REPLY BRIEF FOR APPELLANTS

Transcription

1 E-Filed Document Jan :44: WC COA Pages: 11 IN THE COURT OF APPEALS OF MISSISSIPPI SHANNON ENGINEERING & CONSTRUCTION, INC. and ASSOCIATED GENERAL CONTRACTORS OF MS, INC. APPELLANTS V. NO WC COA WILLIE PERKINS APPELLEE Appeal from the Order of the Mississippi Workers Compensation Commission REPLY BRIEF FOR APPELLANTS Oral Argument IS Requested Of Counsel: Jeff Skelton (MSB # 9697) Pamela S. Ratliff (MSB # ) Andy Lowry (MSB # ) COPELAND, COOK, TAYLOR & BUSH, P.A. Post Office Box 6020 Ridgeland, Mississippi Telephone: (601) Facsimile: (601) jskelton@cctb.com pratliff@cctb.com

2 TABLE OF CONTENTS Page Table of Contents...i Table of Authorities... ii Statement Regarding Oral Argument... iii Rebuttal Argument... 1 I. The Commission Did Not Apply the Presumption of No Loss of Capacity... 1 II. A Job Search Without Diligence Is Not Reasonable... 3 III. Perkins Is Estopped from Claiming Disability... 4 Conclusion... 6 Certificate of Service i-

3 TABLE OF AUTHORITIES Cases: Basil v. Browning, 175 So. 3d 1289 (Miss. 2015)... 4 Howard Industries, Inc. v. Hardaway, 191 So. 3d 1257 (Miss. Ct. App. 2015).. 3 Hudspeth Reg l Ctr. v. Mitchell, 202 So. 3d 609 (Miss. 2016)... 2 Omnova Solutions, Inc. v. Lipa, 44 So. 3d 935 (Miss. 2010)... 2 Simon v. Safelite Glass Corp., 128 F.3d 68 (2d Cir. 1997) ii-

4 STATEMENT REGARDING ORAL ARGUMENT The present case raises the issue of whether the Commission disregarded the presumption that continued work at the same rate of pay means that the worker experienced no work-related impairment. Given that the Mississippi Supreme Court has reversed the Commission as recently as November 2016 on this very issue, oral argument may be useful in addressing this issue. Another issue in this case is whether a job search that the Commission itself deems suspect and not diligent can be held reasonable in the absence of any specific findings beyond the conclusion that it was some sort of job search. Given that the some sort of job search standard appears to be a new one for the Commission, oral argument may be necessary here as well. Finally, this case raises what appears to be a question of first impression: does judicial estoppel work in the administrative-law context so that a person is estopped from telling one agency that he has no disability that limits his ability to work, receiving benefits on that basis, and then telling another agency he s entitled to benefits because his ability to work is limited? Oral argument may be useful here also. For these reasons, Appellants respectfully request oral argument. -iii-

5 REBUTTAL ARGUMENT Willie Perkins worked for nearly two years after his alleged March 2011 injury at the same job for the same wages. The Commission incorrectly found that he had overcome the presumption that he had not suffered a loss in his wage-earning capacity. It also found that Perkins s lack of diligence did not negate his entitlement to benefits, and it erred as a matter of law in holding that he was not estopped from claiming benefits after having denied any disability to another agency. I. The Commission Did Not Apply the Presumption of No Loss of Capacity In his brief, Perkins claims his post-injury wages were less than his pre-injury wages. Perkins at 11. This claim is not accompanied by any citation to the record; is not made in his statement of the case; and is not supported by any finding of the ALJ or of the Commission. In fact, the ALJ did not disagree with the Employer s contention that Perkins had no reduction in wages. R.E. 2 at 24. Rather, she simply ruled that it was irrelevant. Equally unsupported is Perkins s claim that his postinjury wages were sympathy wages, given that he continued the same duties as before and continued to work extensive hours of overtime. Perkins nowhere addresses the random and arbitrary assignment of a 30% level of disability to Perkins by the Commission when it reversed the ALJ s finding of permanent total disability. Where did this 30% figure come from? The Commission did not say, and given Perkins s ability to continue at his job until he was (allegedly) let go, it is not supported by substantial evidence. -1-

6 One will search in vain through the ALJ and Commission opinions for any acknowledgment of the presumption that continuing to work in the same position at the same or higher rate of pay means that there was no loss of wage-earning capacity. The Mississippi Supreme Court reversed the Commission for a similar mistake in Omnova Solutions, Inc. v. Lipa, 44 So. 3d 935, 942 (Miss. 2010). And after Appellants filed their brief in the present case, the Mississippi Supreme Court again reaffirmed this rule, reversing the Commission again on the same grounds. Hudspeth Reg l Ctr. v. Mitchell, 202 So. 3d 609 (Miss. 2016). In the newer case, Mitchell had returned to work in the same position at the same or higher rate of pay and continued to work in that position for more than seven months after the injury. Mitchell, 202 So. 3d at 8. It was therefore error for the Commission not to recognize the presumption and expressly weigh whether it had been overcome. Id. The Supreme Court reversed. Id. Here, Perkins missed no work, and continued working at the same job (no reduction in duties hearing transcript at 51, 52, 112) for the same rate of pay. Compare hearing exhibits 5 and 6: for instance, Perkins worked 40 hours plus hours of overtime for the period of September 9, 2010 and grossed $ that week, the exact same amount he grossed for the exact same hours (40 plus 31.50) the week of August 9, This Court should not allow the Commission to repeat the same mistake it made in Omnova Solutions and in Mitchell. The Commission should be reversed. -2-

