Cuevas v. Copa Casino

828 So. 2d 851, 2002 WL 31303572
CourtCourt of Appeals of Mississippi
DecidedOctober 15, 2002
Docket2001-WC-01195-COA
StatusPublished
Cited by4 cases

This text of 828 So. 2d 851 (Cuevas v. Copa Casino) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cuevas v. Copa Casino, 828 So. 2d 851, 2002 WL 31303572 (Mich. Ct. App. 2002).

Opinion

828 So.2d 851 (2002)

Karen CUEVAS, Appellant,
v.
COPA CASINO and Employers Insurance of Wausau, Appellees.

No. 2001-WC-01195-COA.

Court of Appeals of Mississippi.

October 15, 2002.

*852 J.D. Lee, Biloxi, attorney for appellant.

Jessica S. Upshaw, Gulfport, attorney for appellee.

Before McMILLIN, C.J., BRIDGES, and THOMAS, JJ.

THOMAS, J., for the court.

¶ 1. Karen Cuevas filed a petition to controvert with the Mississippi Workers' Compensation Commission on June 5, 1995, alleging that she sustained injuries to her right shoulder, arm, neck, and lower back in a fall while working at the Copa Casino on June 23, 1994. The petition was answered by the employer/carrier on July 14, 1995. A hearing was held on October 27, 1997, before an administrative law judge. On July 1, 1998, the administrative law judge found that Cuevas sustained an injury to her right elbow and shoulder only in the fall, and awarded her benefits from June 23, 1994, to August 16, 1994, and medical expenses for the initial treating physician only. Cuevas was thus denied benefits relating to her back and neck injuries. She appealed to the Full Commission, which affirmed the administrative law judge's decision. Cuevas then appealed to the circuit court which affirmed the Commission's decision. Aggrieved, Cuevas perfected an appeal to this Court and asserts the following issues:

I. CLAIMANT'S CURRENT MEDICAL CONDITION IS CAUSALLY RELATED TO HER WORK RELATED ACCIDENT AND SHE IS THEREFORE ENTITLED TO TEMPORARY TOTAL DISABILITY BENEFITS.

*853 II. ALL MEDICAL CARE RECEIVED BY CLAIMANT WAS REASONABLE AND NECESSARY FOR HER WORK RELATED INJURY, THEREFORE THE EMPLOYER/CARRIER SHOULD BE RESPONSIBLE FOR ALL EXPENSES.

III. CLAIMANT HAS NOT YET REACHED MAXIMUM MEDICAL IMPROVEMENT, THEREFORE NO DETERMINATION CAN BE MADE AS TO HER LOSS OF WAGE EARNING CAPACITY.

Finding no error, we affirm.

FACTS

¶ 2. Karen Cuevas began working as a card dealer for Copa Casino beginning at Copa's opening in September 1993. Cuevas is a high school graduate with a diploma in executive secretarial studies from a business college. She has held positions as a veterinary assistant, cashier, counter clerk, food server, and waitress. She was approximately thirty years of age when she went to work for Copa. As a dealer, she was required to pick up containers of coins, make repeated movements of her arms and neck including dealing cards, and stretch across the game table to pick up cards and coins.

¶ 3. While reporting for work on June 23, 1994, Cuevas walked across a wet parking lot before going up the inside stairs at the Copa Casino, which were covered with grooved rubber material. On the way up the stairs, Cuevas claimed her feet slipped out from under her and she fell forward. She tried to catch herself with her right arm on the handrail, and claimed that her arm was wrenched behind her as she fell. There were no witnesses to Cuevas' fall. She testified at trial that she immediately felt burning pain on her right side from her neck to the top of her shoulder.

¶ 4. With assistance from other employees, Cuevas went first to the employee break room and then to the first aid station and filled out an accident report. On the accident report, Cuevas wrote that her shoulder and elbow hurt, and she checked boxes on a body diagram indicating right shoulder and right elbow and wrote in "elbow and shoulder pain." Arrangements were made for Cuevas to see a company selected physician at a local urgent care facility. Her husband was called and he took her to see the doctor.

