REPRESENTING CLAIMANT:
Honorable Keith S. Canton, Attorney at Law, Corinth, Mississippi

REPRESENTING DEFENDANT:
Honorable Joseph T. Wilkins, III Attorney at Law, Jackson, Mississippi
 

The Commission heard the above styled cause on June 4, 2001 in the offices of the Mississippi Workers' Compensation Commission in Jackson, Mississippi on the Employer/Carrier's "Petition of Appeal from the Order of the Administrative Judge

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 October 23, 2000.

SO ORDERED, this the 6th day of June, 2001.

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

ATTEST:
Jo Ann McDonald, Secretary
___________________________
 

APPEARING FOR CLAIMANT:
Honorable Keith S. Carlton, Attorney at Law, Corinth, Mississippi

APPEARING FOR DEFENDANTS:
Honorable Joseph T. Wilkins, III, Attorney at Law, Jackson, Mississippi
 

Claimant Jim Eubanks filed a Petition to Controvert alleging that he sustained work-related injuries to his neck and right arm on January 17, 1997; November 21, 1997; and August 31, 1998, all within the course and scope of his employment with Elite Transportation. Elite Transportation a/k/a Custom Freight, a trucking Company located in Booneville, Mississippi, admitted compensability for the January 17, 1997 injury, but denied the other incidents. A hearing was held in this matter at the Alcorn County Courthouse in Corinth, Mississippi on May 3, 2000. After a period of time mutually agreed upon by the parties for the receipt of additional wage information, this record was finally closed and this opinion rendered.

1. Whether claimant sustained additional work-related injuries on November 21, 1997 and August 31, 1998.

2. The date of maximum medical improvement.

3. The average weekly wage of the claimant.

4. The existence and extent of any permanent disability resulting to the claimant from the alleged injuries.

5. Whether the claimant is entitled to recover penalties and interest on any disability payments not timely made.

Evidence was entered into this cause as follows: Claimant Exhibit 1, Medical Records Affidavit of Dr. Tom Smith; Claimant Exhibit 2, Medical Records Affidavit of Dr. Roland Guest; Claimant Exhibit 3, Deposition of Dr. James C. O'Brien; Employer and Carrier Exhibit 4, Deposition of Dr. Walter W. Eckman; Claimant Exhibit 5, Deposition of Dr. Charles Elliot; Employer and Carrier Exhibit 6, Deposition of Dr. Mark S. Harriman; Claimant Exhibit 7, Newspaper Photo; Claimant Exhibit 8, Note from Ripley Medical Clinic, P.A.; Claimant Exhibit 9, Note from Ripley Medical Clinic, P.A., Claimant Exhibit 10, Note from Cardiology Association; Claimant Exhibit 11, W-2 (1999); Claimant Exhibit 12, Letter; General Exhibit 13, Physical Examination of Drivers; Employer and Carrier Exhibit 14, Letter from Lindsey Morden, Claims Management, Inc.; Employer and Carrier Exhibit 15, Note from Claimant; Claimant Exhibit 16, Florida Traffic Crash Report; Claimant Exhibit 17, Per Diem Travel Reimbursement Voucher; Employer and Carrier Exhibit 18, Vocational Report of David Stewart.
 

Claimant Jim Eubanks is a sixty-nine (69) year old resident of Tippah County, Mississippi. He is married and has five grown children. Claimant quit school at a very young age after completing the third grade. He has a very limited ability to read and write and has no specialized vocational training. Claimant began work at an early age as a general laborer, and later learned to drive a truck and to operate construction equipment.

Claimant worked several years in Arkansas and Florida driving a gravel truck and operating a bulldozer. In approximately 1981 he returned to Mississippi and has worked exclusively as a truck driver since that time.

Claimant began work for Elite Transportation in 1991 as an over-the-road truck driver. This work involved hauling furniture from Mississippi to various stops in Florida and Texas, with claimant often having to unload the furniture at each stop. Claimant testified that he normally made two (2) over the road trips per week, for which he was paid mileage, as well as a per diem for meals and lodging. Claimant asserted that he normally earned between $500.00 and $700.00 per week.

