IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI N O. 2019-WC-00012-COA SHAUN SEALS APPELLANT

v. PEARL RIVER RESORT AND CASINO AND PEARL RIVER RESORT APPELLEES

DATE OF JUDGMENT: 12/06/2018 TRIBUNAL FROM W HICH APPEALED: MISSISSIPPI W ORKERS’ COMPENSATION COMMISSION ATTORNEYS FOR APPELLANT: BENJAMIN SETH THOMPSON JOSEPH R. FRANKS ATTORNEY FOR APPELLEES: AMY K. TAYLOR NATURE OF THE CASE: CIVIL - W ORKERS’ COMPENSATION DISPOSITION: AFFIRMED IN PART; REVERSED AND REMANDED IN PART - 12/10/2019 MOTION FOR REHEARING FILED: MANDATE ISSUED: EN BANC. McCARTY, J., FOR THE COURT: ¶1. Shaun Seals was injured while working in the course and scope of his em ploy m ent. He brought his case bef

ore an a dm inistrative judge (AJ), who f ound that S e a l s h a d y et to reach m axim

um m edical im

provem ent (MMI). The e m ploy er appealed, and the c a s e was reviewed b y the Mississippi W orkers’ Com pensation Com m i ssion (the Com m ission), which f ound that Seals had r eached MMI and did not suf f er a los s o f w a g e - e arning capacity

. Aggrieved, Seals appeals the Com m ission’s f indings. FACTS ¶2. Seals was w orking f or t he P earl River R esort and Casino (Pearl River) when he wasinjured in a car accident on April 14, 2012. T he car he was in was rear-ended so violently

the windows exploded. Following the collision, a num ber of doctors treated a n d evaluated Seals. Doctors Bruce H irshm an, Bruce S enter, and Howar d K a t z p r ovided MMI dates ranging f rom August 20, 2012, to F ebruary 12, 2016. 1 Doctors Greg W ood and O rhan Ilercil did not f i nd that Seals had reached MMI. 2 ¶3. Dr. Michael Molleston suggested that Seals have surgery , but Doctors Senter, Ilercil, and W ood recom m ended a gainst it. Dr. Ilercil s tated that h e did not “believe that a lum bar f usion would be i n [ S eals’] best interest

. . . .” Dr. W ood vehem ently o pposed surgery , stating: “My gut f

eeling is that if he does undergo t his surgery , he w ill not have a s uccessf ul
surgery and, m ore concerning, will be set on a path of m ultiple procedures and attem pts to rectif y his back pain.” ¶4. A vocational analy sis was conducted by Bruce Brawner, who determ ined that Seals had l ost access to thirty p ercent of the job titles i n the c o mp e t i tive labor m arket

com m ensurate with his skills a nd levels of expertise. B rawner reviewed Seals’ earnings and reported that he had e arned $76,462.00 in 2011 and $87,308.00 in 2012. B r a wner opined that Seals is able t o earn an average of $39,478.00 per y ear post-incident and that his loss of earnings is between thirty -nine and f orty -eight percent.

1 D r. S en ter p ro v id ed tw o d ates o f M M I: A u g u st 2 0 , 2 0 1 2 , an d A u g u st 1 9 , 2 0 1 3

. D r. H i rsch m a n also p ro v id ed tw o d a tes o f M M I: N o v em b er 1 3 , 2 0 1 5 , an d F eb ru ary 1 2 , 2 0 1 6

. D r . K atz f

o u n d S e als to b e at M M I o n A u g u st 2 0 , 2 0 1 2

. 2 Wh ile th e C o m m issio n ’s d ecisio n stated th at D r. Wo o d f o u n d S eals t o b e at M M I, h is rep o rt sh o w s th at h e b eliev ed S eals co u ld reach M M I f o llo w i n g “ an ag g ressiv e reh ab co u rse.” 2¶5. The case was brought bef o re an AJ, who f

ound that there was insuf f icient evidence
to determ ine i f S eals had reached MMI. The AJ then ordered Pearl River to pay tem porary total disability

benef its f rom the date of

the injury

until MMI could be determ ined. ¶6. Pearl River requested t h e C o m m i s s i o n r e v i e w the decision. The Com m ission reversed the AJ’s order and, rely ing on Dr. Hirshm an’s report, f ound that Seals had r eached MMI on No vem ber 1 3, 2015. Dr. Hirshm an’s notes f rom that date i ndicate that he placed Seals at MMI “f rom [ his] p ractice of anesthesiology pain m a nagem ent.” He released Seals to return to work on a f

ull-tim e basis without restrictions or lim itations. ¶7. The Com m ission f urther f o und that Seals d id not prove any perm anent disability

or loss of wage-earning capacity

as a result of

his work-related injury

. ¶8. Seals asserts f

our assignm ents of error o n a p p e a l : ( 1 ) t h e C o mmi s sion erred in reversing the AJ’s order; (2) he did no t r e a c h MMI o n Novem b er 1 3, 2015; (3) the Com m i ssion i m

p r operly relied on conf

licting expert opinions; and ( 4) the e vidence does not support the Com m i ssion’s f i ndings. STANDARD OF REVIEW ¶9. In reviewing a decision of the Mississippi W orkers’ Com p ensation Com m ission great def erence is given to t he Com m ission’s f actual f indings. J

anssen Pharm. Inc. v
. Stuart , 856 So. 2d 431, 435 (¶16) (Miss. C t. App. 2003). This def erential standard of r eview leads to a reversal only wh e n t h e Com m ission’s f inding o f f

act is u nsupported by the e vidence, arbitrary or capricious, or an error of the law. W ayne Farms LLC v. W

eems , 105 So. 3d 1178, 1180 (¶6) (Miss. C t. A pp. 2012). W here no evidence or o nly a s cintilla of evidence supports

3the Com m ission’s decision, this Court will not hesitate to reverse. Metal Trims I ndus. Inc.

