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Date: 07-21-2022
Case Style:
Michelle McKenzie v. Howard Industries Inc.
Case Number: 2018-WC-01756-COA
Judge:
Virginia C. Carlton; Presiding Judge
Jim M. Greenlee
Court:
IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
On Appeal From The MISSISSIPPI WORKERS’ COMPENSATION COMMISSION
Plaintiff's Attorney:
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Defendant's Attorney: RICHARD LEWIS YODER JR
Description:
Jackson, MS - Workers Compensation lawyer represented Appellantwith a work-related neck injury claim.
In 2012, McKenzie worked as a coil helper for Howard Industries. McKenzie’s
primary job duties included operating two machines—a paper extension machine and a “fast
cutter” machine. To operate the paper extension machine, McKenzie had to unload the
machine by lifting a 40-50 pound bar. She would then manually pull an overhead crane to
lift a paper roll and place it on the floor. Then, McKenzie would lift the bar again and stick
the bar to the paper roll. Finally, she used the crane to lift the bar and paper roll onto the
machine. In operating the “fast cutter” machine, however, McKenzie was not required to lift
the paper roll bar because it was attached to the machine. McKenzie used the crane to lift
the paper rolls onto the machine. Still, she often had to lift the paper rolls, which weighed
approximately 30 pounds, and place them on the floor into order to lift them with the crane.
On February 23, 2012, McKenzie lifted the bar fromthe paper extension machine and injured
her neck. This injury resulted in the foregoing workers’ compensation claim.
¶4. Prior to her 2012 injury, McKenzie underwent neck surgery in 2010, wherein Dr.
David Yeh removed her C4-5 vertebra and placed screws and a metal plate in McKenzie’s
neck. After the 2010 surgery, McKenzie returned to work with no restrictions and suffered
no pain or discomfort as a result of this surgery.
2
¶5. Following her injury, on April 12, 2012, Dr. Yeh performed a second neck surgery on
McKenzie for an acute herniated disc. On April 24, 2013, Dr. Yeh determined that McKenzie
had reached maximum medical improvement (MMI), but he assigned McKenzie an
impairment rating of 9% to the whole body and restricted her to a light-work level of 20
pounds.
¶6. McKenzie returned to work for Howard Industries soon after her MMI date.1 Prior
to her injury, McKenzie was classified as a Division 1 coil helper and earned $12.46 per
hour. Upon returning to work, McKenzie resumed the same position as a Division 1 coil
helper, but her wages increased to $12.56 per hour. Because of her restrictions, she was no
longer able to operate the paper extension machine and “fast cutter” machine as she did preinjury, and she was moved to operating a strip machine. To operate the strip machine,
McKenzie threaded paper into the machine and then taped paper strips into bundles. Because
McKenzie is restricted to a 20-pound weight limit, another employee assisted McKenzie by
loading the 29-pound paper rolls onto the strip machine.
¶7. On March 20, 2018, an administrative judge held a hearing on the merits of
McKenzie’s claim to determine the existence and extent of permanent disability and to
determine whether anypermanent disabilitycould be apportioned to a pre-existing condition.
At the hearing, McKenzie testified that she continued to work full-time operating the strip
machine and that this job conformed with Dr. Yeh’s restrictions. McKenzie also agreed that
1 The record does not provide the exact date on which McKenzie returned to work
after her 2012 neck surgery, but her testimony at the workers’ compensation hearing
indicates that she returned to work shortly after her MMI date on April 23, 2013.
3
she was presently earning higher pay than before her injury. At the time of the hearing,
McKenzie earned $13.01 per hour, and her restrictions did not prevent her from working
overtime hours. She also stated that she had not applied for any other jobs post-injury.
¶8. However, McKenzie testified that she continued to suffer from chronic neck and arm
pain, tingling, and numbness in her hands and fingers following her 2012 surgery, which
continued throughout her case. Also, McKenzie stated that she suffered from back problems
and began receiving epidural steroid injections from Dr. Parker Lynn Bell sometime in 2014.
On February 22, 2017, Dr. Bell reviewed Dr. Yeh’s final medical report from April 23, 2013,
and agreed with the restrictions and 9% impairment rating placed upon McKenzie. Also, Dr.
