MISSISSIPPI WORKERS' COMPENSATION COMMISSION

THOMAS F. RODDEN                                                                                                                     CLAIMANT

vs.

YELLOW FREIGHT SYSTEM, INC.                                                                                              EMPLOYER

SELF-INSURED

REPRESENTING CLAIMANT :
Hon. Ian McCutchen, Attorney at Law, Jackson, Mississippi

REPRESENTING DEFENDANT :
Hon. David A. Bowers, Attorney at Law, Jackson, Mississippi
 

The Commission heard the above styled cause on January 10, 2000 in the offices of the Mississippi Workers' Compensation Commission in Jackson, Mississippi on the "Employee/Claimant's Petition for Review of Decision of Administrative Judge" by 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 the Administrative Judge" dated August 16,1999.

SO ORDERED , this the 13th day of January, 2000.

MISSISSIPPI WORKERS' COMPENSATION COMMISSION
BY: Mike Marsh
Barney Schoby
Beverly Bolton
COMMISSIONERS

ATTEST:
Brenda H. Goolsby, Secretary
___________________________
 

MWCC NO. 95 15594-F-7656-E-23

THOMAS F. RODDEN CLAIMANT

vs.

YELLOW FREIGHT SYSTEM, INC. EMPLOYER

SELF-INSURED

APPEARING FOR CLAIMANT :
The Honorable Ian McCutchen, Attorney at Law, Jackson, Mississippi

APPEARING FOR EMPLOYER :
The Honorable David Bowers, Attorney at Law, Jackson, Mississippi
 

The claimant, Thomas F. Rodden, sustained an admittedly compensable work related injury on or about September 29, 1995 while in the employ of the Yellow Freight System, Inc. (hereinafter "Yellow Freight"). The hearing on the merits of the claimant's Petition to Controvert was held in the offices of the Mississippi Workers' Compensation Commission, Jackson, Mississippi, on the 9th day of August, 1999. At the hearing, the parties stipulated to the following facts:

1. the average weekly wage of the claimant at the time of injury was $832.36, rendering a compensation rate of $252.59;

2. temporary disability benefits at the rate of $252.59 per week were paid to the claimant from June 10, 1995 through February 5, 1996, for a total sum of $4,957.54, no other sums of temporary disability benefits are claimed by the claimant.

The parties stipulated that the only issue remaining for decision by the Administrative Judge is the extent and nature of permanent disability, if any, coupled with a detennination of loss of wage eaming capacity, if any, resulting from the disability.
 

The claimant, Thomas F. Rodden, is a resident of Terry, Mississippi. He was employed by Yellow Freight in May of 1978 and has worked there continuously as a road driver, operating an eighteen wheel truck over the road. He testified that he drove a specific run which was a bid run from Jackson, Mississippi, to Dallas, Texas, and back to Jackson.

The claimant indicated that the admitted injury occurred on September 29, 1995 while he was driving around the area of Lindale, Texas. Another vehicle hit him broadside, and he sustained lower back, hip and cervical injuries. The claimant was
treated for these conditions by various medical service providers and ultimately reached maximum medical improvement and retumed to his position as a road driver at Yellow Freight on February 5, 1996.

The claimant testified that he continues to experience pain which keeps him from performing his regular daily activities. He testified specifically that he does not work as much at Yellow Freight after the injury, that he does not clean up as much around his home and yard, and that he does not work on the family vehicles as often as a result of his injury and the residual pain. He testified that he continues on prescription Xantac 300 and Darvocet.

The claimant testified that prior to the injury, he performed three runs (JacksonDallas-Jackson) per week on average; subsequent the injury he performs only two runs per week on average. He admitted that he is now earning greater wages than he was prior to the injury, but he attributed this fact to higherpermile pay since 1995 as well as different BlAs which require him to drive more miles for the same run since 1995, enhanced hourly rates for breakdowns, and holiday pay.

According to the claimant, he often only performs two runs per week now due to "bad pain" in his low back, shoulders, and tail bone, together with stomach problems. He testified that on the recommendation of his physician, Dr. Goel, when he is in pain he takes bed rest and uses heating pads. According to the claimant, due to following the physician's instructions, he is unable to regularly drive three runs per week.

On cross-examination the claimant testified to the following salient facts:

• Since the claimant returned to work on February 9, 1996 from the injury which is the subject matter of this claim, he has been involved in an additional motor vehicle accident in August of 1998, from which he has sustained injury ¹ but for which he has not filed a workers' compensation claim to date.

• Since the claimant returned to work on February 9, 1996, he earns the same or greater rate of pay under his Teamsters' contract, receives the same Teamsters' benefit package, receives no special treatment from Yellow Freight principals or colleagues, has no need of aids to perform his job ² , and receives no special assistance or consideration from Yellow Freight in order to perform his job.

