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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 96-CC-01307 COA NATHANIEL E. WALKER v. PINES TRAILER LIMITED PARTNERSHIP AND AMERICAN MANUFACTURERS MUTUAL INSURANCE COMPANY APPELLANT APPELLEES

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B DATE OF JUDGMENT: TRIAL JUDGE: COURT FROM WHICH APPEALED: ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEES: NATURE OF THE CASE: TRIAL COURT DISPOSITION: 9/14/96 HON. WARREN ASHLEY HINES WASHINGTON COUNTY CIRCUIT COURT ALBERT B. SMITH III ANDREW N. ALEXANDER CIVIL - WORKERS' COMPENSATION REVERSED ORDER OF THE MISSISSIPPI WORKERS' COMPENSATION FULL COMMISSION. REVERSED AND REMANDED - 2/10/98 2/24/98 4/28/98

DISPOSITION: MOTION FOR REHEARING FILED: CERTIORARI FILED: MANDATE ISSUED:

BEFORE THOMAS, P.J., HERRING, AND HINKEBEIN, JJ. HERRING, J., FOR THE COURT: This case involves an appeal from a decision of the Circuit Court of Washington County, Mississippi, which reversed an order of the Workers' Compensation Commission of the State of Mississippi. The Commission awarded Nathaniel E. Walker, the claimant and appellant herein, temporary total disability benefits and permanent partial disability benefits as a result of an injury which he sustained during the course of his employment. The circuit court reversed the decision of the Commission and Walker now appeals to this Court.

After reviewing the record and applicable law, we find that the circuit court committed reversible error. Thus, we reverse and remand this action to the Commission for further findings. A. THE FACTS Nathaniel Walker was injured on April 28, 1992, during the course and within the scope of his employment with Pines Trailer Limited Partnership. The injury occurred when Walker bumped his knee on a metal rail while he was inspecting trailers during the course of his duties. The record discloses that Walker reported the accident immediately to his supervisor. As a result of the accident, Walker suffered a dislocated kneecap. According to the deposition of Dr. Richard A. Knutson, an orthopedic surgeon, Walker continued to work full-time after the accident and participated in a regimen of conservative treatment and physical therapy for his injury. However, he was taken off work on August 25, 1992, by Dr. Walter A. Shelton and was first seen by Dr. Knutson on September 11, 1992. Dr. Knutson later performed knee surgery on September 29, 1992, to correct the recurrent dislocation of Walker's left patella, or kneecap, which had been unresponsive to conservative therapy. All parties have stipulated that Walker's knee injury was work related and compensable. Following his surgery, Walker had a continued collection of fluid in his knee that was very persistent, and he was ordered to perform knee exercises under the supervision of Gene Snipes, a physical therapist. At some point during the course of his physical therapy exercises, Walker developed significant back pain. As a result, his physical therapy schedule was modified. The Appellant was later examined by a neurological surgeon, Dr. Earnest Cashion. Both physicians, Drs. Knutson and Cashion, were of the opinion that the back pain experienced by Walker resulted from degenerative bulging in the lumbar area and was caused by the physical therapy exercises engaged in by Walker as a result of his knee injury. A myelogram was performed on December 10, 1993, by Dr. Robert Oliver, and the result of that test indicated that Walker had a mild central bulging disc at L5-S1. On October 14, 1994, Dr. Knutson assigned Walker a permanent eighteen percent (18%) impairment to his body as a whole as a result of the back injury, and a four percent (4%) permanent disability to the body as a whole in regard to his knee injury. The record indicates that Walker had no previous history of knee or back problems EMPLOYMENT SUBSEQUENT TO INJURY As stated, Walker's injury occurred on April 28, 1992, but he continued to work with a leg brace while undergoing outpatient treatment for his knee problem. Thereafter, he was taken off work by his physician on August 25, 1992, when his kneecap would not stabilize in its normal position. Knee surgery was performed on September 29, 1992, to correct the chronic dislocation of the kneecap. Dr. Knutson released Walker for work with no restrictions on March 25, 1993. Walker testified that prior to that time he attempted to return to light duty at Pines Trailer on several occasions but was unable to do the work assigned to him. Ultimately, he voluntarily discontinued his employment with Pines Trailer, without notice, because there were no light duties for him to perform there. He was terminated by Pines Trailer some time around April 1, 1993. Thereafter, he worked at a series of jobs, most of which he voluntarily quit, as follows: (1) He worked for Baxter's Cleaning Service for approximately two weeks for $4.25 per hour during March, 1993, while he was still on the employment rolls of Pines Trailer. Walker considered the work at Baxter's Cleaning Service to be light duty compared to his work at Pines

