MWCC NO. 99-02682-G-5004
ROBERT DAUGHDRELL CLAIMANT
vs.
SCOTT PAPER
COMPANY
EMPLOYER
AND
SENTRY INSURANCE
COMPANY
CARRIER
REPRESENTING
CLAIMANT:
Lance L. Stevens, Esquire, Jackson, MS
REPRESENTING
EMPLOYER/CARRIER:
Forrest W.
Stringfellow, Esquire, Jackson, MS
This matter
was heard by the Commission on December 4, 2000 pursuant to the Claimant's
Notice of Appeal and the
Employer's
and Carrier's Cross Petition for Review. These filings were prompted by
an Order of Administrative Judge entered
August 28,
2000 which found, among other things, that the Claimant was entitled to
permanent disability benefits for a 30%
loss of wage
earning capacity and that the Employer was not entitled to credit against
this award for long term disability benefits being paid to the Claimant
pursuant to plan funded 90% by the Employer.
The Employer
and Carrier contend no loss of wage earning capacity has been shown, and
in any event, credit should be
allowed against
any award for the long term disability payments being made to Claimant.
The Claimant, on the other hand,
argues that
his loss of wage earning capacity is much greater than what the Judge found.
The existence
and extent of permanent disability and the question of credit for these
long term disability payments represent the
only issues
before us. We begin first with the question of permanent disability. Mr.
Daughdrill first injured his neck, back, left
shoulder, left
arm and head while working for Scott Paper Company on September 21, 1989.
He had been employed by Scott
since 1981
outdoor tasks such as operating a power saw, hydrax, skidder, and chipper.
Mr. Daughdrill continued to work for Scott Paper following his accident, and while receiving ongoing medical treatment. Scott Paper graciously accommodated whatever restrictions Mr. Daughdrill was given, and it was not until March 26, 1998 that Mr. Daughdrill's treating physician declared him to be at maximum medical improvement. Sometime in or around September 1998 Mr. Daughdrill and several other employees were terminated from Scott Paper as part of the Company's reorganization after, having been acquired by the Kimberly Clark Corporation.
At the time
Mr. Daughdrill was first injured, he was earning an average of $475.00
per week, but by the time he was
terminated
after having reached maximum medical improvement his average weekly wage
had increased to $612.92. Since
being terminated
Mr. Daughdrill had unquestionably made reasonable efforts to find other
suitable work. Given his eleventh
grade education,
however, along with his experience primarily in manual labor jobs and his
permanent restrictions against
lifting over
20 pounds, and against bending, stooping, climbing, or doing overhead work,
Mr. Daughdrill has, not surprisingly,
been unable
to attract any offers of employment.
Still, the Employer
and Carrier offered the testimony and expert opinion of Mr. Glenn Fortenberry,
a vocational rehabilitation
specialist
who reviewed all of Mr. Daughdrill's medical records and performed the
standard labor market survey to determine if there were suitable jobs generally
available in the Claimant's community. Mr. Fortenberry offered the opinion
that Mr. Daughdrill could become gainfully employed in the range of $5.15
to $8.00 per hour. With one exception,1
all of the prospective jobs identified by Mr. Fortenberry paid approximately
$6.00 per hour.
Unquestionably, Mr. Daughdrill has suffered a permanent loss of wage earning capacity and the question is simply one of degree. The Employer's and Carrier's own expert conceded as in such. It seems equally obvious that Mr. Daughdrill has engaged in wholly reasonable, yet unsuccessful efforts to find other suitable employment, thus proving that his loss of wage earning capacity is total. However, even if we accept the opinion of the Employer's and Carrier's expert that Mr. Daughdrill retains the capacity to earn wages of approximately $6.00 per hour, the combination of our subsequent finding as to the appropriate average weekly wage yields and the maximum benefit limits set by the Law yields an award that is in effect the equivalent of a permanent total disability award.
Turning to the
question of average weekly wage, the Mississippi Supreme Court has held
previously that in cases such as this
Finally, there
is the question of whether the Employer is entitled to credit against any
award for long term disability payments
where one continues
to work following an injury only to become disabled therefrom at a later
date, the average wages of
that person
should be computed from the point the injury becomes totally disabling.
