Gregg v. Natchez Trace Electric Power Ass'n

• Decision Date: 09 June 2011
• Docket Number: No. 2009–CT–00699–SCT.,2009–CT–00699–SCT.
• Citation: 64 So.3d 473
• Parties: Barry GREGGv.NATCHEZ TRACE ELECTRIC POWER ASSOCIATION and Electric Power Associations of Mississippi Workers' Compensation Group, Inc.
• Court: Mississippi Supreme Court

64 So.3d 473

Barry GREGG

v.NATCHEZ TRACE ELECTRIC POWER ASSOCIATION and Electric Power Associations of Mississippi Workers' Compensation Group, Inc.

No. 2009–CT–00699–SCT.

Supreme Court of Mississippi.

June 9, 2011.

Angela Turner Lairy, Bennie L. Turner, West Point, attorneys for appellant.Amy K. Taylor, attorney for appellees.EN BANC.

ON WRIT OF CERTIORARI

CHANDLER, Justice, for the Court.

¶ 1. Barry Gregg filed a petition to controvert concerning a work-related injury to his back that he sustained at his job as a serviceman with Natchez Trace Electric Power Association (Natchez). Gregg claimed that the injury had rendered him permanently partially disabled because, due to a pole-climbing restriction imposed after the injury, he was no longer able earn on-call compensation. After a hearing, an administrative law judge found Gregg had sustained no permanent disability. The Workers' Compensation Commission (Commission) adopted the findings of the administrative law judge. Gregg appealed to the Circuit Court of Webster County, which affirmed the order of the Commission. Then, Gregg appealed to the Court of Appeals, which affirmed the decision of the circuit court. Gregg v. Natchez Trace Electric Power Ass'n, 64 So.3d 489, 494–95 (Miss.Ct.App.2010).

¶ 2. This Court granted Gregg's petition for certiorari to consider whether the Commission erred by denying permanent partial disability benefits. We reverse and remand to the Commission for a hearing on the issue of lost wage-earning capacity.

FACTS

¶ 3. Gregg worked as a serviceman for Natchez. On July 21, 2004, he sustained an admittedly compensable injury to his lower back while lifting a tool belt. Gregg had surgery on his back, and his treating physician determined that he had reached maximum medical improvement on May 2, 2006. He returned to work on December 15, 2006, with a ten percent anatomical disability rating and a permanent climbing restriction.

¶ 4. At a hearing before an administrative law judge, Gregg testified that his preinjury job duties had consisted of restoring power, turning power on and off, climbing poles, and climbing ladders and hooking up service. He stated that his preinjury duties had required climbing and some heavy lifting. Gregg and his supervisor testified that he also had performed on-call service calls. Gregg was on call every other week for a seven-day period. He received a flat rate of one hour of time-and-a-half pay for each day he was on call, whether or not he actually performed any service calls that day. Gregg also automatically received two hours of time-and-a-half pay for each on-call service call that he performed, plus additional hourly pay if the time exceeded two hours.

¶ 5. After the injury, Gregg returned to work as a serviceman; his supervisor testified that other members of Gregg's crew performed any climbing that was required on the job. Both Gregg and his supervisor testified that, because Gregg could no longer climb, he was taken off the on-call list. Gregg claimed that he was permanently partially disabled because, due to the climbing restriction, he was no longer able to earn on-call compensation after the injury as he did before the injury.

¶ 6. Gregg's preinjury average weekly wage was $840.21, including on-call compensation, and his post-injury average weekly wage was $891.21, without on-call compensation. Gregg testified that the reason his post-injury earnings exceeded his preinjury earnings was that his base pay as a serviceman had increased due to cost-of-living raises. He testified that, because he was taken off the on-call list, he was no longer eligible to earn on-call compensation in addition to his base pay. Gregg argued that, but for the injury, he would receive compensation for on-call duties in addition to his base pay, as he did preinjury. Therefore, Gregg argued, his wage-earning capacity had decreased due to the injury.

¶ 7. The administrative law judge found that Gregg had failed show any permanent disability as a result of the injury. The full Commission, with one commissioner dissenting, adopted the decision of the administrative law judge. Gregg appealed to the circuit court, which affirmed the order of the Commission. The Court of Appeals affirmed the decision of the circuit court.

