Lott v. Hudspeth Center

26 So. 3d 1057, 2008 Miss. App. LEXIS 597, 2008 WL 4405176
CourtCourt of Appeals of Mississippi
DecidedSeptember 30, 2008
Docket2007-WC-01525-COA
StatusPublished
Cited by4 cases

This text of 26 So. 3d 1057 (Lott v. Hudspeth Center) 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
Lott v. Hudspeth Center, 26 So. 3d 1057, 2008 Miss. App. LEXIS 597, 2008 WL 4405176 (Mich. Ct. App. 2008).

Opinions

CARLTON, J.,

for the Court.

¶ 1. Martha Lott appeals the judgment of the Montgomery County Circuit Court, which affirmed the decision of the Mississippi Workers’ Compensation Commission (Commission), awarding her permanent partial disability benefits for the 100% loss of use of her aim.

FACTS

¶ 2. On May 15, 2003, Lott sustained an injury to her right shoulder while assisting a patient at the Kilmichael Group Home, operated by Hudspeth Center. Lott filed the appropriate paperwork to report her injury and sought treatment from Dr. Asa Bennett, an orthopedic specialist. Dr. Bennett diagnosed Lott as having a torn rotator cuff, and he performed surgery to repair the injury on October 6, 2003. He also prescribed physical therapy for Lott. Dr. Bennett released Lott at maximum medical improvement on June 29, 2004, without any work restrictions. Dr. Bennett assessed Lott’s disability as a 10% impairment to her right upper extremity. Lott was not able to return to her job at the Kilmichael Group Home because her employment was terminated during her recovery from her injury.

¶ 3. After being discharged by Dr. Bennett, Lott filed her petition to controvert, claiming that she was entitled to permanent disability benefits in excess of the anatomical rating assigned by Dr. Bennett. Lott was then referred, by her attorney, to Kay Cannon for a functional capacity evaluation (FCE). After the FCE, Cannon found that Lott could return to work at a sedentary-light physical demand level. Cannon also noted that Lott was limited by “very poor body mechanics” and was self-limited by her pain.

¶ 4. Lott was then sent to Dr. David Collipp for another evaluation. Dr. Col-lipp prescribed physical therapy and scheduled Lott for another FCE to measure the success of physical therapy. After the second FCE, Lott’s only limitation, according to Dr. Collipp, was that she was unable to lift 100 pounds. Dr. Collipp found that Lott could return to work with a maximum lifting limit of 60 pounds.

¶ 5. Lott corresponded with Ann Allen, a vocational rehabilitation counselor with F.A. Richards and Associates, who advised Lott on a few occasions about available jobs in Lott’s area. Lott sent resumes and/or completed job applications to nearly all of the employers suggested by Allen, but she x'eceived no offers. She did not send a resume for one job as a metal fabricator, because she did not know what that position was and had no experience in that field. Additionally, Lott initiated her own search for employment in her own and surrounding communities.

II6. A hearing was conducted on July 6, 2005, to determine whether and to what extent Lott had any permanent disability. Lott’s medical records were admitted into evidence, as were the reports of Cannon and Dr. Collipp. David Stewart, a vocational expert, testified that Lott was able to perform some work, but only sedentary to light work. Stewart based his opinion on the first FCE, and he did not consider the FCE conducted by Dr. Collipp. Further, Stewart testified that it is his practice to help clients find employment when requested to do so, but Lott never requested his services in finding employment. Stewart also testified that the unemploy[1060]*1060ment rate in Montgomery County was higher than the state average, and that factor limited Lott’s employment opportunities as much as her injury did.

¶ 7. After the hearing, the administrative law judge found that Lott was permanently disabled and in accordance with Mississippi Code Annotated section 71-3-17(a) (Rev.2000), required the employer to pay Lott total disability payments for a period of 450 weeks. The employer and carrier appealed to the Commission. After oral arguments, the Commission reversed the administrative law judge and found that Lott was entitled to only 200 weeks of permanent partial disability benefits, which is the maximum for her scheduled members’ injury under Mississippi Code Annotated section 71 — 3—17(c) (Rev.2000).

¶ 8. Lott appealed the Commission’s decision to the Circuit Court of Montgomery County, which affirmed the Commission. Feeling aggrieved once again, Lott appealed that decision and is now before this Court.

DISCUSSION

¶ 9. Lott argues that the circuit court erred in affirming the Commission’s decision that she was only entitled to disability benefits equivalent to 100% loss to her arm, as opposed to permanent total disability benefits, even after it was established that she was unable to find work despite 194 documented efforts to find employment.

¶ 10. The standard of review in a worker’s compensation appeal is limited. This Court must determine only whether the decision of the Commission is supported by substantial evidence. Casino Magic v. Nelson, 958 So.2d 224, 228(¶ 13) (Miss.Ct.App.2007) (citing Westmoreland v. Landmark Furniture, Inc., 752 So.2d 444, 447(¶ 7) (Miss.Ct.App.1999)). “The Commission sits as the ultimate finder of facts; its findings are subject to normal, deferential standards upon review.” Id. (citing Natchez Equip. Co. v. Gibbs, 623 So.2d 270, 273 (Miss.1993)). Because our review is limited, this Court “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. (citing Westmoreland, 752 So.2d at 448(¶ 8)). We maintain this deferential standard even when we would have been persuaded to rule otherwise if we had been the fact-finder. Vance v. Twin River Homes, 641 So.2d 1176, 1180 (Miss.1994) (quoting Fought v. Stuart C. Irby Co., 523 So.2d 314, 317 (Miss.1988)). Though we defer to the Commission’s findings of fact, “[w]e review the Commission’s application of the law de novo.” Univ. of Miss. Med. Ctr. v. Smith, 909 So.2d 1209, 1218(¶ 30) (Miss.Ct.App.2005) (citing ABC Mfg. v. Doyle, 749 So.2d 43, 45(¶ 10) (Miss.1999)). “Certainly the legal affect [sic] of the evidence, and the ultimate conclusions drawn by an administrative tribunal from the facts ... are questions of law, especially where the facts are undisputed or the overwhelming evidence reflects them. The question depends then upon application of established legal principles to such facts.” Cent. Elec. Power Ass’n v. Hicks, 236 Miss. 378, 388-89, 110 So.2d 351, 356 (1959).

¶ 11. On appeal, Lott argues that the Commission erred in concluding that she was not entitled to permanent and total disability benefits under Mississippi Code Annotated section 71-3-17(a). Specifically, Lott argues that she carried her burden in establishing a good faith job search effort, after which, she argues, the burden shifted to the employer and carrier to establish that her job search efforts were a sham or not in good faith. Lott argues that the Commission misapplied [1061]*1061the applicable Mississippi law, and this Court, therefore, should not defer to the Commission’s findings.

¶ 12. Mississippi Code Annotated section 71-3-17(a) and (c), in part, state:

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Related

Lott v. HUDSPETH CENTER
26 So. 3d 1044 (Mississippi Supreme Court, 2010)
Lott v. Hudspeth Center
26 So. 3d 1057 (Court of Appeals of Mississippi, 2008)
Martha Lott v. Hudspeth Center
Mississippi Supreme Court, 2007

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Bluebook (online)
26 So. 3d 1057, 2008 Miss. App. LEXIS 597, 2008 WL 4405176, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lott-v-hudspeth-center-missctapp-2008.