MWCC NO. 97 10227-G-0666-B
| BESSIE ROSE WHITE
vs. BRYAN FOODS, INC.
|
CLAIMANT
EMPLOYER
|
REPRESENTING CLAIMANT:
William L. Cook, Jr., Attorney at Law, Batesville,
Mississippi
REPRESENTING EMPLOYER:
James C. Helveston, Attorney at Law, West Point,
Mississippi
The Commission heard the above styled cause on May 21, 2001 in the offices of the Mississippi Workers' Compensation Commission in Jackson, Mississippi on the employer's "Petition for Review by the Full Commission" and claimant's "Cross-Petition for Review by the Full Commission" and "Amended Cross-Petition for Review by the Full Commission." The essential argument on appeal made by the employer is that there was insufficient medical evidence in the record to support the Administrative Judge's finding that the claimant's injury to her right shoulder resulted from the employment duties performed by the claimant at Bryan Foods. Indeed, the employer argued that the preponderance of the medical evidence did not support the conclusion that as a result of the various jobs done by the claimant at Bryan Foods, including the diaphragm trimming job, the hog's head trimming job, the job denominated as "busting heads" and the job denominated as "sucking brains" the claimant could have sustained a rotator cuff tendonitis injury to her right shoulder. Following that line of reasoning, the employer argued, as well, that the Administrative judge's findings of temporary total disability and permanent partial disability are unfounded, as is the Administrative Judge's finding that the employer should be responsible for the claimant's medical services and supplies, including the surgery that claimant seeks, inherently finding the surgery to be reasonable and necessary to the process of the claimant's recovery from her injury. Claimant, on the other hand, argued that although the Administrative Judge was correct on the issue of compensability, she erred when she assessed a finite period of temporary total disability (from January 27, 1997 until June 30, 1997) and also when she determined that the claimant sustained a forty percent (40%) industrial loss o f use of her right arm as a result of the injury. Claimant argued that those findings were premature and not supported by the medical evidence. Primarily, claimant argued that she remains in a state of temporary total disability awaiting surgery and that only after surgery and her recovery therefrom can an adequate determination of industrial loss of use to the injured extremity be made.
After a thorough examination of the record on appeal, the Commission affirms the Administrative Judge on the issue of compensability. Admittedly, the medical causal connection between the jobs performed by the claimant in her twenty (20) years of employment at Bryan Foods is not established in marked fashion. However, considering the length of time that the claimant has been employed at Bryan Foods, the types of jobs she held, as described by the claimant, the kill floor supervisor (Mr. Al Koenigsfeld), the former kill floor supervisor (Mr. Vince Hamilton) and the videotape of the diaphragm trimming job (exhibit E/C-15), and keeping in mind the beneficent purposes of the Workers' Compensation Law,1 it is clear that there is sufficient evidence in the record to support the Administrative Judge's finding of compensability. In doing so, it follows that the Commission affirms the Administrative Judge on the issue of medical services and supplies under Miss. Code Ann. §71-3-15 (1995).
With respect to the Administrative Judge's findings on temporary and permanent disability, the Commission holds that, under the facts in this case, those findings have been made prematurely and may be erroneous. There is ample authority to suggest that the claimant's period of temporary total disability may extend past the date of June 30, 1997 as established by Dr. Hillard or that the claimant may be entitled to additional periods of temporary total disability as the nature of her future medical treatment may require. Temporary disability, whether total or partial, extends until the injured employee is cured or is restored to health insofar as his injuries will permit. A claimant may, after having reached maximum medical recovery from conservative treatment, continue in a temporary disability status if it appears likely that his condition will be improved by surgery and he is willing to undergo surgery.2 Thus, the Administrative Judge's finding of permanent partial disability based on the claimant's industrial loss of use of her right-upper extremity may not ultimately be accurate, depending on the success of claimant's future surgery.
It is, therefore, ORDERED, that the employer pay to the claimant the temporary total disability benefits awarded in the Administrative Judge's order of December 15, 2000, together with statutory penalties and interest on any due and unpaid compensation benefits.
It is further ORDERED that the employer provide medical services and supplies as required by the nature of the claimant's injury and the process of her recovery therefrom.
It is finally ORDERED that this matter be remanded to the Administrative Judge for determination of those issues which remain outstanding relative to the claimant's claims for compensation.
SO ORDERED, this the 31st day of May, 2001.
