MWCC NO. 97 16783-G-2549

BEVERLY V. ROBINSON                                                                                                              CLAIMANT

vs.

FORREST GENERAL HOSPITAL                                                                                               EMPLOYER
AND
MS HOSPITAL ASSOCIATION PUBLIC W.C. GROUP                                                               CARRIER

REPRESENTING CLAIMANT:
Honorable William H. Jones, Attorney at Law, Petal, Mississippi

REPRESENTING DEFENDANT:
Honorable Joseph A. O'Connell, Attorney at Law, Hattiesburg, Mississippi
 

The Commission heard the above styled cause on April 23, 2001 in the offices of the Mississippi Workers' Compensation Commission in Jackson, Mississippi on the Claimant's "Petition for Appeal and Review Before Commission Oral Argument Requested" and Employer/Carrier's " Cross-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 September 25, 2000.

SO ORDERED, this the 25th day of April, 2001.

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

ATTEST:
Jo Ann McDonald, Secretary
___________________________
 

MWCC No. 97 16783-G-2549

BEVERLY V. ROBINSON                                                                                                                CLAIMANT

vs.

FORREST GENERAL HOSPITAL                                                                                                  EMPLOYER
AND
HEALTH CARE PROVIDERS, INC.                                                                                                  CARRIER

APPEARING FOR CLAIMANT:
Mr. William H. Jones, Attorney at Law, Petal, Mississippi

APPEARING FOR EMPLOYER/CARRIER:
Mr. Joseph A. O'Connell, Attorney at Law, Hattiesburg, Mississippi
 

Claimant had a work-related accident on November 26, 1997, injuring her back. The Employer-Carrier admitted compensability and paid medical expenses and temporary disability benefits. The hearing was held in two parts - on March 29, 2000, at the Forrest County Courthouse in Hattiesburg, Mississippi, and then on May 18, 2000, at the Jones County Courthouse in Laurel, Mississippi.
 

1. A work-related accident occurred on November 26, 1997, injuring Claimant's back.

2. Claimant's average weekly wage on the date of the work accident was $424.57.

3. There is no remaining issue to be decided regarding the existence and extent of temporary disability.

4. There is no remaining issue to be decided regarding the reasonableness and necessity of the medical treatment.
 

1. Whether Claimant has a pre-existing condition affecting any current disability.

2. Whether there is a causal connection between Claimant's work accident and any current physical disability.

3. Whether Claimant's average weekly wage should be augmented by benefits.

4. The existence and extent of permanent disability attributable to her work accident.

5. The date Claimant reached maximum medical improvement. Both parties agreed that Claimant has reached maximum medical improvement, but the remaining issue to be decided is the date.

6. Whether Claimant is entitled to recover penalties and interest on disability payments not timely made.
 

Claimant is a 42 year-old-resident of Jones County, Mississippi, with a high-school degree and vocational training as an operating room technician. Her previous work history includes being a waitress and operating a sewing machine in a factory. Immediately after her vocational training, Claimant began working at the Employer on December 4, 1989, as an operating room technician. Exhibit 18 is a description of her job duties at the Employer.

Claimant testified that she worked various shifts with the Employer over the years. However, she said she was working the 7:00 a.m. - 3:00 p.m. shift before her work accident. She was required to handle on-call duties and occasionally double shifts.

Claimant testified that on November 26, 1997, she was on call and had worked for approximately eighteen hours before her work accident. She said she was turning a patient while holding an ice pack and strap when she felt a strain in her back. She estimated that the patient weighed three hundred pounds. Since that was the last procedure for which she was scheduled that day, Claimant went home after the work accident.

Claimant said she continued to feel discomfort and pain in her lower back, and she later fell when her right leg gave way. Claimant called her supervisor, Sherrie Keith, and reported the work accident. When Claimant returned to work as scheduled on Friday, November 28, 1997, she completed an occurrence report (Exhibit 17). Claimant said she worked in pain for approximately three hours and then sought medical treatment from the Urgent Care Center, which was where employees were sent after being injured. She said she had no prior back problems before the work accident.

