0610710-K-2220. YVONNE BACKLIN CLAIMANT VS MISSISSIPPI PRESS.

• Court: Mississippi

Mississippi Workers Compensation Decisions 2012. 0610710-K-2220. YVONNE BACKLIN CLAIMANT VS MISSISSIPPI PRESS YVONNE BACKLIN CLAIMANT VS MISSISSIPPI PRESS EMPLOYER AND AMERICAN HOME INSURANCE COMPANY CARRIERMISSISSIPPI WORKERS' COMPENSATION COMMISSIONMWCC NO. 0610710-K-2220APPEARING FOR CLAIMANT: Honorable John L. Hunter, Attorney at Law, Pascagoula, MS APPEARING FOR EMPLOYER AND CARRIER: Honorable John S. Gonzalez, Attorney at Law, Gulfport, MS ORDER OF ADMINISTRATIVE JUDGE A hearing was held on November 10,2011 at 11:00 a.m. in the Jackson County Courthouse located in Pascagoula, Mississippi. The record was summarily closed and this Opinion rendered. ISSUE Existence, nature and extent of disability attributable to the admitted injury. STIPULATION The average weekly wage of the claimant on the date of injury was stipulated as $468.00. EVIDENCE Evidence was entered into this cause as follows; General Exhibit 1: Deposition of Dr. John McCloskey; General Exhibit 2: Deposition of Tania Renea Mercer; General Exhibit 3: Deposition of Tina Annette Cherry; General Exhibit 4: Deposition of Lee Fell Stringfellow; General Exhibit 5: Medical Records Affidavit of Dr. Richard Whitlock; General Exhibit 6: Medical Records Affidavit of Dr. John McCloskey; General Exhibit 7: Medical Records Affidavit of Dr. Donnis Harrison; General Exhibit 8: Medical Records Affidavit of PT Solutions; General Exhibit 9: Medical Records Affidavit of Dr. Alexander Blevens; General Exhibit 10; Medical Records Affidavit of Singing River Hospital; General Exhibit 11: Medical Records Affidavit of Dr. Bart Edmiston; General Exhibit 12: FCE 7/17/08; General Exhibit 13: Letter of Termination 12/15/08; General Exhibit 14: Medical Records Affidavit from Physical Therapy Solutions; Claimant's Exhibit 15: Vocational Report - Leon Tingle; General Exhibit 16: Dr. Donnis Harrison Office Note 9/13/07; General Exhibit 17: Dr. Alexander Blevens Office Note 4/23/08; General Exhibit 18: Dr. John McCloskey Office Note 2/11/09; General Exhibit 19: Medical Records Affidavit of Dr. Christopher Karcher; General Exhibit 20: Deposition of Claimant; General Exhibit 21: Deposition of Dr. Eric Amundson; General Exhibit 22: Deposition of Dr. William Archie Crotwell, III; General Exhibit 23: Deposition of Dr. Chris Wiggins; General Exhibit 24: Medical Records Affidavit of Dr. Robert McGirley; General Exhibit 25: Dr. Crotwell Office Note - IME; General Exhibit 26: Medical Records Affidavit from Coastal Rehabilitation; General Exhibit 27: Bienville Orthopedic Nerve Conductions; General Exhibit 28: Medical Records Affidavit of Dr. Chris Wiggins; Employer/Carrier Exhibit 29: Bruce Brawner Reports; Employer/Carrier Exhibit 30: Employment Application; Employer/Carrier Exhibit 31: Bruce Brawner's CV. SUMMARY AND EVALUATION OF RELEVANT EVIDENCE CLAIMANT'S TESTIMONY The claimant, Yvonne Backlin, testified on the occasion of this hearing. She was born on March 2, 1950 and has an 11th grade education. The date of this admitted injury was recorded to be May 22, 2006. Claimant was employed on that date as a district sales manager for the company. Claimant was in the process of taping a route for a new carrier when she was struck by a vehicle driven by Kavin Croy. Her injuries consisted of a rotator cuff tear injury to her shoulder as well as injuries to her neck and left wrist. Due to these injuries, claimant underwent a left arthroscopic rotator repair performed by Dr. Donnis Harrison on January 5, 2007 and a release intersection syndrome of the left wrist performed by Dr. Alexander Blevens on December 6, 2007. The claimant was also treated by Dr. John J. McCloskey for problems with her neck and low back who opined on February 11, 2009 that the claimant had a twenty percent impairment rating (20%) for same to the body as a whole and was permanently limited to some kind of sedentary type work. Other assignments of permanent disability impairment were testified to by the claimant as a twelve percent impairment rating (12%) for the rotator cuff; five percent (5%) for the distal clavicle which translates to an American Medical Association (AMA) combined value of sixteen percent (16%) to the body as a whole and for the left upper extremity combined rating of twenty eight percent (28%). She was informed of these ratings on September 13, 2007 by one of her treating physicians, Dr. Donnis Harrison who also opined that she could return to work with unrestricted activity. Dr. Alexander Blevins, another treating physician, assigned to the claimant a three percent (3%) left upper extremity impairment rating secondary to loss of wrist flexion, a one percent (1%) impairment rating secondary to loss of wrist ulnar