Claimant is a 30-year-old resident of Sardis, Mississippi. He has a high school education and one semester of junior college. He has a varied work history performing numerous jobs, nearly all of which required heavy lifting and/or prolonged standing. He has worked, in chronological order beginning with his first job, as a short order cook and car hop for Sonic Drive-In, stock boy and cashier for Piggly Wiggly, knitting machine operator for Panola Mills, machine operator for Crown, Cork and Seal, security officer for Splash Casino, wall paper hanger and interior painter, warehouse mechanic, manager for Sonic Drive-In, set up mechanic for Parker Hannifin, and laborer for Federal Express. He testified he had one prior work-connected injury. He mashed his finger while working at Crown, Cork and Seal, but he did not file a workers' compensation claim for this injury.

On June 23, 1996, the employer hired claimant as a set up man to change out dyes in the presses. After less than three months, claimant was promoted to mill operator. He worked 12 1/2-hour shifts from 5:00 p.m. to 5:30 a.m. with one thirty-minute lunch break and two ten-minute rest breaks. Claimant's job as a mill operator from August 1996 to April 1998 required him to perform heavy manual labor. While reaching over a cart, he repetitively lifted ten to twenty-foot sections of steel called channel from a table. He then placed the steel channel in the cart. The most commonly used channel weighed thirty-seven pounds per piece, but some channel weighed sixty to seventy pounds per piece. After filling the cart with channel, he either maneuvered the cart to a fork lift or pushed the cart himself approximately twenty feet. He also testified that lifting the channel while reaching over a cart was especially difficult for him because he has shorter legs and arms.¹ He therefore had to extend his body farther over the cart to reach the channel, and he could not properly lift the channel with his legs instead of his back. He generally ran from 1600 feet per night if he experienced equipment problems to 43,000 feet per night if he was running ten foot channel with no equipment problems.

Claimant testified that in April 1998 he felt a sharp pain in his low back while reaching over a cart to lift twenty-foot sections of channel weighing thirty-five to thirty-eight pounds per piece. He stretched and the pain "kinda" went away. He continued to work without any problems until the next morning when he experienced pain and limitation of motion while bending over to put on his shoes. He attributed his pain and limitation of motion to the fact that the "overtime work was getting to me." After he stood up, his back pain eased. Claimant testified that although he usually had some back tightness due to the constant lifting required by his job, the tightness generally resolved after a weekend off work. He specifically recalled one day in February 1998 when he was scheduled to work overtime but called in sick because of back stiffness. However he testified that he had never had a problem with back pain or limitation of motion before the morning after his injury like he had on that morning.

Claimant testified that he reported his back pain to his supervisor, Tom Parke, on the date of injury. A forklift driver had been transported to the hospital because of a work-related injury earlier the same day. Parke was anxious about the injury having occurred on his watch, and claimant teased Parke afterward by saying, "You may have to take me down to the hospital [too]; I think I hurt my back." Claimant testified that he was joking about going to the hospital but not about his back pain when he made this statement to Parke. Claimant recalled that Parke replied, "Don't tell me that Sandy." Claimant then reassured Parke that he would be alright.

Claimant continued to perform his usual job without any problems except for back pain when moving from a sifting to a standing position. He still attributed his back pain to overtime and assumed that it would resolve with rest as it had before. On Tuesday, April 21, 1998, he took vacation until the next Tuesday, April 28, 1998. He testified that he had no other conversations with Parke regarding his back before he went on vacation.

While on vacation, claimant went fishing with his family. He also rode a four-wheeler over a flat lake bottom for a total of two or three hours over the course of the week. Claimant testified his back condition did not change while he was on vacation he still had trouble putting on his shoes and going from a sifting to a standing position.