v. Stovall, 562 So. 2d 1293, 1297 (Miss. 1990); F & F Const. v. H olloway , 981 So. 2d 329, 331 (¶9) ( M i s s . Ct. App. 2008) (citing Foamex Prods. Inc. v. S immons , 822 So. 2d 1050, 1053 (¶11) (Miss. Ct. App. 2002)). ¶10. “A f

inding is clearly erroneous when , a l t h o u g h t h e r e i s som e slight e vidence to

su p p o rt it, the reviewing court on the entire evidence is lef t w ith the def

inite and f

irm conviction that a m istake has been m ade by the Com m ission in its f indings of f

act and in its application o f the Act.” Hardaway Co. v. Bradley , 887 So. 2d 793, 795 (¶11) (Miss. 2004). DISCUSSION ¶11. To establish a c om pensable work-related i njury , a claim ant m ust show t here was “(1)

a n accidental injury , (2) arising out of and in the course of em ploy m ent, and (3) a c a u s a l connection between the injury a nd the claim ed disability .” C ity of Jackson v. Sandifer , 125 So. 3d 681, 688 (¶27) ( Miss. Ct. App. 2013). Once a claim ant has established t hat they did receive a com

p ensable, work-related injury , com pensation is calculated a ft e r t h e c l a i m a n t has reached MMI. ¶12. Here, n either party d i sputes that Seals sustained a work-related in j u r y . I n stead, the issue we f ind to be dispositive in this case is whether t here is substantial evidence to support the Com m ission’s f

inding that Seals r eached MMI o n Novem ber 13, 2015, a n d if so, whether he suf f ered any loss of wage-earning capacity

. ¶13. “Ma x i mu m m edical im provem ent i s reached a t such tim e as the patient reaches the

m axim u m benef it f r om m edical treatm ent or is a s f a r restored as the perm anent character of

4his injuries will p erm it and/or the current l i mi t s o f me d ical science will perm it

. . . .”

Mississippi W o r

kers’ Com

pensation Medical Fee Schedule 8, § VI (2016) (def ining MMI);

see also Alumax Extrusions Inc. v. W r ight , 737 So. 2d 416, 420 (¶10) (Miss. Ct. App. 1998). Only once the date of M MI has been established c an i t be determ ined whether an em ploy ee has suf f ered a loss of wage-earning capacity and, if so, to what extent.
I. T h e C o m m ission did not err in assigning the MMI date as Novem ber 13, 2015. ¶14. Seals challenges the C om m ission’s f i ndi n g t h at he reached M MI on Novem ber 13, 2015. Specif

ically , he a rgues t hat the Com m i ssion im properly relied upon conf

licting expert opinions, and that the Com m ission’s f i ndings are not supported by substantial evidence. ¶15. “The Com m ission has t he prim ary duty t o a n a l y z e t h e evidence bef o re it and to deter m ine whether a claim ant has reached m axim um m edical im

provem e nt or recovery .” Chestnut v. Dairy Fresh Corp. , 966 So. 2d 868, 871 (¶6) (Miss. Ct. App. 2007).

A. The credibility of c onflicting ex pert opinions is f or t he Com m ission to determ ine. ¶16. Seals conte n d s t

h a t t h e C o m m i s s i o n i m

properly relied on Dr. S enter’s opinion because it was contradicted by

all of the other treating and evaluating phy sicians. ¶17. W h ere evidence supports as well as r ef utes an em

ploy ee’s claim , the m atter is to be determ ined by the C om m ission. Presto Mfg. Co. v. Teat , 241 So. 2d 661, 662 (Miss. 1970). Further, where there is conf licting testim ony , t he Com m is s i o n i s t h e ultim ate judge of the credibility of witnesses. Id

. “[ T]he Com m ission has the responsibility to apply its expertise and determ i ne which evidence i s m ore credible. W e will u phold that d eterm ination unless

5it is c learly erroneous.” W e s s o n v
. F

red’s Inc. , 811 So. 2 d 464, 469 (¶23) (Miss. Ct. App. 2002). ¶18. “[ N]either this Court nor the M ississippi Suprem e Court is em p owered to determ ine where the preponderance of the evidence lies when t he evidence is conf licting. Instead, this Court m ust af f i rm the decision of the Com m ission w here subs t a n t i al credible evidence supports the Com m ission’s order.” Barber Seafood Inc. v. Smith , 911 So. 2d 454, 461 (¶27) (Miss. 2005). ¶19. Evidence presented in the record showed c onf licting m edical o pinions as to when, or if , Seals reached MMI. The Com m i s s i o n w e ighed the evidence and, in f inding Dr. Hirshm an’s report to be credible, concluded that Seals reached MMI on Novem ber 13, 2015. ¶20. Given our def

erential s tandard of review, w e w i l l n o t r e - w e i g h t h e conf licting testim o ny . B. Substantial evidence supported the C om m i ssion’s

finding that Seals rea c hed MMI on Novem ber 13, 2015. ¶21. In the a lternative, Seals contends that the Com m ission’s f inding t hat he reached MMI

on No v e mb e r 1 3 , 2015, was not supported by substantial evidence. He argues the

ov e r w h elm i ng weight o f the e vidence supported the AJ’s order, which held that there was insuf f icient evidence to determ ine MMI. ¶22. Although it is g enerally the AJ who hears t he l ive testim ony , it is the Com m ission, not the AJ, who i s the ultim a te f inder of f

act and whose decis i o n i s e n t i t led t o appellate def erence. B arber Seafood , 911 So. 2d at 461 (¶27).

