IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
N O. 2018-WC-00019-COA
HAZ EL SMITH APPELLANT

v. HOWARD INDUSTRIES, INC. (SELF INSURED) APPELLEE DATE OF JUDGMENT: 12/15/2017 TRIBUNAL FROM W HICH APPEALED: W O RKERS’ COMPENSATION COMMISSION ATTORNEY FOR APPELLANT: H. ALEXANDER BRINKLEY ATTORNEY FOR APPELLEE: RICHARD LEW IS YODER JR. NATURE OF THE CASE: CIVIL - W ORKERS’ COMPENSATION DISPOSITION: AFFIRMED - 12/18/2018 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE IRVING, P.J., GREENLEE AND TINDELL, JJ. IRVING, P.J., FOR THE COURT: ¶1. Hazel Sm ith a

ppeal s the decision o f the W orkers’ Com p ensation Com m ission (Com m ission), asserting t hat two of its f indings are unsupported by substantial evidence: (1) that Sm ith was c apable of p e rf orm ing the substantial acts of her u sual e m ploy m ent; and (2) that Sm ith was not perm a nently and totally disabled, but rather only s uf f ered a partial, f

if ty percent loss of industrial use t o her right upper extr e m i ty

. W e f ind that t he C om m ission’s decision is supported by substantial evidence; theref ore, we af f irm

. FACTS ¶2. At the tim e of the e vents giving rise to this appeal, S m it h w a s e mploy ed as a f inal

assem b ler at Howard Industries Inc. She w as sixty y ears old and h ad worked at Howard f or

a p proxim ately twenty y ears. She reached the eleventh grade in high school a nd di d n o tobtain her GED. Prior to h e r em ploy m ent at Howard, she worked v arious l abor jobs, including as a shirt inspector at a f actory in Arkansas; as a m anager at a Pizza Hut; inspector of rice, sugar, a nd f

lour bags; a nd as an assistant m anager at a re s o r t

. H e r j o b as a f inal

assem b l e r at Howard consisted generally of p ulling wire of f of spools and then using a crim ping gun to put leads o n the wires. T his job required Sm ith t o repetitively grasp and pull the crim ping gun and to lif

t bi n s c ontaining parts t hat weighed m ore than twenty pounds. She f ell into the pay g r a d e o f 1 1 .3 and earned $12.56 per hour, which cam e to an average weekly wage of $807. ¶3. On August 5, 2 0 13, while operating the crim p ing g un, Sm ith f

elt a shar p, shooting pain throughout her arm . She im m ediately reported the i njury to her supervisor and sought

m edical care, where she learned that she had sustained an injury to her right upper extrem ity

. She a lso went on to develop bilateral carpal t unnel sy n drom e. Following her injury , Sm ith returned to H oward and continued to work in a dif f erent capacity

—driving a f

orklif t—until she had t he f

irst o f s e v e r a l surgeries by Dr. Rocco Barbieri o n Decem ber 18, 2013. 1 On
Novem ber 10, 2014, Dr. Barbieri diagnosed Sm ith w ith a f our percent upper - e x t r em ity im p airm ent, determ ined that she h ad reached m axim um m edical i m

provem ent ( MMI), and

sum m arized the f

indings of a f

unctional capacity exam , which he approved and adopted in determ ining the work lim itations to be placed on Sm ith:

1 D r. B arb i eri p erf

o rm ed o n e su rg ery to treat h er carp al tu n n e l sy n d ro m e an d t w o su rg e ries to treat h er th u m b in j u ry . 2A Functional Capacity Exam was perf orm e d by Dray er P hy sical Therapy and it dem onstrated f

i ndings that the patient was recom m ended f or a l ight duty level of w ork w h i c h [ is] really n o lif ting m ore than 20 pounds and som e specif i cs on avoiding paths that would require balance on u neven surf aces due to preexisting problem with p olio. She als o s h o u l d avoid a com bination of repetitive f

