MWCC NO. 97 08247-G-3747

WILLIAM H. HOLCOMB                                                                                                                 CLAIMANT

vs.

PENSKE DEDICATED LOGISTICS                                                                                                 EMPLOYER
AND
OLD REPUBLIC INSURANCE COMPANY                                                                                        CARRIER

REPRESENTING CLAIMANT:
Hon. Daniel K. Tucker, Attorney at Law, Booneville, Mississippi

REPRESENTING DEFENDANT:
Hon. William G. Armistead, Attorney at Law, Tupelo, Mississippi
 

The Commission heard the above styled cause on September 25, 2000 in the offices of the Mississippi Workers' Compensation Commission in Jackson, Mississippi on the "Employer and Carrier's Petition for Review of Order of Administrative Judge".

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 June 5, 2000.

SO ORDERED, this the 26th day of September, 2000.

MISSISSIPPI WORKERS' COMPENSATION COMMISSION
BY: Barrett Smith
Barney Schoby
Beverly Bolton
COMMISSIONERS

ATTEST:
Joann McDonald, Secretary
___________________________
 

MWCC NO. 97 08247-G-3747

WILLIAM H. HOLCOMB                                                                                                                 CLAIMANT

vs.

PENSKE DEDICATED LOGISTICS                                                                                                EMPLOYER
AND
OLD REPUBLIC INSURANCE COMPANY                                                                                       CARRIER

APPEARING FOR CLAIMANT:
Honorable Daniel K. Tucker, Attorney at Law, Booneville, Mississippi

APPEARING FOR EMPLOYER AND CARRIER:
Honorable William G. Armistead, Attorney at Law, Tupelo, Mississippi
 

A hearing was held on February 1st, 2000 at the Lee County Justice Center located in Tupelo, Mississippi at 11:30 a.m. This cause concerns an admitted injury suffered by the claimant while in the employ of Penske Dedicated Logistics.

A stipulation entered into the parties was singular in nature and concerned the average weekly wage of the claimant which was determined to be $651.04 per week.

Evidence was entered into this cause as follows: Claimant Exhibit 1, Medical Records Affidavit of Dr. Robert Q. Craddock; Claimant Exhibit 2, Medical Records Affidavit of Dr. Robert Q. Craddock; Claimant Exhibit 3, Medical Records Affidavit of Dr. Lloyd Johnson, Jr.; Claimant Exhibit 4, Medical Records Affidavit of Dr. Howard R. Holaday; Claimant Exhibit 5, Medical Records Affidavit of Dr. David B. Ellis; Claimant Exhibit 6, Medical Records Affidavit of Dr. Kenneth Knight; Claimant Exhibit
7, Medical Records Affidavit of the Carraway Hospital; Claimant Exhibit 8, Deposition of Dr. Keith Morrow; Claimant Exhibit 9, Deposition of Dr. Robert Craddock; Claimant Exhibit 10, Curriculum Vitae and Report of Lamar Crocker; Employer and Carrier Exhibit 11, Deposition of Dr. Kenneth M. Knight; Employer and Carrier Exhibit 12, Deposition of Dr. Howard R. Holaday; Employer and Carrier Exhibit 13, MWCC Form B-31; Employer and Carrier Exhibit 14, Vocational Rehabilitation Report No. 1 of David Stewart & Associates, Inc.; Claimant Exhibit 15, Notation as to Back Support Belts dated 1-21-95; Claimant Exhibit 16, Physical Examination of Drivers Form; Claimant Exhibit 17, Penske Distribution Services Driver Pay Sheet; Claimant Exhibit 18, Letter from Penske Truck Leasing dated July 5, 1995; Claimant Exhibit 19, Claimant's Job Search Efforts; Claimant Exhibit 20, Job Opportunities from Mr. Harold Holcomb dated July 15, 1999; Claimant Exhibit 21, Letter from Mitchell, McNutt, Threadgill, Smith & Sams dated January 14, 2000; Employer and Carrier Exhibit 22, Curriculum Vitae of David E. Stewart; Employer and Carrier Exhibit 23, Salary Ranges for Jobs.
 

