Moore v. Independent Life and Accident Ins. Co., 2000-WC-00005-COA.

• Citation: 788 So.2d 106
• Decision Date: 12 June 2001
• Docket Number: No. 2000-WC-00005-COA.,2000-WC-00005-COA.
• Parties: Florence M. MOORE, Appellant, v. INDEPENDENT LIFE AND ACCIDENT INSURANCE COMPANY and American Motorists Insurance Company, Appellees.
• Court: Court of Appeals of Mississippi

788 So.2d 106

Florence M. MOORE, Appellant, v. INDEPENDENT LIFE AND ACCIDENT INSURANCE COMPANY and American Motorists Insurance Company, Appellees.

No. 2000-WC-00005-COA.

Court of Appeals of Mississippi.

June 12, 2001.

James Kenneth, Wetzel Mariano, Javier Barvie', Gulfport, Attorneys for Appellant.

Walter J. Eades, Gulfport, Attorney for Appellees.

Before McMILLIN, C.J., IRVING, and CHANDLER, JJ.

CHANDLER, J., for the Court:

¶ 1. This is an appeal from a decision of the Harrison County Circuit Court affirming the Workers' Compensation Commission's decision that Florence Moore is entitled to benefits due to a fall she sustained on the property of her former employer, Independent Life Insurance. Moore appeals citing the following issues:

I. WHETHER THE MISSISSIPPI WORKERS' COMPENSATION COMMISSION ERRED AS A MATTER OF LAW IN FINDING THE CLAIMANT'S SECOND CERVICAL NECK SURGERY OF DECEMBER 1992 WAS NOT RELATED TO HER INDUSTRIAL ACCIDENT OF JANUARY 23, 1990.

II. WHETHER THE MISSISSIPPI WORKERS' COMPENSATION COMMISSION ERRED AS A MATTER OF LAW IN FINDING THE CLAIMANT WAS ENTITLED TO PERMANENT PARTIAL DISABILITY BENEFITS IN THE AMOUNT OF ONLY $25 PER WEEK.

Independent Life cross-appeals citing the following issues:

I. THE COMMISSION ERRED AS A MATTER OF LAW IN FINDING MOORE'S CONDITION IN SEPTEMBER 1991 TO BE CAUSALLY RELATED

TO THE JANUARY 1990 INCIDENT, AND ITS FINDING WAS NOT BASED UPON SUBSTANTIAL EVIDENCE.

II. THE COMMISSION ERRED AS A MATTER OF LAW IN AWARDING PERMANENT PARTIAL DISABILITY BENEFITS AND ITS DECISION IS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE.

We affirm in part and reverse and render in part.

FACTS

¶ 2. The record reveals that on January 23, 1990, while Moore was employed as an insurance debit agent for Independent Life and Accident Insurance Company in Greenville, Mississippi, she slipped and fell on an icy parking lot at work. She first sought medical treatment on February 12, 1990, when she saw Dr. Barr for pain in her shoulder radiating down her arm. Dr. Barr took x-rays, administered a steroid shot and told Moore her problem was arthritis. Though she was scheduled to return, Moore did not see Dr. Barr again. She continued to work.

¶ 3. At the end of March 1990, Moore was granted a requested transfer to the employer's Mississippi Gulf Coast office and moved to Gulfport. She sought no further medical care until an emergency room visit to Memorial Hospital at Gulfport on August 30, 1990. The history she gave on that occasion was of pain for two to three weeks. Moore reported no trauma and gave no history of any fall, nor did she relate the problem to work. The recorded information of the emergency room visit includes notes that Moore denied trauma. But the report also reflects that Moore reported that she saw a doctor in February for a cortisone injection in her shoulder. Moore told the emergency room physician, Dr. Stribling, that she had experienced one prior episode of pain similar to the present pain she was experiencing. Dr. Stribling took x-rays which showed an inflammatory process around the nerve root which he found compatible with either trauma or degenerative condition. Although Dr. Stribling referred Moore to neurosurgeon Dr. Richard Buckley, Moore never saw Dr. Buckley because she said it took too long to get an appointment with him.

¶ 4. Moore continued working regularly and sought no further medical care until almost a year later, when she went to Dr. Diane Ross in July 1991. Dr. Ross did not testify in this case, but Moore says Dr. Ross also referred her to Dr. Buckley. The record does not reveal the date of this referral. Moore did not schedule an appointment with Dr. Buckley as Dr. Ross recommended for the same reason; it took too long to get in to see him.

¶ 5. Moore stopped working September 5, 1991. She applied for workers' compensation benefits and was awarded benefits until November 17, 1991. Payment of benefits was apparently discontinued based upon reports of other physicians whom the workers' compensation carrier required that Moore see. These physicians were orthopedic surgeon Dr. Charles Winters and neurosurgeon Dr. Victor Bazzone.

