Matthew M. Walker v. Delta Steel Buildings
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2002-WC-00505-COA
MATTHEW M. WALKER
APPELLANT
v.
DELTA STEEL BUILDINGS AND BUILDERS AND
CONTRACTORS ASSOCIATION OF MISSISSIPPI
DATE OF TRIAL COURT JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEYS FOR APPELLANT:
ATTORNEY FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
CERTIORARI FILED:
MANDATE ISSUED:
APPELLEES
1/16/2002
HON. W. ASHLEY HINES
LEFLORE COUNTY CIRCUIT COURT
CHARLIE BAGLAN
LAWRENCE J. HAKIM
JOHN H. FREELAND
CIVIL - WORKERS' COMPENSATION
AFFIRMED AWARD BASED ON 35%
PERMANENT DISABILITY OF LEFT ARM
AFFIRMED - 10/21/2003
BEFORE SOUTHWICK, P.J., THOMAS AND IRVING, JJ.
SOUTHWICK, P.J., FOR THE COURT:
¶1.
This is a workers' compensation scheduled member case. The Commission awarded benefits
based strictly on the medical impairment, since the claimant is now earning a higher wage than he did at the
time of injury. The claimant argues that his present income is largely based on his employer's sympathy for
his plight and is not an accurate measure of his disability. We find the Commission to have substantial
evidence to support its conclusion. Therefore, we affirm.
¶2.
In September 1996, Matthew Walker was installing metal sheet roofing as an iron worker for Delta
Steel Buildings, Inc. He slipped and fell approximately fifteen feet onto the pavement. The contact
shattered Walker's left elbow. He also complained of pain in his left hip. Walker was provided medical
treatment and temporary benefits. Walker reached maximum medical improvement in June 1997. After
a hearing on Walker's petition to controvert, an administrative law judge awarded Walker benefits based
on permanent disability of 75% for his left arm. The Commission lowered the award to 35%. In the first
level appeal, the circuit court in Leflore County affirmed. Walker's subsequent appeal has been deflected
here.
DISCUSSION
¶3.
The proceedings below raise questions of medical and occupational loss to Walker's arm. At the
outset we note two important principles governing our review. First, the Commission and not the
administrative judge is the controlling finder of fact. Hardin's Bakeries v. Dependent of Harrell, 566 So.
2d 1261, 1264 (Miss. 1990). We defer to the Commission's findings even when it disagreed with the
administrative law judge. We will not disturb the findings if they are supported by substantial evidence.
KLLM, Inc. v. Fowler, 589 So. 2d 670, 675 (Miss. 1991). On questions of law, our review is de novo.
Id. Secondly, we recognize that the workers' compensation statutes are to be given "broad and liberal
construction," and doubtful cases should be resolved in favor of compensation. Meridian Prof'l Baseball
Club v. Jensen, 828 So. 2d 740, 744 (Miss. 2002).
1. Functional impairment
¶4.
In cases in which a claimant has suffered a scheduled member injury, the claimant is entitled to
benefits based on the greater of the functional or the industrial loss, if there is variance between the two.
Walker Mfg. Co. v. Cantrell, 577 So. 2d 1243, 1247-48 (Miss. 1991). Functional or medical
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impairment refers to actual physical limitations irrespective of their impact on one's ability to earn a living.
McGowan v. Orleans Furniture, Inc., 586 So. 2d 163, 166 (Miss. 1991). By contrast, industrial or
occupational disability is functional impairment "as it affects the claimant's ability to perform the duties of
employment." Id. Dr. Bruce Newell, Walker's treating physician, stated that after treatment and therapy,
Walker had reached maximum medical improvement on June 24, 1997. He rated the permanent medical
impairment at 35% of the left arm. Delta Steel had Walker examined by a second orthopaedic surgeon,
Dr. Owen Tabor, who assessed Walker as 10% functionally impaired in his left arm. The administrative
law judge noted the functional impairment ratings of both doctors, but ultimately held that Walker's
occupational impairment exceeded even the higher 35% rating posited by Newell. The Commission later
reduced the subsequent award to benefits based on this 35% functional impairment rating.
2. Occupational loss of use
¶5.
