MWCC NO. 98 07837-G-4284
| CYNTHIA STEWART
vs. UNIVERSITY OF MISSISSIPPI MEDICAL CENTER
|
CLAIMANT
EMPLOYER
CARRIER
|
REPRESENTING CLAIMANT:
Honorable Yancy B. Burns and Honorable John Hunter Stevens, Attorneys
at Law, Jackson, Mississippi
REPRESENTING DEFENDANT:
Honorable Richard M. Edmonson, Attorney at Law, Jackson, Mississippi
The Commission heard the above styled cause on June 4, 2001 in the offices of the Mississippi Workers' Compensation Commission, Jackson, Mississippi on the Employer/Carrier's "Petition for Review" and Claimant's "Cross 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 December 8, 2000.
SO ORDERED, this the 6th day of June, 2001.
MISSISSIPPI WORKERS' COMPENSATION COMMISSION
BY: BARRETT SMITH
BARNEY SCHOBY
LYDIA QUARLES
COMMISSIONERS
ATTEST:
Jo Ann McDonald, Secretary
___________________________
MWCC NO. 98 07837-G-4284
| CYNTHIA L. STEWART
vs. UNIVERSITY OF MISSISSIPPI MEDICAL CENTER
|
CLAIMANT
EMPLOYER
CARRIER
|
APPEARING FOR CLAIMANT:
Honorable Yancy B. Burns and Honorable John Hunter Stevens, Attorneys
at Law, Jackson, Mississippi
APPEARING FOR DEFENDANTS:
Honorable Richard M. Edmonson, Jr., Attorney at Law, Jackson, Mississippi
The claimant filed a Petition to Controvert on November 20, 1998, alleging
that she sustained a bilateral carpal tunnel
syndrome injury during the course and scope of her employment with
the University of Mississippi Medical Center (UMC) in June of 1998. A hearing
was held in this matter on August 25, 2000 at the Mississippi Workers'
Compensation Commission in Jackson, Mississippi.
1. Claimant's average weekly wage on the date of injury was $420.00.
2. Temporary total disability benefits have been paid to the claimant for the period May 29, 1998 through August 9, 1998.
1. Whether a compensable work-related injury occurred on the date alleged in the Petition to Controvert.
2. The existence and extent of temporary disability attributable to the injury.
3. The existence and extent of permanent disability attributable to the injury.
4. The reasonableness and necessity of the medical treatment of all physicians; except for Dr. Freeland and Dr. Ethridge.
5. Claimant's date of maximum medical improvement.
A hearing was held in this matter on August 25, 2000 at the Mississippi Workers' Compensation Commission in Jackson, Mississippi. The claimant testified on her own behalf. Additionally, the claimant offered into evidence Supplemental Medical Records/Affidavit of Dr. Salil Tiwari; Second Supplemental Medical Records/Affidavit of Dr. Dinesh Goel; Supplemental Medical Records/Affidavit of Dr. Chris Ethridge; Supplemental Medical Records/Affidavit of Dr. Dinesh Goel; Medical Records/Affidavit of Dr. Douglas Gorman; Supplemental Medical Records/Affidavit of Dr. Douglas Gorman; and a Job Search List.
The employer/carrier called Dr. Rathel L. Nolan and Sam Cox as witnesses. Additionally, the employer/carrier offered into evidence the Deposition of Dr. Alan Freeland; Medical Records/Affidavit of Dr. Alan Freeland; Medical Records/Affidavit of Dr. A. Arturo Leis; Medical Records/Affidavit of Dr. Felix Savoie; Claimant's Responses to Interrogatories and Requests for Production of Documents; A Vocational Report from Sam Cox; and a University of Mississippi Medical Center Report of Employee's Injury.
The claimant is a 37 year old resident of Jackson, Mississippi, who completed high school and attended college at Jackson State University and Hinds Junior College. Claimant said her educational background includes two years of nursing prerequisites and approximately three years of business administration courses. Additionally, she received an AAS Degree from Hinds Community College in Secretarial Science.
Claimant testified that prior to going to work at the University of Mississippi Medical Center (UMC), she worked in various occupations from 1980 until 1985. Claimant's testimony, as well as Employer's Exhibit No. 11, show that she worked at Krystals as a cashier and front window person; at the Comprehensive Health Center writing and filing; at Mr. Bookkeeper writing, answering phones and balancing books; and at the Mississippi School for the Deaf cleaning tables and washing dishes. She was hired by UMC in 1985 as a Medical Records-Technician. Her duties included answering the telephone, extensive filing, standing and bending. In 1990 she was promoted to a Senior Secretary in the UMC Pavilion. Her duties included extensive writing, data entry and stocking. In 1993 she was transferred to the Infectious Diseases Department, where her job duties were much the same.
