MWCC NO. 98 02746-G-4776

JOYCE JACKSON                                                                                                                                                                                             CLAIMANT

VS

MULTICRAFT INTERNATIONAL                                                                                                                                                                 EMPLOYER
AND
MMA WORKERS' COMPENSATION SELF-INSURER GROUP

REPRESENTING CLAIMANT:
Honorable Yancy B. Burns, Attorney at Law, Jackson, Mississippi

REPRESENTING EMPLOYER AND CARRIER:
Honorable Steven H. Funderburg and Honorable Holly Smalling, Attorneys at Law, Jackson, Mississippi

Joyce Jackson sustained a work-related injury on January 14, 1998. Because the parties disagreed about the existence and extent of temporary and permanent disability, a hearing was held at the Mississippi Workers' Compensation Commission Building in Jackson. Mississippi. Considering all of the facts, the Administrative Judge finds that Ms. Jackson is entitled to temporary disability benefits and to permanent disability benefits based on medical impairment ratings of twenty percent to her right arm and ten percent to her left arm.

At the hearing the parties stipulated to these facts:

1. Ms. Jackson sustained a compensable injury to her right arm on January 14, 1998;

2. At the time of the injury, Ms. Jackson's average weekly wage was $267.80;

3. The employer/carrier paid Ms. Jackson $5,603.37 in temporary total disability benefits from January 14, 1998, throughJuly 8, 1998; and,

4. The employer/carrier provided medical services, except for the treatment by Dr. Dinesh Goel.

The parties identified these issues:

1. The existence and extent of temporary disability attributable to the injury;

2. The existence and extent of permanent disability attributable to the injury;

3. The date on which Ms. Jackson reached maximum medical improvement; and

4. The reasonableness and necessity of the medical treatment by Dr. Goel.
 
 

Joyce Jackson, who was thirty-seven years old, completed the tenth grade, and lived in Carroliton. Several years ago she worked for Multicraft for five months. Then in 1995 she became a certified nurse's assistant and worked at Winona Manor and Pemberton Manor nursing homes where she earned $6.10 an hour.

Returning to Multicraft, Ms. Jackson worked as a machine operator for ten hours a day, five to seven days a week. In that job she used her hands to push or hammer metal pins into parts.

In 1998 Ms. Jackson injured her right arm. Multicraft sent her to Dr. Armstrong who referred her to Dr. Anderson. Dr. Anderson operated on Ms. Jackson's right arm. After the operation Ms. Jackson still experienced swelling, numbness, and pain in both hands.

Six or seven months after the surgery, Ms. Jackson inquired about light duty jobs at Multicraft. but was told that there were none.

Because of her continuing problems, Ms. Jackson saw Dr. Goel who diagnosed her condition as carpal tunnel syndrome in both arms. Dr. Goel's conservative treatment eased, but did not end, the pain.

At the time of the hearing, Ms. Jackson still experienced pain and numbness in her hands. In addition, she sometimes lost control of them. For example, she dropped things while washing dishes.

In addition to the potential employers listed in Claimant's Exhibit 3, Ms. Jackson sought employment at the Bill's Dollar Store in North Carrollton, which was not hiring; the Video Exchange in Winona, where she completed an application; and, Continue Care in Greenwood. Also, since March 14, 2000, Ms. Jackson contacted Winona Manor and Pemberton Manor nursing homes. She informed each nursing home about her hands and was told that she was not hired because she could not lift.

According to her cross-examination testimony, Ms. Jackson worked on the assembly line at a factory in Greenwood, (called Irving), from 1982 until 1985. She then made jeans at Summers Manufacturing in Winona, where she eamed minimum wage. Next she assembled door frames at Carrollton Manufacturing and worked at Burger King. In both of these jobs she made minimum wage.

Ms. Jackson then worked on the assembly line at Multicraft for $5.10 an hour from June 1996 until January 20, 1997. She quit when her sister got sick.

Next she got ajob at Pemberton Manor nursing home. On April 15, 1997, a doctor took her off work for medical reasons that were unrelated to her hands or arms.

