Craig Bridgeman v. SBC Internet Services, Inc. ( 2018 )

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2016-WC-00714-COA
CRAIG BRIDGEMAN APPELLANT
v.
SBC INTERNET SERVICES INC. AND OLD APPELLEES
REPUBLIC INSURANCE COMPANY
DATE OF JUDGMENT: 05/10/2016
TRIBUNAL FROM WHICH MISSISSIPPI WORKERS’ COMPENSATION
APPEALED: COMMISSION
ATTORNEY FOR APPELLANT: CRAIG BRIDGEMAN (PRO SE)
ATTORNEY FOR APPELLEES: THOMAS LYNN CARPENTER JR.
NATURE OF THE CASE: CIVIL - WORKERS’ COMPENSATION
DISPOSITION: AFFIRMED - 08/07/2018
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC.
GREENLEE, J., FOR THE COURT:
¶1. Craig Bridgeman claims the Mississippi Workers’ Compensation Commission (the
Commission) erred when it found that he was entitled to permanent partial disability (PPD)
benefits for a 50% industrial loss of use of his right upper extremity. According to
Bridgeman, the Commission should have found that he suffered a 100% industrial loss of
use. Finding no error, we affirm the Commission’s judgment.
FACTS AND PROCEDURAL HISTORY
¶2. Bridgeman was working for SBC Internet Services Inc. when he injured his right arm
and shoulder. In August 2014, a physician opined that because Bridgeman could no longer
climb utility poles, he could not return to his pre-injury position. Following medical
treatment, Bridgeman reached maximum medical improvement in January 2015. A
functional-capacity evaluation indicated that Bridgeman had permanent work restrictions.1
After SBC terminated Bridgeman because he could not return to work, Bridgeman filed a
claim for workers’ compensation benefits.
¶3. The administrative judge found that Bridgeman’s injury was compensable. In a
thorough and detailed opinion, the administrative judge noted that Bridgeman had a 7%
medical impairment to his right arm, but it was outweighed by a 50% industrial loss of use.
Consequently, the administrative judge found that Bridgeman was entitled to PPD benefits
equivalent to two-thirds of his average weekly wage for 100 weeks. Bridgeman appealed.
The Commission adopted the administrative judge’s findings and upheld her decision.
Dissatisfied, Bridgeman appeals.
STANDARD OF REVIEW
¶4. Our review of the Commission’s decision “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.” Gregg v. Natchez Trace Elec. Power Ass’n, 64 So. 3d 473, 475 (¶8) (Miss. 2011).
This Court does not reweigh the evidence, resolve questions of fact, or judge the credibility
of witnesses; those are all matters for the Commission. Short v. Wilson Meat House LLC,
36 So. 3d 1247, 1251 (¶23) (Miss. 2010). “When the Commission accepts the findings and
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He could not perform overhead work for more than two-thirds of a day, lift more
than seventy-five pounds from the floor to his waist, or lift more than thirty-five pounds
from his waist to eye level. Additionally, Bridgeman could not constantly lift more than
fifteen pounds, push more than 230 pounds, or pull more than 225 pounds.
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conclusions of the administrative judge, this Court reviews those findings and conclusions
as those of the Commission.” Pruitt v. Howard Indus. Inc., 232 So. 3d 822, 824 (¶7) (Miss.
Ct. App. 2017).
DISCUSSION
¶5. Bridgeman claims that the Commission should have found that he suffered a total
industrial loss of use of his right arm. According to Bridgeman, SBC did not adequately
rebut the presumption of total loss of use that arose because he could not return to his pre-
injury employment. We disagree.
¶6. “In a scheduled-member case, a worker is always entitled to compensation for the
medical or functional loss of his body part, regardless of whether the functional loss impacts
his wage-earning capacity.” City of Laurel v. Guy, 58 So. 3d 1223, 1226 (¶14) (Miss. Ct.
App. 2011) (citing Meridian Prof’l Baseball Club v. Jensen, 828 So. 2d 740, 745-46 (¶¶13-
14) (Miss. 2002)). “But . . . when the industrial loss is greater than the medical loss[,] . . .
the claimant’s industrial or occupational disability or loss of wage-earning capacity controls
his degree of disability.” Id. at (¶14) (citation and internal quotation mark omitted). “[T]here
is a presumption of 100% industrial loss when the worker proves he can no longer perform
the substantial acts of his usual employment.” Id. at 1227 (¶16) (internal quotation mark
omitted). “Usual employment in this context means the jobs in which the claimant has past
experience, jobs requiring similar skills, or jobs for which the worker is otherwise suited by
his age, education, experience, and any other relevant factual criteria.” Id.
¶7. Here, the administrative judge found that the presumption of 100% industrial loss
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arose because Bridgeman could not return to his pre-injury employment. The Commission
adopted the administrative judge’s conclusion. The Commission also adopted the
administrative judge’s conclusion that SBC rebutted the presumption of 100% industrial loss.
¶8. An employer can rebut the presumption of total industrial loss by proving that the
claimant has the “ability to earn the same wages” that he was earning at the time of his injury.
Id. at 1228 (¶24). Even if the employer successfully rebuts the presumption, that does not
mean that the injured employee will not be able to recover benefits. See id. at 1229 (¶27).
It just means that the employee will not recover for a 100% industrial loss of use; but the
employee will still be able to recover based on the greater of two ratings: medical impairment
versus industrial loss of use of the scheduled member. See id. at (¶¶27-28).
¶9. Here, it was within the administrative judge’s discretion to find that the total-loss-of-
use presumption had been rebutted by Bruce Brawner’s expert testimony and “industrially
related factors.” Bridgeman argues that SBC had to prove that Bridgeman could earn the
same wage he was earning before his injury before the administrative judge could “look at
factors such as age, education, work history, etc.” Bridgeman is incorrect. “Rebuttal is
shown by all the evidence concerning wage-earning capacity, including education and
training [that] the claimant has had, his age, continuance of pain, and any other related
circumstances.” Jensen, 828 So. 2d at 748 (¶21). The analysis clearly contemplates that a
fact-finder must determine a claimant’s industrial loss of use by weighing these factors.
¶10. As Brawner testified, Dr. William Geissler’s records showed that Bridgeman could
perform medium to heavy work. Brawner also noted that Bridgeman had “a marketable
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[Bachelor’s] degree in computer science, although he ha[d] never performed a job that
require[d] this degree since obtaining it in 2002.” Bridgeman had also previously worked
as a teacher under an “emergency” license that is no longer available, so Bridgeman would
have to obtain a license to return to work as a teacher. Ultimately, Brawner reported that
Bridgeman’s permanent work restrictions prevented him from working in 48% of the jobs
that were available to him prior to his injury. So the administrative judge found that based
on the totality of circumstances, Bridgeman experienced a 50% industrial loss of use of his
arm. Because the administrative judge’s decision was clearly within her discretion, we find
that this issue is meritless.
¶11. AFFIRMED.
LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, FAIR,
WILSON, WESTBROOKS AND TINDELL, JJ., CONCUR.
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