MWCC NO. 96-18178-G-2463
FLOYD W. NEWCOMB CLAIMANT
vs.
WAL-MART #07-6811
EMPLOYER
AND
NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH,
PA
CARRIER
REPRESENTING CLAIMANT:
Glen W. Hall, Esquire, Jackson, MS
REPRESENTING EMPLOYER/CARRIER:
Roxanne P. Case, Esquire, Jackson, MS
This matter was heard by the Commission on September
25, 2000 pursuant to the Petition for Appeal filed by the Employer and
Carrier. The Employer and Carrier take issue with an Order of Administrative
Judge dated March 30, 2000 which found that Floyd Newcomb sustained a compensable
injury to his back on November 5, 1996 while working for Wal-Mart and was
entitled to benefits accordingly. In the end, we reverse.
Floyd Newcomb filed a Petition to Controvert claiming that he was entitled to workers' compensation benefits for an accident in which he was involved on November 5, 1996. It was on November 5, 1996 that Mr. Newcomb was driving a truck for Wal-Mart when he struck a deer. He claims to have suffered compensable injuries to his back and neck as a result.1 The Employer and Carrier admit that Mr. Newcomb was involved in an accident on November 5, 1996, as just described, but they deny that any compensable back or neck injury ensued. It is the position of the Employer and Carrier that any back or neck injury thereafter suffered by Mr. Newcomb is in no way related to his November 5, 1996 accident.
The burden of proof, of course, is on Mr. Newcomb.
In order to recover benefits under the Workers' Compensation Law, he must
prove by a preponderance of the credible evidence that the injury for which
he seeks compensation was caused, contributed to or aggravated by his truck's
November 5, 1996 encounter with a deer. Miss. Code Ann. 71-3-3(b)
(Rev. 2000). The existence of a compensable injury cannot be established
merely by surmise, conjecture or speculation; "recovery in any case must
be based on reasonable probabilities and not on mere possibilities." See
Dunn, Mississippi Workers' Compensation §§264,
265, 267 (3d ed. 1982 & Supp. 1988); South Mississippi Elec. Power
Ass'n. v. Graham, 587 So. 2d 291, 294
(Miss. 1991).
Mr. Newcomb testified that on November 5, 1996 he was driving on Highway 27 near Vicksburg, MS at approximately 2:30 p.m. when a deer came crashing through the windshield of his truck. According to Mr. Newcomb, the impact broke the steering wheel and did substantial damage to the dash board of the truck, in addition to knocking him "goofy". He was taken to the Parkview Hospital in Vicksburg and released that same evening.
Mr. Newcomb first returned to Wal-Mart on light duty. He followed up with Dr. Fisk on November 25 and thereafter returned to work driving a truck for Wal-Mart as of December 2, 1996. He did not seek any further medical treatment until April 14, 1997 when he again consulted Dr. Fisk. Mr. Newcomb claims he sought treatment at this time for chronic back pain which he thought might involve his kidneys. According to Mr. Newcomb, Dr. Fisk gave him some medication for low back pain. Again, Mr. Newcomb returned to regular duty and did not see a doctor again until July 28, 1997. This time Mr. Newcomb found himself in "bad pain" after waking up about 8:00 a.m. one Saturday morning just prior to July 28 with the intention of helping some fellow Wal-Mart employees cut firewood on his place.
After seeing Dr. Fisk on July 28, 1997, Mr. Newcomb was taken off work. He says he promptly notified Mr. Steve Prestridge at Wal-Mart of this problem, and Mr. Prestridge allegedly assured him everything would be taken care of. Mr. Newcomb says he specifically asked Mr. Prestridge about workers' compensation coverage for the problem but Mr. Prestridge suggested they file the claim through Wal-Mart's group health plan so as not to delay payment.
Mr. Newcomb says that Dr. Fisk was not able to continue treating him because he was unable to undergo an MRI test Dr. Fisk recommended. Therefore, Mr. Newcomb sought chiropractic treatment from Dr. Guist. According to Mr. Newcomb, Dr. Guist found his back problem too involved for chiropractic care and referred him to Dr. David Collipp for treatment. Before seeing Dr. Collipp, however, Mr. Newcomb says he was seen at Wal-Mart's request by Dr. Nutik in Louisiana. It is Mr. Newcomb's understanding that he was ultimately diagnosed with a herniated disc for which he continues to be treated by Dr. Collipp. He has not worked since July 28, 1997 and is receiving social security disability benefits in addition to disability insurance benefits pursuant to a plan he paid for through his employment.
