McCarty Farms, Inc. v. CAPRICE BANKS

• Decision Date: 13 June 2000
• Docket Number: No. 1999-WC-00701-COA.,1999-WC-00701-COA.
• Citation: 773 So.2d 380
• Parties: McCARTY FARMS, INC., a Wholly Owned Subsidiary of Tyson Foods, Inc., a Self-Insured, Appellant, v. CAPRICE BANKS, Appellee.
• Court: Mississippi Court of Appeals

773 So.2d 380

McCARTY FARMS, INC., a Wholly Owned Subsidiary of Tyson Foods, Inc., a Self-Insured, Appellant, v. CAPRICE BANKS, Appellee.

No. 1999-WC-00701-COA.

Court of Appeals of Mississippi.

June 13, 2000.

Rehearing Denied December 12, 2000.

Leland S. Smith, III, Jackson, Attorney for Appellant.

Roger K. Doolittle, Floyd E. Doolittle, Jackson, Attorneys for Appellee.

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

BRIDGES, J., for the Court:

¶ 1. Caprice Banks sustained an injury while in the course and scope of her employment with McCarty Farms, Inc. a wholly owned subsidiary of Tyson Foods. The Administrative Law Judge (ALJ) ordered Tyson Foods to pay Banks permanent partial disability benefits for the industrial loss of the use of her right arm for 140 weeks, permanent partial disability benefits for the industrial loss of the use of her left arm for 60 weeks, all medical services and supplies required by the nature of Banks's injuries, and a 10% penalty on any untimely paid installments of compensation. The Mississippi Workers' Compensation Commission (Commission) affirmed the ALJ's findings. The Circuit Court of Hinds County affirmed the Commission. On appeal to this Court, Tyson Foods presents the following issues:

I. THE COMMISSION'S DENIAL OF THE EMPLOYER AND CARRIER'S MOTION TO SUPPLEMENT WAS AN ABUSE OF DISCRETION WHEN THE ADDITIONAL EVIDENCE WAS CRUCIAL REGARDING THE CLAIMANT'S LOSS OF WAGE EARNING CAPACITY.

II. THE FINDINGS OF THE COMMISSION THAT THE CLAIMANT SUFFERED A 70% INDUSTRIAL LOSS OF USE OF HER RIGHT UPPER EXTREMITY AND A 30% INDUSTRIAL LOSS OF USE OF HER LEFT UPPER EXTREMITY IS NOT SUPPORTED BY THE SUBSTANTIAL EVIDENCE.

A. THE FINDING OF 70% AND 30% INDUSTRIAL LOSS OF USE IN THIS CASE IS CLEARLY CONTRARY TO THE PURPOSE UNDERLYING THE MISSISSIPPI WORKERS' COMPENSATION ACT, SPECIFICALLY, TO THE DEFINITION OF DISABILITY WHICH CONTROLS AN AWARD OF BENEFITS UNDER THE ACT.

B. THE CLAIMANT'S DISABILITY SHOULD BE LIMITED TO 15% AND 5% FUNCTIONAL IMPAIRMENT ABSENT A SHOWING BY THE CLAIMANT OF A LOSS OF WAGE EARNING CAPACITY IN THE SAME OR OTHER EMPLOYMENT AS A RESULT OF THE WORK RELATED INJURY.

C. THE RECENT DECISIONS OF APPEALS FURTHER DEMONSTRATE THAT THE FINDING BY THE MISSISSIPPI WORKERS' COMPENSATION FULL COMMISSION IN THIS CASE CANNOT STAND.

III. ABSENT THE ADMISSION OF THE CLAIMANT'S POST INJURY

WAGE EARNINGS, THE SUBSTANTIAL EVIDENCE FAILS TO SUPPORT THE FULL COMMISSION'S AWARD.

Finding no error, we affirm.

FACTS

¶ 2. On August 19, 1993, Tyson Foods employed Banks as a poultry processor. She performed different jobs at the employer's plant, including working on the KFC line, pulling fat, working on the wingett wheel, cleaning live chickens, grading paws, and labeling boxes. On March 15, 1995, she was hanging live chickens. The chickens were alive, and she used both hands to hang them on a shackle. These chickens weighed between five and eight pounds. She was required to use both hands to hang thirty-two birds per minute. Banks had been hanging chickens for approximately nine months prior to the date of her injury. Her starting salary was $7.20 per hour, and she was still making that same hourly wage at the time of her injury. Including overtime, she worked from forty to fifty hours a week. On March 15, 1995, Banks injured her right hand, arm and shoulder, and her left hand. She reported the injury to her supervisor and to the company nurse.

¶ 3. Banks was treated for bilateral hand pain by orthopedic surgeon Dr. Aubrey Lucas from December 4, 1995 to September 15, 1996 when she reached maximum medical improvement with a 15% permanent impairment to her dominant right arm and a 5% permanent impairment to her left arm. Lucas restricted Banks to lighter work than hanging chickens, including any work involving knives or scissors. Banks contacted Tyson Foods after she was released by Lucas. In October 1996, because the job as chicken hanger aggravated her symptoms, Tyson Foods reemployed her to line boxes, and grading paws three or four times when she was caught up with her work in the box department. She performed this job until December 1996, when the employer placed her on leave of absence. Banks testified that other, less senior employees were still lining boxes when she left.

