MWCC NO. 98-12611-G-5599

JAMES MOULDS                                                                                                                             CLAIMANT

vs.

HOLI TEMPORARY SERVICES, INC.                                                                                         EMPLOYER
(UNINSURED)

REPRESENTING CLAIMANT:
A. Scott Cumbest, Esquire, Pascagoula, MS

REPRESENTING EMPLOYER:
Matthew G. Mestayer, Esquire, Biloxi, MS
 

This matter was heard by the Commission on December 11, 2000 pursuant to the Employer's Petition for Review and the Claimant'.s Cross Petition for Review. The issue boils down to whether Mr. Moulds is, because of an admitted injury to his leg, entitled to permanent occupational disability benefits which exceed the functional loss of use of his leg.

The Administrative Judge, in an Order entered September 26, 2000, held that Mr. Moulds was entitled to permanent partial disability benefits for the total loss of use of his leg despite a 10 % functional impairment. The Employer argues this was excessive while Mr. Moulds contends he is permanently and totally disabled and entitled to compensation accordingly pursuant to the rule announced in Smith v. Jackson Const. Co., 607 So.2d 1119 (Miss. 1992).
 

Mr. Moulds is a 37 year old resident of Greene County, Mississippi, right near that County's border with George County. He is hearing impaired, has a noticeable stuttering problem, and only completed the 9th grade in school. He has no vocational or other formal training to his credit. He has performed heavy manual labor in a number of settings from the time he quit school. His work history includes employment at Premwood Treating Plant, a wood treatment facility, Dickerson Sawmill and Hood Industries, lumber manufacturing facilities, American Tank & Vessell Company, where he performed sandblasting and painting, and three years with North American Van Lines, an interstate moving company. Mr. Moulds also performed janitorial work when he was in school, and has worked at Rogers Pallet Mill cutting and stacking boards for wood pallets.

On the occasion of his accident, Mr. Moulds' left leg was pinned between the garbage truck on which he was riding and a tree. This was on May 18, 1995. He was transported to the hospital in George County, Mississippi and subsequently transferred to the University of South Alabama Medical Center in Mobile, Alabama where he underwent surgery to his left leg and foot. Mr. Moulds subsequently came under the care of Dr. Chris Wiggins, an orthopaedic surgeon in Pascagoula, MS.

Dr. Wiggins first saw Mr. Moulds on March 4, 1997. Mr. Moulds had continued to treat at the University of South Alabama up until three months prior, but his treating physician at USA transferred out of the area, thus prompting Mr. Moulds to seek continuing treatment from Dr. Wiggins. At.this time, Dr. Wiggins noted complaints of pain in the left leg and in the toes of the left foot, particularly in the great toe. He observed deformity of multiple toes on this foot.

Physical examination showed that Mr. Moulds was unable to fully straighten his left leg, that his left leg was one-half inch shorter than his right, that his great toe was extremely stiff, and that he had hammertoe deformity involving the second, third and fourth toes of his left foot.¹ X-ray revealed a metal rod in place along the left tibia, and surgical fusion of the left great toe with screw placement.

Dr. Wiggins diagnosed a healed left tibia fracture, a fused interphalangeal joint of the left great toe, hammertoe deformities of the left second, third and fourth toes, and problems with the metal hardware rubbing on the tibia and great toe. He suggested that Mr. Moulds have this metal hardware removed, that he avoid all heavy work, and that he consider further surgery on his toes to try and correct some of the hammertoe deformities.

On May 9, 1997 Dr. Wiggins carried out the surgery as above described. Following surgery Mr. Moulds was seen for a series of routine visits. On October 21, 1997 Dr. Wiggins determined that Mr. Moulds had reached maximum medical improvement. Dr. Wiggins felt that Mr. Moulds had suffered a 10% functional loss of use of his left leg, a 10% loss of use of his great toe, a 50 % loss of use of his left second toe, and a 75 % loss of use of his left third and left fourth toes. He cautioned Mr. Moulds to work only light duty and to avoid standing or walking more than four hours per eight hour work day. He also advised Mr. Moulds to avoid climbing more than four flights of stairs per day and not to climb ladders, squat or kneel.

