Anthony Chambers v. Howard Industries Inc

Jackson, MS - Disability lawyer represented APPELLANT with appealing the award for payment of permanent disability benefits.

On August 7, 2013, Chambers suffered a work-related injury to his neck while

operating a brake press. In June 2015, he underwent a C3-C6 discectomy and fusion, and on

June 22, 2016, he reached maximum medical improvement (MMI) for his work-related

injury.

¶3. As a result of his injuries, Chambers filed a petition to controvert alleging that he

injured his neck and spine on August 7, 2013, while lifting metal. On May 3, 2018, Howard

Industries filed its answer and admitted that the suffered injuries were work-related. On

January 21, 2019, the Administrative Judge held a hearing to determine the extent of

permanent disability or loss of wage-earning capacity that resulted, if any.

¶4. On the date of the accident, Chambers earned $12.83 per hour and worked ten to

twenty hours of overtime each week. Additionally, he returned to work before reaching MMI

and continues to work as a brake press operator at Howard Industries. To better

accommodate Chambers, Howard Industries assigned another employee to picking up metal

to be used on the 13-foot brake press that he operates. When he reached MMI, his pay

increased to $13.18 per hour, and by the time of the hearing, his pay rate had increased to

$13.63 per hour. Prior to the injury, Chambers earned an average weekly wage of $610.35,

and since returning to work after reaching MMI, he now earns $703.56 weekly.

¶5. The Administrative Judge found that Chambers sustained a twenty percent loss of

wage-earning capacity, translating to a loss of $122.07 per week, figured at twenty percent

of his pre-injury average weekly wage. As a result, Howard Industries was ordered to pay

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permanent partial-disability benefits at the rate of $81.38 per week (two-thirds of $122.07)

beginning June 23, 2016, and continuing for a period of 450 weeks. Chambers now appeals

this decision.

STANDARD OF REVIEW

¶6. "The standard of review in worker's compensation cases is limited by the substantial

evidence test.” McDonald v. I.C. Isaacs Newton Co., 879 So. 2d 486, 489 (¶11) (Miss. Ct.

App. 2004). This Court will not reverse the Commission's decision unless we find that it is

clearly erroneous and contrary to the overwhelming weight of the evidence. Smith v. B.C.

Rogers Processors Inc., 743 So. 2d 997, 1002 (¶13) (Miss. Ct. App. 1999).

¶7. We review the Commission's application of the law de novo. Gregg v. Natchez Trace

Elec. Power Ass'n, 64 So. 3d 473, 475-76 (¶9) (Miss. 2011). "The legal effect of the

evidence, and the ultimate conclusions drawn by the Commission from the facts[,] are

questions of law, especially where the facts are undisputed or the overwhelming evidence

reflects them.” Id. "When the agency has misapprehended a controlling legal principle, no

deference is due, and our review is de novo.” Id.

DISCUSSION

I. Whether substantial evidence supportsthatChambershas rebutted

the presumption of no loss of wage-earning capacity.

¶8. Chambers argues that the Commission did not properly calculate the permanent

partial-disabilitybenefits undersection 71-3-17(c)(25).However, before reaching an analysis

of statutory calculations, Chambers must first rebut the presumption of no loss of wage3

earning capacity due to having an increase in post-injury pay. "A rebuttable presumption of

no loss of wage-earning capacity arises when the claimant's post-injury wages are equal to

or exceed his pre-injury wage.” Gregg, 64 So. 3d at 476 (¶12). This presumption is rebutted

by

evidence on the part of the claimant that the post-injury earnings are unreliable

due to: increase in general wage levels since the time of accident, claimant's

own greater maturity and training, longer hours worked by claimant after the

accident, payment of wages disproportionate to capacity out of sympathy to

claimant, and the temporary and unpredictable character of post-injury

earnings.

Id. "Any factor or condition which causes the actual post-injury wages to become a less

reliable indicator of earning capacity will be considered.” Id.

