MWCC NO. 97 09262-G-0509

MINNIE L. DOTSON                                                                                                                                    CLAIMANT

VS

CHOCTAW MAID FARMS                                                                                                                        EMPLOYER
A SELF-INSURED

REPRESENTING CLAIMANT:
Unrepresented

REPRESENTING DEFENDANT:
Honorable Joshua J. Wiener, Jackson, Mississippi

The Commission heard the above styled cause on September 17, 2001 in the offices of the Mississippi Workers' Compensation Commission in Jackson, Mississippi on the Claimant's "Petition for Review Before 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 the Administrative Judge" dated June 8, 2001.

SO ORDERED, this the 19th day of September, 2001.

MISSISSIPPI WORKERS' COMPENSATION
BEN BARRETT SMITH
BARNEY SCHOBY
LYDIA QUARLES
COMMISSIONERS

MWCC NO. 97 09262-G-0509

MINNIE L. DOTSON                                                                                                                                    CLAIMANT

VS

CHOCTAW MAID FARMS                                                                                                                        EMPLOYER
A SELF-INSURED

APPEARING FOR THE CLAIMANT:
J. David Garner, Esquire, Jackson, Mississippi

APPEARING FOR THE EMPLOYER:
Joshua J. Weiner, Esquire, Jackson, Mississippi

This case came on for hearing on May 7, 2001, on the claimant's Motion to Reopen Claim and for New Hearing and the employer's response thereto. After carefully considering the file, the pleadings, argument of counsel, and the applicable law, this Administrative Judge finds that the claimant's Motion to Reopen Claim and for New Hearing is not well taken and should be denied.

On July 16, 1997, the claimant filed a petition to controvert alleging that on January 20, 1997, she received a work related injury to her lungs/respiratory tract. The employer denied the compensability of the alleged injury or occupational disease and did not pay workers' compensation benefits.

On May 25, 1999, a hearing on the merits of the case was held before Administrative Judge Tammy Green Harthcock. As shown in Judge Harthcock's order of July 28, 1999, the parties had entered into the following stipulations:

1. Claimant's average weekly wage on the date of the alleged work accident was $248.93.

2. Claimant reached maximum medical improvement on December 4, 1997.

3. Claimant's last day working forthe Employer was January 17, 1997, and she was terminated on February 13, 1997.

4. There is no issue to be decided regarding medical treatment.

1. Affidavit and medical records - Monifort Jones Memorial Hospital, Kosciusko;

2. Affidavit and medical records - University of Mississippi Medical Center;

3. Deposition of Dr. Stanley Hartness, family physician in Kosciusko, taken February 25, 1998; and

4. Medical Assessment of Ability to Do Work-Related Activities (Mental), dated November 30, 1998, and other records of Dr. Stanley Hartness.

On Monday, January 20, 1997, Ms. Dotson consulted her family physician, Dr. Stanley Hartness. Dr. Hartness diagnosed reactive airways disease/asthma and referred her to Dr. Timothy Cannon, a pulmonologist at the University Medical Center in Jackson. Dr. Cannon saw Ms. Dotson on February 4, 1997, for complaints of breathlessness due to the cold air in her work environment. Dr. Cannon did pulmonary function tests that were normal although her history had suggested underlying asthma.

According to Administrative Judge Harthcock's order:

Dr. Hartness testified that Claimant had no prior history of restricted airways disease or astbma before he began treating her for that in January 1997. Dr. Hartness said that he has been Claimant's physician for a number of years. He felt Claimant was not able to return to her former job at the Employer since her hospitalization in January 1997 because of her persistent symptoms. He could not say whether or not Claimant was at maximum medical improvement.

Dr. Hartness testified that Claimant should avoid any extremes of temperature, a lot of heavy exertion or labor, pollen, smoke, and dust. He felt that Claimant's asthma was "probably" a permanent problem that would be a significant factor in her overall health condition. However, he said he has not discussed work restrictions with Claimant.