MISSISSIPPI WORKERS' COMPENSATION COMMISSION
BY: BARRETT SMITH
BARNEY SCHOBY
LYDIA QUARLES
COMMISSIONERS
ATTEST:
Jo Ann McDonald, Secretary
___________________________
MWCC NO. 97 10227-G-0666-B
| BESSIE ROSE WHITE
vs. BRYAN FOODS, INC.
|
CLAIMANT
EMPLOYER
|
REPRESENTING CLAIMANT:
William L. Cook, Jr., Attorney at Law, Batesville,
Mississippi
REPRESENTING EMPLOYER:
James C. Helveston, Attorney at Law, West Point,
Mississippi
On August 6, 1997, the claimant, Bessie Rose White,
filed a petition to controvert alleging that on January 23, 1997, she received
an injury to her right arm and hand that arose out of and in the course
of her employment with the self-insured employer, Bryan Foods. Ms. White
was a twenty-three-year employee of Bryan Foods. The employer initially
admitted the compensability of the injury and provided certain medical
services and supplies. Subsequently, however, the employer denied that
the injury arose out of the claimant's employment with the employer and
paid no disability benefits, either temporary or permanent, and denied
authorization for the surgery recommended by Dr. Edward Hillard and Dr.
William Geissler. A hearing was held in the Clay County Courthouse in West
Point, Mississippi, on October 26, 2000. The matter was held in abeyance
after the hearing to give the parties opportunity to submit memoranda of
law.
The parties stipulated that
1. The claimant's average weekly wage on January 23, 1997, was $334.01; and
2. The employer's transitional-duty work calendars
indicate that Ms. White was off work from January 24 to February 5, 1997,
for the stated reason of "flu."
The issues to be resolved by the Administrative Judge are as follows:
1. Whether the claimant, Bessie Rose White, received a work-related injury to her right arm or hand on January 23, 1997, as alleged in the petition to controvert;
2. If so, the existence/extent of disability resulting from the work injury; and
3. For what medical services and supplies is the
employer responsible.
Bessie Rose White is fifty-one years old and a resident of Cedar Bluff, Mississippi. She is not married. She has two children, but they do not live with her. She completed the eleventh grade in school and in the 1960s attended the Golden Triangle VoTech School to study welding. She has never used her welding training, however. She is right-handed.
From 1969 until 1997, with the exception of one five-year period from 1974 to 1979, Ms. White worked for Bryan Foods in West Point, Mississippi. She worked continuously at Bryan Foods from 1979 until 1997.
Ms. White did a number of jobs at Bryan Foods. She worked as a hog's head trimmer which required her to use an electric trimming knife to cut the fat and meat off the hogs' heads. She thought the knife weighed five to ten pounds. It was connected to a wire and motor that was over her head. She did that job sitting, and all day long she pulled down with her right arm as she held the trimming tool. The meat came by on a conveyor belt or rail at table height in front of her. She would stabilize the head with her left hand, and with her right hand she would trim off the meat and put it in a pan. She thought the heads weighed about twenty to thirty pounds. She applied pressure with her right arm to do the trimming. She said she did that job just about every day the last five years she worked at Bryan Foods.
In 1997, Ms. White did another job which she described as sucking out brains from the hog heads. She used a machine with a handle on it. She would go into the hog's head and suck the brains out with the machine. She thought the machine weighed about ten pounds. All day long, she pushed and pulled with her right arm on the machine. Sometimes she used her hands to pull the brains out. When finished with the head, she would throw it over to the side to a barrel. Ordinarily, she did about one a minute or sixty or more an hour.
Ms. White also had a job called "busting heads." She would pick up each hog's head and put it in a machine that would split the skull.
Ms. White was assigned to another job, called the diaphragm trimming job, and this is the job that is shown on the videotape provided by the employer and received into evidence as Exhibit 15. The videotape shows another employee doing the work, not Ms. White. The worker on the videotape did most of the work with her left arm and hand, while doing only simple snipping with the scissors in her right hand.
Ms. White testified that she would go to the diaphragm trim job in the morning for a while, an hour or two hours. Then Vince Hamilton, her supervisor, would replace her with Emma Moore, another employee, and ask Ms. White to go over to the head trimming job. At the diaphragm job, Ms. White would sit with scissors in her right hand and cut the liver and lungs off the diaphragm. She said at that time the diaphragms came on a rail that was above her head. Then the rail would lower the meat to about shoulder height, She pulled with her right hand, then cut with scissors in her right hand. She said she had to reach to pull the diaphragm to her.