When claimant returned to work from vacation on Tuesday, April 28, 1998, he had trouble straightening up when he got out of his car after driving from Crenshaw where he was living with his grandmother to the employer's plant in Southaven. Tom Parke was walking into the building at the same time as claimant, and claimant asked him if he remembered his prior reference to a back injury. Parke stated that he did recall claimant's complaint. Claimant then told Parke that he thought he really "did do something to my back because it still hurts." Parke asked claimant if he wanted to see a doctor. Claimant said no, as he still thought that the pain would resolve with time. Claimant testified that every day Parke asked him how he was feeling, and that he told Parke that his condition was unchanged but he planned to "work through it."

Claimant testified that the pain did not resolve but progressively worsened over time and began to radiate into his left leg and groin. He also testified that the radiation really scared him because he thought he had a hernia. On May 4, 1998, the Monday after he returned to work on Tuesday, April 28, 1998, he asked Parke's permission to see a doctor because of leg and groin pain. He also asked Parke if he should file a worker's compensation claim for payment of his medical expenses or pay the expenses himself and ask the employer for reimbursement. Parke told him that he had either option. One of claimant's family members then made an appointment for him to see a chiropractor the next Wednesday, May 6, 1998. When claimant saw the chiropractor on Wednesday, he told him that he had injured his back on the job. The chiropractor called Jeff Baggett, the plant manager, for authorization to treat claimant, but Baggett would not authorize treatment. Instead, Baggett asked claimant to come to the plant and discuss the matter with him and Ann Hill, the plant nurse.

At the evidentiary hearing, claimant admitted that he had not reported his pain to any member of management except Parke until May 6, 1998, and that he had performed his job well since the date of injury. Baggett nevertheless referred him to Dr. Richard Kelly whom he saw on May 7, 1998. Claimant told Dr. Kelly that his injury had occurred two or three weeks ago on the same day that a forklift driver was injured. Claimant noted that the intake form completed by Dr. Kelly's office and signed by him lists the employer, not his private health carrier, as the responsible party. He testified that Dr. Kelly did not tell him what was wrong with him, but that he prescribed Naprosyn and light duty. Dr. Kelly also called Ann Hill, the plant nurse. Claimant remained on light duty while he was under Dr. Kelly's treatment, but Dr. Kelly ultimately referred him to an orthopedic surgeon.

Claimant testified that he was scheduled to see an orthopedic surgeon in May 1998, but he missed the appointment because he "[had] his daughter with him." On May 31, 1998, soon after claimant called to reschedule his appointment with the orthopedic surgeon, Jeff Baggett told him that he would be placed on medical leave of absence and denied light duty because the worker's compensation carrier was denying his claim. Baggett also told him that he would need a full medical release before he could return to work.

Claimant next sought medical treatment on his own by selecting Dr. William Barr from the phone book. Dr. Barr ultimately referred him to neurosurgeon Dr. Roy A. Tyrer. Dr. Tyrer saw claimant once and referred him to neurosurgeon Dr. Frank Vriois. Dr. Vriois diagnosed a central disc herniation at L4-5 and recommended either a discectomy or a fusion. Claimant elected the former procedure. After surgery, Dr. Vriois recommended physical therapy, but claimant could not complete a course of physical therapy because his health insurance had expired.

Upon being released by Dr. Vriois, claimant did not return to work immediately because his car had been repossessed and he had no transportation. On April 2, 1999, Jeff Baggett wrote claimant a letter advising him that a position was available for him, that he should contact the employer by April 9, 1999, and that "[i]f I do not here (sic) from you by April 9, 1999, I will have to assume you have decided to quit voluntarily." On April 13, 1999, claimant returned to work for the employer with restrictions assigned by Dr. Vriois. He asked for a helper who could relieve him when he was unable to continue working, but the helper worked with him for only a few days. He then resumed his former duties except for pushing or pulling more than 200-300 pounds. Claimant testified that repetitively reaching over the cart and lifting the channel produced severe back pain.