Claimant said she was given prescription medication and taken off work. However, she felt that her condition worsened. Claimant tried to return to work in December 1997, but was unable to work full-time due to pain in her back and numbness in her leg. In reviewing the time sheets of Exhibit 23, Claimant recalled that she worked eight days in December 1997. Claimant explained that if a lunch hour is not taken by an employee, an hour is added to the work day with pay.

Claimant was unsatisfied with her medical treatment at the Urgent Care Center, so she sought additional medical treatment from Dr. Lowry in December 1997. Claimant said Dr. Lowry treated her until August 1998, at which time Dr. Lowry relocated his practice. Claimant said that she asked to return to work at the end of January 1998 within her medical restrictions of not lifting more than twenty pounds, not working more than eight hours in a twenty-four hour period, and not excessively bending, stooping, walking or sitting. Claimant admitted that from February until May 1998, she had non-related medical problems in the form of shingles. Claimant stated that her shingles were on her left lower back and that she could distinguish a difference in pain from her back injury.

Claimant said she returned to work in May and June 1998, then she left work again due to her shingles and her work injury. Claimant testified that prior to her work accident, she earned more than $22,000.00 per year, but after her work accident she earned $3,400.00 in 1998 and $9,600.00 in 1999. She pointed out that prior to her work accident, she had been diagnosed with and suffered from shingles, but the shingles did not have any impact on her wage-earning capacity.

Claimant agreed that Dr. Lowry returned her to work on June 30,1998. She said she did not work from June until September 1998 due to her back pain and a six-week episode of shingles. Claimant said she also did not return to work because she had been referred to Dr. Ann Myers in July 1998 by Dr. Lowry. She agreed that the Employer encouraged her to return to work full time.

Claimant sought treatment from Dr. Melancon after Dr. Lowry relocated his practice. She is still being treated by Dr. Melancon. She was released by Dr. Melancon to return to work on September 8, 1998. However, Claimant recalled that Dr. Melancon advised her to work only as she could tolerate. Claimant explained that she prepared, at Dr. Melancon's request, a list of physical activities she felt she could perform (Exhibit 45).

Claimant testified that since February 1999, she has worked within Dr. Melancon's restrictions. She said if she works more than six hours, she has an increase in low back pain. She currently experiences pain in her right leg if she sits or stands for any length of time. Claimant also described tingling and numbness in her right foot. Claimant stated she has curtailed most of her outside physical activities due to her work injury.

Claimant testified that in May 1999, Dr. Melancon ordered her to undergo physical therapy. Claimant said she took the order to her supervisor, Janice, but she was not allowed time off work to undergo physical therapy. Claimant said Dr. Melancon gave her restrictions in November 1999 to not lift over 15 pounds and not work more than five to six hours.

Claimant still coaches her daughter in beauty pageant competitions, but she said that the pageants are only on weekends and her spouse helps. She also said that she does not play the organ at church as much, nor does she perform for the funeral home as much. Claimant testified that she earns $20.00 per funeral, and she has only earned approximately $450.00 in the last three to four years.

Since March 2000, Claimant has worked for the Employer in a part-time capacity. Claimant was notified by the Employer that she was involuntarily being placed on part-time employment. Claimant said that as a part-time employee, she lost her full-time benefits of vacation leave, sick leave, and the pension plan.

Claimant said she currently works in the Cysto Room at the Employer, which allows her to move about freely since she is not in a sterile field. She said that she can also alternate sitting and standing, which eases her back pain. Claimant wants to continue as an operating room technician and not work in another position at the Central Sterile Department of the Employer. She felt that she would have problems in Central Sterile with lifting trays and gathering instruments.

Mr. Bill Robinson, Jr., Claimant's spouse, testified that Claimant worked overtime hours and on call prior to her work accident. He said she earned more money prior to her work accident than afterwards. He confirmed Claimant's testimony that he helps prepare their child for pageants. He said that Claimant no longer performs physical activities due to her back injury and that she can no longer bend at the waist.

Ms. Debbie Butts testified for the Employer-Carrier. She works at the Employer as an operating room technician. Butts worked with Claimant both before and after Claimant's work accident. She did not recall seeing Claimant have physical difficulties post-injury. Butts observed Claimant lifting a child to drink out of a water fountain. She has not observed Claimant having difficulties moving in the procedure room, but she said Claimant moves more slowly and holds her back while walking in the hallways. Butts agreed that Claimant does not retrieve the instrument trays anymore. She has observed Claimant lifting trays weighing more than fifteen pounds. However, Butts later admitted that Claimant has asked for help pulling trays.

