MWCC NO. 97-13243-G-2059
JAMES E. WOODS CLAIMANT
vs.
AMERICAN FREIGHTWAYS, INC.
EMPLOYER
(SELF-INSURED)
REPRESENTING CLAIMANT:
C. Aden McDaniel, Esquire, Kosciusko, MS
REPRESENTING EMPLOYER:
Donald V. Burch, Esquire, Jackson, MS
This matter was heard by the Commission on July
10, 2000 pursuant to the Employer's Petition for Appeal and Review. The
Employer contends the Administrative Judge erred when he awarded Mr. Woods
apportioned benefits for permanent partial disability. The Judge's findings
and conclusions are memorialized in an Order dated February 28, 2000.
The Employer admits that Mr. Woods sustained a compensable injury to his back and chest wall on September 6, 1997, which the treating doctors have diagnosed as a musculoskeletal strain injury. The parties have stipulated that Mr. Woods had an average weekly wage at the time of injury of $695.00, that he reached maximum medical improvement on January 8, 1998, and that he has been paid all temporary total and medical benefits due him to date. The primary question, therefore, is whether and to what extent Mr. Woods is permanently disabled as a result of this injury. Should we find Mr. Woods permanently disabled, the question then becomes whether the Employer is entitled to have any award therefor apportioned pursuant to Miss. Code Ann. § 71-3-7 (Rev. 1995).
Mr. Woods completed the eleventh grade in school and then began work at the Baldwin piano plant in Greenwood, MS where he worked for three years. In 1976 Mr. Woods was hired to work as a track man for Illinois Central Railroad. This was primarily a manual labor job with responsibility for maintaining railroad tracks. Mr. Woods continued in this job until 1988, at which time he injured his back.
Mr. Woods hired on as a truck driver for Kraft Foods in 1990. He drove eighteen wheel trucks pulling double trailers back and forth between Jackson and Greenwood for the next two years. After this, Mr. Woods started his own trucking business and drove his own truck throughout the Southeast until he was hired by American Freightways in September 1997. Even though he was hired by American to be a truck driver, he was directed to help with some loading and unloading of trucks and injured himself the second day of work.
As noted above, Mr. Woods was diagnosed with a musculoskeletal strain injury. He was treated first by Dr. Tim Morris, primarily for chest wall strain. By October 21, 1997 Dr. Morris was concerned that Mr. Woods was still reporting chest wall pain six weeks after his injury even though he had only attempted to work three days during this period. Dr. Morris earlier had noted that Mr. Woods apparently was exceeding his restrictions when he did return to work. Dr. Morris felt that Mr. Woods ultimately would have no functional impairment and would be employable so long as he observed certain lifting restrictions. He referred Mr. Woods to Dr. Collipp, however, for further evaluation.
Dr. Collipp first saw Mr. Woods on October 31, 1997 and again on November 14, 1997. By the time of this second visit, Dr. Collipp felt Mr. Woods was able to return to work for four hours per day. Dr. Collipp envisioned a graded return to work plan whereby Mr. Woods would work four hours per day for two weeks, then six or seven hours per day, and after about 4 weeks, back to full duty.
Also on November 14, Mr. Woods asked Dr. Collipp if he would excuse him from work for an additional week or two, and also if Dr. Collipp would set a 10 - 15 pound lifting restriction. Dr. Collipp advised Mr. Woods that his condition did not justify another week or two off work, and that his maximum lift at that time should be 30 pounds.
When Mr. Woods returned to Dr. Collipp on December 12, 1997 he presented with increased pain complaints which Dr. Collipp could not explain. Dr. Collipp noted that there was no further meaningful treatment which they could provide Mr. Woods from a physical medicine and rehabilitation standpoint. Dr. Collipp also noted that Mr. Woods was "pain-focused and not particularly compliant with therapy when he does attend. He is coming up with several reasons why he cannot be at work and all in all it appears that he does not wish to continue at his present location." Dr. Collipp recommended a functional capacity evaluation to determine what, if any, permanent work restrictions Mr. Woods would have.
