MWCC NO. 95-07693-G-6184
HAROLD D. JOHNSON CLAIMANT
vs.
G. B. "BOOTS" SMITH CORPORATION
EMPLOYER
AND
LUMBERMEN'S UNDERWRITING ALLIANCE
CARRIER
REPRESENTING CLAIMANT:
Charles W. Witt, Esquire, Jackson, MS
REPRESENTING EMPLOYER/CARRIER:
Donald V. Burch, Esquire, Jackson, MS
This matter was heard by the Commission on February
5, 2001 pursuant to the Petition for Review filed by Mr. Harold Johnson.
Mr. Johnson takes issue with the Order of the Administrative Judge entered
June 21, 2000 which denied his claim for permanent disability benefits.
Mr. Harold Johnson is approximately 52 years old and a high school graduate who sustained an admittedly compensable injury to his lower back and left leg on April 26, 1995. His average weekly wage at the time was $733.39.1 He reached maximum medical improvement on November 1, 1996 and the Employer/Carrier has paid temporary disability and medical benefits. The present dispute concerns only the extent of permanent disability attributable to this injury.
By making a claim for permanent disability benefits, Mr. Johnson assumed the burden of proving not only physical incapacity, but also a resulting loss of wage earning capacity. Miss. Code Ann. §71-3-17(c)(25) (Rev. 2000); Robinson v. Packard Elec., Div. GMC., 523 So. 2d 329 (Miss. 1988). As to physical incapacity, Mr. Johnson was found to be capable of functioning in the light category of work. His treating physician, Dr. Rahul Vohra, released the Claimant to light duty work with restrictions as follows: floor to waist lifting of 30 pounds rarely, 20 pounds occasionally, and 10 pounds frequently; waist to overhead lifting of over 40 pounds rarely, 30 pounds occasionally, and 15 pounds frequently; no frequent bending or stooping; and no sitting for more than one hour at a time.
These restrictions and Mr. Johnson's functional capacity post injury compare with his pre injury job as an 18 wheel truck driver working in the Employer's Heavy Haulers Division. In this job he oversaw the loading and unloading of his truck, including the loading of 200 pound plates onto his truck at the time of his injury.
Once released to return to work Mr. Johnson's restrictions all but precluded his return to the kind of work he performed pre-injury. Nonetheless, he sought reinstatement with the Employer but was told no work was available within his restrictions. The Claimant then set about to find other gainful employment. He performed an extensive job search which consisted of contacts with automobile dealerships where he had previously been employed, auto parts stores, convenience stores, service stations, and the Employment Security Commission, all to no avail. In fact, it is not even argued that the Claimant's efforts to find other suitable employment were anything but reasonable.
Finally, in August 1998, Mr. Johnson was able to obtain work with C & D Construction as a dump truck driver. Mr. Johnson's son knew the owner of C & D and he prevailed upon the owner to hire his father. This job paid $8.00 per hour but lasted only about 10 weeks because the physical requirements were more than Mr. Johnson could handle.
Mr. Holifield, the owner of C & D, testified that Mr. Johnson struggled on a daily basis with the demands of being a dump truck driver. He observed a steady decline in Mr. Johnson's productivity and says he hired Mr. Johnson as a favor to his son. Mr. Holifield testified that he never expected to keep Mr. Johnson on a long term basis.
Not long thereafter, Mr. Johnson obtained employment at Big Bend Tire, a Goodyear distributor, as an office person/floor salesman. Mr. Johnson was a friend to the General Manager at Big Bend, and he was therefore given special accommodations. For example, he was allowed to sit and stand as needed and other workers were instructed to load and unload tires for Mr. Johnson. This job last paid $7.50 per hour and allowed the Claimant to work 36 - 40 hours per week. After about one year, however, the store was sold and the new owner did not retain the Claimant as an employee because of Mr. Johnson's physical restrictions.
Mr. Johnson then sought assistance from the local employment service, but because of his restrictions he was not sent on any interviews.
Mr. Sam Cox, a vocational rehabilitation expert hired by the Employer, provided a list of potential jobs to Mr. Johnson. Mr. Johnson sought work at each of the places listed by Mr. Cox, but to no avail. Mr. Johnson was continuing to look for work through the date of the hearing below, but thus far without success. Mr. Cox thought Mr. Johnson possessed some valuable and transferable experience and ultimately was employable in the light to medium duty category.
