MWCC NO. 97 12044-G-2655
| ROSIE SMITH
vs. GRAND CASINO-BILOXI
|
CLAIMANT
EMPLOYER
CARRIER
|
REPRESENTING CLAIMANT:
Honorable Robert E. O'Dell, Attorney at Law,
Pascagoula, Mississippi
REPRESENTING DEFENDANT:
Honorable Virginia Gautier, Attorney at Law,
Jackson, Mississippi
The Commission heard the above styled cause on May 14, 2001 in the offices of the Mississippi Workers' Compensation Commission in Jackson, Mississippi on the Claimant's "Petition for Review By 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 November 29, 2000.
SO ORDERED, this the 21st, day of May, 2001.
MISSISSIPPI WORKERS' COMPENSATION COMMISSION
BY: BARRETT SMITH
BARNEY SCHOBY
LYDIA QUARLES
COMMISSIONERS
ATTEST:
Jo Ann McDonald, Secretary
___________________________
MWCC NO. 97 12044-G-2655
| ROSIE SMITH
vs. GRAND CASINO-BILOXI
|
CLAIMANT
EMPLOYER
CARRIER
|
REPRESENTING CLAIMANT:
Honorable Robert E. O'Dell, Attorney at Law,
Pascagoula, Mississippi
REPRESENTING DEFENDANT:
Honorable Virginia Gautier, Attorney at Law,
Jackson, Mississippi
The claimant filed her petition on April 28, 1998
alleging injuries to her right hip, right leg, right arm and low back stemming
from a work accident on August 26, 1997.1 The
employer and carrier have denied the claim. The case was heard on the merits
in Gulfport on June 13, 2000, after which the record was kept open pending
submission of briefs by counsel. The record was closed upon receipt of
the claimant's brief on September 5, 2000, except as noted in the following
section of this order.
Prior to the hearing, the parties were able to stipulate that the claimant's average weekly wage was $250.32, and that General Exhibits 1-12, as set out in the Exhibit Inventory herein, were admissible in evidence. At the beginning of the hearing, the medical records under affidavit of Dr. Dunk Ellis were admitted over the defendants' objection as Claimant's Exhibit 13, on the condition that the defense would have the option to depose Dr. Ellis following the hearing; a composite of correspondence regarding the claimant's post-injury return to work was admitted over the defendants' objection as Claimant's Exhibit 14; and the medical records under affidavit of Dr. Terry Millette, and some unattested supplemental records of Dr. Millette, were admitted over the defendants' objection as Claimant's Exhibits 15 and 16 respectively, on the condition that the defense would have the option to depose Dr. Millette following the hearing.2 The medical records under affidavit of Dr. William bridges were admitted by stipulation during the hearing as General Exhibit 17.
Upon reviewing the brief prepared by counsel for
the claimant and the record evidence, the Administrative Judge noted that
counsel was referring to and quoting from certain records of Dr. Millette
that had not been separately admitted into evidence at the hearing, whereupon
a search of the case file revealed that these particular records had apparently
been filed with the Commission as an attachment to the claimant's Pretrial
Statement on December 2, 1998. Because these records reportedly cover Dr.
Millette's treatment of the claimant from the date of injury through August
of 1998, because both parties apparently assumed at the time Exhibit 5
was admitted at the hearing by stipulation that these additional records
were being admitted as a part of said Exhibit 5, because these records
are necessary to provide a complete picture of the claimant's medical treatment
following her subject injury, because the records are attested by proper
affidavit, and because neither party would be unduly prejudiced by the
admission of these records into evidence, said records were duly admitted
and marked as Claimant's Exhibit 18 on the motion of the Administrative
Judge on October 27, 2000.
