Arendale v. Balkamp, Inc.

879 So. 2d 448, 2003 Miss. App. LEXIS 892, 2003 WL 22233399
Court of Appeals of Mississippi·Decided September 30, 2003·No. No. 2001-WC-01762-COA·Published

Opinion

McMILLIN, C.J.,

for the Court.

¶ 1. James Arendale has appealed to this Court from a judgment of the Circuit Court of Leflore County affirming a decision of the Mississippi Workers’ Compensation Commission. The Commission awarded Arendale benefits for a work-related permanent partial disability found to have adversely impacted his ability to earn wages. Arendale contends that the Commission set his benefits too low because it applied an incorrect legal standard in determining his level of compensation. The Commission based the compensation award on diminished wage-earning capacity but Arendale contends that his disabilities arose from scheduled member injuries. He further contends that, under the proof, he has sustained a total industrial loss of use of both arms, thus entitling him to the maximum benefits available under the Workers Compensation Act, rather than the twenty percent permanent partial disability benefits awarded by the Commis[450] sion. We find the issues presented on appeal to be without merit and affirm the judgment of the circuit court.

I.

Facts

¶ 2. Arendale was engaged in shipping-related duties for his employer, Balkamp, Inc., in January 1997, when he suffered an injury while pulling a wheeled cart or buggy loaded with heavy automotive parts. His initial complaint, for which he received medical treatment, consisted of a report of lower back pain. Approximately one month after the accident, the medical records in evidence indicate that Arendale expanded his complaints to include pain in his upper back, neck, and shoulders.

¶ 3. Thereafter, Arendale received extensive medical treatment from a number of different physicians. Essentially all of the treatment related to attempts to alleviate his complaints of pain in his neck and shoulders. Arendale ultimately underwent shoulder surgery for ligament and cartilage repair, after which he was released to return to work without restrictions. Aren-dale continued to report persistent pain that he contended rendered him unable to perform the duties of his employment, even after his employer shifted him to lighter duties as an accommodation to his complaints. Despite a persistent inability of most of the treating physicians to discover any objective evidence of permanent injury, Arendale continued to complain of pain in his shoulders, especially when doing physical tasks requiring overhead work. The treating physicians offered opinions suggesting varying degrees of permanent medical impairment, some of which gave an impairment rating to both of Arendale’s arms. The Commission’s findings of fact, at one point, state that the “preponderance of the evidence indicates that on January 15, 1997, [Arendale] sustained injuries to his Tight and left shoulders which arose out of and in the course of employment....” Later in the findings of fact, the Commission stated that Aren-dale had suffered “permanent medical impairments to his back, neck, and upper extremities because of the work-connected injury .... ” (emphasis added).

¶ 4. In determining the level of compensation due Arendale, the Commission limited its consideration to calculating his loss of wage-earning capacity and did not award any scheduled member benefits related to loss of use of his arms.

II.

Discussion

¶ 5. Arendale contends that, because the Commission determined that he had suffered permanent medical impairment to a scheduled member, the Commission erred as a matter of law in failing to base his compensation on the “scheduled member” provisions of Section 71-3-17(c) of the Mississippi Code. Injuries to scheduled members causing permanent loss of use result in an award of compensation that is unaffected by the impact of those injuries on the claimant’s general capacity to earn wages. Miss.Code Ann. § 71-3-17(c)(22) (Rev.2000); McCarty Farms, Inc. v. Banks, 773 So.2d 380, 387(¶ 32) (Miss.Ct.App.2000). Rather, the measure of compensation for a scheduled member injury is the greater of the percentage of the functional loss of use (generally dependent on medical proof) or industrial loss of use (which factors in the effect of the functional loss on the ability of the claimant to perform the customary acts of his usual employment). Banks, 773 So.2d at 386(¶ 26).

¶ 6. Arendale advances the proposition that the finding- of permanent disability to his upper extremities requires that he be [451] compensated for a scheduled member injury. He argues that his case presents a pure question of law, as to which this Court applies a de novo standard of review. Entergy Mississippi, Inc. v. Burdette Gin Co., 726 So.2d 1202, 1204-05(¶ 5) (Miss.1998).

¶ 7. There is authority for the proposition that, in determining the proper measure of compensation, it is the manner in which the injury manifests itself rather than the particular point of injury on the body that determines how compensation is determined. In Walters Bros. Builders v. Loomis, the claimant had struck his shoulder when he fell from a ladder but the Commission determined that the only effect of the injury appeared to be inflammation of tendons associated with the claimant’s biceps. Walters Bros. Builders v. Loomis, 187 So.2d 586, 589 (Miss.1966). On those facts, the supreme court said that “the better rule” required looking to the result of the injury rather than the point of impact and concluded that the Commission had properly determined the claimant’s level of compensation as a scheduled member claim. Id. A similar result was reached in Richey v. City of Tupelo, when the court concluded that the claimant “sustained an injury to the shoulder with functional loss affecting only the right arm.” Richey v. City of Tupelo, 361 So.2d 995, 997 (Miss.1978).

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Arendale v. Balkamp, Inc., 879 So. 2d 448, 2003 Miss. App. LEXIS 892, 2003 WL 22233399 (Mich. Ct. App. 2003).

879 So. 2d 448 (Arendale v. Balkamp, Inc.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

Dulaney v. National Pizza Co.
733 So. 2d 301 (Court of Appeals of Mississippi, 1998)
Richey v. City of Tupelo
361 So. 2d 995 (Mississippi Supreme Court, 1978)
McCarty Farms, Inc. v. Caprice Banks
773 So. 2d 380 (Court of Appeals of Mississippi, 2000)
Entergy Mississippi, Inc. v. Burdette Gin Co.
726 So. 2d 1202 (Mississippi Supreme Court, 1998)
Walters Brothers Builders v. Loomis
187 So. 2d 586 (Mississippi Supreme Court, 1966)