Mr. David Lawler, private investigator, testified for the Employer-Carrier. He performed surveillance and video-taped Claimant in July 1999. His video tape was entered as Exhibit 43. Lawler admitted that during his surveillance, he did not observe Claimant driving her vehicle. However, he said Claimant did not appear to be in physical pain or distress.

Mr. Steve Lawler, private investigator, testified for the Employer-Carrier. He continued the surveillance of Claimant that David Lawler started in July 1999. He observed Claimant being physically active and being able to bend, stoop, twist and kneel. He felt Claimant was not restricted in her movements and did not see Claimant wearing a TENS Unit.

Mr. Frank Jones, owner of Jones Funeral Home, testified for the Employer-Carrier. He confirmed that Claimant occasionally works as an organ player and singer for funerals at his funeral home. He listed in Exhibit 44 the payments made to Claimant for her performance at funerals. The total payments were $460.00 from December 1997 until December 1999. He recalled that before Claimant's work accident, Claimant was very reliable and worked numerous times.

Ms. Judy Heintz testified for the Employer-Carrier. She has been an operating room technician at the Employer for fifteen years and has worked with Claimant. She agreed that Exhibit 18 accurately described the duties of an operating room technician. Heintz testified that she has observed inconsistencies in Claimant's physical performance at work. She thought Claimant moved differently while being observed.

Mr. Kenneth Jordan testified for the Employer-Carrier. He has been at the Employer for twenty-eight years and is currently the Director of Human Resources. Jordan recalled that he twice asked Claimant to return to full-time work. He said he first asked in May 1998 after Dr. Lowry gave Claimant her initial restrictions. He confirmed that Claimant returned to full-time work for about four months but was then out of work due to shingles. He stated Claimant returned to work again in September or October 1998.

Jordan said he asked Claimant to return to work the second time when Dr. Melancon gave her restrictions of no lifting over 15 pounds and no excessive stooping, bending, or crawling. He agreed that Claimant was later restricted to working no more than eight hours in 24 hour period. He said Claimant was taken off work again for approximately one month, but he was unaware if the leave was due to her back injury or her shingles.

Jordan confirmed that Claimant returned to work in January 1999 with restrictions from lifting more than fifteen pounds, working more than five to six hours per day, and excessive stooping or bending. Jordan testified that the Employer would modify the operating room technician job description to fit Claimant's physical restrictions if the restrictions were temporary.

Jordan agreed that due to her physician's restrictions, Claimant does not meet the physical requirements of an operating room technician as set forth in Exhibit 18. Jordan testified that he attempted to get Claimant to work different procedures in the operating rooms, but she refused. He met with Claimant twice to discuss her restrictions and her work.

Jordan admitted that Claimant worked full-time before the work accident even though she suffered from shingles. Although he agreed that Claimant's prior performance evaluations were good, he felt that Claimant was feigning her work injuries so that she would not have to work as much. He felt Claimant could return to full-time work in her pre-injury position.

Ms. Janice Tisdale testified for the Employer-Carrier. She has worked at the Employer for approximately 20 years and is currently Patient Care Manager of the Surgery Department. Tisdale said Claimant could work in other areas in order to get full-time pay. She said there were other positions available for Claimant, such as in Central Sterile. She did not feel that a lifting restriction was an obstacle to working as an instrument technician. Tisdale confirmed that employees could get assistance with lifting trays.

Tisdale admitted that there were no other part-time operating room technicians (other than Claimant), nor has she hired any employees that did not meet the job requirements of Exhibit 18. Tisdale said Claimant was asked to work as an instrument technician, which involved less sitting and standing. However, Tisdale admitted that an instrument technician position required different training and that the position would not always allow alternate sitting and standing. Nevertheless, Tisdale felt that accommodations could be made for Claimant's work restrictions.

Tisdale identified Exhibit 24 as a list of procedures Claimant has worked post-injury. Tisdale said she attempted to get Claimant to try different procedures, but Claimant refused. She also recalled Claimant did not want to work her assigned schedule. Tisdale observed Claimant bending, stooping, and lifting; however, she agreed that Claimant had some good days and some bad days.

