IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO WC COA

Transcription

1 E-Filed Document Nov :50: WC COA Pages: 7 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO WC COA BETTYE LOGAN APPELLANT v. KLAUSSNER FURNITURE CORPORATION D/B/A BRUCE FURNITURE INDUSTRIES AND AMERICAN CASUALTY COMPANY OF READING, PA APPELLEES THE MOTION FOR REHEARING OF THE APPELLEES: KLAUSSNER FURNITURE CORPORATION AND AMERICAN CASUALTY COMPANY OF READING, PA Amy Lee Topik, Esq. MS Bar No MAKOW WALKER, P.A. P.O. Box Jackson, MS (601) Counsel for the Appellees

2 This Petition is based off of this Court's recent decision in Logan v. Klaussner Furniture Corp., No WC COA, 2016 Miss. App. LEXIS 742 (App. Nov. 15,2016). This Court held: [W]ith regard to Logan's injury, we held in Logan I that her injury (1) was permanent, and (2) resulted in a loss of wage-earning capacity. Logan I, 127 So. 3d at (,-r,-r20-21). Therefore, section (a) controls, not section (c) as applied by the Commission. Thus, the Commission's decision is based on an erroneous application of law and, as such, this case must be reversed and remanded to the Commission for it to find the amount of Logan's loss of wage earning capacity... Logan v. Klaussner Furniture Corp., No WC COA, 2016 Miss. App. LEXIS 742, at *5-6 (App. Nov. 15,2016). The above quoted language constitutes an error oflaw because based upon the precedent outlined below, this holding contains a direct contradiction within itself. Mississippi Code Annotated Section states in pertinent part: (a) Permanent total disability: In case of total disability adjudged to be permanent, sixty-six and two-thirds percent (66-2/3%) of the average weekly wages of the injured employee, subject to the maximum limitations as to weekly benefits as set up in this chapter, shall be paid to the employee not to exceed four hundred fifty (450) weeks or an amount greater than the multiple of four hundred fifty (450) weeks times sixty-six and two-thirds percent (66-2/3%) of the average weekly wage for the state. (c) Permanent partial disability: In case of disability partial in character but permanent in quality, the compensation shall be sixty-six and two-thirds percent (66-2/3%) of the average weekly wages of the injured employee, subject to the maximum limitations as to weekly benefits as set up in this chapter, which shall be paid following compensation for temporary total disability paid in accordance with paragraph (b) of this section... Miss. Code AIm (Supp. 2016) (emphasis added). As shown by the emphasized text above both sections (a) and (c) refer to disability that is "permanent." Permanent refers to the length of time that the disability is present. In the instant case, there is no dispute that the injury 2

3 is permanent. However, the dispute lies with the additional language in (a) and (c), the language referring to whether the permanent disability is "total" or "partial in character." The Court has stated that scheduled member injuries can warrant disability computation under Section 71-3-l 7(a) for cases of"permanent total occupational 1 disability." Smith v. Jackson Constr. Co., 607 So. 2d 1119, 1128 (Miss. 1992). In 2002, the Supreme Court addressed and interpreted the Smith holding in Meridian Prof! Baseball Club v. Jensen, 828 So. 2d 740, 746 (Miss. 2002). It stated: "Smith v. Jackson Construction Co. changed the landscape of the law in scheduled member cases." Jenson, 828 So. 2d at 746. The Jenson case went on to explain how Smith reversed precedent it stated: Reversing precedents, this Court held that if functional loss of use of a scheduled member results in permanent and total occupational disability, or permanent loss of wage-earning capacity, the claimant is entitled to compensation on that basis under (a), the permanent total disability statute. 607 So. 2d at Smith, if totally occupationally disabled, was therefore entitled to 450 weeks of total disability benefits instead of the 175 weeks scheduled for a leg injury. 607 So. 2d at Jensen, 828 So. 2d 740, 746 (Miss. 2002) (emphasis added). Under Smith and Jenson, a permanent loss of wage-earning capacity, as stated in the court's recent opinion, means a permanent and total occupational disability, meaning the claimant is completely unable to work. Further, it is worth noting that the above quote from Jenson refers to the two components of disability computation: functional loss and occupational loss. Id If a permanent functional loss (the loss of ability to use a body part) results in a permanent and total occupational or vocational loss (the complete loss of ability to work), then the disability is deemed permanent and total, and the proper calculation method is Section (a). In other words, if the injury 1 As explained below, "occupational" is synonymous with "vocational" or "industrial" and refers to one's loss of wage earning capacity. 3