Claimant testified that at some point during the course and scope of her employment with the University of Mississippi Medical Center she began having problems with her left hand and that she eventually sought medical treatment in February, 1998. However, she could not recall a specific date on which her problems started. Claimant testified that she told her supervisor about the pain that she was experiencing in her hand. She was instructed to seek treatment at the UMC Student Health Clinic, which in turn referred her to Dr. Freeland. Claimant said she eventually went to Dr. Dinesh Goel on her own because Dr. Freeland kept sending her back to work although she continued to have problems.
Claimant testified that she was concerned with Dr. Freeland's surgical recommendation and she then sought a second opinion on her own from Dr. Ethridge. She had seen him previously for a prior injury involving her left wrist which took place in 1986 at UMC. Claimant further testified that in late May or early June, 1998, her right hand started hurting while she was cleaning out a filing cabinet. Claimant said she reported this incident to her supervisor, Dr. Rathel Nolan.
Claimant testified that after she saw Dr. Ethridge on a couple of occasions, she was told to go back to see Dr. Dinesh Goel or Dr. Freeland. She returned to see Dr. Goel, who referred her to Dr. Tiwari and Dr. Gorman for carpal tunnel syndrome. Claimant also stated that she went on her own to the Mississippi Baptist Medical Center in July, 1998, with complaints of her wrists. She thereafter saw Dr. Felix Savoie on a referral from the emergency room physician at the Baptist Hospital. Claimant stated that Dr. Gorman ultimately performed surgery on both of her wrists and that the surgeries somewhat helped her problems. However, claimant testified that she does not feel that she will be able to return to her prior job at UMC or to any other type of secretarial work because she is not able to use her hands repetitively.
Claimant testified that she conducted an extensive job search within the Jackson Metropolitan area. A list of her job search efforts was offered into evidence as Claimant's Exhibit No.14. Claimant testified that she was unable to find any employment even though she attempted to find jobs which required employment demands and efforts beyond her restrictions. Additionally, she conducted a job search with the assistance of Sam Cox, the employer's vocational counselor. Claimant testified that she applied for each position provided to her by Mr. Cox. However, she has been unable to find any employment since she last worked at UMC in or about May, 1998. Claimant testified that she attempted to return to work on two occasions at the direction of Dr. Freeland but was unable to do her job and her condition worsened. She was eventually terminated by UMC due to an inability to do her job, although she did not believe that she would have been able to return to work there as a secretary anyway.
Claimant testified that she continues to have problems with her hands and can no longer perform certain activities that require repetitive movement of the hands. Additionally, she is unable to help her children with cleaning and other household duties. Claimant said she is continuing follow-up treatment with Dr. Goel.
Dr. Rathel Nolan testified as the employer's representative. He confirmed that he has been the claimant's supervisor in the Infectious Diseases Department at UMC since approximately 1993. Dr. Nolan testified that the claimant never reported a specific injury involving her left wrist, although she did indicate that she was having problems with the same in February, 1998. It was suggested that she go to the UMC Student Employee Health Center. He also testified that he was aware that the claimant had been complaining for years about her left wrist and that she had related in the past that such was probably due to her 1986 injury. However, these problems never interfered with her work and job performance.
Dr. Nolan testified that most of the claimant's work duties involved a great deal of typing and repetitive usage of her hands, although she did not do the same type of repetitive activity on a daily basis. Dr. Nolan stated that he was unaware of an injury involving her right wrist and he denied that the claimant ever reported a right wrist injury to him which may have occurred while she was cleaning out a cabinet in May or June, 1998. He testified that UMC ultimately terminated the claimant several months after she had been out, because the hospital needed to fill her position and they had to officially terminate her before they could hire someone else. He was not aware of the claimant having made any efforts to return to work.
Dr. Nolan testified that the claimant was a "good employee" and that he never had any excessive absenteeism or personnel problems with her in the past. He said the claimant looked distressed and uncomfortable the last time he saw her at work.
Mr. Sam Cox, a vocational rehabilitation expert, testified on behalf of the employer. Mr. Cox testified that he had reviewed all of the claimant's medical records, along with her deposition transcript and discovery responses. He thereafter performed a vocational rehabilitation evaluation and job labor market survey based upon his review of this information and his meeting with the claimant. Mr. Cox testified that he believes the claimant to be employable in other occupations. Further, considering the claimant's educational background and level of intelligence, he believes she retains the vocational capacity to perform work in jobs which pay anywhere from minimum wage to $9.00 per hour.
