Martha Lott v. Hudspeth Center
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2007-WC-01525-COA
MARTHA LOTT
APPELLANT
v.
HUDSPETH CENTER AND MISSISSIPPI STATE
AGENCIES WORKERS’ COMPENSATION
TRUST
APPELLEES
DATE OF JUDGMENT:
08/20/2007
TRIAL JUDGE:
HON. JOSEPH H. LOPER, JR.
COURT FROM WHICH APPEALED: MONTGOMERY COUNTY CIRCUIT
COURT
ATTORNEY FOR APPELLANT:
WILLIAM BENJAMIN RYAN
ATTORNEY FOR APPELLEES:
WILLIAM BIENVILLE SKIPPER
NATURE OF THE CASE:
CIVIL - WORKERS’ COMPENSATION
TRIAL COURT DISPOSITION:
AFFIRMED RULING OF WORKERS’
COMPENSATION COMMISSION
DISPOSITION:
REVERSED, RENDERED, AND
REMANDED-09/30/2008
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC.
CARLTON, J., FOR THE COURT:
¶1.
Martha Lott appeals the judgment of the Montgomery County Circuit Court, which
affirmed the decision of the Mississippi Workers’ Compensation Commission (Commission),
awarding her permanent partial disability benefits for the 100% loss of use of her arm.
FACTS
¶2.
On May 15, 2003, Lott sustained an injury to her right shoulder while assisting a
patient at the Kilmichael Group Home, operated by Hudspeth Center. Lott filed the
appropriate paperwork to report her injury and sought treatment from Dr. Asa Bennett, an
orthopedic specialist. Dr. Bennett diagnosed Lott as having a torn rotator cuff, and he
performed surgery to repair the injury on October 6, 2003. He also prescribed physical
therapy for Lott. Dr. Bennett released Lott at maximum medical improvement on June 29,
2004, without any work restrictions. Dr. Bennett assessed Lott’s disability as a 10%
impairment to her right upper extremity. Lott was not able to return to her job at the
Kilmichael Group Home because her employment was terminated during her recovery from
her injury.
¶3.
After being discharged by Dr. Bennett, Lott filed her petition to controvert, claiming
that she was entitled to permanent disability benefits in excess of the anatomical rating
assigned by Dr. Bennett. Lott was then referred, by her attorney, to Kay Cannon for a
functional capacity evaluation (FCE). After the FCE, Cannon found that Lott could return
to work at a sedentary-light physical demand level. Cannon also noted that Lott was limited
by “very poor body mechanics” and was self-limited by her pain.
¶4.
Lott was then sent to Dr. David Collipp for another evaluation. Dr. Collipp prescribed
physical therapy and scheduled Lott for another FCE to measure the success of physical
therapy. After the second FCE, Lott’s only limitation, according to Dr. Collipp, was that she
was unable to lift 100 pounds. Dr. Collipp found that Lott could return to work with a
maximum lifting limit of 60 pounds.
¶5.
Lott corresponded with Ann Allen, a vocational rehabilitation counselor with F.A.
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Richards and Associates, who advised Lott on a few occasions about available jobs in Lott’s
area. Lott sent resumes and/or completed job applications to nearly all of the employers
suggested by Allen, but she received no offers. She did not send a resume for one job as a
metal fabricator, because she did not know what that position was and had no experience in
that field. Additionally, Lott initiated her own search for employment in her own and
surrounding communities.
¶6.
A hearing was conducted on July 6, 2005, to determine whether and to what extent
Lott had any permanent disability. Lott’s medical records were admitted into evidence, as
were the reports of Cannon and Dr. Collipp. David Stewart, a vocational expert, testified that
Lott was able to perform some work, but only sedentary to light work. Stewart based his
opinion on the first FCE, and he did not consider the FCE conducted by Dr. Collipp. Further,
Stewart testified that it is his practice to help clients find employment when requested to do
so, but Lott never requested his services in finding employment. Stewart also testified that
the unemployment rate in Montgomery County was higher than the state average, and that
factor limited Lott’s employment opportunities as much as her injury did.
¶7.
