MWCC NO. 97-09629-G-0547

THOMAS HENRY HODGES                                                                                                          CLAIMANT

J. J. FERGUSON SAND & GRAVEL                                                                                             EMPLOYER
AND
CONTINENTAL CASUALTY COMPANY                                                                                        CARRIER

REPRESENTING CLAIMANT:
Levi Boone, III, Esquire, Cleveland, MS

REPRESENTING EMPLOYER/CARRIER:
Andrew N. Alexander, III, Esquire, Greenville, MS
 

This matter was heard by the Commission on December 18, 2000 pursuant to the Employer and Carrier's Petition for Review. Following a hearing on this disputed claim, the Administrative Judge, in an Order dated May 5, 2000, found that Mr. Hodges sustained a compensable injury to his back on or about March 5, 1997. The Judge ordered the Employer and Carrier to pay for and provide appropriate medical treatment consistent with Miss. Code Ann. §71-3-15 (Rev. 2000), and she also awarded Mr. Hodges compensation benefits for temporary and permanent disability. The Employer and Carrier contend that all of the Judge's findings are unsupported by the evidence.

We have reviewed the record of evidence, and considered the arguments put forth by the parties as well as the applicable law. In the end, we agree with all of the Judge's findings and conclusions except those concerning permanent disability.

Mr. Hodges is a 48-year-old resident of Indianola, MS. He graduated high school and received an associate degree in auto/farm mechanic training from Mississippi Delta Junior College. He has worked as a truck and farm machine mechanic ever since. On or about March 5, 1997 he injured his back when he tried to hold a trailer he was working on that had slipped off the jack. At the time of this injury Mr. Hodges was earning $12.00 per hour, and with overtime, earned an average of $544.30 per week.

Mr. Hodges continued to work at J. J. Ferguson until June 1997, at which time he was laid off. He was called back to work later that year but Mr. Hodges declined because he felt he was physically unable to return to his former line of work. In June 1998 Mr. Hodges went to work at Warner Enterprises in a supervisory capacity earning $11.00 per hour. Mr. Hodges quit this job in October 1998, again because he felt he was unable to physically perform the job.

He returned to work in February 1999 at Mississippi Marina in Greenville. Mr. Hodges continues to work at Mississippi Marina and he is in charge of ordering parts and tools, and having tools repaired. This is primarily a desk job, that does not require any stooping, bending or heavy lifting. Mr. Hodges testified that he currently earns $12.00 per hour at Mississippi Marina, the same pay rate he earned at J. J. Ferguson.

Insofar as his physical condition is concerned, Mr. Hodges was found by Dr. Alexandre Solomon, a board-certified neurosurgeon, to be at maximum medical improvement on July 30, 1999. Dr. Solomon assigned Mr. Hodges a five percent (5 %) medical impairment to the body as a whole and gave him modest restrictions against lifting more than 35 pounds, and against repetitive bending or twisting.

The Law is clear that someone such as Mr. Hodges must prove not only a permanent physical impairment, but also a related loss of wage-earning capacity in order to justify an award, of permanent disability benefits. Miss. Code Ann. §71-3-3(i) (Rev. 2000); Robinson v. Packard Elec., Div. of GMC, 523 So.2d 329, 331 (Miss, 1988). And when, as here, the injured worker returns to comparably gainful employment, a presumption arises that no permanent loss of wage-earning capacity has occurred. This presumption may be rebutted by evidence which shows the post injury wages are the result of a general increase in wage levels, increased maturity and training, longer hours worked, or sympathy, or that the post injury wages are temporary and unpredictable. Dunn, Mississippi Workers' Compensation §67 (3d ed. 1982).

Suffice it to say that no persuasive proof in this regard has been presented by Mr. Hodges. We are in the end satisfied that Mr. Hodges has demonstrated a post injury capacity to earn wages, in suitable and predictable employment, which are comparable to those he earned prior to his injury at J. J. Ferguson. We therefore reverse and set aside the Administrative Judge's award of permanent disability benefits, and deny Mr. Hodges' claim therefor. In all other respects the Order of Administrative Judge is affirmed.

SO ORDERED this the 23rd day of January, 2001.

