MWCC NO. 97-03991-G-1673

LUTHER WELLIAMS                                                                                                                     CLAIMANT

vs.

CITY OF JACKSON                                                                                                                        EMPLOYER
SELF-INSURED

APPEARING FOR CLAIMANT:
Pro Se

APPEARING FOR DEFENDANT:
Honorable Carrie Johnson-Mosley, Attorney at Law, Jackson, Mississippi
 

The Commission heard the above styled cause on January 8, 2001 in the offices of the Mississippi Workers' Compensation Commission in Jackson, Mississippi on Claimant's "Petition for Review" and "Employer/Carrier's Response to Claimant's Petition for Review"

Having heard the arguments offered on behalf of the parties and having thoroughly studied the record and the applicable law, the Commission affirms the "Order of the Administrative Judge" dated September 6, 2000.

SO ORDERED, this the 9th day of January, 2001.

MISSISSIPPI WORKERS' COMPENSATION COMMISSION
BY: BARRETT SMITH
BARNEY SCHOBY
COMMISSIONERS

ATTEST:
Joann McDonald, Secretary
___________________________
 

MWCC NO. 97 03991-G-1673

LUTHER WILLIAMS                                                                                                                      CLAIMANT

vs.

CITY OF JACKSON                                                                                                                         EMPLOYER

REPRESENTING CLAIMANT:
John T. Wakeland, Esquire 3826 I-55 North, Suite 201, Jackson, MS 39211

REPRESENTING EMPLOYER/CARRIER:
Carrie Johnson Mosley, Esquire P. O. Box 17, Jackson, MS 39205
 

Claimant injured his back in the course of his employment as a laborer for the City of Jackson on February 26, 1997. The employer paid medical benefits and temporary total disability benefits until claimant reached maximum medical improvement on November 11, 1997. The primary issue is the extent of permanent disability attributable to claimant's injury.
 

1. Claimant's average weekly wage on February 26, 1997 was $258.00;

2. Claimant reached maximum medical improvement on November 11, 1997.
 

The only issue in this cause is the existence and extent of permanent disability attributable in the claimant's work-connected injury on February 26, 1997.
 

Claimant is a 46-year-old-resident of Jackson, Mississippi. He has a GED and attended Hinds Junior College where he took courses in real estate. He has vocational training as a truck driver, and he has worked as a truck driver since 1976. Between August and December 1993, he was employed by the City of Jackson as a truck driver and supervisor. He drove employees to different work sites. He has also washed dishes for hospitals and restaurants, and he has worked as a salesman for a security system.

In February 1996, he was again hired by the City of Jackson as a laborer. He worked in the sewer maintenance department repairing sewer lines at the rate of $6.50 an hour. In this capacity he used a shovel and picks to dig up sewer lines, and he used an air hammer weighing 60 pounds to break up asphalt and concrete. He also lifted shovels of dirt weighing 30 pounds, threw pieces of concrete overhead into the back of a truck, and lifted 80-pound bags of concrete. He also lifted 60-pound pieces of PVC pipe and used a heavy gas-powered saw to cut PVC pipe. He testified that he had some physical problems before the date of injury which persisted while he worked for the City, but that he was always able to perform heavy manual labor for the City between February 1996 and February 26, 1997.

Claimant testified that his injury occurred on February 26, 1997 when he was struck from behind by a backhoe. He sought treatment from family practitioner Dr. Wesley Granger who prescribed anti-inflammatory medication, pain killers and physical therapy. Claimant then began to experience anxiety and depression. Dr. Granger referred him to a psychiatrist, but the City declined to pay for this medical treatment. Claimant testified that Dr. Granger continued to treat claimant until 1999 when he could no longer afford to pay for treatment. Between 1997 and 1999, Dr. Granger released him to light duty two or three times. He took the light duty slips provided by Dr. Granger to his employer, but the City would not return him to work as there was no light duty lifting less than 20 pounds. Claimant testified he still owes Dr. Granger $231.00.

Dr. Granger ultimately referred claimant to neurologist Dr. Salil Tiwari who performed a nerve conduction study. Claimant was also treated by orthopedic surgeon Dr. Robert McGuire in 1997 and 1998. Dr. McGuire prescribed exercise and physical therapy. He also restricted claimant from heavy lifting, overhead work, and from any job that would not allow him to change positions periodically. He estimated that claimant would have two or three flare ups every year requiring medical treatment, including physical therapy. He advised claimant that he would require surgery if his pain persisted. Claimant testifled that Dr. McGuire's treatment "helped some."

Claimant also testified that his condition has worsened since he last saw Dr. McGuire, but that the employer has refused to provide medical treatment. He still seeks medical treatment at the University Medical Center Clinic. The UMC doctors give him drug samples or he pays for his own prescriptions. His current, outstanding balance with the UMC Clinic is $700.00 or $800.00.

