MWCC NO 96 17849-G-2252
OLA G. JOHNSON CLAIMANT
VS
SINGING RIVER HOSPITAL SYSTEM
EMPLOYER
SELF INSURED
REPRESENTING CLAIMANT:
Honorable Vincent J. Castigliola, Jr., Attorney at Law, Pascagoula,
Mississippi
REPRESENTING DEFENDANT:
Honorable Michael J. McElhaney, Attorney at Law, Pascagoula, Mississippi
AMENDED FULL COMMISSION ORDER
The Commission heard the above styled cause on August 6, 2001, in the offices of the Mississippi Workers' Compensation Commission, Jackson, Mississippi on the Claimant's "Petition for Review" by the Full Commission.
Having heard the arguments offered on behalf of the parties and having thoroughly studied the record and the applicable law, the Commission affirms the "Order of Administrative Judge" dated February 2, 2001.
Also before the Commission is a "Motion to Reopen Case to Take Second Deposition of Dr. Terrence Millette" filed by the Claimant, which is hereby denied.
SO ORDERED, this the 8th day of, August, 2001.
MISSISSIPPI WORKERS' COMPENSATION COMMISSION
BEN BARRETT SMITH
BARNEY SCHOBY
LYDIA QUARLES
COMMISSIONERS
ATTEST:
Jo Ann McDonald
MISSISSIPPI WORKERS' COMPENSATION COMMISSION
MWCC NO 96 17849-G-2252
OLA G. JOHNSON CLAIMANT
VS
SINGING RIVER HOSPITAL SYSTEM
EMPLOYER
SELF INSURED
REPRESENTING CLAIMANT:
Honorable Vincent J. Castigliola, Jr., Attorney at Law, Pascagoula,
Mississippi
REPRESENTING DEFENDANT:
Honorable Michael J. McElhaney, Attorney at Law, Pascagoula, Mississippi
FULL COMMISSION ORDER
The Commission heard the above styled cause on August 6, 2001 in the offices of the Mississippi Workers' Compensation Commission, Jackson, Mississippi on the Claimant's "Petition for Review", by the Full Commission.
Having heard the arguments offered on behalf of the parties and having thoroughly studied the record and the applicable law, the Commission affirms the "Order of Administrative Judge" dated February 7, 2001.
SO ORDERED, this the 7th day of August, 2001.
MISSISSIPPI WORKERS' COMPENSATION COMMISSION
BEN BARRETT SMITH
BARNEY SCHOBY
LYDIA QUARLES
COMMISSIONERS
ATTEST:
Jo Ann McDonald, Secretary
MISSISSIPPI WORKERS' COMPENSATION COMMISSION
MWCC NO 96 17849-G-2252
OLA G. JOHNSON CLAIMANT
VS
SINGING RIVER HOSPITAL SYSTEM
EMPLOYER
SELF INSURED
APPEARING FOR CLAIMANT:
Mr. Vincent J. Castigliola, Jr., Attorney at Law, Pascagoula, Mississippi
APPEARING FOR THE EMPLOYER:
Mr. Michael J. McElhaney, Attorney at Law, Pascagoula, Mississippi
ORDER OF ADMINISTRATIVE JUDGE
Claimant alledged that on October 25, 1996, she had a work accident injuring her right shoulder, lower back, neck, both legs (primarily the left), and causing headaches, chronic pain, and a psychological overlay. The Employer admitted the right shoulder injury only. The hearing was held at the Jackson County Courthouse in Pascagoula, Mississippi, on May 24, 2000. After the hearing, both parties submitted post-hearing briefs, which were received by August 4, 2000. The record was then closed.
Prior to the hearing, the Employer filed a motion requesting an independent psychological examination, to which Claimant objected. The Employer renewed this motion at the hearing, at which time the motion was taken under advisement by the undersigned. Having considered the record and the arguments of counsel, I hereby deny the Employer's motion.
STIPULATIONS
1. Claimant had a work-related accident on October 25, 1996, injuring her right shoulder.
2. Claimant's average weekly wage on the date of the work accident was $594.06.
3. There is no remaining issue to be decided regarding the reasonableness and necessity of the medical treatment.
4. Claimant reached maximum medical improvement for her right shoulder on June 1 6, 1997, as per Dr. John W. Cope. Claimant reached maximum medical improvement on July 8, 1 999, with regard to her chronic pain, as per Dr. Jeffrey Laseter.
5. If Claimant's spouse (Dennis Johnson) and daughter (Tonya Witty)
were called to testify, they would materially corroborate Claimant's testimony.
ISSUES
2. Whether or not Claimant's gastrointestinal by-pass of February 19, 1997, was a superceding, intervening event.
3. Assuming compensability, the existence and extent of temporary disability attributable to the alleged work injuries.
4. Assuming compensability, whether or not Claimant has reached maximum medical improvement with regard to her alleged psychological overlay.
