Alumax Extrusions, Inc. v. Paul Hankins
Annotate this Case
Download PDF
IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2003-WC-01272-COA
ALUMAX EXTRUSIONS, INC., SELF-INSURED
APPELLANT
v.
PAUL HANKINS
DATE OF TRIAL COURT JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
CERTIORARI FILED:
MANDATE ISSUED:
APPELLEE
5/27/2003
HON. GEORGE B. READY
DESOTO COUNTY CIRCUIT COURT
JOSEPH T. WILKINS
WALLACE ALFRED WELSHANS III
CIVIL - WORKERS’ COMPENSATION
CLAIMANT AWARDED PERMANENT PARTIAL
DISABILITY BENEFITS AT $252.59 PER WEEK
FOR 450 WEEKS
AFFIRMED-10/05/2004
EN BANC.
IRVING, J., FOR THE COURT:
¶1.
Alumax Extrusions appeals from an order of the Circuit Court of DeSoto County, affirming the
order of the Workers’ Compensation Commission which awarded Paul Hankins, a former employee of
Alumax, permanent partial disability benefits. The sole issue presented by Alumax is whether the
Commission’s finding — that Hankins had suffered permanent disability to the extent that he was no longer
employable as a long-haul truck driver — is supported by substantial evidence.
¶2.
Our review of the record reveals that there is substantial evidence to support the Commission's
decision. Therefore, we affirm the judgment of the circuit court affirming the decision of the Commission.
FACTS
¶3.
Paul Hankins, a sixty-year-old resident of Coldwater, Mississippi, worked as a truck driver for
Alumax. Although he had worked for thirty-five years as a long-haul driver, he had worked for Alumax
for only five of those years.
¶4.
As a long-haul driver for Alumax, Hankins hauled aluminum extrusions on a flatbed trailer from
Memphis, Tennessee to other cities such as Kansas City, Missouri and Oklahoma City, Oklahoma. He
generally made three trips per week. Upon arriving at his destinations, Hankins was required to climb on
top of his trailer to remove or roll up two thirty-foot tarpaulins. His trailer was usually ten to twelve-foot
high, and each tarpaulin generally weighed approximately 300 pounds.
¶5.
On October 17, 1995, shortly after arriving in Oklahoma City to make a delivery, Hankins stepped
off the back of his trailer and fell onto the concrete, fracturing his right hip. He was treated on the day of
the accident for his injury by company doctor and orthopedic surgeon, Dr. Andrew H. Crenshaw. Dr.
Crenshaw immediately took Hankins to surgery and used a metal compression screw to repair Hankins's
hip which had fractured into four pieces.
¶6.
On February 19, 1996, Dr. Crenshaw released Hankins to light duty but continued Hankins's
physical therapy regimen until August 12, 1996, at which time Dr. Crenshaw released Hankins to full duty
with a fifty-pound lifting restriction. Hankins next saw Dr. Crenshaw in January 1997. At that time,
Hankins's right leg was noticeably shorter than his left leg, causing Hankins to suffer back pain. Hankins
was also having some problem with the opposite knee. At that time, Dr. Crenshaw prescribed a shoe lift
for Hankins's right foot and placed him on Motrin.
2
¶7.
Dr. Crenshaw saw Hankins again on April 8. Hankins was still having some back pain but could
still work at regular duty. Hankins's main limitation was in moving the tarpaulins which weighed between
250 and 300 pounds. Dr. Crenshaw recommended a lighter weight tarpaulin and ordered a functional
capacity evaluation (FCE) to assess Hankins's work capabilities. The FCE was done by one of Dr.
Crenshaw's physical therapists who agreed with Dr. Crenshaw that Hankins could continue driving trucks.
Alumax accommodated Hankins by proving him with a lighter tarpaulin.
¶8.
Dr. Crenshaw gave Hankins a fourteen percent permanent impairment to the right lower extremity
due to the fact that Hankins retained hardware in his hip and the shortened right leg. Dr. Crenshaw last saw
Hankins on November 11, 1997. At that time, he saw no change in Hankins's condition and felt that
Hankins could still work as a truck driver.
¶9.
Hankins was next seen by Dr. Mark Steven Harriman. Dr. Harriman first saw Hankins on
February 5, 1998, for an independent medical examination. Dr. Harriman conducted a physical
examination and determined that Hankins did not have a leg-length inequality but Hankins's "pelvis seemed
to be rotated a bit." X-rays showed the fracture of the hip to be in good condition. X-rays also showed
that Hankins had suffered a twenty-five to thirty percent compression of his L-4 vertebra. Dr. Harriman
thought Hankins's back pain was severe enough for Hankins to consider some type of back block. He also
thought that the impairment rating given by Dr. Crenshaw was appropriate although Harriman had not
considered the fact that Hankins had a compression fracture. He determined that "[t]he lumbar spine
fracture measured twenty percent" which equals to a "five percent impairment rating to the whole person
for that injury. He further determined that "[t]he combined whole person impairment was ten percent."
