TRIBUNAL FROM WHICH APPEALED: MISSISSIPPI WORKERS' COMPENSATION COMMISSION. DATE OF JUDGMENT: 02/22/2013. TRIBUNAL DISPOSITION: AFFIRMED THE ORDER OF THE ADMINISTRATIVE JUDGE DENYING APPELLANT'S REQUEST FOR PERMANENT DISABILITY BENEFITS.
FOR APPELLANT: W. HOWARD GUNN.
FOR APPELLEES: GINGER MOORE ROBEY.
IRVING, P.J. LEE, C.J., GRIFFIS, P.J., FAIR AND JAMES, JJ., CONCUR. CARLTON, J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY BARNES, ISHEE AND ROBERTS, JJ. MAXWELL, J., NOT PARTICIPATING.
NATURE OF THE CASE: CIVIL - WORKERS' COMPENSATION
¶1 On January 23, 2007, Sara Pulliam filed a petition to controvert with the Mississippi Workers' Compensation Commission (Commission), alleging that she had sustained compensable injuries to her back, right shoulder, and body as a whole on March 26, 2006, while working as a direct care worker (DCW) for the Mississippi State Hudspeth Regional Center (Hudspeth). Hudspeth admitted that Pulliam had sustained compensable injuries to her back and right shoulder, but disputed the nature and severity of those injuries, including Pulliam's contention that her Chiari malformation and cervical-spine problems were causally related to her work injury.
¶2 A hearing was held before an administrative judge (AJ), who found that Pulliam had reached maximum medical improvement (MMI) on July 1, 2006; that Pulliam failed to prove that she suffered permanent disability as a result of her injuries; that Pulliam's average weekly wage at the time of the injury was $296.01; that Pulliam's cervical spine and Chiari
issues were not causally related to her work injuries; that Pulliam's other claims were barred by the statute of limitations; and that Hudspeth is responsible for medical expenses associated with Pulliam's injuries to her right shoulder and the lumbar area of her spine. Pulliam requested that the Commission review the AJ's decision. The Commission affirmed the AJ's decision and clarified that the AJ " found that [Pulliam's] lumbar [injury], thoracic [injury], and right[-]shoulder [injury were] compensable."
¶3 Feeling aggrieved, Pulliam appeals and argues that: (1) the Commission erred in upholding the AJ's erroneous decision to admit a medical report into evidence; (2) the Commission's findings were not supported by substantial evidence; (3) the Commission erred in finding that " Pulliam's claims other than [the] injury to her back and right shoulder are barred by the statute of limitations" ; and (4) the Commission erred in finding that Hudspeth was not responsible for certain medical expenses.
¶4 After a thorough review of the record, we affirm the Commission's finding that Pulliam's Chiari symptoms and cervical-spine issues were not causally related to her work-related injury. We also affirm the Commission's finding that Hudspeth shall only be responsible for the medical expenses associated with Pulliam's compensable injuries. However, we find that the AJ erroneously considered unauthenticated medical evidence. Because the AJ's findings regarding Pulliam's MMI date and her entitlement to permanent disability benefits, if any, rested largely on the erroneously considered evidence, we reverse the findings as to those issues and remand this case to the Commission for further proceedings consistent with this opinion.
¶5 Pulliam began working for Hudspeth as a DCW in 2004. Prior to working for Hudspeth, Pulliam worked as a factory worker and a teacher's aide. On March 26, 2006, Pulliam assisted two coworkers with a patient to prevent the patient from falling. After helping her coworkers with the patient, Pulliam began to feel pain in her lower back and right shoulder. She reported the incident to her supervisor, Ruby Glover, and completed an accident report. On the following day, Pulliam presented to Dr. Charles Ozborn, a family practitioner, and told him about the incident at work. Dr. Ozborn diagnosed Pulliam with lumbar strain. Pulliam re-injured her back and shoulder in April 2006 while assisting a patient during the sounding of the fire alarm.
¶6 During the hearing in front of the AJ, Pulliam testified that her job responsibilities included assisting Hudspeth patients through the rehabilitative process. According to Pulliam, approximately forty percent of her job as a DCW involved lifting, prolonged periods of walking, and frequent squatting and bending. Pulliam insists that she was able to perform all of her job duties without assistance prior to her injury.