• The claimant has sought no medical benefits related to this injury since 1997. ³

• The claimant admitted that he has long periods of absence from work at Yellow Freight but has not attributed these absences to a workers' compensation injury.

• The claimant's long periods of absence causes the claimant not to earn mileage pay during these absences.

• The claimant has not sought alternative employment with Yellow Freight or any other potential employer.

Mr. Rodden is seen again [August 27, 1998] complaining of pain in his lower back. Pain is radiating to both hips, sometimes the left leg. This pain gets aggravated at times but is at times improved. PT is taking meds including Darvocet-N and Volterin (sp?) (sic) The patient gets irritation of the stomach off and on with ulcers due to the pain meds. He is taking Zantac 2X daily but even that is not sufficient at times he has to take it three times a day to relieve his ulcer pains. I believe the PT has had recurrent peptic ulcers which heals (sic) and then comes back in the form of gastritis due to the pain meds. PT has also been under a lot of stress. PT cannot take many nerve meds because it makes his muscle spasms (sic). It gets better by bed rest and sleep and holding off the truck driving. The PT is advised to continue hard mattress heating bad and Darvocet-N, Motrin and the Zantac 300 MG 2-3X daily, return back in one month.

As far as his prognosis is concerned the PT's peptic ulcer disease is going to be recurrent as long as he is taking meds. They will keep on coming and going. As far as the back is concemed PT has obtained maximum medical improvement and because of the chronic nature of pain he has 8% partial impairment loss of function of the entire body because of the spine. If the symptoms of gastritis get severe he may need endoscopic exam in the future as needed. ⁴

Because of the undersigned's familiarity with an of the medical records contained in the Commission file, and because of the undersigned's personal knowledge of counsel for Yellow Freight's familiarity with all of the medical records contained in the Commission file, andbecause the 1995 injuryis admitted by Yellow Freight, the undersigned could make the leap-totally unsupported by the record-that Dr. Goel's testimony is related to the instant injury. However, considering the claimant's testimony relative to a second motor vehicle accident resulting in injury in August of 1998, it is impossible for the undersigned to make that leap without substantially prejudicing the employer. A more careful review of the content of the medical testimony offered on behalf of the claimant would be, perhaps, warranted in the future.
 

Upon consideration of the lay and expert testimony in this matter, along with documentary evidence and together with the applicable law, the Administrative Law Judge finds as follows:

1. The claimant sustained an admittedly compensable injury while in the employ of Yellow Freight as a result of a motor vehicle accident on September 29, 1995.

2. The claimant was temporarily totally disabled from September 29, 1995 until February 5, 1996.

3. The claimant has sustained an 8% permanent medical impairment to his body as a whole as of August 27, 1998. However, there is no evidence in the record to suggest that this impairment is related to the instant injury. Indeed, the impairment may be attributable to other injuries and, in fact, the injury which, based on the claimant's testimony, appears to be closer in time to the date of the physician's testimony.

4. The claimant has failed to demonstrate by credible evidence that he has sustained a loss of wage eaming capacity as a result of the 1995 injury. The claimant has the burden to prove that he has sustained a disability as defined under the Mississippi Workers' Compensation Act (hereinafter "the Act"). In order to meet this burden, he is obligated to demonstrate by the weight of credible evidence that he sustained a work-related injury, that as a result of the injury he has sustained a permanent medical impairment, and that he has also suffered disability, as defined by the Act, as a result of the medical impairment. Assuming arguendo that the claimant had proven a permanent medical impairment related to the 1995 accident which is the basis of this claim, he has failed to prove that he has sustained a disability as defined by the Act.
 

IT IS, THEREFORE, ORDERED AND ADJUDGED that the claim of the employer provide to the claimant medical treatment, services and supplies pursuant to section 71-3-15 of the Act, as amended, for such period as the nature of the claimant's 1995 injury and the process of the claimant's recovery may require, such fees and charges to be limited to such charges as prevail in the same community for similar treatment and to be subject to regulation by the Commission and its fee schedule.

All other relief sought by the claimant be, and the same hereby is DENIED .

SO ORDERED this the 16th day of August, 1999.

LYDIA QUARLES
ADMINISTRATIVE LAW JUDGE

ATTEST:
Brenda H. Goolsby, Secretary
___________________________

1. The claimant testified that as a result of the August 1998 motor vehicle accident, he has two bulging disks (C5 and C6), and has sustained injury to his left knee, ankle, and elbow. He testified that he has not sought medical treatment for the 1998 injuries "because of harassment of Yellow Freight."

2. The claimant testified that he carries a back belt for use in dropping and hooking but the evidence suggests that this has not been prescribed by a physician.

3. According to the claimant, the reason he has not sought medical treatment for this injury is that "it's such a big hassle."

4. See exhibit CL-1.