MWCC NO. 97-05411-G-3699
ROBERT JACKSON CLAIMANT
VS.
MIXON CONSTRUCTION COMPANY
EMPLOYER
AND
BUILDERS AND CONTRACTORS ASSOCIATION OF MS
CARRIER
SELF INSURERS FUND
REPRESENTING CLAIMANT:
Ellis Turnage, Esquire, Cleveland, MS
REPRESENTING EMPLOYER/CARRIER:
T. G. Bolen, Jr., Esquire, Jackson, MS
FULL COMMISSION ORDER
This matter was heard by the Commission on August 6, 2001 pursuant
to the Claimant's Notice of Appeal. This case centers entirely on the question
of whether Robert Jackson has sustained an occupational disability which
exceeds the functional loss of use of his injured left middle finger. The
Administrative Judge, in an Order entered April 20, 2001, held he did not.
I.
Mr. Jackson started work for Mixon Construction in 1995 or 1996 as a laborer. He helped pour concrete and erect metal buildings, work which required climbing and lifting. His prior experience consisted of auto mechanics, tractor driver, machine operator for Fruit of the Loom, and pumping gas. On March 25, 1997 Mr. Jackson slipped from a ladder and cut his left middle finger in the process. At the time his average weekly wage was $314.71.
Mr. Jackson underwent two surgeries on his finger and declined to undergo a third surgery which was recommended by two different physicians. On May 15, 1998 Mr. Jackson was assigned a permanent impairment rating of 67% to the left middle finger, which translated into a 13% loss of use of his left hand. Dr. William Geissler, his treating physician at the time, restricted Mr. Jackson from lifting more than 39 pounds with his left hand and from performing any production type work or operating fast moving machinery.
Mr. Jackson is right hand dominant. He did not return to work with Mixon but subsequently obtained work with Eddie's Construction performing clean-up duties three to four days per week for up to ten hours per day. This job paid minimum wage. Thereafter, Mr. Jackson was employed by Lacey Construction at about $7.00 per hour, and after that, he obtained work with Pieralisis Farms as a tractor driver. The work at Pieralisis Farms pays minimum wage and requires a six day work week at fourteen to fifteen hours per day.
Mr. Jackson testified that he currently can lift no more than twenty-five pounds with his left hand, and he can no longer climb. He also cannot operate power tools, a jackhammer, push a lawnmower or operate any other tool or machine that vibrates his hand. He complains of a constant burning type pain in his injured finger as well as increased sensitivity to pain in the tip of this finger when struck. He also stated the tip of the injured finger turns blue in colder weather.
II.
The Administrative Judge considered the nature of Mr. Jackson's injury and restrictions, his prior education and experience, his ability to return to the same or other suitable employment, and other relevant factors in an effort to determine whether and to what extent Mr. Jackson had lost the use of his finger for wage earning purposes. See Meridian Professional Baseball Club v. Jensen, 2000 WL 1499455 (Miss.Ct.App. 2000), slip op. at 3. Alumax Extrusions. Inc. v. Wright, 737 So.2d 416, 422 (Miss.App. 1998). In the end, the Judge held that Mr. Jackson had proven himself fully capable of performing comparably gainful post-injury employment and was otherwise without any loss of use of his finger greater than the 67% functional loss measured by his physician. While we agree with the analytical framework employed by the Judge, we ultimately differ with his conclusion, and therefore, reverse his Order.
In our estimation, Mr. Jackson has suffered a greater occupational loss because of the injury to his left middle finger, a loss which we find should be proportioned to the hand as a whole instead of being limited solely to the injured digit. It has been stated that "the better rule in compensation cases involving traumatic physical injury is that the result of the injury, shown by the facts in the particular case under review, must be looked to, and that the point of impact upon the body, or the location of the traumatic injury should not necessarily be controlling. Richev v. City of Tupelo, 361 So.2d 995, 997 (Miss. 1978), quoting Walter Bros. Builders v. Loomis, 187 So.2d 586, 589-590 (Miss. 1966). We think this is certainly the better rule in this case.
The nature of Mr. Jackson's injury, a severed flexor digitorum profundus, is such that the entire use of his left hand has been noticeably affected. Functionally speaking, Dr. Geissler found the loss of use of the hand to be approximately 13%. Mr. Jackson himself testified credibly to the continuing problems he has with the finger and to the limited use to which his left hand can now be put.
