Howard Indus., Inc. v. Hardaway

• Decision Date: 15 September 2015
• Docket Number: No. 2014–WC–00696–COA.,2014–WC–00696–COA.
• Citation: 191 So.3d 1257
• Parties: HOWARD INDUSTRIES, INC. Appellant, v. Vince HARDAWAY, Appellee.
• Court: Mississippi Court of Appeals

191 So.3d 1257

HOWARD INDUSTRIES, INC. Appellant,

v.Vince HARDAWAY, Appellee.

No. 2014–WC–00696–COA.

Court of Appeals of Mississippi.

Sept. 15, 2015.

Rehearing Denied Feb. 16, 2016.

Certiorari Denied May 19, 2016.

Douglas S. Boone, Laurel, attorney for appellant.

Roger K. Doolittle, Jackson, Jonathan B. Fairbank, attorneys for appellee.

Before IRVING, P.J., JAMES and WILSON, JJ.

WILSON, J., for the Court:

¶ 1. The Mississippi Workers' Compensation Commission (Commission) found that Vince Hardaway suffered a job-related injury while employed at Howard Industries Inc. and awarded him temporary partial disability benefits and permanent partial disability benefits. Howard Industries appeals the Commission's decision. The primary issues that Howard Industries raises concern conflicting testimony about the nature of Hardaway's job duties and conflicting medical evidence. Such conflicts in the evidence are resolved by the Commission, not this Court, provided that substantial evidence supports the Commission's findings. The Commission's decision in this case was based on substantial evidence, and Howard Industries' other arguments lack merit. Thus, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Hardaway began working for Howard Industries in September 2008 as a “lacer” assembling transformer coils and cores. Two months later, he moved to the assembly department, where he worked as a “set-up person.” In this role, he located various sized coils, cores, pans, and clamps needed to complete a transformer. He would place these items on a board, which he then pushed down a roller bed for the lacers to use in the assembly of the transformers. This act of pushing the loaded boards became the basis of Hardaway's claim that he had suffered a work-related injury, and the nature of and physical exertion required to perform the task were the subject of conflicting evidence before the Commission.

¶ 3. In July 2009, Hardaway experienced what he described as severe shocks and numbness in his fingers and hands, which he reported to his supervisor. Hardaway first saw a company nurse, who sent him to Dr. Joseph Danford at the Hattiesburg clinic, who referred him to Dr. Steven Nowicki of the Laurel Bone and Joint Clinic. Dr. Nowicki diagnosed Hardaway with bilateral carpal tunnel syndrome, began Hardaway's treatment, and restricted Hardaway to light-duty work. In September 2009, after Hardaway had reported no improvement in his symptoms, Dr. Nowicki performed surgery—a left carpal tunnel release —and ultimately released Hardaway to full duty on March 25, 2010. Thereafter, Hardaway continued to work at Howard Industries.

¶ 4. Hardaway returned to Dr. Nowicki in May 2010, complaining of severe shocks in his right hand. Dr. Nowicki resumed treatment and again restricted Hardaway to light-duty work. On August 11, 2010, Dr. Nowicki performed a right carpal tunnel release on Hardaway. On August 24, 2010, Dr. Nowicki released Hardaway to return to light-duty work, which he did, until he was fired for insubordination on October 6, 2010. Even after his termination, Hardaway continued treatment for bilateral carpal tunnel syndrome, and Hardaway reached maximum medical improvement, per Dr. Nowicki, as of January 13, 2011. Dr. Nowicki assessed Hardaway with a thirteen percent permanent medical impairment to each upper extremity (wrist) and permanent work restrictions against repetitive grasping, gripping, or using knives or scissors and more than occasional lifting of more than two or three pounds.

¶ 5. Hardaway filed his petition to controvert on January 18, 2011, alleging injuries to both of his upper extremities. Howard Industries answered Hardaway's petition by claiming that it could not admit or deny Hardaway's injury was work-related; however, it agreed to pay Hardaway fifty-two weeks of permanent partial disability benefits, which the Commission permitted to be paid in a lump sum. Howard Industries ultimately contested that Hardaway's injuries were work-related, and it denied liability for further payments.

¶ 6. Hardaway saw Dr. Rahul Vohra in April 2011 and June 2011 for an independent medical examination. Dr. Vohra examined Hardaway and his medical records, and he agreed that Hardaway had achieved maximum medical improvement. Dr. Vohra assessed a five percent permanent medical impairment to each upper extremity, and he restricted Hardaway from work that required “repetitive or continuous gripping or repetitive or continuous wrist flexion and extension.” During his deposition, Dr. Vohra testified that whether Hardaway's work activities caused or contributed to his injuries depended on the frequency and forcefulness of the wrist extensions and flexion his job involved.