Rahul Vohra performed an Employer Medical Evaluation on McKenzie on behalf of Howard
Industries. In his evaluation, Dr. Vohra concluded that McKenzie was at MMI from her
work-related injury. Dr. Vohra gave McKenzie a 7% impairment rating to the whole person
with 4% of that rating apportioned to her first cervical surgery. Dr. Vohra assigned
McKenzie a 3% permanent impairment rating for her on-the-job injury.
¶9. When asked about her previous employment, McKenzie testified that she worked for
a store called Worn Craft, where she placed tags on clothes and folded them. She also
worked as a cashier and a waitress in a restaurant. Even with her current restrictions,
McKenzie testified that she could perform these jobs. McKenzie also stated that she worked
in a chicken factory rounding chicken wings. Because of her chronic pain and tingling in her
neck and arms, McKenzie did not believe that she could perform this type of job.
¶10. Angie Malone, a vocational rehabilitation expert, testified on behalf of McKenzie at
4
the hearing. Malone testified that she met with McKenzie in June 2017 and reviewed
information regarding McKenzie’s age, education, work history, and medical condition.
Malone administered several tests to McKenzie in order to evaluate what jobs McKenzie
could perform out in the workforce and determined McKenzie’s vocational status. Malone
performed a job survey to determine what jobs McKenzie could perform in her community
and the current and periodic availability for these jobs.
¶11. Malone also stated that she evaluated McKenzie’s job duties at Howard Industries
prior to her injury and determined that her work on the paper extension and “fast cutter”
machines were considered medium-duty work. Based upon this pre-injury ability, Malone
determined that McKenzie could perform approximately 6,069 jobs prior to her injury. After
evaluating McKenzie and the medical information from Drs. Yeh, Bell, and Vohra, Malone
determined that McKenzie could no longer perform the same jobs as she could pre-injury.
When Malone took into account McKenzie’s pre-injuryjobs with her post-injuryrestrictions,
she determined that McKenzie suffered a 14% loss of access to her pre-injury jobs at Howard
Industries and a 25% loss of access to her past occupations. Malone calculated that
McKenzie suffered a 38% loss of access for all job titles in a competitive labor market.
Using her job survey, Malone identified twenty current and periodic employment
opportunities and had an earning potential of $9.25 per hour outside of her employment at
Howard Industries.
¶12. However, on cross-examination, Malone testified that she had not physically or
vocationallytested McKenzie. Malone also stated that her loss-of-access calculation was just
5
one factor in determining a person’s loss of wage-earning capacity, and she had not
performed any further evaluations regarding other factors that contribute to loss of wageearning capacity. Another determination is whether or not the person was able to return to
pre-injury employer, which McKenzie was able to do. Malone agreed that McKenzie
returned to work for Howard Industries earning $0.51 more per hour than she did pre-injury.
Malone also agreed that her loss-of-access calculations were based upon a sample of a
nationwide competitive labor market and not localized to the region where McKenzie lived
and worked.
¶13. John Risher, Howard Industries’ Environmental and Safety Manager, testified on
behalf of Howard Industries. Risher testified that he oversaw the company’s workers’
compensation claims and was aware of McKenzie’s claim. Risher confirmed that McKenzie
worked with Division 1 prior to her injury, making $12.46 per hour, and she returned to
working full-time in the exact same division after her MMI date, making $12.56 per hour.
He also testified that she was placed on the strip machine, which is within McKenzie’s
medical restrictions and a necessary production job for the company. Risher also explained
that no employee at Howard Industries is guaranteed to work 40 hours per week or overtime.
Risher stated that the company often allowed for changes in an employee’s job duties.
Finally, Risher testified that, at the time of the hearing, McKenzie earned $13.01 per hour
with potential for overtime hours.
