MWCC NO. 96-07632-F-7389

DONALD VAN DUESEN                                                                                                                     CLAIMANT

vs.

SILVER STAR RESORT & CASINO                                                                                                EMPLOYER
AND
INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA                                                    CARRIER

REPRESENTING CLAIMANT :
Will Parker, Esquire, Meridian, MS

REPRESENTING EMPLOYER/CARRIER :
Roger C. Riddick, Esquire, Jackson, MS
 

This matter was heard by the Commission on December 20, 1999 pursuant to Petitions for Review filed by the Claimant as well as Employer/Carrier. At issue in this claim is whether Mr. Van Deusen injured himself at work with Silver Star on or about September 3, 1995, and whether a subsequent need for low back surgery was related to this alleged injury.
 

Mr. Van Deusen claims that he slipped and nearly fell while working at Silver Star Casino on or about September 3, 1995. He claimed he felt something "pop" in his back and thought he may have aggravated an old injury. He continued to work and sought treatment the next day at the Neshoba County Hospital. A CAT scan obtained at this time showed only a slight central disc protrusion at the L4-L5 and the L5-S1 level. He was treated for lumbar strain and released.

After a few days off work, Mr. Van Deusen returned to his regular job duties at Silver Star and worked without interruption or difficulty until he was fired for misconduct on or about November 12, 1995. He did not seek any further medical treatment until May 1996.

According to Sally Adams, at the time a co-worker at Silver Star, Mr. Van Deusen claimed on the day of his alleged accident that his problem was related to a prior back injury he suffered while working in New York. Sometime in December 1997 she again saw Mr. Van Deusen and he allegedly stated that the workers' compensation claim he was pursuing against Silver Star was bogus.

After Silver Star, Mr. Van Deusen became employed with McDonald's but quit after approximately one month because of disagreements with management and other employees over his conduct. He worked without any apparent physical restrictions or limitations. He then left the State for a period of time, and upon his return was hired by Atlas Roofing on March 8, 1996.

Mr. Van Deusen admitted he was able to perform his work at Atlas Roofing without any problem even though this job required a lot of bending and stretching. He was subsequently transferred to an assembly line which required constant lifting and moving of rolls of felt roofing which weighed 80 to 90 pounds each. It was not until after he worked this job for about two months that he began to seriously complain of back pain. He was placed on disability by Atlas Roofing for 26 weeks and he filed associated medical expenses through the medical coverage afforded by Atlas Roofing.

Intermittently from May 21, 1996 to March 25, 1997 Mr. Van Deusen treated with Dr. Carruth, Dr. Malloy and Dr. Stagg. An MRI test performed November 13, 1996 identified a disc bulge at the L4-L5 level and a broad, mid-line disc herniation at the L5-S1 level. Conservative treatment failed to satisfy Mr. Van Deusen, and in April 1997 he sought treatment from Dr. Robert Smith.

The Claimant reported to Dr. Smith that he had injured his back failing off a truck in 1988, that he had injured his back at Silver Star in 1995 and that on April 20, 1997 he injured his back while getting out of bed one day. Dr. Smith subsequently performed surgery on Mr. Van Deusen for a herniated disc and released him for work with only a fifty pound lifting restriction. Dr. Smith strongly questioned whether Mr. Van Deusen could have continued tending bar at Silver Star with the herniated disc he repaired surgically. Dr. Smith also testified that something else intervened between September 1995 and November 1996 to cause the disc herniation because it did not exist in September 1995, at least according to the CAT scan taken at Neshoba County Hospital. Importantly, Dr. Smith did not feel that Mr. Van Deusen ruptured his disc when he allegedly slipped at Silver Star.

