MWCC NO. 99-03307-G-5087
RAY A. LACKEY CLAIMANT
vs.
ADAMS & ASSOCIATES
EMPLOYER
AND
SECURITY INSURANCE COMPANY OF HARTFORD
CARRIER
APPEARING FOR CLAIMANT:
Honorable David J. Garner, Attorney at Law, Jackson,
Mississippi
APPEARING FOR DEFENDANTS:
Honorable Jeff Skelton, Attorney at Law, Jackson,
Mississippi
The Commission heard the above styled cause on February 5, 2001 in the offices of the Mississippi Workers' Compensation Commission in Jackson, Mississippi on Employer/Carrier's "Petition for Review".
Having heard the arguments offered on behalf of the parties and having thoroughly studied the record and the applicable law, the Commission affirms the "Opinion of the Administrative Judge" dated August 18, 2000.
SO ORDERED, this the day of 2001.
MISSISSIPPI WORKERS' COMPENSATION COMMISSION
BY: BARRETT SMITH
BARNEY SCHOBY
COMMISSIONERS
ATTEST:
Joann McDonald
___________________________
MWCC No. 99 03307-G-5087
RAY A. LACKEY CLAIMANT
vs.
ADAMS & ASSOCIATES
EMPLOYER
AND
SECURITY INSURANCE COMPANY OF HARTFORD
CARRIER
REPRESENTING THE CLAIMANT:
J. Peyton Randolph, III, Esquire, Jackson, Mississippi
REPRESENTING THE EMPLOYER/CARRIER:
Jeff Skelton, Esquire, Jackson, Mississippi
R ay A. Lackey burned his face, right arm, and.
right hand while working for Adams & Associates (Adams). Because the
parties disagreed about whether Mr. Lackey had suffered any permanent disability
from his injury, a hearing was held at the Mississippi Workers' Compensation
Building in Jackson, Mississippi on April 14, 2000, Considering all of
the facts, the Administrative Judge finds that Mr. Lackey sustained a fifty
percent permanent partial disability to his right arm because of his work-related
injury.
At the hearing the parties stipulated to these facts:
1 The Claimant sustained a compensable, work-related injury on April 10, 1997;
2. The Claimant's average weekly wage at the time of injury was $368.00;
3. The Claimant attained maximum medical improvement on February 2, 1999; and,
4. The Employer/Carrier paid the Claimant all
of the temporary benefits to which he was entitled.
The only issue is the existence and extent of
permanent disability attributable to the injury.1
1. Ray A. Lackey's Testimony
According to his testimony at the hearing, Ray A. Lackey is forty-two years old. He received a GED and studied auto mechanics at Utica Junior College.
He performed maintenance work on trucks, lawn mowers, and heavy equipment for the University Medical Center for ten years. Mr. Lackey next worked for three years for the Mississippi Department of Public Safety where he did service work on Highway Patrol cars. Since then he has worked at the Mississippi Job Corps Center, first for Rescare, Inc., and then for Adams. At the Center Mr. Lackey did maintenance work, including installing air conditioners, repairing lawn mowers and dishwashers, and replacing windows.
On April 10, 1997, he was servicing a pickup truck when the engine backfired, burning Mr. Lackey's face, right arm and right hand. He was treated first at Hardy Wilson Hospital in Hazlehurst and then at the University Medical Center. At the University Medical Center Dr. Poole performed two separate skin grafts, first on Mr. Lackey's fingers and his wrist, and second on his arm.
After rehabilitation, Mr. Lackey returned to work for Adams where he made about the same amount of money as he had before the injury.
At the time of the hearing Mr. Lackey has problems picking up small objects, such a s screws, with his right hand. He cannot lift as much as he could before the accident and must rely on the help of coworkers to accomplish his job duties (for example, installing a dishwasher). Also, his arm is not as strong now and sometimes gives way.
In addition, since the accident the weather directly affects his physical condition. The sun irritates his skin grafts, so he must wear long-sleeve shirts year round and stay out of the sun as much as possible. Mr. Lackey's employer cooperates by trying to keep him out of the sunlight.
On cross-examination Mr. Lackey agreed that after the injury he returned to the same employer in the same job he had held since November 1997. Mr. Lackey remained in that job until March 31, 1999, when a new company, Del-Jen, took over the operation of the Job Center. Then Del-Jen retained him in the same job. Mr. Lackey continues to perform the same types of work, except that he no longer paints because he cannot lift the paint buckets, or does groundskeeping because of exposure to sunlight.
