MWCC NO: 97 14372-G-1353
JEROME PFEIFER CLAIMANT
vs.
TEMPS R US
EMPLOYER
AND
MISSISSIPPI CASUALTY INSURANCE COMPANY
CARRIER
REPRESENTING CLAIMANT:
Honorable Ellis Turnage, Attorney at Law, Cleveland,
Mississippi
REPRESENTING DEFENDANT:
Honorable Gary K. Jones, Attorney at Law, Jackson,
Mississippi
The Commission heard the above styled cause on June 5, 2000, in the offices of the Mississippi Workers' Compensation Commission, Jackson, Mississippi on the Claimant's "Petition for Review" by the Full Commission and Claimant's "Motion for the Introduction of Additional Evidence".
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 Administrative Judge" dated November 1, 1999.
Claimant's "Motion for the Introduction of Additional Evidence", filed with the MWCC May 25, 2000, is granted.
SO ORDERED, this the 6th day of June, 2000.
MISSISSIPPI WORKERS' COMPENSATION COMMISSION
BY: Ben Smith
Barney Schoby
Beverly Bolton
COMMISSIONERS
ATTEST:
Brenda H. Goolsby, Secretary
___________________________
MWCC NO. 97 14372-G-1353-A
JEROME PFEIFER CLAIMANT
vs.
TEMPS R US, INC.
EMPLOYER
AND
MS CASUALTY INSURANCE COMPANY
CARRIER
APPEARING FOR THE CLAIMANT:
Honorable Ellis Turnage and Honorable Shannon
Bruno, Cleveland, Mississippi
APPEARING FOR THE EMPLOYER AND CARRIER:
Honorable Gary K. Jones, Jackson, Mississippi
On October 24, 1997, the claimant filed a petition to controvert alleging that on September 2, 1997, he received a work-related injury to his back. The employer and carrier admitted the compensability of the injury, provided medical services and supplies of all medical providers except the Veterans Administration doctors and Dr. Susan Gunn, an internist, after a certain point, and paid temporary total disability benefits for approximately twelve weeks at the rate of $270.67 a week, in the total amount of $3,325.36. A dispute arose, however, regarding the extent of disability resulting from the work injury, and a hearing was held in the Grenada County Courthouse in Grenada, Mississippi, on September 14, 1999.
The record was held open after the hearing for
the claimant to obtain and file all of the claimant's medical records from
the Veterans Administration (V.A.), for the employer and carrier to take
a cross-examination deposition related to the V.A. medical records, and
for the employer and carrier to take the cross-examination deposition of
David Horn, the claimant's expert vocational rehabilitation witness who
was unexpectedly unable to attend the hearing. The V.A. medical records
and deposition of David Horn have since been filed with the Commission
and received into evidence as Exhibits 9 and 11, respectively, and the
employer and carrier have notified the Administrative Judge that they do
not wish to take a deposition regarding the V.A. medical records, the letter
to that effect having been received and marked as Exhibit 10.
The parties stipulated that the claimant's average
weekly wage on September 2, 1997, was $554.92.
The primary issue to be resolved by the Administrative
Judge is the extent of disability or loss of wage-earning capacity, if
any, resulting from the work injury.
The claimant, Jerome Pfeifer, is forty-eight years old and a resident of Grenada. He is married and has grown children. He was born in South Bend, Indiana, and he grew up in Grand Rapids, Michigan. He went to the tenth grade in school. In 1987, in Lansing, Michigan, he attended Lansing Community College for three months to study auto mechanics, electrical mechanics, and engine rebuilding. He did not earn a certificate. At the hearing, he testified in a very articulate manner.
After he left school, Mr. Pfeifer worked three months for S.S. Kresge's in Grand Rapids as a stock boy. He worked for his father as a mechanic's helper for about three years. Then he was a carpenter's helper at Grand Rapids Mill Work building trusses for roofs.
From 1976 to 1977, Mr. Pfeifer served in the U.S. Army. He testified that he left the Army after nine months because of family problems. He was a heavy equipment repairman in the Army, and the work was strenuous.
Later, for about a year, Mr. Pfeifer worked at Big Al's Car Lot in St. Louis, Missouri, as a car buffer. Then he worked for J & L Roofing Company in Grand Rapids, doing asphalt roofing. This was heavy manual labor. After that, he did trailer repair for three months. He worked for Associated Truck Lines as a dock helper, unloading and loading trailers. He worked for another transporter in Lansing, Michigan, doing over-the-road truck driving. Subsequently he worked at different places in Jonesboro, Arkansas, as a mechanic. Between 1988 and 1996, he worked in Arkansas, Indiana, and Michigan as an auto mechanic for "shady people" who "paid under the table."