Dr. Hartness testified to a reasonable medical certainty that Claimant's working in a cold environment exacerbated or aggravated an underlying condition which he said was reactive airways disease or asthma. He agreed that the work environment did not cause the reactive airways disease. Dr. Hartness admitted that he did not have any information as to how cold Claimant's workplace was. He opined that Claimant should not work in a temperature less than 70 degrees Fahrenheit or more than 76 degrees Fahrenheit.

The University Medical Center records contain a note from Dr. Klein that the pulmonary function tests showed mild to moderate restrictive lung function with an unknown etiology. On January 13, 1998, Dr. Wayne McAlpin and Dr. Joe Norman wrote to Dr. Hartness that Claimant's tests were consistent with a moderate restrictive type ventilatory impairment with possible interstitial lung disease. While that letter discussed scheduling further tests, there are no other indications in the records of results.

Claimant has not met her burden of proof that she suffered a work- related injury in the form of reactive airways disease or asthma. Although Claimant's general physician testified that her work environment exacerbated an underlying condition, the physician had no specific information as to the temperature in Claimant's workplace. In addition, neither party offered any medical evidence from a pulmonologist or other specialist on the issue of causation. Based upon the evidence as a whole, I find Claimant's workers' compensation claim should be denied.

The case came on for hearing before the Commission on December 13, 1999. On December 14, 1999, the Commission issued an order affirming Administrative Judge Harthcock's order of July 28, 1999.

The claimant filed a timely notice of appeal of her case to the Circuit Court of Attala County, said notice dated January 11, 2000. On January 24, 2000, she filed an amended notice of appeal, stating the appeal was to go to the Circuit Court of Leake County, Mississippi (the county wherein the employer's plant and the place of alleged injury were located).

On March 9,2000, however, the claimant filed a motion in the Circuit Court of Leake County, Mississippi, asking to dismiss her appeal, stating as follows:

That the plaintiff is now desirous of dismissing her appeal and refiling with the Workers Compensation Commission based on a motion to reopen her case on mistake of fact.

On March 10,2000, the claimant filed with the Commission a Motion to Reopen Case upon Mistake of Fact, and on June 5, 2000, a Motion for Supplemental Hearing, asking for "an opportunity to present newly discovered medical evidence to demonstrate that her pulmonary medical problems arose out of a work related sourse and has resulted in her complete and permanent disability." The employer filed a response on June 8, 2000, asking the Commission to deny the claimant's motion for supplemental hearing.

A hearing on the issue of reopening was held on June 26,2000, before Administrative Judge Deneise Turner Lott. In an order issued June 29, 2000, Judge Lott denied the claimant's Motion for Supplemental Hearing, noting and finding as follows:

Claimant did not allege in her Motion or at the hearing on the Motion that her claim should be reopened due to a change in condition. Also, claimant did not allege or prove a mistake which involved a failure to consider facts which were not reflected on the record before the Administrative Judge. In support of her Motion, claimant produced a letter from claimant's family physician, Dr. Stanley Hartness, regarding the existence of a causal connection between her impairment and her employment for Choctaw Maid Farms, Inc., but she admits that the same issue was addressed with the same doctor before the Administrative Judge and the Commission. The Order of the Administrative Judge dated July 28, 1999, specifically states that claimant did not prove that her pulmonary impairment arose out of and in the course of her employment as required by the definition of "injury" contained in Section 71-3-3 (b), despite evidence from Dr. Hartness that her work environment exacerbated an underlying condition.

This Administrative Judge therefore finds that Dr. Hartness's letter of February 17, 2000 does not constitute sufficient evidence upon which to find that a change in condition or mistake of fact has occurred sufficient to warrant reopening under Section 71-3-53. As the employer argued and the Court of Appeals recently restated in J. R. Logging v. Donald Halford, No. 1999-WC-00335 (Ct. App. May 10, 2000), the reopening statute is not a substitute for appeal and is not proper just because claimant thinks she can make a better showing on the second attempt. See also V. Dunn, Mississippi Workers' Compensation, (3rd ed. 1982). Also, as in Halford claimant did not show either the substance of her additional medical proof or how such proof would have altered the Commission's initial ruling in this case.

