MWCC NO. 99 08694-G-5967-C-00
 

BETTY LEE STAFFORD  vs. ORECK MFG. CO.  AND THE TRAVELERS INSURANCE COMPANY

CLAIMANT     EMPLOYER CARRIER

REPRESENTING CLAIMANT:
Honorable Jim Davis, Attorney at Law, Gulfport, Mississippi

REPRESENTING DEFENDANT:
Honorable Donald P. Moore, Attorney at Law, Gulfport, Mississippi
 

The Commission heard the above styled cause on June 4, 2001 in the offices of the Mississippi Workers' Compensation Commission, Jackson, Mississippi on the Claimant's "Petition for Review", by the Full Commission.

Having heard the arguments offered on behalf of the parties and having thoroughly studied the record and the applicable law, the Commission affirms the "Order of Administrative Judge" dated December 29, 2000.

SO ORDERED, this the 6th day of June, 2001.

MISSISSIPPI WORKERS' COMPENSATION COMMISSION
BY: BARRETT SMITH
BARNEY SCHOBY
COMMISSIONERS

ATTEST:
Jo Ann McDonald, Secretary
___________________________
 

MWCC NO. 99 08694-G-5967-C-00
 

BETTY LEE STAFFORD  vs. ORECK MFG. CO.  AND THE TRAVELERS' INS. CO.

CLAIMANT     EMPLOYER CARRIER

APPEARING FOR CLAIMANT:
Jim Davis, Attorney at Law, Gulfport, Mississippi

APPEARING FOR EMPLOYER/CARRIER:
Donald P. Moore, Attorney at Law, Gulfport, Mississippi
 

The claimant, Betty Lee Stafford, sustained an admittedly compensable injury to her neck on October 26, 1998 while in the course and scope of her employment with Oreck Manufacturing Company (hereinafter "Oreck"). At a hearing on the merits of the claimant's Petition to Controvert, held on December 14, 2000 in Municipal Courtroom B, Gulfport, Mississippi, the parties stipulated to the following facts:

1. The claimant's average weekly wage at the time of injury was $334.00.

2. The claimant reached maximum medical improvement on April 14, 1999.

3. The claimant lost no time from work as a result of this injury.
 

The sole issue for decision by the Administrative Judge is the nature and extent of the claimant's permanent disability and loss of wage earning capacity.
 

The claimant, Betty Lee Stafford, testified on direct examination and by deposition (exhibit GEN-6). She is a resident of Humboldt, Tennessee, who formerly lived in Gulfport, Mississippi. She graduated from Humboldt High School in 1962 and attended Chestnut Beautician School, obtaining a certificate and becoming licensed as a beautician in the State of Tennessee. The claimant also attended Phillips Junior College in 1989 for a period of nine months, studying as a medical administrative assistant. She did not complete this course of study.

The claimant testified to a variety of employments upon completion of high school, including Wayne Knitting Mills, placing stockings on forms; Southern Foundation, sewing bras; Harvey Aluminum, as inspector, packer and other line positions; Criterion Mobile Homes, hanging drapes; Brown Shoe Company, repairing, nailing heels, and packing; Kellwood, as a seamstress of coats, pajamas, dresses and jogging suits; Douglas and Lomason, making car seats; Sterling Enterprises, manufacturing garbage cans; Shoney's, as a server; Inner City Products, wiring air-conditioners; and Swingsters, a garment factory where the claimant manufactured hats.

The claimant testified that at Oreck she performed light and lamp housing assembly on upright vacuum cleaners, screwing a foundation over the lamp housing. After two weeks she was promoted to material handler, where she was required to bring parts to the line. She was subsequently promoted to a line supervisor, but when that line was disbanded, she returned to the material handler position, which she was performing at the time of injury. Although injured and seeking medical assistance, Ms. Stafford lost no work time as a result of her injury.

Ms. Stafford testified that she determined to voluntarily quit her job at Oreck in December of 1999 to move to Jackson, Tennessee. She testified that she made this decision because her landlord had given her 30 days notice to move out of the rental house in which she and her daughter, Kimberly Hamm, resided. She and her daughter looked for reasonable accommodations in a safe neighborhood, determined that none could be found, and thus moved to Tennessee where her remaining two children lived who had vowed to assist her financially. When asked if her injury played a part in her decision to move, she testified: "I knew that eventually I would not be able to do this job." Ms. Stafford admitted, however, that she did not relate to agents of Oreck any reason for leaving her employment except to be closer to her family, not mentioning to Oreck her financial plight nor her belief that at some point in the future she would be unable to perform her job.

