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GENERAL ELECTRIC COMPANY AND ELECTRIC MUTUAL LIABILITY INSURANCE COMPANY v. CHARLES E. McKINNON

MAY 06, 1987

GENERAL ELECTRIC COMPANY AND ELECTRIC MUTUAL LIABILITY INSURANCE COMPANY
v.
CHARLES E. McKINNON



BEFORE ROY NOBLE LEE, P.J., DAN LEE AND SULLIVAN, JJ.

SULLIVAN, JUSTICE, FOR THE COURT:

This is an appeal from the circuit court of Hinds County, wherein the circuit judge affirmed an award, granted by the Mississippi Workers' Compensation Commission, for Charles McKinnon who was injured in the course and scope of his employment as a result of his hand being caught in a conveyor belt. The circuit judge affirmed the full commission's order which found that McKinnon not only received an injury to the body as a whole, with loss of wage earning capacity, but also found that he suffered a high industrial loss of use of his hand. From this ruling, General Electric Company and Electric Mutual Liability Insurance Company appealed to this Court for relief. Charles E. McKinnon cross appealed.

I.

 On October 20, 1981, while employed at the General Electric plant, Charles E. McKinnon was injured in an industrial accident when his hand was caught in a conveyor belt above eye level. A piece of wire protruded from the roller and gouged the flesh from the palm of McKinnon's right hand. The panic bar, or cut-off switch, was located twenty feet away and could not be reached by Mr. McKinnon, who in an effort to free himself, strained his back and shoulder.

 Hearings were held in Jackson, Mississippi, on December 17, 1982, and February 14, 1984, on the application

 of Charles McKinnon for compensation benefits under the Mississippi Workers Compensation Act. Although McKinnon returned to work in June, 1982, he was unable to complete a full shift due to back and hand pain at which time he saw the company physician, Dr. T.K. Williams, who referred McKinnon to Dr. W.B. Thompson, an orthopedic surgeon. After McKinnon's examination, it was the opinion of both Dr. Williams and Dr. Thompson that McKinnon could not return to his previous job, but recommended that he return to work as a coater/unloaded on January 6, 1983. Mr. McKinnon continued to work in this position as a server until the General Electric plant closed subsequent to the appeal hearing before the full commission. *fn1

 During the hospitalization of Mr. McKinnon and until this time, he saw numerous physicians. It was the opinion of all physicians that Mr. McKinnon suffered from a pre-existing condition, spondylolisthesis, which aggravated his back injury. There were four depositions taken and entered into evidence in this cause with one additional physician's testimony by handwritten medical report, received under Procedural Rule 8 of the Rules of the Mississippi Workers Compensation Commission.

 Subsequent to the hearing, the administrative law judge found that Mr. McKinnon sustained a compensable injury and awarded the minimum benefits to the body as a whole with no mention of his hand injury. On appeal, the full Mississippi Workers Compensation Commission found that Mr. McKinnon sustained a compensable injury to the hand with an industrial loss of use, and an injury to the body as a whole with the loss of wage earning capacity in the amount of $67.60 per week. The loss of wage earning capacity was apportioned, due to McKinnon's pre-existing spondylolisthesis, and McKinnon was awarded the minimum benefits to the body as a whole.

 Both the employer and carrier appealed the findings of the full commission and upon hearing, the circuit judge affirmed the commission's findings insofar as the awards, but modified such to require statutory penalties.

 II.

 A.

 General Electric first contends that the Workers' Compensation Commission and the circuit court erred as a matter of law in granting an award inasmuch as McKinnon failed to prove" disability "within the meaning of the

 Workers' Compensation Act, with the resulting loss of wage earning capacity. The employer and carrier do not dispute, at this point, that an injury occurred but now object to the nature of the evidence presented on behalf of McKinnon to illustrate his loss of wage earning capacity.

 McKinnon testified that at the time of the accident he received an hourly wage of $8.31, but had he continued to work on the same job, he would be making $10 per hour today. McKinnon testified that as a server, he was tending the position of someone who was off that station for some reason or another, and that upon the person's return to work he again would be out of job. His testimony further reflected the labor union required that when one works as a server that the employee receive the same pay as the absent employee. This then was the basis for his pay upon return to work at $8.61 an hour.

 Considering the wage statements introduced by the employer and McKinnon, the commission found that McKinnon's earnings for the period of 52 weeks prior to the injury were $16,304.63 or an average weekly wage of $313.55. The employer and carrier also offered a wage statement, post-injury earnings, reflecting earings of $18,207.93 or an average weekly wage of $350.15. Both the administrative law judge and the Workers' Compensation Commission, in finding that McKinnon had sustained a loss of wage earning capacity, considered the medical evaluations by two of the physicians, Drs. Smith and Talkington, and in particular, McKinnon's inability to perform the incidents of his previous position, plus the limitation of his educational background. The administrative law judge noted that in determining the loss of wage earning capacity, there is taken into account more elements than a comparison of the pre-injury and post-injury earnings. Dunn, Mississippi Workmen's Compensation Law, 68 (3rd Ed. 1982).

 Mississippi Code Annotated, 71-3-7 (1972), requires compensation shall be payable for" disability "for an injury arising out of and in the course of employment. The question of degree and duration of disability is one of fact, Wiggins v. Knox Glass, Inc., 219 So. 2d 154 (Miss. 1969), the degree of disability is determined by (1) actual physical injury and (2) loss of wage earning capacity. Bill Williams Feed Store v. Mangum, 183 So. 2d 917 (Miss. 1966). We find that McKinnon met his burden of proof as to physical disability. Further, the evidence presented indicates that McKinnon was effective in rebutting the presumption of no loss of wage earning capacity, which arises where the claimant's post-injury earnings equal or exceed his pre-injury wages.

 We have held that this presumption, which has emerged from Mississippi Code Annotated, 73-3-17 (c)(25) (Supp. 1985), is ...


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