MWCC NO. 97-13583-G-5840
WILLIE J. TUCKER CLAIMANT
vs.
COCHRAN-SYSCO FOODS SERVICES
EMPLOYER
AND
INSURANCE CO. OF THE STATE OF PENNSYLVANIA
CARRIER
REPRESENTING CLAIMANT:
Honorable Yancy Burns, Attorney at Law, Jackson,
Mississippi
REPRESENTING DEFENDANTS:
Honorable Robert P. Thompson, Attorney at Law,
Ridgeland, Mississippi
The above styled cause came on for consideration by the Commission in the offices of the Mississippi Workers' Compensation Commission in Jackson, Mississippi on "Claimant's Petition for Review."
Having thoroughly studied the record in this cause and the applicable law, the Commission affirms the "Opinion of the Administrative Judge" dated January 17, 2001.
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 13583-G-5840
WILLIE J. TUCKER CLAIMANT
vs.
COCHRAN-SYSCO FOOD SERVICES
EMPLOYER
AND
THE INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA
CARRIER
REPRESENTING CLAIMANT:
Yancy Burns, Esq., Jackson, Mississippi
REPRESENTING EMPLOYER/CARRIER:
Robert P. Thompson, Esq., Ridgeland, Mississippi
Willie J. Tucker injured his right hand while
working for Cochran-Sysco Food Services (Sysco). Because the parties disagreed
about the extent of temporary disability sustained by Mr. Tucker and about
whether Mr. Tucker suffered any permanent disability, a hearing was held
at the Mississippi Workers' Compensation Commission Building. Considering
all of the facts, the Administrative Judge finds that Mr. Tucker is entitled
to temporary, but not permanent, disability benefits.
At the hearing the parties stipulated to these facts:
1. Mr. Tucker sustained a work-related injury to his right hand in September, 1997;
2. Sysco paid Mr. Tucker temporary disability benefits from September 1997 until February 22, 1999, amounting to $6,978.33;
3. Sysco paid Mr. Tucker no permanent disability benefits;
4. Mr. Tucker's average weekly wage at the time of the injury was $484.00;
5. Mr. Tuckers' post-injury average weekly wage at Sysco was $573.43;
6. Mr. Tucker's average weekly wage at Yellow Freight was $784.09; and,
7. Mr. Tucker attained maximum medical improvement
on February 22, 1999.
The parties identified these issues:
1. The extent of temporary disability attributable to the injury;
2. The existence and extent of permanent disability attributable to the injury; and,
3. The reasonableness and necessity of the medical
treatment provided to Mr. Tucker by Dr. Alan Freeland.
1. Willie J. Tucker's Testimony
After graduating from high school, Mr. Tucker served in the Army until August 1989. He was unemployed for a year and then worked for six months loading Frito Lay trucks. Next he was a freight handler for Transit Truck lines for a year. In that job, Mr. Tucker lifted up to seventy pounds.
Then he drove and loaded a garbage truck in Georgia. After driving a delivery truck for Don Foods, Mr. Tucker became an equipment operator for the city of Jackson. In that capacity, among other duties, he operated a jackhammer and supervised work on storm drains.
On September 30, 1996, Mr. Tucker began driving a delivery truck for Sysco. In loading and unloading the truck, he lifted up to seventy pounds at a time. A year later in September 1997 Mr. Tucker injured his right hand while unloading a truck.
The next day, Mr. Tucker went to a doctor who sent him back to work. Eventually, however, Dr. Ethridge operated on Mr. Tucker's hand and released him to light duty with a ten-pound lifting restriction
Sysco accommodated Mr. Tucker by providing him with a light duty job (eg., sweeping, dusting, picking up paper), from the latter part of 1997 through May 1999. In the meantime in September 1998, Mr. Tucker returned to regular duty for two weeks, but then Dr. Ethridge placed him on light duty again.
In June 1999, Mr. Tucker went on his own, without a referral from one of his treating physicians, to see Dr. Freeland. Mr. Tucker had never been to Dr. Freeland before. At any rate, Mr. Tucker saw Dr. Freeland twice.
Mr. Tucker then sought another job. He contacted at least seventeen potential employers before Yellow Freight hired him as a temporary driver in June 1999. That job (which Mr. Tucker still held at the time of the hearing), involved no lifting. As a temporary employee, Mr. Tucker worked only when he was called, which averaged one to two days a week.
Sysco never offered Mr. Tucker his old job of driving a truck, but then Mr. Tucker never asked to be returned to that former position. He thought that he could not perform the duties of that job.
At the time of the hearing Mr. Tucker still felt the effects of the injury. He lacked a firm grip in his right hand and had trouble grasping small objects. To compensate for the reduced grip, he wore fingerless padded gloves at work.