The diaphragm trimming job was the only job Ms. White did on January 6, 1997, and she experienced severe pain in her right arm and shoulder. She testified that she had had pain for a long time, since about 1995, but the pain became much worse in January 1997.
Before she was hurt, Ms. White worked five days a week, eight to nine hours a day, with breaks and lunch. After the injury, her hours decreased.
On January 6, 1997, Ms. White went to first aid at Bryan Foods. She saw the nurse, Shelia Conaway. Ms. White told Nurse Conaway her arm was hurting, and the nurse gave her some pills. Although the pills did not help and she felt bad, Ms. White continued to do her job. She said she also told her supervisor, Vince Hamilton, that she was hurting.
On January 22, 1997, Nurse Conaway asked Ms. White to sign an Employee's Report of Injury and Designation of Treating Physician. Ms. White designated Dr. McAfee, the plant doctor, as her choice of treating physician.
Between January 6 and 23, 1997, Ms. White was assigned to the diaphragm trim job. She said her supervisor put her back to sucking brains, however, and her arm began to hurt from her neck down to her forearm and hands.
On January 23, 1997, Ms. White consulted Dr. James McAfee, the plant doctor who she thought was on Bryan Foods' premises about three days a week. Dr. McAfee saw her and returned her to work. She said Dr. McAfee injected her right shoulder and the shot eased the pain somewhat. She had about three injections altogether, but she did not improve significantly. She continued to work. Dr. McAfee had specified light duty, and Bryan Foods put her back at the diaphragm trimming job.
Ms. White went to Columbus for physical therapy at Dr. McAfee's office. Then she came down with the flu, and she was off work from January 24 until February 6, 1997. She also took vacation. She did not do physical therapy while she had the flu and while she was on vacation. She testified that when she did the physical therapy, it did not help but made her worse.
From January 27, 1997, until June 18, 1997, Ms.
White performed what was described as light-duty work at Bryan Foods. She
worked about four months putting labels on chitlings.
She would pick up the chitlings from a buggy,
put them in buckets, and put lids on the buckets. She also made cardboard
boxes about two months. For a while, she worked in the personnel office
feeding papers into a shredder. She thought these jobs were "make-work"
jobs.
Ms. White continued to have problems with her right arm and shoulder. Dr. McAfee referred her to Dr. Scott Jones at the Columbus Orthopaedic Clinic who gave her some medicine. She saw Dr. Jones about three times in May and June 1997. Dr. Jones recommended physical therapy but did not take her off work.
When Ms. White returned to Bryan Foods, she was assigned to a very cold place that was like a loading dock and that she called "wiener world" to do some weighing. The cold hurt her arms, but she was kept down there for two weeks. The pain in her arm grew worse. Then she was sent to the parts department to take inventory. She had to lift items from the top shelf with her left arm. She stayed in the parts department about two months. She said she was required to reach and she could not do the job very well.
Dr. McAfee referred Ms. White to Dr. Edward Hillard in Tuscaloosa. On June 30, 1997, Dr. Hillard recommended surgery and took her off work. He wrote an excuse for her to be off work, and she took it to the personnel manager. The employer would not pay for the surgery.
One of the girls in first aid called her back to light-duty work at the plant after July 4, 1997. Ms. White said she could not work, her arm was hurting her and she was taking medicine that made her sick. She reported to work, and the union steward met her there. She was told that Dr. Hillard had faxed the plant that she could go back to light-duty work. Ms. White said she told the employer that she wanted to work but she had another doctor's appointment that day with Dr. Conner in Starkville. She was told to go on to the doctor, and later she brought an off-work slip back from Dr. Conner.
Ms. White said the personnel manager gave her a hard time. He called her every morning at 8:00 a.m. to ask if she were coming back to work. He would not sign her insurance papers when she asked him to do so.
A year later, on July 1, 1998, Ms. White's attorney sent her to Dr. Robert Christopher in Memphis for a disability evaluation. After she saw Dr. Christopher, Ms. White went back to Bryan Foods. She told James Hays, the human resources manager, that she needed to work, and she asked for light duty. She said she was told she could not return to work without a release from her doctor.
In 1998 and 1999, Ms. White contacted various businesses in an effort to find a new job, and she went to the Job Service many times. She told the prospective employers about the problems her right shoulder. She has not been offered a job.
Ms. White applied for Social Security disability benefits in September 1998. On her application she stated she had problems with her arms, legs, low back, high blood pressure, and pulmonary insufficiency. Her claim for disability benefits was approved in 1999, and she receives about $882.00 a month.
