Barbara A. Price v. Omnova Solutions, Inc.
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2007-WC-01487-COA
BARBARA A. PRICE
APPELLANT/
CROSS-APPELLEE
v.
OMNOVA SOLUTIONS, INC.
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEYS FOR APPELLANT:
ATTORNEYS FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
APPELLEE/
CROSS-APPELLANT
08/22/2007
HON. LEE J. HOWARD
LOWNDES COUNTY CIRCUIT COURT
LAWRENCE J. HAKIM
MICHAEL WAYNE DARBY
CHARLIE BAGLAN
STEPHEN J. CARMODY
CHRISTOPHER RAY FONTAN
CIVIL - WORKERS’ COMPENSATION
AFFIRMED WORKERS’ COMPENSATION
COMMISSION
AFFIRMED: 02/17/2009
BEFORE MYERS, P.J., ISHEE AND CARLTON, JJ.
MYERS, P.J., FOR THE COURT:
¶1.
Barbara Ann Price left her job at Omnova Solutions, Inc., due to her inability to work
after being diagnosed with carpel tunnel syndrome. Price applied for workers’ compensation
benefits and was found by the administrative law judge (ALJ) to have suffered a twenty-five
percent loss of wage-earning capacity. The ALJ also awarded Omnova credit for short-term
and long-term benefits paid to Price. Price appealed the ALJ’s findings to the Mississippi
Workers’ Compensation Commission. The Commission found that Price suffered a twentyfive percent loss of use of her right upper extremity and a twenty percent loss of use of her
left upper extremity. The Commission affirmed the ALJ, awarding Omnova a credit for
disability payments, and ordered that Omnova pay penalties and interest if they did not pay
Price in a timely manner. Price appeals to this Court arguing that the Commission should
have found her to be permanently and totally disabled and that Omnova should not be given
a credit for its payments. Omnova cross-appeals arguing that the Commission erred when
it increased Price’s impairment ratings. Finding no error, we affirm the judgment of the
Circuit Court of Lowndes County, which affirmed the Commission’s decision.
FACTS AND PROCEDURAL HISTORY
¶2.
Omnova manufactures wall covering products and seat covers. Price began working
for Omnova’s predecessor around May 1987. Price held various jobs during her time at
Omnova, with each job requiring Price to use her hands, including, but not limited to,
sewing, wrapping products, and inspecting materials.
¶3.
On or about February 6, 2000, Price suffered an injury to her right and left upper
extremities. Price described the injury as numbness, coldness, tingling, and swelling in both
of her hands, as well as the inability to hold onto items. Price went to the emergency room
for treatment on her hands, and through a series of referrals, she ended up being examined
Dr. Kurt Thorderson, an orthopedic surgeon. Dr. Thorderson diagnosed Price with carpel
tunnel syndrome on both of her hands, with the right hand being worse than the left hand.
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¶4.
On June 9, 2000, Dr. Thorderson performed surgery on Price’s right hand and wrist.1
Price refused to allow Dr. Thorderson to operate on her left hand. On September 11, 2000,
Dr. Thorderson released Price to return to work, recommending she work four hours per day
for two weeks, and begin working a full day on or about September 25, 2000. Price returned
to work, but only for two days, claiming the pain in her hands was too great. Dr. Thorderson
opined that Price had reached maximum medical improvement on March 15, 2001, and
assigned Price a ten percent impairment rating to both her right and left upper extremities and
an additional seven percent impairment to her right upper extremity due to the ulnar nerve
damage. Dr. Thorderson placed permanent work restrictions on Price of not lifting more than
twenty pounds and no highly repetitive use of her hands.
¶5.
Due to her injury and the restrictions placed on her, Price was unable to perform her
duties at Omnova. Omnova recommended that Price apply for short-term and long-term
benefits, which Omnova paid for fifty-two weeks and eighty-two weeks, respectively.
¶6.
Price filed her petition to controvert on October 19, 2001. The ALJ ruled that Price
had suffered a twenty-five percent loss in wage-earning capacity. The ALJ also ruled that
Omnova should be given a credit for the short-term and long-term benefits paid to Price.
Price appealed to the Commission, which found that Price suffered a twenty-five percent loss
of wage-earning capacity to her right arm and a twenty percent loss to her left arm. The
Commission also ordered Omnova to pay Price permanent partial disability payments for
1
Dr. Thorderson testified that he performed a right carpel tunnel release and a right
ulnar nerve neurolysis.