Ms. Mary Ann Purvis testified for the Employer-Carrier. She is the Patient Care Manager at the Employer. Purvis testified that she met with Claimant in August 1999 in an attempt to expand Claimant's hours and role in the operating room. Purvis said Claimant was reluctant to handle different procedures and return to full-duty work because of her physical restrictions.

Ms. Janet Dawson testified for Claimant in rebuttal. Dawson has worked at the Employer for eight years and is a registered nurse in the surgical area. She said she has not seen Claimant wear a heavy lead apron since Claimant's work accident. However, Dawson admitted that she does not work with Claimant all the time.

Ms. Tharesa Bullock testified for Claimant in rebuttal. She has been the Employer's Patient Care Coordinator in Surgery for the past six years. Although she stated that she had never seen Claimant wear a lead apron, Bullock admitted that she does not work with Claimant every hour.
 

The medical records of the Urgent Care Center indicate Claimant was treated on November 28, 1997, for an injured right hip with radiating pain in the right leg. The records also indicate that Claimant complained of numbness and tenderness over the right side of the back. She was diagnosed with a lumbar strain with sciatica. Claimant was given medication and was to return as needed. On December 2, 1997, there is a record that Claimant called the clinic to complain of continuing pain with weakness in her leg.

Claimant visited the clinic on December 4, 1997, indicating that her pain and numbness had not improved. There is a notation that there was tenderness at the sacroiliac area and limitation of motion. Claimant was given prescription medication and referred to Dr. Walker. Claimant returned to the clinic on December 9, 1997, for right hip pain and right leg numbness. She was diagnosed with a lumbosacral strain and given prescription medication.

On December 11, 1997, Claimant returned to the Urgent Care Center complaining of continuing pain and right leg weakness. There is a notation that Claimant was worried about her problems not being alleviated. Claimant was referred to Dr. Sutherland. Claimant was concerned about the numbness in her leg and that she was having difficulties working; however, the Urgent Care Center personnel advised Claimant to continue to work.

On June 15, 1998, Claimant visited the Emergency Room of Forrest General Hospital. The triage sheet indicates that Claimant complained of shingles and pain in her lower back and right lower extremities. Claimant also reported her prior back injury at work. Dr. Mark Giacomin saw Claimant in the Emergency Room and noted that Claimant was complaining of pain from her shingles and not her back. He wrote, "She can tell the difference between the two types of pain." Claimant was given prescription medication and referred to a specialist.

The Forrest General Hospital records in Exhibit 11 indicate Claimant had a series of diagnostic tests. The first test was on December 26, 1997, which was a lumbar spine x-ray. That x-ray showed normal results with some mild osteoporosis. On that same date, an MRI of Claimant's lumbar spine was taken, which was considered normal. On April 17,1998, a lumbar myelogram was performed by Dr. Michael Lowry, which was considered to be normal. A lumbar spine CT taken on that same date was also considered normal. Another lumbar spine x-ray was taken May 21, 1999, which showed no significant abnormalities.

Dr. Ronald Bullock of the Hattiesburg Clinic saw Claimant on August 23, 1996, for a loss of consciousness. Dr. Bullock examined Claimant and suspected a psychiatric problem, so he referred Claimant for a neurological and psychological consultation. Dr. Mark Purcell saw Claimant for the neurological consultation and felt Claimant had acute encephalopathy and depression.

Dr. Michael Lowry, neurosurgeon, first treated Claimant on December 30, 1997. He noted that Claimant reported a work accident injuring her back while she was assisting with a patient. She complained of pain in her back with numbness and weakness in her right leg. Dr. Lowry stated that Claimant had seen him at work and mentioned her problems, but Claimant was actually referred to Dr. Lowry by the Urgent Care Center.

After reviewing an MRI scan and conducting a physical examination of Claimant, Dr. Lowry diagnosed Claimant with a lumbosacral strain injury consistent with the work accident. He took Claimant off work, gave her prescription medication, and ordered physical therapy. He treated Claimant again in January 1998, at which time Claimant reported no significant improvement.