After working two weeks, he told Jeff Baggett and Tom Parke that he continued to experience disabling pain. On April 23, 1999, he returned to Dr. Vriois who told him that he could not perform that type of work anymore, and that he would ultimately require a fusion if he continued to do so. Dr. Vriois also assigned claimant additional restrictions of no constant reaching and grabbing, no lifting more than 15 or 30 pounds, and no bending. Dr. Vriois' medical excuse form is marked Exhibit 9. On April 24, 1999, claimant gave the medical excuse form to Baggett who told him that the employer would not allow him to return to work with restrictions, and that he would remain on medical leave of absence until his restrictions were lifted.

Claimant then consulted his legal counsel who helped him draft a letter dated April 28, 1999 (see Exhibit 10). The letter states that claimant returned to work on April 13, 1999, and that on April 24, 1999, he was advised by Baggett that he was terminated unless he could return to work without restrictions. Claimant expressed his desire to continue working for the employer, and he asked for written verification of the employer's position if his understanding of his employment status was incorrect.

On May 7, 1999, counsel for the employer wrote claimant's counsel a letter stating that the employer did not agree with the statements in claimant's letter of April 28, 1999, and that there was and would continue to be a position available for him when he was ready to return to work. Claimant therefore reported for duty, but Baggett told him that he could not return to work with restrictions per the company policy. When claimant asked to see the policy, Baggett told him that it was unwritten. On June 29, 1999, Jeff Baggett wrote claimant a letter advising him that he understood that claimant was to return to the doctor in late May or early June, but that he had not received an update, as he had requested, from either claimant or the doctor. Baggett also stated that the employer still had "work available upon your full release from your doctor." He further stated that he had accepted a position with another company, and that claimant should contact one of two other employees to update them on his status. Baggett wrote that if claimant did not report to work or contact the employer by Friday, July 9, 1999, the employer would assume that he had resigned his position.

Per Jeff Baggetts instructions, claimant contacted Susan Day with the employer on July 9, 1999 to advise her that his medical condition remained unchanged, but that he did not want to resign his position with the employer. Day responded that she did not know who was in charge since Jeff Baggett had left the company, but that she would tell whoever was in charge that he had called. On August 11, 1999, claimant wrote the employer a letter concerning the events that had transpired since his previous letter to Baggett of April 28, 19,99. In the letter, claimant also restated his desire to return to work for the employer under the restrictions assessed by Dr. Vriois.

At the evidentiary hearing, claimant testified that he remains willing to return to work for the employer within the restrictions assessed by Dr. Vriois. He also testified that he is physically capable of returning to work as a lead man, as that position is now a supervisory job. However claimant testified that he understands that the employer will not allow him to return to work, that he has never received a letter of termination, but that he finally asked to "cash out" his retirement money because he needed to make a car payment. He has not heard from the employer since he last contacted them on July 9, 1999 and was advised that his request to return to work would be communicated to the new personnel manager. He testified that he had received unemployment benefits on the ground that he had been released to return to work but the employer would not allow him to do so.

Claimant testified that between May 1999 and October 1999 he did not look for work because he did not have transportation. In October 1999, his grandmother helped him buy a used car, and he has actively looked for work since that time. As of the date of the evidentiary hearing, he had submitted written applications or resumes to thirty-three prospective employers. Although he did not think he could perform all the jobs for which he applied, he did so because he was desperate for income. Also, he thought other, less physically demanding positions might be available with the same employers. The journal he kept of these efforts is marked Exhibit 15. Claimant testified that every application asked the reason he left his former employer, that he responded that he had left for medical reasons, and that no one had offered him a job to date. He also testified that although he brought his medical records with him when he applied for work at Spring Industries, he did not advise them of his injury until they specifically asked him that question. He further testified that he had applied for most of the jobs referred by David Stewart, the employer's vocational expert, but many of the employers listed on Stewart's most recent list reported that there were no such contact person and no such job.

Despite claimant's inability to secure regular employment, he testified that he has performed some painting and wall papering for his aunt and grandmother who are interior decorators. He earns fifty to sixty dollars a day for this work. He also sometimes earns $50.00 a day when he relieves his stepmother at his parents' video store in Olive Branch. He testified that his father allows him to sit at will.

