McCARTY FARMS v. CAPRICE BANKS

SOUTHWICK, P.J., CONCURRING

¶ 35. This is a scheduled member injury case, in which evidence supported that the occupational effect of the loss of use was greater than the medical impairment. The majority holds that the claimant's proof of that greater impact, and the employer's rebuttal of that proof, has no connection with wage-earning capacity. I believe that conclusion disregards established Supreme Court precedent. It is important that this case not itself become precedent for barring relevant evidence in the future. Nonetheless, I concur in the result for reasons that I will also explain.

¶ 36. To reiterate the relevant facts, Banks was diagnosed as having a 15% permanent medical impairment to her right arm and a 5% permanent medical impairment to her left arm. However, the Commission found that this equated to a 70% and 30% industrial disability to the right and left arms, respectively. The employer timely appealed. It later filed a motion with the Commission asking to supplement the record with a wage statement for Banks. It revealed that she began working again at McCarty shortly after the administrative judge's August 1997 hearing. The prior evidence had been that no job had been offered the claimant that was consistent with her physical limitations. The wage statement revealed 25 weeks of work, beginning the week of August 19, 1997 and continuing through January 17, 1998. This one page summary gave no indication of whether Banks had acquired a job legitimately consistent with her injury. Wage-earning capacity is not proven by receipt of wages that are for benevolent or litigation reasons. Karr v. Armstrong Tire Rubber Co., 216 Miss. 132, 138-39, 61 So.2d 789, 792-93 (1953). The limited request to submit evidence that Banks was receiving income was not relevant on the issue of the extent of her occupational disability.

¶ 37. For that reason the Commission's refusal to supplement was proper. The Court finds the denial appropriate for a different reason: loss of wage-earning capacity allegedly is irrelevant in a scheduled member case. Sometimes that is true, but sometimes that is not true. Just as a starting proposition, there is something counter-intuitive about a claimant's receiving benefits as here that are five to six times greater than the medical impairment rating, that these increased benefits are paid because of the injury's alleged impact on her ability to work, but the employer is not allowed to show that a lesser or no occupational impact existed.

¶ 38. One of the State's leading authorities on workers' compensation principles has highlighted the line between relevance and irrelevance in this way:

There are two instances in which proof of loss of (or proof of no loss) of wage-earning capacity, as a matter if law, are not relevant to a claim for benefits. . . . One is the loss of any two major, scheduled members, in which case permanent total benefits are payable without reference to effect on wages. The other is for loss or partial loss of a scheduled member when there is no claim for benefits in excess of the schedule or the proportion of physical impairment.

John R. Bradley, Disability Benefits in Mississippi Workers' Compensation: The Learning of 50 Years, in Mississippi College twelfth Annual Workers' Compensation Practice Procedure Seminar (1999) at 4-5 (emphasis added). Since Banks claimed and received benefits greater than her medical impairment, proof of effect on wage-earning capacity was both required and rebutable. As Professor Bradley states, "an injury's occupational effect is an element of proof when scheduled benefits" are sought due to "partial loss of use of a scheduled member when the effect on wages is greater than the proportionate impairment of the member but less than total loss of use of the member." Id at 6 (underlining in original). Article writers may misconstrue case law just as may this judicial writer, so presently I will review the sources for Bradley's statements.

¶ 39. The possible source of the majority's contrary interpretation, with great deference for the writer of our Court's opinion, is that a section from the leading Supreme Court case has been quoted without focusing on the issue that it was then discussing. When injury to a scheduled member has occurred, a level of payment may be received that is set by a conclusive statutory estimate of the impact on a worker of that sort of injury. As the court said in the case cited by the majority, "the Act arbitrarily schedules the compensation payable for loss of or loss of use of a scheduled member, focusing upon a claimant's functional loss and without regard to loss of wage earning capacity." Smith v. Jackson Construction Co., 607 So.2d 1119, 1126 (Miss. 1992).

¶ 40. When Smith referred to "functional" loss, that is the same as if it stated "medical" loss. The case cited by Smith to support the quotation above described "functional or medical impairment" as being the same thing and distinguishable from occupational disability. Walker Mfg. v. Cantrell, 577 So.2d 1243, 1247 (Miss. 1991), cited at Smith, 607 So.2d at 1126. The Smith quotation means that if a doctor's testimony or other medical evidence supports that there is a 50 per cent medical impairment to a scheduled member, benefits are awarded under the statute for a 50 per cent loss of use regardless of any impact on wage earning capacity. That is good law, but it does not apply here.