MISSISSIPPI WORKERS)COMPENSATION COMMISSION
BARRETT SMITH
BARNEY SCHOBY

ATTEST:
Joann McDonald, Secretary
___________________________
 

MWCC NO. 97 09629-G-0547

THOMAS HENRY HODGES                                                                                                           CLAIMANT

vs.

J. J. FERGUSON SAND AND GRAVEL                                                                                       EMPLOYER
AND
CONTINENTAL CASUALTY COMPANY                                                                                        CARRIER

APPEARING FOR CLAIMANT:
Honorable Levi Boone, III, Attorney at Law, Cleveland, Mississippi

APPEARING FOR EMPLOYER/CARRIER:
Honorable Andrew N. Alexander, III, Attorney at Law, Greenville, Mississippi
 

A hearing was held October 21, 1999, at 1:30 p.m. at the Leflore County Courthouse located in Greenwood, Mississippi. After a period of time mutually agreed upon by the parties, this record was finally closed and this Opinion rendered.

The parties entered into a singular stipulation concerning the average weekly wage of the claimant which was determined to be $544.30.

Evidence was entered into this cause as follows: Claimant Exhibit 1, Deposition of the Claimant; Claimant Exhibit 2, Deposition of Willie David Bennett; Claimant Exhibit 3, Deposition of Laverne Nichols; Claimant Exhibit 4, Deposition of Frank Montgomery; Claimant Exhibit 5, Deposition of Thad Spell; Claimant Exhibit 6, Deposition of James Daves; Claimant Exhibit 7, Deposition of William Brown; Claimant Exhibit 8, Deposition of Tonya Guest Blakely; Claimant Exhibit 9, Deposition of Dr. Wade Dowell; Claimant Exhibit 10, Deposition of Dr. W. Lynn Stringer; Claimant Exhibit 11, Subsequent Deposition of Dr. W. Lynn Stringer; Claimant Exhibit 12, Deposition of Dr. Alexandre Solomon; Claimant Exhibit 13, Medical Records Affidavit of Dr. Alexandre Solomon; Claimant Exhibit 14, Medical Records Affidavit of Greenwood Leflore Hospital; Claimant Exhibit 15, Medical Records Affidavit of The Delta Regional Medical Center; Claimant Exhibit 16, Medical Records Affidavit of Dr. Joe M. Travis.
 

Whether or not a work-related injury occurred on or about the date alleged in the Petition to Controvert, and, if so, the existence, nature and extent of disability attributable to the injury.
 

The claimant testified on the occasion of this hearing that he has received no money in the form of temporary total disability benefits or medical expenses from the company. His testimony at this hearing concerned matters not covered by his deposition which was reviewed by the undersigned. Rather, he did indicate that in February of 1999 he started working at Mississippi Marina in Greenville, achieving $12.00 per hour in the parts department. He made it clear for the Commission that this job does not require any heavy lifting or stooping, bending, etc. The claimant also testified he worked intermittently before February of 1999, but did not work from October of 1998 until the job alluded to herein which he secured in February of 1999. The claimant testified that he continued to work for J. J. Ferguson until June 13, 1997 when he was laid off. He received unemployment benefits through the Summer and was called back to work in the Fall. The claimant said he could not do the work and, therefore, declined same. The claimant testified that he initially thought he had just pulled some muscles in his back.
The claimant was 45 years old at the time of the taking of his deposition. He graduated from Indianola High School in 1969 and after graduating received a two-year Associate Degree from Moorhead Delta Junior College. Claimant first worked on farm equipment in Indianola and then on to the Lewis Grocery as a mechanic working on their trucks for approximately five years. He later worked at Tri-State Leasing for seven years and then went to Allis Chalmers working part-time until they closed around 1973. He then went on to work for Delta Pride as a mechanic, working on their freight trucks. He worked there beginning in approximately the Summer of 1983 and worked there until 1990 when he received a better job offer at the John Deere Company in Greenwood. He worked for John Deere until he went to work for J. J. Ferguson in 1995 or 1996 as a truck mechanic. Claimant was generally working on trucks or "whatever needed to be done," mostly repairing engines and transmission rear-ends. In 1997 J. J. Ferguson was moved to a new building, but his job duties did not change or alter in any way. In early March of 1997, namely, Wednesday, March 5, 1997, shortly before his break time the accident occurred. He noted that everybody had something to work on and "'they told him to pull a truck into the back." "It was another one of those old trailers that J. J. Ferguson wanted to get fixed and back on the road." Claimant was working on the trailers, taking the trailers and going completely over them, replacing everything they could see wrong with it and "after they see what was wrong with it they would take it to Frank Montgomery, who was the shop supervisor." He was trying to fix the trailer" and the jack they had was not the best," he said, "OSHA had come in there before and said that several things needed to be replaced, but they were doing the best with what they had to do with." "Wasn't nobody fussing cause everybody had to work there, and I was working on it and I was here at the welding shop, right here, no more than 9 feet from me and they were beating on it. You couldn't hear nobody holler a thing, cause you know it was so loud and the brake, I pulled it off when I had the drum half-way off the jack, gave way. I looked around, I thought somebody, you know, would hear me holler but you couldn't hear nobody holler because of so much noise and I had to hold it or let it fall on me and take a chance of breaking some bones. And after I got hurt, I stood there, I mean I stayed there, and after I got up I thought I had pulled a muscle. I ain't never been hurt before no which way and I went up there and told Frank what happened and he said 'well, you think you can make it the rest of the day,' and I said 'yea, but I ain't going to be able to do too much.' He said 'Well we need you here. We got a bunch of new guys here wanting to be a mechanic and you need to show them how.' So that's what I did, and he came and checked with me a couple of times a day to see how I was doing. I said I believe it's just a muscle." On the same day, however, he noticed his legs had no feeling in them and he felt "maybe that's what a muscle would do to you." He was no doctor and had never been hurt, so he made it through the day, went home and got in a hot tub of water and soaked a little while and his wife brought him a heating pad. He felt a little better the next morning and went back to work. Claimant went to work and continued to work for some period of time but was hurting so badly that his wife made him an appointment with a Dr. Wade Dowell. He went "just to satisfy his wife because he doesn't go to doctors, he had never been to one, he does not particularly care too much about them. Dr. Dowell examined him and told him he wanted him to go to Greenwood and have an MRI. Claimant went to Greenwood as instructed and had the MRI performed. It would appear that he saw Dr. Dowell on March 12th. He had, however, seen Dr. Dowell, as the records reflect, in January of that year for dizzy spells and he thought that he might have high blood pressure, an unrelated condition. Dr. Dowell summarily referred him to Dr. Stringer in Jackson after review of the MRI. His deposition reveals that there were some problems when he went to see Dr. Stringer on the 20th of March and he indicated that he had called Tonya Blakely and told her, as well as others with J. J. Ferguson, about his appointment. He noted that when he got to his appointment in Jackson he expected to see the doctor. They informed him that he would have to have a claim number and asked him if this was a workers' compensation case and he said, "yes". He did not call Tonya at that point, rather he called Wade Vance. "And that was when Mr. Vance told me that he wanted to set me up another appointment." Claimant went back and then called Dr. Dowell and asked if there was someone else he could see that was closer because his old car "wasn't in that great of a shape to be going that far." Dr. Dowell gave him the name of Dr. Frothingharn in Greenville. Claimant never went.back to see Dr. Stringer. He said that "Jessie" Ferguson gave him a back brace, rigid in nature, to wear and he wore it under his shirt. Claimant testified that everybody at the plant was "picking" on him about the way he was walking and acting, but he had to work. "He was in pain but he had to work." Claimant reviewed his medical treatment during the course of his deposition. He also reiterated his problems with "getting anything covered in the way of treatment" such as epidural blocks for the pain he was suffering. Further, during the time that he was being treated by either Drs. Stringer, Frothingham or Dowell for that matter from March, April, May and over into at least the first part of June, he was still employed at J. J. Ferguson, and as alluded to earlier, worked until June 13th of that year. On that morning he went in to Frank Montgomery and told him "I can't work no longer" and he said "Why?" and I said "my legs are giving out on me which I wasn't doing nothing. All I done I came in there for the last three weeks, I was just there and I was just leaning up and watching the other people work, and had another guy working with me and I was teaching him, showing him rather, what to do and the time was getting hard, like it was raining and things were getting slow and "Jessie" came in that one morning, I guess he was mad, I don't know really, but he was upset about something and I done told Frank that was probably my last day. That's when I got my check that day and I went home and then that was a Friday, and Saturday I went to the mailbox and I had a thing that said I was terminated." At that point he filed for unemployment and received benefits up until October of that year. On October 7th or 8th of that year he indicated that he had received a letter from J. J. Ferguson calling him back to work. He wanted to go back, but he could not work on what they wanted him to work on. Claimant advised them that he was not able to come back. "I couldn't work like he wanted me to because "Jessie" believes in you doing a full day's job which I mean I don't blame him. I don't have no hard feelings about that. All I'm saying is got hurt there and I'm entitled to get back like I was. That's all I'm asking for." He testified as well that he had never injured his neck or back before March 5th of 1997, nor has he ever had any treatment for same before the March 5th date. He clarified that even though he wore a back brace prior to March 5th, 1997, there was nothing wrong with his back, but rather they were required to wear the braces and/or have them available for wearing should someone come in who needed to see them in place. He also reiterated that he had told Frank what had happened and that Frank was the shop supervisor and he informed him on the day he got hurt, March 5th, which was a Wednesday, and he told him when everybody was going on their break. , He told him specifically, "I believe I pulled a muscle" and Mr. Montgomery responded "Well, you take it easy the rest of the day."