According to Ms. White, her right shoulder hurts when she sits for a long time. The pain has gotten a little better than it was in 1997. She said she can lift a pan but not groceries. She can do some housework with both arms, but she cannot vacuum or mop or make the beds. She cannot lift her arm out to her side.
Al Koenigsfeld testified for the employer that he has worked for Bryan Foods for fourteen years. He is the supervisor of the complete slaughtering area or "kill floor." He has one supervisor working under him. Vince Hamilton formerly worked under his supervision. Mr. Koenigsfeld described the company's policy of doing job safety analyses of each job. The worker and supervisor get together and analyze the job and write up a description and sequence of job steps and the various hazards of the job. When new employees come in they do the job safety analysis at the new jobs.
Mr. Koenigsfeld has done a job safety analysis on the diaphragm trimming job, and he has reviewed the videotape dated November 26, 1997. He said the videotape correctly sets forth the job requirements.
Mr. Koenigsfeld is familiar with the busting heads machine, although the machine was last used in 1992. It was a circular machine and it was a two-person operation. One person would put the head on the machine, the machine would split the head and kick the parts out, and the other operator would reach in the head to get out the brains and pituitary glands. The heads weighed from three to five pounds each. The head had no jaw bones or cheeks or head meat on it when it got to the head splitting machine. After 1992, the plant went to an air pressure tube that would suck the brains out into a tank. The suction device to the air pressure tube weighed about a pound. That is also no longer used at the plant. Now Bryan Foods has air guns to blow the brains out. The air gun weighs about two pounds.
Mr. Koenigsfeld said the wizard knife job, or what Ms. White described as trimming the meat off the heads, is in his department. The wizard knife is electric and hangs down from an overhead motor. It is a circular knife with a trigger. The employee presses the trigger to do the cutting job. The head comes by on a conveyor. The worker reaches out about two feet to pull the head toward a cutting board right in front of him. The cutting board is table height, and the workers do their work at waist level. The heads weigh about five pounds. After the meat has been cut, the employee puts the head back on the conveyor belt.
The head trimming is a production job. There are 750 heads going by in an hour, and they come by steadily. There are three employees who must work fast and are constantly moving their hands and arms to cut the meat off the back of the head. They check the head after cutting the meat off before putting it back on the conveyor belt.
None of these positions require the employee to work at shoulder height. The only lifting is of the hogs' heads and the knife.
Vince Hamilton testified for the employer that he has worked for Bryan Foods for ten and a half years. He is supervisor of fresh pork. He formerly was supervisor of the kill floor, from December 1994 until March 1999. He handled vacations, lined up the crews on a daily basis, and assigned employees to different jobs every morning. He knew the physical requirements of all the jobs in his department. Bessie White worked under his supervision in the kill floor.
Mr. Hamilton said Ms. White's main job was to trim diaphragms, and she did that job about 60% of the day. Mr. Hamilton made the videotape of the diaphragm job that has been submitted into evidence by the employer as Exhibit 15.
Mr. Hamilton testified that Ms. White occasionally rotated to other jobs, trimming heads and saving brains. The plant has a rotation plan for ergonomic reasons, and sometimes the workers rotate on their own. He said none of the jobs Ms. White performed required working above shoulder height.
Mr. Hamilton thought the hog heads weighed about two pounds each. There was no reaching across the body. The head trimming job required repetitive hand and arm movement for trimming of 800 heads an hour. He said Ms. White had to use both her arms and hands in repetitive movement.
Michelle Loveday testified as a witness for the employer and as an adverse witness for the claimant. She is medical facilities director at Bryan Foods, and she is a certified occupational health nurse as well as a registered nurse. She has been medical facilities director at Bryan Foods a little over two years, and she has been a certified occupational health nurse for seven years.
Ms. Loveday is familiar with Ms. White's first report of injury and physician designation form. The form states that the claimant has a choice of physician and Ms. White chose Dr. McAfee. Ms. Loveday said Dr. McAfee is not an employee of Bryan Foods. Baptist Memorial Health employs Dr. McAfee, and Bryan Foods pays Baptist Memorial Health for Dr. McAfee's services at the plant for several hours every Thursday morning. He has been doing that about seven years. He is the only doctor who comes to the plant.
Ms. Loveday said Bryan Foods has a transitional program of light-duty work for injured workers and abides by the restrictions recommended by the physicians. The company will make work if necessary to accommodate the worker on light duty. The company has forms for light-duty assignments. After the light duty, there is a progressive return to full duty rather than an abrupt change from light duty to full duty.
