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AUGUST 07, 1985





This workers' compensation appeal marks the culmination of a seven year (though oft delayed) battle between a former directory assistance operator and her former employer, South Central Bell Telephone Company. Employer has - vigorously and unsuccessfully - contested everything claimant has alleged, from the fact of injury at all, to the issue of work-connectedness, to claimant's entitlement to penalties provided by the Mississippi Workers Compensation Act. That employer has had its day in court and taken full advantage thereof no one can doubt.

 We have carefully considered and sifted each point employer raises, and notwithstanding employer's firm and wholly undisguised conviction that claimant is a malingerer, we affirm. As we explain more fully below, there is in the record before us substantial evidence supporting the Mississippi Workers' Compensation Commission's findings (a)

 that claimant suffered an accidental injury, (b) that this injury arose out of and in the course of her employment, and (c) that as a result of this injury claimant is permanently totally disabled. Further, there is no credible evidence that claimant's disability has been caused by any preexisting handicap, disease and lesion, and, accordingly, the Circuit Court correctly reversed so much of the Commission's finding that fifty percent of claimant's disability should be apportioned thereto. We further find that claimant was entitled to medical expenses and penalties. The judgment of the Circuit Court is affirmed.



 On May 12, 1978, Frances W. Aden was a 39-year-old female with a high school education and at that time a nineteen year veteran employee of South Central Bell Telephone Company. On that date she sustained an injury on the job which has rendered her permanently occupationally disabled.

 Claimant was a directory assistance operator for the telephone company in Greenwood, Mississippi. She was required to sit in an elevated swivel chair in front of a circuit panel which extended to a height a little above her head. At claimant's station was a Simplex machine, a device for timing long distance calls. When a 3" X 5 "card is placed in the machine and pushed, a record is made of the length of the call. On the occasion in question claimant was in the process of connecting a long distance call with her left hand while disconnecting another call with her right hand and stamping the card for that call in the Simplex machine. This was between 7:00 a.m. and 9:00 a.m. on May 12, 1978. When she pushed the card into the Simplex machine, she felt a sharp pain in her low back and legs.

 Although she experienced pain, claimant did not report this incident to anyone but continued working. Claimant testified that shortly the pain subsided somewhat, and she was able to finish her work on that shift. She endured the pain and continued to work a regular shift for the next three days. However, the severity of her pain gradually increased until, on May 17, 1978, claimant informed Ruth Ballou, one of her supervisors, of her injury to her back, her inability to work and her need for medical attention.

 Claimant testified that she telephoned Dr. Milton Person's office in Greenwood on May 16, but Dr. Person was unavailable. She then contacted her family physician, Dr.

 Julius L. Levy of Clarksdale, and secured an appointment with Dr. Levy on Wednesday, May 17. Thereafter, claimant kept appointments with Dr. Levy on May 17, May 31, June 6, June 16, August 8, August 16 and September 11, 1978.

 On June 16, 1978, Dr. Levy referred claimant to Dr. H. Nelson Hamilton, an orthopaedic surgeon of Greenville, Mississippi, who admitted her to King's Daughters Hospital in Greenville from June 29 until July 20, 1978, and from September 18 until October 7, 1978. Dr. Hamilton referred claimant to Dr. C. D. Hawkes, a neurosurgeon practicing in Memphis, Tennessee, who hospitalized her at Methodist Hospital in Memphis from December 12, until December 21, 1978. During these hospitalizations, claimant underwent two myelograms and electronerve studies. In March, 1979, Dr. Hamilton readmitted claimant to King's Daughters Hospital for one week and performed a discogram. Dr. Hamilton died in August, 1979, and his nurse referred her to a Dr. Whitmore in Memphis. Claimant went to Dr. Whitmore on one occasion in September, 1979. On November 5, 1979, claimant sought medical attention from Dr. Raymond Browning, a general surgeon of Greenwood, Mississippi. Dr. Browning has treated claimant since November, 1979. Claimant has not worked since May 15, 1978.

 Claimant testified she sought medical attention on her own because employer did not offer to provide medical treatment and did not object to Dr. Levy. When questioned concerning her delay in reporting the accident, claimant testified she was apprehensive about reporting her injury because her supervisor had previously informed her she would be suspended if she missed time from work. Claimant had previously hurt her back while working for the telephone company in 1974. Due to that injury, she was off work four days. Her treating physician at that time was Dr. S. R. Evans of Greenwood. She was also examined on that occasion by employer's physician, Dr. Buford Yerger, of Jackson.

 Claimant also testified that prior to her work-related injury of May, 1978, she suffered from numerous physical illnesses including emphysema, arthritis, bursitis, hemorrhoids, tuberculosis and a spasmodic colon. She also previously had a hysterectomy and a coccygectomy.

 Dr. Julius L. Levy testified he first examined claimant for complaints of pain and tenderness in the back and lower extremities on Wednesday, May 17, 1978 - five days after her accidental injury. On that date claimant related a history of having injured her back while reaching at work on Friday, May 12, 1978. Dr. Levy testified claimant exhibited limitation of movement, and straight leg raising test was positive. Dr.

 Levy also noted muscle spasms and numbness in the right leg. X-rays shows narrowing between the L1 and L2 and between the L2 and L3. Dr. Levy diagnosed disc space narrowing between the first and second lumbar vertebrae and between the second and third lumbar vertebrae, spasms of the back muscles and stress syndrome.

