MWCC NO. 97-11925-G-5042
BARBARA ARD CLAIMANT
vs.
MARSHALL DURBIN COMPANIES, INC.
EMPLOYER
(SELF-INSURED)
REPRESENTING CLAIMANT:
Floyd E. Doolittle, Esquire, Jackson, MS
REPRESENTING EMPLOYER/CARRIER:
Wendy Moore Shelton, Esquire, Jackson, MS
William I. Gault, Jr., Esquire, Jackson, MS
This matter was heard by the Commission on March 27, 2000 pursuant to the Employer's Petition for Review. This request for review was prompted by an Order of Administrative. Judge dated November 17, 1999 which found the Claimant entitled to medical benefits, temporary total disability benefits, and permanent partial disability benefits based on injury to both of her hands. The Employer questions in particular whether the Judge erred in concluding that Ms. Ard has suffered a fifty-five percent (55 %) permanent occupational disability as a result of the injury to her hands. The Employer feels that Ms. Ard is entitled to no more than the value of her medical impairment rating as compensation for permanent disability, while Ms. Ard feels she should receive permanent disability benefits based on the total loss of use of her hands.
We have reviewed the record and considered the arguments put forth by the parties. We can't help but observe that the Administrative Judge has provided a thorough review and analysis of the evidence, particularly as it pertains to the issue of permanent disability. In the end, we agree with and therefore adopt the findings and conclusions reached by the Administrative Judge, with one exception. The Administrative Judge concluded that Ms. Ard has sustained a fifty-five percent (55%) occupational disability as the result of the injury to her hands. In our view, however, Ms. Ard's permanent occupational disability as the result of the injury to her hands is, all things considered, closer to twenty-five percent (25%).
We therefore amend the Order of Administrative Judge to provide that permanent disability benefits be paid by the Employer in accordance with Miss. Code Ann. §71-3-17(c)(3) (Rev. 1995) for a twenty-five percent (25 %) permanent occupational disability. In every other respect, the Order of Administrative Judge is affirmed.
SO ORDERED this the 29th day of March, 2000.
MISSISSIPPI WORKERS' COMPENSATION COMMISSION:
Barney Schoby
Beverly Bolton
COMMISSIONERS
ATTEST:
Brenda H. Goolsby, Secretary
___________________________
MWCC NO. 97-11925-G-5042-A
BARBARA ARD CLAIMANT
vs.
MARSHALL DURBIN COMPANIES, INC.
EMPLOYER
SELF-INSURED
APPEARING FOR THE CLAIMANT:
Floyd E. Doolittle, Esquire, Jackson, Mississippi
APPEARING FOR THE EMPLOYER:
Wendy Moore Shelton, Esquire, Jackson, Mississippi
On March 5, 1999, the claimant filed a petition
to controvert alleging that on January 17, 1997, she received a work-related
injury to both hands, wrists, and arms. The employer admitted the compensability
of the injury, provided medical services and supplies, and paid approximately
$8,410.92 in temporary total disability benefits and $3,355.20 in permanent
partial disability benefits, a total of approximately $11,766.12. A dispute
arose, however, regarding the extent of disability resulting from the work
injury, and a hearing was held in Hearing Room "A" at the Mississippi Workers'
Compensation Commission Building in Jackson, Mississippi, on November 8,
1999.
The parties stipulated that the claimant's average
weekly wage on January 17, 1997, was $279.59.
The primary issue to be resolved by the Administrative
Judge is the extent of occupational disability or industrial loss of use
of the claimants hands or arms resulting from the admittedly compensable
work injury of January 17, 1997.
Barbara Ard is thirty-six years old and a resident of Jackson. She completed the twelfth grade in school and earned a high school diploma. In 1983, at the Job Corp., Ms. Ard had vocational training in retail sales for a year and printing for six months, and she received a certificate for each course. Ms. Ard has three children, ages "nearly 14," 13, and 9. She is right-handed.
In the past, Ms. Ard worked at a Presto Manufacturing factory, using a screwdriver all day. Before that, she used scissors and trimmed breasts at the B.C. Rogers chicken processing plant. She also worked at Levi Strauss garment plant where she packed clothes for shipping. She was required to lift pants and shirts all day, and it was production work. She said she lifted up to forty pairs of pants at a time. She used her hands constantly for forty hours a week. She said she could not go back to any of these jobs now because of her hand difficulties.
