MWCC NO. 96 06693-G-3481
KINOA SMITH CLAIMANT
VS.
GRAND CASINO, GULFPORT
EMPLOYER
AND
INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA
CARRIER
REPRESENTING CLAIMANT:
Honorable Mark W. Davis, Attorney at Law, Gulfport, Mississippi
REPRESENTING DEFENDENT:
Honorable Ronald T. Russell, Attorney at Law, Gulfport, Mississippi
FULL COMMISSION ORDER
The Commission heard the above styled cause on September 24, 2001 in the offices of the Mississippi Workers' Compensation Commission, Jackson, Mississippi on the Employer/Carrier'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 January 16, 2001.
SO ORDERED, this the 25th day of September, 2001.
MISSISSIPPI WORKERS' COMPENSATION COMMISSION
BY: BEN BARRETT SMITH
BARNEY SCHOBY
ATTEST:
Jo Ann McDonald, Secretary
MWCC NO. 96 06693-G-3481
KINOA SMITH CLAIMANT
VS.
GRAND CASINO, GULFPORT
EMPLOYER
AND
INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA
CARRIER
REPRESENTING CLAIMANT:
Mark W. Davis, Esq., Gulfport, Mississippi
REPRESENTING DEFENDENT:
Ronald T. Russell, Esq., Gulfport, Mississippi
ORDER OF TEH ADMINISTRATIVE JUDGE
The claimant alleges a work-related injury to her lower back in April of 1996. The defendants are accepting the initial injury but disputing the claimed extent of resulting disability. A hearing on the merits was held in Gulfport on May 10, 2000, after which the record was kept open pending submission of briefs by counsel for the parties. The defendants' brief was received on July 19, 2000 and the claimant's on September 15, 2000, after which the parties requested and were granted additional time to attempt to negotiate a settlement. By letter from defense counsel dated November 7, 2000 the parties announced that they were not able to reach an accommodation.
Stipulations/Evidentiary Matters
Prior to the hearing, the parties were able to stipulate to the following:
1. The claimant suffered a compensable low back injury on April 5, 1996 and gave proper notice;
2. The claimant's average weekly wage at that time was $200.43;
3. The claimant's cervical spine complaints are unrelated to her work injury;
4. The claimant missed work due to her low back injury from the date of the injury until May 15, 1996, at which time she returned to light duty at the Grand;
5. The claimant worked light duty until the first of her two automobile accidents on December 6, 1996;
6. The claimant gave birth to a child on December 29, 1996;
7. The claimant returned to light duty work at the Grand on February 14, 1997;
8. The claimant is not entitled to any temporary indemnity benefits during December
6. 1996 through February 14, 1997;
9. The claimant worked light duty from February 14, 1997 until June 20, 1997, at which time she took medical leave;
10. The claimant was terminated by the employer on July 23, 1997;
11. The claimant had her first low back surgery on August 29, 1997;
12. The claimant's second automobile accident occurred on April 28, 1998;
13. The claimant had her second low back surgery on February 19, 1999;
14. The claimant did not work at all between June 20, 1997 and February 19, 1999;
15. The claimant reached maximum medical improvement from her low back surgeries on June 10, 1999, per Dr. Danielson; and,
16. General Exhibits 1 - 8, as set out the Exhibit Inventory herein, were admissible in evidence.
During the hearing, a medical records affidavit from Columbia Garden Park Hospital was admitted without objection as Employer/Carrier Exhibit 9, a choice of physician form signed by the claimant was admitted without objection as Employer/Carrier Exhibit 10, and a medical leave of absence form signed by the claimant was admitted as Employer/Carrier Exhibit 11.
Summary of the Relevant Evidence
It is uncontested that the claimant began working as a cashier in a restaurant at the Grand in October of 1993, starting at $6.00 per hour; that her initial duties in addition to cashiering involved serving tables, mixing drinks, bussing tables occasionally, cleaning and mopping; that her cleaning duties involved bending and stooping to sweep and mop floors; that by the time she ended her employment at the Grand she was earning$6.75per hour; and that she was injured when she slipped on a wet restroom floor at the Grand on April 5, 1996, landing on her backside.
