Lott v. Hudspeth Ctr.
| Docket Number: | 2007-WC-01525-COA Linked Case(s): 2007-WC-01525-COA2007-CT-01525-SCT2007-CT-01525-SCT |
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| Oral Argument: | 04-10-2008 | |
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| Court of Appeals: |
Opinion Link Opinion Date: 09-30-2008 Opinion Author: Carlton, J. Holding: Reversed, Rendered and Remanded |
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| Additional Case Information: |
Topic: Workers’ compensation - Permanent total disability benefits - Section 71-3-17 - Reasonableness of job search Judge(s) Concurring: King, C.J., Lee and Myers, P.JJ., Irving, and Barnes, JJ. Dissenting Author : Griffis, J., with separate written opinion. Dissent Joined By : Chandler, Ishee, Roberts, JJ. Procedural History: Admin or Agency Judgment Nature of the Case: CIVIL - WORKERS’ COMPENSATION |
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| Trial Court: |
Date of Trial Judgment: 08-20-2007 Appealed from: MONTGOMERY COUNTY CIRCUIT COURT Judge: Joseph H. Loper Disposition: AFFIRMED RULING OF WORKERS’ COMPENSATION COMMISSION Case Number: 2006-0120CVL |
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| Note: | 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. This opinion was later reversed by the Supreme Court on 1/7/2010 and the judgment of the Montgomery Circuit Court was reinstated and affirmed. See the SCT opinion at: http://www.mssc.state.ms.us/Images/Opinions/CO60194.pdf | |
| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | MARTHA LOTT |
WILLIAM BENJAMIN RYAN |
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| Appellee: | HUDSPETH CENTER AND MISSISSIPPI STATE AGENCIES WORKERS’ COMPENSATION TRUST | WILLIAM BIENVILLE SKIPPER | ||
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| Topic: | Workers’ compensation - Permanent total disability benefits - Section 71-3-17 - Reasonableness of job search |
| Summary of the Facts: | Martha Lott sustained an injury to her right shoulder while assisting a patient at the Kilmichael Group Home, operated by Hudspeth Center. Lott sought treatment from an orthopedic specialist. The specialist released Lott at maximum medical improvement on June 29, 2004, without any work restrictions, and assessed Lott’s disability as a 10% impairment to her right upper extremity. Lott was not able to return to her job because her employment was terminated during her recovery from her injury. Lott filed her petition to controvert, claiming that she was entitled to permanent disability benefits in excess of the anatomical rating assigned by the specialist. The administrative law judge found that Lott was permanently disabled and required the employer to pay Lott total disability payments for a period of 450 weeks. The employer and carrier appealed to the Commission which reversed the administrative law judge and found that Lott was entitled to only 200 weeks of permanent partial disability benefits. Lott appealed to circuit court which affirmed. Lott appeals. |
| Summary of Opinion Analysis: | 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. Where 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. 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. 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. 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. 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. The Commission’s ruling focuses on Lott’s medical disability, finding that she retains some wage earning capacity despite her injury. However, the disability contemplated by the Act is an occupational disability, not a medical disability. Lott documented her job search. She applied for or inquired about 194 separate positions in her hometown, as well as surrounding communities. 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. 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. Lott’s employer did not present substantial evidence to rebut the presumption established by Lott that she was permanently totally disabled. Therefore, Lott is entitled, under section 71-3-17(a), to compensation equal to sixty-six and two thirds percent of her average weekly wage before her injury for a period of 450 weeks. |
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