99-15633-68648-C. Morgan v. Ham.

• Case Date: April 20, 2005
• Court: Mississippi

Mississippi Worker Compensation 2005. 99-15633-68648-C. Morgan v. Ham LESTER MORGAN CLAIMANT V. KENNETH W. HAM EMPLOYER AND AMERICAN STATES INSURANCE COMPANY CARRIER MISSISSIPPI WORKERS' COMPENSATION COMMISSION MWCC NO. 99 15633-68648-CAPPEARING FOR THE CLAIMANT: David N. Gillis, Esquire, Jackson, Mississippi APPEARING FOR THE EMPLOYER AND CARRIER: Robert J: Arnold, 11I, Esquire, Jackson, Mississippi ORDER OF ADMINISTRATIVE JUDGE On June 9, 2000 (and amended on January 14, 2004), the claimant filed a petition to controvert alleging that on October 11,1999, he received a work-related injury to his head, neck, whole body, and mental state. The employer and carrier initially admitted the compensability of the injury, provided all medical services and supplies until about May 24, 2000, and paid temporary total disability benefts from October 21, 1999, until May 24, 2000. A dispute arose, however, regarding the extent of disability resulting from the work injury and about certain medical treatment, and a hearing was held in the Lincoln County Courthouse in Brookhaven, Mississippi, on August 26, 2004. The matter was held in abeyance after the hearing for the parties to submit memoranda of law. STIPULATIONS The parties stipulated that the claimant's average weekly wage on October 11, 1999, was $540.38. ISSUES The primary issue to be resolved by the Administrative Judge is the extent of permanent disability or loss of wage-earning capacity, if any, resulting from the work injury. REVIEW OF THE EVIDENCE Tracy Morgan is thirty-eight years old and a resident of Smithdale, Mississippi. She and Lester Morgan married in 1988, and they have lived together continuously as husband and wife since that time. They have two children, a boy and a girl, Dustin, aged eleven and Destiny, six. The children go to school and day care while their mother works. Mrs. Morgan graduated from high school and had one year of college. She works as secretary principal for the Department of Human Resources. Before that, she was an insurance clerk. About 6:30 p.m. at home on October 11, 1999, Mrs. Morgan noticed Lester was incoherent and seemed to be in a lot of pain. She encouraged him to go to the emergency room. He said he had pain in his neck and the right side of his head. He claimed he was not even sure how he got home. Mrs. Morgan took him to the hospital in McComb. That night he took some pain medicine and slept well, then returned to work the next day. He worked until October 21, 1999, in other words, about ten more days, but he has not worked since. According to Mrs. Morgan, Lester's pain appeared to get worse. Lester was driving at the time, but he told her he did not know how he got to or from work sometimes. On October 21, 1999, he told his wife that he almost had a wreck because he could not turn his neck. Then he went back to the emergency room. Lester saw Dr. I-Wen Tseng, his family doctor, on October 21, 1999. Mrs. Morgan testified that before the accident, Lester's health was excellent, and he was "always on the go." She said he had no emotional difficulties before the accident. He had no prior physical injuries other than an accident on a cement truck when a chute came down and injured his fingers. Earlier, while he was working at Sanderson Farms, a steel rod came down and hit him in the head. He broke his nose on another job. Before the work incident on October 11, 1999, Lester worked six or seven days a week. Since the accident, however, he is ill tempered all the time and cannot stand noise or children. He does not want to do anything except sit around and listen to the television. He has ringing in his ears so he cannot really hear the television, but he turns it up very loud. If his wife is sitting on the right side of him, he cannot hear her. He can hear if she is sitting on his left side. Since the accident, Mrs. Morgan has observed Lester making facial expressions to indicate pain. He seems always to be in pain -- in his right side, left side, and back. She has noticed that he has blurred vision and cannot read things. When she needs him to sign something, she has to point to where he is to sign. He told her he wears sunglasses because Dr. Abdrabbo said he should. He drags his right leg, and he will not lift his right arm on his own. With the right side numbness it takes him a while to walk. Since the accident, Lester does not have a life, and he thinks he does not have a future. He does not think he will live to see his children get older. At first, his memory was very bad, but he is taking medication which is helping him to remember things. He still cannot concentrate. She can tell him to do something, but within five minutes he