MWCC NO. 98-05678-G-5077
ELOUTS G. GHOLAR CLAIMANT
VS.
KLH INDUSTRIES, INC.
EMPLOYER
AND
MISSISSIPPI MANUFACTURERS ASSOCIATION
CARRIER
WORKERS' COMPENSATION GROUP
APPEARING FOR CLAIMANT:
Honorable J. David Garner, Attorney at Law, Jackson, Mississippi
APPEARING FOR DEFENDANTS:
Honorable Roger C. Riddick, Attorney at Law, Jackson, Mississippi
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 the Administrative Judge" dated February 20, 2001.
SO ORDERED, this the 29th day of August, 2001.
MISSISSIPPI WORKERS' CIMPENSATION COMMISSION
BY: BARRETT SMITH
BARNEY SCHOBY
LYDIA QUARLES
ATTEST:
Jo Ann McDonald, Secretary
MWCC NO. 98-05678-5077-C
ELOUIS G. GHOLAR CLAIMANT
VS
KLH INDUSTRIES, INC.
EMPLOYER
AND
MISS. MANUFACTURERS ASSOC.
CARRIER
WORKERS'COMPENSATION GROUP
REPRESENTING THE CLAIMANT:
J. David Garner, Esq., Jackson, Mississippi
REPRESENTING THE DEFENDANTS:
Roger C. Riddick, Esq., Jackson, Mississippi
The claimant filed her petition on March 11, 1999 alleging disability from bilateral carpal tunnel syndrome arising on December 1, 1997 out of her work on an assembly line at KLH. The employer and carrier duly answered denying the claim and raising the affirmative defense that the claim was barred by the two-year statue of limitations at Section 71-3-35, Mississippi Code Annotated (1972). In an order dated November 24, 1999, Administrative Judge Denise Lott ruled that the claim was not barred by the pleaded limitation, thereby foreclosing that issue, and a hearing of the matter on the merits was held in Prentiss by the undersigned on October 23, 2000.
Prior to taking evidence on the merits, the undersigned addressed pending motions by each party. The claimant filed a motion on October 25, 2000 seeking a continuance of the hearing so that she might undergo a functional capacity evaluation, at her own expense, presumably to strengthen her case for an award of permanent disability benefits. This motion was denied because the claimant had never considered a functional capacity evaluation until the lack of same was mentioned by the undersigned in a settlement conference with counsel for the parties on October 23, 2000. The defense presented a written motion in limine at the time of the hearing which sought to prohibit any testimony or other evidence from the claimant regarding her post-injury efforts to find and maintain gainful employment, based on the fact that the claimant had admittedly failed to timely supplement her discovery answers to provide such information to the defense. This motion was also denied, but on the condition that the defense would be allowed 60 days after the hearing to investigate the claimant's post-injury employment activities and submit any pertinent documents for admission.
Prior to the hearing, the parties were able to stipulate the following:
1. The claimant's average weekly wage at the time of the subject injury was $230.06;
2. The claimant reached maximum medical improvement from the subject injury on November 8, 1999, per Dr. Jeffrey Summers;
3. All medical costs associated with the subject injury had been paid to date;
4. The claimant had been paid all due temporary total disability benefits from December 29, 1 997 through November 8, 1999; and,
5. General Exhibits 1-6, is set out in the Exhibit Inventory herein, were admissible in evidence.
On December 20, 2000 the defendants submitted for admission certain documents obtained from the Southern Mississippi Planning and Development District pertaining to payments made by that agency to the claimant during October of 1 999 through October of 2000. The claimant did not object to the admission of these documents, so they were duly marked and admitted as Employer/Carrier Exhibit 7 by the undersigned on January 4, 2001, whereupon the record was closed.