Ms. Stafford testified as to two principal positions she held at Oreck and physical requirements of each. They are as follows:

assembler work: earning $7.35 per hour; team members rotated to do inspection, pack manufactured parts, and use a screw driver which weighed between 8-10 pounds. Ms. Stafford testified that she was employed at Oreck doing this particular job, and that she likewise performed this job after she reached maximum medical improvement in April of 1999.

material handler: also referred to as stock mover; earning $8.35 per hour; responsible for moving material needed by assemblers to the assembly line; not required to lift more than 25 pounds. Ms. Stafford served as a material handler after working as an assembler and prior to working as a team leader; after her team was disbanded, she began to work as a material handler again. After her injury at Oreck, when she returned to light duty, she retained the job title of material handler although she was placed on light duty and performed jobs making belt packs, weighing screws and labeling vacuum cleaner bags.

Ms. Stafford describes her current condition as experiencing constant pain from her right neck and shoulder and down into her arm. She testified that this pain has been continuous since her injury. As a result of her present condition, she performs no household chores and often takes a hot bath and lies on a heating pad. She takes over-the-counter medications as directed by Dr. Lowry, Alleve or Advil. She testified that as a result of her condition she is able to drive infrequently.

The claimant testified that when she moved to Jackson, Tennessee, she immediately became employed at the Old County Store, a restaurant, as the restaurant manager. She described this job as "perfect" for her, and testified that she was earning $400.00 per week. In September of 2000, after working at the Old Country Store for approximately 10 months, she gave her employer 30 days notice that she was going to look for a manufacturing job because she needed the benefits, including health insurance. At this time, the employer offered to raise her salary to $450.00 per week, but she would be responsible for covering absent employees, including dishwashers, cooks, shelve stockers, and waitresses. This, she testified that she could not do. In other, somewhat conflicting testimony, she indicated that the reason that she left the restaurant manager position was because she was required to cover for absent employees. However, her former explanation seems more logical.

Ms. Stafford testified that she began looking for manufacturing jobs and was actually hired by three companies: Delta Faucet, Westinghouse, and a cable operation as a machine operator. She explained how she interviewed and passed tests given by all three employers, but when she observed the job she was to perform, she determined that she could not perform any of the jobs and declined each of them. She testified that the Delta Faucet assembly line job paid $11.00 per hour plus benefits and her duties included lifting faucets which could weigh as much as 25 pounds and packing faucets as well as assembling them. At Westinghouse, she was hired to install dishwasher motors weighing 10 pounds and above by operating a hydraulic screwdriver and screwing the motor into the housing. She testified that she accomplished this by holding the motor with the left hand and screwing four to six screws in with her right hand. She also testified that she was to pack the motors, a task she could not do because after packing the motors in the appropriate boxes, she was required to "flip" the boxes. At the cable company she was hired to run a machine which winds cable around a spool, and after the spool was loaded, to hook the spool on a crane to load it on a skid and push it to another area of the plant. She testified that she knew she could not push the skid, although she never tried to do so, and declined this job.

Ms. Stafford currently works at a restaurant which she describes as a family restaurant. She is employed from 8 a.m. to 4 p.m., carries no trays or coffee cups, but does carry and pour coffee from a coffee pot which she testified weighed four and one-half to five pounds when full. The claimant's testimony about current earnings are conflicting. She testified that she earns $6.00 per hour plus tips, and then concluded that this amounted to approximately $90.00 per week plus tips.

Ms. Stafford viewed a portion of the video which was admitted into evidence as exhibit E/C-4 and admitted that she was carrying small trays of food, which she testified weighed no more than 10 pounds, and was carrying filled coffee pots and tea pitchers weighing four to five pounds, as well as reaching over and using her right arm and hand to pour tea or coffee, cleaning up dishes from tables, carrying food to people and the like.

On cross-examination the claimant admitted that she left Oreck's employ due to financial reasons and that she advised Myron, a supervisor, that she left because she missed her grandchildren.

Although on direct examination the claimant testified that she had worked regularly her entire life, on cross examination she admitted that her employment was relatively sporadic with a great deal of short term employment, and since leaving a position at an ammunition plant in 1972, had worked few places longer than one year.

Ms. Stafford testified that the last time she saw a physician for her work-related condition was April 1999. She takes no prescription medications for her condition and has lost no time off work specifically related to her injury.

Kimberly Hamm, the daughter of the claimant, testified that on the date of injury she was living with her mother. She noted changes in her mother's behavior after the injury, and reflected that after the injury, her mother no longer contributed to doing housework, that her mother changed all her daily activities, "does not want to do anything", and regularly takes Alleve and sometimes Advil.