A functional capacity evaluation performed in June 1996 concluded that Mr. Moulds could return to work in the medium duty category. Dr. Wiggins, who treated Mr. Moulds subsequent to this evaluation, disagreed with this conclusion and noted that his subsequent examination and treatment of Mr. Moulds justified a restriction to light duty work.

Mr. Moulds returned to Dr. Wiggins on June 18, 1999 and was noted to still have foot pain, as well as a lot of stiffness in the toes, none of which was unexpected. Dr. Wiggins prescribed some medication for pain and recommended physical therapy. Dr. Wiggins testified that Mr. Moulds would likely require periodic treatment in the form of therapy and medication. He also felt Mr. Moulds' foot would be a continuing problem and may well require further surgery, particularly since arthritis was already beginning to develop in the joints of his great toe.

On September 1, 1999 Mr. Moulds underwent another functional capacity evaluation. The conclusion of the examiner was that Mr. Moulds provided good effort with most of the tasks, except that he demonstrated inconsistent use of his injured left lower extremity. Because of the inconsistent use of the left leg, the examiner was unable to reach any conclusion regarding Mr. Moulds' current work capacity.

Mr. Moulds testified that he still uses a walking cane almost every day and has periodic episodes of pain in his left leg every day. He says he is unable to stand continuously for more than 10 to 15 minutes, and no longer has any dependable transportation of his own. Mr. Moulds' restrictions notwithstanding, he testified credibly to having sought employment at numerous places in the Greene County/George County area as well as the Harrison/Jackson County areas farther to the south. He inquired or applied at numerous businesses including American Tank & Vessell, Ingalls, Ham Marine, Halter Marine, Delchamps, Sack and Save, Church's Chicken, Peavey Electronics, Domino's, Pizza Hut, Wayne Lee's, Pinkerton Security, George County Schools, Gulf Coast Business Services, Magnolia Security, Wal-Mart, Texaco, and McDonalds, all without success.

Mr. Leon Tingle, a vocational rehabilitation counselor, was hired by the Employer to conduct a vocational evaluation of Mr. Moulds and perform a job search in an effort to find suitable employment for Mr. Moulds. Mr. Tingle identified several jobs in the George-Harrison-Jackson County area which he felt Mr. Moulds was capable of performing, and, according to Mr. Moulds, he inquired or applied at most of these places but was not offered work. Mr. Tingle claims, however, that when he conducted a follow up with these employers there was no record of Mr. Moulds having actually submitted an application for employment at any of the locations. In Mr. Moulds' defense, though, Mr. Tingle acknowledged that employers routinely fail to keep sufficient records concerning such matters.

Mr. Tingle was asked if the efforts related by Mr. Moulds constituted good faith efforts to find work. He pointed out that job hunting is hard work which requires a constant effort. Even though Mr. Tingle did not feel Mr. Moulds had asserted maximum effort because there was not much documentary proof of his efforts, he acknowledged that most people are not educated enough about how and where to look for work. Importantly, he could not dispute Mr. Moulds' testimony regarding the several inquiries he had made. Mr. Tingle admitted that Mr. Moulds is a poor candidate for work when you also consider his hearing and speech impairments, and that potential employers likely would pass him over in favor of other equally qualified candidates who had no apparent impairment or disability.

Regarding the general availability of employment, Mr. Tingle admitted there were no job openings listed in Mr. Moulds' immediate vicinity, George County, at the time he conducted his survey. All of the potential jobs he identified were in the Harrison-Jackson County area and the Mobile, Alabama area, both areas which we consider to be significant commutes for Mr. Moulds, particularly without access to reliable transportation.

