MWCC NO. 97-16580-G-5994

DAVID LEE MAYS                                                                                                                             CLAIMANT

vs.

AUTOMATIC TRANSMISSION                                                                                                      EMPLOYER
AND
THE INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA                                       CLAIMANT

APPEARING FOR CLAIMANT:
Honorable Michael Williams, Attorney at Law, Jackson, Mississippi

APPEARING FOR DEFENDANTS:
Honorable Michael Young, Attorney at Law, Jackson, Mississippi

The Commission heard the above styled cause on December 18, 2000 in the offices of the Mississippi Workers' Compensation Commission in Jackson, Mississippi on "Claimant's Petition for Review of Decision of Administrative Judge" and "Motion to Remand".

Having heard the arguments offered on behalf of the parties and having thoroughly studied the record and the applicable law, the Commission does hereby grant the motion to remand The Petition for Review is dismissed without prejudice and this claim is remanded to the Administrative Judge for further proceedings.

SO ORDERED, this the 20th day of December, 2000.

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

ATTEST:
Joann McDonald, Secretary
___________________________
 

MWCC No. 97 16580-G-5994

DAVID LEE MAYS                                                                                                                             CLAIMANT

vs.

AUTOMATIC TRANSMISSION                                                                                                      EMPLOYER
AND
INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA                                                   CARRIER

REPRESENTING THE CLAIMANT:
Michael Williams, Esquire, 188 E. Capital, Suite 925, Jackson, Mississippi 39201

REPRESENTING THE EMPLOYER-CARRIER:
Michael Young, Esquire, P. O. Box 13669, Jackson, Mississippi 39236-3669
 

On November 4, 1997, claimant injured his back in the course of his employment as a transmission installer. The employer and carrier paid claimant's medical benefits and disability benefits until he reached maximum medical improvement on January 19, 1999. The primary issue to be resolved is the extent of permanent disability attributable to claimant's injury.
 

1. Claimant's average weekly wage on November 4, 1997 was $410.12.

2. Claimant reached maximum medical improvement on January 19, 1999.
 

1. The only issue is the extent of permanent disability attributable to claimant's work-connected injury on November 4, 1997.
 

Claimant is a 40-year-old resident of Port Gibson, Mississippi. He has a ninth grade education and no formal vocational training. He has work experience as a paperwood cutter using a twenty-five to thirty-pound saw while repetitively bending and lifting. He also worked for a lumber company five or six years as a laborer pulling lumber off a conveyer belt. He later worked as a chip operator which required repetitive standing. He has also worked as a transmission technician removing and replacing car and truck transmissions. This job required him to bend repetitively.

In 1989, he was leased to a transmission service for the purpose of replacing and removing transmissions. In this capacity, he was required to bend repetitively and to lift more than one hundred pounds on a regular basis. On November 4, 1997, he injured his back at work. On December 29, 1997, orthopedic surgeon Dr. Daniel Dare performed a laminectomy and discectomy to repair a large lateral disc herniation at L4-5 on the right. Because claimant continued to have persistent right leg pain with some paresthesias, Dr. Dare ordered a repeat MRI which showed scar tissue surrounding the nerve root but no clearly delineated recurrent disc herniation. Dr. Dare concluded that "this is more of an annulus bulge with enhancing scar around the nerve root." He referred claimant to Dr. Jeff Summers for three epidural steroid injections. Dr. Summers ultimately referred claimant to Dr. David Collipp.

On August 24, 1998, Dr. Collipp found that claimant needed a surgical consultation "because he had such a bona fide examination and good attempts at physical therapy in the past." He therefore referred claimant to Dr. Lon Alexander. When Dr. Collipp next saw claimant on November 2, 1998, he noted that claimant had "undergone surgery and as a matter of fact had two low back surgeries. They cleaned out scar tissue as well as a little bit of disc material." Claimant reported significant improvement with surgery although he continued to experience tightness throughout his low back and down into his lower limbs. Dr. Collipp ordered physical therapy.

In December 1998, claimant reported moderate improvement in his condition with physical therapy. Dr. Collipp released him to return to work three to four hours a day "sitting at a bench and rebuilding transmissions" with no significant lifting or carrying. The balance of the day he was to undergo work hardening. Claimant testified that, when he first returned to work after the injury, he worked on a table tearing down a transmission and rebuilt one or two transmissions. He testified that other employees put the transmissions on the table for him. He performed this job for two or three weeks earning $6.00 per hour as opposed to his pre-injury wage of $10.00 per hour. However he continued to have back pain, especially with standing at the table, so he returned to Dr. Collipp.

