Court: Court of Appeals of Mississippi; September 22, 2015; Mississippi; State Appellate Court
In scheduled-member cases, when an employee's industrial loss exceeds their functional loss, they are entitled to the higher amount. An industrial loss reflects a decrease in wage-earning capacity, where an injury causing a worker to be unable to perform their previous job creates a rebuttable presumption of total industrial loss. However, this presumption can be challenged by evidence of the claimant's ability to earn similar wages post-injury.
Rufus Robbins, who can no longer perform his previous job due to a shoulder injury, still works at Howard Industries in a different role and earns higher wages than before. Howard Industries argues that Robbins's continued employment and increased earnings rebut the presumption of total industrial loss and should limit his compensation to a forty-five percent functional loss instead of the Commission's finding of a ninety percent industrial loss.
However, evidence of higher post-injury wages does not automatically negate the possibility of a greater industrial loss. The Mississippi Workers’ Compensation Commission must weigh all relevant factors, including the employee's age, education, and work experience. In Robbins's case, the Commission considered his higher wages alongside his advanced age, limited education, and inability to effectively use his left arm, ultimately concluding he suffered a ninety percent industrial loss.
Robbins has been employed by Howard Industries since 1993, and despite multiple surgeries for a torn rotator cuff, he returned to work in 2007 with an increased average weekly wage. In 2012, he filed a Petition to Controvert with the Commission, and during the 2013 hearing, the administrative judge determined Robbins was limited to scheduled-member compensation, as he was capable of working. Nonetheless, the judge awarded full compensation for a total loss of his arm, reflecting a one-hundred percent industrial loss.
Robbins experienced a functional loss of use of his left arm rated at a maximum of forty-five percent, as determined by both Dr. Nowicki and Dr. Vohra, who assigned him impairment ratings of forty-five percent and forty percent, respectively. Due to this impairment, Robbins was restricted to sedentary work, unable to lift more than ten pounds from floor to waist or lift above shoulder height. The Administrative Judge (AJ) concluded that Robbins could not perform substantial acts of his usual employment and thus suffered a total industrial loss of use, awarding him 200 weeks of permanent partial disability at $304.83 per week starting June 29, 2010. Howard Industries was credited for prior payments and overpayments but was liable for legal interest, statutory penalties on unpaid benefits, and reasonable medical services.
Upon review, the Full Commission amended the AJ's order, reducing Robbins's industrial loss of use to ninety percent. The Commission noted Robbins’s background, including limited education and ongoing employment in an accommodated position earning higher wages post-injury, which influenced their decision. They found that while Robbins could not perform his usual employment, his ability to earn more than before negated a total loss of use claim. Consequently, the Commission awarded Robbins 180 weeks of compensation at $804.83 per week, maintaining the credits for prior payments and requiring Howard Industries to cover ongoing medical expenses.
Howard Industries appealed this Commission order, arguing that it was erroneous to find Robbins's industrial loss of use exceeded his impairment rating of forty-five percent. The appeal court's review is constrained to identifying legal errors or unsupported factual findings, and it found none in this case.
In scheduled-member claims, a worker is entitled to the higher of functional loss or occupational loss. Functional loss pertains to medical disability and the physical impairment of the scheduled member, with Robbins having a forty-five percent impairment of his left arm, which Howard Industries does not contest. The company disputes the Commission’s finding that Robbins’s occupational (industrial) loss of use exceeds his functional loss. Occupational loss considers how functional disability affects a worker’s ability to earn wages. Howard Industries argues that since Robbins earns higher wages in his current employment, he could not have suffered an industrial loss, especially one greater than his functional loss.
The company cites cases such as Jensen and City of Laurel to support its argument, claiming misapplication of these precedents by the Commission. However, these cases do not state that higher wages preclude a determination of greater industrial loss than functional loss. In Jensen, for instance, a worker was found to have a twenty-five percent industrial loss despite only having a seven percent impairment rating. The determination of industrial loss must consider the claimant's overall wage-earning capacity, including factors like education, age, ongoing pain, and other circumstances.
The Commission appropriately evaluated all evidence regarding Robbins’s wage-earning capacity. Although Robbins continued to earn higher wages, he was older, had limited education, experienced pain in his arm, and faced lifting restrictions. Based on these factors, the Commission concluded that Robbins suffered a ninety percent industrial loss.
While Howard Industries references two cases suggesting that industrial loss did not exceed functional loss, these do not dictate an identical outcome in Robbins’s case, which is fact-specific. The Commission's finding of a higher industrial loss was supported by substantial evidence.
Lastly, the Commission's conclusion that Robbins could not perform the substantial acts of his usual employment is questioned because, although he can no longer work as a lead-press operator, he remains capable of performing as a horn-press operator, which Howard Industries contests as an accommodated position.
The supreme court in Jensen established that "usual employment" encompasses a wider range of jobs than just the position held at the time of injury, including past roles and those for which the worker is qualified based on various factors like age, education, and experience. In Robbins's case, his "usual employment" included his work as a horn-press operator, a role he currently holds and had prior experience in. The Commission's decision incorrectly equated Robbins's inability to perform as a lead-press operator with a total inability to engage in "usual employment," which is a narrow interpretation. While Robbins’s inability to return to his prior position creates a rebuttable presumption of total industrial loss of his left arm, this presumption is contingent upon proving that he could still earn the same wages. The Commission correctly adjusted Robbins’s industrial loss to ninety percent, acknowledging his continued ability to earn wages. The court affirmed the Commission's order, ruling there was no legal error, and consequently, did not need to address the subsequent issues raised by Howard Industries regarding the duration of permanent partial disability or the assessment of interest and penalties. Robbins’s ongoing employment precluded a total disability compensation claim under Mississippi law.
