T.P.I. Restaurants, Inc. v. John Q. Stephens
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IN THE COURT OF APPEALS
OF THE
STATE OF MISSISSIPPI
NO. 2000-WC-01886-COA
T.P.I. RESTAURANTS, INC. AND INSURANCE
COMPANY OF NORTH AMERICA
v.
JOHN Q. STEPHENS
DATE OF TRIAL COURT
JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANTS:
ATTORNEYS FOR APPELLEE:
APPELLANTS/CROSSAPPELLEES
APPELLEE/CROSSAPPELLANT
09/29/2000
HON. HENRY L. LACKEY
CHICKASAW COUNTY CIRCUIT COURT
JOSEPH T. WILKINS III
CHARLIE BAGLAN
LAWRENCE J. HAKIM
NATURE OF THE CASE:
CIVIL - WORKERS' COMPENSATION
TRIAL COURT DISPOSITION:
EMPLOYER ORDERED TO PAY $101.38 PER WEEK
FOR A PERIOD OF 450 WEEKS, REPRESENTING A
FIFTY PERCENT WAGE LOSS, AS WELL AS TEN
PERCENT PENALTY FOR EACH INSTALLMENT NOT
TIMELY PAID, TOGETHER WITH INTEREST AT THE
LEGAL RATE FROM AND AFTER THE DATE THE
PETITION TO CONTROVERT WAS FILED.
DISPOSITION:
AFFIRMED - 03/19/2002
MOTION FOR REHEARING FILED: 3/29/2002; denied 5/21/2002
CERTIORARI FILED:
6/5/2002; denied 8/29/2002
MANDATE ISSUED:
9/13/2002
BEFORE KING, P.J., LEE, AND BRANTLEY, JJ.
BRANTLEY, J., FOR THE COURT:
¶1. John Q. Stephens was awarded workers' compensation benefits in the amount of $101.38 per week
for 450 weeks. T.P.I. Restaurants, Inc. and Insurance Company of North America (TPI) appeal this
decision arguing that the decision was not supported by the evidence and that the Commission's decision
was arbitrary and capricious. Finding no error, we affirm.
FACTS
¶2. Stephens was injured in an automobile accident on July 4, 1988. He filed a petition to controvert,
arguing that his injury was work-related. A hearing was held on March 13, 1991, at which time loss of
wage earning capacity evidence was presented. However, the administrative law judge found that the injury
did not occur in the course and scope of Stephens's employment and that there was no loss of wage earning
capacity. The Commission affirmed the administrative law judge's order. The Chickasaw County Circuit
Court reversed the Commission's ruling, holding that the injury did occur in the course and scope of
Stephens's employment and that there was a loss of wage earning capacity.
¶3. TPI appealed to this Court. In 1995, this Court affirmed the circuit court's ruling that the injury was
work-related. There is no reported decision on this case because no decisions of this Court were reported
as official cases until September 1, 1996. The Court found that Stephens's pre-injury wage was
approximately $760.29 per week. Stephens's post-injury wage was determined to be $25,000 per year.
The Court remanded the case to the Commission for a determination of Stephens's loss of wage earning
capacity and to award penalties and interest.
¶4. The Commission assigned the case to an administrative law judge and another hearing was held on
February 5, 1998. At this hearing additional evidence pertaining to Stephens's work history subsequent to
the first hearing was presented. The Commission affirmed the administrative law judge's order awarding
$101.38 per week for 450 weeks to Stephens along with penalties and interest. TPI appealed this order to
the circuit court which affirmed the Commission's decision. TPI appeals arguing that the decision of the
Commission was not supported by the evidence and was arbitrary and capricious. Stephens cross-appeals
with the same argument, but argues that he should have received a 100% award for loss of wage earning
capacity.
ISSUES PRESENTED
¶5. The appellant assigns the following issues:
I. WHETHER THE CLAIMANT/APPELLEE SUSTAINED A LOSS OF WAGE
EARNING CAPACITY AS A RESULT OF THE JULY 4, 1988, WORK-RELATED
INJURY.