As for the occupational loss, Mr. Jackson is by no means left hand dominant. He also has managed to obtained other suitable employment, but at a lower hourly wage than before the injury which in turn requires that he work longer hours to make up the difference.
When we factor in all of the relevant factors as mentioned herein, we come to the conclusion that Mr. Jackson has, because of his injury, sustained a 25% loss of use of his entire left hand for wage earning purposes and should be compensated accordingly. The Order of Administrative Judge entered April 20, 2001 is, therefore, reversed. The Employer/Carrier is instead ordered to pay Mr. Jackson permanent partial disability benefits for a 25 % loss of use of his left hand, commencing May 16, 1998 and continuing for a period of 37.5 weeks at the rate of $209.81 per week. The Employer/Carrier may take credit for any permanent disability benefits previously paid, and shall pay interest and a 10% penalty as provided by Law on any installments of compensation not timely paid.
SO ORDERED this the 28th day of August, 2001.
MISSISSIPPI WORKERS' COMPENSATION COMMISSION
BEN BARRETT SMITH, CHAIRMAN
BARNEY J. SCHOBY, COMMISSIONER
LYDIA QUARLES, COMMISSIONER
ATTEST:
Jo Ann McDonald, Commission Secretary
MISSISSIPPI WORKERS' COMPENSATION COMMISSION
MWCC NO. 97-05411-G-3699
ROBERT JACKSON CLAIMANT
VS.
MIXON CONSTRUCTION COMPANY
EMPLOYER
AND
BUILDERS AND CONTRACTORS ASSOCIATION OF MS
CARRIER
REPRESENTING THE CLAIMANT:
Shannon Bruno, Esq., Cleveland, MS
REPRESENTING THE DEFENDANT:
S. Deann Thomas, Jackson, MS
T. G. Bolen, Jr., Jackson, MS
OPINION OF THE ADMINISTRATIVE JUDGE
Robert Jackson sustained a work-related injury to his left middle finger on March 25, 1997. Because the parties disagreed about the extent of Mr. Jackson's permanent disability, a hearing was held at the Washington County Courthouse in Greenville, Mississippi. Considering all of the facts, the Administrative Judge finds that Mr. Jackson is entitled to permanent partial benefits based on the medical impairment to his finger.
STIPULATIONS
At the hearing the parties stipulated to these facts:
1. Mr. Jackson sustained a compensable injury on March 25, 1997;
2. At the time of the injury Mr. Jackson's average weekly wage was $314.71;
3. Mr. Jackson attained maximum medical improvement on May 15, 1998;
4. The Employee/Carrier paid Mr. Jackson all of the temporary benefits to which he was entitled;
5. The Employer/Carrier provided medical services;
6. The Employer/Carrier paid Mr. Jackson $4,984.36 in permanent benefits; and,
7. Dr. William Geissler assigned an impairment rating of sixty-seven percent to Mr. Jackson's left middle finger, resulting in an impairment rating of thirteen percent to the left hand, resulting in an impairment rating of twelve percent to the left upper extremity, resulting in a seven percent to the body as a whole, according to the AMA Guidelines.
ISSUES
The parties identified these issues:
1.The extent of permanent disability attributable to the injury; and,
2. The related issue of loss of wage-earning capacity.
SUMMARY OF RELEVANT EVIDENCE
1. Robert Jackson
Robert Jackson, who was thirty-nine at the time of the hearing, completed the eleventh grade at Leland High School and in 1979 took a course in auto mechanics there. From 1982 until 1988, Mr. Jackson worked as a driver and mechanic at Falvey Motors in Detroit, where he earned $8.50 an hour.
Returning to Mississippi in 1988, Mr. Jackson was employed as a tractor driver at minimum wage for two years at Dunleith Farms in Leland. Next he worked for three years as a certified knitter at a Fruit of the Loom factory, where he ran seven machines and made $17.00 an hour. He then worked for Orlachack Farms in Arcola for a year at minimum wage. Subsequently, he was employed for a year by C & W Auto Sales in Greenville, where he earned $300.00 a week pumping gas and collecting car payments.
In 1995 or 1996 Mr. Jackson started working for the Employer as a laborer, at $7.00 an hour. He poured concrete and put up metal buildings, which involved climbing and lifting every day.