Several months later, on December 12, 2000, the claimant filed a Petition to Reopen Claim and for New Hearing based on a change in conditions or a mistake in fact. The claimant requested that the Commission:

enter an Order reopening the above-styled and numbered claim, and awarding Claimant a new hearing to determine whether she is entitled to Compensation under the provisions of the Mississippi Workers' Compensation Act.

1. The hearing in this matter was conducted on May 25, 1999 before Hon. Tammy Harthcock, Administrative Judge. Judge Harthcock entered her Order on July 24, 1999, finding that Claimant had failed to sustain her burden of establishing that her respiratory disease was causally connected to her employment. ...

2. Claimant timely filed a Petition for Review with the Full Commission. Prior to oral argument before the full Commission Claimant sought to introduce "newly discovered evidence" by means of a "Motion to Introduce Additional Evidence on Full Commission Review" filed December 6, 1999.

3. The full Commission denied Claimant's Motion in a verbal ruling made by Commission Chairman Mike Marsh on December 13, 1999 at the outset of oral argument on Claimant's appeal.

4. The full Commission subsequently rendered its Order dated December 14, 1999, affirming the July 28, 1999 order of Administrative Judge Harthcock....

5. On January 11, 2000, Claimant filed an appeal of the full Commission Order to the Circuit Court of Leake County.

6. Claimant voluntarily dismissed her appeal by means of an order of Dismissal which was signed by her counsel and entered by Circuit Court Judge Vernon Cotten on March 30, 2000....

7. Employer would show that the voluntary dismissal of Claimant's appeal is res judicata as to all issues which had or might have been raised before the Circuit Court. This includes the Commission's denial of benefits, and the Commission's denial of Claimant's Motion to introduce new evidence purportedly discovered after the date of the hearing before Administrative Judge Harthcock.

8. After dismissing her appeal to the Circuit Court of Leake County, Claimant filed with the Commission a "Motion for Supplemental Hearing" which basically made the same allegations as are set forth in her pending "Petition to Reopen Claim," i.e. that there was a change in condition or a mistake in fact which justified reopening her claim.

9. On June 26, 2000, a hearing was held on Claimant's Motion for Supplemental Hearing before Hon. Deneise Turner Lott, Administrative Judge. By Order dated June 29, 2000, Judge Lott denied Claimant's Motion....

10. Claimant filed a Petition for Review of Judge Lott's Order. However, the Petition was untimely filed and was therefore dismissed by the Commission....

11. Employer would show that Claimant has had ample opportunities to present her claims to the Commission and the appellate courts. She has truly had her "day in Court" on these matters. Claimant has not established sufficient grounds entitling her to reopen her claim or for a new hearing under applicable statutes, Commission rules and judicial precedents. There has been no change in condition or mistake in fact in this case. Claimant's latest Petition to Reopen Claim is an attempt to make an "end run" around the adverse rulings which have been made by Administrative Judges Harthcock and Lott, and by the full Commission. Claimant could have appealed these rulings, but she chose not to do so.

The only issue to be resolved by this Administrative Judge is whether this claim should be reopened for a new hearing pursuant to Section 71-3-53 of the Mississippi Workers' Compensation Act.

At the hearing the parties agreed to introduce into evidence the medical records of Dr. Benjamin Tobin and Dr. James P. Maloney of the Medical College of Wisconsin, dated from September 1, 2000, to February 5, 2001, a copy of which is attached to this order.

Dr. Tobin saw Minnie Dotson on September 1, 2000, for her chief complaint, "I have a problem with breathing," an "ill-defined respiratory problem dating back to 1996." Ms. Dotson told Dr. Tobin that for the past three years, since her hospitalization in 1997, she had to visit an emergency room about once a month for this problem.

