MWCC NO. 98-04822-G-4015

PHILLIP BOYD                                                                                                                                          CLAIMANT

VS.

THE STRATFORD COMPANY                                                                                                               EMPLOYER
AND
EMPLOYERS INSURANCE OF WAUSAU                                                                                               CARRIER

REPRESENTING CLAIMANT:
Honorable Keith S. Canton, Attorney at Law, Corinth, Mississippi

REPRESENTING EMPLOYER/CARRIER:
Honorable Michael G. Soper, Attorney at Law, Tupelo, Mississippi

The Commission heard the above styled cause on September 24, 2001 in the offices of the Mississippi Workers' Compensation Commission in Jackson, Mississippi on Employer/Carrier's "Notice of Appeal".

Having hearcf 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 20, 2001.

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

MISSISSIPPI WORKERS' COMPENSATION COMMISSION
BEN BARRETT SMITH
BARNEY SCHOBY
COMMISSIONERS

ATTEST:
Jo Ann McDonald, Secretary

MWCC NO. 98-04822-G-4015

PHILLIP BOYD                                                                                                                                          CLAIMANT

VS.

THE STRATFORD COMPANY                                                                                                               EMPLOYER
AND
EMPLOYERS INSURANCE OF WAUSAU                                                                                               CARRIER

REPRESENTING CLAIMANT:
Honorable Keith S. Canton, P.O. Box 1415, Corinth, Mississippi 38835-1415

REPRESENTING EMPLOYER/CARRIER:
Honorable Michael G. Soper, P.O. Box 68, Tupelo, Mississippi  38802-0068

A hearing was held on October 5th 2000, at the Pontotoc County Courthouse located in Pontotoc, Mississippi at approximately 11:30 a.m. This cause concerns an admitted injury suffered by the claimant while in the employ of the Stratford Company. At the conclusion of the hearing it was agreed at the employer and carrier's request that they procure a vocational rehabilitation expert to evaluate the claimant's potential job opportunities and the Administrative Judge determined that it would be in his best interest to do so and allowed this record to be held open for approximately 30-45 days. Upon the receipt of this additional information and after the evaluation was achieved, this record was finally closed and this opinion rendered.

Stipulations entered into by the parties were singular in nature and concerned the average weekly wage of the claimant which was determined to be $633.92 per week.

Evidence was entered into this cause as follows:

Claimant Exhibit 1: Deposition of Dr. Glen Crosby;

Claimant Exhibit 2: Deposition of Dr. William L. Rice;

Employer and Carrier Exhibit 3:  Deposition of Dr. Howard R. Holaday;

Claimant Exhibit 4:  Choice of physician form;

Claimant Exhibit 5:  Letter from Wausau dated November 5, 1998

Claimant Exhibit 6:  Termination letter from Stratford Company;

Claimant Exhibit 7:  Blue Cross and Blue Shield memo;

Employer and Carrier Exhibit 8:  Subpoena;

Employer and Carrier Exhibit 9:  Vocational Expert memorandum.

The existence, nature and extent of disability attributable to the injury:  selection of certain medical treatment rendered to the claimant for the resolution of this injury as contested by employer and carrier herin.

Claimant testified that on the occasion of this hearing that he is 42 years old having been born on August 1st, 1958, and is a life long resident of Ripley, Mississippi.  He completed the eighth grade in formal education.  Claimant testified to on March 30, 1998, date of injury and testified to no prior like injuries and/or problems.  The claimant aparently suffered an injury which necessitated three surgeries on his back and one on his knee.  Claimant was injured when helping move a sofa off a conveyor and stepped backward off the conveyor.  With regard of the selection of certain medical, it is noted by reference to the choice of physician form that was entered as Claimant Exhibit 4, dated March 30, 1998 and signed by the claimat that although it indicates an election to choose a certain physician, the names of the two physicians were written in by someone other than the claimant and the claimant testified on the date of the hearing. "I wouldn't know Dr. Mitchell or Dr. Canella if they walked in this room." The undersigned takes judicial notice that the names of Drs. Mitchell and Canella were included on the choice of physician form. The claimant testified that he made ajob search after he was released to maximum medical improvement early in the summer of 2000. He also noted that the Stratford Company fired him. Claimant also indicated on cross- examination that he had received permission from Brad Boyd to go to the Tupelo Emergency Room. The claimant did not want to go to the company doctor, Dr. Ellis. It was also noted in testimony that the claimant is currently on social security disability.