¶ 4. Banks testified that she contacted Tyson Foods every week, then every month, and then every other month regarding her prospects for reemployment. She also testified that she went to the plant ten to fifteen times between December 1996 and August 1997, the month of the evidentiary hearing, seeking reemployment. Banks testified that the personnel manager, Debra Porter, told her that the employer had no job openings. She testified that she could label boxes for two to four hours, but that she could not perform any of the other previous jobs she had held with Tyson Foods. She did not seek other work until July 1997 because she believed that Tyson Foods would reemploy her when a job became available.

¶ 5. Although Banks had also had experience as a cashier, she testified that she could not perform this job because it required the repetitive use of her arms and hands. Banks unsuccessfully sought work at approximately forty different places besides Tyson Foods. The prospective employers were aware of her impairment and disability because she indicated as such on her applications. Some of the prospective employers interviewed her, and she disclosed that she was looking for light duty work that she could perform within the doctor's restrictions.

¶ 6. Banks testified that she was currently able to do some housework but that she cannot cut meat, lift heavy pans, and that she cannot lift her three-year-old son. She testified that she still had hand pain, that Lucas gave her a prescription for pain medication when she last saw him on July 29, 1997, and that she had a return appointment.

¶ 7. Deborah Porter, personnel manager at Tyson Foods, was called as a witness for the employer. Porter stated that her duties involved hiring, recruiting, and placing people. Porter testified that Banks was the least senior member in the box lining department in December 1996, and that she was placed on a leave of absence at that time due to the elimination of several positions. She stated that she looked for another job for claimant between January 1997 and August 1997, and that the employer's vocational expert, Connie Chapin, did not contact her regarding Banks's prospects for reemployment at the plant during this time. Porter testified that Tyson Foods generally hired between eighty and ninety people a month.

¶ 8. Porter testified that Tyson Foods currently had a job for Banks which was a combination of two different jobs, paw grader and box labeler. As a paw grader, Banks would grade between forty to fifty paws a minute that traveled along a conveyor belt. Porter testified that she would perform this job for approximately six hours a day and then Banks would rotate and place labels on boxes for another two hours. Porter testified that Banks could begin the job at the time of the hearing, but at a lower pay scale of $6.85 and chicken hangers at that time earned $7.55 an hour.

¶ 9. On cross-examination Porter testified that Banks was performing a box lining job in December 1996 when she was placed on leave of absence. Before placing anyone on leave of absence, an employee's seniority was considered. Porter explained that when Banks was asked to leave Sherylynn Flowers was still performing the box lining job but was kept because of her seniority.

¶ 10. Connie Chapin was called as a witness for Tyson Foods. Chapin testified that she was a vocation case manager and her job was vocational rehabilitation counseling. She was retained by Tyson Foods on January 30, 1997 to find employment for Banks. Chapin contacted Banks through her attorney several times in February 1997; however, Banks's attorney declined Chapin's services.

¶ 11. Chapin concluded that Banks was employable and identified six employers in the Jackson area who were currently accepting applications for current openings. These included restaurants needing a fast food worker or cashier and one job was for a front desk clerk. Four of the jobs paid $4.75 an hour, one paid $5.15 an hour, and another paid $5.45. Chapin testified that she did not believe the work of a cashier at a fast food restaurant on County Line Road during lunch would involve the repetitive use of Banks's hands.

¶ 12. On rebuttal, Banks called Elisha Levitt, a labor representative for Tyson Foods. Levitt stated he kept seniority lists of employees that he received from Tyson Foods. He testified that Sherylynn Flowers, the person who was kept when Banks was put on leave of absence at Tyson Foods and was performing substantially similar work, was hired on August 3, 1994. Banks was hired on August 8, 1993.

¶ 13. The records of Banks's treating orthopedic surgeon, Dr. Lucas, showed that he first saw Banks on December 4, 1995. Prior to her visiting Lucas, Banks saw neurologist Dr. Don Carpenter who performed nerve conduction studies which showed mild to moderate right carpal tunnel and very mild left carpal tunnel syndrome. Banks told Lucas that her pain had decreased since she started making boxes as opposed to hanging chickens. She requested splints so she could continue to work.

¶ 14. On December 18, 1995, Banks continued to experience right hand pain, but she wanted to continue making boxes and defer surgery.

¶ 15. On January 8, 1996, Banks complained of continued pain in the palm of her right hand and wrist which radiated to the elbows and sometimes caused her fingers to go numb. The problems on the left hand were less severe. Lucas noted that her options were avoiding factory work, splinting, and surgery.

¶ 16. On January 30, 1996, Banks reported her symptoms were about the same as they had been in her previous visit. She mainly complained of pain in her right wrist. She wanted to...