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Hayes v. Howard Industries, Inc.

Court of Appeals of Mississippi

August 6, 2019


          DATE OF JUDGMENT: 07/18/2018





          C. WILSON, J.

         ¶1. Linda Hayes sustained a neck injury while working at Howard Industries, Inc. and filed a compensation claim. The Administrative Judge held an evidentiary hearing on the matter, and the parties presented conflicting expert testimony. Thereafter, the Administrative Judge entered an order finding Hayes sustained a loss of wage-earning capacity and requiring Howard Industries to pay Hayes permanent partial disability benefits and future medical benefits. Howard Industries filed a petition for review. The Mississippi Workers' Compensation Commission (the "Commission") then entered an order declining to accept the Administrative Judge's determination and found that Hayes did not sustain a loss of wage-earning capacity. Hayes now appeals and asserts, among other things, that the Commission's decision is not supported by substantial creditable evidence. We affirm.


         ¶2. Hayes sustained a neck injury on March 21, 2012, while working at Howard Industries using an overhead crane to pick up steel. At the time of her injury, Hayes made $11.83 per hour as an internal assembler and was at an 11-0 pay-grade level.

         ¶3. Following the injury, Hayes received medical treatment, which Howard Industries covered. Hayes initially sought medical treatment from an MEA Medical Clinic before being referred to Dr. Ross Ward at Laurel Bone and Joint Clinic. On May 10, 2012, Dr. Ward informed Hayes that she was not a surgical candidate and released Hayes to work full duty with no restrictions beginning May 11. Dr. Ward also referred Hayes to Dr. Vivek Barclay for pain management.

         ¶4. Hayes began seeing Dr. Barclay on May 23, 2012. Dr. Barclay gave Hayes work restrictions, including no overhead work, no lifting over ten pounds, and eight-hour work days. On May 24, 2012, Hayes returned to work at Howard Industries. Howard Industries accommodated Hayes's restrictions from Dr. Barclay.

         ¶5. On September 4, 2012, Hayes filed a petition to controvert. On September 28, 2012, Howard Industries filed its answer, admitting compensability.

         ¶6. On August 23, 2013, Dr. Barclay placed Hayes at maximum medical improvement (MMI) and stated that Hayes had permanent work restrictions of no heavy lifting, no overhead reaching, and eight-hour work days and forty-hour work weeks.[1] Dr. Barclay assigned Hayes a 5% whole-person impairment rating.

         ¶7. On September 16-17, 2013, Robbie Bishop performed a functional capacity evaluation (FCE) on Hayes at Southern Bone and Joint Rehab. Bishop noted that Hayes had difficulty with overhead lifting as well as difficulty with heavy lifting and carrying. Overall, Bishop noted that Hayes could perform light-level work, was able to lift and carry and push and pull at least twenty pounds occasionally, and was able to remain upright at a frequent level.

         ¶8. On January 17, 2014, Dr. Jeffrey Summers performed an independent medical exam (IME) on Hayes at NewSouth NeuroSpine. Dr. Summers reviewed Hayes's medical records from MEA, Dr. Ward, and Dr. Barclay. Dr. Summers reported that he did not feel that Hayes was at MMI and recommended that she begin both a home exercise program and an active therapy program. On December 23, 2014, Dr. Barclay again placed Hayes at MMI with the same restrictions.

         ¶9. Given the conflicting medical opinions, Howard Industries requested Hayes undergo another IME. The Administrative Judge granted Howard Industries's request and ordered Hayes to undergo an IME with Dr. Leon Grigoryev. Dr. Grigoryev performed this exam on May 1, 2015. Following the examination, Dr. Grigoryev reported that Hayes had reached MMI and assigned Hayes a 0% impairment rating. He further reported that Hayes had no work restrictions and no work limitations and that Hayes did not need any further medical treatment for her March 21, 2012 injury.

         ¶10. Hayes worked an accommodated job at Howard Industries from August 2013 to September 2015. Following Dr. Grigoryev's IME, Hayes's supervisor requested Hayes return to work full duty in September 2015 based on the IME findings. Hayes complied and worked full duty for four months-from September 2015 to December 2015-with no complaints. Nonetheless, when Hayes returned to work after Christmas in January 2016, Hayes told her supervisors that she would not work full duty and requested a job that complied with Dr. Barclay's restrictions. Howard Industries terminated Hayes on January 5, 2016, for refusal to perform her required work. At the time of her termination, Howard Industries paid Hayes $12.91 per hour, and Hayes was at an 11-3 pay-grade level.

         ¶11. After her termination, Hayes's union appealed her grievance to arbitration. The arbitrator, Connie M. Stokes, issued an order on August 3, 2016, stating that Hayes should not have refused to work the job offered by Howard Industries. However, due to the uncertainty of Hayes's physical condition on the date of her termination, [2] Stokes decreased Hayes's penalty to a six-month suspension. Pursuant to Stokes's arbitration order, Hayes returned to work on August 11, 2016. But upon returning, Hayes again refused to work full duty, so Howard Industries terminated Hayes for a second time on August 23, 2016. At the time of her second termination, Hayes made $12.91 per hour and was at an 11-3 pay-grade level.

         ¶12. Hayes's union appealed Hayes's grievance to arbitration again, alleging Howard Industries failed to accept statements from Hayes's doctor and documentation concerning Hayes's work restrictions. The second arbitrator, Steven A. Zimmerman, issued an order on August 28, 2017, finding that Howard Industries had properly terminated Hayes for violation of company rules and denying all relief requested by Hayes's union. Zimmerman specifically noted that Hayes testified that she was not in pain on the day she returned to Howard Industries in August 2016 and refused to work full duty.

         ¶13. Even though Dr. Grigoryev performed an IME on Hayes in May 2015, Hayes continued to see Dr. Barclay in 2016 and 2017. During this time frame, Dr. Barclay indicated that he had no changes or other recommendations to make after Dr. Grigoryev's IME. Dr. Barclay also maintained the same work restrictions for Hayes ...

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