Dr. Russell, a neuro-radiologist at University Medical Center testified that the medical records of Mr. Van Deusen show he has a history of back pain since 1988. In his view, the Claimant suffers from degenerative disc disease which predated the alleged injury in September 1995. Insofar as the herniated disc is concerned, Dr. Russell stated that it was not consistent with the type of slip and hyper extension injury which Mr. Van Deusen claims to have sustained at Silver Star. The herniated disc was, in Dr. Russell's view, more likely caused by the heavy lifting at Atlas Roofing, which is also the same time that Mr. Van Deusen began to seriously complain about back pain.
 

It is well accepted that the claimant bears the burden of proving by a preponderance of the evidence that he suffered an injury ari sing out of the course and scope of his em ployment, and that any subsequent disability is causally connected to that injury. In this case, we are willing to accept that Mr. Van Deusen slipped and hyper extended himself on or about September 3, 1995 while working at Silver Star Casino, but we do not believe the Claimant has met this burden on this latter point.

Medically, it seems highly unlikely that the herniated disc for which Mr. Van Deusen obtained surgery was caused in any way by the minor slip at Silver Star Casino in September 1995. Factually, it also appears highly unlikely that his slip and near fall at Silver Star in September 1995 caused or contributed to his subsequent herniated disc. Given Mr. Van Deusen's statements to a co-worker, and his subsequent ability to maintain the same and other employment without difficulty until after he engaged in heavy lifting in Atlas Roofing, we simply are not persuaded that Mr. Van Deusen's slip and near fall at Silver Star Casino on September 3, 1995 caused anything other than a very minor and very temporary lumbar strain.

It also appears that this injury resulted in no temporary occupational disability since Mr. Van Deusen failed to prove that he was temporarily absent from work because of this injury in excess of the five (5) days required before temporary disability benefits become due. Miss. Code Ann. § 71-3-11 (Rev. 1995). His subsequent return to the same employment, his termination for misconduct, and his continuation of employment elsewhere also precludes any finding that this minor injury resulted in any permanent disability.

The O rder of Administrative Judge dated September 7, 1999 is t herefore reversed. Under the facts of this case, Mr. Van Deusen is entitled to neither temporary nor permanent disability benefits, and the Employer and Carrier are liable only for the medical expenses associated with Mr. Van Deusen's treatment at the Neshoba County Hospital commencing the day after his injury. All other medical expenses and treatment incurred and obtained thereafter by Mr. Van Deusen are deemed unrelated to his slip and near fall at Silver Star on September 3, 1995, as are any subsequent periods of disability.

SO ORDERED this the 12th day of January, 2000.

MISSISSIPPI WORKERS' COMPENSATION COMMISSION:
Mike Marsh
Beverly Bolton
COMMISSIONERS

ATTEST:
Brenda H. Goolsby, Secretary
___________________________
 

MWCC NO. 96 07632-F-7389

DONALD VAN DUESEN                                                                                                                     CLAIMANT

vs.

SILVER STAR RESORT & CASINO                                                                                                 EMPLOYER
AND
THE INSURANCE COMPANY OF
THE STATE OF PENNSYLVANIA                                                                                                         CARRIER

APPEARING FOR CLAIMANT :
Honorable Will Parker, Attorney at Law, Meridian, Mississippi

APPEARING FOR EMPLOYER AND CARRIER :
Honorable Roger C. Riddick, Attorney at Law, Jackson, Mississippi
 

Claimant filed a Petition to Controvert on May 29,1996, alleging that he suffered a work-related injury to his back in September of 1995, while in the course and scope of his employment with the Silver Star Casino. The employer/carrier answered, and while initially admitting the compensability of the injury, at the time of the hearing the employer/carrier denied that a work-related injury occurred stating that additional evidence had come to the attention of the employer/carrier since the date the Answer was filed. As a result, compensability was contested. A hearing in this matter was held at the Neshoba County Courthouse in Philadelphia, Mississippi, on February 4, 1999. The record was held open for 60 days to allow the employer/carrier additional time to obtain information regarding the claimant's amended tax return. ¹ Further, the parties were ordered to submit briefs and the record was closed after the submission of briefs by the parties on August 16, 1999.
 