Dr. Lowry was concerned about Claimant's complaints of paranesthesia and tingling in her right leg, which he felt was not indicated by her physical examination. Since he noted that Claimant was eager to return to work, he returned her to light-duty work on January 26, 1998. He limited her to no lifting over twenty pounds and no working longer than eight hours at a time.

Dr. Lowry saw Claimant again in February 1998, at which time she continued to complain of weakness in her right leg. He noted that Claimant had independently consulted an anesthesiologist for epidural steroid injections. Dr. Lowry agreed that Claimant should continue to stay off work and continue her physical therapy. Although Dr. Lowry was scheduled to see Claimant again in March 1998, she reported to him that she was experiencing shingles. Therefore, he did not see Claimant again until April 17, 1998, for a myelogram and CT scan. He found the studies to be normal.

On May 4, 1998, Dr. Lowry noted Claimant's continued complaints of pain; however, he advised Claimant to return to work with some physical restrictions. He limited her from lifting more than fifteen pounds with no excessive bending or stooping. When Dr. Lowry saw Claimant two weeks later, Claimant reported that she had twisted her back while working when her right, leg suddenly felt numb. However, she continued to work.

Dr. Lowry saw Claimant again in June 1998. She continued to complain of pain in her back, right hip, and right leg, along with paranesthesia down the leg to the foot and the big toe. Dr. Lowry agreed that Claimant's shingles affected a different area of her leg. He thought that her specific complaints of numbness indicated an L5 root problem, but he found no objective evidence to substantiate her complaints.

On August 10, 1998, Dr. Lowry found some decreased pin prick perception over the lateral aspect of Claimant's right foot. He found her straight leg raising test to be negative. He diagnosed Claimant with chronic lower back pain with a suggestion of S1 radiculopathy, although he did not find objective evidence to support the radiculopathy complaint. Dr. Lowry released Claimant to return to work with the restrictions he had indicated in May 1998.

Dr. Lowry explained that the EMG study performed by Dr. Helveston examined Claimant's right leg and some muscles in the lower back. He agreed that the study was normal according to Dr. Helveston's report. Dr. Lowry testified that since the diagnostic tests were normal, he treated Claimant conservatively. He felt the appropriate diagnosis for Claimant was a lumbar strain or sprain with a possibility of radiculopathy. Dr. Lowry could not ascertain the etiology of Claimant's leg weakness and numbness.

Dr. Lowry stated that when he released Claimant to return to work on May 4, 1998, he never took Claimant off work again. Dr. Lowry testified that the restrictions he placed on Claimant in May 1998, would eventually be lifted as her problems resolved. However, he felt Claimant should see a different physician for her leg pain. Since he did not continue to treat Claimant, Dr. Lowry could not say when Claimant reached maximum medical improvement.

Dr. Keith Melancon, orthopedic surgeon, was initially approached by Claimant at work. He began treating her on January 26, 1998, for back and leg pain. His examination indicated some S1 weakness and symptoms consistent with nerve root irritation. Dr. Melancon found that Claimant had a mild disc bulge but did not have a herniated disc. He thought the bulge was enough to give Claimant some nerve root irritation. He diagnosed Claimant with lumbar disc disease and referred Claimant for epidural steroid injections.

On September 8, 1998, Dr. Melancon advised Claimant to stand no more than one hour at a time in one place and work no more than eight hours in a 24-hour period. He recommended that she work only in the Cysto Room at the Employer since it did not involve a lot of lifting or moving heavy equipment.

Dr. Melancon saw Claimant again on October 1, 1998, and took Claimant off work until her next scheduled appointment on October 19, 1998. He prescribed medication and physical therapy. Dr. Melancon continued to treat Claimant for low back pain and leg pain, which he felt was consistent with irritation of the S1 nerve root. The MRI and x-rays showed no surgical lesions in Claimant's back. However, Dr. Melancon maintained that the diagnostic tests indicated some lumbar instability at the L5-S1 level. In May 1999, Dr. Melancon ordered Claimant to undergo physical therapy. He did not feel Claimant would be at maximum medical improvement until she completed the physical therapy program.