Dr. Collipp's records show that on December 15, 1998, claimant reported that he had increased pain after helping lift a 150-pound transmission from the floor to a table. Dr. Collipp took claimant off work, ordered a repeat MRI, and prescribed work hardening. On January 13, 1999, Dr. Collipp noted that claimant was steadily improving with work hardening. He ordered continued therapy. On January 19, 1999, Dr. Collipp released claimant to return to regular duty. Dr. Collipp's letter of January 27, 1999 states that claimant could return to his regular job with a 40-pound lifting restriction, and that further work hardening would be necessary to prevent further injury if his job duties required him to exceed that lifting restriction. On February 4, 1999, Dr. Collipp concluded that claimant had reached maximum medical improvement with a 10% permanent medical impairment to the body as a whole. On April 29, 1999, claimant reported no change in his condition. He requested additional pain medication and Dr. Collipp agreed as "they are keeping him at work."

On July 27, 1999, claimant reported a recurrence of numbness and tingling down his right lower limb which approximately followed his L5 distribution. He stated that his right lower limb also occasionally gave out on him as well. Dr. Collipp noted that claimant was trying to stay within his work restrictions but occasionally "seems to be doing more than his restrictions allow . . . sometimes he feels that he is lifting more than 40 pounds which is the allowable weight." Claimant did not attribute his symptoms to a particular event, but "instead he feels that this is just a slow return of his trouble from the continued application of stress on his body." Dr. Collipp expressed concern that claimant "may have had scar tissue re-form." Dr. Collipp therefore ordered a repeat MRI and restricted claimant from lifting more than 20 pounds. On August 5, 1999, Dr. Collipp noted that the MRI showed no new findings.

On August 25, 1999, Dr. Collipp noted that claimant's EMG also did not indicate a need for surgery. He encouraged claimant to resume his home exercise program and diagnosed a lumbar strain with deconditioning. He continued claimant on the 20-pound lifting restriction, Ultram for pain and inflammation, and physical therapy. When Dr. Collipp next saw claimant on September 25, 1999, he noted claimant's condition had improved, although he still had good and bad days. He again prescribed physical therapy. On November 3, 1999, Dr. Collipp noted that claimant "had done exceptionally well with therapy, and this is certainly because of his own dedication to it." He recommended claimant continue with a home exercise program and return to the clinic as needed.

Claimant testified at the evidentiary hearing that he resumed his former job for the employer at his pre-injury wage level, albeit with some modifications, in March 1999. Claimant testified that the primary difference between his pre and post-injury job is that he lifted 100-pound transmissions by himself several times every day before the injury, but that he now needs help to lift more than 40 pounds. He estimated others lift for him three times per day. He also testified that the modifications include an instruction by his shop foreman to stop working and sit down at will when he experiences pain. He further testified that his employer allows him to report to work late, leave early, and miss work due to back, right leg, and right foot pain without the need to procure a medical excuse. He testified that he generally reports to work late or leaves work early two or three times a week, and that he is not paid for this lost time.

Claimant testified he currently takes pain medication and a sleeping pill as needed and anti-inflammatory medication, all prescribed by Dr. Collipp. He testified he still experiences back and leg pain "mostly every day." He cannot tolerate prolonged sitting or standing, especially on concrete as required by his current job. On days that he cannot work, he props his leg up with a heating pad and a TENS unit. He testified that his employer is a good person, and that he wants to continue working and doing his best for the employer. He also testified that he worked some overtime during twenty-one of the forty-nine weeks between March 1999 and March 2000. He further testified that he receives a bonus when the shop generates more than $12,000 a week. He receives a full bonus if he works forty hours a week, half the bonus if he works thirty-two to forty hours a week, and no bonus if he works less than thirty-two hours a week. He testified he earned a bonus for twenty of the forty-nine weeks between March 1999 and March 2000. He also testified that he did not work forty hours some weeks because of back and leg pain.

The parties stipulated that, if called to testify, claimant's mother, Georgia Mays, would corroborate claimant's testimony.