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ninety weeks. The Commission affirmed the ALJ, awarding Omnova credits for the benefits
paid to Price. Lastly, the Commission ordered that Omnova be assessed penalties and
interest if it failed to pay Price in a timely manner. Price appealed to the circuit court which
affirmed the Commission’s decision. Aggrieved, Price and Omnova appeal.
STANDARD OF REVIEW
¶7.
The Commission is the finder of fact, and this Court will defer to the findings of the
Workers' Compensation Commission when those findings are supported by substantial
evidence. Jones v. S. Healthcare Agency, 930 So. 2d 1270, 1272 (¶10) (Miss. Ct. App.
2006).
"We will only reverse the Commission's rulings where findings of fact are
unsupported by substantial evidence, matters of law are clearly erroneous, or the decision
was arbitrary and capricious." Levi Strauss & Co. v. Studaway, 930 So. 2d 481, 484 (¶10)
(Miss. Ct. App. 2006). If the Commission’s decision and findings of fact are supported by
substantial evidence, then we are bound by them even if we as the fact-finder would have
been convinced otherwise. Spann v. Wal-Mart Stores, Inc., 700 So. 2d 308, 311 (¶12) (Miss.
1997).
DISCUSSION
I. WHETHER THE COMMISSION ERRED IN FINDING THAT
PRICE SHOULD ONLY BE PAID PERMANENT PARTIAL
DISABILITY BENEFITS.
¶8.
Price argues the Commission erred by only awarding her permanent partial disability
benefits and not permanent total disability benefits. Price claims that her inability to return
to her pre-injury job, as well as Omnova’s reluctance to rehire her, is prima facie evidence
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of her total disability.
¶9.
Price asserts that McDonald v. I. C. Isaacs Newton Co., 879 So. 2d 486 (Miss. Ct.
App. 2004) is authoritative on this issue. In McDonald, this Court found that permanent total
disability benefits should have been awarded to a seamstress suffering from carpel tunnel
syndrome. Id. at 491 (¶¶22, 24). In its analysis, the supreme court applied the ruling in
Meridian Professional Baseball Club v. Jensen, 828 So. 2d 740 (Miss. 2002), which created
a rebuttable presumption of total occupational loss where the claimant is unable to earn the
same wages post-injury as they were pre-injury. McDonald, 879 So. 2d 491 (¶23). The
court in McDonald found the employer failed to rebut this presumption; thus, the seamstress
should have been awarded permanent total disability. Id. at 491 (¶¶22, 24).
¶10.
Price points to her wages pre-injury and the wages of jobs available after her injury
as proof that she should have received permanent total disability benefits. The parties
stipulated that Price was earning $921.87 per week before her injury. The vocational expert
reports listed jobs with ranges varying from $5.15 per hour to $8 per hour. This translates
into approximately $320 per week, at best.2 Price argues these vastly differing values prove
that she has suffered a permanent total disability.
¶11.
Our court has an extensive record of determining whether the claimant’s pre-injury
wage-earning capacity compared with the post-injury earning capacity is sufficient to support
a finding of permanent total disability. In McDonald, 879 So. 2d at 491 (¶¶22, 24), this
2
($8 per hour x 8 hours per day) x 5 days = $320.
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Court ruled that a claimant’s inability to earn the same wages prior to the injury supports a
finding of permanent total disability. On the other hand, McDowell v. Smith, 856 So. 2d 581,
585 (¶12) (Miss. Ct. App. 2003) held that "[t]he post-injury capacity to earn wages at other
employment, even at a diminished level, is enough to defeat a claim for permanent total
disability." This Court recently clarified this paradox by ruling that “the better rule is that
the ability to earn post-injury wages, even significantly diminished post-injury wages, defeats
a claim of permanent total disability.” Hill v. Mel, Inc., 989 So. 2d 969, 972 (¶14) (Miss. Ct.
App. 2008) (emphasis added).
¶12.
Based on our recent ruling, we find that Price’s ability to earn post-injury wages,
although at a diminished capacity, is sufficient to support the Commission’s finding of only
permanent partial disability benefits. The vocational expert testified that Price would be able
to obtain employment after her injury. The vocational expert provided reports from May
2002 to July 2004 that listed various jobs available in Price’s area that were tailored to her
abilities and restrictions. Moreover, the health and benefits manager at Omnova testified that
overtime was calculated into Price’s average weekly wage, and that Omnova no longer
allows its employees to work overtime. Given this development at Omnova, Price may only
receive wages at Omnova that are close to the wages offered by the jobs listed by the
vocational expert; thus, the wages would not be at a diminished capacity. Nevertheless,
given our recent ruling in Hill, Price’s ability to earn post-injury wages defeats her claim for
permanent total disability.
