William M. Scott v. KLLM, Inc.
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2009-WC-00415-COA
WILLIAM M. SCOTT
APPELLANT/CROSSAPPELLEE
v.
KLLM, INC.
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEYS FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
APPELLEE/CROSSAPPELLANT
09/15/2008
HON. WILLIAM F. COLEMAN
HINDS COUNTY CIRCUIT COURT
JOHN HUNTER STEVENS
RICHARD MACK EDMONSON, JR.
BRIDGETTE TRENETTE THOMAS
COURTNEY ANNE TITUS
CIVIL - WORKERS’ COMPENSATION
AFFIRMED DECISION OF WORKERS’
COMPENSATION COMMISSION
AFFIRMED-06/15/2010
BEFORE LEE, P.J., IRVING AND ISHEE, JJ.
ISHEE, J., FOR THE COURT:
¶1.
The Hinds County Circuit Court affirmed the decision of the Mississippi Workers’
Compensation Commission (Commission), which awarded William Scott temporary total
disability benefits, permanent partial disability benefits for a back injury he sustained when
he fell out of a trailer while working for KLLM, Inc. (KLLM), and assigned a twenty percent
loss of wage-earning capacity. Scott appeals, asserting that the Commission erred in finding
only a twenty percent loss of wage-earning capacity. However, KLLM cross-appeals,
asserting that the Commission erred in finding that Scott suffered a twenty percent loss of
wage-earning capacity and that Scott was not entitled to any permanent partial disability
benefits.
FACTS AND PROCEDURAL HISTORY
¶2.
Scott was a truck driver for KLLM when he injured his lower back after he fell out
of the back of a trailer on March 19, 2002, while loading trailers at a Pillsbury plant in New
Jersey. Scott reported his injury to his KLLM supervisor and was referred to the St. Dominic
Hospital (St. Dominic) in Jackson, Mississippi. Despite his back injury, Scott did not go to
the hospital and continued to work. Scott’s pain progressively worsened. Two months after
he injured his back, Scott again told his supervisor at KLLM that he was having back
problems. He was again referred to St. Dominic.
¶3.
After his second referral, Scott went to St. Dominic. After diagnostics tests were run,
Scott was told that he needed back surgery. Scott returned to KLLM and told his supervisor
and the person to whom she referred him, Mr. Cox,1 who handled workers’ compensation
claims for KLLM, that he needed back surgery.
¶4.
Scott testified that he continued to work around the truck yard for two days “to get
used to taking hydrocodone,” which he was prescribed for his back pain. However, he could
not continue working due to the pain, so he unloaded his belongings from the truck and
turned in his keys. Scott testified that he told Cox, as well as several other employees, that
1
Mr. Cox’s first name is not revealed in the record.
2
he wanted to return to work as a driver for KLLM after he recovered from his back surgery.
However, the record shows that Scott never returned to work at KLLM and that KLLM
terminated his employment in August 2002 after Scott failed to call in or show for work for
three consecutive days without explanation.
¶5.
Scott then returned to his home in Nashville, Tennessee, where he saw Dr. James R.
Head, his family doctor. Dr. Head referred him to a neurosurgeon, Dr. Garrett Powell, who
prescribed conservative treatment. Dr. Powell referred him to Dr. Kenneth Sullivan for pain
management and physical therapy. However, Scott testified that he could not afford the
treatment prescribed by his specialists after August 2002, when his employment with KLLM
was terminated, resulting in the loss of his health coverage.
¶6.
In January 2003, Scott told Dr. Head that he was “running out of money” and needed
to return to work, so Dr. Head released him to return to work. Scott testified that he did not
attempt to return to work for KLLM at that time because he had been fired. Due to a lack
of funds, Scott testified that did not see a doctor between January 2003 and May 2003.
However, he returned to Dr. Head in May 2003 because he had received some
unemployment benefits during the interim.
¶7.
