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MAXEY v. TYSON5/19/1999
Louise Maxey appeals a decision of the Workers' Compensation Commission holding that she was not permanently and totally disabled, but that she was entitled to benefits for a 35% wage-loss disability. The Second Injury Fund argues on cross-appeal that the Commission erred in awarding appellant wage-loss benefits on a scheduled injury. Appellee Tyson Foods takes the position that the Commission did not err in finding that appellant failed to prove permanent and total disability, but it does not address the Second Injury Fund's argument.
At the time of the hearing in 1997, appellant was sixty-eight years old, had a tenth-grade education, no vocational training, and her past work experience consisted of working on a farm, in a flower shop, as a sales clerk in a clothing store, and for appellee Tyson Foods. Appellant testified that she began working for Tyson in 1984 and performed various jobs. She had been on the "debone line pulling chicken tenders," a floor person cleaning up, assisting on the production line, and keeping load records. On January 27, 1989, appellant sustained a compensable injury to her lumbar spine, underwent two surgeries, and was left with a 12% physical impairment to the body as a whole.
When appellant was released to return to work after her back injury she was restricted from bending and lifting, and she was placed on the "shell line." She said a maintenance man made a stool especially for her so she could sit or stand as she needed. She also wore a back brace and took pain medication as needed. She said, in general, she did quite well that way.
In 1995, appellant developed bilateral carpal tunnel syndrome, and she has had two surgeries on each wrist. After the surgery on her right wrist, appellant developed an infection that has never completely healed. When appellant was released to return to work on May 14, 1997, with a 15% impairment to her hands, appellant was told by the plant manager that there was no job available within her restrictions, and she was terminated as of May 30, 1997.
Appellant testified that she then attempted to work as a Wal-Mart "greeter," but being on her feet all day and having to pull baskets for customers caused her severe pain and she had to quit.
She said she can no longer squeeze anything, open a jar, peel a potato, push a vacuum, lift any cookware, or clean her house. Her hands stay sore and hurt constantly. The administrative law judge found that appellant was permanently and totally disabled.
The Commission reversed, and reduced appellant's disability from total to 35%. It found that appellant had skills transferable to the "service sector" of employment where she had experience, and that there were numerous jobs where appellant's restrictions of sitting or standing as needed could be accommodated. The Commission dismissed appellant's unsuccessful attempt to work at Wal-Mart as insufficient to prove a total inability to earn meaningful wages.
On appeal, appellant argues that the Commission's analysis was flawed and that reasonable minds could not reach the decision that the Commission reached. She contends that the Commission failed to acknowledge that she attempted to return to her job at Tyson Foods but was told that her restrictions barred her from performing "even the most sedentary work available" at Tyson. The appellant challenges the Commission's implication that she was not motivated to return to work. She points out that she testified that she needed to continue working to meet her daily expenses; that she suggested to Tyson's manager a couple of jobs she thought she could perform but was rebuffed; that she attempted to work at Wal-Mart but was physically unable
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