Postinjury 'sympathy' wages don't establish loss of wage-earning capacity
Case name: Tucker v. Bellsouth Telecommunications, Inc., No. 2012-WC-00093-COA (Miss. Ct. App. 06/18/13).
Ruling: The Mississippi Court of Appeals held that a technician did not sustain a loss of wage-earning capacity after his first accident and he was entitled to 450 weeks of benefits for a body-as-a-whole injury for his second accident.
What it means: In Mississippi, a worker's assertion that his postinjury wages were paid out of sympathy and that he needed assistance to perform his job duties is insufficient evidence to rebut the presumption that he suffered no loss of wage-earning capacity.
Summary: A cable repair technician was involved in a traffic accident while on his way to a job assignment. He injured his neck and underwent surgery. He returned to work but claimed that he had trouble performing his duties. Later, he was in a second traffic accident and injured his shoulder and back and reinjured his neck. The technician sought benefits for both accidents. The Mississippi Court of Appeals held that he did not sustain a loss of wage-earning capacity after the first accident and he was entitled to 450 weeks of benefits for a body-as-a-whole injury for his second accident.
The technician asserted that although he continued to work for the employer after the first accident at the same pay rate, he rebutted the presumption that he suffered no loss of wage-earning capacity. He claimed that the employer paid him the same wages after his injury "out of sympathy" and that he needed assistance from coworkers to perform his job duties. The court rejected his argument, finding no evidence that there was a general increase in pay after his injury, that he had greater maturity or training after his injury, that he worked longer hours after his injury, or that his postinjury earnings were temporary and unpredictable.
The technician also asserted that his body-as-a-whole injury and shoulder injury were separate and distinct injuries that should have separate compensation. The court rejected this argument, explaining that a worker cannot "pyramid" benefits and receive in excess of the maximum weekly benefits during any period. A lump-sum payment did not avoid the problem of pyramiding.
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September 16, 2013
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