RANDY HARBER CLAIMANT
vs.
ABLEST SERVICE CORPORATION
EMPLOYER
AND
ZURICH AMERICAN INSURANCE COMPANY
CARRIER
REPRESENTING CLAIMANT:
Honorable Robert R. Morris, Attorney at Law,
Batesville, Mississippi
REPRESENTING DEFENDANT:
Honorable Greg Johnston, Attorney at Law, Jackson,
Mississippi
The Commission heard the above styled cause on June 5, 2000, in the offices of the Mississippi Workers' Compensation Commission, Jackson, Mississippi on the Claimant's "Petition for Review" by the Full Commission.
Having heard the arguments offered on behalf of the parties and having thoroughly studied the record and the applicable law, the Commission affirms the "Order of Administrative Judge" dated December 7, 1999.
MWCC Chairman, Ben Barrett Smith, recused himself and did not take part in the hearing, the deliberations or the decision.
SO ORDERED, this the 6th day of June, 2000
MISSISSIPPI WORKERS' COMPENSATION COMMISSION
BY: Barney Schoby
Beverly Bolton
COMMISSIONERS
ATTEST:
Brenda H. Goolsby, Secretary
___________________________
MWCC NO. 93 047052-F-8409-A
RANDY HARBER CLAIMANT
vs.
ABLEST SERVICE CORPORATION
EMPLOYER
AND
ZURICH AMERICAN INSURANCE COMPANY OF ILLINOIS
CARRIER
APPEARING FOR THE CLAIMANT:
Robert R. Morris, III, Esquire, Batesville, Mississippi
APPEARING FOR THE EMPLOYER AND CARRIER:
Forrest W. Stringfellow, Esquire, Jackson, Mississippi
On October 11, 1996, the claimant filed a petition to controvert alleging that on February 23, 1993, he received a work-related injury to his back. The employer and carrier admitted the compensability of the injury, provided medical services and supplies, and paid temporary total disability benefits from February 23, 1993, until February or March of 1997, in other words, approximately 223 weeks of benefits, for a total of $24,708.12. A dispute arose, however, regarding the extent of disability resulting from the work injury, and a hearing was held in the Lafayette County Courthouse in Oxford, Mississippi, on November 18, 1999.
There was a prior hearing in this matter, on August
26, 1997, on a motion for medical treatment filed by the claimant. By order
dated December 4, 1997, Administrative Judge Tammy Green Harthcock found
that the claimant's motion for medical treatment was well taken and the
employer and carrier should pay for the claimant to undergo a liver-core
biopsy. On September 18, 1998, the Commission affirmed Administrative Judge
Harthcock's order for medical treatment. The transcript of the prior hearing
and the exhibits received at that hearing are included in the record of
this case, as well as the two exhibits received at the hearing on November
18, 1999.
The following exhibits have been received into evidence in this matter:
2. Affidavit and medical records of Dr. James McClure.
3. Affidavit and medical records of Dr. J. R. Lindermuth.
4. Employer's First Report of Injury.
5. Deposition of Dr. John P. Howser, dated August 15, 1997.
6. Hospital bill dated February 1996.
7. Deposition of De. Riley Jones dated August 7, 1997.
8. Deposition of Dr. Stephen M. Waggoner, dated April 16, 1999.
9. Continued deposition of Dr. John P. Howser, dated July 29, 1999.
The parties stipulated that the claimant's average
weekly wage on February 23, 1993, was $170.00.
The primary issue to be resolved by the Administrative
Judge is the extent of disability or loss of wage-earning capacity resulting
from the admittedly compensable work injury.
Randy M. Harber is forty-four years old and a resident of Byhalia, Mississippi, a town in Marshall County which is about a forty-five minute drive from Oxford. Mr. Harber is married; his wife has been a paraplegic for thirty-three years. He has an eighth or ninth-grade education, and he obtained a GED certificate in 1979. He testified at the hearing in an articulate fashion.
Mr. Harber testified that he has been a licensed apprenticed electrician for seventeen years or more, although he has not been able to update his license recently. He received his electrician training on the job, and he has done residential and commercial electrical work. He said he could do complete wiring of a house or a business - running conduits, pulling wires, putting in switches and plugs and light fixtures - whatever needed to be hooked up electrically.
For Ablest Service Corporation, Mr. Harber was working for a bubble gum factory doing a temporary job during the winter months when there was no construction work. He had done temporary jobs for two or three years, usually production line work in factories or warehouses.
After the work injury on February 23, 1993, Mr. Harber received medical treatment at Baptist Minor Med in Memphis and then beginning in April 1993 from Dr. Riley Jones, orthopaedic surgeon in Memphis. Dr. Jones recommended physical therapy and other conservative measures. In May 1993, Dr. Jones referred him to Dr. Greg Cates for a psychological evaluation and subsequently to Dr. Joe Buchignani, neurosurgeon in Memphis, now deceased.
