MWCC NO. 98-12358-G-3777

FLORA L. McINTYRE                                                                                                                     CLAIMANT

vs.

MARSHALL DURBIN, INC.                                                                                                          EMPLOYER
(SELF-INSURED)

REPRESENTING CLAIMANT:
Mark W. Davis, Esquire, Gulfport, MS

REPRESENTING EMPLOYER/CARRIER:
Ben E. Sheely, Esquire, Gulfport, MS
Louie Ruffin, Esquire, Hattiesburg, MS
 

This matter was heard by the Commission on March 5, 2001 pursuant to the Employer's Petition for Appeal and Review. The Employer argues that the Administrative Judge erred in awarding Ms. McIntyre benefits for permanent total disability based on admittedly compensable injuries to her right and left upper extremities. This award is memorialized in an Order of Administrative Judge dated August 28, 2000.
 

Ms. McIntyre contracted bilateral carpal tunnel syndrome while working for Marshall Durbin. For present purposes her date of injury is July 14, 1997 and, her date of maximum medical improvement is July 29, 1999. At the time of her injury she was earning an average weekly wage of $265.00.

Ms. McIntyre worked at Marshall Durbin in their chicken processing plant in Hattiesburg for nearly 27 years. She is approximately 52 years old and has a sixth grade education and has very limited reading, writing and arithmetic skills. Her work at Marshall Durbin has consisted primarily of repetitive tasks and is the only employment she has ever known.

Ms. McIntyre was seen by Dr. Stephen Beam from July 14, 1997 through September 19, 1997 and diagnosed with bilateral carpal tunnel syndrome. She was treated with medication, splints and physical therapy. Ms. McIntyre recalled being taken off her assembly line for approximately five months at Dr. Beam's recommendation. Dr. Beam's records reflect, however, that on September 19, 1997 he released Ms. McIntyre to return to work with a permanent restriction against using scissors.

Ms. McIntyre continued working for Marshall Durbin when, in 1998, her condition began to worsen. She sought treatment from Dr. Keith Melancon on June 11, 1998 and on October 28, 1998 Dr. Melancon performed surgery on her right wrist. Surgery on her left wrist followed on January 18, 1999.

Approximately one week after the second surgery, Dr Melancon approved Ms. McIntyre's return to light duty work doing nothing more than answering the phone. Marshall Durbin accommodated Dr. Melancon's request and assigned Ms. McIntyre to the nurse's station answering the telephone. She was subsequently assigned to the maintenance shop passing out tools to employees. Importantly, Dr. Melancon's notes from January 19, 1999 make mention of the fact that Ms. McIntyre "has intentions of retiring later on this Spring" and he thinks "we can probably keep her going until that time."

This light duty assignment continued until Dr. Melancon released her at maximum medical improvement on July 29, 1999. His notes reflect that, in the interim, Ms. McIntyre was tolerating the light duty work Marshall Durbin had provided her. A June 8, 1999 note also mentioned that of "she still has plans to retire and is just trying to finish out the next couple months [sic]." Dr. Melancon's note from July 29, 1999 states that Ms. McIntyre "has certainly reached maximum medical. improvement" and "has a 15 % impairment of each upper extremity. " Dr. Melancon did not change any of her prior restrictions because Ms. McIntyre related to him "that she plans to retire in the next two weeks. . . " Ms. McIntyre testified, however, that Dr. Melancon told her she could return to the assembly line.

Dr. Ronald Graham, an orthopedic surgeon asked by the Employer to evaluate Ms. McIntyre, saw her on December 1, 1998, after the surgery on her right wrist but prior to the surgery on her left wrist. He ultimately concluded that Ms. McIntyre would reach maximum medical improvement eight weeks after each surgery and would have no permanent disability or impairment. He would, however, restrict her from working in cold environments below 40 degree or using vibratory tools.

Following her release by Dr. Melancon, Ms. McIntyre returned to the assembly line and was assigned the job of pinning chicken feathers, a lighter duty job than she previously held on the line. Marshall Durbin allowed her to take as many breaks as she needed. Ms. McIntyre was subsequently assigned the task of washing birds and hanging them. According to Ms. McIntyre, her hands and arms continued to bother her somewhat, and on January 4, 2000 she quit her employment with Marshall Durbin.

Ms. McIntyre claims that she quit partly because of the physical problems she continued to have. She also acknowledged, however, that her husband had a heart attack on January 4, 2000 and that she never returned to work after this, nor did she inform anyone at Marshall Durbin of her decision. Since quitting work at Marshall Durbin, Ms. McIntyre says she sought work during a three day period at a few other places in and around Hattiesburg, but without success. At no other time has she sought employment elsewhere.

