SW Legal studies in Business

Finding of Partial Permanent Disability Justified by Record
Description

Mississippi appeals court held that the Workers' Compensation Commission was justified in finding a worker to be partially disabled, not totally disabled, given the medical record and the failure of the worker to diligently seek employment.

Topic Employment Law
Key Words

Workers' Compensation; Permanent Disability; Partial Disability

C A S E   S U M M A R Y
Facts

Smith worked at Johnston Tombigbee for 35 years when he injured his back when moving a load of boards. Treatment did not help so there was surgery. After that, a leg became numb. Treatment was given for that. Eventually, his physician declared him to be 10% permanently disabled with no work restrictions. Smith went to another doctor who prescribed a cane, leg brace, back brace, special shoes, and constant pain medication. Another doctor who then examined Smith saw no major problem and said to get rid of the braces; he declared him to be 5% disabled with no work restrictions. During this time, his employer had reduced the staff and fired Smith. He claimed he could not find another job. Smith filed a claim for permanent total disability and the Administrative Law Judge at the Workers' Compensation Commission agreed. Johnston appealed and the Commission declared Smith to be 30% permanently disabled. Smith appealed that decision.

Decision

Affirmed. Four factors are considered in determining loss of wage earning capacity: 1) amount of education and training that the claimant has had; 2) his inability to work; 3) his failure to be hired elsewhere; and 4) the continuance of pain and any other related circumstances. Evidence supported the Commission decision finding that Smith failed to prove total disability. He had been released for work by two physicians who gave the opinion that he could work. He did not reapply to work for Johnston and he did not diligently pursue alternative employment. As such, a finding of partial disability was justified.

Citation Smith v. Johnston Tombigbee Furniture, ---So.3d--- (2010 WL 1039457, Ct. App., Miss., 2010)

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