¶ 41. Smith immediately leaves the formula of benefits based on medical impairment and states this:

However, in some cases, despite a partial functional loss of a scheduled member, the claimant's industrial or occupational disability or loss of wage earning capacity controls his degree of disability.

Smith, 607 So.2d at 1126. In other words, though "wage-earning capacity" is ignored if scheduled member benefits are paid based on functional or medical impairment, when the claimant seeks more than that, wage earning impact is relevant. This distinction is I believe the source of our error.

¶ 42. Smith was written by Justice Sullivan. In another opinion the previous year by Justice Robertson, the court held that a doctor's testimony on a percentage impairment would "not have in mind occupational or industrial disability standards. Indeed, we would think it seldom that a physician would possess the expertise to give an authoritative opinion regarding loss of wage-earning capacity or occupational disability." Walker Mfg., 577 So.2d at 1248.

¶ 43. Since a doctor is not likely qualified to speak to industrial disability, just how can such disability be proven when the claimant is seeking benefits higher than what would be based just on medical impairment? One acknowledged national authority asks the question about partial loss of use of scheduled members in a more powerful way:

The trouble with these cases [that do not look at a claimant's particular trade] is that they assume that "loss of use" can be mechanically measured in relation to use by some hypothetical claimant. They assume, in other words, that the concept of "loss of use" of the hand has some fixed uniform content as to all human beings, regardless of age, sex, skill, or anything else. But the very word "use" immediately raises the question: use for what? For assembling electronic equipment? For delivering a karate chop? For threading a needle? For holding a pencil? For lifting a bale of cotton? These are all "uses," after all.

4 ARTHUR LARSON, LARSON'S WORKERS' COMPENSATION LAW 86-21 (1999) § 86.04[5].

¶ 44. Whether based on observations such as by Professor Larson or not, the Mississippi case law recognizes that the impact on that worker's wage earning capacity is relevant when the claim is for more than what functional disability alone would provide.

¶ 45. I will review, then, how this sort of claim is to be made.

¶ 46. Most of the law in this area is judge-made, that is to say, little of the nuances that affect us are quotes from specific statutory language. What is statutory is that "disability" is the "incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or other employment. . . ." Miss. Code Ann. § 71-3-3 (i) (Rev. 1995). Therefore when a claimant seeks total permanent benefits, this definition of "disability" is what creates the need to prove that there is no work that can be performed at the same or other employment. The supreme court then added that the claimant must have reasonably sought other employment. Certain combinations of losses of scheduled members prove entitlement, but in "all other cases permanent total disability shall be determined in accordance with the facts." Miss. Code Ann. § 71-3-17 (a) (Rev. 1995).

¶ 47. Permanent partial disability is a category that includes a statutory schedule of severed bodily members. Miss. Code Ann. § 71-3-17(c) (Rev. 1995). The total dismemberment of an arm, for example, receives the highest level of compensation of any scheduled member injury, an amount that is also paid even if the arm is not severed, but there is a total loss of use of the arm. Miss. Code Ann. § 71-3-17 (c) (1) (22). In addition to these scheduled members, permanent partial disability can be proved by a partial and permanent loss of capacity to earn wages "in the same employment or otherwise. . . ." Miss. Code Ann. § 71-3-17 (c) (25).

¶ 48. The category of injury that concerns us is the partial loss of use of a scheduled member. The statutory reference to that provides that "permanent partial loss or loss of use of a member may be for proportionate loss or loss of use of the member." Miss. Code Ann. § 71-3-17(c)(23). A doctor may give evidence that the claimant's medical impairment to his leg is twenty per cent, but other evidence indicates that this leg injury had a fifty percent effect on the claimant's ability to engage in his occupation. Such evidence can be relied upon to increase the scheduled member benefits. Walker Mfg., 577 So.2d at 1248. The dichotomy that has been created between medical impairment and industrial disability emanates from the statutory scheme but is not specifically mentioned in the statute. Much of workers' compensation case law is more in the nature of detecting penumbras than applying tangible statutory language. Taking the many variations that can arise with disability claims, the Supreme Court has had to create rules. It has made the most reasoned judgment possible in applying the found facts to the statute that imperfectly covers the situation.

¶ 49. The statute creates presumptions of the effect of scheduled member injuries, e.g., the loss of an arm entitles the claimant to 200 weeks of benefits. Miss. Code Ann. § 71-3-17(c) (1) (Rev. 1995). That the arm is unusable can be supported by medical testimony. If the arm has been severed, that proves itself. Similarly, if a proportionate loss of use is relied upon, medical testimony can show, for example, that there is a twenty per cent medical impairment. That medical impairment if accepted by the fact-finder is the absolute minimum entitlement for the claimant. If the claimant wishes more, then an industrial disability greater than functional disability must be shown.

