Howard Industries, Inc. v. Robinson, 2001-WC-01357-COA.

• Decision Date: 29 October 2002
• Docket Number: No. 2001-WC-01357-COA.,2001-WC-01357-COA.
• Citation: 846 So.2d 245
• Parties: HOWARD INDUSTRIES, INC., Appellant/Cross-Appellee, v. Charles G. ROBINSON, Appellee/Cross-Appellant.
• Court: Mississippi Court of Appeals

846 So.2d 245

HOWARD INDUSTRIES, INC., Appellant/Cross-Appellee, v. Charles G. ROBINSON, Appellee/Cross-Appellant.

No. 2001-WC-01357-COA.

Court of Appeals of Mississippi.

October 29, 2002.

Rehearing Denied January 21, 2003.

Certiorari Denied May 22, 2003.

Douglas S. Boone, Laurel, attorney for appellant.

Thomas L. Tullos, Bay Springs, attorney for appellee.

Before SOUTHWICK, P.J., BRIDGES, and BRANTLEY, JJ.

SOUTHWICK, P.J., for the court.

¶ 1. The Workers' Compensation Commission awarded benefits to Charles G. Robinson based on both a temporary total disability and on a permanent partial disability. The employer, Howard Industries, Inc., appeals. We reject the arguments that Robinson has no permanent loss of wage earning capacity, that Howard should not be required to continue furnishing medical treatment because of a subsequent intervening injury while under the employ of another company, and that statutory penalties and interest should not have been imposed. We agree, however, that Robinson was not temporarily totally disabled for four years and that setting $75 per week as his permanent loss of wage earning capacity is unsubstantiated. We reverse and remand on those issues. We also remand for fact-findings as to when Robinson should have known that his claim of carpal tunnel syndrome was related to his employment at Howard.

STATEMENT OF THE FACTS

¶ 2. Charles Robinson finished high school in 1975. Two years later he received a certificate in welding technology from Jones County Junior College. Robinson then held various positions including maintenance work, off-shore manual labor, and welding. On June 16, 1992, Robinson went to work for Howard Industries. Robinson's duties initially were to weld the backs on transformers.

¶ 3. Robinson served in this capacity for six months, when he was promoted to crew leader. Robinson's wages increased, as did the job's responsibilities and physical requirements. Robinson now had to push 300 to 1500 pound transformers down a roller bed and, apparently with the assistance of other workers, lift 45 to 150 pound air compartments on rigs to inspect them for leaks. There was medical evidence that Robinson's weight of 130 pounds meant that, without injuries, he should not lift more than 40 to 50 pounds.

¶ 4. On February 16, 1994, Robinson suffered an undisputed on-the-job injury. Robinson was pulling a transformer on a roller bed. He tripped on a piece of stock, fell backwards, and injured his lower back. Robinson was sent by his employer to a clinic where x-rays were taken. Based on their results, Robinson was referred to a bone and joint clinic. There he was examined and ultimately referred to a neurologist, Dr. Marc D'Angelo, who became Robinson's primary physician.

¶ 5. As a result of his back injury, Robinson was unable to work for six months. At that time, Dr. D'Angelo released Robinson to return to work with certain restrictions: he was not to push more than 50 pounds nor to pick up more than 25 pounds. Robinson testified that at Howard he was told that light duty was not available. Therefore, he resumed his previous duties. Robinson held this position for approximately three months when he was moved to internal assembly. His primary duties consisted of welding and pushing coil assemblies that weighed as much as eight hundred pounds on a roller bed. Due to the physical demands of this job, Robinson started experiencing back pains, neck pains, migraine headaches, and tingling sensations in his fingers. Robinson attributed his neck pain to the fact that he was required constantly to flip his welding shield down over his eyes with a whipping motion of his neck because his hands were occupied with other aspects of his job. Robinson earned $9.28 per hour while employed in this capacity.

¶ 6. In June of 1997, Robinson went back to see Dr. D'Angelo. After nearly five months, Dr. D'Angelo released Robinson with the same restrictions as before and one more: Robinson could not weld on a repetitive basis. Dr. D'Angelo recommended that Robinson be given a work assignment in the maintenance department. Robinson was told that there was no position available in maintenance and the only job available was the one he was presently performing. Robinson resigned from Howard in November of 1997, because he was physically unable to continue working in his present position. He was earning an hourly wage of $9.88.