6¶23. As the ultim ate f act-f inder, the Com m ission “ h as t he authority not to a ccept any or all f act f indings of its ‘f

acility ,’ t he AJ.” D ay-Brite Lighting D i v
. , Emerson Elec. Co. v. Cummings , 419 So. 2d 211, 213 (Miss. 1982). “ [ A]s long as the [ C]om m ission’s decisions

were based u

pon substantial evidence, that decision would be upheld u pon appeal in spite of the f act that the [ A J’s] decision was also supported by substantial evidence.” Id

. ¶24. The Com m ission f ound that Seals had been placed at MMI by Doctors Senter, W ood, Hirshm an, and Katz. The Com m ission adopted the opinion of Dr. Hirshm an, Seals’ treating phy sician who f

o u nd Seals to have reached MMI on Novem ber 13, 2015. A dditionally , Dr. Katz, who reviewed all the doctors’ records, f ound that MMI was achieved as early as August 20, 2012. ¶25. The Com m ission ruled that the substantial evidence supported the f inding that Seals reached MMI on N ovem

ber 13, 2015. The C om m ission f ound that MMI was reached later than som e of

Seals’ treating phy sicians had determ ined. W e f i nd that the Com m ission did not err in its determ ination that MMI was reached.
II. Seals suffered a loss of w age-earning capacity . ¶26. Seals argues that the Com m ission erred in f inding that he had not suf f ered a loss of

wa g e - earning capacity

. Com pensation f

or a claim ant with a n injury not s pecif ically scheduled by the workers’ com pensation s tatute is m easured by a loss of wage-earning capacity

. Mueller C

opper Tube C

o. v. Upton , 930 So. 2d 428, 4 3 6 ( ¶ 30) (Miss. Ct. App. 2005). An injury

to the back is not specif

ically scheduled by

the statute. Id

. ¶27. W h en deciding whether a c laim ant h as suf f ered a loss o f wage-earning capacity , the

7f

ollowing f

actors are to be considered: the claim ant’s training, education, inability to work, f ailure to b e h ired e lsewhere, continuance of pain, a n d o ther related circum stances. Piney W oods Country Life Sch. v. Y oung , 946 So. 2d 805, 808 (¶5) (Miss. Ct. App. 2006). All of these f actors are to be considered as a whole. Id

. ¶28. “If , because o f the subject injury , the em p loy e e c a n n o t s e c u r e e mp l o y me n t at pre-injury pay , then the em

ploy ee m ay

be entitled to disability

pay m ents.” Ga. Pac. Corp.

v. Taplin , 586 So. 2 d 823, 8 28 (Mi s s . 1 9 9 1 ). Our Suprem e Court held in P ontotoc W ire Products v. Ferguson , 3 84 So. 2d 601, 603 (Miss. 1980), that “[ i]f a claim ant m a kes a prim a f acie showing of reasonable ef f orts indicating there a r e not suitable j obs, t h e burden then shif ts to the em

ploy er or insurer to show otherwise.” This burden m ay be overcom e “with evidence f

rom such sources as em

ploy m ent a g encies clearly s h owing the local accessibility of substantial gainf

ul em ploy m e nt suited to [ the claim ant’s] .

. . m e d ical condition.” Id . at 604. A f ailure to present such e vidence leads to the presum ption that none was available, and “[ i]t f ollows that the e m

p loy er f a iled to rebut [ the claim a n t' s ] prim a f acie case of disability .” Id

. ¶29. In Ferguson , a c laim a nt suf f ered af ter inhaling n oxious f

um es in the plant where he worked. Id. at 602. T h e c l aim ant was a thirty -nine-y ear-old m an with a high school education and “work exp e r i e n c e i n c lud[ ing] a stint as an assem bly -line m an f

o r a tractor

com pany i n Illinois as well as a f urniture inspector position

. . . and sales w ork

. . . .” Id

. His treating phy sician placed no restrictions on the c laim a nt “other than rem oving him f rom the industrial environm ent.” Id

. The Court considered the claim ant' s “trip to Jena, Louisiana,

8seeking suitable em ploy m ent, his application to Ram Golf , h is ef f ort to obtain a position as

a state m eat inspector, as well as his age, education, work experience, a n d extent of phy sical im p airm ent” in concluding that h e established a prim a f acie case of disability

. I

d

. at 604. The C ourt ultim ately h eld that because t he e m ploy er f a iled to present e v idence “showing the local accessibility of substantial gain f u l e m ploy m ent,” the em

ploy er f ailed to rebut the claim ant' s prim a f

acie case of

disability

. Id

. ¶30. Seals is a high school graduate who h as com p leted approxim ately one and a half y ears of college courses. He previously worked as a f iref ighter, a laborer f

or an of f shore drilling

com pany , a security

guard, and a linem an f

or an electronics com

p any . In addition to these jobs, Seals also operated a n um ber of businesses. He ran a carpet c leaning business, a private shuttle (lim ousine) com

pany , a nd a car-detailing business. Seals’ carpet cleaning business is currently

active and operating, but he now needs m ultiple em

p loy ees to assist in loading and unloading m a chinery f rom his van. Additionally , S eals–with help f rom his son–still

m aintains his car-detailing business. ¶31. Seals testif

ied that he was still “activel y l o o k ing f or work” and subm itted a list of f ourteen jobs that he a

pplied to; none of the applications were dated af ter January 2014. Of these jobs, one was what he t hought was a “sim ilar position” in transportation at Pearl River, which had becom e available in January 2014, a y ear a f ter he was l et go. Seals also testif ied that, given his restrictions, he is only eligible f or entry

- level rather than m anagerial positions. There is n o evidence that the Com m ission f ound Seals’ search to be less t han “reasonable.” Additionally , j ust as i n F erguson , Pearl River f

ailed t o o f

f er any evidence of substantial,

9gainf

u l em ploy m ent suited to Seals’ im

pairm ent. ¶32. T h e C o mmi s s i on solely r elied on Dr. S enter’s and Dr. H irshma n ’ s f i n d i n g s t o determ ine that Seals d id n ot suf f er a loss of wage-earning capacity