On December 14, 1996, Mr. Pfeifer's son was murdered, and, looking for a safer place to live, Mr. Pfeifer moved his family to Grenada, Mississippi. He had not lived in Grenada before, but his mother had a brother there. Mr. Pfeifer filed for unemployment benefits and started to look for work.
In June 1997, Mr. Pfeifer began work as a diesel
mechanic for Temps R Us at a Waste Management facility on Oak Park Industrial
Road in Grenada. He worked five to six days a week, twelve hours a day
during the week and six hours on Saturday, working every other weekend.
He earned $9.50 an hour. The work was heavy, and he had to do stooping,
bending, reaching, and heavy lifting.
On September 2, 1997, Mr. Pfeifer reported for work and was told to repair the third axle on a garbage truck, a front-end loader. While he was working a jack and prying up the axle, he was slammed to the ground by the axle. He said he landed on his hips on concrete and felt a sharp, shooting pain across the back. He described the fall as hard. He finished working that day and came back the next day, but his back began to hurt that afternoon. He thought it was just muscle pain and kept working. The pain intensified, however, and never let up.
After several days, Mr. Pfeifer went to the hospital. He was referred to Dr. Susan S. Gunn of the Internal Medicine Associates of Oxford at her Grenada office. Mr. Pfeifer said Dr. Gunn did some diagnostic testing and prescribed medication and restricted him to light duty. Mr. Pfeifer continued to work until October 7, 1997
Dr. Gunn subsequently referred Mr. Pfeifer to Dr. Dowen Snyder, a Memphis neurosurgeon who has a clinic in Grenada, whom Mr. Pfeifer saw first on October 8, 1997. Dr. Snyder took him off work and ordered a myelogram. He then recommended surgery, which he performed on October 20, 1997. Dr. Snyder released Mr. Pfeifer on December 12, 1997. Mr. Pfeifer last saw Dr. Snyder on January 14, 1998.
According to Mr. Pfeifer, Dr. Snyder said he would not allow him to get disability. Mr. Pfeifer subsequently went to the V.A. Medical Center to find out what was wrong with his back.
Since October 7, 1997, when he was taken off work at Temps R Us, Mr. Pfeifer has not been back to work. He has seen Dr. Thomas Windham, neurosurgeon in Oxford; Dr. William Barr, orthopaedic surgeon in Clarksdale; Dr. Ballard, a chiropractor; and the physicians at the V.A. He last saw a doctor at the V.A. on June 11, 1999. He said he has been to the V.A. five or six times this year. His next appointment is scheduled for November 3, 1999.
According to Mr. Pfeifer, he can no longer walk like he used to do. He cannot do prolonged sitting, standing, walking, or exercising. He cannot bend, stoop, or reach without pain. He has spasms and swelling in his lower back. He takes pain medication, including Darvocet, as prescribed by Dr. Gunn and the V.A. doctors. He cannot work because of the pain medication that he takes; it makes him forgetful and sleepy. He said he has had no subsequent injuries.
Mr. Pfeifer applied for Social Security disability benefits in order to get some income, and his application was approved by order dated February 8. 1999. He has received $385.00 a month since April 1999. His wife has supported him. He is on Medicaid, and Medicaid paid for the chiropractor. Mr. Pfeifer has not applied for work although he talked to someone about answering the telephone at a 24-hour wrecker service. He has supervised his son doing some work.
The claimant introduced into evidence the report of David C. Horn, rehabilitation consultant in Houston, Mississippi, dated April 21, 1999. Mr. Horn noted Mr. Pfeifer went to the eleventh grade in school and obtained a GED certificate in 1976. He made reference to Mr. Pfeifer's vocational training at Lansing Community College and his work history as diesel mechanic, auto mechanic, long-haul truck driver, roofer, and carpenter's helper. He summarized:
Mr. Horn concluded:
2. He cannot return to or perform any of his previous occupations or to any lighter occupations to which his skills. transfer.
3. His rehab and return to work potential is considered to be poor at this time.
4. His earnings potential is "zero" at this time and would appear to remain at this level in the foreseeable future.
5. 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 an injured worker.
