Wash. Cnty. Bd. of Supervisors v. Smith
|15 September 2020
|WASHINGTON COUNTY BOARD OF SUPERVISORS AND MS PUBLIC ENTITY WC TRUST APPELLANTS v. JOHN SMITH APPELLEE
|Mississippi Court of Appeals
DATE OF JUDGMENT: 06/24/2019
TRIBUNAL FROM WHICH APPEALED: MISSISSIPPI WORKERS' COMPENSATION COMMISSION
ATTORNEY FOR APPELLANTS: R. BRITTAIN VIRDEN
ATTORNEY FOR APPELLEE: YANCY B. BURNS
NATURE OF THE CASE: CIVIL - WORKERS' COMPENSATION
DISPOSITION: AFFIRMED IN PART; REVERSED AND RENDERED IN PART; REMANDED IN PART - 09/15/2020
MOTION FOR REHEARING FILED:
BARNES, C.J., FOR THE COURT:
¶1. The Washington County Board of Supervisors and the Mississippi Public Entity Workers' Compensation Trust (Employer/Carrier) appeal from the Mississippi Workers' Compensation Commission's (Commission) order finding that John Smith suffered a100% loss of industrial use in his right lower extremity and sustained a compensable mental injury. The Commission awarded Smith permanent partial disability benefits and ordered the Employer/Carrier to pay for and provide any medical treatment that is reasonable, necessary, and related to Smith's compensable mental injury. The Commission also affirmed a separate order of the Administrative Judge (AJ) compelling the Employer/Carrier to provide evaluations to determine whether the placement of a spinal cord stimulator was reasonable, necessary, and related to Smith's injury.
¶2. On appeal, the Employer/Carrier claims (1) the Commission's finding that Smith sustained a 100% loss of industrial use to his right lower extremity was not supported by substantial evidence; (2) the Commission's finding that Smith had a compensable mental injury was not supported by substantial evidence; (3) the Commission erred by affirming the AJ's separate order compelling it to pay for and provide evaluations to determine whether the placement of a spinal cord stimulator was reasonable, necessary, and related to Smith's injury; and (4) the Commission erred by failing to address whether the Employer/Carrier was entitled to apportionment or set-off credit for payments related to medical treatments for Smith's back.1
¶3. After review, we find that substantial evidence supported the Commission's finding that Smith sustained a 100% loss of industrial use of his right lower extremity and that the Commission did not err in affirming the AJ's separate order compelling theEmployer/Carrier to provide evaluations to determine whether the placement of a spinal cord stimulator was reasonable, necessary, and related to Smith's injury. Therefore, we affirm in part. We find, however, that no substantial evidence supported the Commission's finding that Smith sustained a compensable mental injury; accordingly, we reverse and render in part. Finally, because neither the AJ nor the Commission ruled on the issue of apportionment or set off, we remand for further proceedings consistent with this opinion.
¶4. On March 29, 2016, John Smith, a correctional officer employed by the Washington County Board of Supervisors, was injured while trying to detain an inmate. Smith was initially diagnosed with a right-knee strain. However, in April 2016, an MRI showed a complete tear of his patellar tendon. After undergoing surgery to repair the tendon, Smith continued to have lower extremity pain as well as back pain. In April 2017, Smith filed a petition to controvert, claiming that he had sustained work-related injuries to his patellar tendon, lower extremity, and back. The Employer/Carrier admitted that Smith had sustained an injury but denied that he had injured parts of the body as stated in the petition to controvert.2 Almost a year later, in March 2018, Smith filed an amended petition to controvert, claiming that he had suffered a compensable mental injury. The Employer/Carrier disputed this claim as well.
¶5. A few months after Smith's patellar-tendon surgery, in July 2016, Dr. Jason Craft, with the Mississippi Sports Medicine & Orthopedic Center, stated that Smith could return to sedentary work. Smith continued to complain of pain; so Dr. Craft again took him off work in September 2016 and referred him to Dr. Michael Winkelmann with NewSouth NeuroSpine. Smith also began seeing Dr. Timothy Beacham and Mandy Windham, a nurse practitioner, with Comprehensive Pain Specialists.
¶6. In January 2017, Dr. Craft noted that Smith had continued knee pain and intervertebral disk displacement. According to Dr. Craft, "[It] sounds like [Dr. Winkelmann and Dr. Beacham] were thinking complex regional pain syndrome [(CRPS), formerly known as RSD]." Dr. Craft stated, "I do think this is a component of [CRPS], and I do think a trial of . . . injections would be in order . . . ." In June 2018, Dr. Craft stated that Smith had reached maximum medical improvement and should continue pain management.