¶ 6. When Dr. Winters saw Moore on September 25, 1991, her complaints were of neck pain, and pain in the left arm and shoulder which she said began when she fell on January 23, 1990. Dr. Winters concluded Moore's neurological exam was normal, and he found nothing indicating a herniated disc, pinched nerve, etc., "as would be expected with a history of trauma." Based on his examination, a myelogram and CT study, Dr. Winters found Moore had arthritis in her cervical spine, and evidence of degenerative disc disease at C4-5, C5-6 and C6-7. The radiology notes revealed spondylosis, or degenerative disc disease. Dr. Winters saw Moore only on one other occasion, October 10, 1991, to discuss his findings and recommend treatment. In Winter's opinion, Moore's condition was not caused by trauma, but a fall could aggravate her condition.

¶ 7. Dr. Bazzone saw Moore November 17, 1991, at which time Moore reported complaints of pain in her left shoulder, shoulder blade and down her left arm. After examining Moore and reviewing her history of medical treatment, Dr. Bazzone found Moore's spondylosis was a longstanding problem which was not caused by the fall, and that the fall did not cause any permanent aggravation of the condition because Moore was not "getting medical treatment constantly." Dr. Bazzone agrees Moore could have been asymptomatic the rest of her life had the fall not occurred, but says the fall caused, at most, a temporary aggravation of the condition.

¶ 8. On September 17, 1991, Moore sought treatment from Dr. Danielson. Her primary complaint was of pain in the neck, the left shoulder, shoulder blade, down the left arm to the wrist and numbness and tingling of the left hand and fingers. Moore gave Dr. Danielson a history of the January 1990 fall. Dr. Danielson's final diagnosis was spondylosis at multiple levels and a herniated disc. Dr. Danielson found there was a causal connection between Moore's fall and her herniated disc, but not her spondylosis.

¶ 9. After treating Moore conservatively with a cervical collar and physical therapy, Dr. Danielson recommended cervical fusion of C5-6 and C6-7 on January 1, 1992. He performed the surgery on February 7, 1992.

¶ 10. In his deposition of October 19, 1992, Dr. Danielson testified that Moore was temporarily, totally disabled from September 17, 1991 until May 5, 1992, when she reached maximum medical improvement. Dr. Danielson assigned Moore a 14% physical impairment rating and restricted her from rapid frequent head/neck movements, prolonged extension of the head in overhead work, climbing ladders, etc. Dr. Danielson assigned 2/3 of the 14% impairment rating to the herniated disc and 1/3 to her non-work related pre-existing condition. According to Dr. Danielson, Moore was able to drive and she could return to her job as an insurance agent, with the exception of lifting heavy boxes. But Moore said she was unable to perform her duties as an insurance debit agent.

¶ 11. Dr. Danielson performed additional cervical surgery December 11, 1992. In his deposition of August 1993, Dr. Danielson revised his earlier opinion and said Moore reached maximum medical improvement on May 11, 1993. Although Dr. Danielson said disc disease predisposes one to herniated discs, he testified that Moore's second surgery, like the first surgery was causally related to her work injury.

¶ 12. Following the second surgery, Dr. Danielson increased Moore's impairment rating to 19%. He did not restrict Moore from returning to work as an insurance agent.

¶ 13. The administrative judge ruled on October 12, 1993, that Moore was temporarily partially disabled from January 23, 1990 until February 23, 1990, when she went to the doctor, and fixed maximum medical improvement at February 23, 1990, because Moore failed to return to the doctor or seek other treatment. The administrative judge ordered the employer and carrier to pay Moore's medical expenses only through the February 1990 doctor's visit, ruling that nothing subsequent to that date was related to Moore's on-the-job injury. The administrative judge assessed no loss of wage earning capacity despite Dr. Danielson's 19% permanent impairment rating, based on Dr. Danielson's report which released Moore to return to her job as an insurance agent.

¶ 14. Moore appealed, and on February 17, 1994, the Mississippi Workers' Compensation Commission amended the administrative judge's order to place maximum medical improvement at May 5, 1992. The Commission remanded the matter to the administrative judge for determination of loss of wage-earning capacity. Both parties sought clarification of the Commission's order, leading to an amended order entered April 11, 1994, in which the Commission stated: (1) it affirmed the administrative judge's finding on compensability; but (2) amended the period of temporary disability to May 5, 1992; and (3) held the employer and carrier's liability for medical expenses ended upon Moore's release to return to work by Dr. Danielson on May 5, 1992; and (4) held the second surgery was not related to the industrial accident of January 1990, relieving the appellees of liability for expenses associated with the December 11, 1992 surgery. The Commission held that Moore was entitled to compensation benefits (and penalties) for the periods she was unable to work during her partial disability from January 23, 1990 until May 20, 1992, with credit to be given the employer/carrier for wages earned and benefits paid. The amended order again remanded the matter to the administrative judge for findings on loss of wage-earning capacity.

¶ 15. Following the hearing on remand, the administrative judge held that Moore had not proven any loss of wage-earning capacity. The administrative judge found Moore had made no serious effort to obtain work where...