On January 8, 1998 Dr. Collipp determined that Mr. Woods was at maximum medical improvement. Based on the functional capacity evaluation that had been performed, Dr. Collipp determined that Mr. Woods could return to light-medium duty work with only a 50 pound lifting restriction. Dr. Collipp rated Mr. Wood's functional impairment as 5 % for his lumbar strain. He described Mr. Wood's injury as a "muscular injury . . . which should be able to be restrengthened and stretched back out such that he would be able to live with, work with it, participate with his life with it, and that it should not have a significant impact his life otherwise." Assuming there were jobs available, Dr. Collipp saw no reason why Mr. Woods could not be gainfully employed in any capacity so long as he observed his modest restrictions.
Sam Cox, a vocation rehabilitation expert, testified that he met with and evaluated Mr. Woods. Based on Mr. Wood's education, his work history, the nature of his injury and restrictions, Mr. Cox testified unequivocally that Mr. Woods could work as a long haul truck driver, and that such jobs were plentiful in his general area. It was Mr. Cox's opinion that Mr. Woods has the capacity to earn from $20,000 to $40,000 annually as a long haul driver.
Mr. Woods himself testified that he continues to have pain, but that he is employed full time as an eighteen wheel truck driver for Choctaw Maid Farm. According to the evidence he has earned as much as $536.00 per week at Choctaw. Before that, Mr. Woods drove a school bus for four hours per day, five days of week. Mr. Woods testified that he was satisfied with the job at Choctaw Maid because it paid a little better than the school bus job, and has not looked for any better paying jobs.
The Administrative Judge found, and we agree, that Mr. Woods is fully capable of driving a truck for a living, just as he was before his injury. Coupled with the expert opinion of Mr. Sam Cox as to the availability of these jobs and their pay range, it appears that Mr. Woods has not lost any of his pre-injury earning capacity. However, his current wages are less than his pre-injury average weekly wage. Therefore, we are faced with credible evidence which suggests that Mr. Woods' capacity to earn has not been diminished in the least by his injury, yet his "actual post-injury earnings [have created] a presumption of earning capacity commensurate therewith. Dunn, Mississippi Workers' Compensation § 67 (3d ed. 1982).
The Employer, in arguing against this presumption, contends that the lower wages now being earned by the Claimant are the result of his having limited himself to the job at Choctaw Maid. The Employer points out that Mr. Woods has not made any reasonable effort to find comparably gainful employment and has unrealistically settled for a lesser paying job. The Employer argues that the reduction in wages currently experienced by Mr. Woods is self-imposed and not caused in any way by his injury.
In determining the extent, if any, of permanent disability sustained by Mr. Woods, we are reminded that the test here is one of capacity to earn, and not just actual wages alone. Harper Foundry & Machine Co. v. Harper, 232 Miss. 873, 100 So.2d 779, 781 (1958); Russell v. Southeastern Utilities Service Co., 230 Miss. 272, 92 So.2d 544, 547 (1957). As the test "is one of capacity," we "must make the best possible estimate of future impairment of earnings, on the strength of both actual post-injury earnings and any other evidence of probative value on the issue of earning capacity. " Russell, 92 So.2d at 547. The end question is whether Mr. Woods' capacity to earn wages which are comparable to his pre-injury wage has been impaired because of the injury. Miss. Code Ann. §71-3-3(i), 71-3-17(c)(25) (Rev. 2000).
In most cases, we are faced with the argument
that a claimant has a loss of wage earning capacity despite post injury
wages which equal or exceed those being earned pre-injury. Here we have
a unique twist on the theme in that the Employer is arguing there is no
injury induced impairment of earning capacity despite current wages which
are less than those earned by the Claimant prior to injury. We are not,
however, without guidance. It has been recognized, and in fact seems obvious,
that a claimant may not voluntarily choose lesser paying employment and
refuse to look for other suitable and more gainful employment which is
shown to be generally available, and expect to be paid workers' compensation
benefits for the loss of wages. This is because the Law provides compensation
only for a loss of earning capacity caused by injury, and not merely for
a drop in wages, particularly where as here, the reduction in wages appears
to be the result of a voluntary choice by the Claimant to forego more gainful
opportunities in favor of a lesser paying job. See e.g. Wal-Mart Stores,
Inc. v. Harris, 234 Ga.App. 401, 506 S.E.2d
908 (1998).