James Hays testified for the employer that he has been employed at Bryan Foods for eighteen years. He has been human resources manager for the past five years. He said there are 1,700 or 1,800 employees at Bryan Foods. He knows Bessie Rose White, and he said she has not been terminated. Her last job was diaphragm trimmer on the kill floor. He said that job is still available to her and has been since June 18, 1997, when she last was at work.
Dr. James McAfee, specialist in occupational medicine in Columbus, testified by deposition dated February 24, 1998, that he has served as plant physician for Bryan Foods since January 1, 1994. He first saw Bessie Rose White on January 23, 1997, for complaints of pain in the right shoulder and upper arm. She told Dr. McAfee her primary job was cutting livers off the diaphragms, a repetitive job. She told him she had to use her arm a lot to cut the liver and the lungs. After he treated Ms. White, Dr. McAfee went to the plant to watch the diaphragm cutting job. He did not see Ms. White performing the job, and he did not know Ms. White did other jobs at the plant.
Dr. McAfee initially diagnosed glenohumeral fibrositis of the right shoulder, an inflammation of fibrous tissue around the shoulder joint and ligament in the front of the shoulder, very near where the rotator cuff is. He noted Ms. White had physical therapy only on irregular basis and that she had flu and some vacation time that interfered with the first two weeks of the therapy schedule. Later she attended the physical therapy on a regularly scheduled basis.
Dr. McAfee next saw Ms. White on February 6, 1997, after she recovered from the flu. He saw her on February 27, 1997, and she said she was no better with physical therapy. Dr. McAfee injected her shoulder. On March 12,1997, Dr. McAfee took x-rays, and an MRI of the right shoulder was performed on March 17, 1997. At that time, Ms. White was attending physical therapy regularly.
On March 19,1997, Dr. McAfee saw Ms. White again. The MRI showed no rotator cuff tear, but he did see evidence of rotator cuff tendonitis with mild impingement syndrome.
Dr. McAfee saw Ms. White again on April 1, 10 and 24, 1997. He noted on April 24, 1997, that she had normal range of motion in her shoulder. He released her to return to full duty at work under a work progression program. He said she had reached maximum medical improvement and had no permanent restrictions.
The attorney for the employer showed Dr. McAfee the videotape of the diaphragm trimming job and reviewed it with him before the claimant's attorney appeared for the doctor's deposition. Then at the deposition Dr. McAfee was asked if he thought Ms. White could have performed that job on April 24, 1997. Dr. McAfee said Ms. White should have had no problem going back to the diaphragm trimming job. Because Ms. White complained of recurring pain in the right shoulder, however, Dr. McAfee referred her to Dr. Scott Jones.
Dr. G. Scott Jones of the Columbus Orthopaedic Clinic testified by deposition dated February 4, 1998. He examined Ms. White on May 20, 1997. She reported a two-year history of right arm pain and pain in the shoulder and trapezius; area up to the neck. She told Dr. Jones she had a "repetitive type job using her right upper extremity and had been off and on light duty restrictions." (Exhibit 2, p. 5).
Dr. Jones took x-rays and reviewed the MRI scan done before he saw her. He said the MRI scan showed some tendonitis in her supraspinatus but no evidence of a tear in her rotator cuff. Dr. Jones diagnosed rotator cuff tendonitis and trapezius muscle spasm. Dr. Jones restricted her to lifting of no more than ten to fifteen pounds.
Dr. Jones next saw Ms. White on June 18, 1997. Ms. White was better although she still had some pain. He allowed her to continue work with no overhead lifting or overhead work. He recommended no lifting over twenty pounds.
Dr. Jones saw Ms. White last on June 23, 1997. Ms. White had tenderness and soreness but full range of motion in the shoulder. Dr. Jones thought she had persistent rotator cuff tendonitis. He thought that sometimes her subjective complaints outweighed his physical findings. Dr. Jones released her on June 23, 1997, continuing the restrictions he had already assigned. Dr. Jones thought she had not given her best effort to improve with therapy. Dr. Jones did not give her a permanent impairment rating, and he said he did not know whether she would some day return to full and unrestricted activity.
Dr. Jones testified that he thought Bessie White had an 80% chance of getting better without surgery and that she did not need surgery at that time. He thought she might need surgery after a long trial of therapy and injections if she did not improve. He said, "I do surgery frequently for this problem, only I like to do it after trying everything first." (Exhibit 2, pp. 25-26).