After the hearing, the administrative law judge found that Lott was permanently
disabled and in accordance with Mississippi Code Annotated section 71-3-17(a) (Rev. 2000),
required the employer to pay Lott total disability payments for a period of 450 weeks. The
employer and carrier appealed to the Commission. After oral arguments, the Commission
reversed the administrative law judge and found that Lott was entitled to only 200 weeks of
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permanent partial disability benefits, which is the maximum for her scheduled members’
injury under Mississippi Code Annotated section 71-3-17(c) (Rev. 2000).
¶8.
Lott appealed the Commission’s decision to the Circuit Court of Montgomery County,
which affirmed the Commission. Feeling aggrieved once again, Lott appealed that decision
and is now before this Court.
DISCUSSION
¶9.
Lott argues that the circuit court erred in affirming the Commission’s decision that she
was only entitled to disability benefits equivalent to 100% loss to her arm, as opposed to
permanent total disability benefits, even after it was established that she was unable to find
work despite 194 documented efforts to find employment.
¶10.
The standard of review in a worker’s compensation appeal is limited. This Court must
determine only whether the decision of the Commission is supported by substantial evidence.
Casino Magic v. Nelson, 958 So. 2d 224, 228 (¶13) (Miss. Ct. App. 2007) (citing
Westmoreland v. Landmark Furniture, Inc., 752 So. 2d 444, 447 (¶7) (Miss. Ct. App. 1999)).
“The Commission sits as the ultimate finder of facts; its findings are subject to normal,
deferential standards upon review.” Id. (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.” Id. (citing
Westmoreland, 752 So. 2d at 448 (¶8)). We maintain this deferential standard even when we
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would have been persuaded to rule otherwise if we had been the fact-finder. Vance v. Twin
River Homes, 641 So. 2d 1176, 1180 (Miss. 1994) (quoting Fought v. Stuart C. Irby Co., 523
So. 2d 314, 317 (Miss. 1988)). Though we defer to the Commission’s findings of fact, “[w]e
review the Commission's application of the law de novo.” Univ. of Miss. Med. Ctr. v. Smith,
909 So. 2d 1209, 1218 (¶30) (Miss. Ct. App. 2005) (citing ABC Mfg. v. Doyle, 749 So. 2d 43,
45 (¶10) (Miss. 1999)). “Certainly the legal affect [sic] of the evidence, and the ultimate
conclusions drawn by an administrative tribunal from the facts . . . are questions of law,
especially where the facts are undisputed or the overwhelming evidence reflects them. The
question depends then upon application of established legal principles to such facts.” Cent.
Elec. Power Ass’n v. Hicks, 236 Miss. 378, 388-89, 110 So. 2d 351, 356 (1959).
¶11.
On appeal, Lott argues that the Commission erred in concluding that she was not
entitled to permanent and total disability benefits under Mississippi Code Annotated section
71-3-17(a). Specifically, Lott argues that she carried her burden in establishing a good faith
job search effort, after which, she argues, the burden shifted to the employer and carrier to
establish that her job search efforts were a sham or not in good faith. Lott argues that the
Commission misapplied the applicable Mississippi law, and this Court, therefore, should not
defer to the Commission’s findings.
¶12.
Mississippi Code Annotated section 71-3-17(a) and (c), in part, state:
(a) Permanent total disability: In case of total disability adjudged to be
permanent, sixty-six and two-thirds percent (66-2/3%) of the average weekly
wages of the injured employee, subject to the maximum limitations as to
weekly benefits as set up in this chapter, shall be paid to the employee not to
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exceed four hundred fifty (450) weeks or an amount greater than the multiple
of four hundred fifty (450) weeks times sixty-six and two-thirds percent (662/3%) of the average weekly wage for the state. Loss of both hands, or both
arms, or both feet, or both legs, or both eyes, or of any two (2) thereof shall
constitute permanent total disability. In all other cases permanent total
disability shall be determined in accordance with the facts.
(c) Permanent partial disability: In case of disability partial in character but
permanent in quality, the compensation shall be sixty-six and two-thirds
percent . . . of the average weekly wages of the injured employee, subject to the
maximum limitations as to weekly benefits as set up in this chapter, which shall
be paid following compensation for temporary total disability paid in
accordance with subsection (b) of this section, and shall be paid to the
employee as follows:
Member Lost
(1) Arm
Number Weeks Compensation
200
The Commission determined Lott’s disability to be a permanent partial disability under
Mississippi Code Annotated section 71-3-17(c). Under that subsection, Lott’s loss of use of
her arm entitled her to only 200 weeks of benefits.