The medical records of Dr. A. Arturo Leis were offered into evidence as Employer's Exhibit No.9. These records indicate that he saw the claimant at the University of Mississippi Medical Center Clinic on or about February 20, 1998. His impression was normal EMG and nerve conduction studies with no electrophysiologic evidence of median, ulnar or radial mononeuropathies.
The medical deposition of Dr. Alan Freeland was introduced into evidence as Employer's Exhibit No. 7. His corresponding medical records were introduced into evidence as Employer's Exhibit No. 8. Dr. Freeland's deposition reflects that he first saw the claimant on or about March 12, 1998, on a referral from the UMC Student Employee Health Clinic. She complained of throbbing pain in her left forearm and wrist. Dr. Freeland took a history of left forearm and wrist pain which the claimant reported started 10 years prior, when she had a crush injury to her wrist and forearm after a rolodex machine rolled over her arm and wrist while employed at UMC. Claimant said she did not have to have any surgery for this and did not know of any specific tendon or nerve deficits that resulted from this. Claimant also reported that she had been experiencing very significant pain, especially when typing, over the past year.
Dr. Freeland testified that the claimant had no sensory deficits in her left hand upon a physical examination and that plain x-rays showed no significant arthritis. Additionally, he ordered EMG/ nerve conduction studies and cold tolerance tests, both of which were normal. Dr. Freeland testified that his initial diagnosis was that the claimant was experiencing some type of myofascial symptoms in her left forearm, in addition to some instability or early arthritis.
Dr. Freeland testified that he next saw the claimant on or about April 9, 1998, at which time he recommended a diagnostic arthroscopy to identify exactly what the claimant's problem involved and to repair the problem, if possible. Dr. Freeland indicated that at that time he felt surgery would not be work related. However, he did not know at that time that claimant's initial injury with the rolodex some ten years earlier was a work injury. He later learned that the claimant wanted to cancel her surgery and obtain a second opinion which he had no problem with. Dr. Freeland noted that he would be receptive to all the help he could get to see that the claimant is provided with the very best care and treatment options.
Dr. Freeland stated that he performed another physical examination on the claimant's hands on July 2, 1998. At that point, the claimant reported that she had been reaching up over a shelf at her desk at work on or about June 1, 1998, and that something fell down and hurt her right wrist. The claimant reported that she had not worked since that incident and that she had been to see Dr. Ethridge and Dr. Goel for her problems. Dr. Freeland noted that he agreed with Dr. Ethridge's comments that the claimant was exhibiting a significant compensation and emotional overlay with her posturing, body language, slowness of her response and overprotecting of her hands. Dr. Freeland then opined that operating on the claimant would be a tremendous mistake and that such would lead to a permanently disabled patient regardless of the anatomic and structural success of the outcome.
Dr. Freeland referred the claimant to the Human Performance Center for a functional capacity evaluation on or about July 10, 1998. Dr. Freeland testified that his diagnosis of the claimant was that she was experiencing chronic pain of an incompletely determined etiology, although he felt that such could have been related to her crush injury 10 years prior. He was unable to relate any of her problems to a recent occupational injury. He indicated that she reached a point of maximum medical improvement on August 10, 1998, that she would have no permanent partial impairment from any of her alleged occupational injuries and that she could return to work without restriction on that date.
Upon further questioning, Dr. Freeland admitted that the claimant's problems could represent an aggravation of her pre-existing left wrist injury, although he did not believe that she had carpal tunnel syndrome in either wrist. Dr. Freeland finally stated that the claimant exhibited a "fraudulent examination" during her functional capacity evaluation and that, as a result, he felt that she could return to work without restrictions unless retesting showed something different.
On or about June 2, 1998, the claimant was evaluated by Dr. Chris Ethridge for a second opinion as referenced above. The medical records of Dr. Ethridge were offered into evidence as claimant's Exhibit No.3. Such revealed that he had treated the claimant some ten years ago "with a blunt trauma to the left hand and wrist where she worked at the University Medical Center in a motorized fling system." He said the claimant had a dystrophy in the left hand, got better and went back to work and was productive. However, she never got all the strength back in her left hand and it continued to give her problems. Dr. Ethridge noted that the claimant suffered no particular injury, but a sudden onset of increased pain and swelling in the left hand and wrist. Dr. Ethridge also advised that she had begun having symptoms in her right palm about a month ago with some tingling, numbness, and evident swelling and pain in her right wrist. Dr. Ethridge stated:
Dr. Ethridge's next office visit on or about June 9, 1998 reflected the complexity of the claimant's medical condition and the frustrated attempts to resolve her problems. Dr. Ethridge stated that the most likely diagnosis is bilateral carpal tunnel syndrome. However, the claimant had dystrophy in the left hand years ago, which is a contributing factor.