5. Assuming compensability, the existence and extent of permanent disability attributable to Claimant's alleged work injuries.
REVIEW OF EVIDENCE
Claimant is a 52-year old resident of Alabama with a background in nursing. In 1983, Claimant became a licensed practical nurse in Florida, then moved to Mississippi and retrained as a registered nurse. In 1988, Claimant worked as a respiratory therapist, then graduated from school as a registered nurse in 1992. After her graduation, Claimant was hired by the Employer and continued to work there until her work accident on October 25, 1 996.
In 1992, Claimant was working on the heart and diabetes floor at the Employer, where she was later promoted to senior nurse. Claimant said she handled all Charge Nurse duties such as work assignments, paper work, and making rounds with the physicians. Claimant said she was also acting as Unit Coordinator, working on computers and handling phone work. Claimant stated that she weighed approximately 220 pounds at that time, but she said she had no problems handling her job responsibilities.
On October 25, 1 996, Claimant was working at the Employer and sitting in a chair. Claimant said the chair had wheels, and the chair suddenly flipped backwards causing her to hit her back, head, neck, and hip on the floor. Claimant stated that she was knocked unconscious for a few seconds and felt immediate pain with blurred vision. Claimant stated that two other nurses came to her assistance and placed her in a wheel chair. She was taken to the emergency room where she said she complained of pain in her neck, head, back, right arm, lower back, and legs. Claimant stated that she was given prescription medicine by the emergency room physician who diagnosed her with a muscle strain.
Claimant stated that since she was not improving, she saw the Employer's physician, Dr. Hilburn. Claimant said she saw Dr. Cope in November 1996 and he diagnosed a rotator cuff tear. Dr. Cope performed surgery to correct the tear in January 1997. Claimant said she also complained of back pain, but she was mostly treated for her shoulder problems by Dr. Cope.
Claimant admitted that Dr. Cope released her to return to work but she had many restrictions and light-duty requirements. She did not feel she could perform the duties of a floor nurse with her restrictions. She stated that lifting patients weighing more than 100 pounds would not be within her restrictions.
Claimant testified that prior to her work accident in October 1 996, she had no physical problems handling her job responsibilities. She stated that she had been contemplating a gastric bypass for her weight problem before her accident. She admitted that she asked Dr. Cope about her weight and that he told her the weight contributed to her back pain. Claimant said she had the gastric bypass in February 1 997, but the surgery did not extend her period of temporary disability from her work injuries. She said she only missed two weeks of physical therapy. She agreed that after losing 100 pounds, her mobility was greatly improved.
Claimant testified that she returned to work at the Employer on the same floor, but she handled patient education. However, Claimant said her presence at work hindered the floor's staffing because they were one registered nurse short when she was there. She said she also handled paper work, filing, talking with patients, and consulting with medical staff. Her understanding was that the floor needed a full-duty nurse, so she was moved to the Utilization Review Department. Claimant worked in that department from December 1997 until May 1998.
Claimant stated that she was told by Paul Carter at the Employer that her position in Utilization Review was only temporary since they had no position available although the work was there. Claimant stated that in May 1 998, she took personal leave for a trip with her daughter to college. Claimant said that while working during that period of time, she had physical problems since she was taking several prescriptions making her drowsy and unable to drive.
Claimant testified that a position in Utilization Review opened and was posted, but she was told by Burkhalter not to apply. She said Burkhalter had already filled the position, and she felt that Burkhalter would not hire her anyway due to her disability. Claimant stated that while in Utilization Review, she was required to punch a time clock although others in the department were salaried.
Claimant said she had applied for a position in Utilization Review before her work accident in October 1 996 and was not hired. However, when she later worked in that department, she found herself handling mostly phone work. She felt that she was not functioning properly in that position since her prescription medication interfered with her work and altered her thinking. She felt sleepy and drowsy, which affected her work.
Claimant stated that she continues to have pain and can no longer handle household duties. She says she is required to sit periodically in order to relieve her pain and that she has to lie down 6 hours a day. She said that sitting while working in Utilization Review caused her pain. She felt that walking irritated her hip and leg pain. She also felt that she could not concentrate due to headaches, as well as neck and shoulder pain.
Claimant stated that while in Utilization Review, she was never offered the use of headsets to wear while working. She stated that although she knew others in the hospital had used headsets, she had never been offered the headsets. Claimant testified that if she had been able to work without restrictions, she wished to have more patient contact than she had in Utilization Review. She admitted that there were other workers in Utilization Review that had disabilities accommodated by the Employer.