Willie David Bennett testified by deposition in this cause. He currently works for Anel Engineering in Winona, but previously worked for J. J. Ferguson. He worked with J. J. Ferguson from the fall of 1995 or 1996 until sometime in 1997, and performed welding services for J. J. Ferguson and also worked as a mechanic's helper. One of the welding projects he worked on was trying to rebuild a bunch of "old real ragged trailers." "We would start at the bottom of them and go upwards, new metal and all, just rebuild them." He worked with the claimant at the Eastside Shop and testified that one morning in March, about 7:30 or 8:00 or 8:30 or "something like that," Mr. Hodges had a truck pulled up in the shop longways. He was working on the brakes of it and he was working maybe as far as the plugin on that wall from him, "no more than 10 feet. He was fixing to start welding and was cleaning up at the water brush and the claimant was putting brakes on a trailer truck, and he was fooling around with that old wore out jack over there that cradles the brake drums and the tire rims and all pieced together and he was trying to get it back up under there because I hollered at him and told him, I said "Quit shaking that thing," just joking you know, picking at each other, and that's when that thing gave way. The old jack gave way and the weight came down on him." The claimant tried to hold it up off his feet and "that's when he just kinda went down onto one knee." He turned the jack loose and he was bent over like an old hump back man or something and he just stayed there. He got up and put his hand on the claimant's back and he said "No, no." There was a tear coming out of the corner of his eye and he hollered for Wesley or some of the rest of them to come back there. No one came. Wesley is one of the mechanics, Wesley Rogers." Mr. Bennett said he tried to help the claimant staighten up and he told him not to move him. He was still trying to stand up and trying to shift his weight from one leg to the other and he said he did not have any feeling in his right leg. He noted it was a weekday and early in the morning hours. He did indicate that although the date specific was unknown to him, he felt like it was in the early part of March. Mr. Bennett went back to his welding and about 25 or 30 minutes later he noticed the claimant had been able to get up and was trying to wash his hands, but you could tell he was in a lot of pain. He did not know if he reported it to anyone nor did he know if he had finished out that day. A day or two after that, however, he was teasing him about the way he was walking like an old man and that's when he told him about his back "about to kill him." He would tell Mr. Bennett that his back was giving him "fits" and he could hardly move his legs or "nothing else". He testified that although the claimant was working during this time, a lot of days he "couldn't do much like climbing and he couldn't do much of that kind because of his back or legs, or whatever, giving him trouble", "but he tried to work as much as he could." In conclusion, this witness testified that he observed the claimant wearing a back brace after the injury in March of 1997 when the claimant was injured "dealing with the brake drum."

Laverne Nichols testified by deposition in this cause. She is a secretary for J. J. Ferguson, working in the truck shop which is commonly referred to as the Eastside Shop. She testified that she was familiar with Mr. Bennett, Mr. Hodges, and Mr. Montgomery, the Supervisor and noted if there were any personnel problems like injuries or requests to take off work for the employees that worked there at the Eastside Shop it would be brought to her attention and she would refer all of that to the main office. She testified that about a week after the incident occurred, the claimant came and asked her to call Tonya Blakely and see if she had made him a doctor's appointment and that was the first time she had heard anything about it. He wanted an appointment regarding what occurred at work. I asked him what happened and he said "I hurt my back." She had very limited, if any, dealings with this matter after that point. Ms. Nichols indicated it would be the supervisor's job to fill out any accident reports. She testified that she did, on occasion, observe Mr. Hodges wearing a back brace, but she did not think that he wore it every day and she never had any conversations with him about workers' compensation or "anything like that" nor any conversations about health insurance.