¶ 7. At the request of Howard Industries, Hardaway was also examined by Dr. Howard Katz. Dr. Katz examined Hardaway on July 29, 2011, and reviewed his medical records. Dr. Katz opined that Hardaway's carpal tunnel syndrome was not related to his work duties and was more likely caused by Hardaway's obesity and gout. He concluded that Hardaway had a four percent permanent medical impairment to each upper extremity, and Hardaway should wear carpal tunnel splints while sleeping and when repetitively stressing his upper extremities to prevent hyperextension and hyperflexion. Dr. Katz also attended the hearing before the administrative judge (AJ) and testified that, after hearing the evidence presented, his opinion remained unchanged.

¶ 8. After a contentious prehearing discovery phase, Howard Industries and Hardaway appeared before the AJ for evidentiary hearings on July 17, 2012, August 7, 2012, and September 20, 2012. The AJ entered an order on July 15, 2013, awarding Hardaway temporary partial disability benefits for the time periods of July 9–10, 2009; July 24 to August 5, 2009; and August 23 to October 6, 2010. The AJ also awarded Hardaway permanent partial disability benefits for sixty weeks at the rate of $414.29 per week due to the “industrial loss of use of [Hardaway's] left upper extremity,” and he was awarded the same for his right upper extremity, with the “awards to run consecutively [.]”¹ The Commission affirmed the AJ's order and adopted its findings, except as it related to the award of temporary partial disability. The Commission found that, on the facts of this case, the proper rate of temporary partial disability benefits was “sixty-six and two-thirds percent (66 2/3%) of the difference between [Hardaway's] stipulated average weekly wage of $721.80 and the wages actually earned” by Hardaway during the relevant periods.

¶ 9. Howard Industries raises five issues in its appeal, some of which involve multiple subissues, which we summarize as follows: (1) whether the Commission's finding that Hardaway suffered a compensable injury was based on substantial evidence; (2) whether the Commission's award of temporary partial disability benefits was based on substantial evidence and whether the Commission properly calculated those benefits; (3) whether the Commission's finding that Hardaway has a permanent medical impairment is based on substantial evidence; (4) whether opposing counsel's contacts with a nonmanagerial Howard Industries employee warranted sanctions or some other action by the AJ or the Commission; and (5) whether Howard Industries was unfairly limited in its ability to examine witnesses, and whether the AJ and Commission abused their discretion by not admitting into evidence the claimant's prehearing deposition. We address these issues in turn below. Finding no reversible error, we affirm.

STANDARD OF REVIEW

¶ 10 In workers' compensation cases, “[t]his Court's review is limited to determining whether the Commission's decision was supported by substantial evidence, was arbitrary and capricious, was beyond the scope or power of the agency to make, or violated ... constitutional or statutory rights.... [T]he Commission is the ultimate fact-finder and judge of the credibility of witnesses; therefore, we may not reweigh the evidence that was before the Commission.”

Pulliam v. Miss. State Hudspeth Reg'l Ctr., 147 So.3d 864, 868 (¶ 16) (Miss.Ct.App.2014) (citations and quotation marks omitted). “When the Commission's decision is supported by substantial evidence, ... it must be upheld. This remains true even though we might have reached a different conclusion were we the trier of fact.” Parker v. Ashley Furniture Indus., 164 So.3d 1081, 1083–84 (¶ 11) (Miss.Ct.App.2015) (quoting Smith v. Johnston Tombigbee Furniture Mfg. Co., 43 So.3d 1159, 1164 (¶ 15) (Miss.Ct.App.2010) ). “Furthermore, ‘we are reminded that workers' compensation law is to be liberally and broadly construed, resolving doubtful cases in favor of compensation so that the beneficent purposes of the act may be accomplished.’ ” Prentice v. Schindler Elevator Co., 13 So.3d 1258, 1260–61 (¶ 7) (Miss.2009) (quoting McCrary v. City of Biloxi, 757 So.2d 978, 982 (¶ 18) (Miss.2000) ).²

ANALYSIS

I. Compensability

¶ 11. Howard Industries first argues that the Commission's finding that Hardaway's carpal tunnel syndrome arose out of his employment was not based on substantial evidence.³ In support of this argument, Howard Industries focuses on Dr. Katz's testimony that Hardaway's carpal tunnel syndrome was the result of his gout and obesity, not his work duties, and the testimony of Hardaway's coworker, Melvin Brown, that Hardaway spent most of his time gathering and scanning items as opposed to actually pushing the units. Howard Industries also relies heavily on a video that it created that supposedly demonstrates Hardaway's job duties. Howard Industries argues that this evidence proves that Hardaway did not engage in repetitive movements, nor did he have to hyperextend his hands forcefully to push the units. Relying on Fresenius Medical Care v. Woolfolk ex rel Woolfolk, 920 So.2d 1024 (Miss.Ct.App.2005), Howard Industries also argues that the Commission should not have relied on other physicians' medical opinions linking...