Claimant testified that she was hospitalized in June 1 998. She said that after her discharge, she returned to work from August until approximately October 1 998. She stated that while working in that time period, she had severe neck pain, headaches, blurred vision, and fever. She went to the emergency room and thought her pain was due to her back and neck injuries. Claimant said she began pain management treatment in May 1 999. After pain management treatment, Claimant admitted that Dr. Millette told her to try to return to work.
Claimant stated that she was contacted by Ms. Cooper at the Employer, who had scheduled her to work Mondays, Wednesdays and Fridays in Ocean Springs in the Risk Management Department. Claimant said she told Ms. Cooper that she could not work eight hours a day or drive to Ocean Springs due to her physical problems. She reported to Ms. Cooper that she would be required to lie down periodically while working. Claimant agreed that when Dr. Millette released her in December 1999 or January 2000, she did not attempt to return to work at the Employer.
Claimant testified that she requires assistance in getting in and out of her car and in grocery stores. She says she cannot reach or lift. She also recalled that her leg gave way causing her to fall two times in the last two months. She related that her leg "draws up" with muscle spasms at night. She felt that although the physicians told her to try to go back to work, they essentially told her that she could not return to work.
Claimant testified that the Employer did not offer her a position with less than eight hours per day. She said she resigned from the Employer on December 10, 1 999, so she could draw her retirement and pay her bills. She said that she had to pay her health insurance while receiving temporary total disability payments which took most of the money.
Claimant felt that she no longer fit the job description of a nurse. She said she could not even inflate a blood pressure cuff. She said since her work accident, her pain has increased. However, she admitted she was in better shape when she first returned to work than she presently is. Claimant says she can only drive short distances since her muscles "collapse" and her hands fall off the wheel. Claimant says she takes approximately nine prescription medications at certain scheduled times during the day. She felt she could no longer work in Utilization Review, which she said was stressful due to her lack of concentration.
Claimant recalled that she received a letter from Dr. Laseter in August 1 999, but she was being treated by Dr. Millette at that time. She did not know Dr. Millette had released her to return to work until October 1 999, when Ms. Cooper called her and told her she had been released. However, Claimant said that Dr. Millette only wanted her to attempt to work, and he never told her that she could work full-time or even eight hours per day.
Ms. Sandra Cooper testified for the Employer. She is the Employee Health Nurse and Nurse Recruiter for the Employer. Cooper did not recall telling Claimant to report to work at Ocean Springs. She said she last talked to Claimant by phone in October 1 999. Cooper confirmed that it was the Employer's policy to bring employees back to work within their restrictions.
Ms. Cheryl Hatten testified for the Employer. She is the supervisor of the Utilization Management Department for the Employer. She confirmed that Claimant worked in her department in November 1 997. Hatten testified that people working in the Utilization Management Department are required to be registered nurses with 2 to 4 years of clinical experience. She said that job duties included telephone reviews and medical record reviews of patients.
Hatten said Claimant had applied for a position in her department in May 1 996, which was before Claimant's work accident. Claimant was not offered a position. Hatten confirmed that Claimant requested again in June 1 997 to be placed in her department, but again Claimant was not offered a position. Hatten testified that there was a lot of competition for the positions.
Hatten stated that an employee in the Utilization Management Department worked Monday through Friday with no weekends and no overtime. She stated that employees lift only the paperwork contained in binders or notebooks and were able to sit or stand as needed. She said no pushing, pulling or lifting of patients was required.
Hatten confirmed that Claimant worked in her department around Thanksgiving, 1997. Hatten tried to accommodate Claimant with time off for physician visits or illnesses. Hatten said there were some workers in her department with disabilities who performed the job requirements with no problems. She agreed that a position was made for Claimant due to Claimant's disability. Hatten said she received a call from the administrator requesting her to do so. However, she felt Claimant's performance was excellent. She saw no significant problems with Claimant's work. Hatten said that the work performed by Claimant was necessary to her department. She said that although accommodations were made for Claimant, the job already existed and was not created for her.
Mr. Paul Carter testified for the Employer. He has been at the Employer for eighteen years and is the Director of Human Resources. He confirmed that in his previous position as assistant director, he was involved in recruiting Claimant for her first position at the Employer. He said Claimant was a staff registered nurse in orthopedics on the date of her work accident. He testified that the Employee Health Nurse evaluated Claimant's restrictions and felt that Claimant could not return to work in her previous position. He said Claimant was initially assigned as a patient education nurse, then she was moved to the Utilization Review Department.
Carter testified that Claimant was put in Utilization Review because the job description fit within her restrictions and was within Claimant's experience and abilities. He recognized that Claimant needed some orientation to the job since she was not experienced in that area. He confirmed that Claimant returned to work at the same rate of pay as before her work accident.
