Gregg v. Natchez Trace Elec. Power Ass'n
| Docket Number: | 2009-WC-00699-COA Linked Case(s): 2009-WC-00699-COA ; 2009-CT-00699-SCT ; 2009-CT-00699-SCT |
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| Court of Appeals: |
Opinion Link Opinion Date: 06-08-2010 Opinion Author: Carlton, J. Holding: Affirmed |
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| 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. Concurs in Result Only: King, C.J. Procedural History: Admin or Agency Judgment Nature of the Case: CIVIL - WORKERS’ COMPENSATION |
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| Trial Court: |
Date of Trial Judgment: 04-14-2009 Appealed from: WEBSTER COUNTY CIRCUIT COURT Judge: Joseph H. Loper Disposition: AFFIRMED COMMISSION’S FINDING OF NO LOSS OF WAGE-EARNING CAPACITY Case Number: 2008-55-CVL |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Barry Gregg |
BENNIE L. TURNER |
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| Appellee: | Natchez Trace Electric Power Association and Electric Power Associations of Mississippi Workers' Compensation Group, Inc. | AMY K. TAYLOR | ||
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 - Loss of wage-earning capacity - Section 71-3-3(i) |
| Summary of the Facts: | Barry Gregg suffered a work-related injury during the course and scope of his employment with Natchez Trace Electric Power Association. The Mississippi Workers’ Compensation Commission adopted the administrative law judge's findings and award of temporary total disability benefits in the amount of $341.11 per week commencing on July 21, 2004, and concluding on May 2, 2006. The Commission’s decision was affirmed by the circuit court. Gregg appeals. |
| Summary of Opinion Analysis: | Gregg argues that as a result of his work-related injury, he suffered a loss of wage earning capacity; therefore, his loss of wage-earning capacity entitles him to permanent disability benefits. Section 71-3-3(i) defines disability as 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. Under the Act, the claimant bears the burden to prove an "industrial" disability. To meet this burden, the claimant must satisfy a two-pronged test by first establishing a medical impairment. Then the claimant must show that the medical impairment results in a loss of wage-earning capacity. The record shows that Gregg's post-injury average weekly earnings exceed his pre-injury earnings. Gregg attributes the increase in wages after his return to work to cost-of-living increases. However, no evidence appears in the record, other than Gregg's own testimony, to substantiate these cost-of-living increases or to establish the monetary amount received by Natchez Trace employees as a result of the increases. Gregg also submits that his employer's accommodation of his inability to climb amounts to "sympathy wages." However, Natchez Trace argues that it accommodated Gregg as a matter of policy – not generosity. Natchez Trace submits that its policy accommodates employees with medical restrictions. Gregg also submits that he would be earning a minimum of $1,006.72 per week, but for the work-related injury and resultant work restriction. However, the record again shows that Gregg's insufficient testimony provides the only evidence presented to the administrative law judge to rebut the presumption that he incurred no loss of wage-earning capacity. Gregg’s claims must rest on more than mere speculation to rebut the presumption of no loss of wage-earning capacity. Substantial evidence in the record supports the Commission’s decision. |
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