IN THE SUPREME COURT OF MISSISSIPPI

NO. 96-CC-00355-SCT

GEORGIA-PACIFIC CORP.

v.

ROBERT LEE HARRIS

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED,

PURSUANT TO M.R.A.P. 35-A

DATE OF JUDGMENT: 01/31/96

TRIAL JUDGE: HON. ROBERT G. EVANS

COURT FROM WHICH APPEALED: JASPER COUNTY CIRCUIT COURT

ATTORNEYS FOR APPELLANT: SILAS W. McCHAREN

ARTHUR S. JOHNSTON, III

ATTORNEY FOR APPELLEE: THOMAS L. TULLOS

NATURE OF THE CASE: CIVIL - WORKERS' COMPENSATION

DISPOSITION: AFFIRMED - 09/04/97

MOTION FOR REHEARING FILED:

MANDATE ISSUED: 9/25/97

BEFORE SULLIVAN, P.J., PITTMAN AND BANKS, JJ.

SULLIVAN, PRESIDING JUSTICE, FOR THE COURT:

I.

Robert Lee Harris filed a petition to controvert workers' compensation claim on November 26, 1990,

due to an injury to his lower back while operating a front-end loader. Harris's employer, Georgia

Pacific Corp., self-insured, filed an answer denying that Harris sustained an injury arising out of his

employment. A hearing was held on October 13, 1994, before a Workers' Compensation

Administrative Law Judge (hereinafter "ALJ"). The ALJ determined that Harris suffered a

compensable injury. The ALJ determined that Harris was temporarily and totally disabled from

September 26, 1990, until he reached maximum medical recovery on March 14, 1991. The ALJ

determined that Harris suffered a seven percent permanent physical impairment but refused to award

permanent partial disability benefits, because Harris failed to make diligent and reasonable attempts to

resume employment since his maximum medical recovery. On November 22, 1994, the ALJ awarded

Harris temporary total disability benefits in the amount of $212.58 a week beginning September 26,
1990, and continuing until March 14, 1991, and all reasonable and necessary medical services and

supplies.

On March 27, 1995, a hearing was held before the Mississippi Workers' Compensation Commission.

The Commission affirmed the ALJ's order. On appeal Jasper County Circuit Court Judge Robert E.

Evans remanded the cause to the Workers' Compensation Commission, because the ALJ failed to

apply Jordan v. Hercules, Inc., 600 So.2d 179 (Miss. 1992). The Circuit Court ordered that the case

should be remanded to determine whether Harris conducted a reasonable job search and whether

Harris has lost any wage earning capacity. Georgia Pacific appeals to this Court from the circuit

court's order.

II.

Harris, born on July 11, 1948, has a ninth grade education. He has completed a six month vocational

training class in small automotive. Harris can not read a newspaper and can only sign his name.

Harris's previous jobs include working as a mechanic for an auto dealer, driving a tractor for an oil

company, running a skidder for a logging company, and working for a telephone company operating

heavy equipment. Harris has operated heavy equipment most of his life.

Harris began working for Georgia Pacific in 1974. He began as a dock loader, but has operated a

front-end loader for approximately sixteen years. Harris's average weekly wage was approximately

$525.00.

While employed with Georgia Pacific in April 1986, Harris jumped from a falling crane. He fell

approximately twenty feet, suffered no broken bones, and had only minor injuries. Harris worked for

Georgia Pacific injury free until September 26, 1990.

On September 26, 1990, Harris was operating a front-end loader which loaded logs up a ramp. The

loader hit a hole that was on the ramp. Each time the loader hit the hole, Harris was thrown against

the left side of the loader. During lunch, Harris' left side went numb. His supervisor, Fred Connelly,

took Harris to see the foreman, Billy McKinley. Afterward, McKinley took Harris to see Dr. Pruitt.

Dr. Pruitt took x-rays of Harris. Later that afternoon, Harris went to South Regional Hospital in

Laurel. Dr. Pruitt saw Harris at the Laurel hospital, ran tests, and referred him to Dr. Seals, a

neurologist. Harris saw Dr. Seals through April 1991. Since the accident, Harris has had a rather

lengthy medical history with a number of physicians.

Since the 1990 accident, Harris testified that he can only walk 500 feet, and when sitting he gets

numb in his lower back and leg. Harris testified that he can only sit for thirty minutes at a time before

getting numb, cannot sleep on his left side, can no longer lift heavy objects, and can no longer climb

stairs or ladders. Harris testified that when raising his arms or squatting, his side hurts, and he must

take pain pills in order to sleep. He also testified that he can no longer operate a front-end loader,

because operation requires sitting several hours and the loader's vibrations hurt his lower back. Harris

testified that he cannot work as a mechanic, because he could not sit for long periods of time.

