MWCC NO. 98-16319-G-4398
RICKY GLENN PERRY CLAIMANT
vs.
DEEP SOUTH EQUIPMENT COMPANY
EMPLOYER
AND
HIGHLANDS INSURANCE GROUP
CARRIER
APPEARING FOR CLAIMANT:
Honorable John G. Jones, Attorney at Law, Jackson,
Mississippi
APPEARING FOR DEFENDANTS:
Honorable Susan Runnels, Attorney at Law, Jackson,
Mississippi
The Commission heard the above styled cause on July 10, 2000 in the offices of the Mississippi Workers' Compensation Commission in Jackson, Mississippi on Employer/Carrier's Petition for Review ".
Having heard the arguments offered on behalf of the parties and having thoroughly studied the record and the applicable law, the Commission affirms the "Opinion of the Administrative Judge" dated March 8, 2000.
Employer/Carrier's "Motion for Admission of Affidavit into Evidence", filed with the MWCC June 29, 2000, is denied.
SO ORDERED, this the 12th day of July, 2000.
MISSISSIPPI WORKERS' COMPENSATION COMMISSION
BY: Ben Smith
Barney Schoby
Beverly Bolton
COMMISSIONERS
ATTEST:
JoAnn McDonald, Secretary
___________________________
RICKY GLENN PERRY CLAIMANT
vs.
DEEP SOUTH EQUIPMENT COMPANY
EMPLOYER
AND
HIGHLANDS INSURANCE GROUP
CARRIER
APPEARING FOR CLAIMANT:
John Griffin Jones, Attorney at Law, Jackson,
Mississippi
APPEARING FOR EMPLOYER/CARRIER:
Susan Runnels, Attorney at Law, Jackson, Mississippi
Proceedings were initiated in this cause by the filing of claimant's Petition to Controvert on December 7, 1998, alleging an injury to claimant's left upper extremity occurring in the course and scope of his employment with Deep South Equipment Company (hereinafter "Deep South") on May 5, 1998. Claimant's injury was admitted by the employer and carrier. At the hearing on the merits of this petition, held on February 1, 2000 in the Lincoln County Courthouse in Brookhaven, Mississippi, the parties stipulated to the following:
1 . The claimant suffered an admittedly compensable injury to his left upper extremity.
2. The claimant reached maximum medical improvement on March 3, 1999.
3. The employer and carrier have paid ail temporary
total disability benefits due to the claimant, and have paid 20 weeks of
permanent partial disability benefits based upon the 10% impairment rating
established by the claimant's treating physician with
respect to the left upper extremity.
4. The claimant's average weekly wage at the time
of injury was $498.88.
As a result of a dispute over the average weekly wage, the record was held open for 30 days in order for the parties to reach a stipulation regarding the claimant's average weekly wage during the 52 weeks preceding the injury. By letter from claimant's counsel to employer and carrier's counsel dated February 7, 2000, a copy of which was forwarded to the undersigned, the parties stipulated to the $498.88 figure.
The undersigned was informed of this stipulation on February 8, 2000, when the letter from claimant's counsel. was received by the Commission. Fourteen days later (and, incidentally, after this order had been written), the employer and carrier sought to introduce evidence relative to a truck that was provided by Deep South to the claimant.1 Two days thereafter, claimants counsel objected to the affidavit.
It is material to the ruling on this issue to understand that the claimant testified on direct examination that in addition to his wages, he was provided a company vehicle as well as gasoline, maintenance and upkeep, and insurance coverages on the vehicle at the expense of the employer. On redirect, he testified to the vehicle expenses he was incurring in his present employment, where he does not have the benefit of a company vehicle.2 Deep South had a company representative present who could have testified at the hearing but chose not to do so. Nor did Deep South indicate that it had any interest in rebuttal testimony relative to the issue of the vehicle. It was only after receipt of correspondence from employer and carrier's counsel on February 23, 2000 that the undersigned was made aware that the employer and carrier desired to expand the evidence in the record.
In this case, the record was held open for one reason: in the hope that the parties could stipulate to the average weekly wage. This they did. The parties were also allowed the opportunity to submit letter briefs on the issue of the impact of a company vehicle on the issue of average weekly wage. This Ms. Runnels' did, citing Mississippi Code Annotated, section 17-3-31 (1972) and in addition, the affidavit of Gerald Boudreaux. Mr. Jones offered Fowler Hereford Farm v. Madden, 207 So. 2d 662 (Miss. 1968) as supporting the claimant's position on the value of a company vehicle as a part of average weekly wage.
