02-14599-H-7414. Cook vs. Perry County General Hospital And Nursing Home.

• Case Date: October 04, 2005
• Court: Mississippi

Mississippi Worker Compensation 2005. 02-14599-H-7414. Cook vs. Perry County General Hospital And Nursing Home VERNA BALL COOK CLAIMANT vs. PERRY COUNTY GENERAL HOSPITAL EMPLOYER AND NURSING HOME AND MISSISSIPPI HEALTH CARE ASSN. S. I. POOL MISSISSIPPI WORKERS' COMPENSATION COMMISSION MWCC NO. 02 14599-H-7414Appearing for the claimant: Lawrence J. Hakim, Attorney at Law Batesville, Mississippi Appearing for the employer and self-insured pool: Betty B. Arinder, Attorney at Law Jackson, Mississippi FULL COMMISSION ORDER This matter came on to be heard before the Full Commission on the appeal of the employer of the order wherein the Administrative Judge denied the employer's motion to reconsider the grant of emergency motion. This matter was heard on June 20, the Full Commission, but the record was held open in additional medical evidence could be admitted for consideration. EVIDENTIARY ISSUES After the Full Commission hearing of June 20, all parties requested that additional evidence be introduced prior to the Commission concluding its investigation and issuing an order. Therefore, on July 18, 2005, the Commission admitted into evidence the following: A. Deposition of Dr. Kasser B. Investigative report and surveillance video C. Deposition of Dr. James Williams. These items are admitted into evidence as General Exhibits 1, 2 and 3, respectively. The Commission further notes that Administrative Judge Henry had considered all exhibits attached to the claimant's Emergency Motion filed July 7, 2004 and the employer's Motion for Reconsideration filed October 15, 2004, and so we do now admit each motion, together with attachments, into evidence as General Cumulative Exhibits 4 and 5, respectively. RECAPITULATION A Petition to Controvert was filed by the claimant on July 17, 2003. Thereafter, the employer filed its answer, admitting the occurrence, but denying other material allegations. In the answer, the employer admitted that claimant was temporarily and totally disabled from November 25, 2002 through June 1, 2003 and sustained a 19% impairment to her right upper extremity as a result of the injury which occurred to her on April 5, 2001. The employer advised the Commission that it had paid $316.46 per week through the period of temporary total disability, and had thereafter paid $326.46 beginning June 2, 2003 for a period of 38 weeks, representing 19% to the right upper extremity. Approximately thirteen months after claimant had been issued a rating by her treating physician, the claimant filed an Emergency Motion requesting that the employer provide medical treatment, temporary total disability indemnity payments and reimbursement for monies that the claimant had spent on medication. In support, claimant attached the medical records of Dr. Lawrence L. Line, the medical opinion of Dr. William Geissler, medical notes of Dr. Christine Kasser, and correspondence to Ms. Arinder, counsel for employer, supported by prescription receipts and mileage reports, all of which make up what has heretofore been designated General Cumulative Exhibit 4. After a hearing on the motion, the Administrative Judge granted claimant's request for relief. The employer filed a Motion for Reconsideration, to which was attached the deposition of Dr. Line dated October 5, 2004, and the employer's medical evaluation and addendum thereto from Dr. James Williams. The Administrative Judge denied, the employer's Motion for Reconsideration, and the employer appealed to the Full Commission. While the Full Commission ordinarily does not favor an interlocutory appeal of this nature, we realized, when examining the documents before us, that one of the depositions which was attached had not been fully copied (odd numbered pages were provided; even numbered pages were inadvertently omitted). Thus, we granted this interlocutory appeal to assure that all medical information had been considered, and obtained the original deposition for review. This is said not to call attention to an inadvertent mistake, but to call attention to the fact that interlocutory appeals should be filed infrequently and only on the most compelling facts, and will be granted less frequently by this Commission. FINDING OF FACTS In addition to the pleadings on file in this cause, which the Administrative Judge considered, he also considered what is now denominated as General Cumulative Exhibits 4 and 5. We consider those now, and in addition, we consider General Exhibits 1, 2 and 3. From these exhibits we find the following facts(fn1): Claimant injured her right shoulder. Three right rotator cuff repairs were performed, the first two accomplished by Dr. Line being failures. The first surgery was performed by Dr. Line on May 7, 2002. Dr. Line noted a good repair, but commented on the claimant's substantial osteopenia. The second surgery, compelled by the claimant's continued symptomatology, occurred on September 27, 2001. Dr. Line opined again that he had accomplished a good repair, but due to claimant's osteopenia, he was required to use quite large anchors for the repair. The third surgery was offered to the claimant by Dr.- Line on September 5, 2002 due to her complaints of pain. Dr. Line noted that he could do a partial rotator cuff repair or a CTI hemiarthroplasty of the shoulder. He requested, and received, a second opinion by Dr. William Guissler. On November 21, 2002, Dr. Line performed an open revision rotator cuff repair with augmentation using restore patch graft, arthroscopic extensive debriedement of the right shoulder, open removal of implant right shoulder, and the placement of an indwelling pain catheter. Dr. Line's deposition, taken October 5, 2004, and made a part of General Cumulative Exhibit 5, was provided to the Administrative Judge concomitantly with the employer's Motion for Reconsideration(fn2). In addition to a more thorough analysis of the claimant's poor bone and tendon quality and its contribution to the success of claimant's surgeries, he opined that claimant reached maximum medical improvement occurred on June 2, 2003, and that she has developed a chronic pain syndrome and psychological problems which now are more functionally disabling than her shoulder. He opined that she had a 19% permanent partial impairment to her right upper extremity, exclusively based on range of motion, without consideration of pain. (Interestingly, after this testimony, Dr. Line testified that he assumes pain to be rate-able now under theAMA. Guides to Permanent Impairment, 5th ed.(fn3) However, he testified that he had no "training in impairment ratings" and that Julie Falla, trained in impairment ratings, had performed claimant's first and second impairment ratings.) Dr. Line noted in March of 2004 that the claimant presented with depression and perhaps the commencement of causalgia type symptoms in her right arm and hand, a hypersensitivity of the distal nerves down into the arm and hand and can be a chronic pain cycle problem. Dr. Line further opined that when he noted that she could not return to a job as Marketing Director for the Perry County Hospital, it was due to her mental status more than to her right arm status or pain syndrome. On cross-examination, Dr. Line testified that the claimant was allowed to return to work with restrictions on June 2, 2003 and that on that occasion she did not complain of pain. He further testified that the claimant had not had significant pain complaints from December 2002 to the date of her release. When he released the claimant, he asked her to return to see him if she had further problems. She did not return for nine (9) months, or until March 3, 2004. At the time that the claimant returned, Dr. Line was aware that the employer had offered the claimant a position as Marketing Director with the Perry County Hospital. It was Dr. Line's conclusory testimony that claimant's history was such that she would return whenever she had a complaint. He also testified that since June 2003 she was cleared orthopaedically to return to work. Dr. Line noted that in March 2004 it was the claimant who requested a referral to a pain management physician, Dr. Cicala and then subsequently to Dr. Kasser; he made the referrals at claimant's request. The claimant participated in physical therapy until June 2003. At that point, claimant determined that physical therapy was no longer helping her progress, and she stopped the...