Trailer, although it involved frequent stooping, reaching, and bending. He stated that reoccurring physical problems caused him to leave Baxter's and seek other employment. (2) The Appellant left Baxter's and went to work for McDonald's Restaurant in March, 1993, earning $5.50 per hour. He was eventually promoted to shift manager. This work included cooking, sweeping, cleaning, and some lifting, as well as meeting the public. Walker testified that he had great difficulty performing this job because of his physical problems, but he performed his duties because he needed to work. He also encountered harassment from jealous co-workers who took offense to the fact that he was promoted to shift manager, even though he did not and could not perform many of the jobs performed by other employees. As a result of the stressful environment and reoccurring problems with his knee and back, Walker voluntarily terminated his employment with McDonald's in August, 1993. He remained unemployed from August to December, 1993. (3) Walker was employed by the Cotton Club Casino from December, 1993, until February 28, 1994, with an hourly pay of $6.00.(1) (4) From the Cotton Club, he went on to work as a floor attendant for the Las Vegas Casino, where he worked for the sum of $8.50 per hour. It is noteworthy that prior to his injury, Walker's salary at Pines Trailer was $7.50 per hour. His duties at Las Vegas casino included filling slot machines with coins, monitoring "change persons" in the slot machine area, and paying off jackpots. Walker was terminated by Las Vegas Casino on August 21, 1994, because he failed to show up for work without advising his employer. However, Walker stated that he left voluntarily, due to increased back pain, to return to the Cotton Club Casino, for a salary of $5.50 per hour. (5) Two weeks following his return to the Cotton Club Casino, Walker, along with a huge number of other employees, was laid off. It is noteworthy that Monica Williams, a shift supervisor at the Cotton Club, testified that Walker was laid off because of his inability to do the required work due to his back pain. After a brief period, Walker was asked to return to the Cotton Club, but declined to do so, stating that he had no transportation to or from work and that he was unwilling to pay cab fare. JOB PROSPECTS IN THE FUTURE Several witnesses presented cumulative testimony that Walker was unable to lift objects or to perform other types of manual labor. According to the vocational assessment report of Latrice J. Graves, a rehabilitation consultant of Southern Rehab Resources, Inc., Walker was thirty-two years old when he injured his knee, was 5'9'' in height, and weighed 125 pounds. He received his GED at age twenty-four, held a certificate as a nursing assistant, and served on active duty in the U.S. Army from 1980-83, when he received an honorable discharge. She stated that based upon Walker's education, previous work skills, and also because of his restriction to sedentary work (according to the opinion of Dr. Cashion), he should be referred to the Department of Rehabilitation Services for vocational testing and evaluation for on-the-job training for some sort of clerical work. She estimated that Walker might be able to perform clerical duties at an entry level rate of pay of $5 per hour, but such jobs would not readily be available to Walker without further training.

DECISION OF THE ADMINISTRATIVE JUDGE AND THE WORKERS' COMPENSATION COMMISSION The administrative judge made the following findings of fact on August 15, 1995: 1. Claimant was temporarily totally disabled as a result of his knee injury from April 28, 1992 through March 25, 1993, the date of his release by Dr. Knutson, the claimant's primary treating physician, and the date herein relied upon as the date of maximum medical improvement of the claimant as it relates to his knee. 2. Claimant suffered a further injury to his back after participating in a medically directed course of physical therapy for his knee injury which created a subsequent period of temporary total disability to the claimant commencing on March 26, 1993 and concluding on October 14, 1994, the date herein relied upon as the date of maximum medical improvement related to the claimant's compensable back injury. 3. It is determined herein that the resultant back injury suffered by the claimant was a natural consequence flowing from the initial admitted work related injury. This conclusion is based on the medical testimony of Drs. Knutson and Cashion which supports this claim as well as the absence of any independent intervening cause attributable to the claimant's own intentional conduct. Medart Division of Jackes-Evans Mfg. v. Adams, 344 So. 2d 141 (Miss. 1977). 4. Taking into consideration the injuries herein, the claimant has suffered a permanent partial medical impairment to the body as a whole which translates into a loss of wage-earning capacity for this individual. The subsequent back condition removes this cause from a scheduled member designation and transforms same into a body as a whole classification. The assignment by Dr. Knutson of an 18% medical impairment to the body as a whole was considered as well as all efforts by the claimant post injuries to secure gainful employment. Clearly the claimant is capable of working, but the injuries have impacted somewhat his future earning potential. To what degree this future earnings has been impacted is debatable, and would appear somewhat minimal in light of the jobs claimant undertook post injury, and voluntarily quit and/or refused. However, lay and medical testimony combine to create a situation wherein compensability must lie. Thereafter the administrative judge granted Walker the following relief: 1. Temporary total disability benefits in the amount of $172.68 from April 28, 1992 through October 14, 1994 with proper credit to be given for any wages, monies or benefits previously paid to the claimant during this time period; 2. Permanent partial disability benefits in the amount of $59.34 and continuing for the maximum statutory period as outlined in Mississippi Code Annotated, Section 71-3-17(25) (1972); 3. Penalties and interest, if applicable, pursuant to Mississippi Code Annotated, Section 71-337(5)(1972); 4. Provide medical services and supplies as the nature of the claimant's injury requires and the

process of his recovery therefrom pursuant to Mississippi Code Annotated, Section 71-3-15 (1972). In making this award, the judge was apparently mindful of the stipulation of the parties that Walker's average weekly wage was $259.00. Thus, she arrived at the sum of $172.68 as the award for temporary total disability, consistent with Mississippi Code Annotated

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