On January 17, 1997 claimant was involved in a tragic vehicular accident in Tampa, Florida, when his tractor-trailer was struck by another truck. The vehicles caught fire as a result of the crash, and although claimant was able to escape, the other driver died in the fire. As a result of the vehicular accident, claimant injured his right shoulder and neck and developed nose bleeds. Initially, claimant's family practitioner, Dr. Charles Elliot, treated the nose bleeds while Dr. Tom Smith, chiropractor, treated his neck and upper extremity pain. Claimant was absent from work for a few weeks while undergoing treatment with Dr. Elliot and Dr. Smith. Claimant ultimately returned to work after treating with Dr. Elliot and Dr. Smith, however, he was only able to continue at a reduced capacity. Claimant explained that he only made one load per week after the accident due to his lingering problems. Even with his workload reduced, claimant continued to have neck and right upper extremity pain. He was later referred to Dr. Walter Eckman, a Neurosurgeon in Tupelo. Dr. Eckman ordered an MRI study of claimant's cervical spine and encouraged participation in an exercise program. Claimant participated in Dr. Eckman's therapy program for a period of two to three weeks but re-injured himself on November 21, 1997, while unloading furniture in Georgia. The second injury occurred when he had to "catch" a couch as it started to fall out of the trailer. Claimant returned to Dr. Elliot for additional treatment in the form of pain medication and an injection. Despite the second injury, claimant continued work, hauling one load per week. However, on August 31, 1998, while attempting to pull a piece of furniture out of the trailer, claimant re-injured his neck and arm a third time.

He returned to Dr. Elliot on September 4, 1998 and at this point Dr. Elliot advised that claimant should no longer do any heavy lifting or straining, due to the continued problems in his neck and right shoulder. Claimant testified that he took a statement from Dr. Elliot to his supervisor, Donnie Lauderdale, and advised him that he could no longer handle the trips which required him to unload the furniture. Claimant testified that Donnie Lauderdale advised him that there were no "no touch loads" available and that if he wanted to work he had to take the regular loads. Despite Dr. Elliot's admonition and his continued symptoms, claimant continued to try to work, believing that if he did not unload the furniture there was no work available. Due to his continued symptoms on November 11, 1998, claimant ultimately advised his employer that he could no longer work if he was not provided "no touch loads". After advising the employer of the situation, claimant testified that he never received a call back to work after November, 1998.

After several months of not working, claimant returned to Dr. Elliot for a physical examination in order to renew his DOT health card which was to expire in February 1999. Dr. Elliot refused to issue claimant a new health card, but instead wrote a letter advising that due to the chronic pain in his neck and right shoulder, in his opinion, claimant was unable to drive a commercial vehicle or perform any heavy lifting. Claimant testified that he continued to have numbness and weakness in his right arm and stated that he did not feel that it was safe for him to drive a tractor trailer.

Nevertheless, due to his financial dilemma, claimant obtained a job in August 1999 for Jerry Turner Trucking. Claimant testified that he advised Jerry Turner that he had valid health card so he could get a job driving a gravel truck. Claimant worked from August until December 1999, a period of about 18 weeks hauling gravel for Turner Trucking despite the fact that his health card had expired. Claimant testified that he managed to handle the gravel truck but was unable to do any other work because of the limitations with his right arm. When the gravel hauling ended in December 1999, Mr. Turner advised claimant that he had no other work for him due to the fact all other work he had would require some unloading and manual labor.

Ken Story and Joe Turner were called by the claimant to verify his testimony regarding his work at Turner Trucking and to verify his statements regarding the "no touch loads" at Elite Transportation. The employer/carrier objected to their testimony since these witnesses were not listed on claimant's Pre-Trial Statement. Kenny Story and Joe Turner's testimonies were taken subject to objection, as an Offer of Proof by the claimant. (In light of the employer/carrier's objection, the testimony of these two witnesses has not been considered by the Administrative Judge).

Donnie Lauderdale testified on behalf of the employer. Lauderdale disputed claimant's allegations as to an average weekly wage of $500.00 to $700.00 per week. However, he testified that his payroll was handled by Logistics Personnel Corporation in Russellville, Alabama and he was unable to explain how this company had calculated claimant's past wages. He admitted that claimant was paid so much a mile and that he would receive meals and lodgings as per diem. The employer/carrier submitted certain payment records both at the hearing and subsequent thereto, however these records do not provide any clear explanation as to claimant's wages.

Donnie Lauderdale also testified that he was aware of claimant's pain complaints after the January 17, 1997 accident. He admitted that claimant reduced his work-load to 1 trip per week after the January 1997 accident and he also acknowledged that he received a note from Dr. Elliot advising claimant to avoid heavy lifting. He denied knowledge of the subsequent incidents in November, 1997 and August, 1998 and explained that he did not have regular "no touch" loads or "light duty". He indicated that he had to cater to all his drivers to keep them happy. Lauderdale's position was that it was not his responsibility to find persons to assist claimant in unloading furniture. He further stated that it was claimant's job to call in to see if work was available. This was his reasoning for not calling claimant back to work.

David Stewart, Vocational Expert, testified on behalf of the employer/carrier and his report was also received into evidence. Stewart explained that he had personally met with the claimant on February 9, 2000 and at that time he took an extensive educational and medical history. In assessing claimant's vocational capacity, Stewart concluded that since claimant had worked for approximately 18 weeks in 1999 for Turner Trucking, he felt that claimant had demonstrated the abilities necessary to be a truck driver. Stewart, however, acknowledged that claimant was not qualified to perform any other type of work due to his advanced age and educational limitations and that if he could not drive a truck he was severely occupationally disabled. Stewart further acknowledged that DOT regulations require truck drivers to have a current and valid health card.