¶9. The Commission found this presumption was rebutted by the evidence Chambers

presented. Chambers presented evidence showing that he does not perform his job in the

same manner because Howard Industries made his job easier to perform by providing the

assistance of a second brake-press operator. Additionally, the increase in his wage was a

result of an overall increase in general wage levels since his injury. Chambers also presented

vocational evidence to demonstrate that he would have a reduction in wages due to his injury

in the open labor market if he were to become unemployed. We agree that Chambers has

rebutted this presumption of no loss of wage-earning capacity.

II. Whether substantial evidence supports the Commission's

calculation of Chamber's permanent partial-disability benefits.

¶10. The Commission calculated Chamber's permanent partial disability pursuant to

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section 71-3-17(c)(25), which is now at issue. This statute provides:

In all other cases in this class of disability, the compensation shall be sixty-six

and two-thirds percent (66-2/3%) ofthe difference between his averageweekly

wages, subject to the maximum limitations as to weekly benefits as set up in

this chapter, and his wage-earning capacity thereafter in the same employment

or otherwise, payable during the continuance of such partial disability, but

subject to reconsideration of the degree ofsuch impairment by the commission

on its own motion or upon application of any party in interest. Such payments

shall in no case be made for a longer period than four hundred fifty (450)

weeks.

Miss. Code Ann. § 71-3-17(c)(25).

¶11. Based upon the testimony of his vocational rehabilitation consultant, Angela Malone,

Chambers contends that his average post-injuryearning capacityis $9.40 per hour in the open

labor market, which is equivalent to $360 per week. Applying these figures to the statute,

Chambers argues that the proper calculation should have included the stipulated average

weekly wage of $610.35, resulting in $166.83 per week for permanent partial-disability

benefits: $610.35 - 360.00 = $250.25 x .6667 = 166.83.

¶12. However, the decision on loss of wage-earning capacity is "largely factual and is to

be left largely to the discretion and estimate of the Commission.” Richards v. Harrah's

Entm't Inc., 881 So. 2d 329, 333 (¶10) (Miss. Ct. App. 2004) (quoting Vardaman S. Dunn,

Mississippi Workmen's Compensation § 68 (3d ed.1982)). When determining loss of wageearning capacity, several factors must be considered by the reviewing court. Those factors

are "(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 post-injury

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earnings, (6) employee's inability to work, (7) employee's failure to be hired elsewhere and

(8) the continuance of pain and other related circumstances.” Id. (citing Guardian Fiberglass

Inc. v. LeSueur, 751 So. 2d 1201, 1204-05 (¶10) (Miss. Ct. App.1999)). "The determination

must be made by evaluating the evidence as a whole.” Id.

¶13. While the testimony of the vocational expert aided the Commission's decision, the

testimony is not solely determinative. The Commission affirmed the finding of the

Administrative Judge that Chambers sustained a twenty-percent loss of wage-earning

capacity compared to his stipulated pre-injury average weekly wage. The Commission

reached this decision by weighing factors such as Chambers's age, experience, employment

for three years post-MMI, increase in wage, and his demonstrated continuance in earning

overtime for three years post-MMI. Taking the twenty-percent loss of wage-earning capacity

into account, the Commission's calculations equated to $610.35 x 20% = 122.07 x .6667 =

$81.38.

¶14. Similarly, in Itta Bena Plantation III v. Gates, 282 So. 3d 721, 725 (¶13) (Miss. Ct.

App. 2019), the Commission found the Claimant to have a seventy-five percent loss of wageearning capacity. Although not spelled out in the opinion, the calculations are the same that

the Commission used in this case. The claimant's average weekly wage at the time of injury

was $718.05, and the Court awarded him $359.02 per week in permanent disability benefits

for 450 weeks. Applying these figures to the calculations results in a similar equation in

which this Court affirmed the Commission's decision: $718.05 x 75% = 538.5375 x .6667

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= 359.04 (notably two cents more)

Finding substantial evidence to support the calculation of the Commission, we affirm the decision. The Commission’s award of $81.38 per week for 450 weeks was not clearly erroneous nor contrary to the overwhelming weight of the evidence; therefore, we shall not disturb the decision.