¶10.
Dr. Harriman next saw Hankins in July 1998. At that time, Hankins told Dr. Harriman that
Hankins's back pain had been getting increasingly worse and was becoming harder to tolerate. Hankins
3
was driving approximately 3,000 miles per week and was working 70-hour weeks. Dr. Harriman was of
the opinion that Hankins symptoms "were possibly due to the compression fracture and due to some
worsening of some degenerative changes in his back." He thought that Hankins's fall was the cause of both
the compression fracture of the spine and the hip fracture. Dr. Harriman last saw Hankins on August 21,
1998. At that time, Hankins advised Dr. Harriman that Hankins was doing well although he had suffered
some pain from operating a tractor for a couple of hours to do some bush hogging. During this visit, Dr.
Harriman released Hankins to return to work.
¶11.
Dr. Alan J. Kraus, a pain management specialist, first saw Hankins on April 9, 1998, on a referral
from Dr. Harriman. During Hankins's first visit, Dr. Kraus performed an epidural block which eased
Hankins's back pain for approximately three to four weeks. When Dr. Kraus saw Hankins again on July
16, 1998, Hankins was complaining about numbness in his legs. As a result of this complaint, Dr. Kraus
suggested that Hankins have an MRI or CT scan performed. When the MRI was performed on March
22, 1999, it showed some degenerative disk disease "and a slight loss of the L-4 vertebral body consistent
with the remote compression fracture." Dr. Kraus last saw Hankins on March 26, 1999. At that time they
discussed doing some additional blocks, some facet injections and possibly a sacroiliac injection. However,
these were never done. Dr. Kraus deferred to Drs. Crenshaw and Harriman on the question of whether
Hankins could continue to drive long hauls.
¶12.
All the while Hankins was being treated by the various doctors, he was attempting to work. On
April 28, 1996, he began working for two to four hours a day while continuing to receive temporary partial
disability benefits. On May 26, 1996, Hankins began driving short hauls to Birmingham and Arkansas.
He made these short-haul trips approximately twice a week. He then extended the distance of the trips
he made until he was traveling five hundred to one thousand miles one-way. He made approximately $400
4
to $600 a week for driving short-haul assignments compared to approximately $800 or more a week for
long-haul jobs.
¶13.
Hankins subsequently returned to Dr. Crenshaw because of back pain. Dr. Crenshaw could not
find any reason for Hankins's back pain except arthritis and a leg-length difference attributable to his hip
replacement. He prescribed a one and one half inch shoe lift for Hankins to compensate for the length
difference. However, Hankins continued to experience back pain. As a result, Alumax referred him to Dr.
Harriman. As stated already, Dr. Harriman diagnosed Hankins with a compression fracture at L-4 and
referred Hankins to Dr. Kraus who performed an epidural block.
¶14.
According to Hankins, after a period of eight months of light duty work, Alumax gave him a choice
of returning to long hauling, returning to packing, or quitting. At that time, Hankins performed four different
jobs for Alumax. First, he drove long hauls until August of 1998. During this period, Hankins switched
to lighter, 100-pound tarpaulins, when they were available. Alumax purchased these tarpaulins for Hankins
at Dr. Crenshaw’s recommendation. Second, from August 1998 to March 1999, Hankins worked as a
dock worker in the shipping department. Performing this job required him to walk twelve hours a day on
concrete, but he was not required to bend or lift. Third, Hankins hauled short runs when available for a
period of time. Finally, he worked briefly in packing, but was physically unable to perform the strenuous,
repetitive bending and standing required by this job. Hankins only worked at this job for two hours before
asking Terry Bass, his safety manager, for a transfer. Hankins then returned to shipping where he worked
for eight months.
¶15.
In March 1999, Bass told Hankins that he could not remain on the dock and had to return to
packing or long hauls. Hankins asked for work as a short-haul driver, a job in security, or a job in the
office to map out deliveries. Bass affirmed that no openings were available in these divisions. Hankins also
5
interviewed for a dispatcher job at Alumax but was not hired in that capacity. Believing that he could not
withstand returning to packing, Hankins returned to driving long hauls. After three and a half weeks of
driving long hauls, he advised his employer that he was physically unable to continue that line of work.
Hankins soon after tendered his resignation.
¶16.
