Rebecca Gill v. Harrah's Entertainment, Inc.
Annotate this Case
Download PDF
IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2009-WC-01119-COA
REBECCA GILL
APPELLANT
v.
HARRAH’S ENTERTAINMENT, INC., A SELFINSURED CORPORATION
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
APPELLEE
06/22/2009
HON. ALBERT B. SMITH III
TUNICA COUNTY CIRCUIT COURT
DAVID L. WALKER
GEORGE E. DENT
CIVIL - WORKERS’ COMPENSATION
AFFIRMED THE MISSISSIPPI WORKERS’
COMPENSATION COMMISSION’S
REDUCED AWARD OF BENEFITS
AFFIRMED: 05/25/2010
BEFORE KING, C.J., BARNES AND MAXWELL, JJ.
KING, C.J., FOR THE COURT:
¶1.
Rebecca Gill was injured on the job and thereafter applied for benefits through the
Mississippi Workers’ Compensation Commission (the Commission). The administrative law
judge (ALJ) found that Gill had sustained a permanent-partial disability and suffered a
twenty-percent loss of wage-earning capacity. The case was appealed to the Commission,
and the Commission amended the ALJ’s order, awarding Gill only a ten-percent loss of
wage-earning capacity. Both parties appealed to the trial court, and the trial court affirmed
the Commission’s ruling. Aggrieved, Gill appeals raising one issue – whether the trial court
erred by affirming the Commission’s reduction of her benefits. Finding no error, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2.
Harrah’s Entertainment, Incorporated (Harrah’s) hired Gill in November 2001 to work
as a security officer. During her time at Harrah’s, Gill was promoted to a lead security
officer position.
¶3.
On July 2, 2003, Gill sustained a back injury on the job while attempting to lift a five-
gallon gas can. Gill reported the injury and sought treatment. In the beginning, Gill received
conservative treatment.
However, the conservative treatment failed to alleviate her
complaints of severe back pain. As a result, Gill opted to undergo back surgery, which was
performed by Dr. Laverne Lovell on November 26, 2003.
¶4.
Following the surgery, Gill returned to work in February 2004 on light duty. Her
complaints of pain persisted. On August 17, 2004, Dr. Lovell found that Gill had reached
maximum medical improvement, and she was placed on a thirty-five-pound weight
restriction. In September 2004, Harrah’s terminated Gill stating that the company could not
ensure her safety if she remained in her current position and that there were no permanent
light-duty positions available.
¶5.
Thereafter, Gill filed a petition to controvert on September 15, 2004. The parties
stipulated that: (1) Gill sustained a work-related back injury on July 2, 2003; (2) at the time
the injury, Gill’s weekly wage was $379.52; (3) Harrah’s provided all medical treatment and
temporary benefits to which Gill was entitled; and (4) Gill reached maximum medical
improvement on August 17, 2004. Gill argued that she had sustained a permanent disability
that prevented her from finding a comparable job after her termination from Harrah’s. She
2
stated that her current salary was $129 less per month than the wages she earned with
Harrah’s. Conversely, Harrah’s denied that Gill was permanently disabled and that Gill had
suffered any loss of wage-earning capacity. The following evidence was presented to the
ALJ in regard to Gill’s petition to controvert.
A. Work History
¶6.
During the hearing, Gill expounded upon her education and work history. Gill
obtained her high school diploma in 1981, and she completed Emergency Medical
Technician (EMT) courses at a community college in 1995.
¶7.
Thereafter, Gill held the following jobs: a security EMT for Hollywood Casino from
May 1995 to November 1997, a seller of manufactured homes for Oakwood Homes from
November 1997 to January 1999, a deli manager at Fast Lane from January 1999 to May
2000, and a bookkeeper for Baker & Sons Electric from May 2000 to October 2001. As
previously mentioned, Gill was employed by Harrah’s as a security officer, and her
employment lasted from November 2001 to September 2004.
¶8.
Gill was forty-one years old when she was terminated by Harrah’s. After her
termination, it took Gill eight months to find other employment. She testified that she
allowed her EMT registration to lapse because she could no longer perform the physical
aspects of the job. Gill went back to work for Baker & Sons Electric as a bookkeeper and
was paid $250 per week. After Gill’s employment ended with Baker & Sons, she obtained
employment with Memphis Auto Center making the same wage.
¶9.
Ty Pennington, a vocational rehabilitation expert, also testified regarding Gill’s efforts
to find employment. Pennington testified that based on Gill’s education and work history,
3
she classified as a person who could earn above minimum wage.