has forgotten everything she told him to do. He cannot sit still but fidgets. It takes him a long time to respond to conversation. This was not the case before the accident. He used to play basketball for fun, but he is no longer able to do that. Lester is unable to do anything around the house to help her. He used to do chores like taking out the garbage and mowing the grass. Lester takes medication for memory, pain, diabetes, blood pressure, depression, sleep, nausea, and vomiting. Dr. Jordan is now their family doctor. Lester sees Dr. Jordan and Dr. Fawaz Abdrabbo, a psychiatrist, and Dr. Howard Katz, a physical medicine and rehabilitation specialist, will refill prescriptions. Lester has numerous unpaid medical bills. Her group health insurance company pays for some of the medical bills. They pay out of pocket for Dr. Abdrabbo, who is out of the network for the health insurance company. Mrs. Morgan goes to most of his medical appointments with Lester, and she does exercises with him every night at home. He stands at a wall and crawls his right arm up the wall, and she assists him. Lester Morgan is thirty-eight years old. He came to the hearing wearing dark sunglasses and holding his right arm in an awkward position. He indicated he was unable to raise his right hand even as much as an inch off his thigh while being sworn in. In physical appearance, he was healthy and muscular looking. He physically does not look like a person who is unable to lift his right arm or leg. He wore a short-sleeved shirt, and his arms looked to be the same size, hefty and muscled. At the hearing, Mr. Morgan talked very slowly and apparently with difficulty, and every so often his tongue lolled out in a very odd and unconvincing manner. He fidgeted . in the chair. He did not look at the person questioning him but held his head at an odd angle toward the left -stiffly - and looked down. In 1983, Mr. Morgan completed the twelfth grade at Liberty High School in Liberty, Mississippi. From May 1985 until 1989, he was an assembly line worker for B. C. Rogers Poultry Plant. From 1989 until 1991, he worked as truck driver and salesman, forklift operator, and stocker for Central Beverage, Inc. From 1991 until 1993, he was a cement hauler for McComb Ready-Mix. Then he worked for Sanderson Farms as a supervisor of the marination department. He worked for a construction company from April 1995 until the date of the injury to his fingers. He was a cement finisher, he operated some machines, and he drove a truck. Mr. Morgan remembered the day he had the accident. He was told to move a string line, and then he got hit by an iron trackhoe bucket. He does not know how he got hit. Kenneth Ham was operating the trackhoe at the time. Mr. Morgan testified that he was hit on the right side of the head, neck, and ear, and he was knocked down. He felt weak at first, but he got up and his head hurt badly. He said it was hard for him to hold his eyes open at times. On the day of the accident, Mr. Morgan did not lose consciousness, but he remembered Mr. Ham waking him up and telling him if he would go to bed he would not be sleeping on the job. Mr. Ham asked him if he were all right, and Mr. Morgan told him "I think so." He kept working that day. He does not have a scar from the hit to the head. He was not cut, he did not bleed, and he did not have swelling on the side of his face. Mr. Morgan tried to go back to work after the visit to the emergency room, and he stayed on the job for about ten or eleven days. He drove himself to and from work and worked full days. He had trouble doing the work, but he was able to persevere with the help of some friends, Randy and Mike. He could not turn his body while he was on the tractor. He had pain in his neck, and then it went to his shoulder. His arm hurt if he tried to raise it. He said he had ringing in his ears during the time he was working. According to Mr. Morgan, he hurts all the time every day. He has headaches every day. He has pain in his neck and back when he sits a long time, particularly in his lower back. He also has pain in his head and eyes, his vision is very blurry, and it hurts to hold his eyes open. He said that is why he wears sunglasses. Mr. Morgan is uncomfortable if people look at him. He said he feels worthless when people look at him. He cannot hear well, and he has ringing in his right ear all the time. He puts cotton in his right ear because any air that gets in the ear aggravates him. He cannot understand some things. He said he cannot do anything with his right arm or right leg. He said he cannot hold a glass or cup in his right hand. He exercises as much as he can with his wife. Mr. Morgan said he could not remember Dr. KerryBernardo. He remembered getting his ears and eyes...