On Jan. 24, 1991, Dr. Robinson reported that Harris could go back to work. Harris went to Dr. Seals

after seeing Dr. Robinson. Dr. Seals, Harris's primary physician, did not release Harris to return to

work, but referred him to Dr. Stringer. When Dr. Seals released Harris to return to work on March
20, 1991, Harris attempted to return to work.

Harris testified that he returned to Georgia Pacific in March 1991, seeking his old job. Harris testified

that when he returned to work, Geogia Pacific's plant manager, Mark Robinson, said he was not

capable of performing his job. Harris testified that he kept going back and Georgia Pacific kept telling

him he was incapable of performing his job.

Mr. Robert Harper, personnel manager, testified on behalf of Georgia Pacific. Harper testified that

Harris's last day of work was Sept. 26, 1990. Harper testified that Harris was terminated, because he

received a work release from Dr. Robinson stating that he was physically able to return to work on

January 23, 1991. Harris did not return or call Georgia Pacific in January, thereby violating company

policy. Harper testified that the "3 day no call no report" rule is standard procedure in the policy

handbook issued to each employee. Harper testified that the rule in the handbook reads, "Three days

no call or no report without reasonable excuse and you are terminated if you don't report to work."

Harper testified that Harris tried to return in March 1991, but was already terminated in January due

to the policy.

After his termination from Georgia Pacific, Harris testified that he has attempted to work elsewhere.

He stated that he worked for International Paper for three to four weeks operating a knuckle boom

but quit because of numbness. Harris testified that he worked for Crumpton Timber Company

operating a knuckle boom for a week but had the same problems. He stated that he applied for a job

with Peco Poultry and never heard from them, but stated that the application required that he reveal

his physical condition. Harris testified that he has not done any other work. Harris receives Social

Security. Harris testified that he knows of no type of work that he is now capable of performing. He

also testified that he could not do office work, because he could not read the forms and cannot

operate a typewriter or computer.

On cross-examination, Harris could recall when he tried to work for Crumpton Timber. He testified

that he made three attempts to procure work, but could not recall the month or year of each.

However, Harris testified that he sought employment with Peco in 1994. Harris signed up for

unemployment benefits, stating that he was both physically able and actively seeking employment.

However, Harris testified that he was in fact seeking employment at that time.

III.

The circuit court ordered that the case should be remanded to determine whether Harris conducted a

reasonable job search and whether Harris has lost any wage earning capacity. Georgia Pacific

maintains that the circuit court erred in reversing and remanding the order of the ALJ and the

Commission. Georgia Pacific asserts the following errors: 1) the circuit court committed manifest and

reversible error in remanding the case by failing to find that the ALJ and Commission' s order was not

supported by substantial evidence or contrary to the law; 2) the circuit court committed reversible

error in remanding this matter for another determination of the question of the reasonableness of

Harris's job search efforts since the job search issue is inherently factual and was determined by the

ALJ and Commission; and 3) the ALJ's determination that Harris's job search was not reasonable or

diligent is supported by substantial evidence.

Our standard of review of workers' compensation cases is well established. The Workers'
Compensation Commission is the trier and finder of facts. Fought v. Stuart C. Irby Co., 523 So.2d

314, 317 (Miss. 1988). If the Commission's findings of fact and order are supported by substantial

evidence, then we are bound by them even though we as fact finder would have been convinced

otherwise. Fought, 523 So.2d at 317 (citations omitted). We will exercise de novo review on matters

of law. KLLM, Inc. V. Fowler, 589 So.2d 670, 675 (Miss. 1991).

The ALJ's decision not to award permanent partial disability was based on the finding that Harris had

not made a diligent and reasonable job search. While we defer to the ALJ's determination that Harris's

job search was not reasonable and diligent, such a conclusion is not necessary in the case sub judice.

Reversible error occurred, because the ALJ failed to follow Jordan v. Hercules, Inc., 600 So.2d 179

(Miss. 1992). While the ALJ usually must determine whether a claimant has made a reasonable job

search, if the claimant returns to work but is not rehired, the claimant has made a prima facie case for

an award of permanent partial disability benefits. Jordan, 600 So.2d at 179. Thus, the ALJ failed to

apply all applicable law.

Georgia Pacific claims that there was sufficient evidence to support the ALJ's finding that Harris did

not diligently seek employment. We agree. The circuit court's order to remand the case to determine

whether Harris's job search was reasonable and diligent was improper. However, we agree that

Jordan is applicable and that the case should be remanded, because the ALJ failed to determine that

Harris had presented a prima facie case for an award of permanent partial disability benefits.