Mr. Moulds is, under the Law, entitled to permanent disability benefits measured by the greater of the physical loss of use of his leg or his loss of wage earning capacity; and, if all of the relevant evidence shows to our satisfaction that he has incurred a total loss of wage earning capacity which is likely to be permanent, then Mr. Moulds is entitled to benefits unencumbered by the weekly limit otherwise prescribed by Miss. Code Ann. §71-3-17(c)(2) (Rev. 2000). Smith v. Jackson Const. Co., 607 So. 2d 1119, 1128 (Miss. 1992). In determining whether and to what extent Mr. Moulds suffers from a permanent loss of wage earning capacity, we are obliged to consider his age, education, prior work history and experience, his current injury and restrictions, the continuance of pain, his ability vel non to resume any of his former employments, the efforts he has made to find other suitable work, and any other related factors which bear on his capacity to earn wages. McCarty Farms. Inc. v. Kelly, 2001 WL 19748 (Miss.Ct.App. 2001), slip op. at 3; Meridian Professional Baseball Club v. Jense, 2000 WL 1499455 (Miss. Ct. App. 2000), slip op. at 3-4; Alumax Extrusions v. Wright, 737 So.2d 416, 422 (Miss. Ct App. 1998); Walker Mfe. Co. v. Cantrell, 577 So.2d 1243, 1249 (Miss. 1991).

When we consider all of the relevant evidence in this case, including but not limited to Mr. Moulds' very limited education, his prior experience in heavy labor jobs, his limited intellectual ability and diminished communication skills, his numerous unsuccessful, attempts to find other suitable employment, and his continuing leg pain along with, the significant physical restrictions assigned by Dr. Wiggins, we are rather easily persuaded that Mr. Moulds has, because of his injury, suffered a total loss of wage earning capacity. He is, therefore, entitled to benefits pursuant to Miss. Code Ann. §71-3-17(a) (Rev. 2000).

The Order of Administrative Judge dated September 26, 2000 is, accordingly, reversed insofar as the award of temporary and permanent disability benefits is concerned. The Employer is hereby ordered instead to pay Mr. Moulds permanent total disability benefits in the amount of $200.04 per week for a period of 450 weeks, commencing May 18, 1995. Penalties and interest as provided by Law shall be added to each installment not timely paid, and the Employer may take credit for any such benefits previously paid. In all other respects, the Order of Administrative Judge is affirmed.

SO ORDERED this the 22nd day January, 2001.

MISSISSIPPI WORKERS' COMPENSATION COMMISSION
BARRETT SMITH
BARNEY SCHOBY

ATTEST:
Joann McDonald, Secretary
___________________________

MWCC NO. 98 12611-G-5599

JAMES MOULDS                                                                                                                             CLAIMANT

vs.

HOLI TEMPORARY SERVICES, INC.                                                                                         EMPLOYER
AND
SELF-INSURED

APPEARING FOR CLAIMANT:
Honorable A. Scott Cumbest, Attorney at Law, Pascagoula, Mississippi

APPEARING FOR EMPLOYER/CARRIER:
Honorable Matthew G. Mestayer, Attorney at Law, Biloxi, Mississippi
 

The claimant filed a Petition to Controvert on May 18, 1999, alleging that he suffered a work-related injury on or about May 18, 1995, while in the course and scope of his employment with Holi Temporary Services. The Employer admitted compensability of the injury, paid temporary disability benefits and provided medical treatment. A hearing was held in this matter on July 27, 2000 at the Jackson County Courthouse in Pascagoula, Mississippi.
 

1. The claimant suffered a compensable work-related injury on May 18, 1995.

2. Claimant's average weekly wage at the time of injury was $300.05.

3. An employer-employee relationship existed on or about the date and time of the claimant's accident.

4. The employer was subject to the Mississippi Workers' Compensation Act at the time of the claimant's injury.

5. The claimant's date of maximum medical recovery was October 21, 1997.
 

1. The existence and extent of temporary disability attributable to the injury.

2. The existence and extent of permanent disability attributable to the injury.

3. Whether or not the employer/carrier is due credit for overpayment of disability benefits made to the claimant.

4. Whether penalties are applicable.
 

A hearing was held in this matter on July 27, 2000 at the Jackson County Courthouse in Pascagoula, Mississippi. The claimant testified in his own behalf and called his sister, Samantha Bolton, as a witness. Additionally, claimant offered into evidence his deposition; the deposition of Dr. Wiggins; and a job search list. The employer called Leon Tingle as a witness. Additionally, the employer offered into evidence an itemization of medical bills; an itemization of workers' compensation payments; a wage statement; a functional capacity evaluation from Douglas Roll; a vocational report; and the classified section of the Mobile Newspaper.

