IN THE COURT OF APPEALS OF MISSISSIPPI NO WC COA. SHANNON ENGINEERING & CONSTRUCTION, INC. and ASSOCIATED GENERAL CONTRACTORS OF MS, INC.

Transcription

1 E-Filed Document Nov :44: WC COA Pages: 17 IN THE COURT OF APPEALS OF MISSISSIPPI NO WC COA SHANNON ENGINEERING & CONSTRUCTION, INC. and ASSOCIATED GENERAL CONTRACTORS OF MS, INC. APPELLANTS V. WILLIE PERKINS APPELLEE APPEAL FROM THE MISSISSIPPI WORKERS COMPENSATION COMMISSION BRIEF IN SUPPORT OF APPELLEE WILLIE PERKINS Rogen K. Chhabra MSB No Darryl M. Gibbs MSB No Caroline Scott Hommell MSB No Amanda Hill Fritz MSB No Chhabra & Gibbs, P.A. 120 North Congress Street, Suite 200 Jackson, Mississippi Telephone: (601) Facsimile: (601) Attorneys for Appellee, Willie Perkins 1

2 IN THE COURT OF APPEALS OF MISSISSIPPI NO WC COA SHANNON ENGINEERING & CONSTRUCTION, INC. and ASSOCIATED GENERAL CONTRACTORS OF MS, INC. APPELLANTS V. WILLIE PERKINS APPELLEE CERTIFICATE OF INTERESTED PERSONS Pursuant to Miss. R. App. P. 28(a)(1), the undersigned counsel of record certifies that, in addition to those listed in the brief of Appellee, Willie Perkins, the following persons have an interest in the outcome of the case. These representations are made in order that the Justices of the Supreme Court and/or Judges of the Court of Appeals may evaluate possible disqualification or recusal. 1. Willie Perkins, Appellee 2. Rogen K. Chhabra, attorney of record for Appellee 3. Darryl M. Gibbs, attorney of record for Appellee 4. Caroline Scott Hommell, attorney of record for Appellee 5. Amanda Hill Fritz, attorney or of record for Appellee 6. Shannon Engineering & Construction, Inc., Appellant 7. Associated General Contractors of MS, Inc., Appellant 8. Jeff Skelton, attorney of record for Appellant 9. Pamela Ratliff, attorney of record for Appellant 10. The Honorable Administrative Law Judge Linda Thompson 11. The Honorable Liles Williams, Thomas A. Webb, and Beth Harkins Aldridge, Commissioners of the Mississippi Workers Compensation Commission. 2

3 So CERTIFIED, this the 16 th day of November, Respectfully submitted, /s/ Darryl M. Gibbs Darryl M. Gibbs MSB No Attorney for Appellee 3

4 TABLE OF CONTENTS Page CERTIFICATE OF INTERESTED PERSONS TABLE OF CONTENTS TABLE OF AUTHORITIES STATEMENT OF THE ISSUES STATEMENT OF THE CASE A. Statement of the Facts...7 B. Procedural History..9 SUMMARY OF THE ARGUMENT.10 ARGUMENT I. Mr. Perkins proved that he is permanently disabled by a preponderance of the evidence...10 II. Mr. Perkin s job searches were diligent..11 A. Credibility of a witness should not be determined on appeal...12 B. Mr. Perkins proved a loss of wage earning capacity based on a totality of the circumstances...13 C. The affidavits were properly excluded..14 III. Mr. Perkins is not estopped from receiving both workers compensation and unemployment benefits, and the Employer and Carrier are not entitled to credit CONCLUSION

5 TABLE OF AUTHORITIES Cases: Page McGowan v. Orleans Furniture, Inc., 586 So.2d 167 ( Miss. 1991)...13 Thompson v. Wells-Lamont Corp., 362 S0.2d 638, 641 (Miss. 1978) Winters v. Choctaw Maid Farms, Inc. (Miss. Ct. App. 2000) Malone & Hyde of Tupelo, 250 Miss., at 882, 168 So. 2d at Piggly Wiggly v. Houston, 464 So.2d Walker Mfg. Co. v. Cantrell, 577 So. 2d 1243, 1245 (Miss. 1991)...12 Champion Cable Const. Co., Inc. v. Monts, 511 So.2d 924, 927 (Miss.1987) Mickle v. Miss. Empl. Sec. Comm'n, 765 So. 2d 1259, 1261 (Miss. 2000)...15 Coleman v. Mississippi Employment Sec. Comm'n, 662 So. 2d 626, (Miss.1995) Kirk v. Pope, 973 So. 2d 981 ( Miss. 2007) Statutes: Miss. Code. Ann. section (i) Miss. Code Ann. Section Other Authorities: John A. Bradley & Linda A. Thompson, Mississippi Workers Compensation section 6.33, (2014) Dunn, Mississippi Workers Compensation, 24 (3rd at Supp 1990)

