This matter was heard by the Commission on March 5, 2001 pursuant to the Claimant's Petition for Appeal and Review. Mr. Ferguson contends the Administrative Judge erred in not awarding him permanent disability benefits. In the end, we agree.
 

Glen Ferguson sustained an admittedly compensable injury to his back while working as a truck driver for KLLM on September 11, 1996. At the time he was earning an average of $339.40 per week. Mr. Ferguson has undergone three surgeries for recurrent disc herniation, and reached maximum medical improvement on July 30, 1998. All temporary disability benefits owing to him have been paid by KLLM. His treating physician, Dr. Nudelman, assigned a 20%, medical impairment and restricted Mr. Ferguson from lifting and/or carrying more than 50 pounds.

Following his release in July 1998 Mr. Ferguson was examined by two KLLM appointed physicians, both of whom concluded he was not physically fit to return to work for KLLM as a truck driver. Following this second physical, Mr. Ferguson was advised that he had failed a drug screen and he was terminated. His treating physician, Dr. Nudelman had not precluded Mr. Ferguson from returning to work as a truck driver so long as he was not required to do loading and unloading.

After being terminated by KLLM, Mr. Ferguson sought and has been able to obtain other gainful employment, albeit for temporary and unpredictable periods of time. Specifically, Mr. Ferguson worked for Holiday Lights from October 30, 1998 through November 19, 1998 and earned total wages of $600.00; he worked for Food Lion for three weeks beginning December 7, 1998 and earned an average of $320.00 per week; he worked for Medicare Rental from January 4, 1999 through May 3,1999 for an average weekly wage of $360.00; he worked several jobs through different temporary staffing agencies from June 1999 to March 2000 at rates of pay ranging from $6.00 to $9.00 per hour; and, finally, Mr. Ferguson obtained employment with Goria Enterprises in June 2000 at the wage rate of $10.00 per hour for a limited 37 hour per week position.

It should also be noted that Mr. Ferguson is approximately 40 years old and a resident of Greensboro, North Carolina. He is a high school graduate with four years of military service to his credit and military training as a communications specialist. He also completed a commercial truck driving school in 1994. Prior to becoming a truck driver, Mr. Ferguson worked primarily manual labor jobs in the medium duty category.
 

By making a claim for permanent disability benefits, Mr. Ferguson 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). In this respect, it is uncontested that Mr. Ferguson has proven the requisite physical incapacity. Regarding earning capacity, Mr. Ferguson's proof suggest he is far from totally disabled, but that this earning capacity still has been diminished by his injury.

First, Mr. Ferguson was found by two KLLM appointed physicians to be physically unfit for return to duty with KLLM as a truck driver, his failed drug screen notwithstanding. Nonetheless, he has demonstrated the capacity to work and earn wages post-injury. In fact, from the time he was released at maximum medical improvement until the hearing below, Mr. Ferguson earned wages which averaged $206.74 per week for this period. Still, candor requires confession that his post injury employment has been temporary and unpredictable at best.

In the end, we are charged "to make the best possible estimate of future impairment of earnings, on the strength not only of actual post-injury earnings but of any other available clues." Karr v. Armstrong Tire & Rubber Co., 216 Miss. 132, 61 So.2d 789, 792 (1953). We are reminded that a finding of permanent loss of wage earning capacity "may stand even when there is evidence of actual post-injury earnings equaling or exceeding those received before the accident." Id.

The position may be best summarized by saying that actual post-injury earnings will create a presumption of earning capacity commensurate with them, but the presumption may be rebutted by evidence independently showing incapacity or explaining away the post-injury earnings as an unreliable basis for estimating capacity. Unreliability of post-injury earnings may be due to a number of things: increase in general wage levels since the time of accident; claimant's own greater maturity or training; longer hours worked by claimant after the accident; payment of wages disproportionate to capacity out of sympathy to claimant; and the temporary and unpredictable character of post-injury earnings.

The ultimate objective of the disability test is, by discounting these variables, to determine the wage that would have been paid in the open labor market under normal employment conditions to claimant as injured, taking wage levels, hours of work, and claimant's age and state of training as of exactly the same period used for calculating actual wages earned before the injury. Only by the elimination of all variables except the injury itself can a reasonably accurate estimate be made of the impairment of earning capacity to be attributed to that injury.