. But all of the e valuators

w h o o pined on the issue—Brawner, Dr. Senter, and Dr. Katz—f ound that Seals suf

f e r e d either a percentage of

im pairm ent, loss of

wage-earning capacity , or both. ¶33. Following Dr. Senter’s retirem ent, Dr. Molleston becam e Seals’ treating phy sician,

at which tim e he rem oved Seals f r o m w o r k

. Additionally , Dr. Katz conducted an “Independent Medical Evaluation on Seals.” Af ter the evaluation Dr. Katz f ound that Seals

was “capable of p erf

orm ing all light and sedentary activities

. . . [ as w ell as] som e m edium level activities.” This was a signif icant decrease in Seals’ pre-injury abilities t hat allo wed h i m t o p e r f

orm tasks f

alling into the “very heavy classif ications.” In his report, Dr. Kat z assigned Seals “a 2% im

pairm ent to the body

as a whole . . . .” ¶34. W e have a ddressed sim i lar sit u a t i ons b ef ore. In S tewart v. Singing River Hospital Systems , the Com m ission relied on the o p i n i o n of a vocational rehabilitationist in determ ining a claim ant’s disability

. Stewart v. Singing River Hosp. Sys ., 928 So. 2 d 176, 182 (¶25) (Miss. Ct. App. 2005). The rehabilitationist testif ied that the claim ant could “possibly ” perf orm som e sedentary -level jobs. Id . at 180 (¶21). This assessm ent was based solely on

a single interview with the claim ant and an interpretation of the t r e a t i n g phy sician’s deposition. Id

. at 181 (¶23). However, this “possibility ” was not included in the phy sician’s deposition or m edical notes. Id . at 179 (¶15). W e ultim ately concluded it was error “[ f ]or the Com m ission to rely

on the overly

optim istic interpretation by [ the rehabilitationist]

. . .

1 0c o mp a r e d t o t hat of a treating phy sician who steadf astly stated that [ the claim ant] w a s perm anently

disabled.” Id . at 181 (¶23). ¶35. L i k e S tewart , here the Com m ission erroneously relied on the opinions o f Docto r s Senter and Hirshm an to determ i ne that Seals did not suf f er a loss o f wage-earning capacity

. However, m edical d octors do n o t m ake f indings about a c l aim a n t’s w age-earning capacity

. That i s a legal determ ination, not a m edical issue. W alker Mfg. Co. v. Cantrell , 577 So. 2d 1243, 1248 ( Miss. 1 991). In the present case, the person qualif ied to m a ke a determ ination

as to S eals’ loss o f w age-earning capacity was Bruce Brawner, the rehabilitation consultant. Brawner’s o pinions were “based upon a specif i c m ethodology that included a vocational interview, vocational testing, transf erable skills anal y s i s , r e v iew of m edical records and other docum ents, utilization of recognized publications, as well as l abor m arket research.” He also used m ethodologies that are “nationally recognized, p e e r r eviewed in t he vocational rehabil i t a tion literate, and are widely utilized within the prof ession of vocational rehabilitation.” ¶36. In r eaching its conclusion the Com m ission g ave no consideration to Brawner’s report, which stated: “It is obvious t hat Mr. Seals’ occupational choices hav e b e e n d i m inished secondary to the April 14, 2012 incident.” Brawner c alculated that Seals “has lost access to 30% of the job titles i n the com petitive labor m arket

. . . that a r e consis t e n t w ith [ his] dem onstrated specif

ic vocational preparation level.” Using three dif f erent m odels, Brawner f ou n d Seals to have vocational im pairm ent to his post-incident e arning capacity ranging f rom thirty -f i ve to thirty -nine percent.

1 1¶37. S o B r a w n e r ’ s report r em ained unrebutted. Evidence which is not af f irm a t i v e l y contradicted and not “inherently im probable, incredible, o r u nrea sonable” cannot be arbitrarily and capriciously d iscarded. Morris v. Landsell's F rame C o , 547 So. 2d 782, 785 (Miss. 1989). ¶38. The Com m ission’s f inding that Seals did not suf f er a loss of wage-earning capacity

was erroneous. Pearl River f ail e d to rebut Seals’ presum ption of disability by p roviding evidence of available e m p loy m ent; B rawner, Senter, and Katz f ound t hat Seals suf

f ered either an im

pai r me n t or a loss of wage-earning c apacity , or both; and the one vocational rehabilitation report, produced by Brawner, rem ains uncontradicted. W e reverse a n d rem and this case to calculate Seals’ loss of w a ge-earning ability and award h im com pensation accordingly

. ¶39. AFFIRMED IN PART; REVERSED AND REMANDED IN PART. GREENLEE, TINDELL, McDONALD AND L A W RENCE, JJ., CONCUR. WESTB R O OKS, J., CONCURS IN PART A ND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. J. WILSON , P . J ., CONCURS I N PART AND DISSENTS I N PART WITH SEPARATE W R I T TEN OPINION, JOINED BY BARNES, C.J., CARLTON, P.J., AND C. WILSON, J. J. WILSON, P.J., CONCURRING IN PART AND DISSENTING IN PART: ¶40. This Court has again reweighed the evidence, f ailed to apply

the proper standard of review, and substituted its judgm ent f or that of the W orkers’ Com

pensation Com m ission. 3

3 S ee S h e ffield v. S .J. L o u is C o n str. In c. , N o . 2 0 1 8 -WC

- 0 0 3 8 5 -C O A , 2 0 1 9 WL 1 3 4 9 7 6 6 , at * 5 -* 9 (¶¶2 8 -4 5 ) (M iss

. C t

. A p p . M ar. 2 6 , 2 0 1 9 ) (J. W ilso n , P .J., d issen tin g ), cert. g r a n ted , N o . 2 0 1 8 -C T -0 0 3 8 5 -S C T (M iss. S ep t. 2 6 , 2 0 1 9 ); J o n es v. M

iss. B a p tist H e a l th S ys. In c. , N o . 2 0 1 8

- WC -0 0 9 3 0 -C O A , 2 0 1 9 WL 2 6 0 5 8 2 8 , at * 5

- * 9 (¶¶3 1 -5 8 ) (M iss. C t . A p p . Ju n e 2 5 , 2 0 1 9 ) (J. Wilso n , P .J., d issen tin g ), p et. fo r cert. filed O c t . 2 2 , 2 0 1 9

