Shih v. Island View Casino Resort, 050119 MSWC, 1600619-P-5506

Docket Nº:MWCC 1600619-P-5506
Case Date:May 01, 2019
MWCC No. 1600619-P-5506
Mississippi Workers Compensation Decisions
Mississippi Workers' Compensation Commission
May 1, 2019
          REPRESENTING CLAIMANT: Brad Baskin, Esquire, Jackson, MS           REPRESENTING EMPLOYER/CARRIER; Matthew Jason Sumrall, Esquire, Gulfport, MS           FULL COMMISSION ORDER          This matter was considered by the Full Commission on April 22, 2019, pursuant to the Employer/Carrier's Petition for Review. In an Order issued on November 5, 2018, the Administrative Judge found that the Claimant sustained a twenty-five percent (25%) loss of wage-earning capacity as a result of his admittedly compensable injury to his back and body as a whole. The Employer/Carrier contend the Order of Administrative Judge is unsupported by, and is contrary to, the evidence and the law.          Having thoroughly studied the record in this cause and the applicable law, the Commission affirms the finding of the Administrative Judge that the Claimant sustained a twenty-five percent (25%) permanent loss of wage-earning capacity. The Commission finds that the presumption of no loss of wage-earning capacity due to Claimant's return to work earning the same or higher wages arose; however, the Claimant successfully rebutted this presumption based on the evidence presented. In support of our decision, we offer additional analysis.          I. Background Facts          Here, the Claimant sustained an admittedly compensable injury to his back on January 7, 2016. On March 15, 2016, the Claimant returned to work for his Employer with restrictions in place, and he earned his usual wages. On December 14, 2016, the Claimant received a pay increase due to a general increase in wages in his category of employment.          Dr. Eric Wolfson, an orthopedic surgeon, placed the Claimant at maximum medical improvement ("MMI") on June 26, 2017, and assigned a ten percent (10%) permanent medical impairment rating to the body as a whole. Further, the Claimant was restricted to occasional: floor lifting up to fifty (50) pounds, knee lifting up to fifty (50) pounds, waist lifting up to forty (40) pounds, shoulder lifting up to fifty (50) pounds, overhead lifting up to thirty (30) pounds, carrying up to forty (40) pounds, pushing up to fifty (50) pounds, and pulling up to fifty (50) pounds. Further, the Claimant could sit, stand, and walk occasionally. These restrictions placed the Claimant in the medium duty classification.          In August 2017, the Employer terminated the Claimant for misconduct related to a disagreement with a fellow employee. The Claimant is now employed with a different employer earning $16.50 per hour resulting in $660.00 gross pay per forty (40) hour week. Prior to the Claimant's injury his average weekly wage was $865.39.          On August 23, 2018, the...

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