MWCC NO. 97 10551-G-0820
| JOHN E. HARRIS, SR.
vs. COOPER TIRE & RUBBER COMPANY
|
CLAIMANT
EMPLOYER
|
REPRESENTING CLAIMANT:
Honorable John Kirkham Povall, Attorney at Law,
Cleveland, Mississippi
REPRESENTING DEFENDANT:
Honorable J. Hale Freeland, Attorney at Law,
Oxford, Mississippi
The Commission heard the above styled cause on June 25, 2001 in the offices of the Mississippi Workers' Compensation Commission in Jackson, Mississippi on the Employer and Carrier's "Notice of Appeal to Mississippi Workers' Compensation Commission".
Having heard the arguments offered on behalf of the parties and having thoroughly studied the record and the applicable law, the Commission affirms the "Order of the Administrative Judge" dated February 2, 2001.
SO ORDERED, this the 27th day of June, 2001.
MISSISSIPPI WORKERS' COMPENSATION COMMISSION
BY: BARRETT SMITH
LYDIA QUARLES
COMMISSIONERS
ATTEST:
Jo Ann McDonald, Secretary
___________________________
MWCC NO 9710551-G-0820
| JOHN E. HARRIS, SR.
vs. COOPER TIRE & RUBBER COMPANY |
CLAIMANT
EMPLOYER
|
REPRESENTING THE CLAIMANT:
John Kirkham Povall, Esquire
P. O. Box 1199, Cleveland, MS 38732-1199
REPRESENTING THE EMPLOYER:
J. Hale Freeland, Esquire
1006 Van Buren Avenue, Oxford, MS 38655
On or about April 14, 1997, claimant developed occupational pneumonia as the result of exposure to chemical irritants in the course of his employment as a banbury operator for Cooper Tire & Rubber Co. After a hearing on all issues was held before Administrative Judge Virginia Wilson Mounger on April 11, 1999, she entered an order on August 11, 1999 finding as follows: (1) claimant sustained a work-connected injury in the form of a pulmonary condition for which he is entitled to temporary total disability benefits and medical benefits, and (2) the medical evidence does not support a finding that claimant has a permanent impairment of any nature.
Both parties appealed the Order of Administrative Judge to the Commission, and on January 4, 2000, the Commission entered an Order affirming the finding that claimant sustained a work-connected injury. The Commission remanded this cause to the Administrative Judge for further consideration of the issue of permanent disability. In so holding, the Commission noted that (1) Dr. Mansel, claimant's treating physician, testified that claimant should not return to his pre-injury work environment, (2) claimant testified credibly that his production and thereby his wages had decreased from $24.00 to $17.00 per hour because he could not work at his pre-injury level, and (3) the employer representative testified that although claimant's pay had probably increased since the injury, the increase may be due in large part to a general wage increase.
A second evidentiary hearing was held before this
Administrative Judge on September 12, 2000. Upon the submission of additional
evidence regarding claimant's post-injury wages, the record was closed
in November 2000. Per the Full Commission Order of January 4, 2000, the
only issue to be determined is whether claimant has a permanent disability
attributable to his injury.
The employer will pay all medical services and
supplies required by the nature of claimant's injury and the process of
his recovery under Section 71-3-15
and the Medical Fee Schedule.
The only issue is the existence and extent of
permanent disability attributable to claimant's work-connected injury on
April 14, 1997.
Claimant is a 50-year-old resident of Clarksdale, Mississippi. He is a high school graduate and has two years of college. He has been a member of the Army Reserve for the past twenty-six years, and he currently holds the rank of Staff Sargent.
He has worked as a banbury operator for twenty-six of his twenty-eight years with the employer. As a banbury operator, he lifts, carries and dumps 50-pound sacks of chemicals into a hopper. The chemicals are in dry form, such that dumping the sacks causes dust to rise from the hopper. Claimant estimated that he dumps 100 to 125 sacks a day, depending on the type of rubber produced by the employer that day.
On April 4, 1997, he developed occupational pneumonia as the result of exposure to chemical irritants in the course of his employment as a banbury operator for Cooper Tire & Rubber Co. His primary treating physician, pulmonologist Dr. J. Keith Mansel, treated claimant conservatively from June 9, 1997 to July 7, 1997. Claimant was off work a total of approximately seven weeks before he reached maximum medical improvement on July 7, 1997. Dr. Mansel concluded claimant had pulmonary fibrosis, as he had fibrotic scarring in both lung bases. Dr. Mansel also concluded that the scarring was permanent that claimant would experience shortness of breath and fatigue with exertion because of this condition, and that his condition would thereby interfere with his capacity to perform his job as a banbury operator. Dr. Mansel did not assess a permanent impairment rating or permanent work restrictions other than to recommend that claimant not return to his prior work environment.
