MWCC NO. 97-15858-G-2750
                      98-06366-G-2790

DOLLYE L. MURRELL-BILBRO                                                                                                      CLAIMANT

vs.

CRAFTCO ENTERPRISES                                                                                                                  EMPLOYER
AND
LIBERTY MUTUAL INSURANCE COMPANY                                                                                    CARRIER

REPRESENTING CLAIMANT :
Roger Doolittle, Esquire, Jackson, MS

REPRESENTING EMPLOYER/CARRIER :
Arthur Johnston, Esquire, Jackson, MS
 

This matter was heard by the Commission on October 25, 1999 pursuant to the Employer's and Carrier's Petition for Review. The only issue of any consequence is whether the Claimant is entitled to permanent disability benefits in excess of the medical impairment ratings assigned to her right and left upper extremities. In her Opinion dated July 13, 1999 the Administrative Judge awarded Ms. Murrell-Bilbro permanent partial disability benefits for a 75 % industrial loss of use of each arm.
 

Ms. Murrell-Bilbro sustained admittedly compensable injuries to both arms and to her head and neck while employed at Craftco Enterprises. Upon reaching maximum medical improvement she was found to have sustained a functional loss of use of six percent (6%) of her right arm and five percent (5 %) of her left arm. The Employer and Carrier paid all temporary disability benefits which were due, and in addition, the Employer and Carrier paid permanent partial disability benefits to the Claimant based on a six percent (6%) medical impairment of the right arm, and a five percent (5 %) impairment of the left arm.

The question before us is whether Ms. Murrell-Bilbro has demonstrated a "sufficient lo ss of wage earning capacit y to support a finding of industrial disability beyond the medical impairment assigned [to her arms]." Alumax Extrusions, Inc. v. Wright , 7 37 So.2d 416, 421 (Miss. 1998). Failing adequate proof thereof, her entitlement to permanent disability benefits becomes a function of her medical impairment alone. Walker Mfg. Co. v. Cantrell , 5 77 So.2d 1243, 1249 (Miss. 1991); see also Betty Robinson v. Tri-Lakes, Ltd. and Mississippi Manufacturer's Association W.C. Group , MWC C No. 94-13678-F-8709 (June 7, 1999 & July 7, 1999). and cases cited therein.

As the Administrative Judge pointed out in her Opinion, assessing one's loss of wage earning capacity involves more than just comparing the Claimant's pre-injury and post-MMI wages. Instead, a host of factors must be considered, including actual wage loss, if any, education, work, history, the subject injury and restrictions, motivation, credibility, local economic conditions. sympathy by the employer, and any other occupationally relevant fact. These factors play an important role in determining just how the injury in question has or will affect the Claimant's ability to earn wages thereafter. Importantly, an estimate of one's lost earning "capacity" as the result of the injury is the ultimate object of our search.

When all of these rele vant factors are considered in this case, we agree with the Administrative Judge that Ms. Murrell-Bilbro does indeed have an occupational disability, or industrial loss of use, which is greater than the 5% and 6% upper extremity impairments which her doctor assigned. However, we do not agree with the Judge that her occupational disability approaches seventy-five percent (75%).

Ms. Murrell-Bilbro is admittedly reemployed with Craftco at wages which exceed her preinjury rate of pay, but she can no longer perform the tasks required in her pre-injury job, and in fact, she could only qualify for three or four of the many available jobs at Craftco. She has definite limits on her ability to perform repetitive tasks, and with sympathy for her condition, Craftco has done an admirable job of making accommodations for the Claimant because it regards her as a valuable employee.

In the end, based on all of the relevant evidence, it becomes our difficult task to try and fairly estimate the impact this injury has had on Ms. Murrell-Bilbro's capacity to earn wages. Our best estimate under the circumstances is twenty-five percent (25%) and we therefore amend the Opinion of the Administrative Judge accordingly. The Employer and Carrier are hereby directed and ordered to pay permanent partial disability benefits to the Claimant for a twenty-five percent (25%) occupational impairment to each upper extremity, for a total period of 100 weeks. Of course, the Employer and Carrier may take credit for any such payments previously made or tendered. In all other respects, the Opinion of the Administrative Judge dated July 13, 1999 is affirmed.

SO ORDERED this the 24th day of January, 2000.

