MWCC NO. 98-15081-G4196
JIMMY DALE MAUNEY CLAIMANT
vs.
DUMAS FURNITURE COMPANY
EMPLOYER
AND
MS CASUALTY INSURANCE COMPANY
CARRIER
REPRESENTING CLAIMANT:
B. Sean Akins, Esquire, Ripley, Mississippi
REPRESENTING EMPLOYER/CARRIER:
George E. Read, Esquire, Oxford, Mississippi
This matter was heard by the Commission on January 22, 2001
pursuant to the Employer and Carrier's Petition for Review. The only issue
concerns the extent of permanent disability resulting from the work related
injury to both arms which Mr. Mauney suffered in March 1998. In an Order
entered June 15, 2000 the Administrative Judge found that Mr. Mauney suffers
from a fifty percent (50%) industrial loss of use of each arm. The
Employer and Carrier argue this is excessive.
Mr. Mauney is a 38-year-old resident of Ripley, Mississippi who completed the eleventh grade in school and has no GED. He obtained a certificate of completion for a mechanic course at Northeast Mississippi Community College. Mr. Mauney has worked many years in the furniture industry, primarily as an upholsterer. It is this work which led to the development of problems with his arms in 1998. At the time of his injury in March 1998, Mr. Mauney was earning an average of $485.83 per week.
Mr. Mauney eventually underwent carpal tunnel surgery on his left and right arm and reached maximum medical improvement on October 13, 1999. The operating physician, Dr. Frazier, assigned a permanent medical impairment of five percent (5 %) to each arm. Dr. Frazier did not impose any specific restrictions, but he cautioned Mr. Mauney against returning to upholstery work because of the risk of re-injury. A functional capacity evaluation confirmed that Mr. Mauney was physically capable of even heavy work and did not need any specific restrictions.
Mr. Mauney was able to secure other suitable employment in November 1999 driving a truck for Rolinson and Sons Logging. From November 19, 1999 to May 26, 2000, the only period for which such records are available, Mr. Mauney earned an average of $468.04 per week working for Rolinson and Sons Logging. This amounts too less than a 4% reduction in average weekly earnings as compared to his pre-injury pay.
Mr. Mauney stated that his work for Rolinson and Sons is primarily as
a driver, although he occasionally must unhook trailers and operate a power
saw. He has missed some time from work because of problems with his hands
and arms after using the power saw, and he occasionally experiences pain
and numbness in his fingers, hands and arms which he attributes to the
vibration of driving the truck.
In determining whether Mr. Mauney has any permanent occupational disability, or industrial loss of use of his arms, which, exceeds his five percent (5 %) medical impairment, we consider not only the nature and extent of his post injury earnings, but also his inability to return to work as an upholsterer, his education and experience, the nature and extent of his injury and any continuing physical problems, and any other occupationally relevant circumstance. See e.g. Meridian Professional Baseball Club v. Jensen, 2000 WL 1499455 (Miss. Ct.App. 2000), slip op. at 3.
While Mr. Mauney currently earns nearly the same wages as before his injury in employment to which is both suited and physically able to perform, we nonetheless cannot ignore his own credible testimony that the performance of this work does cause occasional pain and numbness in his hands and arms. We also cannot ignore the fact that because of his injury Mr. Mauney has been forced to forego further employment of the kind he had learned and performed for nearly twenty (20) years.
Considering all of the relevant circumstances, we agree with the Administrative Judge that Mr. Mauney has an occupational disability, or industrial loss of use of his arms, which exceeds his medical impairment. We find, however, that the extent of this loss is twenty-five percent (25%) to each arm, and we hereby amend the Order of Administrative Judge accordingly.
The Order of Administrative Judge dated June 15, 2000 is hereby affirmed and amended to provide that the Employer and Carrier shall pay permanent partial disability benefits to Mr. Mauney for a twenty-five percent (25%) permanent partial disability to each arm, at the weekly rate of $279.78 commencing October 14, 1999 and continuing for a total period of 100 weeks. Miss. Code Ann. §71-3-17(c)(1), (23) (Rev. 2000). The Employer and Carrier may take credit for any permanent disability benefits previously paid, and shall pay interest and penalty as provided by Law on all unpaid installments of compensation.
SO ORDERED this the 26th day of January, 2001.
MISSISSIPPI WORKERS' COMPENSATION
COMMISSION
BARRETT SMITH
BARNEY SCHOBY
ATTEST:
Joann McDonald, Secretary
___________________________
MWCC NO. 98 15081-G-4196-B
JIMMY DALE MAUNEY CLAIMANT
vs.
DUMAS FURNITURE, INC.
