Caretaker's failure to seek employment doesn't block benefits

An injured worker in Mississippi can show that she suffered a total industrial or occupational loss of use by either demonstrating an unsuccessful attempt to find other work or that she could not perform the substantial acts of her usual employment.

Case name: Cole v. Ellisville State School, No. 2009-WC-01768-COA (Miss. Ct. App. 10/19/10).

Ruling: The Mississippi Court of Appeals held that a caretaker was entitled to permanent partial disability benefits for her injured knee.

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What it means: An injured worker in Mississippi can show that she suffered a total industrial or occupational loss of use by either demonstrating an unsuccessful attempt to find other work or that she could not perform the substantial acts of her usual employment.

Summary: A caretaker injured her left knee while lifting a disabled resident at a school. She had a torn meniscus, which required surgery, and she later received a knee replacement. The caretaker was terminated for exceeding the number of days available for leave without pay. Following her termination, she remained unemployed and did not seek employment with the school or elsewhere. The caretaker claimed that her knee constantly popped, it was painful, and she could not bend it properly. The Mississippi Court of Appeals held that the caretaker was entitled to permanent partial disability benefits for her injury.

Despite the school's contention, the court stated that the caretaker's decision to not seek employment did not prevent her from receiving permanent partial disability benefits because she demonstrated that she could not perform the substantial acts of her usual employment. For more than a decade, the caretaker worked in food service and as a caretaker. The court stated that a part-time secretarial job she held for four months was not considered part of her usual employment. Her jobs required her to walk and stand for prolonged periods of time, as well as lift heavy items. Her orthopedic surgeon placed restrictions prohibiting prolonged walking and standing and lifting over 25 pounds.

Read more at the WorkersComp Forum homepage.

January 10, 2011

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