MWCC NO. 97 11781-G-1065

WOODROW HINES                                                                                                                         CLAIMANT

vs.

ATLAS ROOFING CORPORATION                                                                                            EMPLOYER
AND
LUMBERMEN'S UNDERWRITING ALLIANCE                                                                          CARRIER

REPRESENTING CLAIMANT:
Honorable Will Parker, Attorney at Law, Meridian, Mississippi

REPRESENTING DEFENDANT:
Honorable Donald Burch, Attorney at Law, Jackson, Mississippi
 

The Commission heard the above styled cause on October 16, 2000 in the offices of the Mississippi Workers' Compensation Commission in Jackson, Mississippi on the employer and carrier's "Petition for Review"

Having heard the arguments offered on behalf of the parties and having thoroughly studied the record and the applicable law, the Commission affirms the "Order of the Administrative Judge" dated July 6, 2000.

SO ORDERED, this the 17th day of October, 2000.

MISSISSIPPI WORKERS' COMPENSATION COMMISSION
BY: BARRETT SMITH
BEVERLY BOLTON
BARNEY SCHOBY
COMMISSIONERS

ATTEST:
Joann McDonald, Secretary
___________________________
 

MWCC NO. 97 11781-G-1065-B-00

WOODROW HINES                                                                                                                         CLAIMANT

vs.

ATLAS ROOFING CORP.                                                                                                               EMPLOYER
AND
LUMBERMEN'S UNDERWRITING ALLIANCE                                                                           CARRIER

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

APPEARING FOR EMPLOYER/CARRIER:
The Honorable Byron Carter, Attorney at Law, Jackson, Mississippi
 

The claimant, Woodrow Hines, alleged a compensable injury on August 13, 1997 while in the employ of Atlas Roofing Corporation (hereinafter "Atlas"). At the hearing on the merits of the claimant's Petition to Controvert held on the 26th day of June, 2000 in Hearing Room B of the Mississippi Workers' Compensation Commission, Jackson, Mississippi, the parties stipulated to the following facts:

1. The claimant sustained an admittedly compensable injury on August 13, 1997.

2. The claimant's average weekly wage at the time of injury was $308.82, rendering a compensation rate of $205.88.

3. The claimant reached maximum medical improvement on September 15, 1999.
 

The issues remaining for decision of the Administrative Judge are as follows:
 

The claimant, Woodrow Hines, is a 44 year old resident of Meridian, Mississippi. He testified that he attended public school through the eighth grade, but during his public school education he attended only two classes per day and worked in the lunchroom the remainder of the school day to pay for his school lunches. In response to inquiries relative to his functional educational skills, he testified that he cannot write, can "barely" sign his name, cannot read at all-even traffic signs, which he can determine only by their shape or the ideogram on the sign.¹ He indicated that he cannot read road signs enough to follow directions in travel and thus if he is required to travel somewhere that he has never been before, he must take someone else with him to navigate for him.

After leaving school subsequent to his eighth grade year, Mr. Hines testified that he worked as a pulpwood hauler for his father for two to three years. Then he performed the same job for Jimmy Williams for several years in the mid to late 1970s. Thereafter, Mr. Hines worked at Owen Brothers, meat packers, loading trucks with product. He testified that he loaded the trucks by hand and the heaviest product he was required to lift was a hind quarter, which weighed approximately 200 pounds.

After working for Owen Brothers, Mr. Hines worked as a roofer helper, tearing off roofing and cleaning up the scrap, loading it on the truck. He described this as heavy work and testified that he performed no carpentry or actual roofing, not having these skills. Mr. Hines left Owen Brothers and returned to his father's employ, where he worked cutting and hauling pulpwood for approximately seven to nine years.

On cross-examination, the claimant recalled other jobs he had held. He was employed by Moseby Meat Company, where he operated a grinder, feeding it with meat in order to make sausage. He testified that he was required to lift 10 pounds of meat at a time in order to operate the grinder. He also recalled work at Burlington Industries, where he fed hoppers of cotton by removing cotton from bales by cutting the bales with an axe and lifting 15 to 30 pounds of cotton into the hoppers at a time. He also testified that on one occasion he had built fences for show horses, which required him to deal with rolls of horse-wire weighing from 150 to 200 pounds per roll.

On June 20, 1997, the claimant began working at Atlas. His primary occupation at Atlas was feeding two machines with shingle material. He testified that to perform this job successfully, he was required to pick up approximately 40 to 60 pounds of material at the time. This job he performed four days per week. On the fifth day, he was required to take roofing off the line and place it on a pallet by hand. He testified that the roofing material had not been wrapped at this stage of production and he was required to lift from 50 to 200 pounds of roofing material at a time. He testified that two individuals lifted the material from the line together, and that the line operated "fast".