Dr. Tobin examined her, found her in "some very mild respiratory distress," and diagnosed shortness of breath/dyspnea on exertion/hypoxia. He stated, "The etiology of this patient's signs and symptoms is unclear at this time." Because of her hypoxia and "ill defined constellation of symptoms," he recommended hospitalization for further work up, including pulmonary function testing, echocardiogram, and possible chest CT scan.

After Ms. Dotson was discharged from the hospital, on September 13, 2000, Dr. Tobin saw Ms. Dotson for follow up. He found her pulmonary function to suggest astluna, and lower extremity edema to indicate possible right-sided heart failure which he thought could be due to restrictive lung disease or pulmonary hypertension. He ordered various testing for various concerns, some not related to her breathing complaints.

On December 19, 2000, Dr. James P. Maloney, Assistant Professor in the Division he asked for copies of Ms. Dotson's past medical records. He also stated that:

In regard to your question, as to whether it is "possible for you to give an opimon as to a reasonable degree of medical probability whether Ms. Dotson's above described work environment caused or aggravated the conditions for which you treated her?" I have the following response. Mrs. Dotson gives a credible story for asthma beginning at the time of her work in the chicken processing plant. I cannot give you a reasonable degree of medical probability as to whether this patient's direct positioning under an air conditioning unit, (as she has alleged,) is related to her development of asthma. Certainly cold dry air is known to be a trigger for asthma in patients who already have underlying asthma, the actual causation of asthma by working in a cold/dry environment is less clear in the literature. There are certainly bigger questions as to whether her exposure to organic compounds from chickens, feathers, or other poultry products were involved here. She may have had pre-existing asthma that before 1996 time was not clinically apparent.

Based on the patient's hospitalization, other presentations with wheezing and symptoms compatible with asthma, it appears that she has a component of this disease. She may have other disorders that have not been diagnosed tests that she has had, as the nature of her restrictive pulmonary physiology is unclear.

all I can say is I have no direct evidence of the environment causing this condition, but it certainly may have aggravated an underlying condition based on the environment Mrs. Dotson described, predominately that of a refrigerated workplace with exposure to chicken products by her description and possibly including gases or water mists.

Without further testing I am unable to clarify this point any further. It is possible that further tests may not clarify it any further.

At the hearing on May 7, 2001, the claimant related that she visited family in Milwaukee sometime in the year 2000. On September 1 and 13, 2000, she saw Dr. Benjamin Tobin at the General Internal Medicine Clinic at the Medical College of Wisconsin. Dr. Tobin referred her to Dr. James P. Maloney in the Division of Pulmonary and Critical Care Medicine Department of the Medical College of Wisconsin, and Dr. Maloney saw the claimant in October 2000. The claimant contended that the case should be reopened to admit into evidence the testimony of the Wisconsin doctors, one of whom is a specialist in pulmonology, pursuant to Administrative Judge Harthcock's order of July 28, 1999.

The claimant also asked that the Commission receive the testimony of Dorothy Foster, a co-worker of the claimant at Choctaw Maid Farms who would corroborate the claimant's testimony at the original hearing before Administrative Judge Harthcock.

The claimant argued that there was a mistake in a determination of fact in Judge Harthcock's order following the original hearing in May 1999 regarding Dr. Hartness's testimony that the work environment exacerbated the claimant's underlying asthma. According to the claimant, Dr. Hartness's medical records show Ms. Dotson had underlying asthma. The claimant pointed out that another mistake in a determination of fact was Judge Harthcock' s finding that neither party had evidence from a pulmonologist on causation when in fact the records of Dr. Cannon, a pulmonologist at the University Medical Center, were received into evidence and considered at the hearing in May 1999. The claimant argued furthermore that the records of Drs. Tobin and Maloney support her contention that the Commission's failure to denote Ms. Dotson's pulmonary problem as work-related is a mistake in a determination of fact.

The employer pointed out that this is not a case dealing with a change in condition. The focal point of the claimant's motion to reopen relates to the respiratory problem that the claimant developed in 1997 and whether it was caused or aggravated by the claimant's employment at Choctaw Maid Farms, employment which she left in January of 1997.