Mr. Newcomb testified that his back hurts continuously
and that he cannot stand for very long periods of time. He also stated
that he gets cramps, or "charley horses", in his legs every 15 to 20 minutes,
and that he can barely dress himself day in and day out. Mr. Newcomb admitted
to having sustained a back injury on his job with Wal-Mart in 1993 and
being diagnosed with a herniated disc, but he denied any other accidents
or events subsequent to that other than the motor vehicle accident on November
5, 1996. He claims that his back has plagued him continuously since November
5, 1996 and that he reached his breaking point in July 1997 and had to
quit work.
Steve Prestridge works in the Wal-Mart transportation office and is the person who completed a workers' compensation First Report of Injury form following Mr. Newcomb's accident on November 5, 1996. This form was completed on November 6,1996 and it listed Mr. Newcomb's injuries as lacerations to the head, deep muscle bruise to the right thigh, along with multiple contusions and abrasions. Mr. Prestridge talked with Mr. Newcomb before completing this form and he says Mr. Newcomb did not complain of any neck or back pain, or anything else other than what was listed on the form. Following this accident Wal-Mart placed Mr. Newcomb on light duty until December 2, 1996, at which time he resumed his normal duties.
Mr. Prestridge testified that Mr. Newcomb worked seemingly without incident or complaint until late July 1997 when he came to Mr. Prestridge requesting time off for back pain. According to Mr. Prestridge, Mr. Newcomb did not relate this onset of back pain to his November 5, 1996 injury and Wal-Mart treated the situation as a garden variety, non-work related medical leave of absence. A leave of absence form was completed by Wal-Mart and Mr. Newcomb, and this form was sent to Dr. Guist to complete in part. Mr. Prestridge testified that this same form is used for both work related and non-work related claims, and though the form has a place to mark if the absence is workers' compensation related, neither Mr. Newcomb nor Dr. Guist so indicated.
Mr. Prestridge also testified that Mr. Newcomb
never claimed any relationship between his need for medical treatment in
April 1997 and his accident on November 5, 1996. As far as Wal-Mart knew,
Mr. Newcomb had fully recovered from the minor injuries he sustained in
this accident and had requested leave of absence for non-work related reasons.
The records from Parkview Hospital concerning Mr. Newcomb's admission on November 5, 1996 do not reflect any back or neck problems, and no serious injuries otherwise. He was treated for soft tissue injury to his right thigh and multiple small lacerations, and released the same day with instructions to follow up with Dr. Porter in one week if he was no better.
The records furnished by Dr. John W. Fisk reveal that Mr. Newcomb was seen November 25, 1996 for follow up "of sever contusion to the right thigh" as the result of his earlier motor vehicle accident. Mr. Newcomb reported that he was no longer taking medication for the pain and that his right thigh pain and swelling was much improved. Significantly, no mention was made of any neck or back problems. Dr. Fisk released Mr. Newcomb for full duty and without restriction as of December 2, 1996.
When Mr. Newcomb returned to Dr. Fisk on April 14, 1997, he reported low back pain of two weeks duration, with no radiation of the pain and no numbness or weakness, and lower abdominal discomfort accompanied by frequent urination. Significantly, Mr. Newcomb did not report any specific trauma and did not otherwise relate this apparently recent onset of low back pain to his November 5, 1996 accident. Dr. Fisk treated him for musculoskeletal back pain and advised Mr. Newcomb to follow up as needed.
Mr. Newcomb was not see again until July 28, 1997, at which time he reported to Dr. Fisk that he had left lower back pain radiating into his left thigh and calf. Significantly, the onset of this pain was reported as being about three days prior, and no specific trauma or accident was reported. According to Dr. Fisk's note, Mr. Newcomb "just woke up Sat[urday] morning w[ith] leg hurting" and the pain "has been progressively worse." Mr. Newcomb mentioned to Dr. Fisk that he sustained a ruptured disc three or four years earlier but he made no claim that his current back problem might be related to his November 5, 1996 accident.
