Beverly Healthcare v. Hare

• Decision Date: 13 January 2011
• Docket Number: No. 2009-WC-00344-COA.,2009-WC-00344-COA.
• Citation: 51 So.3d 223
• Parties: BEVERLY HEALTHCARE and American Home Assurance Company, Appellants v. Irene HARE, Appellee.
• Court: Mississippi Court of Appeals

51 So.3d 223

BEVERLY HEALTHCARE and American Home Assurance Company, Appellants

v.Irene HARE, Appellee.

No. 2009-WC-00344-COA.

Court of Appeals of Mississippi.

June 29, 2010.

Rehearing Denied Oct. 12, 2010.

Certiorari Denied Jan. 13, 2011.

George E. Read, Oxford, attorney for appellant.

Greg E. Beard, attorney for appellee.

EN BANC.

KING, C.J., for the Court:

¶ 1. A long-time employee who was injured at her place of employment as a nurse at a nursing home in Ripley, Mississippi, was denied workers' compensation benefits by the Mississippi Workers' Compensation Commission in a split decision. However on appeal, the circuit court reversed the Commission's decision and reinstated the decision of the administrative judge (AJ) awarding Irene Hare temporary total benefits until she reaches maximum medical improvement. The employer and carrier appeal raising two issues, which we combine as one: whether the circuit court erred by re-weighing the evidence and substituting its own findings of fact for those of the Commission by finding that the employee sustained a compensable work injury. We find that the circuit court was correct in reversing the decision of the Commission. Accordingly, we affirm the judgment of the circuit court to reverse the Commission's decision as unsupported by substantial evidence. We remand this case to the Commission to determine Hare's benefits.

FACTS

¶ 2. Hare, who was seventy-four years old, had suffered several accidental injuries to her left leg.

1. Work History

¶ 3. After being widowed, Hare went back to school at age forty-eight to become a licensed practical nurse. Prior to her nursing career, Hare had worked as a truck driver, a painter, a shoe packer at Brown Shoes, and a beautician. After becoming an LPN, she worked for Timber Hills Nursing Home and also part time on weekends at Whitfield Nursing Home in Carthage, Mississippi, some 160 miles from her home in Booneville, Mississippi. She began working for Beverly Enterprises in Iuka, Mississippi, in 1985 and later transferred to a Beverly owned nursing home in Ripley where she has worked since. She was off from work 1988-1991, recovering from a broken left leg she received as the result of slipping on ice. Her average weekly wage at the time of her injury was $710.40.

¶ 4. At Beverly Healthcare, Hare always worked the second shift from 2:45 p.m. until 11:15 p.m. with a thirty-minute lunch break. The facility had two wings, A and B, with a nurses' station in the middle. Hare was responsible for Wing B, which had sixteen rooms and twenty-eight patients. Her duties included passing out medications twice during her shift, charting information, refilling ice and water containers in patient rooms, and helping the certified nursing aides when needed. Hare testified that she willingly worked extra hours when other workers were out. She testified that she was supposed to work four days a week, but if anyone was out, she would come in and work. On April 25, 2005, the day of the accident, which is at the heart of her workers' compensation claim, Hare was working her sixth consecutive day.

2. Left-Leg Injuries

¶ 5. Hare's trouble with her left leg began in 1964 when she and her mother were involved in an automobile collision in which their vehicle was hit head on by a drunk driver. Her mother perished in the accident, and Hare's left ankle and knee were crushed along with other serious injuries. Hare testified that after the accident, she consistently walked with a limp.

¶ 6. In 1987, Hare was involved in another serious automobile accident in whichher left knee and ankle sustained crush injuries. At some point her leg injuries required that a super condylar screw and side plate be implanted into her left femur. This was done at a hospital in Tupelo, Mississippi. Still having severe pain, Hare went to an orthopedic surgeon in Memphis, Tennessee, who removed her kneecap. It was at this time that she began being seen by Dr. Charles Taylor, an orthopedic surgeon, in Memphis.

¶ 7. According to Hare, at some point prior to 1987, she had suffered a stress fracture of her foot while walking down the hall at the nursing home. She said Dr. Taylor placed her leg in a cast, which she wore for six weeks at work. While this injury occurred on the job, Hare never filed a claim for workers' compensation benefits. In 1993, Dr. Taylor surgically removed the implanted devise in Hare's leg, which had failed. After removing the device, Dr. Taylor inserted a locked nail in her left femur and grafted bone in the area. Dr. Taylor testified that she made a full recovery from this surgery. The next year, Hare slipped on some ice and broke her femur above the knee. In 2000, she stepped awkwardly off a curb and fell breaking her pelvis. Despite these previous injuries, the testimony is uncontradicted that Hare had passed Beverly's physical examination every year. It is uncontradicted that on the date of the injury Hare had been cleared by her doctors to return to work.

