Robinette v. Henry I. Siegal Co., 1999-WC-00094-COA.

• Citation: 801 So.2d 739
• Decision Date: 18 January 2000
• Docket Number: No. 1999-WC-00094-COA.,1999-WC-00094-COA.
• Parties: Phina Leah ROBINETTE, Appellant v. HENRY I. SIEGAL COMPANY and Royal Insurance Company of America, Appellees.
• Court: Mississippi Court of Appeals

801 So.2d 739

Phina Leah ROBINETTE, Appellant v. HENRY I. SIEGAL COMPANY and Royal Insurance Company of America, Appellees.

No. 1999-WC-00094-COA.

Court of Appeals of Mississippi.

January 18, 2000.

Rehearing Denied April 4, 2000.

Certiorari Denied July 20, 2001.

Keith Sanders Carlton, Corinth, Attorney for Appellant.

Keith R. Raulston, Jackson, Attorney for Appellees.

BEFORE McMILLIN, C.J., MOORE, AND THOMAS, JJ.

McMILLIN, C.J., for the Court:

¶ 1. Phina Leah Robinette has appealed a judgment of the Circuit Court of Tishomingo County affirming a decision of the Mississippi Workers' Compensation Commission. The Commission awarded Robinette a total of twenty-four weeks of benefits arising out of her work-related repetitive motion injuries to both upper extremities. Robinette's appeal advances the proposition that the uncontradicted evidence demonstrates a substantially higher percentage of permanent partial disability to her extremities than the Commission determined so that she is entitled to significantly increased benefits under the applicable workers' compensation laws of this State. Finding that there is substantial evidence in the record to support the findings of the Commission, we affirm.

I.

Facts

¶ 2. Robinette worked for Henry I. Siegal Company (hereafter "H.I.S.") in its blue jeans assembly plant. Her duty consisted of attaching pockets to the jeans. She was a production worker; that is, her level of compensation depended on the number of such attachment operations she was able to complete. After beginning to experience pain in both arms, Robinette was diagnosed with carpal tunnel syndrome in her right wrist and left lateral epicondylitis in her left elbow. There is no dispute that these repetitive-motion injuries were attributable to her work at H.I.S.

¶ 3. After a course of conservative treatment failed to alleviate her pain, Robinette left H.I.S. and obtained work in the field of insurance sales and account servicing. Her hope was that this would end her problems of pain in her arms. However, the symptoms did not subside and ultimately Robinette underwent two surgical procedures. One was a carpal tunnel release on her right wrist and the other was a release of the lateral epicondylectomy on her left elbow. Dr. Randall Frazier, who performed both surgeries, was of the opinion that Robinette reached maximum medical improvement from both surgeries on July 25, 1995. He offered the opinion that Robinette had a 5% permanent partial medical disability to her right arm and a 7% permanent partial medical disability to her left arm arising out of her work-related injuries and the ensuing surgical procedures. Dr. Frazier testified that, beyond this slight permanent partial disability rating, he did not place any permanent restrictions on Robinette's future physical activities.

¶ 4. Dr. Frazier did testify that he cautioned Robinette against the advisability of continuing employment that involved repetitive motions similar to those at her job with H.I.S. However, he testified that this advice was based primarily upon the conclusion that Robinette was physiologically disposed to such injuries—a condition that predated her employment at H.I.S.—and not particularly because continued stress of this nature would aggravate a condition attributable to her previously-incurred injuries.

¶ 5. The administrative judge ruled that Robinette had suffered an industrial disability to her extremities that was substantially in excess of the functional disability rating given by Dr. Frazier. The judge awarded her a 40% industrial disability to her right arm and a 50% industrial disability to her left arm and ordered benefits to be paid accordingly. Both Robinette and H.I.S. appealed this ruling to the full Commission. H.I.S. contended that there was not substantial evidence in the record to support a finding of such substantial disability. Robinette contended that the evidence indicated that she, in fact, had a 100% industrial disability to both arms and that she was, therefore, permanently and totally disabled.

¶ 6. The Commission concluded that there was no evidence that the permanent residual effect of Robinette's injuries was such that she had incurred a loss of ability to perform the normal duties of her former employment that exceeded the functional or medical disability testified to by Dr. Frazier. As a result, the Commission found that the only proper award was one based on the uncontradicted and unimpeached medical evidence of percentage of disability offered by Dr. Frazier and awarded benefits accordingly. Robinette appealed the Commission's holding, without success, to the Circuit Court of Tishomingo County. She now brings her appeal to this Court in which she purports to raise two issues. However, both issues advanced by Robinette involve the single question of whether there is substantial evidence in the record to support the decision of the Commission and we will confine ourselves to that issue in our discussion.

