MWCC NO. 96 07612-G-8741-E

CHRISTOPHER CRAIG WELLS                                                                                                                                                                CLAIMANT

VERSUS

MISSISSIPPI PUBLIC SERVICE COMMISSION                                                                                                                                    EMPLOYER
AND
MISSISSIPPI STATE AGENCIES SELF-INSURED WORKERS' COMPENSATION TRUST                                                                CARRIER

APPEARING FOR CLAIMANT:
Steven H. Funderburg, Esquire, Jackson, Mississippi

APPEARING FOR EMPLOYER:
Richard M. Edmonson, Jr., Esquire, Jackson, Mississippi

The Commission heard the above styled cause on September 10, 2001 in the offices of the Mississippi Workers' Compensation Commission in Jackson, Mississippi on the "'Employer's Petition for Review of Decision of Administrative Judge" and the claimant's Motion to Introduce Additional Evidence."

After considering the motion, and there being no objection from the employer, the claimant's motion is sustained and the medical note of Dr. Rahul Vohra dated July 31, 2001 and addressed to Mr. Funderburg, identified as Exhibit A to the claimant's motion and attached thereto, is admitted into evidence in this cause.

On September 1 7, 2001 the claimant filed a motion to supplement the record in light of the discussion at the hearing relative to the claimant's offer of employment with "Best Buy." There being no objection from the employer and carrier, the claimant's motion is sustained and the following information is submitted into the record:

The claimant worked for "Best Buy" for several days. Unfortunately, no one explained to the claimant that the job position involved unloading 18 wheelers loaded with electronic equipment two nights a week. The claimant was under the impression that the job he was offered was a supervisor/loss prevention job. The claimant explained to his superiors that he would be unable to unload 18 wheelers two nights a week, and he then was terminated.

3. Claimant is entitled to permanent partial disability benefits for a period of 225 weeks at the rate of $264.55 per week or the proportional part thereof, based upon the conclusion that the claimant has sustained a 50 % permanent loss of wage-earning capacity. The employer is entitled to proper credit for any permanent partial disability benefits previously paid to the claimant. For each untimely permanent partial disability benefit that is not timely paid there shall accrue the proper statutory penalties and interest.

SO ORDERED, this the 3rd day of October, 2001.

MISSISSIPPI WORKERS' COMPENSATION COMMISSION
BY:  BEN BARRETT SMITH
BARNEY SCHOBY
COMMISSIONERS

ATTEST:
Jo Ann McDonald, Secretary

I have carefully reviewed the record in this case, including the newly adduced evidence which was admitted into the record on September 10, 2001 and subsequent to September 1 7, 2001. I can find no reason to reduce the award to Mr. Wells from 337.5 weeks to 225 weeks. The Administrative Judge found that the claimant suffered a substantial, but not total, loss of wage earning capacity. There were no facts or law provided by the employer in its brief or argument that should compel the Commission to substitute its judgment for that of the Administrative Judge. Her order, finding that the claimant suffers a 75% loss of wage earning capacity, should be affirmed.

Repeatedly it seems that individuals find themselves "stuck" on presumptions. A presumption is defined by Webster as ""the grounds lending probability to a belief." That is precisely what a presumption is - a notion that something is more likely, more probable, to be one way than another; thus, the presumption that post-injury wage earnings equate post-injury wage earning capacity. Post-injury wages are suggested as a "predictor" of post-injury wage earning capacity. But that presumption may be rebutted by evidence that post-injury earnings may be an unreliable basis for determination of post-injury wage earning capacity. Likewise, individuals often find themselves forgetful of the fact that it is not a post-injury wage that we seek, but post-injury wage earning capacity, which is not measured merely by pre-injury wage versus post-injury wage, but which brings a great many more aspects into consideration.

What facts could the majority have found in the present case to justify the substitution of a finding of 50% permanent partial disability for the Administrative Judge's finding of 75% a permanent partial disability? These facts remain unrevealed. The majority simply seemed to "'like" 50% better. There is no new evidence or argument to sway the Commission to determine that the Administrative Judge was too generous in this case. The law, aptly stated and applied by the Administrative Judge, has not changed. Indeed, the evidence submitted by the claimant after the granting of his two motions to submit additional evidence would support the Administrative Judge's opinion rather than challenge it.