On January 7, 1998, Ms. Jackson returned to Multicraft and eamed $5.15an hour. On February 17, 1998, she saw Dr. Armstrong because of her hands. Multicraft then sent her to Dr. Anderson in Greenwood because he was closer. In March 1998 Dr. Anderson told Ms. Jackson that she needed surgery on both hands, but he operated on only her right hand.

In May or June 1998 Dr. Anderson discussed with Ms. Jackson the possibility of returning to work. Later on July 2, 1998, Dr. Anderson released her to return to light duty. Ms. Jackson then called Multicraft about light duty.

Based on recommendations from friends, Ms. Jackson went on her own to Dr. God in December 1998, and 1999. She also saw Dr. Anderson in October and December 1999. During the latter visit Dr. Anderson informed Ms. Jackson that she could return to work.

Ms. Jackson never completed the application for employment with Sta Home Health Care that was mentioned in Claimant's Exhibit 3. Ms. Jackson did not own a vehicle.

2. Stacie Welch

According to Stacie Welch's cross-examination testimony¹ , she dealt with workers' compensation claims as the employee relations manager for Multicraft for the past thirteen years.

Ms. Jackson had been one of about seventy-five machine operators at Multicraft, Over the last fourteen years there had been more than ten, but less than fifty, carpal tunnel syndrome injuries among the machine operators. All of them had returned to work, except for Ms. Jackson.

As a machine operator, Ms. Jackson had used her hands all day to assemble parts. The machine operators got two ten-minute breaks and a thirty-minute lunch period each day.

The Multicraft plant had about twenty light duty positions. Approximately fifteen of those jobs involved inspections parts. In the other light duty positions, employees marked parts or used a foot pedal to operate a soldering gun.

Ms. Jackson was not a malingerer.

According to Ms. Welch's direct testimony, for the past thirteen years she had been the personnel manager at the Winona Multicraft plant, which manufactured small auto parts. Ms. Welch was responsible for workers' compensation matters, hiring, and firing.

The employer's policy was to provide full-time light duty positions to injured employees. When Ms. Jackson did not come to work or call within three days after being released by Dr. Anderson, she was regarded as having voluntarily quit, in accordance with company policy.

Ms. Jackson did not contact Ms. Welch about returning to work until November 1999. At that time Multicraft was not hiring. Ms. Welch had not heard from Ms. Jackson since then.

3. William E. Anderson. III

Dr. William E. Anderson, III, a board certified orthopedic surgeon, testified through his deposition that he first saw Ms. Jackson on March 2, 1998, on a referral from the employer. Ms. Jackson complained of aching and numbness in her right hand. Dr. Anderson diagnosed her condition as carpal tunnel syndrome of the right hand (her left hand was normal), and recommended surgery, which was performed on March 13, 1998.

On April 13 and 20, 1998, Ms. Jackson complained of "nocturnal symptoms of carpal tunnel in the left hand."² Dr. Anderson thought, however, that the symptoms in the left hand were not severe enough to justify surgery, so he advised Ms. Jackson to wear a splint on her left arm at night.

On May 22, 1998, Dr. Anderson decided that Ms. Jackson was developing reflex sympathetic dystrophy to the right hand. Reflex sympathetic dystrophy is a neurologic condition that is associated with trauma to an extremity and is characterized by swelling, shiny skin, and pain. Conservative treatment resolved that condition.

On July 2, 1998, Dr. Anderson released Ms. Jackson for light duty, if available, on July 6. 1998. On October 14, 1999, Ms. Jackson had no carpal tunnel symptoms in her right hand and the symptoms in her left hand showed a small increase but still did not require surgery. After further conservative treatment, Dr. Anderson released Ms. Jackson for full duty with no restrictions on October 28, 1999.