¶ 50. The greater industrial disability according to Walker and Smith v. Jackson Construction is shown by the injury's effect on wage-earning capacity. One example of such proof applies to a worker who has been paid on a piece-work basis. If a twenty per cent medical impairment to the arm has slowed the claimant such that only half as much piece work is completed, that translates into a fifty per cent occupational effect. John R. Bradley, Measuring Benefits for A Scheduled Member, in MISSISSIPPI COLLEGE EIGHTH ANNUAL WORKERS' COMPENSATION PRACTICE PROCEDURE SEMINAR (1995) at 29. Instead of the 200 weeks compensation for the loss of use of an arm being reduced by the medical impairment to 40 weeks (20% x 200 weeks), benefits would be paid because of the industrial disability for 100 weeks (50% x 200 weeks). The example requires evidence of impact on wages at least in the same occupation. How to determine occupational effect on hourly wages may not be so clearcut.

¶ 51. I return to the important language in the case relied upon by the majority: "in some cases, despite a partial functional loss of a scheduled member, the claimant's industrial or occupational disability or loss of wage earning capacity controls his degree of disability." Smith v. Jackson Construction, 607 So.2d at 1125-26 (italics added). A line of cases was then discussed in which proof of an industrial disability greater than the functional one was accepted and allowed for higher benefits. Id. at 1126. The new law made by the Smith v. Jackson Construction decision was that 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. at 1128. Under that situation, the scheduled member section of the statute does not even apply. Id. In contrasting that rule, the court also said that if the claimant's " occupational loss or loss of wage earning capacity was greater than [the medical impairment] then Section 71-3-17(c) makes clear the Commission should have awarded Smith that percentage of his industrial occupational disability, limited by the number of weeks he is entitled to receive compensation for the loss of use of a scheduled member." Id. (emphasis added).

¶ 52. What else besides effect on the ability to earn wages could be meant when the Commission is permitted to find that the occupational effect caused by a scheduled member injury is greater than the medical impairment? I cannot discern any third factual category relevant for workers' compensation, something that is neither the medical limitation on a scheduled member but also is not connected with the ability to work. As Professor Larson indicates, some states' courts apparently have concluded that there is a generic set of work requirements for which loss of use can be measured against. Regardless, Walker Manufacturing and even more clearly Smith v. Jackson Construction are talking about wage earning capacity when scheduled member benefits greater than medical impairment alone are being sought. Therefore, when a claimant wishes to leave his medical testimony behind and enter the world of occupational impact, Smith v. Jackson Construction holds that "occupational loss or loss of wage earning capacity" is the issue.

¶ 53. Yet this does not completely answer our question. Though I do not find that there is a generic list of job duties against which to measure the impact of an scheduled member injury, I also do not find that the ability of the claimant to work at any possible and available job is the proper inquiry. If a partial loss of use of a scheduled member results in an inability "to perform the substantial acts of the worker's usual occupation," the worker is entitled to the same compensation as for total loss of use of the member. Richey v. City of Tupelo, 361 So.2d 995 (Miss. 1978).

¶ 54. The principle of substantial acts of usual employment was first applied in an appeal when the compensation statute was only three years old. The case imported a general disability insurance standard. M.T. Reed Const. Co. v. Martin, 215 Miss. 472, 477-78, 61 So.2d 300, 303 (1952), citing Lipnick v. New York Life Ins. Co., 211 Miss. 833, 838, 52 So.2d 916, 917 (1951) and Metropolitan Cas. Ins. Co. v. Cato, 113 Miss. 283, 74 So. 114 (1917). Cato is a good example of the law that the Court applied by analogy in M.T. Reed to the then-new workers' compensation statute. The insurance policy provided that if injuries "continuously and wholly disable and prevent the insured from performing any and every kind of duty pertaining to his occupation," benefits for total disability will be awarded. Cato, 74 So. at 116. The Court then interpreted that phrase:

"Total disability must, from the necessity of the case, be a relative matter, and must depend largely upon the occupation and employment in which the party insured is engaged."

"One who labors with his hands might be so disabled by a severe injury to one hand as not to be able to labor at all at his usual occupation, where as a merchant or a professional man might by the same injury be only disabled from transacting some kinds of business pertaining to his occupation."