Brad Boyd, formerly Human Resources Manager at Stratford Company, testified for the defense in this cause. Mr. Boyd outlined for the Commission the practices and procedures used at the plant. He also discussed the choice of physician form with his comments indicative of the fact that this was not a voluntary and straight forward physician choice by the claimant.

Dr. Howard R. Holaday, a board certified neurosurgeon formerly located in the Tupelo area, who has since relocated to Jackson, Mississippi, saw the claimant on three occasions with first presentation on April 8, 1998. He took from the claimant a pertinent history of a work-injury and noted that his chief complaints were low back pain and left knee pain. A physical examination ensued. He reviewed an MRI of the claimant which was previously taken on March 31,1998. Dr. Holaday noted that he had degenerative changes, but no evidence of herniated disc or neural impingement present on the studies. His impression on that day was low back pain secondary to a lumbar strain and left knee pain. He discussed with him a return to work with light duty for two weeks and a gradual return to regular duty. He noted at the outset of the deposition that he had differing opinions from Dr. Glen Crosby as to what the MRI studies revealed. Second visit with the claimant was achieved on April 15th, 1998. He noted that there was no improvement according to the claimant and he was kept on light duty. Dr. Holaday recommended a lumbar myelogram with a post myelogram CT scan. On April 20, 1998. these studies were achieved. By April 29th 1998, he had reviewed the studies, and saw no evidence of a herniated disc and did not think surgery as supported by the studies, but as to the left knee, the doctor felt he should consult an orthopedic surgeon. This physician had an opinion to a reasonable degree of medical certainty that there was no significant lumbar stenosis, noted degenerative disc disease at L5-S I with no surgical problem present. He released the claimant at maximum medical improvement on April 29th, 1998, relative to his back work-related injury and referred claimant to Dr. Wright, an orthopaedic surgeon in Tupelo for his knee problems. He had no further visits with the claimant and placed no restrictions or limitations as to the back on the claimant. This physician obviously had a clear difference of opinion medically from that of Dr. Glen Crosby and that of Dr. Robert Lee, the radiologists. Dr. Holaday confirmed on cross-examination that he was at a clear disadvantage to accurately access the claimant's condition as he had only seen the claimant on three occasions and if he had known the symptomology had continued he would have ordered a repeat myelogram with post-myelogram CT scan, the gold standard. He also conceded that the pronouncements of Dr. Crosby, the neurosurgeon who ultimately performed the back surgeries on the claimant predated any injuries of lifting clothes from a dryer at home and that Dr. Smith, the emergency room physician in his notes reflected the aspects of radiculopathy into the right lower extremity upon initial presentation immediately after the work-related injury.

