Harrison County Board of Supervisors v. Black

127 So. 3d 272, 2013 WL 1303295, 2013 Miss. App. LEXIS 148
CourtCourt of Appeals of Mississippi
DecidedApril 2, 2013
DocketNo. 2011-WC-01826-COA
StatusPublished
Cited by2 cases

This text of 127 So. 3d 272 (Harrison County Board of Supervisors v. Black) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Harrison County Board of Supervisors v. Black, 127 So. 3d 272, 2013 WL 1303295, 2013 Miss. App. LEXIS 148 (Mich. Ct. App. 2013).

Opinion

CARLTON, J., for the Court:

¶ 1. The Harrison County Board of Supervisors (HCBS) appeals the judgment of the Mississippi Workers’ Compensation Commission (Commission) affirming an [274]*274award of workers’ compensation benefits to Richard L. Black. The HCBS argues: (1) Black’s inability to find employment was simply the result of job unavailability at his previous employment and other employment not because of his injury, but rather, because of the poor economy; and (2) when offered employment, Black had a duty to accept that employment given that the work duties were within his treating physician’s physical restrictions. The record reflects that Black met his burden to prove he sustained a work-related injury and that the employer failed to rebut the reasonableness of Black’s efforts to find other employment. Finding substantial evidence to support the Commission’s decision, we affirm.

FACTS

¶2. On October 30, 2007, Black sustained a work-related accident in which he injured his lower back while packing asphalt for the HCBS. Black underwent two lower-back surgeries by Dr. Robert Weier-man. The first surgery occurred in December 2007, and the second, a lumbar fusion, was performed in January 2009. Black also received epidural steroid injections and other treatments. Dr. Weier-man placed Black at maximum medical improvement on February 22, 2010, with permanent physical restrictions that included limited bending, stooping, and climbing.

¶ 3. Black filed a petition to controvert on May 27, 2008. Black states on appeal that the HCBS admitted compensability and paid medical expenses and temporary disability benefits up to the date of maximum medical improvement.

¶ 4. On December 14, 2010, a hearing commenced before an administrative judge (AJ) at the Gulfport City Hall in Gulfport, Mississippi, to determine the existence and the extent of permanent disability attributable to Black’s work-related injury. Then, on February 22, 2011, the HCBS filed a request to supplement the record. A hearing on the request occurred on March 23, 2011.

¶ 5. On May 19, 2011, the AJ entered an order finding that Black sustained a seventy-five percent loss of wage-earning capacity due to his work-related injury. Aggrieved by the AJ’s findings, the HCBS appealed the AJ’s ruling to the Commission. On November 23, 2011, the Commission entered an order affirming the AJ’s decision without opinion.

¶ 6. The HCBS now appeals to this Court.

STANDARD OF REVIEW

¶ 7. This Court’s scope of review when considering workers’ compensation cases is limited to a determination of whether the Commission’s decision is supported by substantial evidence. Whirlpool Corp. v. Wilson, 952 So.2d 267, 271 (¶ 15) (Miss.Ct.App.2006). “The Commission sits as the ultimate finder of fact; its findings are subject to normal [ ] deferential standards upon review.” Id. “We will only reverse the Commission’s rulings where findings of fact are unsupported by substantial evidence, matters of law are clearly erroneous, or the decision was arbitrary and capricious.” Id.

DISCUSSION

¶ 8. The HCBS argues that Black failed to establish “disability,” meaning the incapacity to earn wages “because of injury.” The HCBS claims that Black provided nothing to support a loss of wage-earning capacity, and that Black’s inability to find employment was because of the economy. The HCBS alleges that Black possessed, and currently possesses, the ability to work, as his treating physician opined. [275]*275The HCBS claims that Black’s failure to gain employment was due to his own voluntary choice, as he either failed to follow up with employment leads or flatly refused employment offered to him, which was the case with his previous employer, Harrison County, Mississippi.

¶ 9. Mississippi Code Annotated section 71 — 3—3(i) (Rev.2011) 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.” (Emphasis added). See Whirlpool, 952 So.2d at 272 (¶ 19). “When the claimant, having reached maximum medical recovery, reports back to the employer for work, and the employer refuses to reinstate or rehire him, then the claimant has established a prima facie showing of total disability.” Id. As acknowledged by the AJ, “[ojnce a prima facie case for total disability has been established, the employer bears the burden of proving that the claimant has suffered only a partial disability or no loss of wage-earning capacity.” Id. To satisfy this burden, the employer may present evidence showing that “the claimant’s efforts to obtain other employment was a mere sham, or less than reasonable, or without proper diligence.” Id. (citation omitted).

¶ 10. With respect to evaluating the HCBS’s argument alleging that Black’s job search was deficient, we turn to the record, including the factual findings of the AJ on this issue, upon which the Commission relied. In awarding workers’ compensation benefits to Black, the AJ specifically found, in part, as follows

I base the following findings on a preponderance of the evidence, including medical proof as required by the Mississippi Workers’ Compensation Law:
1. The parties stipulated that [cjlaim-ant had a work accident on October 30, 2007[,] and injured his lower back.
2. The parties stipulated that [cjlaim-ant’s average weekly wage on the date of the work accident was $499.16.
3. The parties stipulated that [cjlaim-ant reached maximum medical improvement on February 22, 2010.
4. The parties stipulated that there was no issue remaining to be decided regarding temporary disability benefits.
5. The sole issue for determination was the existence and extent of permanent disability attributable to [cjlaimant’s work-related back injury. In non-scheduled, body-as-a-whole cases, the compensation rate for an injured employee is 66 2/3% “of the difference between his average weekly wages, subject to the maximum limit[ations] as to weekly benefits as set up in this chapter, and his wage-earning capacity thereafter in the same employment or otherwise.” Miss.Code Ann. § 71-3-17(c)(25) [ (Supp.2012) ]. In order to establish a prima facie case of disability, a claimant must show by a fair preponderance of the evidence that (1) an accidental injury occurred (2) which arose out of and in the course of employment and (3) that the injury and claimed disability are causally connected. Hedge v. Leggett & Platt, Inc., 641 So.2d 9, 13 (Miss.1994) ([citjing Hardin’s Bakeries v. Dependent of Harrell, 566 So.2d 1261, 1264 (Miss.1990)). Once the claimant establishes a prima facie case of disability, the burden of proof shifts to the employer to rebut or refute the claimant’s evidence. Thompson v. Wells-Lamont Corp., 362 So.2d 638, 641 (Miss.1978).
Claimant has met his burden of proof with regard to the above-referenced elements. He sustained a work-related injury to his back while working for the [276]*276[e]mployer. The lay and medial testimony proved that the injury has caused a disability. Claimant’s treating specialist, Dr.

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Bluebook (online)
127 So. 3d 272, 2013 WL 1303295, 2013 Miss. App. LEXIS 148, Counsel Stack Legal Research, https://law.counselstack.com/opinion/harrison-county-board-of-supervisors-v-black-missctapp-2013.