Dr. Jones released him to return to work on May 24, 1993. Mr. Harber testified that he tried to work part of one day, then he went to Dr. John Howser, neurosurgeon in Memphis, for a second opinion. Dr. Howser did nerve blocks and then surgery in February 1994. The carrier sent Mr. Harber to Dr. J. R. Lindermuth, a neurosurgeon, for another opinion in October 1993 and also to Dr. Ragsdale, an orthopaedic surgeon. After the surgery, Dr. Howser sent him to Dr. Manugian, an orthopaedic surgeon, who put Mr. Harber in a body cast. Then Dr. Howser recommended a bone fusion. Before that surgery, however, Mr. Harber gave blood and there were traces of hepatitis in his blood, and the doctors advised a liver-core biopsy. The carrier refused to pay for the biopsy, but Administrative Judge Harthcock ordered the carrier to provide this medical service.
Mr. Harber saw Dr. Gerald Lieberman, gastroenterologist, who discovered Mr. Harber had a liver disorder that he apparently contracted during the initial back surgery. Mr. Harber has also seen Dr. Manugian, another orthopaedic surgeon in Memphis, who referred him to his partner, Dr. Stephen M. Waggoner. Dr. Waggoner did some diagnostic testing and recommended physical therapy, subsequently releasing Mr. Harber back to Dr. Howser. Mr. Harber said he sees Dr. Howser once a month. Dr. Howser refers Mr. Harber to Dr. Gotkurk for blocks.
Mr. Harber has not received any benefits since February 1997. He has not sought any employment since the work injury of February 1993. He said he believes he could not give anyone an honest day's work and Dr. Howser has not released him to return to work.
According to Mr. Harber, he has talked with some people about going to work. He testified, however, that when he tells them about his bad back and the fact that he has not been released by his doctor, he gets no offer of work.
Although Mr. Harber was a licensed electrician, but he does not believe he could go back into electrical work. He testified at the first hearing that as an electrician he was required to do overhead work with a 25-pound drill, to climb a ladder, to stoop down low, and to crawl under houses and in attics. He typically worked as an electrician in spring, summer, and fall, when there was construction work, but not in the winter months.
Mr. Harber testified that since August 1997, his condition has grown steadily worse. He has pain in his lower lumbar area, numbness in his legs, particularly the left leg. He cannot sit or stand, for any long period of time. He has difficulty sleeping at night. He cannot do anything around the house. He cannot pick up a basket full of laundry without hurting. He never has a pain-free moment, although he gets temporary relief from the pain medicine and the nerve blocks prescribed by Dr. Howser.
Dr. Robert Riley Jones, board-certified orthopaedic surgeon with the Memphis Orthopaedic Group, testified by deposition dated August 7, 1997, that he first saw Randy Harber on April 9, 1993, for complaints of back pain following an injury on February 23, 1993. Dr. Jones recommended an MRI which showed "only mild desiccation [or drying out] of L5-S1," and no ruptured disk. (Exhibit 7, p. 8). He said this was a chronic, degenerative condition. Dr. Jones prescribed an epidural block and also ordered a bone scan. When Dr. Jones examined Mr. Harber again, he noted inconsistencies on his examination. He ordered more physical therapy and an evaluation by Dr. Greg Cates.
In evidence is a report of C. Greg Cates, Ed.D., dated May 6, 1993. Dr. Cates saw Randy Harber on May 6, 1993, at the request of Dr. Riley Jones. Dr. Cates' assessment was that none of Mr. Harber's complaints were do to a behavioral source. He said Mr. Harber should continue in his therapy program, maybe undergo traction, and then be released to return to work in a light to medium job.
On May 14, 1993, Dr. Jones noted Mr. Harber had been in a car wreck. He recommended continued work hardening therapy. Mr. Harber continued to exhibit inconsistencies to Dr. Jones, who commented on June 18, 19913, "In the fixed position he does multiple gyrations and I've never seen anybody with SI joint irritation do this." (Exhibit 7, p. 15).
Dr. Jones told Mr. Harber he could return to his regular work duty on May 24, 1993. Dr. Jones said he had reached maximum medical improvement with no permanent partial impairment and no restrictions.
Dr. Jones opined that Mr. Harber did not need a fusion, and he discussed it with Dr. Howser. Dr. Jones said Mr. Harber was x-rayed three times looking for, motion in the spine, and none was found. Mr. Harber underwent three bone scans, all of which were normal. Dr. Jones said he did not know why Dr. Howser did the first operation on Mr. Harber when his myelogram and CT scan were both normal.
