Gregg v. Natchez Trace Electric Power Association, No. 2009-WC-00699-COA (Miss. Ct. App. 06/08/10).
Ruling: The Mississippi Court of Appeals ruled that a serviceman was not entitled to permanent disability benefits. He failed to show that he had a loss of wage-earning capacity.
What it means: A claimant can rebut the presumption of no loss of wage-earning capacity when his postinjury earnings are higher than his preinjury earnings.
Summary: A serviceman for an electric company injured his back while lifting a tool belt at work. He underwent surgery and was restricted from climbing poles. The serviceman filed a workers' compensation claim and was awarded temporary total disability benefits. The serviceman's income increased after his injury. The Mississippi Court of Appeals rejected his claim for permanent disability benefits because he failed to prove a loss of wage-earning capacity.
The serviceman argued that his work-related injury caused a loss of wage-earning capacity, so he should be entitled to permanent disability benefits. Generally in Mississippi, when a claimant's postinjury earnings are higher than or equal to his preinjury earnings, the court presumes there is no loss of wage-earning capacity. The court noted that this presumption can be rebutted by showing any of the following: 1) an increase in general wage levels; 2) increased maturity or training; 3) longer hours worked; 4) sympathy wages; 5) temporary and unpredictable character of postinjury earnings; 6) an inability to work; 7) a failure to be hired elsewhere; and 8) the continuance of pain and other related circumstances.
The serviceman argued that his wages increased because of two cost-of-living raises. The court rejected the argument for lack of evidence.
The serviceman also argued that his wages increased because of "sympathy wages" from his employer when he was placed on modified duty that did not require pole climbing. The company argued that it was following its policy of accommodating employees with medical restrictions. Other employees of the company testified that some other servicemen did not climb poles.
The serviceman argued that he lost overtime each month since he couldn't climb poles. The court stated that he failed to show he couldn't earn overtime pay or perform the duties of a serviceman without climbing poles.
The serviceman also stated that he could not be hired as a serviceman elsewhere because he could not climb poles, but the court noted that pole climbing is not necessary to all the duties of a serviceman. Therefore, the serviceman was unable to rebut the presumption of no loss of wage-earning capacity.
Read more at the WorkersComp Forum homepage.
August 23, 2010
Copyright 2010© LRP Publications