It is inappropriate for the employer and carrier to do by affidavit what they could have done at the hearing where claimant's counsel would have the opportunity to cross-examine the witness providing testimony. Although the Commission is not bound by the rules of evidence, it is bound to act with reason in accepting or rejecting evidence. The affidavit will be rejected as proof in this case because fundamentally it is hearsay, it allows the claimant no opportunity to cross-examine the testimony, and it was proffered three weeks after testimony in this case had been completed. Employer and carrier may pursue Rule 8 if they so choose.3
The claimant, Ricky Glenn Perry, is a 35 year-old resident of Bogue Chitto, Mississippi. He testified that he quit school in the tenth grade and obtained a GED in approximately 1986. He is a certified diesel mechanic, having completed a two year course of study at Copiah-Lincoln Junior College in 1986-87. Additionally, claimant possesses over 30 certifications from General Motors on different classes of maintenance, including transmissions, rear ends, drive-train driveability and so forth.
Claimant testified that the overwhelming majority of his work has involved heavy mechanics. His first job when he quit school was doing mechanic work at his father's Gulf service station in Brookhaven. He worked for Auto, Shack setting up stores in Vicksburg, Natchez and Pearl for a period of approximately 18 months, which job generally involved selling parts. Claimant next worked for Wade Robinson Chevrolet in Brookhaven as a heavy mechanic for a period of one year. White in school at Copiah-Lincoln, he worked part-time in the truck stop at Wal-Mart as, a tire changer, fueler, washer and mechanic.
After completing his certification in diesel mechanics in 1987, the claimant testified that he began working for King-Salyer Chevrolet in Brookhaven. He described his duties as very heavy labor, removing transmissions and doing the general duties of a diesel mechanic. He stated that he used his left arm on a repetitive basis lifting heads and transmissions weighing between 75 and 100 pounds. No office work was involved in this job. The claimant testified that after the injury to his left arm, he would be unable to perform the job that he performed at King-Salyer. He testified that while diesel mechanics could earn as much as $14.00 per hour at King-Salyer, the hourly rate was based upon the type of work the mechanic was asked to do on the automobiles, and the type of work claimant was most often given - driveability testing - paid only $3.00 or $4.00 an hour. Claimant worked for KingSalyer for a period of five years, leaving the work for a job paying more money.
Claimant next worked for Herring Gas Company in Meadville, Mississippi. He described his duties as "keeping 160 to 170 vehicles running," which duties were in fact heavier and more demanding on both upper extremities than was any of his previous work. Claimant worked three years for Hearing Gas Company before being hired by Deep South in January, 1996.
Claimant worked for Deep South from January, 1996, through the date of his injury. He testified that the employer is engaged in the sale, lease, rent and service of forklifts manufactured by Hyster. The employer had a contract with Georgia-Pacific to service all of its forklifts, and the claimant was the mechanic dedicated to the Georgia-Pacific contract. Claimant's work took place in the Georgia Pacific facility where he kept 20 forklifts running at all times. Claimant described the physical requirements of the job as very heavy, requiring extensive use of both upper extremities lifting weights up to and exceeding 100 pounds, particularly in the operation of changing the tires on forklifts. Claimant had one other employee with him at the Georgia-Pacific facilities, but claimant testified that both employees were required to do the full physical requirements of the job.
Claimant observed a job description for a position titled "Shop foreman/mechanic" produced in connection with a Functional Capacities Evaluation (hereinafter "FCE") conducted at the conclusion of the medical treatment rendered by Dr. William G. Geissler. The job description states that the strength requirements for the job are "heavy," and require exertion of 50 to 100 pounds of force occasionally, 25 to 50 pounds of force frequently, and 10 to 20 pounds of force constantly to move objects. Claimant testified that all of his work preceding his injury fit within this job description, and thus could be regarded as "heavy" within the meaning of the Dictionary of Occupational Titles.
On the date of the injury, claimant testified that he was working an "outage" at Georgia-Pacific, and was repairing a hydraulic hose on a forklift. While attempting to fit a synflex hose into one of the hydraulic hoses, the hose slipped and claimant attempted to grab it with his left arm. Upon doing so, he felt a pop in his left shoulder and immediate numbness through his left arm. Claimant was immediately sent to Dr. Brantley Pace in Monticello, Mississippi, for treatment. After an initial treatment, the claimant was referred to Dr. George Truitt, an orthopaedic surgeon in Jackson, Mississippi.