Dr. Jones sent Mr. Harber to Dr. Joseph Buchignani, a neurosurgeon who subsequently died before Dr. Jones' deposition. Dr. Jones said
The medical records of Dr. J. R. Lindermuth of the Memphis Neurosurgical Associates were received into evidence. Dr. Lindermuth examined Randy Harber on October 18, 1993, at the referral of the workers' compensation carrier. Dr. Lindermuth noted,
Dr. Joseph Miller, board-certified neurosurgeon in Memphis, testified by deposition dated June 17, 1997, that he first saw Randy Harber on September 6, 1995, at the referral of Dr. John Howser. Mr. Harber had previously seen a partner of Dr. Miller's, Dr. Joseph A. Buchignani, for evaluation on June 22, 1993, at the referral of Dr. Riley Jones. Mr. Harber told Dr. Miller he continued to have pain in his back and left leg after lumbar disc surgery in February 1994. He also had complaints of pain in the scapular area, in the thoracic area under his right shoulder blade.
Dr. Miller noted Mr. Harber had callused hands, although Mr. Harber denied doing any type of work except around the house. Dr. Miller said the calluses meant he had "been doing some very significant work with his hands." (Exhibit 1, p. 12).
Mr. Harber's thoracic MRI was normal. Dr. Miller scheduled a thoracic and lumbar myelogram and it was carried out on September 12,1995. The myelogram was normal. Dr. Miller said he thought surgery would not benefit Mr. Harber, and he did not see him again. Dr. Miller said that on September 12, 1995, there was no reason why Mr. Harber could not be gainfully employed, He saw no need for additional medical treatment or any restrictions for Mr. Harber. Dr. Miller said he could not find any reason for Mr. Harber's back pain except simply postoperative. Dr. Miller said Mr. Harber did not have spondylolisthesis.
Dr. Miller testified that he told Mr. Harber that he could find nothing wrong with him and surgery would not help him. "But as I was walking out of the room, he told me he was going to go ahead and have the fusion." (Exhibit 1, p. 20).
The medical reports of Dr. James G. McClure, orthopaedic surgeon in Memphis, were received into evidence. Dr. McClure examined Randy Harber on January 11, 1996, for complaints of sharp pain in his lower back and to the left. Dr. McClure examined x-rays taken on October 18, 1993, that showed spondylolisthesis at L5 and an MRI taken April 12, 1993, that showed mild desiccative changes at the L4 and L5 levels without evidence of rupture. Dr. McClure diagnosed
Dr. Stephen M. Waggoner, board-certified orthopaedic surgeon with the Memphis Orthopaedic Group, testified by deposition dated April 16, 1999, that he saw Randy Harber at the referral of his partner, Dr. Manugian. He first saw Mr. Harber on November 3, 1998, for evaluation of chronic lower back pain. Mr. Harber told Dr. Waggoner he had been scheduled for a fusion procedure that was not ever done. Dr. Waggoner reviewed x-rays taken for Dr. Manugian and an MRI scan taken in October 1998. Dr. Waggoner diagnosed degenerative disc disease at two levels in the lumbar spine, L-4-5 and L-5-S-1. He recommended Mr. Harber undergo a discogram of the lumbar spine.
When asked if he thought Mr. Harber was a good candidate for a lumbar fusion, Dr. Waggoner responded, "I have very serious doubts whether a lumbar fusion would help him, and at this point I would not recommend that he undergo the surgery." (Exhibit 8, p. 10). He said Mr. Harber may require intermittent visits to physicians for evaluation and possible physical therapy, anti-inflammatory medicine, or other medication. Dr. Waggoner testified that he thought Mr. Harber was able to go out and be employed in some capacity and live a normal life. Dr. Waggoner last saw Mr. Harber on November 17, 1998.
Dr. John P. Howser, board-certified neurosurgeon in Memphis, testified by deposition dated August 15, 1997, that he first saw Randy Harber on July 1, 1993, for complaints of lumbar and thoracic pain and numbness and tingling of both legs. Mr. Harber underwent a myelogram, post myelogram, CT scan, EMG testing, and an MRI. Dr. Howser particularly noted spondylolisthesis at L5-S1, a slight slippage of the vertebra forward, a congenital abnormality that can cause pressure on the S1 nerve root. Dr. Howser recommended an orthopedic consultation with Dr. Ragsdale.
Then Dr. Howser performed surgery on February 4, 1994, a left subtotal hemilaminectomy. Dr. Howser said Dr. Manugian saw Mr. Harber and recommended a lumbar stabilization cast. Dr. Howser recommended a fusion, and then the traces of hepatitis B and C showed up in Mr. Harber's blood.