6 STATEMENT OF THE ISSUES 1. The Administrative Law Judge and Full Commission were correct in finding that Mr. Perkins met his burden of proof to support permanent disability and loss of wage earning capacity due to his compensable work injury. 2. Mr. Perkins performed a diligent job search, and the affidavits of prospective employers were properly excluded from evidence by the Administrative Law Judge. 3. Mr. Perkins is not estopped from claiming disability and unemployment benefits at the same time, as temporary total disability benefits due to employer s failure to accommodate restrictions are consistent with demonstrating the ability to work as required by the Mississippi Employment Securities Commission. 6

7 STATEMENT OF THE CASE A. Facts On March 22, 2011, Mr. Perkins suffered injuries to his back and body as a whole while lifting a valve. Record Transcript at He sought treatment with Gorton Rural Health Clinic, Greenwood Leflore Hospital, Delta Regional Medical Clinic, Dr. Moriarity, Dr. Vohra, and various doctors at G.A. Carmichael. Id. at Dr. Vohra placed him at maximum medical improvement (hereinafter, MMI) on May 6, 2014 with permanent restrictions of medium level work: lifting 50 lbs. rarely, 40 lbs. occasionally, and limit bending and twisting to an occasional basis. Dr. Vohra also assigned a 2% rating to Mr. Perkins. Mr. Perkins cannot read or write, and can only sign his name and read a few numbers. Id. at 28. He was 61 years old at the time of hearing. Id. Mr. Perkins testified that he attended special education classes through the 7 th grade, then left school to work in the cotton fields in order to support his family. Id In his late teens, Mr. Perkins worked for Planters Gin for about eight years. Id. at 29. Subsequently, he began working for Shannon Engineering and Construction, Inc. and continued to be a faithful employee there for 27 years. When he started at Shannon Engineering, he was making $3.35 an hour. By the time of his 2011 injury, his average weekly wage was $830.49, and he had worked nearly 30 years of manual labor for the Employer. At Shannon Engineering, Mr. Perkins job titles included that of general laborer and pipe layer. Id. at 32. Mr. Perkins uncontradicted testimony explained that both the jobs of General Laborer and Pipe Layer, as well as his pre injury duties, required him to lift over 100 pounds and bend and stoop frequently. Id. at 33. As a general laborer, Mr. Perkins worked both in the yard and in the office. Id. at 36. In the yard, his duties included cleaning up and organizing pipes, valves, and scrap iron. Id. at 34. He would also cut the grass and landscape the graveyard. Id. In the office, he performed janitorial duties such as cleaning the bathrooms daily. Id. at

8 Mr. Perkins was also charged with the hard and significant duties of maintaining the Shannon family s approximately 20 dogs housed both at their home and the office. Id. at 36. His duties included cleaning their pens, feeding, cleaning, and watering the dogs, as well as taking them to the vet when they were sick, and digging their graves and burying them. Id. at In his duties as a pipe layer, Mr. Perkins testified that he would dig and back fill holes, all by shovel. Id. at He would lift pipes and valves that regularly weighed over 100 lbs., and connect the pipes and valves on holes on job sites. Id. at 32. After his injury, Mr. Perkins continued to work for the employer, even during his treatment and before reaching MMI. Id. at He worked both in the field with pipes, as well as continuing to work in the yard and office. Id. Claimant testified that maintaining his job duties in these areas were outside of his work restrictions and caused him pain and discomfort. Id. at 52. Mr. Perkins last day of work for the employer was January 31, Id. at On this day, he was instructed by Ms. Shannon to bury a dog, and after completing the task, Mrs. Shannon told him that the employer could not continue to pay him too much to work around the yard. Id. at Mr. Perkins testified that he was encouraged by the Employer to file for unemployment and Social Security Disability benefits. Id. Claimant has been unable to find new employment since his injury, and introduced job search efforts as an exhibit. Id. at 59. This testimony was uncontradicted by the Employer and Carrier at hearing, and no one testified that Mr. Perkins was capable of working in any capacity following his work injury and stipulated work restrictions. Further, no one testified at the hearing that Claimant possessed the education, experience, or training to find any suitable employment post MMI. 8