After considering all of the relevant evidence, we find that Mr. Woods' capacity to earn wages in the same or other suitable employment has not been diminished because of his injury. While he may be satisfied with the job he has taken at Choctaw Maid because "it pays better than bus driving," the evidence clearly shows that his capacity to earn is greater than the actual wages he receives from this job.
We therefore reverse the Order of the Administrative Judge dated February 28, 2000 and order instead that Mr. Woods' claim for permanent disability benefits be denied and dismissed.
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. 97-13243-G-2059-E
JAMES E. WOODS CLAIMANT
vs.
AMERICAN FREIGHTWAYS, INC.
EMPLOYER
(SELF-INSURED)
REPRESENTING THE CLAIMANT:
C. Aden McDaniel, Esquire, Kosciusko, Mississippi
REPRESENTING THE EMPLOYER:
Donald V. Burch, Esquire, Jackson, Mississippi
The claimant filed his petition on February 9, 1998, alleging injuries to his neck, back, shoulders and chest wall while in the course of his employment on September 6, 1997. The employer duly answered admitting compensable injuries to the back and chest wall only and specifically denying the claimant had suffered compensable injuries to his neck or shoulders. In its pretrial statement the employer raised the issue of the contribution of a "pre-existing disease, handicap or lesion," and contended the claim was "barred by use of cannabinoids." A hearing of this matter was conducted in Jackson on August 30, 1999, after which the record was held open for submission of additional documentary evidence and pending submission of briefs by the parties.
Upon reading the briefs submitted by respective
counsel, the Administrative Judge noted that each attorney had made an
evidentiary reference to facts about the claimant's 1993-1997 earnings
which were not in evidence, at which point the Administrative Judge arranged
a telephonic conference with the attorneys wherein it was mutually agreed
that the employer's attorney would submit as a composite exhibit copies
of the claimant's tax returns for the referenced years. These documents
were then duly submitted and marked as set out herein below, whereupon
the record was closed.
Prior to the hearing the parties were able to stipulate to the following:
1 . That the claimant's average weekly wage at the time of injury was $695.00;
2. That the claimant reached maximum medical improvement on January 8, 1998, per Dr. David Collipp;
3. That the claimant had been paid all medical and temporary total disability benefits due him to date; and,
4. That General Exhibits 1 - 6, as set out on the exhibit list made a part hereof, were admissible in evidence.
A written report prepared by Sam Cox, the employer's vocational rehabilitation expert, was admitted as General Exhibit 7 after Mr. Cox presented an adequate foundation for the report during his live testimony.
At the close of the hearing it was mutually agreed that the employer would take and submit the deposition testimony of Dr. David Collipp and that the claimant would obtain and submit the claimant's pay records from Choctaw Maid Farms, a subsequent employer. These documents were duly submitted and then marked and admitted by the Administrative Judge as General Exhibits 8 and 9, respectively.
As referenced above, copies of the claimant's
tax returns for the years 1993-1997 were duly submitted and then marked
and admitted by the Administrative Judge, as a composite General Exhibit
10.
1 . The nature and extent of any permanent disability suffered by the claimant as a result of the admitted injuries to his back and chest wall;1
2. The claimant's loss of wage earning capacity, if any, resulting from the admitted injuries;
3. The employer's entitlement to an apportionment of any permanent disability benefits awarded pursuant to Section 71-3-7; and,
4. Whether the claim is barred because of the
claimant's alleged cannabinoid intoxication, pursuant to Section 71-3-7.
Mr. Woods testified in support of his claim. He is a 47 year-old-resident of Camden, Mississippi who completed the eleventh grade of school. Upon leaving high school he worked three years in assembly at the Baldwin piano plant in Greenwood, where he made $2.10 per hour. In 1976 he went to work for the Illinois Central Railroad as a trackman, which job involved manual labor in maintaining railroad tracks. The claimant worked for Illinois Central until 1988, at which time he injured his back on the job. He said he was making $12.00 per hour at this time. Mr. Woods testified Dr. Curtis Slipman treated him for two years for his 1988 back injury, that he had never had a back injury or any other worker's compensation or FELA claim prior to this back injury, and that he had no ongoing pain from the 1988 injury at the time of the present injury. He stated he went to work for Kraft Food Services of Greenwood as a truck driver in 1990 earning $13.00 per hour. He said he drove 18-wheelers for Kraft pulling double trailers between Jackson and Greenwood for two years.