On March 25, 1997, Mr. Jackson slipped while standing on a ladder, grabbed an overhead beam to prevent his fall, and cut his left middle finger. Mr. Jackson's supervisor, Clinton Mixon, Jr. took him to a nearby clinic, which referred Mr. Jackson to Dr. Love who operated on the finger the next day at Delta Regional Medical Center. After physical therapy, Dr. Love performed a second surgery in October 1997 and then recommended a third operation, which Mr. Jackson declined. Later Dr. Geissler also recommended surgery, but Mr. Jackson refused because there was no guarantee of complete recovery.
Before the injury Mr. Jackson could lift fifty to sixty pounds with his left hand, but now he could lift only twenty to twenty-five pounds. Since the injury he could not climb, use power tools or a jackhammer, push a lawnmower, or use any other motor that made his hand jump. He had a constant burning pain in his finger, the tip turned blue in cold weather, and his finger hurt if it struck something.
Sometime before Dr. Geissler released him - Mr. Jackson could not recall exactly when — Clinton Mixon, Sr., called him and vociferously complained because Mr. Jackson had not returned his work uniforms. Mr. Jackson interpreted this conversation to mean that he had been fired. Mr. Jackson returned the uniforms that day.
Shortly after Dr. Geissler released him, Mr. Jackson received an employment application from the Employer. Mr. Jackson completed and returned the application, but received no response. If he had been offered a job, he would have returned.
Starting in October 1998 Mr. Jackson worked for Eddie's Construction for two months at minimum wage. In that job Mr. Jackson cleaned up construction sites for nine to ten hours a day, three or four days a week.
From May until October 1999 Mr. Jackson was employed by Lacey Construction at $7.00 an hour. Then in October and November 1999 and starting again in February 2000. Mr. Jackson worked for Pieralisi Farms as a tractor driver. He labored fourteen or fifteen hours a day, six days a week, and earned minimum wage.
Mr. Jackson was right-handed.
According to his cross-examination testimony, while he worked for the Employer Mr. Jackson used a screw gun (which weighed eight to ten pounds and was operated with one hand); a skill saw (which weighed twelve to fifteen pounds and was operated with both hands); and a jackhammer.
Mr. Jackson's injury did not affect his ability to drive a tractor, but Mr. Jackson no longer hunted or fished.
Mr. Jackson never told the Employer that he had been released to return to work. In fact, he never contacted the Employer about returning to work until he submitted the employment application sometime in February 1999. Mr. Jackson assumed that the conversation about uniforms meant that he had been terminated, but he did not mention possible employment when he actually returned the uniforms.
Earlier Mr. Jackson was fired from Fruit of the Loom because of horseplay. Later at Lacey Construction he worked ten hours a day, three or four days a week, but was laid off because of lack of work. In 1999 Mr. Jackson cut his right hand while replacing a window pane. That injury was not work-related.
2. Clinton Mixon. Jr.
Clinton Mixon, Jr., was Mr. Jackson's immediate supervisor. While working for the Employer, Mr. Jackson never had to lift more than thirty-nine pounds with one hand. For example, the jackhammer weighed about eighty pounds but required two hands to operate.
Mr. Jackson never contacted Mr. Mixon about returning to work. Mr. Mixon attempted to send word to Mr. Jackson through other employees, asking him to return.
According to Mr. Mixon's cross-examination testimony, when Mr. Jackson returned the uniforms, there was no discussion about Mr. Jackson's possible return to work. By then, the Employer had had to pay $350.00 to the rental company because the uniforms had not been returned earlier, so Mr. Mixon had no desire to offer Mr. Jackson a job.
3. Clinton Mixon. Sr.
Clinton Mixon, Sr., was the president of the Employer. After Mr. Jackson was released to return to work, Mr. Mixon attempted to contact Mr. Jackson about resuming his job, but Mr. Mixon could not locate him. Then on July 8, 1998 - after Dr. Geissler had released Mr. Jackson to return to work - the Carrier wrote Mr. Jackson's attorney that the Employer had work available for Mr. Jackson,1 but Mr. Jackson did not contact Mr. Mixon. Later in early 1999 Mr. Jackson requested an employment application. Mr. Mixon sent the application and Mr. Jackson returned it, but Mr. Mixon still could not locate Mr. Jackson to discuss his return to work.
According to Mr. Mixon's cross-examination testimony, at the time Mr. Jackson returned the employment application, there was no work available for him because that was during the winter, which was the slow time of the year for the Employer.