3. The April 25, 2005, Injury to the Left-Leg

¶ 8. According to Hare, on April 25, 2005, her knee was hurting more than usual, and she told her fellow employees that she planned to go to the emergency room after her shift had ended and get a shot for the arthritis pain in her left leg.

¶ 9. After clocking in, Hare sorted the medications for the patients on her wing and got ice and water for them to take with their medications. Hare gave medications twice, first at the beginning of her shift and again at 8:00 p.m. After assembling the medications, Hare who had been a smoker since age fourteen took a smoke break. According to Hare, Dr. Taylor had warned her that one of the hazards of smoking is that it impedes the healing of fractures. After her smoke break, Hare gave the medications to the patients; this took approximately two and a half hours. She then went back up to the nurse's station and did her charting and weekly summaries. She said she also performed a treatment or two on patients, by which she meant dressing a small cut or re-bandaging a cut. Hare took her lunch break at approximately 5:00 p.m., and when she returned, she went to the computer to do charting. After that she began giving the second round of medications. The giving of the medications involved taking the medication from a cart and giving it to the patient along with a glass of water. Starting at the end away from the nurse's station, she rotated from side to side giving the medications. Hare had worked her way up to room number nine. She said she retrieved the medication for the patient and poured out a glass of water and headed into the room. When she reached the end of the cart she remembered that she had forgotten to get the glass of water off the cart, so she "pivoted around" on her left leg to pick up the glass. She said that as she pivoted, her leg just "popped just like a shotgun," and immediately, she was in terrific pain. She realized that her leg was broken and called for the aide to go get the LPN in Wing A. Unable to walk, she held herself up on the medicine cart until one of the aides put a chair underneath her and the other LPN called for an ambulance.

¶ 10. The aide, Neda Kirk, who had worked with Hare for more than fifteen years, said that she was in a patient's room when she heard Hare screaming in pain. Hare instructed her to go get the LPN on Wing A, Megan Pannell, which she did. Kirk testified that Hare was "pretty much screaming" most of the time from the time of the injury to the time the ambulance came. Pannell was called by the employer and carrier to testify. She remembered that Hare was walking with a more pronounced limp on the day of the injury. She testified that on that day she rewrapped Hare's Ace bandage but that it was located on her left thigh and not her left knee, and there was nothing wrong with the leg. Hare said that she did not recall anyone adjusting her bandage. Pannell said that she observed Hare using a walker to go outside for her smoke break; a fact that Hare also denied. Pannell was also taking a smoke break, and she said she asked Hare if she was going to be able to make it through her shift; Hare replied that she was fine. Pannell said she had never seen Hare using a walker before. Pannell said after being summoned to help Hare, she found her in the hallway in a chair with her leg extended, and she could see a bulge in Hare's left thigh area that she thought was a fracture.

¶ 11. Hare was taken by ambulance to the emergency room at Tippah County Hospital, but she was then transferred to St. Francis Hospital in Memphis. An x-ray showed that she suffered a transverse fracture to her left femur. Hare underwent an open reduction and internal fixation of the fracture on April 25, 2005. In January 2006, Dr. Taylor removed the screws from the left leg with revision and bone grafting and removed a screw on March 28, 2006. Hare has continued seeing Dr. Taylor for followup care.

4. Testimony of Dr. Charles Taylor, the Treating Physician

¶ 12. Dr. Taylor, an orthopedic surgeon, had been seeing Hare since 1993. Dr. Taylor testified that Hare had completely healed from a past patellar fracture and distal fracture in her left femur by the time of the April 25 event. Additionally, Dr. Taylor testified that the April 25, 2005, injury was to a different level of her thigh than her original fracture level, approximately two inches away from the previous injury, and it occurred in a screw hole that was used on a plate applied in Tupelo during a previous surgery. He testified that her 2005 fracture "was at a level further up the shaft ... well away from her original fracture." Dr. Taylor was asked if the earlier injuries had anything to do with or in any way contributed to the April 25, 2005, injury; and he responded that it did not. Dr. Taylor testified that the fracture was the result of a twisting injury.

5. Testimony of Expert Witness for Employer and Carrier, Dr. Guy T. Vise Jr.

¶ 13. The employer and...