The importance of job searches and inability to return to usual employment in scheduled member cases was recently discussed in
Cole v. Ellisville State School, No. 2009-WC-01768-COA. In the Cole case an injured worker hurt her knee and was unable to return to her job because she could not meet the required physical demands. The Court of Appeals overturned a ruling by the full Commission that cut in half the total loss of industrial use of the scheduled member assigned by the Administrative Law Judge. The main issue was the failure of Cole to seek other employment after her injury. A clear distinction was drawn between loss of wage earning capacity as a function of a permanent-total disability cases that can also arise from a scheduled member case versus a permanent partial disability/loss of industrial use claim which was the main focus of this appeal. While Cole could have potentially argued for a degree of permanent and total disability, which would have required that she show that she tried to find other employment without success, she instead proceeded with a loss of industrial use argument.
What is interesting in this opinion is that the Court looked at a broader view of usual type of employment that not only focuses on the job the worker was performing when they were injured but other jobs the worker has performed in the past to determine if a total loss has occurred. Unlike previous cases, Cole's work history had focused on only a few jobs which were similar in their physical demands. The key phrase "unable to perform the substantial acts of her usual employment" pops up over and over again. Injured workers can walk away from this decision with a clearer view of loss of industrial use cases in that the focus is not job searches, which still might be helpful, but instead medical evidence that they cannot do the same type of work as well as a showing that they are also unable to perform jobs in which they have performed in the past. This particular point is highlighted in the distinguishing of Cole and
Meridian Professional Baseball Club v. Jensen. 828 So. 2d 740 (Miss. 2002). Overall, claimants now have a better picture for how to proceed with their comp case when they hear the devastating news from their treating physician that they cannot return to their job because their injury prevents them from performing the necessary physical requirements.
