MWCC NO. 96 07612-G-8741-E

CHRISTOPHER CRAIG WELLS                                                                                                                                                                     CLAIMANT

VERSUS

MISSISSIPPI PUBLIC SERVICE COMMISSION                                                                                                                                         EMPLOYER
AND
MISSISSlPPI STATE AGENCIES SELF-INSURED
WORKERS' COMPENSATION TRUST                                                                                                                                                             CARRIER

Proceedings were initiated in this cause by the filing of claimant's Petition to Controvert on June 19, 2000, alleging injuries to the claimant's neck and body as a whole occurring in the course and scope of his employment with the Mississippi Public Service Commission on May 20, 1996. The employer admitted the injury but denied that the claimant's disability arose out of the claimant's employment. Thereafter, discovery between the parties was completed and the matter was tried before the Administrative Judge at a Hearing on the Merits on February 23, 2001 at the Mississippi Workers' Compensation Commission in Jackson, Mississippi. The record was held open to allow the parties an opportunity to submit a stipulation concerning the claimant's average weekly wage at the time of injury.

The parties have stipulated on the following issues:

1. Claimant's average weekly wage at the time of injury was $496.50.

2. Although the employer denied that the claimant's disability arose out of his employment, the employer paid all periods of temporary disability benefits.

3. The claimant reached maximum medical improvement on December 5, 2000.

The remaining issue before the Administrative Judge is the nature and extent of permanent disability entitlement.

Christopher Craig Wells is a 30-year-old resident of Brandon, Mississippi, where he lives with his wife. Mr. Wells has a five-year-old son from a prior marriage who lives with him during scheduled visitation. Mrs. Lee Wells, claimant's wife, was present at the hearing and is expected to give birth to a child in the near future.

Mr. Wells is a high school graduate and he also attended the University of Southern Mississippi for several years working towards a degree in Criminal Justice. Mr. Wells did not graduate from USM and lacks approximately two semesters of course work to earn a degree. Mr. Wells also served in the military during Operation Desert Storm which interrupted his college education.

Mr. Wells left USM to attend the Hattiesburg Police Academy in 1993. He graduated from the police academy and was hired by the Wiggins, Mississippi police department. He worked for the Wiggins Police Department as a police officer until he was hired by the Mississippi Public Service Commission in June of 1994. The claimant testified that he took the position with the Public Service Commission to earn more money.

The claimant worked for the employer as an inspector of commercial vehicles. He testified that he had to complete three courses mandated by the Department of Transportation to become certified to inspect commercial vehicles for safety, hazardous materials and illegal cargo such as drugs. The claimant attended several firearms schools and firearms instructor courses. Additionally, the claimant attended courses on drug identification, United States Customs Department procedures, K-9 development, hand-to-hand combat and became a certified instructor for the defense of edged weapons (knives).

The claimant served in the Mississippi National Guard as a military police officer while working for the employer. The claimant also served as a physical training instructor for the National Guard.

On May 20, 1996, the claimant was travelling in his patrol car on Interstate 20 when he noticed a disabled church van on the side of the road. The van was being driven by a group of senior citizens and a tire had gone flat. Claimant was in the process of changing the flat tire for the senior citizens when he felt a severe pain in his neck while loosening the lug nuts on the flat tire. The claimant advised another officer at the scene, Ronnie Odom, that he had injured his neck and also radioed his supervisor, Colonel Bill Summers, to report the injury. The district captain, Oscar Morgan, was also notified of the injury. The claimant requested permission to seek medical treatment and was advised that he could leave the scene for that purpose. The claimant testified that he believed he had pulled a muscle and went immediately to the Foxworth Chiropractic Clinic where he was treated by Dr. C.V. Matthews. The claimant continued to treat with Dr. Matthews and his family physician, Dr. Brent Meador, for several months for muscle spasms and cervical pain. Dr. Meador ultimately referred the claimant to Dr. John Neill for neurological evaluation.