Mr. Johnson testified that he still treats with
Dr. Vohra for continuous back pain and takes several medications. He is
willing to work despite physical restrictions which limit him a great deal.
Mr. Johnson's prior work history consists primarily of medium to heavy
duty manual labor.
The Administrative Judge considered all of the evidence and ultimately concluded that Mr. Johnson was not entitled to permanent disability benefits because he had lied previously about his temporary employment with C & D Construction. The Judge found that Mr. Johnson's "credibility has been materially and substantially impeached by his failure to tell the truth while under oath at his deposition taken September 30, 1998." Because the credibility of a claimant is an important consideration, the Judge was left unconvinced that Mr. Johnson suffered any permanent disability.
At the hearing below Mr. Johnson took the unusual step of announcing to the Judge that he had in fact given false testimony in a prior deposition. Specifically, during his direct examination, Mr. Johnson stated:
The Employer/Carrier likens Mr. Johnson to former President William Jefferson Clinton, whose own false testimony prompted Judge Susan Webber Wright to remark that "it simply is not acceptable to employ deceptions and falsehoods in an attempt to obstruct the judicial process. " Jones v. Clinton, 36 F. Supp. 1118, 1131 (E.D.Ark. 1999). Quoting Jimmy Breslin, they argue that Mr. Johnson "received immediate lacerations of the credibility," and quoting Hellmut Walters, the Employer/Carrier says that:
While Mr. Johnson admittedly violated his solemn obligation to tell the truth and nothing but, his attempt at contrition was both believable and commendable. To compare Mr. Johnson's failure to reveal his job at C & D Construction at the time of his deposition with the tactics of Mr. Clinton strikes us as just a little bit over the top. Despite Mr. Johnson's false deposition testimony, we cannot ignore other substantial and persuasive evidence that he has in fact suffered a significant reduction in earning capacity because of this injury. Considering all of the relevant evidence, we are led to conclude that Mr. Johnson has, because of this injury, suffered a permanent, fifty percent (50%) loss of wage earning capacity.
We therefore reverse the Order of the Administrative Judge and hereby direct and order the Employer/Carrier to pay Mr. Johnson permanent partial disability benefits in the amount of $244.482 per week for a period of 450 weeks, commencing November 2, 1996. Penalties and interest and provided by Law shall apply and the Employer/Carrier may take credit for any permanent disability benefits previously paid to Mr. Johnson.
SO ORDERED this the 14th day of March, 2001.
MISSISSIPPI WORKERS' COMPENSATION COMMISSION
BARRETT SMITH
BARNEY SCHOBY
ATTEST:
Jo Ann McDonald, Secretary
___________________________
MWCC No. 95 07693-G-6184
HAROLD D. JOHNSON CLAIMANT
vs.
G. B. "BOOTS" SMITH CORPORATION EMPLOYER
AND
LUMBERMEN'S UNDERWRITING ALLIANCE CARRIER
REPRESENTING THE CLAIMANT:
Mr. Charles Wellborn Witt, Attorney at Law P.
O. Box 12343, Jackson, MS 39236
REPRESENTING THE EMPLOYER/CARRIER:
Mr. Donald Burch, Attorney at Law P. O. Box 1084,
Jackson, Mississippi 39215-1084
Claimant alleged that on April 26, 1995, he injured
his lower back and left leg while working for the Employer. The Employer-Carrier
admitted compensability and paid medical expenses and temporary disability
benefits. The hearing was held at the Mississippi Workers' Compensation
Building in Jackson, Mississippi, on March 13, 2000.
1 . A work-related accident occurred on April 26, 1995, injuring Claimant's lower back and left leg.
2. There is no remaining issue to be decided regarding temporary disability.
3. There is no remaining issue to be decided regarding the reasonableness and necessity of the medical treatment.
4. Claimant reached maximum medical improvement
on November 1, 1996.
1 . The existence and extent of permanent disability attributable to the work accident. The Employer-Carrier alleged the issue of a superseding, intervening event.
2. Although the parties agreed that Claimant's average weekly wage on the date of the work accident was $702.14, there is a remaining issue to be decided of whether Claimant's monthly expense money should be added to the average weekly wage calculation.