On December 2, 1999, Dr. Anderson examined Ms. Jackson for the last time. Although she complained about both hands, her symptoms did not indicate carpal tunnel syndrome in either hand. These new symptoms caused Dr. Anderson to "doubt seriously that she was developing carpal tunnel on the left side."³

Dr. Anderson did not calculate an impairment rating, but he thought that "a patient who has had carpal tunnel is usually assigned something in the vicinity of about a five percent impairment to the upper extremity... ."⁴ If his recollections were correct, Dr. Anderson would have given that impairment rating to Ms. Jackson's right upper extremity and an impairment rating of zero to her left. Dr. Anderson, however, did not disagree with Dr. Goel's ratings.

4. David L. Meadows

Dr. David L. Meadows examined Ms. Jackson on March 4, 1998, and advised her to have the surgery recommended by Dr. Anderson.

5. Dinesh K.Goel

Dr. Dinesh K. Goel testified through his records that he first saw Ms. Jackson December 1, 1998, for complaints of weakness in her right hand, pain in her right wrist, and numbness in her right fingers. She also complained of similar but less severe symptoms on the left. Dr. Goel prescribed pain medication and told Ms. Jackson to continue wearing the splints on both hands, avoid repetitive hand movements, perform only light work, and lift not more than a few pounds. (At that time Dr. Goel did not have Dr. Anderson's records.)

Ms. Jackson did not return to Dr. Goel until December 3, 1999. She complained of pain, weakness, numbness, and burning in both hands, but the symptoms were worse on the right. Ms. Jackson also reported that the pain radiated to her shoulders and had been increasing for a year to a year and a half. The examination revealed mild weakness in the grip and partial sensory deficit on both sides, and swelling and tenderness in the right hand with the same, but less severe, symptoms in the left.

Dr. Goel diagnosed Ms. Jackson's condition as bilateral carpal tunnel syndrome, which was worse on the right side, and early reflex sympathetic dystrophy of the right hand. Dr. Goel then assigned a "partial permanent loss of function"⁵ of twenty percent to the right arm and ten percent to the left. He also opined that Ms. Jackson was "not able to do any kind of gainful employment because of the problem with both hands."⁶

6. Ms. Jackson's Job Search. Claimant's Exhibit 3

On March 14, 2000, Ms. Jackson's attorney wrote the counsel for the employer/carrier that Ms. Jackson had contacted these prospective employers:

1. Wal-Mart in Winona, which was not hiring but gave Ms. Jackson an application to complete and return.

2. Movie Galaxy in Winona, which gave her the same response.

3. Fred's in Winona, which was not hiring.

4. SuperValu in Winona, which was not hiring.

5. Sta Home Health Care in Carrollton, which gave her an application to complete and return.

7. Winona Manor Affidavit, Employer/Carrier Exhibit 5⁷

There was no employment application by Ms. Jackson on file with Winona Manor.

8. Pemberton Manor Affidavit. Employer/Carrier's Exhibit 6

There was no employment application by Ms. Jackson on file with Pemberton Manor.

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. The thirty-seven year old Ms. Jackson completed the tenth grade. Beginning in 1982 she worked on assembly lines, made jeans, and was employed in the fast food industry. In all of those jobs she made minimum wage.

2. From June 1996 until January 20, 1997, Ms. Jackson worked for Multicraft and made $5.10 an hour. After leaving that job for personal reasons, she held jobs at Pemberton Manor and Winona Manor nursing homes. In the meantime, Ms. Jackson became a certified nurse's assistant.

3. Ms. Jackson returned to Multicraft and worked as a machine operator for ten hours a day, five to seven days a week, inserting metal pins in auto parts. As stipulated by the parties, Ms. Jackson injured her right arm on January 14, 1998. On that date Ms. Jackson's average weekly wage was $267.80.

4. The employer sent Ms. Jackson to Dr. Anderson, a board certified orthopedic surgeon, who examined Ms. Jackson on March 2, 1998. At that time Ms. Jackson complained of aching and numbness in her right hand. Dr. Anderson found carpal tunnel syndrome in Ms. Jackson's right hand but concluded that her left hand was normal.

