SIEMENS ENERGY & AUTOMATION v. Pickens

• Decision Date: 04 May 1999
• Docket Number: No. 98-CC-00470-COA.,98-CC-00470-COA.
• Citation: 732 So.2d 276
• Court: Mississippi Court of Appeals
• Parties: SIEMENS ENERGY & AUTOMATION, INC. and Zurich American Insurance Company Of Illinois, Appellants, v. Robert PICKENS, Appellee.

732 So.2d 276

SIEMENS ENERGY & AUTOMATION, INC. and Zurich American Insurance Company Of Illinois, Appellants, v. Robert PICKENS, Appellee.

No. 98-CC-00470-COA.

Court of Appeals of Mississippi.

May 4, 1999.

Forrest W. Stringfellow, Arthur S. Johnston, III, Jackson, Attorney for Appellants:.

Lance L. Stevens, Jackson, Attorney for Appellee.

BEFORE KING, P.J., BRIDGES, AND LEE, JJ.

LEE, J., for the Court:

¶ 1. On June 10, 1991, Robert Pickens was employed at Siemens Energy & Automation as a crane operator and received a work-related injury to his left leg when a chain holding a two hundred pound metal tank broke and struck the claimant. On October 8, 1993, claimant filed a "Petition To Controvert" with the Mississippi Workers' Compensation Commission against Siemens and Zurich-American Insurance Company of Illinois. On June 24, 1996, a hearing was held before an administrative judge at the Mississippi Worker's Compensation Commission. On September 24, 1996, the administrative judge ordered that the employer and carrier pay compensation benefits to the claimant as follows:

1. Permanent total disability benefits at the rate of $218.26 per week beginning June 10, 1991, and continuing thereafter for 450 weeks, with proper credit for compensation and short term disability benefits paid by defendants during this time; and

2. All medical services and supplies required by the nature of his injury and the process of his recovery as provided in § 71-3-15, excluding medical treatment rendered by Dr. Kendall Blake as a result of claimant's degenerative joint disease.

Siemens admitted the injury was compensable, but disputed the amount of compensability awarded.

¶ 2. On October 9, 1996, Siemens and Zurich-American filed a "Petition For Review" before the Full Commission from the order of the administrative judge. On October 21, 1996, Robert Pickens filed a "Cross-Appeal" before the Commission arguing that the administrative judge erred in finding that the employer/carrier was entitled to any set-off or credit for long-term disability benefits. On March 3, 1997, a hearing was held before the Full Commission, and a "Full Commission Order" was entered which affirmed the "Order of Administrative Judge" dated September 24, 1996. On April 3, 1997, Siemens and Zurich-American filed their "Notice Of Appeal To Circuit Court."

¶ 3. A hearing was held, and on February 17, 1998, a "Final Judgment" was entered. The judgment affirmed the finding of the Mississippi Workers' Compensation Commission. The circuit court held that substantial evidence was presented to support the award with regard to the Pickens's permanent and total disability and further held that the employer/carrier are not entitled to credit for time worked by Pickens after the date of his injury. It is from this decision that Siemens and Zurich-American appeal. Finding the employer/carrier's arguments without merit, we affirm.

FACTS

¶ 4. In 1974, claimant was hired by Siemens Energy and Automation. On June 10, 1991, the date of injury, Pickens was working as an overhead crane operator when a chain holding a two hundred pound metal tank broke. The chain struck his left leg causing a laceration which was two inches deep and five inches long. It was stipulated by the parties that Pickens was earning an average weekly wage of $406.40 at the time of his injury.

¶ 5. At the hearing held before the administrative judge, Pickens testified that as a result of his work-related leg injury he was off work commencing June 1, 1991 through July 30, 1991. On July 30, 1991, he returned to work as a crane operator. Additionally, Pickens testified that his job as a crane operator required him to walk the length of a two-block building, that his work activities caused continued left leg pain and swelling, and that he sought medical treatment for those symptoms. Further, Pickens stated he worked as a crane operator until February 1992, when he was off of work for two or three days because of left knee and leg swelling. Pickens then resumed the duties of his employment as an overhead crane operator and worked until June 1994, when he "could not do the job anymore." Pickens further testified that he had received social security disability benefits since 1995, and that he had not made any efforts to secure other employment since 1995. Additionally, Pickens testified that he received short and longterm disability benefits beginning June 1994, under a plan offered by the employer, and that during his course of employment with Siemens he had paid for or contributed to long-term disability benefits in the amount of approximately $5.00 per pay check, per week.

