MWCC NO. 99-15323-G-7369
 

PEGGY LYNN GRAY   vs.  CAL-J AND COMPANY   AND  AMERICAN NATIONAL FIRE INSURANCE COMPANY

CLAIMANT     EMPLOYER CARRIER

APPEARING FOR CLAIMANT:
Honorable C. Aden McDaniel, Attorney at Law, Kosciusko, Mississippi

APPEARING FOR DEFENDANTS:
Honorable Joseph W. McDowell, Attorney at Law, Jackson, Mississippi
 

The Commission heard the above styled cause on July 2, 2001 in the offices of the Mississippi Workers' Compensation Commission in Jackson, Mississippi on "Employer/Carrier's Petition for Review".

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 October 4, 2000.

SO ORDERED, this the 3rd day of July, 2001.

MISSISSIPPI WORKERS' COMPENSATION COMMISSION
BY: BARRETT SMITH
BARNEY SCHOBY
COMMISSIONERS

ATTEST:
Jo Ann McDonald, Secretary
___________________________
 

MWCC NO. 99 15323-G-7369
 

PEGGY LYNN GRAY   vs.  CAL-J AND COMPANY   AND  AMERICAN NATIONAL FIRE INS. CO.

CLAIMANT     EMPLOYER CARRIER

 

The above captioned cause came on to be heard on the Claimant's Motion for Temporary Total Disability Benefits and Medical Benefits, filed with the Commission on or about August 31, 2000, and the employer and carrier's response. At the hearing, the parties advised that the claimant's request for medical benefits had been resolved, the course of physical therapy recommended by Dr. Louis Harkey having been approved by the employer and carrier. Thus, the remaining issue for decision is whether the claimant has been entitled to temporary total disability benefits for any period of time after January 31, 2000. The parties stipulated that the testimony of Dr. Harkey, rendered by deposition taken August 24, 2000, would be dispositive of this issue.

After consideration of the respective positions of all parties and the testimony of Dr. Harkey, the undersigned finds as follows:

1 .The testimony of Dr. Harkey by deposition dated August 24, 2000 is not dispositive of whether or not the claimant is temporarily and totally disabled from and after January 31, 2000, but it is dispositive of other issues. The testimony clearly indicates that the claimant has not reached maximum medical improvement¹ It also clearly indicates that the claimant has been and continues to be temporarily and partially disabled from and after January 31, 2000.² Thus, it appears that the claimant is entitled to temporary disability benefits from and after January 31, 2000.

2. The Commission file suggests that the claimant's average weekly wage at the time of injury was $465.75 and that her compensation rate, based on that wage, is $292.86.³

IT IS, THEREFORE, ORDERED that the employer and carrier provide temporary' disability benefits to the claimant as follows:

1. Pay to the claimant temporary disability benefits from and after January 31, 2000 at the rate of $292.86 per week, with credit for sums previously paid and for the weeks in which wages were earned by the claimant during this period;

2. Penalties pursuant to Mississippi Code Annotated, section 71-3-37 (1972).

3. It is noted that the delay in authorization of the physical therapy recommended by Dr. Harkey, a physician from whom the employer and carrier had authorized the claimant to seek, treatment, has contributed to the additional sums of temporary disability benefits being afforded. The employer and carrier are instructed to obtain for the claimant a return appointment with Dr. Harkey after the claimant has completed the physical therapy regimen in order to determine a date of maximum medical improvement. Should subsequent proof in this case bring to the undersigned more clarity on the issue of temporary total versus temporary partial indemnity entitlement, this order may be amended or modified and/or the employer and carrier may receive credit for overpayment of temporary disability benefits toward a permanent disability benefit, if applicable.

SO ORDERED this the 4th day of October, 2000.

LYDIA QUARLES
ADMINISTRATIVE JUDGE

ATTEST:
Jo Ann McDonald, Secretary
___________________________

1. Dr. Harkey testified that the claimant would not reach maximum medical improvement until she had completed the physical therapy protocol which he prescribed.

2. Dr. Harkey testified that the claimant could work within certain restrictions and guidelines, including limited lifting, being able to shift positions frequently, and the like.

3. These figures are derived from the carrier's Notice of First Payment of TTD Benefits filed by the adjuster on November 9, 1999.