Carter said Claimant was added to Utilization Review before a vacant position was available. However, he said later a position became open, so he moved her into that permanently with no reduction of pay. He testified that there was work in that department for Claimant to perform since the department was expanding.
Carter said that Claimant did not request a transfer to another position. However, he felt Claimant expressed a lack of interest in working any position with the Employer in the last two years. Claimant complained of pain and problems with prescription medication affecting her ability to work. He did not recall having offered Claimant a position in Ocean Springs. He may have notified Claimant of an opening there, but he did not tell Claimant that would be a permanent assignment. Carter said Claimant did not attempt to return to work after DecBmber 1999 when Dr. Millette wrote a letter. He said she had not also tried to return to work after she reached maximum medical improvement in July 1999.
Carter testified that if Claimant were to return to work at the Employer at the present time, they would try to place her in a position to match her experience and restrictions. However, he stressed that Claimant's attendance would be important. He said the Employer was trying to get Claimant back to work at the same rate of pay.
Ms. Donna Burkhalter testified for the Employer. She was Director of the Utilization Review Department until her retirement in March 2000. Burkhalter confirmed that her department employees do occasionally rotate to Ocean Springs to cover absences. She denied telling Claimant about a permanent position in Ocean Springs. Burkhalter testified that Claimant missed a lot of work. She had no plans of terminating Claimant since Claimant had enough work to keep her busy.
Burkhalter confirmed that the first time Claimant worked in Utilization Review, Claimant was considered an "overhire." Burkhalter told Claimant that she was not a permanent employee since no position was open at that time. She agreed that Claimant was paid hourly and not a salary like other employees in the Utilization Review Department.
Burkhalter testified that if Claimant were to return to work at the present time, there would be work for her to do. Burkhalter agreed that she needed workers with good attendance, and who would be alert and be able to handle the details of the work. She felt that to a certain extent, workers in her department have to be assertive. She confirmed that she originally hired Claimant since Claimant needed light duty work.
MEDICAL EVIDENCE
Dr. John Cope, orthopedic surgeon, began treating Claimant on November 11, 1996, for her work accident. His history was that Claimant had fallen from a chair at work and hit her back, neck, and right shoulder as well as injuring her legs and hips. Dr. Cope said Claimant was referred to him by Dr. Hilburn.
On the initial visit, Dr. Cope noted that Claimant was complaining of pain in her right shoulder, neck, and low back with some numbness and tingling in her right hand. He diagnosed Claimant with biceps tendinitis or impingement syndrome in her right shoulder, cervical strain, lumbar strain, and possible carpal tunnel syndrome.
Dr. Cope found Claimant's neurological exam to be normal except for nerve compression at the wrist on the right. The range of motion in Claimant's back was normal, and her lower extremity neurological examination was normal. Dr. Cope said x-rays of Claimant's cervical and lumbar spine and the right shoulder appeared normal.
Dr. Cope treated Claimant conservatively, took her off work, and saw her again on November 1 9, 1 996. At that time, Claimant told Dr. Cope that she had been diagnosed with carpal tunnel syndrome over a year prior. Dr. Cope said the EMG and nerve conduction tests were normal. However, he felt that the x-rays and the arthogram suggested Claimant had a torn rotator cuff in her right shoulder.
In January 1 997, Dr. Cope noted Claimant was complaining that her neck and low back pain were more pronounced on the left side. However, Dr. Cope found Claimant's straight leg raising test was still negative. He also found her hip motion to be normal. He recommended Claimant undergo a lumbar MRI after the rotator cuff surgery.
Dr. Cope performed rotator cuff surgery on Claimant on January 8, 1 997. He discharged her from the hospital on January 1 2, 1 997, four days later. After the surgery, Dr. Cope continued to treat Claimant and noted that her lumbar MRI was normal with no acute abnormality.
Claimant continued to complain to Dr. Cope of shoulder pain increasing after the surgery. Dr. Cope thought Claimant had a possible low pain tolerance since he found no obvious abnormality in her shoulder after repairing her rotator cuff. In March 1 997, Claimant's shoulder pain had improved. Dr. Cope recommended Claimant undergo physical therapy and remain off work. Dr. Cope wrote that Claimant should continue to be off work for her shoulder until she had the gastric by-pass in February 1 997, but after the by-pass (until they could resume active treatment of her shoulder), Claimant should be off work solely because of the by-pass.
On April 7, 1 997, Dr. Cope released Claimant to light-duty, office-type work. He decided that Claimant's pain in her right thigh was possibly related to her recent weight loss from the gastric by-pass. He recommended Claimant continue physical therapy. On May 8, 1 997, Dr. Cope felt Claimant had some degree of symptom magnification. He said, "I really can't explain why she has been in so much pain." He suggested a second opinion as well as a work capacity evaluation.