In the interim, on July 11, 1997 Mr. Newcomb underwent a company required physical conducted by Dr. Fisk. No back or leg problems were noted and Mr. Newcomb was deemed qualified at that time to continue as a truck driver for Wal-Mart.
On September 8, 1997 Mr. Newcomb underwent an evaluation by Dr. Gordon P. Nutik, an orthopedic surgeon. Dr. Nutik concluded as follows:
This patient has developed complaints about the lower back, which he states dated right back to the time of the accident. Review of the records do not support that, in that there is no mention of any lower back complaint at the time of the accident and the first mention of lower back pain occurs on April 14, 1997 and in that doctor's record there is no recall of any trauma. On July 28, 1997, he has the beginning of referred complaints into the left lower extremity and again indicates that he could recall no injury. This patient does have a significant prior history of low back pain three or four years earlier which indicates the likelihood of a pre-existing low back problem. From review of the records, the records do not support any relationship of the current low back complaints to the reported accident on November 5, 1996 and I would have to believe from the records that the onset of low back pain is new and unrelated to the motor vehicle accident.
Dr. Collipp testified that his opinion certainly
would be otherwise if the historical records actually showed that Mr. Newcomb
had not previously complained of continuous low back pain since the accident.
In this event, Dr. Collipp would be more inclined to believe his current
back and leg problems were the result of some intervening injury. In fact,
when confronted with Mr. Newcomb's prior medical records which contain
no mention of any continuous low back and leg pain, Dr. Collipp stated
that he could not relate any of Mr. Newcomb's current problems to
the November 5, 1996 accident.
When all of the evidence is considered, It is our conclusion that Mr. Newcomb has failed to prove by a preponderance of the credible evidence that his current back and leg problems are related 'in any way to his November 5, 1996 accident. We are aware that the Workers' Compensation Law should be construed liberally in favor of compensation in close cases, but "[e]ven a liberal interpretation of the Act must not weaken the necessity of making proof prerequisite to recovery, for this would extend the rule beyond its legitimate scope. If the proof is such only as to leave the matter to surmise, conjecture or speculation, the burden is not met." Dunn, Mississippi Workers' Compensation §267 (3d ed. 1982).
In this case, the evidence offered by Mr. Newcomb does not even raise a close question. It would be pure conjecture on our part to conclude that his current back and leg problems are somehow related to his November 5, 1996 accident. Chief among the items which cause us to doubt this claim are his failure to seek medical care more than three times between November 5, 1996 and July 28, 1997, his failure to report any back pain when he first saw Dr. Fisk following the accident on November 25, 1996, his failure to later relate his back pain to this accident when he saw Dr. Fisk on April 14 and July 28, 1997, the fact that he successfully passed a physical examination conducted by Dr. Fisk on July 11, 1997, and the fact that he continued to work as a truck driver without apparent difficulty until the end of July 1997, despite his claim now that his lower back pained him continuously since November 5, 1996.
We find instead that, as a result of this accident, Mr. Newcomb sustained a soft tissue injury to his thigh and multiple lacerations which resolved in short order. He reached his maximum medical improvement from these injuries on December 2, 1996 and suffered no permanent disability as a result.
The Order of Administrative Judge is therefore reversed and held for naught. The Employer and Carrier are hereby ordered to pay Mr. Newcomb whatever temporary disability benefits are due him for the period November 5, 1996 to December 2, 1996, with credit for any such benefits previously paid; and, to pay for and provide appropriate medical treatment for the minor injuries he suffered in the November 5, 1996 accident. Mr. Newcomb's claim for benefits based on a back and/or neck injury is hereby denied and dismissed.
SO ORDERED this the 4th day of October, 2000.
MISSISSIPPI WORKERS' COMPENSATION COMMISSION
BARRETT SMITH
BEVERLY BOLTON
ATTEST:
Joann McDonald, Secretary
__________________________
MWCC NO. 96 18178-G-2463
FLOYD W. NEWCOMB CLAIMANT
vs.
WAL-MART 307-6811
EMPLOYER
AND
NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH,
PA.