Dr. Truitt's records are not in evidence; however, the claimant testified that Dr. Truitt did a surgery on his left arm to "place the biceps tendon back in the groove." Claimant was then referred to Dr. Geissler, orthopaedic surgeon in Jackson, Mississippi, for a second opinion.
Dr. Geissler testified by deposition that he initially saw the claimant on August 12, 1998, some two months following the surgery performed by Dr. Truitt, and at that time diagnosed impingement from a partial rotator cuff tear in the left shoulder. Dr. Geissler performed an arthroscopy for decompression on October 13, 1999. Dr. Geissler's findings at surgery were consistent with his pre-operative diagnosis. Following the surgery, Dr. Geissler kept the claimant off work and prescribed a four month physical therapy regimen.
Dr. Geissler ordered an FCE at the conclusion of physical therapy. The FCE was performed at the Human Performance Center in Brookhaven, Mississippi, on February, 1.5 and 16, 1999, and revealed that the claimant was cooperative and willing to work to his maximum abilities through all test items, thus yielding a valid result. In sum, Dr. Geissler was of the opinion, supported by the FCE, that the claimant was permanently -restricted from a medical standpoint from returning to his former work with Deep South and to any prior work as a diesel mechanic. Dr. Geissler permanently restricted the claimant to 'medium' employment, with weight restrictions as set forth in the FCE precluding continuous lifting of any objects over 10 to 32 pounds. As stated, the job description for all of claimant's preinjury employment, including his Deep South employment as "Shop foreman/mechanic," contain strength requirements far exceeding claimant's abilities as established by the FCE. Accordingly, Dr. Geissler testified that while the claimant had a 10% permanent partial medical impairment to the left upper extremity based on the AMA Guidelines, his functional impairment resulting from this medical impairment would preclude the claimant from performing the substantial acts of the usual employment he held at the time of injury - this as a direct and proximate result of the injury and subsequent surgeries, permanent impairment, limitations and restrictions.
Testimony was elicited from the claimant concerning a recommendation in the FCE for a work hardening program to improve claimant's functional impairment. Claimant testified that, in a discussion with Dr. Geissler, the physician neither encouraged nor discouraged the work hardening program, saying that it would probably not improve the claimant significantly. On the basis of this advice from the physician, and the fact that claimant had undergone a physical therapy regime which had lasted four months, he declined the work hardening program. On cross-examination of the claimant, the employer and carrier attempted to establish that the claimant rejected Dr. Geissler's advice that he undergo the work hardening program. A review of Dr. Geissler's deposition indicates that he certainly did not recommend against the work hardening program, but there is nothing in the deposition to indicate that the claimant rejected a positive recommendation from Dr. Geissler that he submit to the program. In the end, Dr. Geissler's deposition fails to establish that the completion of a work hardening program would have altered or improved the permanent nature of the claimant's medical or functional impairment, limitations and restrictions.
Following the date of maximum medical improvement on March 3, 1999, claimant testified that he returned to Deep South and requested work consistent with the FCE and Dr. Geissler's permanent limitations and restrictions. It is his unrebutted testimony that company personnel informed him at that time that he could not return to work unless he was "100%" and that Deep South had no "light duty" or "medium duty" work available to him. Significantly, the employer and carrier called no witness at hearing, and put on no evidence, to rebut this credible testimony by the claimant.
Claimant's exhibit 5 is a list of 15 jobs sought by the claimant, unsuccessfully, in March and April, 1998. Notwithstanding this search, which is certainly reasonable and adequate, the claimant testified that he was hired by Auto Care Center in Brookhaven, Mississippi, in late April, 1998. Claimant continues to work for Auto Care Center.
Claimant described his work at Auto Care Center
as "light mechanicing" oil changes, tune-ups, brake work, and diagnostic
work involving the use of computers. He testified that the only use to
which he puts his left upper extremity in performing this job is for bracing
and holding light objects. He testified that all of the work with tools,
as well as all of the lifting over approximately 20 pounds, is done with
his right hand only. He has an assistant available to him at all times
for heavy lifting and any work that he cannot accomplish essentially onehanded.
He further testified that he began this employment at $8.00 an hour, was
raised to $10.00 per hour in May, 1999, and then was raised to $12.00 per
hour in December, 1999. Significantly, however, the claimant gets no overtime
with Auto Care Center, nor does he receive a company vehicle as was provided
him by Deep South, or any insurance coverage. Thus, the claimant has clearly
suffered a loss of wages as a result of this injury, a finding discussed
below.