The claimant is a 36-year-old resident of Lucedale, Mississippi. He completed the 9th grade and part of the 10th grade at Leakesville High School. He has never received his GED. Claimant said he resides with his mother in the rural part of George County, Mississippi. The closest community is Lucedale, Mississippi, which is approximately 12 miles away.

Claimant testified that he was employed with Holi Temporary Services when he received a work-related injury on May 18, 1995, while working as a garbage collector on a garbage truck. He said the injury occurred when the driver of the garbage truck made a sharp turn and hit a tree. Claimant said his body was pinned between the tree and the truck resulting in immediate injury to his left leg and toes.

Claimant testified that he was transported immediately after the accident to the George County Hospital and was later transferred to the University of South Alabama Medical Center in Mobile, Alabama. His initial treating physician was Dr. Hartsock, an orthopedic surgeon, who performed surgery on the claimant's left leg and toes. Subsequently, Dr. Hartsock left the Mobile area and claimant saw Dr. Chris Wiggins, an orthopedic specialist, in Pascagoula, Mississippi, for all subsequent treatment of his leg and toes.

Claimant testified at the hearing that he had no prior leg, foot or toe injuries. He has asthma problems which originated at birth causing hospitalization on occasion. The claimant also stated that he has hearing loss and can only hear out of one ear. Additionally, the claimant has a very evident stuttering problem and speaks with a very soft voice.

Claimant testified that prior to his work-related injury he never had a sit-down job. He previously worked as a janitor and a laborer at various lumber yards and other employers. The claimant characterized all of his prior work experience as being heavy duty type work.

Claimant testified that he was required to use the aid of crutches after his work-related injury. He no longer uses crutches, but he does use a cane as a brace and support on a daily basis. He testified that he experiences pain on a daily basis and it worsens when he performs physical activities or when the weather changes. Claimant testified that he can do limited activities around the house such as washing dishes and vacuuming, but only for a short period of time. Claimant further testified that he has a drivers license and he owns a 1981 vehicle, however, this vehicle has not been running for quite some time. He relied upon his sister for transportation.

Claimant also testified that he made numerous attempts to find employment within the restrictions and limitations given to him by Dr. Wiggins. Claimant testified that he contacted a minimum of twelve different employers and that he was never contacted for the purpose of being offered a job by these prospective employers.

Claimant testified that he contacted a minimum of nine out of the thirteen employers chosen by the employer's vocational expert, Leon Tingle, but that he was never offered a job. The claimant introduced into evidence job applications and business cards of various employers which he stated were given to him at the time he applied for a job. The claimant also testified that sortie of the employers did not give him job applications or other written documentation. Claimant said he was never offered a job and he has not been employed, since he received his work-related injuries.

Samantha Bolton, claimant's sister, testified on his behalf. Ms. Bolton testified that she sees the claimant practically every day. She has not seen the claimant "running around, jogging, or playing ball" since suffering the work related injury in 1995. Ms. Bolton testified that she and her husband drove the claimant to various employers, so he could make applications for employment.

Leon Tingle, a vocational rehabilitation expert, testified that he saw the claimant for an assessment of his employability regarding his work-related injury. Mr. Tingle said he met with the claimant for an interview and reviewed various documents including the deposition of the claimant, the deposition of Dr. Chris Wiggins, medical records of Dr. Chris Wiggins, and the Functional Capacity Evaluation of Douglas Roll. He said the claimant told him that he was willing to work, if he could find him something within his assigned restrictions.

Mr. Tingle determined that the claimant's work history prior to his injury was mostly unskilled and low level or semi-skilled work in the medium to heavy category in terms of physical exertion, and that he had a below average to average verbal communication ability. He also found the claimant to have a below average to average general educational development in terms of language, math and reasoning. Mr. Tingle further stated that the claimant does not have any pre-accident skills that would transfer to his post-accident job opportunities, thereby limiting him to entry level employment. Basically, Mr. Tingle does not believe the claimant can return to any of his previous job duties because of his restrictions and limitations; however, he believes the claimant is employable in some entry level type work.

