What Do You Think: Did Grocery Clerk Show Loss of Wage-Earning Despite Pay Raise?

Frank Ferreri

Jackson, MS (WorkersCompensation.com) – After a workplace injury, an employee came back to work and made more money.

So, could she claim a loss of wage-earning capacity? A Mississippi court recently faced that question.

While cleaning a restroom at the store where she worked, a grocery clerk was knocked to the floor by a customer entering the restroom. Her fall resulted in an injury to her pelvis.

The clerk received treatment from an orthopedic surgeon and reached maximum medical improvement. After undergoing a functional capacity evaluation, the clerk was released to return to light duty work, and she began working at the store again.

The clerk filed a workers’ compensation claim against the store, and an administrative judge entered an order denying the clerk’s claim for permanent disability benefits. According to the AJ, the clerk could “perform the substantial acts of her usual employment.” The AJ also determined that the clerk did not show a loss of wage-earning capacity because her post-injury wages exceeded her pre-injury wages.

The clerk filed a petition for review with the Mississippi Workers’ Compensation Commission, which disagreed with the AJ’s decision regarding the loss of wage-earning capacity. According to the commission, the clerk received accommodations from the store that she might not receive on the open labor market.

After the commission sent the case back to the AJ, the AJ changed course, finding that the clerk experienced a loss of wage-earning capacity to the body as a whole of 30 percent. Therefore, the AJ awarded the clerk PPD benefits, prompting the store to seek the commission’s review.

Considering evidence from vocational experts indicating that the clerk was working only in sedentary and light-duty jobs for the store despite having worked medium- and heavy-duty jobs before the injury, the commission determined that the clerk experienced a loss of wage-earning capacity in the amount of $142.14 for 450 weeks.

The store appealed to court.

In Mississippi, when a worker returns to her job, a presumption of no loss of wage-earning capacity arises. However, a worker can rebut the presumption with evidence that her post-injury earnings are unreliable due to: 1) an increase in general wage levels since the time of the accident; 2) the worker’s greater maturity and training; 3) longer hours worked by the worker after the accident; 4) payment of wages disproportionate to capacity out of sympathy to the worker; and 5) the temporary and unpredictable character of post-injury earnings.

Did the clerk rebut the presumption that she experienced no loss of wage-earning capacity.

  1. Yes. The shift in work to light duty showed that her wages were an unreliable indicator of her wage-earning capacity.
  2. No. The clerk’s post-injury wages exceeded her pre-injury wages, indicating her wage-earning capacity was not affected.

If you selected A, you agreed with the court in Kroger Company v. Pybus, No. 2020-WC-01041-COA (Miss. Ct. App. 09/28/21), which determined that the clerk experienced a loss of access on the open labor market due to her work-related injury. As a result, the court upheld the commission’s decision in the clerk’s favor.

The court noted that prior the worker’s injury, she could stand or work for an 8-hour day, but after the injury it was a “struggle,” and she could only stand for 2.5 hours per day. Additionally, the clerk reported that her pain “every now and then” caused her to vomit.

Regarding the clerk’s pay increase, the court explained that her position was covered by a collective bargaining unit, and she received a union pay raise.

As a result, the court concluded that the clerk successfully rebutted the presumption of no loss of wage-earning capacity.

This feature does not provide legal advice.

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