7 II. A Job Search Without Diligence Is Not Reasonable Despite Perkins s attempts in his brief to sidestep the issue, the fact remains that the Commission itself stated: At a minimum, this job search is suspect and not diligent. R.E. 3 at 5. It was only some form of job search. Perkins did not crossappeal, so he is barred from claiming on appeal that his search was diligent when the Commission expressly found that it was not. Rather than make any finding that it was somehow reasonable for Perkins to make a suspect and not diligent job search, the Commission simply recited that reasonableness is a fact-intensive, case-by-case determination, then made the conclusory statement that some form of job search sufficed. Neither this Court nor our Supreme Court has embraced the some form of job search standard for reasonableness. Nothing in the Commission s findings supported the notion that Perkins was entitled to claim disability checks without making a diligent effort to seek work he could perform. The Workers Compensation Act exists to help those who cannot help themselves, but not those who don t even try. This Court should decline to accept Perkins s invitation to create a rule that a job search can be reasonable even where suspect and not diligent. It should be added that this is not a case where Perkins has been awarded disability for loss of a scheduled member, so that the distinction regarding the relevance of job searches discussed in Howard Industries, Inc. v. Hardaway, 191 So. 3d 1257, (Miss. Ct. App. 2015), should not apply. Perkins should not be able to claim weekly checks for 450 weeks without having made some real effort to -3-

8 show that he could not find sufficient employment. The burden was on him to do so, and he completely failed to meet that burden. As for the issue of Perkins s credibility, his brief concedes that his credibility is reviewable on appeal for manifest error. Perkins at 12. For the reasons shown in the Brief for Appellants, Perkins s claim to credibility was manifestly against the weight of the credible evidence. Basil v. Browning, 175 So. 3d 1289, 1291 (Miss. 2015) (discussing standard). On the issue of the affidavits, which directly impugned Perkins s credibility, the Employer and Carrier stand by their original arguments. It must be noted, indeed, that despite what the Commission says in rejecting the affidavits, the Commission embraced the conclusion that the Employer and Carrier sought to support with them: that Perkins s job search was suspect and not credible. This Court should reverse the Commission s order. III. Perkins Is Estopped from Claiming Disability The issue on appeal is not whether the Employer or Carrier is entitled to a credit for Perkins s unemployment benefits. That makes the differing standards applicable to unemployment and Workers Compensation benefits irrelevant here. Rather, the issue is estoppel: should Perkins be allowed to make self-serving statements to one agency and then contradict those statements in seeking relief from another agency? Perkins told MDES that he had no disability limiting his ability to work, and received benefits on that basis. He should not be allowed to contradict that -4-

9 representation in quest of more benefits. The principle of judicial estoppel as enunciated in Kirk v. Pope is not confined to the bankruptcy context. Statements to administrative agencies merit the same scrutiny. As the Second Circuit held in the context of federal benefits: To rule otherwise might leave the implication that someone who feels himself in need of further income is free to misrepresent important information to the Social Security Administration. Ascertaining the truth is as important in an administrative inquiry as in judicial proceedings. Simon v. Safelite Glass Corp., 128 F.3d 68, 72 (2d Cir. 1997). This Court should reverse. -5-

10 CONCLUSION For all the reasons stated above, Perkins failed to prove his claim for temporary or permanent total disability. This Court should reverse the order of the Commission and deny Perkins s claim in its entirety, or in the alternative, reverse and remand for proceedings consistent with Mississippi law. Respectfully submitted, this the 3d day of January, SHANNON ENGINEERING & CONSTR., INC. and ASSOC. GEN. CONTRACTORS OF MS, INC. By: s/ Andy Lowry Andy Lowry Counsel for Employer & Carrier Of Counsel: Jeff Skelton (MSB # 9697) Pamela S. Ratliff (MSB # ) Andy Lowry (MSB # ) COPELAND, COOK, TAYLOR & BUSH, P.A. Post Office Box 6020 Ridgeland, Mississippi Telephone: (601) Facsimile: (601) jskelton@cctb.com pratliff@cctb.com -6-

11 CERTIFICATE OF SERVICE The undersigned counsel for Employer & Carrier hereby certifies that he has on this date caused service to be made of the foregoing document by sending a true and complete copy via this Court s MEC system or via United States mail, postage prepaid, to: The Mississippi Workers Compensation Commission 1428 Lakeland Drive Jackson, Mississippi Daryl M. Gibbs, Esq. Chhabra & Gibbs, P.A. 120 North Congress Street, Suite 200 Jackson, Mississippi SO CERTIFIED, this the 3d day of January, s/ Andy Lowry Andy Lowry -7-