LOUIS RUSSELL CLAIMANT
VS
ST. LOUIS BLOW PIPE DIVISION,
YOUNG SALES CORPORATION
EMPLOYER
AND
LEGION INSURANCE COMPANY
CARRIER
APPEARING FOR CLAIMANT:
Honorable Will Parker, Meridian, Mississippi
APPEARING FOR DEFENDANT:
Honorable Donald Burch, Jackson, Mississippi
The Claimant filed a Petition to Controvert on April 21, 2000, alleging that he sustained a work- related injury to his back on or about December 2, 1998. The Employer/Carrier admitted the compensability of Claimant's injury and paid for medical treatment and temporary total disability benefits. A hearing was held on December 14, 2000, at the Lauderdale County Courthouse, in Meridian, Mississippi.
1. Claimant suffered an admittedly compensable injury on or about the date alleged in the Petition to Controvert, as stipulated by the parties;
2. Claimant's date of maximum medical improvement was 12/15/99, as stipulated by the parties; and
3. All temporary total disability benefits have been paid to the Claimant, as stipulated by the
LOUIS RUSSELL CLAIMANT
VS
ST. LOUIS BLOW PIPE DIVISION,
YOUNG SALES CORPORATION
EMPLOYER
AND
LEGION INSURANCE COMPANY
CARRIER
APPEARING FOR CLAIMANT:
Honorable Will Parker, Attorney at Law, Meridian, Mississippi
APPEARING FOR DEFENDANT:
Honorable Donald Burch, Attorney at Law, Jackson, Mississippi
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 April 6, 2001.
SO ORDERED, this the 11th day of September, 2001.
MISSISSIPPI WORKERS' COMPENSATION COMMISSION
BY: BEN BARRETT SMITH
BARNEY SCHOBY
LYDIA QUARLES
COMMISSIONERS
ATTEST:
Jo Ann McDonald, Secretary
The issue to be decided by this Administrative Judge is the existence and extent of permanent disability attributable to the injury.
Claimant testified that he is a 35 year old resident of Chunky, Mississippi, which is approximately 12 miles west of Meridian. Claimant stated that he went to school until the eighth grade, which he repeated two or three times without success. He testified that he has great difficulty spelling and consequently cannot read or write very well. Claimant said he can do addition and subtraction, but not multiplication or division. After he left school, he received no vocational training other than attending Allied Enterprises in Meridian, assembling wood pallets.
Claimant testified that he has been employed in a variety ofjobs consisting of construction or other heavy type labor. In the late 1980's he did work as a painter/carpenter. He was later put on Social Security Disability for drug and alcohol abuse. He went to work for St. Louis Blow Pipe Division/Young Sales Corporation in the mid 1990's as a "Fitter's Helper". The job description, Claimant's Exhibit 7 (Sheet Metal Helper), sets out the duties and requirements of the position.
Claimant testified that he was seen by Dr. David Malloy, a neurosurgeon at Rush Medical Group, Meridian, Mississippi. Dr. Malloy performed a discectomy on his lumbar spine and referred him to Dr. Eric Pearson, a pain specialist at Rush Foundation Hospital in Meridian, for pain management. Dr.Pearson treated the Claimant for an extended amount of time and he gave him several epidural steroid injections.
Claimant testified that after reaching maximum medical improvement in December of 1999, he sought employment with his former employer, Bay. St. Louis Pipe Division/Young Sales Corporation by contacting his former supervisor, Fred 1-lolliday. Claimant said he was informed by Mr. Holliday that the company did not have any light duty work for him. Additionally. Claimant testified that he applied for work with approximately twenty or so other employers without success.
Claimant testified that his back hurts him constantly and that he cannot sit for very long and cannot stand for very long. Claimant further testified that he cannot drive his car because it hurts him after 25 to 30 minutes maximum.
Mr. Pete Mills, a vocational rehabilitation specialist, also testified. Mr. Mills' testified that he interviewed the Claimant and reviewed various medical records in an effort to tailor his labor market survey to the Claimant's needs and abilities. He opined that the Claimant has retained transferrable job skills that make him clearly employable in the labor market at jobs ranging from minimum wage up to $6.00 per hour. Mr. Mills identified a number of positions that he felt were within the Claimant's restrictions and limitations as placed upon him by his medical doctors. These positions were provided to the Claimant, through his attorney, for follow-up.
On cross examination, Mr. Mills testified that based on the information that he obtained from the Claimant during his interview he originally thought the Claimant should be able to perform the job of a cashier. However, after listing to the Claimant's testimony at the hearing he did not feel the Claimant could do cashier type work. He further stated that several other jobs provided to the Claimant could possibly be outside his limitations. It was also his testimony that the Claimant could not do the job outlined in the job description that was offered into evidence as Claimant's Exhibit 7.