Diane Necaise, employed with Oreck as vice-president of Human Resources for a month, had previously served as corporate director of human resources at the Long Beach plant full time until November 15, 1999 and thereafter maintained offices at the Long Beach plant and in the corporate headquarters in New Orleans. She testified that she worked full time at the Long Beach plant while the claimant was employed. She testified that the claimant was a model employee with whom the company had no complaints.

Ms. Necaise testified that the claimant had worked as an assembler, material handler, and team leader, and was working as a material handler when she reported her injury. The claimant was placed on light duty as a material handler during her period of recovery, and when she was released by Dr. Lowry, she took a position as assembler. Ms. Necaise refreshed her recollection from notes made by her on April 15, 1999 and testified that she had a conversation with the claimant, who testified that she wanted to work on the assembly line upon release. Ms. Necaise testified that she offered the claimant a job returning as a material handler lifting only 20 pounds as an accommodation in modified duty, but the claimant advised her on that date that she wanted to be an assembler. Ms. Necaise testified that the modified duty material handler position would pay $8.35 and the assembler position paid $7.35 and the claimant chose the assembler position, indicating that she did not want to "jeopardize her health".

On cross-examination, Ms. Necaise admitted that the job description of the material handler is lifting up to 25 pounds, and the claimant's release specified a 20 pound lifting restriction for six months, but testified that she explained to the claimant that her duty as a material handler could be modified to meet her medical restrictions.

Ms. Necaise testified that the claimant resigned from Oreck in December of 1999. Prior to and at the time of her resignation, she made no comments to Ms. Necaise about financial problems or difficulty in performing the job.

There is, in the testimony, some dispute about the April 1999 meeting. The claimant testified that she never met with Ms. Necaise, meeting only with Brandi Bacilio. Ms. Necaise recalled Brandi being at the meeting between her and the claimant, suggesting that Brandi brought the claimant to her office, but later in a deposition said that Brandi was not present.

Myron Johnston, an employee of Oreck for 18 years and production manager for the last eight years, testified that she was a supervisor of the claimant during her employ at Oreck. She characterized the claimant as a good worker. She testified that after the claimant's injury, she continued to work in a light duty position, although she continued technically in her position as material handler and was paid accordingly.

Ms. Johnston testified that the claimant came to her to resign and advised that she was quitting to return to family in Tennessee. Ms. Johnston testified that the claimant mentioned nothing about her injury or financial problems.

Dr. Michael W. Lowry, a neurosurgeon practicing in Gulfport, Mississippi, testified that he first saw the claimant on March 3, 1999 on referral from Dr. Rodriguez. At that time she described an injury occurring on October 28, 1998 at work lifting a tub from a skid to a trolley. She experienced right shoulder pain, which did not resolve. She saw Dr. McNally after several days. Dr. McNally referred her to Dr. Rodriguez, an orthopaedic surgeon, who prescribed physical therapy. The claimant related to Dr. Lowry that the physical therapy improved her condition but the improvement did not last. She experienced tingling sensations in her right arm and numbness at times, together with pain in her neck and arm. An MRI requested by Dr. Rodriguez, performed on January 27, 1999, revealed significant degenerative cervical disc disease at several levels, specifically C5-6 and greater at C6-7.

Dr. Lowry performed a physical examination and determined that the claimant exhibited positive mechanical signs of nerve root irritation, no particular weakness or indication that the claimant experienced nerve root injury, but decreased sensation in the right thumb and index finger. Dr. Lowry suggested cervical traction, which the claimant advised on March 17, 1999, her return visit, had not helped. Dr. Lowry recommended a cervical myelogram on that date, but the claimant demurred.

On April 14, 1999, the claimant returned to Dr. Lowry indicating that she had reached a point where her cervical pain had become manageable and had continued working at light duty. She indicated that she did not want surgery and was willing to live with the pain she was experiencing. Thus, the need for the myelogram resolved.

Dr. Lowry opined that the claimant's diagnosis was degenerative cervical disc at C6-7 with irritation of the nerve root which passes that disc. He assessed a 5% permanent partial medical impairment resulting from her discomfort, pain and difficulty in moving her neck. He assessed a lifting restriction of 20 pounds for a period of six months. Dr. Lowry indicated that after the six month period, the claimant should not lift greater than 60 pounds but there would be every reason to think that she could [resume a job]."¹

Dr. Lowry's medical records affidavit was also admitted into evidence at exhibit Gen-2. The testimony contained therein is consistent with his deposition testimony. Contained in his notes are a reflection that after March 4, 1999 the claimant should "continue light duty" and that on April 15, 1999 she is released to return to "regular duty not to lift over 20 pounds."

