Nhan Neill v. Waterway Inc./Team America
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2007-WC-00346-COA
NHAN NEILL
APPELLANT
v.
WATERWAY INC./TEAM AMERICA AND LEGION
INSURANCE COMPANY SUCCESSOR TENNESSEE
INSURANCE GUARANTY FUND
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEYS FOR APPELLANT:
ATTORNEY FOR APPELLEES:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
APPELLEES
1/31/2007
HON. THOMAS J. GARDNER, III
TISHOMINGO COUNTY CIRCUIT COURT
AUSTIN R. NIMOCKS
K. DON BISHOP
WILLIAM ROSS BRADLEY
CIVIL - WORKERS’ COMPENSATION
TRIAL COURT AFFIRMED DECISION OF
FULL COMMISSION
AFFIRMED - 03/25/2008
BEFORE LEE, P.J., CHANDLER AND BARNES, JJ.
LEE, P.J., FOR THE COURT:
PROCEDURAL HISTORY
¶1.
On April 12, 2001, Nhan Neill was an employee of Waterway, Inc./Team America
(Waterway) when he suffered an on-the-job injury to his right hand. Neill had been working for
Waterway for approximately four months. His job required him, along with the help of a coworker,
to lift molded plastic units weighing approximately 300 pounds each and fasten them to a frame by
squeezing them with his hands. Neill would then assemble lights from component parts and attach
the lights to each plastic unit. On the day of his injury, Neill’s right hand “froze up,” and he needed
help to remove his hand from the unit and to pry the tool he was using from his right hand.
¶2.
On March 13, 2003, Neill filed a petition to controvert with the Mississippi Workers’
Compensation Commission, alleging that he suffered compensable
injuries to both upper
extremities on April 12, 2001. After a hearing, the administrative law judge (ALJ) found that Neill
had suffered a 60% loss of industrial use of the right upper extremity and a 60% loss of industrial
use of the left upper extremity. The ALJ awarded Neill permanent partial disability benefits. Both
the Commission and the Tishomingo County Circuit Court affirmed the decision of the ALJ. Neill
now appeals to this Court asserting two issues: (1) the trial court erred in affirming the decision of
the Commission because Waterway produced no witnesses and (2) the overwhelming weight of the
evidence shows that Neill is permanently disabled.
FACTS
¶3.
At the time of his injury, Neill was twenty-eight years old and resided in Savannah,
Tennessee. In the past, Neill’s jobs had included working as a stocker and bagger for a grocery
store, performing landscape work, repairing bath tubs, performing electrical work, and repairing
water slides. During his work repairing bath tubs, Neill pulled a muscle in his left hand and did not
work for one to two months.
¶4.
Subsequent to his injury in this case, Neill was referred to Dr. John Fraser, a neurosurgeon,
who diagnosed Neill as suffering from bilateral carpal tunnel syndrome. Dr. Fraser opined that this
syndrome was part of a general overuse of his hands. Eventually, Neill underwent surgery on both
hands to relieve his problem.
¶5.
Prior to his surgeries, Neill experienced dermatitis on his palms. Dr. James Mallette, an
allergist, prescribed topical treatments, as well as oral medication, to control the itching. Dr.
Mallette testified that Neill suffered from hand eczema. Dr. Mallette testified that he did not know
what caused the eczema. Neill’s condition improved enough to allow his carpal tunnel surgeries to
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proceed. A few months after both surgeries, Neill began to complain of pain in both hands and
began to develop blisters on both hands.
¶6.
Neill was referred to Dr. Dale P. Cunningham, a physiatrist, for testing to determine an
improvement rating. Dr. Cunningham noted that Neill had reached maximum medical improvement.
Dr. Cunningham stated that Neill could return to work with restrictions of light capacity work with
no highly repetitive motion in both hands. Green Leaf Testing, the company that performed the
tests, assessed a 10% permanent disability impairment to the left hand, a 10% impairment to the left
upper extremity, an 8% impairment rating to the right hand, and an 8% impairment rating to the right
upper extremity. Green Leaf Testing assessed an 11% impairment rating to the total body, and Dr.
Cunningham agreed with this impairment rating.
¶7.
Neill testified that, during this time, he attempted to return to work under restrictions.
However, the work, despite the restrictions, caused his hands to swell and blister badly. Dr. Fraser
then referred Neill to Dr. Gilbert Melson, an orthopedic surgeon. Dr. Melson was unable to
determine any underlying orthopedic pathology. Dr. Melson concluded that Neill should see a
rheumatologist to determine the cause of his condition. Neill attempted to return to light duty work
a second time, but the work made his hands swell and crack.
¶8.
Neill was then referred to Dr. Howard Fuchs, a rheumatologist. Dr. Fuchs opined that Neill
did not have a primary rheumatic problem. He diagnosed Neill as suffering from reflex sympathetic
dystrophy (RSD), a nerve dysfunction, which caused the bilateral carpal tunnel syndrome. Dr.
Fuchs recommended that Neill wear gloves, apply daily heat treatments with paraffin wax, and take
pain and anti-inflammatory medications. Dr. Fuchs stated that there was a 50-50 chance that Neill’s
type of work caused the RSD.