orcef ul grasping and vibration, as well as sustained posturing of the wrists greater than 30 d egrees of f lexion a s this m a y worsen her carpal tunnel. My opinion, at t his tim e, is that this Functional Capacity E v aluation is i n l ine with what I perceived the patient b eing a ble to do regarding h er work activities and I will release her to work with these restrictions of light duty lim i tations. Essentially , she will not be allowed to lif t or carry m o re than 2 0 pounds, will avoid unusual postures of the wrist or sustained repetitive gripping actions.
Sm ith returned t o Howard in Septem ber 2016. Her job title and p ay grade stay ed the sam e

as prior to her injury , but her pay was raise d to $12.96 p er hour due to a com pany -wide increase. She was of

f ered a n ew job that a l legedly f ell within her m edical restrictions. This job consisted of pulling rubber t ips of f of threads. Sm ith testif

i ed that she attem

pted the job but was unable to pull the r ubber tips of

f due to t he im m obility of her thum b

. She was

accom panied by J ohn Risher, H o w a r d ’ s e nvironm ental and saf e ty m anager. W hen Sm ith inf o r me d Risher that she was unable to properly grip the rubber tips due to her t hum b, he

m oved her to another job. S he burned her arm and was subsequently sent hom e and told that

som eone f

rom Howard would c all her; however, she has not heard f r om Howard since that date. Sm ith contends that she searched f or work elsewhere but was unsuccessf ul. ¶4. Sm ith tim ely f

iled a petition to controvert on February 19, 2015. O n February 1 , 2017, an a dm inistrative judge (AJ) conducted a hearing to determ ine the existence and extent of p erm anent disability and a ny applicable penalties and interest. The parties stipulated that

3Sm ith’s August 5, 2013 injur y w a s work-related, that she began accruing disability on

Decem ber 18, 2013, and that she reached M MI on Novem ber 1 0, 2014. The parties also stipulated that Sm ith’s average weekly wage was $807. ¶5. During the hearing, Sm ith testif ied regarding the requirem ents of her job. Pete Mills,

a vocational rehabilitation counselor, testif ied that he w ent to Howard and observed several dif f erent positions. He developed a list of three dif f erent jobs t hat he believed f ell within Dr. Barbieri’s m edical restrictions f or Sm ith and issued a report including that inf o r ma t ion. Mills also c onducted a j ob survey , wherein h e analy zed Sm ith’s past wor k h i s t o ry and education level and determ ined what ty p es of jobs m ight be available to her. On January 12, 2017, ten day s bef

ore the hearing, h e com

posed a list of f

our openings f

or which Sm ith m ight be suited: openings at Red L obster, Kry stal, IHOP, a nd TGI Friday s. The pay f o r e a ch of these positions was $7.25 per hour. Mills testif i ed t hat on the day bef

ore the hearing, he went online and f

ound that the TGI F riday s and IHOP positions had b e e n f illed. Despite this, Mills o pined that h e f

e lt t hat Sm ith was able t o f ind em p loy m e nt with a com

pany other than Howard. M i lls f

urther opined that Sm ith had not been ef f ectively conducting h er job search; specif ically , Mills testif

ied t hat Sm ith ha d been w r iting “ light duty ” on e ach of her applications—which deterred potential em p loy ers—and there was inconsistency in the rate at which she was subm itting applications. ¶6. R i s h e r t estif

ied that S m i th was u nable to return to her p re-injury position as a f i n a l

assem b ler due to the m edical restrictions im posed by D r . Barbieri. He stated that t he job that

4S m i t

h w a s o f f ered when s he brief

ly returned in Septem

ber 2016—rem oving rubber t ips—f e l l within those restrictions. On cross-exam ination, Risher conceded t hat the duties required by the job rem oving rubber t ips m ight require r epetitive gripping actions, which f e l l outside of
Dr. Barbieri’s restrictions f or S m i th; h owever, Risher m a intained that the job could be done with either hand. Risher f u r t her testif

ied that the o ther two jobs on Mills’s list were not of f ered to Sm ith because she told him she could not do the work. ¶7. Following the hearing, the AJ issued an o rder f i nding that Sm ith had sustained a 50% industrial loss of use to her right upper extrem it y a n d t h a t she consequently c ould not perf orm the substantial acts o f her usual em p loy m ent. The AJ ordered Howard to pay Sm ith
perm anent disability benef its of $449.12 b eginning Novem ber 11, 2 014, f