The parties stipulated that the alleged injury occurred on or about September 3, 1995.
 

1. Whether a work-related injury occurred on the date alleged.

2. The existence and extent of temporary disability attributable to the injury.

3. The existence and extent of permanent disability attributable to the injury.

4. Whether the claimant's need for surgery is due to a pre-existing condition or subsequent intervening cause.

5. Whether penalties and interest are applicable.
 

The Claimant testified that he is a 35-year old resident of Meridian, Mississippi. He dropped out of school in the twelfth grade, but subsequently obtained his GED. Additionally, he has vocational training as a truck driver. Claimant testified that he worked for Builders Transport in Alabama as an over-the-road truck driver. He did long haul driving and was paid .19 cents per mile. He was terminated by Builders Transport after approximately six months for taking a company truck to his house. Claimant testified that he was then employed at Coates and Coates, re-packing toilet paper from October, 1991 through July, 1992. He then went to work at Obie's Delivery Service in Texas, for five or six months. He earned $200.00 per week. Following his employment at Obie's, claimant moved back to Mississippi and worked as a laborer with Michael Smith Construction for approximately one year and six months. He found other minimum wage work and then went back to Michael Smith Construction for three months in 1994.

Claimant testified that he began working for Silver Star Casino on or about July 14, 1994. He began his employment there as a bar back making $6.00 per hour on a 40-hour work week. Claimant said he made less than $30.00 per week in tips while employed in this position. Claimant testified that he worked as a bartender's assistant, which required him to haul ice, handle cases of beer, and perform other duties. He was then promoted to bartender. Claimant said he injured his back when he slipped on some trash bags on or about September 3, 1995. Claimant testified that he told his supervisor, Sally Adams, within five or ten minutes of the accident. She wanted him to report to security, but he told her it was an old back injury. Claimant said he told her this because he was scared he would be terminated. He did not know how workers' compensation worked, but he knew there were people in the "country" who had been terminated for reporting workers' compensation claims.

Claimant testified that he sought treatment the next day at the Neshoba County General Hospital Emergency Room after being referred there by the employer. He returned to work after a short period of being off and continued to work as a bartender. Claimant stated that he was terminated on or about November 12, 1995 as a result of an altercation with his ex-girifriend/co-worker while on the job. Claimant said he was dating the co-worker with whom he had the altercation. After she broke off their relationship, he was reprimanded for his physical actions towards her and prohibited from contacting her for any reason while at work. Claimant signed a disciplinary notice admitting his involvement.

Claimant testified that following his termination he went to work for McDonald's in Meridian making $5.25 per hour on a 30 to 40 hour work week. Claimant said he experienced pain in his back and down his legs while working. He quit McDonald's approximately four to six weeks later, after having a disagreement with the store manager for not allowing him to take a break and smoke when he desired to do so. There were also complaints by co-employees regarding the number of breaks taken by the claimant during his shift.

Claimant testified that he began work at Atlas Roofing in Meridian on or about March 8, 1996. He was making approximately $7.50 per hour. He related that he experienced pain when bending. He recalled taking pain medication in order to be able perform his job. One of his job duties was to lift 80 to 90 pound roofing off a belt and stack them on a pallet.

Claimant testified that he chose to see Dr. Carruth, a general practitioner. Dr. Carruth referred the claimant to Dr. Malloy, a neurosurgeon in Meridian, in June of 1996. He said Dr. Malloy took him off work in June, 1996, and recommended an MRI. Claimant said due to financial necessity, he requested that Dr. Malloy let him return to work, and he did so in July of 1996.

Claimant testified that he was referred by Dr. Malloy to Dr. Staggs for epidural injections. He received epidural steroid injections until he experienced excruciating pain while getting out of bed one Sunday morning in April of 1997. Claimant said his back "gave way" and he crawled to the living room to call his mother to come get him.

