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Bailey v. Bryant

February 09, 1999

WINSTON R. BAILEY AND NATIONAL APPELLANTS AMERICAN INSURANCE COMPANY
v.
JOHN BRYANT APPELLEE



Before Thomas, P.j., King, And Southwick, JJ.

The opinion of the court was delivered by: King, J., For The Court:

DATE OF JUDGMENT: JULY 16, 1997

TRIAL JUDGE: HON. MARCUS D. GORDON

COURT FROM WHICH APPEALED: NESHOBA COUNTY CIRCUIT COURT

NATURE OF THE CASE: CIVIL - WORKERS' COMPENSATION

TRIAL COURT DISPOSITION: AFFIRMED DECISION OF MISSISSIPPI WORKERS' COMPENSATION COMMISSION

DISPOSITION: AFFIRMED - 2/9/99

MOTION FOR REHEARING FILED:

CERTIORARI FILED:

MANDATE ISSUED:

¶1. On January 18, 1994, John Bryant suffered an injury while in the course and scope of his employment at Winston R. Bailey (Winston Bailey). Winston Bailey admitted compensability of the injury for the period January 20, 1994 through June 23, 1994 and paid temporary total disability benefits for those months. On December 13, 1994, Mr. Bryant filed a petition to controvert with the Workers' Compensation Commission.

¶2. On August 2, 1996, a hearing was held before an administrative law Judge. The administrative law Judge determined that (1) Bryant's period of temporary total disability extended from January 18, 1994, the actual date of injury, through July 6, 1995, the date he had been last seen by a neurologist, and (2) maximum medical improvement (MMI) had not been reached. The administrative law Judge determined that the period of temporary partial disability extended from July 6, 1995 until further order of the Commission. All parties appealed the administrative law Judge's determination to the Workers' Compensation Full Commission.

¶3. The Commission amended the administrative law Judge's determination, finding that Mr. Bryant reached MMI on June 29, 1995. Temporary total disability benefits were awarded from January 18, 1994 through June 29, 1995. The Commission reversed the administrative law Judge's determination regarding temporary partial disability, finding that Mr. Bryant was permanently and partially disabled beginning June 30, 1995 and that he suffered a loss of wage earning capacity in the amount of $285 per week.

¶4. Winston Bailey and National American Insurance Company (NAIC) appealed to the circuit court. The circuit court affirmed. They have now appealed to this Court and assigned three points of error:

I. WHETHER THE CIRCUIT COURT ERRED IN ENTERING ITS ORDER AFFIRMING THE DECISION OF THE MISSISSIPPI WORKERS' COMPENSATION COMMISSIONBEFORE THE EXPIRATION OF THE FORTY (40) DAY PERIOD ALLOWED UNDERM.R.A.P. 31(b) AND PRIOR TO RECEIPT OF APPELLANTS' BRIEF.

II. WHETHER THE CIRCUIT COURT AND THE MISSISSIPPI WORKERS' COMPENSATION COMMISSION ERRED IN FAILING TO CONSIDER AND APPLY THE PRESUMPTION THAT A CLAIMANT'S POST INJURY WAGES ARE DETERMINATIVE OF HIS WAGE EARNING CAPACITY.

III. WHETHER THE ORDER OF THE MISSISSIPPI WORKERS' COMPENSATION COMMISSION IS SUPPORTED BY SUBSTANTIAL EVIDENCE WHERE THEOVERWHELMING WEIGHT OF THE CREDIBLE EVIDENCE SHOWS THAT THECLAIMANT IS CAPABLE OF AND HAS IN FACT EARNED WAGES FAR IN EXCESSOF MINIMUM WAGE FOLLOWING HIS INJURY AND WHERE THE EXTENT OFDISABILITY IS NOT SUPPORTED BY SUFFICIENT MEDICAL FINDINGS.

ΒΆ5. Finding only harmless error, this Court affirms the ...


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