Mr. Tingle testified that he conducted a job search on or about December 2, 1999, and listed approximately thirteen potential employment sites for the claimant to seek employment. Mr. Tingle later performed a job search follow-up and stated that at least one of these employers would not apply because the claimant,did not have a GED. Mr. Tingle also believes that the claimant was a candidate for truck driving jobs, but only if the claimant could physically operate the foot controls. It was his belief that the claimant had not given maximum effort in searching for a job. However, Mr. Tingle stated that in all fairness to the claimant he realizes that employers do not always keep accurate records of individuals who have applied for work.

Subsequent to claimant's procedures at the University South Alabama, he was referred to Dr. Hartsock for a functional capacity evaluation and work hardening evaluation, (Exhibit 9). The claimant received a functional capacity evaluation on June 5, 1996 and work hardening began on June 17, 1996. Concerning the functional capacity evaluation the following assessment was given:

The client was very cooperative during testing and appears well motivated. He would like to return to his previous job, but is apprehensive about whether or not he could tolerate it physically. Self assessment of pain is moderately high: "5-6" initially and "7" at completion. Does not appear unrealistic and in light of his performance to date. Consistency tests indicated that a maximum effort was exerted throughout the evaluation. Subjectively, his most difficult tasks were carrying and whole body ROM on the VALPAR (See Fine Motor Tasks): Most of his lifts would place him in the "heavy" category of work (100 + pounds); however, today's lift was a "one-time only" maximal lift, and he was not lifting with good lumbar mechanics. We also cannot categorize his lifting as "heavy" since he cannot lift > 60 lbs. overhead at this time. He fatigued quickly and reported left knee and/or foot pain with most tasks. He appears to be an excellent candidate for work hardening if cumulative loading is tolerated. The client demonstrates the ability to perform in the medium category of work. (Exhibit 9).

From a medical viewpoint, Dr. Wiggins assigned the following impairment rating to the claimant:

1. 10% permanent partial disability to the left leg.

2. 10% permanent partial disability to the fused left great toe.

3. 50% permanent partial disability to the left 2nd toe.

4. 75% permanent partial disability to the left 3rd toe.

5. 75% permanent partial disability to the left 4th toe.

With respect to future medical treatment, Dr. Wiggins testified that the claimant would need about two office visits per year and anti-inflammatory or pain medication prescriptions. Dr. Wiggins determined that arthritis was developing in the joints of the claimant's toes and that it is likely that the claimant will require surgery on each toe. Once this additional surgery is performed, the claimant would require the use of crutches and a post-operative shoe, and he would be required to be off his left foot for approximately six weeks.

Dr. Wiggins also restricted and limited the claimant to light duty work only. He said the claimant should not walk or stand more than four hours in any eight hour work day. Further claimant should not climb any ladders, nor should he squat or kneel. The claimant should not climb no more than four flights of stairs on any day. It was his opinion that the claimant was not "intellectually gifted" so some jobs might be difficult for him to find.

At the employer's request a Functional Capacity Evaluation of the claimant was performed by Douglas Roll in Ocean Springs, Mississippi. His report is dated September 1, 1999. Mr. Roll's report was admitted into evidence but he did not testify live at the hearing. According to Mr. Roll's report, a "garbage collector"' is classified as medium/heavy work. He did not feel that the claimant had put forth maximum effort during the evaluation. The claimant was found to be able to work in the light-medium category carrying/lifting 35 pounds maximum occasionally with frequent lifting and/or carrying of objects weighing up to 15 pounds.
 

Having heard the evidence presented by the parties and having considered same, I base the following findings on a preponderance of the evidence, including medical proof as required by the Act:

1. The claimant suffered an admittedly compensable work-related injury on May 18, 1995, as stipulated by the parties.

2. An employer-employee relationship existed on or about the date and time of the claimant's accident, as stipulated by the parties.