The vocational
rehabilitation center found several jobs for Gill to apply for, and the salaries for those jobs
ranged from $8 to $10 per hour. Pennington followed up with the companies to see if Gill
had submitted an application. Only one company indicated that it had an active application
for Gill.
¶10.
Gill explained that she submitted an application for several of the jobs. She also
stated that she did not apply to one job because of the driving requirement, and she did not
apply to a second job because she could not find its location.
B. Medical Evaluation
¶11.
Dr. Lovell treated Gill’s back injury and performed her surgery. In his October 2005
deposition, Dr. Lovell testified that on August 31, 2003, Gill had full strength, normal
sensory and reflexes, normal gait, and good flexibility. Thus, despite Gill’s subjective
complaints of back pain, Dr. Lovell gave her a permanent-partial impairment rating of zero
percent.
¶12.
Two weeks later, Gill experienced pain while she was preparing to go to work one
morning. She returned to Dr. Lovell’s office with those complaints. A physical exam
revealed that Gill had developed pain in her thighs. However, Dr. Lovell noted that Gill did
not exhibit any outward signs of pain, and this continued throughout Dr. Lovell’s eightmonth treatment of Gill. Dr. Lovell believed that Gill had magnified her symptoms. He
noted on many occasions that Gill complained of pain; however, she did not exhibit any
outward signs of pain. Also, although Gill walked with a cane, Dr. Lovell noted that she did
not bear any weight on the cane.
4
¶13.
Because of Gill’s persistent complaints of pain, Dr. Lovell ordered an MRI. The MRI
revealed that she had spondylolisthesis, a slip in the vertebra, and bilateral spondylolisthesis.
Dr. Lovell stated that this was a hereditary or congenital condition. Dr. Lovell opined that
Gill’s congenital condition was not work related. However, as a result of her work-related
injury, Gill sustained a herniated disk. Using the American Medical Association’s guidelines
for impairment, Dr. Lovell assigned Gill a ten-percent permanent-partial impairment rating.
¶14.
Dr. Lovell also had Gill undergo a functional-capacity exam. Based on the results,
he assigned Gill a thirty-five-pound weight restriction. Dr. Lovell testified that Gill did not
put forth full effort in her functional-capacity exam. However, he gave her the benefit of the
doubt and accepted the weight restriction. Dr. Lovell testified that Gill smoked excessively,
which hindered her post-operative healing. Dr. Lovell stated that Gill went through her pain
medication very quickly, and her incessant complaints of pain became a burden on his office.
Eventually, Dr. Lovell had to refer Gill to a pain specialist since he did not deal with the
treatment of long-term pain.
¶15.
In December 2007, Dr. Lovell submitted a letter to clarify his opinion regarding Gill’s
weight restrictions. In this letter, Dr. Lovell stated that Gill’s herniated disc required a
discectomy, which he attributes to the work-related injury. Dr. Lovell explained that,
generally, patients do not have restrictions following a simple discectomy. Thus, he
attributed Gill’s weight restriction to her preexisting condition.
C. Proceedings Below
¶16.
Based on the aforementioned evidence, the ALJ found that Gill had sustained a
permanent-partial disability and had suffered a twenty-percent loss of wage-earning capacity.
5
The ALJ awarded Gill $50.60 per week to be paid for 450 weeks. Aggrieved, both Gill and
Harrah’s appealed the ALJ’s decision to the Commission.
¶17.
The Commission found that “[b]ased on the Claimant’s age, education, work
experience, and the ten[-]percent impairment rating assigned by Dr. Laverne Lovell, the
Commission finds that [the] Claimant sustained only a ten-percent loss of wage-earning
capacity as a result of the work[-related] injury.” Thus, the Commission amended the ALJ’s
order to reflect the reduction, awarding Gill $25.30 per week for 450 weeks.
¶18.
Further aggrieved, both parties appealed to the Circuit Court of Tunica County. The
trial court affirmed the Commission’s decision. Thereafter, Gill timely filed her notice of
appeal.
ANALYSIS
¶19.
In workers’ compensation cases, the Commission is the ultimate fact-finder.
Whirlpool Corp. v. Wilson, 952 So. 2d 267, 271 (¶15) (Miss. Ct. App. 2006). Thus, we give
deference to the Commission’s decision and will not disturb it on appeal absent a finding that
the decision was “unsupported by substantial evidence, matters of law are clearly erroneous,
or the decision was arbitrary and capricious.” Id.
¶20.