At another job in the past, Ms. Ard monitored trucks at a construction company. This required her to write on a pad with a pen all day. She also worked as a certified nursing assistant (CNA), doing direct patient care at Hudspeth Center, a mental retardation facility. She had to lift 100 to 200 pounds, caring for patients all day.
At another job, Ms. Ard ran an offset printing machine for Public Notice Printing. She was required to pick up thirty to forty reams of paper at a time to load the machines and turn different knobs to get the ink adjusted in the machine. She used her hands all day. She also worked at Canton Manufacturing, packing heaters and other products. She had to lift heaters, pressure cookers, and different household products all day.
Ms. Ard worked for Marshall Durbin two times. The last time she worked, she was employed there a year. She was a breast trimmer, she deboned, and she did packing. As a deboner, she stood at a conveyor belt and she trimmed the excess fat and skin off the deboned breasts. She had a small work station, and she used scissors to trim the meat. She reached out with both hands to pull the meat onto the work area. She took the scissors in her right hand, and she held the meat with her left hand. Then she would throw the meat across the conveyor belt with her left hand. She would do this job eight or more hours a day.
When she packed, she would stand next to a conveyor belt. At eye level, there were stacks of styrofoam trays, and at waist level there was chicken meat on the belt. She would reach up with both hands to eye level to pick up the trays. She would put them onto the waist-level station, and she would use both hands to get the meat. She would fill the trays with meat, then put the filled trays back up on the eye level belt. She used both hands to pack the meat.
Ms. Ard also worked hanging breast fronts on a cone belt. She stood at a table, and someone else would place a box full of breast fronts onto the table. She would pick up a breast front with her left hand, pass it to her right hand, and put it on a cone. She did this all day long.
According to Ms. Ard, she left Marshall Durbin in order to have surgery to her hands. Dr. Alan Freeland did a carpal tunnel release on each hand, the right on January 12, 1998, and the left on May 18, 1998. She never returned to Marshall Durbin, and the plant has since been bought out by Peco Foods. Ms. Ard testified that she called Peco Foods to see if she could get her old job back, but the personnel manager said the company did not take back anyone from Marshall Durbin. She did not apply for a new job with Peco Foods because she did not think there was anything at the plant she could do.
Ms. Ard has looked for employment at various places, such as the United States Post Office, Tower Loan, Esco's Insurance, Dollar General Store, Madison County Medical Center, Bill's Dollar Store, Department of Human Services, the Mississippi Cooperative Extension Service, Canton Sales & Storage, the Housing Authority of Canton, and the Madison County Library, all in Canton, and Michael's Arts & Crafts, Stein Mart, and East Ford in Jackson. She found work at Wright's Security Services in Jackson as a security officer, and her primary job duty was to patrol stores. She earned $5.35 an hour and worked thirty hours a week. She had trouble with her knee, a problem not related to her job at Marshall Durbin, and she quit.
Ms. Ard also worked as a cashier at Toys R Us in Jackson, earning $5.35 an hour and working about forty hours a week. Now she works as a cashier at Dollar General Store in Flora. She earns $5.35 an hour and works between twenty and twenty-five hours a week. She has a limited schedule because of her knee problem.
After the surgery, Ms. Ard experienced pain and swelling 'in her hands. She has pain when she uses scissors, can openers, knives, screwdrivers, or pliers. She cannot open a mayonnaise jar, and she has difficulty with certain doorknobs. She can write only about half a page without having pain or swelling. She has trouble driving more than an hour at a time. Her hands ache and feel like a thousand needles are sticking her. Buttoning buttons, tying shoe laces, and combing her hair cause her problems.
