MWCC NO. 97 12042-G-3743
JIMMY CLARK CLAIMANT
VS
BJ SERVICES
EMPLOYER
AND
NATIONAL UNION FIRE INSURANCE COMPANY OF
CARRIER
PFFFSBURGH, PA
REPRESENTING CLAIMANT:
Honorable William Larry Latham, Attorney at Law, Jackson, Mississippi
REPRESENTING DEFENDANT:
Honorable Leland S. Smith, III, Attorney at Law, Jackson, Mississippi
FULL COMMISSION ORDER
The Commission heard the above styled cause on October 1, 2001 in the offices of the Mississippi Workers Compensation Commission, Jackson, Mississippi on the Employer/Carrier's "Petition for Review", by the Full Commission.
Having heard the arguments offered on behalf of the parties and having thoroughly studied the record and the applicable law, the Commission affirms the "Order of Administrative Judge" dated March 8, 2001.
SO ORDERED, this the 2nd day of October, 2001.
MISSISSIPPI WORKERS' COMPENSATION COMMISSION
BY: BEN BARRETT SMITH
BARNEY SCHOBY
LYDIA QUARLES
COMMISSIONERS
ATTEST:
Jo Ann McDonald, Secretary
MISSISSIPPI WORKERS' COMPENSATION COMMISSION
MWCC NO. 97 12042-G-3743
JIMMY CLARK CLAIMANT
VS
BJ SERVICES
EMPLOYER
AND
NATIONAL UNION FIRE INSURANCE COMPANY OF
CARRIER
PFFFSBURGH, PA
REPRESENTING CLAIMANT:
William Larry Latham, Attorney at Law
REPRESENTING DEFENDANT:
Leland S. Smith, III, Attorney at Law
ORDER OF ADMINISTRATIVE JUDGE
Claimant alleges that he sustained an injury to the body as a whole while employed as a general laborer for B. J. Services Company on or about March 28, 1997. The employer and carrier have contested the occurrence of a compensable injury. The primary issues are the occurrence of a compensable injury and the extent of disability attributable to claimant's alleged injury on or about March28, 1997.
STIPULATION
1. Claimant's average weekly wage on March 28, 1997 was $296.00
ISSUES
The issues in this case are:
1. Whether claimant sustained a compensable injury on March 28, 1997 as the term injury is defined in Section 71-3-3(b);
2. the extent of disability attributable to claimant's alleged injury;
3. employer/carrier's liability for medical services and supplies under Section 71-3-15 and the Medical Fee Schedule; and
4. whether claimant is entitled to a 10% penalty on any untimely paid installments of compensation pursuant to Section 71-3-37(5).
EVALUATION OF THE EVIDENCE
Claimant is a thirty-five-year-old resident of Foxworth, Mississippi. He has an eighth grade education and no special training. He testified that he was in special education classes at Petal Junior High School for reading and speech problems. He also testified that he cannot read "all that well," and that he is "not good" with math.
As an adolescent, he worked for Burger King as a cook and general laborer. He also performed manual labor for a pulpwood hauler. As an adult, he has worked as a general laborer for Orleans Furniture, and as a grave digger for Columbia Funeral Home. He earned $6.85 an hour and worked 40 hours a week for Columbia Funeral Home. Between 1987 and 1990, he worked on the city garbage truck crews. He also worked twelve-hour days as a roustabout for T. K. Stanley for two years. He earned $6.00 an hour performing this job before leaving to work for the employer. The employer initially hired him as a truck driver to drive to the rigs and put pipes together. Later he washed trucks in the wash bay for nine or ten months. Washing the trucks required him to use soap and a degreaser in a sprayer, even underneath the trucks. He had to climb underneath the trucks to wash them with degreaser. He testified that he sometimes but did not always wear a range hood while washing the trucks. He also testified that the soap smelled "rough," and that it covered his face, arms and legs - "everywhere."