Claimant testified that he went to see Dr. Robert Smith, a neurosurgeon in Jackson, Mississippi, who performed surgery on his back and later released him to light duty work. Claimant testified that he called the Silver Star Casino approximately two or three weeks after his surgery and was told that he had to be an employee to be considered for light duty work.

Claimant testified that he began work at the Bonita Lakes Mail Theater as an usher in August of 1998. He made $5.15 an hour and was working approximately 25 to 30 hours a week.

Claimant testified that he attempted to work at Modern Irrigation in Meridian, but quit after approximately three days because he began to have back spasms. He also worked for a short time at Dixie Gas in Meridian as a cashier making $5.50 per hour. Claimant said he quit this job at Dixie Gas after about six to eight weeks because it "took its toll" on him and he also had a disagreement with his supervisor. Claimant testified that he returned to the Bonita Lakes Mail Theater in December of 1998 where he was making $5.15 an hour, working 25 to 30 hours a week.

Claimant testified that while at the Silver Star Casino, he was not required to turn over any tip book. He made $6.50 per hour and $200 to $225 per week in tips. Claimant said his original tax return only reflected $2,374.00 in tips, because he misplaced his tip book. He later amended the 1995 tax return to reflect $9,510.00 He derived at this amount by looking at his calendar and estimating the number of hours worked. Claimant said employees were asked to report their tips, but were not required to do so. He stopped reporting his tips so he could receive more money in his pay check.

Ira Coleman testified by deposition. She is a resident of Meridian, Mississippi, and a production manager for McDonalds. Ms. Coleman testified that she was the claimant's supervisor during his employment with McDonald's. She said there were employee disciplinary reports filled out on the claimant by the store manager, which indicated the claimant was disciplined for not calling in at least four hours prior to his shift to notify the manager that he would not be in for work. In addition, the claimant had been warned about going outside to smoke at certain times of the day. She testified that the claimant would go to smoke during the lunch hour, which was their busiest time. Ms. Coleman testified that the claimant had been warned about taking breaks during the restaurant's lunch hour. She said the records indicate that the claimant "seems to be not interested in working. Leaves to go take a smoke break out back without permission in the middle of the lunch hour."

Ms. Coleman testi fied that the claimant was written up for taking unauthorized smoke breaks and when asked to sign the disciplinary form , the claimant got his jacket, came back, and told her that he was a "full grown man" and he "could take a smoke when he felt like it." Claimant then walked out and never came back to work at McDonald's.

Ms. Coleman testified that the claimant was training on the grill and was in training for a management position. Claimant worked the morning shift without any problems, until he voluntarily walked off the job.

Pat Wilder testified on behalf of the employer and carrier. Ms. Wilder testified that she is the Rehabilitation Counselor for the State of Mississippi Department of Rehabilitation Services. She testified that the claimant was referred to her office by the Mississippi State Employment Service. He was accepted into the evaluation stages of their program. They were in the process of determining what limitations the claimant may have with regard to employment and what a desirable vocational goal would be for the claimant. However, the claimant voluntarily left the program prior to completing the evaluating process and as a result, she was unable to identify any specific limitations the claimant had. She did not know why he left. Ms. Wilder acknowledged that the medical records indicate that the claimant would be capable of performing in the medium duty category and that there were jobs in the State of Mississippi in this category. She stated that she was not able to identify a particular job for the claimant as he left the program before a determination or evaluation could be completed. Ms. Wilder testified that as part of the evaluation process, the claimant was required to undergo a psychological evaluation. According to the evaluation, the claimant had functional limitations associated with past alcohol abuse and maybe some passive aggressive characteristics. According to Ms. Wilder, the passive aggressive characteristics might make it difficult for the claimant to get along with other people. The evaluation also recommended that the claimant receive therapeutic counseling, which was not done after the claimant left the program. Ms. Wilder testified that if the claimant had completed the process, it would have been her job to assist the him in pursuing new career goals. She stated that there are employers throughout the state looking for medium duty classification employees. However, Ms. Wilder testified that because she was not able to complete her evaluation, she has no opinion regarding the claimant's loss of wage-earning capacity.

