Officer Down?

Is a patrolman entitled to a 100 percent industrial loss even though he's making $10,000 a year more in his new job?

A patrolman for a police department injured his left knee while he was apprehending a suspect fleeing from a nightclub brawl. He underwent numerous knee surgeries. His injury was assessed as a 25 percent medical impairment. He remained employed with the department but was concerned because he could no longer chase suspects or easily get in and out of his patrol car.

He later voluntarily left his job to take a new position as a warrant officer with a second police department. He was promoted to a position that paid $10,000 a year more than his position that he was in when he was injured.

The second police department required physical testing for all its police officers. The chief of police accommodated the patrolman by allowing him to perform the test on a stationary bike instead of requiring him to run. The patrolman was concerned that his accommodation would not last long and that he would not be able to pass the bike test in the future. Also, the chief of police was a 61-year-old at-will employee who potentially could not be reappointed at the next city election.

The administrative judge (AJ) found the patrolman sustained a 100 percent industrial loss to his left leg. The Workers' Compensation Commission and the trial court agreed with the AJ's decision.

Was the AJ correct in finding the patrolman sustained a 100 percent industrial loss?

A. No. The patrolman was earning $10,000 a year more in wages after his injury.

B. Yes. The patrolman could no longer perform the substantial acts of his usual employment.

C. Yes. The patrolman could not pass a physical test required for all police officers.

How the court ruled: A.

The Mississippi Court of Appeals held that the patrolman was not entitled to an award of 100 percent industrial loss. City of Laurel v. Guy, No. 2010-WC-00444-COA (Miss. Ct. App. 03/29/11).

The court sent the case back to the commission to determine the appropriate award for the patrolman.

The court pointed out that the loss of wage earning capacity was the controlling issue. While a worker who is earning postinjury wages may be entitled to an industrial loss greater than his medical loss, he cannot be compensated for a total loss.

The patrolman argued that the sedentary nature of his work was an accommodation. The court said it was too speculative to conclude the patrolman might lose his job if the chief of police was not reappointed. The court said the chief's future employment was irrelevant to the patrolman's wage earning capacity. The court explained that allowing the 100 percent industrial loss award to stand would be contrary to the remedial purpose of workers' compensation.

B is incorrect. The court said that the patrolman's usual employment was broader than being a patrolman. With his past experience and skills, he was suited for a number of positions in law enforcement.

C is incorrect. The court said the patrolman had a presumption of industrial loss based on his inability to run. However, the presumption could be rebutted by showing that he was earning higher wages after the injury.

CHRISTINA DIFONTE is the legal editor of the WorkersComp Forum.

This feature is not intended as instructional material or to replace legal advice.

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