114 So. 3d 18
Miss. Ct. App.2013Background
- Whiddon, a concrete-pump operator for Southern Concrete Pumping, sustained an August 7, 2009 back injury in the course of employment.
- He sought workers’ comp for loss of wage-earning capacity, claiming a permanent industrial disability.
- The AJ found temporary total disability (Aug 7, 2009–Feb 18, 2010) but no permanent wage-earning-capacity loss.
- The Commission affirmed the AJ’s decision in July 2011; Whiddon appealed.
- Whiddon underwent MRI/medical treatment culminating in maximum medical improvement in January 2010; a vocational evaluation analyzed wage loss.
- Evidence showed Whiddon earned less at Nichols Concrete due to fewer duties, not due to his injury.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether there is permanent loss of wage-earning capacity | Whiddon argues loss evidenced by experts | Whiddon’s lower income due to layoffs and fewer duties, not injury | No substantial evidence of permanent wage loss; affirmed |
Key Cases Cited
- F & F Constr. v. Holloway, 981 So.2d 329 (Miss.Ct.App.2008) (scope of review; substantial evidence standard)
- Omnova Solutions, Inc. v. Lipa, 44 So.3d 935 (Miss.2010) (two-part disability: functional and industrial)
- Spann v. Wal-Mart Stores, Inc., 700 So.2d 308 (Miss.1997) (disability analysis framework)
- Union Camp Corp. v. Hall, 955 So.2d 363 (Miss.Ct.App.2006) (distinction between functional and industrial disability)
- Robinson v. Packard Elec. Div., Gen. Motors Corp., 523 So.2d 329 (Miss.1988) (functional vs. industrial disability concept)