or a period of 100 weeks a s com

pensation, with 10% interest added to each i n s t a l l m e nt as provided by Mississippi Code Annotated section 71-3-37(5) (Rev. 2011). ¶8. Sm ith a p p e a l ed the AJ’s f indings, a r guing that s he e rred in f inding that Sm ith only suf f e red a 50% loss of i ndustrial use to her right upper extrem ity and in perf orm ing a loss of wage-earning-capacity

analy sis to decide the i ndustrial loss of use of a scheduled m em ber, which is inconsistent with existing workers’ com p ensation l aw. The Com m ission adopted the AJ’s f indings in relevant part and af f irm ed its f

inding that Sm i th suf

f ered a 50% loss of industrial use t o her right upper extrem ity ; however, it am ended the AJ’s order to f ind that although Sm ith had suf

f ered a loss of industrial use i n excess of her m edical i m pairm ent rating, she was c apable of perf orm ing the substantial acts of her usual e m ploy m ent. Sm ith

5f

iled this tim ely

appeal.
DISCUSSION ¶9. Sm ith as s e r

ts two i ssues on appeal; however, because our analy s is necessarily invokes both issues, we discuss them together. The standard of review regarding workers’

com pensation m atters is well-settled in Mississippi caselaw:
In workers’ com

pensation cases, this C ourt’s review i s lim ited to determ ining whether the Com m ission’s decision was supported by s ubstant i al e vidence, was arbitrary and c apricious, was bey o nd the scope o r p ower of the a gency to ma k e , o r violated constitutional or s tatutory rights. The Com m ission i s th e ultim ate f act-f inder and judge of the credibility o f w itnesses; theref ore, we m ay not reweigh the evi d e n c e t h at was bef ore the C om m ission. W h en the Com m ission’s decision is s upported by substantial e v idence, it m u s t b e u p h e l d. This rem ains true even though we m ight have reached a dif f erent conclusion were w e t he t rier of f

act. Furtherm ore, we are rem inded t h a t workers’ com pensation law is t o be liberally and broadly construed, resolving doubtf ul cases in f avor of com

pensation so that the benef i cent p urposes of the a c t m ay be accom plished. Howard Indus. I

nc. v. Hardaway , 191 So. 3d 1 257 , 1 2 6 1

- 6 2 ( ¶ 10) (Miss. Ct. A pp. 2015) (citations and internal quotation m arks om itted). ¶10. As the Com m ission notes in its order, this is a scheduled-m em ber case. “Mississippi Code A nnotated section 7 1 -3-17 (Supp. 2014) provides two avenues f or a claim ant seeking

com pensation f

or l oss o f a scheduled m em ber. Subsection (a) applies t o claim s f or
perm anent t otal disability , w hereas subsection ( c) applies when

. . . t h e c l aim a nt seeks
perm anent partia l d i sability benef its.” Hardaway , 191 So. 3d at 1265-66 (¶24).
Determ ination o f whether a claim ant has suf f ered perm a n e n t t o t a l disability or perm anent partial disability

controls which analy sis we conduct in order to calculate benef i ts.
6¶11. Here, Sm ith contends that she suf f ered perm anent total disability and argues that both the AJ and the Com m ission erred in f inding that she o nly sustained a 50% industrial loss of use of her right upper extrem i ty . Sm i th m a intains that despite her 4% m edical im pairm ent rating, she suf

f ered a 100% industrial loss of u se of h er r ight upper extrem ity such that she has b e e n r e ndered perm a nently and totally disabled. In support of her argum ent, Sm ith points to both her testim ony and Risher’s testim ony t hat s he was u nable t o r eturn to the job she held pre-injury