Claimant testified that, for some period of time which preceded his admission to the local county hospital, he mistakenly picked up and used a bottle of weed killer instead of a degreaser for a period of time, as the bottles were the same size. He also testified that the spray smelled very strong, and that he developed a rash that itched during this period. Claimant testified that he told him boss that he was sick, and that he sought medical treatment for the local family medical clinic. One or two weeks later, he developed a high fever and so he returned to the doctor. Sometime after March 1997, he reported the Marion County Hospital where he was given medication for an infection. He returned to work but his condition progressively worsened. When he sought medical treatment the third time, the doctors ordered blood work which showed that his platelets count was low. Claimant next sought treatment from the University Medical Center, and he has been treating with Dr. Carolyn Bigalow since that time.
Claimant testified at the evidentiary hearing that he understands that the degreaser and the weed killer caused his symptoms. Although the employer/carrier initially paid some medical and disability benefits, it last terminated his disability benefits in August 1998. Dr. Bigalow restricted him from climbing or working around chemicals or pesticides, and he twice returned to the employer seeking work within these restrictions but he was not offered employment. Since that time he has performed various other jobs for other employers, with a maximum downtime betweenjobs of only one month. He testified he loaded trucks for Wal-Mart earing $5.45 an hour for six months. He also delivered milk for Dairy Fresh earning $300.00 a week. Next he worked as a cashier for an Amoco station earning minimum wage. Although he later obtained employment as a plumber's helper earning $7.00 an hour, he later quit as the employer wanted an employee who was qualified to work alone. Next he earned $7.00 an hour driving a dump truck for Dow Supply, but he was not able to work enough hours due to a decline in construction work. Most recently, he was worked for Southern Monument. He earns $6.50 an hour driving a truck and placing monuments.
Claimant testified that he currently could work on a city garbage truck crew or drive a truck, and that Dr. Bigalow had not restricted him from exposure to dirt or heat. He also testified that he did a good job of loading trucks for Wal-Mart.
Claimant testified he currently is scheduled to return to the Dr. Bigalow every four months so that she can check his platelets. He also testified that he takes no medication for his condition. He further testified that the injury has affected him emotionally, that he is scared and does not know what is going to happen to him, as the results of his blood tests fluctuate. He testified that he needed help from sometime who could help him understand his condition.
Maxine Clark, claimant's wife, testified that when claimant worked for the employer he sometimes came home soaking wet with diesel and other chemicals. She also testified that claimant got sick in March 1997. He developed a rash all over his body and he had fever and chills. He was hospitalized for this condition at both the local hospital and at University Medical Center. She testified that claimant remains under Dr. Bigalow's care.
The affidavits and records of toxicologist Dr. Frederick B. Carlton, Jr., contain two reports. The first report is dated August 31, 1998 and states that Dr. Carlton has reviewed claimant's medical records from the Methodist Hospital of Marion County, University Medical Center, Hattiesburg Clinic and Dr. Johnny Bullock at the employer's request. Dr. Carlton noted that claimant alleged to have been exposed to a herbicide at work for approximately one month when it was inadvertently substituted for a degreaser. In June 1997 he was diagnosed with aplastic anemia. Dr. Carlton concluded that although there was a temporal association between exposure to the herbicide known as Foremost 555050-ES Weed Zapper and the onset of claimant's anemia, the herbicide is a moderate irritant to the skin and conjunctivae. He also concluded that thrombocytopenia or aplastic anemia had never been reported as a complication of the herbicide. He therefore concluded that there was ~no basis to consider the herbicide exposure to be responsible for this unfortunate man's aplastic anemia.
Dr. Carlton's second report dated March 10, 2000 disputes the existence of a causal connection between his anemia and his prior exposure to a degreaser at work. Dr. Carlton states that he again reviewed claimant's medical records from the Methodist Hospital of Marion County, University Medical Center, Hattiesburg Clinic and Dr. Johnny Bullock at the employer's request. Dr. Carlton stated that both Foremost 701-ES Red Magic degreaser and Foremost 5050-ES Weed Zapper have well characterized toxic effects. He stated that the degreaser is a local irritant which can involve the eyes, upper gastrointestinal track or skin following direct contact. However he also stated that there was no evidence that this degreaser alone or in combination with products such as the Weed Zapper would cause aplastic anemia or thrombocytopenia. He therefore concluded that "there is no basis to consider possible degreaser exposure to be responsible for [claimant's] aplastic anemia.