The claimant was treated by Dr. Dinesh Goel on June 11, 1998. His diagnosis was possible bilateral carpal tunnel syndrome. The medical records of Dr. Goel were offered into evidence as Claimant's Exhibits Nos. 2 & 4. Dr. Goel indicated that the claimant should stay off work because she was not able to do secretarial work with her hands. She was scheduled to return for a follow-up visit in three to four weeks. Dr. Goel's notes dated September 18, 1998 reflect that the claimant was complaining of left and right wrist pain. Claimant was then referred to Dr. Salil Tiwari.
The medical records of Dr. Tiwari were offered into evidence as Claimant's Exhibit No. 1. He saw the claimant on or about October 23, 1998. At this time the claimant was subjected to another nerve conduction study which resulted in a positive reading. Dr. Tiwari diagnosed bilateral carpal tunnel syndrome and recommended surgery for both the left and right hands. He noted that the claimant's condition resulted from "repetitive hand usage." Dr. Tiwari further stated that he was sure the claimant's work at UMC contributed to the carpal tunnel syndrome.
On September 2, 1999, Dr. Goel noted that the claimant's right hand symptoms were not improved, although her left hand was improving somewhat. On September 30, 1999 he indicated that the claimant had reached a point of maximum medical improvement from her left hand surgery and assigned a 5% permanent impairment rating to the left arm as a result of her carpal tunnel syndrome and surgery. However, he felt that the right hand problems were worse and he felt that she was developing a reflex sympathetic dystrophy on that side. He opined that the claimant's bilateral carpal tunnel syndrome is a result of "repetitive employment at the UMC." Additionally, Dr. Goel opined that the claimant should avoid frequent repetitive work.
Subsequently, on or about November 18, 1999, Dr. Goel indicated that the claimant had reached maximum medical improvement in regard to her right arm and that she would have a 25% permanent partial loss of function to the right arm and a 10% permanent partial loss of function to the left arm because of continuing carpal tunnel syndrome. He further stated that as far as work is concerned "the claimant is right handed and is unable to do any kind of gainful employment." He said the claimant had an "aggressive child at home" who should be placed in a daycare because she was not able to handle the child due to the problem with her hands. Dr. Goel advised the claimant to continue her pain medications, hot soaks and neurontin. She was scheduled to return in two months for a follow-up visit.
The medical records of Dr. Felix Savoie were offered into evidence as Employer's Exhibit No. 10. Such indicate that he saw the claimant on or about August 14, 1998, on a referral from Dr. Karen Collins for bilateral wrist pain. She had already had an extensive evaluation by Dr. Freeland and Dr. Ethridge. His records indicate that he found nothing on the physical examination and that claimant's hands were not swollen. He noted that she had a full range of motion of each digit, although she would not move them on her own. Dr. Savoie recommended that the claimant return to Dr. Freeland or Dr. Ethridge for further treatment.
On or about March 29, 1999, claimant was referred to Dr. Douglas E.
Gorman. The medical records of Dr. Gorman were offered into evidence as
Claimant's Exhibits Nos 5 & 6. These records show that on or about
April 8, 1999, Dr. Gorman performed a surgical release of carpal tunnel
compression to the left hand. On or about July 23, 1999, Dr. Gorman performed
a release of the right carpal tunnel nerve compression. Dr. Gorman referred
the claimant back to Dr. Goel for further treatment and evaluation. His
May 19, 2000 office record provides that based upon the claimant's work
history, which to his understanding involved repetitive motion of both
hands and wrists, her carpal tunnel syndrome to both the left and right
hands is causally related to her employment duties at the University Medical
Center.
Having heard the evidence presented by the parties and having considered same, I base the following findings on a preponderance of the evidence, including medical proof as required by the Act:
1. The claimant suffered work related injuries to her left and right upper extremities in the form of bilateral carpal tunnel syndrome, while performing duties in the course and scope of her employment with the University of Mississippi Medical Center (UMC).
2. The claimant's average weekly wage at the time of the injury was $420.00, as stipulated by the parties.
3. Temporary total disability benefits have been paid to the claimant for the period May 29, 1998 through August 9, 1998, as stipulated by the parties.
