62 So. 3d 414
Miss. Ct. App.2010Background
- Mixon, a floorhand on a Greywolf land-based oil rig, was struck by an electrical event during disassembly in a storm and later developed shoulder injuries.
- He filed a petition to controvert with the Mississippi Workers' Compensation Commission; the AJ found compensable injury and 70% loss of use.
- The Commission affirmed compensability but reduced loss of use to 25% and lowered average weekly wage from $1,290 to $607.88.
- Greywolf cross-appealed, contesting compensability; Mixon sought to unravel the disability and wage calculations.
- Mixon testified to a jolting sensation and subsequent shoulder problems; doctors offered competing causation opinions, some linking injuries to the lightning event.
- The circuit court affirmed the Commission; Mixon appeals to the Court of Appeals seeking reversal on disability rating and wage calculations, among other issues.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Loss of use determination final? | Mixon argues 100% total occupational loss per Meridian Baseball. | Greywolf contends the presumption did not apply; post-injury earnings negate total loss. | No error; presumption did not arise; Commission's partial disability finding supported by substantial evidence. |
| Average weekly wage calculation | AJ's $1,290 should be used; Harris not controlling due to schedule. | Seven-on/seven-off schedule requires inclusion only for hours worked; Harris inapplicable. | Correct; using two-week block earnings and schedule-based method yields 607.88. |
| Accountability of additional insurance carriers | Liberty Mutual and others should be held liable as carriers. | Not properly raised below; carriers bound only if appeared and substituted. | Not a proper appellate question; carriers appearing are bound, but no ruling on allocation. |
| Compensable injury on cross-appeal (causation) | Medical opinions support causation from lightning. | Dr. Graham disputes causation, suggesting alternative causes. | Substantial evidence supports Commission's finding of compensable injury. |
Key Cases Cited
- Meridian Professional Baseball Club v. Jensen, 828 So.2d 740 (Miss. 2002) (presumption of total occupational loss if unable to continue in usual employment)
- Weatherspoon v. Croft Metals, Inc., 853 So.2d 776 (Miss. 2003) (standard for reviewing Workers' Compensation determinations; credibility)
- Hill v. Mel, Inc., 989 So.2d 969 (Miss.Ct.App.2008) (ability to earn post-injury wages defeats total disability)
- McGowan v. Orleans Furniture, Inc., 586 So.2d 163 (Miss. 1991) (factors for loss of wage-earning capacity assessment)
- Harris v. Suggs, 233 Miss. 533, 102 So.2d 696 (Miss. 1958) (weeks worked must be adjusted by missed opportunities when wages are hourly)
- Short v. Wilson Meat House, LLC, 36 So.3d 1247 (Miss. 2010) (standard of review for factual findings in WC cases)