Ameristar Casino-Vicksburg v. Rawls

• Decision Date: 12 August 2008
• Docket Number: No. 2007-WC-01434-COA.
• Citation: 2 So.3d 675
• Parties: AMERISTAR CASINO-VICKSBURG and Legion Insurance Company, Employer and Carrier, Appellants v. James RAWLS, Appellee.
• Court: Mississippi Court of Appeals

2 So.3d 675

AMERISTAR CASINO-VICKSBURG and Legion Insurance Company, Employer and Carrier, Appellants v.James RAWLS, Appellee.

No. 2007-WC-01434-COA.

Court of Appeals of Mississippi.

August 12, 2008.

Rehearing Denied November 18, 2008.

Certiorari Denied February 19, 2009.

F. Hall Bailey, Kathryn H. Hester, Jackson, attorneys for appellants.

David M. Sessums, Vicksburg, attorney for appellee.

Before MYERS, P.J., IRVING, ROBERTS and CARLTON, JJ.

ROBERTS, J., for the Court.

¶ 1.The employer, Ameristar Casino-Vicksburg, and the carrier, Legion Insurance Company, appeal an award by the Mississippi Workers' Compensation Commission of permanent total disability to the claimant, James Rawls.The circuit court upheld the Commission's decision.Finding no error, we affirm the Commission's decision.

FACTS AND PROCEDURAL HISTORY

¶ 2.On July 31, 2000, Rawls was injured while he was working for Ameristar Casino in Vicksburg as a slot technician, a position he had held since 1994.Rawls was fifty-eight years of age at the time of his injury and sixty years of age at the time of the workers' compensation hearing.He dropped out of school in the tenth grade and attended an auto mechanics course at a vocational school.Later in life he earned a GED in order to obtain the position at the casino.His work history, which began at the age of sixteen, consisted of only manual labor positions.Rawls lived in Winnsboro, Louisiana and commuted about an hour each way to work.He made $756 per week as a senior slot technician.In 2000, the year that he was hurt, Rawls was recognized by Ameristar as a star employee, a company designation given to employees who do not miss any work, who do not make any mistakes, and whose work performance is good.In 1996, Rawls was the Ameristar employee of the year.

¶ 3.His job involved lifting and repairing slot machines and moving them.Rawls testified that the machines, which weigh between 150 and 300 pounds each, are bolted to stands on the floor.It takes two men to unbolt and lift the machine to move it.On the day of his injury, Rawls was beginning the process, working on his knees in front of a slot machine.He testified that before the machine could be moved, the hopper, which holds the coins and weighs between eight and ten pounds, had to be removed.He said he was bending forward to get the hopper to place it behind him when his back "popped," extreme pain radiated up his back, and he fell over with the hopper.A co-worker had to help him to his feet because of the pain.Rawls then went to his supervisor and reported the accident.The supervisor never completed an accident report, but Ameristar became aware of the injury; two days later company personnel took him to a local hospital where he was treated and released.Rawls was given three days off work.The day after the accident, he was in pain and visited his local doctor who detected a disc protrusion and referred him to Dr. Brian Bulloch, an orthopedic surgeon, in Monroe, Louisiana.An MRI showed that Rawls had a large herniated disc at L4-5 and a disc protrusion/herniation at L5-S1 that was causing nerve compression.

¶ 4.On September 20, 2000, Dr. Bulloch performed surgery on Rawls.A fragment was removed at L4-5; parts of the disc and nerves were removed at L5-S1, and some bone and soft tissue were removed from the neural foramen to allow the nerve roots more room.During follow-up visits with Dr. Bulloch, Rawls continued to complain of pain in his back and down his right leg.The doctor gave him steroids and pain medication and recommended physical therapy after which a functional capacity evaluation (FCE) would be performed.After undergoing follow-up care and physical therapy, the FCE was done, and Dr. Bulloch gave Rawls a twenty-three percent permanent impairment rating of the spine as to his body as a whole.The FCE showed that Rawls was limited to sedentary to light duty work restrictions.The doctor said sedentary meant lifting no more than ten pounds and light duty meant lifting no more than twenty pounds and other restrictions.Dr. Bulloch testified that Rawls could not stay in one position for any amount of time because he was in a "significant amount of pain on a routine basis."The doctor said that it would be hard for Rawls to make the commute every day with his restrictions.Rawls was prescribed Darvocet, which he was to take every four to six hours for pain.He testified, however, that he was only able to take one Darvocet at bedtime because taking the medication made him "not think straight."Rawls testified that he could not work and take the pain medication.