At the deposition, the employer showed Dr. Jones the videotape of an employee (not Ms. White) performing the diaphragm cutting job at Bryan Foods, and he told Dr. Jones that was the job Ms. White had been doing for the last three years of her employment with Bryan Foods. Dr. Jones was not told that she did other jobs at the plant. Dr. Jones said he thought she could do the diaphragm trim job because it appeared to involve no overhead lifting and no lifting of more than twenty pounds.
When asked if repetitive motion type work could have caused her injuries, Dr. Jones responded:
The medical records of Conner's Family Health Clinic in Starkville were received into evidence. Dr. Douglas L. Conner saw Ms. White on June 26, 1997, for complaints of right shoulder and arm pain of four or five months duration. She reported to Dr. Conner that she did heavy lifting of hog heads at Bryan Foods. Dr. Conner diagnosed tendonitis and rotator cuff problem in the right shoulder. He thought she might need a consultation with an orthopaedic specialist.
The medical records of Dr. Edward Hillard were received into evidence. Dr. Hillard saw Ms. White on June 30, 1997, for complaints of problems with her right shoulder for seven months. Ms. White reported pain, tenderness, crepitus, and severe weakness. Dr. Hillard said the MRI revealed impingement and rotator cuff syndrome but not a tear. Dr. Hillard recommended arthroscopic subacromial debridement and decompression with acromioplasty. A note to the file indicated, "W. Comp is not going to approve this until further review." (Exhibit 6, p. 2).
Dr. Conner saw Bessie White on other occasions. On August 6,1997, Ms. White saw Dr. Conner for complaints of right shoulder and left hip pain. He noted she had a rotator cuff injury and would probably need surgery. On September 2, 1997, Ms. White saw Dr. Conner for a cold and cough but reported also that her right shoulder continued to be painful. On September 7 and 30, 1997, her right shoulder still hurt. On October 29, 1997, Ms. White reported various aches and pains. On November 25, 1997, Dr. Conner noted Ms. White could not sleep at night. She complained of pain in the right side of her neck. Dr. Conner said she still needed a referral to an orthopaedic surgeon.
On January 28, 1998, Ms. White complained to Dr. Conner of right arm and neck pain. He diagnosed cervical strain. Later in 1998, Ms. White saw Dr. Conner for continuing pain in the night arm. He diagnosed bronchitis and rotator cuff injury of the right arm. On June 4, 1998, Dr. Conner completed a physician's statement for insurance purposes to the effect that he had treated Ms. White since June 22, 1997, and that he had not released her to return to work.
The medical records of Dr. John McFadden of the Tupelo Pain Clinic were received into evidence. There is only one narrative note, dated June 10, 1998. Dr. McFadden reported Ms. White returned to the clinic complaining of pain in the night neck, right shoulder, right arm, and low back. Dr. McFadden recommended she have a cervical MRI. Dr. McFadden said Ms. White was "unable to participate in gainful employment and is likely to remain so for a period exceeding twelve months." (Exhibit 7, p. 3).
Dr. Robert P. Christopher, specialist in physical medicine and rehabilitation in Memphis, testified by deposition dated December 1, 1998. Dr. Christopher examined Bessie White one time, on July 1, 1998. Dr. Christopher said he observed Ms. White for about thirty minutes while he took down her history and he noted she was rather depressed. Dr. Christopher did a clinical examination and diagnosed rotator cuff tendonitis and impingement syndrome of the right shoulder. He thought she had not reached maximum medical improvement when he saw her because he thought she should be sent back to Dr. Hillard, the orthopaedic specialist in Tuscaloosa, for consideration of surgery. If she were not to have surgery, then she would have reached maximum medical improvement on April 24, 1997, when Dr. McAfee released her. Dr. Christopher opined that Ms. White's shoulder problems were caused by her repetitive motion work at Bryan Foods.
According to Dr. Christopher, if Ms. White did not have the recommended surgery, she would have a 14% permanent impairment to her right shoulder. He assigned permanent limitations of not lifting more than five pounds with her right arm and not do work above her shoulder. He said she should not return to repetitive motion work.
At Dr. Christopher's deposition, the employer showed Dr. Christopher the videotape of the diaphragm job at Bryan Foods. Dr. Christopher said it looked like Ms. White could do that job. He did not think that job would have caused the rotator cuff tendonitis.