CARRIER
APPEARING FOR CLAIMANT:
Honorable Glen Wesley Hall, Attorney at Law,
Jackson, Mississippi
APPEARING FOR DEFENDANTS:
Honorable Roxanne P. Case, Attorney at Law, Jackson,
Mississippi
A hearing was held on October 22, 1999, at 11:45 a.m. at the Mississippi Workers' Compensation Building located in Jackson, Mississippi. Prior to going onto the record in this cause, the parties entered into a singular stipulation concerning the average weekly wage of the claimant which was determined to be $1,169.20 per week.
Evidence was entered into this cause as follows:
Claimant Exhibit 1, Deposition of Dr. David C. Collipp; Claimant Exhibit
2, Medical Records Affidavit of Dr. Lon Alexander; Claimant Exhibit 3,
MRI Results from the Mississippi Diagnostic Imaging Center, Ltd.; Employer
and Carrier Exhibit 4, Medical Records Affidavit of Dr. Gordon Nutik; Employer
and Carrier Exhibit 5, Office Notes of Dr. John W. Fisk, Jr.; Employer
and Carrier Exhibit 6, Medical Records Affidavit of Dr. John W. Fisk, Jr.;
Employer and Carrier Exhibit 7, Medical Records Affidavit of Parkview Hospital;
Employer and Carrier Exhibit 8, Wage and Employment Information; Employer
and Carrier Exhibit 9, Claims Management, Inc. Letter; Employer and Carrier
Exhibit 10, MWCC Form B-3; Employer and Carrier Exhibit 11, Health, History
and Physical Examination Results; Employer and Carrier Exhibit 12, Request
for Leave of Absence Form; Employer and Carrier Exhibit 13, Reason for
Leaving.
Existence, nature, and extent of disability attributable
to the injury, inclusive of the date of maximum medical improvement; further,
claimant's entitlement to certain medical benefits tendered to the claimant
for alleged work-related injuries to his back and left leg with an alleged
date of injury of November 5, 1996.
The claimant testified on the occasion of this hearing that he is a high school graduate, having graduated from high school in 1960, and is currently 57 years old. As to his prior work history, claimant noted he worked as a store clerk for Piggly Wiggly, worked in a carbon plant in Sterling, Louisiana as an operator until 1968, and was in pipeline construction until approximately 1971. He worked for Davidson Transport as a truck driver until 1974, and at Magelek Tank Lines as a truck driver for 13 years until 1987. He has worked for Wal-Mart for about 10 years in the same vocation of truck driver. The claimant was injured in a traffic accident when a deer went through the windshield. The claimant testified as well to an October or November, 1993 back injury when he slipped on a pool of oil. After the 1993 injury, however, the claimant went back to his regular job at Wal-Mart until this latest November of 1996 injury. After the 1996 injury, the claimant went back to an abbreviated driving schedule. He use to run approximately 500 miles per day in the vehicle, but went down to 150 miles. These were dedicated runs. The claimant recited, with the help of his counsel, his entire course of medical treatment. The claimant testified that he talked to one Steve Prestridge and Mr. Prestridge said "Let's just put it on regular health insurance, not workers' comp - it will be a lot quicker". In July of 1997 it was filed on Wal-Mart's general health policy. The claimant testified that because of his trouble with small spaces, causing him to be claustrophobic, he did have trouble achieving an MRI but finally did so. Reference is made to Claimant Exhibit No. 3. With reference to Employer and Carrier Exhibit 4, when cross-examined about that item of evidence, the claimant stated he had no idea what is meant by "traumatic injury". The claimant testified he is still under the care of Dr. Collipp and is now on Social Security Disability as of 2-98 and Hartford Long Term Disability as of 11-97. The long term disability is considered to be a fringe benefit of Wal-Mart employees. He testified he has achieved no work since July of 1997. In 1998 the claimant applied for work at 5 or 6 places, including two grocery stores, Stella's Motel in Brookhaven, Spanish Inn in Brookhaven. He testified he was looking for work as a clerk or "some such" activity. "I told them I wasn't able to do much". His latest inquiry for employment was at the Comfort Inn. The claimant testified in his own words, "I can't work. My back hurts all the time. My legs give out. The pain medication I take is a problem for me. I worked all my life up until this". The claimant testifies to currently a very sedentary life style. He has trouble sleeping, dressing, and other daily activities. Claimant has not been able to fish or hunt or work on his property since the injury. With reference to the 1996 injury, the claimant testified I really don't know what they done after 11-5-96". After the 11-96 injury the claimant went back to work "as soon as he could" at the end of November, 1996. After light duty at Wal-Mart for a couple of days he went back to work as a truck driver, and was back in that position by December of 1996. Later he bid on some dedicated runs which were comprised of 100 to 150 mile activity. A bid run indicates stores on a route and they are procured based on seniority. He drove a truck until July of 1997 when he left the employ of Wal-Mart. Claimant said he quit because "he just could not push anymore because of his back pain" which he felt was all connected to the wreck. The last day he worked for Wal-Mart was July 28th of 1997. After a one-year leave of absence, his last day of association with this employer was July 31, 1998. The claimant was cross-examined about his visits to Dr. Fisk and Dr. Fisk's performance of a physical examination on him. I didn't tell Dr. Fisk I was having any problems with my physical because I wanted to continue to work". The claimant testified that he currently goes to see Dr. Collipp every three months or so and Dr. Collipp maintains him on his current medications.