Dr. Carolyn Bigelow testified that she is board certified in hematology and internal medicine, and that she is currently on staff at University Medical Center. She first saw claimant upon his admission to UMC on June 23, 1997. He had first been treated at a local hospital for burning pain, a high fever of 104 degrees, and chills. After his platelet count was found to be 44,000, he was admitted both for thrombocytopenia or aplastic anemia and for the fever. Later during his hospitalization, he was referred and admitted to UMC. Dr. Bigelow testified that aplastic anemia is failure of the bone marrow to produce red cells, white cells and platelets.
Dr. Bigelow also testified that claimant's local treating physician, Dr. Jimmy Bullock, had telephoned her to advise that claimant had been exposed to toxins as a result of which he had developed aplastic anemia. Claimant also told Dr. Bigelow that he was exposed to both a degreaser and a weed killer or herbicide at work, that he was exposed to both chemicals in significant quantities in poorly ventilated areas, and that he had accidentally substituted the weed killer for the degreaser for a period of time. Dr. Bigelow specifically noted that claimant had both skin and inhalant exposure to the chemicals. Later Dr. Bigelow was provided with information identifying the chemicals as 5050-ES Weed Zapper and 701-ES Red Magic Degreaser.
Upon claimant's admission to UMC, his white count was 4800, his hematocrit was 34.3, and his platelets were 40,000. A bone marrow test was then ordered which showed a markedly hypocellular bone marrow, which means few cells. All three cell lines — white cells, red cells and platelets — were decreased. The bone marrow report concluded that claimant had "focal changes suggestive of mild marrow injury affect." Dr. Bigalow testified that "mild marrow injury affect" was consistent with toxic inflow, as exposure to certain toxins can cause marrow injury. She also testified that, because claimant's bone marrow production was low as opposed to nonexistent, the correct diagnosis was a hypocellular marrow injury as opposed to aplastic, "aplastic" meaning that ''you really don't have any cells.''
Since claimant's discharge from the UMC on June 27, 1997, Dr. Bigelow has seen him every three to four months to monitor his blood count. She testified that the reduction in claimant's platelet count has been and remains significant. A normal platelet count is 150,000 to 400,000. Claimant's count dipped as low as 30,000 while he was in the hospital, but it has recently averaged in the 56,000 range. She explained that at 20~000, claimant would be at risk for spontaneous bleeding, and that he would require a bone marrow transplant. She also testified that the effect of claimant's platelet count was that he was at an increased risk of bleeding internally or externally, that there was no treatment to cure or improve claimant's bone marrow or platelet count, and that- other than limiting his exposure to toxic chemicals - there also was no treatment to prevent his platelet count from continuing to decrease. However she did recommend that he have his blood levels checked every three to four months to ensure that his platelet counts remained stable.
Upon discharging claimant from UMC on June 27, 1997, Dr. Bigelow restricted him from climbing, working at any kind of heights, contact sports, or any other activity that would put him at an increased risk for bleeding. She testified that although claimant may require platelet transfusions or other medical treatment and thereby has not reached maximum medical improvement, she released him to return to work with restrictions on August 23, 1997 when his platelet count first reached 70,000. She also restricted claimant was returning to his prior job because it involved both climbing and chemical exposure. She explained that because platelets are responsible for clotting, the restrictions were designed to prevent him from bleeding due to his low platelet count. She also testified that claimant's restrictions would not prevent him work working as a truck driver or being exposed to dust and heat.
