Cole v. Ellisville State Sch.
| Docket Number: | 2009-WC-01768-COA Linked Case(s): 2009-WC-01768-COA |
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| Oral Argument: | 07-28-2010 | |
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| Court of Appeals: |
Opinion Link Opinion Date: 10-19-2010 Opinion Author: King, C.J. Holding: Reversed and rendered. |
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| Additional Case Information: |
Topic: Workers' compensation - Permanent-partial disability benefits - Section 71-3-17 - Substantial acts of usual employment Judge(s) Concurring: Lee and Myers, P.JJ., Griffis, Barnes, Ishee, Roberts and Maxwell, JJ. Concur in Part, Concur in Result 1: Irving, J., concurs in part and in the result without separate written opinion. Concurs in Result Only: Carlton, J., concurs in result only without separate written opinion. Procedural History: Admin or Agency Judgment Nature of the Case: CIVIL - WORKERS’ COMPENSATION |
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| Trial Court: |
Date of Trial Judgment: 08-11-2009 Appealed from: Jones County Circuit Court Judge: Billy Joe Landrum Disposition: AFFIRMED DECISION OF THE MISSISSIPPI WORKERS’ COMPENSATION COMMISSION REDUCING THE AWARD OF BENEFITS Case Number: 2009-06-CV4 |
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| Party Name: | Attorney Name: | |||
| Appellant: | Shirley Cole |
STEVEN HISER FUNDERBURG |
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| Appellee: | Ellisville State School | JOSEPH T. WILKINS III |
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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 benefits - Section 71-3-17 - Substantial acts of usual employment |
| Summary of the Facts: | Shirley Cole injured her left knee while performing her duties as a caretaker at Ellisville State School. Thereafter, she applied for disability benefits through the Mississippi Workers’ Compensation Commission. The administrative judge found that Cole had sustained a permanent-partial disability and awarded her full benefits for the scheduled member. Ellisville appealed the AJ’s decision to the full Commission. The Commission ruled that Cole had only sustained a fifty-percent permanent partial disability and amended the AJ’s order. Both parties appealed to the circuit court which affirmed. Both parties appeal. |
| Summary of Opinion Analysis: | In its cross-appeal, Ellisville argues that Cole’s award of disability benefits should have been limited to her twenty-five-percent impairment rating. Because Ellisville abandoned this issue during oral argument, it will not be addressed. The only issue which will be addressed is whether Cole is entitled to 175 weeks of permanent-partial disability benefits as awarded by the AJ or whether Cole is only entitled to 87.5 weeks of permanent-partial disability benefits as awarded by the Commission. Cole argues that the Commission improperly considered her loss of wage-earning capacity in her award of permanent-partial disability benefits. Ellisville argues that Cole made no effort to seek other employment, failing to prove a total loss of use of her leg; thus, the Commission did not err by reducing Cole’s award of benefits. Claimants asserting that an injury to a scheduled member caused them to have a permanent-total disability may pursue compensation under section 71-3-17(a). Under this subsection, the claimant may receive sixty-six and two-thirds percent of her salary for up to four hundred and fifty weeks. To demonstrate total disability, the claimant must show that she has made a diligent effort, but without success, to obtain other gainful employment. If the claimant does not claim a permanent-total disability, she may pursue compensation under section 71-3-17(c), which provides compensation for the loss of a scheduled member. In the case of the loss or loss of use of a leg, section 71-3-17(c) provides the claimant with sixty-six and two-thirds percent of her salary for up to one-hundred and seventy-five weeks. Under this subsection, compensation is based solely on the degree of disability to the scheduled member and does not take into account the effect of that disability on the claimant’s actual ability to earn wages in her post-injury condition. A claimant may seek two avenues of compensation under the scheduled-member statute: compensation based on the degree of functional loss, as previously addressed, and compensation based on the industrial loss of use of the member. Cole could have shown that she suffered a total industrial or occupational loss of use of her leg by either demonstrating an unsuccessful attempt to find other work or by demonstrating that she could not perform the substantial acts of her usual employment. Whether a claimant diligently, but unsuccessfully, sought other employment is typically a consideration in permanent-total disability cases, which Cole is not seeking. Nevertheless, Cole chose to demonstrate that she could not perform the substantial acts of her usual employment. The inquiry is whether Cole successfully demonstrated that she could not perform the substantial acts of her usual employment. The scope of ‘usual employment’ is broader than the job held at the time of the injury. For over a decade, Cole’s work was mainly focused in two areas – food service and as a caretaker. In food service and as a caretaker, Cole was required to walk and stand for prolonged periods of time and to lift heavy items and disabled persons. After Cole’s knee-replacement surgery, the doctor placed restrictions on Cole prohibiting prolonged walking and standing and lifting over twenty-five pounds. Cole testified that her injury prevented her from performing the substantial acts of her employment in food service and as a caretaker. Based on Cole’s injury and her restrictions, Cole is unable to perform the substantial acts of her usual employment in food service and as a caretaker. Thus, the Commission’s decision, which reduced Cole’s award of permanent-partial disability benefits, is reversed. |
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