EMPLOYER
AND
MS CASUALTY INSURANCE COMPANY
CARRIER
APPEARING FOR THE CLAIMANT:
B. Sean Akins, Esquire, Ripley, Mississippi
APPEARING FOR THE EMPLOYER AND CARRIER:
George E, Read, Esquire, Oxford, Mississippi
On November 10, 1998, Jimmy Dale Mauney, the claimant, filed a petition to controvert alleging that in March 1998 he received a work-related injury to both his arms described as bilateral carpal tunnel syndrome. The employer and carrier initially denied the compensability of the injury but subsequently provided medical services and supplies; paid temporary total disability benefits from July 1, 1999, until October 13, 1999, at the maximum rate of $279.78 per week; and paid permanent partial disability benefits at the rate of $279.78 a week for ten weeks for each arm, that is, a total of twenty weeks.
A dispute about the extent of disability resulting from the work injury
arose, and a hearing regarding this issue was held in the Tippah County
Courthouse in Ripley, Mississippi, on May 24, 2000. The record was held
open after the hearing for the employer and carrier to submit employment
records from a subsequent employer which the employer and carrier learned
about only at the hearing, which records were received into evidence on
June 6, 2000.
The parties stipulated as follows:
1. The claimant, Jimmy Dale Mauney, suffered a work-related injury to his arms in March 1998.
2. His average weekly wage in March 1998 was $485.83.
3. The employer and carrier have paid temporary total disability benefits at the rate of $279.78 per week from July 1 through October 13, 1999.
4. The employer and carrier have paid permanent partial disability benefits at the rate of $279.78 a week for a total of twenty weeks, that is, ten weeks for each arm.
5. The employer and carrier have provided the medical services and supplies of Dr. McDonald in Tupelo, Dr. Waldon in Ripley, and Dr. Frazier in Corinth. The employer and carrier have paid all medical expenses related to this workers' compensation injury.
6. Dr. Frazier performed a carpal tunnel release on both the claimant's
left and right wrists, and he released the claimant as having reached maximum
medical recovery on October 13, 1999. Dr. Frazier assigned a permanent
partial medical impairment of 5% to each arm.
The primary issue to be resolved by the Administrative Judge is the
extent of permanent disability resulting from the work injury.
Jimmy Dale Mauney is thirty-seven years old and a resident of Ripley. He was born in Union County and has resided in Tippah County all his life. He is married and has four children, ages 20, 17, 12, and 10. He completed the eleventh grade in school and does not have a GED certificate. He can "get by" in reading. He said he does not read books or the newspaper but can read maps and work instructions adequately. He can make change and balance a checkbook. He took a mechanic's course at Northeast Community College and received a certificate. He testified in an articulate fashion at the hearing.
Mr. Mauney is six feet tall and weighs 180 pounds. He is right-handed. He has arthritis in his right knee and in his wrists. He had three surgeries on his knee about fifteen years ago.
After he left school, Mr. Mauney went to work as an upholsterer for Reno Furniture in Pine Grove, Mississippi. He worked there about a year and then worked at a service station for six months. He was an upholsterer for W. M. Yates furniture company in Blue Mountain for seven or eight years. Then he started a business building furniture, and he had the business about two years. After that he helped Don Yates for two months in the furniture building business.
In January 1990, Mr. Mauney obtained employment with Dumas Furniture, Inc., in Dumas, Mississippi, the employer in this case, and he worked there until March 1998. He also did some side jobs on the weekends for extra money, helping his father building houses.
His job at Dumas Furniture was upholstering living room furniture such as couches, love seats, and chairs. He had to put the upholstery material on the frame, pulling or stretching the material before stapling it with a staple gun, and moving the furniture to and from his work station. His job was a production job.
In March 1998, Mr. Mauney's hands started to go numb. He would have popping in his hands. He had pain in his wrists when he pulled the upholstery material. He consulted Dr. Waldon in Ripley, and Dr. Waldon referred him to Dr. Thomas J. McDonald, neurosurgeon in Tupelo. Dr. McDonald recommended diagnostic testing and then advised carpal tunnel release surgery. Mr. Mauney also saw Dr. Barbara O'Brien in Memphis for a second opinion.
Dumas Furniture offered Mr. Mauney another job in the frame building department. He found, however, that the staple gun and the wood were heavier than the upholstery job and caused him continuing problems with his wrists. The company then offered him a cutting job, a nonproduction job, but he did not want to take a cut in pay to a flat $8.00 an hour. He also testified that he had done the cutting job in the past when he was in business for himself, and he thought it would cause him problems with his wrists.
When he decided there were no other positions at the furniture company that he could do without causing pain to his wrists, Mr. Mauney quit his job at Dumas Furniture. He obtained employment in house building which he did for about two months. Then he helped David Smith, a mechanic, at his garage in Blue Mountain for about two weeks and then went back to helping some guys build houses in New Albany. After two months, his hands caused him to quit.
