Martha Lott v. Hudspeth Center ( 2007 )

IN THE SUPREME COURT OF MISSISSIPPI
NO. 2007-CT-01525-SCT
MARTHA LOTT
v.
HUDSPETH CENTER AND MISSISSIPPI STATE
AGENCIES WORKERS’ COMPENSATION TRUST
ON WRIT OF CERTIORARI
DATE OF JUDGMENT: 08/20/2007
TRIAL JUDGE: HON. JOSEPH H. LOPER, JR.
COURT FROM WHICH APPEALED: MONTGOMERY COUNTY CIRCUIT
COURT
ATTORNEY FOR APPELLANT: WILLIAM BENJAMIN RYAN
ATTORNEY FOR APPELLEE: WILLIAM BIENVILLE SKIPPER
NATURE OF THE CASE: CIVIL - WORKERS’ COMPENSATION
DISPOSITION: THE JUDGMENT OF THE COURT OF
APPEALS IS REVERSED AND THE
JUDGMENT OF THE MONTGOMERY
CIRCUIT COURT IS REINSTATED AND
AFFIRMED - 01/07/2010
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC.
PIERCE, JUSTICE, FOR THE COURT:
¶1. After a hearing before an administrative-law judge, Martha Lott was found
permanently disabled in accordance with Mississippi Code Section 71-3-17(a) (Rev. 2000).
The judge required her employer, Hudspeth Center (“Hudspeth”), to pay Lott total disability
payments for a period of 450 weeks. Hudspeth and the Mississippi State Agencies Workers’
Compensation Trust (“carrier”) appealed to the Mississippi Workers’ Compensation
Commission (“Commission”). The Commission issued its Order on June 29, 2006,
reversing the administrative judge, and disallowing Lott from receiving 450 weeks of
permanent, total disability benefits. The Commission determined that Lott had no additional
loss of wage-earning capacity in excess of the maximum allowed for scheduled-member
injuries pursuant to Mississippi Code Section 71-3-17(c) (Rev. 2000). Lott then appealed
the decision of the Commission to the Montgomery County Circuit Court. On August 31,
2007, the Montgomery County Circuit Court affirmed the Commission’s decision. Lott then
appealed to the Mississippi Supreme Court, and the case was assigned to the Court of
Appeals. The Court of Appeals reversed the ruling of the Commission and the circuit court,
finding that Lott had made a prima facie showing of permanent total disability that Hudspeth
had failed to rebut. As a result, the Court of Appeals awarded Lott compensation equal to
sixty-six-and-two-thirds percent of her average weekly wage before her injury, for a period
of 450 weeks. This matter is now before this Court on Hudspeth Center’s and the carrier’s
petition for writ of certiorari.
FACTS
¶2. Martha Lott was an employee of the Kilmichael Group Home, which is operated by
Hudspeth. Lott worked as a direct-care worker, and one of her duties was to assist mentally
disabled adults and patients in wheelchairs with their everyday needs. On May 15, 2003, Lott
sustained an injury to her right shoulder while lifting a patient from a wheelchair at the
Kilmichael Group Home. Lott reported her injury to her employer and sought treatment from
Dr. Asa Bennett, an orthopedic specialist. Dr. Bennett diagnosed a torn rotator cuff, and
prescribed physical therapy. Because the therapy alone was not working, he subsequently
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performed surgery to repair the injury on October 6, 2003. He also prescribed physical
therapy for Lott after the surgery.
¶3. Prior to her surgery, Lott was terminated from her job. The letter she received giving
notice of her termination stated that she was being let go because of her probationary status,
not because of her injury. The termination took effect on September 30, 2003. Lott began
her job search approximately five months after her original injury in March 2004. Prior to
and during her job search, Lott continued her treatment and reached maximum medical
improvement on June 29, 2004, without any work restrictions, according to Dr. Bennett.
However, Dr. Bennett did assess Lott’s disability as a ten-percent impairment to her right
upper extremity.
¶4. After being discharged by Dr. Bennett, Lott retained an attorney and filed her petition
to controvert on August 30, 2004. Lott claimed that she was entitled to permanent disability
benefits in excess of the ten-percent anatomical disability rating assigned by Dr. Bennett.
Lott was then referred by her attorney to Kay Cannon for a functional capacity evaluation
(FCE). After the FCE, Cannon found that Lott could return to work at a sedentary light
physical demand level. Cannon noted that Lott was limited by “very poor body mechanics”
and was self-limited by her pain.