Dr. Bigelow also testified that claimant's injury had affected him psychologically:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. Claimant sustained a compensable injury on March 28, 1997 as required by the definition of "injury" contained in Section 71-3-3(b). Dr. Bigelow testified that claimant has sustained a permanent suppression of his bone marrow as a result of his exposure to hazardous compounds in the course of his employment with B. J. Services. Although Dr. Carlton, the toxicologist retained by the employer and carrier, stated that claimant's condition was not caused by his exposure to chemicals at work, this Administrative Judge finds that the opinion of the treating physician who examined and followed claimant for three and a half years has more probative value than the opinion of an expert who only reviewed the medical records. Also, Dr. Bigelow had the benefit of Dr. Carlton's reports when she testified regarding causation during her deposition, but Dr. Carlton did not have the benefit of Dr. Bigelow's deposition when he rendered his reports regarding causation.
2. Claimant was temporarily totally disabled because of injury during those periods that he was off work due to injury from March 28, 1997 to August 23,1997 when Dr. Bigelow released him to return to work with restrictions.
3. Claimant is entitled to temporary total disability benefits at the rate of$ 197.33 per week during those periods that he was off work because of injury from March 28, 1997 to August 23, 1997 when Dr. Bigelow released him to return to work, with proper credit for compensation paid by employer/carrier during this period.
4. Claimant has a permanent medical impairment attributable to the work-connected injury on March 28,1997. As noted above, Dr. Bigelow testified that claimant has sustained a permanent suppression of his bone marrow. She specifically testified that his platelet count averages 56,000, although the average normal count is 150,000 to 400,000. She also testified that there is no treatment to restore claimant's platelet count or to prevent further suppression of his marrow and thereby his blood platelets. She specifically testified that claimant's only recourse is a bone marrow transplant or platelet transfusions if his count drops to 20,000. She assessed a 20 to 25% permanent partial medical impairment to the body as a whole attributable to claimant's work-connected injury. She also assessed restrictions on climbing, working at heights, or exposure to the hazardous materials to which claimant was exposed at B. J. Services.
5. Claimant's permanent medical impairment has resulted in a loss of wage-earning capacity. Claimant testified that he twice attempted to return to work for the employer within the restrictions assessed by Dr. Bigelow, but that he was not offered employment. In the three and a half years since Dr. Bigelow released him to return to work, he has performed six several different jobs, only one of which it appears paid as much as the job that he performed for the employer four years ago.
Considering the nature of claimant~s impairment, the impairment rating and restrictions assessed by Dr. Bigelow, the employer's refusal to rehire claimant within the restrictions assessed by Dr. Bigelow, claimant's work efforts since being released to return to work, and claimant's level of functioning, among other industrially related factors such as his age, education, work history and geographic location, this Administrative Judge finds that he currently has a 20% loss of wage- earning capacity attributable to his work-connected injury.
6. Claimant is entitled to permanent partial disability benefits at the rate of $39.47 per week for 450 weeks beginning August 23,1997, with proper credit for compensation paid by employer/carrier during this period.
7. Claimant is entitled to all medical services and supplies required by the nature of his injury and the process of his recovery as provided in Section 71-3-15 and the Medical Fee Schedule, including psychological services recommended by his treating physician for treatment of his compensable injury.
8. Claimant is entitled to a 10% penalty on all untimely paid installments of compensation pursuant to Section 71-3-37(5).
ORDER
IT IS THEREFORE ORDERED that employer/carrier pay compensation benefits to claimant as follows:
1. temporary total disability benefits at the rate of$ 197.33 per week during those periods that he was off work because of injury from March 28, 1997 to August 23, 1997 when Dr. Bigelow released him to return to work with restrictions, with proper credit for compensation paid by the employer/carrier during this period;
2. permanent partial disability benefits at the rate of $39.47 per week for 450 beginning August 23, 1997, with proper credit for compensation paid by employer/carrier during this period;
3. all medical services and supplies required by the nature of his injury and the process of his recovery as provided in Section 71-3-15 and the Medical Fee Schedule, including psychological services recommended by his treating physician for treatment of his compensable injury; and
4. a 10% penalty on all untimely paid installments of compensation pursuant to Section 71-3-37(5).
SO ORDERED, this the 8th day of March, 2001.
DENEISE TURNER LOTT
ADMINISTRATIVE JUDGE
ATTEST:
Jo Ann McDonald
Secretary