Next, Mr. Mauney got his commercial driver's license and started drivi ng a truck for FBN Trucking. He left that job after about six or seven months when he was required to unload furniture. He testified the ftimiture moving caused him pain in his hands. At his deposition, however, he said he left the job when the company could not get insurance for him because he did not have two years of over-the-road experience.
At that point, Mr. Mauney decided to have the carpal tunnel release surgery recommended by Dr. McDonald. He said he was trying to avoid the surgery because he had friends who have had it and have not done too well.
In the summer of 1999, Mr. Mauney consulted Dr. Randall Frazier, orthopaedic surgeon in Corinth. Dr. Frazier did surgery on each wrist, sent him for a functional capacity evaluation, and released him on October 13, 1999. The employer and carrier paid him while he was under Dr. Frazier's care. Mr. Mauney testified that he experienced some relief from his symptoms after the surgeries.
At the hearing, the claimant testified that after he was released by Dr. Frazier he obtained employment with Clear Creek Furniture in Ripley building furniture, a company which is now out of business. He worked there about four days.
Currently, Mr. Mauney is driving a truck for Rolison and Sons Logging in Ripley. He is mainly a driver, but he has had to unhook trailers and to occasionally pick up a chain saw. He said he avoids mechanic work, although he is supposed to maintain his equipment. He works ten to fourteen hours a day and earns $110 a day. He has missed some time from work because of his hand problems after running a chain saw. He does not know if he can continue with the job, and he does not know of any other kind of work he can do.
Mr. Mauney's employment records at Rolison and Sons Logging in Ripley were received into evidence. He applied for work there on November 1, 1999 and he received his first pay check on November 19, 1999, in the amount of $400.00. The gross wages from November 19, 1999, to May 26, 2000, totaled $13,105, which divided by 28 weeks equals $468.04, the average weekly wage for that time period.
According to Mr. Mauney, he has been back to see Dr. Frazier a couple oftimes since being released on October 13, 1999. He said he has cramping in his fingers, popping in his wrists, numbness in his hands, throbbing in his elbows, and he wakes up during the night because of these symptoms. He thinks the vibration of driving the truck bothers his hands.
Additionally, Mr. Mauney testified that he cannot play baseball or softball anymore. He used to be a pitcher but now he cannot throw the ball.
The medical records of Dr. Randall Frazier of the Magnolia Orthopaedic & Sports Medicine Clinic in Corinth were received into evidence, and Dr. Frazier testified by deposition dated April 3, 2000. Dr. Frazier is a board-certified orthopaedic surgeon who practiced with the Campbell Clinic in Memphis from 1987 to 1991.
Dr. Frazier first saw Jimmy Dale Mauney on June 25, 1999, for complaints of hand numbness and tingling. Dr. Frazier examined Mr. Mauney and diagnosed bilateral carpal tunnel syndrome. Dr. Frazier noted Mr. Mauney had failed at conservative measures, and he scheduled surgical releases on each carpal ligament. Dr. Frazier perfonned surgery on the left wrist on July 1, 1999, and on the right, July 13, 1999.
Dr. Frazier followed up with Mr. Mauney who continued to complain of pain and cramping after using his hands. Dr. Frazier released him on November 30, 1999. He assigned October 13, 1999, as the date of maximum medical recovery. Dr. Frazier ordered a functional capacity evaluation, and the testing showed that Mr. Mauney could do heavy to very heavy work and needed no restrictions. Dr. Frazier assigned an impairment rating of 5% to each arm pursuant to the AMA Guidelines to Impairment, 4th Edition.
Dr. Frazier testified that Mr. Mauney continued to complain ofproblems, particularly pain in the back part of the hand and loss of grip strength. He was having pain with prolonged gripping and impact use. Dr. Frazier last saw Mr. Mauney on March 21, 2000, when he complained of intermittent wrist pain but not numbness or tingling. The pain was not described as disabling Mr. Mauney demonstrated full motion of the wrist on examination. Dr. Frazier said he did not sense any malingering but that the claimant had a desire to continue working.
When questioned about restrictions, Dr. Frazier said he did not assign any initially but that after Mr. Mauney complained of trouble and pain in November 1999, Dr. Frazier advised him not do the activities that caused him pain. Mr. Mauney had complained of trouble after prolonged gripping, pushing and pulling with a grip, and any type of vibration from equipment. Dr. Frazier said, "Um, they're jobs that if he did them and they hurt his hands, then he would be advised to not do those type ofjobs." (Exhibit 2, p. 8).
