MWCC NO. 97 06696-G-3254

MARY C. BOYKIN                                                                                                                                                                                            CLAIMANT

VS

B.C. ROGERS PROCESSORS, INC.                                                                                                                                                                EMPLOYER
A SELF-INSURED

REPRESENTING CLAIMANT:
Honorable John Raymond Tullos, Attorney at Law, Raleigh, Mississippi

REPRESENTING DEFENDANT:
Honorable Amy Lee Topik, Attorney at Law, Jackson, Mississippi

The Commission heard the above styled cause on October 15, 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 March 13, 2001.

SO ORDERED, this the 22nd day of October, 2001.

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

ATTEST:
Jo Ann McDonald, Secretary

MWCC NO. 97 06696-G-3254

MARY C. BOYKIN                                                                                                                                                                                            CLAIMANT

VS

B.C. ROGERS PROCESSORS, INC.                                                                                                                                                                EMPLOYER
( SELF-INSURED)

APPEARING FOR THE CLAIMANT:
John Raymond Tullos, Attorney at Law, Raleigh, Mississippi

APPEARING FORTHE EMPLOYER:
S. Deann Thomas, Attorney at Law, Jackson, MS

Claimant had a work accident on May 3, 1997, injuring her lower back and left lower extremity. The Employer admitted compensability and paid temporary disability and medical expenses. The hearing was held on August 1, 2000, at the Lauderdale County Courthouse in Meridian, Mississippi.

1. Claimant had a work-related accident on May 3, 1997, injuring her lower back and left lower extremity.

2. Claimant's average weekly wage on the date of the work accident was $254.00.

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

1. The existence and extent of temporary disability attributable to Claimant's work accident

2. Whether or riot Claimant has reached maximum medical improvement, and if so, the date.

3. The existence and extent of permanent disability attributable to Claimant's work accident.

4. Whether Claimant is entitled to penalties and interest on any disability payments not timely made.

Claimant is a 60-year-old resident of Leake County, Mississippi, with a sixth-grade education and no GED. After leaving the sixth grade, Claimant initially worked on a cotton farm, but she later became a seam presser in a garment factory for nineteen years. She also worked at another manufacturer as a sewing machine operator for eleven years. After that, she worked as a certified nurses aide for three years at a nursing home. She left the nursing home in 1991 to begin working at the Sims Hill plant of the Employer gathering eggs in hen houses. Later, Claimant removed eggs from a conveyer belt at the Castlebury plant of the Employer.

As an egg gatherer at the Employer, Claimant said she handled approximately 5,000 eggs per day. At the Castlebury location, Claimant loaded and unloaded eggs from buggies and boxes. Claimant said she loading and unloading eggs at the Employer when she was injured on May 3, 1997. On that date, Claimant was pushing a buggy full of eggs into a cooler when she slipped and fell on a wet floor. Claimant said she injured her lower back and her left leg.

Claimant reported her injuries to her supervisor, Cindy Gregg. However, Claimant stated that she did not receive immediate medical treatment. She worked the next day but said she could not push the buggies. Claimant said she again requested to see a physician but was refused.

Claimant worked on Monday, May 5, 1997, but said she could not push buggies and had difficulties walking. Claimant said the Employer again refused to send her to a physician. She stated that after her 8-hour shift ended that day, she drove herself own personal physician, Dr. Hasan. After seeing Dr. Hasan, Claimant gave her medical leave slip to the plant manager at the Employer's Castlebury location, Cecil Collins.

Claimant received medical treatment for her injuries. She eventually returned to work after her surgery in the Fall of 1997. She stated that she returned to work prior to seeing Dr Winkelmann, so she did not have any restrictions at that time. She was placed in the same position she held prior to her work accident. She tried to work for two hours but said she could not stand any longer on her left leg. Claimant said she was not allowed to sit while working.

Claimant did not attempt to return to work again until March 1998. At that time, Claimant received a letter from the Employer to return to work. She testified that she did not return to work on the first day listed in the letter because she was in the hospital due to her back problems and nerves. However, upon her discharge from the hospital Claimant attempted to return to work at the Employer's plant in Forest.

Claimant testified that on March 24, 1998, she reported to the Employer for work. She spoke with Ms. Mantino at the Employer, who asked Claimant about the brace and cane. Claimant said she was told to sit and wait until someone came to get her. She said she sat there until after 5:00 p.m., approximately three hours. Claimant left work that day and has not returned since.

Claimant said she had no further contact with the Employer until receiving the letter in May 2000, informing her of two available positions (Exhibit 7). As instructed in the letter, Claimant telephoned Cheryl McGee at the Employer and left a message. Claimant spoke with McGee, who as to call Claimant back the next Monday. Claimant stated she never received a call on that Monday, nor has she had any other further contact from the Employer. Claimant testified that she had tried to return to work at the Employer three times.

Claimant testified that she has not searched for other work. She acknowledged that she met with Sam Cox, the vocational rehabilitation expert. However, she held a driver's license at the time she met with Cox, but she no longer has one. She contended that she could not drive due to her left foot. Claimant no longer owns a car.

