OF JUDGMENT: 12/15/2017
WORKERS' COMPENSATION COMMISSION
ATTORNEY FOR APPELLANT: H. ALEXANDER BRINKLEY
ATTORNEY FOR APPELLEE: RICHARD LEWIS YODER JR.
IRVING, P.J., GREENLEE AND TINDELL, JJ.
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.
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.
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. 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.
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.
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 ...