The records of Dr. John Neill were submitted into evidence by the claimant under affidavit. Dr. Neill's records indicate that he initially evaluated the claimant on July 1, 1997 on referral from Dr. Meador. Dr. Neill noted the claimant's history of an onset of pain while helping a motorist change a tire in May of 1996. An MRI ordered by Dr. Neill revealed a C4- 5 disk herniation. The claimant was admitted to Mississippi Baptist Medical Center and underwent a C4-5 anterior cervical discectomy and fusion with allograft on July 23, 1997. Dr. Neill followed the claimant post-operatively and released him to return to work on August 26, 1997. The claimant returned to work with the employer and resumed his regular job duties although he continued to experience shoulder and neck pain, intermittently, as documented by Dr. Neill. On October 9, 1998, Dr. Neill noted a history from the claimant of an acute pain flare-up that occurred on October 4, 1998. Another MRI scan performed on October 20, 1998, revealed disk protrusions at C3-4 and C6-7 which were potentially impinging the nerve roots. Dr. Neill's records indicate that he causally related the claimant's flare-up in October of 1998 to the claimant's work injury at the request of the employer's workers' compensation insurance administrator. Dr. Neill was reluctant to perform another surgery on the claimant because of the stress that had already been placed on the claimant's neck by the earlier fusion. At that point, the claimant requested a second opinion from the employer which was scheduled with Dr. Lon Alexander.

The parties deposed Dr. Alexander and the deposition was accepted into evidence as a general exhibit. Dr. Alexander initially treated the claimant on January 15, 1999. The evaluation was scheduled by the case management nurse hired by the employer. Dr. Alexander testified that he reviewed the claimant's MRI scan and concurred that the claimant had a bone spur, or spondylitic bar at the C3-4 level. Dr. Alexander wanted to maximize conservative treatment measures before proceeding with surgical repair. A referral to a physiatrist, Dr. Rahul Vohra, was made for that purpose. After three months of conservative treatment, a follow-up MRI confirmed that the disk problem at C3-4 had worsened. As of June 14, 1999, Dr. Alexander also noted that the claimant exhibited triceps muscle weakness which he could not account for because the muscle was controlled by nerves at C6-7. Dr. Alexander elected to proceed with surgical repair at C3-4 and performed an anterior cervical fusion on August 3, 1999.

Dr. Alexander testified that following the surgery in August of 1999 the claimant did wonderfully.¹ The claimant was referred back to Dr. Vohra for the administration of physical therapy and rehabilitation treatment. The claimant returned to work but suffered another flare- up in January of 2000.

In January of 2000, Dr. Alexander noted that the claimant was experiencing increased pain. Thereafter, in April of 2000, the claimant had a "terrible occurrence of severe neck pain radiating into his left arm." Dr. Alexander testified that he was concerned that the claimant was experiencing a cardiac problem and admitted him to St. Dominic's hospital for evaluation by a cardiologist. After ruling out a heart problem, Dr. Alexander ordered another MRI which revealed a large ruptured disk at C6-7. The employer initially denied the surgery recommended by Dr. Alexander and he was asked to clarify the causal relationship between the work injury and the claimant's subsequent surgical problems. Dr. Alexander provided a letter to the employer's insurance administrator and stated, "...it's my unshakable belief that Mr. Wells' need for anterior cervical discectomy was related to the previous injury and surgeries." That procedure was ultimately approved by the employer and the claimant underwent a third cervical fusion.

The claimant was referred back to Dr. Vohra for rehabilitation and treatment. Dr. Alexander last saw the claimant on July 19, 2000 and testified that the claimant was at maximum medical improvement from a neurosurgical standpoint. Dr. Alexander stated that he would defer to Dr. Vohra concerning the claimant's permanent impairment and physical limitations and restrictions. Dr. Alexander also indicated that he shared the concern of Dr. Winston Capel²that the claimant would experience problems at the C5-6 level which was between two fused cervical segments. Lastly, Dr. Alexander was asked by the claimant's counsel concerning the restrictions that Dr. Vohra gave the claimant as follows:

Q. Were you aware that Dr. Vohra had or has expressed an opinion that Mr. Wells should not wear the body armor or his belt at this time?

A. I think I did know that and that this was upsetting to Mr. Wells. Mr. Wells, again, had aspirations regarding his career. When I first met him he was going to finish his education and perhaps even apply to the FBI Academy. He wanted to make a career of law enforcement.  He was upset, I recall, when Dr. Vohra suggested this to him because he thought that would hinder his road."