Dr. Glen Crosby, a board eligible neurosurgeon from the Semmes-Murphy Clinic testified to a first presentation on June 12th, of 1998, at which time he took a pertinent history from the claimant. He was sent to Dr. Crosby for an evaluation of his back pain relative to the work-related injury which occurred on March 30th, 1998, when the claimant was lifting a piece of furniture. He had some knee pain and some severe back pain the sudden onset of which was immediately following the injury. He had persistent lower back pain with some radiation into the right lower extremity. These problems were aggravated by activity and lifting. Dr. Crosby prescribed Tylenol 3 and inflammatories for the claimant and a course of physical therapy opting for a conservative mode of treatment. He noted that the claimant brought on that date his post-myelogram CT and MRI scan. The claimant had remained symptomatic since the injury. Dr. Crosby performed a physical examination and discerned paraspinal spasm in the back and a restricted range of motion. After reviewing all studies he continued to recommend a conservative management for present and sent him for a lumbar epidural block at L5 and placed him in a Medrol-dos package, anti-inflammatories, muscle relaxers and discussed possible lumbar spine surgery. His diagnosis on that date was degenerative L5 disc as well as a herniated L5 disc and he felt he had a component of a previously existing condition but also an acute condition that was aggravated by his reported work injury. The next visit occurred on July 15th, 1998, and the claimant continued to complain of severe back pain, mostly right sided, aggravated by activity. He related to the physician on the occasion of this visit that he felt he was getting worse. He was sent for epidural blocks and a SI sacroiliac joint block on the right. By July 3 1 rst, 1998, he presented in severe distress to this physician. Claimant was set for a repeat MM. By August 5th, 1998, the MRJ had been achieved and reviewed by this physician. This MM revealed a herniated disc at L5 to the right. Dr. Crosby recommended surgery in the form ofa right sided L5 discectomy. The surgery was performed on August 14th, 1998. By the September 2nd, 1998, the leg pain had resolved, but he continued to have persistent back pain. Due to this component, Dr. Crosby felt that a repeat MM was indicated. On November 18th, 1998, he reviewed same and scar tissue was denoted at L5-SI on the right and some evidence of a clumping of the nerve roots at that level. He prescribed a continued course of physical therapy and medications. By December 11th, 1998, the claimant was still not doing well. The physical therapy had apparently aggravated his overall condition and he reported on that date to be in "agony.' The claimant appeared to have a recurrent disc at L5, severely degenerated in nature. Dr. Crosby then recommended repeat surgery at LS, right sided discectomy to relieve pressure on the nerve roots caused by the scar tissue present. On December 15th, 1998, the second surgical procedure was performed. By December 30th, 1998, the claimant appeared to be better and had made excellent progress. However, on January 27th, 1999, he reported numbness in left leg and persistent pain and a notable muscle spasm was present. His CBC sed rate was abnormal and x-rays were ordered to rule out any infection in the disc space. There was none discerned. He was placed back in physical therapy. By March 12th, 1999, he was diagnosed with facet syndrome and post-operative back pain. Medications were prescribed, monitored and altered. Improvement was slow and unsatisfactory. The L5 level was still the primary problem for the claimant. By May of 1999, Dr. Crosby recommended a lumbar fusion to be performed in conjunction with Dr. Edward Pratt, an orthopedic surgeon, who would assist Dr. Crosby in this procedure. By August 28th, 1999, the fusion was performed. He continued to follow the claimant who has done very well since. He last saw the claimant on May 17th of 2000, at which time he pronounced maximum medical improvement for the claimant. He also noted at that time that the claimant was temporarily and totally disabled from the date of injury andlor his first presentation on June 12th of 1998 to and through May17th, 2000. He assigned the claimant a permanent partial medical impairment rating of 12% based on his lumbar spine disability and based this on the American Medical Association's Guide to the Evaluation of Permanent Impairment,4th Edition. As to permanent limitations and restrictions he testified to no heavy lifting greater than 30 lbs. and that claimant should avoid any repetitive bending and stooping. all of which were placed upon the claimant to prevent more damage at the L5 level. He also opined a reasonable degree of medical certainty in all regards and more specifically that all were causally related to the work-injury and to the back-injury of March. 1998. The claimant was asymptomatic until the work injury which occurred in March of 1998, and although there may have been a pre existing condition of underlying degenerative disc disease it was exacerbated by the work injury. On cross-examination he noted that a reported instance of lifting clothes out of the dryer in his home between visits with this treating physician may have made him worse, but it was not significant as to his overall medical picture. He noted claimant would be restricted to only light or sedentary work and no lifting over ten pounds. These would be permanent in nature, with all opinions made to a reasonable degree of medical certainty.