. 1 2I respectf

ully concur in part and dissent in part. 4
I. Additional Relevant Facts ¶41. Shaun Seals began working f or Pearl River Resort a

n d Casino in Philadelphia in 1999.
He started out as a valet working f or m inim um wage but eventually worked his way up to director of transportation at the casino. In t h a t p o s i tion, he supervised a ll o f Pearl River’s valet and transportation staf f and earned an annual salary of m ore than $80,000. ¶42. In April 2012, Seals was injured at work when a van in which he was a passenger was rear-ended. Seals d id not m iss work af ter the w reck, but he went to see Dr. Bruce Senter, a back specialist. In August 2012, Dr. Senter released Seals to work “ with o u t r e strictions.”
Dr. S enter also p l aced Seals at M MI wi t h a 5 % i m p airm ent rating to the body as a whole. At that tim e, Seals told Dr. Senter that he was “still having som e m i ld low b ack pain” but that it was “not too m

uch dif f erent than the pain he had prior to his injury .” ¶43. Seals c ontinued treating wi t h D r . S e n t e r . For reasons that are not clear f rom the record, D r . S e n t e r ’ s records show that he again p laced Seals at MMI with the sam e 5% im p airm ent rating in August 2013. At that ti me , D r. Senter again released S eals to work “without restrictions.” ¶44. Af ter his injury , Seals continued working at Pearl River a t the sam e s alary

. However, in January 2013, Pearl River elim inated Seals’s position and several others as part of a restructuring p lan im

plem ented by new m anagem ent. Since Seals’s term ination, Pearl River

4 I co n cu r w ith th e m aj o rity ’s af f irm an c e o f th e C o m m issio n ’ s d e t erm in atio n t h at S eals h ad reach e d M M I. 1 3has not em

ploy ed a director of

transportation. 5 ¶45. Since he lost his job at Pearl River, S eals h as continued to work. He has o perated his own auto detailing business. Seals washes and details the cars h im self

. Seals also had his

own lim ousine business with two lim ousines, although he t estif ied that he stopped operating that business a y ear prior to the h earing bef ore the a d m inistrative judge. Seals also continues to operate his own carpet cleaning business. ¶46. Dr. Senter a

pparently closed his practice som etim e af ter he saw Seals in August 2013.
From S eptem

ber 2014 to M ay 2015, Seals saw Dr. Michael Molleston. Dr. Molleston took Seals of f work a nd recom m e nded surgery to address Seals’s continuing com p laints of back pain. H owever, two other doctors evaluated S eals a nd recom m ended against surgery . 6 Dr. Molleston apparently

stopped practicing som etim e af ter he saw Seals in May

2015. ¶47. In July 2015, Seals began treating wit h D r . B r u c e Hirshm an, a pain m anagem ent specialist at the Methodist Pain & Spine Center. Dr. Hirshm a n ordered a course of phy sical therapy

. In N o v e mb e r 2015, Seals told Dr. Hirshm an “that his back pain [ was] 65% im p roved” a nd t hat h e “ continue[ d] to note signif icant im provem ent.” Dr. Hirshm an’s records f urther stated: [ S eals] states that he is continuing to work on h is own private b usines s washing, d etailing, a nd cleaning cars. He n otes that af ter a long day of washing cars i n the af

ternoon, he does b egin t o experience low back

5 S eals testif

ied th a t h e ap p lied f

o r a “sim ilar p o s i tio n ” at P earl R iv er in Jan u ary 2 0 1 4 ; h o w e v e r, th ere is n o ev id en c e th a t su ch a p o sitio n w as actu ally av ailab le.

6 T h e d o cto rs w ere D r . G reg Wo o d , w h o p erf o r m ed a n e m

p lo y er’s m ed ical ex am in atio n (E M E ), an d D r . O rh an Ilercil, w h o p e r f o rm ed an in d ep en d en t m ed ical ex am in atio n (IM E ) p u rsu an t to an o rd er o f an ad m in istrativ e j u d g e. 1 4discom f ort. [ Seals] experiences p ain prim a r i l y i n t h e r ight low b ack. In the m ornings he r a tes his pain as a 3/10. In the af ternoons he rates his p a i n a s a 5-6/10. Dr. Hirshm an concluded as f ollows: At this tim e [ Seals] is at MMI f rom m y practice of anesthesiology p ain m anagem ent. H e m ay r eturn to work o n a f u ll[ -]tim e b asis without restrictions or lim itations. I have inf

orm ed the patient that with hard phy s ical work such a s c l e a ning cars, he m ay experience m ild l ow back p ain. There a r e n o restrictions and lim i tations.
II. The Com m ission’s Decision ¶48. The W orkers’ Com pensation Com m ission evaluated the m edical evidence and other evidence in the record and f ound as f ollows: [ Seals w as] released to f

ull duty em

ploy m ent with no restrictions by Dr. Senter on August 19, 2013. [ Seals] l ater was released by Dr. Hirshm an on Novem ber 13, 2015, with no restrictions and to f ull duty em

p loy m ent. W e f ind the opinions of Dr. Senter a nd D r. Hirshm an to b e m ore probative t han that o f Dr. Katz, who released [ Seals] to all l ight and sedentary duty as w e l l as som e m edium level work. Dr. Katz f urther opi ned that if twisting, bending, squatting, and stooping were c ontinued then [ Seals ] w o uld continue to exacerbate his condition. [ Seals] treated f or m ultiple visits with Dr. Senter and Dr. Hirshm an, rather than a one tim e evaluation by Dr. Katz. [7] In t his claim , we f ind that the o pinions of Dr. S enter and Dr. H irshm an [ are] m ore probative as to [ Seals’s] work-related injury and its af f e c t on his e m

ploy m ent capacity

. Additionally , the Com m ission f inds that [ S eals’s] term inati o n w i th [ Pearl River] was not due t o i n j u r y , but rather econom ic f actors unrelated to [ Seals’s] injury

. . . . [ Seals] current ly is self -em ploy ed in various entrepreneurial endeavors. The Com m ission f inds t h a t the evidence a s a whole supports a f

inding that [ Seals] has suf f ered no loss of

wage-earning capacity due to h is com

p ensable work-related injury as he has been released t o f u ll duty em ploy m ent with no restrictions.