Dr. Vohra was deposed by the parties and his deposition was admitted into evidence. Dr. Vohra testified that he first treated the claimant on February 3, 1999 on referral from Dr. Alexander. He indicated that the claimant reached maximum medical improvement on December 5, 2000. Dr. Vohra felt that the claimant has a 19% impairment to the whole person as a result of his three cervical surgeries. Dr. Vohra confirmed that the claimant would be permanently restricted from wearing his protective vest or his gun belt. Additionally, the claimant was limited to no lifting over fifty pounds and restricted from climbing or working at heights. Dr. Vohra testified that the claimant was at a higher risk for being injured in an altercation with a criminal suspect because of the work injury and surgical repairs.

The claimant returned to work with his employer following each of his three surgeries. Following his most recent surgery, the claimant was unable to return to regular duty because of the restrictions placed on him by Dr. Vohra. Although the employer did not have a regular position for the claimant, he was allowed to perform office duties of answering the telephone and other administrative jobs. The testimony indicated that the claimant's long-term employment with the employer was extremely unpredictable. The office duty accommodation made by the employer, while commendable, is not a recognized position by the Public Service Commission. Additionally, the claimant's physical restrictions prevent him from wearing his protective vest and gun belt. He is also cautioned against physical altercations with criminal suspects and restricted from climbing or repetitive heavy lifting. As a result, the claimant may no longer perform commercial vehicle inspections for the employer, or presumably, any law enforcement agency.

The claimant testified that he was forced to turn down a commission to officer candidate school through the Mississippi National Guard because he was unable to pass the necessary physical fitness test. Although the claimant testified that he scored the third highest physical fitness level for the National Guard the year before his injury, and was a physical fitness instructor, he was subsequently unable to even pass the routine sit-up portion of the examination. The claimant earned $189 per month while in the National Guard except for the month of his annual "two-week drill" when he would earn approximately $2000.00. That income and employment opportunity is forever lost to the claimant. While concurrent employment is not considered for purposes of calculating average weekly wage under Mississippi law, the loss of such employment opportunities are relevant and probative in assessing this or any other claimant's "capacity" to earn wages following severe injury.

The claimant's testimony was convincing and compelling. This Administrative Judge has rarely, if ever, heard testimony that so clearly articulated the horrendous impact a work injury can have on a promising career and life notwithstanding the claimant's wholly credible and laudable efforts to rehabilitate himself. As noted by Dr. Alexander, the claimant always worked extremely hard to rehabilitate himself to return to full-duty employment. Significantly, the claimant returned to work following each of his surgeries, although he experienced pain. The claimant continues to experience neck pain and headaches which require him to leave work or miss work at least twice a month, even though the claimant is performing sedentary, office duties. These subjective complaints of the continuance of pain are wholly supported by the objective medical evidence.

Dr. Alexander also correctly noted the claimant's career aspirations. The claimant testified that his dream was to enter the federal law enforcement system - either the ATF, DEA or FBI - for the increased salary, benefits and prestige. Those opportunities, and indeed, any other opportunities in the field of law enforcement are forever lost to the claimant as a result of his cervical injuries and physical restrictions.

The claimant's supervisor, Colonel Bill Summers, testified at the hearing and confirmed that the claimant's employment was an accommodation specifically tailored for the claimant. Colonel Summers could not confirm whether the office duties would be available to the claimant in the future. Of note, Colonel Summers testified that the claimant's position remained an inspector job but the claimant can no longer perform vehicle inspections. The claimant is required t~ meet an annual quota of inspections which he cannot meet. Further, the claimant has suffered a documented wage loss with the employer because he is no longer eligible for overtime which is based on the vehicle inspections.

Recognizing the tenuous nature of his employment, the claimant performed a job search. The claimant's employment efforts were offered into evidence and the claimant testified that he had been offered a position with "The Pantry." The employment offered by "The Pantry" consists of internal affairs for a chain of convenience stores. The claimant testified that it is his intention to accept the employment offered by "The Pantry". The claimant's employment opportunity with "The Pantry" would include a projected annual salary of approximately $39,000.00. It is unknown whether the claimant will be able to sustain his employment with the Pantry or any other employer based on the claimant's cervical problems. The physical requirements of the job -- including travel -- are as yet undeveloped, as is the claimant's ability to perform that job. In any event, the claimant's perseverance and efforts to obtain full-time employment are another impressive demonstration of the claimant's character and credibility.