Having considered all of the evidence, and having considered all of the variables, we have reached the conclusion that Glen Ferguson has suffered a permanent loss of wage earning of approximately 35 % and should be compensated accordingly. We therefore reverse the Opinion of the Administrative Judge entered September 12, 2000 and we hereby direct and order the Employer to pay permanent partial disability benefits to Glen Ferguson in the amount of $79.20 per week for a period of 450 weeks, commencing July 31, 1998. Penalties and interest as provided by Law shall apply and the Employer may take credit for any permanent disability benefits previously paid.

SO ORDERED this the 14, March 2001.

MISSISSIPPI WORKERS' COMPENSATION COMMISSION
BARRETT SMITH
BARNEY SCHOBY

ATTEST:
Jo Ann McDonald, Secretary
___________________________
 

MWCC NO. 96 13443-G-3729-C-00

GLEN FERGUSON                                                                                                                           CLAIMANT

vs.

KLLM, INC.                                                                                                                                      EMPLOYER
SELF-INSURED

APPEARING FOR CLAIMANT:
The Honorable Jack C. Pickett, Attorney at Law, Pascagoula, Mississippi

APPEARING FOR EMPLOYER:
The Honorable Bobby Thompson, Attorney at Law, Jackson, Mississippi
 

The claimant, Glen Ferguson, sustained an admittedly compensable injury on September 11, 1996 while in the employ of KLLM, Inc. (hereinafter "KLLM"). At the hearing on the merits of the claimant's Petition to Controvert, which was held on the 25th day of August, 2000, the parties stipulated to the following facts:

1. The claimant's average weekly wage at the time of injury was $339.40, rendering a compensation rate of $226.27.

2. All temporary total disability benefits due and owing to the claimant have been paid.

3. The claimant reached maximum medical improvement on July 30, 1998.

4. The claimant's primary treating physician, Dr. Nudelman, established by medical testimony that the claimant had sustained a 20% permanent medical impairment to the claimant's body as a whole as a result of the compensable injury.

5. The claimant has earned the following post-injury wages for the following periods:

Employer Holiday Lights from October 30, 1998 through November 19, 1998 for a total wage of $600.00;

Employer Food Lion commencing December 7, 1998 for a period of three weeks, 40 hours per week, at a weekly wage of $320.00;

Employer Medicare Rental from January 4, 1999 through May 3, 1999. At a wage of $8.50 per hour for the first 30 days, followed by $9.00 per hour for the remaining period of employment, or an average weekly wage for the employment period of $360.00; Employer Labor Works on June 3, 8, 10, 11, 14 and 16, 1999 at a wage rate of $6.00 per hour;

Employer Debbie's Staffing from June 16, 1999 through September 9, 1999, provided to Nabisco as a temporary hire at a wage of $9.00 per hour or an average weekly wage of $379.84 during the employment period;

Employer Labor Works on November 10, 22 and 23 and December 2, 6, 7 and 141 1999 at a wage rate of $6.00 per hour;

Employer A & R Staffing commencing in March 2000 at a wage rate of $8.50 per hour for the first 30 days of the limited 37 hour per week position, and at a wage rate of $9.00 thereafter;

Employer Goria Enterprises (the same facility at which the claimant was employed through A & R Staffing as a temporary hire) at a wage rate of $10.00 per hour for a limited 37 hour per week position.

The issues remaining for decision by the Administrative judge, as established by the 2 parties, is singularly the nature and extent of the claimants permanent disability resulting from his compensable injury, together with the claimant's loss of wage earning capacity.
 

The claimant, Glen Ferguson, is a 40 year old resident of Greensboro, North Carolina. He testified that he was 36 years old at the time of the injury. Mr. Ferguson graduated from high school but has had no college hours. He was trained as a telecommunications specialist in the military, where he served for four years and was honorably discharged. In 1994 he attended and completed commercial truck driving school at CRST.

The claimant testified that prior to attending CRST, he held jobs of various characters, including security guard, temporary warehouseman, mail clerk and delivery truck driver. He testified that these jobs required walking, sitting, lifting, bending, pushing and pulling. He indicated that the heaviest lifting during these periods was during his employment with Epstein Seafood, when he lifted cases of cans weighing from 25 to 40 pounds and cases of jars weighing from 50 to 60 pounds. The claimant testified that the majority of these positions were minimum wage positions. He testified that he sought to be trained as a commercial truck driver in order to secure a profession at a higher wage.

Subsequent to obtaining a commercial drivers license, the claimant became a team driver at CRST for six months. He then became employed as a solo driver at DTI until it ceased business, about three to four months. He then became employed as a solo driver at Universal Express until it ceased business, about three to four months. He began as a solo driver with KLLM in January of 1996.

