Operator must rebut presumption on remand

When an injured employee returns to work and receives the same or greater earnings as prior to the injury, a rebuttable presumption arises that she suffered no loss in wage-earning capacity.

Case name: Omnova Solutions, Inc. v. Lipa, No. 2008-CT-00500-SCT (Miss. 08/12/10).

Ruling: The Mississippi Supreme Court held that the lower court failed to connect a worker's loss in wages to her work-related injury. The court remanded the case to consider whether the worker could rebut the presumption that she did not suffer a loss of wage-earning capacity without considering that she lost her preinjury job due to a collective bargaining agreement.

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What it means: When an injured employee returns to work and receives the same or greater earnings as prior to the injury, a rebuttable presumption arises that she suffered no loss in wage-earning capacity. The presumption may be rebutted by evidence showing incapacity or by explaining that the postinjury earnings are unreliable for estimating capacity.

Summary: A let-off operator was injured when she was struck by a forklift at work. She received temporary total disability benefits while she was unable to work for two years. The operator claimed that she sustained a loss of wage-earning capacity. Approximately four months after she returned to her position, she was "bumped" to a lower paying position under a collective bargaining agreement. The Mississippi Supreme Court decided that the lower court failed to connect the operator's loss in wages to her work-related injury. The court remanded the case for a determination of whether the operator could rebut the presumption that she did not suffer a loss of wage-earning capacity, without considering that she lost her preinjury job due to the collective bargaining agreement.

The operator claimed that when she returned to her position, she was only able to perform her duties with the aid of a coworker. The court noted that the operator's "bump" was caused by a collective bargaining agreement and not by her work-related injury.

A dissenting judge found that the lower court did find that the operator's loss of wage-earning capacity was due to her workplace injury. The judge also noted that when an injured worker has postinjury earnings that are the result of a collective bargaining agreement, the earnings are temporary and unpredictable and do not bar a worker from proving a loss of wage-earning capacity.

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November 15, 2010

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