IN THE COURT OF APPEALS FOR THE STATE OF MISSISSIPPI

Transcription

1 E-Filed Document Dec :57: WC COA Pages: 13 IN THE COURT OF APPEALS FOR THE STATE OF MISSISSIPPI HOWARD INDUSTRIES, INC. Appellant Appcllant vs. VS. CAUSE NO WC COA 2014-WC-OI086-COA RUFUS ROBBINS Appellee Appcllee BRIEF OF APPELLEE API'ELLEE APPEAL FROM THE MISSISSIPPI MISSISSipPI WORKERS' COMPENSATION COMMISSION MWCC NO K-9861 Rogen K. Chhabra, MSB # B. Seth Thompson, MSB # Chhabra & Gibbs, P.A. PA Attorneys for Appellee 120 N Congress St., Suite 200 Jackson, MS rchhabra@cglawrns.com rchhabra@cglawms.com

2 IN THE COURT OF APPEALS FOR THE STATE OF MISSISSIPPI HOW ARD INDUSTRIES, INC. Appellant VS. CAUSE NO WC COA RUFUS ROBBINS Appellee CERTIFICATE OF INTERESTED PERSONS Pursuant to Rule 28, M.R.A.P. (a)(l), undersigned does hereby certify that the fo llowing listed persons have an interest in the outcome of this case. These representations are made in order that this Court may evaluate potential disqualification or recusal. 1) Howard Industries, Self-Insured, Appellant 2) CCMSI, Third Party Administrator for Appellant 3) Mark Smith, Esquire, Attorney for Appellant 4) Rufus Robbins, Appellee 5) Seth Thompson, Esquire, Attorney for Appellee 6) Rogen K. Chhabra, Attorney for Appellant Respectfully submitted, Regen K. Chhabra, MSB #99131 B. Seth Thompson, MSB # Chhabra & Gibbs, P.A. Attorneys for Appel!ee 120 N Congress St., Suite 200 Jackson, MS rchhabra@cglawms.com Isl Seth Thompson Seth Thompson 11

3 TABLE OF CONTENTS TABLE OF AUTHORITIES iv.. STATEMENT OF THE ISSUE STATEMENT OF THE CASE STATEMENT OF THE FACTS SUMMARY OF THE ARGUMENT STANDARD OF REVIEW ARGUMENT The Full Commission correctly found that Mr. Robbins sustained a 90% loss of industrial use to his upper extremity CONCLUSION CERTIFICATE OF SERVICE

4 TABLE OF AUTHORITIES CASES Bill Williams Feed Service v. Mangum 183 So.2d 917 (Miss. 1966) Diane Gaston vs. Tyson Foods 122 So.3d 797 (Miss. 2013) ,8 McGowan v. Orleans Furniture, Inc. 586 So.2d 163 (Miss. 1991) Meridian Pro!'l Baseball Club v. Jensen 828 So.2d '740, (Miss. 2002) , 6 Mitchell BuiCk, Pontiac ~ Fi~e Equip. Co. v. Cash 592 So.2d 978, 980 (Miss. 1991) Montana 's Sea Kel//e Restaurant v. Jones 766 So.2d 100, 102 (Miss. Ct. App. 2000) Walker Mfg. Co. v. Butler 740 So.2d 315, 320 (Miss: Ct. App. 1998) iv