A representative of Marshall Durbin testified that a job was still available for Ms. McIntyre if she wanted but that she had not inquired about. re-employment.
 

The only question of any consequence is whether and to what extent Ms. McIntyre is occupationally disabled as a result of her bilateral carpal tunnel syndrome. Ms. McIntyre has been found to have a 15 % functional loss of use of both her right and left arm, as per Dr. Melancon's assessment. However, in order to obtain permanent disability benefits "for an occupational disability . . . which exceeds the assigned partial functional impairment" Ms. McIntyre must show "that the partial [functional] impairment has adversely affected ... her wage earning capacity to an extent greater than the medical percentage of impairment. " Alumax Extrusions, Inc. v. Wright, 737 So.2d 416, 422 (Miss.App. 1998).

The factors to be considered in evaluating her claim include the nature of her injury and restrictions, her age, education, training, her ability to perform her usual work, her efforts if any to find other suitable employment, and any other related circumstances. Meridian Professional Baseball Club v. Jensen, 2000 WL 1499455 (Miss.App. Oct. 10, 2000), slip op. at 3; Alumax, 737 So.2d at 422.

The nature of Ms. McIntyre's injury suggests she would have some difficulty consistently performing the only work she has ever known. This is so despite Dr. Melancon's and Dr. Graham's opinion that she could return to the assembly line at Marshall Durbin. When we also consider Ms. McIntyre's age and limited education, the conclusion seems obvious that these injuries have negatively affected her capacity to earn wages to a degree greater than her assigned functional loss.

On the other hand, Marshall Durbin was willing to accommodate Ms. McIntyre in her efforts to return to work, and she was able resume her employment for a period of time without any reduction in pay. As noted above, we accept that she could not function post injury at the same level as before, but we can't accept that Ms. McIntyre's injuries preclude her from work altogether, either at Marshall Durbin or elsewhere.

First, the medical evidence does not support any claim that Ms. McIntyre should be considered totally occupationally disabled. Second, Dr. Melancon consistently documented Ms. McIntyre's intent to retire from Marshall Durbin and it is not at all clear whether her desire to quit work was entirely motivated by her injuries. To the contrary, it appears to us that Ms. McIntyre was motivated in large part to quit work by her husband's physical condition and other reasons unrelated to her injury. Moreover, her efforts to obtain other suitable employment since quitting at Marshall Durbin are questionable at best.

In the end, after having considered all of the evidence, we conclude that Ms. McIntyre has suffered a 50% occupational disability, or loss of industrial use, of each upper extremity and is entitled to benefits accordingly. We therefore reverse the Order of Administrative Judge dated August 28, 2000 and hereby direct and order the Employer to pay permanent partial disability benefits to Ms. McIntyre in the amount of $176.66 per week for a total period of 200 weeks, commencing July 30, 1999.¹ Penalties and interest as provided by Law shall apply and the Employer may take credit for any permanent disability benefits previously paid, but not for any wages earned by Ms. McIntyre.

SO ORDERED this the 14th day of March, 2001.

MISSISSIPPI WORKERS' COMPENSATION COMMISSION
BARRETT SMITH
BARNEY SCHOBY

ATTEST:
Jo Ann McDonald, Secretary
___________________________
 

FLORA L. McINTYRE                                                                                                                     CLAIMANT

vs.

MARSHALL DURBIN, INC.                                                                                                           EMPLOYER
AND
SELF-INSURED

APPEARING FOR CLAIMANT:
Honorable Mark W. Davis, Attorney at Law, Gulfport, Mississippi
 
APPEARING FOR DEFENDANTS:
Honorable Ben E. Sheely, and Honorable Louie Ruffin, Attorneys at Law, Gulfport, Mississippi
 

The Claimant filed a Petition to Controvert on September 17, 1998, alleging bilateral carpal tunnel from repetitive use of her hands in June, 1997. A hearing was held in Hattiesburg, Mississippi on May 18, 2000.
 

1. The Claimant suffered a compensable work-related injury in the course and scope of her employment; July 14, 1997 is the date of first applicable medicals.