The claimant was injured on August 13, 1997 while lifting roofing material from the line to pallets. The claimant testified that he was treated primarily by Dr. Ilercil, a neurosurgeon at Rush Medical Clinic in Meridian. He indicated that he underwent back surgery in early 1998 wherein Dr. Ilercil engaged a cage and screws to stabilize the claimant's spine. Dr. Ilercil ultimately referred the claimant to Dr. Collipp, who prescribed epidural steroid injections and physical therapy. The claimant was finally released on September 15, 1999.

The claimant testified that he returned to Atlas on two occasions² requesting work and was told by Sonny Harris, whom the claimant characterized as "the boss man", and by Bob, whom the claimant characterized as "over Sonny", that work was not available within the claimant-'s restrictions. The claimant testified that exhibits C-5 through C-9 reflect his job search efforts. He has been unable to obtain employment, despite these efforts. Since he left Atlas, the claimant testified that the only work he has accomplished is assisting his former girlfriend, Carol Ann, in repossessing approximately 10 cars and in delivering scrap steel and aluminum to Queen City Recycling. He testified that he neither loaded or unloaded the scrap, and that it was collected by Carol Ann and receipts went to Carol Ann. He indicated that he assisted Carol Ann in delivering scrap steel on three or four occasions and scrap aluminum on four or five occasions. He admitted that he had sold approximately 15 car batteries for salvage. He indicated that these batteries weigh approximately 20 pounds.

The claimant testified as to his current physical condition: his back hurts all the time; his legs are numb most of the time from his hips to his toes; he can sleep no longer than an average of three to five hours per night because of pain. He can drive a vehicle no longer than 30 minutes without experiencing numbness in both legs. Walking hurts his lower back.

The claimant testified that he could not return to pulpwood work because it requires lifting that he is unable to accomplish. He also testified that he could not return to the job he held at Atlas when he was injured because it also requires lifting that is too heavy for him to do.

On cross-examination, the claimant admitted that he was injured three days prior to the date that he was to be laid off. He has never been recalled after the lay off. He does not know of anyone who was laid off at the same time he was to be laid off, or anyone who has been recalled. He testified that when he returned to Atlas seeking employment, neither Sonny nor Bob mentioned the lay off or a recall.

When questioned on cross-examination about his job searches, the claimant indicated that many of the entities where he sought employment were not hiring at the time that he applied or sought to apply. He testified that Peavy was hiring but did not offer him employment, and that Burlington was hiring but did not offer him employment because he could not read or write.

Mr. Pete Mills of Rehabilitation, Inc., testified as an expert in the field of vocational rehabilitation. He testified that he met with the claimant on November 20, 1998 and obtained from the claimant his educational history, work history, physical functioning and transferrable skills. He also reviewed the claimant's medical records, with specific attention to the records of Dr. Lynn Staggs and Dr. David Collipp. He testified that Dr. Staggs had opined that the claimant could perform medium level work for eight hours per day, lifting up to 50 pounds occasionally, 25 pounds frequently, and standing up to 2/3 of a full work day. He testified that in September of 1999 Dr. Collipp upgraded the claimant's performance level to medium/heavy work. Mr. Mills testified that Dr. Collipp gave few specifics, and referenced a functional capacities evaluation (hereinafter "FCE") which is unavailable. However, the witness opined that from a vocational standpoint, he interpreted Dr. Collipp's opinion to suggest that the claimant could perform a full range of medium work but typically not a full range of heavy work. In other words, Mr. Mills opined that the claimant was impaired by a reduction in an ability to perform all aspects of heavy work, and could probably lift only 60 to 70 pounds occasionally.

Mr. Mills testified that in his capacity as an expert in the field of vocational rehabilitation, he had formed an opinion as to whether this claimant could return to gainful employment and his opinion was affirmative. The witness testified that the claimant could enter the work force in an unskilled or lower level semi-skilled position at minimum wage. He testified, however, that several jobs identified in exhibit E/C-14 would not be appropriate to the claimant.³

On cross-examination, Mr. Mills admitted that, based on the claimant's direct testimony relative to his inability to read sufficient to follow directions, that it would be difficult for him to function as a pizza delivery man.

It was Mr. Mills' opinion that the claimant's educational restrictions are more substantial limitations to his ability to secure gainful employment than his physical restrictions. He testified that, but for the claimant's educational insufficiencies, he would qualify for approximately 60% of all jobs, being in the medium to sedentary range. However, he admitted that the claimant's educational deficiencies are "serious" and do restrict his ability to perform numerous jobs. However, Mr. Mills' opinion remains that the claimant should be able to find an unskilled job at minimum wage within a 30 mile radius of the claimant's residence.

