Gill v. Harrah's Entm't, Inc.


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Docket Number: 2009-WC-01119-COA

Court of Appeals: Opinion Link
Opinion Date: 05-25-2010
Opinion Author: King, C.J.
Holding: Affirmed

Additional Case Information: Topic: Workers' compensation - Loss of wage-earning capacity - Section 71-3-3(I)
Judge(s) Concurring: Lee and Myers, P.JJ., Irving, Griffis, Barnes, Ishee, Roberts and Maxwell, JJ.
Procedural History: Admin or Agency Judgment
Nature of the Case: CIVIL - WORKERS’ COMPENSATION

Trial Court: Date of Trial Judgment: 06-22-2009
Appealed from: TUNICA COUNTY CIRCUIT COURT
Judge: Al Smith
Disposition: AFFIRMED THE MISSISSIPPI WORKERS’ COMPENSATION COMMISSION’S REDUCED AWARD OF BENEFITS
Case Number: 2009-0057-ABS

  Party Name: Attorney Name:   Brief(s) Available:
Appellant: Rebecca Gill




DAVID L. WALKER



 
  • Appellant #1 Brief

  • Appellee: Harrah's Entertainment, Inc., A Self-Insured Corporation GEORGE E. DENT  

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    Topic: Workers' compensation - Loss of wage-earning capacity - Section 71-3-3(I)

    Summary of the Facts: Rebecca Gill was injured on the job and thereafter applied for benefits through the Mississippi Workers’ Compensation Commission. The administrative law judge found that Gill had sustained a permanent-partial disability and suffered a twenty-percent loss of wage-earning capacity. The case was appealed to the Commission, and the Commission amended the ALJ’s order, awarding Gill only a ten-percent loss of wage-earning capacity. Both parties appealed to the trial court, and the trial court affirmed the Commission’s ruling. Gill appeals.

    Summary of Opinion Analysis: Gill argues that the trial court erred by affirming the Commission’s finding that she sustained only a ten-percent loss of wage-earning capacity, because the Commission failed to consider the substantial pay decrease that she sustained following her termination from Harrah’s. Pursuant to section 71-3-3(I), disability means incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or other employment, which incapacity and the extent thereof must be supported by medical findings. If the claimant proves that she is disabled and that disability is not specifically addressed by statute, then her disability is measured by a loss of wage-earning capacity. Once a prima facie case for total disability has been established, the employer bears the burden of proving that the claimant has suffered only a partial disability or no loss of wage-earning capacity. The doctor’s testimony established that Gill had sustained a herniated disc from her work-related injury, which he assigned a ten-percent impairment rating. Gill submitted proof that her post-injury wages were approximately thirty percent less than her pre-injury wages. Gill believes that her award should be equal to her loss in wages. However, in addition to Gill’s actual loss of wages, the Commission may consider other factors in its determination. In this case, the Commission considered Gill’s age, education, work experience, and the ten-percent impairment rating assigned by her doctor. There is some evidence that Gill may have exaggerated complaints of pain and that she did not fully participate in her functional-capacity exam. There is also some evidence to suggest that Gill did not exhaust her job opportunities through the vocational rehabilitation clinic. It is abundantly clear that the Commission gave Gill the benefit of the doubt and relied heavily upon the ten-percent impairment rating when making its decision to reduce her award of benefits. The Commission’s decision to reduce Gill’s award of permanent-partial disability benefits from a twenty-percent loss of wage-earning capacity to a ten-percent loss of wage-earning capacity was supported by substantial evidence.


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