2. The Claimant's average weekly wage on the date of injury was $265.00.
 

1. The extent of any industrial loss of use to Claimant's right upper extremity.

2. The extent of any industrial loss of use to Claimant's left upper extremity.

3. Claimant's date of maximum medical improvement.

4. Whether or not the Employer/Carrier is entitled to credit for post injury wages paid to the Claimant.

5. Whether or not penalties are applicable.
 

A hearing was held in this matter in Hattiesburg, Mississippi on May 18, 2000. The Claimant testified on her own behalf and offered into evidence the Supplemental Medical Records/Affidavit from Forrest General Hospital. The Self-Insured Employer called Jimmy Lee Smith, Wayne Chance, Carol Wells and George Overby as witnesses. Additionally, the Employer offered into evidence the Deposition of Dr. Graham and a wage statement. Medical Records/Affidavits from the Urgent Care Center, Dr. Beam and Dr. Melancon were offered into evidence as General Exhibits.
 
The Claimant testified that she is a 52-year-old resident of Hattiesburg, Mississippi. She has a sixth grade education and has difficulty reading and writing. Claimant testified that for the past 26 years and 8 months she has been employed as a factory worker at Marshall Durbin, a chicken processing plant located in Hattiesburg, Mississippi. She has no other formal education or vocational training other than her on-the-job work experience at Marshall Durbin.

Claimant testified that her job duties at Marshall Durbin included several types of assembly line work which all entailed repetitive motion work activity involving her arms and hands. Her jobs included rimming chickens, cleaning gizzards and wash-out work. Rimming chickens involved cutting various portions from the chickens during the assembly line process. Cleaning gizzards involved the removal of gizzards from the chicken. Wash-out work involved the cleaning and washing out of the chickens. Claimant said she has never had a job at Marshall Durbin, or anywhere else, where she supervised other employees or did paper work.
 
Claimant testified that she has had problems for years with pain in her arms and hands while working at Marshall Durbin. She initially sought medical treatment in March, 1995 at the Urgent Care Center in Hattiesburg to whom she had been referred by her Employer. Claimant said she continued to work at her usual activities and eventually was referred by her Employer to Dr. Stephen Beam at Work Well Services in Hattiesburg, who treated Claimant from July, 1997 until September, 1997. Claimant testified that Dr. Beam treated her for bilateral carpal tunnel syndrome and restricted her from repetitive motion type work. She said Dr. Beam gave her wrist splints to wear, recommended physical therapy, and prescribed anti-inflammatory medication.

Claimant testified that she still continued to work at Marshall Durbin and that her work activities always involved repetitive motion. Claimant said her problems continued, and in 1998, she went to see Dr. Keith Melancon, an orthopaedic surgeon in Hattiesburg. Dr. Melancon prescribed wrist splints and recommended that she undergo an EMG/nerve conduction study. Following these studies, Dr. Melancon recommended that she undergo a carpal tunnel release procedure on her right upper extremity. This was done in October, 1998 at Wesley Medical Center in Hattiesburg. 

Following this operation, Claimant testified that she followed up with Dr. Melancon and eventually returned to work at Marshall Durbin and was assigned to the first aid office. However, she was later reassigned to assembly line work and continued to have problems with pain and numbness in her arms and hands. Claimant said she was recommended by Dr. Melancon to undergo a carpal tunnel release procedure on her left upper extremity, which was eventually done in January 1999. Following this operation, she again returned to work at Marshall Durbin. She was initially on light duty, but was ultimately reassigned to repetitive motion assembly line type work. Claimant testified that on numerous occasions following her return to work after each surgery, she would go to the first aid office and complain of pain and numbness in her arms and hands. These complaints were made to Joel McBeth, the supervisor of the first aid office. McBeth would give her an ice pack and over-the-counter medication.
 
Claimant testified that on or about July 29, 1999, she was released by Dr. Melancon as having reached maximum medical improvement. She was assigned restrictions by Dr. Melancon, including no repetitive motion type work activity. Claimant testified that despite these restrictions and despite many visits to the first aid office with complaints regarding her carpal tunnel syndrome, she was continuously put back doing assembly line work. Claimant testified that on or about about August 17, 1999, her condition worsened to the point where she had to go to the emergency room at Forrest General Hospital for emergency treatment for her carpal tunnel syndrome.

Claimant testified that she ultimately quit her job in January, 2000. Claimant said her plan was to retire, however, she had to go ahead and quit her job because she was physically unable to do the repetitive motion type work. Claimant said she told Jimmy Lee Smith that she could not do the repetitive motion work and he told her that there was nothing he could do. Every time she went back to work at Marshall Durbin, she was eventually put back doing assembly line type work. Claimant testified that she had enjoyed working at Marshall Durbin for approximately 27 years and was a good employee.
 
