MWCC NO. 00 03634-G-8009

DAN L. CHATMAN                                                                                                                                       CLAIMANT

VS.

TEREX CORPORATION                                                                                                                             EMPLOYER
AND
THE TRAVELERS INDEMNITY OF ILLINOIS                                                                                          CARRIER

REPRESENTING CLAIMANT:
Honorable William B. Ryan, Attorney at Law, Memphis, Tennessee

REPRESENTING DEFENDANT:
Honorable Franklin Williams Attorney at Law, Oxford, Mississippi

The Commission heard the above styled cause on August 27, 2001 in the offices of the Mississippi Workers' Compensation Commission in Jackson, Mississippi on the Employer/Carrier's " Petition for Review" and the "Claimant's Cross Petition for Review".

Having heard the arguments offered on behalf of the parties and having thoroughly studied the record and the applicable law, the Commission affirms the "Order of the Administrative Judge" dated April 10, 2001.

SO ORDERED, this the 19th day of September, 2001

MISSISSIPPI WORKERS' COMPENSATION COMMISSION
BEN BARRETT SMITH
BARNEY SCHOBY
LYDIA QUARLES
COMMISSIONERS

ATTEST:
Jo Ann McDonald, Secretary

MWCC NO. 00 03634-G-8009

DAN L. CHATMAN                                                                                                                                      CLAIMANT

TEREX                                                                                                                                                           EMPLOYER

VS.

NATIONAL UNION FIRE INSURANCE COMPANY                                                                                 CARRIER
OF PITTSBURGH, PA

REPRESENTING CLAIMANT:
William B. Ryan, Esquire
1545 Union Avenue, Memphis, Tennessee  38104

REPRESENTING DEFENDANT:
Franklin Williams, Esquire
1001 Jackson Avenue E., Oxford, Mississippi 38655

On December 21, 1997, claimant injured his back in the course of his employment as a warehouse supervisor. The employer/carrier paid claimant temporary total disability benefits and medical benefits until he reached maximum medical improvement on December 15, 1998. The primary issue is the extent of permanent disability attributable to claimant's work-connected injury.

1. Claimant's average weekly wage on December 21, 1997 was $733.62.

2. Claimant reached maximum medical improvement on December 15, 1998.

The issue is the extent of permanent disability attributable to claimant's work-connected injury on December 21, 1997.

Claimant is a 45-year-old resident of Memphis, Tennessee. He graduated from high school and enrolled in college but did not complete the first semester. He has no vocational training, although he attended a six-week class in human resources at a local community college in 1993 or 1994. Claimant testified he cannot type or operate computer programs except those used by the employer.

Claimant has a varied work history. He worked as a life guard during the summers while he was in high school. After graduation, he worked as a machine operator loading machines with fifty to sixty-pound rolls of wrapping paper. He next worked for St. Joe Paper Company as a wax machine operator performing general warehouse work. This job also required him to lift up to fifty pounds. He next worked for Norrell, a temporary service, performing general warehouse duties for several large companies in the Memphis area. These jobs required him to load and unload trucks, pick and pack orders, and lift thirty to fifty pounds. He worked as a warehouseman through Norrell for approximately five years.

Claimant next worked for the Radisson Hotel from 1989 to 1998. He was first assigned to the housekeeping department. There he pulled linen off beds, pulled air conditioning units out of windows, and sometimes lifted televisions. He was later promoted to the customer service department where he handled irate customers and other customer relations problems. He also worked for a period of time as a shuttle driver. This job required him to handle luggage occasionally.

In April 1994, claimant began working as a temporary employee for Terex, a distribution center for heavy equipment parts. On July 18, 1994, he was hired as a full-time employee earning $8.00 an hour. He initially worked as a general warehouseman picking and packing orders. This job involved bending and lifting up to fifty pounds. In 1995, he was promoted to the position of lead man earning $9.50 per hour plus overtime pay. Although he still picked orders, he was primarily responsible for assigning other employees their duties and otherwise expediting the work load. He testified that, as long as the employer was fully staffed, his job as a lead man was slightly less physically demanding his job as a warehouseman.

After working as a lead man for six months, claimant was again promoted to the position of supervisor earning $25,500.00 base pay plus overtime.¹He supervised between fifteen and thirty people and made recommendations regarding the hiring and firing of employees. However he also often picked and packed orders when the employer was short staffed because his "job was to get it done." He testified that a picker picked two hundred lines a day.

On December 21, 1997, claimant was lifting a tote at work and his back popped. He took extra-strength Tylenol for pain relief and continued to work. His pain did not improve over the two weeks, so he went to the local emergency room. The emergency room physician prescribed Flexeril and referred him to Dr. Tom Morris. Claimant continued to take Flexeril and limit his physical exertion whenever possible so that he could continue to work. After four office visits, Dr. Morris released him to return to limited weight lifting and referred him to a nerve specialist named Dr. Hoffman. Dr. Morris also referred him to neurosurgeon Dr. Stanley Patterson. Claimant testified that nerve blocks prescribed by the doctors offered only temporary relief.