¶7 Pulliam stated that she missed a few days of work as a result of her injury, and she received workers' compensation benefits for approximately one month afterwards. When she returned to work at Hudspeth, Hudspeth transferred Pulliam to an earlier shift. Working the earlier shift required Pulliam to perform more lifting and more walking, with little opportunity to rest or take breaks. Because of her injury and the pain that she experienced while trying to perform her new job duties, she was ultimately unable to continue to work. Hudspeth eventually terminated
Pulliam after she exhausted her leave time.
¶8 Pulliam testified that after Hudspeth terminated her, she conducted a job search, including contacting at least forty potential employers, but she was unable to find a job. She revealed during cross-examination that she completed only five out of forty job applications because some of the employers told her that they were not accepting applications. Pulliam stated that she continues to experience pain in her shoulder and back. She cannot sit for more than sixty minutes and cannot stand for more than twenty minutes. She takes medicine, but it does not help with the pain.
¶9 Glover testified that she was Pulliam's supervisor at Hudspeth while Pulliam worked the night shift. Glover affirmed Pulliam's contention that Pulliam did not have any problems performing her job duties prior to her injury. According to Glover, approximately seventy percent of the job as a DCW involves standing and approximately sixty percent of the job involves stooping and bending. DCWs that work the morning shift stand for approximately ninety percent of their shifts because the patients are involved in numerous activities during the morning shift, and the DCWs must accompany the patients to those activities.
¶10 Although Dr. Ozborn did not testify at the hearing before the AJ, the medical records completed by him were admitted into evidence, and he testified by deposition regarding the contents of the medical records. During his deposition, Dr. Ozborn noted that he had served as Pulliam's primary physician for at least twenty years. Pulliam visited his office on March 27, 2006, the day after her on-the-job injury, complaining of pain located primarily in her lower and mid-back. Dr. Ozborn diagnosed Pulliam with lumbosacral strain and released Pulliam to return to work on March 28, 2006.
¶11 Pulliam returned to Dr. Ozborn's office on April 17, 2006, with complaints of increased pain in her back. Pulliam informed Dr. Ozborn that her " lifting a patient at the Kilmichael [n]ursing facility" led to an increase in the pain in her back. After conducting a physical examination, Dr. Ozborn assessed Pulliam's condition as a thoracic strain and a lumbosacral strain, which he classified as " an exacerbation or renewed strain compatible with the same type of injuries [that] she had initially[.]"
¶12 Dr. Ozborn examined Pulliam again on November 13, 2006. At this time, Pulliam complained of radicular pain, which radiated down her left leg. Prior to this time, Pulliam had started physical therapy, but was continuing to have difficulty with back pain. She visited Dr. Ozborn several more times. On January 3, 2007, Dr. Ozborn ordered an MRI based on the " persistence of her pain and the fact that she'd had th[e] new development of radicular pain." The MRI revealed a disc protrusion that " could be symptomatic." Dr. Ozborn opined that " in view of [Pulliam's] history, and in view of the fact that she had pain that was compatible with this," the disc protrusion could be the cause of the pain in Pulliam's leg. The MRI also revealed a Chiari malformation. Dr. Ozborn explained that an irritation of the spine could pull the Chiari " further down and [make the Chiari] become symptomatic." He placed Pulliam at MMI on September 18, 2007. Dr. Ozborn opined, to a reasonable degree of medical certainty, that Pulliam was " totally disabled to do any kind of work activity."
¶13 Pulliam presented to Dr. John Davis, at Hudspeth's request, for an employer medical examination on April 2, 2008. Dr. Davis analyzed Pulliam's medical records and conducted a physical examination
of her. After conducting the physical examination and studying medical records from Dr. Ozborn and Dr. Hunt Bobo, Dr. Davis opined, to a reasonable degree of medical certainty, that Pulliam's Chiari malformation and the issues with her cervical spine were " completely unrelated in any way to any work injury[.]" He additionally opined that Pulliam's ongoing pain in " her thoracic region and down into [the] lumbar region" as well as her " left leg discomfort . . . . [were] causally related to [her] work injury[.]" He also noted that he " would defer all questions about work[-]status restrictions, impairment[,] and MMI to a treating physical[-]medicine and rehab[-]medicine physician." (Emphasis added).
¶14 Over Pulliam's objections, the AJ also considered a report from Dr. David Collipp, who performed a second independent medical examination of Pulliam on November 21, 2008. Dr. Collipp opined that Pulliam suffered " a lumbar strain injury with some thoracic ...