Frank Montgomery testified by deposition in this cause, noting that he is a current resident of Carrolton, Mississippi, and has been employed with J. J. Ferguson since, January 17, 1997, as the shop supervisor over the truck shop, also called the Eastside Shop. He indicated that he knew the claimant and he was the claimant's immediate supervisor in March of 1997. He felt that Thomas was a "pretty good fellow" and he never did have any problems with him. He noted that in March of 1997 work needed to be performed on the brake drum of a truck and Mr. Hodges was assigned to do that. He was asked to recall whether or not in the early part of March, 1997 Mr. Hodges reported to him that while performing that particular job he injured himself and he gave a qualified answer that the claimant "never did just come straight to me and tell me that he had hurt himself working on this particular job." "The day that I guess all of this started he was doing a brake job on a truck and later on that afternoon, this was in the morning that we were doing the break job, he was walking a little stiff-legged going up the steps. I said, "Thomas what's the matter with you," he said, "when I was doing them brakes, this morning I must have picked up the drum the wrong way, I think I pulled a muscle in my back." Nothing else was ever said that day. He came in the next morning wearing one of the, you know, back supports that you put on with the elastic. I asked him "how are you doing?". "Oh, I feel pretty good today, I'm just going to wear this in case we have to do some more brakes." He testified that prior to the incident in question he had never seen him walking "kind of stiff" or seen him wearing his back brace before that time. He testified that the claimant "did a pretty good job and a complete job." He revealed that the brake drums under scrutiny weighed about 85 to 90 pounds. Mr. Montgomery indicated the claimant never discussed with him anything about workers' compensation or insurance, but did discuss that he was going to the doctor. He identified and discussed the supervisor's report of accident which was filled out and signed by him which indicated a date of injury of 3/8/97. This accident form states that the claimant was working as a mechanic when he pulled his back while lifting a brake drum that weighed between 86 to 90 pounds, and at the time of the accident he was not wearing a back brace.

Thad Spell testified by deposition in this cause, noting that he is a current resident of Sidon, Mississippi, and has been employed at J. J. Ferguson for the past 28 years in the role of a mechanic. He testified that he worked in the Eastside Shop and that he knew Thomas Hodges and has known Mr. Hodges for about three or three and one-half years. They worked on trucks together. He was asked if he had any knowledge of Mr. Hodges injuring himself while employed at the shop on Highway 82 at any time in March of 1997, and he said "No, all the claimant told him at one time was that he had hurt his back" and that was all he knew. "He never saw him hurt it or nothing." He indicated that he understood he was working there when he was hurt. He did not "eye witness" Mr. Hodges hurting himself, but he did tell him that he had hurt himself. "He was working on a truck, is all I know, I don't know exactly what he was doing when he hurt himself," and although unsure of the time, he thought it was in March of 1997.

Mr. James Daves testified by deposition in this cause, noting he is a current resident of Holcomb, Mississippi, and has known the claimant for the past 15 or 18 months. He first became employed with J. J. Ferguson on April 1st of 1969 as an engine builder and worked at the new shop located on Highway 82. He began working at that particular J. J. Ferguson concern around the middle of February, 1997. Mr. Daves was asked if he had any information regarding whether or not Thomas Hodges sustained an injury at the shop on Highway 82 in March of 1997 and he indicated that he had witnessed nothing, and he only knew what he had heard. He testified that the claimant told him after he came back from Jackson that he had been to the doctor and he said that he called Frank, the shop foreman, and he told him he would have to turn it over to Tonya. He told this individual that he had hurt his back and went to his doctor and his doctor sent him to Jackson. He did not tell him what he was doing but "did say he was working outside down at the shop when he was hurt." He also told him he was putting brakes on a truck. Mr. Daves said that he saw the claimant on a fairly regular basis, almost every day except on the weekends when he did not work. He was asked about Mr. Hodges' interest in race car driving and he testified that he was aware that he was involved and perhaps even owned a race car but he was not aware of any vehicle accident related to race car driving suffered by the claimant.

