MWCC NO. 95-01819-G-4440
                      95-15590-G-5167
                      00-08088-G-8792

TESSIE ECHOLS                                                                                                                                                                                                  CLAIMANT

VS.

CHROMCRAFT                                                                                                                                                                                                   EMPLOYER
AND
LIBERTY MUTUAL INSURANCE COMPANY
AND EMPLOYERS INSURANCE OF WAUSAU                                                                                                                                                CARRIER

REPRESENTING CLAIMANT:
John Leslie Baily, Esquire, Batesville, MS

REPRESENTING EMPLOYER/CARRIER:
George Read, Esquire, Oxford, MS
Ben Logan, Esquire, Tupelo, MS

This matter was heard by the Commission on September 10, 2001 pursuant to the Claimant's Notice of Appeal. The Claimant argues that the Order of Administrative Judge dated March 9, 2001 contains several errors which demand our attention, among them an error as to determination of average weekly wage,¹ an error as to benefits due for loss of use of the right upper extremity, and an error as to benefits due for loss of use of the left upper extremity. In the end, we amend the Judge's Order to increase the benefits due Claimant for the loss of use of her left upper extremity, and we affirm in all other respects.

The Claimant sustained three separate injuries during the course and scope of her employment with Chromcraft. The first, on July 15, 1994, was a slip and fall injury to her right index finger and wrist, and carpal tunnel syndrome. The carrier for Chromcraft at the time was Employers Insurance of Wausau. They admitted the injury, and paid both medical and disability benefits as a result. At the hearing before the Judge below, they also agreed to pay the Claimant permanent partial disability benefits for the 5 % impairment rating to her right upper extremity, plus penalties and interest.²

The second injury occurred on June 4, 1997 when the Claimant developed a repetitive motion type injury to her left upper extremity as a result of her work as a sewing machine operator. This injury was diagnosed as carpal tunnel syndrome and treated by Dr. James Calandruccio. The Employer's carrier at this time was Liberty Mutual Insurance Company. They likewise admitted the injury and paid both medical and disability benefits therefor.

The Claimant's third injury was to her left upper extremity and occurred on or about July 1, 1998. This injury was in the nature of tendinitis caused by her continuing work as a sewing machine operator. The Employer and Liberty Mutual also admitted the compensability of this injury.

At the hearing below, the parties agreed that the only issues to be resolved by the Judge were the extent of permanent disability attributable to the Claimant's June 4, 1997 left upper extremity injury, and whether the Claimant was entitled to the 10% penalty provided for in Miss. Code Ann. §71-3-37.³

The Administrative Judge made extensive findings of fact and conclusions of law addressing the extent to which Claimant has lost the use of her left arm for wage earning purposes as a result of the June 4, 1997 injury. Those findings and conclusions bear repeating as we agree with all of what the Judge said, except as to the extent of permanently disability.

The Administrative Judge pointed out that Dr. James Calandruccio treated Ms. Echols and assessed a 5% permanent medical impairment attributable to her June 4, 1997 injury. Dr. Calandruccio allowed Ms. Echols to return to work without restriction as of January 29, 1999.

Dr. Robert Christopher evaluated Ms. Echols in June 1999. He thought she had mild ulnar nerve entrapment on the left along with continuing carpal tunnel problems. Dr. Christopher rated Ms. Echols' impairment of the left arm at 19% and recommended she avoid work requiring repetitive use of the wrist and elbow, pushing or pulling more than 15 pounds, or lifting more than 15 pounds.

Dr. Howard Marker saw Ms. Echols on June 13, 2000 for left arm problems and also diagnosed carpal tunnel syndrome. He recommended Ms. Echols avoid any work requiring repetitive use of her wrists and elbows, or repetitive lifting, or lifting of more than 10 pounds.

In determining the extent of permanent occupational disability Ms. Echols suffered as the result of her left upper extremity injury, the Administrative Judge stated:

Considering (1) the nature of claimant's left upper extremity impairment, (2) the impairment rating assessed by Dr. Calandruccio, (3) the impairment rating and restrictions assessed by Dr. Christopher, (4) the findings and restrictions assessed by Dr. Marker, (5) claimant's work ethic as evidenced by her continued employment with the employer, (6) the difference between her pre and post injury wages, and (7) claimant's impaired ability to perform at her pre-injury level of functioning per her and Robert T. Lowery' s testimony, among other industrially related factors such as [her] age, education, work history and geographic location, this Administrative Judge finds that she currently has a 20% industrial loss of use of her left upper extremity attributable to her work connected injury.

In so holding, this Administrative Judge notes that a preponderance of the evidence indicates that claimant's continued employment as a sewing machine operator and upholsterer is contraindicated as (1) the medical evidence unanimously relates her left upper extremity symptoms to her repetitive work activities for the employer; (2) her condition has not improved and appears to have worsened since she resumed her repetitive work activities in January 1998; and (3) Dr. Christopher and Dr. Marker restricted her from repetitiVe work activities. However this Administrative Judge also notes that she has nevertheless continued to perform much if not substantially the same work for the same employer - albeit in pain and under some economic duress and with some reduction in wages.

As mentioned previously, we agree with and hereby endorse the Judge's comprehensive analysis of the evidence in this case, and her conclusion that Ms. Echols has lost the use of her left arm for wage earning purposes to an extent greater than the medical impairments reflect. However, our review and consideration of this evidence leads us to conclude that Ms. Echols has suffered a 35% loss of use of her left arm for wage earning purposes, and should be compensated accordingly.

The Order of Administrative Judge dated March 9, 2001 is therefore amended to provide that Ms. Echols be paid permanent partial disability benefits for a 35% loss of use of her left upper extremity, said benefits to be paid at the rate of $270.67 per week for a period of 70 weeks, commencing January 29, 1999. Penalties and interest as provided by Law are, of course, applicable to all installments not timely paid by the Employer/Carrier. In all other respects, the Order of Administrative Judge is affirmed.

SO ORDERED this the 23rd day of October, 2001.

MISSISSIPPI WORKERS' COMPENSATION COMMISSION
BEN BARRETT SMITH, CHAIRMAN
BARNEY J. SCHOBY, COMMISSIONER

ATTEST:
Jo Ann McDonald
Commission Secretary
 

1 The question of Claimant's average weekly wage was settled by stipulation of the parties at the hearing below and requires no further attention.

2 One of the Claimant's arguments to the Commission is that the Judge erred by not ordering the Employer/Carrier to pay these permanent disability benefits. However, given the stipulation by the Employer/Carrier that these benefits were due and would be paid with interest and penalty, it was not necessary for the Judge to include a more specific or compelling directive to this effect in her Order.

3 Another of the Claimant's arguments before the Commission is that the Judge erred by not awarding her additional permanent disability benefits based on an occupational loss of use of her right hand as a result of the July 15, 1994 injury. However, Claimant agreed at the hearing below that this was not an issue to be decided by the Judge, and that instead the Judge would only determine the extent of permanent disability attributable to the June 4, 1997 injury to her left arm. In any event, we do not find the Claimant's argument persuasive.