¶14. Pete Mills testified on behalf of Howard Industries as a vocational rehabilitation
expert. Mills testified that he prepared a job analysis of McKenzie’s position as a Division
6
1 coil helper. In preparation for this job analysis, Mills reviewed McKenzie’s medical
records from Drs. Yeh, Bell, and Vohra and visited Howard Industries to view and analyze
McKenzie’s current job of operating the strip machine. Based upon his evaluations, Mills
testified that McKenzie had successfully returned to work after her injury and was
performing a job that was within her medical restrictions. Mills also testified that
McKenzie’s job was a necessary production job at Howard Industries and that she was still
classified as a Division 1 coil helper. Mills further testified that McKenzie’s wages had
increased and that she was capable of performing full-time work as well as overtime work.
¶15. When asked about Malone’s loss-of-access analysis, Mills testified that he had not
performed his own loss-of-access calculations. Mills also stated that while loss-of-access is
one factor to consider in a loss-of-wage-earning-capacity analysis, another factor is whether
McKenzie successfullyreturned towork. In his expert opinion, Mills testified that McKenzie
had satisfied this second factor by successfully returning to work in her same pre-injury
position.
¶16. After hearing the merits of McKenzie’s case, the administrative judge issued an order
on June 28, 2018, finding that McKenzie had suffered a 10% loss of wage-earning capacity.
The judge awarded McKenzie permanent disability benefits of $41.20, beginning April 24,
2013, and continuing for a period of 450 weeks. The judge gave Howard Industries credit
for any payments of compensation already made to McKenzie. The judge also ordered that
Howard Industries pay for, furnish, and provide McKenzie all reasonable and necessary
medical services and supplies as the nature of her injury or the process of her recovery may
7
require. Finally, the judge found that McKenzie returned to work with no restrictions or
pain after her 2010 neck surgery, and therefore no evidence supported apportionment of
McKenzie’s permanent disability.
¶17. Following the judge’s order, McKenzie timely filed a “Petition for Review” with the
full Workers’ Compensation Commission, asking the Commission to modify the amount of
weeklypermanent partial-disabilitybenefits awarded. Howard Industries also filed a “CrossPetition for Review” with the full Commission. On December 6, 2018, the full Commission
reversed the decision of the administrative judge, finding that McKenzie had not sustained
a loss of wage-earning capacity as a result of her injury. Aggrieved, McKenzie now appeals.
STANDARD OF REVIEW
¶18. In this workers’ compensation case, we must determine “whether the Commission’s
decision was supported by substantial evidence, was arbitrary and capricious, was beyond
the scope or power of the agency to make, or violated the claimant’s constitutional or
statutory rights.” Pulliam v. Miss. State Hudspeth Reg’l Ctr., 147 So. 3d 864, 868 (¶16)
(Miss. Ct. App. 2014). The Commission acts as the trier and finder of facts in a workers’
compensation case. Forrest Gen. Hosp. v. Humphrey, 136 So. 3d 468, 471 (¶14) (Miss. Ct.
App. 2014). “If the Commission’s order is supported by substantial evidence, this Court is
bound bythe Commission’s determination, even if the evidence would convince us otherwise
if we were the fact-finder.” Id. We apply a de novo review for questions of law, and
“reversal is proper where the Commission has misapprehended the controlling legal
principles.” Id.
8
ANALYSIS
¶19. On appeal, McKenzie asserts that the findings and opinions of the Commission were
not supported by substantial evidence, contrary to the law, and arbitrary and capricious.
McKenzie argues that sufficient evidence existed to prove that she suffered a loss of wageearning capacity and was therefore entitled to permanent partial-disability benefits.
¶20. Mississippi Code Annotated section 71-3-7(1) (Supp. 2015) compensates employees
“for disability . . . from injury . . . arising out of and in the course of employment, without
regard to fault as to the cause of the injury . . . .” Mississippi Code Annotated section 71-3-
3(i) (Rev. 2011) defines “disability” as “incapacity because ofinjury to earn the wages which
the employee was receiving at the time of injury in the same or other employment . . . .” The
burden of proving disability and its extent lies with the claimant, who must show that there
was “(1) an actual physical injury; and (2) [a] loss of wage-earning capacity.” Gregg v.
Natchez Trace Elec. Power Ass’n, 64 So. 3d 473, 476 (¶¶10-11) (Miss. 2011).
¶21. The parties stipulated that McKenzie suffered a neck injury on February 23, 2012,
while operating the paper extension machine in the course of her job at Howard Industries.
