Parker v. Miss. Dep't of Health
| Decision Date | 28 March 2023 |
| Docket Number | 2022-WC-00552-COA |
| Parties | MARSHA S. PARKER APPELLANT v. MISSISSIPPI DEPARTMENT OF HEALTH AND MISSISSIPPI STATE AGENCIES WORKERS' COMPENSATION TRUST APPELLEES |
| Court | Mississippi Court of Appeals |
ATTORNEYS FOR APPELLANT: JAMES KENNETH WETZEL, GARNER JAMES WETZEL.
ATTORNEY FOR APPELLEES: GINGER MOORE ROBEY
EN BANC.
¶1. Marsha Parker was employed as an oral health consultant by the Mississippi Department of Health (MDH) when she tripped and fell at a job location on July 6, 2017. She sustained admitted work-related injuries involving her neck, back, and right wrist. Parker subsequently claimed that she injured her right shoulder during her November 2017 functional capacity exam (FCE) for her initial injuries. She appeals two rulings the Mississippi Workers' Compensation Commission (Commission) made in two orders, asserting that the Commission erred (1) in determining that she did not suffer a compensable right-shoulder injury and (2) in finding that her compensable injuries had diminished her wage-earning capacity by only 15%. Under our deferential standard of review that applies here, we find that both rulings are supported by substantial evidence and are neither arbitrary nor capricious. Accordingly, we affirm the rulings of the Commission made in these two orders.
¶2. Parker tripped on a broken floor tile at her work site on July 6, 2017. She filed a petition to controvert with the Commission on January 23, 2018. MDH and its workers' compensation carrier (collectively, MDH) admitted that an injury had been sustained and that Parker had been performing a service within the course of her employment at the time.
¶3. On July 17, 2019, an evidentiary hearing was held by the Administrative Judge (AJ) to address two disputed issues arising in this case: (1) the compensability of an alleged rightshoulder injury that Parker said occurred during her FCE, which MDH contested and (2) the nature and extent of Parker's permanent disability, if any, attributable to her admitted work-related injuries involving her neck, back, and right wrist that occurred on July 6, 2017.
¶4. Parker testified at the July 17, 2019 evidentiary hearing before the AJ. Dr. Angela Filzen, the Director of Oral Health for MDH and Parker's supervisor, also testified at the evidentiary hearing, as well as Ty Pennington, a certified rehabilitation counselor with Rehabilitation Inc., who testified as a vocational expert on behalf of MDH.
¶5. Parker was sixty-one years old at the time of the hearing. She graduated high school and later obtained a cosmetology degree, an associate degree, and then a bachelor of science degree in dental hygiene in 2013. She worked in cosmetology before beginning her career in the dental field. With respect to her dental-field experience, Parker initially worked as a dental office administrator before becoming a dental hygienist in a private practice. She is licensed to practice as a dental hygienist in Mississippi.
¶6. In 2008, MDH hired Parker in a contract position as a regional oral health consultant. Parker testified that in that position, her pre-injury job duties included performing oral health screenings for children, presenting at health fairs, and aiding dentists in applying sealants on school-aged children's teeth to prevent dental disease. As for physical requirements, Parker testified that she occasionally would have to set up portable dental equipment when she presented at health fairs. She testified that the heaviest piece of equipment she would have to transport was a compressor that she believed weighed over forty pounds. Parker testified that she worked as many as forty hours per week but sometimes less, noting that she did not work much during the year before her injury because she was caring for her sick mother. Parker was free to set her own schedule. She earned $25 per hour.
¶7. On the date she was injured, July 6, 2017, Parker was at the Boys and Girls Club of Biloxi providing dental-care evaluations and examinations for children. As she was walking out of the gymnasium, she tripped over a broken floor tile and landed on her right wrist and right hip. She testified that the fall caused injuries to her lower back, neck, knees, and right wrist. She told her supervisor, Dr. Filzen, about the accident and went to Garden Park Hospital in Gulfport, where she was evaluated and discharged. She returned to Garden Park again a few days later and was given a referral to see Dr. George Salloum at Bienville Orthopedic for further evaluation of her wrist pain. Parker testified that Dr. Salloum treated her for her wrist injury and ordered physical therapy, which helped with her range of motion and pain. She testified that she continues to have trouble with repetitive motion involving her wrist but has not sought further treatment.