The claimant is a 40 year old resident of New Hebron who graduated high school there and has since then worked almost exclusively on factory assembly lines. She is right handed and had been working at KLH in Prentiss for 17 years at the time she left their employment. She had been assembling wiring harnesses on the line there since 1993. There is no question that this work involved the repetitive motion of both hands throughout the workday. Ms. Gholar testified that her hands started bothering her "a long time ago" and she went to see Dr. Goel, who diagnosed carpal tunnel syndrome. She said that Dr. Goel did not take her off work at the time, but gave her wrist pads; that her hands continued to cause her problems, so she went to see Dr. Meadows in Mendenhall in November of 1997; that Dr. Meadows took her off work at that time and sent her to see Dr. Lucas in Jackson; that Dr. Lucas said she had carpal tunnel syndrome and recommended either injections or surgery on both hands; and that she declined to have the injections and told Dr. Lucas she would think about the surgery. She tes:ified that the employer then sent her to see Dr. Geissler, who recommended surgery on both hands, so she had surgery on the right first, and then on the left. She said that both hands continued to hurt after her surgeries, that she never attempted to return to KLH, that Dr. Geisler sent her to Dr. Summers for pain treatment, and that by the time Dr. Summers released her the KLH plant had been closed.
Records from Dr. Dinesh Goel are in evidence as Exhibit 1, and they indicate he began treating the claimant for pain and numbness in both hands in May of 1993. Based on the claimant's work history and on nerve conduction studies performed at that time, Dr. Goel diagnosed carpal tunnel syndrome and recommended bilateral releases, but there is no indication he ever took the claimant off work or that she ceased working while under his care.
Although the claimant testified that she saw Dr. Meadows for her hand complaints in November of 1997, and that Dr. Meadows referred her to Dr. Lucas, neither party saw fit to obtain and submit any separate records from either of those physicians.
A single report presumably dictated by Dr. Aubrey Lucas on December 29, 1997 is included among the records of Dr. William Geissler which are attached to Dr. Geissler's deposition (Ex. 3), and these attached records also include a report purportedly from Dr. Wallace Weatherby under date of January 22, 1998.
Dr. Geissler's testimony and records confirm that he first saw the claimant on June 11, 1998 on the second opinion request of the employer; that he diagnosed mild bilateral carpal tunnel syndrome, greater on the right, based on EMG nerve conduction studies previously performed at the request of Dr. Lucas; that he recommended surgical intervention at that time because conservative measures under Dr. Lucas had not relieved the symptoms; and that the claimant agreed on July 6, 1 998 to undergo the recommended surgeries. When asked by the claimant's attorney if he believed that the claimant's work at KLH caused or contributed to her bilateral carpal tunnel syndrome, Dr. Geissler answered,
Dr. Geissler testified that he performed a left carpal tunnel release in Octoberof 1998. that he saw the claimant postoperatively several times, that he prescribed physical therapy for weakness in her left hand on January 6, 1999, and that he referred the claimant to Dr. Jeff Summers on March 17, 1 999 when he became concerned she was developing reflex sympathetic dystrophy (RSD) in the left hand. He said the claimant responded well to treatment provided by Dr. Summers (record attached to Ex. 3) and returned to him ready for surgery on her right hand on June 23, 1999, which carpal tunnel release was performed on September 7, 1999. According to Dr. Geissler, he last saw Ms. Gholar on October 1 8, 1999, at which time "she was pleased with both hands and was discharged," and he assigned her a five percent permanent partial impairment to each upperextremity (Ex. 3, ppl 0-11). Dr. Geissler refused to assign the claimant any permanent occupational restrictions, although he stated that carpal tunnel patients often have hand weakness for about six months after surgery, sometimes for as long as a year (Ex. 3, pp. 13-14). A letter from Dr. Summers to the carrier's adjuster, dated June 13, 2000, is separately in evidence as Exhibit 4, and it indicates that Summers released the claimant as having reached maximum medical improvement on November 8, 1999, without impairment or occupational restrictions.
Ms. Gholar testified she saw Dr. Vohra after being released by Dr. Summers, and that he said she still had bilateral carpal tunnel syndrome, so she did not try to find a job until after her treatment by Vohra, although she was doing some babysitting for her daughter and her niece, beginning in September of 1999.
Records under affidavit from Dr. Vohra are in evidence as Exhibit 5, and a letter from Dr. Vohra to the carrier's adjuster, dated September 27, 2000, is in evidence as Exhibit 6. In the referenced letter, Dr. Vohra states that he had no issue with the fact that Drs. Geissler and Summers had released the claimant to work prior to his first examination of her on March 29, 2000, and that "Ms. Gholar had no acute problems at the time I initially saw her which would have changed her work status."