Ms. Smith is a 47 year old married resident of Moss Point with a high school diploma who worked variously as a cashier at McDonald's, as a cable puller and storeroom clerk at Ingalls Shipyard, as a shrimp packer at Gulf City Fisheries, as a housekeeper at the Broadwater Tower Hotel, and as a custodian at Treasure Bay Casino prior to being hired by the Grand Casino in Biloxi in May of 1995. She testified that she started in the Grand's housekeeping department and eventually became a lobby attendant in August of 1997; that she worked the 12:15 a.m. to 8:15 a.m. shift, known as the "graveyard" shift; that she worked five days a week, earning $6.55 per hour for a 40 hour week; and that her duties involved vacuuming, mopping, dusting and cleaning the bathrooms in the Arcade and Kids Quest areas of the casino. She said she first noticed her injury at about 7:45 a.m. on August 26, 1997, when she had finished using a carpet cleaner and reached down to retract the power cord, at which point she felt pain in her right hip and leg, and she then "noticed a limp" when she began walking to store the cleaning equipment. Ms. Smith stated that she then went to an 8:00 a.m. meeting of her cleaning crew, where she told her supervisor, Mike Kokobun, about her injury, but he merely smiled and shook his head. She said she then went home, took a bath, went to bed and slept from 10:00 a.m. until 10:00 p.m., and then got up to get ready for her next shift, at which time she was not having any pain in her leg or hip. The claimant testified that she began her shift on time, cleaning in the Kids Quest area, but she began to notice the pain returning in her hip and leg after pushing a buggy loaded with four trash bags to a dumpster, and the pain got worse and her right foot began to go numb after she began vacuuming. She said that after her 30 minute meal break she began mopping and then felt pain in her lower back and weakness in her legs, and she next felt pain in the middle of her upper back while she was cleaning windows. She said she reported this to Mike Kokobun and asked him if she could take a break, but he said she would have to go home if she was hurting, and he asked her if she wanted to fill out an accident report. She testified that even though she declined to fill out a report., Kokobun instructed her to meet him in the security office, where a report was indeed taken by an officer, who then put her in a wheelchair and took her to the hotel lobby to be picked up and taken home by her brother at about 5:00 a.m. She said the security officer did not offer to send her a doctor.
A composite of report documents and forms completed by the claimant and various Grand employees on August 27, 1997 in response to the alleged injury, inclusive of an MWCC Form B-3, is in evidence by stipulation as Exhibit 10. An "Incident Report" signed by security officer Bruce Blayney confirms that Ms. Smith alleged injuries to her right leg and hip occurring on August 26, but states that she "declines treatment or emergency transportation" and instead indicated she would go home and see her own doctor later on the 27th. An "FRT Report Form" completed by William Sheppard acknowledges the claimant's complaints of right hip and leg pain originating on the 26th while she was "extracting carpet" and that she was having difficulty walking, but Sheppard noted that she had injured the same hip one month before. An "Associate Accident and Treatment Form," admittedly signed and partially completed by the claimant, contains her admission that she had injured the same part of her body "two months ago pulling a trash can." A "Mississippi Workers' Compensation Physician Choice Form," admittedly signed by Ms. Smith, documents the claimant's selection of her own doctor, Dunk Ellis, as her chosen physician. The MWCC B-3, prepared by Dara Turner on September 2, 1997, confirms that the claimant alleged right hip and leg pain beginning while she was cleaning carpet on August 26 and that the employer was notified on August 27.
The claimant testified that she first sought treatment for her injury on August 28, 1997 at Dr. Ellis' office, where she was examined by a female associate who prescribed pain and muscle relaxant medications and told her not to work. She said Dr. Ellis reviewed and approved the associate's diagnosis and prescriptions before she left the office, but no one gave her a work excuse slip. Dr. Ellis' records under affidavit are in evidence as Exhibit 13, and they indicate that the claimant indeed presented on August 28 with complaints of right hip and leg pain, that she indicated she had seen a chiropractor after leaving work the previous day, and that the doctor's impression was that she had a "pinched nerve or sciatica." The August 28 report specifically states, "will need note for work," although there is no copy of such a note in the doctor's records.
The claimant testified she wanted to see Dara Turner, the Grand's workers' compensation officer, on August 31, 1997 to present a work excuse from Dr. Ellis and to fill out leave of absence papers. The aforementioned MWCC Form B-3 contained in Exhibit 10, completed by Ms. Turner on September 2, 1997, confirms that Dr. Ellis had been designated as the claimant's physician for her workers' compensation claim, and that Ms. Turner was aware by September 2 that the claimant was seeking treatment from Dr. Ellis for her workers' compensation claim.
Ms. Smith testified that after her first visit to Dr. Ellis, the pain in her lower back began to get worse and she began having pain in her neck. She said that the pain in her neck made her feel like her neck was paralyzed and caused her to have "freezing spells," during which all the muscles in her upper body became tight, such that she could not bend or move her arms, and she could not move her eyes except to stare ahead. She said she had one of these spells during a birthday party given for her by her sister on September 4, and this prompted her sister to call Dr. Ellis' office to arrange her next visit there on or about September 7. The claimant said that when she went to that appointment and reported her spells to Dr. Ellis, he had her admitted to Singing River Hospital in Pascagoula and kept her there for eight or nine days, during which time she constantly experienced the "freezing spells."