¶5. Lott was then directed to Dr. David Collipp by the carrier for another evaluation. Dr.
Collipp prescribed physical therapy and scheduled Lott for a second FCE to measure the
success of physical therapy. After this FCE, Lott’s only limitation, according to Dr. Collipp,
was that she was unable to lift 100 pounds. Dr. Collipp found that Lott could return to work
with a maximum lifting limit of sixty pounds.
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¶6. After her evaluation by Dr. Collipp, Lott began to seek other employment. She
corresponded with Ann Allen, a vocational rehabilitation counselor with F.A. Richards and
Associates, who advised Lott on a few occasions about jobs available in Lott’s area. Lott sent
resumes and/or completed job applications to nearly all of the employers suggested by Allen,
but she received no offers. She did not send a resume for one job as a metal fabricator,
because she did not know what the job entailed, and she had no experience in that field.
Since working with Allen had produced no results, Lott initiated her own search for
employment. The record contains evidence that Lott applied for or inquired about a total of
194 separate positions in her hometown, as in well as surrounding communities.
¶7. A hearing finally was conducted before an administrative-law judge on July 6, 2005,
concerning the petition filed by Lott on August 30, 2004. The hearing was to determine
whether, and to what extent, Lott had any permanent disability, and what opportunities she
had for future employment. Lott’s medical records were admitted into evidence, as were the
reports of Cannon and Dr. Collipp. David Stewart, a vocational expert testifying on behalf
of Hudspeth and the carrier, stated that Lott was able to perform some work, but only
sedentary to light work. Stewart based his opinion on the first FCE, and he did not consider
the FCE conducted by Dr. Collipp. Further, Stewart testified that his practice is to help
clients find employment when requested to do so, but Lott never requested his services in
finding employment. Stewart also testified that the unemployment rate in Montgomery
County was higher than the state average, and that factor had limited Lott’s employment
opportunities as much as her injury had.
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¶8. After hearing the testimony, the administrative-law judge found that Lott was
permanently disabled in accordance with Mississippi Code Section 71-3-17(a) (Rev. 2000).
The judge required that Lott receive permanent, total disability payments for a period of 450
weeks. Hudspeth and the carrier appealed the decision of the judge to the Commission. After
oral arguments, the Commission reversed the administrative-law judge and found that Lott
was entitled to only 200 weeks of permanent partial disability benefits, which is the
maximum for her scheduled member injury. See Miss. Code Ann. § 71-3-17(c) (Rev. 2000).
¶9. Lott appealed the Commission’s decision to the Circuit Court of Montgomery County.
The circuit court reviewed the Commission’s findings and deferred to its judgment as the
finder of fact. The circuit court specifically noted that the Commission believed that Lott had
retained significant functional abilities and thus retained some earning capacity. Since the
Commission had reviewed the evidence, and it was unconvinced that Lott was permanently
and totally disabled, and there was substantial evidence in the record to support that finding,
the circuit court refused to overturn the holding of the Commission.
¶10. Lott then appealed that decision to this Court, and her appeal was assigned to the
Mississippi Court of Appeals. The Court of Appeals reversed the decision of the Circuit
Court of Montgomery County, finding that Lott had made a prima facie showing of
permanent, total disability, which Hudspeth had failed to rebut. The Court of Appeals
awarded Lott compensation equal to sixty-six-and-two-thirds percent of her average weekly
wage before her injury for a period of 450 weeks. This matter is now before this Court on
writ of certiorari.
LEGAL ANALYSIS
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Whether the circuit court erred in affirming the Commission’s decision
that Martha Lott was entitled only to benefits equivalent to ten percent
loss of her arm, as opposed to permanent total disability benefits.
¶11. Lott asserts that the Commission erred when it held that Lott was not permanently and
totally disabled. This Court agrees with the decision of the Montgomery County Circuit
Court affirming the judgment of the Commission, and we therefore reverse the decision of
the Court of Appeals and affirm that of the circuit court.
¶12. The standard of review in a workers’ compensation appeal is limited to whether the
Commission’s decision is supported by substantial evidence. Walker Mfg. Co. v. Cantrell,
577 So. 2d 1243, 1245-47 (Miss. 1991). “The Workers’ Compensation Commission is the
trier and finder of facts in a compensation claim, the findings of the Administrative Law
Judge to the contrary notwithstanding.” Smith v. Container Gen. Corp., 559 So. 2d 1019,
1021 (Miss. 1990). This Court will reverse an order of the Workers’ Compensation
Commission only where such order is clearly erroneous and contrary to the overwhelming
weight of the evidence. Vance v. Twin River Homes, Inc., 641 So. 2d 1176, 1180 (Miss.