Although his pre-injury average weekly wages were $368.00, his wages for the period from November 1997 through July 1999 averaged $393.00 a week. Dr. Poole allowed Mr. Lackey to return to medium work for eight hours a day, with no lifting of more than fifty pounds. Dr. Poole, however, did not assign him an impairment rating. Mr. Lackey did not recall telling Dr. Poole on February 12, 1998, that he was "able to do most work" or stating to Dr. Poole on June 1, 1999, that he had "no restrictions."2 Instead, Mr. Lackey told Dr. Poole during the June 1999 visit that he had complications.
Mr. Lackey also agreed that the work-hardening and rehabilitation had improved his strength, but that the occupational therapist had imposed the same work restrictions as Dr. Poole.
On redirect Mr. Lackey testified that his right arm and wrist had hurt during work-hardening; now his right arm was still not as durable as his left; and, the long sleeves helped, but did not solve, the problems caused by exposure to sunlight.
2. Galen V. Poole's Testimony
Galen V. Poole, a surgeon, testified by deposition. He first saw Mr. Lackey in the University Medical Center emergency room on April 10, 1997, after Mr. Lackey had been injured by the carburetor backfire. Dr. Poole diagnosed Mr. Lackey as suffering from second and third degree burns to his right hand and arm. Dr. Poole then performed two skin grafts on April 21 and May 14, 1997, respectively.
Mr. Lackey attained maximum medical improvement
on February 2, 1999, Dr. Poole did not assign
a medical impairment rating because "I do not determine disabilities."3
Dr. Poole believed that he lacked the expertise necessary to make such
determinations. He did, however, agree with the therapist's
recommendation that Mr. Lackey could perform
medium work for eight hours a day with no lifting of more than fifty
pounds. Dr. Poole also recommended that Mr. Poole wear long-sleeve shirts
and light-colored clothing to protect the
burns and reflect heat.
At the time of his deposition on September 28,
1999, Dr. Poole thought that the burns would
not adversely affect Mr. Lackey's motor skills, except for making it more
difficult for him to pick up small items, such as little screws.
3. Charles Bryant's Testimony
Charles Bryant testified that he had worked with
Mr. Lackey for eight to ten years. Before
the accident Mr. Lackey preferred to work alone, but now he needs the
assistance of a coworker. In fact, Mr. Bryant often
helped him.
Climbing and lifting bother Mr. Lackey, and now
his right hand is not as strong as before
the accident. For that reason Mr. Lackey drops tools and screws.
Mr. Bryant is the Job Center supervisor who assigns
tasks to Mr. Lackey and other employees. Because
of Mr. Lackey's physical condition, Mr. Bryant does not give
him any outside assignments when it is really hot or cold.
On cross-examination Mr. Bryant agreed that after the accident Mr. Lackey had returned to his old job and then had been hired by the new employer for "basically" the same job. In the two and a half years since returning to work, Mr. Lackey had missed several days because of his reaction to painkillers.
Mr. Lackey does earn $398.00 a week now, but he could not find another job making that much. The new employer, Del-Jen, had hired everyone in the maintenance department and given all employees a raise.
4. Audrey Buster's Testimony
Audrey Buster, Mr. Lackey's fiancee, testified that she had known Mr. Lackey for eighteen years. Since the accident, Mr. Lackey can no longer perform maintenance work on Ms. Buster's car. In addition, he cannot pick up coins with his right hand; complains about tightness in his right arm and elbow; takes many pain pills; and, must wear long-sleeves year round to shield his arm from the sun.
On cross-examination Ms. Buster admitted that
she had no first-hand knowledge of Mr. Lackey's
ability to perform his job duties since the accident.
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. The Claimant, Ray A. Lackey, suffered a compensable, work-related injury on April 10, 1997, as stipulated by the parties. On that date Mr. Lackey's average weekly wage was $368.00, as stipulated by the parties.
2. In the accident Mr. Lackey sustained second
and third degree burns to his right hand and
arm. Dr. Galen Poole performed two skin grafts on the burned areas
on April 21 and May 14, 1997. Mr. Lackey attained
maximum medical improvement on February 2,
1999, as stipulated by the parties.
3. Dr. Poole then allowed Mr. Lackey to return
to medium work for eight hours a day, with
no lifting over fifty pounds. Dr. Poole did not assign Mr. Lackey a
medical impairment rating because he (Dr. Poole),
believed that he lacked the necessary expertise
in that field.
