Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Nixon v. Howard Industries, Inc.

Court of Appeals of Mississippi

June 19, 2018

KENNETH NIXON APPELLANT
v.
HOWARD INDUSTRIES, INC. APPELLEE

          DATE OF JUDGMENT: 10/12/2017

         MISSISSIPPI WORKERS' COMPENSATION COMMISSION

          ATTORNEY FOR APPELLANT: FLOYD E. DOOLITTLE

          ATTORNEY FOR APPELLEE: RICHARD LEWIS YODER JR.

          BEFORE GRIFFIS, P.J., FAIR AND GREENLEE, JJ.

          FAIR, J.

         ¶1. Kenneth Nixon suffered a work-related injury within the course and scope of his employment with Howard Industries. Following a hearing, the administrative judge found Nixon had incurred a loss of wage-earning capacity and awarded him permanent partial-disability benefits. The administrative judge's findings and award were adopted by the Mississippi Workers' Compensation Commission. The sole issue on appeal is whether the Commission erred in its computation of Nixon's disability benefits. Because the Commission failed to use Nixon's stipulated pre-injury weekly wage in its calculation, we reverse and render.

         FACTS

         ¶2. On August 27, 2011, Nixon was working as an assembler at Howard Industries when he injured his back. At the hearing, both parties stipulated that Nixon's average weekly wage was $645.40-considerably more than what he would make in a 40-hour work week at his hourly rate of $12.26. The record indicates that the stipulated figure included regular overtime.

         ¶3. Nixon kept working at Howard Industries after the accident and was still working there at the time of the hearing. Since 2011, Nixon has received two increases in his hourly wage as a result of union negotiations-a total increase of $0.70 per hour since the accident, to $12.96 an hour.

         ¶4. Nixon testified that, since the injury, his work at Howard Industries has continued to cause pain in his back. He has received injections, prescription pain medication, and has had work done on the nerves in his back. Nixon has been treated by several doctors, but predominantly by Dr. Joe Leigh, an anesthesiologist and pain management specialist. Dr. Leigh placed Nixon under restrictions in 2012, limiting him to lifting 40 pounds occasionally. In 2016, Dr. Leigh reduced the limit to 20 pounds, and Nixon is now unable to do most of his former work.

         ¶5. In April 2016, Nixon met with Bruce Brawner, a vocational rehabilitation expert. Brawner testified that Nixon lost access to five of the six pre-injury occupations for which he was qualified, an 83% total loss of access. Brawner testified that Nixon suffered a 53% loss of access based on his current conditions. Brawner added that Nixon could compete in the open labor market based on the light-duty levels he had been assigned. He opined that Nixon should be able to earn $8.96 per hour on the open labor market. Assuming a 40-hour work week, Nixon's weekly salary would be $358.40.

         ¶6. Following the hearing, the administrative judge found that Nixon had suffered a loss of wage-earning capacity. But instead of using Nixon's stipulated pre-injury weekly wage of $645.40 in calculating Nixon's benefits, the administrative judge used $490.40, which she arrived upon by assuming a 40-hour work week at his pre-injury hourly rate of $12.26. As a result, the administrative judge ordered Howard Industries to pay permanent partial-disability benefits in the amount of $88.27 per week, continuing for 450 weeks. Pursuant to the statute, that figure is two-thirds of the difference between $490.40 and $358.40.

         ¶7. Nixon appeals.

         STANDARD OF REVIEW

         ¶8. "The scope and standards of review for workers' compensation cases are well-established." Short v. Wilson Meat House LLC, 36 So.3d 1247, 1250 (¶16) (Miss. 2010). As an appellate court, we review the decision of the Commission, not that of the administrative judge. Id.

         ¶9. "This Court's review is limited to determining whether the Commission's decision was supported by substantial evidence, was arbitrary and capricious, was beyond the scope or power of the agency to make, or violated . . . constitutional or statutory rights. . . . [T]he Commission is the ultimate fact-finder and judge of the credibility of witnesses; therefore, we may not reweigh the evidence that was before the Commission." Pulliam v. Miss. State Hudspeth Reg'l Ctr., 147 So.3d 864, 868 (ΒΆ16) (Miss. Ct. App. 2014) (citations and internal quotation marks omitted). "If an administrative agency's decision is not based on substantial evidence, it necessarily follows that the ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.