Sherwin-Williams Company v. Michael Brown
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2004-WC-00388-COA
SHERWIN WILLIAMS AND PACIFIC EMPLOYERS
INSURANCE COMPANY
v.
MICHAEL BROWN
DATE OF TRIAL COURT JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANTS:
ATTORNEYS FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
CERTIORARI FILED:
MANDATE ISSUED:
APPELLANTS
APPELLEE
1/21/2004
HON. WILLIAM E. CHAPMAN, III
RANKIN COUNTY CIRCUIT COURT
AMY LEE TOPIK
LEON MILLER
JACK BENTON BRENEMEN
CIVIL - WORKERS' COMPENSATION
SHERWIN WILLIAMS AND PACIFIC
EMPLOYERS INSURANCE COMPANY TO PAY
CLAIMANT PERMANENT TOTAL DISABILITY
BENEFITS FOR MAXIMUM 450 WEEKS; PAY
PENALTIES AND INTEREST, IF APPLICABLE;
AND PROVIDE STATUTORY MEDICAL
SERVICES AND SUPPLIES.
AFFIRMED - 07/13/2004
BEFORE SOUTHWICK, P.J., MYERS AND CHANDLER, JJ.
SOUTHWICK, P.J., FOR THE COURT:
¶1.
Sherwin Williams and Pacific Employers Insurance Company appeal from a circuit court's review
and affirmance of a Workers' Compensation Commission decision to order benefits for a total, permanent
disability. We find no error and affirm.
¶2.
Michael Brown worked as a carpet layer for Sherwin Williams. On September 23, 1999, as he
was carrying a roll of carpet up a staircase and stretching it in, he felt sharp pain in his right hip. He
reported the injury to his supervisor. Brown continued to work for approximately two weeks until his pain
grew more intense and required him to seek treatment at the University of Mississippi Medical Center
(UMC) on October 7, 1999. He continues to be treated there.
¶3.
Over the course of his treatment at UMC, he was treated with epidurals and facet blocks which
did not offer much relief. He was treated by at least four physicians, including Dr. Robert McGuire. Dr.
McGuire performed an evaluation. He noted that Brown had no previous problems with his back during
his employment with Sherwin Williams. After his range of treatment, Dr. McGuire stated that Brown
should not return to his job as a carpet installer, gave him a ten percent disability to the body as a whole,
and referred him to Dr. Michael Winklemann.
¶4.
Dr. Winklemann instituted a vigorous physical therapy program. He concluded that Brown had
a ten percent permanent partial rating. Brown was discharged with the following restrictions: (1) knee-towaist lift fifty pounds on occasional basis; (2) waist-to-crown lift forty pounds on occasional basis; (3)
ability to carry sixty pounds in both hands on occasional basis; (4) bending restricted to occasional; and
(5) squatting restricted to rarely. Brown was advised not to return to work as a carpet layer.
¶5.
David Greene, a vocational rehabilitation specialist, interviewed Brown. After a review of Brown's
work history, education, and medical records, Greene concluded that Brown was restricted to light or less
than full medium duty work. He advised against Brown returning to work as a carpet installer. He
considered that eighteen years of carpet laying was the relevant past work history. When that history was
combined with minimal education, restrictions, and limited transferability of skills, employment in the
relevant area would be difficult.
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DISCUSSION
¶6.
The Commission affirmed the findings of an administrative judge that Brown is permanently and
totally industrially disabled. Decisions of the Workers' Compensation Commission will be affirmed unless
they are clearly erroneous and contrary to the overwhelming weight of the evidence. Barnes v. Jones
Lumber Co., 637 So. 2d 867, 869 (Miss. 1994).
¶7.
The degree and permanence of Brown's industrial disability is a question of fact to be proven by
the evidence and facts as a whole. Miss. Code Ann. § 71-3-17(a) (Rev. 2000). Disability is determined
by actual physical injury and loss of wage earning capacity. Spann v. Wal-Mart Stores, Inc., 700 So. 2d
308, 312 (Miss. 1997).
¶8.
In determining whether there has been a loss of wage earning capacity, the Commission is to
evaluate training, education, ability to work, failure to be hired elsewhere, pain, and other medical
circumstances. Delaughter v. South Cent. Tractor Parts, 642 So. 2d 375, 379 (Miss. 1994). We have
evaluations from Brown's treating physicians, a therapist who performed the functional capacities
evaluation, and a vocational rehabilitation specialist. The testimony from both treating physicians is
substantially similar in that they agree that Brown can no longer install carpet and has a permanent, partial
medical impairment rating of ten percent to the body as a whole.
¶9.
Brown is a forty-five year old man with a tenth grade education. He has worked for the past
eighteen years with Sherwin Williams in one job, which his physicians agree is now beyond his safe physical
limitations. Brown states that he has pain from this injury. One of his physicians testified that he will
probably have to take medication to control the pain for the rest of his life. Brown has not been able to
perform any type of work since the injury. He stated that he cannot stand or sit for long periods of time
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and that he has bladder problems which require him to use the restroom frequently, sometimes two to three
times in less than a one-hour period.
¶10.
The collection of evidence indicates that Brown is quite limited in the jobs that he will be able to
perform in the future. The vocational rehabilitation specialist stated that Brown would be limited to a light
duty position in light of the restrictions. He had been performing heavy level work as a carpet installer. The
transferability of his skills is questionable due to his educational level and experience. The vocational
specialist concluded that Brown faces limited employment options after he performed an employment
survey of available positions.
¶11.
The reasonableness of a workers' compensation claimant's efforts to gain employment includes
consideration of job availability and economics in the community, the claimant's skills and background, and
the nature of the disability. Georgia Pacific Corp. v. Taplin, 586 So. 2d 823, 828 (Miss. 1991). Brown
presented evidence of his employment search. He provided a job search list where he made inquiries at
fourteen different locations including retail stores, grocery stores, fast food chains, and gas stations. He also
testified in his deposition of other locations where he made inquiries. He stated that he completed
applications after which he was asked why he no longer installed carpet. After he told potential employers
of his disability and list of restrictions, he was told that they could not use him or that they were not hiring.
¶12.
Since Brown made a prima facie case of a good faith search for employment, the burden shifted
to Sherwin Williams to show that his efforts were not reasonable or were deceitful. Id. We find no error
in the Commission concluding that Sherwin Williams did not meet this burden.
¶13.
The evidence supports that Brown was entitled to permanent, total disability. We affirm.
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¶14. THE JUDGMENT OF THE CIRCUIT COURT OF RANKIN COUNTY IS AFFIRMED.
ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.
KING, C.J., LEE, IRVING, MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR.
BRIDGES, P.J., NOT PARTICIPATING.
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