7 D r. K atz s aw S eals o n ce, in N o v em b er 2 0 1 6 , at th e r eq u est o f S eals’s atto rn ey . D r. K a tz’s rep o rt m ak e s clear th at h e saw S eals “f o r an ev alu a tio n o n ly ” an d th at “[ n ] o treatm en t [ w o u ld ] b e ren d ered an d n o d o cto r/p atien t relatio n sh ip w o u ld b e estab lish ed .” 1 5. . . .

. . . . Further, w e f i nd that [ Seals] has not established any p erm a n e n t disability as a result of [ his] work-related injury

. . . . III. Standard of Review ¶49. Our standard of

review in workers’ com

pensation cases is narrow: “Our task is not to second guess the f actual conclusions of t he Com m ission

. . . .” Levy v. M

iss. Uniforms , 909 So. 2d 1260, 1265 (¶16) (Miss. C t

. A pp. 2005). “This Court’ s r e v i e w is lim ited to determ ining w hether the Com m ission’s decision w as supported b y substantial evidence, was arbitrary a n d c a p r i c ious, was bey ond t he scope or power of the agency t o m ake, o r violated

. . . constitutional or s t a t u t o r y r i g hts.

. . . [ T]he Com m ission i s the ultim ate f act-f inder and judge of the credibility o f w itnesses; theref ore, we m ay not reweigh the evidence that was b ef ore the Com m ission.” P ulliam v. Mis s
. S t a t e H

u dspeth Reg’l Ctr. , 1 47 So. 3d 8 64, 868 (¶16) (Miss. Ct. App. 2014) (citations and quotation m arks om itted). “W e defe r t o t h e C om m ission’s decision a nd reverse o nly when the Com m ission’s d ecision is not supported by substantial evidence.” Cook v. Home Depot , 81 S o. 3d 1 126, 1128 (¶7) (Miss. Ct. App. 2011), aff’d , 81 So. 3d 1041 (Miss. 2012). “This rem ains true even though we m ight have reac h e d a d i f f e r ent conclusion were we the t rier of f act.” Parker v. Ashley Furniture Indus. , 164 So. 3d 1081, 1084 (¶11) (Miss. Ct. App. 2015) (quoting Smith v. Johnston Tombigbee F urniture Mfg. Co. , 43 So. 3d 1159, 1164 (¶15) (Miss. Ct. App. 2010)). Sheffield , 2019 W L 1349766, at *7 (¶36) (J. W i lson, P.J., dissenting).
IV. Analy s is ¶50. In order to prove a com pensable disability in a body -as-a-whole case, “ the burden is
upon the c laim ant t o p r o ve (1) m edical im pairm ent, and (

2) that the medical impairment resulted in a loss of wage-earning capacity .” Robinson v. Packard Elec. Div., Gen. Motors Corp. , 5 23 So. 2d 329, 331 (Miss. 1988) (em phasis added) (citing Miss. Code A nn. §§ 71-3- 3(i) & -17(c)(25) (Supp. 2019)). ¶51. The Com m ission’s f inding that Seals did not suf f e r a loss of wage-earning capacity

1 6is supported by substantial evidence. Two of S eals’s treating phy sicians, who treated Seals

f or signif icant p e riods of ti me a f t e r his injury , both released Seals to work without restrictions. In a ddition, S eals continued to perf o rm his job at Pearl River f or m ore than nine

m onths af ter his injury

. F inally , even af ter his position at Pearl River was e lim inated, Seals has continued to operate his own businesses, including long day s of washing and detailing

cars by him s elf

. The Com m i ssion cited these f acts a n d specif

ically f ound that the opinions of t wo of Seals’s treat i n g p h y s i cians, Dr. Senter and Dr. Hirshm an, w ere m ore persuasive than the opinion of Dr. Katz, who assessed w ork restrictions based on a one-tim e evaluation. Such conf

licts in the evidence are resolved b y t h e C o mmi s sion, not this Court. Hale v. Ruleville Health C

are C tr. , 687 So. 2d 1221, 12 2 4

- 2 5 ( M i s s . 1997). On the record in this

case, there was am

ple evidence to support the Com m ission’s f inding that Seals suf

f ered no loss of wage-earning capacity

. 8 ¶52. The m ajority asserts that the C o m mi s s i o n e r r e d b e c a use it “solely relied on Dr. Senter’s and Dr. Hirshm an’s f in d i n g s . ” A nte at ¶ 32. But this is no basis f or r eversal. To b e g i n with, the m ajority ’s assertion is incorrect. As set out a bove, the Com m iss i o n a l s o relied on Seals’s return to his job at Pearl R iver f o r nine m onths po s t

- i n

j ury and his

8 S ee, e
. g
. , H

a y es v. H o w a rd In d

u s. In c. , N o . 2 0 1 8 -WC -0 1 1 6 0 -C O A , 2 0 1 9 WL 3 5 6 1 8 7 3 , at * 6 ( ¶2 8 ) (M iss. C t. A p p . A u g . 6 , 2 0 1 9 ) (h o ld in g th at claim an t’s retu rn to w o rk an d lack o f restrictio n s su p p o rted C o m m issio n ’s f in d in g o f n o l o ss o f w ag e -earn i n g cap acity ) H

a n so n v. D o lg en co rp In c. , 1 5 0 S o . 3 d 1 4 6 , 1 4 9 (¶1 1 ) (M iss. C t. A p p . 2 0 1 4 ) (h o ld in g th at claim an t ’s retu rn to w o rk an d lack o f an y p e rm an e n t r e s t rictio n s su p p o rted C o m m issio n ’s f