¶13.
The Mississippi Supreme Court has held that “[w]here an employee suffers an injury
covered by the schedule in Section 71-3-17(c) and where that injury results in a permanent
loss of wage[-]earning capacity within Section 71-3-17(a), the latter section controls
exclusively and the employee is not limited to the number of weeks of compensation
prescribed in Section 71-3-17(c)’s schedule.” Smith v. Jackson Constr. Co., 607 So. 2d 1119,
1128 (Miss. 1992). The Mississippi Workers’ Compensation Act (MWCA) defines disability
as “incapacity because of injury to earn the wages which the employee was receiving at the
time of injury in the same or other employment . . . .” Miss. Code Ann. § 71-3-3(i) (Rev.
6
2000). Further, that “incapacity and the extent thereof must be supported by medical
findings.” Id. “Factors to be considered in determining loss of wage-earning capacity include
the amount of education and training that the claimant has had, his inability to work, his
failure to be hired elsewhere, the continuance of pain, and any other related circumstances.”
Alumax Extrusions, Inc. v. Wright, 737 So. 2d 416, 422 (¶16) (Miss. Ct. App. 1998) (citing
McGowan v. Orleans Furniture, Inc., 586 So. 2d 163, 167 (Miss. 1991)).
¶14.
In Thompson v. Wells-Lamont Corp., 362 So. 2d 638, 641 (Miss. 1978), the supreme
court held that once the claimant has made a prima facie case showing a good faith search for
employment, the burden shifts to the employer to show that the claimant’s efforts were “a
sham, or less than reasonable, or without proper diligence.” See also Sherwin Williams v.
Brown, 877 So. 2d 556, 559 (¶12) (Miss. Ct. App. 2004) (citing Georgia Pacific Corp. v.
Taplin, 586 So. 2d 823, 828 (Miss. 1991)). Further, the reasonableness of a claimant’s job
search includes a “consideration of job availability and economics in the community, the
claimant’s skills and background, and the nature of the disability.” Brown, 877 So. 2d at 558
(¶11) (citing Taplin, 586 So. 2d at 828)). The Commission made no findings regarding
whether Lott had made a prima facie case of total disability and whether her employer had
met its burden in showing her efforts were unreasonable. Therefore, we find “that the
Commission erred as a matter of law in not employing the proper legal standard[,] and it is
proper for this Court to conduct a de novo review of the Commission’s findings of fact in
light of the applicable law.” Hale v. Ruleville Health Care Ctr., 687 So. 2d 1221, 1227 (Miss.
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1997).
¶15.
The Commission considered the depressed economic conditions and shortage of jobs
in Lott’s community and held this factor against Lott. The Commission found that Lott
retained “significant functional abilities which, when coupled with her age, education, and
past work history, drives the conclusion that she retains some earning capacity, her
unsuccessful job search to date notwithstanding.”1 The Commission further found that
“[g]iven the economic realities where she lives, Ms. Lott may have to be more persistent in
her effort to find work, but the medical, vocational and other evidence does not convince us
that she is totally unable to earn wages as a result of the injury to her right shoulder.” The
Commission’s ruling focuses on Lott’s medical disability, finding that she retains some wageearning capacity despite her injury. However, our supreme court held in Marshall Durbin,
Inc. v. Hall, 490 So. 2d 877, 880 (Miss. 1986), that:
The disability contemplated by the Act is an occupational disability, not a
medical disability. An employee is entitled to compensation to the extent that
1
See John R. Bradley and Linda R. Thompson, Mississippi Worker's Compensation
§ 5:28 (Thompson-West 2006), analyzing our supreme court’s holding in Barnes v. Jones
Lumber Co., 637 So. 2d 867 (Miss. 1994). The authors note that the supreme court held that
the Commission improperly applied the law of what constitutes proof of lost wage-earning
capacity when it stated that the employee with a high school education “should be able to
secure some type of gainful employment.” Id. The supreme court reversed the
Commission’s finding that Barnes should be able to find a job because the finding was not
supported by evidence in the record, and Barnes had established a prima facie case of total
loss of wage-earning capacity. Id. The actual availability of other work is the indicator of
post injury wage-earning capacity, not the hunch that work is available. Id. Bradley and
Thompson also point to McDonald v. I.C. Isaacs Newton Co., 879 So. 2d 486 (Miss. Ct. App.
