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Smith v. Howard Industries, Inc.

Court of Appeals of Mississippi

December 18, 2018

HAZEL SMITH APPELLANT
v.
HOWARD INDUSTRIES, INC. (SELF INSURED) APPELLEE

          DATE OF JUDGMENT: 12/15/2017

          WORKERS' COMPENSATION COMMISSION

          ATTORNEY FOR APPELLANT: H. ALEXANDER BRINKLEY

          ATTORNEY FOR APPELLEE: RICHARD LEWIS YODER JR.

          BEFORE IRVING, P.J., GREENLEE AND TINDELL, JJ.

          IRVING, P.J.

         ¶1. Hazel Smith appeals the decision of the Workers' Compensation Commission (Commission), asserting that two of its findings are unsupported by substantial evidence: (1) that Smith was capable of performing the substantial acts of her usual employment; and (2) that Smith was not permanently and totally disabled, but rather only suffered a partial, fifty percent loss of industrial use to her right upper extremity. We find that the Commission's decision is supported by substantial evidence; therefore, we affirm.

         FACTS

         ¶2. At the time of the events giving rise to this appeal, Smith was employed as a final assembler at Howard Industries Inc. She was sixty years old and had worked at Howard for approximately twenty years. She reached the eleventh grade in high school and did not obtain her GED. Prior to her employment at Howard, she worked various labor jobs, including as a shirt inspector at a factory in Arkansas; as a manager at a Pizza Hut; inspector of rice, sugar, and flour bags; and as an assistant manager at a resort. Her job as a final assembler at Howard consisted generally of pulling wire off of spools and then using a crimping gun to put leads on the wires. This job required Smith to repetitively grasp and pull the crimping gun and to lift bins containing parts that weighed more than twenty pounds. She fell into the pay grade of 11.3 and earned $12.56 per hour, which came to an average weekly wage of $807.

         ¶3. On August 5, 2013, while operating the crimping gun, Smith felt a sharp, shooting pain throughout her arm. She immediately reported the injury to her supervisor and sought medical care, where she learned that she had sustained an injury to her right upper extremity. She also went on to develop bilateral carpal tunnel syndrome. Following her injury, Smith returned to Howard and continued to work in a different capacity-driving a forklift-until she had the first of several surgeries by Dr. Rocco Barbieri on December 18, 2013.[1] On November 10, 2014, Dr. Barbieri diagnosed Smith with a four percent upper-extremity impairment, determined that she had reached maximum medical improvement (MMI), and summarized the findings of a functional capacity exam, which he approved and adopted in determining the work limitations to be placed on Smith:

A Functional Capacity Exam was performed by Drayer Physical Therapy and it demonstrated findings that the patient was recommended for a light duty level of work which [is] really no lifting more than 20 pounds and some specifics on avoiding paths that would require balance on uneven surfaces due to preexisting problem with polio. She also should avoid a combination of repetitive forceful grasping and vibration, as well as sustained posturing of the wrists greater than 30 degrees of flexion as this may worsen her carpal tunnel.
My opinion, at this time, is that this Functional Capacity Evaluation is in line with what I perceived the patient being able to do regarding her work activities and I will release her to work with these restrictions of light duty limitations. Essentially, she will not be allowed to lift or carry more than 20 pounds, will avoid unusual postures of the wrist or sustained repetitive gripping actions.

         Smith returned to Howard in September 2016. Her job title and pay grade stayed the same as prior to her injury, but her pay was raised to $12.96 per hour due to a company-wide increase. She was offered a new job that allegedly fell within her medical restrictions. This job consisted of pulling rubber tips off of threads. Smith testified that she attempted the job but was unable to pull the rubber tips off due to the immobility of her thumb. She was accompanied by John Risher, Howard's environmental and safety manager. When Smith informed Risher that she was unable to properly grip the rubber tips due to her thumb, he moved her to another job. She burned her arm and was subsequently sent home and told that someone from Howard would call her; however, she has not heard from Howard since that date. Smith contends that she searched for work elsewhere but was unsuccessful.

         ¶4. Smith timely filed a petition to controvert on February 19, 2015. On February 1, 2017, an administrative judge (AJ) conducted a hearing to determine the existence and extent of permanent disability and any applicable penalties and interest. The parties stipulated that Smith's August 5, 2013 injury was work-related, that she began accruing disability on December 18, 2013, and that she ...


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