Regarding his work efforts, claimant testified that he applied with the Post Office as a truck driver in August 1999. He testified that he scored 97 of 100 points on the pre-employment exam, but that the application asked the nature of his disability. In January 2000, he applied for a nurse's assistant job with the VA Medical Center, but he was told that he was not qualified for the position. In August 1999, he applied for work as a truck driver and warehouseman with the State of Mississippi. He testified that he scored 105 of 105 points on both of the exams required for this position. He last applied for work with the State on August 25, 1999 as an equipment operator. He testified that he had submitted a total of three job applications with the State, and that he last checked the board which lists job openings with the State in February 2000. He testified he last applied for work with the City as a maintenance inspector less than 60 days before the evidentiary hearing, and that he has applied for five or six jobs with the City since he was last employed by them, including one in the asphalt department performing heavy manual labor. He testified that he rechecks the City job listings once a month. He testified that he retired from the City in March 1998.

Regarding his efforts to find work in the private sector, claimant testified that he applied for work as a truck driver or warehouseman with Papa John's Pizza in February 2000. They had no openings, but he did not think that he could have performed that job. He also applied for work with Sack-N-Save Warehouse as a truck driver, warehouseman or forklift operator; a Mr. Jones as a dump truck driver; a sewer company; and Auto Zone as a stock person/cashier. Claimant testified that his sister worked for Auto Zone, and that he thought that he could perform that job. He testified that he had not applied for work as a clerk/runner, although he had requested a transfer to the personnel department to perform that job shortly before the injury. His request was denied because he lacked the tenure required for a transfer. He also testified that he had completed a computer training course at the Career Development Center on January 27, 1999, but he had not applied for jobs using his computer skills. He also has work experience as a cashier, but he had not applied as a cashier.

Between September and December 1999, claimant did secure employment and work as a truck driving instructor. However he had a problem climbing into the truck and sitting for prolonged periods of time. He specifically testified that he was required to work 12 hours a day, and that the prolonged sitting caused numbness in his leg.

Claimant testified that he currently "does anything I can." He tries to mow his yard every two weeks, keep house, and "dig in the flower bed," but he has problems performing these chores. He also testified that he currently takes Naprosyn, 500 mg., as prescribed by his family practitioner.

The records of family practitioner Dr. Wesley Granger show he treated claimant for back pain attributable to a work-connected injury which occurred on February 26, 1997 from February 27, 1997 to April 7, 1998. During that time claimant complained of back pain and radicular leg pain. Dr. Granger prescribed medication and ultimately referred claimant to an orthopaedic surgeon. He also treated claimant during this time for anxiety and depression for which he recommended a psychological consult. On August 11, 1997, Dr. Granger released claimant to return to work on August 13, 1997, with restrictions on lifting more than 30 pounds and frequent bending. He noted in a letter to the carrier on September 8, 1997, that claimant had received the benefit of a complete work-up by neurologist, Dr. Tiwari, that the diagnostic studies were unremarkable, and that claimant did not require any further work up at that time. Dr. Granger also noted that although claimant continued to have low back pain, it was somewhat improved. When Dr. Granger last saw claimant on April 7, 1998, he diagnosed hypertension and chronic lumbosacral pain. He also recommended claimant return to the clinic in three to six months.

The records of orthopedic surgeon, Dr. Robert McGuire show he first saw claimant on October 31, 1997, for persistent neck and low back pain. Claimant reported an injury two years before and an inability to work for the past eight months due to spinal problems. Dr. McGuire diagnosed cervical and lumbar spondylosis. He next saw claimant on January 16, 1998. He noted that claimant had undergone conservative treatment over the past three months which had not significantly improved his condition. He diagnosed cervical and lumbar spondylosis with mild instability. He ordered an MRI to evaluate stenosis at L4-5. He noted that, if the test showed evidence of stenosis, he would consider decompressing and fusing that segment.

Dr. McGuire last saw claimant on February 2, 1998. He stated that the. MRI had shown lateral recess stenosis and facet arthropathy at L4-5 and L5-S1. Claimant elected not to undergo surgery but to modify his activities. Dr. McGuire recommended he follow up with his family practitioner. He concluded that if claimant could not tolerate his back and leg symptoms, they could discuss surgery in greater detail. In a letter to claimant on February 13, 1998, Dr. McGuire advised him that his changes were consistent with degenerative arthritis at L4-5 and L5-S1, that claimant's diagnosis was degenerative disk disease or lumbar spondylosis, and that claimant could do quite well with modified activities. Dr. McGuire accessed a 5% permanent medical impairment and stated that claimant's need for surgery was small.

In a letter to claimant's counsel dated May 3, 2000, Dr. McGuire identified claimant's restrictions as (1) the need for frequent ("at least every 45 to 60 minutes") changes of position from sitting to standing to walking, (2) no repetitive lifting over 35 pounds, and (3) no significant work requiring him to balance at heights or work predominantly overhead with his neck hyperextended.

