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Gaston v. Tyson Foods, Inc.

Court of Appeals of Mississippi

September 17, 2013

Diane GASTON, Appellant
v.
TYSON FOODS, INC., A Self-Insurer, Appellee.

Page 798

Al Chadick III, attorney for appellant.

Michael D. Young, attorney for appellee.

Before LEE, C.J., ROBERTS and CARLTON, JJ.

LEE, C.J.

¶ 1. This appeal arises from Diane Gaston's claim that she is entitled to an industrial loss of use greater than the medical impairment ratings assigned by her treating physicians. The administrative judge (AJ) denied Gaston's claim, and the Mississippi Workers' Compensation Commission (the Commission) affirmed the AJ's denial, with one commissioner dissenting.

FACTS AND PROCEDURAL HISTORY

¶ 2. Gaston began working for Tyson Foods Inc. in October 2003. On June 13, 2006, Gaston injured her right wrist, right elbow, and left shoulder because of the repetitive motion required for her job in the washout department. Four months after Gaston injured her wrist, elbow, and

Page 799

shoulder, she slipped and fell, injuring her left heel.

¶ 3. After carpal tunnel release surgery on her right wrist, Gaston was assigned a 5% permanent partial impairment rating. After surgery on her left shoulder, she was assigned an 11% permanent partial impairment rating to the upper-left extremity. This limitation was equated to a 7% permanent partial impairment rating to the body as a whole. Gaston cannot perform any sustained work at shoulder level or above, or any repetitive or sustained reaching greater than eighteen inches from the navel. Also, she cannot lift more than twenty-five to thirty pounds from the floor to her waist. Gaston had surgery on her left heel at a later date, and was assessed a 10 to 20% permanent partial impairment rating to the lower-left extremity.

¶ 4. Gaston was moved from the washout department to the gizzard table, which allowed her to sit to accommodate her heel injury. On March 17, 2010, she injured her right shoulder. After surgery on her right shoulder, Gaston was assigned a 4% permanent partial impairment rating to the upper-right extremity. She cannot lift anything greater than ten pounds overhead and cannot perform any repetitive overhead work.

¶ 5. Gaston was moved from the gizzard table to the liver table, where she continues to work. As a union employee, her average weekly wage is greater now than it was at the time of her final injury. The pay raises she received were not merit based but were consistent with those raises of her coworkers. Tyson admitted all injuries.

¶ 6. After a hearing on July 8, 2011, the AJ issued an order denying Gaston's claim, specifically finding that Gaston was not entitled to any benefits in excess of those already paid by Tyson. Gaston appealed to the Commission. The Commission affirmed the AJ's ruling and found that Gaston had not " established any additional loss of industrial use in excess of her medical ratings[,] as she is currently ...


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