3. Whether Claimant is entitled to recover penalties
and interest on disability payments not timely paid.
Claimant is a 52-year-old resident of Jones County, Mississippi, with a high school degree. Claimant has worked as a house builder, automobile mechanic, automobile dealership shop foreman, cement truck driver, delivery truck driver, and oil field worker. Claimant worked for the Employer in this matter for approximately 13 to 14 years then had a four-year hiatus and returned back to the Employer in 1990. For the first few years at the Employer, Claimant drove an 18-wheel tank truck using 60-pound hoses to transfer fluids.
Beginning in 1990, Claimant worked for the Employer in the Road Department of the Heavy Haulers Division, driving an 18-wheel truck. He oversaw the loading and unloading of the truck, which involved fastening and unfastening heavy chains and binders, as well as heavy lifting. Claimant testified that in addition to his regular salary, he was provided an extra $125 per month by the Employer for "expenses." He said that the money could be used for anything and that it was not in the form of a reimbursement. Claimant treated the $125 as income on his federal tax forms.
On April 26, 1995, Claimant was guiding a load of 200-pound plates onto the trailer bed of his truck. While maneuvering the load, Claimant said he hurt his back and leg. Claimant notified his supervisor that day and completed and accident report. He then went to a local medical clinic in Laurel. Claimant said he was given prescriptions and instructed to return to the clinic the next day, which he did. Claimant was referred to Dr. Lon Alexander, who in turn referred Claimant to Dr. Summers.
Claimant stated he received conservative medical treatment and returned to work at the Employer in a light-duty position, which involved handling paperwork, answering telephones, and dispatching trucks. Claimant said he worked there from July 1995 through December 28, 1995, when he was informed that he was being terminated by the Employer. Claimant testified that he was notified that he was being terminated because his medical condition was not improving. December 28, 1995, was the last date Claimant worked at the Employer.
Claimant underwent back surgery in June 1996 and was released to return to work by Dr. Vohra in November 1996. At that time, Claimant testified that he returned to the Employer and spoke with the Vice-President and General Manager, David Sinclair, who told Claimant to return to the Employer in two days. Claimant stated that he returned to the Employer as instructed and then two additional times seeking work. Claimant said Sinclair finally admitted that no work was available at the Employer due to Claimant's physical restrictions.
Claimant testified that he performed an extensive job search. He said he returned to the automobile dealerships where he had previously worked, and also some new places, looking for a position. Claimant checked with grocery stores, convenience stores, construction companies, and the state employment agency. Claimant testified that he also spoke with Sonny Smith, the owner of the Employer, as well as several other employees seeking to return to work at the Employer, all to no avail. Claimant sought work from November 1996 until August 1998, except for two or three days after he had an unrelated elbow surgery.
Claimant testified that, contrary to what he said in his deposition, he did return to work for a construction company around the first week of August 1998. Claimant admitted that he lied during his deposition about not working. Claimant drove a dump truck for C & D Construction Company for approximately 10 weeks. Claimant's son knew the owner of the construction company and asked the owner to hire Claimant. He earned $8.00 per hour and quit working on or about October 23, 1998. Claimant testified that driving the dump truck caused his back to hurt more. Claimant stated that he did not previously report that he was working because he needed the money and was afraid that he would be told to stop.
The latter part of October 1998, Claimant began working for an independent tire distributor as an office person/floor salesman. The general manager was a high-school friend of Claimant's. This manager, Tommy Powell, gave Claimant special considerations and instructed the other workers to load and unload tires for Claimant. Claimant was allowed to sit or stand as needed. He initially earned $7.00 per hour and later received a raise to $7.50 per hour. He worked an average of 36 hours per week. However, one year later the store was sold, and the new owner did not re-hire Claimant.
After losing his job with the tire distributor, Claimant returned to the state employment agency for work. Dr. Vohra completed a form on October 27, 1999, for the Mississippi Employment Security Commission (Exhibit 1, page 6). On that form, Dr. Vohra indicated that Claimant was not able to return to his usual work and that Claimant had to work at a light level with no repetitive bending, stooping, squatting, lifting more than 25 pounds occasionally, or pushing and pulling more than 40 pounds occasionally. Claimant said that the state employment agency would not send him on interviews that would not meet his physical restrictions as per Dr. Vohra's letter.