The claimant testified that she was taken to the hospital emergency room by a Grand security guard immediately following her accident; that she complained to the hospital staff of pain in her head, tail bone and right wrist; that X-rays were taken of her back and wrist, but she was not admitted to the hospital; and that she was released and given a prescription for pain medication. She said that she stayed off work the next two days and was then sent by the employer to Dr. Weaver, whom she saw on April 8; that she complained to Dr. Weaver of pain in her wrist and low back; that Dr. Weaver gave her a splint for her wrist and a brace for her back and sent her to physical therapy; and that Dr. Weaver released her to return to light duty work on May 15, although her low back was still giving her problems at that time. Ms. Smith testified that she next saw Dr. Corban in July of 1996, on referral from Dr. Weaver, and that Dr. Corban said she had a back strain. She said she then continued treatment with Dr. Weaver, who referred her to Dr. Wyatt in October of 1996; that she complained to Dr. Wyatt of wrist and low back pain and was sent to physical therapy for both her back and wrist; and that Dr. Wyatt referred her back to Dr. Weaver after seeing her only once or twice. She said that she had been working in another restaurant at the Grand, rolling silverware into napkins and stacking the rolls onto trays, since being released to light duty by Dr. Weaver in May; that she returned to Dr. Weaver after being released by Dr. Wyatt and prior to her first automobile accident in December; and that her low back complaints never resolved prior to that automobile accident.
Ms. Smith testified that her vehicle was struck by another on December 5, 1996 and she went to the Memorial Hospital emergency room in Gulfport complaining of pain in her head, neck and shoulders, as well as continuing pain in her low back. She said that she was admitted to the hospital by her OB-GYN, Dr. Moman, because she was pregnant at the time; that Dr. Moman had her examined in the hospital by Dr. Danielson, a neurosurgeon, because of her neck and back complaints; that she spent three days in the hospital following this accident; and that she returned to the hospital for the delivery of her child on December 29, 1996. The claimant said that she next saw Dr. Danielson at the end of January 1997, at which time he took X-rays and ordered an MRI, based on her complaints of wrist, neck and low back pain.
The claimant testified that she returned to work at the Grand on February 14, 1997; that she was assigned to full duty, including bussing of tables, in the same restaurant where she had first worked, Nifty Fifties; that after about a week she complained to her supervisor because the bussing was causing her problems; and that she was then given lighter duties at Nifty Fifties, where she continued to work until June of 1997. She said that she asked for medical leave on June 27 when she could no longer do the work because the ice cream scooping and cleaning duties were hurting her back; that Dr. Danielson had performed a myelogram of her entire spine earlier that month and then given her a note saying she was temporarily totally disabled; that she gave this note to Emma Johnson in the Grand's personnel office at the time she applied for medical leave; that she was told at this time that she would have to return to work in July or be terminated because of the total of her accumulated leave hours; and that she was indeed terminated when she did not return to work in July.
Ms. Smith stated that Dr. Danielson performed out-patient surgery at Memorial Hospital on her low back on August 29, 1997; that after surgery she continued to see Dr. Danielson, who prescribed physical therapy and medications; that she was still under Dr. Danielson's care when she was involved in her second motor vehicle accident on April 28, 1998; and that she did not work at all between the date of her back surgery and the date of her second auto accident. She testified that she again went to the Memorial emergency room following her second wreck; that she followed up with one visit to Dr. Broussard, a general practitioner; that she was still suffering from the same pain as before in her low back; that she returned to Dr. Danielson, who ordered a second myelogram of her low back in December of 1998; that Dr. Danielson then recommended another surgery at the L4- 5 level, which he performed at Memorial on February 19, 1999; that she spent several days in the hospital following this surgery and then continued treatment with Dr. Danielson until he released her on June 10, 1999; and that she had not seen Danielson since he released her in June of 1999.