Dr. Conner's records indicate that on July 24, 1998, Ms. White reported to him that her right shoulder was hurting and tired all the time. She complained of not having any energy. T. McClenton, a nurse practitioner at Conner's Family Health Clinic, completed a disability statement certifying that Bessie White had been under his professional care and was totally incapacitated from June 22, 1997, until July 24, 1998. He noted she was still unable to return to work. On August 24, 1998, Ms. White saw Dr. Conner for continuing problems with the right shoulder and some complaint about her left shoulder.
Dr. William B. Geissler, orthopaedic surgeon at the University of Mississippi Medical Center, testified that he saw Bessie Rose White on October 25, 1999, for an independent medical evaluation as ordered by the Mississippi Workers' Compensation Commission. Ms. White told Dr. Geissler she began to develop right shoulder pain in January 1997 while she worked trimming and lifting heads at Bryan Foods. Dr. Geissler assumed she did a lot of repetitive shoulder motion from her description of her work at Bryan Foods.
Dr. Geissler reviewed the medical records of Drs. McAfee, Jones, Hillard, McFadden, Christopher, and Conner. Dr. Geissler said he agreed with Dr. McAfee's and Dr. Jones's recommendations of physical therapy.
Dr. Geissler examined Ms. White and thought she displayed some symptom magnification. He checked to see if there were any signs of a cervical radiculopathy. He did not find radiculopathy, nor did he find signs of carpal tunnel syndrome. Dr. Geissler performed a Lidocaine injection of the shoulder, and she indicated symptomatic improvement. This confirmed to Dr. Geissler that her pain complaints were related to the rotator cuff. Dr. Geissler also ordered x-rays that were normal. Dr. Geissler determined that her diagnosis was rotator cuff tendonitis.
Dr. Geissler said about two-thirds of patients see improvement from rotator cuff tendonitis after a physical therapy program. Dr. Geissler thought Ms. White needed surgery, but he said he did not think the prognosis was good. In his report, Dr. Geissler wrote:
When asked about restrictions, Dr. Geissler responded that he would put Ms. White at a sedentary or light-duty position with no lifting more than ten pounds and no lifting over the shoulder level. He said these were temporary restrictions and at some point there would need to be a determination about permanent restrictions, depending on whether she had surgery.
Then the employer showed Dr. Geissler the videotape of the diaphragm job and asked if he thought she could do this job. Dr. Geissler said she should be able to do that job. He said the position in the videotape "does not show as a type of job that would show repetitive type work that we normally associate with rotator cuff tendonitis." (Exhibit 4, p. 24). He did not think the diaphragm job would have caused the rotator cuff tendonitis.
When questioned about whether Ms. White had reached
maximum medical improvement, Dr. Geissler answered that if she did not
choose to pursue surgery then she has reached maximum medical improvement.
Upon consideration of the pleadings, pretrial statements, stipulations, lay and medical evidence, demeanor of the witnesses at the hearing, and the applicable law, the Administrative Judge finds as follows:
1. The claimant, Bessie Rose White, received a work-related injury to her right arm or shoulder on January 23, 1997, as alleged in the petition to controvert. Ms. White worked for Bryan Foods doing constant, production-line, repetitive motion work with her arms and hands for twenty-three years. She did several different jobs, including cutting the meat off hog heads, splitting heads, sucking the brains out of the heads, as well as the diaphragm trimming job. Some of these jobs involved reaching with one or both hands and arms, and as she testified at the hearing about her various job duties she demonstrated that there was shoulder action required.
The employer took a videotape of some other employee doing the diaphragm trimming job and showed it to each physician who was deposed in this case, asking if that job would have caused the rotator cuff tendonitis. All of the doctors said that particular job would not have caused the rotator cuff tendonitis. There seems to be no dispute, however, that Ms. White did more than just the diaphragm trimming job, so the doctors' testimony is incomplete in regard to causation. Throughout the twenty-three years she worked at Bryan Foods, Ms. White did various jobs, all requiring repetitive motion work with her arms and hands during which activities she moved her shoulders. Dr. Jones said that a repetitive Job that involved shoulder motion, internal/external rotation or flexion/extension, could cause rotator cuff tendonitis. When she demonstrated trimming meat off the hog heads, Ms. White moved her shoulders while doing the repetitive work with her hands and arms. She trimmed meat off 250 heads an hour when she did that job.