Dr. Ellis' records indicate that the claimant
was seen in his office for the second time in follow-up for complaints
of hip and leg pain on September 2, 1997; that he prescribed pain medication
and a CT scan of her lumbar spine at that time; and that the CT scan was
performed on September 4 at Singing River, revealing no disc herniation
but "marked degenerative arthritic changes" at the L5-S1 level, to the
left, according to the radiologist, who also noted that the scan was unchanged
since December of 1995.3 Dr. Ellis reports
that the claimant presented at his office on September 8, 1997 "with some
bizarre complaints" which included "some mental confusion," shaking with
numbness and tingling in her right arm, numbness and tingling in her right
leg and foot, slurred speech, and an inability to write her name. Based
on these complaints, Dr. Ellis indeed had the claimant admitted to Singing
River Hospital, and he arranged for her to be examined by Dr. Terry. Millette,
a neurologist. Ms. Smith remained at Singing River until September 18,
and during her stay an MRI of her lumbar spine revealed desication of the
L5 disc without herniation or anything else remarkable, x-rays of her hips
revealed degenerative changes without evidence of fracture or any acute
injury, an MRI of her brain was judged to be normal, as was a CT scan of
her head, and an electroencephalogram (EEG) ordered by Dr. Millette was
read to be normal and without any evidence of dysfunction. When he discharged
the claimant from
Singing River, Dr. Ellis noted that her complaints
at admission were "apparently associated with pain in her lower back,"
that she had been evaluated by Dr. Millette, who had found her to be "fairly
normal" neurologically, and that the lumbar disc disease at L5 did not
explain her other symptoms. He prescribed follow-up evaluations by Dr.
Deal, a psychiatrist, and Dr. McCloskey, a
neurosurgeon, noting that he had unsuccessfully
attempted to have the psychiatric evaluation done while the claimant was
in the hospital, and he also noted that Dr. Millette thought she may have
had "a conversion reaction" to her low back pain.
Dr. Millette's report of his hospital evaluation of the claimant on September 8, 1997 ( Ex. 18) notes that he observed behavior in line with what Ms. Smith described as her "freezing spells," but he also noted that her EEG, brain MRI and metabolic parameters were normal, and that there were apparently "some stresses in her family both financial and otherwise." He suspected a "functional phenomenon which may be due to a conversion reaction possibly due to external stresses," he doubted any "ongoing atypical seizure activity," and he suggested that psychiatric input might be helpful.4
After being released from the hospital, Ms. Smith returned to Dr. Ellis on September 23, 1997, at which time he noted she was still complaining of low back pain and her "spells," although a TENS unit was providing her some pain relief and she seemed to be doing better. Dr. Ellis continued her on pain medication and the TENS unit, and noted he still wanted her to have a psychiatric evaluation. A handwritten note on this same date indicates the claimant canceled an appointment made for her with a psychiatrist, Dr. Smith. The next note from Dr. Ellis, dated October 6, 1997, indicates that the claimant requested a referral to Dr. McCloskey and that an appointment with McCloskey on October 28 was made for her.
Dr. John McCloskey, a nuerosurgeon, indeed saw
the claimant on referral from Dr. Ellis on October 23, 1997. His disposition
testimony, with office records attached, is in evidence as Exhibit 3. Dr.
McCloskey testified that he had previously reviewed her Singing River chart,
including the lumbar MRI, at the request of one of her family members,
and that Ms. Smith presented to him with complaints of back problems, numbness
and pain in the right leg, and "freezing spells where all of her muscles
seemed to freeze up..." He also noted that her toes were turning inward
when she walked and that her arms and hands "seemed
stiff." He said that the lumbar MRI showed mild
degenerative changes at the L5 disc, but he did not find any particular
weakness or reflex problems by physical exam, so he could only surmise
that "she had a muscle or movement disorder of uncertain etiology," and
that he "didn't know how to explain it." Dr. McCloskey at this time ordered
EMG/nerve conduction studies of her right leg, pursuant to which order
Dr. Millette performed those studies on both right extremities on that
same date, and Dr. McCloskey then wrote to Ms. Smith the next day indicating
that "nothing much was demonstrated" by these studies. Dr. McCloskey's
office then scheduled a follow-up appointment with the claimant for November
19, 1997, but both the claimant and the doctor had to reschedule the follow-up
several times and he never actually saw Ms. Smith again. Dr. McCloskey
testified that the claimant did undergo a psychiatric evaluation at Singing
River Mental Health Clinic at his suggestion, and for this reason he took
her off work from December 17, 1997 until that evaluation was completed.
