282 So.3d 721
Miss. Ct. App.2019Background
- Raymond L. Gates, a 56-year-old former tractor driver, suffered a compensable work-related back injury and reached maximum medical improvement (MMI) on July 13, 2015.
- Treating physician Dr. Rahul Vohra assigned permanent light-duty restrictions (lifting up to 30 lbs rarely, 20 lbs occasionally) and a 7% whole-body impairment; an independent evaluator, Dr. Howard Katz, opined Gates could perform medium-duty work but agreed to a 7% impairment.
- Vocational expert Angela Malone calculated Gates’s loss of access to the labor market as 74% under light-duty restrictions and 17% under medium-duty restrictions; Gates applied for work without success and thereafter obtained Social Security Disability.
- The administrative judge (AJ) found a 75% loss of wage-earning capacity and awarded permanent partial disability (PPD) benefits of $359.02/week for 450 weeks; the Mississippi Workers’ Compensation Commission affirmed.
- Employer appealed the loss-of-wage-earning-capacity calculation and the medical-restriction findings; Gates cross-appealed, arguing he was permanently totally disabled (PTD) and challenging Malone’s deposition, report, and testimony.
Issues
| Issue | Plaintiff's Argument (Gates) | Defendant's Argument (Itta Bena / Benchmark) | Held |
|---|---|---|---|
| Whether the AJ erred in calculating loss of wage-earning capacity | Gates argued the Commission improperly equated loss of wage-earning capacity with loss of access to the labor market and disregarded vocational testimony | Employer argued the AJ ignored Malone’s vocational testimony and miscalculated loss of wage-earning capacity | Affirmed: AJ and Commission considered Malone’s testimony plus the record; 75% loss supported by substantial evidence |
| Proper interpretation of medical evidence and work restrictions | Gates contended treating physician’s restrictions showed greater impairment supporting higher award | Employer relied on IME (Dr. Katz) and Malone’s view that restrictions allowed medium-duty work | Affirmed: Commission credited treating physician (Dr. Vohra) over IME; substantial evidence supports light-duty restriction finding |
| Whether Gates proved permanent total disability (PTD) and whether presumption was rebutted | Gates argued he made a prima facie showing of PTD by seeking work and failing to obtain it | Employer argued it rebutted the PTD presumption by presenting evidence (Malone) that Gates remained employable | Affirmed: AJ found presumption rebutted; substantial evidence supports denial of PTD |
| Admissibility and use of Malone’s deposition and supplemental report | Gates argued deposition should be excluded and supplemental report stricken (denying opportunity to cross-examine) | Employer obtained AJ permission to take deposition due to unavailability and updated Malone’s report to reflect stipulated average weekly wage | Affirmed: Commission did not abuse discretion; deposition admissible and updated report permissibly considered |
Key Cases Cited
- Mitchell Buick, Pontiac & Equipment Co. v. Cash, 592 So. 2d 978 (Miss. 1991) (substantial-evidence standard for review of Commission findings)
- Natchez Equipment Co. Inc. v. Gibbs, 623 So. 2d 270 (Miss. 1993) (Workers’ Compensation Commission is ultimate fact-finder)
- Mont.’s Sea Kettle Restaurant v. Jones, 766 So. 2d 100 (Miss. Ct. App. 2000) (review limited to errors of law or unsupportable findings of fact)
- Moore’s Feed Store Inc. v. Hurd, 100 So. 3d 1011 (Miss. Ct. App. 2012) (when Commission adopts AJ findings, they stand as Commission’s findings)
- Bryan Foods Inc. v. White, 913 So. 2d 1003 (Miss. Ct. App. 2005) (loss of wage-earning capacity is largely a factual determination for the Commission)
- Airtran Inc. v. Byrd, 953 So. 2d 296 (Miss. Ct. App. 2007) (factors for determining loss of wage-earning capacity include pre-injury wages and post-injury capacity)
- Neshoba County General Hosp. v. Howell, 999 So. 2d 1295 (Miss. Ct. App. 2009) (Commission must consider evidence as a whole, including loss of access to job market)
- Raytheon Aerospace Support Services v. Miller, 861 So. 2d 330 (Miss. 2003) (Commission resolves conflicts in medical testimony)
- Choctaw Resort Dev. Enter. v. Applequist, 161 So. 3d 1134 (Miss. Ct. App. 2015) (Commission judges witness credibility and resolves evidentiary conflicts)
- Howard Industries Inc. v. Satcher, 183 So. 3d 907 (Miss. Ct. App. 2016) (prima facie showing for PTD requires seeking work and inability to obtain it)
- Lott v. Hudspeth Center, 26 So. 3d 1044 (Miss. 2010) (once prima facie PTD shown, burden shifts to employer to rebut)