Claimant received job listings from the Employer-Carrier's vocational expert, Sam Cox. Claimant stated that he attempted to apply at the places listed on Cox's December 16, 1999, letter (Exhibit 12, pp. 7-8). Claimant testified that his attempts were unsuccessful. Claimant stated he also contacted and attempted to apply at most of the places listed in Cox's January 3, 2000, letter (Exhibit 12, pp. 11-12). At some. of the places, Claimant said he was able to fill out applications, but he did not receive any job offers. He stated that several of the places listed were not hiring or would only hire through the state employment agency.
Claimant said that although he still has his commercial drivers license, he cannot legally drive commercial vehicles since he is taking narcotic prescriptions. Claimant said that he continued to seek employment with the Employer and has spoken with someone at the Employer as late as 3 weeks prior to the hearing. Claimant stated that he performed an additional job search on his own, checking with convenience stores, automobile dealerships, tire stores, grocery stores, retail stores, and various factories.
Claimant testified that he is currently in "poor" physical condition. He described his pain as continuous in his lower back, left hip, left leg, and left foot. He said he has numbness and tingling in his left foot. Claimant stated that physical activity aggravates his pain and he no longer enjoys hunting, fishing, gardening, or performing yard work. Claimant has a handicap tag for his automobile, as prescribed by Dr. Vohra.
Mr. Donald Holifield, owner of C & D Construction Company, testified
for Claimant. Holifield confirmed that Claimant worked for his company
driving a dump truck approximately 10 weeks from August until October 1998.
Holifield testified that he was a friend of Claimant's son and knew that Claimant was in bad
financial shape, so he hired Claimant. Claimant earned $8.00 per hour as
a dump truck driver. Holifield testified that he had never planned to keep
Claimant as a worker on a long-term basis due to Claimant's lack of productivity.
Holifield daily observed Claimant having difficulties climbing in and out
of the dump truck and handling the truck tailgate. He said Claimant was
allowed to work when he was able, although Claimant's
productivity decreased over the weeks. Holifield testified that Claimant
eventually quit working due to back pain.
Mr. Tommy Powell testified for Claimant. Powell was the store manager for the independent tire distributorship where Claimant worked from October 1998 until October 1999. Powell said that he is currently the store manager for the new owner. Powell confirmed that Claimant earned $7.00 per hour beginning in October 1998 and received a raise to $7.50 per hour. He said Claimant worked from 30 to 40 hours per week and averaged anywhere from $250.00 to $300.00 per week in wages. Powell was aware of Claimant's physical restrictions and gave Claimant special accommodations at work. He said that he made an exception in hiring Claimant because he needed someone with Claimant's experience to help with paperwork.
Powell testified that he told the employees at the tire distributorship store that they would have to assist Claimant with any physical labor. Powell admitted that no other employees had the special considerations Claimant received while working there. Powell testified that the new owner wanted a person that could do the physical work, so Claimant was not rehired. Powell observed Claimant having difficulties sitting and standing while working.
Mr. Sam Cox, vocational rehabilitation expert, testified for the Employer-Carrier. Cox met Claimant on January 20, 1997, for an initial evaluation. Cox reviewed Claimant's educational record, the medical records, and Claimant's work history. He issued a report on February 6, 1997, and then had no further personal contact with the Claimant. Cox was not contacted again until December 1999, at which time he gathered additional job market information.
Cox opined that Claimant was employable in a light to medium work category. He did not consider any truck driving opportunities due to Claimant's physical restrictions. Cox performed a follow-up evaluation and was unable to verify that Claimant had applied at the places listed in the job market survey. Cox testified that although Claimant was on prescription medication, Claimant could be an in-state truck driver. However, Cox later admitted that Claimant may have difficulty passing a DOT test due to the narcotic prescription medication. Cox noted that no doctor had declared Claimant unemployable. Although Cox agreed Claimant did not have automobile sales experience, he stated that Claimant's tire sales experience and working with the public was valuable and transferable experience.
Exhibit 6 is a January 9, 1996, letter to Claimant from the Carrier representative. This letter confirmed that the Employer had no position available for the Claimant. The representative wrote that a vocational consultant was being hired to assist Claimant. Exhibits 8 and 9 are videotapes of Claimant dated August 19, 1998, September 3, 1998, and September 4, 1998. These lengthy videotapes depict Claimant working as a dump truck driver and performing various other daily functions.