On cross examination, Ms. Wilder testified that the claimant's psychological problems and alcohol abuse alone would not prevent him from obtaining employment.

Sally Adams testified on behalf of the employer and carrier. Ms. Adams testified that she first began her employment with the Silver Star Casino on or about June 24, 1994 as a bartender. She was later promoted to supervisor. She served in this capacity until February 3, 1997, when she was terminated for allowing an employee to work without a license. She said there were never any discussions regarding possible future employment. Ms. Adams testified that she was "a little bent out of shape and upset" at first , but maintained a good relationship with Silver Star Casino.

Ms. Adams testified that on the date of the alleged injury, the claimant told her that he had a pre-existing back injury with Liberty in New York and that it was not Silver Star's fault. She further testified that in December of 1997 she saw the claimant, while working in Meridian. She stated that the claimant told her he was pursuing a "bogus" claim against the employer/carrier. On cross-examination, Ms. Adams testified that she had never been offered a job by anyone at Silver Star Casino since being terminated there.

After the hearing was over, the claimant's attorney learned in April, 1999, that Ms. Adams had been rehired by Silver Star Casino. Her deposition was taken on April 22, 1999. In said deposition, Ms. Adams testified that after serving as a witness at the claimant's hearing in Philadelphia she immediately drove to the Silver Star Casino to apply for employment. She testified that she went to make an appointment with Robert (Bobby) Thompson on Friday to inquire as to whether she was eligible for rehire at the Silver Star Casino. She met with him the next day. Ms. Adams stated that she talked with Mr. Thompson briefly and went onto the Casino floor, where she saw Chris. Chris used to be the general manager's personal secretary. Ms. Adams testified that when she told Chris that she was trying to get her job back, Chris took her to the executive office and made an appointment for her to see Mr. Driggs, the general manager. When she spoke with Mr. Driggs the following Saturday, he advised her that she was eligible for rehire in any department at entry level, but could not be hired back as a supervisor. She was subsequently hired as a part-time bartender working close to 40 hours per week at $6.50 an hour, plus tips.

Ms. Adams testified that she had wanted to go back to the Casino for a while, but had not approached casino officials prior to the hearing, because she did not want them to think her testimony "was up for bargaining" and that she would not cooperate if they did not give her a job. Ms. Adams said she did not discuss her testimony with either Mr. Thompson or Mr. Driggs. Further, no deal was ever made with anyone at the Silver Star Casino for her to testify favorably in the claimant's case.

Ms. Adams testified that at the time of the deposition she was no longer at the Silver Star Casino. She had left because she could not do the work. Her neck stayed in spasms and she felt awkward working as an hourly employee with the same employees that she had once supervised.

Phillip Brooks testified that he is a certified public accountant (CPA) in Meridian, Mississippi. He has been practicing as a CPA in Meridian since 1982. Mr. Brooks testified that he helped the claimant prepare an amended tax return on or about March 13, 1998. He stated that the claimant gave him the amount of unreported income during a telephone conservation. Subsequently, the claimant gave him a sheet that listed the amount of the unreported income. Mr. Brooks said he was given a sheet that contained a number, but was given no tip books and no documentation from Silver Star Casino. Mr. Brooks further stated that the claimant never mentioned to him that he had been required to keep a tip book and he never produced any documents to substantiate the number he had given him. He said the claimant just stated that was the amount of unreported income that he had for 1995 and that he wanted to file an amended return. Mr. Brooks testified that he never saw the original return. Claimant gave him a copy of a return that the claimant had prepared for him to use in the filing of the amended return. He testified that It was an estimated return, because he did not remember the amount that had been reported to the Internal Revenue Service. Mr. Brooks stated that the claimant originally claimed approximately $2,000.00 in tip income. In 1998, some two years later, he called saying he had an additional $9,510.00 in tip income that had never been reported to the Internal Revenue Service. There was no documentation to substantiate this number.