Contrary to Dr. Mansel's recommendation, claimant did return to his former work environment after he reached maximum medical improvement on July 7, 1997. He has continued to perform his former job as a banbury operator eight hours a day, from 7:00 a.m. to 3:00 p.m., with one 40-minute lunch break at 11:00 a.m. He testified that the employer installed an improved ventilation system with two exhaust fans four months after the date of injury, but that it does not remove all the dust or fumes.
Consistent with his testimony at the first evidentiary hearing, claimant testified that co-employee Michael Allen, the utility person charged with bringing him raw materials every thirty minutes, performs his work for him while he takes extra five to ten-minute breaks. Claimant also testified that his job requires him to stand unless he is on break, that shortness of breath and difficulty breathing resulting from the work-connected injury require him to take more frequent rest breaks than the number allowed under the union contract, and that he cannot perform his job as a banbury operator without these more frequent rest breaks. He further testified that Allen's assistance has increased since the first hearing on April 8, 1999. He specifically testified that Allen may run two of approximately one hundred thirty batches a day for him, and that Allen may also give him one to two extra breaks a day.
Claimant testified that his supervisor in July 1997, Tarzan Reddix, knew that Allen provided him with extra breaks, but that Reddix did not "say anything." He also testified that his current supervisor, Shane Parker, works on another floor from his work station, and that Parker does not often visit his work station but he probably knows that Allen gives him extra work breaks because his production has decreased from 144 to 146 batches per day to 123-130 batches per day. Claimant expressed concern that Allen's assistance will end after the litigation is concluded, and that he will then run even fewer batches for which he will be disciplined and ultimately discharged. He testified that the employer are "fairly evil people and they'll hold something against you."
Claimant testified that, since April 2000, he runs the mill and books (punches holes in) tubes when he completes his work as a banbury operator. He earns extra money when he performs this extra work. However he now declines overtime offers because of his diminished physical capacities. He also testified that although his wages increase in proportion to the speed with which he runs the banbury, all employees' wages have increased in the last three years pursuant to the collective bargaining agreement. He further testified that the plant went from a six to a five-day work week in 1997, that his wages vary depending on the type of material run by the employer, and that the material run by the plant is based on product demand, not his physical impairment. He also testified that all the operators' salaries were recently reduced by $.20 a unit because the industrial engineers had earlier miscalculated their production quota following the installation of some the new equipment. On cross-examination, claimant testified that he has not recently sought medical treatment for his condition, that he had not had pneumonia since 1997, and that he has not looked for any other kind of work since reaching maximum medical recovery on July 7,1997. He also has not ask the employer for extra consideration because "they will want to take your head off and get smart with you." Claimant testified that he planned to work only another year and a half, and that he was "not going to take anything off them. They're not going to treat me like a child."
Claimant admitted that he has smoked cigarettes for twenty-eight years, and that he has not missed work except for guard duty and vacation since 1997. He testified that he takes vacation time instead of sick time because points are deducted from employees after they take a certain amount of sick leave, that the point system is part of the employer's progressive disciplinary program, and that "its easier to get rid of" employees from whom points have been subtracted.
Tarzan Reddix, a former employee of the employer for thirty years, testified that he had also known claimant for thirty years and that he was claimant's former supervisor until he retired in April 1999. Reddix testified that claimant returned to the same job after the injury, that he did not notice any difference between claimant's job performance before and after the injury, and that claimant always did a good job and made production after returning to work in July 1997.
Reddix also testified that claimant did not take any extra work breaks to his knowledge, but that his office was not on the same floor as claimant's work area and that he visited claimant's work area only three or four times a day over an eight-hour period. Reddix also testified that although he did not observe claimant throughout the day, he monitored claimant's production from the control room and "knew what he was doing." He admitted that Michael Allen may have given claimant extra breaks without his knowledge, that Allen was not allowed to give claimant extra breaks without authorization from management, and that claimant would be disqualified from working as a banbury operator if he could not perform his job without extra assistance.
Shane Parks, foreman of the mill room and claimant's supervisor since April 1999, testified that although he and claimant work on different floors, he visits claimant's work area two or three times a day. He also testified that claimant is a good worker who makes production. He further testified that employees are allowed two ten-minute breaks and one twenty-minute lunch break per day according to the union contract, that most employees generally roll their morning and afternoon breaks into their lunch break so that they can take a forty-minute lunch break, and that claimant elected to do this.
