KALVIN SHIH CLAIMANT
v.
ISLAND VIEW CASINO RESORT EMPLOYER
AND
BRIDGEFIELD CASUALTY INSURANCE COMPANY CARRIER
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...