MISSISSIPPI WORKERS' COMPENSATION COMMISSION
Mike Marsh
Barney Schoby
Beverly Bolton
COMMISSIONERS

ATTEST:
Brenda H. Goolsby, Secretary
___________________________
 

MWCC NO. 97 15858-G-2750-D-00
MWCC NO. 98 06366-G-2790-D-00

DOLLYE L. MURRELL BILBRO                                                                                                     CLAIMANT

vs.

CRAFTCO ENTERPRISES                                                                                                                EMPLOYER
AND
LIBERTY MUTUAL INSURANCE COMPANY                                                                                  CARRIER

APPEARING FOR CLAIMANT :
The Honorable Roger Doolittle, Attorney at Law, Jackson, Mississippi

APPEARING FOR EMPLOYER/CARRIER :
The Honorable Arthur Johnston, Attorney at Law, Jackson, Mississippi
 

The claimant, Dollye L. Murrell-Bilbro, sustained compensable injuries to both upper extremities (G-2750) as well as to her head and neck (G-2790) in the course and scope of her employment at Craftco Enterprises (hereinafter "Craftco"). A hearing on the merits of the claimant's Petitions to Controvert was held on June 7, 1999 in a hearing room of the Mississippi Workers' Compensation Commission, Jackson, Mississippi. At the outset of the hearing the parties stipulated to the following facts:

1 . Temporary total disability was paid to the claimant as a result of her upper extremities claim from November 20, 1997 through February 17, 1998 at the rate of $113.76 for a total of $1,280.37.

2. The claimant reached maximum medical improvement on her bilateral carpal tunnel injuries on February 16, 1998 and maximum medical improvement on her right trigger thumb injury on June 15, 1998.

3. The ratings assigned for each upper extremity was paid by the employer and carrier: six percent to the right upper extremity" five percent to the left upper extremity. ¹
 

The following issues were established by the parties for decision by the Administrative Law Judge:

1. The claimant's average weekly wage at the time of her injury;

2. The nature and extent of the claimant's permanent disability, if any, coupled with a loss of industrial use to the members affected;

3. Penalties and interest, if applicable.
 

Dollye L. Murrell-Bilbro testified that she is a high school graduate who took business courses at a junior college over the course of almost two years but did not obtain an AA degree. ² Prior to beginning work at Craftco, the claimant held various positions, including the position of administrative assistant at ARAS Living Center a retirement community; as a seamstress at the Newton Company, a sewing factory, and as head hostess for Coca Cola Coin Catering, a subsidiary of Coca Cola which engaged in bulk cooking. She testified specifically to the physical requirements of each position and concluded that each required her to repetitively flex her wrists and lift 10 or more pounds.

The claimant testified that she became employed at Craftco on November 24, 1996. She began as an assembler and packer, which required her to lift case boxes, pack them out, and store them on pallets. As a result of these requirements, the claimant testified that she was required to repetitively grip and flex her wrists. Later, the claimant was transferred to the solder station, where she was required to flex, push, grip, and clip parts and to lift up to 25 pounds. While performing this job, she noticed and reported her injury. The employer sent the claimant to Dr. Tim Morris, the company's physician. Dr. Morris formed the impression that the claimant was suffering from bilateral carpal tunnel syndrome and referred the claimant to Dr. Don Carpenter, who performed diagnostic testing, found bilateral axonal nerve damage, and referred the claimant to Dr. Shelby Brantley. Dr. Brantley reviewed the diagnoses of Doctors Morris and Carpenter and concurred; he performed carpal tunnel releases on both hands, the right, dominant hand first on November 21, 1997, followed by the left hand on January 13, 1998. Subsequently, Dr. Brantley prescribed a physical therapy protocol and returned the claimant to work at Craftco with limitations and restrictions.

The claimant testified that when she returned to Craftco, she was assigned to the JA-95 for 100% duty. The claimant experienced pain and difficulty in performing this job and reported her complaints to her supervisor and/or leader. In approximately November of 1998, Robin Roberts from the St. Dominic's Hand Clinic visited the Craftco plant at the request of the employer and advised the employer that the claimant could not perform the JA-95 position, which required repetitive pushing, gripping, and lifting. Ms. Roberts evaluated other jobs in the plant, including solder and building (in which the claimant was engaged at the time of injury) and determined that the claimant was unable to do these jobs. Ms. Roberts suggested to the claimant and Craftco's administration that the claimant could work as a tester, with shrink wrap, and on the light house carousel, working in rotation for three hours on each job with breaks for stretching at 30 minute intervals. According to the claimant, she was then taken from the JA-95 position and told to work as a tester and rotate to shrink wrap, making sure that she did her exercises as suggested every 30 minutes, for two weeks. Thereafter, she was placed exclusively on a testing job for the light house department because, according to her supervisor, Lilly Hicks, it was "not feasible to rotate on the light house carousel." After she began working on the testing job, she continued to have pain and complained about the pain to Ms. Hicks, who returned her to Dr. Brantley.