J. H. Moon & Sons. Inc. v. Johnson,
753 So.2d 445,
448-449 (Miss. 1999); Dunn, Mississippi Workers' Compensation §66.1
(3d ed. 1982) ("The measure
of the earning
power of an employee and his correlative loss relates more to his
earnings at the
time the loss occurs when he is unable to work than at the earlier time
of the accident when he is able to continue work,
thereby receiving his earnings.") We hold that Mr. Daughdrill ultimately
became totally disabled from his injury when the Employer
was no longer able to accommodate him and terminated his employment in
or around September 1998, and it is the average
of his earnings at this point in time that determine the extent of his
loss. And it has been stipulated that Mr. Daughdrill's
average weekly
wage at this time was $612.922.
Consequently,
we find that even if Mr. Daughdrill has a current earning capacity of $6.00
per hour, his net loss of wage earning
capacity, assuming
work on a standard 40 hour per week basis, is $372.92 per week. Compensating
him for two-thirds of this
loss as required
by Miss. Code Ann. §71-3-17(c)(25)
(Rev. 2000) still yields an award of benefits for permanent partial disability
equal to the maximum allowable under the Law, or $206.60 per week for a
period not to exceed 450 weeks. Miss. Code Ann.
§71-3-13(1)
(Rev. 2000); Stuart Manufacturing Co. v. Walker, 313 So.2d 574,
576 (Miss. 1975) (maximum
amount payable
is that amount in effect at time of injury).
received by
Mr. Daughdrill. According the Judge's findings, Mr. Daughdrill receives
$1,859.20 per month from Aetna Life
Insurance Company
as long term disability benefits. This plan was apparently put into effect
by Kimberly Clark Corporation
after it purchased
Scott Paper Company. The Judge also found, and it is not
contested, that
90% of the premium for this coverage was paid by Kimberly Clark and the
remaining 10% by Mr. Daughdrill.
Citing Siemens
Energy & Automation. Inc. v. Eickens, 732 So. 2d 276 (Miss. Ct.
App. 1999) the Claimant argues no credit is
allowed because
of the fact that he paid in part for the benefit. In that case the Court
of Appeals held that credit for long term
disability
payments, separate from workers' compensation should not be allowed where
the claimant has "contributed earned
wages to the
long-term disability program." 732 So. 2d at 289. In that case, as here,
it appears the claimant only paid a part of
the total cost
for the long term disability payment, yet the Court still refused to allow
credit. We therefore affirm the Judge's
holding that
no credit is allowed in this case.
In the end,
we affirm the Judge's Order of August 28, 2000 in all respects except as
to permanent disability and average weekly wage.
On these points the Order is reversed and the Employer and Carrier are
hereby ordered to pay Mr. Daughdrill
permanent partial
disability benefits in the amount of $206.60 per week for a period not
to exceed 450 weeks, subject to the
maximum limit
on recovery of compensation as set by the Law.
SO ORDERED
this the 8th day of January, 2001.
MISSISSIPPI
WORKERS' COMPENSATION COMMISSION
BARRETT SMITH
BARNEY SCHOBY
BEVERLY BOLTON
ATTEST:
Joann McDonald, Secretary
___________________________
MWCC NO. 99 02682-G-5004
ROBERT DAUGHDRILL CLAIMANT
vs.
SCOTT PAPER
COMPANY
EMPLOYER
AND
SENTRY INSURANCE,
A MUTUAL COMPANY
CARRIER
APPEARING
FOR CLAIMANT:
Honorable Lance
L. Stevens, Attorney at Law, Jackson, Mississippi
APPEARING
FOR DEFENDANTS:
Honorable Forrest
W. Stringfellow, Attorney at Law, Jackson, Mississippi
The Claimant
filed a Petition to Controvert on or about March 1, 1999, alleging that
he suffered a work-related injury to his neck, back, left shoulder, left
arm and head on or about September 21, 1989. The Employer and Carrier admitted
compensability of the injury, provided medical services and supplies and
paid temporary total disability benefits. A hearing was held at the Workers'
Compensation Commission in Jackson, Mississippi on May 12, 2000.
1. Claimant's average weekly wage on the date of injury was $475.00.
2. All temporary total disability benefits have been paid.
3. When the Claimant
was released from his employment in 1998, his monthly wage was $2,656.00.
The existence
and extent of permanent disability and loss of wage-earning capacity resulting
from the admittedly compensable work injury.