II. WHETHER OR NOT THE COMMISSION AND CIRCUIT COURT TOTALLY
DISREGARDED THE PRESUMPTION OF NO WAGE LOSS BASED UPON POSTINJURY EARNINGS.
III. WHETHER OR NOT THE COMMISSION AND CIRCUIT COURT FAILED TO
RECOGNIZE THAT THE CONTINUING JURISDICTION OF THE COMMISSION
ALLOWS AND REQUIRES CONSIDERATION OF POST-INJURY EARNINGS.
IV. WHETHER OR NOT THE COMMISSION WAS ARBITRARY AND CAPRICIOUS
IN THE ADMISSION AND DENIAL OF EVIDENCE AND TESTIMONY.
¶6. On cross-appeal, the appellee/cross-appellant assigns the following issues:
I. THE FINDINGS AND AWARD OF THE COMMISSION ARE CONTRARY TO LAW
AND AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE AND IS NOT
SUPPORTED BY SUBSTANTIAL EVIDENCE INSOMUCH AS IT RELATES TO THE
COMMISSION'S FINDING OF LOSS OF WAGE EARNING CAPACITY.
II. THE MISSISSIPPI WORKERS' COMPENSATION COMMISSION
ERRONEOUSLY, AS A MATTER OF LAW AND FACT, AFFIRMED THE
ADMINISTRATIVE JUDGE'S ORDER IN FINDING CLAIMANT TO HAVE
SUSTAINED A $101.39 PER WEEK IN LOSS OF WAGE EARNING CAPACITY
WHERE THE EVIDENCE AS A WHOLE, UNEQUIVOCALLY SHOWS CLAIMANT TO
HAVE LOST THE MAXIMUM LOSS OF WAGE EARNING CAPACITY
ATTRIBUTABLE TO AN INJURY OCCURRING ON THE DATE OF CLAIMANT'S
WORK-RELATED INJURIES.
III. PENALTIES AND INTEREST WERE CORRECTLY ASSESSED AGAINST T.P.I.
STANDARD OF REVIEW
¶7. Appellate review of compensation claims is a narrow one. The Mississippi Supreme Court has stated,
"[t]hat the findings and order of the Workers' Compensation Commission are binding on the court so long
as they are 'supported by substantial evidence.'" Liberty Mut. Ins. Co. v. Holliman, 765 So. 2d 564 (¶6)
(Miss. Ct. App. 2000) (quoting Vance v. Twin River Homes, Inc., 641 So. 2d 1176, 1180 (Miss. 1994))
. The Commission's order will be reversed only if the court finds that the order was clearly erroneous and
contrary to the overwhelming weight of the evidence. Liberty Mut. Ins. Co., 765 So. 2d at (¶6). "A finding
is clearly erroneous when, although there is some slight evidence to support it, the reviewing court on the
entire evidence is left with the definite and firm conviction that a mistake has been made by the Commission
in its findings of fact and in its application of the Act." J.R. Logging v. Halford, 765 So. 2d 580 (¶12)
(Miss. Ct. App. 2000). Where no evidence or only a scintilla of evidence supports a Workers'
Compensation Commission decision, this Court does not hesitate to reverse. Universal Mfg. Co. v.
Barlow, 260 So. 2d 827, 831 (Miss. 1972). This Court gives liberal construction to the compensation
statutes and where a question may exist, this Court often rules in favor of the claimant. Big '2' Engine
Rebuilders v. Freeman, 379 So. 2d 888, 889-90 (Miss. 1980).
LAW AND ANALYSIS
¶8. We address all of the issues presented on direct and cross-appeal at the same time because the central
issue is the extent of loss of wage earning capacity sustained by Stephens, if any.
¶9. This Court in 1995 remanded this case to the Commission to determine the extent of loss of wage
earning capacity of Stephens. Subsequent to the remand, a second hearing was held after which the
administrative law judge awarded Stephens permanent partial benefits of $101.38 per week for 450
weeks. The Full Commission affirmed finding no error of law or fact.