Exhibit Gen-3 contains a stipulation which is reflected here in full:

Claimant stipulates to the authenticity of video tape filmed by Comprehensive Investigations, Inc. on December 2 and 3, 1999, and further stipulates to the authenticity of surveillance reports prepared in conjunction with the video tape and by Comprehensive Investigations, Inc. and Claimant waives her right to cross-examination of Investigator, Lynn Morrow and further waives an objection to admissibility of the video tape and reports that Employer intends to offer at the hearing re-scheduled for December 14, 2000 at 9:00 a.m.

Exhibit CL-7 is the job posting for assembly material handler, a position the claimant held at the time of injury. In the list of skills required, it is noted that the performance of this position requires that the employee "must be able to lift 25 lbs. consistently."

Exhibit Gen-8, interrogatory responses, are generally consistent with the claimant's testimony on direct and cross-examination.

Exhibit E/C-9, Ms. Stafford's letter of resignation, gives a two week notice, indicating the reason for leaving Oreck is the claimant's move to Jackson, Tennessee. The Chance of Status Notice (exhibit E/C-10) contains information consistent with exhibit E/C-9 and with the claimant's testimony, as well as the testimony of Myron Johnston.
 

After considering the lay and expert testimony adduced in this cause, together with the documentary evidence and the relevant law, the undersigned finds as follows:

1. The claimant suffered an admittedly compensable injury on October 26, 1998 while in the employ of the Oreck.

2. The claimant reached maximum medical improvement on April 14, 1999.

3. The critical issue, as identified by the parties, is the claimant's permanent disability and loss of wage earning capacity. The statute defines disability as "incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or other employment."² The statute goes on to indicate that incapacity must be supported by medical findings.

4. It is clear that the injury sustained by the claimant resulted in a measure of physical incapacity. Dr. Lowry, the claimant's primary treating physician and a neurosurgeon, diagnosed the claimant as having degenerative disc disease with involvement at at least two levels, greater at C6-7, and indicated nerve root impingement at that level. He indicated that the claimant had a permanent partial medical impairment due to discomfort and movement restriction at that level, and assigned the impairment percentage as 5% to the body as a whole.

5. It is questionable, however, as to whether the claimant has sustained a disabling injury. The overwhelming weight of the evidence suggests two important aspects of the claimant's wage earning capacity: First, that each decision that impacted on the claimant's ability to earn wages which she was receiving at the time of injury in the same or other employment were made by the claimant herself. Although the evidence is conflicting, the preponderance suggests that it was the claimant who returned as an assembler at a lesser rate of pay than that of material handler on April 14, 1999. It was the claimant who determined to leave Oreck in December of 1999 for reasons other than her October 1998 injury. It was the claimant who left her job at the Old Country Store where she earned an average weekly wage that exceeded her wage as material handler at Oreck. It was the claimant who, by voluntary self-limitation, determined that she could not perform the jobs which were offered to her at Delta Faucet, Westinghouse and the cable company. Second, if one believes the claimant's testimony that she currently works from 8 o'clock a.m. to 4 o'clock p.m. earning $6.00 per hour plus tips, then she is currently earning wages which exceed her Oreck wage. The claimant also characterized her current wage as $90.00 per week plus tips, but this would reflect that she was earning, exclusive of tips, approximately $2.25 per hour, much less than the minimum wage. Although the claimant's testimony relative to the wage she receives from her current employer is conflicting, there is simply no doubt that this claimant has not sustained a disability within the meaning of the statute. As has been noted frequently by the courts, even if a claimant has not managed to maintain steady employment, a demonstration of capacity for employment at wage levels which equal or exceed the pre-injury rate of pay will suffice to assist in determination of disability.
 

IT IS, THEREFORE, ORDERED AND ADJUDGED that the employer and carrier provide to the claimant medical services and supplies pursuant to Mississippi Code Annotated, section 71-3-15 (1972 and Supp. 1999) for so long as the nature of the injury and the process of the recovery may require, with fees and charges to be limited to that allowed pursuant to the Mississippi Workers' Compensation Medical Fee Schedule.

SO ORDERED this the 29th day of December, 2000.

LYDIA QUARLES
ADMINISTRATIVE JUDGE

ATTEST:
Jo Ann McDonald, Secretary
___________________________

1. Deposition of Dr. Lowry, p.13, lines 10-11

2. Mississippi Code Ann., section 71-3-3 (i) (1972).