 Dr. Levy causally related claimant's back condition to her injury while at work the preceding week. He prescribed medication and recommended bed rest. Claimant returned to Dr. Levy on May 29, 1978. On that date, Dr. Levy applied ultrasonic treatment to claimant's back and referred her to Dr. Hamilton in Greenville. Dr. Levy continued to treat claimant until September 11, 1978. X-rays taken on September 11, 1978, revealed narrowing between the L4 and L5 in addition to narrowing between the L1 and L2 and between the L2 and L3.

 Dr. Raymond Browning testified he has treated claimant since 1973 for various conditions including arthritis, lupus erythematosus, pulmonary emphysema and nervousness. He stated claimant reported to him on November 5, 1979, almost 18 months after her accident. When Dr. Browning first saw her, claimant was complaining of pain in her low back and left lower extremity. Dr. Browning recorded a history consistent with testimony concerning her injury at work and claimant's subsequent medical treatment. During physical examination, claimant exhibited tenderness in the entire lumbar area of the spine and numbness over the lateral aspect of the left lower extremity. Straight leg raising test on the left was positive. Dr. Browning diagnosed claimant's discomfort and disability as resulting from pressure on the sciatic nerve probably due to a ruptured lumbar intervertebral disc. He causally related claimant's condition to her injury at work on May 12, 1978.

 Dr. Browning said that claimant first sought medical treatment from him shortly after Dr. Hamilton's death, and she brought with her records from Dr. Hamilton's office. He testified he examined those records, particularly diagnostic studies performed during claimant's hospitalizations since May 12, 1978, and, although he did not rely on the records in reaching his diagnosis, he interpreted these studies as reinforcing his diagnosis.

 According to Dr. Browning, claimant was totally disabled from work when he first examined her for her back condition because even sitting for as long as thirty minutes would aggravate the pain in her low back and lower extremities. He said that he has seen claimant at monthly intervals since

 November, 1979, and, her condition has not improved. Dr. Browning testified further that, due to the duration of her disability, he considered claimant to be permanently disabled.

 Dr. Buford Yerger, orthopaedic surgeon, examined claimant at employer's request on March 23, 1981, and recorded a history of claimant's injury at work on May 12, 1978. Dr. Yerger testified claimant appeared to be in no acute distress, and the results of her physical examination were normal. In Dr. Yerger's opinion claimant suffered no permanent impairment and was able to return to work on March 23, 1981.

 Dr. Yerger also testified he had previously examined claimant in August, 1974. At that time he found claimant's physical examination was normal, but x-rays showed narrowing of the L5, S1 interspace.

 Employer's Exhibit No. 5 consists of claimant's medical records from Methodist Hospital in Memphis, Tennessee. Claimant was hospitalized and treated in Methodist Hospital by Dr. C. D. Hawkes from December 12, to December 21, 1978. These records show a myelogram performed on December 5, 1978, but revealed no evidence of a herniated disc or other intraspinal pathology. No testimony from Dr. Hawkes appears in the record.


 Procedurally, this matter had its genesis on July 7, 1978, when claimant filed her motion to controvert with the Mississippi Workers' Compensation Commission. In that motion claimant alleged that she had sustained an accidental injury to her low back arising out of and in the course of her employment as a telephone operator for her employer, South Central Bell Telephone Company. Then, as now, employer denied claimant had sustained any such injury.

 Based on the evidence presented, the Administrative Judge found claimant sustained a compensable injury on May 12, 1978, which became disabling on May 16, 1978. He also found claimant had not reached maximum medical recovery and ordered employer to pay temporary total disability benefits from May 16, 1978, until such time as claimant attains maximum medical recovery. The Administrative Judge allowed employer credit for sums paid claimant under employer's Plan for Employees Pensions, Disability Benefits And Death Benefits.

 Upon review, *fn1 the Mississippi Workers' Compensation Commission found that claimant had sustained an accidental injury arising out of and in the course of her employment with

 employer on May 12, 1978, that the injury had become disabling on May 16, 1978, and that employer had received proper notice of claimant's injury as required by Miss. Code Ann. 71-3-35 (1) (1972). The Commission further found that Frances W. Aden was permanently totally disabled, having attained maximum medical benefit on June 10, 1980.

 The Commission thereafter ruled, however, that claimant experienced a preexisting physical handicap, disease or lesion which was a contributing factor to her disability, Miss. Code Ann. 71-3-7 (1972), and proceeded to hold that her permanent total disability was fifty percent attributable to the injury of May 12, 1978, and fifty percent attributable to the preexisting condition, whereupon the Commission ordered apportionment of permanent disability benefits by reduction of the $91.00 per week which would ordinarily have been payable to $45.50 per week.

 In due course employer perfected its appeal to the Circuit Court of Leflore County, Mississippi, and claimant followed with a cross-appeal, the timeliness of which is at issue here. In any event, on March 30, 1983, the Circuit Court entered its order reversing so much of the Commission's order as provided for a reduced, apportioned award and otherwise affirmed the order of the Commission, including that portion directing that employer pay the ten percent penalty as authorized under Miss. Code Ann. 71-3-37 (5) (1972).

 Employer has timely perfected its appeal of the Order of the Circuit Court, and the matter is now ripe ...

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