Wilson v. Hancock Medical Center, MWCC No. 97-04395-G-1299, May 2001

MISSISSIPPI WORKERS' COMPENSATION COMMISSION

MWCC NO. 97 04395-G-1299-C-00

LARRY W. WILSON
vs.
HANCOCK MEDICAL CENTER
AND
MS HOSPITAL ASSN. PRIVATE WC GROUP

CLAIMANT

EMPLOYER

CARRIER

REPRESENTING CLAIMANT:
Honorable John F. Hester, Attorney at Law, Gulfport, Mississippi

REPRESENTING DEFENDANT:
Honorable Donald P. Moore, Attorney at Law, Gulfport, Mississippi

FULL COMMISSION

The Commission heard the above styled cause on May 14, 2001 in the offices of the Mississippi Workers' Compensation Commission, Jackson, Mississippi on the Claimant's "Petition for Review," by the Full Commission.

Having heard the arguments offered on behalf of the parties and having thoroughly studied the record and the applicable law, the Commission affirms the "Order of Administrative Judge" dated January 2, 2001.

SO ORDERED, this the 7th day of ,2001.

MISSISSIPPI WORKERS' COMPENSATION COMMISSION
BY: BARRETT SMITH
BARNEY SCHOBY
COMMISSIONERS

ATTEST:
Jo Ann McDonald, Secretary
___________________________

MISSISSIPPI WORKERS' COMPENSATION COMMISSION

MWCC NO. 97 04395-G-1 299-C-00

LARRY E. WILSON
vs.
HANCOCK MEDICAL CENTER
AND
MS HOSPITAL ASSN. PRIVATE WC GROUP

CLAIMANT

EMPLOYER

CARRIER

REPRESENTING CLAIMANT:
Honorable John F. Hester, Attorney at Law, Gulfport, Mississippi

REPRESENTING DEFENDANT:
Honorable Donald P. Moore, Attorney at Law, Gulfport, Mississippi

OPINION OF THE ADMINISTRATIVE JUDGE

The claimant, Larry E. Wilson, filed a Petition to Controvert on October 20, 1997 alleging injury on March 17, 1997. On February 19, 1999, Administrative Judge Deneise Turner Lott issued an order which noted that the employer and carrier admitted the compensability of the injury occurring on March 17, 1997 but denied claimant's claim for permanent disability benefits arising out of the injury. An appeal of the Administrative Judge's order was taken. On August 31, 1999 the Full Commission issued an order affirming the order of the Administrative Judge. No appeal from the Full Commission's order was perfected.

On June 6, 2000 the claimant, through counsel, filed a second Petition to Controvert alleging the date of injury as March 17, 1997. Claimant's counsel was directed that same was treated by the Commission as a motion to reopen. The claimant then filed a Claimant's Supplemental Motion to Reopen and attached thereto a copy of the second Petition to Controvert on August 2, 2000. The employer and carrier responded by filing a document captioned Opposition to Motion to Reopen a Record. No B-31 has been filed in this case.

This case was considered on the claimant's motion to reopen on December 6, 2000 in Gulfport, Mississippi.

ISSUES FOR DECISION

The issues sole issue for decision in this matter at this time is whether the claimant's claim can be reopened. This issue is governed by Mississippi Code Annotated, section 71-3-53 (1972) (Supp. 1990), which states, in pertinent part:

Upon its own initiative or upon the application of any party in interest on the ground of a change in condition or because of a mistake in a determination of fact, the commission may, at any time prior to one (1) year after date of the last payment of compensation, whether or not a compensation order has been issued, or at any time prior to one (1) year after the rejection of a claim, review a compensation case, issue a new compensation order which may terminate, continue, reinstate, increase , or decrease such compensation, or award compensation. In this case, the claimant requests that the commission review his case based on a change in condition, namely that a natural progression of the disk injury he sustained March 17, 1997 has required him to obtain medical treatment, including back surgery on January 13, 2000, which the employer and carrier has not authorized or provided. The claimant alleges that although his primary treating physician has determined that he reached maximum medical improvement in July of 2000, and although he has returned to gainful employment, he continues to treat with his physician and this medical treatment is the fiscal responsibility of the employer.

The employer and carrier argue that the claimant has presented no medical evidence to prove a change in condition, which is the sole responsibility of the moving party. The employer and carrier also pointed to Administrative Judge Lott's finding of inconsistencies in the claimant's testimony which should render his current testimony suspect.
SUMMARY OF THE RELEVANT EVIDENCE

The claimant, Larry E. Wilson, testified that he is a 48 year old resident of Bay St. Louis, Mississippi. He testified that he sustained an admittedly compensable injury on March 17,1997. After processing his workers' compensation claim on this injury, he testified that he worked part-time with his landlord for a period of approximately one-half a month waxing floors in the complex. He then obtained a position with Sun Vista, a construction operation, where he functioned as a clean up man and also occasionally picked up materials needed by the crew. He worked in this job until October of 1999, when he obtained a permanent custodial job with the Pass Christian School District, performing light chores.¹

The claimant testified that in 1999 he began experiencing right hip and leg pain. Being a veteran, he reported to the Veteran's Administration Hospital. Pursuant to his physician's recommendations, surgery was performed at the VA Hospital in Jackson on January 13, 2000, and he was released to the care of the hospital located in Biloxi on the following day. He did not work from the date of his surgery until July of 2000, when he returned to his regular job as custodian of the elementary school which is a part of the Pass Christian School District.