The administrative law judge (ALJ) awarded Scott permanent total disability benefits
at the rate of $322.90 per week for 450 weeks. Aggrieved by the decision of the ALJ, KLLM
appealed to the Commission. The Commission reversed the holding of the ALJ and found
that Scott was not entitled to permanent total disability benefits. The Commission ordered
KLLM to pay temporary total disability benefits from May 5, 2002, through July 26, 2005,
and permanent partial disability benefits for a period not to exceed 450 weeks, commencing
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on July 27, 2005. The Commission assigned a twenty percent loss of wage-earning capacity.
¶8.
From this order, KLLM appealed to the Circuit Court of Hinds County, seeking
reversal of the Commission’s decision. The circuit court entered a judgment on September
15, 2008, upholding the Commission’s decision. Scott now appeals, and KLLM crossappeals.
STANDARD OF REVIEW
¶9.
The standard of review in appeals of workers’ compensation cases is limited; this
Court must determine only whether the decision of the Commission is supported by
substantial evidence and whether the law was correctly applied. GA. Pac. Corp. v. Taplin,
586 So. 2d 823, 826 (Miss. 1991). “The Commission sits as the ultimate finder of facts; its
findings are subject to normal, deferential standards upon review.” Casino Magic v. Nelson,
958 So. 2d 224, 228 (¶13) (Miss. Ct. App. 2007) (citing Natchez Equip. Co. v. Gibbs, 623
So. 2d 270, 273 (Miss. 1993)). Because our review is limited, this Court “will only reverse
the Commission’s rulings where findings of fact are unsupported by substantial evidence,
matters of law are clearly erroneous, or the decision was arbitrary and capricious.”
Westmoreland v. Landmark Furniture, Inc, 752 So. 2d 444, 448 (¶8) (Miss. Ct. App. 1999).
We maintain this deferential standard even when we would have been persuaded to rule
otherwise if we had been the fact-finder. Vance v. Twin River Homes, Inc., 641 So. 2d 1176,
1180 (Miss. 1994).
DISCUSSION
I. Scott’s Appeal
¶10.
Scott argues that there was no substantial evidence before the Commission to justify
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a reduction of his award by eighty percent. Scott asserts that the overwhelming evidence
substantiates that he proved to the Commission that he had suffered a loss of wage-earning
capacity in excess of the maximum. He also asserts that the record is void of any evidence
that his job search efforts were unreasonable or constituted a mere sham. Scott argues that
according to Siemens Entergy & Automation, Inc. v. Pickens, 732 So. 2d 276 (Miss. Ct. App.
1999), KLLM is required to prove that his job search efforts were unreasonable, and he
asserts that KLLM failed to do so. According to Scott, the Commission lowered his award
for no apparent reason; thus, he asserts the Commission’s ruling is against the overwhelming
and substantial weight of the evidence.
¶11.
Scott sought permanent total benefits pursuant to Mississippi Code Annotated section
71-3-17(a) (Rev. 2000). Such benefits are dependent on a claimant’s showing of a total loss
of wage-earning capacity; a claimant, thus, must show a diminishment in his wage-earning
capacity. Lott v. Hudspeth Ctr, 26 So. 3d 1044, 1049 (¶18) (Miss. 2010). From the earliest
interpretations of Worker’s Compensation law, the supreme court has eschewed the
comparison of actual earnings before the injury to post-injury earnings as a means to
determine wage-earning capacity. Karr v. Armstrong Tire & Rubber Co., 216 Miss. 132,
137, 61 So. 2d 780, 791 (1953). “Our statute does not test the earning capacity by the
comparative wages received by [an] applicant before and after the injury. It is not a
comparison of actual wage with actual wage.” Id. Instead the amount of the benefit is
figured on a percentage of the claimant’s weekly wages at the time of the injury as compared
to her wage-earning capacity in similar or other jobs thereafter. Id. In determining the
“reasonableness” of a claimant’s efforts in seeking employment, the following are
5
considered: “job availability, economics of the community, the claimant’s skills and
background, and the nature of the disability.” Lott, 26 So. 3d at 1049 (¶15) (citing Taplin,
586 So. 2d at 828). Said another way, the factors which are 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.” McGowan v. Orleans Furniture Inc., 586 So. 2d 163, 167
(Miss. 1991) (citing Malone & Hyde of Tupelo v. Kent, 250 Miss. 879, 882, 168 So. 2d 526,
527 (1964)). “In other words, the determination should be made only after considering the
evidence as a whole.” Id.