5. On March 4, 1998, Ms. Jackson went to her family physician, Dr. Meadows, who recommended the surgery.

6. Dr. Anderson operated on Ms. Jackson's right upper extremity on March 13, 1998. Then on April 13, 1998, Ms. Jackson had symptoms in her left hand that were usually associated with carpal tunnel syndrome, but Dr. Anderson believed that the condition did not warrant surgery.

7. After further treatment, Dr. Anderson released Ms. Jackson to return to light duty on July 6. 1998. Although the employer had light duty positions available, Ms. Jackson did not make a reasonable effort to return to work.

8. On December 1, 1998, while Ms. Jackson was still under Dr. Anderson's care, she went on her own without a referral to Dr. Goel. Ms. Jackson complained of weakness, pain, and numbness in her right hand and similar, but less severe, symptoms in her left. Dr. Goel prescribed conservative treatment.

9. On October 14, 1999, when Ms. Jackson returned to Dr. Anderson, she had no carpal tunnel symptoms in her right hand. On October 28, 1998, Dr. Anderson released her to return to full duty with no restrictions. In November 1999, Ms. Jackson contacted the employer about returning, but at that time Multicraft was not hiring.

10. Dr. Anderson saw Ms. Jackson for the last time on December 2, 1999. Because of the different symptoms that Ms. Jackson displayed on that date, Dr. Anderson came to doubt that she had carpal tunnel syndrome in her left hand.

11. The next day on December 3, 1999, Ms. Jackson returned to Dr. Goel. She complained of pain. weakness, and burning in her right hand with the same, but less severe symptoms in her left. Dr. Goel diagnosed her condition as bilateral carpal tunnel syndrome. He assigned an impairment rating of twenty percent to Ms. Jackson's right arm and ten percent to her left. Dr. Goel also opined that Ms. Jackson's medical condition precluded her from working.

12. Although Dr. Anderson did not calculate an impairment rating for Ms. Jackson, he thought that the usual rating for carpal tunnel was five percent. If he were correct about the usual rating. Dr. Anderson would have assigned ratings of five percent to Ms. Jackson's right arm and zero to her left; however, he did not disagree with Dr. Goel's higher ratings.

13. In her search for ajob, Ms. Jackson contacted the Wal-Mart, Movie Galaxy, Fred's. Super Valu, and Video Exchange in Winona. None of those establishments was hiring. She also contacted the Sta Home Health Care in Carrollton (but she did not return the application), and Bill's Dollar Store in North Carrollton, which was not hiring. In addition, she contacted Winona Manor and Pemberton Manor nursing homes but did not complete an application.

14. At the time of the hearing, Ms. Jackson had pain and numbness in her hands and sometimes lost control of her hands.

15. As stipulated by the parties, the employer/carrier paid Ms. Jackson temporary total disability benefits of $5,603.37 between January 14 and July 8, 1998; and provided medical services, except for the treatment by Dr. Goel.

1. Temporary Disability

From January 14, 1998, the stipulated date of the injury, through July 6, 1998, when Dr. Anderson released Ms. Jackson to light duty, Ms. Jackson is entitled to temporary total disability benefits of$ 178.53 a week.

In addition, the Administrative Judge finds that, for the period from July 7, 1998, through October 28, 1999, when Dr. Anderson released Ms. Jackson to return to full duty, Ms. Jackson failed to meet her burden of proving that she continued to be totally disabled. Considering all of the facts. including the nature of Ms. Jackson's pre-injury work, her pre-injury rate of pay, and the availability of light duty positions with the employer, the Administrative Judge finds that during this period Ms. Jackson was capable of working twenty hours a week and earning $5.15 an hour, or $103.00 a week.

Accordingly, the Administrative Judge finds that for each week from July 7, 1998, through October 28, 1999, Ms. Jackson is entitled to temporary partial disability benefits at the rate of "two thirds of the difference between... [her] pre-injury weekly wage [and $103.00]," Hendershot v. Weiser Security System. Inc., MWCC No. 97 08017-G-0280, 1999 WL 377899 at 3 (May 25, 1999), or $109.87.

