Ruth Wooten v. Franklin Corporation
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2008-WC-00858-COA
RUTH WOOTEN
APPELLANT
v.
FRANKLIN CORPORATION AND LIBERTY
MUTUAL INSURANCE COMPANY
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEYS FOR APPELLEES:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
APPELLEES
04/15/2008
HON. ANDREW K. HOWORTH
CHICKASAW COUNTY CIRCUIT COURT
DON OLIVER GLEASON
GEORGE E. READ
GINGER MOORE ROBEY
CIVIL - WORKERS’ COMPENSATION
AFFIRMED THE MISSISSIPPI WORKERS’
COMPENSATION COMMISSION’S
DENIAL OF BENEFITS
AFFIRMED: 04/21/2009
BEFORE MYERS, P.J., GRIFFIS AND ISHEE, JJ.
MYERS, P.J., FOR THE COURT:
¶1.
Ruth Wooten filed a petition to controvert alleging that she developed carpel tunnel
syndrome as a result of her work at Franklin Corporation (Franklin). A hearing on the merits
was conducted by the administrative law judge (ALJ), who ruled that Wooten was not
entitled to permanent disability benefits. Wooten appealed this decision to the Mississippi
Workers’ Compensation Commission (Commission), which affirmed the decision of the ALJ.
Wooten then appealed the Commission’s decision to the Chickasaw County Circuit Court,
which affirmed the Commission’s decision. Aggrieved, Wooten now appeals the circuit
court’s judgment.
FACTS AND PROCEDURAL HISTORY
¶2.
Wooten began working for Franklin, which is located in Chickasaw County,
Mississippi, in 1999. Her first job at Franklin was assembling metal parts. She described
this work as picking up a metal washer from a bin, placing the washer on a metal part, hitting
a petal that caused a rivet machine to permanently place the washer on the metal part, then
pushing the metal part down the line to the next person. This work was repetitive and
required her to lift five to ten pounds. She stayed at this position for approximately one-anda-half years, before starting as the rivet-machine operator. As a rivet-machine operator,
Wooten’s responsibilities were to retrieve bins of metal seat plates, take a seat plate out of
a bin, place it on one of two machines that she was operating, place various pins in the seat
plate using the rivet machine, and then deposit the seat plate into another bin.1
¶3.
Wooten was working as a rivet-machine operator when she was injured on February
16, 2004. Wooten described her injury as sharp pains going through her wrist causing an
inability to lift anything. Dr. Bobby Smith initially examined Wooten. He placed her on
restricted work duty and referred to her an orthopedic surgeon. Wooten was then examined
by Dr. Alex Bigighaus, an orthopedic surgeon. Dr. Bigighaus prescribed medication, placed
her in a brace, and recommended physical therapy. These prescriptions did not relieve
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Prior to her work at Franklin, Wooten held various jobs including sewing gloves,
sewing children’s clothing, harness inspector and repairperson, and a sales clerk.
2
Wooten’s pain, and a first dorsal extensor compartmental release was performed on April 2,
2004, by Dr. Bigighaus. On April 13, 2004, Dr. Bigighaus reported that Wooten had no
complaints and minimal discomfort in her surgically repaired hand. On April 22, 2004, Dr.
Bigighaus opined that Wooten could return to work restricted to light duty. Approximately
one month later, on May 21, 2004, Dr. Bigighaus concluded that Wooten had reached
maximum medical improvement and found no medical reason for why she had not returned
to work.
¶4.
Following the May 21, 2004, examination, Wooten returned to work and was placed
in the poly-glue plant. Her duties included retrieving the poly parts, placing them on a
machine, gluing the parts together, and placing them to the side. She stayed at this position
for eight to nine weeks. Wooten testified that these duties caused her hands to swell. She
then decided to go see Dr. Kurt Thorderson.
¶5.
Dr. Thorderson had previously examined and performed surgery on Wooten’s left
hand. Upon his examination of Wooten, Dr. Thorderson noticed some mild swelling and
tenderness on Wooten’s surgically repaired right hand. He opined that Wooten had flexor
carpi radialis tunnel syndrome and gave her a cortizone shot. Dr. Thorderson opined that
Wooten had reached maximum medical improvement on September 23, 2004. He gave her
a zero percent impairment rating and placed her on a two-pound permanent weight-lifting
restriction. Wooten returned to Franklin after being examined and diagnosed by Dr.
Thorderson. She informed Franklin’s personnel about the restrictions that were placed on
her by Dr. Thorderson, but Franklin did not have a position available with those restrictions;
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Franklin sent Wooten home.
¶6.
Thereafter, Wooten filed her petition to controvert, and a subsequent motion to
compel payment or, in the alternative, for an independent medical examination. After
hearing arguments, the ALJ ordered that Wooten be examined by Dr. Mark Harriman. Dr.