A hearing was
held in this matter on May 12, 2000, at the Workers' Compensation Commission
in Jackson, Mississippi. The Claimant testified on his own behalf. The
Employer and Carrier called Glen Fortenberry as an expert witness. The
medical records/affidavits of Dr. Guy Rutledge and Dr. Burt Taylor were
offered into evidence as General Exhibits. The parties, pursuant to leave
of court, also presented a composite exhibit regarding long-term disability
benefits which was offered into evidence as General Exhibit 3.
The Claimant
is a 47-year old male with an eleventh grade education and no GED. Claimant
testified that he worked at various jobs after leaving high school. Claimant
said he worked approximately one year for a garment factory as a "bundle
boy"; approximately
nine years for International Paper Company as a "fork lift driver
and a straw boss";
and approximately four months for Ingalls Shipbuilding
Corporation, where
he assembled metal.
Claimant testified
that he began his employment with Scott Paper Company in
1981. His work history
consisted mainly of work "in the woods" performing different
tasks for the Employer. Claimant said he worked as a power saw operator,
an operator of a hydrax, ran a skidder, and did chipper work. He was required
to do a great deal of stooping, bending, lifting and reaching. Claimant
testified that he was employed for years following the 1989 accident and
that his physical limitations were accommodated by the Employer. He said
his post-injury history with the Employer included periods of work in a
particular position, followed by periods of rest at home and trips to the
doctor.
Claimant testified that his primary medical treatment has been tendered
by Dr. Guy Rutledge and Dr. Burt Taylor. These doctors are in the same
clinic. Claimant testified that he was happy with the medical treatment
that he received. Claimant said he was informed by Dr. Rutledge on March
26, 1998, that he had reached maximum medical recovery.
Claimant testified that Scott Paper Company was bought out around 1996 or 1997 by Kimberly Clark Corporation. He said the new company was more strict in its policies/procedures than Scott Paper Company had been and this was at a time that his physical difficulties got progressively worse. Claimant testified that he was informed in or around September of 1998, while working light duty that no further work was available for him. Claimant said he was called in by his supervisors and told that they no longer had work for him, because of his permanent restrictions and, physical limitations. Claimant said he was never told that he was being terminated because they were selling or closing that particular plant. However, Claimant went on to testify that he was not the only employee who was terminated, but that all employees were let go in August of 1999.
Claimant testified that he was told by the Employer that he would be
placed on disability and advised to file a long-term disability claim.
He last worked in 1998 with his long-term disability benefits beginning
about February, 1999.
Claimant testified of his job search efforts. Since he last worked
with the Employer, Claimant testified that he has put in approximately
40 job applications. Some of these jobs were suggested by the Employer
and Carrier's expert witness, Glen Fortenberry. Claimant
said written applications were filed at all but three places. Further,
potential employers were informed of his physical restrictions in response
to a question asked on their application regarding physical limitations.
There was further testimony from Claimant as to his existing complaints.
Claimant testified that he has difficulty holding any kind of a tool in
front of him, such as a power saw, as he cannot stand
the vibrations. His ability to drive is limited to about 10 minutes at
a time and he has numbness in his back and shoulder. Further, he is handicapped
in attempting any over-head work and cannot bend or stoop. Claimant said
he is unable to perform any of his former occupations.
Testifying as an expert witness for the Employer and Carrier was Glen
Fortenberry, a vocational rehabilitation specialist. Mr. Fortenberry testified
that he never met the Claimant; however, he had reviewed the medical records
introduced into evidence and had performed a labor market survey in the
area of the Claimant's residence. It was his opinion that the Claimant
can be gainfully employed at a rate of $5.15 to $8.00 per hour.
Mr. Fortenberry testified that he provided the Claimant with a list of job opportunities. All of the jobs that the Claimant might qualify for paid approximately $6.00 per hour. However, the job at the local prison as a prison guard paid approximately $8.39 per hour.
General Exhibit 3 shows the payment of disability benefits being received by the Claimant. The Claimant presently receives $1,859.20 monthly from Aetna Life Insurance Company. An annual premium charge of $29.22 is made by him for 10% coverage, with the remaining 90% of the coverage being provided by the Employer.
The medical records
of Dr. Guy Rutledge and Dr. Burt Taylor reflect that the Claimant was first
treated in their clinic on or about November 3, 1992. The diagnoses made
were contusion with muscle and ligament strain of the left shoulder region.