In due course, Hankins filed a petition to controvert with the Mississippi Workers' Compensation
Commission. An administrative hearing was held on the matter, and the administrative law judge ordered
that the employer pay compensation benefits to Hankins for “permanent partial disability benefits at a rate
of $252.59 per week for 450 weeks beginning on April 8, 1997. . . .” Alumax filed an appeal, and a
hearing was held before the Full Commission which issued a unanimous order affirming the ruling of the
administrative judge. Alumax then appealed unsuccessfully to the Circuit Court of DeSoto County,
resulting ultimately in this appeal before us.
¶17.
Additional facts will be related during the discussion of the issue.
ANALYSIS AND DISCUSSION OF THE ISSUE
¶18.
Alumax argues that the administrative judge erred when she ruled that Hankins was disabled from
working as a long-haul truck driver.1 It points out that all medical proof was favorable that Hankins could
return to work as a long-haul driver and that Hankins quit his job on his own volition without medical
justification. Hankins counters that substantial evidence in the record supports the Commission's decision;
therefore, that decision should not be disturbed.
1
It is the decision of the Full Commission that is reviewable on appeal. Since the Full Commission
affirmed the order and findings of the administrative law judge, those findings become the findings of the
Commission. Hence, we refer to the findings of the administrative law judge as the findings of the
Commission.
6
¶19.
After considering all of the evidence before her, the administrative judge found that Hankins’s actual
good faith efforts to repeatedly work as a long-haul driver over the course of approximately eighteen
months were of greater probative value in determining his industrial capacity than were the medical
estimates of his functional impairment. Consequently, she ordered that Alumax pay permanent partial
disability benefits at a rate of $252.59 per week for 450 weeks
¶20.
“Mississippi Code Ann. § 71-3-7 requires that compensation shall be payable for ‘disability’ for
an injury arising out of and in the course of employment. The question of degree and duration of disability
is one of fact. The degree of disability is determined by (1) actual physical injury and (2) loss of wage
earning capacity.” Spann v. Wal-Mart Stores, Inc., 700 So. 2d 308, 312 (¶20) (Miss. 1997) (citations
omitted). Our supreme court has further held that "disability need not be proved by medical testimony as
long as there is medical testimony which will support a finding of disability." Hall of Mississippi, Inc. v.
Green, 467 So. 2d 935, 938 (Miss. 1985).
Though the disability and extent thereof must be supported by medical findings. . .
"compensation may be allowed for disabling pain in the absence of positive medical
testimony [and objective medical findings] as to any physical cause.... [This is especially
true when there is] evidence of an accident followed by disabling pain ..., at least in the
absence of circumstances tending to show malingering or to indicate that the claimant's
testimony as to pain is not inherently improbable, incredible or unreasonable, or that the
testimony is untrustworthy."
Penrod Drilling Co. v. Etheridge, 487 So. 2d 1330, 1334 (Miss. 1986).
¶21.
The Commission found that Hankins had permanent medical impairments attributable to his injury.
It acknowledged that Dr. Crenshaw, Dr. Harriman, and Dr. Kraus assessed only a fourteen percent
permanent medical impairment to Hankins's right lower extremity which is equal to a five percent permanent
medical impairment to the body as a whole. The Commission pointed out that the doctors also assessed
a five percent permanent impairment attributable to claimant’s compression fracture. It later discussed that
7
Dr. Rahul Vohra assessed a ten percent permanent impairment to the right lower extremity for the hip
fracture and a five permanent impairment to the body as a whole attributable to claimant’s lumbar spine.
Although Dr. Vohra did not attribute Hankins’s compression fracture to his October 17, 1995 injury due
to a lapse of time between the injury and his complaints of back pain, the Commission recognized that Dr.
Crenshaw, Dr. Harriman, and Dr. Kraus attributed claimant’s back pain to the injury. It further determined
that the opinions of Drs. Crenshaw, Harriman, and Kraus concerning the etiology of Hankins’s back pain
had more probative value than those of Dr. Vohra since the former doctors had the opportunity to examine
and evaluate Hankins for a longer period of time and closer in time to the injury. The Commission
concluded that a preponderance of the evidence indicates that Hankins’s work-connected injury
substantially caused or contributed to his lumbar impairment.
¶22.
The Commission also found that Hankins’s permanent medical impairments resulted in a loss of
wage earning capacity. It acknowledged Dr. Crenshaw’s testimony that Hankins could return to long-haul
trucking if he used light weight tarpaulins. The Commission, however, pointed out that Dr. Crenshaw did
not know that Hankins had a compression fracture at L-4 or that Hankins had received subsequent medical
treatment by Drs. Harriman and Kraus when he made this statement.
¶23.
The Commission further found that Dr. Harriman, the physician who treated Hankins after Dr.
Crenshaw, released claimant to return to work as a truck driver on August 21, 1998. It recognized,
however, that his testimony did not differentiate between short-haul and long-haul driving, an important
difference since Hankins testified that he could drive short hauls but that he would earn only $400 a week.