5 STATEMENT OF THE ISSUE I. WHETHER THE FULL COMMISSION CORRECTLY FOUND THAT THE CLAIMANT WHO, BECAUSE OF H[S WORK INJURY, [S UNABLE TO RETURN TO ANY TYPE OF PREVIOUS EMPLOYMENT, AND WHO NOW WORKS IN AN ACCOMMODATED POSmON, IS ENTITLED TO AN AWARD EXCEEDING THE MEDICAL IMPAIRMENT RATING. STATEMENT OF THE CASE On June 8, 2005, Mr. Rufus Robbins (hereinafter referred to as "Claimant" or "Mr. Robbins") seriously injured his shoulder when he fell to the floor while performing work arising out of the scope of his employment with Howard Industries, Inc. (hereinafter "Employer"). The accident was accepted as compensable by the Employer, and benefits - both medical and indenu1ity - were paid accordingly. On January 4, 2012, Mr. Robbins filed a Petition to Controvert with the Mississippi Workers' Compensation Commission. A hearing on the merits was held on October 10, 2013, after which, on November 18, 2013, the Administrative Judge issued an Order finding that Mr. Robbins had sustained 100% loss of industrial use to his left upper extremity, and awarded permanent partial benefits commensurate with that finding. The Employer appealed the Administrative Judge's Order to the Full Commission who, in turn, reduced the Administrative Judge's award by 10%, and, in so doing, found that because the Claimant had not suffered a loss of wage earning capacity, he would not be entitled to an award of 100% loss of industrial use. The Full Commission found, however, that Mr. Robbins was entitled to an award in excess of his medical impairment rating, and awarded permanent

6 partial disability benefits corresponding to a 90% loss of industrial use to the upper extremity. Sti ll aggrieved, the Employer filed its appeal with this Court. STATEMENT OF THE FACTS Claimant is currently employed with Howard Industries, Inc., and has been since March 31, (Transcript at 7). Prior to beginning work at Howard Industries, Claimant was in the Navy from , after which time he worked at a department store in Florida for a few weeks, and then later at Sears and Roebuck's cabinet plant for nine years. (Transcript at 5). In September of 1967, Claimant began working for Masonite in Laurel, Mississippi, ajob from which he retired in (Transcript at 6). Claimant was never given an administrative position or desk job while employed at Masonite. Instead, Claimant was a plate changer, batt helper, tractor driver, and crew leader. (Transcript at 6). After retiring from Masonite, Claimant worked briefly for Sanderson Farms as a quality control man, and then at South Central Regional Medical Center, performing general labor, maintenance, and landscaping work. (Transcript at 7). When Claimant first began working at Howard Industries, he held the position oflead press operator (Transcript at 7). This position required him to use his left arm to push, pull, perform overhead work, and lift as much as pounds. (Transcript at 9). On or about June 8, 2005, Claimant suffered a workplace injury to his left upper extremity. (Transcript at 10). I-Ie was transported to MEA, and then referred to Dr. Nowicki at Laurel Bone and Joint, who then recommended that Claimant undergo a round of physical therapy. (Transcript at 13). When therapy fai led, Dr. Nowicki performed two surgeries on Claimant's shoulder (Transcript at 14). He was then referred to Dr. Geissler who performed a left reverse total shoulder arthroplasy. (Transcript at 14; Ex. 2). Claimant was later released to 2

7 return to work, with restrictions of no overhead lifting, internal rotation to L5, and no lifting greater than 10 pounds, and did return to work in Octoberof2007 (Transcript at 17; Ex. 2)..... Upon returning to work for Howard Industries, Claimant began working as a horn press operator, a position that allows Claimant to perform his work primarily with his feet and right arm. (Transcript at 17-18). Contrary to what the Employer would have this Court believe, not only had the Claimant never worked as a horn press operator before the injury, the position did not even exist prior to Claimant's injury. (Transcript at 17). Claimant is currently unable to perform the job duties he had as a lead press operator prior to his injury. (Transcript at 19). Claimant is also physically unable to carry out the work of those other jobs in which he had been previously employed. (Transcript at 29-32). He is able to lift his left ann only to shoulder level height, and finds it difficult to perform many household, grooming, and recreational activities. (Transcript at 19). SUMMARY OF THE ARGUMENT The Full Commission did not err in finding that Mr. Robbins had suffered 90% loss of industrial use to his upper extremity. Mr. Robbins is an elderly gentleman with a limited education. His prior occupational history is replete with labor intensive jobs - jobs for which he is no longer qualified, nor can physically perform, because of the significant permanent restrictions he has as a result of his work-related injury. The Employer first appealed the Administrative Judge's decision wherein he awarded 100% loss of industrial use, and has now appealed the Full Commission's decision to award Mr. Robbins 90% loss of use, based solely on the fact that Mr. Robbins currently earns more money now than what he did prior to his injury. While loss of wage earning capacity is certainly a factor that can be considered by the Full Commission in determining loss of use for scheduled 3

