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Doctor clears her for work, but she refuses to go back: Can she get workers’ comp?

An employee injured her neck at work. A doctor said she could return to work without restrictions. The employee quoted another doctor who recommended restrictions. She quit and filed for workers’ comp. Did she get benefits? 

On March 21, 2012, Linda Hayes, an employee of Howard Industries in Mississippi, injured her neck using an overhead crane to pick up steel. She received medical treatment which Howard covered.

A doctor released Hayes to work full duty with no restrictions beginning May 11 and referred her to another doctor for pain management.

That was the beginning of six years of medical back-and-forth about Hayes’ condition and her ability to return to work:

  • May 24, 2012, Hayes returns to work with restrictions from the pain management doctor; Howard accommodates the restrictions
  • Aug. 23, 2013, the pain management doctor says Hayes has reached maximum medical improvement (MMI) and has permanent work restrictions of no heavy lifting, no overhead reaching, eight-hour work days and 40-hour work weeks. The doctor says Hayes has a 5% whole-person impairment.
  • Sept. 16-17, 2013, Hayes has a functional capacity evaluation; results says Hayes can perform light-level work, and is able to lift and carry, and push and pull at least 20 pounds occasionally.
  • Jan. 17, 2014, another doctor performs an independent medical exam (IME) on Hayes; the doctor says Hayes isn’t at MMI and recommends a home exercise program and a therapy program.
  • Dec. 23, 2014, the pain management doctor again places Hayes at MMI with the same restrictions.
  • Given the conflicting medical opinions, Howard requests Hayes undergo a second IME. Yet another doctor performs one on May 1, 2015. This doctor says Hayes has reached MMI and assigned her a 0% impairment rating. The doctor said Hayes had no work restrictions or limitations and she didn’t need any further treatment.
  • Hayes worked at an accommodated job at Howard from August 2013 to September 2015.
  • After the second IME, Hayes’ supervisor requested she return to full work duty. Hayes worked full duty from September to December 2015 with no complaints.
  • January 2016, Hayes told her supervisors she wouldn’t work full duty and requested a job that complied with the restrictions from the pain management doctor. Howard fired Hayes on Jan. 5, 2016 for refusal to perform her required work.
  • Hayes’ union appealed and asked for arbitration. On Aug. 3, 2016, an arbitrator ruled Hayes shouldn’t have refused to work but, due to the uncertainty of her physical condition, it decreased her penalty to a six-month suspension.
  • Hayes returned to work on Aug. 11, 2016, but again refused to work full-duty, so Howard fired her again.
  • The union asked for arbitration a second time. A second arbitrator found Howard had properly dismissed Hayes for violation of company rules. The arbitrator noted that Hayes testified she wasn’t in pain on the day she returned to work.
  • Hayes continued to see her pain management doctor in 2016 and 2017. The doctor continued to recommend the same work restrictions: no heavy lifting, no overhead reaching, eight-hour work day, 40-hour work week.
  • July 26, 2017, a workers’ comp administrative judge (AJ) held a hearing to determine Hayes’ medical rating, restrictions and permanent disability.
  • Three months later, the AJ ruled Hayes had suffered a loss of earning capacity and required Howard to pay her permanent partial disability benefits and future medical benefits. Howard appealed.
  • July 18, 2018, The Mississippi Workers’ Compensation Commission rejected the AJ’s finding that Hayes suffered a loss of earning capacity as a result of a work-related injury.
  • Hayes appealed to a state court, arguing the Commission’s findings weren’t supported by substantial evidence and disputing which medical testimony was allowed into the record.

The Mississippi Court of Appeals found substantial evidence supported the Commission’s decision, and the Commission didn’t abuse its discretion in its admission or exclusion of medical evidence. The court noted that, by state law, the Commission is the ultimate fact finder in workers’ compensation cases.

As it stands now, Hayes wasn’t successful in seeking partial permanent disability benefits under workers’ comp.

(Linda Hayes v. Howard Industries Inc.Court of Appeals of the State of Mississippi, No. 2018-WC-01160-COA, 8/6/19)

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