Claimant testified that her lower back and left leg still hurt and that she still takes prescription pain medication from her family physician. She said any kind of physical activity, sitting, or lifting causes severe pain. Claimant also stated that walking causes severe pain and that she can not even perform her back exercises due to pain. She feels that she cannot return to work at the Employer in her pre-injury position. Claimant said she cannot walk without her cane or foot brace. She said she has no control over her left foot.

Mr. Bobby Barragan, Jr., the Employer's Human Resource Manager, testified that there were positions at the Employer within Claimant's restrictions. Barragan testified that one of the positions within Claimant's restrictions was the bagger position in the Cooking Department, which would allow Claimant to sit on a stool while working. The bagger places bags on funnels to fill with chicken nuggets, then moves the full bag to a conveyor belt. Barragan estimated that full bags weigh approximately ten pounds. Barragan described another position as a grader, who separates nuggets on a conveyer belt. He testified that a grader earns the same wages with less lifting, but Claimant would have to stand at work. Barragan said all employees begin with $5.75 per hour and within one year earn up to $6.90 per hour.

Barragan confirmed that Claimant has not attempted to return to work at the Forest plant of the Employer since he became Human Resources Manager in August 1999. Barragan was aware that the May 2000 letter (Exhibit 7) was sent to Claimant notifying her about a position available. However, Barragan said that Cheryl McGee, the contact person listed in the letter, did not have authorization to place Claimant at any position since that would be his duty. He was unaware if Claimant ever called McGee in response to the letter.

Mr. David Powell, Corporate Human Resource Manager in charge of workers' compensation administration, testified for the Employer. He confirmed that the Employer has a very liberal light duty policy and attempts to accommodate all injured workers. He said a position was available for Claimant after she was released from her physician; however, Claimant did not return to work at the Forest plant. He noted Claimant last attempted to work in March 1998. Powell said Claimant was no longer on the payroll since she was not active and had not returned to work after being released by her physician.

Powell testified that the positions listed by Barragan in his testimony were available for Claimant in March 1998, but he said the positions were not formally offered to Claimant until the May 2000 letter (Exhibit 7). Powell instructed McGee to draft the information for the letter.  Although he could not personally say whether Claimant ever contacted McGee, Powell said McGee did not report any contact by the Claimant.

Mr. Sam Cox, Vocational Consultant, testified that he met with Claimant on March 14, 2000, and interviewed her. He also reviewed the medical records and depositions of Dr. Alexander, Dr. Katz, and Dr. Winkelmann. He said Claimant had a driver's license at the time of the interview, and she did not report any driving difficulties to him. Cox testified that Claimant's work history was unskilled to semi-skilled in the sedentary to medium range.

Although Cox acknowledged that there were differences between Dr Winkelmann's and Dr. Katz's restrictions, he testified that neither physician said Claimant was unemployable. Cox performed a labor market survey and sent a potential job list in April 2000. He said he did not do a follow-up inquiry since he was later notified that Claimant did not have transportation. Cox said most positions were in the $5.15 to $6.00 per hour range. Cox admitted that some places on his survey had no openings.

Cox opined that even with the physicians' restrictions, it was feasible for Claimant to return to work in gainful employment. He felt that Dr. Winkelmann's restrictions would keep Claimant mostly in the light category, while Dr. Katz's restrictions would keep Claimant in the sedentary range due to the lifting restrictions.

Cox said that the light category would allow up to twenty pounds of occasional lifting and ten pounds frequent lifting. He said the sedentary category allows up to ten pounds lifting occasionally. In reviewing his job list, Cox acknowledged that all jobs except one were minimum wage. He admitted that being a sewing machine operator required movement of legs and knees to push buttons with an occasional lifting requirement of cloth bundles.

Dr. Saqib Hasan began treating Claimant on May 5, 1997, for complaints of lower back pain and other non-related illnesses. An x-ray of Claimant's lumbar sacral spine on that date indicates an undisplaced recent fracture at the posterior part of the L4 level. Dr. Hasan continued to treat Claimant throughout May 1997, and he did not see Claimant again until after her back surgery. He treated Claimant again from November 1997 until March 1998. During that time, Claimant continued to complain of lower back pain.

Dr. Brian Johnson with the Mississippi Sports Medicine and Orthopaedic Center saw Claimant on May 14, 1997, for Claimant's complaints of pain in her left leg and lower back. She reported a two-week, history of having pain which occurred after pushing a buggy at work Dr. Johnson scheduled Claimant for an MRI and referred her to Dr. Lon Alexander.

Dr. Lon Alexander, neurosurgeon, began treating Claimant in June 1997. He diagnosed Claimant with a profound neurologic deficit and noted Claimant had foot drop on the left side. Dr. Alexander confirmed his findings with an x-ray showing a disk rupture.