1994).
¶13. In order to receive compensation at all, Lott must show that she has a disability as
defined by the Mississippi Workers’ Compensation Act. See Miss. Code Ann. §71-3-3(i)
(Rev. 2000). To show that a disability exists, the claimant has the burden of proof to make
out a prima facie case of such disability. Georgia Pacific Corp. v. Taplin, 586 So. 2d 823
(Miss. 1991). The trier of fact must determine whether the claimant has made out a prima
facie case based on the evidence presented. Thompson v. Wells-Lamont Corp., 362 So. 2d
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638, 641 (Miss. 1978). Again, “a Commission['s] determination of disability constitutes a
finding of fact.” Georgia Pacific Corp. v. Taplin, 586 So. 2d 823, 828 (Miss. 1991).
¶14. The Mississippi Workers’ Compensation Act defines disability as “incapacity because
of injury to earn the same wages which the employee was receiving at the time of the injury
in the same or other employment . . . . ” Miss. Code Ann. § 71-3-3(i) (Rev. 2000) (emphasis
added)1. In order to determine that an employee is disabled, there must be a finding that “the
claimant could not obtain work in similar or other jobs and that the claimant’s
unemployability was due to the injury in question.” Taplin, 586 So. 2d at 828 (emphasis
added).
¶15. After a claimant has made out a prima facie case, the burden then shifts to the
employer to rebut or refute the claimant’s evidence. Thompson, 326 So. 2d at 641. In
proving total disability, the claimant must prove that she has made a diligent, yet
unsuccessful, effort to garner some form of gainful employment. Adolphe Lafont USA, Inc.
v. Ayers, 958 So. 2d 833, 839 (Miss. Ct. App. 2007) (citing McCray v. Key Constructors,
Inc., 803 So. 2d 1199, 1203 (¶ 17) (Miss. Ct. App. 2000). In determining the reasonableness
of a claimant’s job search, the following factors are considered: job availability, economics
1
The dissent seeks to distinguish the cases and statutes cited in this opinion by arguing that
it is not a requirement that the injury be the reason that a claimant cannot find employment.
However, the statute is abundantly clear. The statute requires that a disability must first be shown
before anything else. To prove there is a disability, there must be “incapacity because of injury.”
Miss. Code Ann. § 71-3-3 (Rev. 2000). The dissent simply wishes to skip over the statutory
guidelines requiring a finding of disability and leap to the loss of wage-earning capacity and
whether the job search was reasonable. This is an incorrect view. One first must find that the
claimant has a disability as defined by statute before analyzing the loss of wage-earning capacity.
The dissent is attempting to put the cart before the horse. The dissent also wishes to treat this as an
unemployment case rather than what it is, which is a worker’s compensation case. This is not what
the Legislature intended when it enacted the Worker’s Compensation Act.
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of the community, the claimant’s skills and background, and the nature of the disability.
Taplin, 586 So. 2d at 828.
¶16. Another consideration in determining whether a claimant has a disability is her wage-
earning capacity. Several factors must be considered in determining loss of wage-earning
capacity, including “the amount of education and training that the claimant has had, [her]
inability to work, [her] failure to be hired elsewhere, the continuance of pain, and any other
related circumstances.” Alumax Extrusions, Inc. v. Wright, 737 So. 2d 416, 422 (Miss.
1998) (citing McGowan v. Orleans Furniture, Inc., 586 So. 2d 163, 167 (Miss. 1991).
¶17. In this case, the Court of Appeals held that the Commission had erred as a matter of
law by not employing the proper legal standard because it “made no findings regarding
whether Lott had made a prima facie case of total disability and whether her employer had
met its burden in showing her efforts were unreasonable.” Lott. v. Hudspeth Center, ___ So.
2d ____, 2008 WL 4405176, 4 (Miss. Ct. App. 2008). This Court does not agree. The
Commission did find that Lott had failed to prove a loss of wage-earning capacity. The
Commission noted that because of this failure, Lott did not meet her burden of showing a
prima facie case of total disability.