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

On the occasion of this hearing, the claimant testified that he was born on June 17, 1942 and is currently 57 years old. He is a graduate of Marion High School and has a college degree from the University of Alabama in Business Administration which he acquired in May of 1971. He also attained a law degree in 1974 from Samford University-Cumberland Law School but has never passed the bar in any of the states where he tried to do so (Alabama, Missouri and Georgia). The claimant has worked primarily as a long-haul truck driver. He has never used his law degree and knowledge in any work-related capacity and none of the jobs mentioned to him by vocational experts are any that he has done in the past. Claimant testified to a date of injury of April 28, 1995 when he injured his back unloading furniture. He also testified to a work-related motor vehicle accident in June of 1995. He testified that from that point on (in June of 1995) he had a burning sensation and back pain. The claimant noted he was terminated by Penske on July 5, 1995 after his back injury and the motor vehicle accident, by Certified Letter. Penske has never offered him a job subsequent thereto. He testified as well that the "Whole quality of his life" has changed and he is currently on Social Security Disability. Claimant concluded by indicating that he could not go back to his customary employ as a long-haul truck driver and that he has never worked as an attorney.

C. Lamar Crocker, a Rehabilitation Consultant and Expert located in Tupelo, Mississippi, testified in this cause and noted that the claimant was referred to him by his attorney, Daniel Tucker, for a Vocational Rehabilitation and Evaluation with the
purpose of determining the claimant's ability to successfully re-enter and maintain gainful employment and to calculate his loss of wage-earning capacity. It was noted that the claimant had sustained a low back injury requiring lumbar surgery. The claimant graduated from Marion High School in 1960 and also attended the Vo-Tech Center of the Atlanta School of Broadcasting and Radio and TV in 1960 for one month, but did not complete this training. He graduated from the University of Alabama in 1971 with a B.S. Degree in Business Administration and later went to the Samford University-Cumberland School of Law and graduated there in 1974. He had attempted to pass the bar exam three times in Alabama, one time in Missouri & Georgia with no success. Claimant also attended the University of Alabama-Law Enforcement Academy in 1976 for nine weeks, completing the course work and receiving his Law Enforcement Certificate in 1976. The claimant was in the U.S. Army from 1962 to 1964 and received an Honorable Discharge with the rank of an E-4. His job title in the Military was that of a clerk typist. In his summary, Mr. Crocker noted it was his professional opinion as a Rehabilitation Consultant and Vocational Expert that the claimant has sustained a loss in the labor market of 100%. He cited Dr. Craddock who has stated that the claimant would incur a permanent partial impairment rating of 28% to the body as a whole as a result of this work-related injury. Physical restrictions were cited by Drs. Morrow & Johnson along with the Social Security Disability Award which was favorable toward the claimant. He testified that the claimant had a loss of wage-earning capacity related to the labor force which was estimated to be $99,520.46 and he further opined that the claimant was severely impaired due to his work-related injury and was disabled from the active labor force and, further, unable to sustain substantial gainful employment.

David Stewart of David Stewart & Associates, Inc. testified in this cause and noted in his capacity as a Rehabilitation Consultant and Expert, that a report was requested by him as part of an assessment of Mr. Holcomb's vocational potential, and he met with Mr. Holcomb on April 26, 1999. He took from the claimant a detailed medical history and obtained detailed information about his work background. In his report Mr. Stewart reviewed the claimant's medical history and course of treatment. He also reviewed his family and educational background and a careful review of his vocational background and did some appropriate testing. He noted that the scores that he obtained were indicative of a person who has a college education and graduate training. He indicated that Mr. Holcomb was capable of performing all basic arithmetic functions accurately and is able to add long sums of numbers, able to convert decimals into percentages, able to multiply with decimals and able to add mixed fractions. He exhibited a good reading vocabulary. Mr. Stewart felt that the claimant had a skilled and semi-skilled work background and it was his opinion that he had "quite a number" of transferable skills that would allow him to gain entrance to light and sedentary occupations. He noted that he had reviewed the report of Mr. C. Lamar Crocker dated April 5, 1999, and did not agree with his conclusion that Mr. Holcomb had a total or 100% loss of access to the labor market. He felt that Mr. Holcomb led a reasonably active life. Mr. Stewart indicated that while the claimant did exhibit some pain behaviors, he was alert and engaging and it was his opinion that he has the capacity for functioning as a productive member of society again. He recommended a labor market survey of employment opportunities and same was achieved, pinpointing job opportunities at Marshall Durbin & Company in Jasper, Alabama, Quick Cash in Jasper, Alabama, Met-Life Financial Services in Tupelo, Mississippi, Uncle Joe's as a position for a manager or manager trainee, Fikes Chrysler, Buick for a position in clerical or parts department, Drummond Company in the personnel department and Quick Cash in Winfield, Alabama.