During the conversation about uniforms, the subject of Mr. Jackson's return to work never came up.
4. Robert T. Love. Jr.2
Dr. Robert T. Love, Jr., testified through his medical records that he first examined Mr. Jackson on March 26, 1997, on referral from Dr. Jim Adams. Dr. Love found that Mr. Jackson had severed the flexor digitorum profundus to his left middle finger. That same day Dr. Love operated on Mr. Jackson's finger.
After the surgery, Dr. Love sent Mr. Jackson to physical therapy. Because of Mr. Jackson's lack of progress toward recovery, Dr. Love on October 27, 1997, performed a tenolysis of the left middle finger.
After the second surgery and more physical therapy, Mr. Jackson continued to have problems with his finger. Dr. Love scheduled a third surgery for March 27. 1998, but Mr. Jackson did not appear for the operation.
5. William B. Geissler
Dr. William B. Geissler testified through his medical records that
he was asked to render a-second opinion concerning Mr. Jackson's finger.
Dr. Geissler examined Mr. Jackson on May 4, 1998, and found the range of
motion for this finger to be quite limited. Dr. Geissler recommended
another tenolysis to increase the range of motion, but the doctor concluded
that Mr. Jackson would never regain full motion. Because Dr. Geissler estimated
that this third operation would have a success rate of between fifty and
seventy percent, Mr. Jackson declined the surgery.
On May 15, 1998, Dr. Geissler assigned an impairment rating of sixty-seven percent to Mr. Jackson's finger. Under the AMA Guides, that impairment rating resulted in a thirteen percent impairment rating to the hand that, in turn, resulted in a twelve percent impairment rating to the upper extremity that, in turn, resulted in a seven percent impairment rating to the body as a whole. On June 25, 1998, Dr. Geissler restricted Mr. Jackson from lifting more than thirty-nine pounds with his left hand and from "production line work with fast moving machinery."3
INITIAL FINDINGS OF FACT
Upon consideration of the pleadings, pre-trial statements, stipulations, lay and medical evidence, demeanor of the witnesses at the hearing, and applicable law, the Administrative Judge finds these facts:
1. Mr. Jackson, who was thirty-nine, completed the eleventh grade and an auto mechanics course. Before joining the Employer in 1995 or 1996 Mr. Jackson worked as a mechanic, tractor driver, certified knitter, and bill-collector. In those jobs he eamed from approximately $5.00 to $17.00 an hour.
2. For the employer Mr. Jackson worked as a laborer erecting metal buildings. Mr. Jackson used a screw gun, which weighed eight to ten pounds; a skill saw, which weighed twelve to fifteen pounds; and a jackhammer, which weighed about eighty pounds. He earned $7.00 an hour.
3. As stipulated by the parties. Mr. Jackson suffered a work-related injury on March 25, 1997, when he cut his left middle finger. At the time of the injury. Mr. Jackson's average weekly wage was $314.71, as stipulated by the parties.
4. Dr. Love operated on the finger on March 26, 1996, and October 27, 1997. and recommended a third surgery, which Mr. Jackson declined. Dr. Geissler, when asked for a second opinion, also recommended a third surgery, which Mr. Jackson also declined.
5. As stipulated by the parties, Mr. Jackson attained maximum medical improvement on May 15, 1998. Also as stipulated by the parties, Dr. Geissler assigned an impairment rating of sixty-seven percent to Mr. Jackson's finger, resulting in a thirteen percent impairment rating to his left hand, a twelve percent impairment rating to his left arm, and a seven percent impairment rating to his body as a whole. On June 25, 1998, Dr. Geissler restricted Mr. Jackson from lifting more than thirty-nine pounds with his left hand and from working on an assembly line with fast-moving equipment.
6. Sometime before Mr. Jackson reached maximum medical improvement on May 15, 1998, (and so was released to return to work), Mr. Jackson and the Messrs. Mixon had a discussion about the need for Mr. Jackson to return his rented work uniforms. Mr. Jackson interpreted that conversation to mean that he was fired.
7. After Dr. Geissler released Mr. Jackson to return to work, Mr. Clinton Mixon, Sr., unsuccessfully attempted to contact Mr. Jackson about coming back to work. On July 8, 1998. the Carrier wrote Mr. Jackson's attorney that work was available for Mr. Jackson.
