Lifestyle Furnishings v. Tollison
| Docket Number: | 2006-WC-01993-COA Linked Case(s): 2006-WC-01993-SCT ; 2006-WC-01993-COA |
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| Court of Appeals: |
Opinion Link Opinion Date: 03-25-2008 Opinion Author: CHANDLER, J. Holding: REVERSED AND RENDERED |
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| Additional Case Information: |
Topic: Workers’ compensation - Permanent partial disability - Prima facie case of total disability - Reasonable efforts to find other employment Judge(s) Concurring: KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ. Procedural History: Admin or Agency Judgment Nature of the Case: CIVIL - WORKERS' COMPENSATION |
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| Trial Court: |
Date of Trial Judgment: 10-17-2006 Appealed from: LEE COUNTY CIRCUIT COURT Judge: Sharion R. Aycock Disposition: THE DECISION OF THE WORKERS' COMPENSATION COMMISSION DENYING PERMANENT DISABILITY WAS REVERSED AND REMANDED. Case Number: CV05-051(A)(L) |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | LIFESTYLE FURNISHINGS AND AMERICAN HOME ASSURANCE COMPANY |
LORI JORDAN GRAHAM |
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| Appellee: | JUDY R. TOLLISON | DON OLIVER GLEASON |
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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 partial disability - Prima facie case of total disability - Reasonable efforts to find other employment |
| Summary of the Facts: | Judy Tollison suffered a work-related shoulder injury during the course and scope of her employment with Lifestyle Furnishings. An administrative law judge determined that Tollison was permanently, totally disabled. The Mississippi Workers' Compensation Commission reversed this determination and awarded permanent partial disability benefits for Tollison's total loss of use of her arm. The circuit court reversed and reinstated the order of the administrative law judge. Lifestyle and its insurance carrier appeal. |
| Summary of Opinion Analysis: | The Commission determined that Tollison sustained an injury that permanently, totally prevents her occupational use of her arm, a scheduled member. Accordingly, the Commission awarded Tollison two hundred weeks of permanent partial disability benefits for the total loss of use of her arm. Lifestyle does not contest that award on appeal. Lifestyle's argument is that the Commission was supported by substantial evidence in rejecting Tollison's claim that she was permanently, totally disabled. The claimant has the burden of proving disability and the extent thereof. The claimant must make a prima facie showing that she has been unable to find work in the same or other employment. A claimant makes a prima facie case of total disability by showing reasonable efforts to find other employment. The claimant can also establish a prima facie case of total disability if the claimant, after reaching MMI, reports back to the employer for work and the employer refuses to reinstate or rehire her. The employer may present evidence (if any) showing that the claimant's efforts to obtain other employment were a mere sham, or less than reasonable, or without proper diligence. The Commission correctly found that Tollison had not established a prima facie case. Tollison reported back to work at Lifestyle, but she was unable to perform her former job. Lifestyle did not provide Tollison with work within her restrictions. The circuit court concluded from these facts that Tollison had established a prima facie case. However, to establish a prima facie case, the claimant must report back to work after reaching MMI. Tollison reported back to work in February 2003 before she reached MMI on March 10, 2003. The Commission found that no presumption of permanent, total disability arose because Tollison had failed to make reasonable efforts to find other employment. It is proper for the Commission to consider the claimant's diligence in its efforts to determine the extent of the claimant's permanent disability. Additionally, the claimant's commencement of his job search one month before the hearing has been found to support the Commission's finding that the job search was not reasonable. It appears that the Commission was convinced that Tollison's job search was insufficiently diligent to establish a total loss of wage-earning capacity given her age, work restrictions, education, skills, work experience, and the availability of employment in her geographic area. This finding was supported by the substantial evidence cited by the Commission in support of its decision. Thus, the decision was within the Commission's authority to make. |
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