Mueller Industries, Inc. and SOMPO America Insurance Company v. Jeff South

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2022-WC-01178-COA

MUELLER INDUSTRIES, INC. AND SOMPO APPELLANTS
AMERICA INSURANCE COMPANY

v.

JEFF SOUTH APPELLEE

DATE OF JUDGMENT: 10/18/2022
TRIBUNAL FROM WHICH MISSISSIPPI WORKERS’ COMPENSATION
APPEALED: COMMISSION
ATTORNEY FOR APPELLANTS: DAVID B. McLAURIN
ATTORNEY FOR APPELLEE: MICHAEL McHENRY
NATURE OF THE CASE: CIVIL - WORKERS’ COMPENSATION
DISPOSITION: AFFIRMED - 10/24/2023
MOTION FOR REHEARING FILED:

BEFORE BARNES, C.J., GREENLEE AND EMFINGER, JJ.

EMFINGER, J., FOR THE COURT:

¶1. On October 18, 2022, the Mississippi Workers’ Compensation Commission entered

a full Commission order that affirmed in part and amended in part the order of the

administrative judge dated June 29, 2022. The Commission’s order stated that Jeff South

was entitled to “temporary total disability benefits at the rate of $477.82 for the period June

18, 2018, through August 23, 2018, . . .” and “permanent partial disability benefits at the rate

of $477.82 for a total of 40 weeks based upon the loss of industrial use of the right upper

extremity.”

FACTS AND PROCEDURAL HISTORY

¶2. Jeff South was an employee at Mueller Industries Inc. On August 22, 2017, he
sustained an injury while driving a forklift, a regular task associated with his employment.

When South turned the steering wheel of the forklift, he felt a searing pain in his right wrist

up to his right elbow and observed instant swelling. Initial x-rays on that same day revealed

that his wrist bone was shattered. South was referred to Dr. Tyler Marks at Specialty

Orthopedic Group for further treatment. South’s wrist was put in a brace, he received

injections, and he ultimately underwent surgery. Dr. Marks performed a proximal row

carpectomy on November 29, 2017. During the surgery, a row of bones were removed from

South’s wrist.

¶3. South’s post-operative treatment was somewhat delayed because he suffered from

pneumonia and chronic obstructive pulmonary lung disease (COPD). However, South was

released to return to work on June 18, 2018, with modified restrictions of no use of his

dominant upper extremity. The testimony is contradicted as to what happened next. Mueller

claims that South never returned to work and was therefore terminated after exceeding the

amount of negative points required for termination. Mueller claims that South incurred

points both for being absent from work and failing to call to let his supervisor know that he

was not coming in to work. According to South, he returned to work on June 29, 2018;

however, Mueller did not have any jobs to accommodate his work restrictions. South claims

that he was initially tasked with shelving bearings but was unable to complete the task

because of the pain in his wrist. South was then given the task of sweeping the back dock

and dumping fifty- to sixty-pound trash cans. South was also unable to complete these tasks

without pain. South claims that he called to express his inability to perform the assigned

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jobs, but Travis Fisher, the employee in charge of worker’s compensation claims, was on

vacation for two weeks. South claims that he talked with Fisher’s secretary but admits that

he did not continue to call because Fisher was on vacation. Mueller sent South a termination

letter on July 17, 2018.

¶4. According to Dr. Marks, South reached maximum medical improvement (MMI) and

was released to return to full-duty work on August 23, 2018, without any restrictions. Dr.

Marks assigned South a 13% hand impairment rating, a 12% upper extremity impairment

rating, and a 7% whole-person impairment rating. South returned to see Dr. Marks on

September 4, 2019, complaining of continued pain and swelling in his right wrist. X-rays

showed mild arthritis. Dr. Marks and South discussed the possibility of a wrist fusion

surgery, but the surgery was not recommended for smokers. They decided against South

having any further surgery at that time. Despite complaints of continued pain and swelling,

South remained at MMI with no further recommendations or restrictions.

¶5. South filed a petition to controvert with the Mississippi Workers’ Compensation

Commission on November 7, 2017. Mueller filed its answer on November 16, 2017. An

administrative hearing was held on November 4, 2020. The administrative judge (AJ)

entered her initial order on June 29, 2022, and subsequently entered her amended order on

July 1, 2022.1 The amended order held that South was entitled to permanent partial disability

benefits at the rate of $477.82 for a total of 19.5 weeks based on the permanent partial

impairment rating to the right hand of 13%, which Dr. Marks assigned.