Dr. Melancon testified that Claimant's complaints of back and leg pain had been consistent since the date of her work accident. He permanently restricted Claimant from lifting more than fifteen pounds. He also said Claimant should not repetitively bend, crawl, kneel, or stoop. Dr. Melancon opined that Claimant's work accident caused or contributed to her lumbar instability.
Dr. Melancon testified that his diagnosis of instability was consistent with Claimant's other physicians' diagnoses of low back strain or sprain. He explained that since Claimant had a dynamic problem with changes in pressure within the thecal spaces, her problem may not be apparent on all diagnostic studies. However, Dr. Melancon said that the lateral lumbar spine flexion and extension views showed Claimant had a loss of parallelism between the end plates of the L5-S1 vertebrae of 17 degrees. Dr. Melancon testified that Claimant was never a surgical candidate and that only epidural steroids, analgesic control, and therapy could treat her back condition.

In November 1999, Dr. Melancon testified that the job of operating room technician would require modification for Claimant. Dr. Melancon felt that there were certain jobs in the operating room that would not fall within Claimant's restrictions. However, he agreed that Claimant could return to work for an eight-hour day with accommodations. He expressed concern that the Employer had been unwilling in the past to reasonably accommodate Claimant's restrictions.

As of November 1999, Dr. Melancon felt that Claimant could be at maximum medical improvement; however, he testified that he needed to evaluate and examine Claimant before pronouncing her to be at maximum medical improvement. Dr. Melancon did not want Claimant to work on call while being treated since that could potentially involve her working up to 24 hours. He did not want Claimant to work more than eight hours per 24-hour period.

Dr. Melancon had released Claimant to return to work within restrictions on October 19, 1998. On May 5, 1999, Dr. Melancon prescribed a brace and a TENS Unit for Claimant. On August 11, 1999, Dr. Melancon wrote an order that Claimant should remain at her existing restrictions of no more than 15 pounds lifting and 5-hour work days. As of November 1999, Dr. Melancon felt that Claimant should still be under those restrictions. He was hopeful that at some point Claimant could return to work a full eight-hour day. Dr. Melancon testified that Claimant did not meet the existing physical requirements of an operating room technician for the Employer.

Dr. Wendell R. Helveston with the Department of Neurology with the Hattiesburg Clinic saw Claimant on February 27, 1998, for an EMG and nerve conduction study of the right lower extremity and right paraspinous muscles. Dr. Helveston opined that the tests were normal.

Dr. Stanley W. Chapman with Hughes and Associates reviewed Claimant's medical records and issued a report dated August 4, 1998. Dr. Chapman opined that Claimant had a minor lumbar sprain/strain in November 1997 and that no anatomic or structural defects had been documented as causing her chronic pain. He decided that Claimant's rashes were not the shingles, contrary to Claimant's treating physician's diagnosis. He did not feel that her rash was precipitated by psychological stress, chronic pain, or the epidural injections.

Dr. David C. Collipp, physical medicine and rehabilitation specialist, reviewed Claimant's medical records at the Employer-Carrier's request.¹ Dr. Collipp opined that his review of the x-rays, MRI's, myelogram, and post myelogram CT scan showed "no findings consistent with, or diagnostic of nerve root irritation." He went on to say, "Nor are there any findings consistent with, or diagnostic of dynamics segmental instability." He also noted that there was a complete lack of evidence of nerve root damage or irritation from the EMG studies.

Dr. John M. Wyatt, physical medicine and rehabilitation specialist, saw Claimant on March 18, 1999, for an employer medical examination. He reviewed Claimant's medical records, diagnostic tests, and the deposition of Dr. Lowry. Dr. Wyatt felt Claimant initially sustained a low back strain from her work accident of November 26, 1997. However, he said Claimant should have recovered from the strain within a ninety-day time period. He opined that Claimant should have reached maximum medical improvement within 90 to 120 days of the injury with no permanent disability.

Dr. Wyatt thought Claimant should have no restrictions from returning to work in a normal work schedule as an operating room technician. He saw no further need for medical treatment. He felt there were inconsistencies between Claimant's complaints of pain and her physical examination. Dr. Wyatt testified that Claimant did not have lumbar disc disease at the L5-S1 level, nor did she have any instability or any apparent physical problem causing radiculopathy.

