Alumax Extrusions, Inc. v. Wright

737 So. 2d 416, 1998 Miss. App. LEXIS 1114, 1998 WL 906445
CourtCourt of Appeals of Mississippi
DecidedDecember 30, 1998
Docket97-CC-00925 COA
StatusPublished
Cited by17 cases

This text of 737 So. 2d 416 (Alumax Extrusions, Inc. v. Wright) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Alumax Extrusions, Inc. v. Wright, 737 So. 2d 416, 1998 Miss. App. LEXIS 1114, 1998 WL 906445 (Mich. Ct. App. 1998).

Opinion

737 So.2d 416 (1998)

ALUMAX EXTRUSIONS, INC., Self-Insured, Appellant,
v.
Larry WRIGHT, Appellee.

No. 97-CC-00925 COA.

Court of Appeals of Mississippi.

December 30, 1998.
Rehearing Denied March 23, 1999.
Certiorari Denied June 17, 1999.

*417 Joseph T. Wilkins, III, Jackson, Attorney for Appellant.

David L. Walker, Batesville, John D. Watson, Attorneys for Appellee.

Before BRIDGES, C.J., and HINKEBEIN and KING, JJ.

HINKEBEIN, J., for the Court:

¶ 1. This appeal involves a claim for workers' compensation benefits as a result of an accident suffered during the scope of his employment by the respondent/cross-petitioner, Larry Wright, on New Year's Day 1993. Wright filed his petition to controvert on November 14, 1994 against Alumax Extrusions, Inc., a self-insured Mississippi corporation. The administrative law judge [ALJ] awarded Wright temporary total disability benefits minus any amount already paid and any period during which he actually worked for his former employer. In addition, the ALJ awarded Wright permanent partial disability *418 benefits for a 50% industrial disability to his right upper extremity. The Mississippi Workers' Compensation Commission subsequently adopted this order without comment and the circuit court thereafter affirmed the Commission. Alumax now appeals the circuit court's judgment on the following grounds:

I. WHETHER THE MWCC ERRED IN AWARDING TEMPORARY TOTAL DISABILITY BENEFITS FROM JANUARY 2, 1993 THROUGH SEPTEMBER 16, 1994.

II. WHETHER THE MWCC ERRED IN FINDING THAT WRIGHT HAD SUSTAINED A 50% PERMANENT PARTIAL INDUSTRIAL IMPAIRMENT TO THE ARM.

Likewise, Wright cross-appeals, raising the following assignment of error:

II. WHETHER THE MWCC ERRED IN RELATING THE RELEVANT INJURY TO WRIGHT'S ARM, A SCHEDULED MEMBER, RATHER THAN THE BODY AS A WHOLE. Holding that there was substantial credible evidence supporting the findings made by the Commission, we affirm.

FACTS

¶ 2. The record shows that at the time of the hearing Wright was a 27-year-old male without a high school diploma or its equivalent and having experience exclusively in manual labor-type work. Throughout his adult life he has worked at various jobs, each requiring some degree of heavy lifting and many involving such in connection with overhead reaching. For example, Wright has tried his hand as a stock handler in a retail computer store, loaded furniture onto trucks, installed assorted large appliances such as air conditioners, stacked lumber, and installed gas tanks which entailed the operation of a jackhammer.

¶ 3. Wright initially began working at Alumax in Hernando during May of 1990 on a part-time basis in the clean up department. This position, much like his previous jobs, required that he lift 50 or more pounds on a regular basis. Later, as a full-time employee, he first assisted others in cutting aluminum and subsequently was promoted to full-fledged saw operator. Both of these positions again involved, at least on an occasional basis, the stacking of billets, each of which weighed in excess of 200 pounds. On the evening of his accident, however, Wright was not acting in his regular capacity as he was temporarily working as a "charge man", a job which involved the use of a pole to stack material overhead. While engaged in this work, Wright fell from a ten foot platform and landed squarely on his right shoulder, injuring the coinciding rotator cuff and sternoclavicular joint of collarbone.

¶ 4. After visiting a nearby emergency room on the night of the incident, Wright sought follow up treatment from four separate physicians, the last of which was orthopedist Dr. Ernest Lowe of Oxford. Beginning in June, Dr. Lowe treated Wright with little success as Wright continued working, albeit on lighter duty consisting generally of clean up tasks with curtailed hours due to his lingering pain. Finally, in September, Dr. Lowe performed arthroscopic surgery on the affected shoulder. Although Wright subsequently made significant progress and returned to work in early November, again with restrictions against working overhead and participating in any lifting over twenty-five pounds, he continued to experience pain associated with the collarbone injury. In response to Wright's complaints, Dr. Lowe performed a second surgery in March of 1994 in an attempt to alleviate this discomfort. On March 24 Wright was released to return to work again on temporary light duty; however, no work was available within his restrictions. Then on April 28, he was released to return so long as he, once again, avoided lifting above the shoulder or more than twenty-five pounds in any fashion. However, due to continuing discomfort, Wright did not work during the entire *419 month of June so that he could undergo physical therapy. With this phase of treatment ending, he once more reported back for regular duty at Alumax on July 11, 1994.