Cato, 74 So. 114, 117 (quoting Wolcott v. United Life Accident Ins Co., 8 N.Y.S. 263, 264 (1889). Though the example just quoted dealt with a hand injury, the case law and the insurance policies were not limited to such injuries. Cato involved a general accidental injury policy. Cato, 74 So. at 115. Another case quoted for the principle that disability arises from an inability to perform "the substantial acts required of him in his business," was interpreting a policy covering bodily injury and disease. Lipnick, 52 So.2d at 917, quoted in M. T. Reed, 61 So.2d at 303.

¶ 55. Though the original quotations themselves and the insurance precedents from which they were taken were not limited to scheduled member injuries, they did define "occupation" narrowly, i.e., the specific usual employment of the insured. These cases usually did not stop their analysis with the effect on the usual employment, but also made statements such as it also "appears most unlikely that he will be able to pursue any other gainful employment. . . ." M. T. Reed, 61 So.2d at 303; Lipnick, 52 So.2d at 917 ("his physical condition is such that . . . common care and prudence require that he cease all work. . . ."). See also McGowan v. New Orleans Furniture, Inc, 586 So.2d 163, 168 (Miss. 1991) (claimant's physical limitations and education will make finding any other job difficult); Piggly Wiggly v. Houston, 464 So.2d 510, 513 (Miss. 1985) (unlikely that claimant will be able to pursue other employment); McManus v. Southern United Ice Co., 243 Miss. 576, 582-84, 138 So.2d 899 (1962) (not worked since injury, 63 years old and 4th grade education); Tyler v. Oden Construction Co., 241 Miss. 270, 273, 130 So.2d 552 (1961) (due to advanced age and physical condition, unlikely claimant will be able to pursue other employment). These recurring observations about absolute employment disability are curious, but probably not controlling.

¶ 56. Even so, "substantial acts of usual occupation" suggests a narrowly defined "occupation." Disability is measured by comparing the requirements of the former occupation to the current capabilities of the claimant. The Supreme Court has over time increasingly stressed the occupational impact and minimized reference to the overall impact on employability, only finally to eliminate the latter as a matter even of comment by the time of Smith v. Jackson Construction (total unemployability removes the claimant from the scheduled member scheme altogether). Scheduled member caselaw is an archetypical example of the kind of rules that are not mandated by statutory language but are a Supreme Court effort to make the statute operate effectively. The concept of predetermining benefits through a schedule promotes a streamlining of the claim process. Perhaps the Court believed when the loss of use was only partial, that limiting the issue to whether the claimant still could perform his previous job was part of the streamlining.

¶ 57. Since this part of compensation law is not driven by distinct statutory provisions, what is to be shown to prove or rebut a case regarding the substantial acts of usual employment also can not be found in the statute. For example, the range of the duties of an "occupation" is difficult to map. Is Banks's occupation limited to the duties that she normally would have done for McCarty Farms at its chicken plant, or would other duties there for which she was qualified be included?

¶ 58. There is no need to answer these questions now. My principal point is that whatever the range of relevant occupations might be for proving a total loss of occupational use of a scheduled member, the claimant should be subject to the same employment range when a partial occupational loss greater than medical impairment is being sought.

¶ 59. To gain some perspective on when impact on wage earning capacity is relevant in the varied factual and legal scenarios with scheduled member cases, I will describe several related ones:

1) If the claimant seeks compensation for total loss or loss of use of a scheduled member, effect on wages does not matter. McKenzie v. Gulf Hills Hotel, Inc., 221 Miss. 723, 74 So.2d 830 (1954) (physical loss of eye when the claimant was already blind in that eye is fully compensable).

2) If the claimant seeks damages based on partial loss of use of a scheduled member, without proving that the industrial effect is greater than the medical impairment, there is no need to show impact on wage-earning. The statutory schedule conclusively predetermines a minimum effect. Walker Mfg., 577 So.2d at 1248. The employer would not be entitled to show less effect on wage-earning than the statutory schedule. Id.

3) The claim may be that a loss of use of a scheduled member has resulted in a permanent total disability to the body as a whole. In such a case, the claimant is entitled to have the scheduled member benefit scheme ignored and to have total permanent disability benefits awarded. Smith v. Jackson Construction, 607 So.2d at 1126. Such a claim requires the same evidentiary presentations as for non-scheduled member cases when total permanent disability is sought. This means proof that due to a work-related injury to a scheduled member there has been a total loss of wage-earning capacity in the same or other employment, and that employment had unsuccessfully been sought. Id. at 1128. A statutory version arises from the loss of two major scheduled members. That automatically leads to permanent total benefits. Miss. Code Ann. § 71-3-17(a).