¶10. Stephens's average weekly wage on the date of his injury was $760.29; on the date of the first hearing
it was $480.77; and on the date of the second hearing it was $814.62, which included fringe benefits. He
was working as a general manager for Golden Corral Restaurant where his duties remained essentially the
same as those on the date of injury and first hearing.
¶11. Stephens stated his injury resulted in a double cervical disc injury requiring a two-level fusion. He
continues to miss approximately twenty to twenty-five work days per year due to his injury. He further
stated he experiences sleep disruption and must be careful in the things he does, how he turns, what he
picks up, and how he uses his arms and shoulders. Stooping and bending cause him severe pain.
¶12. Stephens stated he was terminated from TPI because he was unable to perform all the duties of his
position as district director. The salary of a district director for TPI at the time of the second hearing was
$1,269.23 per week.
¶13. Lamar Crockett, a vocational rehabilitation counselor, testified as an expert for Stephens to establish
his wage loss capacity. He testified that the disparity in wages between the job held by Stephens in his
current position and the position as a district director with TPI was $34,860 per year.
¶14. TPI called David Green, a vocational rehabilitation counselor, and he stated Stephens suffered no loss
of wage earning capacity. He further stated that, in his opinion, Stephens's ability to continue his
employment in the food service industry confirmed his conclusion. He admitted his opinion did not take into
consideration the disparity in salaries nor did he consider any general wage increase subsequent to the date
of injury.
¶15. Our task is to determine if the Commission acting as fact finder determined the proper level of
disability and loss of wage earning capacity. Georgia Pacific Corp. v. Gregory, 589 So. 2d 1250, 1256
(Miss. 1991).
There is a well-established presumption in Mississippi workers' compensation law: 'The actual postinjury earnings will create a presumption of earning capacity commensurate therewith and is strong
evidence for consideration against a claim of disability out of proportion thereto, but the presumption
may be rebutted by evidence independently showing incapacity or showing post-injury earnings as an
unreliable basis for the determination.' Factors that may be considered which rebut this presumption
include, inter alia, an increase in general wage levels.
Dunn, Mississippi Workers' Compensation, § 67, at p. 76 (3d ed. 1982); see also General Elec. Co. v.
McKinnon, 507 So. 2d 363, 365 (Miss. 1987).
¶16. The administrative law judge found as a fact that Stephens sustained a twenty percent permanent
impairment to the body as a whole. Stephens has post-injury limitations which cause him to be careful in the
manner he does things and how he lifts and uses his arms. He also has problems with stooping and bending
which cause him severe pain. He continues to miss approximately twenty to twenty-five work days per year
due to his injury.
¶17. The Commission was not in error in concluding that Stephens sustained a loss of wage earning
capacity even though his post-injury earnings were more than his earnings on the date of injury. The
presumption of earning capacity commensurate with post-injury earnings is rebutted in this case. The
decision of the Commission is not manifestly wrong and is supported by substantial evidence. Findings
supported by substantial evidence must remain undisturbed even where that evidence would not convince
the reviewing court were it the fact-finder. Olen Burrage Trucking Co. v. Chandler, 475 So. 2d 437,
439 (Miss. 1985); see also South Cent. Bell Tel. Co. v. Aden, 474 So. 2d 584, 589-90 (Miss. 1985).
So long as the record contains credible evidence which, if believed, would support the Commission's
determination, we must affirm. Walker Mfg. Co. v. Cantrell, 577 So. 2d 1243, 1247 (Miss. 1991). "This
Court will not determine where the preponderance of the evidence lies when the evidence is conflicting, the
assumption being that the Commission, as trier of fact, has previously determined which evidence is
credible, has weight, and which is not." Metal Trims Indus. v. Stovall, 562 So. 2d 1293, 1296 (Miss.
1990).
¶18. THE JUDGMENT OF THE CHICKASAW COUNTY CIRCUIT COURT IS AFFIRMED
AS TO DIRECT AND CROSS-APPEAL. ALL COSTS ARE TAXED TO THE APPELLANTS.
McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE,
IRVING, MYERS AND CHANDLER, JJ., CONCUR.
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