¶ 5. Cuevas signed a form selecting the physician at the urgent care facility as her choice of doctor. This physician was Dr. Richard Peden, a board certified occupational medicine specialist. Cuevas testified at the hearing that she did not know that she was told the consequences of signing the form stating that Dr. Peden was her choice. Debra Cortes, employee benefits coordinator for Copa, testified that she explained the choice of physician form to Cuevas before she signed it.

¶ 6. Dr. Peden examined Cuevas and diagnosed a second degree sprain to the right shoulder. He did not place any restrictions on her, finding she had full range of motion in her shoulder, and released her back to full duty work with Cuevas' voluntary agreement to do so. Dr. Peden prescribed an anti-inflammatory drug. Cuevas finished her shift that day to 8:00 p.m., and worked for another five weeks. Cuevas returned to Dr. Peden on August 1, 1994, complaining of continued pain in the right shoulder, stating that her elbow was better but that she thought she had pulled her right shoulder again. Dr. Peden put Cuevas back on the anti-inflammatory medication and gave her a steroid along with a local anesthetic. On a follow-up visit the following week, Dr. Peden evaluated *854 Cuevas' shoulder sprain as seventy percent resolved and progressing to normal. Dr. Peden saw Cuevas for the last time on August 16, 1994, and he again found normal range of motion and no tenderness in the shoulder. He found the right elbow and right shoulder problems fully resolved and she was released at maximum medical improvement from the Copa fall with no restrictions. For the first time at this visit, Cuevas complained of lower back pain and told Dr. Peden that she was taking Lorcet Plus, Flexeril, and Aleve that he had not prescribed. This medication had been prescribed by Cuevas' chiropractor, Dr. Jim Culveyhouse, whom she had seen according to his records due to her pulling her back while attempting to mow the lawn at her home one weekend in mid-August. Cuevas did not report the lawn mowing incident to Copa or to Dr. Peden.

¶ 7. Cuevas had not missed any work from the initial fall at Copa until August 12-14, after the incident with the lawn mower. After several months, Cuevas complained of continued pain and went to see Dr. Hansel Janet, her family physician in Gulfport, complaining of headaches and pain in her shoulder and back. Dr. Janet hospitalized Cuevas in November 1994, and referred her to Dr. Harry Danielson, a neurosurgeon. While being treated by Dr. Danielson, Cuevas complained of lower back and spinal pain from a work-related fall. She told him about a car wreck in 1993 but indicated she felt she had gotten over those injuries. Dr. Danielson had an MRI performed which Danielson determined showed a herniated disc that was not indicative of surgical intervention at that time. Dr. Danielson released Cuevas back to work with no restrictions with a follow-up exam in January 1995. In January, Danielson determined Cuevas was in need of surgery, which he performed on February 10, 1995. Cuevas complained that the surgery gave only temporary relief. Danielson released Cuevas on June 6, 1995, as having reached maximum medical improvement and assigned a nine percent impairment rating to the body as a whole.

¶ 8. On August 8, 1995, Cuevas went back to Danielson complaining of pain. Danielson referred Cuevas to a pain specialist, Dr. Benson, who began treating her with injections. Danielson also later referred Cuevas to Dr. Whitecloud at Tulane University Medical Center when Cuevas expressed anger at Danielson's remark that he had nothing more to offer her. Dr. Whitecloud performed a battery of tests on Cuevas and found a disc protrusion on the spine. Dr. Whitecloud testified that she had not reached maximum medical improvement, but that he would defer to Dr. Danielson's opinion regarding Cuevas' ability to return to work. Dr. Whitecloud noted that Cuevas had, in his opinion, preexisting injuries due to the deterioration of her discs.

¶ 9. Dr.

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Bluebook (online)
828 So. 2d 851, 2002 WL 31303572, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cuevas-v-copa-casino-missctapp-2002.