4) If the claimant argues that a partial medical impairment to a scheduled member has an occupational effect that is the same as a total loss of use, there must be proof that the claimant cannot engage in the substantial acts of his usual occupation. McGowan, 586 So.2d at 168. Though much of the case law also addressed the injury's impact on overall wage-earning capacity, that latter issue is not part of the formula for awarding benefits.

5) Our issue is yet another category. A claimant may seek benefits for an occupational loss of use of a scheduled member that is greater than the medical impairment but still less than total loss of use. The claimant is entitled to have benefits measured by the greater of the medical impairment or the occupational disability. Walker Mfg. v. Cantrell, 577 So.2d at 1248. As suggested in Walker, later repeated in Smith v. Jackson Construction, and as appears to be a more sensible rule to Professor Larson, this measures the impact of the injury on the wage earning capacity of that employee to perform substantial acts of the occupation that the person held when injured. What exactly that means has already been reviewed, though not answered.

¶ 60. A case that highlights better than any other the evidence that is admissible is Walker v. Cantrell, 577 So.2d at 1248. Cantrell was diagnosed with a five per cent medical impairment to his hand. The claimant, though, testified that this hand injury had made him unable to "perform the substantial acts of his employment. . . ." Id. at 1245 1248. The Supreme Court upheld the Commission's limiting him to a five per cent partial loss of use of his hand for these reasons:

a) Cantrell offered no evidence that he attempted "to perform his usual duties. . . . There is nothing in the record suggesting that following his recuperation from his last surgery Cantrell attempted, with Walker Manufacturing or any other employer, to perform duties like . . . those he was performing prior to his injury back on September 9, 1985." Id. at 1248.

b) Second, there was no witness who corroborated that he could not perform "the usual duties of his customary employment." Id. Cantrell's testimony was the sole support of his claim

c) Finally, the Commission stated that there was no evidence that he had been "refused employment based upon the disability to his hand." Id. "A claimant such as Cantrell must make a reasonable effort to secure other comparably gainful employment. The law does not require that he move to another part of the state, but he must cast his eyes further than across the street. . . . The Commission was within its prerogatives when it interpreted Cantrell's proof as failing to establish that he was refused comparably gainful employment because of the disability to his hand." Id. at 1249.

¶ 61. This last item is unusual for a scheduled member injury case. A requirement of looking for other work does not usually appear in such case law. Another precedent permitted recovery for total loss of occupational use of the claimant's leg even though he had not looked for another job. McGowan, 586 So.2d at 168. McGowan was severely limited by his leg injury and no longer could perform a large number of the requirements of his former job. The Court also said that there were few jobs of any sort that he could likely find, so a search could have been seen as futile. Id.

¶ 62. Though McGowan and Walker Mfg. could be viewed as inconsistent on the need to show a failed effort to search for other work, they can be made to fit together coherently if the statement in Walker Mfg. that such a claimant must seek other work is moderated. What in essence both mean is that when a claimant seeks benefits based on a enhanced occupational effect of an injury to a scheduled member, a variety of evidence is relevant to whether in fact the claimant is unable to perform the substantial acts of the employment. Relevant evidence is that which has "any tendency to make the existence of any fact . . . more probable or less probable. . . ." M.R.E. 401. Cantrell refused to return to work at his former employer and made no attempts to find work elsewhere. Seeking and failing to get a job because of a disability is relevant evidence for the claimant; not seeking at all, especially when there is reasonable doubt about the seriousness of the occupational effect of an injury, can be relevant but not conclusive for the employer. Seeking another job did not have to be shown in McGowan and benefits were awarded; failing to do anything was shown in Walker Mfg. and was relevant in refusing to find the claimant credible.

¶ 63. Whatever the entire range of relevant evidence, this review makes clear that McCarty Farm's offering only the wage statement was inadequate to require reopening the case. Such evidence might have been part of a larger relevant presentation but was insufficient by itself.

¶ 64. I find areas of uncertainty, but none with the issue that has caused me to opine at such length. Evidence of effect of wage earning capacity is relevant when a claimant seeks more than just the benefits based on functional impairment to a scheduled member. I agree with affirming in this case since an inadequate offer of evidence was made when the employer sought to supplement the record.

¶ 65. We should be clear that this category of evidence may be admissible in other cases.

McMILLIN, C.J., AND MOORE J., JOIN THIS SEPARATE OPINION.