Ms. Smith testified that she began looking for other work in the fall of 1999, applying unsuccessfully for office/clerical jobs at Memorial Hospital, Hancock Bank, South Trust Bank, the city water company in Gulfport and the Harrison County court services office. At the time of the hearing she was providing child care services in her home under a state program that paid her approximately 5200.00 a month. She said her low back was still bothered by lifting, such that she could not lift her child, nor could she do a lot of sweeping or mopping.
On cross-examination, Ms. Smith stated the employer made the appointment for her to see Dr. Weaver after her accident in April 5, 1996; that she did not choose Weaver, nor did she recall signing a choice of physician form designating Weaver (Ex. 10); and that she had never seen Weaver and did not know of him before that time. She acknowledged that she had seen a Dr. McNally for a prior wrist injury at the Grand Casino and had not liked him.1 She also acknowledged that her first auto accident in December of 1996 caused her to feel something "pop" in her back, that her back pain increased significantly after this accident, and that she was taken by ambulance to the Memorial emergency room following the accident. She said she called her supervisor at the Grand to report this accident, that Dr. Moman took her off work following this accident, that she then applied for a leave of absence based on both the effects of the accident and her pregnancy, and that she had never seen Dr. Danielson prior to his examination of her during the December 1996 hospital stay. She also acknowledged signing the medical leave of absence form placed in evidence as Employer/Carrier Exhibit 11, which form is dated June 20, 1997, indicates that the leave was being taken under the Family and Medical Leave Act and was not related to workers' compensation, gives as the reason forr the requested leave the claimant was a 'possible surgical candidate.' and indicates that the claimant was expected to return to work no later than July 11, 1997. Ms. Smith conceded that she had not attempted to return to work at the Grand since beginning that leave of absence on June 20, 1997, other than calling the Grand's job service line on one occasion.
On further cross-examination the claimant stated that she saw Dr. Broussard after her second auto accident on the recommendations of her attorneys, who paid for her one visit there. She said that Dr. Broussard referred her back to Dr. Danielson, that she returned to Danielson in November of 1998 and told him at that time about her second vehicle accident, that he ordered more diagnostic studies at that time, and that her treatment by Dr. Danielson was paid for by Medicaid. Ms. Smith testified that she began taking classes in business and computer technology at Gulf Coast Community College in the summer of 1998; that she had been taking two classes per semester there ever since, attending two nights a week for over four hours per night; that she was paying for school with a grant; and that she had not looked for any other work since starting the child care work in her home in July of 1999, because it was "more convenient to work at home and go to school."
On redirect examination Ms. Smith explained that she requested the leave of absence in June of 1997 because Dr. Danielson told her not to work; that no one actually told her at that time that she would be fired when her leave expired; that a supervisor, Gary Johns, called her on July 4, 1997 and told her she needed to come back to work; and that when she told him she couldn't return, he told her she would be terminated.
The claimant called Emma Johnson, the Grand's workers' compensation coordinator, as an adverse witness. Ms. Johnson testified that the Grand normally used Dr. McNally with the Work Care clinic at Memorial Hospital in Gulfport as the initial treating physician in workers' compensation cases; that a Work Care employee informed Ms. Johnson that the claimant did not like Dr. McNally, so the claimant was given the option of seeing another physician following her April 1996 accident; that she could not recall who brought up the name of Dr. Weaver initially; that the that the Grand had "probably" referred injured employees to Dr. Weaver before, as he was affiliated with Memorial; and that the claimant chose Dr. Weaver by signing the choice of physician form on May 16, 1996 (Ex. 10). 2
Ms. Johnson said that when the claimant took a leave of absence in December of 1996 it was because of her automobile accident and pregnancy, and was not related to the workers' compensation claim. She testified that when Ms. Smith returned to work in February of 1997, the same light duty restrictions would have been in effect as before the leave of absence; that the claimant never notified her that the medical leave of absence requested in June of 1997 was related to her work injury; that the claimant never requested workers' compensation approval for her first back surgery in August of 1997; that the claimant never returned to work nor called regarding a return to work after June of 1997; and that the claimant called her in March of 1998 wanting to know the names of the doctors who had treated her for the work injury, saying at that time that she had recovered from the work injury and needed the doctors' records in relation to her auto injury.
