MWCC NO. 97-07708-G-0241

BUCK ROSS                                                                                                                                         CLAIMANT

vs.

MEMPHIS HARDWOOD FLOORING CO.                                                                                   EMPLOYER
AND
EMPLOYERS INSURANCE OF WAUSAU                                                                                         CARRIER

REPRESENTING CLAIMANT:
Ellis Turnage, Esquire, Cleveland, MS

REPRESENTING EMPLOYER/CARRIER:
Ben M. Logan, Esquire, Tupelo, MS
 

This matter was heard by the Commission on September 11, 2000 pursuant to the Employer's and Carrier's Petition for Review as well as the Claimant's Notice of Appeal. Both sides take issue with the Order of Administrative Judge dated April 14, 2000.
 

Buck Ross sustained an admittedly compensable injury to his back on or about December 12, 1996. His average weekly wage at the time of this injury was $390.60. The Administrative Judge found, and we agree, that Mr. Ross reached maximum medical improvement from this injury on January 14, 1999 and is permanently disabled as a result. We differ with the Judge only as to the extent of permanent disability suffered by Mr. Ross.

Mr. Ross was born May 27, 1947 and completed the seventh grade in school. He has worked mostly as a truck driver and general laborer. He testified credibly that he continues to be bothered by his back, particularly with too much bending, twisting and lifting. Clinically, Mr. Ross has a five percent (5 %) impairment which affect his body as a whole and is advised to avoid lifting more than 10 to 20 pounds occasionally.

Mr. Ross obviously is willing to work and has been able to secure several jobs post injury; however, he has been unable because of his injury to maintain most of these jobs. At the time of the hearing below, he was working maintenance at the Jameson Inn at the rate of $5.15 per hour. He works 20 hours a week doing this job and he testified that he could handle this job so long as he was careful with his back. He also works part time for his church keeping the grounds clean, changing light bulbs and the like.

This employment picture is consistent with the assessments given by two vocational rehabilitation experts who evaluated Mr. Ross. Mr. Sam Cox testified that Mr. Ross should, all things considered, be able to return to gainful employment and be able earn wages in the neighborhood of $5.15 per hour. David Horn, another vocational rehabilitation expert, concluded that Mr. Ross would be restricted to light, unskilled occupations with earnings at the minimum wage of $5.15 per hour. Mr. Horn felt Mr. Ross would limited to 8 hours per day.
 

Based on our review of the evidence as a whole, we conclude that Mr. Ross' current earning capacity is, because of his injury, no more than $5.15 per hour which, when compared to his pre-injury average weekly wage, leaves him with a loss of wage earning capacity of approximately $184.60 per week.¹ We therefore amend the Order of Administrative Judge to provide that the Employer and Carrier pay permanent disability benefits to Mr. Ross in the amount of $123.07 per week, beginning January 15, 1999 and continuing for a maximum period of 450 weeks. Miss. Code Ann. §71-3-17(c)(25) (Rev. 2000).

In all other respects, the Order of Administrative Judge is affirmed.

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

MISSISSIPPI WORKERS' COMPENSATION COMMISSION
Barrett Smith
Barney Schoby
Beverly Bolton

ATTEST:
Joann McDonald, Secretary
___________________________
 

MWCC NO. 97 07708-G-0241

BUCK ROSS                                                                                                                                        CLAIMANT

vs.

MEMPHIS HARDWOOD FLOORING CO.                                                                                   EMPLOYER
AND
EMPLOYERS INSURANCE OF WAUSAU, A MUTUAL COMPANY                                            CARRIER

APPEARING FOR CLAIMANT:
Honorable Ellis Turnage, Attorney at Law, Cleveland, Mississippi

APPEARING FOR EMPLOYER AND CARRIER:
Honorable Ben M. Logan, Attorney at Law, Tupelo, Mississippi
 

A hearing was held on December 6, 1999, at 10:00 a.m., at the Grenada County Courthouse located in Grenada, Mississippi. This cause concerns an admitted injury suffered by the claimant while in the employ of the instant employer.

