Tew v. Siemens Power Transmission


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Docket Number: 2009-WC-01150-COA
Linked Case(s): 2009-WC-01150-COA

Court of Appeals: Opinion Link
Opinion Date: 11-16-2010
Opinion Author: Lee, P.J.
Holding: Affirmed.

Additional Case Information: Topic: Workers' compensation - Wage earning capacity - Post-injury wages - Section 71-3-17(c)(25)
Judge(s) Concurring: King, C.J., Myers, P.J., Irving, Griffis, Barnes, Ishee, Roberts and Carlton, JJ.
Non Participating Judge(s): Maxwell, J.
Procedural History: Admin or Agency Judgment
Nature of the Case: CIVIL - WORKERS’ COMPENSATION

Trial Court: Date of Trial Judgment: 06-12-2009
Appealed from: RANKIN COUNTY CIRCUIT COURT
Judge: Samac Richardson
Disposition: AFFIRMED DECISION OF COMMISSION TO AWARD PERMANENT PARTIAL DISABILITY BENEFITS
Case Number: 2009-0094-R

  Party Name: Attorney Name:  
Appellant: Allan J. Tew




GILSON DAVIS PETERSON



 

Appellee: Siemens Power Transmission and Liberty Mutual Insurance Co. WILLIAM BIENVILLE SKIPPER  

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Topic: Workers' compensation - Wage earning capacity - Post-injury wages - Section 71-3-17(c)(25)

Summary of the Facts: Allan J. Tew was injured while working on a three-phase regulator at the Siemens Power Transmission plant. Tew subsequently filed a petition to controvert with the Mississippi Workers’ Compensation Commission claiming to have sustained a loss of wage-earning capacity due to his injuries. Siemens and its insurance carrier, Liberty Mutual, admitted the existence of Tew’s work-related injuries and paid some temporary disability benefits and for his medical treatment. The administrative judge awarded permanent partial disability benefits to Tew in the amount of $288.12 per week for 450 weeks. Siemens then appealed to the Commission. The Commission also found that Tew sustained a loss of wage-earning capacity and was entitled to permanent partial disability benefits. However, the Commission determined that the AJ had miscalculated the post-injury wages and reduced the amount from $288.12 each week to $74.54 per week for 450 weeks. The circuit court affirmed the Commission’s decision. Tew appealed, and subsequently filed a motion to stay the appeal and remand back to the Commission for further consideration. The Court granted the motion. The Commission heard arguments and allowed the introduction of additional evidence; however, the initial award of $74.54 per week for 450 weeks remained unchanged. Tew appeals.

Summary of Opinion Analysis: Tew argues that the Commission erred in determining his loss of wage-earning capacity by using the difference between his pre-injury wages and his post-injury wages. According to section 71-3-17(c)(25), in determining Tew’s permanent partial disability compensation, compensation shall be sixty-six and two-thirds percent (66-2/3%) of the difference between his average weekly wages, subject to the maximum limitations as to weekly benefits as set up in this chapter, and his wage-earning capacity thereafter in the same employment or otherwise. Factors the Commission should use to aid it in determining wage-earning capacity include an increase in general wage levels, increased maturity or training, longer hours worked, sympathy wages, temporary and unpredictable character of post-injury earnings, employee’s inability to work, employee’s failure to be hired elsewhere, and the continuance of pain and other related circumstances. The determination of earning capacity should be made on the strength not only of actual post-injury earnings but of any other available clues. It is clear from the Commission’s orders that, although it found the AJ’s calculation of Tew’s post-wage earning capacity to be in error, it adopted the AJ’s analysis. The AJ considered the evidence as a whole, including Tew’s age, education, work history, medical testimony, physical impairment, and current work status. The Commission noted that its intent was to view Tew’s post-injury wage earnings “as indicative of, and a reliable measure of, his post-injury earning capacity.” The Commission refused to further modify Tew’s initial award because Tew had failed to prove that he was earning less than was shown at the initial hearing as the result of his injury. The Commission’s decision to award permanent partial disability benefits of $74.54 for 450 weeks was supported by substantial evidence.


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