. S m i t h a l s o argues that Howard presented n o vocational t estim ony to show t hat Sm ith was em

ploy able post-injury

. Howard, in contrast, argues that the evidence presented shows t hat S mi t h w a s not totally disabled: M ills, the vocational expert, located three jobs inside Howard and f our jobs outside Howard that purportedly f ell within Sm ith’s

m edical restrictions. Howard m aintains that Sm ith of f ered no evidence to suggest that she

was unable to perf

orm these jobs, aside f

rom h er own self

-serving testim ony that she was sim ply incapable of

doing them

. ¶12. This Court in H

oward Industries Inc. v. Satcher , 183 So. 3d 9 07, 912 (¶14) (Miss. Ct. App. 2016), set f

orth t he requirem ents f

or establishing a prim a f

acie case o f p erm a nent total disability where, as here, the claim ant has only suf f ered a partial m e dical loss:
To establish a prim a f

acie case f

or perm a n ent total d isability , the claim ant h as the burden to s how he h as s ought and been u nable to f ind work in the sam e or other em ploy m ent. The claim ant m

ust show he took reasonable ef f orts to f ind other em ploy m ent. The c laim ant can also establish a prim a f acie case f

or total disability if

, af ter reaching M MI, the claim ant reports back to the em ploy er f or work and t he e m

ploy er ref uses to reinstate or rehire him

. Af t er the claim ant m akes out a prim a f

a c ie case, the burden shif ts to the em

ploy er to r ebut or ref ute the claim ant’s evi d e n c e b y showing the c laim a nt’s ef f orts w ere not
7reasonable or were a sham

. T he issue of w h e t her a claim ant’s perm anent

disability is p artial o r total is a question of f act determ ined by the evidence as a whole, including both lay and m edical testim o ny . (Citations and internal quotation m arks om itted). “To determ ine the reasonableness of the claim an t ’ s job search, f

actors are exam ined such as j ob availability , econom ics of the

com m unity , the c laim ant’s skills and background, and the nature of the disability .” Id

. at 913 (¶17). “Another consideration in determ ining disability is wage-earning capacity

. Factors

exam ined f

or loss o f wage-earning capacity include the am o unt of education and training that the c laim ant has had, inability to w ork, f ailure to be hired elsewhere, and the continuance of pain.” Id

. “In order to be deem ed p erm anent l y t o t a l l y disabled under Mississippi Code Annotated section 7 1-3-17(a) (Rev. 20 0 0 ) , a claim ant m u st show s om ething m ore than an inability to return to the job existing at the tim e of injury .” Flowers v. Crown Cork & Seal
USA Inc. , 168 So. 3d 1009, 1018 (¶27) (Miss. Ct. App. 2013). ¶13. Based on the above caselaw, i t i s this Court’s opinion that the Com m ission and AJ correctly concluded that Sm ith was not p erm anently and totally disabled. Although Sm ith testif i ed at trial that she was unable to perf orm t he jobs of

f ered to her u

pon her return to Howard i n Septem

ber 2 016, this testim ony , com bined with her c o n t ention t hat she is

unem ploy able, is n ot s uf

f ic i e n t to overcom e the high burden of s h owing that the
Com m i ssion’s decision was unsupported by substantial evidence. ¶14. W e note, as the Com m i ssion also properly noted, that a rebuttable presum p tion of t o t a l occupational l oss arises where a perm anent partial disability renders the claim ant unable to

8continue in the position she held a t the t im e she s ustained her work-related injury , “subject

to other pr oof o f the claim ant’s ability to earn the s am e wages which the claim ant was receiving at the tim e of

injury .” Meridian Prof

’ l Baseball Club v. Jensen , 828 So. 2d 740,
747 (¶21) (Miss. 2 002). This presum ption arises “when the claim ant establishes that he has

m ade a reasonable ef

f ort but has been unable to f ind w ork in his usual em

p loy m e nt, or m akes other proof of

his inability

to perf orm the substantial acts o f his usual em ploy m ent.” Id . at 747-48 (¶21). The em

ploy er m ay rebut this p resum ption b y p o i n t i n g to “ all t he evidence concerning w age-earning capacity , including education and t raining which the c laim ant has had, his age, continuance of pain, and any

other related circum s tances.” Id . at 748 (¶21). 2 ¶15. Here, Sm ith contends that the Com m ission’s decision that she was able to perf orm the substantial a cts of her usual em ploy m ent is unsupported by substantial evidence. However,

we disagree. Sm ith r elies on the f act that Risher, H oward’s representative, conceded that she could n o t r e t urn to the job she h eld pre-injury a s proof that she was unable t o p erf orm the substantial acts of her usual em ploy m ent. However, M ississippi caselaw is clear that “‘usual

em ploy m ent’ is broader in scope t han the job [ that t he claim ant] h eld a t t he tim e of injury .” Id. at 7 47 (¶20). “ Usual em ploy m ent in t his context m eans t he jobs in w h i c h the claim ant