Mr. Tucker sometimes had trouble driving his car, helping his wife around the house, and sleeping. In fact, he wore hand braces while he slept. Also, he could no longer bowl with his wife, or play with his eleven-year old daughter very much. He still experienced pain in his hand for which he took over-the-counter medicine.
According to Mr. Tucker's testimony on cross examination, Sysco paid him his normal wages while he was on light duty.
Mrs. Tucker, who worked at UMC, suggested that Mr. Tucker see Dr. Freeland for his hand.
When Sysco terminated Mr. Tucker in May 1999, he was told that he had been insubordinate for refusing to sign a statement documenting how long it took him to sweep the warehouse. Mr. Tucker did not execute the document because the other members of the maintenance crew were not asked to sign similar statements.
According to his rebuttal testimony, Mr. Tucker did not enjoy his light duty assignments at Sysco because Mr. Neely constantly complained about Mr. Tucker's work. Mr. Tucker, however, preferred working at Sysco to his present employment at Yellow Freight because at Sysco, Mr. Tucker had been home on the weekends and had been able to spend more time with his family.
While on light duty at Sysco, Mr. Tucker had used only one or two face masks a day, and he had not been insubordinate.
2. Allen Neely's Testimony
Allen Neely, the Director of Safety and Security at Sysco, was responsible for workers' compensation claims and had known Mr. Tucker since he (i.e., Mr. Tucker), joined Sysco in 1996. After Mr. Tucker returned to Sysco following his operation, he and Mr. Neely had a series of disagreements about whether Mr. Tucker's work assignments were within his work restrictions. For example, Mr. Tucker thought pushing a broom was too strenuous, but Mr. Neely received letters from Mr. Tucker's doctors encouraging him to use his hand more.
In addition, Mr. Tucker asked for dust masks. Although no other employee had ever requested such masks, Mr. Neely got Mr. Tucker blue dust masks. Then when Mr. Tucker refused to wear the blue masks, Mr. Neely supplied him with white masks. Although the masks were rated for eight hours of use, Mr. Tucker quickly used a package of them.
On another occasion, Mr. Tucker told Mr. Neely that he needed to see his doctor and did not return to work for several days. Although Sysco policy provided from terminating an employee who did not appear for two days, Mr. Neely did not fire Mr. Tucker but instead asked Mr. Tucker in writing when he could return to work.
Later, however, Mr. Neely did terminate Mr. Tucker for refusing to sign a document stating that he had finished cleaning a certain area. Every employee in the sanitation department signed such a document when he completed cleaning a section. According to his cross-examination testimony, Mr. Neely and Mr. Tucker had conflicting opinions about the nature of Mr. Tucker's job restrictions. In addition, Mr. Tucker was not satisfied with his light duty jobs and wanted to return to his pre-injury job as a truck drive. Mr. Tucker's doctors, however, had not released him to resume his old job.
3. Alexandre Solomon's Testimony
Dr. Alexandre Solomon testified through his medical records that he first saw Mr. Tucker on June 30, 1998. Eventually Dr. Solomon diagnosed Mr. Tucker's condition as bilateral carpal tunnel syndrome with the right wrist worse than the left. On December 29, 1998, Dr. Solomon released Mr. Tucker "to perform light duty only. His restrictions include no lifting, no long distance driving until 1-6-99 and there should be no repeated flexion or extension of left wrist."1
4. Chris P. Ethridge's Testimony
Dr. Chris P. Ethridge testified through his medical records that he first saw Mr. Tucker on July 16, 1998, and diagnosed him as suffering from carpal tunnel syndrome in both wrists. On July 31, 1998, Dr. Ethridge performed an endoscopic carpal tunnel release on Mr. Tucker's right wrist. On August 31, 1998, Dr. Ethridge released Mr. Tucker to return to light duty with a twenty-five pound lifting restriction.
On September 21, 1998, Dr. Ethridge released Mr. Tucker to regular duty but then at Mr. Tucker's request, returned him to light duty with no lifting on October 20, 1998. In the meantime, Mr. Tucker's left wrist had begun bothering him more.
Gradually the pain in Mr. Tucker's right wrist disappeared, but he continued to complain of weakness in his right hand. On December 10, 1998, Dr. Ethridge stated, "It is my opinion that he [sic] man is outright malingering, however, he does have carpal tunnel syndrome on the left."2 That same day Dr. Ethridge concluded that Mr. Tucker could return to his regular duties.
5. Somprosong Songcharoen's Testimony
Dr. Solomon referred Mr. Tucker to Dr. Somprosong Songcharoen, who testified through his medical records that he examined Mr. Tucker on March 2, 1999. At that time, Mr. Tucker still complained of pain in both hands.