¶18. The dissent from the Court of Appeals was correct and followed the standard by
which we must review decisions of the Commission. There is little or no doubt that Lott
suffered an injury. However, that injury must rise to the level of a disability before it is
compensable. Substantial evidence supports a finding that Lott did not have a permanent,
total disability. Thus, we cannot overturn the holding of the Commission where it is “unable
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to conclude that Mrs. Lott is permanently and totally disabled as the result of the injury to
her right arm.”
¶19. Lott claims that the Commission was incorrect, and her job search was diligent, which
entitles to her permanent, total disability benefits. It is true that a claimant may establish a
prima facie case by showing that, despite a reasonable job search, she is unable to find the
same or similar employment. Pontotoc Wire Prods. Co. v. Ferguson, 384 So. 2d 601, 603
(Miss. 1980) (citation omitted). However, this Court has held that “[a] conclusion that the
employee is disabled rests on a finding that the claimant could not obtain work in similar or
other jobs and that the claimant's unemployability was due to the injury in question.”
Taplin, 586 So. 2d at 828 (emphasis added).
¶20. The record shows that Lott applied for or inquired about 194 separate positions.
However, there is substantial evidence that the lack of employment was not due to her injury.
Dr. Bennett released Lott without any work restrictions. The only restriction imposed came
from Dr. Collip. He found that Lott could no longer lift 100 pounds, so she was restricted to
a sixty-pound maximum. Nonetheless, Lott also was restricted by other factors that had
nothing to do with her injury.
¶21. In this case, Lott was terminated from her position with the Kilmichael Group Home
shortly after her accident. Her termination notice stated that she was being terminated due
to her probationary status rather than as a consequence of her injury. After recovering from
her surgery, Lott never reapplied or sought information from Kilmichael Group regarding
employment. Lott claims that no one from the Kilmichael Group ever contacted her after her
9
injury to discuss reinstating her employment. However, it was not the responsibility of the
Kilmichael Group to make contact with Lott regarding potential employment.
¶22. The Commission concluded that Lott was unable to find employment due “to the
depressed economic conditions in the area where she lives, and not to the injury itself.” As
Judge Griffis correctly found, “this conclusion was based on substantial evidence presented
by Lott’s expert who testified that the unemployment rate in Lott’s county of residence was
higher than the state average and that Lott’s inability to find work was limited as much by
the local economy as by her injury.” Lott, ___ So. 2d ___, 2008 WL 4405176, 6 (Griffis, J.,
dissenting).
¶23. This Court is not vested with fact-finding responsibility on appeal. Instead, whether
the claimant has made out a prima facie case is a question to be decided by the trier of fact
on the evidence presented. Thompson, 362 So. 2d at 641. Therefore, whether Lott put forth
a prima facie showing of permanent total disability was an issue to be determined exclusively
by the Commission. Here, the Commission conducted a hearing and clearly held that, based
on the entirety of the evidence, it was “unable to conclude that Ms. Lott is permanently and
totally disabled as the result of the injury to her right arm.”
¶24. After reviewing the record, we cannot say that the Commission’s decision was against
the overwhelming weight of the evidence, or that the decision was not supported by
substantial evidence. Therefore, we reverse the holding of the Court of Appeals and affirm
the decision of the Montgomery County Circuit Court.
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¶25. THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED AND THE
JUDGMENT OF THE MONTGOMERY COUNTY CIRCUIT COURT IS
REINSTATED AND AFFIRMED.
WALLER, C.J., CARLSON, P.J, RANDOLPH AND LAMAR, JJ., CONCUR.
KITCHENS, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY
GRAVES, P.J. DICKINSON AND CHANDLER, JJ., NOT PARTICIPATING.
KITCHENS, JUSTICE, DISSENTING:
¶26. The Commission’s application of the law requires a finding that Ms. Lott be “totally
unable to earn wages” before she is entitled to permanent total disability benefits; however,
such a legal standard is not to be found in Mississippi’s Workers’ Compensation Law or in
this Court’s precedent. Accordingly, I respectfully dissent from the majority opinion, which
adopts this erroneous legal standard.
¶27. The Commission found that Ms. Lott suffers from a one-hundred-percent loss of use
of her right arm, and that she is entitled to scheduled-member benefits under Mississippi
Code Section 71-3-17(c)(1). Thus, Ms. Lott is disabled under Mississippi Workers’
Compensation Law and, by all accounts, is receiving her weekly statutory benefits.
