Decisions – COA – Nov. 15, 2016

 

Bettye Logan v. Klaussner Furniture Corporation  and American Casualty Company of Reading, PAworkers comp. – Logan was employed by the Klaussner Furniture Corporation  when in  October 2003, she was injured  when her foot became caught in some fabric fibers at work, causing her to fall. The AJ found that Logan had not suffered any industrial loss of use to her left lower extremity. The Commission affirmed. The COA  reversed and remanded  finding that (1) Logan had suffered a loss of wage-earning capacity, and (2) the evidence supported a finding of permanent-partial 2 disability or permanent-total disability.  On remand, the AJ  found that Logan suffered a sixty-percent loss of industrial use to her left lower extremity.  The  Commission affirmed  stating that it agreed with the AJ that Logan had the ability to return to employment at least at a sedentary level based on the medical and vocational evidence. On appeal, the COA reverses because the Commission failed to follow the COA’s opinion.

 As stated above, with regard to Logan’s injury, we held in Logan I that her injury (1) was permanent, and (2) resulted in a loss of wage-earning capacity. Logan I, 127 So. 3d at 1142-43 (¶¶20-21). Therefore, section 71-3-17(a) controls, not section 71-3-17(c) as applied by the Commission. Thus, the Commission’s decision is based on an erroneous application of law and, as such, this case must be reversed and remanded to the Commission for it to find the amount of Logan’s loss of wage-earning capacity and apply that finding to two-thirds of Logan’s average weekly wage on her date of injury for the maximum number of weeks of disability to which she is entitled under section 71-3-17(a), 450 weeks, as part of its determination of the amount of Logan’s workers’ compensation award.

In Re: Estate of Randi Allison Fuller, Deceased, a Minor: Joe Fuller v. Dorothy B. Kellyaccounting – Randi Fuller died at the age of 17 from cystic fibrosis. He was the beneficiary of a trust founded to encourage its beneficiaries to obtain higher education. Dorothy Kelly, Randi’s maternal grandmother, was the trustee of the Trust. The Trust established a separate sub-trust for each beneficiary. The  Trust allowed  Dorothy to use funds on an emergency basis to help recipients with needs other than educational.  Joe had the chancery appoint  Troy A. McFarland as the administrator of Randi’s estate.  McFarland requested the court to have Dorothy pay Randi’s estate the proceeds from the Trust.  Dorothy filed an accounting of every penny regarding Randi’s Trust even though the terms of the trust did not require it.  Joe appeals raising issues with the chancellor’s ratification of the accounting.  The COA affirms noting Dorothy wasn’t required to give an accounting but she gave a thorough one anyway.

Harold Hathorn v. ESCO Corporation – workers comp – On June 8, 2012, Hathorn suffered a compensable injury to his right hand while working on a  grinder at ESCO in June 2012. He took medical leave and returned in  September 2012 and continued working there until November 7, 2013. Hathorn  was diagnosedwith DeQuervain’s tenosynovitis in his right hand. Dr. James Watson operated on  the hand and concluded that Hathorn was at maximum medical improvement  on October 30, 2012, and assigned a one percent permanent medical impairment to Hathorn’s right upper extremity. Dr. Watson released Hathorn to return to work with restrictions.   Hathorn continued to have pain in his right hand, and in May 2013, he began to visit Dr. Eric Pearson who  determined that Hathorn was at MMI on October 28, 2013, and assigned a twenty percent permanent medical impairment to Hathorn’s right upper extremity. When Esco assigned Hathorn to drive a forklift, he did so but stopped claiming it hurt his hand. Esco told him to get a doctor’s note that he couldn’t use a forklift. When he didn’t, he was fired. He filed a petition to controvert. The AJ  judge found that Hathorn had a forty-three percent industrial loss due to his injury but that Hathorn could perform the substantial acts of some of his former employment. The administrative judge also found that Hathorn was entitled to compensation for an additional twenty-three percent of loss as ESCO had already compensated Hathorn for his twenty percent medical loss.  The Commission affirmed the administrative judge’s factual findings but amended the administrative judge’s order to award Hathorn a fifty percent industrial loss.  Hathorn appeals. The COA affirms.

Keith Patrick Smith v. Mary Bryant SmithSOL for collecting on divorce judgment – Keith and Mary were divorced via a final judgment entered in January  2003 in which Mary was awarded 1/3 of the value of Keith’s medical practice  which amounted to $116,000. Because Keith did not have the present ability to  pay the $116,000 or liquidate his practice, the chancellor ordered Mary to wait until January 22, 2006, before she attempted to collect her monetary award and that  the award would  neither diminish nor accumulate interest during the three-year waiting period.  In June  2010, Mary filed a motion for citation for contempt and for modification of alimony. Keith claimed the  applicable statute of limitations barred Mary’s attempt  to collect the monetary judgment. The chancellor found that the seven-year statute of limitations on Mary’s ability to collect the monetary judgment did not begin to run until January 22, 2006. He  further found that, at the time of the hearing on August 23, 2011, the present value of the judgment and accrued interest amounted to $167,968.  Keith appeals.  The COA affirms.

Debbie Jones v. Dragway Enterprises, Inc. premises liability – Debbie Jones was injured when the bleachers she was sitting in broke.  The trial court granted summary judgment for the defendant based on a waiver she signed on entering.  On appeal she argues that they were negligent in failing to inspect the bleachers. The COA affirms.

Clyde Delbert Esplin v. Rebecca Carol Esplin (Bryant) – contempt –  Clyde and Rebecca were divorced in 2011. Rebecca was awarded custody of their three minor children.  Clyde was awarded visitation, ordered to pay $375 per month in child support, and ordered to pay for the children’s health insurance. A bunch of motions followed. This appeal arises from an order dated from February  2014, wherein the chancellor increased Clyde’s child-support payments to $1,601.55, awarded attorney’s fees to Rebecca, and dismissed Clyde’s counterclaim for custody, modification and contempt.  On November 21, 2014, Clyde filed a petition pursuant to Rule 60(b). In an order dated April 2, 2015, the chancellor granted Clyde’s petition for relief in part by reducing his child-support payments due to a calculation error. Clyde was ordered to pay $1,234.88 per month in child support.  Clyde appealed. Noting than an appeal of a ruling on an order on a 60(b) motion is limited to whether there was an abuse of discretion, the CPA affirms.

Sharita Giles v. Shaw School Districtnonrenewal of principal employment contract – Giles was hired in 2008 by the Shaw School Dist. to serve as principal of McEvans Elementary School.   Her contract was renewed on a yearly basis until February 14, 2013, when the SSD Board of Trustees  voted not to renew it. She was told it  was not renewed due to the consistent poor performance of the school. Giles requested a hearing, which she got. The Board still voted to oust her.  She  appealed to the Bolivar County Chancery Court.  The chancellor concluded that the Board had a valid reason—the low academic performance of McEvans—not to renew Giles’s employment contract. Giles appealed.  The COA affirms.

Pro se PCR appeals affirmed:

Wendell Hayes  v. State of Mississippi

Bryan F. Faris  v. State of Mississippi

Ottis J. Cummings, Jr. v. State of Mississippi

Earnie White  v. State of Mississippi

 

 

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