Claimant testified that he still has some back pain every day, but it no longer radiates into his lower extremities. Leaning over the sink is painful and he cannot sit without back support, such as on bleachers. He also cannot perform any of his prior jobs within the restrictions assessed by Dr. Vriois. Claimant testified that he last saw Dr. Vriois in May or June 1999 and was advised that his restrictions were still in place. He currently sees a family practitioner for pain medication which he takes on an as needed basis.

Thomas Parke testified he was employed by Thomas & Betts, Inc. from April 1995 to August 1999 when he was laid off. As claimant's supervisor in April 1998, claimant was required to report work-connected injuries to him. Parke recalled that an employee was injured while driving a forklift in April 1998. The employee was taken to the hospital. Approximately two hours after the employee was transported to the hospital, he and claimant were sifting outside on some picnic tables taking a break. Claimant laughingly put his hands on his back and said, "You know, I think you're going to have to take me down (to the hospital]." Claimant did not specifically state that he had hurt his back on the job. Parke testified that although he thought claimant was joking at the time, he later became aware of the fact that claimant had hurt his back.

Parke testified that claimant took vacation seven to ten days after he first told him that he had back pain, and that he could not recall whether claimant complained of back pain during the interim. He also could not recall whether he reported claimant's injury to the company before or after claimant took vacation, but that he knew that he completed a written, in-house accident report to document claimant's injury, Parke specifically testified that claimant was the kind of man who would work through his pain thinking it would get better, and that he and claimant often discussed claimant's attempts to work through his pain. Parke did recall later meeting with claimant and Jeff Baggett when claimant was seeking authorization for chiropractic care. He also recalled that the employer referred claimant to Dr. Kelly.

Joseph Cotton, an employee of Thomas & Betts and claimant's brother-in law, testified that he worked as a mill operator in the channel department in April 1998. He testified that this job required repetitive lifting from awkward positions, that the operators were required to reach over a cart to lift the channel, and that the work "took a lot out of your back." He also testified that the channels were ten to twenty feet long, and that he generally lifted twenty to thirty thousand feet of channel over twelve hours.

Cotton testified that he was not at work on April 10, 1998, but that he worked in the channel department with claimant the week after April 10, 1998. He recalled that the week after April 10, 1998, claimant complained of having hurt his back at work. He also recalled that claimant complained of back problems and sometimes stopped and walked around for a while because of back pain between April 10, 1998 and his vacation approximately two weeks later.

Dotsy Joiner, claimant's grandmother with whom he has lived intermittently, testified that she recalled an occasion in 1998 when claimant could not reach his feet to tie his shoe faces. She asked him if he had injured his back, and he told her that he had hurt his back lifting steel while bending over. She told him to go to the doctor, but he said that it was just a strain and would probably resolve with time. Over the next few days, he also told her that he thought his back condition would improve when he went on vacation, Instead, however, claimant's condition worsened, and one afternoon he complained of groin pain and "this scared him."

Joiner testified that she is a wallpaper hanger, and that claimant sometimes helped her after, his injury although she let him "set the pace and do what he wanted." She recalled that in February 1999, claimant could not help her hang the wallpaper "like he normally does" because he broke out in a sweat. She testified he last worked for her in February 1999.

Jeff Baggett, human resources supervisor for Molex in July 1999, testified that he was previously employed as a human resources supervisor for the employer. He testified that claimant knew the procedure to report a work-connected injury, but that he did not receive a proper report of claimant's injury on April 10, 1998. When he asked claimant why he did not report the occurrence of a work-connected injury on April 10, 1998, claimant said that he would be in the doctor's office all the time if he reported an injury every time he experienced pain.

Baggett also testified that, if claimant had reported a work-connected injury to Parke on April 10, 1998, Parke would have completed an accident report which would have been forwarded to personnel. He further testified that Parke never filed a proper report, and that when he questioned Parke about the absence of an accident report, Parke told him that he did not know that the injury was work-connected.