4. Mr. Lackey resumed the same job he had held
before the accident, but he could no longer
perform by himself all of the duties of that job. Mr. Lackey now
needs the assistance of co-workers to fulfill his
job responsibilities, and his employer accommodates
him by not assigning him outside tasks when the weather is especially
hot or cold. Mr. Lackey's employer also attempts
to keep him out of the sun, so Mr. Lackey
no longer performs any groundskeeping. In addition, since the accident
Mr. Lackey does not paint because he cannot
lift the paint buckets. Finally, Mr. Lackey's dominant
right hand is weaker now, so he drops tools and has difficulty handling
small screws.
5. Since Mr. Lackey's return to work, his weekly
wages have, averaged $393.00; however, his
new employer, Del-Jen, gave everyone in the maintenance department
a raise sometime after Del-Jen took over the operation of the Job Center
on March 31, 1999. Because of his need for assistance
from his coworkers and work accommodations
from his employer, Mr. Lackey could not now find another job paying
that much.
6. The Employer/Carrier paid Mr. Lackey all of
the temporary benefits to which he was entitled,
as stipulated by the parties.
(2) Mr. Lackey's post-injury need for assistance from his coworkers to carry out his job duties;
(3) The accommodations by his employer to keep him out of the sun and inside during particularly hot or cold weather; and,
(4) The loss of strength in his right hand and his trouble grasping small items.
(3) Dr. Poole's notes of February 12, 1998, and June 1, 1999, indicate that Mr. Lackey could. perform all of the pre-injury duties of his job.
That presumption, however:
Moreover, this list is certainly not an exclusive one .... [Any] factor or condition which causes the actual post-injury wages to become a less reliable indicator of earning capacity will be considered.
In this case, Mr. Lackey can no longer perform some of his pre-injury job duties, such as painting and groundskeeping, and he needs the help of his coworkers to complete a number of other job responsibilities. In addition, Mr. Lackey's employer accommodates his physical condition by keeping him out of the sun and inside during really hot or cold weather.
Also, at least part of the difference in Mr. Lackey's
post-injury and pre-injury wages is due to
the across the board raise Del-Jen gave to all maintenance employees.
There was no evidence presented, however, concerning
the amount of that general
wage increase.
Considering all of the relevant evidence, the
Administrative Judge finds that Mr. Lackey
rebutted the presumption that his higher post-injury average weekly wage
means that he sustained no permanent loss of wage-earning
capacity from his injury. The Administrative
Judge also finds that Mr. Lackey experienced a fifty percent industrial
loss of use of his arm; therefore, Mr. Lackey is entitled to permanent
partial disability payments of sixty-six and
two-thirds percent of his average weekly wage at the
time of the injury for fifty percent of the statutory two hundred weeks.
1 . Permanent partial disability payments in the amount of $245.33 beginning February 2, 1999, and continuing for one hundred weeks;
2. Penalties and interest on any due and unpaid compensation benefits; and,
3. Provide reasonable and necessary medical services and supplies as required by the nature of the Claimant's injury and the process of his recovery therefrom, pursuant to Miss. Code Ann. Section 71-3-15 (1990), as amended, and the Medical Fee Schedule.
SO ORDERED this the 18th day of August, 2000.
MARK HENRY
ADMINISTRATIVE JUDGE
ATTEST:
Joann McDonald
___________________________
1. Previously the Administrative Judge awarded the Claimant $2000.00 for facial disfigurement.
2. Both quotations are from Dr.
Poole's office visit notes attached to his deposition, Claimant's Exhibit
1. The language was not set off with quotation marks in Dr. Poole's notes,
so the language may, or may not, be Mr. Lackey's exact words.
3. Deposition of Galen V. Poole,
M.D., Claimant's Exhibit 1, p. 18.
4. Mr. Lackey sustained injuries in one accident to two connected scheduled members: his right arm and his right hand. In light of Section 71-3-17(26), it might be logically appealing to consider the injuries to the two scheduled members separately; however, under Mississippi law the disability in such cases is based on the "loss of use of the greater member [ie., Mr. Lackey's arm]." Armstrong Cork Co. v, Sheppard, 76 So. 2d 225, 226 (Miss. 1954); see Dunn, Mississippi Workers' Compensation Section 87 (3d 1982).