Probative herein is the Affidavit containing the claimant's job search efforts. It is noted that the claimant currently resides in Guin, Alabama. These job search efforts reveal in the first section that the claimant attempted in eight different places to secure employment and inquired in January, February, March, April and May of 1999 at the following places: Miles Funeral Home, Ban Security, Marion Co. Sheriff's Department, Sandlin Produce, Citgo Convenience Store, City of Guin Police Department, Western Auto Store and the City of Hamilton Police Department. The second entry indicated nine additional job search efforts and is dated January 25, 2000, noting that beginning in August of 1999 the claimant inquired at the Jitney Jungle in Guin, Alabama, the Southtrust Bank of Marion County, Dickert Exhaust & Brake Center, Citizen Bank of Sheffield, Community Bank, Boar's Butt Restaurant, Dollar General in Winfield, Alabama, Midtown Auto Sales, Dollar General in Guin, Alabama.

Salary ranges indicative of jobs and job possibilities as referenced in the reports of the experts were entered into this cause and marked as Employer and Carrier Exhibit 23. The weekly ranges indicated herein show the highest rate cited as a salary range of $550.00 to $575.00 per week with the lowest cited at approximately $330.00 to $345.00 on a weekly basis.

Claimant Exhibit 18, a letter from Penske Truck Leasing dated July 5th, 1995 and directed to the claimant, indicates that the accident that the claimant suffered was ruled preventable and noted that after researching the circumstances surrounding the accident it had been determined there was no outside contributing causes to be identifiable and the cause of the accident was determined to be driver negligence. Therefore, he was discharged effective July 5th, 1995 as a direct result of the accident. This was signed by Jake Wolf, Logistics Center Manager.

Claimant Exhibit 16 is a Physical Examination of Drivers and noted the physical examination of the claimant when he was aged 52 and dated 12-28-94. Dr. Ellis, who examined the claimant, found him to be fit for duty in accordance with the Federal Motor Carrier Safety Regulations and that this certificate would be good until 12-28-96.

Dr. Keith Morrow testified by deposition in this cause. Dr. Morrow is a general practitioner located in Hackleburg, Alabama, and has lived there since 1986, specializing in Osteopathic Medicine. The first presentation of the claimant was on March 27, 1998, wherein he presented with significant back problems. He reported to Dr. Morrow surgery "couple of years prior" due to an April, 1995 injury. The claimant had atrophy of the muscles and foot drop of his left leg and was in significant pain. Claimant was prescribed pain medications and anti-inflammatories. He monitored the claimant on a monthly to six weeks basis. He noted that on April 27th of that year he recommended a TENS unit, or a Transcutaneous Electrical Nerve Stimulator. By May 29th the claimant's examination was basically unchanged and was the same on June 29th of 1998 when he was given a course of steroids. By July 29, 1998, there was still no approval for the claimant's TENS unit. On August 10, 1998 a Cortisone shot was given to the claimant to control his pain. By September 2, 1998 the prescribed and acquired TENS unit was helping and he wanted to try to decrease the pain medication somewhat as a result. He noted on October 5, 1998 that the claimant was in pain and suffered from some degree of depression. By November 17, 1998 he recommended the claimant see Dr. Craddock in Birmingham to discuss repeat epidural blocks and scheduled this for December 1, 1998. He saw the claimant in 1999 on 1-13-99, 2-10-99 and lastly on March 23, 1999. Dr. Morrow had an opinion to a reasonable degree of medical certainty that the claimant has an obvious deformity of the leg with foot drop, chronic pain and extensive nerve damage. A Functional Capacity Evaluation was noted on March 9, 1999 at the request of C. Lamar Crocker, Vocational Specialist. This functional capacity examination revealed severe restrictions and he concluded that the claimant cannot work. He noted that the claimant would need a foot drop brace for his leg and testified that he did not think the claimant was a malingerer and that he had objective findings in addition to his subjective statements. As to any further medical treatment the claimant would need intermittent pain medication, antiinflammatories and adjustments periodically to his TENS unit. This doctor opined that he did not feel the claimant could perform in the job market on a 40 hour work week ever, even with the potential transferable job skills of an advanced degree. "You can create an ideal job for anybody, but I doubt he is ever going to be able to have a regular kind of job."