Baggett testified he first became aware of claimant's injury on May 6, 1998 when a chiropractor called him requesting authorization to treat claimant. Claimant returned to the plant later the same afternoon, and he, claimant and the plant nurse discussed claimant's injury and need for medical treatment. Claimant told Baggett that he injured his back at work before he went on vacation, that he was not sure of the date, but that he knew he felt a sharp pain in his back on the same night that the forklift driver was injured. Baggett testified that the date of the forklift driver's injury was later determined to be April 10, 1998. Claimant also told Baggett that, shortly after the forklift driver's injury, he kidded Parke while they were outside about the fact that he had also injured his back. Claimant admitted that he did not tell Parke that he had hurt his back on the job. Claimant also told Baggett that he could not even bend over to tie his shoes because of back pain, but that he continued to work because he thought his pain would improve with time.

Baggett testified that he referred claimant to the company doctor, a Dr. Kelly, because claimant complained of leg pain. Baggett then conducted an investigation, during which he talked to claimant, Tom Parke, Willie Reed and other operators. Baggett concluded that he could not verify the occurrence of claimant's work-connected injury on April 10, 1998. In support of this conclusion, Baggett noted that claimant had called in sick due to back problems on February 21, 1998, that claimant had worked only six hours on April 10, 1998, and that claimant had worked one hundred hours without making a report of a work-connected injury between April 10, and April 22, 1998. However he admitted that the main reason he denied the claim was the two or three phone calls he received from Nancy Pickcock, claimant's former girlfriend. Pickcock alleged that claimant did not hurt his back at work and she volunteered to give a written statement. However Baggett admitted that she did not mention the deterioration of her relationship with claimant, that she never gave the employer a written statement, that she did not respond to several subpoenas for her deposition, and that she also did not respond to the subpoena for her appearance at the evidentiary hearing.

Baggett testified that claimant returned to work in April 1999 with no restrictions except on the amount that he could push and pull. However claimant did not "perform in a positive manner." He testified that Tom Parke and Willie Reed told him that claimant was on the floor saying that the company had wrongly denied his workers' compensation claim, and that he was going to sue them for millions of dollars. Baggett denied that he ever told claimant that he could not return to work with restrictions, although he admitted that claimant asked him for a copy of the employer's return to work policy. He stated that the employees return to work policy is that no light duty is provided for individuals with temporary restrictions from a non work-related injury. If an individual has permanent restrictions, the ADA applies. He admitted that the claimant had returned to the employer numerous times after the doctor had released him, but he insisted that the employer did not know that claimant's restrictions were permanent. He testified that claimant never advised the employer that he had been finally released and was ready to return to work after April 1999. Baggett testified that he had never seen the medical release form listing claimant's additional restrictions which is marked Exhibit 9.

David Stewart, a vocational rehabilitation expert retained by the employer and carrier, testified that he conducted a labor market survey and located numerous prospective employers within claimant's geographic location. He concluded that claimant is organized and efficient with good verbal skills. Claimant also has marketable skills in the maintenance/mechanic, restaurant and retailing industries. Stewart testified that claimant diminished his prospects for employment by applying for jobs that he was not qualified and competent to perform. Stewart also testified that when he also followed up with the prospective employers with whom claimant had applied for work, he was left with the impression that, for some reason, claimant did not want to work for those employers at that point in time.

On cross-examination, Stewart admitted that although the employer has more than three hundred employees and could have requested that he attempt to return claimant to work for them, the employer did not make this request. Stewart therefore looked only for work outside of Thomas & Betts, Inc. Stewart also admitted that he did not review Dr. Vriois's deposition, and that his evaluation and conclusions were based on one restriction on pushing and pulling, not the other restrictions listed on Exhibit 9 which include no constant reaching and grabbing, no bending, and no lifting over fifteen to thirty pounds. Stewart further admitted that the other restrictions would render claimant ineligible for some of the jobs that he located, but that claimant could still perform the service industry jobs. He also admitted that although claimant should not discuss his medical history initially with an employer or bring his records to an interview, it was improper to withhold a fifteen to thirty pound lifting restriction from a prospective employer. He further admitted that claimant should adhere to the new restrictions if he is otherwise facing the possibility of a fusion. He also admitted that employers may refuse to hire claimant because he has a history of a back injury and because of his diminished capacity to work.