Parks testified that claimant does not take any extra work breaks to his knowledge, and that he would know if claimant shut down the mixer and took a break, as even five-minute skips are shown on the computer. However he also testified that he might not know whether claimant takes extra breaks if he is relieved by a co-employee. Parks testified that part of Michael Allen's job is to relieve claimant during union breaks, that he would know if Allen does not perform his other job functions because he provides claimant with extra break time, and that he would refer claimant to the personnel department if he could not run the banbury without extra break time. He estimated that it takes less than three minutes to run a batch generally, although he was not sure how long it would take to load the hopper. Parks also testified that employees are allowed a certain number of sick days a year with no penalty.
Terry Champion, human resources manager for the employer, testified that claimant is a good worker whose production has exceeded the minimum since returning to work. He is also rarely absent from work. After returning to work in July 1997, he took three and a half days of vacation. In 1998, he took five separate personal leave days. In 2000, he took two weeks and two days of vacation. Also, since returning to the same job in July 1997, claimant has not made any complaints regarding his ability to work. Champion testified that he is not aware of any problems that claimant has performing his job or of any need for assistance to perform his job. He testified that he visits claimant's work station two or three times a month and stays for five to fifteen minutes.
Champion testified that in late 1997 or early 1998, the employer changed from a six-day to a five-day work week. Also, pay rates were adjusted downward in the summer of 2000 to adjust for incorrect pay rates which the banbury operators had received the summer before. The higher pay rates resulted from an engineering miscalculation following the installation of new equipment and affected all banbury operators. Champion defined job expectancy as the minimum pay set by industrial engineers through time studies.
Champion testified that the banbury operators' pay also fluctuates depending on the kind of stock run by the plant. The pay for low modular stock is higher because it takes longer to run than bias. The stock run by the plant depends on customer demand, not claimant's physical capacity. Champion also testified that claimant performs other jobs such as booking rubes and running the mill when he finishes his work as a banbury operator or if rubber is not run for some reason, and that the rates for this work may be higher or lower than his work as an operator. He further testified that the employer wants to retain claimant as good employees are hard to find. He stated that if claimant or any other employee cannot not perform his job, he will be reassigned to another job in the plant as there are always other jobs available. However he testified that the employer cannot guarantee the same pay scale, and that claimant holds one of the top three or four paying jobs in the plant.
Champion testified that an employee is allowed eight sick days a year without any penalty points being assigned. If an employee exceeds this limit, he/she receives six points for sickness in the family. If an employee receives more than forty points in one year, he/she receives one warning. He testified that in 2000, claimant had not taken any sick days to date, and that he also did not take any sick days in 1997 or 1998.
The employer's payroll administrator, Beth Carpenter, testified that she summarized claimant's pay records and compared them to those of other banbury operators. She testified that, during the year before the injury, claimant worked an average of 49.5 hours per week (when the plant was open five to six days a week), his production rate was 161 unit hours, he averaged earning $15.66 per hour, and his average weekly wage was $775.1.8.
From July 20, 1997, when claimant returned to work after the injury, to July 12, 1998, he worked an average of 41.4 hours per week (as the plant was open only five days a week), his production rate was 186 unit hours, he averaged earning $16.79 per hour, and his average weekly wage was $694.56.
From July 1998 to December 1999, he worked an average of 45.4 hours per week, his production rate was 185 unit hours, he averaged earning $17.24 per hour, and his average weekly wage was $719.52.
From January 2000 to May, 21, 2000, he worked an average of 42 hour's
per week, his production rate was 162 unit hours, he averaged earning $17.62
per hour, and his average weekly wage was $736.01. Thus, like other banbury
operators, his pay rate and average weekly wage increased
after the injury although the number of hours that he worked decreased.
Carpenter testified that the earnings of other banbury operators (Exhibit
12) are consistent with claimant's earnings. She testified that all banbury
operators earned less money in 1999 due to a mixer shut down.
1. Claimant has a permanent medical impairment. Dr. Mansel, claimant's treating pulmonologist, testified that claimant has fibrotic scarring in both lung bases, that the scarring is permanent, and that this condition would result in shortness of breath and fatigue which would interfere with claimant's capacity to perform his current job. Claimant testified that he is physically unable to perform his job at his pre-injury level of performance, and that he requires assistance from a co-employee in order to perform his job as a banbury operator.