Records from Memorial Hospital at Gulfport regarding the claimant's initial treatment there on April 5, 1996 are in evidence as Exhibit 1. These records indicate that Ms. Smith was at first assigned to Dr. McNally, but there is a handwritten notification indicating she would follow up with Dr. Weaver on April 8, 1996.
Records under affidavit from Dr. Donald Weaver are in evidence as Exhibit 2, and his first dated report is from April 15, 1996. Dr. Weaver's records confirm that he treated the claimant for lumbar strain and left wrist sprain until October of 1996, that he refrained from ordering an MRJ of her back because cause of her pregnancy, that he released her to return to restricted duty work on May 15, 1996 after a course of physical therapy, that he referred her to Dr. Tim Jackson for an orthopedic evaluation of her wrist in July of 1996, that he referred her to Dr. Magruder Corban for an orthopedic evaluation of her back in September of 1996, and that he officially released her by note dated April 7, 1997 when she did not keep a November 1996 appointment and failed to contact his office again.
Dr. Corban's records under affidavit (Ex. 3) indicate he evaluated the claimant on July 19, 1996. diagnosing left wrist sprain and low back strain, with mild sacral contusion. Dr. Corban approved of her existing light duty restrictions, prescribed flexion exercises for her back and continued use of a splint for her wrist while working, and he scheduled her to come back in one month, although he did not believe an MRI of her back was indicated. The claimant apparently did not see Dr. Corban again.
Records under affidavit from Dr. John Wyatt, a physiatrist, are in evidence as Exhibit 4, and they indicate he ordered three weeks of additional physical therapy for the claimant's back after initially examining her on October 14, 1996. Dr. Wyatt released Ms. Smith to return to light duty after seeing her again on October 28, 1996, but she apparently did not keep a follow-up appointment with Wyatt scheduled for November 13.
Records from Memorial related to the claimant's three-day hospitalization following her motor vehicle accident on December 5, 1996 are in evidence under affidavit as Exhibit 5. These records indicate that Ms. Smith was taken to the hospital emergency room by ambulance, where she complained of headache and pain in her neck, left arm, left side and left hip; that she was admitted and kept for observation by Dr. Moman, principally because of her pregnancy; that Dr. Moman requested a neurological consultation by Dr. Danielson, which apparently took place sometime on December 7; and that Dr. Moman took the claimant off work at the time she released her from the hospital on December 8.