David McDonald, owner of Automatic Transmission in Vicksburg, Mississippi, testified that he is claimant's supervisor. He also testified that claimant is a good employee who is very knowledgeable about removing and replacing transmissions. He testified that although he has told claimant not to lift any transmissions, he tells all his employees not to lift transmissions alone if possible. Most car transmissions weigh between 75 and 125 pounds, and most truck transmissions weigh between 300 and 400 hundred pounds. He testified that a "replace and remove" employee such as claimant generally lifts or helps lift three or four transmissions a day. Two of those three or four transmissions may require lifting from the floor as opposed to a table.

McDonald testified that claimant returned to light duty in December 1998 working three to four hours per day. He earned $6.00 per hour and received permanent partial disability benefits during that time. However claimant was taken off work and returned to physical therapy because he was able to work only fifteen to eighteen hours a week. McDonald testified that he lent claimant between $600 and $1000 while claimant was off work, and that he agreed to payroll deduct this amount when claimant returned to work.

After claimant completed physical therapy, he returned to work removing and replacing transmissions in March 1999. McDonald testified that claimant does not have the expertise or the experience to work as a rebuilder. He also testified that claimant's only job restriction since March 1999 has been that he is not allowed to lift more than forty pounds. Claimant therefore receives help lifting or others must lift for him. Claimant is also allowed to report late, leave early or miss work as needed, without providing medical excuses for his absences. He testified that he does not doubt the reason for claimant's lost time, and that claimant does not receive sick or vacation pay for this lost time. He testified that when claimant comes to work he does a good job. He also testified that he would be "hard pressed" to find another "remove and replace" employee with claimant's level of expertise.

McDonald testified that employees generally work forty-two hours a week. They have a bonus system based on total shop production. If the shop earns or generates more than $12,000 a week, employees who work forty hours a week receive a $20 weekly bonus. Employees who work between thirty-five and forty hours a week receive a $10 weekly bonus. Employees who work less than thirty-five hours a week do not receive a bonus. Also, if the shop does not generate at least $12,000 a week, none of the employees receive a bonus, regardless of the number of hours worked. He admitted that claimant has sometimes missed bonuses because he has not worked the requisite number of hours. He also admitted that because he has two remove and replace employees, two rebuilders and a shop manager, there is a 25% loss of manpower when claimant is off work. He further admitted that this loss of manpower impacts all the employees because the bonus system is based on total shop production. He also admitted that he has talked to Express Human Resources about the risk of retaining claimant. He testified he is not planning to replace claimant because he currently needs another remove and replace employee, but that he is concerned about minimizing his risk. He also admitted that if he were in a position to hire two equally qualified "remove and replace" employees, he would hire the employee without any history of back surgery.

Neurosurgeon Dr. Lon Alexander testified by deposition that he first saw claimant on April 8. 1988 for back and radicular leg pain attributable to a work-connected injury. Claimant also reported that his condition had not improved significantly despite surgery at the L4-5 level by Dr. Daniel Dare. A repeat MRI and Dr. Alexander's examination indicated that claimant had nerve root compression attributable to further disc herniation or scarring. Claimant elected conservative treatment, including treatment by pain anesthesiologist, Dr. Jeff Summers. However his condition did not improve with conservative treatment. Dr. Alexander therefore performed a lumbar micro laminectomy and microdiskectomy on the right at L4-5 on September 8, 1998.

On October 19, 1998, Dr. Alexander noted that claimant was greatly improved with only some modest, right-sided back pain. Dr. Alexander therefore released claimant to physiatrist Dr. David Collipp for rehabilitation. Dr. Alexander deferred to Dr. Collipp regarding claimant's permanent medical impairment rating and permanent work restrictions.

Physiatrist Dr. David Collipp testified by deposition that he first saw claimant on August 24, 1998 for back and leg pain attributable to a work-connected injury. Claimant had undergone surgery on December 29, 1997, but his condition was unimproved as he continued to have back pain as well as paresthesia and weakness of his right leg. Dr. Collipp therefore referred him to Dr. Lon Alexander who performed surgery. When Dr. Collipp next saw claimant on November 2, 1998, claimant was much improved. Dr. Collipp prescribed physical therapy three times a week for four weeks.