STANDARD OF REVIEW

¶ 8. This Court's review of a decision of the Workers' Compensation Commission is limited to determining whether the decision was supported by substantial evidence, was arbitrary and capricious, was beyond the scope or power of the agency to make, or violated one's constitutional or statutory rights. Short v. Wilson Meat House, LLC, 36 So.3d 1247, 1250 (Miss.2010) (quoting Public Employees' Ret. Sys. v. Dearman, 846 So.2d 1014, 1018 (Miss.2003)). The concept of substantial evidence overlaps with the arbitrary-and-capricious standard, such that a decision that is unsupported by substantial evidence is necessarily arbitrary and capricious. Id. at 1251. Because the Commission is the ultimate fact-finder and judge of the credibility of the witnesses, this Court may not reweigh the evidence before the Commission. Id. (quoting Barber Seafood, Inc. v. Smith, 911 So.2d 454, 461 (Miss.2005)).

¶ 9. This Court affords de novo review to the Commission's application of the law. Natchez Equip. Co., Inc. v. Gibbs, 623 So.2d 270, 273 (Miss.1993). “The legal effect of the evidence, and the ultimate conclusions drawn by [the Commission] from the facts ... are questions of law, especially where the facts are undisputed or the overwhelming evidence reflects them.” Cent. Elec. Power Ass'n v. Hicks, 236 Miss. 378, 388–89, 110 So.2d 351, 356 (1959). “[W]hen the agency has misapprehended a controlling legal principle, no deference is due, and our review is de novo.” ABC Mfg. Corp. v. Doyle, 749 So.2d 43, 45 (Miss.1999).

DISCUSSION

¶ 10. Under the Workers' Compensation Law, “compensation shall be payable for disability ... of an employee from injury ... arising out of and in the course of employment, without regard to fault....” Miss.Code Ann. § 71–3–7 (Rev.2000). “ ‘Disability’ means incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or other employment, which incapacity and the extent thereof must be supported by medical findings.” Miss.Code Ann. § 71–3–3(i) (Rev.2000). “Disability” comprises (1) an actual physical injury; and (2) loss of wage-earning capacity. I. Taitel & Son v. Twiner, 247 Miss. 785, 157 So.2d 44, 46 (1963).

¶ 11. The claimant bears the burden of proof of disability and its extent. Am. Potash & Chem. Corp. v. Rea, 228 So.2d 867, 868 (Miss.1969). This is not a simple comparison of the preinjury wage with the post-injury wage. Karr v. Armstrong Tire & Rubber Co., 216 Miss. 132, 137, 61 So.2d 789, 792 (1953). “The benefits are figured on a percentage of applicant's average weekly wages at the time of the injury as compared to ‘his wage-earning capacity thereafter in the same employment or otherwise.’ ” Id.

¶ 12. A rebuttable presumption of no loss of wage-earning capacity arises when the claimant's post-injury wages are equal to or exceed his preinjury wage. Gen. Elec. Co. v. McKinnon, 507 So.2d 363, 365 (Miss.1987). This presumption is rebutted by

evidence on the part of the claimant that the post-injury earnings are unreliable due to: increase in general wage levels since the time of accident, claimant's own greater maturity and training, longer hours worked by claimant after the accident, payment of wages disproportionate to capacity out of sympathy to claimant, and the temporary and unpredictable character of post-injury earnings.

Id. (emphasis added). “[A]ny factor or condition which causes the actual post-injury wages to become a less reliable indicator of earning capacity will be considered.” Id.

¶ 13. In the decision adopted by the Commission, the administrative law judge observed that Gregg makes more money after the injury than he earned before the injury. The administrative law judge found that Gregg had shown that he was permanently restricted from climbing. In her decision, the administrative law judge stated:

The claimant suffered an admittedly compensable injury in the form a[sic] back injury and was temporarily and totally disabled from the date of July 21, 2004 to and through the date designated and stipulated to be the date of maximum medical improvement, namely May 2, 2006.

Lay and medical testimony indicate that the claimant was ultimately returned to full duty with singular description and/or restriction of “no climbing” later specified to be “no pole climbing” which could indeed have been a part of serviceman work for the power company. However, lay testimony was replete with references that such “pole climbing” is not required for the discharging of all pertinent duties relative to the claimant's current employment. He is in no danger of losing his job because of this permanent restriction and, further, it has no impact on his wage earning potential. Ergo, all factors considered, the claimant has suffered no [loss of] wage earning capacity and none is found.

The Court of Appeals affirmed the Commission's decision on the basis of the presumption that, because...