Claimant suffered a compensable injury in August of 1989 and later had four back surgeries. After those operations, employer could not place claimant and continued paying him benefits. Employer learned through surveillance that claimant had applied for a motor vehicle dealership license, that he had opened an auto sales business with his brother, and that he was about the premises of the dealership on a number of occasions during a two-month period. Business records taken from the dealership verified claimant's involvement and checks were found signed by claimant, indicating he was buying items for the dealership, including motors and cars. At the hearing, claimant denied involvement in the dealership, but the deputy commissioner found that claimant's testimony lacked credibility and that he had regained his wage earning capacity.
On appeal, the Full Commission, with one commissioner dissenting, rejected the deputy commissioner's finding and awarded claimant ongoing benefits. The Full Commission's finding that claimant was credible was based solely on statements made by claimant to his psychologist and rehabilitation nurse and it disregarded all other evidence. The Court of Appeals rejected the Full Commission's finding of credibility and stated there was "insufficient evidence" to support such a finding. The Court also found that defendants had met their burden of showing that claimant had wage earning capacity and that post-injury capacity, rather than actual wages earned, is the relevant factor in assessing disability. Deese v. Champion International Corporation (citation omitted).
Risk Handling Hint: Historically, the Court of Appeals has upheld the Industrial Commission's decisions if there is "any competent evidence" in the record to support the Commission's findings and this has made it almost impossible to prevail in appeals from the Industrial Commission. This case can be relied upon by defense counsel in appellate proceedings where the Commission's decision is not adequately supported by the evidence of record. More importantly, it rejects the principle that defendants must prove that claimants are earning wages when they are found to be working for other employers while receiving temporary total disability benefits and properly shifts the burden to the claimant to prove the extent of disability.