2004), “which emphatically makes the point that unavailability of work is the test of total
disability, not the extent of impairment.” Id. n.4.
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he has been incapacitated to earn wages. That an injured employee retains
substantial functional abilities in no way undercerts [sic] the conclusion that he
may be totally occupationally disabled.
(Internal citations omitted).
¶16.
Lott documented her job search. She applied for or inquired about 194 separate
positions in her hometown, as well as surrounding communities. Lott also applied with her
former employers that were still in existence. Lott’s attempts to find employment had
differing results. Some potential employers told her they simply were not hiring. Others
required lifting she would not be able to do. Still others, she says, had negative reactions
when she informed them that she lost her previous job due to a workplace injury. Most of the
employers Lott applied with were not hiring. Of the 194 applications or inquiries, Lott was
offered one job at the Indywood Glen Personal Care Home. When Lott revealed her injury,
she was informed that she would not be given the job.
¶17.
Lott was sixty-one years old at the time of the hearing. She has only a high school
education, and her prior work experience consisted of mainly factory and manual labor, with
the exception of sixteen years she spent as a teacher’s assistant. Further, Stewart, one of the
vocational rehabilitation counselors, testified at the hearing that Lott had experienced a 9395% loss of access to the job market. The evidence presented at the hearing shows that
despite diligent efforts to find employment, Lott was unable to find work following her
injury. Lott was questioned at the hearing about why she had not filed an application to
become a teacher’s assistant. Lott responded that she had inquired about that position, but
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she was informed that there were no openings for a teacher’s assistant. She then applied to
work in the school cafeteria and as a custodian; she was not hired. At the hearing before the
administrative law judge, the employer/carrier questioned Lott about her being able to babysit
for her grandchildren during the day, and she explained that they were old enough to do most
things for themselves. Furthermore, Lott applied to work in a childcare center, but she was
not offered employment. The employer/carrier also questioned Lott about a Wal-Mart
application in which she limited her available hours from 7:00 a.m. until 2:00 p.m. Lott
explained that the application asked the applicants to state which hours they preferred to
work. In that same application, Lott indicated that she would be available to work evenings
as well as Saturdays and Sundays. Lott also sought employment with the Wal-Mart stores
in Winona and in Grenada; she updated those applications several times.
¶18.
Lott’s effort in applying for 194 jobs clearly indicates a good faith, yet unsuccessful,
job search. Lott made a prima facie case showing a good faith search for employment. The
burden then shifted to her employer to show that her efforts were not reasonable or were
deceitful. Thompson, 362 So. 2d at 641. Lott’s employer did not present substantial
evidence to rebut the presumption established by Lott that she was permanently totally
disabled.
¶19.
We find that Lott has made a prima facie showing of permanent total disability that
her employer has failed to rebut. Therefore, we render judgment that Lott is entitled, under
Mississippi Code Annotated section 71-3-17(a), to compensation equal to sixty-six and two-
10
thirds percent of her average weekly wage before her injury for a period of 450 weeks.
Accordingly, we reverse the Commission’s decision and remand this cause to the
Commission for a calculation of benefits to be paid to Lott, consistent with this opinion.
¶20. THE JUDGMENT OF THE CIRCUIT COURT OF MONTGOMERY COUNTY
IS REVERSED AND RENDERED AS TO LOTT’S ENTITLEMENT UNDER
MISSISSIPPI CODE ANNOTATED SECTION 71-3-17(a) (REV. 2000) AND
REMANDED TO THE COMMISSION FOR CALCULATION OF THE BENEFITS
DUE TO LOTT IN ACCORDANCE WITH THIS OPINION. ALL COSTS OF THIS
APPEAL ARE ASSESSED TO THE APPELLEES.
KING, C.J., LEE AND MYERS, P.JJ., IRVING AND BARNES, JJ., CONCUR.
GRIFFIS, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY
CHANDLER, ISHEE AND ROBERTS, JJ.
GRIFFIS, J., DISSENTING:
¶21.