8. In early 1999 Mr. Jackson requested an employment application. That was the first time he had ever evinced a desire to return to the Employer. Mr. Jackson submitted the form, but Mr. Clinton Mixon, Sr., could not contact Mr. Jackson. At any rate, there was no work available then during the slow, winter season.
9. In October and November 1998 Mr. Jackson worked for Eddie's Construction nine to ten hours a day, three or four days a week, and made $5.15 an hour. From May until October 1999 Mr. Jackson was employed by Lacey Construction at $7.00 an hour. During October and November 1999 and beginning again in February 2000, Mr. Jackson worked fourteen to fifteen hours a day, six days a week, as a tractor driver for Pieralisi Farms at $5.15 an hour.
10. As stipulated by the parties, the Employer/Carrier paid Mr. Jackson all of the temporary benefits to which he was entitled and $4,984.36 in permanent benefits, and provided medical services.
ANALYSIS AND DECISION
Mr. Jackson argues that because the Employer did not provide him with ajob when he was released to return to work, the presumption arises that his left hand, or in the alternative, his left arm, is permanently and totally disabled. He also contends that because he cannot now perform all of the customary duti~sof his pre-injury job, he is entitled to permanent and total disability benefits for his hand, or alternatively, for his arm. In other words, Mr. Jackson seeks benefits for occupational loss of use of the scheduled member, which he alleges is greater than the medical impairment assigned by Dr. Geissler.
The Employer/Carrier responds that Mr. Jackson suffered an injury to his left middle finger - not his hand or arm - and has not proven an occupational loss greater than the sixty-seven percent impairment to his finger.
The Administrative Judge is not persuaded that the Hercules presumption applies in this case. It is undisputed that in the letter of July 8, 1998, to Mr. Jackson's attorney (which was shortly after Dr. Geissler released Mr. Jackson on May 15, 1998), the Carrier, on behalf of the Employer, offered Mr. Jackson a job. Mr. Jackson did not respond and, indeed, did not contact the Employer about a job until about six months later in early 1999.
As to Mr. Jackson's second argument, assuming arguendo that Mr. Jackson cannot now return to the precise duties of his pre-injury employment, he is not automatically entitled to benefits for the total loss of use of the injured scheduled member. Instead, the determination of the extent of Mr. Jackson's permanent disability depends on the nature of his injury and restrictions, his education and experience, his ability to return to his pre-injury job or obtain other suitable employment, and any other relevant factor bearing on his ability to use the injured member for wage- earning purposes. Meridian Professional Baseball Club v. Jensen, 2000 WL 1499455 (Miss. Ct. App. Oct. 10, 2000).
Suffice it to say that Mr. Jackson has not suffered a loss of wage-earning capacity of more than sixty-seven percent. For that reason he has not met his burden of proving an occupational loss of use that is greater than the medical impairment of sixty-seven percent to his left middle finger, which, after all, is the injured scheduled member - not his left hand or arm.
Accordingly, the Administrative Judge finds that Mr. Jackson is entitled to permanent partial disability benefits of $209.81 a week for twenty-one weeks beginning May 16, 1998. Of course, the Employer/Carrier is entitled to credit for the permanent benefits already paid.
ORDER
IT IS, THEREFORE, ORDERED AND ADJUDGED that the Employer/Carrier shall pay workers' compensation benefits as follows:
1. Permanent partial disability payments in the amount of $209.81 each week, beginning May 16, 1998, and continuing for twenty-one weeks, with the Employer/Carrier to receive credit for the permanent disability benefits previously paid; and,
2. Penalties and interest on any due and unpaid previously paid; and,
IT IS FURTHER ORDERED AND ADJUDGED that the Employer/Carrier shall provide reasonable and necessary medical services and supplies as required by the nature of the Claimant's injury and process of recovery therefrom, pursuant to Miss. Code Ann. Section 71-3-15 (Rev. 2000), and the Medical Fee Schedule.
SO ORDERED this the 20th day of April 200l.
MARK HENRY
ADMINISTRATIVE JUDGE
ATTEST:
Jo Ann McDonald, Commission Secretary
1. See Employer/Carrier's Exhibit 4, Letter of July 8, 1998, from Cindi Lee to Ellis Turnage.
2. This information is contained in claimant's Exhibit 3, Delta Regional Medical Center Medical Records.
3. Claimant's Exhibit 1, Medical Records of Dr. William B. Geissler, p. 12.