¶ 5.The risk manager for Ameristar, Leesha Heard, testified that the casino offered Rawls a job after he was released by Dr. Bulloch.The job offer was for a position of transportation dispatcher.Heard described the duties of the job as talking on a radio to dispatch shuttles to pick up guests and take them from the casino to the hotel or some other location.Heard said Rawls would have made the same pay and that the duties of the job would allow him to sit and stand as needed and involved no heavy lifting.All the employee would have to do, according to Heard, was to push a button and talk into microphone or use a telephone.Rawls testified that he made no effort to accept the transportation dispatcher job because he realized that with the restrictions on his health he would be unable to perform the duties.Rawls testified that when he drove to Vicksburg from his home in Winnsboro he had to pull over, stop, and get out of his car twice to move around in order to continue the trip.He said when he reached Vicksburg he could not get out of his truck, but after twisting his legs for a time, he was later able to get out.Rawls said he realized from that trip that "this is not going to work," meaning he was not going to be able to drive to work from his hometown in Louisiana and then be able to perform any job.He said, instead of checking on the dispatcher job, he went to see about his 401(k) account.He testified that he knew there was "no use" to check on the dispatcher job because "he wouldn't be able to do anything" after the drive from his home and because there was no physical position he could be in that was comfortable enough so that he could work.

¶ 6.Dr. Bulloch testified that during follow-up visits, Rawls continued to complain of pain in his back and right leg; Dr. Bullock suggested a pain management consultation because Rawls was not a candidate for further surgery.The doctor was asked if he thought that Rawls was a candidate for employment, and he replied, "I think that positions would be few and far between.He was not employable in most situations."The doctor explained that because Rawls was limited in his ability to sit or stand in any position for a significant length of time, probably about fifteen to twenty minutes, and because he was in extreme pain most of the time and taking medication, there were "very few positions that are available for employment for someone in that situation."

¶ 7.When the case arrived at the Commission for a decision, the parties had stipulated that Rawls suffered a compensable injury on July 31, 2000; that Rawls's average weekly wage at the time of the accident was $756; that the employer, Ameristar, and the carrier, Legion Insurance, paid Rawls temporary total disability benefits in the amount of $10,573.92 from August 16, 2000, through April 11, 2001, at the rate of $303.35 per week; and that all temporary total disability benefits had been paid by the employer and carrier.

¶ 8.The only issue before the Administrative Law Judge (ALJ) was the existence/extent of permanent disability and/or loss of wage-earning capacity, if any of Rawls.

¶ 9.At a March 23, 2003, hearing the ALJ received testimony from Rawls and his wife; Ameristar only offered the testimony of Heard, a corporate risk manager for Ameristar.Already in the record were the deposition of Dr. Bulloch, Rawls's primary treating physician, and supporting medical documentation.Also placed in the record by Ameristar was a March 6, 2002, deposition of Rawls.

¶ 10.The ALJ issued an opinion on August 22, 2003, setting out the testimony of lay and medical witnesses.Also, the ALJ noted that shortly before the hearing, Dr. Bulloch referred Rawls to a pain management clinic in Louisiana for lumbar transforaminal steroid injections on the right L5-S1 level.The ALJ found the treatment reasonable and necessary and ordered Ameristar to pay for this treatment.

¶ 11.Further, the ALJ ordered that Rawls be referred to Dr. Rahul Vohra for an independent medical examination.The ALJ said she was doing this "out of an abundance of caution to protect the rights of the claimant."

¶ 12.Dr. Vohra, a Jackson physiatrist or physician who specializes in physical medicine and rehabilitation, ran a series of tests on Rawls including EMG/nerve conduction studies, lumbar myelogram, post myelogram CT, lumbar spine flexion, and extension and hip x-rays.After those tests were completed, a functional capacity evaluation (FCE) was done.Dr. Vohra determined that Rawls would not benefit from further surgery.Dr. Vohra testified that the FCE placed Rawls at a light duty level of work with occasional light lifting, carrying fifteen pounds, pushing forty pounds, and pulling ten pounds occasionally.Dr. Vohra testified that Rawls could stand for an hour at a time, change positions, sit for at least five or ten minutes, maybe up to an hour, and could squat, bend or stoop occasionally up to a third of the day.Dr. Vohra said that Rawls could climb stairs occasionally.Dr. Vohra was of the opinion that continued management of Rawls's pain with narcotic pain medications was reasonable.Dr. Vohra assessed a permanent disability rating of ten percent to the whole body.

¶ 13.Ameristar presented evidence that it had offered Rawls the transportation dispatcher job...