Dr. Lon F. Alexander, neurosurgeon, treated Claimant for his back injury, and in May 1995, he referred Claimant for epidural steroid injections. An MRI dated April 25, 1996, showed Claimant having a diffuse bulging disc at the L4-5 level and a focal disc protrusion at the L5-S1 level. On April 19, 1996, Dr. Alexander noted that "some activities of daily living have re-exacerbated his complaints." Specifically, Dr. Alexander noted that Claimant had increased back pain while changing a flat tire but that the pain resolved. Again in May 1996, Dr. Alexander noted that Claimant "reawakened his previous complaint" when changing the tire but that Claimant had improved.
Dr. Alexander performed a lumbar laminectomy and diskectomy at the L5-S1 level on June 6, 1996. On July 12, 1996, Claimant was released to light duty work for two weeks with a gradual re-integration into full duty. On August 2, 1996, the last recorded visit, Dr. Alexander noted that Claimant still had low back pain and tingling in his left foot. However, Dr. Alexander felt that Claimant had an overall improvement.
Dr. Sidney R. Berry, orthopedic surgeon, saw Claimant on February 21, 1996, for a second opinion concerning surgery. Dr. Berry reviewed Claimant's medical record and examined Claimant. Claimant complained of pain in the lower back, hip, and left leg, which worsened after physical activity. Dr. Berry ordered and reviewed an MRI, which he said showed evidence of degenerative disk changes and a disk herniation at the L5 level. Dr. Berry stated, "This finding correlates with the patient's clinical picture noted on the last exam."
Dr. Berry recommended the surgery proposed by Dr. Alexander. Dr. Berry opined that Claimant could return to work in the light to light/medium level per the Department of Labor guidelines, should Claimant not have the suggested surgery. Furthermore, Dr. Berry felt that Claimant had an 8% permanent medical impairment to his body as a whole in accordance with AMA guidelines.
Dr. Rahul Vohra, physiatrist, began treating Claimant in June 1995. At that time, Dr. Vohra prescribed physical therapy and referred Claimant to Dr. Summers for nerve root injections. In August 1995, Dr. Vohra sent Claimant to a work hardening program. In September 1995, Dr. Vohra felt Claimant could work light duty. Dr. Vohra later commented that Claimant would not be able to return to work as a truck driver due the physical requirements.
On December 19, 1995, Dr. Vohra placed Claimant at maximum medical improvement after several months of conservative treatment. He gave Claimant a 10% permanent medical impairment and limited Claimant from lifting more than 25 pounds on an occasional basis, pushing or pulling more than 40 pounds on an occasional basis, and repetitive bending, stooping, or squatting. He felt Claimant would be at a light level of work.
Dr. Vohra continued to regularly treat Claimant, and in March 1996, he referred Claimant to Dr. Alexander for possible surgical intervention. In April 1996, Dr. Vohra noted that Claimant had a significant increase in pain. Dr. Vohra agreed that Dr. Alexander's recommendation of surgery was a reasonable alternative. After surgery, Claimant, returned to Dr. Vohra in September 1996 and continued regular treatment with Dr. Vohra, continuing until the present. Throughout the treatment, Dr. Vohra noted Claimant continued to have spasms; however, Dr. Vohra felt that Claimant was neurologically intact.
In October 1996, Dr. Vohra ordered a functional capacity evaluation. On November 1, 1996, Dr. Vohra reviewed and agreed with the functional capacity evaluation results, which he said placed Claimant at the light to light/medium level of work. Dr. Vohra released Claimant to return to light-duty work with the following restrictions: floor-to-waist lifting of 30 pounds rarely, 20 pounds occasionally and 10 pounds frequently; waist-to-overhead lifting of over 40 pounds rarely, 30 pounds occasionally, and 15 pounds frequently; no frequent bending or stooping; and no sitting for more than one hour at a time. Dr. Vohra again assigned Claimant a 10% permanent medical impairment rating.