The administrative law judge concluded that Walker's experience as a heavy manual laborer,
coupled with Dr. Tabor's concerns over Walker's inability to carry heavy objects or continue working in
precarious positions on the roof, were evidence of physical limitation "more credible than the results of the
functional capacities evaluation, which are suspect because Mr. Walker did not give consistent responses
on the test." She therefore awarded benefits on the finding of 75% industrial loss of use of Walker's left
arm. On review, the Commission framed the question as "whether the evidence indicates sufficient loss of
wage earning capacity to support a finding of industrial disability beyond the medical impairment assigned
[Walker's] arm." Alumax Extrusions, Inc. v. Wright, 737 So. 2d 416, 421 (Miss. Ct. App. 1998). The
Commission noted Walker's medical evaluations by Tabor and Newell, as well as post-injury wages earned
by Walker as a carpenter. In diminishing the award to correspond to Dr. Newell's 35% functional
impairment rating, the Commission held:
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All things considered, we are convinced that Mr. Walker has demonstrated a post-injury
earning capacity of at least $11.00 to $11.50 per hour. This exceeds the average wage he
earned before his injury. Under the circumstances, therefore, his compensation for
permanent disability becomes a function of the medical/functional loss of the use of his arm.
3. Consideration of wage-earning capacity
¶6.
The crux of Walker's argument is that the Commission, in finding that Walker's occupational
disability did not surpass his functional impairment, incorrectly applied certain presumptions regarding
wage-earning capacity.
¶7.
A claimant may always receive benefits for a scheduled member injury based on the percentage
of loss of functional, i.e., medical, loss. If there is medical evidence that the claimant has a 35% permanent
loss of use of an arm, the claimant may receive benefits computed on that basis even if those physical
limitations do not affect the person's wage-earning capacity at all. Jensen, 828 So. 2d at 745. That has
been settled law.
¶8.
The more difficult question in Jensen was the proof that was necessary when a claimant sought
benefits for an industrial loss of use that was greater than what the medical evidence indicated were the
physical limitations. The Court clarified the principles governing claims based on this kind of variance. The
Court agreed with prior caselaw that a claimant was entitled to benefits based on a total loss of use of a
scheduled member if it was shown that the person was no longer able to perform the customary acts of that
person's usual employment. Id. at 746. The key conclusion in Jensen was that the "job at the time of
injury" is not "necessarily the 'usual employment.'" Id. at 747-48. Instead, the usual employment is
"broader in scope than the job held at the time of injury," and includes "jobs in which the claimant has past
experience, jobs requiring similar skills," or other jobs for which the worker is suited. Id. at 747.
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¶9.
The Jensen court then announced a rebuttable presumption that would apply in such a case.
Evidentiary presumptions are short-cuts in proof. If certain predicate facts are shown to exist, then the
ultimate fact will be presumed, subject to rebuttal from the opposing party. The presumption here would
be that in a scheduled member case, if the claimant presents evidence that he or she is "unable to continue
in the position held at the time of injury," that "inability creates a rebuttable presumption of total
occupational loss of the member, subject to other proof of the claimant's ability to earn the same wages
which the claimant was receiving at the time of injury." Id.
¶10.
Since the earlier quoted explanation of "usual employment" indicates that this is a broader term than
just the position at the time of injury means, this presumption becomes available even though the claimant
has not addressed the ability to engage in the broadly defined usual employment. All that must be shown
is an inability "to continue in the position held at the time of injury." The employer may then rebut by
exploring the broad category of usual employment, and the claimant may address those issues as well. Id.
at 747-48.
¶11.
We acknowledge that another sentence that appears in this discussion in Jensen could be read to
suggest a higher threshold of proof needed for the presumption:
The presumption arises when the claimant establishes that he has made a reasonable effort
but has been unable to find work in his usual employment, or makes other proof of his
inability to perform the substantial acts of his usual employment.
Id. This seems to indicate that the presumption does not arise until the claimant presents proof on the
entirety of "usual employment," not just on the claimant's inability to return to the "job at the time of injury."
As the Jensen court had already concluded that the two quoted terms were not synonymous, this sentence
does create some ambiguity.
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¶12.
One interpretation is if the claimant also showed reasonable but unsuccessful efforts to find work
in his usual employment, this would be another though more arduous means to create the presumption. We
do not find that this quoted sentence removes the Court's preceding statement that inability to return to the
job held at the time of injury creates a rebuttable presumption of total occupational loss of the member.