On June 12, 1997, Dr. Alexander performed a left-sided lumbar micro laminectomy and diskectomy on Claimant. After the surgery, Claimant reported mild leg pain but improved back pain. Dr. Alexander continued to treat Claimant throughout the summer of 1997. Claimant continued to complain of pain and weakness in her left foot. In September 1997, Dr. Alexander prescribed a foot brace for Claimant.

On November 24, 1997, Dr. Alexander wrote that Claimant had reached maximum medical improvement. Dr. Alexander suggested that Dr. Winkelmann evaluate Claimant for restrictions and permanent impairment. Dr. Alexander opined within a reasonable degree of medical certainty that Claimant's foot drop was related to her work accident.

In April 1998, Dr. Alexander noted that Claimant had severe low back pain due to a recent fall. He ordered an MiRI, which showed "a large amount of scarring on the left." He also ordered electrodiagnostic testing. Dr. Alexander said the EMG and nerve conduction studies only showed the chronic left L5 findings with no right-sided findings. He did not feel Claimant needed any further surgical intervention.

On April 17, 1998, Dr. Alexander wrote, "I am pessimistic as whether or not she will ever be able to return to her previous gainful employment." In May 1998, Dr. Alexander opined that Claimant's fall in April 1998 had not caused any further neurologic damage. He felt Claimant could return to work under Dr. Winkelmann' s restrictions, but he again cautioned that it would possibly be difficult for Claimant to return to her previous employment.

Dr. Michael Winkelmann saw Claimant on January 13, 1998, to evaluate and determine Claimant's work restrictions and impairment rating. After reviewing Claimant's medical history and performing an examination, Dr. Winkelmann opined that Claimant had a ten percent (10%) permanent medical impairment. He said Claimant was functioning at a light to medium level of work with lifting restrictions of about thirty pounds. Dr. Winkelmann restricted Claimant from stooping or bending on a highly repetitive basis. He felt Claimant could sit for an indeterminate period of time and could perform overhead tasks in the sitting position. He agreed with Dr. Alexander that Claimant was at maximum medical improvement.

Dr. Howard Katz with the Gulf States Rehabilitation Associates evaluated Claimant on December 14, 1998, upon referral from her attorney. Dr. Katz reviewed Claimant's medical records and performed an examination. He diagnosed Claimant with chronic L5 radiculopathy secondary to her work injury.

Dr. Katz opined that Claimant had a ten percent (10%) permanent medical impairment. He limited Claimant to standing only fifteen to twenty minutes at a time several times per day. He felt Claimant was limited in ambulation to about four to five hundred feet with an ankle/foot orthososis and a cane. He limited Claimant to no lifting of over thirty pounds more than two to three times per day. Dr. Katz also felt that Claimant could only occasionally to frequently lift ten pounds or less, although he recommended three to five pounds. Dr. Katz said Claimant would be limited to "very light" work. His opinion was that because of Claimant's seventh grade education, it was "quite unlikely that she would be employable."

I base the following findings on a preponderance of the evidence including medical proof as provided the Mississippi Workers' Compensation Law:

1. Claimant had a work-related accident on May 3, 1997, injuring her back and left lower extremity, as stipulated.

2. Claimant's average weekly wage on the date of the work accident was $254.00, as stipulated.

3. Claimant reached maximum medical improvement on November 24, 1997. This was the date affixed by Dr. Lon Alexander, Claimant's treating neurosurgeon.

4. Claimant was temporarily, totally disabled from May 4, 1997, until November 24, 1997.

5. There is no remaining issue to be decided regarding the reasonableness and necessity of Claimant's medical treatment, as stipulated.

6. Concerning permanent disability, Claimant has the burden of proving a physical impairment from her work accident and a resulting loss of wage earning capacity. Claimant has proven that she has received physical injuries from her work accident of May 3, 1997. Furthermore, based upon the preponderance of the evidence, including the medical evidence, Claimant's education, Claimant's work history, her attempt to return to work, her age and other factors, I find Claimant has suffered a 10% loss of wage-earning capacity from her work accident of May 3, 1997.

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

1. Temporary total disability benefits of $169.42 from May 4, 1997, until November 24, 1997. There shall be added to each installment of compensation not timely paid the equivalent of ten percent (10%) thereof as provided in Miss. Code Ann. Section 71-3-37(5) (Rev. 1995) together with interest at the legal rate from and after the date the petition was filed. The Employer is entitled to proper credit for any wages earned by Claimant or any such payments of compensation heretofore made to Claimant.

2. Permanent partial disability benefits of $16.95 beginning November 25, 1997, and continuing for a period of 450 weeks as compensation for disability to Claimant's back and left lower extremity. There shall be added to each installment of compensation not timely paid the equivalent of ten percent (10%) thereof as provided in Miss. Code Ann. Section 71-3-37(5) (Rev. 1995) together with interest at the legal rate from and after the date the petition was filed. The Employer is entitled to proper credit for any such payments of compensation heretofore made to Claimant.

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

SO ORDERED AND ADJUDGED this the 13th day of March, 2001.

TAMMY GREEN HARTHCOCK
ADMINISTRATIVE JUDGE

ATTEST:
Jo Ann McDonald, Commission Secretary