OF JUDGMENT: 07/18/2018
MISSISSIPPI WORKERS' COMPENSATION COMMISSION
ATTORNEY FOR APPELLANT: FLOYD E. DOOLITTLE.
ATTORNEYS FOR APPELLEE: RICHARD LEWIS YODER JR. WILLIAM
BARNES, C.J., McDONALD AND C. WILSON, JJ.
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.
AND PROCEDURAL HISTORY
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
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.
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.
On September 4, 2012, Hayes filed a petition to controvert.
On September 28, 2012, Howard Industries filed its answer,
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. Dr. Barclay assigned Hayes a 5%
whole-person impairment rating.
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.
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.
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.
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.
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,
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.
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.
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 ...