Dr. Collipp next saw claimant on December 2, 1998. Claimant's flexibility, range of motion and strength were improved with physical therapy, so Dr. Collipp released claimant to return to modified duty with a maximum of half days. Claimant was not to perform any lifting but was merely work on transmissions at waist level. When Dr. Collipp next saw claimant on December 15, 1998, claimant reported increased back pain after helping a co-employee lift a transmission that weighed as much as one hundred fifty pounds from the ground to a table. Dr. Collipp took claimant off work until January 13, 1999 and prescribed continued work-hardening. A repeat MRI showed no evidence of recurrent or residual disc herniation.

Dr. Collipp testified that claimant's condition was continuing to improve with work-hardening when he next saw claimant on January 13, 1999. Dr. Collipp ordered a Functional Capacities Evaluation which was performed on January 15, 1999. Upon receiving the results of the Functional Capacities Evaluation, Dr. Collipp released claimant to return to work on January 19, 1999 with a 10% permanent medical impairment and a permanent work restrictions on lifting more than forty pounds from twelve inches off the floor to greater than waist high.

When Dr. Collipp next saw claimant in April 1999, his condition was unchanged from January 1999. Dr. Collipp continued claimant's medication because he felt they helped "to maintain him at work." At the time of claimant's next visit in July 1999, he reported a recurrence of numbness and tingling down his right leg which followed the L-5 distribution. He also had a new onset of weakness through the right lower limb. He attributed his increased symptoms to the ongoing stress of his employment, including occasionally "going outside" his restrictions. He ordered a repeat MRI and EMG, both of which were normal. Dr. Collipp restricted claimant from lifting more than twenty pounds and prescribed a continued home exercise program.

When Dr. Collipp saw claimant on August 25, 1999, he discerned that claimant was not performing his complete exercise program at home. Claimant's physical examination also indicated that he was deconditioned. Dr. Collipp therefore prescribed additional physical therapy and a 20-pound lifting restriction. In September 1999, claimant reported increased flexibility and strength and less pain. Dr. Collipp attributed claimant's improved condition to physical therapy. He recommended four more weeks of physical therapy and a continued restriction on lifting more than 20 pounds.

When Dr. Collipp last saw claimant on the November 3, 1999, he was continuing to improve. Dr. Collipp specifically testified that claimant was "by his description, about 95% better since the last time he had been in to see me." Dr. Collipp released claimant to lift up to 40 pounds from twelve inches off the floor to waist height, but he noted that "there would certainly be other restrictions if he wanted to move on to some other kind of job." Dr. Collipp also noted that work that claimant performed in excess of an eight-hour day should be "more toward the sedentary side, as opposed to simply adding on more of the same level of physical tasks for those other two [overtime] hours."

On cross-examination, Dr. Collipp testified that claimant's other restrictions were limitations on floor to thigh lifting at 20 pounds maximum, thigh to shoulder lifting at 20 pounds maximum, shoulder height to overhead lifting at 30 pounds maximum, and two-handed carry at 40 pounds maximum. He also restricted claimant from working in a bent forward position greater than thirty degrees, climbing more than twelve standard stairs except on an occasional basis, and squatting, kneeling and crawling more than one-third of an eight-hour day. He further restricted claimant from twisting with loads and from working in a position in which his lower limbs faced a different direction than his upper body. Dr. Collipp also restricted claimant from repetitive bending even in a thirty degree position.

Dr. Collipp testified claimant would continue to take Ambien, a medication for sleep, and Vioxx, an anti-inflammatory. He estimated that if claimant's life normalized he would likely be able to discontinue the Ambien. Dr. Collipp testified claimant had also taken Ultram for pain, as "[claimant] was very much wanting to be doing that. He wanted to be able to participate, and if he could take something in order to keep him there [at work] he wanted to do that. And that's where the Ultram was coming in.

Dr. Collipp concluded that claimant's significant effort in therapy contributed to his improvement:

But he really made a very significant effort, I mean, to bring that [his improved condition] about. It would have been very easy for him to just sit back and say, 'No, you're wrong. There's got to be something else going on.' But, instead, he took me at my word, and said, 'I'm going to go ahead and work at this because you really believe this,' and he pulled himself through. If he had not participated, he would be in the same condition or worse. There was no reason for him to improve without his own participation.

Dr. Collipp testified that although he would expect claimant to have good days and bad days, he was surprised that claimant was not able to work a forty-hour week with the 40-pound restriction on lifting. He did not recall the claimant told him that he had not been off work because of back or leg pain.
 