The claimant testified he was self-employed with his own company, Woods and Son Trucking, for five years after driving for Kraft. He said he drove his own truck throughout Alabama, Mississippi, Arkansas and Tennessee during this time, and that he earned between $30,000.00 and $35,000.00 each of these years. This was apparently the claimant's last employment prior to being hired by American Freightways in September of 1997. He testified he possessed a commercial driver's license throughout these years.
Mr. Woods testified that American Freightways hired him to be a truck driver, but the foreman assigned him to assist with loading and unloading trucks at the freight dock on his first day. He said he spent the first day unloading carpet and on the second day he was injured while lifting and stacking tires. He said he felt an immediate severe pain in the area of his left chest and was taken to the hospital by a fellow employee; that after being treated at the hospital he was seen and treated by Dr. Morris, who kept him off work for a week; that he returned to work restricted to light duty and worked for several days before the pain started back and he had to return to Dr. Morris; that he subsequently attempted to return to work on two or three occasions, but had to stop each time because of his injury; and that Dr. Morris eventually released him to full duty, but he "just couldn't do it" and had to quit. He did not explain the type of work he was assigned to at American Freightways after Dr. Morris released him to full duty.
The claimant stated that he began driving a school bus in May of 1998, working four hours a day, five days a week, and earning $7.00 per hour. He said he was still having pain in his chest and back from his work injury at this time, but was able to do the job because he "had no other choice." He said he kept this job until May of 1999, when he was hired to drive trucks for Choctaw Maid at $7.50 per hour. He stated he normally worked about 35 hours a week on this job, that the trucks were heavier than the school buses he had been driving, that he did no loading on this job and that it still hurt him to drive the trucks.
Mr. Woods testified he still has pain in his left chest and in the center of his lower back, but he is better overall now and can lift his arms better. He denied being under the influence of drugs or alcohol at any time while working for American Freightways.
On cross-examination Mr. Woods stated that he earned between $800.00 and $900.00 per week working for Illinois Central, that the injury he suffered there in 1988 caused him severe right lower back pain radiating into his right leg, that he was off work for three to four years because of this injury, that Dr. Slipman said he could not go back to his Illinois Central job, and that he signed a settlement agreement with Illinois Central wherein he agreed he was physically incapable of continuing to work there (Ex. 5, p. 3). He was not sure how much he made as a self-employed truck driver during 1996 and 1997, but he would not dispute what his tax returns indicated for those years. The claimant denied having ever smoked marijuana and denied that he tested positive for marijuana at the hospital following his injury at American Freightways.
On further cross-examination the claimant said his main complaint at Rankin Medical Center on the night of his injury was pain in the left rib cage going completely around into his back. He conceded he made no complaint of lower back pain at the time, that his chief complaint to Dr. Morris was chest wall pain, and that he never told Dr. Morris about his prior back injury, explaining that Dr. Morris never asked. He also stated he was not looking for a better paying job than his present Choctaw Maid job, because "it pays better than bus driving."
Records from Rankin Medical Center, where the claimant was initially treated on September 6, 1997, are in evidence under affidavit as Exhibit 2. These records reveal that Mr. Woods was diagnosed and treated for chest wall pain that night, that he tested positive for cannabinoids (marijuana) on that occasion, that this test was confirmed by an analysis at University Medical Center a week later, and that the claimant was released that night and referred to Dr. Tim Morris for follow-up treatment as needed.
The records of Dr. Morris are in evidence under affidavit as Exhibit 4, which records reveal that the claimant was initially seen on September 8, 1997, that he gave Dr. Morris a history of developing pain in his chest through to the back while loading tires, and that he reported "no prior history of injuries to these areas." Dr. Morris initially diagnosed that the claimant was suffering from lumbar and chest wall strain, as well as gastric side effects from the medication prescribed by the hospital. He took Mr. Woods off work until September 11 and returned him to modified duty on that date, restricting him until September 19 against certain bending, pushing and lifting activities, and prescribing medications. The claimant was to either return to regular duty on September 20 or contact the doctor if his symptoms did not resolve.
The claimant returned to Dr. Morris on September 12 and reported a continuation of pain in his lower anterior chest, although his back was reportedly significantly better." The claimant had evidently returned to work the day before and performed tasks outside the modified duty restrictions imposed by Dr. Morris, who at this time took him off work until September 21. Mr. Woods was to then return to work with the same restrictions as previously prescribed. The claimant returned to Dr. Morris on September 23 complaining of increasing chest wall pain and persistent cough, and Morris continued to treat the claimant conservatively for chest wall strain until October 21, 1997, at which time he made a referral to Dr. David Collipp for a second opinion. Mr. Woods had been released to return to regular duty on October 5, but returned to Dr. Morris two days later reporting that his pain recurred after an evening of heavy lifting, causing Dr. Morris to comment as follows:
Mr. Woods began treating with Dr. David Collipp, a specialist in physical medicine and rehabilitation, on October 31, 1997. Dr. Collipp's records and deposition testimony are in evidence as Exhibits 1 and 8, respectively, and his office notes indicate he treated the claimant conservatively, primarily with physical therapy, for musculoskeletal strain involving an area from his low chest down to the lumbar until May 20, 1998. An MRI ordered by Dr. Collipp revealed only an "end plate fracture" at the L-2 level, which the doctor believed was not an ongoing problem. On January 8, 1998, Dr. Collipp reviewed the results of a functional capacity evaluation from Methodist Rehabilitation Center (not in evidence), determined that the claimant had reached maximum medical improvement and released him to return to work with a fifty (50) lb. lifting limit and other restrictions as apparently set out in the FCE report. Mr. Woods was given a five percent permanent partial impairment rating at this time, based on lumbar strain only, per AMA guidelines.
Although he had been released as of January 8, the claimant returned to Dr. Collipp on March 27, 1998, apparently to clear up some confusion over referrals by Dr. Collipp to a Dr. Saddler2 and to Dr. Lon Alexander, At the claimant's request he was at this time referred by Dr. Collipp to Dr. Alexander to determine if any surgical intervention was necessary.
The records of Dr. Alexander, a neurosurgeon, are in evidence under affidavit as Exhibit 3. The claimant presented to Dr. Alexander on April 8, 1998 complaining of low back pain radiating down into his right leg. Alexander ordered another MRI, which he reported as being "basically a normal scan" when the claimant returned on May 4, 1998. Dr. Alexander determined there was no cause for neurosurgical intervention and instructed the claimant to follow up with Dr. Collipp as scheduled.
The claimant then returned to Dr. Collipp again on May 20, 1998, asking Collipp to continue his narcotic pain medication, which the doctor refused because he considered the claimant's injury to be a minor musculoskeletal injury without any neurological deficit.
In his deposition, taken after the hearing, Dr. Collipp stated that the claimant withheld from him the fact of his 1988 back injury. When presented with a hypothetical question outlining the 1988 injury and Dr. Curtis Slipman's findings thereafter,3 Dr. Collipp opined that claimant would have had a pre-existing disability that would have substantially contributed to the complaints he presented to Collipp, although he could not assign a contributing percentage to the prior injury without knowing more. He stated that the claimant must have had a substantial injury in 1988 because he was off work for three years from it and was given a level of impairment from it by his treating physician. He also opined that the claimant might have been participating in an activity outside his physical limitations from the 1988 injury when he undertook the lifting at American Freightways, but there was no reason he could not now work as a truck driver, or in any other light-medium work, as long as he didn't have to exceed the fifty (50) pound lifting requirement.
Records from Dr. Curtis Slipman are in evidence as Exhibit 6 and cover the period from February 7, 1990 to November 28, 1990. The claimant was apparently referred to Dr. Slipman by Dr. Daniel Dare, a general practitioner in Vicksburg. Dr. Slipman's letter to Dr. Dare on February 7, 1990 indicates that the claimant presented with low back, right buttock and right lower extremity pain dating to his accident with Illinois Central on September 16, 1988, that he had previously been treated by a number of other physicians, and that he had only worked one day since September of 1988. Dr. Slipman diagnosed Mr. Woods as suffering from myofascial pain syndrome and treated him essentially with soft tissue injections until releasing him in November of 1990, restricting him at that time against returning to his former position as a trackman, because "the physical requirements would be too strenuous."
In contrast to the claimant's testimony that he made between $30,000.00 - $35,000.00 per year while self-employed with his own trucking company during 1993-1997, his tax returns for those years (Ex. 10) indicate that his company, Woods and Son Trucking, never grossed more than $26,895.00 (1996), grossed an average of only $11,321.40 during those years, and in fact declared a net loss for each of those years.
Pay records from claimant's employer at the time of the hearing, Choctaw Maid Farms, indicate that he made as much as $536.00 per week in August of 1999 and that he averaged $478.00 per week for the four pay periods of that month.
Sam Cox, a vocational rehabilitation expert, testified
for the employer, and a report prepared by Mr. Cox is in evidence as Exhibit
7. It was Mr. Cox's opinion that the claimant was vocationally qualified
and physically able to return to work as a long haul truck driver. He noted
that there were many such jobs presently available, (his inspection of
the Clarion-Ledger classified pages the previous Sunday revealed 60-70
trucking jobs) and that most trucking employers needed drivers so badly
they were not requiring new hires to do any lifting in loading or unloading
their trucks. He stated that these jobs paid between $20,000.00 to $40,000.00
per year, depending on the length of the haul. Cox believed that Mr. Woods
could indeed find such a trucking job within that pay range which would
not force him to exceed the fifty (50) pound lifting limit imposed by Dr.
Collipp.
Upon consideration of the relevant evidence and the applicable law, the Administrative Judge finds and concludes as follows:
1 . The employer argues that Mr. Woods's claim is barred because of his marijuana intoxication at the time of the subject injury. "No compensation shall be payable if the intoxication of the employee was the proximate cause of injury......." Miss. Code Ann. Section 71-3-7. Although the claimant did in fact test positive for marijuana at the hospital immediately following his injury, there is no proof that he was "intoxicated" at the time or that any such intoxication was the proximate cause of his injury. Because the burden of proof on this issue is the defendant's, there is insufficient evidence to bar the claim. See Murphy v. Jac-See Packing Company, 208 So. 2d. 773 (Miss. 1968).
2. Despite convincing evidence to the contrary, the claimant testified not only that he did not test positive for marijuana on the night of his injury, but also that he had never used marijuana. He also testified he made three times as much money during 1993-1997 as his tax returns show he made, and he apparently deliberately withheld information about his 1988 back injury from Dr. Collipp. These facts are sufficient to call into question the claimant's truthfulness as a witness in general, and particularly in regard to his testimony about the continuing debilitating effects of his injury at American Freightways.
3. The claimant stipulated he received all temporary benefits due him for his admittedly compensable injury, and there is no evidence to support any finding to the contrary.
4. The claimant reached maximum medical improvement from his American Freightways injury on January 8, 1998, as stipulated by the parties and as pronounced by Dr. Collipp.
5. There is no evidence to indicate whether the claimant ever attempted to return to work in any capacity at American Freightways after reaching maximum medical improvement, nor is there any evidence to indicate whether the employer ever offered him a position of any kind after his maximum medical improvement.
6. Mr. Woods testified that American Freightways hired him as a truck driver and the employer has stipulated that his average weekly wage at the time of his injury, less than two days after his hiring, was $695.00. Despite the fact that the claimant was injured while doing heavy manual labor at the loading dock and not as a driver, the circumstances force the conclusion that this $695.00 weekly starting pay was indeed intended to compensate Mr. Woods for driving a truck and not for manual labor. Unskilled manual labor can easily be hired anywhere in Mississippi for much less than $17.38 an hour, and the claimant had spent the previous seven years driving a truck for a living.