Sam Cox, vocational rehabilitation consultant in Jackson, testified for the employer that he prepared a vocational rehabilitation report on the claimant, dated October 27, 1999. He reviewed the notes of the rehabilitation case manager at CompCare, various medical records of Dr. Freeland and Dr. Myers, Ms. Ard's application to Wright's Security Services, and other records. He opined that Ms. Ard was employable. He did a labor market survey and found jobs within her restrictions, such as desk clerk, data entry operator for people registering in a hotel, telemarketer, dispatcher, security guard, and sales clerk. He noted the unemployment rate in Rankin County is 2. 1 %, in Madison County, 3.2%, and in Hinds County, 4.0%. Mr. Cox said Ms. Ard could earn at least minimum wage, $5.15 an hour, and up to $6.00 or $7.00 an hour.
Mr. Cox said sedentary work requires the ability to lift ten pounds and carry ledgers or other items weighing less than ten pounds and to sit six hours a day. Light exertional work is being able to lift twenty pounds and carry ten pounds. Mr. Cox reviewed Dr. Freeland's restrictions and classified Ms. Ard's work level within his restrictions to be sedentary. Mr. Cox testified that 30% of the types of jobs in Mississippi are sedentary exertional jobs.
The medical records of Dr. Mitchell J. Myers, neurologist in Jackson, were received into evidence. Dr. Myers did a nerve conduction study of Ms. Ard on January 30, 1997, finding bilateral median neuropathy at the wrist, supporting a diagnosis of bilateral carpal tunnel syndrome of moderate severity. He did another nerve conduction study on May 22, 1997, noting improvement since the study of January 30,1997. Ms, Ard returned to see him July 10 and 3 1, 1997, stating that she continued to work.
On August 14, 1997, Dr. Myers wrote that Ms. Ard was under his care for treatment of tendonitis and myofascial pain. He recommended she stay off work for two weeks to undergo physical therapy. On August 28, 1997, Dr. Myers said Ms. Ard was to remain off work until September 4, 1997, and return to see him September 8, 1997. On September 8, 1997, Dr. Myers referred Ms. Ard to a rheumatologist. He suggested she have a light duty assignment that did not require exposure to cold and limited any repetitive motion tasks.
The medical records of Dr. Alan Freeland, hand specialist at the University Medical Center in Jackson, were received into evidence. Dr. Freeland first saw Ms. Ard on September 25, 1997, for complaints of bilateral hand and wrist pain from a work injury of January 17, 1997. Ms. Ard reported wearing night braces. Dr. Freeland diagnosed bilateral carpal tunnel syndrome with possible cold intolerance and vasospasm. He asked her to continue wearing the wrist splints, have a cold intolerance test, and come back to see him in three weeks.
Ms. Ard returned to see Dr. Freeland on October 16, 1997, telling him she had not had any relief wearing the splints. The cold tolerance test was positive for peripheral vasospastic disease. EMG and nerve conduction studies in January and May 1997 indicated moderate bilateral carpal tunnel syndrome. Dr. Freeland recommended surgery, right side first. He scheduled her for right carpal tunnel release on December 8, 1997.
On December 31, 1997, Dr. Freeland noted Ms. Ard had a panic attack at the time of her scheduled surgery and it was thus canceled. He rescheduled the right carpal tunnel release for January 12, 1998. Ms. Ard underwent the surgery and returned to see Dr. Freeland for follow up. On February 19, 1998, Dr. Freeland started her on a daily home program of strengthening, conditioning, and edema and scar management. He scheduled a left carpal tunnel release for five weeks later. The surgery, which was scheduled for March 23, 1998, was postponed, however. In the meantime, Dr. Freeland referred her to Dr. Rahul Vohra at the Mississippi Methodist Rehabilitation Center for therapy for her right hand.
Ms. Ard underwent the left carpal tunnel release on May 18, 1998, and Dr. Freeland followed her for several visits after the surgery. On July 9, 1998, Dr. Freeland advised a daily home therapy program to recover motion, strength, power, and endurance.
Dr. Freeland saw Ms. Ard again on August 14, 1998, noting she was three months following her most recent surgery. He noted he had done everything he could for her, although she was still having intermittent activity-related swelling and some cold intolerance. Ms. Ard told Dr. Freeland she did not think she could return to her old job. He ordered a Residual Functional Capacity Test and asked her to return In a month. He continued her on a therapy program for strengthening and conditioning.