¶7. In November 2016, Dr. Winkelmann noted that Smith's tendon appeared to have a small recurrent tear and that Smith had continued pain in his lower extremity as well as back pain. According to Dr. Winkelmann, Dr. Craft was primarily concerned about Smith's lower-extremity pain and thought there may be a CRPS component. Ultimately, Dr. Winkelmann ordered an MRI of the spine and physical therapy.
¶8. In March 2017, Dr. Winkelmann was asked if he had an opinion as to whether Smith's back pain was causally related to the injury or work incident. He was also asked whether his treatment recommendations were directed at treating the work-related conditions. Dr. Winkelmann responded, "I do feel that the injury was related to [the] work-related incident when he had to retain the inmate . . . [, and] yes, I believe my treatment recommendations are appropriate and necessary for the well-being of the patient."
¶9. On August 1, 2017, Dr. Winkelmann noted that Smith continued to have a significant amount of "right lower extremity pain from his [CRPS]." However, he noted that Smith did not wish to have a spinal cord stimulator placed in an attempt to alleviate the pain. Dr. Winkelmann opined that Smith had reached maximum medical improvement and that he had a 5% partial permanent impairment rating to the lower extremity and a 2% sensory impairment rating to the lower extremity, for a 7% impairment rating to the lower extremity.
¶10. On August 16, 2017, Smith had a Functional Capacity Evaluation (FCE). The examiner noted that Smith had deficits in his right lower extremity. However, Smith performed most tasks at a heavy level, except the waist-to-floor lift was performed at a medium level. The examiner noted the following limitations as potential barriers for Smith returning to work: walking, forward bending, kneeling, and crouching. According to the examiner, Smith's walking and standing had "some limitation," his forward bending and kneeling had "significant limitation," and his crouching was "self-limited." The examiner noted that he was unable to fully assess Smith's ability to return to work because a jobdescription was not available.
¶11. Approximately one week later, on August 22, 2017, Dr. Winkelmann noted that Smith was considering the placement of a temporary spinal cord stimulator. He also noted that per the FCE, Smith could perform work at a medium-to-heavy level, and he indicated that Smith could return to work under those restrictions. Dr. Winkelmann also imposed a restriction of lifting no more than thirty pounds frequently.
¶12. During his deposition in February 2018, Dr. Winkelmann opined that Smith injured his back during the work incident. He explained that an MRI showed "a little disk bulge and maybe a little mild neural . . . narrowing." It was suggested to Dr. Winkelmann that Smith did not complain of back pain until months after the work incident. Dr. Winkelmann stated that suggestion did not necessarily alter his opinion. According to Dr. Winkelmann, a person would typically experience pain within a few day, but it was possible that Smith was preoccupied with the pain in his lower extremity.
¶13. In addition, Dr. Winkelmann stated that Smith's CRPS symptoms were confined to his lower extremity and did not have anything to do with his back. According to Dr. Winkelmann, the placement of a spinal cord stimulator would be for his CRPS and lower-extremity pain. However, Dr. Winkelmann stated that because the pain had subsided, he would not make any further recommendation for a stimulator unless CRPS became a major problem.
¶14. Several months after the deposition, in September 2018, Smith again saw Dr.Winkelmann, who noted that Smith "ha[d] been developing what appeared to be [CRPS] and for that reason, he had the persistent problem with right lower extremity, pain particularly." He stated, "[Smith] may be a candidate for a stimulator placement and for that reason, we will make the referral to Dr. Laseter for evaluation as well as Dr. Jeanne Koestler for evaluation."
¶15. In March 2017, Nurse Windham diagnosed Smith with knee pain, CRPS, and lumbago. The medical record was co-signed by Dr. Beacham. In a separate document, Dr. Beacham stated that he expected Smith to reach maximum medical improvement (MMI) in six to twelve months. He indicated that Smith had the following restrictions: no standing for prolonged periods, no walking for long distances, and no lifting greater than thirty pounds.
¶16. In a letter dated March 21, 2018, Dr. Beacham was asked, "Are the chronic lumbar and thoracic symptoms for which you provided treatment causally related to the reported injury mechanism?" In a handwritten response, Dr. Beacham stated, "No." Dr. Beacham was also asked, "What limitations or restrictions if any are causally related to these impairments?" He responded, "FCE reported limitations as to moderate to heavy activity."
¶17. In April 2017, Dr. David Collipp, with NewSouth NeuroSpine, performed an Independent Medical Examination (IME) for...
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