Longtime Howard Industries employee Selina Hayes filed two workers’ compensation claims related to injuries incurred during her work as a coil winder. The coil winder job required lifting twenty to one hundred pounds of coiled wire above shoulder level. In the first injury, Hayes tripped and fell, injuring her head, neck, shoulder, and back. In the second injury, Hayes injured her right shoulder while lifting wire over her head. The second injury required surgery. Hayes returned to work after reaching maximum medical improvement. However, due to medical restrictions on her ability to lift weight over her head, Hayes was moved to the position of coil winder trainer. As a further accommodation, Hayes was restricted to working forty hours a week, even though consistent with the union contract, Howard Industries requires coil winder trainers to work overtime for as much as twenty hours a week. The Administrative Judge’s determination of whether Hayes suffered a loss of earning capacity necessitated comparison of the coil winder position to the position of coil winder trainer.

Howard Industries took the position that Hayes did not suffer a loss of wage-earning capacity because she returned to work after the second injury at a higher hourly rate than she had previously earned. Howard hired Peter Mills as an expert to prepare a job analysis of the position of coil winder trainer. Mills’s first report, filed in a pre-hearing statement, included a Job Analysis Re: Selina Hayes. The form had blank spaces that Mills had filled in. The form listed the Exact Job Title: Coil Winder Trainer, Training Required to Perform Duties, Essential Job Responsibilities, and the hours required. Mills had filled in Work Hours (time) 7:00 am to 5:30 pm 6 days per week and Overtime: hrs. per week Subject to overtime – approximately 20 hrs. per week. The form listed the physical requirements of the job. Mills had checked No on a box indicating the job could not be modified temporarily or permanently.

However, Howard Industries attorney Richard Lewis Yoder submitted a supplemental pre-hearing statement with a “corrected Job Analysis”. Attached was a modified job analysis form from Mills, again entitled Job Analysis Re: Selina Hayes. The form was the same in all respects except it altered the time requirements for the coil winder trainer job. It listed Work Hours (time) 7:00 am to 3:30 pm, 5 days per week. The box for Overtime: hrs. per week was left blank. Therefore, the modified form showed five days, not six, and no overtime. It said the job could not be modified temporarily or permanently.

Mills admitted during the initial hearing that the attachment to this initial report indicated that trainers work six days a week with approximately twenty hours of overtime, although he said he did not confirm this with the employees he had spoken to at the facility. He testified that Hayes did what all other trainers did, except she was only allowed to work five days a week. Mills agreed that other trainers worked overtime as noted in the initial attachment to his written report and that he did not know, but would not dispute, that coil winder trainers averaged between twenty-one and twenty-three hours a week. Contradicting the written portion of his report that stated he had been retained to evaluate the job of coil winder trainer, Mills then testified that the first attachment to his written report was a “mistake” and that he meant to evaluate the job given to Hayes as a specific accommodation for her alone, not what the general position of coil winder trainer entailed. Mills and Hayes’s attorney continued discussing what Mills then characterized as “clerical errors” made in the first attachment to the report. Mills testified that the hours, days, and overtime worked in the that first attachment were “typographical errors” put in accidentally. Mills confirmed that he made no change to the written portion of his report to note that it was “revised” or “amended” in any way to indicate that it was now an evaluation of only the job given to Hayes to accommodate all her restrictions. Mills agreed that using the initial attachment to his report, Hayes could not perform the trainer’s job from the standpoint of hours. Mills also said that he changed the report because Howard Industries’ attorney Yoder called him and told him the information was incorrect. Mills said he no longer had his working notes in the file but that either his secretary or he inadvertently put the work hours and overtime information in the first report incorrectly.

The Administrative Judge recessed the hearing to permit the parties to conduct discovery on the overtime requirements of the coil winder training job.

When the hearing reconvened some months later, Hayes’s attorney solicited additional testimony from Mills in which he acknowledged that the job evaluations he prepares in other worker’s compensation cases are evaluations of the actual job rather than the accommodated job (consistent with his initial report in this case), and that had the Administrative Judge accepted his second report on its face, the conclusion would be that Hayes had not suffered a loss of wage-earning capacity.

The Administrative Judge found that Hayes indeed had sustained a loss of wage-earning capacity. The AJ further sanctioned Howard Industries $1,000 for willful delay and ordered Howard Industries to pay Hayes’s attorney fees in the amount of $1,500 incurred because of the delay in the proceedings. The Commission amended the AJ’s order to reflect that the attorney, Richard Lewis Yoder, Jr., shall pay both the sanction and the attorney’s fee, “as the evidence before the Commission establishes that the report was changed at his specific direction and the report was offered into evidence before the Commission by Yoder.”

The Mississippi Supreme Court affirmed.

“Upon a thorough review of the record and transcript of the proceedings below, we find that the substantial evidence standard is satisfied; therefore, we must affirm. Further, sanctioning attorneys for misconduct facilitates the maintenance of the integrity of our adversary process. As both the AJ’s and the Commission’s frustration with the misleading report indicate, administrative and judicial processes cannot function without the members of our profession self-regulating in compliance with the highest standards of candor to the tribunal.”

 

Howard Industries v. Hayes, No.2021-0694, 2023 WL 6889115, 2023 Miss.LEXIS 285 (Miss. Oct. 19, 2023).