McGowan v. Orleans Furniture, Inc., 90-CC-0274

Decision Date04 September 1991
Docket NumberNo. 90-CC-0274,90-CC-0274
Citation586 So.2d 163
PartiesHerman McGOWAN v. ORLEANS FURNITURE, INC. and United States Fidelity and Guaranty Company.
CourtMississippi Supreme Court

S. Christopher Farris, Farris & Farris, Hattiesburg, for appellant.

Jolly W. Matthews, III, Ingram, Matthews & Stroud, Hattiesburg, for appellees.

Before HAWKINS, P.J., and ROBERTSON and SULLIVAN, JJ.

SULLIVAN, Justice, for the Court:

Herman McGowan was employed at Orleans Furniture. He was not assigned to any one particular job but filled in wherever someone was needed. He earned an average weekly wage of $158.00. On September 16, 1985, he was cutting lumber when a pallet fell over and hit him on the leg, specifically his left ankle. 1 He saw Dr. Campbell, the company doctor, about an hour later. Dr. Campbell took x-rays and told McGowan that his ankle was just bruised. The doctor put a cast on the leg and sent McGowan home.

Later that day, the swelling had gotten so bad that McGowan returned to see Dr. Campbell. Dr. Campbell cut the cast off and drained some of the bruised blood from the leg. Dr. Campbell then sent McGowan to the hospital for therapy since the ankle was getting worse. Eventually, Dr. Campbell sent McGowan to Dr. Conn, an orthopedic surgeon.

Dr. Conn first saw McGowan on November 18, 1985. On that date, Dr. Conn examined three views of the ankle and determined that McGowan had a lateral, collateral ligament strain of his left ankle. He placed McGowan in a padded walking fiberglass cast.

Dr. Conn continued to treat McGowan. He saw McGowan on twenty-five occasions. On January 26, 1986, McGowan underwent a lateral ligament reconstruction to the left ankle. Dr. Conn performed the surgery. After the surgery, McGowan was again placed in a cast but that was eventually replaced by a short leg brace and then a low profile ankle support brace.

On January 2, 1987, a second surgery was performed by Dr. Conn. McGowan had developed recurrent and persistent pain in the posterior lateral aspect of his ankle. This surgery consisted of removing scar tissue from the sensory nerve or the sural nerve behind his left ankle. Following that surgery, McGowan was eventually allowed to ambulate and put weight on his leg while wearing a low profile ankle brace.

In July of 1987, McGowan continued to have some pain and some swelling. In August, McGowan's laboratory tests were fine, but he continued to have some pain. At that time, Dr. Conn released McGowan to return to work if feasible in spite of the pain and swelling.

Dr. Conn again saw McGowan in November of 1987. McGowan was still experiencing pain and his ankle was swollen. McGowan had not returned to work at that time. Although Dr. Conn had released McGowan to return to work in August of 1987, he believed that McGowan did not reach maximum medical recovery until he was finally released on July 8, 1988, since McGowan persisted with such a degree of impairment following the August release.

McGowan was discharged in July of 1988 but was last seen by Dr. Conn on October 14, 1988. At that time, McGowan was still experiencing pain in the posterior lateral aspect of his ankle.

Dr. Conn expressed the opinion that McGowan has a 40% permanent partial impairment of his left leg as a result of the injury. He said that McGowan would have to have clinical evaluation periodically, would have to continue using a low profile ankle brace, and would have to continue taking pain medication as required, at least in the foreseeable future. Dr. Conn said that McGowan would be limited in activities that he could do such as standing for long periods of time, climbing ladders and stairs, and carrying heavy loads, i.e., anything weighing over twenty to twenty-five pounds.

McGowan filed a Petition to Controvert on July 29, 1986. A hearing was held before Administrative Judge Van C. Temple on December 19, 1988. Judge Temple entered an Order on January 19, 1989. He found that McGowan had reached maximum medical improvement on July 8, 1988, and that he suffered a 40% loss of use of his lower left extremity from a medical point of view but a 100% industrial loss of use of his lower left extremity for wage-earning purposes considering the evidence as a whole.

Orleans Furniture and its carrier filed a Petition for Appeal and Review before the Full Commission on January 26, 1989. The Commission heard the arguments and on September 25, 1989, entered an Order. The Commission found that McGowan reached maximum medical recovery on August 20, 1987, and that he suffered a 40% industrial loss of use of his left leg. Orleans Furniture and its carrier were ordered to pay McGowan $105.34 per week for the period beginning September 16, 1985, and ending August 20, 1987, for temporary total disability benefits; $105.34 per week beginning August 21, 1987, and continuing for a period not to exceed 70 weeks for permanent partial disability benefits; expenses for medical services and supplies; and additional compensation for reasonable vocational rehabilitation services.