The claimant called Ms. Debra Barnett, a longtime friend of the claimant and a current resident of Ruth, Mississippi. She testified she had been a friend of the claimant for the last 13 years. Her testimony was cumulative and corroborative to that of the claimant.
The defense called Steven Prestridge, an employee of Wal-Mart since 1995 in the transportation center and supervisor over the claimant during his employ from September 17, 1987 to July 31, 1998. Mr. Prestridge indicated he was the one who filled out the MWCC Form B-3 entered into evidence. It appeared that Mr. Prestridge's testimony dovetailed with the claimant's testimony in many regards. As to Employer and Carrier Exhibit 12, the FMLA Leave, he noted that July 31, 1998 was the last day the claimant was associated with Wal-Mart due to the one year leave of absence policy for non-work-related injuries. Mr. Prestridge was asked if there were other jobs for which he could have been employed and he noted "Our company does not create jobs. We have a policy against doing so. The claimant was a good employee though. We would have tried to accommodate him". Mr. Prestridge said the claimant never indicated to him that this was a work-related injury and he never advised the claimant to file it one way or the other. On cross-examination, Mr. Prestridge stated, and I quote: "I don't know whether the claimant ever came to me to ask for a job or not. I filled out the B-3 one day after the accident so that was all I knew at the time."
Dr. David C. Collipp testified by way of deposition in this cause indicating that he is a medical doctor specializing in physical medicine and rehabilitation. He noted that he first saw the claimant on September 30, 1997 upon referral from a Dr. Mark Guist. Claimant presented as a 54 year old white male who described a motor vehicle collision with a deer on the 5th of November, 1996. The deer coming through the windshield caused quite a bit of trauma to his right lower limb. He stated to Dr. Collipp that at that time he was off work for about three weeks and then went back into work and was complaining of back pain along with some continued right limb pain and eventually went to see a physician. Through this physician process he was referred to Dr. Mark Guist, who was providing chiropractic treatment for him. Dr. Guist felt that there was some aspect of his condition that was not covered by the chiropractic manipulation and referred him on to Dr. Collipp. He next saw him on October 15th of 1997 and performed an EMG in order to determine whether there was a neurologic dysfunction. This revealed objective findings of deficit. Opting for non-surgical treatment, he included injections with Dr. Jeff Summers, an anesthesiologist here in Jackson, as well as protection of the spine. He also asked him to go in and see Dr. Lon Alexander who was a neurosurgeon in order to see whether there were any surgical indications. It was his clinical impression that the damage had already occurred in his nerves and there was no active ongoing damage, but instead that the damage had already passed and "we were not waiting for recovery from the nerve standpoint." Claimant apparently did see Dr. Alexander, who recommended that there should not be surgery at that time. This notation was on February 3rd of 1998. When he saw the claimant on February 1 8th, 1998, he told Dr. Collipp he had been assigned Social Security Disability for the neurologic damage for his left lower limb. At that time he felt he would not be able to return to his regular duty which was driving a truck and Dr. Collipp agreed with him and felt he would need to pursue some sort of vocational rehabilitation. Claimant was continuing to have pain in his left lower limb and he was continuing to provide him with Darvocet, a pain medication. Dr. Collipp noted at the time of deposition that he was continuing to be on Darvocet N-100 and his last prescription at that time was October 25, 1998. By April 17th of 1998 the claimant described to Dr. Collipp that he was trying to keep his activity level up "as best he could." He had been working in the garden planting tomato plants and had a flare-up of his pain. Follow-up was discussed at that point and he was told he could come by whenever he got a flare-up, but certainly every three months in order to maintain his medications. Claimant was on a stable level of medications which he continues on through today. By July 17, 1998 there was no noted improvement of his condition. He also noted an objective finding that the calf had been shrinking, which was a significant finding indicative of atrophy of the gastrocnernius and the tibialis anterior muscles. October 21, 1998 reveals "really not much of a change in his conditions" and his medications were discussed and altered somewhat. Since he had no change in his physical examination, neurologically