4. The claimant reached maximum medical improvement for her left hand on September 30, 1999 and maximum medical improvement for her right hand on November 18, 1999.
5. The test for determining the extent of industrial loss of use suffered by the claimant looks to the extent to which the claimant has become unable, because of the injury to her upper extremities, to perform the substantial acts of her usual employment. One who, by reason of an injury to a scheduled member, has become wholly unable to perform the substantial acts of her usual employment has suffered a total and complete industrial loss of use of the injured member. McGowan v. Orleans Furniture. Inc., 586 So.2d 163 (Miss. 1991); Piggly Wiggly v. Houston, 464 So.2d 510 (Miss. 1985); Richey v. City of Tupelo, 361 So.2d 995 (Miss. 1978).
I am aware that there are some inconsistencies in the medical evidence. Certainly, reasonable minds can differ. However, I find Dr. Goel's opinion to be more persuasive.
He opined that the claimant would have a 25% permanent partial loss of function to the right arm and a 10% permanent partial loss of function to the left arm because of continuing carpal tunnel syndrome. He further opined that the claimant should avoid frequent repetitive work and that she was right handed and unable to do any kind of gainful employment.
The claimant is a 37 year old resident of Hinds County, Mississippi. The evidence shows that she has taken approximately two years of nursing prerequisites and three years of business administration courses. Further, she has an AAS degree in Secretarial Science. She worked in various occupations prior to going to work at UMC. The claimant testified that she continues to have problems with her hands and can no longer perform certain activities that require repetitive movement of the hands. She does not feel that she will be able to return to her former employment at UMC or any other type of secretarial work because she cannot use her hands repetitively. The evidence shows that the claimant made a reasonable, but unsuccessful effort to find employment prior to the date of the hearing. Sam Cox, a vocational expert, testified that based on the claimant's educational background and level of intelligence, he believes she is employable and retains the vocational capacity to perform work in other occupations which pay from minimum wage to $9.00 per hour.
Under the current circumstances, the evidence as a whole does not support a finding of permanent total disability. It does, however, support a finding of substantial permanent partial disability. In considering the evidence as a whole, I find that the claimant has suffered a permanent physical impairment of 25% to the right arm, which has resulted in an occupational loss of 50% to this member. She has suffered a 10% permanent physical impairment to the left arm, which has resulted in an occupational loss of 20% to this member.
6. The claimant, having suffered a compensable work-related injury, is entitled to reasonable and necessary medical services and supplies and by law the employer and carrier are obligated to furnish and provide claimant with reasonable and necessary medical services and supplies, such as the nature of her injury and the process of her recovery may require, consistent with Miss. Code Ann., § 71-3-15 (1972), as amended and the Medical Fee Schedule.
7. Claimant is entitled to penalties on each installment of compensation not timely paid the equivalent of 10% therefore as provided in Miss. Code Anno., § 71-3-37 (5) (1972) together with the interest at the legal rate on all unpaid installments.
IT IS, THEREFORE, ORDERED that the self-insured employer shall pay compensation benefits as follows:
1. Pay to the claimant temporary total disability benefits at a rate of $279.78 from June 1, 1998 through November 18, 1999. The employer and carrier are entitled to credit for any such payments of compensation heretofore made to the claimant or any wages earned by the claimant during this period of time.
2. Pay to the claimant permanent partial disability benefits in the amount of $279.78 per week beginning June 1, 1998 and continuing for 40 weeks as compensation for disability to the claimant's left upper extremity and then consecutively pay to the claimant permanent partial disability benefits in the amount of $279.78 per week continuing for an additional period of 100 weeks as compensation for disability to claimant's right upper extremity. The employer and carrier are entitled to proper credit for any such payments of compensation heretofore made to the claimant.
3. Furnish and provide the claimant with reasonable and necessary medical services and supplies incurred as the nature of her injury and the process of her recovery may require, consistent with Miss. Code Ann., § 71-3-15 (1972), as amended and the Medical Fee Schedule. The employer and carrier are not liable for the medical services rendered by Drs. Dinesh Goel, Douglas Gorman and, Salil Tiwari because the claimant sought the services of these physicians without the employer's approval, without the Commission's authorization and without referral from her physician.
4. There shall be added to each installment of compensation not timely paid the appropriate penalty as provided in Miss. Code Ann., § 71-3-37 (1972) together with interest at the legal rate on all unpaid installments.
SO ORDERED this the 8th day of December, 2000.
MELBA DIXON
ADMINISTRATIVE JUDGE
ATTEST:
Jo Ann McDonald, Secretary