In March 1998, claimant saw orthopedic surgeon Dr. Robert Bobo with the employer's permission. Dr. Bobo prescribed physical therapy, renewed his drug prescriptions, and advised him to monitor what and how he lifted. He continued to treat claimant conservatively until December 15, 1998, when he found that claimant had reached maximum medical improvement with no restrictions. However, on September 27, 1999, Dr. Bobo assessed restrictions because of an exacerbation of claimant's condition attributable to picking parts. Dr. Bobo specifically restricted him from lifting more than ten to twenty-five pounds. Throughout the period that claimant remained under medical treatment, he had continued to work although he had also taken pain pills, sometimes left work early, and occasionally missed work. However claimant testified that he was able to work as a supervisor within Dr. Bobo's restrictions.

On March 17, 2000, claimant was laid off by the employer. A month or two after he was laid off, he contacted the employer and talked to at least two employer representatives about returning to work. He thought the employer might have an opening because an employee with whom he had worked had recently left the company. He was not rehired although he testified that he would "return to the employer tomorrow" if they would hire him.

Claimant also made numerous efforts to secure other employment. He submitted a resume to Kellogg Company requesting an entry level manager's job or any job. He also sent a resume and submitted an application for work as a dock supervisor to UPS. He sent two resumes to Federal Express. He also submitted applications with several contractors whom he had met during prior jobs, although he had no experience in the contracting business.

Claimant applied for work as a maintenance supervisor with St. Peter's Home. Although he had two interviews for this job, the human resources director felt that his restrictions might impair is performance of the job. He also applied for work with B.J.'s Janitorial Service as a supervisor or manager. Thisjob paid $33,000.00 per year. He also applied for ajob as a supervisor with Alarm American, but he had no experience installing burglar alarms. He remained most hopeful about a position with Albright Chemical which paid more than $40,000.00.

Claimant also applied for work with Thomas and Betts, but there were no openings and he was told to call every thirty to forty-five days. He applied for work with Next Air as a route manager earning $36,000.00. He testified that he had not been contacted by this employer, but he intended to follow up. He also applied for managerial positions with a painting company, Orgill Brothers Distribution Center, and the housekeeping department of the Baptist Hospital. He contacted the Radisson Hotel where his brother was employed several times without success. He testified that shuttle drivers make $7.00 an hour plus tips, and customer service representatives earn $8.50 per hour with no tips.

He also applied for work with D & H Staffing Service, Steamatic Carpet Cleaner, and Hall's Body Shop as a shuttle driver picking up parts at junk yards. He testified the lastjob involved some lifting and paid $10.50 per hour. He testified that he did ask some prospective employers to sign a form that had been provided by his attorney, but that most employers would not comply because they were afraid they would be called as a witness to the evidentiary hearing. He also testified that he never volunteered his restrictions to any prospective employers.

Claimant testified that he generally did not apply for the jobs in Mississippi which were identified by the employer's vocational expert. He testified that of the approximately 12 jobs listed by the employer's vocational expert in his report, he either had no experience to perform these jobs or he could not identify the specific employer listed on the report. He also testified that some of the employers did not have openings.

Since March 2000 when claimant was laid off by the employer, he has received $6,000.00 in unemployment benefits. He has also received rental income from several housing units that he purchased with the proceeds from his 401K plan with the employer. He initially owned six buildings, but he was forced to sell three of these in order to "stay afloat financially." He currently receives $850 rental income per month, although he did not testify and there is no evidence regarding the net value of this income. He testified that he also currently works twenty to thirty hours a week as a cashier for his nephew's new barbeque business in Germantown. As a cashier, he earns $7.00 an hour, and an additional $100.00 bonus if he works a party.

Claimant testified he has another nephew who owns Heritage South Mortgage and Loan Company, that his nephew is training him to become a loan officer, but that he will only be paid for the loans that he makes. He also testified that he wanted to enter the mortgage and real estate business, and that he knows he can do this kind of work although he has not closed any loans. However he has received a $250.00 finder's fee for referring a prospective homeowner to his nephew. Claimant testified that he generally gets to the mortgage company by 9:00 a.m., and that he works at the restaurant from 4:00 p.m. until 9:00 p.m. or earlier if business is slow. He also testified he is still looking for work, that he thinks he will need to switch careers to a field "that I can do for a long time," and that he recently investigated the possibility of computer training but it was too costly. However he is considering taking a real estate course in order to get his license.

