Bowen v. CITY OF HOLLY SPRINGS, 97-CC-01347-COA.

• Decision Date: 04 May 1999
• Docket Number: No. 97-CC-01347-COA.,97-CC-01347-COA.
• Citation: 755 So.2d 1103
• Parties: Roger BOWEN, Appellant, v. CITY OF HOLLY SPRINGS, Mississippi and Mississippi Municipal Workers' Compensation Commission, Appellees.
• Court: Mississippi Court of Appeals

755 So.2d 1103

Roger BOWEN, Appellant, v.CITY OF HOLLY SPRINGS, Mississippi and Mississippi Municipal Workers' Compensation Commission, Appellees.

No. 97-CC-01347-COA.

Court of Appeals of Mississippi.

May 4, 1999.

Rehearing Denied August 17, 1999.

Certiorari Denied October 28, 1999.

B. Sean Akins, Ripley, Attorney for Appellant.

Robert M. Carpenter, Jackson, Roxanne Penton Case, Madison, Attorneys for Appellees.

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

KING, P.J., for the Court:

¶ 1.On March 23, 1995, Roger Bowen suffered an injury to his left arm, hand, fingers, wrist, elbow and shoulder while in the course and scope of his employment with the Holly Springs Police Department.On September 22, 1995, Mr. Bowen filed a petition to controvert with the Workers' Compensation Commission alleging a permanent partial disability.The City of Holly Springs admitted compensability of the injury for the period March 24, 1995 through December 25, 1995, and paid temporary total disability benefits for that period.

¶ 2.On December 19, 1996, a hearing was held before an administrative law judge.The administrative law judge determined that (1) Mr. Bowen's period of temporary total disability extended from March 23, 1995 through November 3, 1995, (2) Mr. Bowen had not suffered a compensable neck injury, and (3) the employer and carrier were not liable for payment of the medical services of Dr. Kenneth Gaines who had examined Mr. Bowen for neck problems.

¶ 3.Mr. Bowen appealed the determination of the administrative law judge to the Workers' Compensation Full Commission and the Marshall County Circuit Court.Both tribunals affirmed.Mr. Bowen has now appealed to this Court and assigned two points of error:

I.WHETHER THE CIRCUIT COURT COMMITTED MANIFEST ERROR IN AFFIRMING THE DETERMINATION OF THE ADMINISTRATIVE JUDGE AND THE FULL COMMISSION THATROGER BOWEN SUFFERED NO OCCUPATIONAL DISABILITY AS A RESULT OF HIS WORK RELATED INJURY SUFFERED WHILE IN THE COURSE AND SCOPE OF HIS EMPLOYMENT WITH THE CITY OF HOLLY SPRINGS, BASED SIMPLY ON THE DETERMINATION THAT HE WAS RELEASED TO RETURN TO WORK WITH NO PHYSICAL RESTRICTIONS AND WAS TERMINATED FROM HIS EMPLOYMENT WITHOUT CAUSE.

II.WHETHER THE CIRCUIT COURT ERRED IN AFFIRMING THE DETERMINATION OF THE ADMINISTRATIVE JUDGE AND THE FULL COMMISSION THAT THE CITY OF HOLLY SPRINGS IS NOT LIABLE FOR PAYMENT OF THE MEDICAL SERVICES OF DR. KENNETH GAINES.

¶ 4.Finding no error, this Court affirms the circuit court judgment.

FACTS

¶ 5.Mr. Bowen was employed as a police officer by the City of Holly Springs.On March 23, 1995, he pursued a criminal escapee into an abandoned house.During this pursuit, Mr. Bowen attempted to force a door open with a tree branch.While doing so, he injured his left leg, arm, hand, fingers, wrist, elbow and shoulder.

¶ 6.Mr. Bowen was granted leave from March 25, 1995 until April 23, 1995.Upon returning to work on April 24, 1995, he did not resume his duties as a patrolman.Mr. Bowen performed as a police dispatcher, 911 operator, and inmate monitor until July 5, 1995.Due to continued pain, he did not return to work after July 5, 1995.Mr. Bowen was terminated on August 15, 1995.

¶ 7.Prior to Mr. Bowen's present injury, he sustained several other work related injuries.In 1974, he suffered a back injury while unloading a truck and had surgery for a ruptured disc in his lower back.In 1978 or 1979, Mr. Bowen sustained another lower back injury and had a spinal fusion performed.Approximately ten years later, while working for the Ripley Police Department, he suffered an injury to his left wrist.Carpal tunnel surgery was thereafter performed on his left hand.Shortly after the carpal tunnel surgery, an ulnar nerve transposition was performed in his left arm.

¶ 8.In 1991, he re-injured his back while working as a truck driver for Merchants Truck Lines.He underwent back surgery which was performed by Dr. Claudio Feler, a neurosurgeon.

¶ 9.After the injury on March 23, 1995, Mr. Bowen was first examined in the emergency room at the Marshall County Hospital.On March 29, 1995, he then consulted Dr. Horton Taylor where he complained of pain in his hand and forearm.Dr. Taylor referred him to Dr. Wayne Lamar, an orthopaedic surgeon.