The deposition testimony and medical records under affidavit of Dr. Harry Danielson, a neurosurgeon, are in evidence as Exhibits 6 and 7, respectively, and they confirm that Dr. Danielson initially examined the claimant at the request of Dr. Moman during the claimant's hospital stay in December of 1996; that the claimant informed Dr. Danielson of both her April 5 work injury and her December 5 vehicle accident at that time; that Dr. Danielson determined during the hospital examination that it would do no good to see the claimant until she had delivered her child; and that he first examined her in his office on January 30, 1997, at which time she complained of low back pain, as well as pain in her left hip, pain and tingling in her left leg, pain in her neck and between her shoulders, pain and numbness in both upper extremities, and headaches. Dr. Danielson continued to treat the claimant for both low back and neck-related complaints throughout the following several months,3 and a lumbar myelogram and CT scan performed on June 4. 1997 revealed a herniated disk at L4-5. Dr. Danielson took the claimant off work as of June 18 and performed a percutaneous (puncture) diskectomy at L4-5 on August 29, 1997; he prescribed post operative physical therapy and then continued to see and treat the claimant for lumbar complaints during September. October and December of 1997. On December30, 1997 Danielson recommended repeat cervical and lumbar myelograms, and the claimant was to call when she was ready to schedule those tests, but his records and testimony indicate that his office had no further contact with her, and he did not see her again, until well after her second auto accident of April, 1998.4
The claimant testified that she was treated at Memorial and then by a general practitioner, Dr. Broussard, following her second wreck, but neither party provided any records from Dr. Broussard, and a search of Dr. Danielson's copious records did not reveal any copied records from Dr. Broussard. Dr. Danielson testified that the claimant contacted his office for a return visit in November of 1998, that he then instructed her to have the myelograms performed as previously ordered in December of 1997, and that he then saw her on January 5, 1999, at which time she was still complaining of low back pain, and her myelogram and CT scan from December 18 revealed she still had a disc hemiation at L4-5 with right L5 nerve root compression. It was Dr. Danielson's opinion that the percutaneous diskectomy performed in August of 1997 had not been a success (Ex. 6, pp. 16 & 49), and he determined further surgery was necessary to repair the disc, so he performed an open lumbar laminotomy and excision on February 19, 1999. Dr. Danielson continued to follow the claimant post-operatively and released her at maximum medical improvement on June 10, 1999, assigning at 10% permanent partial impairment rating to the body as a whole. He testified that the claimant would have a permanent restriction against lifting more than 25 - 30 pounds (Ex. 6, pp. 18 - 20).
Dr. Danielson was questioned at great length on the issue of the causation of the herniated disc at L4-5 which necessitated the two surgical procedures. In essence, it was his opinion that the slip and fall accident at the Grand on April 5, 1996 was a 50% contributory cause of the disc, with the first automobile accident of December 5, 1996 being the other 50% contributory cause. (See Ex. 6, pp. 21 -36).
Decision
Upon consideration of the record evidence and the applicable law, the Administrative Judge finds and concludes as follows:
1. The claimant suffered compensable injuries to her lower back and left wrist on April 5, 1996, as stipulated by the parties, and as supported by the evidence.
2. The claimant's average weekly wage at the time of her compensable injuries was $200.43.
3. The claimant was temporarily totally disabled from her low back injury from April 6, 1996 until May 15, 1996, as stipulated by the parties and as supported by the evidence from Drs. Weaver and Wyatt; she is thus entitled to temporary total disability benefits for this period of time.
4. The weight of the credible evidence, particularly the claimant's testimony and that of Emma Johnson, indicates that the employer chose Dr. Weaver as the initial treating physician following Ms. Smith's injury. Although the claimant signed a choice of physician form, this was not done until she had returned to light duty work more than five weeks following her injury.
5. The claimant worked light duty at the Grand from May 15 to December 6, 1996. as stipulated by the parties and as supported by the evidence; she is thus not entitled to any indemnity benefits for this period.
6. The claimant missed work from December 6, 1996 until February 14, 1997 due to her first automobile accident and her pregnancy, as stipulated and as supported by the evidence; she is thus not entitled to any indemnity benefits for this period.
7. The claimant returned to light duty work at the Grand on February 14, 1997 and worked light duty until June 20, 1997, as stipulated and as supported by the evidence; she is thus not entitled to any indemnity benefits for this period.
8. The claimant effectively selected Dr. Danielson as her treating physician of choice for her compensable low back injury as of January 30, 1997, the date of her first visit to his office, in accordance with Miss. Code Sec. 71-3-15(1). Dr. Danielson's neurosurgical evaluation of the claimant while she was hospitalized in December of 1996 is compensable under the "emergency exception" in Sec. 71-3-15(1).