The claimant denied that she was responsible for rotating from job to job. Rather, she testified that she was instructed to ro tate by supervisors and leaders, includi ng Ms. Hicks, Ms. Youngblood, Kelly Todd and Lynn Williams, but after mid-December, Ms. Hicks told her rotation was not feasible.

In January of 1999, the claimant's attorney requested a job accommodation which would comply with the claimant's restrictions and limitations. The company requested a second visit from a physical therapist, and on this occasion Robin Parish came to the
plant premises. Ms. Parish identified a sorting position in the light house department which required the claimant to accomplish a visual inspection of parts which weigh less than an ounce. Based on Ms. Parish's recommendation, the claimant was placed in this position in late January, 1999, and the job was approved for the claimant by her physician on March 29, 1999.

The claimant testified that based on her knowledge of the jobs that she had held prior to her employment at Craftco, she could not now perform any of those positions. She testified that she was unable to perform any position that she held at Craftco prior to her injury, based on her personal knowledge of the positions' requirements and the opinions of the St. Dominic Hand Management Center. She also testified that based on her knowledge of the positions available at Craftco, she could perform no position other than those jobs identified by Robin Roberts as jobs that she could perform in rotation and the sort position that she now holds.

It is undisputed that on February 25, 1998 the claimant was injured when a light fixture fell from the ceiling, striking her on the head. She was wearing no hard hat, only safety glasses. T he claimant testified that she reported the incident and that the employer and carrier have provided her with medical treatment as a result of this injury. The claimant testified that she continues to have headaches as a result of her head injury, and is treated by Dr. Crenshaw as needed.

Ms. Murrell-Bilbro testified that she experiences pain in h er hands every day that she works. She takes Tylenol and Ad vil for her hand pain. She continues on prescription medication prescribed by Dr. Crenshaw for her head injury. The employer and carrier continue to provide this medication for the claimant's head injury.

The claimant testified that she has earned four wage raises since her injury and that to her knowledge, opportunities for pay raises at Craftco have not been diminished as a result of her injuries. She offered that she had not lost any employee benefits as a result of her injuries. She also testified that her present sorting job is not a job "made" for her, but a job that existed prior to her injury.

In February of 1999, the claimant made a job search. She placed applications at each entity listed in exhibit CL-6. She has not been offered employment by any of these entities; however, she does not believe that she would be able to perform the requirements of any of the jobs for which she applied.

When asked on cross-examination whether she had been accused of failing to perform her exercises during breaks, she denied such accusations but admitted that her employer's agents had asked her if she was, in fact, performing her exercises regularly. She testified that she did so and responded affirmatively.

Ms. Murrell-Bilbro testified that since she reached maximum medical improvement from her carpal tunnel symptoms in February of 1998, she has missed 13 days or parts of days as a result of her associated carpal tunnel pain. She testified that she feared termination in retaliation for pursuing her workers' compensation claim.

Jesse Havard, a resident of Brandon, has worked for Craftco, for three and a half years, serving as Human Resource Administrator and currently as Quality Manager. He testified that the claimant had no basis for b elieving that she was at risk of termination as a result of her injury or claim and that to his knowledge Craftco had never terminated an individual subsequent to a work-related injury. Mr. Havard testified that the claimant was a good employee both pre- and post-injury, and that she must be classified as at least a satisfactory employee to earn the wage increases afforded her since the injury.

Mr. Havard testified that he requested a therapist (Robin Roberts) to come to the Craftco plant in November of 1998. He escorted her in the plant with the purpose of having her evaluate 15 or fewer jobs that he had identified as suitable for the claimant. He showed the therapist approximately 15 positions, and of those she identified three positions which the claimant would be capable of performing: testing, heat shrink (or shrink wrap), and light house carrousel. He testified that because the light house carrousel job was a higher paying position, the company would not allow the claimant to perform that job.