We make that conclusion for three reasons.
(1) A rebuttable presumption is supposed to assist the presentation of evidence by avoiding the
need for direct proof of certain facts in order to establish a prima facie case. If the presumption
does not arise until evidence on the entire range of issues is presented, then no presumption is in
operation.
(2) A later sentence in Jensen says that applying "this opinion's analysis to Jensen's claim indicates
that he established, or very nearly established, that he could no longer perform the substantial acts
of his actual employment at the time of his injury." Id. at 749 (emphasis added). Then the Court
states that the remaining evidence revealed little impact from the injury on Jensen's ability to earn
the wages that he was making when injured. This reference to "actual employment" is a refocus
on the employment at the time of injury, not on the broader "usual employment" category that is
clearly defined in Jensen.
(3) There already is a related presumption in workers' compensation law. When a worker with
a permanent impairment is not allowed to return to work by his former employer after the claimant
reaches maximum medical improvement, that creates a prima facie case of total disability. John
R. Bradley and Linda Thompson, Workers' Compensation Law, in 9 ENCY. MISS. LAW §76:63
(2001), citing Jordan v. Hercules, 600 So. 2d 179 (Miss. 1992). Apparently this has only or at
least usually been applied in nonscheduled member cases. The Jensen presumption as we have
interpreted it is analogous: when the injury is to a scheduled member, the refusal of the former
employer to rehire due to the injury creates the prima facie case of a total inability to use that
scheduled member.
¶13.
Under such a reading, Walker presented evidence to invoke the presumption. Delta Steel would
not take him back in his former position because of physical limitations. The employer then presented
evidence on Walker's present work and equivalent income. The undisputed evidence demonstrates that
while he could not return to his pre-injury position as a heavy roof installer, his subsequent $11 to $11.50
post-injury hourly wage is actually higher than his wage at Delta Steel prior to his injury. The carpentry
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position held post-injury satisfies the Jensen requirements for "usual employment," that is, "jobs in which
the claimant has past experience, jobs requiring similar skills, or jobs for which the worker is otherwise
suited by his age, education, experience, and any other relevant factual criteria." Id.
¶14.
Even if this rebuttal removes the Jensen presumption, Walker argues that he is making this
substantial of an income only because of the benevolence of his new employer. Before discussing the
evidence of a sympathy wage, we look at the principle on which Walker relies:
post-injury earnings equal to or in excess of pre-injury earnings are strong evidence of nonimpairment of earning capacity, but that the presumption arising therefrom may be
rebutted by evidence on the part of the claimant that the post-injury earnings are
unreliable due to: increase in general wage levels since the time of accident, claimant's
own greater maturity and training, longer hours worked by claimant after the accident,
payment of wages disproportionate to capacity out of sympathy to claimant, and the
temporary and unpredictable character of post-injury earnings.
McKinnon, 507 So. 2d at 365 (some emphasis in original deleted).
¶15.
Walker testified that but for his friend at Patton and Taylor Construction, he would not have
received his present position. The record indicates also that Walker had been previously employed at
Patton and Taylor. There is nothing to indicate whether Walker's wages at Patton and Taylor are
disproportionate to either the work that he performed or the customary wage for the position. The
Commission found that though there was evidence that Walker experienced some pain from his elbow in
the job, "he is nonetheless able to satisfactorily and consistently perform this work. This is consistent with
the findings of a functional capacity examination which demonstrated that Mr. Walker is capable of
performing heavy to very heavy work." This rebuts the evidence that sympathy to some degree affected
the wage that Walker was being paid.
¶16.
The record contains substantial evidence rebutting a presumption of total occupational loss. There
was also substantial evidence to deny Walker's claim of sympathy wages. We find no error.
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¶17. THE JUDGMENT OF THE CIRCUIT COURT OF LEFLORE COUNTY IS
AFFIRMED. ALL COSTS ARE ASSESSED TO THE APPELLANT.
McMILLIN, C.J., KING, P.J., BRIDGES, THOMAS, LEE, IRVING, MYERS,
CHANDLER AND GRIFFIS, JJ., CONCUR.
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