The employer and carrier took the deposition of Mr. Horn on October 7, 1999. Mr. Horn said he testified at Mr. Pfeifer's hearing before the Social Security Administration regarding his application for disability benefits. Mr. Horn interviewed Mr. Pfeifer on March 11, 1999, at Mr. Pfeifer's home in Grenada. Mr. Horn concluded that Mr. Pfeifer could not return to any occupation, based particularly on the functional capacity evaluation results and on Mr. Pfeifer's subjective complaints of pain, and Mr. Horn did not contact any prospective employers. Mr. Horn's work was done for Social Security purposes.
The employer and carrier introduced into evidence the deposition testimony of David E. Stewart, vocational rehabilitation consultant in Tupelo. Mr. Stewart prepared a vocational assessment of Mr. Pfeifer's career potential and issued a report dated July 19, 1999. Mr. Stewart reviewed the medical records of Dr. Snyder and other medical providers, the claimant's answers to discovery requests, and the report of David Horn, the claimant's vocational rehabilitation expert. Mr. Stewart opined Mr. Pfeifer had a good education, a strong semi-skilled and skilled work background, and a history of jobs that showed responsibility and ability to make logical conclusions. Mr. Stewart said Mr. Pfeifer had rehab potential.
Mr. Stewart noted Dr. Snyder released Mr. Pfeifer to return to work January 2, 1998. Mr. Stewart also reviewed the functional capacity evaluation report that indicated Mr. Pfeifer gave submaximal effort so that
Mr. Stewart did a labor market survey in the Grenada County and surrounding area and found a number of jobs he thought Mr. Pfeifer could do. He suggested several job possibilities, such as a truck-driver position that did not require the loading or unloading of cargo, a machine operator at a manufacturing plant, a fork lift operator at a flooring company, a local delivery driver for a paper company, a carburetor component assembler at a plant, a dump truck operator, and a manager trainee position at an Auto Zone.
The medical records of Dr. Dowen E. Snyder, neurosurgeon with the Canale Clinic, have been admitted into evidence. Dr. Snyder first examined Jerome Pfeifer on October 8, 1997, for complaints of pain in the back, left hip and leg, following a back injury on September 2, 1997. Dr. Snyder suggested a lumbar myelogram. with post-contrast CT scan, as well as medication. The myelogram and CT scan were done October 13, 1997, revealing a herniated disc at L4-5 on the left side and spinal stenosis at the L4-5 level. On October 15, 1997, Dr. Snyder recommended surgery which he performed on October 20, 1997. On November 5, 1997, Dr. Snyder noted Mr. Pfeifer was making good progress. On November 19, 1997, Dr. Snyder recommended a work-hardening program for two weeks.
Attached to Dr. Snyder's records is a report of the Rehab Group in Oxford, dated December 2, 1997. The industrial program coordinator and the physical therapist reported that Jerome Pfeifer completed a three-hour evaluation on December 2, 1997, to gain baseline data for entry into the work-hardening program. The report states that Mr. Pfeifer did not give maximum effort and test results were inconsistent. He demonstrated symptom magnification and pain behavior. The therapists opined that Mr. Pfeifer was a poor candidate for the work-hardening program due to his high pain profile, subjective limitations, and inconsistencies. According to the report, "Limitations were noted with walking, sitting, standing, bending, squatting, carrying, pushing and pulling." (Exhibit 5, p. 7).
Dr. Snyder examined Mr. Pfeifer again on December 10, 1997, and noted:
Dr. Snyder returned Mr. Pfeifer to full-duty work on January 2, 1998. He assigned a permanent impairment rating of 8% to the body as a whole.
On January 14, 1998, Dr. Snyder examined Mr. Pfeifer, who complained of pain in the left hip and leg. Dr. Snyder could not find evidence of recurrent nerve root compression but set up a repeat MRI of the lumbar spine.
Also on January 14, 1998, Mr. Pfeifer went to the V.A. and complained of back pain since September 2. He also was seen on January 20, 1998. On January 23, 1998, Mr. Pfeifer took his MRI film of January 16, 1998, to the V.A. He complained of low back pain. The V.A. records show Mr. Pfeifer was examined on March 4, April 9, and July 9, 1998, for complaints of back pain.
The medical records of Dr. William M. Barr, orthopaedic surgeon in Clarksdale, have been received into evidence. Dr. Barr examined Jerome Pfeifer on July 13, 1998, for complaints of pain in his lower back radiating into his left leg. Dr. Barr diagnosed post surgical laminectomy at the L4-5 level on the left with residual sciatica secondary to scar tissue as noted on the MRI of January 16, 1998. Dr. Barr did not find any evidence of a recurrent disc. Dr. Barr opined Mr. Pfeifer had reached maximum medical recovery and assigned a permanent impairment rating of 10% to the body as a whole.
