Before Thomas, P.j., Coleman, Hinkebein, And Payne, JJ.
The opinion of the court was delivered by: Payne, J.
WALKER MANUFACTURING COMPANY, A SELF-INSURED EMPLOYER, APPELLANT v. ANITA G. BUTLER, APPELLEE
DATE OF JUDGMENT: 02/04/97
TRIAL JUDGE: HON. BARRY W. FORD
COURT FROM WHICH APPEALED: MONROE COUNTY CIRCUIT COURT
NATURE OF THE CASE: CIVIL - WORKERS' COMPENSATION
TRIAL COURT DISPOSITION: AFFIRMED FULL COMMISSION IN AWARDING PERMANENT PARTIAL DISABILITY TO CLAIMANT.
DISPOSITION AFFIRMED - 8/4/98
¶1. Anita Butler filed her petition to controvert on November 17, 1995, concerning a work related accident resulting in injury to her right knee. Following the completion of discovery an evidentiary hearing was held before the administrative law Judge on May 8, 1996. Following this hearing, the administrative law Judge in an order dated June 11, 1996, awarded Anita Butler temporary total disability benefits commencing on May 11, 1995, to October 12, 1995, and an award of permanent partial disability benefits of 87.5 weeks based upon a Conclusion that she had sustained a fifty percent loss of the scheduled member leg injury. Feeling aggrieved, the employer appealed to the Full Commission, then to the Monroe County Circuit Court, both of whom subsequently affirmed the administrative law Judge. Finally, Walker Manufacturing seeks relief from this Court after perfecting its appeal. After receipt of the record and a complete review of the law, we uphold the Full Commission's order.
¶2. The claimant, Anita Butler, is a forty-five year old female and was a resident of West Point, Mississippi, at the time of her injury. Prior to working for Walker Manufacturing in February of 1994, the claimant had worked as a seamstress at Johnston Tombigbee Manufacturing Co. She had also worked as an automated machine operator at Artex in West Point and as a sales person at Wal-mart in Kosciusko. The claimant has a high school education and has no vocational training except an intermediate law course she had taken in contemplation of running for Justice court Judge in the early seventies.
¶3. The claimant's job description is that of an "order puller." With that job she is required to squat and bend in order to place mufflers, which vary in weight, but which weigh at least fifteen pounds each on pallets.
¶4. Butler suffered her injury on December 15, 1994, when she tripped over a bolt that had been affixed to the floor. When she fell, her right knee made contact with another bolt affixed to the floor. Thereafter, Butler was taken to see Dr. Arthur Brown in Aberdeen. Dr. Brown performed x-rays which were interpreted as normal. However, he observed and treated a three centimeter laceration on the right knee. He diagnosed the claimant as suffering a right knee strain, and after placing her on crutches released her back to work for light duty. After this untimely fall, the claimant returned to work the very day of her accident. On December 19, 1994, the claimant revisited Dr. Brown who noted that his patient continued to have a significant pain in her knee. He scheduled for her an appointment with Dr. Russell Linton, an orthopaedic surgeon practicing in Columbus, Mississippi, for further treatment.
¶5. The claimant was first seen by Dr. Linton on January 4, 1995. According to Dr. Linton, who testified by deposition, his initial evaluation revealed a possible partial tear to the anterior or middle portion of her medial meniscus. Dr. Linton continued to treat the claimant through winter and early spring of 1995 in a conservative manner. While at these appointments, the claimant appeared to be improving, according to Dr. Linton, but experienced pain and swelling. At this time he determined that her symptoms indicated a chondral contusion and recommended surgery. The date for this determination of surgery was April 19, 1995.
¶6. On April 29, 1995, the claimant suffered another fall, injuring the same portion of her anatomy. Surgery was performed on May 26, 1995, where it was discovered that the claimant did, in fact, have a chondral contusion. However, surgery revealed that she did not suffer a meniscus tear as the MRI had indicated. A lateral retinacular release was performed. Dr. Linton testified by deposition that his findings on physical examination at his office along with his surgical findings were consistent with the claimant's history of her work-place injury. Dr. Linton was of the opinion that the work injury caused the chondral contusion and directly lead to the necessity for surgery and resulting impairment, limitations, and restrictions.