2. The employer had timely notice of the work injury. On interrogatories submitted to the employer by the claimant, the employer responded that Ms. White reported the injury to Sheila Conaway on or about January 6, 1997. The employer also answered "No" to a question about whether the employer were prejudiced as a result of claimant's alleged failure to give timely notice of the injury.
3. Ms. White's average weekly wage on January 23,1997, was $334.01, as stipulated by the parties.
4. Because of the work injury, the claimant was temporarily totally disabled from January 27, 1997, until June 30, 1997, the day she saw Dr. Hillard and the employer denied her request for payment of surgery. Dr. Jones had released her on June 23, 1997. The employer had light-duty work available to her, and she chose not to do the work. It is clear from the videotape and from the various physicians' opinions that Ms. White should be able to do the diaphragm trimming job shown in the videotape.
5. Because of the work injury Ms. White has suffered a 40% industrial loss of use of her right arm. She has been restricted to no lifting of more than ten pounds and no work above shoulder height. Her job history, is that of repetitive motion, production-line type work that, according to her demonstration and common sense, involved shoulder as well as arm movement to do reaching and pulling. There are many factory jobs that she would not be able to perform, even if she could go back to the diaphragm trimming job at Bryan Foods, and she has suffered a significant industrial disability. She does not have a high school education, she is not very articulate, and her work history is that of an assembly line, production worker at Bryan Foods.
6. The employer shall provide the surgery recommended by Dr. Hillard and Dr. Geissler, if Ms. White desires to undergo the surgery and the physician of her choice still recommends it. Ms. White has been to three orthopaedic specialists, Drs. Jones, Hillard, and Geissler, and she may designate her choice of one of them for treatment. The employer shall provide any other treatment or diagnostic testing recommended by her choice of orthopaedic specialist, so long as it is related to the work injury, that is, rotator cuff tendonitis of the right shoulder.
7. The employer is responsible for payment for medical services and supplies rendered by or at the order of Dr. McAfee, Dr. Jones, Dr. Conner, Dr. Hillard, and Dr. Geissler. Dr. McAfee was the company doctor, and he referred Ms. White to Dr. Jones. Although Ms. White signed a choice of physician form designating Dr. McAfee as her choice of physician, at that time she did not know what her physical problem was, she did not know she would need to see a specialist. She did not know surgery would be recommended, she was not represented by an attorney, and she did not indicate a clear understanding of any rights that she might be signing away. She was, therefore, entitled to see Dr. Conner, her own family physician, and the orthopaedic surgeon to whom he referred, her, Dr. Hillard. Dr. Geissler was a Commission ordered independent medical examiner, and the employer has most assuredly already paid for his services for which the employer is responsible.
The employer is not responsible for the charges
of Dr. Christopher, to whom the claimant went for purposes of obtaining
a disability rating at the request of her attorney, or the charges of Dr.
McFadden to whom she was not referred by either Dr. McAfee or Dr. Conner.
IT IS THEREFORE ORDERED that the employer pay workers' compensation benefits to the claimant as follows:
1. Temporary total disability benefits in the amount $222.67 per week beginning January 27, 1997, and continuing until June 30, 1997, with credit for any such payments already made by the employer or for wages paid to the claimant during this period;
2. Permanent partial disability benefits in the amount of $222.67 beginning July 1, 1997, and continuing for a period of eighty (80) weeks;
3. Penalties and interest on any due and unpaid compensation benefits; and
4. Provide medical services and supplies as required by the nature of the claimant's injury and the process of her recovery therefrom pursuant to Mississippi Code Annotated, Section 71-3-15 (1995), as amended, and the Medical Fee Schedule.
SO ORDERED this the 15th day of December, 2000.
LINDA A. THOMPSON
ADMINISTRATIVE JUDGE
ATTEST:
Jo Ann McDonald, Secretary
___________________________
1. The Act is given a broad and liberal construction and doubtful cases are to be resolved in favor of compensation. See Dixie Contractors, Inc. v. Ashmore, 349 So. 2d 532 (Miss 1977), Barham v. Klumb Forest Products Center, 453 So. 2d 1300 (Miss. 1984); Stuart's, Inc. v. Brown, 543 So. 2d 649 (Miss. 1989); Vardaman S. Dunn, Mississippi Workers' Compensation, §31 (3 ed. 1982) (Supp. 1990).
2. See Houston Contracting Co. v. Reed, 231 Miss. 213, 95 So. 2d 231 (1957), finding that when the claimant was willing to undergo surgery appropriate to the restoration of health from the injury sustained, an award of permanent disability prior to the surgery was premature.