2. Permanent Disability

To prove that she is entitled to permanent disability benefits, Ms. Jackson must first demonstrate that she suffered a medical impairment. In that regard, she offered the testimony of Dr. Goel that Ms. Jackson had an impairment rating of twenty percent to her right arm and ten percent to her left. In response, the employer/carrier put forward Dr. Anderson's testimony about a five percent impairment rating to the right and zero percent to the left.

Dr. Anderson's ratings, however, were not true medical impairment ratings. Indeed, he testified that he did not actually calculate any rating. Instead, he recounted from memory that he thought the usual rating for carpal tunnel was five percent. Because he found carpal tunnel in Ms. Jackson's right arm and not in the left. Dr. Anderson supposed that he would assign ratings of five and zero percent to her right and left arms, respectively. In fact, Dr. Anderson did not disagree with Dr. Goel's ratings.

Considering all of the facts, the Administrative Judge finds that Ms. Jackson proved that she sustained a medical impairment of twenty percent to her right arm and ten percent to her left arm.

Ms. Jackson, however, argues that she is entitled to permanent disability benefits based on a loss of use of her arms that is greater than her medical impairment rating.

In that regard, Dr. Goel opined that Ms. Jackson was not able to work because of the physical condition of her hands. The Administrative Judge, however, is not persuaded that Dr. Goel has the expertise to make such a determination, especially in the absence of a functional capacity evaluation.

Considering Ms. Jackson's age, education, work history, less than thorough job search, and impairment rating; and the fact that Dr. Anderson released her to return to work with no restrictions, the Administrative Judge finds that Ms. Jackson did not meet her burden of proving that she suffered a loss of use of her arms that exceeded her medical impairments.

3. Dr. Goel's Medical Treatment

Because the Administrative Judge resolved the contested factual issue of the appropriate medical impairment rating by relying on Dr. Goel's testimony, the employer/carrier is required to pay for Dr. Goel's medical treatment of Ms. Jackson, despite the fact that Dr. Goel was outside the chain of referrals See Jordan v. Hercules, 600 So2d 179, 184-185 (Miss. 1992),

IT IS, THEREFORE, ORDERED AND ADJUDGED that the employer/carrier shall pay workers' compensation benefits to the claimant as follows:

1. Temporary total disability benefit payments in the amount of$ 178.53 each week, beginning on January 14, 1998, and continuing through July 6, 1998, with the employer/carrier to receive credit for previous payments;

2. Temporary partial disability benefits payments in the amount of $109.87 each week, beginning on July 7, 1998, and continuing through October 28, 1999;

3. Permanent partial disability benefit payments in the amount of$ 178.53 each week, beginning on October 29, 1999, and continuing for sixty weeks; and

4. 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. §71-3-15 (Rev. 2000) and the Medical Fee Schedule.

SO ORDERED this the 19th day of June, 2001.

MARK HENRY
ADMINISTRATIVE JUDGE

ATTEST:

Jo Ann McDonald, Secretary
 

1 The claimant called Ms. Welch as an adverse witness.

2 General Exhibit 1, Deposition to William E. Anderson, III, M.D., p.9.

3 Id., at 15.

4 Id., at 17-18.

5 Claimant's Exhibit 2, Medical Records of Dinesh K. Goel, M.D., p.4.

6 Id.

7 At the hearing the claimant testified that she had contacted Winona Manor and Pemberton Manor about a job. Because those statements had not been previously disclosed to the employer/carrier, the Administrative Judge, at the employer/carrier's request, left the record open for thirty days to give the employer/carrier the opportunity to submit additional information concerning that aspect of the claimant's job search. The employer/carrier submitted affidavits from both nursing homes, and the claimant moved to strike both affidavits on the grounds that both were drafted by the employer/carrier and constituted hearsay. The Administrative Judge granted the motion in part by striking all of the affidavits except for the statement in each that there was no application by the claimant on file. The Administrative Judge then admitted the redacted affidavits.