Prior to going onto the record, the parties entered into the following stipulation: The average weekly wage of the claimant was determined to be $390.60.

Evidence was entered into this cause as follows: Claimant Exhibit 1, Deposition of David C. Horn; Claimant Exhibit 2, Deposition of Dr. Rommel G. Childress; Employer and Carrier Exhibit 3, Deposition of Dr. Rodney Olinger; Employer and Carrier Exhibit 4, Deposition of Dr. Stephen Gipson; General Exhibit 5, MWCC Form B-3; Claimant Exhibit 6, Verification of Application for Employment; Employer and Carrier Exhibit 7, Medical Records; Employer and Carrier Exhibit 8, Initial Vocational Evaluation 6f Sam Cox, Rehabilitation, Inc. and Vocational Report.
 

The existence, nature, and extent of disability attributable to the injury, inclusive of the date of maximum medical improvement if attained.
 

The claimant testified on the occasion of this hearing that he was born on May 27, 1947 and is a current resident of Grenada, Mississippi. He is married with three children and has achieved a seventh grade education. Claimant testified to a date of injury of December 12, 1996. As to his past work history, the claimant testified he had worked for Hankins Lumber in 1968 and at Rockwell International from 1976 until 1992. He then started driving trucks in Memphis. He had two trucks which he owned and a part-time job until 1993. Claimant made a top pay of "approximately" $800.00 per week. He no longer has the trucks. Claimant then went to work for Lehman-Roberts driving a truck from 1993 to 1994 and achieved $6.50 to $7.00 per hour. Claimant then went to LA Pacific, banding lumber at $5.00 per hour and then back to Hankins Lumber Company. He subsequently went on to Waco Construction as a truck driver and then back to Rockwell. Later he went on to Memphis Hardwood and worked as a general laborer for the sawmill beginning in July or August of 1996. Claimant was asked "Why did you leave Memphis Hardwood" and he indicated that he could not do the heavy lifting and had a doctor's excuse saying so. He achieved $6.50 per hour plus overtime up to a top pay of $6.75 to $7.00 per hour. Claimant has testified to current continued trouble of varying degrees with his back. The claimant's last day of work at Memphis Hardwood was April 28 of 1997. He has attempted to find work since then and has filed an application with Mississippi Employment Security Commission and keeps it current. He went to Corporate Express, Everett Express, two or three local body shops, a local truck hauling concern, and the site of a new school attempting to find employment. "Some took my application, some told me they weren't hiring." He also made an attempt at Memphis Hardwood post-injury for some work. Claimant went on to Southern Automotive driving and unloading a truck of oil at $260.00 per week and worked there "about six days". He then went on to Thomas Wood Preserve and worked for approximately four days at $6.00 per hour. Later, he went to Brown and Thompson where he drove a truck for $400.00 per week for approximately a two-week period. He also worked at State Security as a security guard for $5.25 per hour, working there about six months. He worked for Caldwell Banker moving limbs after an ice storm for two and one-half days and made $600.00. He worked at Johnson Furniture hauling furniture at 15.00 per hour and worked there one and one-half days. Later he attempted to work at G & G Construction for one and one-half days. He then landscaped a parking lot for K & N Construction for four days, making $225.00, afterwards going on to his current job as a janitor, five days a week, four hours a day, at $5.16 per hour at Jameson. "I can handle the job, but I have to be careful. I have worked there for a couple of months." The claimant says he left these jobs previously listed because the work was too heavy for him to perform. As to driving the trucks, he noted that all truck driving pre-dated the injury. Claimant testified that he also had some trouble with the IRS over the trucks and the way he handled the depreciation, etc. with regard to the trucks. He testified that at Memphis Hardwood persons injured were sent to the nurse practitioner and that the nurse practitioner had sent him on to Dr. Olinger. In January of 1999, the claimant went to see Dr. Childress and that was the last doctor claimant has seen for his back. He was asked "What does your back condition keep you from doing" and he noted a lot of bending, twisting and heavy lifting. Claimant testified that he had met two times with David Horn, Vocational Consultant and Expert. The claimant has not applied for Social Security Disability and it was over one year later that the claimant went back to Memphis Hardwood to ask for a job. A video which was not offered into evidence but viewed by the undersigned at the hearing, depicted claimant's activities at a local church where he cuts the yard, etc. He receives $80.00 a month for these services. The video reflected his activities on September 6, 1999.
 
