Nissan North Amer., et al. v. Short


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Docket Number: 2005-WC-01522-COA

Court of Appeals: Opinion Link
Opinion Date: 11-14-2006
Opinion Author: GRIFFIS, J.
Holding: Affirmed

Additional Case Information: Topic: Workers’ compensation - Section 71-3-17 (25) - Loss of wage-earning capacity - Permanent partial disability
Judge(s) Concurring: KING, C.J., LEE AND MYERS, P.JJ., SOUTHWICK, IRVING, CHANDLER, BARNES, ISHEE AND ROBERTS, JJ.
Procedural History: Admin or Agency Judgment
Nature of the Case: CIVIL - WORKERS' COMPENSATION

Trial Court: Date of Trial Judgment: 03-03-2005
Appealed from: DeSoto County Circuit Court
Judge: Robert P. Chamberlin
Disposition: AFFIRMED THE RULING OF WORKERS’ COMPENSATION COMMISSION AWARDING $256.82 PER WEEK FOR 450 WEEKS FOR PARTIAL PERMANENT DISABILITY
Case Number: CV2004-0123RD

  Party Name: Attorney Name:  
Appellant: NISSAN NORTH AMERICA AND ROYAL INSURANCE COMPANY OF AMERICA




SIMPSON GRAY EDMONDSON, FRANKLIN WILLIAMS



 

Appellee: RICARDO V. SHORT BYRON RUSSELL MOBLEY, WILLIAM ALBERT BROWN  

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Topic: Workers’ compensation - Section 71-3-17 (25) - Loss of wage-earning capacity - Permanent partial disability

Summary of the Facts: While working at Nissan of North America, Ricardo Short suffered a back injury while unloading a courier truck. After surgery, the doctor released Short for work with the restriction of light duty. When he arrived back at Nissan, Short was informed that he was on lay-off status subject to re-hire. Short began to search for other employment and gained part-time employment at Oasis Imagining, Inc., and was later hired full-time. Short filed a claim for workers’ compensation benefits. The administrative law judge awarded Short $50 per week for 450 weeks for permanent partial disability. Short appealed to the Workers’ Compensation Commission which awarded Short $256.82 per week for 450 weeks. Both parties appealed to circuit court which affirmed the Commission. Nissan appeals.

Summary of Opinion Analysis: Issue 1: Controlling statute Nissan argues that the Commission misstated the controlling statute. Nissan argues that since this is an injury to the body as a whole, section 71-3-17 (25) applies. In its finding, the Commission incorrectly replaced post-injury wage-earning capacity, as stated in the statute, with actual post-injury wage. However, it appears that the Commission did not make its determination based solely on Short’s actual post-injury wages. The Commission discounted post-injury earnings as being “not necessarily determinative of wage earning capacity.” This tends to establish that the Commission’s misstatement of the governing statute was merely a scrivener’s error, since the Commission actually calculated a loss of earning capacity as required by the appropriate statute. Therefore, there is no merit to this issue. Issue 2: Loss of wage-earning capacity Nissan argues that the Commission was wrong in its application of case law, in the determination of Short’s loss of earning capacity. Factors the Commission should use to aid it in determining earning capacity include an increase in general wage levels, increased maturity or training, longer hours worked, sympathy wages, temporary and unpredictable character of post-injury earnings, employee's inability to work, employee's failure to be hired elsewhere, and the continuance of pain and other related circumstances. It does not appear that the Commission overlooked all other factors and focused on merely post-injury wages as suggested by Nissan. Instead, the Commission examined the numerous factors established by the supreme court and considered the evidence as a whole to reach its determination. The Commission also found that “[w]hile we admit that post-injury earnings are not necessarily determinative of wage earning capacity, they do create a presumption of wage earning capacity commensurate with the post-injury wage.” While such a presumption does exist in workers’ compensation cases, this presumption has normally been applied where the post-injury wage actually matched or exceeded the pre-injury wage. Nissan argues that the Commission improperly relied on the presumption and based its determination only on post-injury wages and not post-injury earning capacity as required by the statute. Short’s post-injury wage was a viable starting point according to the evidence. After being placed on layoff status by Nissan, Short diligently sought other employment. From these facts, the amount of wages Short received from Oasis Imaging, Inc., was a viable starting point for the determination of post-injury earning capacity. The Commission’s order stated that it took into account age, education, work history, geographic location and the claimant’s continued complaints of painful symptoms which impact his ability to perform his job in determining loss of wage-earning capacity. The Commission viewed the evidence as a whole and made an accurate finding of post-injury earning capacity. Nissan also argues that Short failed to return to work and is therefore not entitled to a finding of a loss of wage earning capacity. The record shows that Short has shown the requisite effort to seek employment from Nissan and other sources to preclude a finding of no partial permanent disability. Issue 3: Permanent partial disability Nissan argues that there is insufficient evidence to support the award. Short testified that he suffered continued pain from the injury. The Commission found that pain affected the ability of the employees’ earning capacity, making it more difficult to find future employment. Hence, there was substantial evidence to justify a finding of partial permanent disability. The record provides more than enough evidence from which the Commission could base its finding.


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