The claimant testified that he was injured on September 11, 1996 in Wagoner, Oklahoma while attempting to even out the load in his trailer. He notified KLLM of his injury. The safety coordinator directed him to rest for the night and call the safety coordinator again in the morning. At that time, the safety coordinator directed him to seek medical treatment at the nearest hospital, which was Columbia Wagoner Hospital. The emergency room physician diagnosed muscle spasm and directed him to stop driving until the following Monday and then to return to the emergency room. KLLM concurred and put him up in a hotel room for the period suggested by the physician. When the claimant returned to the emergency room physician, he was again directed not to drive. KLLM again concurred and obtained for him a flight to his home in Greensboro and secured for him medical treatment by Dr. Lavender. Dr. Lavender treated him with medications, heat and rest and, seeing no improvement, referred the claimant to Dr. Robert Nudelman. Dr. Nudelman performed diagnostic tests, diagnosed a ruptured disc, and performed a lumbar diskectomy. After the claimant's recovery, he was returned to work in April of 1997, when he began working with KLLM on modified duty.¹ The claimant worked on modified duty until July or August of 1997, when he re-injured himself. As a result of the re-injury, the claimant returned to Dr. Nudelman, who performed a second diskectomy in September of 1997. After his second surgery, Dr. Nudelman prescribed physical therapy. During the course of the therapy, the claimant again ruptured a disc and in January of 1998 Dr. Nudelman performed a fusion.

In July of 1998, Dr. Nudelman released the claimant to return to KLLM. The claimant was examined by KLLM's physician who opined that the claimant could not return to KLLM as a driver. He sought and obtained an examination by a second KLLM physician, who also opined that the claimant could not return to KLLM in the capacity of a truck driver. After the results of the second physical, he was advised that he had failed a drug screen and would not be employed by KLLM.

The claimant testified that in his current job at Goria Enterprises he checks trucks loaded with pavers or stepping stones to determine that they are appropriately loaded with the product sought by the procurers of the product. This job requires him to walk and do paperwork, but it requires no lifting. He has been performing this job since June of 2000. He testified that he is an at will employee with no employment contract and that Goria Enterprises sells seasonal outdoor yard and garden supplies. He anticipates a downturn in Goria's business after Labor Day.

The claimant testified that he continues to take Flexeril and Amitriptyline and that these prescriptions cost approximately $50.00 and $60.00 per month. He testified that he understands his current restrictions from Dr. Nudelman as occasional bending, lifting 10 pounds frequently, 25 to 40 pounds occasionally, to sit no more than 2 hours, to walk no more than 1-2 hours, and never to lift over 50 pounds.

On cross-examination, the claimant acknowledged that Dr. Nudelman would not allow him to lift 50 pounds repetitively, and that he indicated that he believed that under Dr. Nudelman's restrictions, he might occasionally lift 50 pounds. He further testified that he can drive a forklift, truck, and that he has engaged in packaging, shipping and receiving, and loading and unloading.

Dr. Robert Nudelman testified by medical records affidavit that he examined the claimant on November 13, 1996, noting soreness to palpation in the left paraspinal region, limited forward flexion and extension to about 20 degrees due to pain, positive straight leg raising left at about 80 to 90 degrees, negative right, with weakness of the left dorsiflexor and extensor hallucis longus, although pinprick to the lower extremities is intact. Dr. Nudelman reviewed an MRI showing degenerative disc disease at L5-S1 and a superimposed disc herniation central and to the left on this level, extending into the left foramen. Based on his examination and the diagnostic studies, Dr. Nudelman opined that the claimant was experiencing left L5 radiculopathy, secondary to a left, L5-S1 disc herniation and recommended surgery,² which the claimant underwent on November 22, 1996. The physician followed the claimant through his recovery period, agreeing to return the claimant to work at KLLM on March 17, 1997 driving a truck on his own 10 hours per day, days a week, but with as many breaks as the claimant determines necessary and without loading and unloading duties.

After two weeks on the job, the claimant reported cramping in his legs and stiffness, particularly in the morning hours. Dr. Nudelman prescribed Flexeril for these conditions. In August of 1997, the claimant was complaining of increased pain and Dr. Nudelman's examination led him to believe that the claimant was suffering from epidural scarring from the disc herniation or suffering from a recurrent disc herniation. Dr. Nudelman placed the claimant on a regimen of physical therapy, provided Flexeril and Naprosyn. Subsequently, Dr. Nudelman determined from an MRI scan of the lumbar spine completed with and without Gadolinium that the claimant suffered a recurrent disc herniation at L5-S1, and performed a second lumbar laminotomy and microdiskectomy on September 18, 1997. Approximately seven weeks post-surgery, Dr. Nudelman referred the claimant for physical therapy and sports rehabilitation. During this period of time, Dr. Nudelman limited the claimant to working two to four hours of light duty a day, with no lifting greater than 10 pounds occasionally, no more than five pounds frequently, no driving, and the ability to stand and sit intermittently as the claimant chose.