He stated that, based on the history the claimant gave him, "there's no
doubt that the problems I saw her for, and she complained of, were related
to her work injury of August 27, 1997," but he conceded on cross examination
that he was unable on one examination to make a diagnosis of the claimant's
problems and that he did not know what was wrong with her at the time he
saw her.
The claimant returned to Dr. Ellis on November 10, 1997 and reported she was having problems with her workers' compensation claim, to which he responded that he had not been contacted by anyone from her compensation carrier. She saw Dr. Ellis again on December 9, 1997 with ongoing complaints of pain in her lower back and numbness in her right leg, and he scheduled her to return in three weeks, but she did not see him again until April of 1998.
Ms. Smith was next evaluated by Dr. John Wyatt, a physiatrist, at the request of the defendants' adjuster. Dr. Wyatt first examined the claimant on December 16, 1997, and his deposition testimony, with records attached, is in evidence as Exhibit 1. Dr. Wyatt testified that at the time of his first examination of the claimant he had the benefit of records provided by Dr. McCloskey's office only. A note in Dr. Wyatt's file indicates that Dr. Ellis refused to provide his records, but Dr. Millette's hospital consultation report of September 9 and his narrative EMG report of October 23 were apparently among the documents provided by Dr. McCloskey. Dr. Wyatt testified that, based on the available records and the physical examination he performed, which he characterized as "unremarkable," he released the claimant at this time to return to light duty work, with a 20 pound lifting limit and other restrictions, pending his receipt and review of the prior MRI and EMG studies. He stated that the physical exam did not reveal any objective findings to support the claimant's complaints of pain in her low back, and that he scheduled her to return in two weeks, when it was expected she would have the diagnostic films and reports.
The claimant testified that she had been off work on the instructions of Drs. Ellis and McCloskey prior to seeing Dr. Wyatt, but she returned to work after seeing Wyatt. She said she took Dr. Wyatt's restrictions to Dara Turner, who told her she would be provided a job. She stated that she was indeed returned to work as a lobby attendant at the same rate of pay as before, but she was only able to work about six hours before she had to leave because of her back. She said she subsequently returned to the Grand and presented Dr. McCloskey's note that had taken her off work effective December 17, 1997.
Dara Turner, the Grand's workers' compensation coordinator since January of 1997, testified that the claimant was returned to work at light duty, pursuant to and within Dr. Wyatt's restrictions, on December 18, 1997, but Ms. Smith worked only a matter of hours. Ms. Turner stated that prior to that time the claimant had been "totally uncooperative" in maintaining communication with Turner about her injury and medical treatment. She said Ms. Smith's claim was denied by the carrier because the claimant did not initially identify a point of injury, did not give notice to anyone on the date of original injury, did not have any witnesses, initially declined medical treatment when offered it on August 27, and did not report to Turner that she was being treated. She testified that she began calling the claimant once Ms. Smith had missed five consecutive shifts without giving notice or requesting leave, thus becoming eligible for termination, but she was unable to reach the claimant by phone, either because the claimant's phone was disconnected or because the calls went unanswered. Ms. Turner said that she was finally able to learn that the claimant was being treated by Dr. Ellis by contacting the doctor's office herself in early September, but that she was never made aware that Dr. Ellis had hospitalized the claimant in September until after the fact, and she was never contacted by any of the claimant's medical providers to get treatment authorized. Ms. Turner testified that after Ms. Smith left work on December 18, 1997, and did not return, she wrote the claimant a letter (in evidence as Exhibit 11) wherein she informed Ms. Smith she would be terminated if she did not report for duty on January 9, 1998. This letter mentions "numerous telephone conversations over the past several weeks" between Ms. Turner and the claimant regarding the Grand's position that they had provided her with a job in accord with Dr. Wyatt's restrictions. Ms. Turner stated that Ms. Smith did not respond to the letter and did not report on January 9, so she was terminated.5 Rather than returning to work by January 9 in response to Ms. Turner's January 6 letter, the claimant instead returned to Dr. Wyatt's office on January 8, but without the requested diagnostic reports, without which, Dr. Wyatt had already explained, he could not further evaluate or treat her (Exhibit 1).