Dr. William L. Rice, a board certified orthopedic surgeon, testified by deposition in this cause and noted a first presentation of the claimant on May 6th of 1998. He came to Dr. Rice for his left knee problems upon referral. He noted to the physician that he was carrying a sofa when he fell, landing on the front of his left knee. He had been seen in the emergency room and continued to have reported pain in the left knee. Dr. Rice performed a physical examination, an MRI was suggested and achieved. The second visit on May 13th, 1998, saw the claimant with persistant pain and swelling of the knee. He noted that his diagnosis was the claimant had a popliteal cyst in the back of his knee, indicative of swelling in the knee. This is also known as a "baker's" cyst. He testified to a reasonable degree of probability or certainty that all was causally related to his fall on the knee and noted that he had no prior problems in this regard. Surgery was discussed with the patient and was achieved on May 19th of 1998. An othroscopy of the knee was of knee was performed which revealed torn cartiledge i.e. a meniscus tear on the inner aspect of the knee and this cartiledge was removed. The cyst was excised as well. He came into to see this physician on follow up on May 27th of 1998, with some pain and a decreased sensation over the front of his knee. By June 12th of 1998 he noted significant improvement after physical therapy for the knee. On July 1st of 1998, he discussed a return to work plan with the claimant with a projected return to work date of July 6th of 1998 and a restriction of no standing greater than 45 minutes and that 50% of an eight hour day should allow the claimant to stand and/or walk intermittently. By July 20th of 1998, as regards the knee injury, he presented with a normal exam. This doctor then recommended a return to work of July 23rd 1998 with no restrictions and assigned to him on that date a 2% permanent partial medical impairment rating to the left lower extremity. He noted, however, that by September 11th of 1998, the claimant still had some complaints and he did not really feel that he was at maximum medical improvement. The claimant had a tenderness behind the knee which was an objective finding. He referred him to physical therapy. There was a long interval in between this visit and the next visit with this claimant. He saw the claimant again on March 17th of 1997, and recommended that he pursue an additional course of physical therapy. He only achieved one visit on March 29, of 1999, because upon a recommendation of a doctor he was consulting in Alabama they suggested that the claimant not undergo further physical therapy. He noted that the pain he discerned in March 1999, was the same type of pain claimant had exhibited throughout his treatment. Same is termed patellofemoral pain. By June 16th of 1999, the final visit with this claimant, he noted slight defusion or swelling in the same area. He recommended more physical therapy and perhaps an injection in the site. However, the claimant refused physical therapy because of his present back problems so he prescribed medications in the appropriate fashion and a knee sleeve for the claimant. His opinion to a reasonable degree of medical certainty was the claimant remained symptomatic since the September of 1988 visit. Dr. Rice confirmed that any and all opinions which he recited in his deposition were to a reasonable degree of medical certainty and/or probability.

David E. Stewart, an expert in the area of vocational rehabilitation and a certified counselor in that regard met personally with the claimant and performed a vocational assessment on the claimant post hearing on October 16th, of 2000. He reviewed all pertinent medical records and past work history, education, and other applicable data. He administered the Wide Range Achievement test and noted that the claimant exhibited a normal intelligence and had an 8th grade education with no GED. Mr. Stewart noted that he attended a county school and does not have the requisite academic skills for many jobs located in the area. He opined to a reasonable degree of vocational certainty, however, that claimant retained some ability to work in the furniture industry, the only type of work he has ever really done in the past twenty-two years or all of his life except for an abbreviated amount of farm labor. Mr. Stewart performed ajob market or labor market survey and pinpointed positions in the area with a pay wage of approximately $6.75 to $7.25 which would be entry level pay for the area. It would appear to the undersigned that he could never reach the level of wages pre-injury even if he could secure a position within this area. Mr. Stewart noted that the claimant tested poorly and was almost illiterate. This expert acknowledged that he was not present at the hearing on the merits which had been concluded several weeks prior hereto. He also ackowledged based on the claimant's limitations and restrictions it was possible that he could not perform the jobs pin pointed in his labor market survey and concluded that he was not in any way saying and that claimant had not attempted to find work, rather he had not worked since his injury and his termination from the Stratford Company. The report. which accompanied the deposition. was reviewed by the undersigned and incorporated herein.