9 Mrs. Toni Shannon testified as the Employer s representative and only witness. She is the Director, Officer, and Secretary/Treasurer of Shannon Engineering, and has been since Id. at 121. On cross examination, Mrs. Shannon was unable to describe the duties of a general laborer or pipe layer, and had very little knowledge of the work labor performed by Shannon or its employees. Id. At 30. She testified that Mr. Perkins was a trusted, credible, and good employee. When asked if she could agree with Claimant s testimony as to his pre and post injury duties at Shannon Engineering, she unequivocally agreed. Id. at 130. Mrs. Shannon testified that following his injury, Mr. Perkins returned to work, but provided no documentary proof or testimony that this post injury job was within his restrictions. She conceded that Mr. Perkin s description of his duties was accurate, both before and after his testimony. Id. at 141. This concession means that the Employer and Carrier knew Mr. Perkins duties post injury required him to bend, stoop, twist, and lift in excess of his work restrictions on a frequent basis. He attempted to do his best and perform his job duties, but did so in pain. In the end, he was terminated because his restrictions prevented him from successfully performing his job. B. Procedural History Willie Perkins filed his Petition to Controvert in December After reaching MMI, a hearing was held at the Mississippi Workers Compensation Commission on February 2, 2015 before Administrative Law Judge Linda Thompson. Judge Thompson issued her order on June 9, 2015, holding that Mr. Perkins compensable injury to his back entitled him to permanent partial disability benefits at the rate of $ for 450 weeks. The Employer and Carrier appealed to the Full Commission. On May 10, 2016, The Full Commission affirmed the Order of the Administrative Law Judge in part and reversed in part. 9

10 Most notably, the Commission found that Mr. Perkins sustained a 30% loss of wage earning capacity. The Employer and Carrier then appealed to the Court of Appeals. SUMMARY OF THE ARGUMENT The Administrative Law Judge and Full Commission correctly determined that Mr. Perkins was permanently disabled, that his job search was diligent and should be included as evidence, and that his testimony was credible at trial. Regarding the Employer and Carrier s estoppel of benefits argument, receiving indemnity benefits due to the employer s failure to accommodate restrictions is consistent with demonstrating the ability to work per the Mississippi Employment Securities Commission s standard for receiving unemployment benefits. ARGUMENT I. Mr. Perkins proved that he is permanently disabled by a preponderance of the evidence. As stated in Choctaw Maid, under Miss. Code. Ann section (i) of the Workers Compensation Act, 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. Under this statute, the definition of disability does not pertain to an actual disability in the medical context as one might envision, but refers to the claimant s capacity to perform duties of employment due to a work related injury. Winters v. Choctaw Maid Farms, Inc. (Miss. Ct. App. 2000). Further, the Mississippi Supreme Court has stated: Factors which this court has 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. Malone & Hyde of Tupelo, 250 Miss., at 882, 168 So. 2d at 527. In other words, the determination should be made only after considering the evidence as a whole. Piggly Wiggly, 464 So.2d [at] 512. (emphasis added). 10

11 The Employer and Carrier failed to rebut the presumption of permanent and total disability. An award of permanent disability is supported by substantial evidence introduced regarding Mr. Perkins education, work history, and permanent restrictions as assigned by a physician. Mr. Perkins has a 7 th grade education, and took special education classes for the 7 years he attended school. He does not possess the education or training to do anything else but hard manual labor. His past work history is extremely consistent, as it is uncontradicted that he worked for Shannon Engineering for nearly three decades until the admitted work injury took him out of the work force forever. Mr. Perkins even tried to return to work following his injury, but he was working in pain and outside of his permanent restrictions, which was not contracted by the Employer. The wages that Claimant received post injury were not only less than his preinjury wages, but also can be considered sympathy wages and do not accurately reflect his industrial loss. A more accurate reflection of his industrial loss comes from his permanent restrictions combined with his limited education and work experience. Additionally, he testified that he worked in pain upon his return to work, which again was not contradicted by the Employer. Accordingly, his post-injury work is not indicative of his industrial loss. II. Mr. Perkin s job searches were diligent. The Supreme Court has found that determining sufficiency of a job search is fact intensive and there is no precise formula to be followed. Thompson v. Wells-Lamont Corp., 362 S0.2d 638, 641 (Miss. 1978). Mr. Perkins testified that when he went to apply for jobs, he had the prospective employer write down his or her name on a piece of paper. Later, after he had accumulated many scraps of paper, he would give them to a friend, who would then use the information on the scraps of paper to fill out his job search forms. Therefore, the accuracy of his job search forms would be in the 11