he was the same and he recommended follow-up in about another three months. When asked whether or not Mr. Newcomb had reached maximum medical improvement, he testified he believed he had and he would place that date on or about the 17th of July, 1998, testifying to the applicable standard of a reasonable medical probability. He was also asked, based on the same standard, whether or not all the conditions which he treated him for were causally connected to his on-the-job injury of November 5, 1996, and he noted that given his history he would relate them as causally connected. Dr. Collipp was also asked for his assessment of an impairment rating as to the injuries from the November 5th, 1996 injury, and he noted that he would find an impairment rating of ten percent (10%) according to the AMA Guides for the Evaluation of Permanent Impairment, Fourth Edition. This would be to the body as a whole. He noted that based on a reasonable medical probability, he felt like the impairment rating he had given to the whole person is a better rating than to any affected extremity that he might have. He noted as well that he is trained not only to help people get back to work, but to know what type of work they can do. Claimant is probably physically capable of light duty which would have a lifting restriction of twenty pounds on an occasional basis with occasional meaning between one-third and two-thirds of an eight-hour day. He honestly felt he would be better off heading more towards sedentary duty, however. The reason for that is that he is working with a true neurologic impairment and he is going to fatigue more easily through his left lower limb than another individual might. As to the pain medication, he was asked if he would continue on that for an indefinite period of time, and he noted that he did not anticipate that it was going to continue after another nine months to a year. His expectation is that the neurologic damage is going to resolve over a period of two to three years, assuming the nerves will regenerate at approximately one inch per month. And at that point he would expect he would move on to either a non-steroidal anti-flammatory medication or potentially just Tylenol or no medication at all.
On cross-examination, Dr. Collipp was asked to review some of the medical records of Dr. John Fisk, notably, the April, 1997 reports from Dr. Fisk. Same included a report from November 11, 1996, and finally, November 25, 1996. Further related was the July 28, 1997 report. As he was previously asked whether or not he could relate the claimant's neurological problems to the accident of November of 1996, and he noted he had done that based primarily on the history he had been given which was recurrent low back pain from the date of the injury forward, but after having read these reports, he was asked if he could still testify to a reasonable degree of medical probability that Mr. Newcomb's condition or conditions that he treated him for was related to the accident of November, 1996, and he said "No." He also clarified that when he stated that the condition of the claimant should resolve within the next 30 to 36 months, he was talking more in terms of pain, in terms of actual strength, however, the deficits would continue. In essence, the motor recovery has already pretty much taken place. There can be further motor recovery but then you would be expecting the entire length of the motor nerve to regenerate and that is not very likely. He was asked if he was certain Mr. Newcomb understood the meaning of "traumatic injury" when he was asked by the other physicians prior to his treatment by Dr. Collipp, and therefore, could have been giving them a wrong history, he noted that certainly is possible.
Dr. Lon Alexander, an Orthopedic Surgeon, testified by Medical Records Affidavit in this cause and noted that he saw the claimant at first on January 14, 1998. He told this physician that on 11-5-96 he was involved in a motor vehicle accident when a deer came through the windshield. He stated to Dr. Alexander that both of his legs hurt and he falls sometimes. Attention was had to the lumbar myelogram he reviewed and noted that there was a small left paracentral disc protrusion at L5. He also noted Claimant had a weakness in his toe. He was to return to the clinic in two weeks and apparently did so on 1-30-98. Dr. Alexander noted that for follow-up evaluation he reviewed his neuro-imaging and saw no structural lesions. By EMG and nerve conduction studies the L5 radiculopathy is resolving itself. For this reason, he saw no need for further neurological testing and certainly no need for surgical intervention. The claimant explained to Dr. Alexander that he will have difficulty returning to his job as a truck driver, and Dr. Alexander indicated to him that he needs to conference with Dr. Collipp in resolving that matter.
