McDowell v. Smith, et al.
| Docket Number: | 2001-WC-01136-COA Linked Case(s): 2001-CT-01136-SCT ; 2001-WC-01136-COA |
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| Court of Appeals: |
Opinion Link Opinion Date: 06-17-2003 Opinion Author: Thomas, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Workers’ compensation - Permanent occupational disability benefits - Section 71-3-17(a) Judge(s) Concurring: McMillin, C.J., King and Southwick, P.JJ., Bridges, Lee, Irving, Myers and Chandler, JJ. Non Participating Judge(s): Griffis, J. Procedural History: Admin or Agency Judgment Nature of the Case: CIVIL - WORKERS' COMPENSATION |
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| Trial Court: |
Date of Trial Judgment: 03-08-2001 Appealed from: Warren County Circuit Court Judge: Frank G. Vollor Disposition: Affirmed Case Number: 0134-CI-V |
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| Party Name: | Attorney Name: | |||
| Appellant: | Sylvester McDowell |
R. CHARLES ROBB |
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| Appellee: | G. B. "Boots" Smith and Lumbermen's Underwriting Alliance | JOSEPH T. WILKINS III |
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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. |
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| Topic: | Workers’ compensation - Permanent occupational disability benefits - Section 71-3-17(a) |
| Summary of the Facts: | Sylvester McDowell sustained a work related injury to his left foot while employed with G. B. Smith as a laborer. McDowell filed a workers' compensation claim and was awarded twelve and one half weeks of compensation. He appealed to the Full Commission which remanded the case. On remand, the administrative law judge awarded McDowell fifty weeks of compensation at $243.75 per week in addition to the twelve and one half weeks previously ordered. McDowell appealed to the Full Commission which affirmed and then to circuit court which also affirmed. McDowell appeals. |
| Summary of Opinion Analysis: | The issue in this case is whether McDowell is eligible for permanent occupational disability benefits or is limited to benefits based on a scheduled member injury. According to section 71-3-17(a), benefits are due only in case of total disability adjudged to be permanent, and loss of both hands, or both arms, or both feet, or both legs, or both eyes, or of any two thereof constitutes permanent total disability. The post-injury capacity to earn wages at other employment, even at a diminished level, is enough to defeat a claim for permanent total disability. McDowell did not suffer a permanent and total occupational disability because he continued to work at a service station earning $200 per week. In order to be considered for compensation under section 71-3-17(a), McDowell would have to demonstrate that his injuries when considered in the context of other relevant circumstances including, but not limited to, age, education level, and prior work experience, rendered him totally occupationally disabled from any form of gainful employment, which he has failed to do. |
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