II.

Discussion

¶ 7. Several general principles of law affect our deliberations in this case. The Commission, and not the administrative judge, acts as the ultimate fact-finder in a contested compensation proceeding. R.C. Petroleum, Inc. v. Hernandez, 555 So.2d 1017, 1021 (Miss.1990). Therefore, on appeal, this Court is obligated to give substantial deference to the findings of fact made by the Commission and may disturb such findings only if they are not supported by substantial evidence in the record. Natchez Equip. Co. v. Gibbs, 623 So.2d 270, 273 (Miss.1993); Pilate v. International Plastics Corp., 727 So.2d 771, 774 (Miss.Ct.App.1999). It is the claimant's burden to establish her entitlement to compensation, and the question of the existence and extent of any permanent disability arising out of a work-related injury is a question of fact for the Commission to determine based on the evidence before it. American Potash & Chemical Corp. v. Rea, 228 So.2d 867, 868 (Miss.1969); Ware v. Hillcraft Furniture, 724 So.2d 512(¶ 33) (Miss.Ct.App.1998).

¶ 8. This State's workers' compensation statutes guarantee some measure of compensation to an injured worker who suffers a permanent functional impairment to a "scheduled member" as the result of a work-related injury. Miss.Code Ann. § 71-3-17(c) (Rev.1995); Smith v. Jackson Constr. Co., 607 So.2d 1119, 1126 (Miss.1992). An arm is one of the scheduled members listed under Section 71-3-17(c). Miss.Code Ann. 71-3-17(c) (Rev. 1995). The measure of compensation in such a case depends on two factors; namely, (a) the degree of functional loss of use as demonstrated by the medical evidence, normally expressed as a percentage, and (b) the impact that the loss of function of the particular scheduled member has on the worker's ability to perform the normal and customary duties associated with her usual employment. Smith v. Jackson Constr. Co., 607 So.2d at 1128; General Electric Co. v. McKinnon, 507 So.2d 363, 365 (Miss.1987); Hollingsworth v. I.C. Isaacs and Co., 725 So.2d 251(¶ 10) (Miss. Ct.App.1998). This second aspect of disability determination has been referred to as the degree of industrial disability as opposed to the medical or functional disability. Robinson v. Packard Electric Division, General Motors Corp., 523 So.2d 329, 331 (Miss.1988). The degree of industrial disability is a question of fact to be determined from the evidence "including the testimony of the appellee and the other witnesses who testified during the hearing concerning the [claimant's] ability to use the [scheduled member] for wage earning purposes after the injury." McGowan v. Orleans Furniture, Inc., 586 So.2d 163, 167 (Miss.1991).

¶ 9. The permanently-injured worker is, under the scheme now in place in this State as discussed in Smith v. Jackson Construction Company entitled to compensation based on the greater of the percentage of functional disability or the percentage of industrial disability. Smith v. Jackson Constr. Co., 607 So.2d at 1127. Thus, a worker who suffers an injury that results in a permanent physical or functional impairment of a scheduled member is entitled to compensation computed on the percentage of that disability even if it may be demonstrated beyond equivocation that the impairment has not the slightest effect on the worker's ability to perform the typical duties of her usual employment. On the other hand, it appears to be the rule that where an injury has an impact on the injured worker's ability to perform the typical functions associated with her particular employment that is greater, when expressed in terms of a percentage, than the functional or medical percentage of impairment, the worker is entitled to permanent partial disability payments computed according to this higher percentage. Hollingsworth v. I.C. Isaacs and Co., 725 So.2d 251(¶ 10) (Miss.Ct.App.1998). The rule permitting greater compensation in such circumstance appears to confine itself to the ability of the worker to perform the typical duties of his usual employment. Unlike other areas of compensation, the award of increased benefits based on a higher industrial disability determination for a scheduled member may not be reduced by showing that there are other jobs, unrelated to the worker's present employment, for which the worker might be qualified.

¶ 10. It is in the matter of computing the appropriate level of disability to Robinette's two upper extremities that she claims the Commission committed manifest error. Robinette urges that it is uncontradicted that, even though the permanent medical impairment to her arms was below ten percent in both cases, she is physically unable to return to a work situation that consists almost exclusively of the repetitive motion required to attach pockets to blue jean pants. She goes so far in her brief as to suggest that, based on the uncontradicted evidence, this Court ought to reverse the order of the Commission and render an award...