deviation for a combined total of four percent (4%) accompanied by a permanent work restriction of no lifting greater than twenty (20) pounds with the left wrist. This was conveyed to the claimant on April 23, 2008, The claimant testified further concerning her aborted return to work on December 11,2008, stating that she could not perform her work duties as assigned and had to leave the employer's premises at 2:30 p.m. on the aforementioned date. Claimant never attempted another return to work there and was later terminated. (See General Exhibit 13 - Letter of Termination dated December 15, 2008.) The claimant testified that she began her job search in earnest in 2009 post termination, citing that she felt she was limited to light and/or sedentary duty. Claimant continued her search efforts through 2010 and 2011 and co-operated with Bruce Brawner, the employer and carrier's vocational expert, having last been given a listing of possible job opportunities on October 31, 2011. She related that many of the jobs referred to were located much further than 30 plus miles from her home. Claimant testified to a current sedentary lifestyle and felt she was very limited on an activity level. Upon cross examination, the claimant testified that aside from the automobile accident of May 22, 2006, which the defense characterized as a "low speed automobile accident," she was involved in motor vehicle accidents in 1993 and 2003. Claimant also testified to a fall in Alabama while on vacation there. Claimant was asked if Dr. McCloskey had prescribed the walker she employed on occasion and she acknowledged that she requested same from him. The claimant was questioned as to what she felt were her restrictions and voiced the concern that perhaps she was placing even greater restrictions upon herself than the various doctors did. Regarding the job offer by the employer as a Customer Representative, she testified that they indeed contacted her as she did not contact them. Claimant related that she had driven herself to the hearing, further testifying that she sought Social Security Disability shortly after she was terminated and was granted SS Disability in January of 2009. LAY TESTIMONY LEE FELL STRINGFELLOW Stringfellow testified as to the job offer made by the employer in this claim. She testified that although the job of Customer Representative could be viewed as transitional, the claimant could be employed in that capacity for as long as she needed to be, taking careful note of any restrictions she had. Stringfellow also testified that with a view to her restrictions she had assigned two other employees to assist the claimant at any time necessary, namely Tania Renea Mercer and Tina Annette Cherry. (See General Exhibit 2 and 3). Stringfellow further testified that the claimant was paid her full and regular salary, never missing any pay. Stringfellow stated that during this time the claimant was also receiving workers' compensation indemnity benefits and although she was asked to pay some of those funds back, to date she has not done so. Stringfellow related as well that the claimant was terminated as "we" did not feel she had put forth a good effort to initiate a return to work. TANIA RENEA MERCER Mercer's testimony was entered into evidence via deposition. Mercer is a twenty (20) plus employee of the Mobile Press Register and currently resides in Satsuma Alabama. Mercer works as the Customer Service Manager for the paper, overseeing around sixteen (16) persons. Mercer was at work in December of 2008 when the claimant came in. Mercer had been informed some time prior by Lee Stringfellow that the claimant would be coming into customer service and working for the customer service department and that there would need to be some accommodations because she had some injuries to her neck. Mercer said she had dealt with such employees before who needed a sedentary to light duty job and would also require accommodation of some sort, in this instance frequent breaks, neck brace consideration with stretching. Mercer instructed her assistant manager Tina Cherry about the situation and told her to assist in any way needed. When the claimant presented at work she was using a walker and had on a neck brace. After introductions. Claimant was told that Cherry would train her for this sedentary position and reassured her about any accommodations she required. Shortly thereafter the claimant began to cry and stated that she was in too much pain to continue, so Cherry said she should go home if she needed to and the claimant left. After leaving on that Thursday, she came back on Friday for further training, staying most of the day. Claimant then called later stating that she would not be able to work the rest of the weekend, i.e. Saturday and Sunday...