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The amended order was entered to correct the spelling of the name of a certain
witness. The findings did not change.

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¶6. South filed a petition for review of the AJ’s order with the Mississippi Workers’

Compensation Commission on July 1, 2022. The full Commission held an oral argument on

October 3, 2022. The Commission partially reversed the AJ’s order and found that South

was entitled to temporary total disability benefits for the period between June 18, 2018, and

August 23, 2018. The Commission also held that South was entitled to permanent partial

disability benefits for a total of forty weeks based on the loss of industrial use of the right

upper extremity. Mueller filed its notice of appeal on November 16, 2022.

STANDARD OF REVIEW

¶7. In Clear River Const. Co. v. Chandler ex rel. Chandler, 926 So. 2d 273, 275 (¶¶9-10)

(Miss. Ct. App. 2006), this Court held:

An appellate court must defer to an administrative agency’s findings of fact if
there is even a quantum of credible evidence which supports the agency’s
decision. Hale v. Ruleville Health Care Center, 687 So. 2d 1221, 1224 (Miss.
1997). “This highly deferential standard of review essentially means that this
Court and the circuit courts will not overturn a Commission decision unless
said decision was arbitrary and capricious.” Id. at 1225; Georgia Pacific Corp.
v. Taplin, 586 So. 2d 823, 826 (Miss. 1991). This court will overturn a
commission decision only if there has been an error of law. Id.

We do not sit as triers of fact; that is done by the Commission. South Central
Bell Telephone Co. v. Aden, 474 So. 2d 584, 589 (Miss. 1985). We do not
review the facts on appeal to determine how we would resolve the factual
issues were we the triers of fact, rather our function is to determine whether
the factual determination made by the Commission is supported by substantial
credible evidence. Id.

ANALYSIS

I. Did the full Commission err in finding that South was entitled to
temporary total disability (TTD) benefits from June 18, 2018, until
August 23, 2018?

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¶8. Mueller claims that South was not entitled to TTD benefits because South never came

back to work after he was released to work by Dr. Marks with certain restrictions. Mueller

primarily relies on the testimony of Mueller employees Michael Baum and Travis Fisher in

furtherance of their position. Fisher unfortunately was deceased at the time of trial and could

not testify; however, his deposition was referenced at trial. While not initially involved in

South’s workers’ compensation claim, Baum took over Fisher’s job after his death. Simply

put, Baum claims that South never came back to work after being released and failed to call

in as required by company policy. As a result, his employment was terminated which would

make him ineligible for TTD benefits.

¶9. South testified that he did, in fact, return to work (as discussed above) but could not

complete the assigned tasks because of the physical restrictions Dr. Marks put in place.

South claims that he called his employer to discuss his limitations and his assigned job, but

Fisher was out of town for two weeks and not available to return his call. Further, South

points out that he did not receive a negative point for not being at work on June 29, 2018.

This fact seems to indicate that South was at work on that day, contradicting Baum’s

testimony. When Baum was questioned about this fact, he stated that he could not say with

certainty whether South was at work on that day.

¶10. Given South’s detailed testimony that he attempted to return to work but was assigned

tasks that he ultimately could not complete and Baum’s testimony that he could not say with

certainty whether South returned to work on June 29, 2018, we cannot find that the

Commission’s ruling was arbitrary or capricious.

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II. Did the full Commission err in finding that South was entitled to
permanent partial disability (PPD) benefits for a total of forty
weeks based upon the industrial loss of use of his right upper
extremity?

¶11. Mueller claims that there was no evidence presented to support the Commission’s

decision to extend benefits to South beyond his given impairment rating. Mueller claims that

the only testimony to support a greater award of disability benefits was South’s testimony,

which was contradicted by Dr. Marks’ testimony. According to Mueller, Dr. Marks released

South to work with no limitations. Therefore, Mueller maintains there was no industrial loss

of use of his right upper extremity.