The employment obtained through the claimant's efforts will presumably not result in a wage loss. In fact, the claimant may earn more money with "The Pantry" than he made with the Public Service Commission. However, a simple comparison between pre-injury and post- injury earnings are not conclusive on the issue of entitlement to permanent disability benefits. Admittedly, an arguable presumption arises that the claimant has suffered no loss of wage- earning capacity based on his agreement to accept employment making a higher wage following his injuries. See, Dunn, Mississippi Workmen's Compensation, Section 67 (3d. Ed. 1982 and Supp.1990); Agee v. Bay Springs Forest Products. Inc., 419 So.2d 188 (Miss. 1982). The presumption is rebuttable and is not applicable to the facts and law of this case.

Vardaman Dunn's text, Mississippi Workers' Compensation, supra. contains a useful discussion of the issue:

The determination of this question of wage earning capacity is not necessarily related exclusively to a comparison of actual wages before and after the accident. The actual post-injury earnings will create a presumption of earning capacity commensurate therewith and is strong evidence for consideration against a claim of disability out of proportion thereto, but the presumption may be rebutted by evidence independently showing incapacity or showing post-injury earnings as an unreliable basis for the determination. Factors which may be considered include (1) an increase in general wage levels, (2) increased maturity or training, (3) longer hours worked, (4) sympathy wages and (5) temporary and unpredictable character of post-injury earnings. Thus, the fact that the employee is earning a higher rate of wages after than before the accident does not necessarily rule out the allowance of compensation benefits.

This issue finds no statutory guide or definition and much is, therefore, left to the uncertainty of a factual estimate which is necessarily lacking in mathematical accuracy For lack of a better guide, the matter is left largely, if not entirely, to the estimate of the Commission, subject to its mandatory duty to view such issues with liberality toward the claimant.

In addition to the factors outlined above, Dunn provides a citation to Port Gibson Veneer & Box Company v. Brown 83 So2d. 757 (Miss. 1955), wherein a commission award of permanent disability benefits to a millwright following a back injury was upheld. The millwright suffered a back injury and had post injury earnings of more than double the pre injury wages. Six findings were cited as proper factors for the Commission's use in resolving the issue:

1. Permanent injury resulting in stiff back with limitation of movement,

2. Continued slipping of the vertebrae,

3. Permanent dislocation of one vertebrae,

4. Sympathy wages,

5. Limitations of job opportunities in a type of work requiring a sound body,

6. Shortness of time between attaintment of maximum recovery and the Hearing. Brown 83 So2d. 757 (Miss. 1955).

The factors articulated above are appropriate for application in the instant case. The claimant has permanent injuries to his cervical spine which have limited his range of motion by 50%. Three levels of cervical vertebrae have been fused together and at least two physicians have expressed concern about the viability of the remaining cervical level at CS-6. The claimant's wages with the Public Service Commission are admittedly the result of an accommodation in created employment and may therefore be considered "sympathy wages." The limitation of the claimant's opportunities in any employment requiring a sound body is obvious. The remaining factor concerns the brevity of time between obtainment of maximum medical recovery and the hearing. The claimant reached maximum medical recovery on December 5, 2000. The claimant's sole employment at the time of the hearing was in the position created by the employer. That employment is admittedly of unpredictable duration. The longevity of the claimant's employment opportunity with other employers is wholly unknown due to the claimant's severe injuries and limitations and the brevity of time between the point of maximum medical recovery and the hearing.