¶ 7. Six months later Robinson became employed by Big B Valve. The physical requirements of this job required Robinson to lift twenty pounds on a occasional basis. Robinson testified that approximately three to four months after he started working for Big B Valve and while turning his head to the left, he heard something "pop in his neck." He passed out. Shortly after this episode, Robinson was laid off. When he was terminated, Robinson had been earning $9 an hour.

¶ 8. There was testimony accepted by the administrative judge that Robinson achieved maximum medical improvement on January 5, 1998. At the time of the hearing, Robinson was employed by L & A Contractors making an hourly wage of $7. This job does not require Robinson to do any heavy lifting and is within the job restrictions placed on Robinson by Dr. D'Angelo.

¶ 9. Robinson filed two workers' compensation claims. On January 23, 1998, he filed a petition to controvert alleging a cervical injury. On February 17, 1998, Howard Industries filed its answer denying that Robinson suffered from a cervical injury. On June 19, 1998, Robinson filed another petition to controvert alleging that he suffered a lower back injury in February 1994. Howard again filed an answer and admitted that the back injury was a compensable event. On July 20, 1999, Robinson amended his petition to controvert alleging carpal tunnel syndrome in the left hand. Howard answered by asserting as an affirmative defense the statute of limitations as well as denying that Robinson's carpal tunnel syndrome was a compensable event.

¶ 10. The administrative judge ordered Howard Industries to provide Robinson with the following:

1. Temporary total benefits in the amount $243.75 per week from February 22, 1994 until May 1, 1997, and in the amount of $270.67 per week from May 1, 1997 until January 5, 1998, with credit for [workers' compensation] sums previously paid by the employer and for sums earned by the claimant during this period:

2. Permanent partial disability benefits in the amount of $75 per week commencing January 5, 1998 for a period of 450 weeks:

3. Furnish such medical, surgical, and other attendance or treatment, nurse and hospital service, medicine, crutches, artificial members, and other apparatus for such period as the nature of the injury or the process of the claimant's recovery from his cervical, lower back and/or left carpal tunnel syndrome injuries may require.

¶ 11. The judge also found that Howard's November 1997 job-offer was not consistent with the physical restrictions defined by Dr. D' Angelo. Robinson's later work for two other companies demonstrated initiative and he retained significant earning capacity. The loss in wage earning capacity was found to be $75 per week.

¶ 12. The Commission on October 12, 2000, adopted and affirmed the administrative judge's ruling with one exception. The Commission accepted that Robinson sustained a permanent loss of wage earning capacity in the amount of $75 a week, but he would not as a result be entitled to that entire amount but only to two-thirds of his lost earning capacity. The new amount of $50 a week in permanent partial disability benefits was awarded. Howard seeks reversal here.

DISCUSSION

¶ 13. The decision of the Commission will be upheld if there is substantial evidence to support it, and it is neither arbitrary nor capricious. Fleming Enter., Inc. v. Henderson, 741 So.2d 309, 314 (Miss.Ct.App.1999). Howard makes several objections to the findings of the Commission, all of which will be judged using this deferential review.

I. Cervical Injury

¶ 14. Howard Industries argues that the Commission committed error by requiring that it compensate Robinson for his alleged cervical injury. A compensable injury is one "arising out of and in the course of employment without regard to fault which results from an untoward event or events, if contributed to or aggravated or accelerated by the employment in a significant manner." Miss.Code Ann. § 71-3-3(b) (Rev.2000). Howard alleges that this injury occurred elsewhere.

¶ 15. Robinson first complained of a neck injury to a physician in June 1997, three years after his back injury. Dr. D'Angelo on a report made note of Robinson's complaint, and stated that the pain was "most likely due to repetitive motion of his neck as he flipped his face shield up and down" during welding. An MRI was done, and no compression of the suspected spinal disc was found. The doctor recommended that he be transferred from positions that required continual welding throughout the day, but a job requiring occasional welding would be acceptable. Such a transfer did not occur. Physical examinations over the next few months continued to find no physical evidence of what was causing the pain. Another doctor who examined Robinson found no specific physical cause of the pain that Robinson identified. It is the absence of objective evidence regarding any physical change to the normal condition of Robinson's neck that allegedly prevents the Commission from finding that a compensable neck injury occurred in 1997. The employer argues that it was "obvious that the Employee exaggerated any claims of pain and the physicians who evaluated and treated Employee could find no injury that would explain these complaints of pain."

¶ 16. To put this in terms of our appellate review standard, Howard's challenge is that the evidence of a cervical injury is insubstantial. There was medical record and affidavit evidence accepting Robinson's complaints, despite the absence of...