Adolphe Lafont USA, Inc., et al. v. Ayers
| Docket Number: | 2006-WC-01681-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 06-12-2007 Opinion Author: LEE, P.J. Holding: Affirmed |
|
| Additional Case Information: |
Topic: Workers’ compensation - Scope and course of employment - Deposition testimony - Notice of injury - Section 71-3-35(1) - Loss of wage earning capacity - Section 71-3-7 - Inability to return to former job Judge(s) Concurring: KING, C.J., MYERS, P.J., IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ. Procedural History: Admin or Agency Judgment Nature of the Case: CIVIL - WORKERS' COMPENSATION |
|
| Trial Court: |
Date of Trial Judgment: 08-31-2006 Appealed from: Copiah County Circuit Court Judge: Lamar Pickard Disposition: TRIAL COURT AFFIRMED COMMISSION’S ORDER AWARDING WORKERS’ COMPENSATION BENEFITS Case Number: 2006-0087 |
|
| Party Name: | Attorney Name: | |||
| Appellant: | H. TED CAIN D/B/A QUEST REHAB |
DARREN E. GRAY
JOHN R. REEVES |
||
| Appellee: | EARMIE AYERS | JOHNNY L. NELMS J. HENRY ROS |
|
|
Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
|
| Topic: | Workers’ compensation - Scope and course of employment - Deposition testimony - Notice of injury - Section 71-3-35(1) - Loss of wage earning capacity - Section 71-3-7 - Inability to return to former job |
| Summary of the Facts: | While employed as a bundler at Adolphe Lafont, Earmie Ayers was injured when she stepped in a hole. Ayers filed a petition to controvert with the Mississippi Workers’ Compensation Commission. The administrative law judge ordered that Adolphe and Legion Insurance Company pay temporary total disability benefits in the amount of $166.68 a week for two years and permanent total disability benefits of $166.68 a week for the 450 weeks following the two year period. Adolphe and Legion Insurance appealed, and the Commission affirmed the decision but struck the award of temporary total disability benefits. The Commission found that since Ayers was found to be permanently and totally disabled, she was not entitled to an additional award of temporary total disability benefits. The circuit court affirmed the Commission. Adolphe Lafont and Legion Insurance appeal. |
| Summary of Opinion Analysis: | Issue 1: Scope and course of employment Adolphe argues that Ayers’ back pain was not the result of an injury during the course and scope of her employment, because the only evidence of the accident was Ayers’ own testimony which was contradicted and unreliable. There is nothing in Ayers’ testimony that is contradictory or unreasonable to the point of unbelievability as Adolphe claims. The administrative law judge’s statement that Ayers was a credible and compelling witness is supported by substantial evidence. Witnesses for the company did not deny that Ayers told them of an accident but stated that they could not remember. Also, witnesses for the company testified that the floors in the plant were cracked and that someone could fall. With regard to any pre-existing back problems, no evidence was presented to show that this was the same pain as after the accident or that any prior back pain restricted her ability to work. Issue 2: Deposition testimony Adolphe argues that the Commission erred in basing its decision on the deposition testimony of the doctor who performed surgery on Ayers, because his opinions lacked credibility and were based upon incorrect assumptions as to Ayers’ job requirements given to him by the initial referring physician. However, the doctor’s testimony is not vague or lacking in medical probability. The doctor found a causal connection between the workplace injury and Ayers’ back condition. Issue 3: Notice of injury Section 71-3-35(1) requires that the employer receive actual notice within thirty days after the occurrence of an injury. However, absence of notice shall not bar recovery if it is found that the employer had knowledge of the injury and was not prejudiced by the employee’s failure to give notice. Adolphe argues that Ayers failed to give notice of the injury within thirty days and that it was prejudiced because it was unable to control costs of care or document whether the care was reasonable or necessary. While no uncontradicted testimony was presented that Ayers told her supervisor or employer of the injury, no clear proof was presented that she failed to tell them. Substantial evidence existed to support the Commission’s determination that even if Ayers did not notify her employer directly within thirty days, she is not barred from recovery because the employer had sufficient notice of the injury and was not prejudiced. Issue 4: Loss of wage-earning capacity Adolphe argues that Ayers retained some ability to earn wages and, thus, should not have been awarded permanent and total disability. To demonstrate total disability, the claimant must show that he has made a diligent effort, but without success, to obtain other gainful employment. The law is clear that once the claimant has made a prima facie case of total disability, the burden shifts to the employer to show that the employee’s efforts were not reasonable or constituted a mere sham. Ayers made inquiries into thirty to forty jobs, filling out applications where available. After reasonable efforts, she was unable to find employment. Thus, substantial evidence existed to support a finding that Ayers sustained a total loss of wage earning capacity. Adolphe also argues that Ayers’ heart condition should have been taken into consideration and the benefits should have been apportioned accordingly between the back pain and the heart condition. Under section 71-3-7, workers’ compensation benefits are reduced proportionately only where a pre-existing physical handicap or disease is shown by medical findings to be a material contributing factor in the results following injury. No medical evidence was presented that Ayers’ heart problems were a material contributing factor to her permanent restrictions as to lifting, standing, or sitting. Issue 5: Inability to return to former job Adolphe argues that the administrative law judge assumed that since Ayers was not offered a light duty position by Adolphe that she is presumed disabled. However, a reading of the ALJ’s decision does not support this argument. |
Home | Terms of Use | About the JDP | Feedback | Using JDP | MC Law Library | Mississippi Supreme Court