Claimant Exhibit 3 notes the MRI of the lumbar spine results which were achieved on 2-2-99 and reveal a moderate degenerative spinal stenosis at L4-5, and secondly, a central herniated nucleus pulposus at L5-S1 .
Dr. Gordon P. Nutik testified by Medical Records Affidavit in this cause. He is an Orthopedic Surgeon located in New Orleans, Louisiana. Dr. Nutik was employed by the employer and carrier herein to perform an employer medical evaluation and did so on September 8, 1997. He engendered a report dated September 10, 1997 and noted for his one-time examination he reviewed the medical reports that were sent in connection with the examination. After his review and examination, he noted that it was his considered medical opinion that the claimant (who gave to him a history of being involved in a motor vehicle accident on November 5, 1996,) had a primary injury which consisted of lacerations with a laceration being above the left sided scalp and soft tissue injury about the right thigh and these were the injuries that were causally attributed to the involvement in this accident. He testified the patient had developed complaints about the lower back which he said dated right back to the time of the accident. He felt that review of the records, however, did not support that and that there was no mention of any lower back complaints at the time of the accident, as the first mention of lower back pain occurs on April 14, 1997. In that doctor's record there is no recall of any trauma. On July 28, 1997, he had the beginnings of referred complaints to the left lower extremity and again indicates that he could recall no injury. This patient does have a significant prior history of low back pain three or four years earlier which indicates the likelihood of a pre-existing low back problem. From review of the records he felt that they did not support any relationship of the current lower back complaints to the reported accident of November 5, 1996 and would have to believe from the records that the onset of low back pain was new and would be unrelated to the motor vehicle accident. Dr. Nutik also opined that the patient had reached a point of maximum medical improvement concerning the lacerations of the left side of his scalp and the soft tissue contusions about the right thigh. He noted that the patient did have residual indentation about the quadriceps muscle which he felt would be permanent, however, functionally he did not think this would appear to affect right lower extremity function. The patient had some non-specific findings in both the right and left knees, but he did not feel there were any notable clinical findings to indicate evidence for underlying mechanical disability that he could relate to the reported motor vehicle accident. The patient's main problem does appear to be his lower back and left lower extremity involvement. From his physical examination, he opined that the patient does have underlying nerve root irritation and may have a disc herniation likely at the L4-5 level. He did feel that the patient would need further evaluation for the lower back and may need to undergo diagnostic testing and the possibility of further treatment, but he did not relate that directly back to the November 5, 1996 accident. He did concur that the claimant would have difficulty returning to his former job as a truck driver. He would also restrict him from returning to work in anything more than a sedentary capacity, and he would have to be given the opportunity to change positions from sitting to standing and back to sitting frequently during the day. He included job descriptions which he sent back with his report which indicated that the claimant would be limited to sedentary type vocations such as working as a clerk in a sedentary environment. Dr. Nutik's restrictions were no lifting over ten pounds occasionally, five pounds frequently, and he needed to work in a seated capacity with frequent capability to change positions in that employ.
Medical Records indicative of the claimant's treatment by Dr. John W. Fisk, Jr. at the Brookhaven Family Medical Clinic were entered in this cause and indicate his treatment there in November of 1996 immediately following the motor vehicle accident. These records also include treatment rendered to the claimant into 1997. On April 14, 1997 he presented with complaints of low back pain that seems to be worse on the left than the right. He noted he could recall no trauma and has no radiation of the pain. The pain is aggravated when he is sitting in his truck driving. He continued to treat the claimant throughout 1997 and in July of 1997 he noted that the claimant stated he had a history of back pain and was told three or four years ago that he had a ruptured disc but had been treated conservatively and the symptoms had improved. He stated that the pain does not feel the same in his back as it did previously, however. The diagnosis on that date was back pain with sciatica and possible ruptured disc.