¶13.
In addition to the ability to earn post-injury wages, courts sometimes look at the
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reasonableness of the claimant’s post-injury job search in determining whether they are
entitled to permanent total disability benefits. This Court stated that:
In assessing the reasonableness of a claimant's job search, relevant factors for
consideration are: “the economic and industrial aspects of the local
community, the jobs available in the community and surrounding area, the
claimant's general educational background, including work skills, and the
particular nature of the disability for which compensation is sought.”
Lifestyle Furnishings v. Tollison, 985 So. 2d 352, 360 (¶25) (Miss. Ct. App. 2008).
Omnova’s vocational expert testified that Price is highly employable, given her age,
education, work background, and work restrictions. However, Price has been lax in her job
search. Price admitted she has not looked for work since June 2002. She claims to have
submitted applications to various employers in her area, some that the vocational expert
provided, but she provided no evidence to support these assertions. The vocational expert
testified that he could confirm that Price had applied to only three employers out of the
approximately twenty that he provided. Price testified that she now works for free at her
brother’s barbeque stand. The ALJ and Commission were both suspicious of Price’s alleged
job search. The Commission characterized her efforts as “questionable” and “marginal.”
¶14.
The Commission’s assessment of Price’s quest for employment is supported by the
evidence. As previously stated, she has not actively looked for work since June 2002. Price
did not sufficiently pursue any of the available jobs provided to her by the vocational expert.
Even more egregious, Price was informally offered two jobs after her injury, but she declined
the invitations because she “did not want to take a step down.” Strangely enough, Price has
the ability to help her brother make barbeque sandwiches in his restaurant, yet she cannot
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bear to perform any work involving the use of her hands. Price’s ability to earn post-injury
wages, coupled with her failure to adequately seek employment post-injury, supports the
Commission’s finding that she is only entitled to permanent partial disability benefits.
Accordingly, this issue is without merit.
II. WHETHER THE COMMISSION ERRED IN ITS IMPAIRMENTRATINGS FINDING.
¶15.
Price appeals the Commission’s finding on her impairment rating, arguing that she has
suffered a greater loss. However, Omnova cross-appeals arguing that the Commission erred
when it reversed and increased the impairment rating assigned by the ALJ.
¶16.
The ALJ found that Price suffered a twenty-five percent loss of wage-earning
capacity. The Commission reversed the ALJ’s finding, ruling that Price had suffered a
twenty-five percent loss to her right upper extremity and a twenty percent loss to her left
upper extremity. Despite this increase, Price contends the Commission should have found
a higher impairment rating or, in the alternative, a total loss.
Price argues that the
Commission merely estimated her loss and assigned an impairment rating accordingly.
¶17.
On the other hand, Omnova asserts that the Commission erred in its impairment-
ratings finding. Dr. Thorderson diagnosed Price with a total impairment of seventeen percent
to her right arm and a ten percent impairment to her left arm. Omnova argues that Price’s
award should be limited to Dr. Thorderson’s assessment.
¶18.
The Commission is not confined to medical testimony in determining the percentage
of loss to be assigned to an injury. Malone & Hyde of Tupelo, Inc. v. Kent, 250 Miss. 879,
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882, 168 So. 2d 526, 527 (1964). Lay testimony may be considered to supplement medical
testimony but, "[t]he probative value of any witness'[s] testimony is for the fact-finder to
determine." R.C. Petroleum, Inc. v. Hernandez, 555 So. 2d 1017, 1021 (Miss. 1990).
Factors which this Court has considered in determining loss of wage-earning capacity
include: the amount of education and training which the claimant has had, his inability to
work, his failure to be hired elsewhere, the continuance of pain, and any other related
circumstances.
Malone, 250 Miss. at 881, 168 So. 2d. at 527.
In other words, the
determination should be made only after considering the evidence as a whole, and it is not
limited to the percentage of physical or medical disability. Piggly Wiggly v. Houston, 464
So. 2d 510, 512 (Miss. 1985).
¶19.
Price, her son, and her brother all testified at the hearing before the Commission.
Price testified that her hands still go numb and that it is painful for her to use them. She
further testified that she still drops items when trying to lift them. Her testimony was
corroborated by her brother and son. Price’s brother stated that she drops things while
working in his business and has trouble lifting items. Price’s son testified that she has trouble
lifting and holding on to objects, and she is constantly dropping items after lifting them. This
evidence supports the Commission’s increase in Price’s impairment rating to twenty-five and
twenty percent, respectively.
¶20.
However, the testimony simultaneously precludes a finding of a total loss of use of
Price’s hands.
Omonva’s vocational expert testified that Price is highly employable.
Throughout these proceedings, the vocational expert has listed a multitude of jobs that were
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available and were within Price’s skill set and limitations. Moreover, Price testified that she
is still able to use her hands. She still performs household chores involving the use of her
hands such as folding clothes, and she continues to help her brother prepare barbeque
sandwiches in his restaurant, which obviously requires Price to use her hands. Given these
facts, Price has not experienced a total loss of use of her hands.
¶21.
Accordingly, the Commission’s assignment of impairment rating is supported by the
substantive evidence and was not erroneous.
III.
WHETHER THE COMMISSION ERRED IN GRANTING
OMNOVA CREDIT FOR THE BENEFITS PAID TO PRICE.
¶22.
The Commission granted Omnova credit for the short-term and long-term disability
benefits it paid to Price. The determination of whether an employer should be granted a
credit for nonstandard payments turns on whether the payments were intended as advanced
compensation payments.3
¶23.
Price argues Omnova failed to present any conclusive evidence that the advanced
payments by Omnova were in lieu of compensation payments. The ALJ and the Commission
disagreed with Price, and both awarded Omnova credit for the short-term and long-term
benefits paid to Price while she was unable to work.
¶24.
Omnova’s health and benefits manager testified that they paid Price $228.84 bi-
3
Mississippi Code Annotated section 71-3-7(d) (Rev. 2000) permits a credit for
payment made to pre-existing physical handicap, disease, or lesion. Also, Mississippi Code
Annotated section 71-3-53 (Rev. 2000) allows a credit for payments made when a case
reopens.
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weekly for 82 weeks (February 12, 2002 - September 23, 2003) in long-term benefits,
totaling $9,382.44. Additionally, they paid $54.18 bi-weekly for 52 weeks (February 10,
2000 - February 9, 2001) in short-term benefits, for a total of $1,408.68. These benefits were
in addition to the $42,190.73 in temporary total disability payments and $18,867.78 in
medical expenses. She also testified these benefits were used to replace the worker’s salary
while disabled, subject to a physician certifying the claimant was actually disabled. Omnova
calculated these numbers based on Mississippi compensation law and the employee’s current
salary. From this testimony, it is concluded that the Commission’s finding that Omnova’s
payments were advanced compensation payments is supported by the evidence. Thus, this
issue is without merit.
IV. WHETHER OMNOVA SHOULD BE ASSESSED PENALTIES AND
INTEREST.
¶25.
The Commission ruled that Omnova should be assessed penalties and interests if any
compensation is not paid in a timely manner.
¶26.
Mississippi Code Annotated section 71-3-37(5) and (6) (Rev. 2000) mandates a ten
percent penalty on any unpaid compensation benefits due prior to an award and a twenty
percent penalty on compensation benefits due and unpaid following an award unless review
of the compensation order making such award is had.
¶27.
Omnova should not be assessed a ten percent penalty as there were no unpaid
compensation benefits prior to the ALJ’s award. Omnova paid all temporary and permanent
partial benefits that had accrued at the time of the ALJ’s award through the credits they
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received from the temporary total disability, short-term, and long-term benefits payments
previously made to Price. Additionally, a twenty percent penalty should not be levied on
Omnova. If the Commission’s award is appealed, the due date of payment becomes effective
when the judgment on appeal becomes final. See V. Dunn, Mississippi Workermen’s
Commission, § 301 (3rd ed. 1990). Thus, Omnova should only be assessed penalties and
interest if it fails to make benefit payments within the applicable period of time from the date
of this judgment. Accordingly, this issue is without merit.
¶28. THE JUDGMENT OF THE LOWNDES COUNTY CIRCUIT COURT IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
APPELLANT/CROSS-APPELLEE.
LEE, P.J., IRVING, BARNES, ISHEE, ROBERTS AND CARLTON, JJ.,
CONCUR. KING, C.J., CONCURS IN RESULT ONLY. GRIFFIS, J., NOT
PARTICIPATING.
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