William Brown testified by deposition in this cause, noting that he had worked at J. J. Ferguson for "about" 30 years. He indicated that in the past he had been a supervisor, used to drive trucks and worked in the office, but now he was hauling parts for this concern and worked in the Eastside Shop. He testified that he did not know anything about the claimant's injury and "didn't know that he had it until he put the back brace on. I asked him, "What's wrong with your back?" He said, I hurt it, that'a all I knowed." He just said he hurt his back, I never did see him, you know, pick up nothing to hurt his back as long as I was working out there with them." This was the essence of this witness' testimony in regards to this claim.

Tonya Guest Blakely testified by deposition in this cause, noting that she began her employment with J. J. Ferguson on July 6, 1994. She began there as an assistant personnel director and is now the personnel director and oversees the hiring processes, payroll, safety issues, and workers' compensation claims. Ms. Blakely testified that she knew the claimant and that he worked as a mechanic overhauling and repairing 18-wheeler Mack Trucks. The claimant was employed in April of 1996. The claimant told Tonya Blakely that he was injured on the job in March of 1997. Her first knowledge of same was when Laverne Nichols told her about the claimant going to the doctor. Ms. Blakely filled out an MWCC B-3 Form and placed it in her workers' compensation file. She indicated that there were no witnesses listed at that time to the accident or injury. She was supplied information for the form by Frank Montgomery, the claimant's supervisor and later learned that the purported witnesses included William Bennett, Thad Spells, James Daves and Frank Montgomery. She was later contacted by Dr. Lynn Stringer's office on March 15th of that year for verification of workers' compensation coverage, and based on what they gleaned from the other employees, they declined the injury as a work-related one. Further, she testified that after the March 8, 1997 purported work injury and her testimony that that was a Saturday, there was considerable confusion revolving around whether or not the incident occurred on March 5th or March 8th of that year. She noted that in May, 1997 she witnessed the claimant throwing approximately fifteen tires from the back of a truck while she was looking out of a back office window 40 to 50 yards away. She testified no one else saw this activity, however. She confirmed that there was no mention of any disciplinary action against the claimant in his personnel file which she maintains. Ms. Blakely testified that she had penned this statement "On March 8th, claimant told his foreman, Frank Montgomery, that he had hurt his back picking up a brake drum." The claimant was laid off in June with others due to a shop expansion and drew unemployment for'some period of time. When he was called back on October 3rd, 1997 he informed them that he was unable to work. She testified that in October, when he was called back to work it was actually for an oil greaser in the shop, a light duty position and a step down from a mehanic classification. She further stated that the letter was written in part for the purpose of cutting off his unemployment compensation. Attention was had to a supervisor's report of accident handwritten by Frank Montgomery. It listed a date of the accident as 3-8-97 at approximately 10:00 a.m. The description was "pulled back when lifting a brake drum 85 to 90 pounds." He was not wearing a back brace at the time and was admonished to do so in the future. In conclusion, she stated to the best of her knowledge the claimant did work on brake drums associated with trucks during the month of March, 1997, in the Eastside shop for J. J. Ferguson.

Dr. Wade Dowell, a family medical practitioner located in Indianola, Mississippi, testified that he was acquainted with the claimant and his wife. He first saw the claimant on an unrelated matter on January 29, 1997, however, the first presentation relative to the injury occurred on March 12, 1997. He performed a physical exam and plain x-rays were achieved and studied. As a result of the findings on these studies, he set the claimant up for an MRI in Greenwood, Mississippi. On March 15 he studied the MRI results which showed a herniated disc at the C-4-5 level. He made a referral to Dr. W. Lynn Stringer in Jackson. The claimant told Dr. Dowell on this initial visit that he was lifting a brake drum when he had the pain. However, he was not aware this was a workers' compensation injury. There was some confusion as to the history. In hindsight, he should have denoted a more complete narrative, but he remembered specifically there was a lifting injury, "something to do with the brake drum". The MRI was done at the Delta Regional Medical Center and up until May 30, 1997, when he reviewed a letter from Dr. Stringer, he wanted to try conservative options in an effort to avoid invasive back surgery. The claimant had been off work since June 13, 1997, and told Dr. Dowell he had to stop working as his back was hurting so badly. The last time he actually saw the claimant was on May 6, 1997. His opinion to a reasonable degree of medical certainty was that the claimant's condition could be causally related to the lifting of a brake drum and if he was at work when he lifted that drum it certainly could have been an on-the-job injury. He also had an opinion to a reasonable degree of medical certainty that the treatment he rendered related to the claimant's neck was causally related to the on-the-job injury and the mechanism of lifting, his physical finding and the MRI report all fit together and he would defer to Dr. Frothingham as to the back complaints, noting that the leg pain apparently worsened with time, and after he had seen the claimant as well. Dr. Dowell also reflected that a condition can be asymptomatic, but become aggravated as a result of a specific trauma.