On September 1, 1998, Mr. Pfeifer was treated at the V.A., where the plan was stated to be to continue present medication and do an injection. On September 21, 1998, Mr. Pfeifer said his back pain radiated into his left leg. In October 1998, Mr. Pfeifer's condition was said to be unchanged. He was asked to return in three months.
The medical records of Dr. Susan S. Gunn of the Internal Medicine Associates of Oxford were received into evidence. Dr. Gunn's first record is dated October 13, 1998, when Mr. Pfeifer saw her for complaints of low back and left leg pain since surgery in October 1997. Dr. Gunn referred Mr. Pfeifer to Dr. Windham.
The medical report of Dr. Thomas L. Windham, neurosurgeon in Oxford, was received into evidence. Dr. Windham examined Jerome Pfeifer on October 13, 1998, for complaints of back, left hip, and sciatic pain. Dr. Windham diagnosed left sciatica and possible disc rupture. He requested an MRI scan and noted that if the MRI were normal then he would order lumbar epidural blocks. An MRI report dated December 3, 1998, and attached to Dr. Windham's report, indicates "Enhancing scar at the L4-5 level on the left with the hypertrophy of the ligamentum flavum on the right at the L4-5 level. No bulging disc or HNP is identified at any of the lumbar levels." (Exhibit 3, p. 5).
Dr. Gunn saw Mr. Pfeifer again on November 12, 1998, for complaints of worsening lower back and left leg pain. Dr. Gunn noted he was being followed at the V.A. in Jackson. Dr. Gunn dictated on January 5, 1999, that Mr. Pfeifer had had an MRI of the lumbosacral spine on November 27, 1998, that revealed a small central disc protrusion at L4-5, with bony and soft tissue hypertrophic changes and encroachment on the thecal sac causing mild to moderate spinal stenosis.
Mr. Pfeifer was seen at the V.A. again on December 21, 1998, when the physician discussed his MRI report of November 27, 1998. On January 8, 1999, Mr. Pfeifer went back to the V.A.
On February 19, 1999, Mr. Pfeifer returned to see Dr. Gunn with complaints of continued back and leg pain. He also requested explanation of two MRI reports which apparently showed conflicting information. Dr. Gunn explained that he was asking her help in an area not her specialty.
On March 12, 1999, Mr. Pfeifer returned to the V.A., complaining of chronic back pain. The physician refilled his medication and asked him to continue using his TENS unit. On March 31, 1999, Mr. Pfeifer returned to the V.A. pain clinic. Dr. Ike I. Eriator, anesthesiologist and pain control specialist, diagnosed low back pain and myofascial spasm. He suggested a repeat trigger point injection.
Dr. Gunn treated Mr. Pfeifer again on April 2, 16, 28, and 30, and May 17 and 21, 1999, for complaints of urinary pain and abdominal pain. These problems were apparently not related to the work injury.
On June 2, 1999, Dr. Gunn answered some question posed to her by Mr. Pfeifer's attorney. She deferred to Mr. Pfeifer's neurosurgeon for a permanent impairment rating but answered "No" to a question about whether Mr. Pfeifer could do heavy lifting, bending, stooping, repetitive kneeling, squatting, or twisting. She checked "Yes" to questions about whether his on-the-job injury would make his back more susceptible to future injuries and to future arthritic changes.
On June 4, 1999, Dr. Snyder answered some questions posed to him by the claimant's attorney in a letter dated May 25, 1999. Dr. Snyder said Mr. Pfeifer had a lumbar herniated disc at the L4-5 level on the left, consistent with the history of the on-the-job injury. Dr. Snyder said Mr. Pfeifer would not require future medical treatment or medication unless he re-injures himself. He answered that the work injury would not make him more susceptible to future back injuries or to arthritic changes. Dr. Snyder said to refer to the work-hardening report for restrictions or limitations.
Dr. Eriator at the V.A. examined Mr. Pfeifer again
on June 16, 1999, for complaints of continuing pain in his back. Mr. Pfeifer
said he was seeing a chiropractor. Dr. Eriator diagnosed low back pain
and degenerative disc disease and suggested a trigger point injection and
EMG/nerve conduction studies of the lower extremities. On July 20, 1999,
Mr. Pfeifer called Dr. Eriator regarding pain in his lower back after he
put in a car battery.