2 O f n o te is t h e f

act t h at “th ere is a d if

f eren c e b etw e en th e j o b -search req u irem en t f o r a clai m f o r p e r m an en t t o tal d isab ility b en ef its u n d er su b sectio n (a) an d th e j o b -search req u irem en t f

o r a claim f

o r p e rm an en t p artial d isab ility b en ef its u n d e r s u b sectio n (c). A claim m ad e u n d er su b sectio n (a) is su b j ect to th e m o s t rig o ro u s test f o r d isab ility , w h ich req u ires co n v i n c in g m ed i cal p ro o f o f to tal d isab ility a n d a leg itim ate j o b search f o r su itab le em p lo y m en t.” H a rd a w a y , 1 9 1 S o . 3 d at 1 2 6 6 (¶2 5 ) (in tern al q u o t atio n m ark s o m itted ).

9has p ast experience, jobs requiring sim ilar skills, or jobs f or which the worker is otherwise suited by his age, education, experience, and any other relevant f actual criteria.” Id. ¶16. W e note t hat Sm ith f ailed t o provide any evidence or testim ony that she was, in f act, unable to perf

orm the job presented to her in Septem b er 2016 when she returned to Howard
f or a f e w h o u r s . All we have to rely upon is her own testim ony that she w as unable to perf orm the job. In contrast, we have testim ony f rom b oth Risher and M ills that the job of f ered to Sm ith—rem o ving rubber tips—f ell within h e r m edical restrictions. Sm ith provided insuf

f icient evidence to o vercom e the high b u r d e n of s howing that the
Com m i ssion’s decision w as unsupported by substantial evidence with respect to this issue.
A s s u ch, we a f

f irm the Com m ission’s f

i nding that she was capable of perf orm ing th e substantial acts of

her em ploy m ent. ¶17. Section 71-3-17(c) (Rev. 2011) provides the f ollowing:
In case of disability p a r t i a l in character but perm anent in quality , the com pensation shall b e sixty -six and two-thirds percent (66-2/3%) of the average weekly wages of the injured e mp l oy ee, subject to t he m axim um lim itations as t o weekly benef its as set up in t his chapter, which shall be p aid f ollowing com

pensation f

or tem p orary total disability paid in accordance with paragraph (b) of

this section, and shall be paid to the em p loy ee as f

ollows:
Mem ber Lost Num

ber W eeks Com

pensation (1) Arm 200

. . . . ¶18. As previously stated, the AJ ordered H o w a r d t o p a y Sm ith $449.12 per week f or a period of 100 weeks. She included the f ollowing analy sis in her order:
1 0[ Sm ith] applied f o r the f our positions [ that] were identif ied in the vocational report - Red Lobster; Kry s tal; IHOP; and TGI Friday s. All o f those positions of f ered $7.25 per hour. At the tim e of her injury , Sm i th w as m aking $12.56 per hour with the Em

ploy er. If Sm i th had actually been h ired by o ne of those em ploy ers, she w ould have s u f f e r e d a $ 5.31 p er hour loss of w ages, which calculates to a $212.40 l o s s p er week or an approxim ate 42% l oss of wages. If overtim e were considered, Sm ith w ould l ose about half of h e r w e e kly incom e by taking one of t he f our positions identif

ied by the vocational expert. W e f ind substantial evidence supporting the Com m ission’s f inding that Sm i th was not totally and p erm anently disabled and that she suf f ered only a 50% industrial loss of a scheduled

m em ber. Theref

ore, it f ollows that Sm i th was not entitled t o 450 w eeks o f com p ensation f

or permanent-total disability or 200 weeks of com pensation f

o r loss of a scheduled m em ber. The order of the Com m ission a w a r ding Sm ith $449.12 f or one h undred weeks is
AFFIRMED. LEE, C .J., GRIF F I S , P.J., BARNES, CARLTON, FAIR, WILSON, GREENLEE, WESTBROOKS AND TINDELL, JJ., CONCUR.

1 1