¶ 10.On April 3, 1995, Mr. Bowen was examined by Dr. Lamar.At this examination, Mr. Bowen complained of pain in his left ring finger, elbow, forearm, and wrist.He was admitted to the hospital where Dr. Lamar performed flexor tendon sheath release and limited synovectomy surgery.Dr. Lamar later determined that Mr. Bowen had suffered a five percent permanent disability to his ring finger.Because Mr. Bowen continued to complain of pain in his forearm and hand, Dr. Lamar referred him to Dr. Kenneth Gaines, a neurologist, for testing.Rather than see Dr. Gaines, Mr. Bowen chose to seek the treatment of another neurologist, Dr. Andrew Kerby.

¶ 11.On May 17, 1995, Mr. Bowen was examined by Dr. Kerby.It was Dr. Kerby's opinion that Mr. Bowen had suffered "some median nerve injury in the palm of his hand with this already being aggravated by a history of carpal tunnel syndrome but this does not necessarily explain the numbness in all the fingers and hand and it is rather difficult to explain this by history and exam which was really largely unremarkable....I believe Dr. Lamar was suggesting Mr. Bowen may have pronator [teres] syndrome but I doubt this as it should only involve the median nerve and the sensory loss pattern does not fit this alone."

¶ 12.Dr. Kerby ordered a nerve conduction test which was performed on May 25, 1995.The test revealed the existence of bilateral carpal tunnel syndrome, "with the right [ulnar nerve] slightly worse than the left or approximately the same, as well as obvious ulnar nerve abnormalities, especially on the left.There did not appear to be evidence for a pronator teres syndrome involving the left median nerve."

¶ 13.During June of 1995, Mr. Bowen revisited Dr. Taylor where he reported continued pain in his left hand.Dr. Taylor referred him to Dr. Feler.

¶ 14.Dr. Feler examined Mr. Bowen on four occasions.He had complaints of pain in the left shoulder, arm, and hand.Dr. Feler reviewed the results of Dr. Kerby's nerve conduction study.It was his opinion that Mr. Bowen suffered from possible cervical radiculopathy or peripheral nerve entrapment syndrome.He ordered a magnetic resonance imaging (MRI) test to make a proper diagnosis.The MRI which was performed on June 25, 1995, was unremarkable.

¶ 15.To determine if Mr. Bowen suffered from possible pronator syndrome, Dr. Feler referred him to Dr. Mike Muhlbauer, a neurosurgeon.Dr. Muhlbauer indicated in his office notes that Mr. Bowen experienced pain mainly in his forearm, particularly when using it."He also has a lot of tenderness along his extensor carpi radialis longus and brevis.He notes that the pain will occasionally radiate up into his arm.He notes no frank neck pain."

¶ 16.Dr. Muhlbauer determined that Mr. Bowen did not have pronator teres syndrome.He primarily suffered from severe synovitis or tennis elbow.Dr. Muhlbauer prescribed anti-inflammatories and referred him back to Dr. Feler.¶ 17.On August 3, 1995, after having examined Mr. Bowen, Dr. Feler released him from his care.He indicated in his medical notes, "The patient has already seen Dr. Schnapp for his low back and has requested to be allowed to be referred to him for evaluation of his tendonitic process.I have nothing to offer the patient and he is not improved with therapy given by Dr. Muhlbauer, and I think this is reasonable."

¶ 18.While visiting the previous physicians, Mr. Bowen sought the treatment of Dr. Schnapp.He initially complained of recurrent back and right leg pain and having trouble sleeping.Dr. Schnapp suggested a physical therapy program.He also performed a facet-epidural block.

¶ 19.Dr. Schnapp also treated Mr. Bowen for pain in his left arm and elbow, both wrists and his back.Subsequently to suggesting an intensive rehabilitation program, Dr. Schnapp determined that he could not pinpoint the source of Mr. Bowen's pain.On November 3, 1995, he indicated an inability to assign any permanent impairment to Mr. Bowen's left arm.However, it was his opinion that Mr. Bowen should not return to duty as a patrol officer.

¶ 20.In a letter dated December 15, 1995 to Mr. Bowen's attorney, Dr. Schnapp stated the following:

We have followed Mr. Bowen for the past several months.[His] primary complaint is back pain related to multiple injuries and surgeries and left upper extremity pain with a neuropathic component.

I have advised Mr. Bowen that I could not assign any permanent limitations or impairment to the left upper extremity based on anatomical findings.He does, however, have significant limitations following his back injury and surgeries and he may have reached a point where he will not be able to go back to his job as a police officer.I believe he will be limited to clerical work in the future and I advised him of that.

¶ 21.On January 15, 1996, Mr. Bowen chose to be examined by Dr. Gaines.Mr. Bowen reported that he experienced pain in his hands, fingers, arms, shoulders, and neck due to the injury in March of 1995.Dr. Gaines found that Mr. Bowen had ulnar nerve neuropathy in his arm on the left side which caused pain to radiate up his arm and shoulder.

¶ 22.Dr. Gaines ordered an MRI test to determine the cause of Mr. Bowen's neck pain.The MRI revealed that Mr. Bowen had a bulging disc at C5-6.It was his opinion that this bulge was the source of Mr. Bowen's present complaints of pain in his neck.However, he did not feel that this was a...