In evidence as Claimant's Exhibit 14 is a composite
of letters pertaining to Ms. Smith's various departures from and returns
to work at the Grand following the subject injury. The first of these is
a letter to the claimant from Susan Longmire, the Grand's benefits manager,
dated October 30. 1997, wherein Ms. Smith was informed that Dara Turner
had determined that her absences from her job were no longer work related,
and that she was being considered to be "absent without leave" due to her
failure to provide necessary paperwork that had been mailed to her and
to her treating physician, presumably Dr. Ellis.
Dr. Wyatt testified that when the claimant came
back for her next scheduled was supposed to bring, although he had received
the narrative reports of the pertinent studies. Based on what was available
to him, Dr. Wyatt took the claimant off work until such time as he could
see the films, evidently being unaware that she had been terminated as
of January 9. Dr. Wyatt said that Ms. Smith came back, on February 26,
at which time he was able to determine that her MRI of September 16, 1997
was normal, so his plan was for her to undergo a functional capacity evaluation
(FCE) as soon as possible with the goal of returning her to work. The FCE
was indeed, performed by Douglas Roll at Physical Therapy of Ocean Springs,
but not until August 18, 1998. Dr. Wyatt was not asked to explain why it
took this long to conduct the FCE, nor did he offer any explanation.
During late 1997 and early 1998 the claimant was also undergoing psychiatric evaluation by the staff at Singing River Mental Health, as had been prescribed and arranged by Dr. McCloskey. Records from this psychiatric treatment, in evidence as Exhibit 8 under the affidavit of "Dr. Smith," indicate the claimant was examined on December 29, 1997, January 6, 1998 and February 3, 1998, but the records are entirely handwritten and mostly illegible. The final principal diagnosis on February 3 of Dr. William Smith, apparently a psychiatrist, was that the claimant had "no mental illness."
After seeing Dr. Wyatt at the end of February 8, 1998, Ms. Smith apparently did not receive any medical treatment until April 24, 1998, at which time she was again admitted to Singing River Hospital, this time through the emergency room, where she was admitted by Dr. Martin Bydalek on complaints of chest pain. Dr. Ellis discharged her later that same day and did not see her again until he admitted her to Singing River once more on June 23, 1998, this time on "complaints of weakness, drooping of the right side of her face and slurring of her speech." (See Exhibit 13). Dr. Ellis, in his discharge summary dated June 26, reported that the claimant also complained of "pain and stiffness in the right side of her neck and right shoulder" and "symptoms of weakness and pain down her entire right side," and he noted that she was evaluated during her stay by Dr. Millette and Dr. William Bridges, another psychiatrist.
A consultation report from Dr. Bridges, dated June 26, 1998, is in evidence as Exhibit 17 and Bridges noted that Ms. Smith complained "mostly of pain in her right shoulder, neck, and down her right arm." He believed she had a "significant degree of depression," but also "a great deal of psychological overlay causing enhancement of her pain in her musculoskeletal system."
Dr. Millette's consultation report of June 23, 1998 is in evidence at Exhibit 18, and Ms. Smith's complaints to him on that date involved pain in her neck, arm and shoulder, with nothing said, apparently, about her low back. Dr. Millette's impression at this time was that the claimant was suffering from "cervical myofascial pain syndrome" and "thoracic outlet syndrome," but not from any condition related to her low back; and when he next saw her on August 10, 1998 he maintained the impression of cervical myofascial pain, but he also reported that he could not rule out "conversion phenomenon." In neither of these reports is there any attribution of the claimant's present condition to her work injury, nor is there any mention of the claimant having any occupational disability.
As previously mentioned, Dr. Millette was not deposed, but Dr. McCloskey was questioned about Millette's 1998 impressions of the claimant's condition when he was deposed in July of 1999. He testified that cervical myofascial pain syndrome is a common affliction, particularly in women, that results in headaches from tightness in the neck muscles, but is not disabling (Exhibit 3, pp. 15-16); that he did not believe there is any such condition as thoracic outlet syndrome (Id.); and that conversion disorder is a psychiatric condition whereby psycho-emotional stress is converted, or somatized, into physical complaints (Exhibit 3, pp. 17-18).
