Howard Indus. v. Hayes
| Decision Date | 11 October 2022 |
| Docket Number | 2021-WC-00694-COA,2021-WC-00695-COA |
| Parties | HOWARD INDUSTRIES, INC. APPELLANT/ CROSS-APPELLEE v. SELINA HAYES APPELLEE/ CROSS-APPELLANT HOWARD INDUSTRIES, INC. APPELLANT/ CROSS-APPELLEE v. SELINA HAYES APPELLEE/ CROSS-APPELLANT |
| Court | Mississippi Court of Appeals |
BEFORE CARLTON, P.J., McDONALD AND WESTBROOKS, JJ.
¶1. This is a consolidated appeal from one order addressing two consolidated worker's compensation claims filed by Selina Hayes for injuries she suffered in 2007 and 2015 at Howard Industries Inc.'s plant in Laurel, Mississippi. The Mississippi Worker's Compensation Commission (MWCC) order affirmed an administrative judge's (AJ) ruling that imposed sanctions and attorney's fees against Howard Industries' attorney for misleading the MWCC and delaying the proceedings. The MWCC also affirmed the AJ's award of permanent disability benefits to Hayes, albeit in a lesser amount than the AJ awarded.
¶2. Howard Industries appeals from the full Commission's order, arguing that the sanctions and attorney's fees are unwarranted and that Hayes suffered no loss of wageearning capacity as a result of her 2007 injury or industrial loss of use as a result of her 2015 injury. Hayes cross-appeals and argues that the sanctions and attorney's fees should be assessed against Howard Industries itself, its expert witness, and the attorney. Having reviewed the record arguments of parties, and relevant precedent, we affirm the full Commission's order.
¶3. On June 28, 2007, while working as a coil winder at Howard Industries, Hayes tripped over an airhose, fell backward, and injured her head, neck, shoulder, and back.[1] She received medical treatment, but no surgery was required. At the time of her injury, Hayes was earning $12.43 per hour (or $510 per week). Hayes began receiving benefits from Howard Industries, which is self-insured for worker's compensation coverage. Hayes reached maximum medical improvement (MMI) from this injury on September 24, 2008, and her doctors said that she could return to work at medium level with some lifting restrictions. Her doctor indicated that she suffered a 2% whole person impairment to her cervical spine and a 5% whole person impairment to her lumbar spine. Hayes returned to her coil winder position, which entailed lifting twenty-pound to one-hundred-pound coils of wire above shoulder height, while she pursued her entitlement to compensation for permanent disability benefits because of the impairments noted by her doctor (MWCC Cause No. 070775-M-6861).[2]
¶4. In April 2015, Hayes earnings as a coil winder had increased to $13.43 per hour, and with overtime, she made $672.47 per week. However, on April 14, 2015, while lifting eightgauge wire over her head, Hayes injured both her arms, shoulders, back, and neck. On April 27, 2015, Hayes underwent surgery on her right shoulder and received worker's compensation payments while she was not working.
¶5. On February 4, 2016, Hayes filed a petition to controvert with the MWCC concerning this second injury (MWCC Cause No. 1503857-P-0960-D). She claimed that Howard Industries had failed to pay permanent disability benefits. On February 25, 2016, Howard Industries filed an answer denying that Hayes had suffered any temporary or permanent disability from the injury or any loss of wage-earning capacity.
¶6. Thereafter, Howard Industries' claims consultant, Larry Jackson, filed several notices with the MWCC concerning payments made to Hayes. On September 17, 2015, acknowledging Hayes's temporary total disability, Jackson reported that payments of $463.50 per week were being paid. On April 29, 2016, Jackson reported that Hayes's payments were suspended and were last paid on April 11, 2016, because Hayes had returned to work on April 12, 2016.
¶7. On January 31, 2017, Hayes's treating physician, Dr. Richard O'Keefe, determined that Hayes had reached maximum medical improvement with the following restrictions: no above shoulder work and a twenty-pound-lifting restriction. He also determined that she had a 5% permanent partial impairment of the right shoulder from her on-the-job-injury. Dr. O'Keefe had previously also referred Hayes to Joey Cooley at Genesis Physical Therapy who evaluated Hayes and prepared a Functional Capacity Evaluation (FCE) on January 13, 2017.