¶7. Dr. Linton released the claimant as having reached maximum medical recovery on October 12, 1995, and assigned the claimant with a seven percent permanent partial impairment to the right lower extremity as a result of the injury. On cross examination, Dr. Linton clarified the restrictions he had given the claimant concerning "repetitive" squatting and lifting. He stated that this activity should not occur more than once every five minutes.
¶8. Dr. Linton further testified that if the claimant's job requirements exceeded these guidelines, then the claimant would be permanently medically restricted from that type of work as a result of the injury. The administrative law Judge found, and the Full Commission agreed, based on the testimony of both the claimant and the employer's representative, that the physical requirements of the claimant's job at the time of the injury rendered her permanently medically restricted from that type of work.
¶9. The parties dispute whether the claimant is entitled to temporary total disability benefits. Walker takes the position that because the claimant was never off work for more than five consecutive days prior to her election to take voluntary lay-off status, it should not be held accountable to the claimant for benefits. The claimant argues that she is entitled to temporary total benefits beginning May 11, 1995, the first date following which the claimant missed five consecutive days from work, through the date of maximum medical improvement.
¶10. On May 11, 1995, the claimant testified that she was sent home by personnel manager Mr. David Gill. Gill informed the claimant that since she was about to have surgery, she should go home and rest and come back to work after surgery. However, the morning before the surgery, Cheryl Matthews, an assistant personnel manager at Walker's Manufacturing, repeatedly called, insisting that she come to work.
¶11. On June 2, 1995, one week following surgery, the claimant returned to Dr. Linton in order to have her surgical stitches removed. Dr. Linton gave the claimant a note, dated June 2, which stated that the claimant should not work for three weeks in order to recover from surgery. A conflicting account arose when Cheryl Matthews testified.
¶12. On June 5, 1995, Cheryl Matthews testified that she personally called Dr. Linton's office and reported that light duty work was available for the claimant. Further, she stated that the company received a return to work note dated June 5, 1995, written by Dr. Linton's nurse, indicating that the claimant was released to return to light duty work on that date. After the company contacted the claimant, she returned to light duty on June 6, 1995. She then worked until the time of her "voluntary lay-off" on June 23, 1995.
¶13. Of partial concern in this case is the ex parte communication between Cheryl Matthews and Dr. Linton's office. The administrative law Judge was of the opinion that an ex parte communication with the claimant's treating physician in a litigated case is barred in Mississippi civil practice, including compensation practice, and that the proper remedy for such violation of the patient's right of confidentiality is exclusion of the evidence.
¶14. Concerning the lay-off, the claimant testified that Mr. Gill informed her that the company was laying off some of its workforce and that she would likely be a candidate for a layoff because she lacked seniority. She further testified that at no time during this Discussion was it brought to her attention that the people on voluntary lay-off would be brought back after the people on involuntary lay-off.
¶15. Cheryl Matthews testified that Walker's Manufacturing policy dictates that voluntary laid-off workers are called back after the involuntary workers. She further noted that the claimant has not been called back by Walker Manufacturing for rehire or reinstatement since leaving in June of 1995, and that almost everyone who went on involuntary lay-off after the claimant left the workforce have all been called back at this point.
¶16. In late August of 1995, the claimant began working part-time for Ken's Pharmacy three days a week at $5 per hour, and remained under that employment until January 1, 1996. The claimant also drew partial unemployment benefits in the amount of $65 per week during this employment period. On March 1, 1996, the claimant began working for Haas Outdoors at $5.75 per hour, at forty hours per week. She kept this job until April, 1996. Thereafter, she retained employment with the Department of Human Services on April 1, 1996, where she earned approximately $336 per week. Since that time the claimant has moved with her husband and has been unable to obtain other employment commensurate with her disability. Because the particular decisions of the administrative law Judge's order are of such value in the appraisal of the issues as they have been presented, they are listed below.
1. Ms. Butler sustained an admittedly compensable injury to her right lower extremity as a result of her work injury of December 15, 1994, in the course and scope of her employment with Walker Manufacturing Company.
2. Ms. Butler was temporarily totally disabled from May 11, 1995, the first date on which she began missing in excess of five consecutive days in her employment, through the stipulated date of maximum medical recovery, October 12, 1995, and that the employer is entitled to credit for each week of wages earned by the claimant between May 11 and October 12, 1995.
