Gregg v. Natchez Trace Electric Power Ass'n
2011 Miss. LEXIS 280
| Miss. | 2011Background
- Gregg sustained a compensable low back injury July 21, 2004 while lifting a tool belt as a serviceman for Natchez Trace Electric Power Association.
- He underwent back surgery and reached maximum medical improvement May 2, 2006, returning to work December 15, 2006 with a 10% anatomical disability and a permanent climbing restriction.
- Preinjury duties included climbing poles and ladders, turning power on/off, and on-call service calls with a wage structure providing base pay plus on-call and overtime compensation.
- After injury, Gregg was taken off the on-call list because he could not climb, reducing his potential on-call earnings.
- The ALJ found no permanent disability; the Commission adopted, and the Circuit Court and Court of Appeals affirmed, upholding no loss of wage-earning capacity.
- The Mississippi Supreme Court reversed and remanded for a hearing on lost wage-earning capacity, holding the post-injury wage alone did not defeat potential loss of earning capacity.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did Gregg prove a loss of wage-earning capacity due to the climbing restriction? | Gregg argues the restriction eliminates on-call earnings and thus reduces earning capacity. | Natchez Trace contends wages post-injury were adequate, creating no loss of capacity. | Yes; remanded to develop wage-earning-capacity evidence. |
| Is there a presumption of no loss of wage-earning capacity when post-injury wages meet or exceed preinjury wages? | Gregg rebutted the presumption with evidence the on-call component was lost due to injury. | Defendant relies on the presumption remaining unrebutted if post-injury wages are higher. | Presumption rebuttable; evidence showed loss of on-call income due to injury. |
| Did the Commission misapply the governing law by focusing solely on post-injury wages? | Record shows the climbing restriction would have allowed on-call earnings absent the restriction. | Employer argues wage comparisons suffice to show no loss of capacity. | Remand to develop wage-earning-capacity evidence; legal standard requires relation of injury to earning capacity, not simple wage comparison. |
Key Cases Cited
- Gen. Elec. Co. v. McKinnon, 507 So.2d 363 (Miss. 1987) (presumption of no loss of wage-earning capacity when post-injury wages equal or exceed preinjury wages)
- Natchez Equip. Co., Inc. v. Gibbs, 623 So.2d 270 (Miss. 1993) (de novo review of legal questions; agency misapprehension of controlling law = no deference)
- Cent. Elec. Power Ass'n v. Hicks, 110 So.2d 351 (Miss. 1959) (law governing disability and wage-earning capacity analysis)
- Am. Potash & Chem. Corp. v. Rea, 228 So.2d 867 (Miss. 1969) (burden on claimant to prove disability and its extent)
- Karr v. Armstrong Tire & Rubber Co., 61 So.2d 789 (Miss. 1953) (benefits calculated as a percentage of wage-earning capacity after injury)
- Barber Seafood, Inc. v. Smith, 911 So.2d 454 (Miss. 2005) (credibility and scope of review in workers' compensation findings)