Mr. Havard testified that to his knowledge, after Ms. Roberts surveyed available positions, the claimant was not forced to perform a position that Ms. Roberts said she could not do nor a position that Ms. Roberts had not evaluated. He testified that the claimant was to follow work restrictions, including rotation, and the rotation aspect of her position was her responsibility; if she were not able to rotate, she was instructed to notify him. He became concerned that the claimant was not rotating or doing stretches, having heard reports from other employees that she was not doing her stretches. He testified that he confronted her and she responded that she was doing her stretches regularly He was unable to testify that he had observed her failure to perform the exercises.

Due to Ms. Murrell-Bilbro's continued complaints of pain, Mr. Havard invited a therapist to re-enter the plant to evaluate more than the 15 or less jobs that Ms. Roberts had evaluated. The second therapist (Robin Parish) approved the sorting job in light housing, and some time thereafter the claimant was assigned to sorting in light housing 100% of the day. A release from Dr. Brantley, subsequently obtained on March 29, 1999, approved this assignment on a full-time basis.

Mr. Havard conceded that the claimant was unable to return to the employment she was performing at the time of her injury, and further that the positions that the claimant was performing at that time were evaluated by a therapist and determined to be unsuitable to the claimant.

Mr. Havard testified that he was aware of the letter requesting accommodation which had been addressed to Ken Downey, Director of Manufacturing Operations, suggesting that it was he, and not Mr. Downey, who received the correspondence.

Dr. Shelby Brantley testified in this cause by medical records affidavit. The records suggest that the claimant was referred to Dr. Brantley by Dr. Tim Morris. Dr. Brantley initially evaluated the claimant on October 23, 1997 when she presented with bilateral hand pain. The history related suggests that the claimant had been initially treated by Dr. Morris for hand pain and was referred by Dr. Morris for an EMG nerve conduction study which documented carpal tunnel syndrome. In addition to the study's results, the claimant reported numbness and tingling of the hands, together with pain, worse at night. Dr. Brantley noted that the EMG report suggested mild to moderate bilateral carpal tunnel syndrome with likely axonal loss and mild chronic motor axon loss. According to the notes, the claimant had not responded to splinting, non-steroidal antiinflammatories or steroids. Dr. Brantley noted that the claimant denied any personal activities which would contribute to or aggravate the symptoms.

A physical examination performed on this date indicated positive Tinel's and Phalen's tests, bilaterally, pain and tenderness over the flexors of the thumb, and diminished light touch in the thumb and tip of the index fingers, bilaterally.

Due to the presence of axonal loss, Dr. Brantley recommended surgery. Since the claimant reported greater left-sided pain, although she is right-hand dominant, he suggested that the left side be released first, followed by the right within four to six weeks thereafter.

There is no operative record of the left release in Dr. Brantley's notes, although there is no dispute that a left release occurred. The notes suggest that sutures of this release were removed on December 1, 1997. The claimant was followed on December 22, 1997 ³ and January 8, 1998. The operative record of January 14, 1998 suggests that the physician performed a right transverse carpal ligament release with median nerve neuroplasty at the wrist. Dr. Brantley noted that the surgery was unremarkable. Sutures were removed from the right wrist on January 26, 1998, and occupational therapy was prescribed for three weeks. Notes suggest that on February 16, 1998 Dr. Brantley opined that the claimant had reached maximum medical improvement and sent her to the St. Dominic Hand Management Center for work restrictions prior to an assignment of a permanent impairment rating. Dr. Brantley allowed the claimant to return to work in the interim but to avoid lifting anything heavier than 20 pounds and to avoid repetitive wrist flexion type activities.

On March 17, 1998 St. Dominic Hand Management Center performed a functional capacity evaluation (hereinafter "FCE"). Pertinent components of the examiner's opinions are as follows:

• "The patient seemed very motivated and eager to return to work. The patient showed eagerness to do well in functional capacity evaluation and appeared to be giving full effort at all times." ⁴

• Of the seven positions among which the claimant rotates in the plant ⁵ , the claimant should be able to perform building, testing, and loading positions. The claimant would have difficulty in performing the stacking, solder, inspection, and pack out positions.

• "Tolerated work level based on Dictionary of Occupational Titles include the following: The patient should be put in sedentary level, able to lift 10 pounds or less occasionally. The patient could probably move into the light category of lifting 20 pounds occasionally, 10 pounds or less frequently if she was not having difficulty with cervical strain." ⁶

• "Lifting Restrictions, The patient's maximum weight load bilateral lift floor to knuckle was 25 pounds. Floor to waist was 15 pounds. The patient complained of pulling in the left cervical region during both of these lifts. One-handed lifts include the following: right 15 pounds, left 15 pounds. These are maximum weight loads. Weight restrictions suggested as follows: 10 pounds occasionally. no repetitive lifting." ⁷

• "Impairment Rating Summary: ... Using the AMA Guide to the Evaluation of Permanent Impairment , Fourth Edition, revised, the following impairment was suggested: 10% impairment of the up per extremity due to diminished light touch in the median nerve distribution of the right hand and positive provocative signs of carpal tunnel syndrome..." ⁸

The claimant returned to Dr. Brantley on April 20, 1998 complaining of "catching" and "locking" of her right thumb, which she attributed to the motion of pinching as required in her job, resulting in increasing pain. A physical examination noted palpable tender nodule over the A-1 pulley region and palpable catching sensation, although no lock occurred during the examination. Dr. Brantley diagnosed right trigger thumb and treated the region with a Xylocaine and Celestone injection. Dr. Brantley took the claimant off work until the following Monday and ordered that she avoid pinching (tip pinch or lateral pinch) and forceful grasping of the right hand for three weeks. On June 15, 1998, he opined that she had reached maximum medical improvement with regard to her right trigger thumb. He ordered an evaluation from St. Dominic Hand Management Center relative to the thumb impairment.

This evaluation occurred on June 30, 1998. The assessment set forth the following rating:

1. By range of motion deficits, impairment equals 3% for digit, 1% hand, 1% upper extremity, or 1% whole person.

2. Per table 29 on page 63 of Guides to Permanent Impairment, a mild inconstant triggering equal 20% digit multiplied by 15% (value of IP joint) equal 3% digit, 1% hand, 1% upper extremity or 1% whole person.

In September of 1998, the claimant was still r eporting problems, indicating that her work seemed to aggravate her thumb . Pain continued to be reported in October 1998, and Dr. Brantley recommended that a therapist do a site evaluation and job analysis in order to identify jobs which would minimize the use of the flexors of the thumb and hopefully obviate persistent aggravation of tenosynovitis.

A job site evaluation was performed on October 29, 1998 by Robin Roberts of St. Dominic Hand Management Center. The following conclusions were reached by the evaluator:

• All jobs at Craftco except the tester job for Ford brushes, heat shrink, and lighthouse wou ld impose too much thumb and wrist motion for the patient.

• The patient's present job (100% Sort JA-95) is not indicated for the claimant secondary to the static pinch position that is needed in order to repair parts.

• If the patient performs the tester job for Ford brushes, heat shrink, and lighthouse on a rotation basis while using her splints and doing rest periods, she should be able to perform these activities.

The records of St. Dominic Hospital were admitted into evidence on behalf of the claimant. The majority of the pertinent facts gleaned from these records is reflected within the summary of Dr. Brantley's testimony. These documents reflect, as well, a site visit performed on February 9, 1999 by Robin Parish, the therapist. The problem. as reported by the therapist, was that the claimant's rotation from testing, to heat shrink to light house required the claimant to cross sections which slowed down production. The claimant's complaints of pain resulted from the testing job. The therapist interviewed the claimant's supervisor and group leader, Johnnie Youngblood, and then suggested that the claimant perform light house sorting, grommet sorting, heat shrink, and housing greasing when needed. She suggested 6-00 a.m. to 9:30 a.m., 9:45 a.m. to 11-30 a.m. and noon to 3:00 p.m., rotating after each period, remaining in one section only where the two sorting jobs and heat shrink are located, and that the claimant should perform no testing job and perform no lifting of any kind.

Exhibit CL-5 notes that on March 29, 1999 Dr. Brantley approved 100% light house sorting job for the claimant.

Dr. Charles Crenshaw of Newton, Mississippi, testified on behalf of the claimant by medical records affidavit. He noted that the claimant was seen on March 2, 1998 when a light fixture fell from the ceiling and hit the claimant on her head causing headaches and neck stiffness and soreness. She also reported nausea with the headaches. The physician treated her with medications and continued to treat her for reported symptoms through January 21, 1999. The Scott Regional Medical Center medical records were also submitted on behalf of the claimant by affidavit. They corroborate the history of the head injury, noting by x-ray report that the examination of the skull was unremarkable.