Dr. Vohra continued to treat Claimant and noted Claimant's continued complaints of pain in the lower back and left leg. In July 1997, Dr. Vohra referred Claimant to Dr. Summers for Claimant's chronic S1 radicular pain. Dr. Vohra ordered and reviewed an MRI in August 1997, which he thought revealed only scar tissue at the L4-5 level. Throughout Dr. Vohra's treatment of Claimant, there are notations of decreased pain with occasional flare-ups. Dr. Vohra noted that Claimant had an unrelated elbow surgery in May 1998.
On October 30, 1998, Claimant complained of an increase in back pain after driving a dump truck. Claimant told Dr. Vohra that he was unable to tolerate the driving. Dr. Vohra noted that Claimant had begun working in a sedentary position at a tire store and that Claimant was "tolerating this fairly well." Dr. Vohra continued to treat Claimant throughout 1998 and 1999, noting on different occasions that Claimant had intermittent flare-ups of back pain. Several times, Dr. Vohra noted in his record that Claimant had no pain behavior and no abuse behavior. Dr. Vohra continued to treat Claimant through March 2000.
Dr. Robert R. Smith, neurosurgeon, saw Claimant
on March 15, 1999, for an employer medical evaluation. Dr. Smith reviewed
Claimant's medical records and diagnostic tests. He called Claimant's permanent
impairment "significant" and gave Claimant a 15% permanent medical impairment
rating to the body as a whole. Dr. Smith restricted Claimant from lifting
more than 50 pounds and prolonged standing.
I base the following findings on a preponderance of the evidence, including medical proof as provided by the Mississippi Workers' Compensation Law:
1 . Claimant sustained a work-related injury on April 26, 1995, to his lower back and left leg, as stipulated.
2. Claimant's average weekly wage was $702.14. However, Claimant received an additional pay of $125 per month (or $31.25 per week) from the Employer. While this payment was ostensibly for "expenses," Claimant's unrebutted testimony was that the $125 payment was listed as income for federal tax purposes, and, more importantly, the money was not reimbursement for submitted expense bills and could be used as regular income by the employees. Given the unrebutted evidence, I find that the $125 monthly income should be added to Claimant's average weekly wage, thus making Claimant's average weekly wage on the date of the work accident to be $ 733.39.
3. There is no remaining issue to be decided regarding temporary disability, as stipulated.
4. Claimant reached maximum medical improvement
on November 1, 1996, as stipulated.
5. There is no remaining issue to be decided
regarding the reasonableness or necessity of medical treatment as stipulated.
6. In order to garner permanent disability benefits, Claimant has the burden of proving a physical impairment and a resulting loss of wage-earning capacity. Miss. Code Ann. §71-3-17(c)(25) (Rev. 1995). The medical evidence showed that Claimant has a physical impairment from his work injuries. However, Claimant has to also prove a loss of wage-earning capacity from the physical impairment (medical disability vs. functional disability). As to Claimant's wage-earning capacity, he engaged in gainful work activities after being released from his treating physician. Additionally, the vocation rehabilitation expert opined that Claimant had valuable and transferable experience and was employable. As far as objective medical evidence, the last diagnostic test - an MRI - was taken in August 1997, which Dr. Vohra said only showed scar tissue from the previous surgery.
Furthermore, a claimant's credibility, or lack thereof, is an important part of the evidence in a workers' compensation claim. Claimant's credibility has been materially and substantially impeached by his failure to tell the truth while under oath at his deposition taken September 30, 1998. At the hearing, Claimant admitted that he lied during his deposition but attempted to defend his actions by saying he needed money.
The evidence as a whole convinces me that Claimant has not sustained any permanent disability from his work injuries; therefore, his claim is denied.
7. The Employer-Carrier has raised the issue of
a superseding intervening event. This issue is moot due to the above findings.
IT IS, THEREFORE, ORDERED AND ADJUDGED that Claimant's claim for permanent disability benefits is hereby denied.
SO ORDERED this the 21st day of June, 2000.
TAMMY GREEN HARTHCOCK
ADMINISTRATIVE JUDGE
ATTEST:
Brenda H. Goolsby, Secretary
___________________________
1. We agree with the Administrative Judge's determination of the average weekly wage which includes $125.00 per month in income which Mr. Johnson received from the Employer in addition to his average weekly pay of $702.14.
2. As provided in Miss. Code Ann. §71-3-17(c)(25) (Rev. 2000) this figure represents 2/3 of the difference between Mr. Johnson's average weekly wage of $733.39 and his wage earning capacity thereafter.