OPINION ISSUED on April 29, 1991. The issue of damages was entertained
by the Court in a
subsequent hearing.

Claimant James Michael McKinney alleges that he sustained personal
injury as a result of this
accident. He sought medical assistance several hours after the accident.
He drove himself to the
Summersville Memorial Hospital and he was admitted for observation of
potential back injuries.
He was released on June 20, 1985. Claimant alleges severe back injuries,
and other injuries, and
that as a proximate result of said injury he has been permanently
disabled from gainful
employment. The claimant's wife alleges loss of consortium. Property
damage to claimants' Ford
Pinto was alleged in the amount of $2,000.00.

Mr. McKinney testified that prior to his car accident he had been
gainfully employed by
Fayette Block Company, earning the prevailing minimum wage. This
employment began in 1980
and appeared to be seasonal employment from June to November of each
year. Mr. McKinney
stated that Fayette Block could not make blocks in the wintertime, and
he would be laid off
accordingly. However, Mr. Keith Kiser, who coordinates unemployment and
welfare benefits
for the West Virginia Department of Health and Human Resources serving
the community in
which the claimants reside, testified that Department records reflect
that Mr. McKinney had
discontinued this work due to illness in October of 1984. Mr. Kiser's
testimony thus indicated
that the claimant had stopped working at Fayette Block eight months
before the automobile
accident. The claimant's initial testimony was that he was working for
Fayette Block at the time
of the accident. The claimant subsequently changed this testimony under
cross examination and
stated that he was laid off from Fayette Block when the accident
occurred, "because it was
wintertime." The automobile accident occurred in June of 1985,
summertime. It appears that the
claimant was not employed by Fayette Block when the automobile accident
Accordingly, estimates of the claimant's loss of earnings based upon
projected employment with
Fayette Block cannot and will not be considered by the Court.

Furthermore, the Court is concerned that the claimant's alleged
inability to work as a result of
the alleged injuries sustained in the automobile accident may have been
the result of a
pre-existing physical injury or impairment, unrelated and not aggravated
by the automobile
accident which is the subject of this claim. Mrs. McKinney testified
that her husband had
complained about back pain while he worked as a janitor at the Nettie
Grade School. The
claimant testified that he did not have a prior history of back pain
before the automobile
accident. However, Mr. Kiser, the representative of the State welfare
programs, testified that
Department of Health and Human Resources records verify that the
claimant was employed as
the custodian of the Nettie Grade School after leaving Fayette Block in
1984. Therefore, it is
apparent that claimant's back pain was observed by his wife when he
worked as a janitor which
was prior to the automobile accident in 1985.

Claimant's physicians testified that he had a congenital back defect. A
degenerative disc and
arthritis were also observed, both of which were suggested by physicians
to be preexisting and
unrelated to the accident complained of. When the claimant was seen by
Dr. J. Stephen Shank
at the Summersville Memorial Hospital, the doctor noted in the
outpatient record that the
claimant had "an acute muscle strain, peptic ulcer, and arthritis." Dr.
Andrew E. Landis, an
orthopedic surgeon, who evaluated the claimant for the respondent,
testified that the claimant
probably sustained a minor strain/sprain type of injury to his low back
as a result of the
automobile accident described. Dr. Landis qualified this observation by
stating that in his opinion
the claimant's subjective complaints far outweighed the objective
findings, and the complaints
may have been made for purposes of secondary gain. Dr. Landis notes that
the claimant's
previous medical records evidence that he hurt his back in a logging
industry accident in 1987,
two years after the car accident. The court is not unmindful of the
claimant's testimony when
asked under oath, "Were you ever hurt on the job anywhere with your
back?" and the claimant
replied, "No, never was."

The claimant testified that his earnings per year approximated
$7,000.00 to $9,000.00.
Estimates of the claimant's lost earnings resulting from the inability
to work were then premised
upon those amounts. The claimant was unable to substantiate these
earnings with income tax
returns as the unavailable. However, the respondent provided the Court
with a Social Security
Administration statement of claimant's reported earnings. This document
indicates that claimant's
prior representation of gross earnings were exaggerated. Upon review of
the exhibit, Dr. William
E. Cobb, an economist, testified that the claimants' actual reported
earnings were significantly
less than as represented to him, and were probably between $1,000.00 to
$1,500.00 per/year
from 1971 to 1985. The Court will not consider income which claimant
earned for odd jobs, but
he did not report this income to State and Federal authorities in tax

The claimant has additionally alleged that his vehicle was damaged in
the accident. Again the
Court must note the inconsistency of the claimant's testimony. The
claimant's testimony in the
transcript dated September 27l, 1990, was that the front right tire had
not been punctured when
it crossed the hole in the road. Asked a second time whether he was sure
the tire had not been
damaged, he replied, "No, it didn't leak." However, when asked again
during the hearing
December 6, 1991, the claimant repled that, "the right tire went flat."
The claimant further
testified that he had to change the tire. As no estimate of repair was
entered into evidence, the
Court will not speculate as to what damage actually occurred.

No testimony was received from Mrs. McKinney suggesting a loss of
consortium. Although
this issue was pleased, it has not been established by the evidence.

The Court is of the opinion that the facts in this claim fail to support
an award for damages for
the automobile accident which occurred on June 16, 1985. Accordingly,
the Court is of the
opinion to and does this claim for damages.

Claim disallowed.