Mr. Brooks testified that when he asked the claimant why he was reporting the additional income, since the employer had not reported it, he simply stated that that was the income he had and he wanted to amend the return. Mr. Brooks testified that his office prepared claimant's amended return, but did not mail it. Further, he does not know whether the claimant actually filed the amended return with the Internal Revenue Service.

Jeannie Conner testified for the employer and carrier. She was employed as a manager for Dixie Oil. Ms. Conner testified that the claimant applied for a job with Dixie Oil on August 25, 1998. He was hired to run the cash register, stock the cooler, sweep and do other miscellaneous tasks. He was on a 40 hour work week. She said the claimant was employed approximately one month and one day. She was discussing an incident with the claimant that had been reported to her by the cashier, when he told her that he was "tired of it." She then told him that he could go home and he said he would.

Aaron Reed testified by way of deposition on behalf of the employer and carrier. He is assistant manager for the Bonita Lakes Theater. Mr. Reed testified that the claimant reapplied with Bonita Lakes Theater and was rehired in December of 1998. As with his previous employment with Bonita Lakes, the claimant's duties as an usher included walking the auditorium, cleaning the theater, handling tickets, working the concession stand and handling money at the ticket office. Mr. Reed testified that during the claimant's employment, he was counseled on several occasions for violating company policy. He terminated the claimant in June of 1999, after a verbal confrontation with him.

Rick Axtell, Jr. testified by way of deposition on behalf of the employer/carrier. He owns and operates Express Care Auto Center in Meridian, Mississippi. Mr. Axtell testified that he hired the claimant to work as an oil change technician on April 14, 1999. His employment responsibilities included draining oil from customers' automobiles, changing oil filters, refilling the cars with oil, checking the fluid levels, checking filters, vacuuming, cleaning windshields and checking tire pressure. He never observed any physical problems that the claimant had which prevented him from doing any aspect of his job. The claimant worked at least 40 hours per week at a rate of $5.15 per hour. Mr. Axtell testified that during the later part of May, the claimant called to tell him that he would not be coming in to work. He never saw or heard from the claimant again. The claimant gave no reason for his departure.

The medical records from the Neshoba County General Hospital show that the claimant sought emergency medical attention for his back and leg on September 3, 1995. The claimant reported that he had hurt himself at work the previous day. He was diagnosed with a lumbar strain, treated, prescribed medication and released.

Dr. Malloy's medical records reflect that he first saw the claimant on June 17, 1996. The history as revealed by the claimant was that he hurt himself while working at the Silver Star Casino in October. He slipped on some garbage bags and suffered some discomfort to his left leg. He arranged for the claimant to have an MRI scan of his lumbar spine and prescribed Lortab. When Dr. Malloy saw the claimant again on July 22, 1996 the MRI had not been done because there was a controversy between the claimant and Silver Star Casino as to liability and responsibility.

Dr. Malloy saw the claimant again on November 14, 1996 and noted that he was continuing to work, but did have to take six weeks off earlier that fall. He stated that the claimant returned with an MRI scan, which showed a bulge at L4-5 and a broad base mid-line herniation at L5-S1. He recommended the Pain Treatment Center, but noted that if there was no significant improvement, surgical intervention at L5-S1 should be seriously considered.

The medical records of Dr. Ken Staggs show that he saw the claimant on a referral from Dr. Malloy. He was given a lumbar epidural steroid injection with fluoroscopy on 12/6/96; 1 /8/97; and 1/31/97. He recommend ed physical therapy and a functional capacity evaluation.

Dr. Carruth's medical records show that he first saw the claimant on or about May 21, 1996 after the alleged accident. Dr. Carruth noted that the claimant hurt himself at the Silver Star Casino approximately seven or eight months ago in October 1995. He stated that there were continuing symptoms suspicious to nerve root irritation. His x-rays were non-revealing, so he referred the claimant back to Dr. Malloy. Additionally, the claimant was prescribed Lortab as needed for his pain. He saw the claimant again on July 23, 1996 and noted he was still h aving a lot of pain.