1. Claimant has a permanent medical impairment because of the work-connected injury on November 4, 1997. Dr. Collipp assessed a 10% permanent medical impairment and permanent work restrictions. The treating neurosurgeon, Dr. Lon Alexander, concurred with Dr. Collipp's assessment of a 10% permanent medical impairment. Also, claimant testified he continues to experience back pain.

2. Claimant's permanent medical impairment resulted in a loss of wage-earning capacity. Although claimant has returned to work as a remove and replace technician at his pre-injury wage level, he cannot perform all the duties required by that job. Both claimant and the employer's representative testified that claimant requires assistance from co-employees to lift or help lift transmissions three or four times a day. It is undisputed that claimant regularly lifted 100-pound transmissions alone every day before the injury. Claimant also testified that his shop foreman instructed him to stop working and sit down at will when he experiences pain.

Also, claimant testified that his employer allows him to report to work late, leave early, and miss whole work days due to back, right leg, and right foot pain without the need to procure a medical excuse. He testified that he generally reports to work late or leaves work early two or three times a week, and that he is not paid for this lost time. Claimant's time sheets marked Exhibit 3 indicate that claimant worked less than thirty hours for eleven weeks during the fifty-three week period between March 18, 1999 and March 8, 2000. He worked between thirty and forty hours per week for eighteen weeks during the same time period. Thus, claimant worked less than forty hours a week for twenty-nine weeks during the fifty-three week period between March 18, 1999 and March 8, 2000. Claimant's undisputed testimony also establishes that his shop foreman has advised him to sit down and rest at will if his back begins to hurt.

The evidence indicates that claimant's absences from work, need for assistance from coemployees, and general incapacity to perform at his pre-injury level of capacity are not without consequences. The employer's representative testified that claimant's absence from work impacts total shop production and thereby jeopardizes all the employees' weekly bonuses. The employer representative also expressed some reservations about the employer's increased risk of exposure due to claimant's prior work injury. Despite claimant's incapacity to work at his pre-injury level, the employer agreed to lend claimant $600 to $1000 when claimant was off work and to payroll deduct the amount of loan when claimant returned to work.

Considering (1) the nature of claimant's medical impairment, (2) the 10% permanent medical impairment assessed by Dr. Collipp, (3) the work restrictions assessed by Dr. Collipp on claimant's ability to bend, crawl, climb, lift, stoop and bend, (4) claimant's inability to return to his prior employment as a paperwood cutter or lumber company laborer because of restrictions resulting from his work-connected injury, (5) claimant's continued employment at his pre-injury wage level, (6) the employer's willingness to accommodate claimant's work restrictions, (7) the employer's sympathy for claimant as evidenced by their personal loan to claimant while he was off work and their willingness to allow him to rest and, essentially, work at will, (8) claimant's inability to work a forty-hour week for twenty-nine weeks during the fifty-three week period between March 18, 1999 and March 8, 2000, and (9) claimant's credible testimony and current level of functioning, among other industrially related factors such as his age, education and geographic location, this Administrative Judge finds that he has a 10% loss of wage earning capacity attributable to the work-connected injury.

3. Claimant's entitled to permanent partial disability benefits at the rate of $27.34 per week for 450 weeks beginning January 19, 1999, with proper credit for compensation paid by defendants during this period.

4. Claimant's entitled to 10% penalty on any untimely paid installments of compensation pursuant to Section 71-3-37 (5).

5. Claimant is entitled to all medical services and supplies required by the nature of his injury in the process of recovery as provided in Section 71-3-15 and the Medical Fee Schedule.

IT IS THEREFORE ORDERED that the employer and carrier pay compensation benefits to claimant as follows:

1. permanent partial disability benefits in the amount of $27.34 per week for 450 weeks beginning January 19, 1999, with proper credit for compensation paid by defendants during this period;

2. a 10% penalty on any untimely paid installments of compensation pursuant to Section 71-3-37(5); and

3. all medical services and supplies required by the nature of his injury and the process of his recovery as provided in Section 71-3-15 and the Medical Fee Schedule.

SO ORDERED this the 1st day of August, 2000.

DENEISE TURNER LOTT
ADMINISTRATIVE JUDGE

ATTEST:
Joann McDonald, Secretary