Orthopedic surgeon Dr. Kendall Blake performed an evaluation at the request of the employer and carrier on October 29,1997. He received a history that claimant was injured in a truck wreck in March 1996, after which he experienced neck and low back pain as well as discomfort into his spine. He later secured other employment as a manual laborer for the City. He was still seeing a chiropractor for the 1996 motor vehicle accident when he was re-injured in February 1997. He had undergone an EMG and MRI which Dr. Blake interpreted as normal. Dr. Blake also noted that claimant had been treated with outpatient physical therapy in March and June 1997, all without effect.

Dr. Blake concluded that he could not find any objective evidence of any orthopedic abnormality. He testified that there was no objective evidence to substantiate claimant's complaints. He noted that although claimant stated he was not progressing, neither examination nor x-rays revealed any observable abnormalities. Dr. Blake concluded claimant had reached maximum medical improvement at some unspecified date, that claimant did not need further medical treatment, and that claimant could return to full duty with no permanent medical impairment or permanent work restrictions.
 

1. Claimant has a permanent medical impairment attributable to his work-connected injury on February 26, 1997. On July 10, 1997, Dr. Salil Tiwari, the neurologist who saw claimant at the request of his family practitioner Dr. Wesley Granger, concluded that claimant had low back pain, but that he could return to work without restrictions. On August 13, 1997, Dr. Granger assessed restrictions on claimant's work activities. However when Dr. Granger last saw claimant on April 7, 1998 and diagnosed his impairment as chronic lumbosacral pain, he did not speak to whether claimant has a permanent medical impairment or permanent work restrictions. On October 29, 1997 when orthopedic surgeon Dr. Kendall Blake saw claimant at the employer and carrier's request, he found no evidence of any orthopedic abnormality or permanent medical impairment.

The only physician who saw claimant after the date of maximum medical recovery and who spoke to the existence of a permanent medical impairment and permanent work restrictions is orthopedic surgeon Dr. Robert McGuire. Dr. McGuire treated claimant from October 31, 1997 to February 2, 1998. He concluded that claimant has degenerative disk disease or lumbar spondylosis. He assessed a 5% permanent medical impairment and restrictions on (1) repetitive lifting more than 35 pounds, (2) significant work which would require him to balance at heights or work predominantly overhead with his neck hyperextended, and (3) work which would not allow frequent - "at least every 45 to 60 minutes" - changes of position from sitting to standing to walking. Although Dr. McGuire's initial history states that claimant reported a back and neck injury two years before he first saw Dr. McGuire in October 1997, Dr. McGuire's initial history also states that claimant reported that he had not worked during the past eight months due to his injured spine.

Considering the record as a whole, including (1) medical proof of a permanent medical impairment and permanent work restrictions from a highly qualified orthopedic surgeon who treated claimant after maximum medical improvement, (2) undisputed evidence that claimant performed heavy manual labor and was not occupationally disabled for at least one year before the workconnected injury on February 26,1997, and (3) proof that claimant has been restricted to light duty since November 11, 1997 when he reached maximum medical improvement from his February 26, 1997 injury, this Administrative Judge finds that a preponderance of the evidence indicates that claimant has a permanent medical impairment attributable to his work-connected injury on February 26,1997.

2. Claimant's permanent medical impairment resulted in a loss of wage-eaming capacity. Claimant testified that he reapplied for work with the City of Jackson. He also sought employment from the State of Mississippi on several occasions. He further sought employment with some although not many employers in the private sector. He also secured and maintained employment as a driving instructor from September to December 1999. His undisputed testimony establishes that he could not continue to work as a driving instructor because he could not endure the prolonged sitting required by that position. It is also important to note that claimant's testimony that he could endure the prolonged sitting required of a driving instructor is consistent with Dr. McGuire's permanent work restrictions.

Considering (1) the nature of claimant's medical impairment, (2) the medical evidence as a whole, including the permanent medical impairment and work restrictions assessed by Dr. McGuire, (3) claimant's inability to maintain employment as a driving instructor for more than four months, (4) the employer's inability to re-employ claimant within the restrictions assessed by Dr. McGuire, (5) claimant's unsuccessful efforts to secure other employment, and (6) his work history, among other industrially related factors such as his age, education, and geographic location, this Administrative Judge finds that claimant has a loss of wage-earning capacity which entitles him to permanent partial disability benefits at the rate of $25.00 per week for 450 weeks beginning November 11, 1997.

3. Claimant is entitled to permanent partial disability benefits at the rate of $25.00 per week for 450 weeks beginning November 11, 1997, with proper credit for wages earned by claimant and compensation paid by defendant during this period.

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

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

1. permanent partial disability benefits at the rate of $25.00 per week for 450 weeks beginning November 11, 1997 with proper credit for wages earned by claimant and compensation paid by defendant during this period; and

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

ORDERED AND ADJUDGED, this the 6th day of September, 2000.

DENEISE TURNER LOTT
ADMINISTRATIVE JUDGE

ATTEST:
Joann McDonald, Secretary