in d i n g o f n o lo ss o f w ag e-earn in g cap acity ); C ra d d o ck v. W h irlp o o l C o rp
. , 7 3 6 S o . 2 d 4 0 0 , 4 0 4 (¶2 4 ) ( M i ss. C t. A p p . 1 9 9 9 ) ( h o ld in g th at claim a n t ’s retu r n to w o rk , h is retu rn t o w o r k w i th o u t r estrictio n s, an d h is su b seq u en t w o rk lay in g carp et all su p p o rted C o m m issio n ’s f

i n d in g o f n o lo ss o f

w ag e-earn in g cap acity ). 1 7s u b s e q u ent work d e tailing cars and in other businesses. More im portant, the Com m issi o n did not com m it any c lear error by r ely ing on t he f indings of not o ne but two of the claim ant’s treating phy sicians. The Com m ission sim ply c oncluded that the f

i ndings of Dr. Senter, who treated Seals a t the tim e of his injury

and f or sixteen m onths thereaf ter, and Dr. Hirshm an, who t reated Seals f

or a t least seven m onths in 2015-2016, were m o r e p e r s uasive than the opinion of Dr. Katz, who exam ined Seals once at t he r equest of Seals’s attorney

. I t is the role of the Com m ission , n o t this Court, t o weigh such c onf licting m edical evidence. The

ma j o r ity , f or w hatever reason, apparently pref ers Dr. K atz’s o pinion to the f indings of Dr. Senter and Dr. Hirshm an. However, the m ajority ’s unexplained pref erence f or Dr. Katz is
not a valid reason to reverse the Com m ission’s d ecision. No legal rule require d t h e Com m i ssion to accept Dr. Katz’s opinion over the f indings of

two treating phy sicians. ¶53. W hat really seem s to bother the m ajority is that th e C o mmi s s ion did not credit the report of Bruce Brawner, a non-testif y ing vocational expert. But t he m ajority ignores that
Brawner is not a doctor. A vocational expert does n ot assess a cl aim ant’s phy sical lim itations. A doctor m

ust f irst assess the claim ant’s phy sical lim itations, and a vocational expert such as Brawner m ay then a ssess the c l aim ant’s loss of access to the job m arket or loss of wage-earning capacity based o n restrictions as assessed b y t h e d o ctors

. In this case, Brawner relied on the restrictions assessed by Dr. Katz

. However, the Com m i ssion f ound that D r. Katz’s o p i n i on was unpersuasive. That f i nding elim inated the f

o undation of the Brawner report. The relevant evidentiary conf lict i n t his case was between the f indings of
Dr. Senter and Dr. Hirshm an, on one hand, and the opinion of Dr. Katz, on the other hand.

1 8The Com m ission w as entitled to weigh that c o nf licting m e dical evidence and reach the conclusion that it did—which rendered Brawner’s report irrelevant. 9 ¶54. The m ajority also relies on the f act that Dr. Katz and Dr. Senter both assigned Seals

a perm anent im

pairm ent rating to the body as a whole—Dr. Katz assigned a 2% i m pairm ent, whereas D r. Senter assigned a 5% im pairm ent. However, as noted a bove, the claim ant in a body -as-a-whole c ase bears the burden of proving not only a me d i c a l i m pairm ent but also

a resultant loss-of-wage-earning capacity

. Robinson , 5 23 So. 2d at 331. A n i m pairm ent rating alone is not enough. T hus, it is well settled that “a claim an t w h o has suf f ered a f unctional/m edical disability o f 15% m ay have no industrial disability (i.e

. , l o s s o f wageearning capacity ) at all if

the f unctional im

pairm ent d oes not im

pede the claim ant’s ability
to perf orm the duties of em

ploy m ent.” W eathersby v
. Miss. Baptist Health Sys. Inc. , 195 So. 3d 877, 8 84-85 (¶30) (Miss. Ct. App. 2016) (quoting R obinson , 523 So. 2d at 331) (brackets

om itted). 10 An im

pairm ent rating is one p iece of evidence f or the Com m ission to consider, but it does not establish a loss of wage- earning capacity absent proof that t he i m pairm ent restricts the claim ant’s ability to earn a living. ¶55. The m ajority also argues that Seals is entitled to a “presum ption of disability ” based

9 T h e m aj o rity calls B raw n er’s rep o rt “u n reb u tted ” an d “u n c o n trad icted .” A n te at ¶¶3 7 -3 8

. T h is, ag ain , m isses th e p o in t. T h e rep o rt is b a sed en tirely o n an assu m p tio n

— t h at D r . K atz co rrectly

assessed S eals’s w o rk restrictio n s— th at is co n t rad icted

. 10 In Wea th ersb

y , w e af f irm ed th e C o m m issio n ’ s f in d in g t h at th e claim an t su f f ered n o lo s s o f w ag e-earn in g c ap acity d esp ite th e o p in io n s o f p h y sician s assig n in g h er a 9 % an d 1 5 % i m p airm en t to th e b o d y as a w h o le. Wea t h e rsb y , 1 9 5 S o . 3 d at 8 8 4 -8 5 (¶3 0 ); see a lso , e.g
. , H a n s o n , 1 5 0 S o . 3 d at 1 4 9 (¶1 1 ) (af f irm in g C o m m issio n ’s f

i n d in g o f n o l o s s o f w ag eearn in g cap acity

d esp ite assig n m en t o f a 2 % b o d y -as-a-w h o le im p a irm e n t ratin g ). 1 9on his post-injury job search. The m ajority relies on Pontotoc W i re Pr o d u c t s C o m p any v. Ferguson , 384 So. 2d 601, 603 (Miss. 1980), which holds t hat “[ i]f a claim ant m akes a prim a f acie showing of reasonable ef f orts indicating there a r e not suitable j obs, the burden t h en

s hif ts to the em

ploy er or insurer to show otherwise.” However, this is a n argum ent of the

m ajority ’s own m aking. Seals has not suggested that he is e ntitl e d t o a p r esum ption of disability