The employee payroll history report (exhibit E/C-7), corroborated by the claimant's pay stubs (exhibit CL-9) reflects that the claimant's average weekly wage at the time of the onset of bilateral carpal tunnel syndrome was $200.65. ¹⁰ These exhibits also corroborate Craftco's claim that the claimant has suffered no wage loss a result of her injuries.
 

Upon consideration of the lay and expert testimony in this matter, together with the applicable law, the Administrative Law Judge finds as follows:

1 . The claimant sustained two distinct work-related injuries while employed by Craftco; the first can be characterized as the onset of bilateral carpal tunnel syndrome pain, with associated right trigger thumb symptoms; the second resulted in headache, cervical pain and nausea secondary to the claimant being hit on the head by a light fixture falling five or six feet from the ceiling and hitting her on her unprotected head. Both of these injuries are indisputably compensable injuries under the Mississippi Workers' Compensation Law, section 71-3-1, et seq. (1972) (as amended), (hereinafter referred to as "the Act".)

2. The claimant was temporarily disabled from November 29, 1997 through February 17, 1998, and during that period was paid $133.76 per week for a total temporary total disability payment of $1,280.37. The claimant does not claim any other periods of temporary total disability. ¹¹

3. The claimant has sustained a permanent impairment rating to each of her upper extremities: 5% to the left upper extremity and 6% to the right upper extremity. The weight of the expert testimony compels the conclusion that the claimant has sustained a functional loss which is far in excess of her medical impairment rating. This conclusion is reached with careful attention to the following facts which are established by expert testimony, as well as by lay testimony:

• The claimant can no longer perform the tasks required to accomplish the job that she performed at the time of onset of her bilateral carpal tunnel syndrome. ¹²

• Of numerous positions available to be performed at Craftco, therapists from St. Dominic Hand Management Center found only three (3) that the claimant could perform on March 17, 1998, the date of the claimant's FCE. ¹³

• The claimant will have difficulty accomplishing the following tasks.. repetitive use of the right hand pushing and pulling weights up to 20 pounds; repetitive lifting of 10 to 25 pound parts; repetitive lifting of 20 pound boxes; repetitive wrist flexion activities, bilaterally. ¹⁴

As the Court of Appeals recently reiterated in Christopher D. Cook v. The President Casino and Insurance Company of the State of Pennsylvania , No. 98-CC00294-COA (June 8, 1999):

The Workers' Compensation Act 'arbitrarily schedules the compensation payable for loss of or loss of use of a scheduled member, focusing upon a claimant's functional loss and without regard to loss of wage earning cap acity.' Smith [v. Jackson Construction Co.] , 607 So.2d [1119] at 1126 (Miss. 1992). Certainly this point can b e stated no more concisely ... ¹⁶

In this case, then, the fact that the claimant is presently employed by her preinjury employer, Craftco, earning wages which are greater than her pre-injury wage is not outcome-determinative. One must acknowledge the fundamental fairness with which Craftco has treated Ms. Murrell-Bilbro. In its efforts to keep what Mr. Havard characterizes as a "good employee" both pre- and post-injury, the employer has managed to find her a position which should not exceed her limitations and restrictions resulting from her admittedly compensable wrist injuries. But does that end the inquiry? Will a result (dictated by Robinson ) depriving the claimant of any permanent disability benefits beyond the 22 weeks paid on the impairment ratings adequately "compensate" the claimant for the loss of physical ability to perform any of the work she has done in the past, or any work that is not regarded as "light-duty"? And despite the one-year window to reopen pursuant to Miss. Code Ann. § 71-3-53, will such a result fairly account for the inevitable loss of wage-earning capacity she will experience in the not-too-distant future when her serious and tenuous medical condition deteriorates further? Finally, and most importantly, is such a result consistent with the history, purpose and societal/beneficial goals of the Act? The undersigned thinks not.