McGowan filed a Notice of Appeal to the Circuit Court of Marion County on October 5, 1989. He appealed the Commission's findings as to the date he reached maximum medical recovery and the percentage assigned as industrial loss.

On February 26, 1990, the court entered an Order reversing that part of the Commission's Order which held that the date of maximum medical recovery was August 20, 1987. After reviewing the evidence, the court was of the opinion that the evidence supported July 8, 1988, as the date when maximum medical recovery was reached.

From that judgment, McGowan appeals the findings of both the Commission and the Circuit Court that he suffered only a 40% industrial loss of use of his left leg. Orleans Furniture and its carrier also appeal from the judgment entered by the Circuit Court assigning as error the court's ruling that the date of maximum medical recovery was July 8, 1988.

STANDARD OF REVIEW

We recently provided a lengthy discussion of our standard of review in workers' compensation cases in Walker Manufacturing Co. v. Cantrell, 577 So.2d 1243 (Miss.1991). In short, our review is limited.

The Workers' Compensation Commission is the trier and finder of facts in a compensation claim, the findings of the Administrative Law Judge to the contrary notwithstanding. See, Dunn, Mississippi Workers' Compensation Sec. 284 (3d Ed.1982).... [T]his Court will reverse the Commission's order only if it finds that order clearly erroneous and contrary to the overwhelming weight of the evidence.

Smith v. Container General Corp., 559 So.2d 1019, 1021 (Miss.1990) [quoting Fought v. Stuart C. Irby Co., 523 So.2d 314, 317 (Miss.1988) ]. When conflicting evidence has been presented, we will not make a determination of the preponderance of the evidence, "the assumption being that the Commission, as the trier of fact, has previously determined which evidence is credible, has weight, and which is not." Metal Trims Industries, Inc. v. Stovall, 562 So.2d 1293, 1297 (Miss.1990).

A. INDUSTRIAL LOSS OF USE

The Commission found that McGowan did not prove an industrial loss of use of the left leg beyond the 40% impairment rating assigned by Dr. Conn. The Commission based its decision on the fact that McGowan admitted that he could still operate the tools used in cabinet-making, i.e., a table saw and a sander, that McGowan did not present any evidence showing that he was unable to do the substantial acts required of him in his usual occupation, and that McGowan did not present evidence showing that he is unable to pursue gainful employment. McGowan appeals this decision.

We explained the difference between a medical disability and an industrial disability in Robinson v. Packard Electric Division, General Motors Corp., 523 So.2d 329 (Miss.1988). "Generally, 'medical' disability is the equivalent of functional disability and relates to actual physical impairment. 'Industrial' disability is the functional or medical disability as it affects the claimant's ability to perform the duties of employment." Robinson, 523 So.2d at 331.

Vardaman Dunn, a noted Mississippi authority on workers' compensation, has this to say with regard to the difference:

The question in these cases is the degree of loss of use of the member for wage earning purposes, and this issue is for determination from the evidence as a whole, including medical estimates related either to the functional or industrial loss and the testimony of the claimant and other lay witnesses as to the effect of the injury upon the employee's ability to perform the duties required of him in his usual employment. In this connection, a partial loss of functional use may result in total disability, and to reach this result it is not necessary that the employee be wholly incapacitated to perform any duty incident to his usual employment or business; but if he is prevented by his injury from doing the substantial acts required of him in his usual occupation, or if his resulting condition is such that common care and prudence require that he cease work, he is totally disabled within the meaning of the statute.

* * * * * *

Indeed, more estimates of the medical or functional loss may have little value when compared with lay testimony by the claimant that he suffers pain when attempting use of the member and that he has tried to work and is unable to perform the usual duties of his customary employment, and this is especially true when such testimony is corroborated by persons who have observed the claimant's attempt to work or who have refused to employ the claimant because of his apparent affliction. (footnotes omitted)

Piggly Wiggly v. Houston, 464 So.2d 510, 512 (Miss.1985) [quoting Dunn, Mississippi Workmen's Compensation 3rd Ed. Sec. 86, p. 102, 103].

In Robinson, supra, the appellant argued that medical proof establishing the degree of functional disability was proof ipso facto of the degree of industrial...

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