Mixon v. Greywolf Drilling Co., LP
| Docket Number: | 2009-WC-01536-COA Linked Case(s): 2009-WC-01536-COA |
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| Court of Appeals: |
Opinion Link Opinion Date: 12-14-2010 Opinion Author: Roberts, J. Holding: Affirmed. |
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| Additional Case Information: |
Topic: Workers' compensation - Occupational loss - Average weekly wage - Insurance carriers - Causal connection Judge(s) Concurring: Lee and Myers, P.JJ., Irving, Griffis and Ishee, JJ. Non Participating Judge(s): King, C.J., and Maxwell, J. Concur in Part, Concur in Result 1: Barnes, 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: 08-28-2009 Appealed from: SIMPSON COUNTY CIRCUIT COURT Judge: Robert Evans Disposition: AFFIRMED MISSISSIPPI WORKERS’ COMPENSATION COMMISSION’S GRANT OF BENEFITS Case Number: 2009-243 |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Kenneth Joe Mixon |
EVE GABLE |
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| Appellee: | Greywolf Drilling Company, LP and Employers Insurance of Wausau/Liberty Mutual | JOHN S. GONZALEZ | ||
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| Topic: | Workers' compensation - Occupational loss - Average weekly wage - Insurance carriers - Causal connection |
| Summary of the Facts: | Kenneth Mixon was injured while working as a floorhand on a land-based oil rig operated by Greywolf Drilling Company. He filed a petition to controvert with the Mississippi Workers’ Compensation Commission, and his injuries were found to be compensable. Mixon appeals, and Greywolf cross-appeals. |
| Summary of Opinion Analysis: | Issue 1: Occupational loss Mixon argues that the Commission should have awarded him 100% total occupational loss. ‘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. A worker injured in the course and scope of her employment is entitled to compensation to the extent that she has been incapacitated to earn wages. Benefits for a claimant’s permanent total disability are available under section 71-3-17(a); benefits for permanent partial disability are governed by section 71-3-17(c). Mixon was assigned a six percent medical impairment to each arm. Factors that should be considered in determining loss of wage earning capacity include the amount of education and training which the claimant has had, his inability to work, his failure to be hired elsewhere, the continuance of pain, and any other related circumstances. Despite assigning a six percent medical impairment to each of Mixon’s arms, the Commission considered the factors in determining that Mixon’s occupational loss was a greater amount. In arriving at its conclusion, the Commission considered Mixon’s long-term employment aboard the Tommy Munro, his work experience and training, his success in his employment aboard the Tommy Munro, and Mixon’s weekly wages at the time of trial. The Commission did not err in finding that while Mixon did suffer from some occupational loss, this loss is not total because he has returned to work on a full time basis performing work for which he is qualified by training and experience, and work which still requires the use of his arms to some degree. Issue 2: Average weekly wage Mixon argues that the Commission erred in its finding that his average weekly wage was $607.88, rather than the higher figure of $1,290 as found by the AJ. The difference in the two figures stems from the AJ’s exclusion of those weeks during which Mixon was “off” in his seven-day-on seven-day-off-work cycle. Mixon was hired to work a seven-days-on seven-days-off, twelve-hours-a-day work schedule. As noted by the Commission, such a work schedule, or something similar to it, is typical of the oil-field industry, as well as other professions. In essence, Mixon worked in a two-week block of time. As such, the Commission did not err in its computation of Mixon’s average weekly wage. Issue 3: Insurance carriers Throughout Mixon’s case, several insurance carriers have been listed on behalf of Greywolf. Greywolf’s initial answer listed Summit Consulting Corporation of Louisiana. Greywolf’s notice of appeal to the circuit court listed Liberty Mutual Insurance Company. Greywolf’s notice of cross-appeal listed both Liberty Mutual Insurance Company and Employers Insurance Company of Wausau. And Greywolf’s brief to this Court listed Bridgefield Casualty Insurance Company. Mixon asks the Court to note Liberty Mutual’s appearance as a joint-party carrier. Which carrier or carriers are required to satisfy the judgment of the Commission was not raised before the AJ, Commission, or circuit court. Additionally, there has not yet been a failure to pay the benefits found by the Commission. Thus, this issue will be not decided. Issue 4: Causal connection On cross-appeal, Greywolf argues that the Commission erred in finding a causal connection between Mixon’s shoulder injuries and the lightning incident. The AJ found that while the medical histories gathered throughout Mixon’s treatment with various medical professional varied in some respect, they were not materially inconsistent. Further, the AJ found that Dr. Morrison’s and Dr. Whitehead’s opinions of causation were more credible that Dr. Graham’s. The Commission adopted these findings. The Commission is the judge of a witness’s credibility, and there is substantial evidence to support this conclusion. |
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