On June 2, 1 997, Dr. Cope said Claimant would have some residual difficulty following the rotator cuff repair, but Claimant did not seem to put out maximum effort in evaluations. He felt Claimant should remain on light duty status and have a functional capacity evaluation.
Dr. Cope placed Claimant at maximum medical improvement on June 16, 1997. He gave her a ten percent (10%) permanent partial impairment to her arm and restricted her from lifting greater than ten (10) pounds. He reviewed a copy of Claimant's functional capacity evaluation, but he noted there were some inconsistencies in her efforts.
Dr. Cope saw Claimant again approximately a week later, at which time Claimant continued to complain of having problems working with pain. He wrote, 'It is my honest opinion that Ms. Johnson is capable of doing more than she admits, but she does have significant limitations referable to this shoulder." Dr. Cope again decided Claimant should lift no more than ten (10) pounds, perform no overhead work, avoid repetitive shoulder flexion of greater than 60 degrees, and avoid pushing or pulling greater than 20 pounds.
Dr. Cope saw Claimant approximately three months later in September 1997. At that time, Claimant was still complaining of pain in her shoulder and lower back. He treated Claimant two additional times. An arthogram and x-rays of Claimant's shoulder showed Claimant had no further evidence of tearing in her rotator cuff. Dr. Cope referred Claimant to Dr. John McCloskey for her lower back problems. On the last visit in October 1 997, Claimant still complained of severe back and leg pain. Dr. Cope also suggested Claimant see Dr. Laseter for chronic pain control. He released Claimant from his care.
Dr. John McCloskey, neurosurgeon, first saw Claimant on January 16, 1996, for complaints of numbness, aching, and weakness in hands; low back and left leg pain; numbness in feet; neck pain and headache. This was approximately nine months before her work accident at the Employer in October 1996.
In January 1 996, Dr. McCloskey diagnosed Claimant with possible lumbar disc syndrome, bilateral carpal tunnel syndrome, chronic neck pain, and headaches. He noted that Claimant had a history of having a back injury in 1 985. He agreed that a myelogram at that time was negative. Dr. McCloskey said that Claimant had returned to work in January 1 996, and he did not see her again until the October 1 997 visit. Dr. McCloskey thought Claimant had returned to work and had been working up until her October 25, 1 996, work accident.
Dr. McCloskey did not see Claimant again until October 7, 1 997, after referral by Dr. John Cope. Claimant reported to Dr. McCloskey that she had been injured approximately a year prior when she fell at work. Claimant told Dr. McCloskey that she hurt her right shoulder, neck, back, and leg. On the initial visit, Dr. McCloskey noted,
Dr. McCloskey did not recommend surgery. He did not see Claimant again until she was hospitalized by Dr. Roth in June 1998. However, Claimant called in December 1997 still complaining of pain, so Dr. McCloskey referred Claimant to Dr. Jeffrey Laseter.
Dr. McCloskey consulted with Dr. Roth when Claimant was in the hospital in June 1 998. He repeated the MRI scans of her cervical and lumbar spine but noted that the tests did not show anything new. In July 1 998, Dr. McCloskey wrote, "According to the history available to me, the majority of the problems she is having at this time are in some way related to her job injury of October 1996." Dr. McCloskey noted, however, that he was not Claimant's primary treating physician. Dr. McCloskey referred Claimant to Dr. John Wyatt, a physiatrist. Dr. McCloskey testified that he would defer to Dr. Wyatt's opinion on Claimant's treatment and maximum medical improvement date.
Dr. McCloskey clarified that Claimant's lower back problems were pre-existing to her October 1 996 fall at work. He based that opinion on the fact that he treated Claimant for her lower back problems prior to the work accident. He felt that her complaints were the same type of problems that she had prior to the accident. Dr. McCloskey said that his opinion of Claimant's problems being related to the work injury was based on Claimant's history that since the accident she has been totally incapacitated. He did not feel that there was an identifiable anatomic problem other than the mild disc bulge, which he said Claimant had before the work accident.
Dr. McCloskey referred Claimant to Dr. Jeffrey Laseter for treatment of the chronic pain she was having. He did not have any discussions with Claimant about Dr. Laseter's treatment because he was not following her at the time.
Dr. Jeffrey Laseter, pain management specialist, began treating Claimant on January 23, 1 998, over a year after her work accident. Dr. Laseter treated Claimant for low back pain and diagnosed her with a displaced lumbar disc with disc bulge at L-5, myofascial pain, and psychological factors affecting Claimant's physical condition. Dr. Laseter said Claimant also complained at the initial visit that she had right neck, right shoulder, left hip, left leg, and right hip pain. He recommended epidural steroid injections and a chronic pain program. Claimant refused the chronic pain program, but she did undergo the epidural injections.