I must respectfully dissent from the majority’s decision to reverse the judgment of the
circuit court and reinstate the order of the administrative law judge. I do not agree with the
majority’s conclusion that the Commission applied an incorrect legal standard. Thus, in
accordance with this Court’s extremely limited scope of review, I would affirm the circuit
court’s judgment.
¶22.
The majority holds that the Commission erred as a matter of law by not employing the
proper legal standard because it “made no findings regarding whether Lott had made a prima
facie case of total disability and whether her employer had met its burden in showing her
efforts were unreasonable.” I find this conclusion to be in error because the Commission did
find that Lott failed to prove a loss of wage-earning capacity; thus, her burden of showing a
prima facie case of total disability was not met.
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¶23.
“Whether the claimant has made out a prima facie case is a question to be decided by
the trier of facts on the evidence presented.” Thompson v. Wells-Lamont Corp., 362 So. 2d
638, 641 (Miss. 1978). In other words, “a Commission[’s] determination of disability
constitutes a finding of fact.” Georgia Pacific Corp. v. Taplin, 586 So. 2d 823, 828 (Miss.
1991). Therefore, the decision of whether Lott put forth a prima facie showing of permanent
total disability was an issue to be determined exclusively by the Commission. Here, the
Commission clearly held that, based on the entirety of the evidence, it was “unable to
conclude that Ms. Lott is permanently and totally disabled as the result of the injury to her
right arm.”
¶24.
It is true that a claimant may establish a prima facie case by showing that, despite a
reasonable job search, she is unable to find the same or similar employment. Pontotoc Wire
Prods. Co. v. Ferguson, 384 So. 2d 601, 603 (Miss. 1980) (citation omitted). However, the
supreme court has held that “[a] conclusion that the employee is disabled rests on a finding
that the claimant could not obtain work in similar or other jobs and that the claimant's
unemployability was due to the injury in question.” Taplin, 586 So. 2d at 828 (emphasis
added).
¶25.
Here, it is evident that Lott conducted an extensive and reasonable search for other
employment. Despite 194 separate applications or inquiries about positions, she was unable
to find work. However, the Commission, in its role as fact-finder, found that Lott’s failure
to secure employment was unrelated to her injury. Moreover, there is substantial evidence
12
in the record to support this finding. Dr. Bennett released Lott without any work restrictions.
After Lott’s most recent FCE, following physical therapy, the only limitation imposed is that
Lott could no longer lift 100 pounds. Instead, she was restricted to a sixty-pound maximum.
¶26.
The Commission concluded that Lott was unable to find employment due “to the
depressed economic conditions in the area where she lives, and not to the injury itself.” This
conclusion was based on substantial evidence presented by Lott’s expert who testified that
the unemployment rate in Lott’s county of residence was higher than the state average and
that Lott’s inability to find work was limited as much by the local economy as by her injury.
¶27.
As the majority states, “[w]here an employee suffers an injury covered by the schedule
in [s]ection 71-3-17(c) and where that injury results in a permanent loss of wage[-]earning
capacity within [s]ection 71-3-17(a), the latter section controls exclusively and the employee
is not limited to the number of weeks of compensation prescribed in [s]ection 71-3-17(c)’s
schedule.” Smith v. Jackson Constr. Co., 607 So. 2d 1119, 1128 (Miss. 1992) (emphasis
added). It is the Commission that weighs the factors to determine a loss of wage-earning
capacity – the amount of education and training the claimant has, the inability to work, the
failure to be hired elsewhere, the continuance of pain, and other related circumstances.
Alumax Extrusions Inc. v. Wright, 737 So. 2d 416, 422 (¶16) (Miss. Ct. App. 1998). Here,
the Commission weighed the evidence before it and determined that Lott was not
permanently and totally disabled as a result of the injury to her right arm. Further, the
Commission found that “the medical, vocational and other evidence does not convince us that
13
[Lott] is totally unable to earn wages as a result of the injury”; therefore, Lott did not prove
a permanent loss of wage-earning capacity as required to receive more than the scheduled
number of weeks of compensation set forth in section 71-3-17(c).
¶28.
I find that there was more than enough substantial evidence to support the
Commission’s finding that Lott did not establish a prima facie case of permanent total
disability due to her injury. As such, I would affirm the circuit court’s judgment upholding
the decision of the Commission.
CHANDLER, ISHEE AND ROBERTS, JJ., JOIN THIS SEPARATE OPINION.
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