Mr. Sam Cox testified as a Vocational Consultant and Expert in this cause and also tendered his reports. He noted that minimum wage is now at $5.15 and he opined to a vocational certainty that the claimant can return to gainful employment. Mr. Cox's initial vocational evaluation dated August 18, 1999 indicated that Mr. Ross was a 52-year old married male who was reportedly injured while working for Memphis Hardwood Flooring. He had been evaluated and treated by Dr. Childress, Dr. Gipson and Dr. Olinger. It was also important to note, according to this expert, that no invasive surgery had been performed. Mr. Cox reviewed all medical information pertinent to the case, the social and educational background of the claimant, the vocational history of the claimant and the transferable skills analysis. His impression was, based on Mr. Ross' age, demonstrated educational level, past work history and guidelines to return to employment as established by Drs. Childress, Olinger and Gipson, it was his opinion to a vocational certainty that the claimant retains the ability to be employed in occupations in and around his geographical location. He also testified and same is referenced earlier in this Order that Mr. Ross was involved in the employment of mowing yards and doing groundskeeping for a number of friends' houses and also his local church. Claimant had also informed this consultant during his initial vocational interview that he had contacted a number of construction sites regarding cleaning up debris. Mr. Cox also performed labor market data and made his recommendations in the form of a labor market survey. The survey was conducted to contact prospective employers to determine the current or periodic availability for positions for which he would qualify. A second report, vocational in nature, was rendered on August 27, 1999. He noted recent job search activities in Mr. Ross' geographical area to locate employment possibilities for him. Taking into consideration his education, work history, and physical restrictions he noted the following businesses had openings which he felt were immediate in. nature or they anticipated hiring soon, at Multi-Craft Industries in Winona, Mississippi, minimum wage; the John-Richard Collection, Greenwood, Mississippi, minimum wage and up; Irving Automotive Products, Greenwood, Mississippi, minimum wage and up; and the Grenada Newspaper Inc., working as a stuffer in Grenada, Mississippi and commission based. Mr. Cox also pinpointed twelve employers which were contacted but on this date did not have immediate openings, but were known to hire periodically. These were Hickok in Greenwood, Mississippi; Electro Mechanical Devices, Greenwood, Mississippi; Tucker, Inc. In Batesville, Mississippi; Carrollton Manufacturing in Carrollton, Mississippi; Bain Mfg. Co. In Grenada, Mississippi; National Picture Frame Co., Greenwood, Mississippi; Textron, Inc./Randall Div., Grenada, Mississippi; Penneco Hosiery, Grenada, Mississippi; Heatcraft, Inc., Grenada, Mississippi; Balkamp, Greenwood, Mississippi; Viking Range Corp., Greenwood, Mississippi, and Lawrence Printing Co., Inc., Greenwood, Mississippi. These potential employers had a rate of pay beginning at the minimum wage and up with the highest wage listed of $7.00 per hour at several locations.