Dr. Orhan Ilercil testified by medical records affidavit. These records indicate that Dr. Ilercil performed complex lumbar decompressive surgery with associated interbody fusion and instrumentation with pedicle screw instrumentation and posterolateral fusion. Dr. Ilercil followed the claimant, noting a normal recovery, and noted that the claimant had reached "maximum surgical improvement" on June 10, 1998. Dr. Ilercil recommended that the claimant be followed by a physiatrist.

Susan K. Van Rooy, M. P. T., testified by medical records affidavit that she performed an FCE for Work Force Wellness at Rush Foundation Hospital. This FCE, which occurred on June 30, 1998, indicates that Mr. Hines is capable of performing
physical work at medium level and sustaining this level of work for an eight hour day. She testified that the conditions underlying Mr. Hines' inability to function at a more strenuous level are decreased strength, endurance and complaints of lower back pain. Although the FCE reveals that there is no activity measured that the claimant could perform constantly, he could sit and stand frequently, work with arms over head, supine, frequently, climb stairs frequently, and likewise walk, crawl and climb a ladder frequently. She indicated that the claimant should never work kneeling or work bent over from a sifting position, although he could occasionally perform the following activities:
 

Dr. Bonnie Allen, a clinical psychologist, testified by medical records affidavit that she performed an examination of the claimant on January 22, 1999, administering the Wechsler Adult Intelligence Scale-Third Edition (WAIS-III) and the Wide Range Achievement Test-Revision III (WRAT-III) and noting that the claimant was responsive, highly motivated and cooperative. Derivative of the testing was Dr. Allen's opinion that the claimant's verbal IQ was 66, his performance IQ was 65 and his full scale IQ was 63. She noted "mentally deficient intellectual functioning" indicating that the performance is typical of an individual with "mild mental retardation." She indicated that the claimant performed at the equivalent of the kindergarten level in reading, first grade in spelling, and third grade in arithmetic.

Dr. Neal Capel performed in Independent Medical Examination on October 21,1999 and rendered a 15% permanent medical impairment to the claimant's body as a whole and indicated work restrictions as follows:
 

Exhibits CL-5 through CL-9 reflect the claimant's job searches.

Dr. David Collipp testified by medical records affidavit. He initially saw the claimant on June 29, 1999 on referral from Dr. Jeff Summers. Dr. Collipp's physical examination on that date left him with the impression that the claimant suffered L4-5 and L5-S1 facet joint arthropathy with morbid obesity and spondylolisthesis associated with lumbar strain following surgical decompression and fusion with radiculopathy. Dr. Collipp followed the claimant through physical therapy, work hardening, and ultimately a second FCE. Dr. Collipp, on September 15,1999 after review of the FCE, indicated that the claimant should be able to perform medium/heavy duty but nothing above that level. He indicated that the claimant had a 10% permanent medical impairment to the body as a whole, concurring with Dr. Lynn Staggs.

Dr. Jeffrey Summers testified by medical records affidavit He performed a pain management evaluation on the claimant on April 16, 1999. At a subsequent evaluation on June 14, 1999, Dr. Summers could reproduce the claimant's pain with flexion at 85 degrees or extension at 15 degrees. He indicated that the claimant's pain seemed to be centering over facets L4, L5, and S1 bilaterally. Complaints of bilateral leg pain are not supported by a recognized dermatornal pattern and complaints of back pain are more severe than leg pain complaints. Facet injections were performed on July 13,1999 at L4-5 and L5-S1 with what Dr. Summers characterized as an 80% reduction in pain. On his return visit of July 27, 1999, the claimant reported almost no pain for six to seven days after the injection. A second injection on August 2, 1999 resulted in what the claimant characterized as a 70% improvement, with residual discomfort at L5-S1. On September 3, 1999 it was the claimant's report to Dr. Summers that the injections had improved his back pain by 50%; pain gradually began to increase after one week following the second injection. Dr. Summers concluded that the claimant's pain appears to be emanating from the facets.

Dr. Lynn A. Staggs testified by medical records affidavit. Dr. Staggs issued an opinion on July 24, 1998 which reflected the claimant's history and rendered an opinion that the claimant sustained a 10% permanent impairment rating to the whole person. She noted that the claimant has electrodiagnostic evidence of radiculopathy. She also noted that the claimant may not have reached maximum medical improvement as of this date.

Dr. Kenneth Staggs, Jr. testified by medical records affidavit relative to a consultation performed January. 13, 1999, but his consult notes add little to the complete medical picture of the claimant resulting from the physicians noted above who were more involved in the claimant's treatment.

Exhibit E/C-14 supports the testimony of Mr. Mills.
 

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

1 . The claimant sustained an admittedly compensable injury which occurred on August 13, 1997 while the claimant was employed by Atlas.