Further the undisputed testimony is that the claimant was unable to perform his usual job duties for the employer as an inspector and would be precluded from law enforcement work in the future based on his physical restrictions. The employer's accommodation of providing work "answering the phones" was unpredictable in character and resulted in wage loss to the claimant based on his inability to make inspections and overtime. The claimant's treating physicians confirmed that he will be unable to perform the job duties which he was educated and trained to perform now or in the future. The claimant invested time in his career and worked diligently with his treating physicians and his employer in an attempt to continue his promising career in law enforcement. Those attempts were unsuccessful. Dr. Vohra testified that the claimant will require the use of anti-inflammatory and pain medication "for the foreseeable future." Dr. Vohra also indicated that the claimant has lost 5000 of the range of motion in his neck both rotationally and with lateral flexion. The claimant's testimony of his continued pain and stiffness was convincing and not surprising given the fact that his neck is fused together at every level but CS-6. The apparent concern for the viability of the remaining level expressed by Dr. Alexander and, apparently, Dr. Capel is also noted.

Although the employer argues that the claimant's agreement to accept employment in a different field earning higher wages should preclude an award of permanent benefits, this is not reflected by the proof at the Hearing on the Merits. In the end, any fact-finder must make a decision based on the evidence presented. Opining that a job offer will come to fruition and the claimant will be able to accommodate the unknown physical requirements is to engage in speculation to a dangerous extent. There was no evidence presented by the employer that would weigh against the rather obvious conclusion that he claimant has suffered significant injuries and has been left with a 19% impairment to his body and physical restrictions which remove him from his chosen career. The claimant should not be prejudiced by his continued willingness to rehabilitate himself and adapt to his unfortunate physical limitations in an effort to generate income; indeed, the Act specifically contemplates this very fact of life for injured workers.

Having considered the foregoing, the difficult task of calculating the claimant's permanent benefits now falls to the undersigned. This is not a permanent total disability case and the claimant admits that he is not permanently totally disabled. However, the claimant has obviously suffered permanent injuries and is entitled to permanent partial disability benefits. The issue is ultimately one of wage earning capacity and it is tedious to quantify the capacity for earning wages that is lost by an individual such as the claimant herein. The condition of the claimant's cervical spine coupled with the loss of his ability to perform the only significant employment he has ever performed indicates that he has suffered a significant loss. The employer's willingness to provide attenuated office work for the claimant and the claimant's own efforts to earn wages outside of his chosen field do not ameliorate the obvious disability suffered by the claimant. Again, the claimant's testimony was compelling and the claimant's credible demeanor demonstrated at the hearing was palpably reinforced by the deposition testimony of the treating physicians. Ultimately, it is the conclusion of this Administrative Judge that the claimant has lost the ability to perform law enforcement duties with this or any other employer. It is also clear that the claimant's employment in the future is unpredictable and not a reliable indicator of his residual wage earning capacity. The claimant has certainly lost the ability to earn wages in any employment that requires a sound body; that is, any employment for which the claimant has qualified himself by reason of education and training. The undisputed testimony of the claimant's inability to perform sedentary office duties without missing several days each month due to pain speaks volumes about the long road of future employment stretching out before the claimant.

Upon consideration of the testimony in this matter, along with the documentary evidence, together with the applicable law, the Administrative Judge finds as follows:

1. Claimant sustained a compensable injury and disability which arose out of and in the course and scope of his employment.

2. The employer shall pay for, furnish and provide to the claimant all reasonable and necessary medical services and supplies incurred, both past and future, connection with his injuries and as the nature of his injuries and the process of his recovery may require pursuant to Miss. Code. Ann. Section 71-3-15 (1972).

3. Claimant is entitled to permanent partial disability benefits for a period of 337.5 weeks at the rate of $264.55 per week or the proportional part thereof, based upon the conclusion of the undersigned that the claimant has sustained a 75% permanent loss of wage- earning capacity. The employer is entitled to proper credit for any permanent partial disability benefits previously paid to the claimant. For each untimely permanent partial disability benefits that is not timely paid there shall accrue the proper statutory penalties and interest.

SO ORDERED, this the 13th day of April, 2001.

VIRGINIA WILSON MOUNGER
ADMINISTRATIVE JUDGE
 

1 Dr. Alexander also noted: "He's a very driven young man. As a physically fit officer he was always worried that he would be rendered somehow physically encumbered long-term, so he was driven to do very well, and he did do very well and lent himself to the postoperative care." Deposition of Dr. Alexander; pg. 10.

2 Dr. Winston Capel apparently evaluated the claimant and expressed opinions about the claimant's injury but his records were not offered or received into evidence.