The medical records of Tom Smith, Doctor of Chiropractic, were introduced into evidence. These records demonstrate that Dr. Smith first treated the claimant on January 31, 1997 for shoulder and neck pain which arose from the motor vehicle accident on January 17, 1997. Dr. Smith followed claimant from January, 1997 until September, 1997.

The medical records of Dr. Roland Guest, Cardiologist, were introduced into evidence. These records indicate that claimant had prior treatment for a heart condition but they do not reflect any limitations due to this condition.

Dr. Charles Elliot, a Family Practitioner in Ripley, Mississippi, testified by deposition. Dr. Elliot testified that he had been claimant's family physician for several years and he had treated him for coronary artery disease, hypertension, as well as colds and allergy symptoms. Dr. Elliot explained that his first involvement with the January, 1997 accident was his treatment of claimant's nosebleeds on February 11, 1997. His records indicated that claimant advised him that he had been seeing a chiropractor for neck pain and numbness in his right arm, but later requested that Dr. Elliot intervene. Dr. Elliot initially referred claimant to Dr. Walter Eckman, neurosurgeon. However, due to the fact that Dr. Eckman's treatment had provided no relief, Dr. Elliot attempted to provide claimant with symptomatic treatment for the neck and right arm pain over the next several months in the form of steroid injections, anti-inflammatory and pain medicines. Dr. Elliot confirmed that claimant reported to him that he had re-injured his right arm in November of 1997 and August, 1998 while unloading furniture. After examining claimant on September 4, 1998, Dr. Elliot indicated that claimant should not be doing any heavy lifting or straining due to the chronic neck and right arm pain.

Dr. Elliot continued to follow claimant for his condition and later in February, 1999 wrote another statement indicating that he did not believe claimant was fit to drive a truck because of his chronic pain. Dr. Elliot last saw the claimant in July of 1999.

Dr. Walter Eckman, Neurosurgeon, testified by deposition. Dr. Eckman explained that he had first treated claimant on September 22, 1997 at which time he took a history indicating that claimant had neck and right arm pain ever since the motor vehicle accident in January of 1997. Dr. Eckman ordered x-rays and an MRI and sent him to therapy to exercise his neck. Dr. Eckman saw him three (3) times and suggested he continue with regular work. Dr. Eckman had no other involvement with the claimant until the employer/carrier sent claimant back to see him in May 1999. Due to the claimant's hostility toward him at that point, Dr. Eckman requested that claimant be sent elsewhere.

Dr. Eckman acknowledged that the onset of claimant's symptoms was the motor vehicle accident in January, 1997. He agreed that the nerve root irritation at the C6-7 level could be responsible for the symptoms in claimant's right arm. He also agreed that trauma could cause the degenerative changes in a person's neck to become symptomatic.

Dr. Mark Harriman, Orthopaedic Surgeon, testified by deposition. He indicated that he saw claimant on one occasion on July 1, 1999 at the request of the employer/carrier. Dr. Harriman acknowledged that claimant complained of neck, shoulder and right arm pain. Dr. Harriman noted weakness in all muscle groups in claimant's right arm, but "didn't find anything specifically wrong with him". Dr. Harriman ordered Nerve Conduction Studies and an MRI on claimant's right arm.

Dr. Harriman acknowledged that claimant had weakness in his right arm and that he had decreased range of motion in his neck. Dr. Harriman did not believe that claimant's diagnostic studies revealed any foraminal encroachment, however he did agree with the diagnosis of cervical spondylosis and agreed that trauma to the neck could aggravate the degenerative changes seen in claimant's MRI and x-rays.

Dr. James O'Brien, Orthopaedic Surgeon, also testified by deposition. Dr. O'Brien indicated that he evaluated claimant on May 20, 1999. Dr. O'Brien noted by history that claimant had complained of neck and right upper extremity pain as a result of the motor vehicle accident in January 1997. Dr. O'Brien reviewed claimant's diagnostic studies and performed a physical examination.

Dr. O'Brien explained that claimant's cervical MRI and x-rays revealed considerable neuroforaminal encroachment at C5-6 and C6-7 levels in claimant's neck. Dr. O'Brien explained that the MRI findings would suggest that the person in question should have some degree of neck and arm pain. Dr. O'Brien's evaluation documented reduced range of motion in the cervical spine, diminished reflexes in his right arm, as well as diminished triceps and grip strength and decreased sensation. He stated that these were clear cut objective findings of claimant's condition. Dr. O'Brien diagnosed claimant with cervical spondylosis and nerve root impingement on the right. Dr. O'Brien testified that in his opinion the motor vehicle accident of 1997 had caused either a stretch injury or a pinching of the nerves in claimant's neck. He explained that claimant's symptoms were not compatible with a peripheral neuropathy as suggested by Dr. Harriman.