On August 6, 1998 the claimant began a two-day FCE under Doug Roll at Ocean Springs Physical Therapy, as had been prescribed by Dr. Wyatt, and she then saw Dr. Wyatt on August 18 in follow-up. Dr. Wyatt testified that the FCE report from Mr. Roll indicated that the claimant had exhibited "seizure behavior" during the evaluation, which behavior had prevented an accurate assessment of her maximum ability; that he saw no evidence in his personal examination of the claimant, or in Dr. Millette's reports, that she was suffering from any actual seizure disorder; that she had reached maximum medical improvement as of August 18, with no permanent physical impairment; and that she should have been able to return to a light duty housekeeping position, with a 20 pound lifting limit, as of that date. (See Exhibit 1, pp. 15-16, 19-24).
There is no evidence that the claimant attempted to return to work at Grand Casino after being released by Dr. Wyatt on August 18, 1998, nor that she was under the regular care of any other physician at that time. Dr. Ellis' records (Exhibit 13) indicate that she saw him on August 20, 1998, but only for complaints related to burning urination and excessive gas, and that she did not see him again until early January of 1999, when she renewed her complaints of back pain, this time resulting from "putting turkey in oven." It was then that Dr. Ellis referred her to a chiropractor, Dr. Bush, at her request.
Dr. Bush's records (Exhibit 6) indicate he began treating Ms. Smith for cervical and low back pain on January 6, 1999, and continued treating her for these complaints until April 30, 1999, although he released her as having reached maximum medical improvement on March 15, 1999, assigning a 7% permanent partial impairment to her whole body.
Ms. Smith testified Dr. Bush's chiropractic treatment helped her "a lot" and that he released her to return to work. She said she accepted an $8.00 per hour job in March of 1999, with T.C. Broome Construction Company in Pascagoula, to work as a "firewatcher," which she described as a person who accompanies a welder, carrying a fire extinguisher, to prevent fires from breaking out. She said she quit this job during the first day when the required stair climbing caused pain in her lower back.
Ms. Smith made no other attempts to find work until she returned to work at the Grand in June of 1999.6 She testified that she went back as a lobby attendant on the graveyard shift at $7.00 per hour; that her duties involved emptying trash cans, cleaning rest room counters, refilling napkin and soap dispensers in rest rooms and general cleaning; that she began to have problems with her back and with "feeling tired" as a result of this work, such that she was only able to work for about three or four weeks; and that she then returned to Dr. Millette, who pulled her from work. She explained that the bending required by the work caused the reoccurrence of he back pain, which in turn brought about the return of her "freezing spells." The claimant testified she gave a work excuse from Dr. Millette to either Dara Turner or Decius Griffin, her supervisor, on July 11, 1999, but was told she was terminated. She said Dr. Millette released her to return to work as of July 26, but when she went back to see Dara Turner she was told to see Barbara Motes, the housekeeping director, who in turn told her she had been terminated.
Exhibit 5 contains Dr. Millette's treatment records from July through October of 1999, and his July 6 dictation states that Ms. Smith presented on that date with complaints of "increasing amounts of muscular fatigue, tiredness and muscular pain" following her return to work at the casino. Dr. Millette's impression at this time was that the claimant continued to suffer from cervical myofascial pain and thoracic outlet syndrome, but now also from "muscular pain of undetermined etiology" and "fatigue symptomatology." There is nothing in the report to indicate that Dr. Millette took the claimant off work at this time, and there is no work excuse slip of this date in Exhibit 5 or in any of Dr. Millette's other records. After a blood test prescribed by Dr. Millette on July 6, the claimant returned to him on July 24, at which time he noted that she had "elevated CPK enzymes of undetermined etiology," and his primary impression was merely that she had "muscular pain and subjective weakness associated with physical exertion." He does, however, close this note by stating that the claimant "will be returned to work and if she develops these symptoms again we will be forced to initiate an (sic) investigation." (Emphasis added). Correspondent to this report is a prescription pad note from Dr. Millette dated July 24 which states that Ms. Smith would return to work July 26 without restrictions. The claimant's attorney subsequently presented Dr. Millette with a written hypothetical concerning the claimant, followed by a set of specific questions regarding the reasonable medical probability of a causal connection between the symptoms Millette treated and the claimant's work injury of August 1997. Dr. Millette's September 30, 1999 answer to the vast majority of these questions was simply, "Not sure."
