WILLIE J. BROWN                                                                                                                                                                                              CLAIMANT

VS.

UNITED TECHNOLOGIES MOTORS SYSTEMS, INC.                                                                                                                                EMPLOYER

AND

THE INSURANCE COMPANY OF TIlE STATE OF PA.                                                                                                                                     CARRIER

Representing Claimant:
Roger K. Doolittle, Esquire, Jackson, MS

Representing Employer/Carrier:
G. Davis Peterson, Esquire, Jackson, MS
 

This matter was heard by the Commission on December 10, 2001 pursuant to the Claimants Request for Review. The Claimant argues that the Administrative Judge acted contrary to law, as well as arbitrarily and capriciously, when she denied his Motion to Reopen Record in an Order entered August 16, 2001.

Willie Brown was originally awarded permanent partial disability benefits by the Administrative Judge for the total loss of use of his right arm. In finding the Claimant suffered a total loss of use of his arm for wage earning purposes, the Administrative Judge, in an Order entered August 28, 2000, considered the fact that he could no longer perform the same work he did for 28 years prior to his injury, the fact that Mr. Brown could not perform any other similar work at United Technologies where he had been employed for over 30 years, the fact that United that his medical restrictions would limit his ability to compete for employment in the general labor market.

The Employer/Carrier petitioned the Commission to review the Administrative Judge's Order, and on March 1, 2001 the Commission entered its own Order finding in relevant part as follows:
 

Due to his significant prior experience with the Employer and his demonstrated work abilities, Mr. Brown has been able to obtain other work with the Employer which is both suitable and gainful. Granted, the Employer has offered a significant accommodation by allowing Mr. Brown to work no more than 6 hours per day, but his history with the company obviously justifies such an accommodation and the work is nonetheless gainful and suitable.

Of course, this employment also highlights the significant reduction in wage earning capacity which Mr. Brown has incurred because of his injury, and the difficulty he would likely encounter trying to find comparably gainful employment in the general labor market. When we consider the nature ef his post injury employment, along with his age, education, experience and physical restrictions, we conclude that Mr. Brown has an occupational disability of 50% based on the loss of use of his right arm. We therefore reverse the Administrative Judge's award of permanent partial disability benefits to Mr. Brown and order instead that the Employer and Carrier pay Mr. Brown permanent partial disability benefits for a 50% loss of use of his right arm, less any permanent partial disability benefits previously paid. In all other respects, the Opinion of the Administrative Judge is affirmed. (emphasis added).
 

Instead of taking the usual course and pursuing an appeal from the Commission to circuit court as provided by Miss. Code Ann. §71-3-51 (Rev. 2000), Mr. Brown instead filed a Motion to Reopen Record on April 10, 2001. In support of this Motion, Mr. Brown alleged that the United Technologies facility where he had been previously employed had permanently closed its operations, thus ending his chances for continued employment at United. Mr. Brown, in an apparently veiled reference to Miss. Code Ann. §71-3-53 (Rev. 2000), argued that this plant closing constituted a substantial change in circumstances within one (1) year of the last Commission Order, and, consequently, his claim should be reopened for the purpose of allowing him to submit additional evidence concerning the plant closing and to have his claim for permanent disability benefits reevaluated in light of this evidence.

In response, the Employer/Carrier admitted United Technologies had decided to close the facility where Mr. Brown worked, but had not yet decided on a specific timetable for this event. The Employer/Carrier argued that, in any event, the Commission previously considered not only Mr. Brown's employment at United, but also his prospects for employment elsewhere such that this singular event is irrelevant.

The Administrative Judge noted that both the Administrative Judge and the Commission considered Mr. Brown's prospects for employment outside of United in making their respective determinations as to Mr. Brown's permanent disability. The Judge allowed Mr. Brown the opportunity to submit additional evidence concerning the closing of the United Technologies facility, but in the end found this fact was "not a change in condition such as to support reopening for further proceedings and/or awards pursuant to the reopening statute in the Mississippi Workers' Compensation Act. .

Notwithstanding our concern that Mr. Brown is attempting to use the reopening provisions of the Act as a substitute for appeal in an effort to "in effect have two trials rather than one," in the end we agree with the Administrative Judge that what Mr. Brown offers as justification for his Motion is plainly insufficient to justify the invocation of §71-3-53 or the reconsideration of his claim for permanent disability. North Miss. Medical Ctr. v. Henton, 317 So.2d 373, 376 (Miss. 1975). The only significance of the facility closing is that Mr. Brown would be required to look to the general labor market for suitable employment, and his prospect for employment outside of United is a fact already taken into consideration by the Administrative Judge who heard his claim initially as well as the Commission.

We affirm the Administrative Judge's decision denying the Claimant's Motion to Reopen Record, but we reverse that part of the Judge's Order which allowed Mr. Brown to supplement the record with evidence concerning the closing of the Untied Technologies facility. Not only has the Employer admitted that this facility would be closing down its operations, evidence to this effect is simply irrelevant under the circumstances. The Claimant's Motion to Reopen Record is, therefore, denied in its entirety.

SO ORDERED this the 19th day of December, 2001.

MISSISSIPPI WORKERS' COMPENSATION COMMISSION
BEN BARRETT SMITH, CHAIRMAN
BARNEY J. SCHOBY, COMMISSIONER

ATTEST:
Jo Ann McDonald, Commission Secretary