Harriman performed an independent medical examination of Wooten on April 5, 2005. Dr.
Harriman opined that Wooten had a normal exam, with no swelling and a normal range of
motion. He further noted that he thought it was very unusual for Wooten to have a
permanent two-pound weight restriction, given her type of surgery and healing.
Dr.
Harriman recommended that Wooten return to work full time with no restrictions.
¶7.
After hearing lay and medical testimony, the ALJ denied Wooten’s petition for
permanent disability benefits.2 Wooten appealed the ALJ’s decision to the Commission,
which affirmed the ALJ’s denial for permanent disability benefits. Wooten appealed the
Commission’s decision to the Chickasaw County Circuit Court, which affirmed the
Commission’s decision. Aggrieved, Wooten appeals arguing that: (1) the Commission’s
reliance on Dr. Bigighaus’s and Dr. Harriman’s reports rather than Dr. Thorderson’s report
was arbitrary and capricious, and (2) Wooten is entitled to permanent disability benefits.
STANDARD OF REVIEW
¶8.
“It is well settled that the Commission is the finder of fact and if their findings are
2
The ALJ also gave Franklin a credit for the temporary disability payments it was
making to Wooten pursuant to a separate ALJ’s order requiring Franklin to pay Wooten
$90.75 per week, retroactively from June 1, 2004, until Wooten submitted to an independent
medical examination or until further order of the Commission.
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based on substantial evidence they will be affirmed.” Bracey v. Packard Elec. Div., General
Motors Co., 476 So. 2d 28, 29 (Miss. 1985). “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.” Neill v. Waterway, Inc./ Team Am., 994 So. 2d 196, 199 (¶13)
(Miss. Ct. App. 2008). “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).
DISCUSSION
I.
¶9.
Whether the Commission’s findings were arbitrary and capricious.
Wooten argues that the Commission’s finding that Dr. Bigighaus’s and Dr.
Harriman’s opinions were more persuasive than Dr. Thorderson’s opinion was arbitrary and
capricious. She asserts that because Dr. Thorderson had examined and operated on her in
the past and was in the best position to evaluate her condition, the Commission should have
given his diagnosis and opinion more weight than Dr. Bigighaus’s and Dr. Harriman’s
opinions.
¶10.
The supreme court has faced similar arguments. In Hardaway Co. v. Bradley, 887 So.
2d 793, 796 (¶14) (Miss. 2004), the claimant argued that the doctor treating his injury should
have been given more weight than two doctors performing independent medical evaluations.
The ALJ acknowledged that the claimant’s doctor had been treating him for a longer period
of time, but she found the other two doctors’ opinions more probative. Id. On appeal, the
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supreme court affirmed the Commission’s decision, which affirmed the ALJ’s decision,
because its findings were based on substantial evidence, and it was not arbitrary and
capricious. Id. at (¶16).
¶11.
This Court went through a lengthy discussion and analysis with regard to this issue
in Manning v. Sunbeam-Oster Household Products, 979 So. 2d 736 (Miss. Ct. App. 2008).
In Manning, the claimant argued that an ALJ, when faced with opinions from two equally
competent physicians, should defer to the treating physician, relying primarily on South
Central Bell Telephone Co. v. Aden, 474 So. 2d 584 (Miss. 1985). Manning, 979 So. 2d at
741 (¶16). Upon reading Aden, this Court found no rule dictating that the ALJ is required
to defer to the opinion of a patient-selected or treating physician. Id. at 742 (¶20). Thus,
this Court found no merit to the claimant’s argument that a treating physician’s opinion
should be given more weight. Id. at 744 (¶28).
¶12.
Even more recently, this Court affirmed the Commission’s reliance on an independent
medical evaluation over a treating physician in Daniels v. Peco Foods of Mississippi, Inc.,
980 So. 2d 360 (Miss. Ct. App. 2008). There, the Commission heard testimony of both
doctors, and it found the independent medical evaluation more persuasive because the
independent medical examiner reviewed the patient’s history more extensively than the
regular, treating physician. Id. at 365 (¶16). This Court deferred to the Commission’s
finding because the Commission is the finder and trier of fact, and “it is [the Commission’s]
job to evaluate and weigh the evidence,” and affirmed the Commission’s ruling. Id.
¶13.
A review of the above cases dictates that the Commission is not required to defer to
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the opinion and report of the claimant’s treating physician. It is permitted to rely on the
opinion of an independent medical examiner, even if that doctor has only examined the
claimant once.
¶14.
