Bailey v. Bryant

Citations: 734 So. 2d 301; 1999 Miss. App. LEXIS 35; 1999 WL 58974Docket: No. 97-CC-01029 COA

Court: Court of Appeals of Mississippi; February 8, 1999; Mississippi; State Appellate Court

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On January 18, 1994, John Bryant sustained a lower back injury while working for Winston R. Bailey, which led to temporary total disability benefits being granted from January 20, 1994, to June 23, 1994. Following this, Bryant filed a petition to controvert on December 13, 1994. A hearing on August 2, 1996, resulted in the administrative law judge (ALJ) extending Bryant's temporary total disability to July 6, 1995, and indicating he had not reached maximum medical improvement (MMI). The ALJ also recognized a period of temporary partial disability thereafter. The Mississippi Workers’ Compensation Full Commission later amended this decision, determining that MMI was reached on June 29, 1995, and awarded temporary total disability benefits until that date. They classified Bryant as permanently partially disabled starting June 30, 1995, with a loss of wage earning capacity of $285 per week.

Winston Bailey and National American Insurance Company (NAIC) appealed to the circuit court, which affirmed the Commission's decision. They subsequently appealed again, raising three points of error regarding the timing of the circuit court's order, the application of presumptions related to post-injury wages, and the sufficiency of evidence supporting the Commission's findings. The court found only harmless error and upheld the circuit court's judgment.

Bryant's injury occurred when he fell thirteen feet while closing a tanker, and he initially received treatment from a chiropractor before being referred to neurosurgeon Dr. Rodney Olinger. Olinger's examinations revealed tenderness, muscle tightness, and an MRI indicated some disc issues. By June 12, 1995, he assessed that Bryant had reached MMI, recommended no surgery, noted potential persistent pain, and assigned a 7% permanent partial impairment rating.

On April 13, 1994, Mr. Bryant was referred by NAIC to Dr. Edward Kaplan for a neurosurgical evaluation due to insomnia and recurring low back pain with radiation into his lower extremities. Dr. Kaplan diagnosed him with lumbar strain and referred him to Ergoplex for physiotherapy. After attending for four days, Mr. Bryant discontinued treatment due to increased pain, with the center noting his unwillingness to take responsibility for his recovery. On June 22, 1994, during a follow-up visit, Mr. Bryant reported improved pain with inactivity, but exhibited right lumbar tenderness and mild limitations in movement. Dr. Kaplan assessed a permanent partial impairment of 0-1% and deemed Mr. Bryant medically stable to return to work.

On July 6, 1995, Dr. Robert Smith evaluated Mr. Bryant, reviewing prior medical records and an MRI that indicated degenerative changes and a bulging disc at L3/L4. Dr. Smith concluded that Mr. Bryant had an old disc issue exacerbated by a fall, but noted no need for surgery and projected a long recovery period before full healing, allowing for a return to some employment.

On July 29, 1996, Dr. Randall Thomas, a psychologist, assessed Mr. Bryant's vocational capabilities, deeming him unemployable due to illiteracy and pain, although he suggested that with controlled pain, Mr. Bryant could work within medical restrictions. Conversely, vocational rehabilitation consultant Glenn Fortenberry indicated potential employment opportunities at various retailers.

After reviewing the evidence, an administrative law judge determined Mr. Bryant's temporary total disability lasted from January 18, 1994, to July 6, 1995, followed by temporary partial disability benefits until further court orders. Both parties appealed to the Workers’ Compensation Full Commission, resulting in partial amendments and reversals. Winston Bailey and NAIC subsequently appealed to the circuit court and are now appealing to this Court.

The circuit court's affirmation of the Mississippi Workers’ Compensation Commission's decision is challenged on two grounds. First, the appellants, Winston Bailey and NAIC, argue that the circuit court erred by issuing its order before the 40-day period for filing briefs, as outlined in M.R.A.P. 31(b), and before receiving the appellants' brief. The court records indicate that the circuit court affirmed the Commission's decision just 37 days after the record was filed, with the appellants submitting their brief four days later. Although the court acknowledged the importance of considering all briefs, it concluded that the trial court's oversight was a harmless error since the appellate court's review relies solely on the official record rather than the briefs.

Second, the appellants contend that both the circuit court and the Commission failed to apply the legal presumption that a claimant's post-injury wages are indicative of their wage-earning capacity. Under Mississippi law, post-injury earnings that meet or exceed pre-injury wages create a presumption of no loss in earning capacity, which can be rebutted by evidence demonstrating that such earnings are unreliable. The appellants argue that the Commission did not address this presumption or whether it was rebutted by the claimant, Mr. Bryant. The relevant statutory provision, Miss.Code Ann. 71-3-17(c)(25), has been interpreted to support this presumption, as affirmed by the Mississippi Supreme Court.

The Court assumes the trial court made sufficient factual determinations to support its judgment in the absence of specific findings. It concludes that the Commission established a presumption of no loss of wage-earning capacity, which was ultimately overcome. Mr. Bryant's post-injury employment as a truck driver demonstrated this presumption, but his earnings were inconsistent and temporary, leading to an unreliable assessment of his wage-earning capacity. Although Mr. Bryant worked for Lambert Marks and Macaroy Trucking, he experienced ongoing back pain that hindered his ability to maintain stable employment. Consequently, the Commission determined he suffered a weekly loss of wage-earning capacity amounting to $285, calculated from his pre-injury average wage of $475, using minimum wage for his current earning capacity.

Winston Bailey and NAIC argued that Mr. Bryant’s post-injury earnings indicated a smaller loss, estimating it at $134.27. However, the Workers’ Compensation Commission's findings are conclusive if supported by substantial evidence, and the Court affirmed the Commission’s determination that Mr. Bryant could only engage in minimum wage employment due to his injury. The judgment of the Circuit Court of Neshoba County was affirmed, with costs assigned to the appellants.