Jason Davies, head of the Grand's housekeeping department for the past three years, testified that when the claimant returned to work in June of 1999 her job was modified to accommodate Dr. Wyatt's lifting restrictions, that her new duties mainly involved dusting and sweeping up cigarette butts, that she was instructed to keep her restrictions on her person at all times, that she was never asked to work outside Dr. Wyatt's restrictions, and that she worked only in the lobby and thus did not have to clean under the machines in the Arcade. He said that she worked for three weeks and then simply stopped coming to work, whereupon she was terminated once she had gone a week without showing for work or calling.
Dara Turner testified that the claimant worked three weeks after returning in June of 1999 and then called in sick five straight days. She said that after this the claimant did not call at all and was eventually terminated for excessive absence. Ms. Turner testified that the claimant did come see her at some point prior to being terminated, saying that she was having arm complaints and that Dr. Millette wanted to do some tests, but Ms. Turner told her at this time that those complaints were not related to her work injury and that she did not have any more leave time. Ms. Turner stated that the claimant was terminated effective July 25, 1999.
The claimant testified that she applied unsuccessfully for work at Jerry Lee's Grocery in Ocean Springs, at Ocean Springs Hospital and at a glove factory in Pascagoula after being terminated by the Grand in July of 1999, although she could not recall exactly when she submitted these applications. She said that she eventually found work hanging clothes on racks at America's Thrift Store in Ocean Springs, beginning in November of 1999; that she was presently working at this job earning $5.50 per hour for a 40 hour week; that she did not have to lift any loads greater than 5-10 pounds; and that she would be getting a raise to $5.60 an hour for her next pay period. Ms. Smith stated that she still has pain in her back and still takes pain and muscle relaxant medications prescribed by Drs. Ellis and Millette, but she has only missed two days of work due to doctor's appointments since starting at America's Thrift. She said she has continued to look for another job in the classified ads of the Mississippi Press, but she has not applied for any other jobs and has not been to any employment agencies.
The defendants referred the claimant to Dr. Henry Maggio for a psychiatric evaluation on September 1, 1999, and Dr. Maggio's deposition testimony is in evidence as Exhibit 2. Given the findings of the claimant's own psychiatrists, it is sufficient to say that Dr. Maggio found that the claimant was not suffering from any work-related psychiatric disability.
The claimant's husband was called to testify in
support of her claim, but the parties were able to stipulate that his testimony
would be cumulative and corroborative of her testimony regarding her post
injury physical condition.
Upon consideration of the record evidence and the applicable law, the Administrative Judge finds and concludes as follows:
1. The claimant has proved by a preponderance of the credible evidence that she suffered a compensable injury to her lower back and right hip on or about August 26, 1997. This finding is based on the claimant's own testimony as supported by the expert medical testimony of Drs. Ellis, McCloskey and Wyatt.
2. The claimant has failed to prove by a preponderance of the credible evidence that she suffered any mentally or psychologically disabling condition, or any seizure condition, or any cervical myofascial condition, or any thoracic outlet syndrome condition, or any muscular fatigue condition, or any chest complaints arising out of and in the course of her employment with Grand Casino.
3. Dr. Ellis was the claimant's chosen general physician, pursuant to Miss. Code § 71-3-15, for treatment of her compensable low back/hip injury; Dr. Ellis properly referred the claimant to Dr. McCloskey, a neurosurgeon, pursuant to the statue; Dr. Ellis also properly referred the claimant to Dr. Millette, pursuant to the statute, at least as to Millette's neurological consultation in September of 1997; Dr. McCloskey properly referred the claimant to Dr. William Smith and Singing River Mental Health for a psychiatric evaluation, pursuant to the statute. All of Dr. McCloskey's treatment was reasonable and necessary to the claimant's work injury.
4. Drs. Wyatt and Maggio were chosen by the defendants and their services are unquestionably the responsibility of the defendants.
5. Based on the weight of the credible evidence, including the claimant's own testimony and the expert medical testimony of Drs. Ellis, McCloskey and Wyatt, Ms. Smith was temporarily totally disabled as a direct consequence of her compensable low back/hip injury from August 28, 1997 until she was released at maximum medical improvement by Dr. Wyatt on August 18, 1998.
6. Dr. Ellis' 10-day hospitalization of the claimant in September of 1997 was reasonable and. necessary to the diagnosis and treatment of the claimant's low back/hip injury. and is therefore compensable. Doubtful matters are to be resolved in favor of compensation. Big "T" Engine Rebuilders v. Freeman, 379 So. 2d 888,889 (Miss. 1980). Dr. Millette's neurological consultation during this hospitalization is likewise compensable, as indicated above.