Dr. Eric Pearson's medical records and notes show that the Claimant was referred to Dr. Pearson by his original treating doctor, Dr. David S. Malloy. Dr. Pearson's consultation note dated May 14, 1999, indicates Claimant injured his back at a steel mill and that Claimant subsequently underwent surgery. The surgery that the Claimant had consisted of a lumbar discectomy at L5-S 1 level on the left and this was done on January 13, 1999. Dr. Pearson at that time noted and diagnosed the Claimant as having low back pain secondary to post-laminectomy syndrome, but noted that he thought there was a significant element of symptom magnification in addition to the Claimant's very deconditioned state. He stated "the patient had obvious pain behavior throughout the interview and exam and there was symptom magnification occurring." The doctor noted "possible opioid seeking behavior." Dr. Pearson went on to say that the Claimant "has used street drugs in the past and is presently abusing alcohol. Thus, he is not a good candidate for opioid therapy."
Dr. Pearson's recommendations were for the Claimant to have RACZ procedure for lysis of adhesions and to perform this once and possibly repeat it one time, plus physical therapy for reconditioning and if the Claimant failed to respond to the above treatments, then to proceed with the functional capacity evaluation. Psychological evaluation was also recommended.
The psychological evaluation was performed on or about May 21, 1999. by Dr. John S. Hall on referral from Dr. Eric Pearson and the report of this evaluation is contained in the medical records affidavit of Dr. Pearson. This reveals the Claimant had a prior history of multiple hospitalizations for depression as well as suicide attempts with six suicide attempts, with five being overdose attempts and a second where he attempted to shoot himself in the chest, but missed and shot himself in the arm. This report goes on to state that the MPI profile for the Claimant is "dysfunctional" suggesting that Claimant endorsed items of greater than average perceived pain severity.
Dr. Pearson's note of August 16, 1999, indicates that Claimant had received two epidural lysis of adhesions procedures, that his pain now would come and go, and that he rarely had any leg pain. The pain assessment on that date indicated that the Claimant had post-laminectomy syndrome with low back and leg pain and that the Claimant was doing significantly better since his two epidural lysis of adhesion procedures. Claimant described some days as bad days but overall he was markedly better. Dr. Pearson noted that psychological issues had not been fully explored because of lack of approval for testing and that it was not clear what, if any, role his psychological issues and secondary gain play in his continued pain complaints.
Dr. Pearson had a functional capacity evaluation done which indicated that Claimant's abilities did not match the heavy work requirements of his prior employment at Young Sales Corporation/St. Louis Blowpipe. The FCE noted that Claimant had completed a rigorous physical therapy program and did not show tolerance to a challenging program. Additionally, the work conditioning coordinator felt guarded as to whether the work conditioning program would benefit the Claimant for returning to his previous job. even at modified duty and that it may be necessary for the Claimant to consider a job aside from one requiring heavy manual labor.
Dr. Pearson continued to treat the Claimant and in his report of December 15, 1999 it was Dr. Pearson's opinion that at this point, the Claimant had reached maximum medical improvement and was released to a sedentary level of work. He opined that Claimant had a 10% permanent partial impairment to the whole body.
Dr. Robert Smith, neurosurgeon of Jackson, Mississippi, testified by way ofdeposition. Dr. Smith opined that Claimant's history was of a work-related injury occurring in December of 1998 followed by a lumbar disectomy at L5-S I on the left side by Dr. Malloy in January of 1999. Following that, Claimant had a procedure for lysis of adhesions by Dr. Pearson who subsequently released the Claimant with a 10% permanent partial impairment and advised to do sedentary work. Following that, Claimant continued to complain of low back pain radiating down into the left leg to the feet. Most of the pain, according to Dr. Smith, was in the hip and lateral thigh to the knee.
The physical examination performed by Dr. Smith revealed a well-healed small incision over the L5-S I interspace and very superficial tenderness throughout the area. The right leg measured 34 centimeters in circumference and the left leg also measured 34 centimeters in circumference. It was Dr. Smith's opinion that on physical examination, the Claimant had some organic findings but also had some non-organic findings such as very superficial tenderness throughout the entire area. He indicated that most people do not have this type of superficial tenderness, they have deep tenderness if they have any at all. Similarly, the Claimant had give-away weakness of the foot which the doctor said indicated the Claimant was not giving everything that he had. Additionally, Dr.Smith noted the Claimant to have a stocking anesthesia to touch in his left leg. This the doctor described is as non-anatomical pattern.
