Howard Industries, Inc. v. Robbins

176 So. 3d 113, 2015 Miss. App. LEXIS 476, 2015 WL 5554789
CourtCourt of Appeals of Mississippi
DecidedSeptember 22, 2015
DocketNo. 2014-WC-01086-COA
StatusPublished
Cited by6 cases

This text of 176 So. 3d 113 (Howard Industries, Inc. v. Robbins) 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
Howard Industries, Inc. v. Robbins, 176 So. 3d 113, 2015 Miss. App. LEXIS 476, 2015 WL 5554789 (Mich. Ct. App. 2015).

Opinion

MAXWELL, J.,

for the Court:

¶ 1. In scheduled-member eases, like this one, when the industrial loss is greater than the functional loss, the injured employee is entitled to the greater of the two. An industrial-loss determination considers whether a loss of wage-earning capacity has occurred. Thus, while an injury that renders a worker unable to continue in the position held at the time of injury creates a rebuttable presumption of total industrial loss of the member, this presumption is subject to other proof of the claimant’s ability to earn the same wages he received at the time of injury.

¶ 2. Here, it is undisputed Rufus Robbins can no longer perform the specific job he held when he injured his left shoulder at work. But Robbins still works at Howard Industries, albeit in a different position. And he earns more wages than he did before the injury. As Howard Industries sees it, Robbins’s continued employment and higher wages not only rebutted the presumption of a total industrial loss of his left arm but also prevented the Mississippi Workers’ Compensation Commission from finding Robbins suffered a greater industrial loss than his functional loss. So Howard Industries asks us to reverse the Commission’s finding of a ninety percent industrial loss of Robbins’s left arm and instead limit Robbins’s compensation to his forty-five percent functional loss.

¶ 3. But evidence of higher post-injury wage earning does not close the door to a finding that the industrial loss was greater than the functional loss. Rather, it is evidence the Commission must consider, along with other evidence about wage-earning capacity like the worker’s age, education, and work experience. This is what the Commission did here. It balanced Robbins’s higher wages against his advanced age, limited education, and inability to use his left arm in his current position to conclude Robbins suffered a ninety percent industrial loss. Because the Commission properly considered the evidence and supported its finding with substantial evidence, we affirm.

Background Facts and Procedural History

I. Robbins’s Injury

¶ 4. Robbins has worked for Howard Industries since 1993. In 2005, he fell at work, injuring his right shoulder. At the time of the injury, he was more than seventy years old, and his average weekly wage was $457.25.

¶ 5. According to his physician, Dr. Stephen Nowicki, Robbins tore his rotator cuff. Dr. Nowicki operated on Robbins’s rotator cuff two different times, once in 2005 and again in 2006. During this time, Robbins worked intermittently, taking periods of time off for physical therapy. In 2007, Robbins went to see Dr. William Geissler. Dr. Geissler replaced Robbins’s rotator cuff with an artificial one. After some physical therapy, Robbins returned [116]*116to work in October 2007 and has worked ever since.

¶6. His post-injury average weekly wage has risen by more than $100.

II. Administrative Judge’s Order

¶ 7. In 2012, Robbins filed a Petition to Controvert with the Commission. At the time of the hearing in October 2013, Robbins was seventy-nine years bid.

¶ 8. The administrative judge (AJ) found Robbins was limited to schedule-member compensation under Mississippi Code Annotated section 71-3-17(c) (Supp.2014). He could not be awarded permanent total disability under section 71-3-17(a), as “he is capable of working and is presently working at Howard Industries.” See Lott v. Hudspeth Ctr., 26 So.3d 1044, 1049 (¶ 15) (Miss.2010) (holding that “the claimant must prove that she has made a diligent, yet unsuccessful, effort to garner some form of gainful employment” to prove total disability). But the AJ found Robbins was entitled to full compensation — 200 weeks — for the total loss of his left upper extremity based on a one-hundred percent industrial loss of his arm. See Miss.Code Ann. § 71-3-47(c)(1).

¶9. Robbins’s functional, or medical, loss of use of his left arm was at most forty-five percent. The impairment testing Dr. Nowicki had ordered for Robbins came back with a forty-five percent impairment rating. And the employer medical evaluation, performed by Dr. Rahul Vohra, assigned Robbins a forty percent impairment rating. But this impairment impacted his ability to work. Dr. Nowicki said Robbins should be restricted to sedentary work- with no heavy ’use of his left arm. And both Dr. Geissler and Dr. Voh-ra restricted him to lifting no more than ten pounds from floor to waist and no lifting at all above his shoulders.

¶ 10. Based on these restrictions, the AJ found Robbins “could not perform the substantial acts of his usual employment.” The AJ also, found Robbins “could not perform any of his previous jobs because of his left shoulder injury.” Based on these findings, the AJ found Robbins had suffered a total industrial loss of use of the scheduled member, entitling him to the full 200 weeks of permanent partial disability at a compensation rate of $304.83 per week, beginning June 29, 2010, the date of his maximum medical improvement.

¶ 11. Howard Industries was to be credited for all previous payments for permanent partial disability and for any overpayment of disability. But Robbins was entitled to legal interest and statutory penalties- on any unpaid installments of disability benefits. Robbins was also entitled to reasonable and necessary medical services and supplies.

III. Full Commission’s Order

¶ 12.. Howard Industries sought review of the AJ’s order by the Commission. The Commission amended the AJ’s order, reducing Robbins’s industrial loss of use to ninety percent.

¶ 13. According to the Commission, Robbins “is elderly'with a limited education [ (left- high school to join the Navy)] and has been assigned sedentary work restrictions along with a 45% anatomical impairment rating.” But Robbins “has continued working in an accommodated position earning greater wages than at the time of his injury.”

¶ 14. Like the AJ, the Commission found Robbins was “unable to perform the substantial acts of his usual 'employment, thereby requiring his employment in an accommodated position,” The Commission found this inability created a présumptioh of a total industrial loss. But the Commission rightly recognized this presumption [117]*117was subject to other proof of Robbins’s ability to earn the same wages he was receiving when injured. Because Robbins was earning higher wages post-injury, the Commission found Robbins could not be compensated for a total loss. And after considering all relevant wage-earning-ca-paeity evidence, the Commission reduced his industrial loss of use to ninety percent.

¶ 15. Thus, it awarded Robbins 180 weeks’ compensation at $804.83 per week, beginning June 29, 2010. Like the AJ, the Commission credited Howard Industries for any excess temporary and permanent disability benefits already paid and assessed legal interest and statutory penalties for any installments not timely paid. Howard Industries was also ordered to continue paying all reasonable and necessary medical services and treatment.

¶ 16. Howard Industries appealed the Commission’s order 'to this court.

Discussion

¶ 17. On appeal, our review is limited. We will overturn a Commission decision “only for an error of law or an unsupported finding of fact.”

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

Related

Howard Industries, Inc. v. Selina Hayes
Court of Appeals of Mississippi, 2022
Prairie Farms Dairy v. Gregory Graham
270 So. 3d 37 (Court of Appeals of Mississippi, 2018)
Sampson v. MTD Products
225 So. 3d 541 (Court of Appeals of Mississippi, 2017)

Cite This Page — Counsel Stack

Bluebook (online)
176 So. 3d 113, 2015 Miss. App. LEXIS 476, 2015 WL 5554789, Counsel Stack Legal Research, https://law.counselstack.com/opinion/howard-industries-inc-v-robbins-missctapp-2015.