Therefore, our focus turns to whether McKenzie suffered a loss of wage-earning capacity.
“[D]ecisions as to loss of wage-earning capacity are largely factual and are to be left largely
to the discretion and estimate of the [C]ommission.” Neshoba Cty. Gen. Hosp. v. Howell,
999 So. 2d 1295, 1298 (¶8) (Miss. Ct. App. 2009) (internal quotation mark omitted). “A
rebuttable presumption of no loss of wage-earning capacity arises when the claimant’s postinjury wages are equal to or exceed his preinjury wage.” Gregg, 64 So. 3d at 476 (¶12)
9
(emphasis added) (citing Gen. Elec. Co. v. McKinnon, 507 So. 2d 363, 365 (Miss. 1987)).
The presumption may be rebutted by
evidence on the part of the claimant that the post-injury earnings are unreliable
due to: (1) increase in general wage levels since the time of the accident, (2)
the claimant’s own greater maturity and training, (3) longer hours worked by
the claimant after the accident, (4) payment of wages disproportionate to
capacity out of sympathy to the claimant, and (5) the temporary and
unpredictable character of post-injury earnings.
Pruitt v. Howard Indus. Inc., 232 So. 3d 822, 825 (¶10) (Miss. Ct. App. 2017) (citing
McKinnon, 507 So. 2d at 365). “[A]ny other factor or condition which causes the actual
post-injurywages to become a less reliable indicator of earning capacity will be considered.”
Id.
¶22. Before her injury, McKenzie worked as a Division 1 coil helper, earning a pay grade
of 11-3 and a $12.46 hourly wage. At the hearing, McKenzie, Risher, and Mills all testified
that McKenzie returned to work after her injury, resumed her same position as a Division 1
coil helper, and earned $12.56 per hour after her injury and $13.01 per hour at the time of the
hearing. These facts clearly triggered the rebuttable presumption of no loss of wage-earning
capacity, thereby shifting the burden to McKenzie.
¶23. McKenzie argues that the Commission ignored several factors in which she clearly
rebutted the presumption of no loss of wage-earning capacity. First, McKenzie argues that
Dr. Yeh’s restrictions prevented her from performing the same pre-injury work, and she now
requires another employee to assist her in lifting paper rolls now while operating the strip
machine. Second, McKenzie argues that Malone’s testimony established that these
restrictions cause her to suffer a loss of access to jobs outside of Howard Industries. Third,
10
McKenzie also asserts that she has continuing pain and tingling and still needs medical
treatment. Finally, McKenzie argues that her wages increased due to union-negotiated pay
raises and that she “could not maintain [her] current job without the strenuous help of the
union.”
¶24. This Court dealt with a factually similar scenario in Pruitt v. Howard Industries.
Pruitt injured his lower back while working as a final assembler at Howard Industries.
Pruitt, 232 So. 3d at 824 (¶2). After surgery, Pruitt returned to work with certain restrictions,
and he then began primarily operating a forklift, which he had not done prior to his injury.
Id. at 824 (¶3) & n.1. Pruitt filed a workers’ compensation claim, but both the administrative
judge and the Commission ultimately found that Pruitt had failed to prove that he suffered
any loss of wage-earning capacity. Id. at (¶4).
¶25. On appeal, Pruitt argued that he had presented ample evidence to rebut the
presumption that he suffered no loss of wage-earning capacity in that (1) his doctors gave
hima 3% post-injuryimpairment rating and light-weight work restrictions,(2) hisrestrictions
prevented him from working the same job as he did pre-injury, (3) his restrictions prevented
him from earning overtime pay, (4) his restrictions caused him to suffer a loss of access to
jobs outside of Howard Industries, and (5) after surgery, he primarily operated a forklift,
which he had not done before his injury. Id. at 826 (¶¶13-15). Upon review, we found that
Pruitt’s arguments failed to sufficiently overcome the rebuttable presumption. Id. at (¶12).
