McDonald v. IC Isaacs Newton Co.

879 So. 2d 486, 2004 WL 377505
CourtCourt of Appeals of Mississippi
DecidedMarch 2, 2004
Docket2002-WC-02084-COA
StatusPublished
Cited by11 cases

This text of 879 So. 2d 486 (McDonald v. IC Isaacs Newton Co.) 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
McDonald v. IC Isaacs Newton Co., 879 So. 2d 486, 2004 WL 377505 (Mich. Ct. App. 2004).

Opinion

879 So.2d 486 (2004)

Deborah McDONALD, Appellant
v.
I.C. ISAACS NEWTON COMPANY and Liberty Mutual Insurance Company, Appellees.

No. 2002-WC-02084-COA.

Court of Appeals of Mississippi.

March 2, 2004.
Rehearing Denied May 25, 2004.
Certiorari Denied August 5, 2004.

*487 Lance L. Stevens, Jackson, attorney for appellant.

H. Byron Carter, III, Gulfport, attorney for appellee.

EN BANC.

CHANDLER, J., for the Court.

¶ 1. Deborah Ann McDonald has appealed an order of the Circuit Court of Newton County that affirmed, in total, an order of the Workers' Compensation Commission. The Commission found that McDonald had sustained compensable injuries to both of her upper extremities which entitled her fifty weeks of permanent partial disability benefits for the 25% loss of use of her left arm, and 100 weeks of permanent partial disability benefits for the 50% loss of use of her right arm. McDonald contends that she is entitled to 400 weeks of compensation for the total industrial loss of use of both arms plus penalties, minus permanent partial disability benefits paid. In a footnote to her appellate brief McDonald explains that while she could legitimately make a claim for 450 weeks of compensation for permanent and total disability benefits, she has chosen not to "push the envelope" and has therefore limited her claim to 400 weeks of compensation for total industrial loss of use of both arms.

FACTS

¶ 2. At the time of the hearing of this matter on July 5, 2001, McDonald was forty years old and had a high school education but no additional education or vocational training beyond that. McDonald testified that she began work as a seamstress for I.C. Isaacs Newton Company in 1982 or 1983 in a "back pocket tacking" job which lasted approximately eight years. She left the Newton Company to go to work for Bon-Home Shirt Factory at a job which lasted about a year. McDonald returned to the Newton Company in 1993 to a "hemming" job. She was in the performance of her hemming job when the injury occurred.

¶ 3. On or about September 17, 1996, McDonald was "pulling on pants when she felt a pulling sensation in her wrists." She received medical treatment and eventually underwent surgery on one wrist. After about six weeks McDonald attempted to return to her hemming job, but was unable to perform the duties of the job. She was then assigned to a lighter duty job as a "reece." Because of the repetitive nature of the reece job McDonald was unable to perform those duties. She also experienced great difficulty in performing a subsequent job to which she was assigned. However, McDonald worked at her last assigned position until on or about April *488 21, 1998, when she underwent surgery to her other wrist. The Newton Company closed its plant sometime shortly thereafter.

¶ 4. Prior to McDonald's injury as well as subsequent to her injury she worked for her church on a part-time basis as a custodian. McDonald testified that she performed a full range of custodial duties at the church prior to her first wrist surgery but said that since the surgery the church has been significantly accommodating to her physical limitations. She is no longer required to vacuum and is allowed discretionary breaks to reduce the stress on her physically.

¶ 5. McDonald testified that she sought employment with numerous employers in the Newton County area. She also testified that she was not offered a job with any of the other Newton Company plants after her plant closed, but stated that at any rate she would not be able to perform the duties of her old job. It was also her testimony that since her last surgery she has very little gripping strength and her hands go numb causing her to drop things. McDonald admitted that, on the advice of counsel, she refused the assistance of the Newton Company's vocational expert in locating a job.

¶ 6. Jennifer Oubre was called as an expert witness by the Newton Company. Oubre admitted that McDonald probably could not return to her assembly line job at the Newton Company; however, it was her opinion that McDonald is employable.

¶ 7. McDonald's treating physician, Dr. James Green, diagnosed her with carpal tunnel syndrome of the right wrist and early carpal tunnel syndrome of the left wrist. Carpal tunnel surgery was eventually performed on both wrists. McDonald was assigned a 5% impairment to the left wrist with limitations of no repetitive use of both hands over an extended period of time.

¶ 8. Another of McDonald's treating physicians, Dr. Sheila Lindley, referred McDonald to the St. Dominic Memorial Hospital Hand Management Center for a functional capacity evaluation. McDonald was assigned a 10% impairment of the right arm and a 0% impairment of the left arm. She was restricted to "[n]o overhead work of any nature including occasional overhead, no lifting greater than 15 pounds occasionally, no greater than 20 pounds of pulling or pushing, and no bilaterally repetitive motion." McDonald was also diagnosed as having significant problems with cold exposure in both hands.

¶ 9. The administrative law judge found that the preponderance of the evidence showed that McDonald had suffered a medical impairment beyond the medical impairment ratings assigned. It was the administrative law judge's finding that McDonald had suffered a 25% loss of industrial use of the left upper extremity and a 50% loss of industrial use of her right upper extremity. The administrative law judge further found that McDonald was entitled to penalties and interest as provided by Mississippi Code Annotated Section 71-3-37 and reasonable and necessary medical services and supplies as the nature of her injury and the process of her recovery may require, consistent with Mississippi Code Annotated Section 71-3-15 and the Medical Fee Schedule.

¶ 10. The administrative law judge's order awarded benefits for a period of 37.5 weeks as compensation for disability to McDonald's left arm and 75 weeks as compensation for disability to her right arm. The Full Commission found that "because the maximum compensation payable for total loss of use of an arm is 200 weeks, we hereby amend this provision in the Order to provide that Deborah McDonald is entitled *489 to 50 weeks of permanent partial disability benefits for the 25% loss of use of her left arm, and 100 weeks of permanent partial disability benefits for the 50% loss of use of her right arm."

ANALYSIS

¶ 11. The standard of review in worker's compensation cases is limited by the substantial evidence test. This Court will not reverse the decision of the Workers' Compensation Commission unless it finds that the decision is clearly erroneous and contrary to the overwhelming weight of the evidence. Smith v. B.C. Rogers Processors, Inc., 743 So.2d 997, 1002 (¶ 13) (Miss.Ct.App.1999).

¶ 12. McDonald contends that on the basis of the criteria set forth in Meridian Professional Baseball Club v. Jensen, 828 So.2d 740 (Miss.2002), the Commission was required to find that she has suffered a total industrial loss of use to each arm. In Meridian Baseball, Blair Jensen, a twenty-one-year-old high school graduate suffered an injury to his left arm while employed as a professional baseball player for the Meridian Brakemen. Jensen had worked as a sports coach, construction worker and produce packer between baseball seasons. His average weekly wage at the time of the injury was $187.50. After the injury Jensen worked a variety of part-time jobs while going to school.

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Bluebook (online)
879 So. 2d 486, 2004 WL 377505, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcdonald-v-ic-isaacs-newton-co-missctapp-2004.