3. The claimant has suffered a permanent loss of industrial use of her right lower extremity as a result of her admitted injury. Upon consideration of the evidence as a whole, the Administrative Judge is of the opinion that the claimant has suffered a 50% loss of industrial use of the right lower extremity, thereby entitling her to 87.5 weeks of permanent partial disability benefits in the amount of $243.75, with credit for permanent partial disability benefits previously paid by the employer.
4. Claimant is entitled to reasonable and necessary medical services and supplies previously incurred and which may be incurred in the future as the nature of the injury and the process of the recovery may require.
¶17. Several stipulations were given. The average weekly wage of the claimant at the time of the injury was set at $462.31 per week. The second stipulation is that the claimant reached maximum medical recovery on October 12, 1995. The third stipulation is that the employer has paid the seven percent impairment rating.
¶18. Finally, the claimant stated that she plans to move to Carthage, Mississippi, with her husband and would not return to work at Walker if asked to return because of the distance between Carthage and Walker's Manufacturing plant.
LAW AND DISCUSSION OF ISSUES
¶19. The standard of review utilized by this Court when considering an appeal of a decision of the Workers' Compensation Commission is well settled. The Mississippi Supreme Court has stated that "[t]he findings and order of the Workers' Compensation Commission are binding on the Court so long as they are 'supported by substantial evidence.'" Vance v. Twin River Homes, Inc. , 641 So. 2d 1176, 1180 (Miss. 1994) (quoting Fought v. Stuart C. Irby Co. , 523 So. 2d 314, 317 (Miss. 1988)). An appellate court is bound even though the evidence would convince that court otherwise if it were instead the ultimate fact finder. Barnes v. Jones Lumber Co. , 637 So. 2d 867, 869 (Miss. 1994). This Court will reverse only where a commission order is clearly erroneous and contrary to the weight of the credible evidence. Vance , 641 So. 2d at 1180; see also Hedge v. Leggett & Platt, Inc. , 641 So. 2d 9, 12 (Miss. 1994). "This Court will overturn a [C]ommission decision only for an error of law or an unsupportable finding of fact." Georgia Pacific Corp. v. Taplin , 586 So. 2d 823, 826 (Miss. 1991) (citations omitted). Therefore, this Court will not overturn a Commission decision unless it finds that the Commission's decision was arbitrary and capricious. Id.
I. WHETHER THE COMMISSION ERRED IN AWARDING COMPENSATION, WHERE THERE WAS NO EXPERT MEDICAL PROOF OF CAUSAL RELATION BETWEEN THE CHONDRAL CONTUSION AND ANY ON-THE-JOB INCIDENT.
¶20. The employer argues that since there was no medical expert testimony connecting the chondral contusion with an on-the-job injury, it should not be held accountable under the Mississippi Workers' Compensation Act. Walker further argues that medical evidence is required in this and other cases "where there is a serious question resolvable only by skilled determination and which is not within the knowledge of lay witnesses or members of the fact finding tribunal." Bates v. Merchants Co. , 249 Miss. 174, 161 So. 2d 652, 659 (1964). In all but the elementary and routine cases, it is necessary to establish medical causation by expert testimony. Cole v. Superior Coach Corp., 234 Miss. 287, 106 So. 2d 71, 72 (1958). The employer states that Dr. Linton was ambiguous concerning the connection of the injury with the chondral condition and via inference argues that the claimant's second fall, which occurred while she was at home could have been the reason for the chondral condition. *fn1
¶21. However, the claimant directly refutes this proposition and states in her brief, "Dr. Linton clearly and unequivocally connected the chondral contusion with the work-place injury. Dr. Linton testified that his findings on physical examination at his office, along with the surgical findings, were consistent with the claimant's history of a work-place injury, and that the work injury caused the chondrol contusion and directly lead to the necessity for surgery and resulting impairment[,] limitations and restrictions."
¶22. Dr. Linton stated via deposition: Q. Where [sic] the symptoms that she demonstrated to you and your findings on
physical examination and your surgical findings consistent with the history of a trauma that she gave you on the workplace at Walker?
¶23. Later in the record we find this: Q. Okay. And let me ask you a couple of sort of legally phrased questions. Do you have an opinion based upon a reasonable degree of medical probability as to whether her knee problems, the surgery that you did, the resulting impairment limitations and restrictions we caused or contributed to in a ...