9. All treatment provided to the claimant by Dr. Danielson from and
after January 30, 1997, as that treatment was related solely to her compensable
low back injury, was reasonable and necessary to the treatment of her compensable
injury, inclusive of the two surgeries performed on her herniated disc
at L4-5. Based on the expert testimony of Dr. Danielson, the claimant's
slip and
fall accident of April 5, 1996 was a significant contributing cause
of the herniated lumbar disc which required the two surgeries, so those
surgeries, and the treatment related to them, are compensable. A claimant's
employment need not be the sole cause of the particular injury causing
disability, it need only be contributing cause. See Hedge v.
Leggett & Platt. Inc., 641 So. 2d 9, 13-14, 14-15 (Miss. 1994).
10. Dr. Danielson's records indicate, and the claimant so testified, that Danielson took her off work as totally disabled on June 18, 1997. The claimant was thus temporarily totally disabled from that date until her maximum medical recovery following her first lumbar surgery in August of 1997. Dr. Danielson's records and testimony indicate that he treated the claimant post operatively until December 30, 1997, and then did not actually see her again until January 5, 1999. This refutes the claimant's testimony that she was still under Dr. Danielson's care at the time of her auto accident in April of 1998, so there is insufficient evidence to find that the claimant was temporarily totally disabled from her first lumbar surgery beyond December 30, 1997. Ms. Smith is thus entitled to temporary total disability benefits from June 18, 1997 through December30, 1997.
11. There is insufficient evidence to establish that the claimant was temporarily disabled at any time again until the date of her second lumbar surgery, February 19, 1999. Based on the testimony of Dr. Danielson, the claimant was temporarily totally disabled, following the second surgery, until June 10, 1999, the date Danielson released her as having reached maximum medical improvement.
12. The claimant suffered a 10% permanent partial physical impairment to her whole person as a direct result of her compensable lumbar injury, based on the testimony of Dr. Danielson.
13. The claimant has failed to prove by a preponderance of the credible evidence that she has suffered any loss of wage eaming capacity as a result of her compensable injury and is, therefore, not entitled to any permanent benefits. Ms. Smith has not made a reasonable effort to find other gainful employment since being released by Dr. Danielson in June of 1999. This finding is based principally on the claimant's own admission that she has been content to keep children in her home for $200.00 a month while receiving a government grant to attend college.
Order
IT IS, THEREFORE, ORDERED AND ADJUDGED that the employer and carrier pay and provide workers' compensation benefits to the claimant as follows:
1. Temporary total disability benefits at the rate of $133.69 for the period of April 6, 1996 through May 15, 1996, and for the period of June 18, 1997 through December 30, 1997, and for the period of February 19, 1999 through June 10, 1999, with proper credit allowed for any such benefits previously paid. To each such installment not timely paid there is added the 10% statutory penalty, together with interest from and after the filing of the petition.
2. Such medical services and supplies as are reasonably necessary to the treatment of the claimant's compensable injury and her recovery therefrom, including, but not limited to, all treatment provided and prescribed by Dr. Harry Danielson as such treatment was related to the claimant's lumbar spine, but with all such medical services and supplies to be provided in compliance with the Workers' Compensation Act and the rules and fee schedule of the Commission.
SO ORDERED this the 16th day of Jaunary, 2001.
JAMES HOME BEST
ADMINISTRATIVE JUDGE
ATTEST:
Jo Ann McDonald, Commission Secretary
1 The defendants are heard to argue that the claimant chose Dr. Weaver when initially offered treatment by Dr. McNally, that she thereby made her choice and was thus not entitled to her later choice of Dr. Danielson, and that Dr. Danielson's entire treatment is therefore not compensable.
2 There was no explanation as to why the claimant was not presented with this form until the day after she returned to light duty work, some 40 days after her admitted work injury.
3 The parties have stipulated that the claimant's cervical complaints are not related to the slip and-fall low back injury of April 5, 1996, and Dr. Danielson confirmed this in his testimony.
4 The claimant testified, as noted above, that she ws still unde