12 hands of many other parties and is based on Mr. Perkins memory. Mr. Perkins cannot read or write, much less use a computer, so it is a reasonable assumption that he would go to apply for jobs in person and would not have filled out paper applications that could be kept on file. As the Administrative Law Judge noted throughout her Order, Mr. Perkins hearing and comprehension are both very limited, and there were times throughout the hearing where his speech was difficult to understand. It would be a reasonable assumption that he would not be heard or understood properly by prospective employers, which would impact the accuracy of his job search form. It is also not very likely that prospective employers would be able to hire a person who cannot read, write, hear or speak clearly, or perform heavy manual labor. It would also be reasonable to conclude that because he had been terminated around the time that Shannon Engineering was undergoing a layoff, and had already been told by Mrs. Shannon that they could not afford to pay him what he used to make, there would be no reason to re-apply for a job there. A. Credibility of a witness should not be determined on appeal. Credibility of a witness is not subject to review on appeal unless there is manifest error. The Mississippi Supreme Court has stated that there is a well established rule that the Mississippi Workers Compensation Commission sits as the trier of facts and judge of the credibility of witnesses. " Walker Mfg. Co. v. Cantrell, 577 So. 2d 1243, 1245 (Miss. 1991). Both the Administrative Law Judge and the Full Commission were able to observe Mr. Perkins demeanor and make an accurate decision as to his truthfulness based on both his testimony as well as his actions. If the Commission's findings of fact and order are supported by substantial evidence, all appellate courts are bound by their findings. Champion Cable Const. Co., Inc. v. Monts, 511 So.2d 924, 927 (Miss.1987). 12

13 B. Mr. Perkins proved a loss of wage earning capacity based on a totality of the circumstances Factors to 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. McGowan v. Orleans Furniture, Inc., 586 So.2d 167 (Miss. 1991). Thus, the determination of the extent of Mr. Perkins disability should be made only after considering the evidence as a whole, looking at any factor relevant to the issue of the loss of wage earning capacity, including Mr. Perkins previous job experience, education, and training, and his continued pain coupled with his permanent restrictions. All of these point to significant loss of wage earning capacity in this case. Bradley and Thompson state that The Commission may also apply common knowledge, common experience, and common sense when investigating or conducting a hearing. Bradley & Thompson, section 6.33, Mississippi Workers Compensation (2014). This is further supported by the common sense understanding that the job market in the delta for those of Mr. Perkins experience, education and background would be hard to come by even for someone who could perform manual labor. The job search form contained mostly applications from October 2014, which was only five months after he reached maximum medical improvement. Taking into account Mr. Perkins very limited education, his illiteracy, his lack of any vocational training or skills, and his previous employment, the above work restrictions severely limit his ability to find suitable employment. When a person s primary product is physical labor, the inability to bend, stoop, and lift are several limitations that drastically decrease his or her ability to perform any work. 13

14 The Employer tried to argue that Mr. Perkins left his job voluntarily, common sense shows this cannot be accurate. How many illiterate, African American men in the delta leave a job that that pays $800 a week that they have held for 30 years unless they are run off? The answer is zero. Additionally, it is nonsensical to believe that Mr. Perkins voluntarily left his job with only the chance of drawing unemployment and Social Security benefits down the road. What does make sense is that Mr. Perkins testimony is more credible than Mrs. Shannon s, and the Employer terminated him. C. The affidavits were properly excluded. The admission of the job search forms was not in error. The Claimant produced these forms, and was present to be examined and cross examined. Even if the job search forms were not admitted, the same exact information would have come into the record through Mr. Perkins testimony. Administrative Law Judges do not receive transcripts before writing their orders, so it becomes very helpful to record Claimant testimony via a job search form subject to cross examination, if for no other reason than to assist the Administrative Law Judge with an enormous docket. This is far different than allowing an affidavit of a so called witness without any opportunity for the Claimant to cross examine that witness. III. Mr. Perkins is not estopped from receiving both workers compensation and unemployment benefits, and the Employer and Carrier are not entitled to credit. Receiving temporary total disability benefits due to the employer s failure to accommodate restrictions is consistent with demonstrating the ability to work per the Mississippi Employment Securities Commission s standard for receiving unemployment benefits. The standards for unemployment and temporary disability are different. To receive unemployment an applicant need only show that he has been paid wages during a base period 14