After considering the lay and expert testimony adduced in this cause, together with the documentary evidence and the relevant law, the undersigned finds as follows:
1. The issue before the undersigned, as identified by the parties, is the extent of permanent disability suffered by the claimant as a result of an admitted injury to a scheduled member, the left upper extremity, within the meaning of Mississippi Code Annotated, section 71-3-17(c) (1972 and Supp. 1999).
2. Here, the evidence is unrebutted that the entirety of the claimant's work history consists of mechanic work, with the exception of 18 months in which he worked for Auto Zone. Subsequent to that Auto Zone employment, however, the claimant, like many blue-collar workers, sought to improve himself by obtaining a GED and certifications in heavy mechanics through completion of a course of work in a vocational/technical program offered through Copiah-Lincoln Junior College. From 1986 through the date of injury, the claimant worked exclusively in the field of heavy mechanics, specifically the field of diesel mechanics. The medical evidence unequivocally shows that, as a result of the admitted injury to his left arm, claimant is now precluded from returning to the field of diesel mechanics - the only field of work for which the claimant is qualified by reason of age, education and work background. Accordingly, the claimant is entitled to 100% loss of industrial use of the left upper extremity.
3. The fact that the claimant has obtained "other" employment within his limitations and restrictions speaks well for the claimant's character, credibility and personal drive and responsibility. However, his ability to perform "other jobs, unrelated to the worker's present employment" does not reduce the extent of the claimant's loss of industrial use of the scheduled member. Robinette v. Henry I. Siegai Co., No. 1999-WC-00044- COA (Miss. App. February 8, 2000), slip op. at p. 3-4.
4. Since actual wage loss (as distinguished
from loss of wage earning "capacity" as a result
of industrial incapacity) is one of the many factors, albeit a minor one,
in assessing the loss of industrial use of a scheduled member (see McGowan
v. Orleans Furniture, Inc., 586 So. 2d
163 (Miss. 1991)), it is important to note that this factor of wage loss
is met by the preponderance of proof in this case. At the time of hearing,
the claimant had an average weekly wage which was less than his average
weekly wage at the time of injury. In addition, unrebutted testimony reflects
that the claimant has not only been deprived of his post-injury employment
due to the company's inability to re-hire someone who is restricted to
work at the claimant's level, but resultingly the claimant is deprived
of the availability of the company vehicle, gasoline, maintenance and upkeep,
and policies of insurance covering its usage, making his wage loss substantially
greater than the actual computation which would be applicable were this
not a scheduled member case.4
IT IS, THEREFORE, ORDERED AND ADJUDGED that the employer and carrier provide to the claimant as follows:
1 . Temporary total disability benefits in the amount of $279.78 per week from May 5, 1998 through March 3,1999, with credit for sums previously paid and for the weeks in which wages were earned by the claimant during this period;
2. Permanent partial disability benefits in the amount of $279.78 per week commencing March 3, 1999, and continuing for a period of 200 weeks, with credit for the 20 weeks of such benefits based solely on the anatomical impairment rating previously paid by the employer and carrier;
3. Medical services and supplies pursuant to Mississippi Code Annotated, section 71-3-15 (1972 and Supp. 1999) for so long as the nature of the injury and the process of the recovery may require, with fees and charges to be limited to that allowed pursuant to the Mississippi Workers' Compensation Medical Fee Schedule; and
4. Penalties on unpaid amounts of compensation as appropriate and authorized by Mississippi Code Annotated, section 71-3-37 (1972) and interest at the legal rate.
SO ORDERED this the 8th day of March, 2000.
LYDIA QUARLES
ADMINISTRATIVE JUDGE
ATTEST:
Brenda H. Goolsby, Secretary
___________________________
1. This evidence was in the form of an affidavit of Gerald Boudreaux, secretarytreasurer of Deep South, dated February 17, 2000.
2. Without going into specifics of this redirect testimony, suffice it to say that the claimant testified that he currently expends approximately $150.00 a month for the vehicle he currently drives, in addition to his costs of procurement of the vehicle.
3. Perhaps the value of the affidavit to the case, even if it were to have been admitted into evidence by the undersigned, or to be admitted in the future under Rule 8, was best stated by claimant's counsel. His writing is so cogent to the issue that it is reiterated here: