MWCC NO. 93-06270-G-0390

ANDREW EUGENE FOWLER                                                                                                        CLAIMANT

vs.

SEITZ LUMBER COMPANY                                                                                                          EMPLOYER
AND
MISSISSIPPI MANUFACTURERS ASSOCIATION WORKERS' COMPENSATION GROUP CARRIER
 

This matter is before the Commission pursuant to a Petition to Abate Appeal and to Reopen filed by the Claimant. The Claimant, in the end, seeks to have this claim remanded to the, Administrative Judge so that he may present additional evidence concerning his loss of wage earning capacity.

An Order of the Administrative Judge was entered on March 29, 2000 finding, inter alia, that Mr. Fowler was not entitled to any permanent disability benefits for a work related injury to his ribs and lungs. Mr. Fowler timely petitioned for review of this Order and the Employer and Carrier filed a cross-petition for review

Subsequently, Mr. Fowler filed the instant Petition to Abate Appeal and to Reopen. In support of this Motion, Mr. Fowler claims that a change in his employment status has occurred since the Order of the Administrative Judge was entered and, consequently, he should be given the opportunity to develop this additional and newly arising evidence in a hearing before the Administrative Judge so that the issue of his loss of wage earning capacity can be reconsidered.

The Employer and Carrier initially responded to Mr. Fowler's Petition to Abate with their own request that it be denied.  However, the Employer and Carrier, and the Claimant, subsequently submitted and "Agreed Order" to the Commission which provides for the remand of this claim to the Administrative Judge for further proceedings as requested by Mr. Fowler.
 

Under the circumstances, therefore, we grand Mr. Fowler's Petition to Abate Appeal and to Reopen and hereby remand this claim to the Administrative Judge for such further proceedings as the Judge may determine are appropriate to permit further consideration of the issue of Mr. Fowler's permanent loss of wage earning capacity.  Both the Petition for Review and the Cross-Petition for Review are hereby dismissed without prejudice to either party's right to seek further review once the additional proceedings authorized herein are concluded. 

SO ORDERED this the 5th day of December, 2000.

MISSISSIPPI WORKERS' COMPENSATION COMMISSION
BARRETT SMITH
BARNEY SCHOBY
BEVERLY BOLTON

ATTEST:
Joann McDonald, Secretary
___________________________
 

MWCC No. 93 06270-G-0390-B

ANDREW EUGENE FOWLER                                                                                                         CLAIMANT

vs.

SEITZ LUMBER COMPANY                                                                                                           EMPLOYER
AND
MISSISSIPPI MANUFACTURERS ASSOCIATION W.C. GROUP                                                CARRIER

APPEARING FOR THE CLAIMANT:
Mr. John P. Fox, Attorney at Law, Houston, Mississippi

APPEARING FOR THE EMPLOYER-CARRIER:
Mr. Michael Duane Greer, Attorney at Law, Tupelo, Mississippi
 

Claimant alleged that on February 11, 1993, he suffered from internal injuries to his lungs and ribs after a work accident. The Employer-Carrier admitted compensability and paid medical expenses and temporary disability benefits. The hearing was held at the Clay County Courthouse in West Point, Mississippi, on December 2, 1999.
 

1. A work-related accident occurred on February 11, 1993, injuring Claimant's lungs and ribs.

2. There is no remaining issue to be decided regarding temporary. disability.

3. There is no remaining issue to be decided regarding the reasonableness and necessity of medical treatment.

4. After the work accident, Claimant returned to work for the Employer on March 1, 1993, then underwent surgery in September 1995. Claimant then returned to work on October 22, 1995, and has continued to work for the Employer since then.

5. Claimant's spouse, Mrs. Ruth Fowler, if called to testify, would materially corroborate Claimant's testimony and would, therefore, be cumulative.
 

1. Claimant's average weekly wage on the date of the work accident.¹

2. The existence and extent of permanent disability attributable to the work accident.

3. Whether Claimant is entitled to recover penalties and interest on disability payments not timely made.
 

Claimant is a 60-year-old resident of Clay County, Mississippi, with a high school degree. He served in the United States Navy as an electronic technician, and he has had vocational courses in electronics and computers. Claimant began working for the Employer, on September 1, 1970. He stated that before his work accident he W as in "excellent health" with no serious physical problems. Claimant testified that prior to the accident, he was required to lift heavy objects up to 200 pounds while working for the Employer. He recalled that on February 11, 1993, he was working for the Employer when he fell and landed on a ladder, which penetrated his chest on the right side and punctured his lung. Claimant was taken to the emergency room in an ambulance.

Claimant testified he returned to work for the Employer as a supervisor which required no heavy lifting. He said the owners (Ed and Bob Seitz) instructed him to get assistance for any lifting. However, Claimant stated he still has to perform several strenuous duties at the mill, such as operating a saw, whenever other employees are absent. Claimant stated he still does maintenance and electrical work for the Employer and has no plans to retire in the immediate future.

Claimant testified he currently has pain in his right chest and rib cage on a daily and constant basis. He said that although he used to lift weights, walk, jog, and do other strenuous physical activities, he can no longer do so due to his continued pain and trouble breathing. Claimant asserted he began having problems breathing after the work accident, which he felt is aggravated by the dust from sawing wood at work. He said he now has shortness of breath and chronic bronchitis. Claimant maintained that he can longer perform heavy maintenance work at the Employer and that he has to get assistance from a co-worker to handle the hand wrenches at work. He ascribed his problems working to the loss of strength in his right arm.

Claimant said he has received only one pay raise since his 1993 work accident. He testified his net take home pay is currently $667.08 as compared to $650.00 - $660.00 in 1993. Claimant said his gross pay is now between $990.00 to $1000.00 per week and that his gross pay in 1993 was between. $925.00 and $950.00. Claimant also stated his hospital insurance premiums are higher even though he did not know whether the premiums were fully funded by the Employer.

Ms. Debra Susan Partin, daughter of Claimant, testified that she currently sees her father three to four times per month. Partin observed Claimant prior to the in jury being physically active, but she said he is now very cautious about any physical performance. She said she has observed Claimant protecting his right side and acting as if he were short of breath. She believes Claimant is having pain and problems with his right side. She testified that Claimant after the work accident no longer participated in baseball, running, or lifting weights.

Mr. Robert Marion Seitz testified that he was working at the Employer on the date of Claimant's work accident. He agreed Claimant had a very serious injury which necessitated transportation of Claimant to the hospital by ambulance. He confirmed Claimant has worked at the Employer for twenty-nine years and that Claimant is a good employee.

Seitz recalled that Claimant missed two to three weeks of work in 1993 after the accident and then four to five weeks in 1995. Seitz confirmed Claimant still occasionally misses work for physician appointments. He testified Claimant returned to work in the same position as prior to the accident. He said Claimant presently supervises the meal functions, orders supplies, and performs general maintenance with limited lifting, stooping, and bending.

Seitz agreed Claimant does not lift now as much as prior to the accident. He estimated Claimant now only lifts up to fifty to seventy-five pounds. Seitz admitted that he has instructed Claimant to get assistance whenever needed and that Claimant is routinely accommodated for any physical restrictions.

Seitz testified Claimant is earning the same or more since his 1993 accident. He stated that for the past three years the Employer has had financial problems. He confirmed the employees' insurance premiums are fully paid by the Employer. Seitz
admitted that due to financial problems, the Employer has had to eliminate matching contributions to the retirement accounts. He did not whether Claimant had ever contributed to a personal retirement account; however, Seitz stated that all employees were affected by the elimination of the matching contribution.

Seitz said Claimant's injuries have never affected any raises or promotions. He agreed that he asked Claimant to return to work after the accident in a supervisory position even though he felt Claimant could not perform his work duties as he did before the work accident. He has heard Claimant complain of pain since returning to work. Seitz testified he has advised Claimant to be very cautious about his physical condition because they did not want Claimant to re-injure himself. He said Claimant was a good and valuable employee and therefore would not be terminated.

The Clay County medical records indicate Claimant was admitted on February 11, 1993, following a fall from a ladder and injury to the right side of Claimant's chest. Claimant had several broken ribs, acute respiratory distress, an obvious flailed chest, and evidence of a pneumothorax. X-rays showed a long contusion and herniation. Claimant was transferred to a larger facility in Tupelo and admitted under the care of Dr. Benton Hilbun, a thoracic surgeon.

Dr. Ronald E. Powell with the West Point Family Medical Clinic treated Claimant beginning in 1993 and continuing through 1997 for the work accident. Throughout that time period, Dr. Powell noted Claimant's continued complaints of pain and discomfort in the right chest along with coughing. He reviewed various x-rays and CT scans, then referred Claimant to Dr. Hilbun. An x-ray taken March 23, 1993, showed Claimant's right rib fractures were healing with no evidence of pneumothorax.

Dr. Benton Hilbun saw Claimant at the North Mississippi Medical Center on February 11, 1993. His impression was Claimant had a right hemopneumothorax with right pulmonary contusion and flail chest. He admitted Claimant to the hospital and reviewed the x-rays. Claimant was discharged on February 16, 1993, but continued to receive medical treatment from Dr. Hilbun. Dr. Hilbun returned Claimant to limited work activities with the instruction to avoid strenuous work for two to three weeks on February 26, 1993.