However, Dr. Wyatt admitted that the diagnostic test showed a disc bulge at the L5-S1 level that was not impeding the nerve root or thecal sack. Dr. Wyatt admitted Claimant did have some low back pain related to the work accident. Dr. Wyatt explained that although he would not restrict Claimant's work hours, his understanding was that leave time was allowed after working a large number of hours.
 

I base the following findings on a preponderance of the evidence, including medical proof as required by the Mississippi Worker's Compensation Law:

1. Claimant had a work-related accident on November 26, 1997, injuring her lower back.

2. As stipulated, there is no remaining issue to be decided regarding temporary disability or the reasonableness and necessity of the medical treatment.

3. The parties stipulated that Claimant's average weekly wage on the date of her work accident was $424.57. As to the issue of augmentation of Claimant's average weekly wage by benefits, I find that Claimant's average weekly wage of $424.57 should not be augmented.

4. Claimant has reached maximum medical improvement, as stipulated by the parties. Her first treating specialist (Dr. Lowry) returned Claimant to work with restrictions on May 4, 1998. Dr. Lowry testified that he did not take Claimant off work again. After Dr. Lowry left, Claimant was treated by Dr. Melancon. He returned Claimant to work with restrictions on September 8, 1998. However, Dr. Melancon continued to treat Claimant and prescribed physical therapy in May 1999. He did not want to say Claimant was at maximum medical improvement until he examined Claimant when she finished completing the physical therapy. There was no follow-up notation concerning a post-physical therapy evaluation.

Since both treating specialists released Claimant to return to work with restrictions, she has reached maximum medical improvement even though she may have sporadic periods of temporary disability for additional treatment. Since Dr. Lowry was Claimant's initial treating specialist, I adopt his date of May 4, 1998, as Claimant's maximum medical improvement date. That date was when Dr. Lowry first released Claimant to return to work with restrictions.

5. Claimant has met her burden of proof that she is entitled to permanent disability benefits under the Mississippi Workers' Compensation Law. First of all, Claimant has suffered a physical injury from her work accident on November 26, 1997. The preponderance of the evidence, including the medical evidence, showed that Claimant's disability from her lower back injury is causally connected to her work accident.

Additionally, both Claimant's treating specialists (Dr. Melancon and Dr. Lowry) have placed Claimant under permanent physical restrictions. Based upon those physical restrictions, Claimant does not meet the qualifications of the job requirements for an operating room technician with the Employer, which is the position Claimant held both post- and pre-injury. Dr. Melancon confirmed that Claimant was unable to meet some of the physical requirements of an operating room technician. Not only did Dr. Melancon place Claimant under physical restrictions, he also restricted Claimant from working more than eight hours in a 24-hour period.

Claimant has met her burden of proof that she suffered from a physical injury arising out of and in the course of her employment, as well as a causal connection between her injury and her present disability. Considering the testimony and evidence by both parties, including Claimant's education, work experience, and the medical opinions by the treating and examining physicians, I find Claimant has sustained a 10% loss of wage-earning capacity.

6. Claimant is entitled to recover penalties and interest as provided by the Act on any installments of disability not timely paid.
 

IT IS, THEREFORE, ORDERED AND ADJUDGED that the Employer-Carrier provide compensation benefits to the Claimant as follows:

1. Permanent partial disability benefits of $28.32 beginning May 4, 1998, and continuing for a period of 450 weeks as compensation for disability to Claimant's lower back. There shall be added to each installment of compensation not timely paid the equivalent of ten per cent (10%) thereof as provided in Miss. Code Ann. §71-3-37(5) (Rev. 1995) together with interest at the legal rate from and after the date the petition was filed. Employer-Carrier is entitled to proper credit for any such payments of compensation heretofore made to Claimant.

2. Pay for, furnish and provide to Claimant all reasonable and necessary medical services and supplies as the nature of her injury and the process of her recovery may require in accordance with Miss. Code Ann. §71-3-15 (Rev. 1995) and the Medical Fee Schedule.

SO ORDERED this the 25th day of September, 2000.

TAMMY GREEN HARTHCOCK
ADMINISTRATIVE JUDGE

ATTEST:
Jo Ann McDonald, Secretary
___________________________

1. Claimant objected to Dr. Collipp's records (Exhibit 15) at the hearing. I hereby overrule Claimant's objections to Exhibit 15 and allow Dr. Collipp's records into evidence.