When asked about an impairment rating should Mr. Harber not have the fusion, Dr. Howser responded that he would assign a 10% rating to the body as a whole as a result of the back surgery he had already performed. He said a fusion would result in a greater percentage of disability. Dr. Howser said Mr. Harber would never be able to do lifting, bending, and stooping safely.
Dr. Howser testified at a continued deposition on July 29, 1999, that he saw Randy Harber on August 25, 1997, for complaints of right low back pain. On September 29, 1997, Mr. Harber complained of being worse, with pain in his right low back, sacroiliac area, and buttocks. Dr. Howser ordered lumbar epidural and caudal epidural blocks. On November 4, 1997, Mr. Harber told Dr. Howser the blocks helped, but he had some problem with his knee. Dr. Howser referred Mr. Harber to Dr. Manugian for his knee and to Dr. Gerald J. Lieberman, gastroenterologist in Memphis, regarding his liver disease. Mr. Harber was better on May 5, 1998, but on July 22, 1998, however, he said he was worse after a long trip.
Dr. Howser said Mr. Harber's complaints of back pain did not change to any degree after the surgery. Dr. Howser said that during the surgery he saw instability of the back and he thought a fusion was justified. He said, however, that neurosurgeons do not do fusions.
When asked about a return to work, Dr. Howser said he thought it would be dangerous for Mr. Harber to return to any type of work. He said there is some work Mr. Harber could do, perhaps lifting up to thirty pounds. But Dr. Howser thought if Mr. Harber returned to work he might do something to injure his back. Dr. Howser said he had never released Mr. Harber back to full duty or told him to return to work.
On the other hand, Dr. Howser said he thought
Mr. Harber had reached maximum medical improvement on August 15, 1997,
except for his need for some blocks. Dr. Howser thought Mr. Harber would
continue to have low back pain and numbness in his legs. Dr. Howser said
his impairment rating of 10% to the body as a whole had not changed.
After carefully considering the pleadings, pretrial statements, lay and medical evidence, the demeanor of the witness at the hearing, and the applicable law, the Administrative Judge finds as follows:
1. Randy M. Harber received an admittedly compensable, work-related injury to his lower back on February 23, 1993.
2. Mr. Harber's average weekly wage on February 23, 1993, was $170.00, as stipulated by the parties.
3. Because of the work injury, the claimant was temporarily totally disabled from February 23, 1993, until August 15, 1997, the date assigned by Dr. Howser, giving him the latest possible date assigned by any physician, that is, giving Mr. Harber the benefit of any doubt.
4. Mr. Harber has not proved that he has sustained a permanent occupational disability as a result of the work injury and surgery of February 1994. He has not attempted to return to work for the employer or locate other gainful employment, and he indicated at the hearing that anytime he mentioned to someone about possibly returning to work he talked about his back surgery and that he had not been released by his treating physician, in other words, not a very positive approach to job inquiry.
It is true that Dr. Howser has not released Mr. Harber to return to work because he thought Mr. Harber might injure himself again, but he assigned a date of maximum medical improvement subject only to the brief temporary periods of disability following blocks. Dr. Howser has recommended a back fusion, but he is a neurosurgeon and neurosurgeons do not do back fusions, and the orthopaedic surgeons who do back surgeons have said that Mr. Harber would not benefit from such an operation. Dr. Howser's insistence on the back fusion and on not releasing Mr. Harber to return to some type of gainful employment, even with restrictions, do not make sense in the light of the opinions of the various orthopaedic specialists who have seen Mr. Harber.
Additionally, Mr. Harber testified in a quite
articulate manner. He has a GED certificate and valuable training and job
skills as an electrician. He stated that he could do anything that needed
to be done in commercial and residential electrical work. At the time of
the work injury, he was earning $170.00 a week, less than minimum wage
for forty hours of work a week. He has not tried to find even light employment,
and he has not carried his burden of proof about loss of wage-earning capacity.
IT IS THEREFORE ORDERED that the employer and carrier pay workers' compensation benefits to the claimant as follows:
1. Temporary total disability benefits at the rate of $113.33 per week beginning February 23, 1993, and continuing until August 15, 1997, with credit for any such payments already made by the employer or carrier or for wages earned by the claimant during this time;
2. Penalties and interest on all due and unpaid compensation benefits;
3. Provide medical services and supplies as required by the nature of the claimant's injury and the process of his recovery therefrom pursuant to Mississippi Code Annotated §71-3-15 (1995), General Rule 12, and the Medical Fee Schedule.
SO ORDERED, this the 7th day of December, 1999.
LINDA A. THOMPSON
ADMINISTRATIVE JUDGE
ATTEST:
Brenda H. Goolsby, Secretary