MS Court Reiterates Claimant May Qualify for PPD Benefits in Spite of Increased Earnings
The Court of Appeals of Mississippi affirmed a decision of the state's Workers' Compensation Commission that found an injured worker was entitled to PPD benefits of $81.38 per week for 450 weeks, in spite of the fact that his hourly pay had increased from $12.83, at the time of the work-related accident, to $13.18 per hour at the time he reached MMI, to $13.63 per hour at the time of the hearing [Chambers v. Howard Indus., 2021 Miss. App. LEXIS 13 (Jan. 12, 2021)]. The Court agreed that the worker had rebutted the presumption of no loss of wage-earning capacity, but it declined to say the Commission had calculated the worker's PPD benefits erroneously–i.e., too low–finding substantial evidence supported the Commission's factual findings. The case illustrates the important distinction between earnings and earning capacity.
Background
On August 7, 2013, the worker suffered a work-related injury to his neck while operating a brake press. In June 2015, he underwent a C3-C6 discectomy and fusion, and on June 22, 2016, he reached MMI. The employer admitted the basic compensability of the injury, but did not agree that the worker was entitled to PPD benefits.
Earnings History
An Administrative Judge held a hearing to determine the extent of permanent disability or loss of wage-earning capacity that resulted, if any. As indicated above, evidence presented at the hearing established that at the time of the work-related accident, the worker earned $12.83 per hour, that his hourly rate increased to $13.18 at the time he reached MMI, and to $13.63 at the time of the hearing. Stated differently, prior to the injury, the worker earned an average weekly wage of $610.35, and since returning to work after reaching MMI, he earned $703.56 weekly. The Judge nevertheless found that the worker sustained a 20 percent loss of wage-earning capacity, translating to a loss of $122.07 per week, figured at 20 percent of his pre-injury average weekly wage. As a result, the employer was ordered to pay PPD benefits at the rate of $81.38 per week for a maximum of 450 weeks.
Rebutting Presumption of No Loss of Wage-Earning Capacity
The Court noted that the initial question on appeal was whether the worker had rebutted the presumption of no loss of wage-earning capacity. After all, he was earning more at the time of the hearing than at the time he sustained the injuries. The Court observed that the Commission had found the presumption rebutted on the basis that the worker did not perform his job in the same manner as before. He testified that the employer made his job easier to perform by providing the assistance of a second brake-press operator to lift heavy objects. Additionally, there was evidence that the increase in the worker's wage was a result of an overall increase in general wage levels since the injury. Moreover, the worker presented vocational evidence to demonstrate that he would have a reduction in wages due to his injury in the open labor market if he were to become unemployed. Based on that evidence, the Court agreed that the worker had rebutted this presumption of no loss of wage-earning capacity.
Substantial Evidence Supported Commission's Calculation of PPD Benefits
Observing further, that the decision on loss of wage-earning capacity was largely factual, and was to be left largely to the discretion and estimate of the Commission, the Court indicated the Commission appropriately weighed factors such as the worker's age, experience, employment for three years post-MMI, increase in wage, and his demonstrated continuance in earning overtime for three years post-MMI. Taking the 20 percent loss of wage-earning capacity into account, the Commission's calculations equated to $610.35 x 20% = 122.07 x .6667 = $81.38. That finding was supported by substantial evidence.
Comment
It is axiomatic that in most instances, the degree of a worker's disability is usually calculated by comparing actual earnings before the injury with earning capacity after the injury. It is at once apparent, however, that the two items in the comparison are not quite the same [see Larson's Workers' Compensation Law, § 81.01[1]]. A mere demonstration of reduction in earnings after the injury is not in itself enough; the claimant must show that the reason for the reduction was the injury. Similarly, a finding of disability may stand even when, as in the present case, there was evidence of post-injury earnings exceeding those received before or at the time of the accident.
This Mississippi decision is completely in line with the prevailing rule, which may be summarized by saying that actual post-injury earnings will create a presumption of earning capacity commensurate with them, but the presumption may be rebutted by evidence independently showing incapacity or explaining away the post-injury earnings as an unreliable basis for estimating capacity. As indicated in Larson, 81.01[4]:
Unreliability of post-injury earnings may be due to a number of things; increase in general wage levels since the time of accident; claimant’s own greater maturity or 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.