. Indeed, Seals has n o t ma d e any argum ent based on his job search. Thus, the

m ajority ’s argum ent is inconsistent with the r ule that “we will not act as an a dvocate f or one party t o an appeal.” Rosenfelt v. Miss. Dev. Auth. , 262 So. 3d 511, 519 (¶27) (Miss. 2018) (quoting Jefferson v. State , 138 So. 3d 263, 265 (¶9) (Miss. Ct. App. 2014)). ¶56. In any event, the m a jority ’s new argum e nt is also w ithout m erit because Seals f ailed
to show that he had engaged in any reasonable job search. A t his hearing in Novem ber 2017, Seals of f ered a job s earch f

orm indicating that he posted his resum e to LinkedIn in January 2013 and subm itted about a d o z en online job applications in late 2013 and January 2014.
Most of the applicat i o n s were subm itted during a f ew day s in January 2014. T here is no evidence that S eals did any t hing else to l ook f

o r w o r k

. A l t hough he claim ed that he was “actively l o o k i n g f

o r work,” he described his ef f orts as “[ l]ooking on LinkedIn” and at “[ w]hatever pops in [ his] em ail.” There is no evidence that Seals applied f or or inquire d about any job in-person. For exam ple, Seals never applied f

or work with Y ates Construction,

a large e m

ploy e r in Philadelphia, even though he had worked f or Yates in high school and knows its owner p e rsonally

. S e als stated that he had not “been able to reach out to [ Mr. Yates]” in the n early f

ive y ears s ince he lost his job a t P earl River. Moreover, Seals testif ied

2 0that h e lim ited his search to jobs within his own self -assessed work restrictions. In light of the C om m ission’s f

inding that Seals does not have any such restrictions, this wa s not a reasonable job s earch. Given the lim ited nature of Seals’s job search, it is n ot surprising that Seals has not m ade any

argum ent based on his job search. Furtherm ore, the argum ent that the m ajority

has m a de f

or Seals is not supported by the record. 11 ¶57. The m ajority also relies on Stewart v. Singing River Hospital System , 9 28 So. 2d 178 (Miss. Ct. App. 2 005), but our opinion in Stewart actually supports t h e C om m ission’s decision here. I n S t ewart , t he c laim ant (Stewart) argued that t he Com m i ssion im properly relied on the opinion of the em p loy er’s vocational rehabilitation expert th a t Stewart could work at a s edentary level. Id. a t 180 (¶20). W e agreed that t he Com m i ssion clearly erred by rely ing on the e xpert’s o pinion because it (a) was “based on a single interview with Stewart” and (b) w as directly contradicted by Stewart’s “ treating phy sician who s t eadf astly stated that Stewart was perm a nently disabled.” Id. at 181 (¶23). In this case, we have alm ost the exact opposite situation. T he Com m ission properly relied on the conclusions of t w o t reating

11 T h e m a j o rity ’s relian ce o n F

erg u so n , su

p ra , is also m isp l aced b ecau se th at case’s f acts co u ld n o t b e m o re d if f eren t. In F

erg u so n , a f

acto ry w o rk e r w as “ rem o v [ ed ]

. . . f ro m th e in d u strial en v iro n m e n t” an d lim ited to “ lig h t a n d sed en tary t ask s req u irin g l ittle ex ertio n .” F

erg u so n , 3 8 4 S o . 2 d at 6 0 2

. H i s w o rk p l ace ex p o s u re to “n o x io u s f u m es” h ad lef t h im w ith “th e lu n g cap acity o f an 8 0 -y ear-o ld m an , p rev en tin g h eav y m an u al lab o r w ith o r w ith o u t ex p o s u re to f

u m es, b u t p erm ittin g o f

f ice w o rk w i th o u t ex p o su re to f u m es.” Id

. T h e S u p rem e C o u rt n o ted th at h e h ad d riv en f ro m h is h o m e in n o rth M ississip p i to Jen a, L o u isian a, to ap p l y f

o r o n e j o b , h e talk ed to leg islato rs ab o u t a j o b w ith th e S tat e , a n d h e ap p lied f o r o th e r j o b s. I

d

. a t 6 0 3 -0 4

. D e s p ite t h i s, h e w as u n ab le to f in d a j o b

. Id

. In co n trast t o th e claim an t i n F erg u s o n , S eals (1 ) w as released to w o r k w ith o u t restrictio n s b y tw o d if f eren t treatin g p h y sician s; ( 2 ) m ad e o n ly a cu rso ry o n lin e j o b search alm o st f o u r y ears p rio r to h is h earin g ; ( 3 ) lim ited h is search to p o sitio n s w ith in h is o w n self -assessed w o rk restrictio n s; an d (4 ) h as rem ain ed self -em p lo y ed in v ario u s b u sin esses sin ce h e lo st h is j o b at P earl R iv er. 2 1physicians who f ound that Seals had no work restrictions. And the Com m ission discounted the opinion of Dr. Katz, who evaluated Seals only once—f our-plus y ears af

ter the injury , f

or purposes of litigation. The Com m ission’s reasoning and f indings in this ca s e a r e f ully consistent with this Court’s opinion in Stewart

. ¶58. Shaun Seals c learly w orked har d t o earn a p rom otion to a good, well-pay ing job at Pearl River. It is equally clear that Seals suf f ered f inancially when P e a r l River d ecided to elim inate his position, which is unf ortunate. It is a lso undisputed that Seals suf f ered an onthe-job i njury i n a car wreck, which is also unf ortunate. However, there is n o clear or overwhelm ing evidence that Seals’s injury has p r e v e n t e d him f rom doing his job at Pearl River or has prevented him f rom obtai n i n g a n y o t her job. On the conf licting evidence presented, the Com m ission f ound as f act t h a t Seals’s i njury had not resulted in any loss of wage-earning capacity

. The Com m ission’s f inding is supported by

the conclusions of

two of Seals’s treating p hy sicians and other e vidence. Theref ore, the Com m ission’s decision

m ust be af f irm ed. I respectf

ully dissent in relevant part. BARNES, C.J., CARLTON, P.J., AND C. WILSON, J., JOIN THIS OPINION.

2 2