The evidence at Pruitt’s hearing established that he returned to the exact “same plant, in the
same division, and in the same job but making a higher wage.” Id. at 827 (¶15). Further, we
11
found that although Pruitt returned to work with restrictions, the evidence established that
his post-injury job was a necessary production job at Howard Industries. Id. Finally, we
found that Pruitt had continued his employment with Howard Industries, was in no danger
of termination, and had not sought work outside of Howard Industries. Id. at (¶16). We held
that “[u]nder our limited deferential standard ofreview, we cannot say that the Commission’s
decision was clearly erroneous.” Id. at 826 (¶12).
¶26. In our case today, the same reasoning applies. McKenzie returned to work in the same
plant as a Division 1 coil helper with the same 11-3 pay grade, with a $0.10 higher hourly
wage, giving rise to the presumption that she had not sustained a loss of wage-earning
capacity. Presenting almost identical arguments as those presented in Pruitt,theCommission
found that McKenzie failed to rebut the presumption. We agree.
¶27. McKenzie argues that she successfully rebutted the presumption by presenting
evidence that her wages were increased as a result of a union-negotiated pay raise and
through Malone’s testimony. She asserts that her restrictions not only prevent her from
performing her same pre-injury jobs but also creates a loss of access to jobs outside of
Howard Industries, thus creating a loss of wage-earning capacity. But determination of loss
of wage-earning capacitymust be made by evaluating the evidence as a whole, including any
other available clues. Tew v. Siemens Power Transmission, 156 So. 3d 329, 332 (¶11) (Miss.
Ct. App. 2010).
¶28. As the Commission explained in its order, the evidence as a whole was insufficient
to support a finding that McKenzie had sustained a loss of wage-earning capacity.
12
Specifically, McKenzie returned to work after her MMI date in April 2013, earning the same
or slightly higher wages than before her injury, and at the time of the hearing, she had
remained in the same position with Howard Industries for five years earning even higher
wages. Risher testified McKenzie returned to work performing a necessary production job
for Howard Industries, and no evidence indicated that McKenzie would be terminated by the
company. We agree that Malone provided expert testimony that McKenzie had suffered a
loss of access to outside employment. But Malone admitted that loss of access was only one
of several factors when determining loss of wage-earning capacity. Another factor was the
employee’s ability to return to work, which McKenzie, Mills, and Risher all testified that
McKenzie had successfully done. Malone also admitted that her calculations were based
upon a nationwide sample and that she had never vocationallyor physicallytested McKenzie.
Further, there is no evidence in the record that McKenzie sought employment outside of
Howard Industries and had been unsuccessful based upon her restrictions.
¶29. Finally, and unlike in Pruitt, McKenzie returned to work post-injury and was able to
increase her own wage-earning capacity by working overtime hours and earning additional
compensation.2 This is likewise important because Risher testified that Howard Industries
2 McKenzie cites Gregg v. Natchez Trace Electric, as one case in support of her lossof-wage-earning-capacity argument. But in Gregg, the Mississippi Supreme Court found
that the claimant had successfully rebutted the presumption of no loss of wage-earning
capacity primarily because the claimant “had proven he was no longer eligible to earn oncall [or overtime] compensation because of the climbing restriction imposed due to the
[claimant’s] injury.” Gregg, 64 So. 3d at 477 (¶14). The Supreme Court found that the
claimant’s post-injury ineligibility for additional on-call compensation affected his wageearning potential, and therefore the claimant was entitled to disability relief. Id. at 478
(¶¶16-17).
13
does not guarantee any of its employees the opportunity for overtime pay, regardless of
injury.
¶30. Because we are bound by a limited, deferential standard of review, we cannot say that
the Commission’s decision was clearly erroneous. The evidence as a whole supports the
Commission’s findings that McKenzie did not sustain a loss of wage-earning capacity as a
result of her injury. As such, we affirm the Commission’s decision to reverse the
administrative judge’s order.
Outcome: Applying our limited standard of review, we find that the Commission properly
applied the rebuttable presumption that McKenzie suffered no loss of wage-earning capacity, as her post-injury wages were higher than her pre-injury wages. Likewise, we find that substantial evidence supports the Commission’s finding that McKenzie failed to rebut this presumption.
We therefore affirm the Commission’s decision
Plaintiff's Experts:
Defendant's Experts:
Comments: