Walker v. Delta Steel Buildings and Builders and Contractors Ass'n of Miss.


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Docket Number: 2002-WC-00505-COA
Linked Case(s): 2002-CT-00505-SCT ; 2002-CT-00505-SCT ; 2002-CT-00505-SCT ; 2002-WC-00505-COA

Court of Appeals: Opinion Link
Opinion Date: 10-21-2003
Opinion Author: Southwick, P.J.
Holding: Affirmed

Additional Case Information: Topic: Workers’ compensation - Total occupational loss - Sympathy wages
Judge(s) Concurring: McMillin, C.J., King, P.J., Bridges, Thomas, Lee, Irving, Myers, Chandler and Griffis, JJ.
Procedural History: Admin or Agency Judgment
Nature of the Case: CIVIL - WORKERS' COMPENSATION

Trial Court: Date of Trial Judgment: 01-16-2002
Appealed from: Leflore County Circuit Court
Judge: W. Ashley Hines
Disposition: AFFIRMED AWARD BASED ON 35% PERMANENT DISABILITY OF LEFT ARM
Case Number: 99-0125CICI(H)

  Party Name: Attorney Name:  
Appellant: Matthew M. Walker




CHARLIE BAGLAN LAWRENCE J. HAKIM



 

Appellee: Delta Steel Buildings and Builders and Contractors Association of Mississippi JOHN H. FREELAND  

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Topic: Workers’ compensation - Total occupational loss - Sympathy wages

Summary of the Facts: While installing metal sheet roofing as an iron worker for Delta Steel Buildings, Inc., Matthew Walker slipped and fell and shattered his left elbow. He was provided medical treatment and temporary benefits. Walker filed a petition to controvert, and an administrative law judge awarded Walker benefits based on permanent disability of 75% for his left arm. The Commission lowered the award to 35%, and the circuit court affirmed. Walker appeals.

Summary of Opinion Analysis: Walker argues that the Commission, in finding that Walker's occupational disability did not surpass his functional impairment, incorrectly applied certain presumptions regarding wage-earning capacity. In a scheduled member case, if the claimant presents evidence that he is unable to continue in the position held at the time of injury, that inability creates a rebuttable presumption of total occupational loss of the member, subject to other proof of the claimant's ability to earn the same wages which the claimant was receiving at the time of injury. All that must be shown is an inability to continue in the position held at the time of injury. Although Walker presented evidence to invoke the presumption, Delta Steel presented evidence demonstrating that while Walker could not return to his pre-injury position as a heavy roof installer, his subsequent $11 to $11.50 post-injury hourly wage is actually higher than his wage at Delta Steel prior to his injury. Walker argues, however, that he is making this substantial of an income only because of the benevolence of his new employer. Walker’s ability to satisfactorily and consistently perform his work rebuts the evidence that sympathy to some degree affected the wage that Walker was being paid.


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