Dr. Robert Q. Craddock of Birmingham, Alabama, a Board Certified Neurosurgeon, testified by deposition and medical records affidavit in this cause. He operated on the claimant in 1981 when he repaired a ruptured disc at L5-S1. The claimant did "fine" and went back to work. He did not see him until after his injury with first presentation on October 24, 1995. The claimant gave to him a pertinent history noting that in 1993 he was unloading tires. He was treated by a Dr. Knight, Chiropractor, "got better and got well" and went back to work. Then in April of 1995 he suffered the back injury under scrutiny. In July of 1995 he developed foot drop. Dr. Craddock reviewed the claimant's MRI scan and noted a disc herniation at L4-5 on the left. He admitted the claimant to Carraway Methodist Hospital for a lumbar myelogram with CT scan that confirmed a large disc herniation. He subsequently had surgery in the form of a microlumbardiscectomy at L4-5 on 11-8-95 and Dr. Craddock has followed him every since, with the last visit on April 8, 1999. Over the years of treatment he has had several or numerous nerve blocks due to his persistent back and leg pain. Notably on December 15, 1998, the claimant had an additional MRI scan which showed a recurrent disc herniation at L4-5. A second discectomy was discussed. The doctor said to a reasonable degree of medical certainty that this recurrence was related to his original injury and he noted that after discussion the claimant wanted to wait and not have a second procedure. Dr. Craddock said, however, that there is a real possibility that he will have to in the future. On April 8, 1999, he recommended pool or aquatic therapy. He referred the claimant on to Dr. Kenneth Knight, a chiropractor, in Hamilton, Alabama, because of Dr. Knight's facilities and expertise in "rehab" and he was situated close to the claimant's domicile. He also referred the claimant to Dr. Morrow for pain management and to Health South for a functional capacity evaluation or assessment in June of 1996, which placed him in the medium physical demand level. But, however, he testified that with his recurrent disc herniation this would or could change and a repeat later evaluation should be done to assess this. He assigned a permanent partial medical impairment rating of 28% to the body as a whole based on AMA Guidelines, Fourth Edition, and he did feel that he retained the ability to enter the labor market in some limited capacity. In conclusion, this physician testified that all treatment he had done was reasonable, necessary and appropriate for the resolution of the claimant's injury.

Dr. Kenneth M. Knight, D.C., a doctor of chiropractic, testified by medical records and deposition in this cause. He first saw the claimant on November 27, 1993. It was his first clinical experience with the claimant and he recommended conservative treatment which ensued. He later started treating him via referral from Dr. Craddock on December 14, 1995, at which point the treatment toward the claimant was post-surgery and became "purely from a rehabilitation strengthening point of view". The projected goals were met to basically diminish the chances for further atrophy of the left lower extremity musculature. They could not, however, make him a brand new back and leg because that could not be done. Although there are no vocational components to his treatment course, Dr. Knight noted that he would like for the claimant to be a participant in society but by the time the claimant came to him after injury and surgery, it was pretty well understood that "especially in this region of the world where manual labor is a common occupational activity" the claimant was not likely to return to an active work force. The claimant would have to avoid not just manual labor, but manual labor entirely. Notably foot drop is caused from permanent radiculopathy which is a pathology diseased nerve. He testified as to his examination techniques to determine the physical capacities and capabilities possessed by the claimant and he noted "I'm not going to sit here and say that there are not some jobs up there that he can do, I just don't know of any, but I'm not an occupational expert either."