The Functional Capacity Evaluation summary report of the Human Performance Center in Ridgeland was attached to Dr. Freeland's records. The testing was done August 19 and 20, 1998, at the referral of Dr. Freeland. The therapist noted that Ms. Ard appeared hesitant at first but was able to overcome her fears and demonstrate consistency of performance and maximum effort on the tests. The therapist noted there were no overt pain behaviors. The therapist concluded that Ms. Ard had significant deficits in strength, endurance and manipulation of both arms and handling of objects. He said her physical abilities did not match the description of her job at Marshall Durbin/Peco Foods, and he did not believe her job could be modified to allow her to return. He recommended a progressive work hardening and endurance program.
Dr. Freeland released Ms. Ard as having reached maximum medical improvement on September 17, 1998. He assigned a 5% permanent partial impairment to her right hand and 5% permanent partial impairment to her left hand solely as a result of the residuals of her carpal tunnel syndrome. Dr. Freeland also dictated:
After carefully considering the pleadings, pretrial statements, stipulation about average weekly wage, lay and medical evidence, the demeanor of the witnesses at the hearing, and the applicable law, the Administrative Judge finds as follows:
1. Barbara Ard received an admittedly compensable, work-related injury to both her hands on or about January 17, 1997.
2. Ms. Ard's average weekly wage on January 17, 1997, was $279.59, as stipulated by the parties.
3. Because of the work injury, the claimant was temporarily totally disabled from January 17, 1997, until September 17, 1998, the date Dr. Freeland released her as having reached maximum medical improvement, except for those days during that time when she worked and earned wages.
4. Because of the work injury to her hands, Ms. Ard has suffered a permanent occupational disability or industrial loss of use of 55% of each hand. She has undergone a surgery to each hand, and Dr. Freeland has assigned a permanent impairment rating of 5% to each hand and significant restrictions. According to Dr. Freeland, Ms. Ard can no longer do repetitive forceful pinching or grasping required of most assembly line work. She is restricted from lifting more than ten pounds. She cannot climb, work at heights, do consistent overhead work, or continuous work with the arm extended. She cannot hammer or use torque tools such as wrenches or screwdrivers. Both Dr. Freeland and the physical therapist who administered the functional capacities test have opined that Ms. Ard can no longer return to the job she was doing at Marshall Durbin.
Ms. Ard is quite capable of gainful employment,
however, and at the time of the hearing she was working as a cashier at
a store. She lives in Jackson and has the Hinds-Rankin-Madison-County economies
and the many prospective employers in the Greater Jackson area within easy
accessibility to her home. She has a high school diploma and certificates
in certified nursing assistant, printing, and retail sales work. She was
articulate and pleasant in appearance at the hearing. Ms. Ard can most
assuredly sustain employment earning minimum wage. On the other
hand, there are many employment doors that are now
closed to her because of the work injury to her hands, as she is restricted
to very light or sedentary work without repetitive
motion. She could not work in a cold environment
such as a chicken processing plant, or do assembly line work, painting
or
wallpapering, certified nursing assistant work
giving direct care to patients, or any other work in the upper end of light
employment, or in medium or heavy exertional
jobs.
5. The employer has paid temporary total and permanent
partial disability benefits in the approximate amount of $11,766.12
and is entitled to credit for the payments already
made.
IT IS THEREFORE ORDERED that the employer pay workers' compensation benefits to the claimant as follows:
1. Temporary total disability benefits at the
rate of $186.39 per week beginning January 17, 1997, and continuing until
September 17, 1998, with credit for any such
payments already made by the employer or for wages earned by the claimant
during this time;
2. Permanent partial disability benefits at the
rate of $186.39 per week beginning September 18, 1998, and continuing for
a
period of 165 weeks, with credit for all such
payments already made by the employer.
3. Penalties and interest on all due and unpaid compensation benefits;
4. Provide medical services and supplies as required
by the nature of the claimant's injury and the process of her recovery
therefrom pursuant to Mississippi Code Annotated
71-3-15 (1995),
General Rule 12, and the Medical Fee Schedule.
SO ORDERED, this the 17th day of November, 1999.
LINDA A. THOMPSON
ADMINISTRATIVE JUDGE
ATTEST:
Brenda H. Goolsby, Secretary