Dr. Carruth saw the claimant again on August 5, 1996. The claimant stated he was concerned that once he went back to work he would start hurting again. Dr. Carruth released the claimant to go back to work and noted that if he could not do the job he would take him off work again. He saw the claimant again on August 26, 1996 and he was complaining of a continuing backache. Claimant followed up with Dr. Carruth on November 11, 1996. Dr. Carruth stated that the claimant was requiring less pain pills, but he would like to refer him to Dr. Malloy before he prescribed any more. He saw the claimant one last time on March 25, 1997 and noted the claimant desired to see Dr. Robert Smith in Jackson.

Dr. Robert Smith testified that he first saw the claimant in April of 1997. The claimant reported to him that he started having pain in September of 1995, after slipping at work at the Silver Star Casino. Further, the claimant said he had a herniated disc at !he L5-S1 level. He had three epidural steroid injections that worked for a while and he had no pain until April 20, 1997. He was getting out of bed and felt something give way in his back. After that, he complained of severe pain in the back with radiation into both legs.

Dr. Smith testified that claimant's past history was somewhat interesting in that he fell off a lumber truck in 1988 and was diagnosed with sciatic nerve damage. Claimant said he had no problems after a few days and no pain until September 1995.

Dr. Smith testified that the claimant was referred to him by Dr. Carruth and Dr. Staggs. His examination of the claimant revealed a herniated disc. He thought there was a possibility that the claimant might get better without surgery and elected to treat it conservatively. However, the claimant called him on or about May 7, 1997, and wanted to schedule surgery. The surgery was scheduled for May 21, 1997. However, the claimant advised his office that his attorney had advised him not to proceed with surgery until the worker's compensation issue was settled.

Dr. Smith's medical records and testimony show that when he saw the claimant again on June 3, 1997, he still had pain in the right hip and leg. Surgery was performed on August 13, 1997. Dr. Smith allowed the claimant to return to work on October 1, 1997 at light duty with lifting restrictions of no greater than 40 pounds and no continuous bending or stooping. On January 21, 1998, he placed the claimant at maximum medical improvement, assigned a permanent partial impairment rating of ten percent (10%) and gave him future restrictions which included no continuous lifting over 50 to 60 pounds.

Dr. Smith testified that based on the condition of the claimant's lumbar spine and the CAT scan that was obtained in September, 1995, it was a "very low possibility that his back was already in that condition before September, 1995 based on the 1988 injury and history." Further, if the claimant's history as given to him was correct, there was a "reasonable probability" that the fall he had in September, 1995 was a material contributing factor to his current condition.

Dr. Russell testified that he is employed at the Department of Radiology at the University Medical Center. He has been in the field of neuro-radiology since 1976. Dr. Russell testified that he was asked by the attorney for the employer and carrier to review the records and diagnostic studies in the claimant's case. The records reveal that the claimant had a history of recurrent back pain, which began in 1988, when he fell out of a lumber truck. His opinion was degenerative disc disease, facet arthropathy and spur formations. Dr. Russell stated that the disc was one of chronic degenerative changes, which may have pre-existed the incident of claimant's alleged fall of September 2, 1995 by years. He testified that the bulge shown on the CT scan was not the type that would be caused by hyperextension injury or fall. He did not feel that the claimant's herniation was caused by the slip and hyperextension on the garbage bags. Further, if there was one event it would probably be the roofing lifting incident in March of 1996 that produced the herniation that subsequently required surgery to decompress the root.

On cross-examination, Dr. Russell testified that he never had the chance to meet with the claimant to take any history or examine him in person.
 