As a result of his physical findings, Dr. O'Brien opined that claimant had a 10% impairment rating to the whole person and further advised that he did not feel it was safe for claimant to return to work as a truck driver.

After careful consideration of the lay, medical and documentary evidence together with the applicable law, the Administrative Judge finds as follows:

1. Claimant sustained an admittedly compensable injury to his neck and right upper extremity as a result of a motor vehicle accident on January 17, 1997 while in the course and scope of his employment. Although the initial injury appears to be the onset of claimant's symptoms, it is clear from the record that claimant has aggravated or re-injured his neck and right arm in two successive incidents on November 21, 1997 and August 31, 1998. Both these incidents are reflected in Dr. Elliot's records and are entirely consistent with the type of work which claimant had to do. Furthermore, there is no evidence which suggests that the incidents did not occur as alleged by the claimant.

2. The claimant's average weekly wage at the time of his injury was $376.10. Although the claimant has contended that he earned greater wages, neither the claimant's testimony nor the documents submitted by the employer/carrier sheds much light on this issue. The claimant originally alleged an average weekly wage of $376.10 and the employer/carrier have stipulated to such. There is no other clear proof in this record to suggest a wage rate any different than the amount originally set forth by the parties.

3. Due to claimant's attempts at returning to work and the cumulative nature of the injuries sustained by the claimant, it appears that he did not reach maximum medical improvement until February 12, 1999 when Dr. Elliot advised that he could no longer drive a commercial vehicle.

4. Claimant was temporarily totally disabled for a period of weeks after the first injury in January 1997. Claimant later returned to work at a reduced level due to the initial injury and the subsequent re-injuries. Claimant now suffers pain and impairments in his neck and right upper extremity which severely limit his physical abilities. He was advised by his family physician, Dr. Elliot, to avoid heavy lifting or straining. Dr. Elliot, as well as Dr. O'Brien, opined that he should not return to work as a commercial truck driver. Despite his doctors admonition, claimant sought other work in the Fall of 1999 and received wages for approximately 18 weeks for driving a gravel truck. Claimant admitted that he was "capable" of driving a truck, but did not consider himself safe. Although Dr. Mark Harriman, who evaluated the claimant on behalf of the employer/carrier, stated that he did not find any reason to prevent claimant from trying to work as a truck driver, Dr. Harriman's testimony is directly contrary to that of Dr. Elliot, Dr. O'Brien and Dr. Eckman. Both Dr. Eckman, the Neurosurgeon, and Dr. O'Brien, the Orthopaedic surgeon, explain that claimant has cervical spondylosis and degenerative changes in his spine which were aggravated by these incidents. Dr. Elliot and Dr. O'Brien both documented symptoms of weakness, numbness as well as abnormal strength and reflexes in claimant's upper extremity. I find these medical opinions more consistent and compatible with the facts in this case. Specifically, the conclusion that claimant should not be driving a commercial tractor trailer is clearly warranted under the circumstances.

5. Claimant is of advanced age, has merely a 3rd grade education and is functionally illiterate. Based on the medical proof as well as the lay and vocational testimony, there is little, if any, work claimant would be capable of performing. He is unable to return to his former employment due to his pain and impairments and he clearly lacks the skills or education to perform other jobs. Although he sought and obtained other employment subsequent to his departure from Elite Transportation, he can no longer legally or physically perform this work since he lacks a valid DOT health card to allow him to return to driving. For these reasons the Administrative Judge finds that the claimant became permanently totally disabled on August 19, 1998, the date of his last injury.

6. Claimant is entitled to recover penalties and interest as provided by the Act on any installments of disability not timely paid.

IT IS, THEREFORE, ORDERED AND ADJUDGED that the employer/carrier pay and provide compensation benefits to claimant as follows:

1. Permanent total disability benefits of $250.73 per week beginning August 19, 1998 and continuing for a period of 450 weeks for claimant's disability due to the work injuries to his neck and right arm. There shall be added to each installment of compensation not timely paid the equivalent of 10% thereof as provided in Miss. Code Ann., § 71-3-37 (1972) together with interest at the legal rate from and after the date the petition was filed. The employer/carrier is entitled to proper credit for any such payments of compensation heretofore made to claimant.

2. Pay for, furnish and provide to claimant all reasonable and necessary medical services and supplies as the nature of his injury or the process of his recovery may require in accordance with the Act and the Medical Fee Schedule and in accordance with Miss. Code Ann., § 71-3-15 (1972).

SO ORDERED this the 23rd day of October, 2000.

VIRGINIA WILSON MOUNGER
ADMINISTRATIVE JUDGE

ATTEST:
Jo Ann McDonald, Secretary