IN THE MISSISSIPPI COURT OF APPEALS OF THE STATE OF MISSISSIPPI MOTION FOR REHEARING

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1 E-Filed Document Apr :31: WC COA Pages: 5 IN THE MISSISSIPPI COURT OF APPEALS OF THE STATE OF MISSISSIPPI V. v. MID PRODUCTS d/b/a MODERN LINE (Date of Injury: 05, ) 15, 12) No. 2016, WC,00346~COA &:: v. MID PRODUCTS d/b/a MODERN LINE (Date of Injury: ) 09,18,12) No. 2016,WC,00345,COA MOTION FOR REHEARING Rogen K. Chhabra, MSB No Chhabra &:: Gibbs, P.A. Telephone: (601) 948, Facsimile: (601) 948,

2 IN THE MISSISSIPPI COURT OF APPEALS OF THE STATE OF MISSISSIPPI V. MTD PRODUCTS d/b/a MODERN LINE (Date of Injury: 05, 15, 12) No. 2016,WC,00346,COA &: V. MTD PRODUCTS d/b/a MODERN LINE (Date of Injury: 09,18,12) No. 2016,WC,00345,COA MOTION FOR REHEARING COME NOW (hereinafter "Sampson"), through her counsel and respectfully files this timely Motion for Rehearing pursuant to Rule 40 of the Mississippi Rules of Appellate Procedure and respectfully moves this Court for rehearing of its opinion handed down on April 4, 2017 and would show unto the court the following: I. This Court erred in finding that the Commission's decision was subject to a substantial evidence review. The proper standard of review in this case is de nova because the Commission failed to apply the correct legal standard in its finding that Claimant suffered no loss of use over the anatomical impairment rating. When the MWCC has misapprehended a controlling legal principle, no deference is due. See ABC Mfg. Corp. v. Doyle, 749 So. 2d 43, 45 (<JllO) (Miss.1999). The Commission committed legal error when it failed to consider Claimant's uncontradicted testimony supporting the award of functional loss. In determining compensation, "A worker suffering a scheduled member injury is thus entitled to the higher of

3 the types of losses, functional or occupations, in the event of a variance between the two." MeridianProJ'1 Baseball Clubv.]enson, 828 So. 2d 740, 745 ~ 6 (Miss. 2002). Case law is clear that subjective complaints of pain along with medical evidence support an award of loss of industrial use. See Howard Indus. V. Robinson, 846 So. 2d 245, 255 (Miss. Spp. 2002)( finding permanent disability based upon claimant's subjective allegations of pain). In this case, there are complaints of pain as well as medical evidence to support an award greater than that of the anatomical impairment rating. As Ms. Sampson testified, she still has pain in her lower extremity at work and reports it to Employer. While the complaints of work restrictions are subjective as to Claimant and definitely proven by Employer's own actions in moving Claimant to a less laborsome job, the fact that there is a an impairment rating following a surgery is sufficient medical support for Claimant's claims of inability to do her pre~injury job without pain. Upon proper de novo review the Commission's order should be reversed. II. The Court erred in finding that the Commission's decision was supported by substantial evidence. Even if upon re~hearing the Court decides this case was subject to proper scrutiny, this Court erred by finding the Commission's decision was supported by substantial evidence where the Claimant's subjective complaints went uncontradicted and no evidence in the record supports its decision. Delta CMI v. Speck, 586 So. 2d 768,773 (Miss. 1991)( finding, substantial evidence is defined as "something more than a 'mere scintilla' of evidence,'" but "means such relevant evidence as reasonable minds might accept as adequate to support a conclusion.") The Court of Appeals should have found the mere scintilla of evidence presented on behalf of the Employer and Carrier cannot support the Commission's decision to reverse the loss of industrial use assigned by the AL J. The Full Commission based its findings on medical evidence alone and improperly discounted Claimant's testimony that she has indeed suffered functional

4 loss. When there is a change in job positions after an injured worker returns to work, the connection is presumed. It is the Employer's burden to prove the job change is not connected. The Court's analysis focuses on the fact that Claimant returned to work at MTD Products and tried to continue working her pre ~injury job as long as she could. Claimant should not be penalized for trying to do her job as she did before her injury. Ultimately, the Claimant could no longer perform the tasks of her pre ~injury employment and was moved to a lighter duty position. The Claimant testified in her deposition that when she went back to work after her injury the "workload was getting heavier, and... I had no energy..." At the hearing before the Administrative Law Judge, Claimant testified again that her injury and her overall health caused her inability to do her pre ~injury job. The Employer and Carrier did not present evidence rebutting the presumption and presented zero witnesses at trial. We respectfully request this Court reexamine the issue and reverse the Full Commission's Order denying Claimant compensation for loss of use above the medical impairment rating. WHEREFORE, PREMISES CONSIDERED, Appellant respectfully moves this Court for rehearing of its opinion handed down on April 4, 2017 Respectfully submitted, BY: gen K. Chhabra, MSB No Chhabra Cst Gibbs, P.A. Telephone: (601) 948 ~ 800S Facsimile: (601) 948 ~ 8010

5 CERTIFICATE OF SERVICE We, attorneys for Appellant, do hereby certify that I have this date hand delivered or mailed by United States, postage prepaid, a true and correct copy of the above and foregoing Motion for Rehearing to: Daniel Culpepper, Esq. Anderson Crawley & Burke, PLLC p.o. Box 2540 Ridgeland, MS 39158~ 2540 Honorable Judge Tammy Green Harthcock Mississippi Workers' Compensation Commission Post Office Box 5300 Jackson, MS 39296~5300 Chairman Mark Formby Mississippi Workers' Compensation Commission Post Office Box 5300 Jackson, MS 39296~5300 SO DATED, this the 18 th day of April, ogen K. Chhabra, MSB No Chhabra & Gibbs, P.A. Telephone: (601) 948 ~ 8005 Facsimile: (601) 948~8010