Dr. Smith ordered a second MRI of the Claimant, after which he saw the Claimant again at which time he advised the Claimant he did not see anything that looked like a recurrent disc. Dr. Smith advised the Claimant that he thought the Claimant would improve on his own and that he did not see any reason the Claimant should not be doing some kind of productive activity because productive activity actually helps the patient's well being, according to Dr. Smith. Activity stretches the nerve root and usually is good on a long term basis, according to Dr. Smith. Dr. Smith advised light duty work to start off with and progressing to a little heavier level, although the doctor expressed some doubt that the Claimant could ever return to heavy steel work. Dr. Smith further opined that he would discourage constant standing since the Claimant indicated that he could relieve his pain by changing positions. Dr. Smith stated this usually means getting up and down, sitting and alternately walking or standing, and jobs like those are the ones that would be preferred. The doctor further opined that the Claimant has no specific restrictions with regard to walking. Dr. Smith's opinion was that the Claimant had approximately 10% permanent partial impairment to the body as a whole.
Dr. Smith further described the problems with use of street drugs and opiates and explained the relationship of persons with those conditions not being candidates for medical treatment with opiates or even alcohol and that persons such as the Claimant needed to stay away from all of them.
Dr. Smith further explained what non-organic findings mean. Basically, he stated this means that the findings and symptoms do not go along with what medical science knows about the disease itself. He gave, for example, the stocking anesthesia. He stated that stocking anesthesia is virtually impossible with a disc. Dr. Smith further opined that the best thing for the Claimant would be to return to work as soon as possible and that Claimant needs to stay away from such things as morphine pumps and spinal cord stimulators.
Dr. Smith further indicated that he is not a vocational specialist, but felt the Claimant could perform security guard work basing that upon his knowledge of security guards that work around lumber yards and security guards that work in and around hospitals, where they walk some, sit some, and punch a clock. It was further Dr. Smith's opinion that Claimant could do pizza delivery work or work as a security guard in a casino monitoring surveillance monitors. Dr. Smith further noted that there was nothing in the Claimant's medical picture or in his findings that would indicate that the Claimant could not physically perform those types ofjobs.
Dr. Malloy's medical records and affidavit were also placed into evidence as were those of Dr. Staggs. These records confirm the Claimant's history with respect to his work-related injury and the surgery that Dr. Malloy performed in removing the Claimant's ruptured disc.
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:
2. The Claimant's date of maximum medical improvement was 12/15/99, as stipulated by the parties.
3. All temporary total disability benefits have been paid to the Claimant, as stipulated by the
4. The Claimant's average weekly wage on the date of injury was $307.46, as reflected by the wage state admitted into evidence as "Employer/Carrier Exhibit II."
5. The overwhelming weight of the medical evidence shows that the Claimant was released at maximum medical improvement on December 15, 1999, with a 10% permanent partial impairment to the body as a whole. Additionally, it was opined that the Claimant could return to a sedentary/light work level of employment.
Considering the evidence as a whole including Claimant's age, education, work history,job search effort, physical restrictions, and testimony of continued pain, I find that the Claimant has sustained a 50% loss of wage earning capacity resulting from his work related injury.
4. The Claimant, suffering a compensable injury, is entitled to reasonable and necessary medical treatment and by law the Employer and Carrier are obligated to furnish and provide the Claimant with reasonable and necessary medical services and supplies as the nature of his injury and the process of his recovery may require, consistent with Mississippi Code Annotated Section 71-3-1 5 (1972) as amended, and the Medical Fee Schedule.
5. The Claimant is entitled to penalties and interest on each installment of compensation not timely paid the equivalent of 10% thereof, as provided in Mississippi Code Annotated, Section 7 1-3- 37(5)(1972), together with interest at the legal rate on all unpaid installments.
1. Permanent partial disability benefits in the amount of$ 102.49 beginning December 16, 1999 and continuing for a period of 450 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)( 1 972), together with interest at the legal rate on all unpaid installments. The Employer and Carrier shall receive credit for any such payments of compensation heretofore made to the Claimant.
2. Pay for, furnish and provide to the Claimant all reasonable and necessary
medical services and supplies as the nature of his injury and the process
of his recovery may require as provided in Mississippi Code Annotated,
Section 71-3-15(1972) as amended, and the Medical Fee Schedule.
SO, ORDERED AND ADJUDGED,this the 6th day of April, 2001.
MELBA DIXON
ADMINISTRATIVE JUDGE
ATTEST:
Jo Ann McDonald, Commission Secretary