8 member claims, it is but one factor among many that must be considered. See Meridian ProFI Baseball Club v. Jensen, 828 So.2d 740, (Miss. 2002)(emphasis added). Those other factors.... include age, education, work history, whether he could perform the substantial acts of his usual employment, as well as his medical impairment. See ld. These factors were considered by the Full Commission, and then applied to the undisputed facts pertaining to each, as was evidenced by the Full Commission's thorough and well-reasoned Order. (R. at ). Accordingly, the decision of the Full Commission should be affirmed. STANDARD OF REVIEW The appellate courts apply a substantial evidence standard of review for workers' compensation cases. "The findings and order of the Workers' Compensation Commission are binding on this Court so long as they are supported by substantial evidence." Mitchell Buick, Pontiac & Fire Equip. Co. v. Cash, 592 So.2d 978, 980 (Miss. 1991). This sentiment was reiterated by this Court in Montana's Sea Kettle Restaurant v. Jones, where it was noted, "[w]e are bound even though the 'evidence would convince the [Clourt otherwise if it were instead the ultimate fact-finder. ' We will overturn the Commission's decision only when there is an error of law or an unsupportable fmding of fact. " 766 So.2d 100, 102 (Miss. Ct. App. 2000) (internal citation omitted) (quoting Walker Mfg. Co. v. Butler, 740 So.2d 315, 320 (Miss. Ct. App. 1998». ARGUMENT I. The Full Commission correctly found that Mr. Robbins sustained a 90% loss of industrial use to his upper extremity. The Full Commission did not err in finding that Claimant has sustained a 90% loss of use to his left upper extremity, nor did they err in awarding permanent partial disability benefits commensurate with same. Its finding was in conformity with both the law governing scheduled member awards, as well as the greater weight of the credible evidence, and should be affirmed. 4

9 The test for whether a Claimant may receive loss of use to the affected scheduled member, over and above the medical impairment, hinges on whether the Claimant can perform the substantial.. acts of his usual employment in which he was engaged when injured. Bill Williams Feed Service v. Mangum, 183 So.2d 917 (Miss. 1966); see also McGowan v. Orleans Furnilure, Inc., 586 So.2d 163 (Miss. 1991). In McGowan, the Court affirmed the administrative judge's award of 100% industrial to the claimant's leg, although the claimant had received only a 40% impairment rating by his treating physician. ld. at 168. In reaching its decision, the Court considered the claimant's pre-injury job activities (standing for long periods, climbing ladders and stairs, and carrying heavy loads), as compared to the sedentary work the claimant could perform post-injury (operating a sander and table saw while sitting). ld. Upon finding that the claimant could not perform substantial acts of his usual employment, the Court affirmed the award of 100% loss of use. Id. Similarly, in Mangum, the Court awarded 100% loss of use, even where the claimant had returned to his pre-injw'y job, albeit with restrictions that were accommodated by his employer. Mangum at (emphasis added). Again, the Court's opinion turned on whether the claimant could perform the substantial acts of h.is usual employment, and it was determined that he could not. ld. In its brief, the Employer has argued that, because the Claimant has suffered no loss of wage earning capacity as a result of his injury, he is limited only to his medical impairment rating. This is simply incorrect. In 2002, the Mississippi Supreme Court spoke to how loss of wage earning capacity affects loss of use claims. Meridian Prof Baseball Club v. Jensen. 828 So.2d 740 (Miss. 2002). In determining that the claimant in Jensen was entitled to 25% loss of use, as opposed to 100% loss of use, the Court did look to whether the claimant had suffered a 5