Having heard the evidence presented by the parties and having considered same, I base the following findings on a preponderance of the evidence, including medical proof as required by the Act:

1 . The claimant suffered a compensable work-related injury on or about September 3, 1995, during the course and scope of his employment with Silver Star Casino. Although there is testimony that the claimant later told a former co-worker that he was filing a "bogus" claim ag ainst the Silver Star Casino, nevertheless, the testimony does indicate that the claimant immediately reported that he slipped on a trash bag while he was still employed. Additionally, the evidence shows that the employer was aware of the injury and referred the claimant to the Neshoba County General Hospital Emergency Room. Dr. Robert Smith testified that there was a reasonable probability that the claimant's fall at work was a significant contributing factor to his injury.

2. Claimant's average weekly wage on the date of the injury was $306.78. The figure was determined by using the wage statement and tax form admitted into evidence; except for the Amended Tax Return. I do not find the claimant's testimony regarding this document to be credible.

3. The claimant was temporarily totally disabled from September 3, 1995 until January 21, 1998. This is the date Dr. Smith paced the claimant at maximum medical improvement.

4. Considering the evidence as a whole, I find that the claimant has suffered a 10% impairment rating to the body as a whole. One seeking permanent disability benefits for a whole body injury must prove by a preponderance of the evidence that the injury produced a bona fide physical impairment, which is permanent in nature, and that as a result thereof he has suffered a loss of wage earning capacity. First, I must consider whether the claimant has made a reasonable effort to return to the same or other gainful employment. Jordan v. Hercules , 600 So.2d 179 at 183 (1992); Pontotoc Wire Products Co. v. Ferguson , 384 So. 2d 601 (Miss. 1980). Other relevant factors include claimant's age, education, training, work history and the nature and extent of current physical restrictions.

A preponderance of the evidence shows that the claimant was not unjustly terminated by the employer. The evidence further shows that the claimant has been consistently able to find employment, but has not been able to keep a job for any considerable period of time. I am convinced by the evidence presented that the claimant's inability to keep a job is not due to his medical condition, but to his aggressive behavior. The medical evidence shows that the claimant reached maximum medical improvement with a 10% permanent impairment rating and restrictions of no lifting over 50 to 60 pounds.

5. The claimant's permanent impairment is not due to a pre-existing condition or subsequent intervening cause.

6. Claimant is entitled to all reasonable and necessary medical services and supplies as the nature of his injury or the process of his recovery may require pursuant to the Act.

7. The claimant is entitled to penalties on each installment of compensation not timely paid the equivalent of ten percent (10%) thereof as provided in Miss. Code Anno., § 71-3-37 (5)(1972), together with interest at the legal rate on all unpaid installments.
 

IT IS, THEREFORE, ORDERED AND ADJUDGED that the employer and carrier shall pay and provide compensation benefits as follows:

1. Temporary total disability benefits of $204.53 per week from Sept ember 3, 1995 through January 21, 1998. The employer and carrier shall receive proper credit for any such payments heretofore made to the claimant and any wages earned by the claimant during this period of time. There shall be added to each installment of compensation not timely paid the equivalent of ten percent (10%) thereof as provided in Miss. Code Anno., § 71-3-37 (5) (1972), together with interest at the legal rate on all unpaid installments.

2. Permanent partial disability benefits of $20.45 per week for a period commencing on January 21, 1998, and continuing for a period of 450 weeks as compensation for claimant's disability, subject to the maximum limitations of the Act. There shall be added to each installment of compensation not timely paid the equivalent of 10% thereof as provided in Mississippi Code Annotated, Section 71-3-37 (5), together with interest at the legal rate from and after the date the petition was filed.

3. Pay for all reasonable and necessary medical services and supplies such as the nature of his injury and the process of his recovery may require pursuant to the Act, and the Medical Fee Schedule.

SO ORDERED this the 7th day of September, 1999.

MELBA DIXON
ADMINISTRATIVE JUDGE

ATTEST:
Brenda H. Goolsby, Secretary
___________________________

1. Subsequently the claimant was granted additional time in which to depose Sally Adams, a witness called by the employer and carrier at the hearing. The employer/carrier was given time to follow-up on the claimant's job changes.