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¶9.
At the request of Neill’s attorney, Dr. Joseph Boals, an orthopedic surgeon, evaluated Neill
on two occasions. Dr. Boals opined that Neill suffered from residuals from the bilateral carpal
tunnel release surgeries. Dr. Boals assessed an impairment rating of 20% to each upper extremity
and noted that Neill could perform light, sedentary work.
¶10.
At the request of Waterway, David Stewart performed a vocational assessment and
determined that Neill could continue working successfully if he did not develop further medical
complications.
¶11.
At the request of Neill’s attorney, Dr. Robert Kennon, a licensed psychologist and vocational
expert, evaluated Neill on two occasions. Dr. Kennon classified Neill’s past jobs as unskilled to
semi-skilled labor positions. Dr. Kennon noted that Neill was in the lower 5% range of his age
group for intelligence and academic ability, and Neill had no specific degrees or licenses that would
allow him access into other vocations. Dr. Kennon opined that Neill should avoid repetitive,
forceful gripping with his hands. Dr. Kennon also determined that, based upon his vocational injury
and his limited intellectual capabilities, Neill had an 81% vocational disability. After a follow-up
examination, Dr. Kennon noted that Neill’s “psychological difficulties are likely a significant
impediment to his recovery.” Dr. Kennon further opined that Neill was unable to cope well with
difficult situations and lacked the motivation necessary to “face the challenges of a rigorous
rehabilitation program.”
¶12.
Neill testified that he had not sought any employment since leaving Waterway.
STANDARD OF REVIEW
¶13.
The standard of review in workers’ compensation cases is well established. The decision
of the Commission will be reversed only if it is not supported by substantial evidence, is arbitrary
or capricious, or is based on an erroneous application of the law. Weatherspoon v. Croft Metals,
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Inc., 853 So. 2d 776, 778 (¶6) (Miss. 2003) (citing Smith v. Jackson Constr. Co., 607 So. 2d 1119,
1124 (Miss. 1992)). If the Commission’s decision and findings of fact are supported by substantial
evidence, then we are bound by them even if we would have been convinced otherwise. Spann v.
Wal-Mart Stores, Inc., 700 So. 2d 308, 311 (¶12) (Miss. 1997) (citing Fought v. Stuart C. Irby Co.,
523 So. 2d 314, 317 (Miss. 1988)). We will exercise de novo review on matters of law. KLLM, Inc.,
v. Fowler, 589 So. 2d 670, 675 (Miss. 1991).
DISCUSSION
I. DID THE TRIAL COURT ERR IN AFFIRMING THE COMMISSION’S
DECISION WHEN WATERWAY PRODUCED NO WITNESSES?
II. DID THE OVERWHELMING WEIGHT OF THE EVIDENCE SHOW THAT
NEILL WAS PERMANENTLY AND TOTALLY DISABLED?
¶14.
As Neill discusses both his issues raised on appeal together, we will also. Neill contends that
since Waterway offered no witnesses, the Commission’s findings are clearly erroneous and contrary
to the overwhelming weight of the evidence. Specifically, Neill claims that because Waterway did
not present any witnesses or refute Dr. Kennon’s findings, then Dr. Kennon’s opinion supports, as
a matter of law, an award of permanent disability compensation. We first note that all of the medical
proof found that Neill did suffer an impairment to both extremities. The expert evidence, however,
on Neill’s impairment rating was conflicting, including evidence by Neill’s own expert witnesses.
Dr. Cunningham assessed Neill an 8% permanent impairment to his right upper extremity and a 10%
permanent impairment to his left upper extremity. Dr. Boals, Neill’s expert, concluded that Neill
suffered a 20% impairment rating to both extremities. Both Dr. Cunningham and Dr. Boals
concluded that Neill could return to work with certain restrictions. Dr. Fuchs also concluded that
Neill would be unable to perform certain types of work, especially involving heavy tasks. Dr.
Kennon was the only expert to testify that Neill was permanently and totally disabled.
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¶15.
The supreme court has held that “whenever the expert evidence is conflicting, the [c]ourt will
affirm the Commission whether the award is for or against the claimant.” Raytheon Aerospace
Support Servs. v. Miller, 861 So. 2d 330, 336 (¶13) (Miss. 2003); see also Smith v. Durant Elec.
Corp., 918 So. 2d 860, 863 (¶10) (Miss. Ct. App. 2005). In her opinion, the ALJ found that a
“preponderance of the evidence reflects that [Neill] [had] suffered an industrial impairment beyond
either set of medical impairment ratings assigned.” The ALJ awarded Neill permanent partial
disability benefits, finding Neill suffered a 60% loss of industrial use of both the right and left upper
extremities. Both the Commission and the trial court affirmed the ALJ’s decision. We find
substantial evidence to support the findings of the Commission. Accordingly, we find no error and
affirm the judgment of the trial court.
¶16. THE JUDGMENT OF THE TISHOMINGO COUNTY CIRCUIT COURT IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.
KING, C.J., MYERS, P.J., IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE,
ROBERTS AND CARLTON, JJ., CONCUR.
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