2. Claimant's permanent medical impairment has resulted in a loss of wage earning capacity. A wage statement showing claimant's post-injury wages and calculations based on those wages have been marked Exhibit Number 14. However it is difficult to compare claimant's pre and post-injury wages dollar for dollar, as there are numerous variables involved in this comparison which do not relate to claimant's ability to perform his job. Lay testimony indicates the plant moved from a six-day work week to a five-day work week in 1997. Also, claimant's pay fluctuates depending on how much product he runs, what product he runs, other jobs that he may perform after he finishes his work as a banbury operator, and, during the summer of 2000) corrections to his pay because of a prior miscalculation by the engineers in how his productivity should be assessed. Moreover, some weeks and months have been omitted from his post-injury wage statement.
Also, even if claimant had no actual loss of wages and a presumption thereby applied that he had no loss of wage-earning capacity attributable to the work-related injury, he could rebut the presumption with proof that his wages are the result of considerations other than his ability to justify payment on the merit of his labor. V. Dunn, The Law of Workers' Compensation Section 68 (3rd ed. 1982).
Claimant alleges that he earns less money now than he did before the injury. He also alleges that his wages do not represent his wage-earning capacity because he is physically unable to work as a banbury operator without the assistance of Michael Allen, the utility man who brings him raw materials. Claimant's undisputed testimony establishes that his job requires him to stand unless he is on break, that shortness of breath and difficulty breathing which result from his injury require him to take more frequent rest breaks than the number allowed under the union contract, and that he cannot perform his job as a banbury operator without these more frequent rest breaks. He further testified that Allen's assistance has increased since the first hearing on April 8, 1999. He specifically testified that Allen gives him one to two extra breaks a day.
Allen did not testify at the second evidentiary hearing on October 2, 2000. However he testified at the hearing on April 8, 1999 that claimant was weaker when he returned to work after the injury, that his strength had not yet returned to pre-injury levels, and that he had provided claimant extra assistance for this reason. When asked if he gave claimant more breaks because he required more rest than he did before the injury, Allen responded, "Oh, yeah, definitely."
Although claimant's supervisors and human resource manager testified that they did not know that Allen provided claimant extra assistance to perform his job, they also testified that Allen could give claimant extra breaks without their knowledge, as claimant's work station is two floors above their offices. The employer's lack of knowledge in this regard must also be considered in the context of the supervisors' and human resource manager's testimony that the number and duration of work breaks is governed by the union contract, that Allen is not allowed to give claimant extra breaks without authorization from the employer, that Allen never requested or secured such authorization, that claimant's inability to work without extra breaks would disqualify him from the job of banbury operator, that said disqualification would result in claimant being assigned to another job in the plant, and that the employer could not guarantee that claimant would not be assigned to a lower paying job - especially since his job is one of the three or four highest paying jobs in the plant.
Considering undisputed and corroborated testimony that (1) Michael Allen provides additional assistance to claimant at claimant's request because of incapacity resulting from the work-connected injury, and that (2) claimant would be disqualified from his high-paying job as a banbury operator if he could not work without said extra assistance, this Administrative Judge finds that claimant cannot perform some of the acts and duties incidental to his job because of his functional impairment and, thereby, that he must not be denied a finding of some degree of loss, regardless of the amount of his actual post-injury wages. O'Neal v. Multi-Purpose Mfg. Co., 140 So.2d 860 (Miss. 1962).
Considering the record as a whole, including the nature of claimant's impairment, medical evidence that he should not have returned to his former environment, his post-injury employment as a banbury operator with the assistance of co-worker Michael Allen, and his pre and post-injury wages, among other industrially related factors such as his age, education, work history, and geographic location, this Administrative Judge finds that claimant has sustained a loss of wage-earning capacity which entities him to receive permanent partial disability benefits at the rate of $50.00 a week.
2. Claimant is entitled to permanent partial disability benefits at the rate of $50.00 per week for 450 weeks beginning July 7, 1997, the date of maximum medical improvement, with proper credit for compensation paid by defendant during this period.
3. Claimant is entitled to all medical services
and supplies required by the nature of his injury and the process of his
recovery as provided in Section 71-3-15
and the Medical Fee Schedule.
IT IS THEREFORE ORDERED that employer pay compensation benefits to claimant as follows:
1. permanent partial disability benefits at the rate of $50.00 per week for 450 weeks beginning July 7, 1997, with proper credit for compensation paid by defendant during this period; and
2. all medical services and supplies required by the nature of his injury and the process of his recovery as provided in Section 71-3-15 and the Medical Fee Schedule.
SO ORDERED, this the 2nd day of February, 2001.
DENEISE TURNER LOTT
ADMINISTRATIVE JUDGE
ATTEST:
Jo Ann McDonald, Secretary