7. Dr. Collipp assigned the claimant a five percent permanent partial medical impairment to the body as a whole, based on lumbar strain only, and he imposed a fifty (50) pound lifting restriction, but Collipp also testified that Mr. Woods's 1988 back injury was a substantial contributing factor to his present condition. There is no evidence that the claimant has suffered any permanent disability as a result of any injury to his chest wall. Dr. Collipp also concluded there is no reason the claimant could not be employed as a truck driver, subject to the aforesaid lifting restriction. Without any medical or other credible evidence to contradict Dr. Collipp's conclusions and findings, they are hereby adopted for the purposes of this disposition. Sam Cox's expert vocational testimony also supports the conclusion that the claimant is fully capable of finding and maintaining employment as a long-haul truck driver.
8. Mr. Woods was fully capable of driving a truck for a living prior to the subject injury, and the weight of the evidence supports the conclusion that he is fully capable of doing the same in the aftermath of the injury. Nevertheless, his stipulated average weekly wage at injury was $695.00, and he has been able to earn at most only $536.00 a week since his injury. The former tends to support a conclusion that the claimant has not suffered any real loss of wage earning capacity as a result of the subject injury, while the latter tends to support a conclusion that he has suffered a loss of at least $159.00 per week. A reasonable disposition of this claim, based on the whole of the evidence, requires an award of permanent benefits that factors in both of the above as well as the contribution of the claimant's previous back injury.
The claimant is heard to argue that there should not be any apportionment based on the prior back injury because the claimant returned to gainful employment and completely reestablished his capacity to earn wages over a period of years prior to the subject injury, citing Stuart's. Inc. v. Brown, 543 So. 2d 649 (Miss. 1989). But the claimant is relying solely on that half of the ruling in Nellie Brown which supports his position, to wit:
Although there is credible evidence that the claimant
has not suffered any permanent occupational disability as a result of the
subject injury, doubtful cases should be resolved in favor compensation,
pursuant to the beneficent purposes of the Worker's Compensation Act. South
Central Bell v. Aden, 474 So. 2d 584,
590 (Miss. 1985). The testimony of Dr. Collipp supports the conclusion
that the claimant has suffered a permanent occupational disability as a
result of the subject injury, and that the claimant's pre-existing condition
from his 1988 injury was a substantial contributing factor to his present
disability. The credible evidence as a whole supports the conclusion that
Mr. Woods has a present wage earning capacity as a truck driver of $536.00
per week, making for a difference of $159.00 a week between his pre-injury
and post-injury earnings, and the whole of the credible evidence supports
the conclusion that 75% of the claimant's present occupational disability
is apportionable to his pre-existing and occupationally disabling back
condition, which in turn draws the conclusion that Mr. Woods has suffered
a loss of wage earning capacity as a result of the subject injury in the
amount of $39.75 per week.
IT IS, THEREFORE, ORDERED AND ADJUDGED that the employer pay and provide worker's compensation benefits to the claimant as follows:
1. Permanent partial disability benefits in the amount of $26.51 per week for a period of 450 weeks beginning January 9, 1998, with proper credit allowed for any such benefits previously paid or any wages paid in lieu of such benefits. To each such installment not timely paid there is added the 10% statutory penalty, as well as interest at the legal rate from and after February 9, 1998.
2. Such medical services and supplies as may reasonably be required by the nature of the claimant's injury and the process of his recovery therefrom, subject to the medical fee schedule.
SO ORDERED this the 28th day of February, 2000.
JAMES HOMER BEST
ADMINISTRATIVE JUDGE
ATTEST:
Brenda H. Goolsby, Secretary
___________________________
1. The claimant presented no medical evidence to support a claim for injuries to his neck or shoulders and has thus effectively waived those elements of his claim. The claimant did not present any evidence from Dr. Saddler, who apparently was his primary treating specialist for chest wall complaints, but he did testify to having chest pain and there is some evidence from Dr. Morris related to the chest complaint.
2. As previously mentioned, there are no records from Dr. Saddler in evidence.
3. For some reason, Dr. Collipp was not provided with Dr. Slipman's records either prior to or during the deposition.