and pain in the left fourth and fifth digits. Range of motion of the fingers of the left hand was normal although there was pain associated with it, and there was decreased sensation in the distribution of the ulnar nerve in both upper extremities. X-rays of the left hand revealed some osteoporosis. Rheumatology profile was negative. He ordered repeat EMG/NCS, but these results are not in the record.
Dr. Marker concluded that there was no evidence of any underlying connective tissue disorder or rheumatoid arthritis or gouty arthritis. She continued to have left hand pain and numbness which was abated only temporarily by corticosteroids. He concluded that claimant has carpal tunnel syndrome on the left which is aggravated by her work activities and that she should therefore cease performing those work activities:
1. Claimant has a permanent medical impairment attributable to the work-connected injury on June 4, 1997. On January 29, 1999, primary treating physician Dr. James Calandruccio assessed a 5% permanent medical impairment to claimant's left upper extremity attributable to her injury on June 4, 1997. He did not assess any permanent work restrictions. When he last saw claimant on August 16, 2000, he noted that she continued to have problems with left upper extremity pain. He diagnosed continued pain in her left upper extremity following carpal tunnel release. He also noted that claimant did plan to continue to work, that she did have pain at work, but that "she has continued to work so I will make no change in her work status at this time."
When Dr. Robert Christopher evaluated claimant in June 1999, he recommended that she avoid work requiring repetitive write and elbow motion, pushing and pulling more than 15 pounds and lifting more than 15 pounds. He attributed the need for these restrictions to claimant's left wrist and elbow impairments. He assessed a 19% permanent medical impairment to her left upper extremity for the median nerve entrapment at the left wrist and the ulnar nerve entrapment at the left elbow. He did not state what portion of the 19% impairment rating he attributed to claimant's left carpal tunnel syndrome.
Rheumatologist Dr. Howard W. Marker, the physician who evaluated claimant on June 13, 2000 following Dr. DeShazo's recommendation that claimant be evaluated by a rheumatologist for tendinitis, diagnosed claimant's left upper extremity symptoms as carpal tunnel syndrome. He also stated that she would not be able to do "any type of work which requires repetitive use of her wrists and elbows." He also restricted her from repetitive lifting and from lifting more than 10 pounds.
Because (1) Dr. Calandruccio assessed a 5% permanent medical impairment, (2) Dr. Christopher examined claimant only once, (3) Dr. Christopher did not state what portion of the 19% impairment rating he attributed to claimant's left carpal tunnel syndrome, and (4) Dr. Marker did not assess a permanent impairment rating although he found that she has a permanent impairment, this Administrative Judge finds that the best evidence at this time indicates that claimant has a 5% permanent medical impairment to her left upper extremity attributable to the injury on June 4, 1997.
2. Considering (1) the nature of claimant's left upper extremity impairment, (2) the impairment rating assessed by Dr. Calandruccio, (3) the impairment rating and restrictions assessed by Dr. Christopher, (4) the findings and restrictions assessed by Dr. Marker, (5) claimant's work ethic as evidenced by her continued employment with the employer, (6) the difference between her pre and post injury wages, and (7) claimant's impaired ability to perform at her pre-injury level of functioning per her and Robert T. Lowery's testimony, among other industrially related factors such as his age, education, work history and geographic location, this Administrative Judge finds that she currently has a 20% industrial loss of use of her left upper extremity attributable to her work- connected injury.
In so holding, this Administrative Judge notes that a preponderance of the evidence indicates. that claimant's continued employment as a sewing machine operator and upholsterer is contraindicated as (1) the medical evidence unanimously relates her left upper extremity symptoms to her repetitive work activities for the employer; (2) her condition has not improved and appears to have worsened since she resumed her repetitive work activities in January 1998; and (3) Dr. Christopher and Dr. Marker restricted her from repetitive work activities. However this Administrative Judge also notes that she has nevertheless continued to perform much of if not substantially the same work for the same employer — albeit in pain and under some economic duress and with some reduction in wages.
3. Claimant is currently entitled to permanent partial disability benefits at the rate of $270.67 per week for 40 weeks beginning January 29, 1999, with proper credit for compensation paid by employer/carrier during this period.
4. Claimant is entitled to all medical services and supplies required by the nature of her injury and the process of her recovery as provided in Section 71-3-15 and the Medical Fee Schedule.
5. Claimant is entitled to a 10% penalty on all untimely paid installments of compensation pursuant to Section 71-3-37(5).
ORDER
IT IS THEREFORE ORDERED that employer/carrier pay compensation benefits to claimant as follows:
1. permanent partial disability benefits at the rate of $270.67 per week for 40 weeks beginning January 29, 1999, with proper credit for compensation paid by employer/carrier during this period;
2. all medical services and supplies required by the nature of his injury and the process of her recovery as provided in Section 71-3-15 and the Medical Fee Schedule; and
3. a 10 % penalty on all untimely paid installments of compensation pursuant to Section 71-3-37(5).
SO ORDERED, this the 9th day of March, 2001.
DENEISE TURNER LOTT
ADMINISTRATIVE JUDGE
ATTEST:
Jo Ann McDonald
Secretary
1 Exhibit 5 from which claimant's average weekly was computed by the parties indicates that claimant's gross wages for the fifty-two weeks preceding her injury was $25,056.99. By dividing the total number of hours worked by forty hours, it can be ascertained that claimant worked 50.65 weeks during this period. $25,056.99 total wages divided by 50.65 weeks $494.71.
2 Claimant testified that employees are required to produce 25 units per hour, and that they receive bonus pay for all units over that amount. She testified that the rate for bonus pay had not changed.
3 On cross-examination, claimant testified that she did not know if the $18,394.25 figure shown on her W-2 as gross wages (Exhibit 3) represented her gross wages minus the cost of her group insurance premiums which were deducted from her taxable income under the employer's cafeteria plan.
4 Dr. DeShazo reported that Dr. Davis noted onset of her tendinitis in July 1998.
5 Dr. Marker's report does not show that it was copied
to Dr. DeShazo, although it does show copies to both counsel.