3. Claimant's average weekly wage on the date of injury was $300.05, as stipulated by the parties.

4. The claimant reached maximum medical improvement on October 27, 1997.

5. The claimant was temporarily totally disabled from May 18, 1995 until October 27, 1997.

6. The test for determining the extent of industrial loss of use suffered by the claimant looks to the extent to which the claimant has become unable, because of the injury to his lower extremity, to perform the substantial acts of his usual employment. One who, by reason of an injury to a scheduled member, has become wholly unable to perform the substantial acts of his usual employment has suffered a total and complete industrial loss of use of the injured member. McGowan v. Orleans Furniture, Inc., 586 So.2d 163 (Miss. 1991); Piggly Wiggly v. Houston, 464So. 2d 510 (Miss. 1985); Richey v. City of Tupelo, 361 So. 2d 995 (Miss. 1978).

Dr. Wiggins released the claimant as having reached maximum medical improvement on or about October 21, 1997. He assigned the following permanent partial impairment ratings: 10% to the left leg; 10% to the fused left toe; 50% to the left 2nd toe; 75% to the left 3rd toe; and 75% to the left 4th toe. Additionally, Dr. Wiggins gave the claimant restrictions of no walking or standing for more than four hours in any eight hour work day; no climbing ladders; no squatting; no kneeling; and no climbing more than four flights of stairs on any day. He restricted the claimant to light duty type work, however, it was Dr. Wiggins' impression that some jobs might be difficult for the claimant to find because he is not "intellectually gifted."

The evidence shows that the claimant made numerous unsuccessful attempts to find employment. Claimant testified that he experiences pain on a daily basis and it worsens when he performs physical activities or when the weather changes. He testified that he can do limited activities around the house such as washing dishes and vacuuming, but only for a short period of time.

Considering the evidence as a whole including, but not limited to, the claimant's age, educational level, work history, physical impairments, demonstrated level of diminished intellectual ability and demonstrated lack of effective communication skills, I find that the claimant's partial functional loss transcends to a total loss of the scheduled member.

7. The claimant, having suffered a compensable work-related injury, is entitled to reasonable and necessary medical services and supplies and by law the self-insured employer is obligated to furnish and provide claimant with reasonable and necessary medical services and supplies, such as the nature of his injury and the process of his recovery may require, consistent with Mississippi Code Annotated, § 71-3-15 (1972), as amended, and the -Medical Fee Schedule.

8. Claimant is entitled to penalties on each installment of compensation not timely paid the equivalent of 10% thereof as provided in Mississippi Code Annotated, Section 71-3-37 (5) (1972) together with the interest at the legal rate on all unpaid installments.
 

IT IS, THEREFORE, ORDERED AND ADJUDGED that the Self-Insured Employer shall pay and provide compensation benefits as follows:

1. Temporary total disability benefits in the amount of $200.04 per week from May 18, 1995 through October 27, 1997. 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(5) (1972), together with interest at the legal rate on all unpaid installments. The employer/carrier is entitled to credit for any such payment of compensation heretofore made to the claimant and any wages earned by the claimant during this period of time.

2. Permanent partial disability benefits in the amount of $200.04 beginning October 27, 1997 and continuing for a period of 175 weeks. There shall be added to each installment of compensation not timely paid the equivalent of 10% thereof as provided in Section 71-3-37(5) (1972), together with interest at the legal rate on all unpaid installments. The employer/carrier shall receive credit for any compensation payments heretofore made to the claimant.

3. Furnish and provide the claimant with reasonable and necessary medical services and supplies such as the nature of his injury and the process of his recovery may require, consistent with Miss. Code Ann., 71-3-15 (1972), as amended, and the Medical Fee Schedule.

SO ORDERED this the 26th day of  September, 2000.

MELBA DIXON
ADMINISTRATIVE JUDGE

ATTEST:
Joann McDonald, Secretary___________________________

1. Dr. Wiggins testified to hammertoe deformities involving the second and third toes, and also the third and fourth toes. He later clarified that the second, third and fourth toes were deformed.