After carefully considering the pleadings, pretrial statements, stipulation about average weekly wage, lay and medical evidence, the demeanor of the witness at the hearing, and the applicable law, the Administrative Judge finds as follows:
1. The claimant, Jerome Pfeifer, received an admittedly compensable, work-related injury to his back on September 2, 1997.
2. The average weekly wage of the claimant on September 2, 1997, was $554.92, as stipulated by the parties.
3. Because of the work injury, the claimant was temporarily totally disabled from October 8, 1997, until January 2, 1998, according to the records of Dr. Dowen Snyder.
4. Because of the work injury, Mr. Pfeifer has suffered a permanent occupational disability or loss of wage-earning capacity of eight percent (8%) of his wage at Temps R Us, or $44.39 a week, the same as the permanent medical impairment rating as assigned by Dr. Snyder, his treating neurosurgeon. Mr. Pfeifer has not made any attempts to find work and thus has not shown any permanent occupational disability greater than that of the medical impairment rating. He has a high school equivalency degree, a strong work history including such experience as long-distance truck driver and automobile mechanic work which does not necessarily require heavy lifting. He was extremely articulate at the hearing and could surely find work if he were truly interested. His demeanor was that of one who does not care to return to work, and his behavior on the functional capacity evaluation performed for Dr. Snyder would underscore that impression.
The claimant's vocational rehabilitation consultant, David Horn, opined that there were no jobs that Mr. Pfeifer could do, but he based his report on Mr. Pfeifer's subjective complaints of pain and on the functional capacity evaluation that must be considered invalid because of Mr. Pfeifer's self-limiting behavior, inconsistent responses, and submaximal efforts. Dr. Snyder, Mr. Pfeifer's primary treating physician, released him to return to full-duty work, although of course as one who had undergone back surgery he would need to be sensible about heavy lifting, bending, stooping, twisting, and so forth. The report and opinions of David Stewart, the employer and carrier's expert in vocational rehabilitation, is much more realistic and believable than Mr. Horn's, because Mr. Stewart looked at more factors in a more realistic way, giving little weight to the invalid functional capacity evaluation. Mr. Stewart opined that Mr. Pfeifer was capable of returning to gainful employment, and the Administrative Judge finds that his opinion is the stronger of the two vocational rehabilitation consultants.
5. The physicians at the V.A. have treated Mr. Pfeifer after his visits to Dr. Snyder, who released him to return to full-duty work on January 2, 1998, to Dr. Barr, and to Dr. Windham. While the records indicate that Mr. Pfeifer continued to complain of chronic back pain and receive conservative treatment because of the subjective complaints that he made to the V.A. doctors, the medical evidence as a whole does not indicate that the treatment was really required by the nature of the job injury and resulting surgery. Dr. Snyder, Mr. Pfeifer's treating neurosurgeon, opined that Mr. Pfeifer would not need additional treatment. Apparently Mr. Pfeifer has been "doctor shopping" in order to obtain medical support for his claims for disability benefits, but the records are not convincing that he really needed the treatment that he sought. The employer and carrier are thus not liable for the medical treatment rendered Mr. Pfeifer by the V.A. doctors.
6. The employer and carrier are also not responsible
for the treatment rendered by Dr. Susan Gunn, an internist, after she referred
him to Dr. Snyder, a neurosurgeon, an appropriate specialist for the treatment
of a back condition. Nor are the employer and carrier responsible for the
chiropractic treatment which Mr. Pfeifer mentioned at the hearing. There
is no evidence to indicate that Mr. Pfeifer required chiropractic treatment.
IT IS THEREFORE ORDERED that the employer and carrier pay workers' compensation benefits to the claimant as follows:
1. Temporary total disability benefits at the rate of $270.67 per week beginning October 8, 1997, and continuing until January 2, 1998, with credit for any such payments already made by the employer or carrier or for wages earned by the claimant during this time;
2. Permanent partial disability benefits in the amount of $29.59 per week beginning January 3, 1998, and continuing for a period not to exceed 450 weeks;
3. Penalties and interest on all due and unpaid compensation benefits;
4. Provide medical services and supplies as required by the nature of the claimant's injury and the process of his recovery therefrom pursuant to Mississippi Code Annotated §71-3-15 (1995), General Rule 12, and the Medical Fee Schedule.
SO ORDERED, this the 1st day of November, 1999.
LINDA A. THOMPSON
ADMINISTRATIVE JUDGE
ATTEST:
Brenda H. Goolsby, Secretary