10 loss of wage earning capacity, but on ly as part of a larger analysis that contemplated the evidence as a whole, including his age, education, work history, whether he could perform the... - substantial acts of his usual employment, as well as his medical impairment. Id. at It is important to note that, even when taking into consideration the fact that the claimant could show no loss of wage earning capacity, the Comt in Jensen still affirmed an AU award of25% loss of use, where the medical impairment rating had been only 7%. Id. The Employer also points to the more recent case of Diane Gas/on vs. Tyson Foods to support its contention that the Claimant is not entitled to 100% loss of use. While the Court in Gas/on, did affirm a Full Commission ruling that the claimant was not entitled to industrial loss beyond her medical impairment, the issue the Court looked at was simply whether the AU and Full Commiss ion's decision was supported by substantial evidence, and determined that it was. 122 SO.3d 797 (Miss. 2013). There was little discussion of any loss of use analysis. Instead, the Court was concerned with whether the AU's finding, and the Full Commission's affirmation of that finding, had been suppoited by substantial evidence presented at hearing, and determined that it was. See Id. Examining the evidence as a whole in the case sub judice, it is overwhelmingly apparent that the Full Commission made a con'ect finding of fact based on the substantial evidence presented at the hearing. Mr. Robbins is 78-years-old. He does not have a high school degree. His past employment includes only manual labor jobs that, because of his injury, would now be impossible for him to perform. In fact, the uncontested testimony at hearing established that it would be impossible for Mr. Robbins to even work the same position he previously had at Howard's as a lead press operator. He cannot perform the substantial acts of his usual employment. He has trouble performing daily chores and grooming activities. His medical 6

11 impairment rating is significant (45% by Dr. Nowicki and 40% by Dr. Vohra), as are his restrictions that place him at sedentary duty..... The Employer has indicated that the Full Commission made no effort to examine the scope of Mr. Robbins's usual employment. Throughout its brief, the Employer references that Mr. Robbins returned to work in a position he had held prior to his work injury (horn press operator) - a "regular production job which other employees perform on a daily basis. (App. Brief at 10). This is untrue. The undisputed testimony is that prior to his work injury, the position of horn press operator did not even exist. (Transcript at 17). And there was certainly no testimony anywhere in the record concerning other employees working as horn press operators. No, Mr. Robbins worked as a lead press operator, a position that required him to use his left: arnl to push, pull, perform overhead work, and lift as much as pounds. The Full Commission accurately examined the full scope ofmr. Robbins's usual employment (not only as a lead press operator, but also the many manual labor jobs he had previously beld), and it is disingenuous for the Employer to suggest otherwise by making assertions that are incorrect, and by pointing to testimony that doesn't exist. It is true that the Claimant is presently earning a higher wage than he was pre-injury. It is also true that Claimant's left arm hangs uselessly while he presses a pedal with his foot and holds a press with his right arm in order to earn that higher wage. As discussed earlier, scheduled member cases do not, and should not, hinge on whether the Claimant experiences a loss of wage earning capacity post-injury. It is but one factor among many that may be considered by the Full Commission. There was testimony presented at hearing concerning the Claimant's pre and postinjury wages. That information was available to the Full Commission who, after hearing all the evidence, still found that the Claimant was entitled to 90% loss of use. Its finding was in 7

12 confonnity with the substantial evidence and, according to the standard of review discussed by this Court in Gaston, should not be disturbed. CONCLUSION The Full Commission did not err in finding that Mr. Robbins sustained a 90% loss of use to his arm, nor did they ell' in awarding permanent partial disability benefits commensurate with same. Its finding was in conformity with the law, and was supported by the substantial evidence that was presented at the hearing. For the reasons discussed herein, the Claimant respectfully requests that this Court affirm the decision of the Mississippi Workers' Compensation Commission. This the 30'h day of December, RUFUS ROBBINS, CLAIMANT ATTORNEY FOR CLAIMANT: Seth Thompson, MSB# CHHABRA & GIBBS, P.A. 120 North Congress Street, Suite 200 Jackson, Mississippi Telephone: (601) Facsimile: (601) sthompson@cglawms.com BY: /s/ Seth Thompson Seth Thompson 8

13 CERTIFICATE OF SERVICE I, Seth Thompson, attorney for the Claimant, Rufus Robbins, do hereby certify that I have.. this day electronically filed with MEC, an electronic copy of the foregoing document, Brief of Appellee, a copy of which will be forwarded to Mark Smith, Esq. Gilchrist Sumrall Yoder & Boone, PLLC Post Office Box 106 Laurel, MS This the 30th day of December, Isl Seth Thompson Seth Thompson 9