¶12.
The fact that Scott was terminated from his employment does not entitle him to
compensation payments. This Court has held:
“The claimant has the burden of proof to establish [his] right to compensation
under the law, and the Mississippi Supreme Court has held that, even in the
case where the claimant cannot return to [his] former employment, an
unexcused failure to show an effort to explore other employment opportunities
more suited to the claimant's post-injury condition is fatal to a claim for
permanent disability.”
Wagner v. Hancock Med. Ctr., 825 So. 2d 703, 706 (¶12) (Miss. Ct. App. 2002). Citing
Pickens, Scott has attempted to place the burden on KLLM to prove that his job-search
efforts were unreasonable. Pickens, 732 So. 2d at 283-84 (¶30). However, this duty of the
employer does not arise until Scott has shown that “he has made a diligent effort, but without
success, to obtain other gainful employment.” Wal-Mart Stores, Inc. v. Patrick, 5 So. 3d
1119, 1124 (¶11) (Miss. Ct. App. 2008).
¶13.
According to KLLM, Scott was hired on January 11, 2002, approximately two months
6
before his alleged injury. Scott was then fired in August 2002 pursuant to KLLM’s no call,
no show policy, which terminates the employment of an employee who fails to call in or
show for work for more than three consecutive days without explanation. Scott alleges that
KLLM made no efforts to accommodate his restrictions; however, Scott admitted he did not
contact KLLM to keep them informed of his treatment, status, or any restrictions placed upon
his employment. He also did not contact KLLM to inquire about employment opportunities
that would accommodate his restrictions.
¶14.
According to the record, Scott contacted potential employers regarding trucking
positions, even though he has alleged that he is physically incapable of performing such a job
because of his back injury. Because of this, Scott has not demonstrated that he suffered a
permanent total disability as he has failed to demonstrate a complete loss of wage-earning
capacity. Thus, this issue is without merit.
II. KLLM’s Cross-Appeal
¶15.
In its cross-appeal, KLLM argues that the circuit court erred in affirming the
Commission’s decision. KLLM asserts that there was no substantial evidence to support the
Commission’s finding of a permanent occupational disability based on a twenty percent loss
of wage-earning capacity. KLLM asserts that Scott’s effort to obtain employment was not
diligent and was not reasonable.
¶16.
The Commission must determine the fact and extent of a claimant’s loss of wage-
earning capacity by considering the evidence as a whole. DeLaughter v. S. Cent. Tractor
Parts, 642 So. 2d 375, 379 (Miss. 1994). After looking at the evidence as a whole, the
Commission found that Scott was temporarily and totally disabled from May 5, 2002, the
7
date he last worked for KLLM, until July 26, 2005, at which time Dr. Powell found him to
have reached maximum medical improvement. The Commission then ordered that KLLM
pay Scott temporary total disability benefits in the amount of $322.90 per week from May
5, 2002, through July 26, 2005, and permanent partial disability benefits for a period not to
exceed 450 weeks, at the rate of $103.34.2 The Commission found that Scott could have
returned to work at KLLM in another suitable job; his job-search efforts were “less than
enthusiastic”; and his job-search efforts were wasted in significant part since he pursued the
same type of employment he had before his injury. Thus, we find that this final issue is
without merit.
¶17. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT IS
AFFIRMED ON DIRECT APPEAL AND CROSS-APPEAL. ALL COSTS OF THIS
APPEAL ARE DIVIDED EQUALLY BETWEEN THE APPELLANT/CROSSAPPELLEE AND APPELLEE/CROSS-APPELLANT.
KING, C.J., LEE AND MYERS, P.JJ., GRIFFIS, BARNES AND MAXWELL,
JJ., CONCUR. IRVING AND ROBERTS, JJ., CONCUR IN RESULT ONLY.
CARLTON, J., NOT PARTICIPATING.
2
Based on a pre-injury average weekly wage of $775.
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