2. The claimant was temporarily and totally disabled from the date of injury through September 15, 1999, the date that the parties stipulated that the claimant had reached maximum medical improvement.⁴

3. Numerous of the claimant's physicians have opined as to the claimant's permanent medical impairment and permanent restrictions and limitations on future physical activity. The medical impairment ratings range from 10% to 15% to the body as a whole and the restrictions and limitations preclude the claimant from heavy work. The most generous limitations, interpreted by Mr. Mills, the vocational rehabilitation expert, would reflect a lifting restriction not to exceed 60 to 70 pounds and suggest that the claimant could perform medium/heavy work. Medical opinions supported by the FCE in the record suggest that the claimant cannot perform at this level, but can perform medium work. The restrictions reflected in this FCE, and the restrictions and limitations provided to the Commission by Dr. Neal Capel's Independent Medical Examination tend to support the medium level of work.

Of course, it goes without saying that few of the claimant's jobs that he held prior to Atlas would be within the parameters of medium level work.⁵ Principally, the claimant's work history has been that of heavy manual labor. Besides being precluded from returning to the type of work he has performed over the majority of his adult life as a result of his permanent medical impairment, limitations and restrictions, he is precluded by these same factors from returning to Atlas.

Moreover, his very low intellectual functioning, characterized by Mr. Mills as a "serious" impairment to the claimant's future employability, precludes him from additional job opportunities. In fact, as skillfully noted by claimant's counsel in cross-examination of Mr. Mills, of the 17 jobs located in Mr. Mills' Initial Vocational Evaluation of November 30, 1998, five days after he met with the claimant initially, 10 of the entities were not then hiring, and Mr. Mills testified that of the remaining seven, the claimant would be precluded by reason of impaired intellect or educational opportunity from five⁶ and from the final two⁷ for essentially the same reasons. Essentially, over a period of two and a half years, Mr. Mills identified three positions for which he believed the claimant could qualify as an employee.

Exhibits CL-5 through CL-9 reflect that the claimant has made a reasonable job search but has been unable to secure employment. Although the claimant offered himself for employment at many entities which, by his own testimony, were not hiring, considering his level of intellectual functioning, he is to be applauded for his diligence of effort.

Considering the foregoing facts, it is clear that the claimant's injury has taken from him the ability to earn a living in the heavy, manual labor fields with which he has had lifelong experience and in which he could function effectively with his limited education and intellectual functioning. This impact on his wage earning capacity is significant, as many jobs within the claimant's limitations and restrictions require some capacity to read, write, or do elemental math. To date, despite Mr. Mills' best efforts and the claimant's own efforts, he is unable to earn a wage.
 

IT IS, THEREFORE, ORDERED AND ADJUDGED that the employer and carrier provide to the claimant the following:

1 . Permanent total disability benefits in the amount of $205.88 per week commencing August 13, 1997 and continuing for 450 weeks with credit for amounts of temporary disability previously paid by the employer and carrier;

2. Medical services and supplies for such period as the nature of the claimant's injury and the process of the recovery may require, consistent with Mississippi Code Annotated, section 71-3-15 (1972) (as amended);

3. Penalties and interest as allowed by law.

SO ORDERED this the 6th day of July, 2000.

LYDIA QUARLES
ADMINISTRATIVE JUDGE

ATTEST:
Joann McDonald, Secretary
___________________________

1. For example, Mr. Hines testified that he could identify the shape of the stop sign and could also identify the "hill" sign.

2. The claimant's exhibits C-7 and C-8 indicate that these visits occurred on February 16, 1999 and March 8, 2000.

3. Mr. Mills testified that, based on the claimant's direct testimony, he would remove four jobs listed in his November 25, 1998 list, leaving the Peavy job, because of the claimant's limited level of educational functioning. He testified that as to his January 31, 2000 list, he would also remove the Burns & Burns job, which is a cashier's position, it being his opinion that the claimant does not have capacity to perform a cashier's position.

4. This is also the date that Dr. Collipp identified as the claimant's date of maximum medical improvement.

5. Perhaps only the claimant's jobs at Burlington and Moseby Meat Company would be characterized as medium level work.

6. Mr. Mills testified that the claimant would not be a suitable employee at Pioneer, Ludlow or Lockhead because of educational requirements, and that he would not be a suitable employee at Burns & Burns or Wal-Mart, which were cashier jobs for which the claimant had no capacity.

7. The two remaining jobs were delivery jobs and, based on the claimant's direct testimony relative to his inability to read sufficient to determine directions, Mr. Mills testified that the claimant would have a "hard time" performing a delivery job, although it was his opinion that pizzerias such as this also offer part time janitorial positions and cooking positions. (The claimant had been otherwise precluded from a cashier position as such a restaurant.)