The claimant testified that after she had begun babysitting for her daughter and niece, her daughter told her about a "planning district" which would pay her to keep children, so she applied for this program and began getting paid about $494.00 per month to keep three of her grandchildren while her daughter was off welfare and working. She said her daughter kept a work calendar for her and sent it in to the agency in Hattiesburg, which then sent her a check. Ms. Gholar was apparently still performing this child care work at the time of the hearing. The previously mentioned documents from Southern Mississippi Planning and Development District ("the District"), obtained by the defense and admitted as Exhibit 7 after the hearing, indicate that Ms. Gholar was paid $3391.20 from October of 1999 through October of 2000 for child care services involving two children of her daughter Areometha Gardner and one child of her daughter Airisica Gardner.
Ms. Gholar testified that after she last saw Dr. Vohra she applied for a cook's position in the cafeteria at Prentiss High School, although she could not recall when she submitted the application. She said she called the school prior to the fall 2000 term, but when she went in to fill out the application, the job had been filled. She said she had also applied to be a waitress at Lane Hamburger House in New Hebron, but had not been called back since submitting the application in September of 2000, and that she had made an inquiry at Prentiss Regional Hospital about a job in the laundry the week before the hearing. The claimant testified that she was still taking pain medication prescribed by Dr. Summers, that she is able to do some work around the house such as sweeping and washing dishes, that after her surgery she stopped cooking at home when she dropped some boiling water because she lost her grip, that her left hand was now stronger than her right hand, and that it hurt to do most things with her right hand. She said she did not know the physical requirements of the jobs she had applied for, but would be willing to try them if they called her. She conceded she had not looked for work outside the Prentiss-New Hebron area, but said that was because she did not have an automobile.
The claimant's daughter, Areometha Gardner, testified in support of her claim, and Ms. Gardner's testimony was essentially cumulative of her mother's in regard to Ms. Gholar's domestic activities and capabilities. The claimant's former supervisor at KLH, Nellie Newsome, also testified in support of her claim, and Ms. Newsome's testimony was essentially cumulative in regard to the claimant's post-surgery condition.
After consideration of the record evidence and the applicable law, the Administrative Judge finds and concludes as follows:
1. The claimant's bilateral carpal tunnel syndrome is compensable, based on the expert testimony of Dr. Geissler.
2. The claimant' average weekly wage for these purposes was $230.06, as stipulated by the parties.
3. The claimant was temporarily totally disabled as a result of her compensable injury from December 29, 1997, the date she was diagnosed by Dr. Lucas, until November 8, 1 999, the date stipulated by the parties and supported by the weight of the evidence as the date of her maximum medical improvement.
4. The claimant suffered a five percent permanent functional impairment to each upper extremity as the direct result of her carpal tunnel syndrome, based on the expert testimony of Dr. Geissler.
5. The five percent permanent functional impairment to the claimant's right (dominant) upper extremity reasonably translates into a 25% permanent occupational impairment of that extremity, and the five percent permanent functional impairment to the claimant's left upper extremity reasonably translates into a 15% permanent occupational impairment to that extremity, based on the medical evidence, on the claimant's age, education and experience, and on the claimant's testimony as to her current condition.
6. The claimant has failed to prove by a preponderance of the credible evidence that she is permanently and totally disabled as a result of her bilateral carpal tunnel syndrome.
7. The medical services provided and prescribed by Drs. Lucas, Geissler, Summers and Vohra were reasonable and necessary to the treatment of the claimant's compensable injury and her recovery therefrom.
IT IS, THEREFORE, ORDERED AND ADJUDGED, that the employer and carrier shall pay and provide workers' compensation benefits to the claimant as follows:
1. Temporary total disability benefits at the rate of $153.45 per week for the period beginning December 29, 1 997 and ending November 8, 1 999, with proper credit allowed for all such benefits previously paid.
2. Permanent partial disability benefits at the rate of $153.45 per week for a period of 80 weeks beginning November 9, 1999, with proper credit allowed for all such benefits previously paid. To each such installment not timely paid there is added the statutory 10% penalty, along with interest at the legal rate.
3. Such medical services and supplies as may reasonably be necessary to the treatment of the claimant's compensable injury and her recovery therefrom, but consistent with the foregoing decision and in accordance with the statute and the Commission's rules and fee schedule.
SO ORDERED this the 20th day of February, 2001.
JAMES HOMER BEST
ADMINISTRATIVE JUDGE
ATTEST:
Jo Ann McDonald, Secretary