After seeing Mr. Tucker four more times and reviewing all of his medical records, Dr. Songcharoen decided on June 1, 1999, that Mr. Tucker's carpal tunnel syndrome was very mild and did not require further surgery or an impairment rating; and, Dr. Songcharoen added, "The patient can use the hand and go back to work but should limit this to non-repetitive work and not heavy lifting yet."3
6. Michael Winkelmann's Testimony
Dr. Michael Winkelmann testified through his medical records that he examined Mr. Tucker on January 20, 1999. Dr. Winkelmann concluded about Mr. Tucker's condition:
I would recommend return to work without limits.4
Dr. Alan E. Freeland testified through his medical records that he examined Mr. Tucker on June 3, 1999. In a May 12, 2000, letter to Mr. Tucker's attorney, Dr. Freeland wrote:
Upon consideration of the pleadings, pre-trial statements, stipulations, lay and medical evidence, demeanor of the witnesses at the hearing and applicable law, the Administrative Judge finds these facts:
1. Mr. Tucker sustained a work-related injury to his right hand in September 1997, as stipulated by the parties. At the time of the injury Mr. Tucker's average weekly wage was $484.00, as stipulated by the parties.
2. Sysco paid Mr. Tucker temporary disability benefits from September 1997 until February 22, 1999, amounting to $6,978.33, but paid him no permanent disability benefits, as stipulated by the parties. In addition, Sysco paid Mr. Tucker his regular, full wages while he was on light duty.
3. Mr. Tucker's post-injury average weekly wage at Sysco was $575.43, and his average weekly wage at Yellow Freight was $784.09, as stipulated by the parties.
4. Mr. Tucker attained maximum medical improvement on February 22, 1999, as stipulated by the parties.
5. After working as a freight handler, delivery truck driver, and equipment operator, Mr. Tucker began driving a delivery truck for Sysco on September 30, 1996. A year later Mr. Tucker injured his right hand at work.
6. On July 16, 1998, Dr. Chris P. Ethridge diagnosed Mr. Tucker as suffering from carpal tunnel syndrome in both his right and left wrists. On July 31, 1998, Dr. Ethridge performed an endoscopic carpal tunnel release on Mr. Tucker's right wrist. Mr. Tucker returned to light work and then full duty, but later requested a return to light duty with no lifting. Dr. Ethridge granted that request on October 20, 1998, but concluded on December 10, 1998, that Mr. Tucker was malingering and so released him to regular work.
7. In the meantime Dr. Alexandre Solomon also treated Mr. Tucker. On December 29, 1998, Dr. Solomon released Mr. Tucker for light duty with no lifting, and no long-distance driving until January 6, 1999.
8. Dr. Solomon referred Mr. Tucker to Dr. Somprosong Songcharoen who on June 1, 1999, opined that Mr. Tucker's carpal tunnel syndrome was so mild that no further surgery or an impairment rating was warranted. Dr. Songcharoen released Mr. Tucker to return to work "but should limit this to non-repetitive work and not heavy lifting yet."6
9. Dr. Michael Winkelmann examined Mr. Tucker on January 20, 1999, and concluded that he was malingering. Dr. Winkelmann released Mr. Tucker to return to regular duty with no restrictions.
10. Sysco accommodated Mr. Tucker with light duty, such as sweeping and picking up paper, from September 1997 through May 1999 (except from approximately September 21 through October 20, 1998, and perhaps another brief period when Mr. Tucker was on regular duty). Mr. Tucker did not enjoy his light duty assignments, but did not seek to return to his pre-injury job because he believed that he could not do the duties of that position. At any rate, Mr. Tucker and Allen Neely, the Sysco Director of Safety and Security, had frequent disagreements about whether Mr. Tucker's various light duty assignment were within his work restrictions. Eventually in June 1999, Sysco fired Mr. Tucker for insubordination.
11. Mr. Tucker then went on his own, without a referral, to Dr. Alan E. Freeland on June 3, 1999. Although Dr. Freeland concluded that Mr. Tucker was malingering, Dr. Freeland assigned Mr. Tucker an impairment rating of five percent to his right hand and restricted him to non-repetitive light duty. Dr. Freeland described that impairment rating and work restriction as "usual and customary"7 for a right carpal tunnel release.
12. After seeing Dr. Freeland, Mr. Tucker looked for another job. Following an extensive search, Mr. Tucker was hired by Yellow Freight as a temporary driver in June 1999. Although Mr. Tucker worked an average of only one to two days a week, his average weekly wage at Yellow Freight was $300.09 more than his pre-injury average at Sysco and $208.66 more than his post-injury average at Sysco. In addition, the Yellow Freight job did not involve the lifting that had been required in Mr. Tucker's pre-injury position at Sysco.
13. At the time of the hearing Mr. Tucker still held the Yellow Freight job.
14. Also at the time of the hearing, Mr. Tucker
still experienced the effects of the injury. For example, he could no longer
bowl with his wife and could not play with his daughter as he had before
the injury.
