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

Similar documents
REPLY BRIEF FOR APPELLANTS

IN THE MISSISSIPPI SUPREME COURT CASE NO KA HOSAN M. AZOMANI, Appellant. STATE OF MISSISSIPPI, Appellee PETITION FOR WRIT OF CERTIORARI

V. NO KA COA STATE OF MISSISSIPPI MOTION FOR REHEARING STANDARD OF REVIEW ARGUMENT

FILED. JUN '72009 OFFICE OF TI;" "LERK SUPREME COURT COURT OF APPEAlS

PETITION FOR REHEARING

IN THE CIRCUIT COURT OF JONES COUNTY, MISSISSIPPI SECOND JUDICIAL DISTRICT REPLY BRIEF OF APPELLANT

IN THE COURT OF APPEALS OF MISSISSIPPI NO CA-00702

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI CASE NO.: WC COA

PETITION FOR WRIT OF CERTIORARI

IN THE CIRCUIT COURT OF THE FIRST JUDICIAL DISTRICT OF HINDS COUNTY, MISSISSIPPI CAUSE NO.

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO CA COA WINN-DIXIE MONTGOMERY, LLC

BRIEF OF APPELLEE BEFORE THE COURT OF APPEALS FOR THE STATE OF MISSISSIPPI BELL SOUTH TELECOMMUNICATIONS, INC. VS. LARRY B.

IN THE UNITED STATES BANKRUPTCY COURT FOR THE NORTHERN DISTRICT OF MISSISSIPPI. SAMUEL M. BROTHERS and LORA BROTHERS

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO KA COA STATE OF MISSISSIPPI MOTION FOR REHEARING

ORAL ARGUMENT IS NOT REQUESTED

v. CAUSE NO CA-01920

IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI NO CA-00231

REPLY BRIEF OF THE APPELLANT

E-Filed Document Jun :00: CC Pages: 17 IN THE SUPREME COURT OF MISSISSIPPI COURT OF APPEALS OF THE STATE OF MISSISSIPPI

IN THE MISSISSIPPI COURT OF APPEALS 2015-CA JOSHUA HOWARD Appellant-Defendant v. THE STATE OF MISSISSIPPI, Appellee-Plaintiff

llpage IN THE SUPREME COURT OF MISSISSIPPI COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO.2009-CA APPELLANT BENNIE E. BRASWELL, JR.

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI. No CA COA

REPLY BRIEF OF THE APPELLANTS

IN THE COURT OF APPEALS FOR THE STATE OF MISSISSIPPI. v. NO CA COA R.M. SMITH INVESTMENTS, L.P.

IN THE CIRCUIT COURT OF HINDS COUNTY, MISSISSIPPI FIRST JUDICIAL DISTRICT. ) Civil No CIV. Defendants )

Rules of Appellate Procedure, and files this Motion for Rehearing of the decision rendered by the

IN THE SUPREME COURT OF MISSISSIPPI No TS CURTIS RAY MCCARTY, JR. RESPONSE IN OPPOSITION TO MOTION FOR REHEARING

REPLY IN SUPPORT OF BRIEF OF APPELLEE/CROSS APPELLANT H&E EQUIPMENT SERVICES, INC. ORAL ARGUMENT NOT REQUESTED

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO: 2015-CA COA VICTOR BYAS AND MARY BYAS CERTIFICATE OF INTERESTED PARTIES

IN THE COURT OF APPEAL OF THE STATE OF MISSISSIPPI FILED OFFICE OF THE CLERK SUPREME COURT COURT OF APPEALS BRIEF FOR THE APPELLEE

THE SUPREME COURT OF MISSISSIPPI V. NO WC COA KLAUSSNER FURNITURE CORPORATION D/B/A BRUCE FURNITURE INDUSTRIES

IN THE SUPREME COURT OF MISSISSIPPI CAUSE NO WC COA MISSISSIPPI AUTOMOBILE DEALERS ASSOCIATION

IN THE SUPREME COURT OF TENNESSEE SPECIAL WORKERS COMPENSATION APPEALS PANEL AT Knoxville February 26, 2007 Session

PETITION FOR WRIT OF CERTIORARI

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI CAUSE NO.: 2009-TS ON APPEAL FROM TIPPAH COUNTY CIRCUIT COURT CAUSE NO.