When asked to explain his position about restrictions, Dr. Frazier responded
When asked about more specific restrictions, Dr. Frazier answered that Mr. Mauney should not do prolonged gripping, prolonged pulling or pushing, anything that would involve vibration, or prolonged typing. Dr. Frazier said he could use a staple gun or a regular hammer or an air hammer on an occasional basis but not full time. Dr. Frazier said Mr. Mauney could do upholstery work but he would "be at risk of re-injury." (Exhibit 2, p. 10). When pressed about whether he could verify Mr. Mauney's subjective complaints, Dr. Frazier responded
The functional capacity evaluation results were attached to Dr. Frazier's
records. The test results indicate the claimant was able to do heavy to
very heavy work, that is, lifting 100 pounds or more, but that he has limitations
in isometric push and pull strength, active range of motion in both wrists,
and lack of knowledge and application of material handling and safe back
techniques. The therapist noted the claimant put forth good effort
throughout the evaluation but evidenced poor motivation to return to work
in his verbalizations. The therapist recommended release without restrictions.
After carefully considering the pleadings, pretrial statements, stipulations, lay and medical evidence, the demeanor of the claimant at the hearing, and the applicable law, the Administrative Judge finds as follows:
1. The claimant, Jimmy Dale Mauney, received a work-related, repetitive-motion injury to both arms in March 1998 in the form of bilateral carpal tunnel syndrome, as alleged in the petition to controvert and as stipulated by the employer and carrier.
2. The average weekly wage of the claimant in March 1998 was $485.83, as stipulated by the parties.
3. Because of the work injury, the claimant was temporarily totally disabled from July 1 through October 13, 1999, the date of maximum medical improvement assigned by Dr. Frazier, and the employer and carrier paid temporary total disability benefits during that time.
4. The employer and carrier have also paid for all medical services and supplies rendered the claimant to date.
5. There is no question that the claimant's injury arose out of his work at Dumas Furniture. The employer and carrier have stipulated to that effect and have paid the claimant permanent partial disability benefits based on Dr. Frazier's assignment of a permanent medical impairment rating of 5% to each arm.
The issue is whether he has suffered an occupational or industrial loss greater than the medical impairment. It is the opinion of this Administrative Judge that Jimmy Dale Mauney has suffered an industrial loss of use of 50% of each arm resulting in an award of 200 weeks of permanent partial disability benefits, with credit, of course, for what the employer and carrier have already paid.
Dr. Frazier has not come right out and restricted Mr. Mauney from returning to his former (and longtime) employment as an upholsterer but has simply said that if he does do so he may be risking re-injury. Basing his opinion on the subjective complaints of the claimant regarding work tasks, Dr. Frazier has suggested but not ordered work restrictions from repetitive motion tasks of prolonged gripping, pushing and pulling with a grip, full-time use of a staple gun or hammer, and from tasks involving vibration, the first three of these indicating Mr. Mauney may be at risk of re-injury is he does the kind of upholstery work he did for eighteen years. Dr. Frazier found no reason not to believe Mr. Mauney's complaints of pain upon doing these kinds of tasks on a repetitive basis, and the fact that a carpal tunnel problem can recur is enough to justify work restrictions. Avoiding recurrence is a very real and sensible concern.
The occupational therapist who administered the functional capacity evaluation, on the other hand, thought the claimant exhibited lack of motivation for return to work because of things that Mr. Mauney said to him, and it was his recommendation that there be no work restrictions assigned because of the lack of motivation expressed by the claimant and by the good performance on the physical portion of the test. Dr. Frazier's subsequently assigned work restrictions sound more reasonable than the therapist's recommendation of no limitations, however, particularly since Mr. Mauney has returned to gainful employment. Further, Mr. Mauney seemed sincere in his testimony.
Mr. Mauney has found subsequent employment in a line of work that he
can do, driving a truck for Rolison and Sons Logging, and he is earning
an average weekly wage of $468.04, which is almost as much as he was making
at Dumas Furniture, Inc., the employer in this case ($485.83). But if Mr.
Mauney is best advised to avoid to his longtime work as an upholsterer,
he has a very real occupational disability or industrial loss of use of
his arms, the equivalent of 100% industrial loss of use of one arm, or
a total of 200 weeks of benefits.
IT IS THEREFORE ORDERED that the employer and carrier pay workers' compensation benefits to the claimant as follows:
1. Permanent partial disability benefits at the rate of $279.78 per week beginning October 14, 1999, and continuing for a period of two hundred (200 weeks), with credit for any such payments already paid by the employer or carrier;
2. Penalties and interest on all due and unpaid compensation benefits;
3. Provide medical services and supplies as required by the nature of the claimant's injury and the process of his recovery therefrom pursuant to Mississippi Code Annotated §71-3-15 (1995), General Rule 12, and the Medical Fee Schedule.
SO ORDERED, this the 15th day of June, 2000.
LINDA A. THOMPSON
ADMINISTRATIVE JUDGE
ATTEST:
Brenda H. Goolsby, Secretary