Employer and Carrier Exhibit 7 is the Medical Records Affidavit indicative of the claimant's treatment at the Parkview Hospital in Vicksburg, Mississippi, and corresponds with the majority of medical testimony already reviewed by the undersigned.
Employer and Carrier Exhibit 8, Wage and Employment Information, reveal a date of alleged injury of 11-5-96 and indicates the wages the claimant made during that time frame as well as other employment and wage information corresponding with the formulation of his stipulated average weekly wage.
Employer and Carrier Exhibit 9 is a report apparently filled out by Dr. John Fisk, Jr. and dated 12-12-96. He was asked if the claimant had reached maximum medical improvement and he noted he did so on 12-2-96. He felt the claimant had not sustained any permanent disability and noted that he had been returned to work on the same date with no restrictions applied thereto.
Employer and Carrier Exhibit 10, is the MWCC Form B-3 filled out by Mr. Steve Prestridge, Personnel Manager for Wal-Mart Dispatch. He noted he was aware of the injury on 11-5-96 and that claimant was driving a company truck when he struck a deer and the deer came through the windshield. The injuries listed were lacerations to head, deep muscle bruise to right thigh and abrasions.
Employer and Carrier Exhibit 11 is a Health History Form entered into evidence. Dr. John W. Fisk, Jr. filled out the physical examination. Apparently Dr. Fisk felt the claimant was capable of driving the truck and had no reasons not to qualify him.
Employer and Carrier Exhibit 12 is Request for Leave of Absence requested on July 28, 1997 asking for medical leave. The leave was to begin on 7-30-97.
Employer and Carrier Exhibit 13, a Reason for
Leaving Form, noted the claimant was terminated by Wal-Mart July 28, 1998.
His medical problems consisted of low back pain, leg problems and left
leg with nerve damage and sleeping disorders. It also noted that his medication
consisted of Davron 4 times a day and Choral Hydro 500/5ML at night.
Upon evaluation of all testimony, lay and medical, and based upon a preponderance of the evidence supported by applicable law, I hereby render the following findings of fact:
1. Claimant as a result of this work-related injury, admitted in nature, has been assigned a ten percent (10%) permanent partial medical impairment rating by Dr. David C. Collipp, a noted physician specializing in physical medicine and rehabilitation. His specialty affords him significant insight into the juxtaposition of an individual's physical limitations and his ability to be gainfully occupied in certain job positions. Great reliance is placed on his pronouncements. Although the claimant is not an excellent historian, such a deficiency should not be held against him. Sufficient to say that although claimant's low back problems predated his 1996 injury there is enough medical testimony to determine an aggravation associated with the encounter with the deer while driving a truck for this employer. The well-settled premise that "you take the worker as you find him" is operational in this claim. Thus, the claimant should be compensated in accordance with the totality of the circumstances herein and the medical testimony forwarded.
2. Claimant achieved maximum medical benefit on
July 17, 1998, the date opined by Dr. Collipp.
IT IS, THEREFORE, ORDERED AND ADJUDGED that the employer, Wal-Mart, and carrier, National Union Fire Insurance Company of Pittsburgh, Pa., pay workers' compensation benefits to the claimant as follows:
1. Temporary total disability benefits in the amount of $264.55 per week commencing on November 5, 1996 and concluding through July 17, 1998 with proper credit to be given for any and all monies, wages or benefits previously paid to the claimant during this time frame.
2. Permanent partial disability benefits in the amount of $77.95 per week beginning on July 18, 1998 and concluding after the statutory maximum period of 450 weeks as delineated in Mississippi Code Annotated, Section 71-3-17(c)(25) (1972).
3. Provide medical services and supplies as outlined in Mississippi Code Annotated, Section 71-3-15 (1972).
4. Penalties and interest, if applicable, pursuant to Mississippi Code Annotated, Section 71-3-37(5)(6) (1972).
SO ORDERED this the 30th day of March, 2000.
VIRGINIA WILSON MOUNGER
ADMINISTRATIVE JUDGE
ATTEST:
Brenda H. Goolsby, Secretary
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1. There is no proof whatever of any neck injury suffered by Mr. Newcomb and that part of his claim will not be given any further attention. Aft of the proof offered by Mr. Newcomb points instead to a low back injury, the cause of which is in question.