4 deems the claimant unable to work, then the injury is a total disability. Thus, the claimant's injury would then be considered permanent and total. However, on the other hand, if the claimant is still able to work, then there is no total disability, there is partial disability. Thus, even if the claimant may be permanently disabled, this finding does not mean that the claimant is totally disabled. In Jenson, the claimant suffered a 25% occupational loss of his arm. Jenson, 828 So. 2d at 749. Therefore, he was not entitled to compensation under Section (a), as this was not a total injury (although it was permanent). Id. at 750. The Supreme Court upheld the Court of Appeals' decision that "Jensen's recent jobs, activities and education constituted substantial evidence to support the Commission's finding of less than a total loss of use." Id. at 743. In the instant case, as stated by this Court in Logan I, the Commission found that Logan had a "4% permanent medical impairment." Logan I, 127 So. 3d at Therefore, the functional loss is an overall 4% loss that is permanent. The next issue is to determine the occupational loss. Once again, if the occupational loss is total, then disability is determined by Section (a), not Section (c). However, if the occupational loss is not total, then the computation for a scheduled member injury is considered partial and the disability is controlled by Section (c). As stated by this Court, this determination is factually driven and uses the following evidence: "The lay testimony, vocational experts, and medical evidence establish that Logan has suffered a permanent partial or [permanent] total disability." Logan I, 127 So. 3d at Upon remand, the Commission considered whether the claimant's occupational use was total or partial. The Commission's Order highlights the battle ofthe experts that it faced on this issue. See Exhibit A. The Order states: "Claimant presented expert vocational testimony from 4

5 Lamar Crocker who testified that Claimant had sustained a 100% loss to the labor market." Exhibit A, p. 3. The Order further states: "In comparison, Jennifer Oubre provided expert vocational testimony for the Employer and Carrier. Ms. Oubre testified that Claimant possessed transferable job skills which made her employable in her local job market." Exhibit A, p. 3. It concludes: [T]he medical and vocational proof in this claim supports a finding that Claimant had the ability to return to employment at least at a sedentary level. Accordingly, based upon this medical and vocational proof, the Commission agrees with the findings of the Administrative Judge that Claimant has sustained a 60% loss of industrial use of the left lower extremity. Exhibit A, p. 4. The dissent in the instant case aptly points out that "Whether a claimant's permanent disability or total is a question of fact determined by the evidence as a whole, including both lay and medical testimony." Logan II, 2016 Miss. App. LEXIS 742, at *7 (App. Nov. 15,2016) (citing Howard Indus. Inc. v. Satcher, 183 So. 3d 907, 912 (~14) (Miss. Ct. App. 2016)). Thus, as stated by the dissent, the Commission followed the directions put forth by Logan I, and it's finding that the vocational or occupational disability was partial (60%) did not constitute an abuse of discretion. Therefore, because the injury is partial, the correct statute for computation of compensation is Section (c). following: As stated above, this Court held in the opinion that is the subject of this petition the [W]ith regard to Logan's injury, we held in Logan I that her injury (1) was permanent, and (2) resulted in a loss of wage-earning capacity. Logan I, 127 So. 3d at (~~20-21). Therefore, section (a) controls, not section (c) as applied by the Commission. Thus, the Commission's decision is based on an erroneous application of law and, as such, this case must be reversed and remanded to the Commission for it to find the amount of Logan's loss of wage earning capacity.... 5

6 Logan II, No Miss. App. LEXIS 742, at *5-6 (emphasis added). If there is anything less than a total loss of wage-earning capacity, then the claimant is not totally disabled, and Section (c) applies, not Section (a). However, the Court then stated that the Commission must apply Section (a). This is a contradiction within itself, because if the Court's statement were true, that Section (a) applies exclusively, then the claimant is totally occupationally or vocationally disabled, and there is no point for the Commission to determine the loss of wage earning capacity. Further, because the decision of the Commission is supported by expert testimony, it may not be overturned by the appellate court, as this steps outside of the appellate court's standard of review. And finally, this Court's holding states that the Commission's "decision is based on an erroneous application of law", and as explained above, this is not the case. Jd. This petition for rehearing seeks for this Court to hold that, although permanent, the loss of wage earning capacity was not total. It amounted to a 60% loss of industrial use. Further, this decision would be based upon the decision of the Commission, which is supported by substantial evidence and does not constitute an erroneous application of the law. 6

7 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the above and foregoing Pleading was this day forwarded to all counsel of record by depositing a copy of same via: D United States Mail D Certified Mail D Facsimile D Hand Delivery D D Overnight Mail [8J ECF System Amy Lee lk 7