¶8. Parker was subsequently referred to Dr. Eric Graham for an evaluation of her neck and back pain. Dr. Graham referred her for MRIs and later recommended cervical spine surgery, which Parker admitted she declined. Dr. Graham then referred her to another doctor for pain management, but no treatment was ever administered due to Parker's unrelated ulcer condition.
¶9. In the fall of 2017, Dr. Graham recommended Parker for a two-day FCE[1] that was performed by Doug Roll, a physical therapist with Physical Therapy Center of Biloxi, to determine any permanent work restrictions. Parker testified that on the first day of the FCE (November 27, 2017), she was lifting a box overhead, and it "came back down on me."
According to Parker, when she tried to catch it, she injured her right shoulder. She testified that she told the physical therapist (Roll) that she injured herself, but he said she had to do it. Parker described how she was "hurting so bad and crying [, and] I just said I have to leave." Parker did not return to the clinic for the second day of the FCE. When the clinic called her, she told them that she just could not physically do the exam and that she was hurting.
¶10. After the first (uncompleted) FCE, Dr. Graham referred Parker for a second FCE at Coastal Rehabilitation in March 2018. This FCE was performed by Joseph Frame, a physical therapist. Parker successfully completed the second FCE.
¶11. Parker returned to Dr. Graham in May 2018, and was released to return to work with lifting restrictions based on the FCE Frame had administered. Parker then saw Dr. Salloum in August 2018 complaining of right shoulder pain. She later testified that she related the pain to "an accident at the functional capacity test." Parker testified that Dr. Salloum diagnosed her with a partial thickness tear of the rotator cuff and ordered surgery.[2] Parker has since sought chiropractic treatment with Dr. Anthony Lopez through her personal insurance.
¶12. Although Parker was not able to recall specific details, she admitted that she had right shoulder problems before the FCE, stating that she had had an injection sometime around 2014. She testified that she did not recall being diagnosed with a torn rotator cuff; however, on cross-examination, Parker admitted that Dr. Salloum's records and an MRI from 2010 showed she was diagnosed with and treated for a partial thickness tear to her right-shoulder rotator cuff.[3] She also recalled on cross-examination that Dr. Salloum treated her for her shoulder issue, but she said that she did not remember telling him that her symptoms were related to a prior car accident that was documented in Dr. Salloum's records. Parker did recall using a TENS unit for her shoulder pain in 2010.
¶13. Parker was released to return to work in May 2018; however, she did not return to work until February 2019. She has been working since then, but she acknowledged that she does the educational aspects of the job, which do not involve lifting any equipment, though she has done some screening involving the use of equipment called a portable compressor. She believed that it weighed less than fifty pounds.
¶14. Parker confirmed that she can choose when she wants to work (subject to a 200-hundred-hour monthly cap), but she claims that she does not work the same number of hours that she did before her 2017 injuries because she is not able. She makes the same hourly wage, and during questioning, Parker confirmed that her employer has told her that she is not required to lift anything that makes her feel uncomfortable. She is now working ten-to-twelve hours per week. She has not looked for other employment.
¶15. Dr. Filzen, Parker's supervisor, testified that Parker is one of six regional contract consultants serving in Mississippi. Region 7, where Parker works, is the only region that has two consultants due to the size and population of the coastal region. Parker and her co-consultant work together as a team, and each can work a maximum of 200 hours per month, which is set by federal grant guidelines. The consultants are paid $25 per hour.
¶16. Regarding the hours Parker worked, Dr. Filzen confirmed that Parker is free to set her schedule. Parker does not have a minimum number of hours she has to work each week or month just as she was allowed to do before her injuries. Dr. Filzen was not aware that Parker had been released to return to work before Parker contacted her in December 2018, nor had Dr. Filzen ever been presented with a doctor's note limiting the number of hours Parker can work. The only restriction that Parker provided her was the second FCE report. Dr. Filzen agreed that if Parker is only working twelve hours per week, then that is...
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