One seeking to fairly reconcile the contradictions between the Commission's recent decisions and the concerns outlined above is not without guidance in the law. Recognizing first that claims such as that of Ms. Murrell-Bilbro are permanent partial in nature, we are left with the fundamental legal principles which are to be applied to scheduled member claims: Can the claimant perform the substantial acts of the usual employment? ¹⁷ To what extent has the claimant sustained a loss of industrial/occupational use to the injured member greater than the permanent medical impairment rating? And if there is a basis in the evidence for concluding that there is more disability present than is represented by the impairment rating, though less than permanent and total, what considerations justify that conclusion? ¹⁸

In addressing the first issue - whether or not the claimant can perform the substantial acts of her usual employment - one must first define usual employment or customary employment . There is no controlling definition of "substantial acts of the claimant's usual employment." A review of the Supreme Court cases which comment on the issue suggests that the claimant's usual employment is the employment she was performing at the time she sustained injury. This conclusion, however, would not always be appropriate, as when the claimant was working not at her regular job but on some temporary assignment or when the claimant had only been on the job for a day or two. ¹⁹

In the case at bar, the medical evidence clearly establishes that the claimant could not return, post-injury, to the position she held when she was injured (solder station job) nor to virtually any other position in the plant. The medical evidence, sought and obtained by the employer who was attempting to relocate its injured employee in a suitable position, makes it clear that only four positions were located that the claimant could perform, and three of the four could not be performed full time. When one considers that the claimant's entire work history has required her to use her hands and arms (clerical work, bulk cooking, seamstress work and manufacturing work), and one considers the claimant's testimony that these positions, as well as all positions that she held at Craftco prior to her injury, required her to engage in repetitive flexion of her wrists and lifting 10 or more pounds, one can easily conclude that the claimant cannot perform the "substantial acts" of the claimant's "usual" employment.

In an attempt to reconcile the Full Commission's view i n Robinson wit h case law, it is appropriate to consider other aspects of the claimant's "disability." As has been established by the proof and highly relevant to this opinion, the claimant has a high school degree and has taken several business courses at a community college. The grade point averages that the claimant sustained during her high school and junior college career suggest an intellect adept at learning or a facility for diligence and the desire to achieve. However, the various reports of St. Dominic Hand Management Center suggest that the claimant is disqualified from a vast majority, if not all, of the jobs that she held prior to her injury. A further, and important, consideration is the seriousness of claimant's injuries, as permanent axon loss has apparently occurred. The claimant's job search indicates that she made an effort to seek employment outside of Craftco and in that effort was unsuccessful. ²⁰ The claimant has sustained no wage loss at Craftco. There is no evidence relative to the claimant's age except that established by the medical records; Ms. Murrell-Bilbro is a relatively young woman. Testimony of the claimant and Mr. Havard suggest that one could conclude that the claimant s adaptable, an asset consonant with her relative youth. There is no evidence relative to the area of the state in which the claimant resides, its economic contours and/or employment opportunities or availabilities. Lastly, there is no direct evidence regarding the predictability of post-injury earnings, but inherent in any disability analysis is the question of how long the employment will last following a final decision herein.

These facts combine to suggest that the claimant's industrial loss of use of her hands in occupations in which she has historically been employed is significant, despite the assets of her youth, adaptability, native intelligence and/or diligence. Assessing the evidence as a whole, and consistent with the applicable law culminating in Cook but informed by the views of the Full Commission as expre ssed in Robinson , the Administrative Judge is of the opinion that the claimant has suffered a 75% loss of industrial/occupational use of each upper extremity.

4. The claimant's average weekly wage at the time of the onset of the bilateral carpal tunnel injury was $200.65.
 

IT IS, THEREFORE, ORDERED AND ADJUDGED that the employer and carrier provide to the claimant as follows:

1 . Temporary disability compensation in the amount of $133.77 per week from November 20, 1997 through February 17, 1998, with credit for sums previously paid and for wages earned by the claimant during this period;

2. Permanent partial disability compensation in the amount of $133.77 per week commencing February 17, 1998 for a period of 150 weeks for the right upper extremity, with credit for the impairment rating previously paid by the employer and carrier;

3. Permanent partial disability compensation in the amount of $133.77 per week commencing February 17, 1998 for a period of 150 weeks for the left upper extremity, with credit for the impairment rating previously paid by the employer and carrier;

4. Provide to the claimant medical treatment, services and supplies pursuant to Miss. Code Ann. § 71-3-15 (1972) (as amended) for such period as the nature of the bilateral carpal tunnel and head/cervical injuries or the process of the claimant's recovery may require, such fees and charges to be limited to such charges as prevail in the same community for similar treatment and to be subject to regulation by the Commission and its fee schedule;

5. Penalties on unpaid amounts of compensation as appropriate and authorized by Miss. Code Ann. § 71-3-37 (1972) and interest at the legal rate.

