327 So.3d 678
Miss. Ct. App.2021Background
- On May 26, 2015 Kathy Pybus, a Kroger grocery clerk, suffered a pelvic fracture at work, underwent surgery, and reached MMI on May 23, 2017.
- Functional capacity evaluations (May and Nov 2017/2018) and Dr. Russell’s opinions limited Pybus to light-duty work with some occasional medium-level tasks; Kroger allowed her to return as a clerk on August 21, 2017.
- Administrative Judge (AJ) initially denied permanent disability and found post-injury wages exceeded pre-injury wages (creating a presumption of no loss of wage-earning capacity).
- The Mississippi Workers’ Compensation Commission reversed, found Pybus rebutted the presumption (citing age, restrictions, pain, and employer accommodations), remanded for loss-of-wage-earning-capacity analysis, and ultimately awarded permanent partial disability: loss of capacity to earn $349.20/week on the open market, producing a $142.14/week benefit for 450 weeks.
- Kroger appealed, arguing the Commission relied improperly on “loss of access” alone and failed to make adequate factual/legal findings; the Court of Appeals affirmed, holding the Commission’s decision was supported by substantial evidence.
Issues
| Issue | Pybus (Plaintiff) argument | Kroger (Defendant) argument | Held |
|---|---|---|---|
| Did the Commission make adequate findings to support loss-of-wage-earning-capacity? | Commission’s prior and final orders together supplied sufficient factual and vocational analysis supporting the award. | Commission failed to provide detailed analysis or correct method for calculating wage-earning capacity. | Affirmed: Court found the record and Commission orders (including remand work) provided substantial evidence and adequate analysis. |
| Was reliance on "loss of access" improper or exclusive? | Loss of access was supported by vocational testimony and was considered alongside age, restrictions, pain, and accommodations. | Commission impermissibly relied solely on loss of access and ignored contrary evidence (e.g., employer testimony, higher post-injury wages). | Affirmed: Court held loss of access was a valid factor and the Commission considered the evidence as a whole; loss of access was emphasized because the presumption had been rebutted. |
| Was there substantial evidence to support the Commission’s wage-capacity finding and calculation? | Vocational expert testimony supported a post-injury open-market capacity of $8.73/hr ($349.20/wk); statute yields $142.14/wk benefit. | Employer disputed the vocational conclusions and argued post-injury wages and collective-bargaining raises rebut a loss. | Affirmed: Court concluded substantial evidence supported the Commission’s computation and award. |
Key Cases Cited
- Gregg v. Natchez Trace Elec. Power Ass’n, 64 So. 3d 473 (Miss. 2011) (defines disability as physical injury plus loss of wage-earning capacity)
- Gen. Elec. Co. v. McKinnon, 507 So. 2d 363 (Miss. 1987) (lists nonexclusive factors for when post-injury earnings are unreliable)
- Neshoba Cnty. Gen. Hosp. v. Howell, 999 So. 2d 1295 (Miss. Ct. App. 2009) (loss-of-wage-earning-capacity is largely a factual determination for the Commission)
- Seals v. Pearl River Resort, 301 So. 3d 585 (Miss. 2020) (substantial-evidence standard for Commission findings)
- Pruitt v. Howard Indus. Inc., 232 So. 3d 822 (Miss. Ct. App. 2017) (presumption of no loss when claimant returns to same job earning same/higher wages)
- Guardian Fiberglass Inc. v. LeSueur, 751 So. 2d 1201 (Miss. Ct. App. 1999) (enumerates factors to evaluate wage-earning capacity)
- Spann v. Wal-Mart Stores Inc., 700 So. 2d 308 (Miss. 1997) (Commission’s legal conclusions reviewed de novo)
- Imperial Palace Casino v. Wilson, 960 So. 2d 549 (Miss. Ct. App. 2006) (Commission is ultimate fact-finder in workers’ comp)
- Barber Seafood Inc. v. Smith, 911 So. 2d 454 (Miss. 2005) (standard for clearly erroneous factual findings)
- Weathersby v. Miss. Baptist Health Sys. Inc., 195 So. 3d 877 (Miss. Ct. App. 2016) (loss of access and continuing pain are relevant to rebutting the presumption)