Stewart v. Singing River Hosp. System

928 So. 2d 176, 2005 Miss. App. LEXIS 535, 2005 WL 1870031
CourtCourt of Appeals of Mississippi
DecidedAugust 9, 2005
Docket2004-WC-00707-COA
StatusPublished
Cited by9 cases

This text of 928 So. 2d 176 (Stewart v. Singing River Hosp. System) 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
Stewart v. Singing River Hosp. System, 928 So. 2d 176, 2005 Miss. App. LEXIS 535, 2005 WL 1870031 (Mich. Ct. App. 2005).

Opinion

928 So.2d 176 (2005)

Janie STEWART, Appellant
v.
SINGING RIVER HOSPITAL SYSTEM and Sedgwick of MS, Inc., Appellees.

No. 2004-WC-00707-COA.

Court of Appeals of Mississippi.

August 9, 2005.
Rehearing Denied January 17, 2006.
Certiorari Denied May 4, 2006.

*177 Douglas Bagwell, Thomas Lynn Carpenter, Gulfport, attorneys for appellant.

Michael J. McElhaney, Gina Bardwell Tompkins, Pascagoula, attorneys for appellees.

Before KING, C.J., CHANDLER and BARNES, JJ.

BARNES, J., for the Court.

¶ 1. The Circuit Court of Jackson County affirmed the Mississippi Workers' Compensation Commission's findings that Janie Stewart was not permanently disabled as a result of her work-related injury. The Commission had reversed the decision of the administrative law judge who found Stewart disabled. We reverse the decision of the circuit court and the Commission and find that the decision of the administrative law judge was correct. We therefore reverse and remand to the Commission to reinstate the decision of the administrative law judge and properly award Stewart benefits.

¶ 2. On appeal, Stewart raises the following issues, which we quote:

(1) The Commission's decision in this case relies on an unsupportable opinion by Leon Tingle which is based on facts not in evidence, in that Tingle stated that Dr. Laseter reported that Stewart could work at a sedentary level, when Dr. Laseter never made that finding;
(2) By determining that Stewart should have also gone back to work based upon non-treating physicians' restrictions, one an IME opinion, and another given nearly two years before Stewart finally came off work, the Commission's decision is clearly in conflict with established Mississippi law on whose medical advice a claimant is entitled to rely upon whether to seek employment, resulting in distinctive prejudice in this case;
(3) The Commission's determination, made without any consideration of Stewart's continuing pain arising from this accident, makes that decision clearly erroneous and incorrect as a matter of law;
(4) The Commission's failure to determine whether this accident was a compensable injury under the Act, or even to address whether Stewart *178 is entitled to continued medical treatment, is clearly erroneous.

FACTS

¶ 3. Janie Stewart obtained a licensed practical nurse (LPN) degree in 1968 and worked as a staff LPN nurse at Singing River Hospital from 1968 to 1979. In 1979 she became a registered nurse (RN) and continued to work at Singing River Hospital from 1979 to 1985. Stewart then worked briefly at the V.A. Medical Center in Biloxi from 1985 to 1987. After that, Stewart returned to work at Singing River Hospital System, working at the Ocean Springs Hospital from 1987 to 1994 as a RN staff nurse, and from 1994 to 1995 working as a RN charge nurse. Stewart then transferred within the Singing River Hospital System to Kare-in Home Health and worked as a RN staff nurse from 1995 to 1997.

¶ 4. On or about October 31, 1996, Stewart was injured while employed by Kare-in Home Health. Stewart attempted to sit in a chair which rolled out from under her and caused her to fall to the floor, landing on her buttocks and striking her head. Stewart reported the accident and initially only experienced slight discomfort. Her neck and low back pain gradually worsened.