Claimant testified that she has applied for jobs at several businesses in the Hattiesburg area, but had not been offered any employment at the time of the hearing. She specifically recalled seeking employment at Forrest General Hospital, Mini Mart No. 5, Big Star, Fred's Dollar Store, Gold Post and a grocery store.

Claimant testified that she presently has problems with pain and numbness in her right and left hands and wrists. Additionally, she has difficulty holding, grasping, and carrying objects. She also testified that repetitive type activity causes pain and numbness in her fingers and hands.
 
Jimmy Lee Smith testified on behalf of the Employer/Carrier. Smith said he was Claimant's supervisor, when she worked at Marshall Durbin. The Claimant worked under his supervision for about five years.
 
Smith recalled the Claimant having two carpal tunnel surgeries. Following the first surgery, Claimant worked in the office until her wound healed. He said the telephone job lasted for approximately six weeks. Additionally, Claimant did light duty work pulling feathers to help get her back into the work force and she worked in the Maintenance Department.
 
Smith testified that following Claimant's second carpal tunnel surgery she was released to light duty. She began working in the office. Smith said the Claimant was also placed at the "wash-out station," where she used a water hose to re-wash products. Smith testified that he told the Claimant not to use scissors, however, he knew that she continued to used them from time to time.
 
Smith testified that the Claimant would occasionally say that she did not sleep well and that her hand hurt, however, she never asked for a lighter duty job or another job. He said the Claimant left work and never returned. Claimant's husband also worked for the company, so when he saw him in the break-room he asked about the Claimant. He was told by Claimant's husband that she had quit.
 
Smith testified that the company would have a job for the Claimant on the "gizzard table" if she reapplies. Finally, Smith testified that Marshall Durbin would not allow employees to use tape on their wrists, or wrist bands or splints while working in the plant for sanitary reasons.
 
Wayne Chance, employment manager for Forrest General Hospital; Carol Wells, manager of Gold Post Fast Food Restaurant; and George Overby, manager of Fred's Dollar Store, testified that they have no applications on file reflecting the Claimant's application for employment. On cross-examination these representatives admitted that they would not interview all prospective employees and had no first hand knowledge as to whether the Claimant did apply for work, only that they have no record of a written job application on file.

Dr. Stephen Beam testified via affidavit. Dr. Beam initially saw the Claimant on or about. July 14, 1997. He noted that the Claimant complained of bilateral hand pain and numbness. Dr. Beam diagnosed bilateral repetitive motion injury, prescribed wrist splints and recommended a nerve conduction study. He further restricted the Claimant from doing any repetitive motion activity. Dr. Beam saw the Claimant on approximately 6 more occasions from July, 1997 to September, 1997. Nerve conduction studies were positive for nerve entrapment. Dr. Beam prescribed anti-inflammatory medication. He also prescribed physical therapy. Dr. Beam released the Claimant on or about September 19, 1997 with a diagnosis of bilateral carpal tunnel syndrome. Here commended that the Claimant continue to use the wrist splints at night and would have permanent limitations of no use of scissors.
 
Dr. Keith Melancon, orthopaedic surgeon, testified via affidavit. He initially saw the Claimant on or about June 11, 1998. He obtained a history that the Claimant had been working at Marshall Durbin for the last 25 years cutting chickens and was having increasing pain over the last 6 months with this problem. He noted that the Claimant was having numbness and tingling in both upper extremities, which was causing her to wake up at night. The Claimant was also having difficulty holding objects in her hands and was dropping objects from her grip.

Dr. Melancon's physical examination revealed a positive Tinel's test and positive Phalen's sign in both hands. There was evidence of medium nerve entrapment at the wrist in both hands with decreased median sensation bilaterally. Dr. Melancon recommended the Claimant undergo EMG/nerve conduction studies. At a later visit, Dr. Melancon indicated the Claimant had been working at a chicken processing plant for 25 years, doing the same repetitive chicken cutting type job which would cause carpal tunnel syndrome, yet her employer still continued to "give her a hard time about this." Dr. Melancon assured the Claimant that this was the sole cause of her problem. Dr. Melancon indicated the Employer and Carrier initially denied paying for the EMG/nerve conduction study, but these were eventually obtained. The studies again confirmed bilateral nerve entrapment in both upper extremities.
 