The employer argued that the motion to reopen should be dismissed on procedural grounds, that Administrative Judges Harthcock and Lott have already put the issue of causation to rest. The employer noted that appeals from their decisions have been exhausted.

Additionally, the employer argued that the new Wisconsin medical records do not support the claimant's substantive argument that the claimant's respiratory problems arose out of the employment at Choctaw Maid Farms. Also, Dr. Maloney in Wisconsin was not the first pulmonologist to see Ms. Dotson. A pulmonologist in the Department of Pulmonology at the University Medical Center in Jackson saw Ms. Dotson before the hearing of May 25, 1999, and Administrative Judge Harthcock had those records to review before issuing her order. The UMC pulmonologist said Ms. Dotson's problem was of "unknown etiology," and this finding was echoed by the Wisconsin doctors.

After carefully considering the file and record in this matter, the pleadings, argument of counsel, the medical records of Drs. Tobin and Maloney which are attached to this order, and the applicable law, the Administrative Judge finds that the medical records do not constitute sufficient evidence upon which to support reopening the claimant's case pursuant to the reopening statute.

Administrative Judge Harthcock denied Minnie Dotson's claim for workers' compensation benefits, finding that she had not proved a connection between her work for the employer and her reactive airways disease or asthma. Upon review, the Commission affirmed this decision and at the same time refused to allow the claimant to submit additional evidence, including the testimony of co-worker Dorothy Foster. When the claimant voluntarily dismissed her appeal of the Commission's ruling to the circuit court, the Commission's affirmance and adoption of Judge Harthcock's decision became the "law of the case."

Ms. Dotson subsequently filed a motion to reopen under Section 71-3-53 of the Mississippi Workers' Compensation Act, within the one-year period for reopening allowed under that statute, asking for a supplemental hearing. The claimant submitted a letter from Dr. Hartness dated February 17, 2000, regarding the issue of causal connection between her impairment and her employment with the employer herein. Administrative Judge Lott found that the claimant did not present evidence of a change in condition or mistake of fact sufficient to warrant reopening the claim, however, pointing out that the reopening statute was not a substitute for appeal "and is not proper just because claimant thinks she can make a better showing on the second attempt."

The claimant did not file a timely petition for review. Administrative Judge Lott' s order thus became a final order of the Commission.

Once again, however, within one year the claimant filed the motion to reopen that is the subject of this order, again seeking to submit evidence that the claimant's respiratory problems are related to her employment at Choctaw Maid Farms, the employer herein. This time the evidence is not from the claimant's family physician, whose records were before Judge Harthcock in the original hearing in May 1999, but from two specialists at the Medical College of Wisconsin, whom the claimant saw while visiting family in Wisconsin in the fall of the year 2000. The claimant contends that these records supply the "medical evidence from a pulmonologist or other specialist on the issue of causation" that Judge Harthcock found lacking at the May 199 hearing.

The employer has argued that the doctrine of res judicata has put to rest the issue of causation in this case, that is, that the decision of Administrative Judge Harthcock precludes a relitigation of the same issue(s). But pursuant to Section 71-3-55 of the Act, the Commission is not bound by common law rules, res judicata included, and the reopening statute in Section 71-3-53 of the Act displaces res judicata when the grounds for reopening have been met.

The claimant has met the time requirement of the reopening statute (within one year after the rejection of a claim), having filed the motion to reopen only a few months after Administrative Judge Lott's June 2000 order became final. The question is whether the claimant has shown sufficient evidence of a change in conditions or a mistake in a determination of facts such as to warrant reopening of the claim.

The recent medical records underscore all other indications that the claimant has not suffered a change in condition since the original hearing in May 1999, and the claimant has not seriously argued that she has had a change in condition. Her complaints to Drs. Tobin and Maloney in Wisconsin in the autumn of 2000 are the same as what she told Dr. Hartness and Dr. Cannon in 1997-98 and what she testified about before Administrative Judge Harthcock in May 1999. She told the Wisconsin doctors she has been going to the emergency room about once a month for approximately three years with more or less the same complaints, chief of which is shortness of breath on exertion. She quit work in 1997 and she is apparently still not working.