Dr. Howard R. Holaday testified by deposition and medical records affidavit in this cause, noting that he is a board certified neurosurgeon. First presentation of the claimant was on July 19, 1995 upon a referral from Dr. David Ellis from New Albany. The chief complaint on that date was low back pain with radiation into his left lower extremity. He had some paresthesias affecting his left lower extremity and reported difficulty dorsiflexing his left foot. Dr. Holaday conducted a physical examination and had an impression of probable recurrent left L5 radiculopathy. He felt conservative measures should be applied and gave to the claimant a Medrol Dosepak and medication and recommended an MRI scan. A return visit on August 1, 1995 resulted in a recommendation to return to light duty. On August 16, 1995 the claimant reported to this doctor an almost complete resolution of pain, but no further improvement in his ability to dorsiflex his left foot. An MRI scan had been obtained and was reviewed. Abnormalities were noted, including some scar tissue and an osteophyte, or bone spur, present. Treatment options were once again discussed. This was the last visit he had with the claimant "so he could really not opine as to his condition or his work capabilities" and he further testified that he only treated the claimant from July 19, 1995 through August 16, 1995.

The Medical Records Affidavit of Dr. Lloyd Johnson, Jr. were entered into this cause and include a letter of March 3, 1998 directed to the Disability Determination Unit in Birmingham, Alabama which basically recapitulated the treatment of the claimant and noted in a conclusory statement that the claimant has had back surgery times two and it was his opinion that William H. Holcomb would not be able to do work-related activities such as prolonged sitting, prolonged standing or prolonged walking. He should not lift over 5 to 6 pounds, should not carry over 2 to 3 pounds. He can handle small objects, he can hear and speak, he should not travel if it involved prolonged standing, walking or sitting.

The Medical Records Affidavit of Dr. David B. Ellis of the Ellis Clinic in New Albany, Mississippi, were entered into this cause and are indicative of his treatment of the claimant as a general practitioner. It noted in an entry of 7-12-95 that William has been off work from June 26 through the present date due to a work-related injury.

The Medical Records Affidavit of the Carraway Methodist Medical Center were entered into this cause and are coincidental with the treatment the claimant received at this institution under the supervision of Dr. Robert Craddock.
 

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 as findings of fact:

1. As a result of this work-related injury, the claimant is unable to return to the substantial acts of his former employ. Despite the fact that he is possessed of a high level of education, his reflective work history is indicative of those types of vocations which involve physical or manual labor and he has never worked in the capacity of an attorney. This claimant is in his late 50's and a career change in that direction is not a viable alternative. The pronouncements of Mr. Crocker are probative in that he considers him to be 100% occupationally disabled. Vardaman S. Dunn, Mississippi Workmen's Compensation, Third Edition, § 74.

2. The assignation of a 28% to the body as a whole permanent partial medical impairment rating by his primary treating physician Dr. Robert Q. Craddock, and, further, the pronouncements made by the doctors concerned with the treatment of the claimant, indicate that his restrictions are permanent in nature and in severity are cumulatively considered to indicate that the claimant is unable to lead an active work life.

3. The job search efforts of the claimant are deemed to be reasonable in nature and it would appear that the claimant made a concerted effort to find some employment in or around his domicile and also in areas not directly by his domicile, but nearby. He was unsuccessful in these attempts and there is no reason to consider the claimant as a malingerer in any fashion. Vardaman S. Dunn, Mississippi Workmen's Compensation, Third Edition, § 72.1.

4. It is also noted that the Undersigned considered the claimant to be a credible individual, who on the occasion of the hearing, presented himself as one who wanted to find something that he could do, but was unable to do so. It was also apparent that the claimant was in some degree of pain at the hearing, but he was not overly histrionic in this regard.
 

IT IS, THEREFORE, ORDERED AND ADJUDGED that the employer, Penske Dedicated Logistics, and carrier, Old Republic Insurance Company, pay workers' compensation benefits to the claimant as follows:

1. Permanent total disability benefits in the amount of $252.59 per week commencing on April 28, 1995 and concluding after the statutory maximum period of 450 weeks as outlined in Mississippi Code Annotated, § 71-3-17(a) (1972).

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

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

SO ORDERED this the 5th day of June, 2000.

VIRGINIA WILSON MOUNGER
ADMINISTRATIVE JUDGE

ATTEST:
Brenda H. Goolsby, Secretary

BY:
Jane Summers, Assistant Secretary