Dr. W. Lynn Stringer, a Neurological Surgeon located in Jackson, Mississippi, testified by deposition in this cause with an initial deposition occurring on June 8, 1998, and a subsequent deposition on July 26, 1999. The first presentation was on April 28, 1997. The claimant had his MRI cervical spine report dated March 15, 1997 with him when he came for his appointment. Dr. Stringer took from the claimant a pertinent history of lifting a truck wheel on March 5, 1997. He expressed a great deal of lower back pain and no prior back trouble. He did not complain of neck pain on that date. He did, however, complain of some right hand numbness. Dr. Stringer performed a general examination of the spine and a neurological examination. He felt that the lumbar area was the biggest problem and he needed a lumbar MRI. He received a report of the MRI of the lumbar spine on May 30, 1997, and reported it was of limited quality. It did, however, denote degenerative changes or premature aging changes noted at the L-4,5 level. He also saw degenerative changes at the L-3,4 area and the L-4,5 area with a possible right-sided herniated disc at L-4,5 and some degenerative changes in the stenosis or narrowing of the spinal canal at the L-3,4 area. He had an opinion to a reasonable degree of medical certainty that the degenerative changes which were asymptomatic can become symptomatic if trauma or extreme exertion is present. He further opined to a reasonable degree of medical certainty that he causally linked this to an on-the-job injury. He indicated as well that he arranged for the claimant to come in for a conference to discuss his findings on June 16,1997, but the claimant cancelled. He also testified that as to the neck injury, such an injury can cause arm pain and/or numbness. The second deposition taken dealt primarily with the inconsistencies revealed to him as to how the accident occurred, noting that Dr. Stringer was told something about a tire, Dr. Dowell a brake drum, and a Dr. Rose an incident with a jack. He opined that all physicians have to rely on the history a patient gives him and history-wise, he links this injury to being an aggravation of a degenerative condition and to his job based upon the history he was given. There was apparently no change in his deposition taken one year later.

Dr. Alexandre Solomon, a Board Certified Neurosurgeon located in Jackson, Mississippi, testified as well by dual depositions with the first having commenced on July 12, 1999, and the second having concluded on November 15, 1999. He noted that the claimant had a first presentation of October 27, 1997. He told the doctor that on March 4, 1997, he was taking wheels off a vehicle and lifting them at work. He was distracted, turned, and immediately developed a pop in his back with pain radiating down his legs with the worse on the right than the left. The pain had reportedly worsened in the back and there was pain somewhat in his neck. He reviewed the records of Dr. Rodney Frothingham, at Delta Regional Medical Center. He noted some degenerative changes with some bulging on several levels, but no surgery seemed advisable. He thought a lumbar epidural block would be advisable. "He certainly had the neck pain, but it was my impression that he could tolerate the neck pain, but the back pain, at times, became intolerable." The next visit was a report of worsening pain on March 5, 1998. He recommended a repeat myelograrn of both the low back and the neck. Same was achieved by Dr. Ralph Wells, a neuro-radiologist, on March 12, 1998. He noted that the claimant had not had prior back pain absent this incident and opined to a reasonable degree of medical certainty that the pain in his back was related to the lifting injury and causally connected to his work. He indicated the same opinion to the same applicable standard as to the neck complaints of the claimant. His diagnosis was mechanical low back pain, no evidence of a ruptured disc, and he recommended conservative modalities of treatment be continued. Dr. Solomon also recommended another myelogram in 1998 but this was not achieved as of the first deposition. He gave to the claimant a five percent (5%) permanent partial impairment rating to the body as a whole and opined that to a reasonable degree of medical certainty. He acknowledged that he relied on the patient's history as all physicians do. "I'm an expert in medicine, not an expert in accident investigation." Dr. Solomon had an opinion to a reasonable degree of medical certainty that the accident aggravated the bulging disc seen on the myelograrn and reiterated that no surgical intervention was required. The second deposition was taken after the myelogram and CT scan was achieved on July 30, 1999, subsequent to Mr. Boone's request that he see the claimant on July 30, 1999. Still no surgical intervention was indicated. He did, however, recommend a course of physical treatment that he felt would be beneficial to the claimant. He opined a date of maximum medical improvement of July 30, 1999 as to his low back and gave to him restrictions and limitations of no lifting over 35 pounds, and he should avoid repetitive bending or twisting and no abnormal stress on the back, like getting under a truck on a dolly. He did not, however, link the neck complaints to the work-related injury, although his neck problems would prohibit him from participating in overhead activities. As to further medical care, he would experience occasional flare-ups for which h e would need medication, physical therapy and bracing. In conclusion, he indicated that he did not feel the neck was clearly related to the injury as reported to him, so the overhead restriction was actually directly related to his neck problems and based on his understanding of how the accident or injury did occur, he could not opine with certainty as to the neck.