He testified that since his release from the hospital in Jackson, he has engaged in physical therapy for his right hip and leg, gait instruction, tens unit instructions, and that he currently uses a tens unit and returns to the VA for treatment on a monthly basis. He testified that his current treating physician provides him prescription medications for pain and that he suffers occasional right leg numbness and wears a brace on his right leg to guard against falling. He testified on the 6th of December, 2000, that his most recent visit to his physicians at the VA Hospital was November 30, 2000, and that his care is being managed by Doctors Swamy, Evans and Rome, who prescribe medications including Neurontin, muscle relaxers and pain medications, including a tens unit. He testified that his current work restrictions include no lifting over five pounds, no mopping, sweeping, or buffing and "lots of other restrictions..."

The claimant testified that since his original injury on March 17, 1997, he has sustained no other injuries.

On cross-examination, the claimant admitted that he was being treated by physicians at the VA Hospital prior to the hearing before Administrative Judge Lott and that there was some question among the VA medical staff as to whether the claimant tended to malinger.

Mr. Wilson testified that he did not recall the last time he worked scrubbing floors for his landlord, but that it would be prior to the inception of the 2000-2001 school year. After being shown exhibit E/C-12, an affidavit relative to his Request for Verification of Employment for his Annual Recertification for Assisted Housing, he recalled that he had probably done "a little floor work in September of 2000."² When asked why he had not advised the housing authority about his permanent position with the Pass Christian School District, he simply said "I told him."

On redirect, the claimant testified that the affidavit that he signed was prepared for him by his landlord Danny Crankey. He did not deny, however, that he signed the document and that it was submitted on his behalf.

Exhibit E/C-11 is a document which patently. denies that the claimant has an employment history with Sun Vista, but does indicate that he worked as a sub-contractor on a job which ended October 21, 1999.

Exhibit U/C-13, the form Request for Verification of Employment, in its personal declarations portion, reflects that the claimant alleges his gross weekly wages to be $125.00 and that he has no other income not listed. It is signed August 28, 2000, at least a month after the claimant returned to work for Pass Christian School District.

The Department of Veterans Affairs testified through records introduced into evidence as exhibit CL-10. This exhibit is in four parts, described as follows:

One part with cover letter directed to John F. Hester, dated September 21, 2000, from Ingrid S. Samson

One part contained in a dark manilla folder labeled Wilson, Larry E., 587-66-9133 on its tab, with "computerized medical records" written on the face of the folder

One part contained in a light manilla folder labeled Wilson, Larry E., 587-66-9133 on its tab, and with VA MEDICAL RECORDS imprinted on the face of the folder, with the addition of a bold orange sticker containing the following: "The Biloxi VAMC recognizes electronic information stored in DHCP/VISTA as a component of the Consolidated Health Record. Information stored in DHCP/VISTA is not necessarily filed in print."

One part with cover letter directed to John F. Hester, dated August 1, 2000, from Cheryl M. Keebler, Ph.D., Acting Health Information Manager.

The undersigned has carefully reviewed documents contained in each of the four parts of the medical records aforedlescribed in order to determine whether the claimant has sustained a change in condition which is attributable to his March 17, 1997 injury.
DECISION

After considering the lay and expert testimony adduced in this cause, together with the documentary evidence and the relevant law, the undersigned finds that the Claimant's Supplemental Motion to Reopen is due to be denied. This judgment is discretionary with the Commission.³

In this particular case, the undersigned looked for evidence of any one of the following factors:

that the claimant had sustained a change in "medical' condition which was attributable to his March 17, 1997 injury;

that the claimant had sustained a change in his "physical' condition attributable to his March 17, 1997 injury which affected his earning capacity or ability to work;

that a change had occurred in the claimant's ability to get or hold employment or to maintain prior economic levels, even though "physical" or "medical" changes attributable to his March 17, 1997 injury have not occurred.

There is a dearth of lay or medical evidence to support the existence of one of these factors, thus resulting in the denial of claimant's motion.

ORDER

The Claimant's Supplemental Motion to Reopen be and the same hereby is DENIED and DISMISSED.

SO ORDERED this the 2nd day of January, 2001.

LYDIA QUARLES
ADMINISTRATIVE JUDGE

ATTEST:
Jo Ann McDonald, Secretary
___________________________

1. The claimant testified that heavy cleaning jobs were performed by an industrial crew engaged by the district to clean the schools in the evenings.

2. The claimant's sworn statement, dated September 14, 2000, indicates that the claimant is representing to the housing authority that he has "income that is not easily verifiable" because he is "a self-employed floor care re-finisher" who has been in this particular business "for about 6 weeks." It makes no mention of his full time job as custodian at the Pass Christian School District.

3. North Mississippi Med. Center v. Henton, 317 So. 2d 373 (Miss. 1975); Bennett v. United Parcel Service, 382 So. 2d 469 (Miss. 1980).