Regarding his current physical condition, claimant testified that he is currently "doing pretty well." The pain will sometimes abate for several days before it will recur. He generally experiences pain at night. Although he originally had pain in his left leg and later experienced right leg pain, he now experiences pain in both legs most of the time. He testified he can no longer play basketball, take care of the yard work, or do fifty to sixty sit-ups at night. It is also harder to swim. He still takes Darvocet 100, Flexeril and Celebrex per Dr. Bobo. He also takes insulin for diabetes.

The report of Rehabilition, Inc. dated January 8, 2001 by Jennifer T. Oubre, certified rehabilitation counselor, shows that she reviewed claimant's deposition and medical reports, but that she did not have an opportunity to personally interview claimant. Ms. Oubre concluded that claimant's work history indicated that he had performed unskilled to skilled jobs with physical demands in the light to heavy category. She identified seven managerial positions that claimant could perform. The salary for these positions ranged from $13,000.00 to $49,000.00 per year. She also identified thirteen positions with various employers in the Memphis, Tennessee and North Mississippi areas for which claimant would also qualify. Although the report identified the employers offering these positions, it did not include addresses or salary ranges.

The records of neurosurgeon Dr. Stanley Patterson of the Semmes-Murphey Clinic in Memphis show that he first saw claimant on September 9, 1998, on referral from Dr. Tom Morris. Claimant reported back pain attributable to lifting heavy tote bags at work. He continued to work although activity aggravated his pain. He complained of low back, left hip pain and thigh pain for which he still took Darvocet. He also felt as though his left knee was going to lock on him. Dr. Patterson noted that "because of the supervisory nature of his work, he was able to work most of the time."

A review of claimant's prior MRI showed a markedly bulging L4-5 disc. His EMG was consistent with a lumbar radiculopathy at L4-5, but his physical examination suggested an L3-4 disc. Due to the need for clarification, Dr. Patterson ordered a myelogram which was performed on February 10, 1998. It showed no nerve root compression. The post-myelogram lumbar CT showed no rupture and a very minimal disc bulge at L4-5. On February 16, 1998, Dr. Patterson referred claimant back to Dr. Morris for conservative treatment until he was able to return to work.

Neurosurgeon Dr. Joseph Miller's letter to Dr. Loretta Bobo-Mosley dated August 28, 1998 documents that claimant had undergone three epidural blocks, but that the blocks offered claimant only temporary relief. Although claimant had some leg pain, it did not follow the true sciatic nerve distribution. Dr. Miller noted that claimant's examination was not impressive, as he did not look like a man who was in pain. After reviewing prior diagnostic tests, Dr. Miller concluded that claimant did not have a surgical lesion and should follow up for treatment with his family practitioner.

Orthopedic surgeon Dr. Robert Bobo testified by deposition that he first saw claimant on March 3, 1998, for low back pain attributable to a work-connected injury on December 21, 1997. Dr. Bobo reviewed claimant's diagnostic test results. The EMG and nerve conduction study showed evidence of radiculopathy at L4-5 on the left. The MRI ordered by Dr. Morris showed a disc bulge on the left at L4-5. The myelogram and post-myelogram CT performed by Dr. Stanley Patterson also did not show a surgical lesion. Dr. Bobo diagnosed a herniated nuclear pulposus and left lumbar radiculopathy. He recommended claimant undergo epidural steroid injections. He also prescribed various medications for pain.

When Dr. Bobo next saw claimant on March 24, 1998, he reported improved leg pain after the epidural block although he still had some back pain aggravated by activity. Claimant was continuing to work. Dr. Bobo changed claimant's medication and referred him to physical therapy. When Dr. Bobo next saw claimant on April 21, 1998, he stated he was doing fine overall as long as he avoided lifting and straining. Dr. Bobo recommended he continue working but perform only light duty.

On June 16, 1998, claimant reported continued problems with his back. Dr. Bobo allowed claimant to return to work without restrictions, but referred him again to Dr. Bemis for a lumbar epidural. Claimant underwent a second epidural block, and Dr. Bobo next saw claimant on August 18, 1998. Claimant received complete pain relief from the block for a while, but his symptoms then recurred. Dr. Bobo referred claimant for a second opinion to neurosurgeon Dr. David Cunningham who evaluated claimant and concluded that he did not need further specific treatment as he would improve with time.

When Dr. Bobo saw claimant on December 15, 1998, he felt that claimant had reached maximum medical improvement. Although intermittently symptomatic as a result of the injury, he was doing reasonably well. He also told Dr. Bobo that he had received a promotion to a less physically demanding job. Dr. Bobo assessed a 7% permanent medical impairment to the body as a whole. He released claimant to return to the clinic on an as-needed basis. Dr. Bobo testified that claimant's range of motion was essentially within normal limits. He therefore attributed claimant's impairment rating more to his diagnosis than to his loss of motion.