On July 9, 1993, Claimant complained of discomfort, and Dr. Hilbun noted Claimant had herniation of his lung between the flail component of the old fractures. Although he did not feel Claimant would have any permanent disability, Dr. Hilbun added that the rib fractures solidified with calcification. He returned Claimant to return to full activity. On December 10, 1993, Dr. Hilbun found a widened interspace on the right chest with the intercostal. muscles not regenerating. He felt Claimant's problems were related to the work accident, but he did not prescribe any further therapy or offer additional treatment.

Dr. William Mariencheck with the Pulmonary Medicine Group treated Claimant for his work injuries beginning in 1994. Dr. Mariencheck found Claimant's pulmonary functions to be reduced in part from the work injuries. He limited Claimant's lifting to no more than fifty pounds and advised Claimant to use a chest band to help with the lung herniation. He considered surgery and consulted with Dr. Ron Powell.

In January 1999, Dr. Mariencheck wrote Dr. Powell about Claimant's continued problems with his breathing capacity. He felt Claimant's overall long performance was stable but expected slow deterioration with time due to aging and chronic bronchitis. Although Dr. Mariencheck felt he did not have reason to believe the work environment was causing the lung function deterioration, he agreed that the work environment could aggravate chronic bronchitis.

Dr. F. Hammond Cole, Jr. with the UT Medical Group treated Claimant upon referral of Dr. Mariencheck beginning April 1995. Dr. Cole performed an open reduction and repair of Claimant's intercostal hernia on September 26, 1995. He found a clear-cut rigid and fixed defect through the site of Claimant's segmental fractures in the ribs. In October 1995, Dr. Cole noted Claimant was "doing well" in spite of continued pain. He advised Claimant to remain off work until the beginning of November 1995.

Dr. Cole did not see Claimant again until almost a year later, in September 1996. He noted that although Claimant was having some discomfort, Claimant was "doing great." He felt Claimant had already reached maximum medical improvement. He continued to examine Claimant annually as needed. In February 1999, Dr. Cole noted Claimant's onset of hoarseness beginning in September 1998. After a chest x-ray, Dr. Cole did not believe Claimant had a recurrence. However, he found Claimant to still have the widening of the mediastinum.
 

I base the following findings on a preponderance of the evidence, including medical proof as required by the Act:

1. Claimant had a work-related accident on February 11, 1993, injuring his lungs and ribs.

2. Claimant's average weekly wage on the date of the work accident was $950.00. The only evidence offered by either, party regarding Claimant's wages was Claimant's testimony.

3. After surgery, Claimant returned to work at the Employer on October 22, 1995. This is in line with Claimant's maximum medical improvement date, which Dr. Cole set at approximately November 1, 1995.

4. As stipulated, there is no remaining issue to be decided regarding temporary disability.

5. The parties agreed there was no remaining issue to be decided regarding the reasonableness and necessity of Claimant's medical treatment.

6. The degree of permanent disability benefits is determined by an actual physical injury and a resulting loss of wage-earning capacity. Spann v. Wal-Mart Stores, Inc., 700 So. 2d 308, 312 (Miss. 1997). By the medical evidence and lay testimony, Claimant has met his burden of proof that he sustained physical injuries to his lung and ribs as a result of his February 1993 work accident.

As to loss of wage-earning capacity, Claimant has returned to work with the same employer earning the same or greater wages as prior to the work accident. This creates a rebuttable presumption that no loss of wage-earning capacity exists. Agee v. Bay Springs Forest Products, Inc., 419 So. 2d 188 (Miss. 1982). In order to rebut the presumption, the injured employee must show that the post-injury earnings aria an unreliable indicator. Spann at 313.

In this matter, Claimant has not overcome the presumption that he has no loss of wage-earning capacity due to his higher post-injury wages. Although Claimant has some physical restrictions, he has worked continuously since October 1995 and has received a pay raise. There is no evidence that Claimant is working more hours or that he has received additional training. Additionally, there is no credible evidence that Claimant is earning sympathy wages from the Employer. Based upon the evidence as a whole, Claimant is not entitled to an award of permanent disability benefits.
 

IT IS, THEREFORE, ORDERED AND ADJUDGED that the Employer-Carrier pay and provide compensation benefits to the Claimant as follows:

Pay for, furnish and provide to Claimant all reasonable and necessary medical services and supplies as the nature of his injury or the process of his recovery may require in accordance with Miss. Code Ann. Section 71-3-15 (Rev. 1995) and the medical fee schedule.

SO ORDERED this the 29th day of March, 2000.

TAMMY GREEN HARTHCOCK
ADMINISTRATIVE JUDGE

ATTEST:
Brenda H. Goolsby, Secretary
___________________________

1. Although both parties stipulated to an average weekly wage of $650 in their pre-trial statements, the Claimant raised the issue at the hearing.