David C. Horn testified by deposition in this cause. It is noted he is a Rehabilitation Consultant and Expert Witness. Mr. Horn was asked to contact the claimant, interview him, make a study of his work history, review his medical information relative to the on-the-job injury and give his opinion as to his vocational potential or residual functional capacity and to make some recommendations as to what he might or might not be able to do in the future as far as vocation is concerned. He was retained by the claimant's attorney in April of 1999. Mr. Horn contacted Mr. Ross on April 29, 1999. He completed a report taking into consideration all relevant data on May 21, 1999 and gave a synopsis of his work history and a vocational analysis based on that work history, utilizing the DOT (Dictionary of Occupational Titles) and other resource or referenced documents. He also compiled a wage history work summary. Mr. Horn did a synopsis of the physical findings that were indicated in the file and then rendered a vocational conclusion based on that information and analysis. He noted that he reviewed Mr. Ross' history dating back to 1968 and overall Mr. Ross had a listing of unskilled and semi-skilled occupations that varied from light to very heavy. He came to the vocational conclusion that Mr. Ross could not perform any of the duties of his previous occupations and that he is now restricted to "basically" light and unskilled occupations that allow the worker to stand and walk and have some option of sitting for short periods over an 8-hour workday. He would be prohibited in the physical demands of stooping, kneeling, crouching, climbing and balancing and because of the limited lumbar spinal function and limitation of motion, only occasional reaching and manipulation with the upper extremities was allowable. Pushing, pulling, repetitive lifting of the upper torso and extremities was limited so he opined a light unskilled residual functional capacity. His semi-skilled designators do not transfer readily into unskilled or sedentary occupations. Mr. Horn came to the conclusion that although he would be able to do some light and sedentary unskilled occupations, most of these occupations are going to be at or near minimum wage and, therefore, he would have a significant wage-loss based on his prior earning history. He felt that there would be a selective few occupations that such an individual in his situation could perform of a sedentary to a light work status that allowed some standing and walking and the freedom to sit at various intervals. This expert noted that he had seen depositions and reviewed those of Dr. Gipson and Dr. Childress, but he was not aware of seeing one by Dr. Olinger. He reiterated that he was not aware, nor did he mention in his report as attached to his deposition, the fact that on April 7 of 1997 Dr. Olinger, a Neurosurgeon, stated that Mr. Ross was to lift no more than 20 pounds for two weeks and then return to full duties. Upon cross-examination at the time of the deposition, it appeared that this expert was not privy to the complete set of medical records relative to the claimant. Mr. Horn noted that he relied heavily upon the opinions that were the result of his review of Dr. Ronald Childress' records. He opined that this man is not totally disabled, he has some limitations and restrictions, and he tried to recommend something within that concept that such an individual could perform. And, his understanding of these restrictions was not from any particular physician, but his reading of all the physicians that he reviewed together and a compilation of all the evidence that was available. He also testified that he did not think that the claimant (with regard to his restrictions) could perform any type of yard work, like operating a push mower or picking a lawnmower up or using a swing blade. He revealed that he did not do any vocational or educational testing on the claimant. He did testify that he would be capable of earning the minimum wage at present at "some" job in the similar occupations that he had noted in his report within the sedentary to light unskilled level that allows him to stand and walk and sit for short periods of time. He testified in his vocational conclusions that it was evident to him that Mr. Ross now has a severely restricted earnings capacity based upon a review of his work/wage history as compared to the (RFC Residual Functional Capacity jobs he can now perform and the prevailing wages paid within the Mississippi economy for unskilled/light occupations that are within his capacity to perform. Claimant's minimal earnings potential would appear to remain at this level within the foreseeable future and an economic impact and projected loss of monetary wages may be computed by utilizing economic factors over a given period of time such as the expected working lifetime of the injured worker.

Dr. Rommel G. Childress testified by deposition in this cause. He is a Board Certified Orthopedic Surgeon. Dr. Childress noted a first presentation on September 25, 1997 with a chief complaint of back pain and left leg pain. Claimant informed this physician of an on-the-job injury which had occurred on December 12, 1996. Dr. Childress took from the claimant a pertinent history and performed a physical evaluation or examination on that date. His diagnosis was acute and chronic lumbar spine strain. Dr. Childress prescribed Naprosyn and Parafon Forte. The next visit by the claimant was on October 23rd of 1997. He was still having difficulty. The meds were continued. Dr. Childress then did not see the claimant back until January 14, 1999. On that date he reported continued problems on a daily basis. Dr. Childress' impression on that date was acute and chronic lumbar spine strain with radicular symptoms. He altered his meds slightly and reviewed the records of Drs. Olinger, Gipson and Ballard. He saw him again on February 25, 1999 with increased pain reported. He made a slight alteration in the claimant's medication. He noted for the record an opinion to a reasonable degree of medical probability that all problems suffered by the claimant were causally connected to his on-the-job injury. Dr. Childress opined for the Commission a maximum medical improvement date of January 14, 1999 and also opined to a reasonable degree of medical probability a permanent partial medical impairment rating of five percent (5%) to the body as a whole as a result of this injury. He also noted the claimant would be susceptible to future injuries of this nature and was predisposed to recurrent difficulties with certain types of activities and possible future arthritic changes. As to physical restrictions, he would note that claimant should be on restrictive work activity, i.e. no excessive lifting, rather 10 to 20 pounds occasionally on a daily basis. The claimant should ideally do sedentary work where he can change positions often with no repetitive bending, stooping or twisting. A truck driving job would not be advisable for him according to this physician. Dr. Childress also felt the claimant needed a follow-up CAT scan as an update to Dr. Olinger's 1998 testing. Dr. Childress confirmed that maximum medical improvement or recovery occurs at the time when a person's condition has been present for a period of time, is now stable, and unlikely to change in the future months in spite of treatment. Dr. Childress felt secure in his January, 1999 MMI designation. Dr. Childress indicated that no surgical intervention is recommended or necessary for this claimant, and he concluded by remarking that it was his opinion to a reasonable degree of medical probability that the treatment the claimant received from Drs. Olinger and Gipson between his October 25, 1997 visit and the January 14, 1999 visit with the claimant were consistent with his designation of maximum medical improvement on January 14, 1999.

Dr. Rodney Olinger, a Board Certified Neurosurgeon, testified by deposition in this cause. He noted a first presentation on January 13, 1997 upon referral by Angela Hammond, a nurse practitioner. Dr. Olinger took from the claimant a pertinent history and performed a physical examination. The claimant related to him no significant prior back injury. Dr. Olinger prescribed medication and an MRI which was achieved on January 17, 1997. This revealed no ruptured disc, rather minimal degenerative changes of the L-5 disc. The next visit was on January 20, 1997. He altered the meds slightly and continued him on light duty with a return to regular duty on January 27, 1997. Dr. Olinger saw him one last time on April 7, 1997. He noted tightness and mild muscle spasm on that day. He put the claimant back on light duty for two weeks with a 20-pound lifting restriction and the assumption of a full return to duty after a two-week period. His final diagnosis was a lumbar strain and no permanent restrictions were imposed. Dr. Olinger's opinion to a reasonable degree of medical probability was there was no permanent medical impairment rating for this claimant and no permanent restrictions. He opined a maximum medical improvement date of 1-27-97. However, he reflected that if Mr. Ross had seen other doctors or specialist since the last visit with him in 1997, then he may still have problems and although he did not know why the claimant did not come back to see him, obviously the last person who saw him would be the best person to consult about his condition and he would defer to their findings. And if circumstances were such, that his lumbar strain, unoperated, was chronic in nature, a five percent 5% permanent partial medical impairment rating might be appropriate although he did not assess or assign same.

Dr. Stephen Gipson testified by deposition in this cause. Dr. Gipson is a Board Certified Pain Specialist. He first saw the claimant on September 21, 1998 upon a referral by Dr. Olinger. He took from the claimant a pertinent personal and medical history and performed a physical examination. Dr. Gipson made a diagnosis of lumbar radiculopathy and ordered a trial of epidural steroids for pain management. His next visit was on September 28, 1998 and a second block was performed. They afforded the claimant some significant relief. On October 12, 1998 a third treatment in the form of a block was performed. His next and final visit was on November 2, 1998, whereupon the claimant reported he was "feeling great." At the request of the claimant, Dr. Gipson wrote a letter for him relating that he found nothing that was significant to his low back complaints and lower extremities that would impair him from driving a truck. He noted a release to return to work with no restrictions on that date and no permanent partial medical impairment rating pursuant to the AMA Guidelines, Fourth Edition. Dr. Gipson further testified he did not consider Mr. Ross to be a malingerer nor one who was overstating his condition in any regard.