As to a mistake in a determination of fact, the claimant would ask that the testimony of Dr. Tobin and particularly Dr. Maloney, the pulmonology specialist in Wisconson, be received into evidence to satisfy Administrative Judge Harthcock's comment that her denial of Ms. Dotson's claim was in part because "neither party offered any medical evidence from a pulmonologist or other specialist on the issue of causation." A careful review of the medical records of the Wisconsin specialists reveals, however, that these doctors are not able to offer any more enlightenment on the question of either diagnosis or causation of Ms. Dotson's breathing problems. Dr. Tobin referred to her problem with breathing as "ill defined respiratory problem" with an "ill-defined constellation of symptoms." After various testing, he thought asthma was "suggested."

Dr. Maloney said "the nature of her restrictive pulmonary physiology is unclear." When asked about causation of her problems, he responded that the workplace "may have aggravated an underlying condition." When asked about her development of asthma, Dr. Maloney said, "Certainly cold dry air is known to be a trigger for asthma in patients who already have underlying asthma, the actual causation of asthma by working in a cold/dry environment is less clear in the literature."

In other words, the specialists were not able to tell what kind of restrictive pulmonary problem Ms. Dotson suffers from. Nor were they able to connect her breathing complaints to her work at Choctaw Maid Farms with anything more than a "maybe." This is the same kind of report that was generated by the pulinonologist at the University Medical Center back in 1997-98 and that was considered by Administrative Judge Harthcock and the Commission in 1999.

As to the corroborative testimony of Dorothy Foster, a co-worker of Ms. Dotson's at Choctaw Maid Farms in 1996 or 1997, it is absolutely too late to call a lay witness who was available to testify at the hearing in May 1999. Additionally, the problem in this case has never been a lack of credibility on Ms. Dotson's part but the lack of medical support for the claim of work-relatedness of her physical condition.

In summary, the claimant has shown neither a change in condition nor mistake in a determination of fact. The evidence that the claimant has proposed in support of reopening is simply a variation on the same theme that has been playing throughout this case from the beginning.

IT IS THEREFORE ORDERED that the claimant's Motion to Reopen Claim and for New Hearing should be and is hereby denied.

SO ORDERED, this the 8th day of June, 2001.

LINDA A. THOMPSON
ADMINISTRATIVE JUDGE

ATTEST:
Jo Ann McDonald
COMMISSION SECRETARY

ATTACHMENTS
Letter to Jay Peyton Randolph, II (February 5, 2001) pg.1
Letter to Jay Peyton Randolph, II (February 5, 2001) pg.2
Letter to Jay Peyton Randolph, II (February 5, 2001) pg.3
Letter to Jay Peyton Randolph, II (December 19, 2001)
Theophylline
Clinic Information pg.1
Clinic Information pg.2
Sinus Rhythm/ECG (October 27, 2000)
Pulmnary Function Test (December 23, 2000)
Radiology Report (September 25, 2000) pg.1
Radiology Report (September 25, 2000) pg.2
Cumulative Chart Chemistry (September 14, 2000) pg.3
Cumulative Chart Chemistry (September 14, 2000) pg.2
Cumulative Chart Chemistry (September 14, 2000) pg.1
Stool Test (September 14, 2000)
Urinalysis (September 13, 2000)
Medical College of Wisconsin (September 13, 2000) pg.1
Medical College of Wisconsin (September 13, 2000) pg.2
Medical College of Wisconsin (September 13, 2000) pg.3
Medical College of Wisconsin (September 13, 2000) pg.4
Medical College of Wisconsin (September 13, 2000) pg.5
Medical College of Wisconsin (September 13, 2000) pg.6
Medical College of Wisconsin (September 13, 2000) pg.7
Medical College of Wisconsin (September 13, 2000) pg.8
Sinus Rhythm (September 2000)
Pulmonary Function Report (August 8, 2000)