¶ 5. During the weeks that followed Wright was placed on probation once for refusing to perform tasks arguably outside his physical limitations and twice more for refusing to sign certain related paperwork without the advice of counsel. Wright nevertheless returned to Alumax each time, generally completing his assigned duties at his pre-injury rate of pay, but never able to resume his previous responsibilities as either a saw operator or helper.

¶ 6. Then on August 2, 1994, Wright was involved in an automobile accident. Although he was uninjured, his car sustained extensive damage and, as a result, he was left without transportation to and from work. Following company policy, Wright immediately notified Alumax of his predicament. However, during the next three weeks he failed to either report for his shift or contact his supervisory personnel again regarding the problem. Therefore, on August 22, 1994 his employment at Alumax was terminated. Later, in September, Dr. Lowe recommended to Wright that he permanently refrain from work requiring heavy lifting or use of his right arm above shoulder level. Since that time Wright has been searching, unsuccessfully, for comparable work elsewhere.

¶ 7. Based upon these facts as described by Wright himself during the March 1996 hearing on his claim and confirmed by Dr. Lowe's deposition, the ALJ awarded Wright temporary total disability benefits in the amount of $235.84 per week for the period of January 2, 1993 through September 16, 1994 minus any amount already paid and any period during which Wright actually worked for his former employer. In addition, the ALJ awarded Wright permanent partial disability benefits for 100 weeks due to a 50% industrial disability to his right upper extremity despite Dr. Lowe's assignment of only a 13% impairment to the member based upon AMA guidelines. It is the Commission's subsequent order affirming these conclusions which we now examine.

ANALYSIS

¶ 8. From the outset we must emphasize the well-settled rule that the Mississippi Workers' Compensation Commission is the ultimate finder of fact, and its findings are subject to normal deferential standards of review. Natchez Equip. Co., Inc. v. Gibbs, 623 So.2d 270, 273 (Miss. 1993). In Walker Mfg. Co. v. Cantrell, 577 So.2d 1243, 1247 (Miss.1991), the Mississippi Supreme Court stated:

We have repeatedly read this statute to establish the Circuit Court's function as that of an intermediate court of appeals. More to the point, we have held repeatedly that the Circuit Courts must defer in their review to the findings of the Commission.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Flowers v. Crown Cork & Seal USA, Inc.
168 So. 3d 1009 (Court of Appeals of Mississippi, 2013)
Durbin v. Brown
178 So. 3d 789 (Court of Appeals of Mississippi, 2013)
Omnova Solutions, Inc. v. Lipa
44 So. 3d 935 (Mississippi Supreme Court, 2010)
Smith v. Johnston Tombigbee Furniture Manufacturing Co.
43 So. 3d 1159 (Court of Appeals of Mississippi, 2010)
Lott v. HUDSPETH CENTER
26 So. 3d 1044 (Mississippi Supreme Court, 2010)
Lott v. Hudspeth Center
26 So. 3d 1057 (Court of Appeals of Mississippi, 2008)
Omnova Solutions, Inc. v. Theresa Lipa
Mississippi Supreme Court, 2008
Chestnut v. Dairy Fresh Corp.
966 So. 2d 868 (Court of Appeals of Mississippi, 2007)
Martha Lott v. Hudspeth Center
Mississippi Supreme Court, 2007
Walker v. Delta Steel Bldgs. and Builders
878 So. 2d 113 (Court of Appeals of Mississippi, 2003)
Foamex Products, Inc. v. Simons
822 So. 2d 1050 (Court of Appeals of Mississippi, 2002)
GOOD EARTH DEVELOPMENT, INC. v. Rogers
800 So. 2d 1164 (Court of Appeals of Mississippi, 2001)
McCarty Farms, Inc. v. Kelly
811 So. 2d 250 (Court of Appeals of Mississippi, 2001)

Cite This Page — Counsel Stack

Bluebook (online)
737 So. 2d 416, 1998 Miss. App. LEXIS 1114, 1998 WL 906445, Counsel Stack Legal Research, https://law.counselstack.com/opinion/alumax-extrusions-inc-v-wright-missctapp-1998.