The Medical Records of the Greenwood-Leflore Hospital were entered by Affidavit in this cause and indicate treatment he received there in the form of an MRI of the cervical spine which was performed at the hospital. The date of this report was March 15, 1997.

The Medical Records Affidavit of the Delta Regional Medical Center were entered into this cause and detail the treatment the claimant received at this facility. It noted that on 6-16-97 he had a myelogram at the hospital. The lumbar and cervical myelograms were achieved as per Dr. Frothingham's instructions.

The Medical Records Affidavit of Dr. Jo M. Travis located in Greenville, Mississippi were entered and indicate the treatment the claimant received on 11-18-97 at the center for a lumbar epidural steroid injection with Dr. Travis as the attending surgeon on that date.
 

Upon evaluation of all testimony, lay and medical, and based upon a preponderance of the evidence supported by applicable law, I hereby render the following findings of fact:

1. Claimant has more than satisfied his burden of proof that a work-related injury occurred on or about the date alleged in the Petiton to Controvert, more specifically described as March 5, 1997. Credible testimony has been forwarded in this regard as well as the medical corroboration needed substantiate that such an injury occurred and that it was the causal connection between the injury and his medical condition at present.

2. It would appear from a perusal of all medical evidence as forwarded that the claimant has suffered from low back or lumbar pain and cervical or neck pain in regards to this injury. The fact that the mechanism of injury may have been construed differently on different occasions is not persuasive as same was consistent in the regard that the claimant was on the job at the time of injury working on an 18-wheeler truck in some capacity and with some involvement with a tire and whether it was absent a brake drum or a brake drum only, did not seem to be of significance. The credibility of all the witnesses was considered carefully and deemed to be appropriate.

3. As a result of this compensable injury, the claimant has suffered a period of temporary total disability and has also been designated to have suffered from some permanent disability. It is imperative that he be compensated in both regards.
 

IT IS, THEREFORE, ORDERED AND ADJUDGED that the employer, J. J. Ferguson, and carrier, Continental Casualty Company, pay workers' compensation benefits to the claimant as follows:

1. Temporary total disability benefits in the amount of $270.67 per week commencing on March 5, 1997 and concluding through July 30, 1999 the date as opined of maximum medical improvement by Dr. Alexandre Solomon, a credible and experienced neurosurgeon.

2. Permanent partial disability benefits in the amount of $72.58 per week commencing on July 31, 1999 and concluding after the statutory maximum of 450 weeks pursuant to Miss. Code Annotated, § 71-3-37(c)(25) (1972).

3. Penalties and interest, if applicable, pursuant to Miss.Code Annotated, 71-3-37(5)(6) (1972).

4. Provide medical services and supplies as required by the nature of the claimant's injury and the process of his recovery therefrom as outlined in Miss. Code Annotated, § 71-3-15 (1972).

ORDERED this the 5th day of May, 2000.

VIRGINIA WILSON MOUNGER
ADMINISTRATIVE JUDGE

ATTEST:
Brenda H. Goolsby, Secretary