Gill argues that the trial court erred by affirming the Commission’s finding that she
sustained only a ten-percent loss of wage-earning capacity.
Gill maintains that the
Commission failed to consider the substantial pay decrease that she sustained following her
termination from Harrah’s. Conversely, Harrah’s claims that Gill failed to establish even a
ten-percent loss of wage-earning capacity and maintains that the Commission’s decision was
erroneous. Alternatively, Harrah’s argues that Gill’s award should not be increased.
6
¶21.
Pursuant to Mississippi Code Annotated section 71-3-3(I) (Rev. 2000), “‘[d]isability'
means incapacity because of injury to earn the wages which the employee was receiving at
the time of injury in the same or other employment, which incapacity and the extent thereof
must be supported by medical findings.” If the claimant proves that she is disabled and that
disability is not specifically addressed by statute, then her disability is measured by a loss of
wage-earning capacity. Havard v. Titan Tire Corp. of Natchez, 919 So. 2d 995, 998-99 (¶16)
(Miss. Ct. App. 2005) (citing Georgia Pacific Corp. v. Taplin, 586 So. 2d 823, 828 (Miss.
1991)). Such a determination is essentially “left to the uncertainty of a factual estimate
which is necessarily lacking in mathematical accuracy.” Robert v. Packard Elec. Div., 523
So. 2d 329, 331 (Miss. 1988) (citation omitted).
¶22.
Thus, Gill bore the burden to prove that she suffered a total disability as a result of a
work-related injury and a loss of wage-earning capacity due to that disability. See Leslie v.
SAIA Motor Freight, 970 So. 2d 218, 221 (¶12) (Miss. Ct. App. 2007). “Once a prima facie
case for total disability has been established, the employer bears the burden of proving that
the claimant has suffered only a partial disability or no loss of wage-earning capacity.”
Goolsby Trucking Co. v. Alexander, 982 So. 2d 1013, 1020 (¶19) (Miss. Ct. App. 2008)
(quoting Whirlpool Corp., 952 So. 2d at 272 (¶19)). The ultimate determination is a question
of fact for the Commission to decide. Mosby v. Farm Fresh Catfish Co., 19 So. 3d 789, 793
(¶10) (Miss. Ct. App. 2009).
¶23.
Dr. Lovell’s testimony established that Gill had sustained a herniated disc from her
work-related injury, which he assigned a ten-percent impairment rating. Gill submitted proof
that her post-injury wages were approximately thirty percent less than her pre-injury wages.
7
Gill believes that her award should be equal to her loss in wages. However, in addition to
Gill’s actual loss of wages, the Commission may consider other factors in its determination.
See Mosby, 19 So. 3d at 794 (¶10). In this case, the Commission considered Gill’s age,
education, work experience, Pennington’s testimony, and the ten-percent impairment rating
assigned by Dr. Lovell.
¶24.
Harrah’s argues that Gill is not impaired because her complaints of pain were not
substantiated by objective medical evidence; Gill did not have any work restrictions that were
attributable to her alleged injury; and her job search was a sham. There is some evidence that
Gill may have exaggerated complaints of pain and that she did not fully participate in her
functional-capacity exam. Dr. Lovell expressed concern that Gill was exaggerating her pain.
However, he also stated that there were times when Gill’s outward demeanor matched her
complaints of pain. There is also some evidence to suggest that Gill did not exhaust her job
opportunities through the vocational rehabilitation clinic. However, any “[d]oubtful claims
should be resolved in favor of compensation, so as to fulfill the beneficial purposes of
statutory law.” Univ. of Miss. Med. Ctr. v. Rainey, 926 So. 2d 938, 940 (¶6) (Miss. Ct. App.
2006) (citing Sharpe v. Choctaw Elec. Enter., 767 So. 2d 1002, 1006 (¶19) (Miss. 2000)).
It is abundantly clear that the Commission gave Gill the benefit of the doubt and relied
heavily upon the ten-percent impairment rating when making its decision to reduce her award
of benefits.
¶25.
Based on the foregoing, we find that the Commission’s decision to reduce Gill’s
award of permanent-partial disability benefits from a twenty-percent loss of wage-earning
capacity to a ten-percent loss of wage-earning capacity was supported by substantial
8
evidence. Thus, we affirm the Commission’s award of $25.30 per week to be paid for 450
weeks. This argument is without merit.
¶26. THE JUDGMENT OF THE CIRCUIT COURT OF TUNICA COUNTY IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
APPELLANT.
LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS
AND MAXWELL, JJ., CONCUR.
9
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.