Dr. Laseter explained that Claimant's psychological factors were caused by her having out-of-proportion pain and that her physical findings were not compatible with her complaints. Dr. Laseter found that Claimant had no muscular weakness in her upper extremities and no atrophy in either her upper or lower extremities. He found Claimant to have symptom magnification. Dr. Laseter's impression of the nerve conduction report from Dr. Millette showed motor sensory neuropathy in Claimant's lower extremities. He said that there was only a mild delay in the conduction of Claimant's nerves and that the EMG performed was normal.
On March 17, 1998, Dr. Laseter noted that Claimant was still complaining of mainly low back pain, but that she was also complaining of neck, shoulder, and bilateral leg pain. Claimant reported absolutely no relief from the injections. In April 1 998, Dr. Laseter continued to conservatively treat Claimant. In June 1 998, Dr. Laseter noted that Claimant recently had been admitted to the hospital for low grade fever and neck pain. He reviewed what other physicians had done for Claimant and still recommended the chronic pain program for Claimant. He also recommended that Claimant see a rheumatologist.
On January 8, 1 999, Dr. Laseter saw Claimant and summarized the recent diagnostic tests. He noted that Claimant had a normal bone scan, normal MRI of the brain, normal venous ultra-sounds, normal cervical MRI, normal CT of her brain, normal cervical and thoracic myelogram and post-myelogram CT scans, but that an MRI of her lumbar spine showed degenerative disc disease and a small disc bulge at the L4-5 with no disc herniation. Dr. Laseter said that Claimant's shoulder arthogram showed some irregularity of the under-surface of the supraspinatus tendon that could have been post-surgical changes and inflammation.
Dr. Laseter felt that Claimant's only viable option was a chronic pain
program. He did not know why Claimant had refused to undergo the
program in June 1 998. In May 1 999, Dr. Laseter testified that Claimant
was involved in the Regional Pain Center
Program at Singing River Hospital. He said that although initially
there was little response, Claimant started showing some signs of improvement.
In July and September 1 999, Dr. Laseter noted that Claimant had limited success with the Regional Pain Center Program. He wrote that Claimant was still quite pain focused and somatizes quite a bit." On September 16, 1999, Dr. Laseter opined that Claimant could return to light duty work with limited bending, forward flexion, and overhead work. He said she should not lift over 10 pounds and should have a headset for her telephone.
On May 20, 1 997, Dr. Charles Winters, orthopedic surgeon, evaluated Claimant for the Employer. Dr. Winters noted Claimant's history of a fall at work, injuring her shoulder, head, and low back. He examined Claimant and reviewed her medical records. Dr. Winters diagnosed Claimant with right shoulder pain status post rotator cuff repair, trigger points right posterior shoulder, and atypical weakness and numbness in the right hand.
Dr. Winters opined that Claimant's right hand problems were not related to the work accident. He recommended therapy for Claimant's right shoulder. Dr. Winters said Claimant should have a 10% permanent medical impairment to her right arm due to Claimant's loss of flexion and abduction.
Dr. John Wyatt, physical medicine and rehabilitation specialist, saw Claimant on November 13, 1 997, for an employer medical evaluation. He reviewed medical records and diagnostic tests. Dr. Wyatt said the disc at Claimant's L4-5 level appeared to "cast a shadow" over the right nerve root. However, he decided that the MRI's failed to show any significant interval change between January 1 996 and October 1 996 (when Claimant had her work accident).
Dr. Wyatt agreed with Claimant's maximum medical improvement date and the 10% permanent impairment to Claimant's right shoulder for the rotator cuff surgery.
He opined Claimant had a 5% permanent medical impairment for her low back disc bulge. Dr. Wyatt felt there was a high degree of probability that there was a direct relationship between her October 1 996 fall at work and her subsequent disc bulge. He limited Claimant to no more than 10 pounds lifting.
Dr. Okechukwu Ekenna, infectious disease specialist, saw Claimant for a consultation on June 1 5, 1 998, regarding a fever. He diagnosed Claimant with a low grade fever with a negative work-up; chronic pain syndrome; clinical depression; chronic fatigue; and mild to minimum eosinophilia.
Dr. Michael Fromke, neurosurgeon, saw Claimant on September 22, 1 998, for an employer medical evaluation. He reviewed the medical records and diagnostic tests, and he performed an examination of Claimant. Dr. Fromke noted Claimant's complaints of pain in her entire cervical, thoracic and lumbar regions; pain and numbness in her bilateral upper and lower extremities; and tension headaches.
Dr. Fromke opined that Claimant had no permanent medical impairment rating. He said her neurological examination and diagnostic tests were essentially normal. He found no neurological deficit and no evidence of any cervical or lumbar radiculopathy. Dr. Fromke also said Claimant had positive Waddell's findings representing non-organic findings of pain and portraying to a potential functional overlay to the pain state.
Dr. Fromke stated that Claimant's minimal and mild L4 spondylosis represented pre-existing, degenerative changes in light of the MRI performed in January 1 996 - before the work accident. He agreed with Claimant's previous diagnosis of fibromyalgia, but he said it was pre-existing. Dr. Fromke said, "The pain syndrome may possibly represent an aggravation of the pre-existing fibromyalgia but the prognosis here would be excellent."
Dr. Terrence Millette, neurologist and psychiatrist, began treating Claimant in October 1 998 for cervical and lumbar problems. He took Claimant off work on October 22, 1998, and recommended Claimant enter a regional pain clinic, which she later entered and completed. Dr. Millette felt Claimant's problems were consistent with her work accident.
On September 10, 1999, Dr. Millette diagnosed Claimant with cervical myofascial pain with resulting headaches, mechanical lumbar pain (which he said meant Claimant did not have a disc problem to account for her lumbar pain), and depression by history. He said Claimant could return to work initially at 20-30 hours per week in a clerical sedentary work with plans to increase her requirements accordingly.
In October 1 999, Dr. Millette wrote that he reviewed Dr. Cope's records and consulted with Dr. Steve Smith (psychologist). Dr. Millette said Claimant could return to work at the Employer 40 hours per week with the restrictions placed by Dr. Cope for her shoulder and Dr. McCloskey for her back. He did not feel Claimant was a surgical candidate, but he diagnosed Claimant with chronic pain syndrome with dysphoria. Dr. Millette stated that the dysphoria was premorbid and probably worsened due to her physical problems.
Dr. Millette did not place any physical restrictions on Claimant. From a physical neurologic standpoint, Dr. Millette testified that Claimant could return to work in the Utilization Review department at the Employer. He said Claimant also had longstanding, degenerative joint disease in her left hip. As to Claimant's diagnosis and prognosis, Dr. Millette testified,
Dr. William Smith, II, psychiatrist, first saw Claimant in June 1998 as a consultation requested by Dr. Randy Roth. At that time, Dr. Smith diagnosed Claimant with major depressive disorder related to her chronic pain. Dr. Smith also consulted with Dr. Steve Smith, a consulting psychologist. The psychologist administered tests which he found to have invalid test results, although he still found evidence of a clinical level of depression. The psychologist said Claimant's responses were not uncommon in individuals who are being evaluated as part of an employment interview or who are involved in any sort of litigation.
Dr. Smith saw Claimant again in May 1999, at Dr. Laseter's request. His diagnosis remained essentially the same - that Claimant had a depressive disorder not otherwise specified, secondary to a chronic pain syndrome. Dr. Smith began treating Claimant while she was undergoing pain management at the pain center.
As of February 2000, Dr. Smith testified that Claimant had a "fairly significant somatoform disorder" that was related to Claimant's underlying anxiety component to her depressive syndrome. He felt Claimant's October 25, 1996, work accident essentially transformed her from a productive person into a disabled person." He called Claimant's condition "negative transference," saying Claimant felt rejected by and hostile towards "the system" of the Employer and the workers' compensation process.
Dr. Smith's opinion was that Claimant's total disability was permanent. Dr. Smith opined that Claimant had an extreme case of anxiety preventing her from functioning in an independent manner for any length of time needed in order to work full-time. He related Claimant's psychiatric condition to her injuries of October 25, 1 996. Dr. Smith testified,
Dr. Smith testified that he relied mostly upon Claimant's history and that he reviewed some medical records from her treating physicians. However, he was unable to recall all of the records he had reviewed.
Dr. Henry Maggio, forensic psychologist and neurologist, evaluated Claimant on March 8, 2000. He reviewed Claimant's medical records and physicians' depositions. Claimant complained to Dr. Maggio of sleep disturbance, poor coordination, and pain all over her body with spasms in her neck, mid and lower back, and legs. Claimant told him that she was never pain free and that she hurt sitting, standing, walking, or reclining. She felt she could not stay in one position more that 1 5 minutes at a time or drive a vehicle. Dr. Maggio said Claimant imposed those restrictions on herself.
Dr. Maggio diagnosed Claimant with pain disorder associated with psychological factors and a general medical condition (chronic pain syndrome), dysthymic disorder (low grade depression), adjustment disorder, and personality disorder with dependent personality traits, avoidant personality traits, histrionic personality traits, and borderline personality traits. Dr. Maggio noted that there was a suggestion by another physician that Claimant might have fibromyalgia. He said fibromyalgia "is not caused by a fall or an accident."
Dr. Maggio discussed Dr. Smith's diagnosis and opinion that Claimant had somatoform disorder which was disabling. He pointed out that Dr. Smith's diagnosis was based upon subjective complaints and other stressors. Dr. Maggio testified, "There is no way, in my opinion, that this could come about as a cause and effect relationship from having a chair fall out from under her." He went on to explain,
DECISION
I base the following findings on a preponderance of the evidence, including medical proof as required by the Mississippi Workers' Compensation Law:
1. Claimant sustained a work-related injury to her right shoulder on October 25, 1996, as stipulated. She has further met her burden of proof that she suffered a work-related injury to her lower back. Dr. McCloskey opined Claimant's lumbar problems were related to the work accident, but clarified that his opinion was based upon Claimant's representations. However, Dr. Wyatt and Dr. Millette also decided Claimant's low back problems were causally related to the work accident in October 1 996. Therefore, I find sufficient medical and lay evidence exists to find Claimant's claim for her low back injuries to be compensable.
Claimant has not met her burden of proof that she suffered from work-related neck and leg injuries, chronic pain or psychological overlay. There was insufficient medical and lay evidence to establish a causal connection between Claimant's work accident and any further injuries. Moreover, Claimant has failed to establish by clear evidence that any psychological components she may have are related to her work accident and/or resulting physical injuries.
2. Claimant's average weekly wage on the date of her work accident was $594.06.
3. Claimant reached maximum medical improvement for her right shoulder on June 1 6, 1 997, as per Dr. John W. Cope. Claimant reached maximum medical improvement for her lower back injury on September 1 6, 1 999, the date set by Dr. Laseter. This date is in accordance with Dr. Millette's opinion that in September 1999, Claimant could return to work part-time with a resulting increase in hours by October 1999.
4. Claimant was temporarily, totally disabled from November 11, 1996, the date Dr. Cope took Claimant off work due to her right shoulder injury, until April 7, 1 997, the date Dr. Cope released Claimant to return to light-duty work at the Employer, and again beginning October 22, 1998, the date Dr. Millette took Claimant off work due to her back problems, until September 16, 1999.
5. As to permanent disability, Claimant has a 10% permanent medical impairment to her right upper extremity due to her October 25, 1 996, work accident. She also was given permanent physical restrictions by her treating specialist, Dr. Cope, of no lifting over 10 pounds, no overhead work, no repetitive shoulder flexion greater than 60 degrees, and no pushing or pulling over 20 pounds. Claimant's physicians all seem to agree that she cannot return to work as a floor nurse as she had worked before her accident. Considering the evidence as a whole, Claimant has proven a 30% industrial loss of use to her right upper extremity.
As to her low back injury, Claimant has not proven her entitlement to permanent disability benefits. While she may have proven a physical impairment to her low back, she has not proven a resulting loss of wage-earning capacity since she did not attempt to return to work at the Employer when released by Dr. Laseter and Dr. Millette in September 1 999 and she did not look for work elsewhere. Therefore, Claimant's claim for permanent disability benefits for her low back injury is denied.
6. There is no remaining issue to be decided regarding the reasonableness and necessity of the medical treatment, as stipulated.
7. Claimant is entitled to recover penalties and interest as provided by the Act on any installments of disability not timely paid.
ORDER
IT IS THEREFORE ORDERED AND ADJUDGED that the Employer pay and provide compensation benefits to the Claimant as follows:
1. Temporary total disability benefits of $264.55 from November 11, 1 996, until April 7, 1997, and again beginning October 22, 1998, until September 16, 1999. There shall be added to each installment of compensation not timely paid the equivalent of ten per cent (10%) thereof as provided in Miss. Code Ann. §71-3-37(5) (Rev. 1 995) together with interest at the legal rate from and after the date the petition was filed. Employer is entitled to proper credit for any wages earned by Claimant or any such payments of compensation heretofore made to Claimant.
2. Permanent partial disability benefits of $264.55 beginning April 8, 1 997, and continuing for a period of 60 weeks as compensation for disability to Claimant's right upper extremity. There shall be added to each installment of compensation not timely paid the equivalent of ten per cent (10%) thereof as provided in Miss. Code Ann. §71-3-37(5) (Rev. 1 995) together with interest at the legal rate from and after the date the petition was filed. Employer is entitled to proper credit for any such payments of compensation heretofore made to Claimant.
3. Pay for, furnish and provide to Claimant all reasonable and necessary medical services and supplies as the nature of her injury or the process of her recovery may require in accordance with Miss. Code Ann. §71-3-15 (Rev. 1995) and the Medical Fee Schedule.
SO ORDERED AND ADJUDGED this the 7th day of February, 2001.
TAMMY GREEN HARTHCOCK
ADMINISTRATIVE JUDGE
ATTEST:
Jo Ann McDonald, Comission Secretary