7. Dr. Ellis' other treatment of the claimant from the date of her injury until her release by Dr. Wyatt was reasonable and necessary in regard to the claimant's compensable low back/hip injury, except for her hospitalization for chest pain in April of 1998 and for her subsequent hospitalization in June of 1998. There is no medical proof that the claimant's chest pain in April of 1998 was casually connected to her compensable low back/hip injury, or was otherwise causally connected to her work at Grand Casino. There is insufficient medical proof to causally connect the symptoms for which Dr. Ellis hospitalized the claimant in June of 1998 to her compensable low back/hip injury, or otherwise to her work at Grand Casino.
8. Dr. Millette's neurological consultation on June 23, 1998 was not reasonable and necessary to the treatment of the claimant's low back/hip injury, and there is insufficient medical evidence to prove that the primary symptoms the claimant complained of to Dr. Millette on that date - pain in her neck and shoulder - were causally connected to her work at Grand Casino. Because this consultation by Dr. Millette is not compensable, and because all subsequent treatment provided by Dr. Millette was based on the same non-work-related diagnosis, all the subsequent treatment provided by Dr. Millette is ineligible for compensation.
9. The psychiatric consultation provided by Dr. Bridges on June 26, 1998 is outside the chain of referral permitted by § 71-3-15 and is, therefore, not compensable. The claimant had already had her chosen psychiatric evaluation by Dr. William Smith on referral from Dr. McCloskey.
10. There is insufficient credible evidence to find that Dr. Ellis' treatment of the claimant following her release by Dr. Wyatt in August of 1998 was reasonably necessary to her recovery from her compensable low back/hip injury.
11. There is insufficient credible evidence to find that the chiropractic treatment provided by Dr. Bush in early 1999 was reasonably necessary to the claimant's recovery from her compensable low back/hip injury.
12. The claimant has failed to prove by a preponderance
of the credible evidence that she has suffered any permanent occupational
disability or loss of wage earning capacity as a result of her compensable
low back/hip injury. Ms. Smith did not make a reasonable effort to return
to and maintain the job provided for her at Grand Casino following her
release by Dr. Wyatt, nor did she make reasonable efforts to find other
gainful employment on the Gulf Coast.
IT IS, THEREFORE, ORDERED AND ADJUDGED, that the employer and carrier pay and provide workers' compensation benefits to the claimant as follows:
1. Temporary total disability benefits at the rate of $166.96 per week for the period beginning August 28, 1997 and ending August 18, 1998, with proper credit allowed for any such benefits previously paid and for any wages paid to the claimant based on her return to Grand Casino in December of 1997. To each such installment not timely paid there is added the statutory 10% penalty, together with interest at the legal rate from and after April 28, 1998.
2. Such medical services and supplies as are reasonably necessary to the treatment of the claimant's low back/hip injury and her recovery therefrom, consistent with the foregoing decision in regard to the named physicians, but subject to statute and to the Commission's rules and fee schedule.
SO ORDERED this the 29th day of November, 2000.
JAMES HOMER BEST
ADMINISTRATIVE JUDGE
ATTEST:
Jo Ann McDonald, Secretary
___________________________
1. Although the claimant's petition was never amended to allege any mental or psychological injury or disability, the records of three psychiatrists were admitted by stipulation and the claimant testified regarding so-called "freezing spells" she allegedly suffered as a result of her other injuries, so a mental/psychological claim was effectively tried before the Administrative Judge.
2. The defendants declined to exercise their options regarding Drs. Ellis and Millette.
3. The Ellis records reveal that he treated the claimant conservatively for low back pain during November and December of 1995. There is no evidence in the record that this condition was occupationally disabling prior to August 26, 1997.
4. Dr. Millette continued to treat the claimant intermittently through at least June of 2000, yet neither party saw fit to depose him, so the only available interpretations we have of Dr. Millette's rather cryptic impressions come from the depositions of Drs. McCloskey and Wyatt, which are mentioned herein below.
5. Ms. Turner was not questioned at all about Dr. McCloskey taking the claimant off work as of December 17, and the claimant was not questioned at all about the termination letter from Ms. Turner.
6. Dara Turner testified that this return was accomplished through negotiations between the attorneys for the parties.