However, Mississippi Workers’ Compensation Law provides that persons with scheduled-
member injuries may seek and receive permanent total benefits. Smith v. Jackson Constr.
Co., 607 So. 2d 1119, 1128 (Miss. 1992). In Smith, this Court held that
[w]here an employee suffers an injury covered by the schedule in Section 71-
3-17(c) and where the injury results in a permanent loss of wage-earning
capacity within Section 71-3-17(a), the latter section controls exclusively and
the employee is not limited to the number of weeks of compensation
prescribed in Section 71-3-17(c)’s schedule.
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Id. at 1128. “If a claimant is unable to earn wages despite only a loss or loss of use of a
scheduled member, then the claimant is permanently and totally disabled.” Id. See also
Meridian Prof’l Baseball Club v. Jenson, 828 So. 2d 740 (Miss. 2002).
¶28. Therefore, the operative issue is not whether Ms. Lott is “totally unable to earn
wages;” it is whether she has suffered a loss of wage-earning capacity within the meaning
of Section 71-3-17(a).2
¶29. In the determination of whether one has suffered a loss of wage-earning capacity, if
a claimant establishes that he or she has made a “reasonable effort” to find “the same or other
employment,” and the employer or insurance carrier fails to “introduce evidence of local
accessible employment opportunities,” the claimant has established a loss of wage-earning
capacity. Miss. Code. Ann. § 71-3-3(I) (Rev. 2000); Pontotoc Wire Prods. Co. v. Ferguson,
384 So. 2d 601 (Miss. 1980); Piper Indus., Inc. v. Herod, 560 So. 2d 732, 735 (Miss. 1990);
Georgia Pacific Corp. v. Taplin, 586 So. 2d 823 (Miss. 1991).
¶30. In Herod, a claimant was injured by sulfur dioxide, which had leaked from a tank he
had been repairing. Herod, 560 So. 2d at 733. After the injury, the claimant was able to find
other employment; however, his income was less than it had been at the job he had held at
the time of injury. Id. In an effort to establish a loss of wage-earning capacity, the claimant
2
Mississippi Code Section 71-3-17(a) governs permanent total disability and provides
that if the facts of a given claim amount to a permanent total disability, the claimant is
entitled to “sixty-six and two-thirds percent (66-2/3%) of the average weekly wages of the
injured employee . . . not to exceed four hundred fifty (450) weeks or an amount greater than
the multiple of four hundred fifty (450) weeks times sixty-six and two-thirds percent (66-
2/3%) of the average weekly wage for the state.” Miss. Code Ann. § 71-3-17(a) (Rev. 2000).
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testified that he had sought employment from two prospective employers in the Tupelo area,
and that he did not seek employment in New Albany, because the furniture business there
had been “hit hard.” Id. The Commission considered these efforts reasonable, and this Court
affirmed, noting that, because the employer had failed to “introduce evidence of local
accessible employment opportunities,” the claimant had established a loss of wage-earning
capacity, and, therefore, was entitled to permanent partial benefits. Id.
¶31. In Ferguson, 384 So. 2d at 602, the employer appealed the Commission’s finding that
the claimant had suffered a loss of wage-earning capacity. The evidence presented to the
Commission established that the claimant was entirely capable of maintaining an office job,
but that he was unable to find employment after a reasonable effort, which entailed applying
for one position and inquiring about one other position. Id. at 603-04. On appeal, this Court
noted that “[i]f a claimant makes a prima facie showing of reasonable efforts indicating there
are not suitable jobs, the burden then shifts to the employer or insurer to show otherwise.”
Id. at 603 (citing Thompson v. Wells-Lamont Corp., 361 So. 2d 638 (Miss. 1978)). The
Court went on to say that the “employer could readily have rebutted the prima facie case with
evidence from such sources as employment agencies clearly showing the local accessibility
of substantial gainful employment suited to [the claimant’s] unfortunate medical condition,
had such evidence been available. But because the employer failed to present such evidence,
we can only conclude none was available.” Id. at 604.
¶32. Similarly, in Taplin, 586 So. 2d at 825, a claimant who was fifteen percent
permanently disabled undertook to prove that he had suffered a loss in wage-earning capacity
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by showing that he had inquired about eight jobs, but to no avail. On appeal, this Court
noted that the applicable rule of law is that, “[o]nce the claimant has made out a prima facie
case, the employer assumes the burden to prove otherwise by showing that the claimant’s
efforts constituted mere sham or unreasonable effort.” Id. at 828. Ultimately, the employer
failed to present any evidence of employment opportunities in the area, and this Court
affirmed the Commission’s finding of loss of wage-earning capacity. Id. at 829.