REPLY BRIEF OF APPELLANTS

.J o(~- Cl- ~ ()Obl'iC04 fl::[ TABLE OF CONTENTS

IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Special Action Industrial Commission

IN THE SUPREME COURT OF MISSISSIPPI NO CT SCT WILLIAM MICHAEL JORDAN STATE OF MISSISSIPPI SUPPLEMENTAL BRIEF OF APPELLANT

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI V KA COA STATE OF MISSISSIPPI MOTION FOR REHEARING

IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI NO.2009-CP APPEAL FROM THE CIRCUIT COURT OF LAUDERDALE COUNTY, MISSISSIPPI BRIEF OF APPELLEE

NO CA Brenda Franklin v. Cornelius Turner MOTION FOR RECONSIDERATION

NO KA COA IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI BRYN ELLIS APPELLANT, STATE OF MISSISSIPPI APPELLEE.

SUPREME COURT OF THE STATE OF MISSISSIPPI NO TS-01200

1411 Virginia Street, East ww.shumanlaw.cam 1445 Stewartstown Koad, Suite 200 Suite 200

REPLY OF APPELLANT, DIMP POWELL

BEFORE THE ARKANSAS WORKERS COMPENSATION COMMISSION CLAIM NO. E502382/E709020/F003389

APPELLANTS' RESPONSE TO THE PETITION FOR WRIT OF CERTIORARI OF DR. RANDALL HINES AND MISSISSIPPI REPRODUCTIVE MEDICINE, PLLC

IN THE SUPREME COURT OF MISSISSIPPI APPELLEE'S SUPPLEMENTAL BRIEF IN RESPONSE TO PLAINTIFF'S REPLY BRIEF

IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI NUMBER 2015-KA STATE OF MISSISSIPPI BRIEF FOR APPELLANT

APPELLANT'S BRIEF TO THE SUPREME COURT

IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI LOWE S HOME CENTER, INC. BRIEF OF APPELLANT ORAL ARGUMENT REQUESTED

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO KA STATE OF MISSISSIPPI BRIEF FOR THE APPELLEE

APPELLEE'S RESPONSE TO APPELLANT'S MOTION FOR REHEARING

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI PATRICK DANTRE FLUKER BRIEF FOR THE APPELLEE APPELLEE DOES NOT REQUEST ORAL ARGUMENT

PETITION FOR WRIT OF CERTIORARI

v. No CA SCT DOROTHY L. BARNETT, et al. ON APPEAL FROM THE CIRCUIT COURT OF HINDS COUNTY NO CIV ORAL ARGUMENT NOT REQUESTED

No.2007-IA BRIEF OF APPELLEES LA TISHA MCGEE. ET AL.

v. NO WC COA

IN THE SUPREME COURT OF MISSISSIPPI CASE NO CC-002S8 c;oii-~ TERRY H. LOGAN, SR. AND BEVERLY W. LOGAN CERTIFICATE OF INTERESTED PERSONS

IN THE SUPREME COURT OF MISSISSIPPI CAUSE NO: 2009-CA AMERICA'S HOME PLACE, INC. APPELLEE'S BRIEF

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO KA COA STATE OF MISSISSIPPI BRIEF FOR THE APPELLEE

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO KA COA STATE OF MISSISSIPPI BRIEF FOR THE APPELLEE

IN THE COURT OF APPEALS FOR THE STATE OF MISSISSIPPI. No 2013-CA COA. DAVID McKEAN, FRANCESCO MEDINA, DONALD ARRINGTON and WAYNE ROBERTSON

IN THE SUPREME COURT OF MISSISSIPPI COURT OF APPEALS OF THE STATE OF MISSISSIPPI CAUSE NO SA FILED. ~otthec...

IN THE MISSISSIPPI SUPREME COURT OF MISSISSIPPI COURT OF APPEALS NO CA COA

IN THE SUPREME COURT OF MISSISSIPPI No TS CURTIS RAY MCCARTY, JR. RESPONSE IN OPPOSITION TO PETITION FOR CERTIORARI

PETITION FOR WRIT OF CERTIORARI

IN THE SUPREME COURT OF MISSISSIPPI NO CA COA

SUPREME COURT OF MISSISSIPPI COURT OF APPEALS OF THE STATE OF MISSISSIPPI CAUSE NO CA STEVENS AUCTION COMPANY and JOHN D.

IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI

IN THE SUPREME COURT OF MISSISSIPPI 2014-CA BRIEF OF APPELLANT GORDON KLEYLE ORAL ARGUMENT NOT REQUESTED

BRIEF OF APPELLANT PREMIER ENTERTAINMENT BILOXI LLC D/B/A HARD ROCK HOTEL & CASINO

IN THE SUPREME COURT FOR THE STATE OF MISSISSIPPI BRIEF OF APPELLANT, MARSHALL COUNTY BOARD OF SUPERVISORS

PETITION FOR WRIT OF CERTIORARI

INSTRUCTIONS TO RESPONDENT

E-Filed Document Sep :10: CA Pages: 17 IN THE COURT OF APPEALS FOR THE STATE OF MISSISSIPPI CASE NO.

COPy IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

E-Filed Document May :25: CA Pages: 18. IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI No.: 2013-CA-01006

IN THE SUPREME COURT OF TENNESSEE SPECIAL WORKERS COMPENSATION APPEALS PANEL AT NASHVILLE November 15, 2010 Session

REPLY BRIEF OF THE APPELLANT

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI APPELLANT DOES NOT REQUEST ORAL ARGUMENT

IN THE CHANCERY COURT OF FORREST COUNTY, MISSISSIPPI MOTION FOR SUMMARY JUDGMENT

IN THE SUPREME COURT OF MISSISSIPPI. v. CASE NO. 201O-WC COA

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

E-Filed Document Jun :06: KA COA Pages: 7 IN THE COURT OF APPEALS OF MISSISSIPPI APPEAL FROM THE CIRCUIT COURT OF RANKIN COUNTY

IN THE SUPREME COURT OF TENNESSEE SPECIAL WORKERS COMPENSATION APPEALS PANEL AT NASHVILLE November 24, 2008 Session

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO.2015-CA-00903

IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI DBA MID-SOUTH FORESTRY; MID-SOUTH FORESTRY, INC.; AUG RICHARD CHISM, INDIVIDUALLY AND

6. Ms. Bernice Conner

CASE NO. 1D An appeal from an order of the Judge of Compensation Claims. Laura Roesch, Judge.

IN THE SUPREME COURT OF TENNESSEE SPECIAL WORKERS COMPENSATION APPEALS PANEL AT JACKSON April 24, 2017 Session

IN THE. SUPREME COURT OF THE STATE OF MISSISSIPPI NO.2011-CA AND MISSISSIPPI STATE OIL AND GAS BOARD, ET AL

IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI GENERAL MOTORS CORPORATION CERTIFICATE OF INTERESTED PERSONS

NOT DESIGNATED FOR PUBLICATION

IN THE SUPREME COURT OF TENNESSEE SPECIAL WORKERS COMPENSATION APPEALS PANEL AT KNOXVILLE September 19, 2003 Session

BRIEF OF THE APPELLANT

Case 3:16-cv DPJ-FKB Document 9 Filed 10/24/16 Page 1 of 11

BRIEF OF THE APPELLEE

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO CA COA STATE OF MISSISSIPPI BRIEF FOR THE APPELLEE

Transcription:

E-Filed Document Apr 18 2017 16:31:28 2016-WC-00346-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, 05-15-12) 15, 12) No. 2016, WC,00346~COA &:: v. MID PRODUCTS d/b/a MODERN LINE (Date of Injury: 09-18-12) 09,18,12) No. 2016,WC,00345,COA MOTION FOR REHEARING Rogen K. Chhabra, MSB No. 99131 Chhabra &:: Gibbs, P.A. Telephone: (601) 948, 948-80058005 Facsimile: (601) 948,8010 948-8010

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

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

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. 99131 Chhabra Cst Gibbs, P.A. Telephone: (601) 948 ~ 800S Facsimile: (601) 948 ~ 8010

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, 2017. ogen K. Chhabra, MSB No. 99131 Chhabra & Gibbs, P.A. Telephone: (601) 948 ~ 8005 Facsimile: (601) 948~8010