¶ 5. After seeking treatment for her low back pain at Ocean Springs Hospital, Stewart then went to her family physician, Dr. Steven Fineburg, in January 1997. Dr. Fineburg advised Stewart to leave work at that time. Treatment with physical therapy was not successful, and Dr. Fineburg referred Stewart to Dr. John McCloskey, a neurosurgeon, for her low back pain and pain radiating down her right leg and into her foot.

¶ 6. After conducting a series of tests, including myelograms, Dr. McCloskey diagnosed Stewart with spinal stenosis or narrowing of the nerve cord spaces at L4-L5 and L5-S1. Dr. McCloskey found that the Stewart was a good candidate for surgery, specifically a decompressive foraminotomy. In March 1997, Dr. Robert White concurred with the need for decompressive surgery. On April 14, 1997, Dr. McCloskey performed hemilaminectomies, foraminotomies, and partial facetomies at the L4-L5 and L5-S1 levels.

¶ 7. After experiencing initial improvement after the surgery, in May 1997, Stewart began to experience a reoccurrence of pain in the same areas as before the surgery. Dr. McCloskey began a regime of physical therapy which did help Stewart with leg pain but did not resolve the problem with back pain. In August 1997, Dr. McCloskey stated that Stewart could return to work with certain restrictions. Stewart returned to work part-time at first and within a month, full time.

¶ 8. The result was that Stewart lost work from January 13, 1997, the date Dr. Fineburg advised her to stop work, until September 1997, when Dr. McCloskey allowed her to return to work with restrictions. Stewart worked as a re-certification nurse from September 1997 to November 1998, when the hospital discontinued its contract with Kare-in Home Health. Stewart was then reassigned to Ocean Springs Hospital in the education department teaching new nurse assistants.

¶ 9. During the time that Stewart was working for Kare-in Home, she was in a great deal of pain and was taking pain medication to control that pain. Her pain was evident to her co-workers and her supervisor, Nettie Coffey, who testified that she saw Stewart in pain on several occasions.

¶ 10. In August 1998, Stewart requested that Dr. McCloskey refer her to Dr. Jeffery Laseter. Dr. Laseter first saw *179 Stewart in December 1998 and diagnosed her with post-laminectomy syndrome and cervical myofacial pain. Stewart continued to see Dr. Laseter, and in January 1999, Dr. Laseter placed Stewart on additional physical therapy which was not successful in reducing her pain.

¶ 11. In October 1999, Stewart was involved in an automobile accident which aggravated her pain, particularly in her neck. Stewart continued to work until July 6, 2000, when Dr. Laseter took Stewart off work because of her pain. Dr. Laseter's specifically stated that Stewart was to be "off work until further notice." On August 25, 2000, at a follow-up visit to Dr. Laseter, he noted improvement due to her lack of work activity. On August 28, 2000, Dr. Laseter issued new restrictions, stating that Stewart was not to bend, crawl, stand or walk, twist/push or pull and "patient is to remain off work for an undetermined period of time."

¶ 12. On November 17, 2000, Dr. Laseter stated that Stewart could not work at any activity full-time and stated that she had achieved maximum medical recovery for her condition. Dr. Laseter stated that he had attempted to find her a part-time position with the hospital, but that the Singing River Hospital System did not have any part-time positions. On May 17, 2001, Dr. Laseter stated that Stewart was permanently and totally disabled and "will not be able to work in any type of work capacity."

¶ 13. Leon Tingle, a vocation rehabilitationist hired by the employer/carrier, interviewed Stewart in October 2001. In his statement, Tingle noted that Dr. Laseter felt that Stewart was totally and permanently disabled from any employment. Tingle stated that Dr. Laseter indicated "that there was a possibility she may be able to perform some sedentary level jobs." Tingle sent sedentary job descriptions to Dr. Laseter for review, and Dr. Laseter rejected each of them for Stewart.

¶ 14.

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Bluebook (online)
928 So. 2d 176, 2005 Miss. App. LEXIS 535, 2005 WL 1870031, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stewart-v-singing-river-hosp-system-missctapp-2005.