¶33. Thus, the controlling rule of law is clear: If a claimant makes a prima facie showing
that reasonable but unsuccessful efforts were made to obtain like or similar employment, the
claimant is entitled to permanent total disability benefits, unless the employer or carrier
proves that the efforts of the claimant were either unreasonable or a sham. Ferguson, 384
So. 2d at 603; Herod, 560 So. 2d at 733; Taplin, 586 So. 2d at 828. This rule is in accord
with the Workers’ Compensation Law’s definition of disability, which is an “incapacity
because of [an] 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). Thus, if a
claimant’s injury is supported by a medical finding, and the claimant is unable to earn the
wages that she was earning at the time of injury, the Commission may deny benefits to the
claimant only if it determines, from a preponderance of the evidence, that the claimant’s
efforts to find gainful employment were “unreasonable.” Ferguson, 384 So. 2d at 603;
Herod, 560 So. 2d at 733; Taplin, 586 So. 2d at 828; see also Vardaman S. Dunn,
Mississippi Workmen’s Compensation § 72.1 (1990) (noting that “[i]t is enough to sustain
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an award that the claimant is unable to find other employment after making a ‘reasonable
effort’ to do so.”).
¶34. For Ms. Lott to be awarded permanent total disability benefits, the Commission did
not have to find that she had suffered a total inability to earn wages as a result of her injury.
It was required only to determine whether Ms. Lott had made a reasonable effort to secure
like or similar employment. See, e.g., Smith v. Jackson Constr. Co., 607 So. 2d 1119, 1128
(Miss. 1992); Ferguson, 384 So. 2d at 603; Herod, 560 So. 2d at 733; Taplin, 586 So. 2d
at 828. The Commission made no such finding.
¶35. Moreover, both the Commission and the majority rely on Taplin to support the
proposition that the Commission may consider “job availability, economics of the
community, the claimant’s skills and background, and the nature of the disability,” when
determining whether a person has suffered a loss of wage-earning capacity. Maj. Op. at ¶ 15.
However, a diligent reading of Taplin, Ferguson, and Herod establishes that when a job
pool is limited, or when the education level or skill level of a claimant is limited, these
factors are to be weighed in favor of the claimant, not against him. Taplin, 586 So. 2d at 828;
Ferguson, 384 So. 2d at 603; Herod, 560 So. 2d at 733 (emphasis added). The reasoning
in the majority opinion is that if there are no jobs to be had by the claimant, there will be no
workers’ compensation benefits; however, this goes against the foundation upon which
Mississippi’s workers’ compensation law was established. This Court has been guided
historically “by the beneficent purposes of the Act which mandate that doubtful claims . .
. be resolved in favor of payment of compensation. Hale v. Ruleville Health Care Center,
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687 So. 2d 1221, 1226 (Miss. 1997) (citing Delta Drilling Co. v. Cannette, 489 So. 2d 1378
(Miss. 1986)). “Workmen’s Compensation Law should be construed generously to advance
its underlying remedial aims.” Ferguson, 384 So. 2d at 603 (citing Speed Mech., Inc. v.
Taylor, 342 So. 2d 317, 319 (Miss. 1977)).
¶36. Here, it is undisputed that Ms. Lott suffers from a one-hundred-percent loss of use of
her right arm, and that she sought employment from 194 entities. That is twenty-five times
the number of jobs sought in Taplin, ninety-seven times the number of jobs sought in
Ferguson and ninety-seven times the number of jobs sought in Herod. Taplin, 586 So. 2d
at 825; Ferguson, 384 So. 2d at 602; Herod, 560 So. 2d at 733. This claimant did not
confine her search to the same kind of employment in which she had been engaged in at the
time of injury, nor did she confine her search to her geographic vicinity. Because neither the
employer nor the carrier presented evidence to refute the reasonableness of Ms. Lott’s efforts,
she is entitled to permanent total disability benefits.
¶37. Accordingly, I would grant Ms. Lott her entitlement under Mississippi’s Worker’s
Compensation Law to permanent total disability benefits.
GRAVES, P.J., JOINS THIS OPINION.
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