The only facts in the case that were before the Commission and not before the Administrative Judge were the facts concerning claimant's loss of his positions with "the Pantry" and "Best Buy" (the former unrelated to his injury while the latter termination related specifically to the limitations resulting from his injury) and those facts and opinions contained in Dr. Vohra's July 31, 2001 letter, which was admitted into evidence as a result of the Commission's order granting claimant's Motion to Introduce Additional Evidence, which motion was not opposed by employer. Here, in toto, are additional facts and Dr. Vohra's opinions as contained therein:

This letter is in response to your question concerning my patient, Chris Wells. As you know, I continue to follow Chris on a regular basis for his axial neck pain complaints. Chris is currently working in a job²which requires a significant amount of driving. I do believe that this is contributing to his ongoing neck pain complaints. Although he is currently tolerating driving long distances, I am concerned about his ability to maintain this level of activity on a long term basis. At some point I suspect that his pain will worsen to the point where he will not longer be able to tolerate long distance driving.

In truth and fact, Christopher Craig Wells is a young man with a substantial permanent medical impairment which has impacted significantly on his desire for a life-long career in law enforcement or some associated field. In addition, his impairment has precluded him from any occupation which requires a "sound body."⁴ And the medical evidence before the Commission from Doctors Vohra, Neill, Capel and Alexander indicate that it is likely that the claimant's cervical condition will continue to deteriorate over his lifetime, not improve.

In this case, there is no dispute over facts. The injury was ultimately admitted by the employer; the parties stipulated to the claimant's average weekly wage; although initially denying the compensability of the injury, the employer paid all temporary total disability benefits due and owing to the claimant and paid for all his medical services and supplies. The parties agreed at oral argument that the Mississippi Public Service Commission provided the claimant an employment accommodation specifically tailored for him after it was determined that he could not return to his regular duty as an inspector of commercial vehicles due to restrictions placed on him by Dr. Vohra. They also agreed that this accommodation position is not recognized by the Public Service Commission and Colonel Bill Summers, the claimant's supervisor, could not confirm that this position would be a lasting one which would be available to the claimant over time. They agreed that the claimant acknowledged the temporal nature of the accommodation position with the Public Service Commission, initiated a job search, and thereafter took a position in internal affairs of "the Pantry", a convenience store enterprise, and that the claimant lost this position as a result of economic downturn rather than as a result of his physical condition. He then took a job at "Best Buy'; he was terminated from his employment with "Best Buy" after only a few days when it became clear that he could not unload electronic equipment from 18 wheelers two nights a week.

While in her order, Administrative Judge Mounger speaks to the "position created by the employer"⁵ which was of "admittedly unpredictable duration"⁶, the Commission has before it even more undisputed evidence of the claimant's wage earning capacity or, in this case, lack thereof. The Commission now knows:

· the claimant did obtain the position at "the Pantry" of which Administrative Judge Mounger wrote at page 9 of her order;

· the claimant lost this position due to economic downturn, not his physical condition;

· the claimant's treating physician believes that the driving which was required of the claimant in order to fulfill his duties at "'the Pantry" contributed to claimant's ongoing neck pain complaints

· the claimant's treating physician believes that the claimant's neck pain will worsen to preclude him from long distance driving;⁷and

· the claimant's subsequently found position with "Best Buy" was of short duration, since the claimant, being unable to unload truckloads of electronic equipment, was terminated.

A careful review of the record together with the additional evidence posited before the Commission by the claimant compel adherence to the decision of the Administrative Judge. For as Vardamann Dunn reminds us:

This issue finds no statutory guide or definition and much is, therefore, left to the uncertainty of a factual estimate which is necessarily lacking in mathematical accuracy.... For lack of a better guide, the matter is left largely, if not entirely, to the estimate of the Commission, subiect to its mandatory duty to view such issues with liberality toward the claimant.⁹

Indeed, if as the employer argues, the claimant has not sustained a significant loss of wage earning capacity, the employer has an opportunity to demonstrate this under Mississippi Code Annotated, §71-3-53 (1972) (as amended) at such time as the evidence is clear on this point. But based on the facts before the Commission, the Order of Administrative Judge should be affirmed.

LYDIA QUARLES
COMMISSIONER
 
 

1 Commissioner Quarles dissents. Her opinion is attached hereto and incorporated herein by this reference.

2 Dr. Vohra is referring to the job with "the Pantry."

3 Order of Administrative Judge, dated April 13,2001, p. 12.

4 Order of Administrative Judge, p. 12.

5 Id.

6 Id.

7 As noted in the second paragraph of this opinion, not only Dr. Vohra, but Doctors Neill, Capel and Alexander believe that the claimant's cervical condition will continue to deteriorate.

8 An arguable presumption arises that the claimant has suffered no loss of wage-earning capacity if his post-injury wages equal or exceed his pre-injury wages. See, Dunn, Mississippi Workmen's Compensation,§67 (3d ed. 1982 and Supp. 1990).

9 Id.

10 These include an increase in general wage levels, increased maturity or training, longer hours worked, sympathy wages, temporary and unpredictable character of post-injury earnings, permanent injury, limitations on job opportunities in a type of work requiring a sound body, and shortness of time between attainment of maximum medical recovery and the hearing.