Lopez v. Zachry Constr. Corp.
| Docket Number: | 2009-WC-00123-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 11-10-2009 Opinion Author: LEE, P.J. Holding: AFFIRMED |
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| Additional Case Information: |
Topic: Workers' compensation - Permanent partial disability benefits Judge(s) Concurring: KING, C.J., MYERS, P.J., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ. Procedural History: Admin or Agency Judgment Nature of the Case: CIVIL - WORKERS’ COMPENSATION |
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| Trial Court: |
Date of Trial Judgment: 12-15-2008 Appealed from: Choctaw County Circuit Court Judge: Joseph H. Loper Disposition: CIRCUIT COURT AFFIRMED DECISION OF COMMISSION TO AWARD PERMANENT PARTIAL DISABILITY BENEFITS BUT TO DENY ANY FURTHER TEMPORARY TOTAL INDEMNITY BENEFITS Case Number: 2008-0066-CV-L |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | JUAN LOPEZ |
JOHN HUNTER STEVENS |
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| Appellee: | ZACHRY CONSTRUCTION CORPORATION AND ZURICH AMERICAN INSURANCE COMPANY | H. BYRON CARTER III | ||
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| Topic: | Workers' compensation - Permanent partial disability benefits |
| Summary of the Facts: | Juan Lopez filed a petition to controvert, alleging a work-related accident while employed with Zachary Construction Corporation. Zachary paid Lopez temporary total benefits. Lopez’s physician assigned a permanent impairment rating of 5% to the body as a whole and determined that Lopez’s date of maximum medical improvement was December 2, 2003. After a hearing, the administrative law judge determined that Lopez was due no further weeks of temporary total indemnity benefits after October 3, 2003, as Lopez admitted that he had failed to comply with medical treatment. In regard to the issue of permanent partial disability, the ALJ awarded Lopez permanent disability benefits of fifteen dollars per week beginning December 2, 2003, and continuing for 450 weeks. The Commission and circuit court affirmed. Lopez appeals. |
| Summary of Opinion Analysis: | Lopez argues that the decision of the Commission as to the award of permanent partial disability benefits was not supported by substantial evidence. If, after reaching maximum medical improvement, the claimant has not returned to work, the claimant must establish either that he has sought and been unable to obtain work in similar or other jobs or show that, upon his reaching maximum medical improvement, he reported back to his employer and the employer refused to reinstate or rehire him. After being laid off from his job with Zachary, Lopez worked for approximately two months installing tile, and for a short time, he worked as a translator. At the time of the hearing, Lopez testified that he had not looked for a job in the last eighteen to twenty-four months. According to the testimony, Lopez had been unemployed for approximately four years. The vocational expert periodically sent Lopez lists of available jobs. It is unclear from the record if Lopez applied for every job. However, Lopez made it clear during his testimony that he chose to stay at home and not seek employment. The ALJ ultimately found that Lopez had not satisfied his burden of seeking alternative employment. There is substantial evidence to support this decision. |
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