General Exhibit 5 is the MWCC Form B-3 which is the Employer's First Report of Injury or Occupational Disease, and notes that the claimant was injured while trying to retrieve a "hung up" slab of wood out of a resaw on the date of injury while he was working at the sawmill for this employer. This exhibit indicates as well a date of injury of December 12, 1996.

Claimant Exhibit 6 are verifications of applications for employment relative to the claimant's job search efforts. It is noted that he made inquiries at IAC, HOLOX, Criss Office Supply, Inc., BN Homecare, Dollar General, Applied Industries Technology, and registered with the Mississippi State Employment Service.

Employer and Carrier Exhibit 7 are indications of some additional medical records with reference to Mr. Ross' claim. Angela Hammond, nurse practitioner, as alluded to in other parts of this Opinion, noted on 4/28/97 that Mr. Ross was in today complaining of continuing to have low back pain. It was noted that he was advised that he probably needs to seek other employment where he does not have to do lifting or twisting, in that this does seem to aggravate it. He seems to be agreeable with this and acknowledged this information. They offered to get him set back up with Dr. Olinger or with an orthopedic doctor as needed also. The date of this transmittal was April 28, 1997. Further, a notation from Dr. Robert B. Townes, Jr., of the Grenada Doctors Clinic, dated 4/14/97 stated that the claimant should be restricted to light duty only for two weeks with no lifting over ten pounds, no bending, stooping or squatting. A third entry was from the Canale Clinic and noted that Mr. Ross was examined by Dr. Olinger on April 7, 1997 and has now recovered sufficiently to return to work on that date, but may have a twenty pound weight restriction for two weeks and then on to full duties.
 

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 was temporarily and totally disabled from December 12, 1996 through January 14, 1999, the date hereby designated as the date of maximum medical improvement of the claimant and coincidental with the date as opined by Dr. Rommel G. Childress;

2. As a result of this injury and the treatment he received for the resolution therefrom, the claimant has been assigned by a reputable physician, a five percent (5%) permanent partial medical impairment rating and has been assigned certain restrictions with regard to this assignation of medical impairment and with the restrictions imposed upon him which appear to be permanent in nature, and, as well, his susceptibility to reinjury in certain arenas of employ, it is determined that the claimant has suffered a commensurate loss of wage-earning capacity in regards to the fact that some doors will be closed to him forever. Significance is also placed on the pronouncements of the Vocational Experts employed by the parties in this cause and it is noted that a review of the claimant's past work history would denote a prominence of heavy duty semi-skilled jobs in his relevant past work history. Claimant's ability to perform all of these activities will indeed be curtailed as his age progresses.

IT IS, THEREFORE, ORDERED AND ADJUDGED that the employer, Memphis Hardwood Flooring, Inc., and carrier, Employers Insurance of Wausau, pay workers' compensation benefits to claimant as follows:

1. Temporary total benefits in the amount of $260.41 per week, commencing on December 12, 1996 and concluding through January 14, 1999 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 $26.00 per week beginning on January 15, 1999 and concluding after the statutory maximum of 450 weeks in accordance with Mississippi Code Annotated, § 71-3-17(C) (25) (1972).

3. Penalties and interest, if applicable, pursuant to Mississippi Code Annotated, § 71-3-37(5)(6) (1972);

4. Provide medical services and supplies as required by the nature of the claimant's injury and the process of his recovery therefrom as outlined in Mississippi Code Annotated, § 71-3-15 (1972).

SO ORDERED this the 14th day of April, 2000.

VIRGINIA WILSON MOUNGER
ADMINISTRATIVE JUDGE

ATTEST:
Brenda H. Goolsby, Secretary
___________________________

1. We have assumed a standard 40 hour work week to compute Mr. Ross' current earning capacity as it appears to us unlikely he can do more.