On rebuttal, claimant testified that although Jeff Baggett testified that he talked to Willie Reed and another employee named Weeks during his investigation of claimant's accident, Willie Reed was not at work on the date of injury and Weeks worked on a different shift. He also testified again that he took his restrictions from Dr. Vriois to Baggett, and Baggett told him that he would have to take a medical leave of absence. Claimant further testified that Nancy Pickcock, the person who contacted the employer to allege that claimant had injured his back on a four-wheeler, was a former girlfriend who was angry at him because he had begun dating her girlfriend. He testified that Pickcock had even run him and his new girlfriend off the road. He testified that the incident Pickcock reported to the employer involving a four-wheeler occurred in 1996 and did not result in any injuries.

Bill Egbert, claimant's friend since 1994 and a welder at Northwest Machine, also testified in rebuttal. Egbert testified that he fished with claimant twice during his April 1998 vacation, and that claimant did not have a four-wheeler accident during that time. He also testified that he saw claimant before he went on vacation in April 1998, and that claimant was having problems then both sleeping and putting on his shoes.

Dr. Frank Vriois testified by deposition that he saw claimant on referral from Dr. Robert Tyrer. Dr. Tyrer had performed a myelogram indicating a large disc herniation at L4-5. Dr. Vriois confirmed that claimant had a large central disc at L4-5 with some radicular pain on the left and excruciating low back pain. He noted that Dr. Tyrer's office notes indicated that in April 1998 claimant was working as a mill operator when he experienced severe back pain while lifting something at work. Claimant's pain persisted and extended to his left leg in an intermittent way and he began to seek medical treatment. In October 1998, he performed an L4-5 microdiskectomy. Dr. Vriois testified that the surgical repair of a central disk rupture requires the removal of more bone and more disc in order to assess the compressed nerve. He also testified that "although you decompress all the nerve, still functionally and structurally, it's not as good, of course, as to when he didn't have the injury to begin with." He also stated that patients with central disc ruptures frequently end up with some remaining back pain because of instability: "that segment of the spine is not working the way it is supposed to work." He offered claimant the option of a fusion initially because of the increased risk of instability with a central disc rupture.

Dr. Vriois concluded that claimant reached maximum medical improvement on March 8, 1999 with a 5% permanent medical impairment. Based on an FCE, he assessed restrictions on pushing and pulling more than three hundred and eleven pounds, standing more than three hours continuously, and performing any job that would not allow him to make positional changes and rest for five to ten minutes if necessary. He attributed claimant's permanent impairment rating and permanent work restrictions to the work-connected injury in April 1998.

When Dr. Vriois next saw claimant on April 23, 1999, claimant reported that he had been back to work approximately one week and that he was performing frequent bending and constant reaching and grabbing of heavy pipe. Dr. Vriois suggested claimant "work out" the difficulty that he was having with the repetitive nature of his work with his employer. He opined that the type of work that claimant was doing probably would aggravate his lumbar spine problem.

On June 4, 1999, claimant told Dr. Vriois that he was doing well with minimal pain, and that he wanted to go back to work. Dr. Vriois noted that claimant's neurological examination was normal, and that it was "just a matter of trying to work out something for him that would be appropriate."

When asked if the residual effect of claimant's injury was merely subjective complaints of pain, Dr. Vriois responded as follows:

I would put some money into this type of history. If this man was telling [me that he] would like to have a fusion, I would do that. The history is good, and I do believe he has a problem there. If you start with a bad disk, you still have a bad disk. A diskectomy is not going to take care of that.

... He is not the type of patient, you know, who has pain all of the time, and it's real subjective; and you find a lot of pretension and, you know, psychogenic types of things that you really can't explain. This man had a consistent problem from the beginning.