¶ 6. Rodney Brooks, Siemens's personnel manager since January 1994, testified that when claimant returned to work he had not suffered a loss in wages. Additionally, Brooks testified that when Pickens filed for short-term disability benefits he was unaware that claimant had filed a petition to controvert. Brooks further testified that Pickens received short-term disability benefits for six months after which he received long-term benefits, and that employees made no contribution to the short-term disability plan; however, Pickens did contribute to the long-term disability plan. Brooks testified that employees with workers' compensation injuries were not eligible to receive benefits under the short-term or long-term disability plan, and that although the plan itself did not mention a set-off for workers' compensation benefits, it specifically excluded occupational injury and disease from coverage.

¶ 7. Pickens was treated by several physicians relative to his leg injury. Pickens was treated for the injury by general surgeon, Dr. George Shaak, and later by vascular surgeon, Dr. Seshadri Raju; neurosurgeon, Dr. Hunt Bobo, and orthopedic surgeon, Dr. Kendall Blake.

¶ 8. On June 30, 1991, Pickens was examined by general surgeon, Dr. George Shaak, at Rankin General Hospital for treatment relative to the laceration to his left leg injury. On this date, Pickens complained of left leg pain and swelling and difficulty bearing weight on his left leg attributable to a deep subcutaneous laceration to his leg on June 10, 1991. Dr. Shaak noted claimant had undergone primary closure in layers and that he had later developed a low grade infection. Dr. Shaak also noted claimant had a history of hypertension and of prior surgery to his left knee, but no history of diabetes. Dr. Shaak's impression was that Pickens's wound was slow to heal due to venous hypertension; however, he did not know the cause of the venous hypertension. Dr. Shaak prescribed bed rest with elevation and the application of Bactroban and an ACE bandage to claimant's wound.

¶ 9. The record indicates that on November 25, 1991, Dr. Shaak completed a Form B-27, Final Medical Report, which stated that Pickens had reached maximum medical improvement on July 24, 1991, and that he could return to work with no permanent impairment or permanent work restrictions.

¶ 10. Additionally, the record indicates that on July 15, 1993, Dr. Shaak filed a supplemental final medical report indicating Pickens was discharged on July 12, 1993, to neurosurgeon Dr. Hunt Bobo's care. Dr. Shaak also stated Pickens had a permanent impairment which he identified as left posterior distal tibial nerve damage. Dr. Shaak also stated Pickens was capable of performing similar employment with no physical restrictions.

¶ 11. Dr. Shaak's clinic notes, dated July 12, 1993 stated that Pickens was referred to Dr. Bobo for a left distal posterior tibial nerve lesion secondary to the laceration, that claimant was still complaining of pain in his incision, and that his pain was probably related to the tibial nerve lesion. Dr. Shaak concluded claimant had reached maximum medical improvement from the skin lesion with no permanent impairment "from the physical aspects of the wound itself ... however, I cannot make any comment on the neurological portion of the wound."

¶ 12. Dr. R. Hunt Bobo, a neurosurgeon, stated in his deposition that his medical records reflected that he first treated Pickens on March 16, 1992. Dr. Bobo evaluated Pickens relative to his left leg pain and numbness which was attributed to Pickens's work-related injury on June 10, 1991. The symptoms were swelling, left worse than right but in both legs, and a dull ache in the left leg which was worse after a long day's work, and some decrease in sensation in the left shin.

¶ 13. On July 23, 1992, Dr. Bobo examined Pickens. Pickens still complained of persistent left leg pain. Additionally, Dr. Bobo noted that Pickens had significant varicose veins in both legs and edema in his shins. Dr. Bobo diagnosed Pickens's loss of sensation as peripheral neuropathy, and also attributed his venous stasis, varicose veins, as a source of his leg pain.

¶ 14. On August 24, 1992, Dr. Bobo examined Pickens. Pickens had been taking Elavil as prescribed by Dr. Bobo and his condition seemed to have improved; however, Pickens still complained that his left leg was stiff and painful. The EMG showed denervation of the left lateral gastrocnemius and flexor digitorum longus of the left leg consistent with a posterior tibial nerve lesion. At that point, Dr. Bobo felt Pickens probably did have a posterior tibial nerve lesion.

¶ 15. On February 25, 1993, Dr. Bobo stated Pickens reported increasing weakness in Pickens's left leg, and Pickens reported numbness in the left lateral foot still present with static, as well as a mild neuropathy; however, Pickens still continued to work as a crane operator at Siemens. At this visit the left knee was swollen, but no calf atrophy. Dr. Bobo's impression was that sensation was decreased in the left lateral foot, normal in the medial foot, and that these conditions would be consistent with a posterior tibial nerve lesion. On this date, Dr. Bobo opined that the tibial nerve lesion was not getting any worse and would not benefit from...