Dr. Melancon's diagnosis was bilateral carpal tunnel impairment to Claimant's left upper extremity. He also indicated the Claimant would have permanent restrictions, including no repetitive motion type work activities. Dr. Melancon ultimately recommended the Claimant undergo a carpal tunnel release on her right wrist which was done on or about October 28, 1998. Following the first surgery on the right wrist, Dr. Melancon noted that the Claimant continued to have problems with both the right and left upper extremity. He, again, recommended the Claimant perform no repetitive motion type work activity.
 
Dr. Melancon eventually recommended the Claimant undergo a left carpal tunnel release, which was done in January 1999. He continued to see the Claimant until he released her at maximum medical improvement on July 29, 1999. Dr. Melancon assigned a 15% permanent physical impairment to Claimant's right upper extremity and a 15% permanent physical impairment to Claimant's left upper extremity. He noted that since the Claimant had related to him that she planned to retire in the next two weeks, he would not change any of her restrictions.

The Claimant was also seen, at the request of the Employer/Carrier, by Dr. Ronald Graham, an orthopaedic surgeon in Gulfport. Dr. Graham testified that he saw the Claimant for examination purposes only on December 1, 1998, a couple of weeks after her first surgery and prior to her having reached maximum medical recovery. Dr. Graham indicated that the Claimant had not yet reached maximum medical recovery as to either her right or left carpal tunnel syndrome. He felt the Claimant would be at maximum medical improvement eight weeks following her carpal tunnel release surgery. He gave an opinion that the Claimant would have no permanent impairment to either extremity and would be able to return to her previous employment with no restrictions. Dr. Graham did testify that the Claimant should avoid smoking, refrigerated equipment, and vibratory equipment.
 

3. Claimant reached maximum medical improvement on July 29, 1999.

4. The test for determining the extent of industrial loss of use suffered by the Claimant looks to the extent to which the Claimant has become unable, because of the injury to her upper extremities, to perform the substantial acts of her usual employment. One who, by reason of an injury to a scheduled member, has become wholly unable to perform the substantial acts of her usual employment has suffered total and complete industrial loss of use of the injured member. McGowan v. Orleans Furniture, Inc., 586 So.2d 163 (Miss. 1991); Piggly Wiggly v. Houston, 464 So.2d 510 (Miss. 1985); Richey v. City of Tupelo, 361 So.2d 995 (Miss. 1978). "Loss of both hands, or both arms . . . or of any two (2) thereof shall constitute permanent total disability. . . ." Mississippi Code Annotated, Section 71-3-17(a).
 
The evidence shows that all of the Claimant's work experience has been with the Employer herein, where she worked for more than 26 years. She has a sixth grade education with no other formal education, or vocational training other than her on-the-job work experience at Marshall Durbin. The Claimant testified that she is unable to perform the substantial acts of her usual employment. She presently has problems with pain and numbness in her right and left hands and wrists. Additionally, she has difficulty holding, grasping, and carrying objects. Claimant said repetitive type activity causes pain and numbness in her fingers and hands.
 
The persuasive medical evidence supports the Claimants testimony that she can no longer perform the substantial acts of her usual employment. Dr. Melancon treated the Claimant over a period of time and released her on or about July 29, 1999, as having reached maximum medical improvement with a 15% impairment rating to each upper extremity. He indicated that the Claimant would have permanent restrictions of no repetitive motion type work activities.
 
Considering the evidence as a whole, I find that the Claimant's partial medical impairments have substantially the same effect on her abilities as the total loss of use thereof, resulting in a 100% loss of use to both upper extremities. She is, therefore, entitled to benefits pursuant to Miss. Code Ann., § 71-3-17(a) for a period of 450 weeks.
 
5. The Claimant, having suffered a compensable work-related injury, is entitled to reasonable and necessary medical services and supplies and by law the self-insured Employer is obligated to furnish and provide Claimant with reasonable and necessary medical services and supplies, such as the nature of her injury and the process of her recovery may require, consistent with Mississippi Code Annotated, Section 71-3-15 (1972), as amended and the Medical Fee Schedule.
 
6. Claimant is entitled to penalties on each installment of compensation not timely paid the equivalent of 10% thereof as provided in Mississippi Code Annotated, Section 71-3-37 (5) (1,972) together with the interest at the legal rate on all unpaid installments.
 

SO ORDERED this the 28th day of August, 2000.

MELBA DIXON
ADMINISTRATIVE JUDGE

ATTEST:
Jo Ann McDonald, Secretary
___________________________

1. These payments represent 100 weeks of permanent partial disability benefits for each upper extremity, based on the 50% industrial loss of use of each. Miss. Code Ann. §71-3-17(c)(1), (23) (Rev, 2000).