Treatment over the years consisted of injection of trigger points, physical
therapy, and prescription medications.
Dr. Rutledge
opined that the Claimant reached maximum medical improvement on or about
March 26, 1998 and assigned him a 6% impairment to the body as a whole.
Additionally, he gave permanent restrictions of no lifting over 20 pounds,
no bending, no stooping, no climbing and no overhead work above shoulder
level.
1. Claimant received
an admittedly compensable, work-related injury to his left shoulder, back
and neck on or about September 21, 1989.
2. Claimant's
average weekly wage on September 21, 1989, was $475, as stipulated by the
parties.
3. All temporary total disability benefits have been paid to the Claimant, as stipulated by the parties.
4. Claimant reached maximum medical improvement,on March 26, 1998.
5. The Claimant
has the burden of proving by a preponderance of the evidence that his injury
produced a bonafide physical impairment, which is permanent in nature,
and that as a result thereof he has suffered a loss of wage earning capacity.
I must consider whether the Claimant has made a reasonable effort to return
to the same or other gainful employment. Jordan
v. Hercules, 600
So.2d 179 at 183 (1992). Other relevant factors include Claimant's age,
education, training, prior work experience and the nature and extent of
current physical restrictions.
The evidence
shows that Dr. Guy Rutledge treated the Claimant for his work-related injury.
He released the Claimant as having reached maximum medical improvement
on March 26, 1998, with a 6% impairment rating to the body as a whole.
Additionally, Dr. Rutledge gave the Claimant permanent restrictions of
no lifting over 20 pounds, no bending, no stooping, and no overhead work
above shoulder level.
The evidence
shows that the Claimant has made numerous unsuccessful attempts to secure
employment. Claimant testified that he is unable to perform any of his
former occupations. Claimant said he has difficulty holding any kind of
a tool in front of him, such as a power saw because he cannot stand the
vibration. He said his ability to drive is limited to about 10 minutes
at a time and he has numbness in his back and shoulder. Further, he is
handicapped in attempting any overhead work and cannot bend or stoop.
Considering the evidence as a whole, including the Claimants age, education, work history, physical impairment, work restrictions and the medical and vocational expert testimony, I find that the Claimant has sustained a 30% loss of wage earning capacity.
6. The evidence
shows that the Claimant is receiving long-term disability benefits for
which he contributed a premium. I find that the Employer is not entitled
to credit for the long-term disability payments made to the Claimant, because
the Claimant contributed earned wages to the Employer's long-term disability
program.
7. Claimant,
having suffered a compensable injury, is entitled to reasonable and necessary
medical services and supplies, and by law the Employer and Carrier are
obligated to provide the Claimant with reasonable and necessary medical
services and supplies such as the nature of his injury and the process
of his recovery may require, consistent with Mississippi Code Annotated,
section 71-3-15
(1972), as amended and the Medical Fee Schedule.
8. Claimant
is entitled to penalties and interest on each installment of disability
compensation not timely paid, the equivalent of 10% thereof as provided
in Mississippi Code Annotated, Section 71-3-37(5)(1972), together with interest at the legal rate on all unpaid installments.
IT IS, THEREFORE, ORDERED AND ADJUDGED that the Employer and Carrier pay and provide compensation benefits to the Claimant as follows:
1. Permanent partial disability benefits of $95.00 per week, for a period beginning March 26, 1998, and continuing for the statutory maximum of 450 weeks thereafter. The Employer and Carrier are entitled to credit for any payments of disability heretofore made to the Claimant.
2. Pay for, furnish and provide to the Claimant all reasonable and necessary medical services and supplies as the nature of his injury and the process of his recovery may require consistent with Mississippi Code Annotated, Section 71-3-15 (1972) as amended and the Medical Fee Schedule.
3. Pay the statutory penalties pursuant to the provisions of Miss. Code Ann., 71-3-37(5) (1972).
SO ORDERED this the 28th day of August, 2000.
MELBA DIXON
ADMINISTRATIVE JUDGE
ATTEST:
Joann McDonald, Secretary
___________________________
1. The exception was a job as prison guard paying $8.39 per hour, but it seems obvious that Mr. Daughdrill, based on physical restrictions alone, is not suited for such a job.
2. The stipulation was that Mr. Daughdrill earned $2,656.00 per month, which equates to an average of $612.92 per week.