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LOUISE ROBINSON v. PACKARD ELECTRIC DIVISION

APRIL 13, 1988

LOUISE ROBINSON
v.
PACKARD ELECTRIC DIVISION, GENERAL MOTORS CORPORATION, SELF-INSURED



BEFORE ROY NOBLE LEE, SULLIVAN and GRIFFIN

ROY NOBLE LEE, CHIEF JUSTICE, FOR THE COURT:

Louise Robinson has appealed from a judgment of the Circuit Court of the First Judicial District, Hinds County, Mississippi, affirming the judgment of the Workers' Compensation Commission denying permanent partial benefits in her claim against Packard Electric Division of General Motors. She assigns the following error:

THE LOWER COURT ERRED IN REFUSING TO AWARD THE APPELLANT PERMANENT PARTIAL DISABILITY BENEFITS BECAUSE THE EMPLOYER FAILED TO OFFER ANY PROOF WHATSOEVER TO REBUT CLAIMANT'S UNDISPUTED PRIMA FACIE CASE OF LOSS OF WAGE-EARNING CAPACITY.

 On April 11, 1983, while working in the course and scope of her employment with appellee, appellant was attempting to push a heavy battery in position in the forklift

 machine which she operated. She heard a" pop "in her back and immediately notified the supervisor that she had injured herself. The next morning appellant visited a Dr. McIlwain and remained off work for two weeks. On April 24 she returned to work and resumed her forklift job at the same wage.

 Appellant complained of continuing pain in her back. She left work on May 4 and consulted Dr. David E. Lipton, whose diagnosis was herniated lumbar disc. He hospitalized appellant and started a treatment program of traction, therapy and medication. After her release from the hospital, appellant continued with out-patient therapy three times per week for several months.

 Appellant returned to work on August 26 and resumed her forklift job at the usual pay. After working for two hours, she complained of pain in her back and went home. She remained away from work until September 28 when she was reassigned to the job of" lead prep "at her usual wage. This job was described as the lightest-duty job appellee had to offer. The job involved the insertion of two small wires, one held in each hand, into a machine which, when activated by a foot pedal, affixed terminal lugs to the ends of the wires. This job was performed in a sitting position. There was no quota on the amount of units produced, appellant was allowed to work at her own pace and to stand and stretch whenever she liked. Appellant performed the lead prep job for some ten days, complaining of continuing back pain all the while. She again left work on October 6, 1983.

 On January 9, 1984, appellant underwent surgery by Dr. Lipton to remove a disc at the L-4/L-5 level. Recovery was normal, and, on April 11, 1984, Dr. Lipton advised appellant she could return to work provided that her duties did not involve excessive bending, heavy lifting, over twenty (20) pounds, or prolonged periods of sitting or standing.

 Appellee returned to work on April 16 for the first time since October 6, 1983. She was assigned to the lead prep job at her usual wage. After four hours of work, appellant complained of back pain and went home. Over the following weeks appellant sought employment elsewhere. She inquired at several grocery stores, drugstores, discount stores and fast food restaurants but was unable to secure a position.

 On August 6, 1984, appellant returned to work at appellee's plant, but after one month she began experiencing back pain, and she left work for the last time sometime between September 6 and October 11, 1984.

 Appellant filed her motion to controvert on July 6, 1983. Thereafter, appellee paid all of appellant's medical expenses; temporary disability benefits in the amount of $3,760.00 were paid as well. When the case came for hearing before the administrative judge, the principal issues in contest were the duration of appellant's temporary total disability and whether appellant had suffered any permanent disability or loss of wage-earning capacity.

 The case was presented over the course of three hearings held on November 22, 1983, April 27, 1984, and July 27, 1984. Witnesses were appellant, her son, and her work supervisor. The only medical evidence was the testimony of Dr. Lipton. He stated that appellant reached maximum medical recovery on April 11, 1984. He further stated that appellant had sustained a 15% permanent partial disability to the body as a whole and that she could perform a job not requiring excessive bending, lifting over 20 pounds, or prolonged sitting or standing.

 The administrative judge found that appellant's injury was compensable; that appellant was temporarily totally disabled from April 11, 1983, to April 11, 1984; and that appellant suffered no loss of wage-earning capacity. Appellee was ordered to pay disability benefits in the amount of $112.00 per week for the period of temporary disability specified together with any statutory penalties and medical expenses remaining unpaid.

 Upon appeal to the full Commission, the order of the administrative judge was affirmed without comment. Appellant then appealed the Commission order to the Circuit Court of the First Judicial District of Hinds ...


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