Dr. Bobo next saw claimant on January 26, 1999. Claimant reported he had changed jobs and was doing pretty well but needed medication to help him rest at night. Dr. Bobo therefore prescribed Darvocet. When claimant next returned on April 22, 1999, he reported he still had intermittent back pain which occasionally radiated down the right leg. Dr. Bobo prescribed Darvocet N 100's and Ultram. He did not change claimant's impairment rating.

On September 27, 1999, claimant reported a recent increase in back pain, especially at night.  Dr. Bobo prescribed Darvocet N 100's and anti-inflammatory medication. He also told claimant that he would need another epidural block if he did not improve.

When Dr. Bobo next saw claimant on February 21, 2000, he had some recurrence of his back pain including radiation to the right leg. Dr. Bobo prescribed Celebrex and Darvocet N 100's. He again advised claimant that an epidural block was an option if he did not improve. On March 1. 2000, claimant was improved with the Celebrex. When Dr. Bobo saw claimant on May 12, 2000, he was doing reasonably well but having some intermittent back pain. He also complained of occasional right leg pain.

Dr. Bobo last saw claimant on June 19, 2000. He was about the same symptomatically. Dr. Bobo again prescribed Celebrex and Darvocet N 100's. He also recommended that claimant continue light duty status on a permanent basis which would exclude heavy lifting, straining, pushing and pulling. He restricted claimant from frequent bending, stooping and climbing, and lifting more than ten pounds frequently and more than twenty to twenty-five pounds occasionally. Dr. Bobo concluded that claimant had a good prognosis for performing light work activity but not for returning to heavy lifting, pulling or pushing. He also concluded that claimant's impairment was consistent with his history of a work-connected injury, and that claimant's impairment was attributable to his lifting injury. He again assessed a 7% permanent medical impairment to the body as a whole.

1. Claimant has a permanent medical impairment attributable to the work-connected injury. Orthopedic surgeon Dr. Robert Bobo assessed a 7% permanent medical impairment to the body as a whole. He limited claimant to light duty with restrictions on frequent bending, straining, pushing, pulling, stooping, climbing, and lifting more than ten pounds frequently and more than twenty to twenty-five pounds occasionally.

2. Claimant's permanent medical impairment resulted in a loss of wage-earning-capacity. Claimant has a nonsurgical back condition. He continued to work and lost very little time because of his impairment between December 21, 1997, the date ofinjury, and March 17, 2000, the date that he was laid off by Terex. However claimant was a supervisor and could refrain from physical exertion whenever possible. Also, he worked while continuing to take pain medication and anti inflammatories. Dr. Bobo, an orthopedic surgeon and the primary treating physician from whom claimant sought regular medical treatment even after he reached maximum medical improvement on December 15, 1998, prescribed the medication. At the evidentiary hearing, claimant testified that he still took Darvocet, Flexeril, and Celebrex per Dr. Bobo.

As noted above, Dr. Bobo also permanently limited claimant to light duty with restrictions on frequent bending, straining, pushing and pulling, stooping and climbing, and lifting more than ten pounds frequently and more than twenty to twenty-five pounds occasionally. The only past job that claimant can likely perform with these restrictions is that of a customer service representative which paid him $8.50 several years ago. Although claimant was working as a supervisor on the date of injury, he worked his way into that job by performing work outside his restrictions. Also, although claimant testified that he was able to work as a supervisor within Dr. Bobo's restrictions, his job as a supervisor required an associate's degree - a requirement that was likely waived due to his history with the employer.

Considering the nature of claimant's medical impairment; the impairment rating and permanent work restrictions assessed by Dr. Bobo; his effort to return to work for Terex; his numerous, unsuccessful efforts to secure other employment; his work history performing jobs which, with one exception, would require him to exceed Dr. Bobo's restrictions; his current level of functioning; and his current employment; among other industrially related factors such as his age. education, work history and geographic location, this Administrative Judge finds that he has a 20% loss of wage-earning capacity attributable to the work-connected injury.

3. Claimant's entitled to permanent partial disability benefits at the rate of $97.82 per week for 450 weeks beginning December 15, 1998, the date of maximum medical improvement, with proper credit for compensation paid by defendants during this period.

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

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

1. permanent partial disability benefits at the rate of $97.82 for 450 weeks beginning December 15, 1998, with the proper credit for compensation paid by defendants during this period; and

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

DENEISE TURNER LOTT
ADMINISTRATIVE JUDGE

ATTEST:
Jo Ann McDonald, Commission Secretary

1 The job description for claimant's job as a supervisor with Terex requires an associate business degree, however, as noted above, claimant attended but did not complete one semester of college.