15 for insured work, is unemployed and registered for work, and is able to work and is available for work, even if it is with restrictions. Mickle v. Miss. Empl. Sec. Comm'n, 765 So. 2d 1259, 1261 (Miss. 2000), citing Coleman v. Mississippi Employment Sec. Comm'n, 662 So. 2d 626, (Miss.1995). One way to receive temporary total disability benefits is to show that an employee can work with restrictions, but that the employer refuses to accommodate, thus effectively terminating the employee. As both of these scenarios are consistent, they do not give rise to any estoppel argument. Additionally, Mr. Perkins was encouraged by the Employer representative, Mrs. Shannon, to file for unemployment. It would be disingenuous to allow the Employer to terminate an injured employee in hopes that they will qualify for unemployment benefits rather than pay them indemnity benefits. The Appellants attempt to apply Kirk v. Pope to support their estoppel argument concerning indemnity benefits. However, Kirk is distinguishable because it discusses estoppel in a bankruptcy case, not a workers compensation case. No authority was provided by the appellant to demonstrate the applicability of the holding in Kirk to an administrative law setting. 973 So. 2d 981. Even if the court were to create an estoppel where it had never applied before it would be against the Mississippi Employment Security Act. If a situation were to arise where a credit would exist, that credit goes back to the Mississippi Employment Securities Commission and does not go back to the carrier. Under Miss. Code Ann. Section , any overpayment of unemployment benefits will be liable to repay to the department for the Unemployment Compensation Fund a sum equal to the overpayment amount. There is no similar statute giving a workers compensation payor a competing credit. Additionally, The collateral source doctrine has been consistently applied to deny third parties, whether tortfeasors at common law or employers liable under the Act, credit for sums received by the claimant from a collateral source, 15

16 wholly independent of such third party. Dunn, Mississippi Workers Compensation, 24 (3 rd.1982 at Supp 1990). In fact, there is nothing in the workers compensation Act that would even give credit to a workers compensation carrier for social security benefits, health insurance, disability policy, or any other source whatsoever. Applied here, both the collateral source doctrine and Miss. Code Ann. Section preclude the Employer and Carrier from asserting any credit for benefits Mr. Perkins received due to his unemployment. CONCLUSION The Appellee requests this honorable Court find that the Administrative Law Judge did not err in finding that Mr. Perkins is entitled to permanent disability benefits. The Commission s reduction of the Administrative Law Judge s ruling is not supported by substantial evidence. Appellee prays that this Court enter an Order affirming the findings of the Administrative Law Judge and Full Commission that Appellee has demonstrated that he is entitled to permanent disability benefits. Respectfully submitted, Willie Perkins /s/ Darryl M. Gibbs BY: Rogen K. Chhabra, MSB No Darryl M. Gibbs, MSB No Caroline Scott Hommell MSB No Amanda Hill Fritz, MSB No Chhabra & Gibbs, P.A. 120 North Congress Street, Suite 200 Jackson, Mississippi Telephone: (601) Facsimile: (601) Attorneys for Appellee, Willie Perkins 16

17 CERTIFICATE OF SERVICE We, attorneys for Appellee, do hereby certify that I have this date hand delivered or mailed by United States, postage prepaid, a true and correct copy of the above and foregoing Brief in Support of Appellee, Willie Perkins, to: Jeff Skelton, Esq. Pamela Ratliff, Esq. Copeland Cook Taylor & Bush P.O Box 6020 Ridgeland, MS SO DATED, this the 16 th day of November, /s/ Darryl M. Gibbs Rogen K. Chhabra MSB No Darryl M. Gibbs MSB No Caroline Scott Hommell, MSB No Amanda Fritz, MSB No Chhabra & Gibbs, P.A. 120 North Congress Street, Suite 200 Jackson, Mississippi Telephone: (601) Facsimile: (601) Attorneys for Appellee, Willie Perkins 17