Gregg v. Natchez Trace Electric Power Association
| Docket Number: | 2009-CT-00699-SCT Linked Case(s): 2009-WC-00699-COA ; 2009-WC-00699-COA ; 2009-CT-00699-SCT |
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| Supreme Court: | Opinion Link Opinion Date: 06-09-2011 Opinion Author: Chandler, J. Holding: Reversed and remanded. |
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| Additional Case Information: |
Topic: Workers' compensation - Disability - Section 71-3-3(i) - Wage earning capacity - Post-injury wages Judge(s) Concurring: Waller, C.J., Carlson and Dickinson, P.JJ., Randolph, Kitchens and Pierce, JJ. Non Participating Judge(s): King, J. Concurs in Result Only: Lamar, J. Procedural History: Admin or Agency Judgment Nature of the Case: CIVIL - WORKERS' COMPENSATION Writ of Certiorari: Granted |
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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 |
ANGELA TURNER LAIRY, 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 |
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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 - Disability - Section 71-3-3(i) - Wage earning capacity - Post-injury wages |
| Summary of the Facts: | Barry Gregg filed a petition to controvert concerning a work-related injury to his back that he sustained at his job as a serviceman with Natchez Trace Electric Power Association. Gregg claimed that the injury had rendered him permanently partially disabled because, due to a pole-climbing restriction imposed after the injury, he was no longer able earn on-call compensation. After a hearing, an administrative law judge found Gregg had sustained no permanent disability. The Workers’ Compensation Commission adopted the findings of the administrative law judge. Gregg appealed to circuit court which affirmed. Gregg appealed, and the Court of Appeals affirmed. The Supreme Court granted certiorari. |
| Summary of Opinion Analysis: | 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. Disability comprises an actual physical injury and loss of wage-earning capacity. A rebuttable presumption of no loss of wage-earning capacity arises when the claimant’s post-injury wages are equal to or exceed his pre-injury wage. This presumption is rebutted by evidence on the part of the claimant that the post-injury earnings are unreliable due to: increase in general wage levels since the time of accident, claimant's own greater maturity and training, longer hours worked by claimant after the accident, payment of wages disproportionate to capacity out of sympathy to claimant, and the temporary and unpredictable character of post-injury earnings. In the decision adopted by the Commission, the administrative law judge observed that Gregg makes more money after the injury than he earned before the injury. The administrative law judge found that Gregg had shown that he was permanently restricted from climbing. The Court of Appeals affirmed the Commission’s decision on the basis of the presumption that, because Gregg earns more after his injury than he earned before the injury, Gregg had failed to prove that the climbing restriction had caused a loss of wage-earning capacity. This reasoning ignored the fact that Gregg had proven he was no longer eligible to earn on-call compensation because of the climbing restriction imposed due to the injury. The record reflects undisputed evidence that Gregg’s post-injury wages at Natchez would have been higher but for the climbing restriction, because he could not earn on-call compensation post-injury. Natchez admitted that Gregg was no longer eligible to earn on-call compensation due to his work-related injury. But for the climbing restriction imposed by his work-related injury, Gregg now could earn an amount over and above his regular wages through steady on-call compensation by being on-call every other week, as he had been pre-injury. Therefore, the Commission erred by finding that the injury “ha[d] no impact on his wage-earning potential.” |
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