As to the first issue of temporary benefits, the Administrative Judge finds that Mr. Tucker is entitled to temporary disability benefit payments from the stipulated date of the injury in September 1997 until the stipulated date of maximum medical improvement on February 22, 1999. The record, however, is not clear as to the precise periods when Mr. Tucker was off work, and thus entitled to temporary total disability benefits, and when Mr. Tucker was working, and thus entitle to temporary partial disability benefits. Suffice it to say that, regardless of whether the benefits are denominated as "total" or "partial", for each week between the date of injury and the date of maximum medical improvement Mr. Tucker is entitled to "two-thirds of the difference between his pre-injury weekly wage and his earnings for that week." Hendershot v. Weiser Security Systems, Inc., MWCC No. 97-08017-G-0280, 1999 WL 377899, at 3 (May 25, 1999). That calculation of benefits also gives Sysco proper credit for the wages it paid Mr. Tucker during that period. In addition, of course, Sysco is entitled to credit for the temporary benefits previously paid.
Concerning the second issue of permanent disability, Mr. Tucker contends that because he can no longer perform the usual duties of his pre-injury job, he suffered a total loss of use of his right hand and, accordingly, is entitled to the maximum of 150 weeks of benefits prescribed in Section 71-3-17(c). On the other hand, Sysco argues that Mr. Tucker has failed to prove any permanent impairment.
Before reaching the question of loss of use, or industrial impairment, Mr. Tucker must first prove that he sustained a medical impairment. In that regard, Mr. Tucker points to the facts that Dr. Freeland assigned a five percent permanent partial impairment to Mr. Tucker's right wrist and that on June 1, 1999, Dr. Songcharoen restricted Mr. Tucker to non-repetitive work and no heavy lifting.
On the other side of the scales, Mr. Tucker's surgeon, Dr. Ethridge, not only did not assign an impairment rating but concluded on December 10, 1998, that Mr. Tucker was malingering and released him to regular work. Dr. Solomon released Mr. Tucker to light duty with no lifting on December 29, 1998, but did not assign an impairment rating. On January 20, 1999, Dr. Winkelmann found that Mr. Tucker was malingering and released him to regular duty. On June 1, 1999, Dr. Songcharoen opined that Mr. Tucker's carpal tunnel condition was so mild that it did not merit an impairment rating.
In addition, Dr. Freeland believed that Mr. Tucker was malingering but, nevertheless, gave him an impairment rating of five percent and restricted him to non-repetitive light duty. Dr. Freeland admitted that he assigned that rating and restriction because they were usual and customary in carpal tunnel cases and that he would need additional tests before he could be more specific about Mr. Tucker's condition.
Weighing all of these facts, the Administrative Judge finds that Mr. Tucker did not meet his burden of proving that he sustained any medical impairment to support a finding of permanent impairment; accordingly, Mr. Tucker's claim for permanent disability benefits is denied. For that reason, further discussion of Mr. Tucker's claim for loss of use is not required.
Finally, as to the issue of the reasonableness
and necessity of the medical services provided by Dr. Freeland, Mr. Tucker
testified that he went to Dr. Freeland on his own, without a referral.
Dr. Freeland was, thus, outside the chain of referrals, and accordingly,
Sysco is not required to pay for Dr. Freeland's services.
IT IS, THEREFORE, ORDERED AND ADJUDGED that the Employer/Carrier shall pay workers' compensation benefits to the Claimant as follows:
1. Temporary disability payments at the appropriate rate beginning September 1997 and continuing through February 22, 1999, with credit for payments previously made; and
2. Penalties and interest on any due and unpaid compensation benefits.
IT IS FURTHER ORDERED AND ADJUDGED that the Employer/Carrier shall provide reasonable and necessary medical services and supplies as required by the nature of the Claimant's injury and the process of recovery therefrom, pursuant to Miss. Code Ann. Section 71-3-15 (Rev. 2000), and the Medical Fee Schedule; provided, however, that the Employer/Carrier shall not be responsible for the medical services furnished by Dr. Alan E. Freeland to the Claimant
SO ORDERED this the 17th day of January, 2001.
MARK HENRY
ADMINISTRATIVE JUDGE
ATTEST:
Jo Ann McDonald, Secretary
___________________________
1. Claimant's Exhibit 1, medical records of Methodist Neuroscience Associates, p.20
2. Employer/Carrier's Exhibit 4, Medical Records of Dr. Chris Ethridge, p.9
3. Employer/Carrier's Exhibit 3, Medical Records of Dr. Somprosong Songcharoen, P.9
4. Employer/Carrier's Exhibit 5, Medical Records of Dr. Michael Winkelmann, p. 8
5. Claimant's Exhibit 6, Medical Records of Dr. Alan E. Freeland, pp. 2-3.