In the case at bar, Dr. Bigighaus performed the surgery on Wooten, and after
continuously examining Wooten for approximately one-and-a-half months after her surgery,
he determined that Wooten could return to work. Dr. Bigighaus could be considered
Wooten’s treating physician for this injury, as he examined Wooten more than any other
doctor and performed the surgery on Wooten’s right hand. However, Dr. Thorderson placed
Wooten on a two-pound, permanent weight restriction. In his deposition, Dr. Thorderson
testified that the two pounds was an arbitrary number, and the restriction could be increased
to three or five pounds. In order to resolve these conflicting opinions, Dr. Harriman was
appointed by the ALJ to perform an independent medical examination. Dr. Harriman took
x-rays of Wooten’s hand and reviewed Wooten’s medical history with respect to her right
hand. In conclusion, Dr. Harriman opined that Wooten could return to work with no
restrictions. After reviewing the reports and testimony of each doctor, the Commission found
that Drs. Bigighaus’s and Harriman’s opinions to be more persuasive than Dr. Thorderson’s
opinion. As this Court has repeatedly stated, the Commission is the finder and trier of fact,
and “it is [the Commission’s] job to evaluate and weigh the evidence”; it is not ours. Id. We
find that the Commission’s finding is not arbitrary and capricious, and it is supported by
substantial evidence. Accordingly, this assignment of error is without merit.
II.
Whether the Commission was correct in finding that Wooten was not
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permanently disabled.
¶15.
Wooten argues that the Commission erred in not concluding that she was permanently
disabled.
She claims that the weight of evidence showed that she suffered a total
occupational loss of her hand, requiring an award for permanent disability benefits. Wooten
cites Meridian Professional Baseball Club v. Jensen, 828 So. 2d 740 (Miss. 2002) to support
her proposition. In the ever popular Jensen, the supreme court ruled that “where a permanent
partial disability renders a worker unable to continue in the position held at the time of injury,
. . . such inability creates a rebuttable presumption of total occupational loss of the member,
subject to other proof of the claimant's ability to earn the same wages which the claimant was
receiving at the time of injury.” Id. at 747 (¶21).
¶16.
At the time of Wooten’s injury, she was employed as a rivet-machine operator with
an average weekly wage of $455.98. After rehabilitating from surgery, Wooten contacted
Franklin about returning to work as a rivet-machine operator. However, Wooten’s position
as rivet-machine operator had already been filled. She then worked in the poly-glue
department, earning an average weekly wage of $317.88. She testified, that given the
permanent work restrictions placed on her by Dr. Thorderson, she would have been unable
to return to work at Franklin as a rivet-machine operator. Wooten argues that this created
a rebuttable presumption of total occupational loss which Franklin failed to rebut, thus
entitling her to two hundred weeks of compensation.
¶17.
In denying permanent disability benefits, the Commission reviewed the testimonies
of Wooten’s doctors, Wooten, and a general manager at Franklin. Dr. Bigighaus, Wooten’s
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treating physician, opined that Wooten’s surgically-repaired hand was completely healed,
finding no tenderness or crepitation in his final examination. He concluded that there was
no reason why Wooten could not return to work. This assessment was echoed by Dr.
Harriman based upon his independent medical evaluation of Wooten. Contrarily, Dr.
Thorderson placed a two-pound permanent weight restriction on Wooten.
On cross-
examination during his deposition, Dr. Thorderson stated the intention of his diagnosis was
to find that Wooten did not have any permanent disability. He assigned the weight restriction
to prevent Wooten from having further, similar claims and to prevent her from hurting herself
or others. More importantly, Dr. Thorderson testified that he arbitrarily selected the twopound weight restriction. He stated that he had no reason why he chose two pounds, and he
could have selected three pounds or five pounds. He further stated that he had no problem
with Wooten lifting three pounds.
¶18.
Permitting Wooten to lift three pounds would allow her to perform the duties of rivet-
machine operator. Franklin’s general manager of their mechanism division testified that a
rivet-machine operator would have to lift parts weighing 2.8 pounds at most, clearly within
the three-pound limit placed by Dr. Thorderson.
¶19.
In summation, all three doctors testified that Wooten could perform the duties of rivet-
machine operator post-injury; two doctors opined that Wooten should have no work
restrictions, and the third doctor stated he had no problem with a three-pound lifting
restriction, which is more than the heaviest part Wooten would have to lift at Franklin as a
rivet-machine operator. Thus, Wooten could have returned to work as a rivet-machine
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operator after her surgery.
¶20.
Accordingly, we find that the Commission’s decision to deny Wooten permanent
disability benefits is supported by substantial evidence. Therefore, this issue is without
merit.
¶21. THE JUDGMENT OF THE CHICKASAW COUNTY CIRCUIT COURT IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
APPELLANT.
KING, C.J., LEE, P.J., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS AND
CARLTON, JJ., CONCUR. MAXWELL, J., NOT PARTICIPATING.
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