Cooley determined that Hayes could only work five days a week for a total of forty hours per week with no lifting above her shoulders and a weight limit of twenty pounds. Dr. Rhett Hobgood had also performed a similar evaluation on January 26, 2017, and opined that she had a 5% impairment to her right upper extremity. He agreed with both Cooley and O'Keefe in their findings of impairment and future work restrictions.
¶8. Howard Industries accommodated Hayes on her return to work by giving her the position of coil winder trainer, which did not require her to handle the wire but only to instruct trainees on how to do the job. In that position, Hayes made $14.18 per hour (or $567.20 per week). However, where other coil winder trainers had to work overtime (up to twenty hours per week),[3] Hayes was restricted to working only forty hours per week and therefore, she did not earn what the other coil winder trainers actually made.
¶9. On February 14, 2019, Hayes moved the MWCC to consolidate her 2007 injury claim with her 2015 injury case. Howard Industries replied that it would not oppose consolidation, if the trial date, which had been set for the first case, be vacated. On March 6, 2019, the AJ consolidated the cases.
¶10. On April 30, 2019, Howard Industries' attorney, Richard Lewis Yoder, filed a prehearing statement identifying Peter Mills as an expert in vocational rehabilitation and attaching a report Mills had prepared. The company had engaged Mills to prepare a vocational report "for job analysis of the position of coil winder trainer." In a written report dated April 25, 2019, Mills summarized Hayes's medical records that he reviewed, including those of Dr. O'Keefe and Dr. Hobgood who assessed Hayes's physical limitations. Mills then described the position of a coil winder trainer and concluded that it was within the physical limitations set by Hayes's medical doctors. Mills also attached a form to that report, which summarized the coil winder trainer's job description and work hours, including daily hours from 7:00 a.m. to 5:30 p.m., six days a week, and twenty hours a week of overtime. This job analysis clearly showed that Hayes' no-overtime-work restriction resulted in loss of wages compared to what other coil winder trainers made.
¶11. However, three days later, on May 2, 2019, Yoder filed a supplemental pre-hearing statement, with "Attachment 4" that read "Vocational Labor Market Reports," provided Mills's name and address, and stated, "Mr. Mills will testify live at this hearing pursuant to his vocation report dated April 25, 2019, with corrected Job Analysis." This was followed with Mills's April 25, 2019 written opinion, unchanged, with a new summary form indicating that coil winder trainers worked 7:00 a.m. to 3:30 p.m. only five days a week with no overtime. With this new attachment, Mills's report now reflected that the coil winder position at Howard Industries did not include overtime and that Hayes suffered no loss of earnings.
(2) Bruce Brawner for Hayes
¶12. On April 18, 2019, Bruce Brawner, Hayes's vocational expert, issued a report based on his interview with her on March 1, 2019, and his review of her medical records and work history. He reviewed both jobs Hayes had held-the coil winder position she had before and after her 2007 injury, as well as the coil-winder trainer position she was given after her 2015 injury. Brawner stated that according to the Department of Labor, the coil winder position is classified as "heavy" work. He noted the physical requirements that each job required, including but not limited to lifting, standing, sitting, pushing, et cetera. Brawner also reviewed the medical findings from the various doctors who treated or assessed Hayes for both her 2007 and 2015 injuries and the restrictions they placed on her after each injury. He noted that as a result of the 2007 injury, Dr. Vohra determined that Hayes had a impairment of 2% to the whole person for her cervical spine and 5% to the whole person for her lumbar spine. Brawner reviewed Hayes's employment history and determined what skills and abilities she had at those times.
¶13. Brawner opined that as a result of her 2007 injury, Hayes sustained a 13% loss of access to her pre-injury jobs. He also opined that she had an 11% loss of access to the jobs she may be qualify for under the "Guide to Occupational Exploration." Using the larger number of jobs in the Department of Labor's "Dictionary of Occupational Titles," Brawner determined that Hayes had a 10% loss of access due to the 2007 injury. He further determined that in these jobs, Hayes was capable of earning $9.57 per hour (or $382.80 per week). This was definitely less than the $510.40 she was earning as a coil winder at the time of her injury and when she returned to work.
¶14. Brawner performed a similar analysis to conclude a loss of access to jobs due to Hayes's 2015 injury, using the 5% permanent impairment to Hayes's right shoulder assessed by Dr. O'Keefe. He concluded that she had the same percentages of loss of access to outside jobs that she had from...
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