The claimant began to complain in December of 1997 of increased pain and right-sided radiculopathy. An MRI scan was performed on December 30,1997 and compared with the October 12, 1997 scan. This revealed that the small recurrent disc herniation had increased, extending in a broad-based fashion, but worse to the right, explaining the claimant's complaint of right-sided radiculopathy. Fusion was performed and the claimant was followed by the physician, being released to return to work on July 27, 1998 with the restriction of lifting and/or carrying no more than 50 pounds. Dr. Nudelman opined that the claimant sustained a 30% permanent medical impairment to the body as a whole.³ Dr. Nudelman noted in December of 1998 that the claimant could resume driving a truck so long as he is not required to do loading and unloading.

Dr. Dick Lavender testified by medical records affidavit that he first saw the claimant on September 20, 1996. He followed the claimant until October 11, 1996, when he referred the claimant to a neurosurgeon. The physician's records reflect that the neurosurgeon to whom the claimant was referred was changed to Dr. Nudelman at the request of the compensation carrier. Dr. Lavender's records reflect that the claimant was temporarily and totally disabled during the period that he treated the claimant.

The medical records of Columbia Wagoner Hospital were admitted by medical records affidavit. These records corroborated the claimant's testimony as to the date of injury, nature of injury and his emergency room visits in Wagoner, Oklahoma.

KLLM personnel records (exhibit CL-4) indicate the following:

The claimant was taken off workers' compensation on July 27, 1998 and reactivated with no loading/unloading.

The claimant was discharged on August 14, 1998 after failing the drug screen returning from workers' compensation leave.⁴

After considering the lay and expert testimony adduced in this cause, together with the documentary evidence and the relevant law, the undersigned finds that the claimant has sustained a substantial permanent medical impairment to his body as a whole as a result of an initial disc herniation caused by job related activities and exacerbated by two subsequent recurrent herniations and three surgeries. His permanent restrictions include no lifting and/or carrying in excess of 50 pounds. The claimant's employment history demonstrates that he has had a lifelong history of occupations requiring manual labor; thus this restriction impairs his ability to do many of the jobs that he may have held which required heavy lifting, although he still maintains the ability to do medium work.

The claimant has, subsequent his injury, exhibited a good work ethic and has, indeed, located and worked at numerous jobs which have allowed him to earn equal to or in excess of his pre-injury wage. Indeed, but for the unfortunate drug screen result, the claimant would be re-employed with KLLM or another trucking company, as Dr. Nudelman did not preclude truck driving as an occupation for the claimant. In any event, although the claimant is precluded from jobs requiring heavy lifting, he has demonstrated his ability to earn wages in jobs which require physical labor which are within his medical restriction. Thus, the claimant has not proven that he is disabled within the meaning of the Mississippi Workers' Compensation Act, specifically Mississippi Code Annotated, section 71-3-3 (i) (1972).
 

IT IS, THEREFORE, ORDERED AND ADJUDGED that the employer and carrier provide to the claimant medical services and supplies pursuant to Mississippi Code Annotated, section 71-3-15 (1972 and Supp. 1999) for so long as the nature of the injury and the process of the recovery may require, with fees and charges to be limited to that allowed pursuant to the Mississippi Workers' Compensation Medical Fee Schedule.

All other relief requested be, and the same hereby is DENIED.

SO ORDERED this the 12th day of September, 2000.

LYDIA QUARLES
ADMINISTRATIVE JUDGE

ATTEST:
Jo Ann McDonald, Secretary
___________________________

1.  The claimant drove for two hours and then took a break, and only took hauls that required no loading and unloading.

2. Left L5-S1 lumbar laminotomy and microdiskectomy.

3. Note that the stipulations indicate a 20% permanent medical impairment, while Dr. Nudelman's records (dated December 13, 1999) indicate that using the North Carolina criteria for the claimant, he would opine that the claimant would have "a permanent partial disability rating of 30% as regards to the spine."

4. A drug screen indicating a positive finding of marijuana metabolite is contained in the personnel records.