Reference should be made to claimant Exhibit Number 5 which was a letter from Wausau Insurance Group dated November 5th of 1998. This letter is addressed to the North Mississippi Medicine and Orthopedic Group located in Tupelo, Mississippi, and indicates to Dr. Rice that they would not be responsible for any treatment after the reported date of September 11th of 1998, with reference to the claimant and his accident which occurred on or about March 20th of 1998.

Claimant's Exhibit 6 should be commented upon. This letter dated December 6th of 1999, and addressed to the claimant, notes that his employment with Stratford Company had been terminated as a result of the sale of the company and indicated his ability to comply with the health insurance portability act with insurance continuation information to comply with Cobra. Same was signed by Ken Winters, Vice-President of Human Resources for Stratford Company.

Claimant's Exhibit 7 is a letter from Blue Cross and Blue Shield dated February 29th of 2000. and is relative to the benefits paid by this company for medical treatment tendered to the claimant and addressed to Keith Carlton, Esq. in Corinth, Mississippi.

The last item of evidence to be pondered is Employer and Carrier Exhibit A which is a subpoena of the witness, Brad Boyd who attended the hearing on the aforementioned date and testified in regard to the particulars of this claim.

1. Claimant has sustained the burden of proof relative to a finding of permanent total disability in regards to his injury specifically with regard to the events which followed, including, but not limited to the multiple surgeries on the claimant's low back lumbar area and his left lower extremity. The combination of these maladies and the treatment he received for the resolution of same have rendered him permanently and totally disabled as defined by the statutes and applicable case law.

2. It is evident from the testimony and consideration of the totality of the circumstances herein that the claimant is unable to secure employment post-injury which would be commensurate with his pre-injury earning capabilities. At the very least it would difficult for the claimant to secure a entry level job which would pay between $6.75 and $7.25 and would in no way be reflective of the wages he was able to achieve and enjoy pre-injury. The restrictions placed on the claimant by his treating physicians would indicate that he is limited to light and sedentary work which based upon his limited educational faculties and his limited work background and as well his restrictions, permanent in nature, placed upon him by these physicians would render him permanent and totally disabled under the Act and within the meaning and intent of the Mississippi Workers' Compensation Law.

3. It is considered opinion of the undersigned that this gentlemen presented himself at the hearing to be one who has enjoyed an admirable work ethic in the past and one who presented himself as a credible and forthcoming individual who absent this injury would have enjoyed many years in an active work force. It is unfortunate that he will be unable to do so.

IT IS, THEREFORE, ORDERED AND ADJUDGED that the employer, Stratford Company, and carrier, Employers Insurance of Wausau, pay workers' compensation commission benefits to the claimant as follows:

1. Permanent total disability benefits in the amount of $279.78 per week commencing on March 30, 1998 and concluding after the statutory period of 450 weeks in accordance with the Miss. Code Ann. Section 71-3-17 (a) (1972).

2. Provide medical services and supplies as required by the nature of that claimant's injury and the process of his recovery therefrom as outlined in Miss. Code Ann. Section 71-3-15 (1972).

3. Penalties and interest, if applicable, pursuant to Miss. Code Ann. Section 71-3-37(5) (6) (1972).

4. Any and all medical tendered to the claimant is to be covered by the employer and carrier as it is determined that there was no unreasonable or unnecessary treatment tendered to the claimant and there was no inappropriate selection of medical in this claim.

SO ORDERED this the 20th day of March, 2001.

VIRGINIA WILSON MOUNGER
ADMINISTRATIVE JUDGE

ATTEST:
Jo Ann McDonals, Commission Secretary