SO ORDERED this the 13th day of July, 1999.

LYDIA QUARLES
ADMINISTRATIVE LAW JUDGE

ATTEST:
Brenda H. Goolsby, Secretary
___________________________

1. The claimant disputes that the compensation rate used by the employer and carrier to pay the rating is accurate.

2. Cross examination testimony suggests that the claimant is quite bright graduating from high school with a 3.1 grade point average and maintaining a 3.15 grade point average when attending classes as the Sa n Jacinto Community College.

3. Records reflect that on this date Dr Brantley prescribed occupat ional therapy three times a week for two weeks, describing modalities, for the left hand, After recommendations that therapy continue, a January 7, 1998 record reflects that the claimant has made excellent progress with her left hand.

4. FCE, p. 2.

5. Loading, stacking, testing, building, solder, pack out, and inspection. as described in the FCE, pps. 2-3.

6. FCE, p. 4.

7. FCE, p. 5.

8. Id.

9. [Claimant] can be qualified in the light category in regards to lifting, with occasional lifting of 20 pounds, and frequent lifting of 10 pounds or less, if she is not having problems with cervical strain. Floor to waist lifting would be a maximum of 15 pounds and floor to knuckle lifting of 25 pounds One-handed lifts are not to exceed 15 pounds. She should avoid repetitive lifting.

10. It is admitted that the head/cervical injury which occurred on February 25, 1998 did not result in time lost from work.

11. The claimant does not agree with the wage rate utilized by the employer and carrier, but does admit that the period during which temporary total disab ility compensation was paid is all that is owed to t he claimant.

12. T his fact is established by the test imony of the claimant, the testimony of Jesse Havard, and the testimony of Dr. Shelby Brantley, especially as articulated by St. Dominic Hand Management Center.

13. These positions that the claimant could perform, according to Robin Roberts, a therapist at St. Dominic, were loading, testing, and building. See p. 3 of the FCE, dated March 17, 1998.

14. See Dr. Brantley's affidavit and medical records of St. Dominic-Jackson Memorial Hospital.

15. See Betty J. Robinson v. Tri-Lakes, Ltd. and Mississippi Manufacture's Association Workers' Compensation Group , MWCC No. 94-13678-F-8709-B-00 (June 7, 1999).

16. Cook , id at 8. Notably, Justice Southwick, dissenting from the m ajority opinion in Cook , does not dissent from the legal conclusion that in determining disability in a scheduled member case, the focus is upon a claimant's functional loss without regard to loss of wage-earning capacity.

17. See Bill Williams Feed Service v. Mangum , 183 So.2d 917 (1966); V ardaman Dunn, Mississippi Workers' Compensation , 3d ed., se ction 86. This te st, known as the "less rigorous test," has been historically applied by the Supreme Court of the State of Mississippi in scheduled member cases. Such application is consistent with the conce rns outlined above and the logic of the venerable treatise writer, Larson, because benefits to be awarded to scheduled member injuries are limited b y statute.

18. As stated, these considerations include, but are not limited to, the claimant's age, education and training, disqualification from other work, inability to obtain other work, wage loss, the area of the state in which the claimant resides and economic conditions in that locality, the nature of the injury and resulting functional loss, increased maturity or training of the injured worker, the unpredictable nature of post-injury earnings, and, as the court has poetically stated, "the flesh and blood realities of the life circumstances of a particular worker." Stuart's Inc. v. Brown , 543 So.2d 649, 652 (Miss 1989).

19. See Phina Leah Robinette v. Henry I Siegle Co. and Royal Insurance Co. MWCC No. 94-18626-F-6340 (Dec. 4, 1997). In Betty Jane Robinson , supra , the Full Comm ission inferred that the claimant's job which she held at the time of her injury was not necessarily her "usual employment," stating.-

[I]n order for one to have what we would consider a "usual employment" their occupational history must show a pattern of having performed essentially similar tasks throughout.

20. The claimant's job search, although not inc redibly thorough, is certainly sufficient to stand the test of reasonableness, particularly in a scheduled member case where historically the issue of wage loss and/or inability to obtain other employment has either been completely disregarded or supported only by conclusions reached by the court to justify affirmance of a Commission award where the proof was abse nt or scanty.