¶24.
The Commission acknowledged that Dr. Klaus, the pain management specialist referred by Dr.
Harriman, testified that nothing in his course of treatment led him to believe that claimant could not return
8
to long-haul trucking, but he deferred to Dr. Crenshaw and to Dr. Harriman as the treating physicians
regarding Hankins’s employability.
¶25.
The Commission found that Dr. Vohra, the independent medical examiner, stated that he,
“believe[d] claimant could return to long-haul trucking.” It noted, however, that Dr. Vohra had only seen
Hankins once and, contrary to the opinions of Dr. Crenshaw and Dr. Harriman, opined that Hankins's
compression fracture was not related to his October 17, 1995 injury.
¶26.
The Commission noted Hankins’s actions of engaging in light duty work; his continual complaints
about severe back pain and the numerous doctors he visited for treatment; his repeated inquiries of his
employer for work other than long-haul driving and packing, both of which aggravated his back pain; and
his subsequent resignation despite his lacking only a year and a half to retire with a full pension with the
Teamsters. It pointed out that these facts were uncontradicted by the record and were corroborated by
the employer's representative, claimant’s wife, the nurse manager, and the medical evidence. The
Commission further noted that its assessment of Hankins, Hankins’s employment, and medical histories
were consistent with his wife’s description of him as the type of man who has never stayed home, never
complained, and never saw a doctor.
¶27.
Alumax next argues that the orders of the administrative judge and of the Full Commission, as
affirmed by the circuit court, are erroneous because they failed to note that no legitimate job search had
been made by Hankins. According to Alumax, the administrative judge should have at least required
Hankins to seek work elsewhere in the open market as a truck driver, short haul or long haul.
¶28.
The record indicates that Hankins did in fact make efforts to find other employment. In her order,
the administrative judge found that Hankins had asked for light duty work, after being engaged in the more
strenuous tasks of long-haul trucking and packing but was told by his manager that none was available.
9
During this time frame, Hankins applied for a dispatch job with Alumax, however, he was not hired for that
position. The administrative law judge further pointed out that Hankins testified that he had asked a union
representative for help securing other employment, as he could drive short hauls, but that he had not been
successful in securing employment as a short- haul driver. She further acknowledged Hankins’s testimony
that he had asked about other jobs by word of mouth. Finally, the judge pointed out that Hankins was
presently employed as a bus driver for the county school system for one hour twice a day. We, therefore,
find no merit in Alumax’s contention that Hankins did not search for other employment.
¶29.
Alumax further argues that the administrative judge erred when he used Hankins's wages of $400
as a short-haul driver/dock loader as the basis awarding benefits. It explains that this amount was derived
from work done by Hankins during his recovery (light duty assignment) and concludes that the use of this
amount provides a false perception of wage loss by Hankins.
¶30.
In resolving the issues presented, we are mindful of our standard of view which is very limited. It
has been stated as follows:
The standard of review in workers' compensation cases is limited. The substantial evidence
test is used. The Workers' Compensation Commission is the trier and finder of facts in a
compensation claim. This Court will overturn the Workers' Compensation Commission
decision only for an error of law or an unsupported finding of fact. Reversal is proper only
when a Commission order is not based on substantial evidence, is arbitrary or capricious,
or is based on an erroneous application of the law.
Weatherspoon v. Croft Metals, Inc., 853 So. 2d 776, 778 (¶6) (Miss. 2003) (citations omitted).
¶31.
Adhering to our standard of review, we find that ample evidence exists to support the Commission's
finding that Hankins suffered a loss of wage earning capacity of $400 per week. The undisputed testimony
demonstrates that Hankins earned half of his regular salary while driving short hauls or working in the
loading and packing divisions. Hankins testified that he earned approximately $400 when he worked on
10
the dock and when he drove short hauls. Moreover, on cross-examination, Terry Bass, safety manager
at Alumax, admitted that Hankins, working on the loading dock or in packing, would probably make only
half the salary Hankins made driving long hauls. It was stipulated at trial that Hankins’s average weekly
wage on October 17, 1995, the day he was injured, was $800.07. We therefore find no error.
¶32.
Accordingly, we find substantial evidence to support the Commission's finding. Therefore, we
affirm the judgment of the circuit court which affirmed the decision of the Commission.
¶33. THE JUDGMENT OF THE CIRCUIT COURT OF DESOTO COUNTY IS AFFIRMED.
ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.
KING, C.J., BRIDGES AND LEE, P.JJ., MYERS, CHANDLER, BARNES AND
ISHEE, JJ., CONCUR. GRIFFIS, J., DISSENTS WITHOUT SEPARATE WRITTEN
OPINION.
11
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.