¶12. South claims that the full Commission did not err in awarding additional benefits

pursuant to applicable law. According to South, he was unable to drive a forklift as his job

at Mueller required. South was limited to a ninth-grade education, he had limited job skills,

and he continued to have medical problems including pain, swelling, limited wrist flexion,

and limited wrist extension after surgery. South also claims that Dr. Marks’ testimony was

confusing and contradictory. South points out that Dr. Marks stated that South was “much

improved since surgery. Still not a hundred percent but to be expected.” Dr. Marks also

noted that further treatment was available that could reduce South’s pain and increase his

strength. Finally, Dr. Marks confirmed that South had pain and that the pain was a “valid

reason to avoid certain activity.” Taking all these facts into account, South claims he

suffered an industrial loss to his upper extremity greater than his medical loss, and as a result,

the full Commission did not err in awarding benefits above his rating.

¶13. In McGowan v. Orleans Furniture Inc., 586 So. 2d 163, 167 (Miss. 1991), the

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Mississippi Supreme Court held:

The Commission is not confined to medical testimony in determining the
percentage of loss to be assigned to an injury. Malone & Hyde of Tupelo, Inc.
v. Kent, 250 Miss. 879, 168 So. 2d 526 (1964). Lay testimony may be
considered to supplement medical testimony but “[t]he probative value of any
witness’ testimony is for the fact-finder to determine.” R.C. Petroleum, Inc. v.
Hernandez, 555 So. 2d 1017, 1021 (Miss. 1990).

Factors which this Court has considered in determining loss of wage earning
capacity include the amount of education and training which the claimant has
had, his inability to work, his failure to be hired elsewhere, the continuance of
pain, and any other related circumstances. Malone & Hyde of Tupelo, 250
Miss. at 882, 168 So. 2d at 527. In other words, the determination should be
made only after considering the evidence as a whole. Piggly Wiggly, 464 So.
2d [510,] 512 [(Miss. 1985)].

Further, in Meridian Professional Baseball Club v. Jensen, 828 So. 2d 740, 747 (¶21) (Miss.

2002), the supreme court held that “where a permanent partial disability renders a worker

unable to continue in the position held at the time of injury, we hold that such inability

creates a rebuttable presumption of total occupational loss of the member, subject to other

proof of the claimant’s ability to earn the same wages which the claimant was receiving at

the time of injury.” “Under Jensen, determining industrial loss is a fact-intensive inquiry,

which must be made on a case-by-case basis.” Howard Ind. Inc. v. Robbins, 176 So. 3d 113,

118 (¶23) (Miss. Ct. App. 2015) (citing Jensen, 828 So. 2d at 747 (¶20)).

“[W]hen the industrial loss is greater than the medical loss, the claimant’s
industrial or occupational disability or loss of wage-earning capacity controls
his degree of disability.” [City of Laurel v. Guy, 58 So. 3d 1223, 1226] (¶14)
[(Miss. Ct. App. 2018)] (citation and internal quotation mark omitted).
“[T]here is a presumption of 100% industrial loss when the worker proves he
can no longer perform the substantial acts of his usual employment.” Id. at
1227 (¶16) (internal quotation mark omitted). “Usual employment in this
context means the jobs in which the claimant has past experience, jobs
requiring similar skills, or jobs for which the worker is otherwise suited by his

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age, education, experience, and any other relevant factual criteria.” Id.

Bridgeman v. SBC Internet Servs. Inc., 270 So. 3d 112, 114-15 (¶6) (Miss. Ct. App. 2018).

Considering the facts described in the above paragraphs regarding South’s limited education,

his inability to perform the tasks required with his former employment, his continuous pain,

as well as Dr. Mark’s testimony that South’s continuous pain would be a “valid reason to

avoid certain activity,” we cannot find that the Commission’s ruling to extend benefits to

South beyond his given impairment rating was arbitrary or capricious.

CONCLUSION

¶14. After reviewing the record, we find no error with the Commission’s order granting

South temporary total disability benefits at the rate of $477.82 for the period of June 18,

2018, through August 23, 2018, and awarding permanent partial disability benefits at the rate

of $477.82 for a total of forty weeks based upon the loss of industrial use of the right upper

extremity.

¶15. AFFIRMED.

BARNES, C.J., CARLTON AND WILSON, P.JJ., GREENLEE,
WESTBROOKS, McDONALD, LAWRENCE, McCARTY AND SMITH, JJ.,
CONCUR.

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