We define disability as "incapacity because of injury to earn wages which the employee was earning

at the time of injury in the same or other employment." McNeese v. Cooper Tire and Rubber Co.,

627 So.2d 321, 325 (Miss. 1993)(quoting Jordan, 600 So.2d at 183). In determining permanent

disability and loss of wage earning capacity, the claimant must show that he has sought and been

unable to obtain work "in similar or other jobs." Barnes v. Jones Lumber Co., 637 So.2d 867, 869-

70 (Miss. 1994)(citing Georgia Pacific v. Taplin, 586 So.2d 823, 828 (Miss. 1991)). See also

Sardis Luggage Co. v. Wilson, 374 So.2d 826, 829 (Miss. 1979). "Once the claimant has made a

prima facie case, the burden shifts to the employer to show that claimant's efforts constituted a mere

sham." Barnes, 637 So.2d at 870; Taplin 586 So.2d at 828; Sardis Luggage Co., 374 So.2d at 829.

However, the Jordan Court stated:

When a claimant, having reached maximum recovery, reports back to his employer for work,

and the employer refuses to reinstate or rehire him, then it is prima facie that the claimant has

met his burden of showing total disability. The burden then shifts to the employer to prove a

partial disability or that the employee has suffered no loss of wage earning capacity.

Jordan, at 183. See also McNeese v. Cooper Tire and Rubber Co., 627 So.2d 321, 325 (Miss.

1993). If an employee returns to work and is not rehired but refused, then the claimant has shown a

prima facie case regardless of whether he has diligently sought employment elsewhere. The ALJ

determined that Harris was seven percent permanently physically impaired but denied permanent

partial disability benefits, because Harris had not reasonably and diligently sought employment. Thus,

the ALJ failed to consider Jordan when denying Harris permanent partial disability benefits. The ALJ

did not make a specific finding that the employer proved that Harris has suffered no loss of wage

earning capacity. Since the ALJ and Commission are finders of fact, the case sub judice is remanded

on the issue of whether Georgia Pacific proved Harris suffered no loss of wage earning capacity.
Georgia Pacific contends that Jordan applies here since Harris was fired because he failed to follow

company policy, not because he was unable to perform his job. At the hearing before the ALJ,

Georgia Pacific's personnel manager, Robert Harper, testified that Harris violated the "three days no

call report." According to Harper, each employee is given a handbook which contains Georgia

Pacific's policies. In the handbook, a rule states that if an employee fails to call or report without

reasonable excuse to Georgia Pacific, then the employee is terminated. Harper testified that Georgia

Pacific received a letter from Dr. Robinson on January 23, 1991, stating that Harris was physically

able to return to work. Since Harris did not return to work until late March, 1991, Harper testified

that Harris violated the no call no report rule. When Harris did report to Georgia Pacific in March,

Harris had already been terminated. Thus, Harper contends that Harris was refused his job because of

the rule violation, not because Harris was unable to perform his job.

Harris returned to work in late March, 1991, when Harris' primary physician, Dr. Seals, sent a letter

to Georgia Pacific stating that Harris was physically able to perform light work. The ALJ did not

specifically determine whether Harris was properly terminated or not. However, the ALJ determined

that, "Based on the evidence in its entirety I find claimant was temporarily and totally disabled from

September 26, 1990, until he reached maximum medical recovery on March 14, 1991, the date of

claimant's examination by Dr. Stringer, and find claimant suffers a 7% permanent physical

impairment." Implicitly, the ALJ determined that Harris had not violated the three day no call no

report rule in January, 1991 because they ruled Harris had not reached medical recovery until March.

However, the ALJ never explicitly ruled on the issue.

We have held that in doubtful cases the doubt should be resolved in favor of compensation in order

to uphold the purpose of the act. Barham v. Klumb Forest Products Center, Inc., 453 So.2d 1300,

1304 (Miss. 1984); M.T. Reed Construction Co. v. Garrett, 249 Miss. 892, 164 So.2d 476 (1964).

Georgia Pacific based Harris's termination on Dr. Robinson, a physician seen on referral to determine

whether surgery was needed, whom Harris saw only once. The ALJ specifically found that Harris

was fully medically recovered according to Dr. Stringer's recommendation on March 14, 1991, much

later than Dr. Robinson's work release. Therefore, it appears that Harris was improperly terminated in

January 1991, and has made a prima facie case. Harris returned to work when his primary physician

signed a work release form. However, since this is a finding of fact, the ALJ and/or Commission

should make the final determination.

CONCLUSION

The ALJ failed to apply the correct legal burden required of Harris. The ALJ never mentioned that

Harris had not made a prima facie case under the Jordan standard, but rather, simply stated that

Harris had not diligently and reasonably sought employment. Therefore, we remand the case for a

determination of whether Georgia Pacific properly terminated Harris for a reason other than his

ability to perform and, if not, whether the primae facie case established from that fact per Jordan was

overcome by other evidence of his ability to perform. On remand, Georgia Pacific must put on

evidence that Harris has suffered no loss of wage earning capacity.

LOWER COURT'S ORDER TO REMAND THE CASE TO THE WORKERS'

COMPENSATION COMMISSION AFFIRMED.

PRATHER, P.J., PITTMAN, BANKS, McRAE, ROBERTS AND MILLS, JJ., CONCUR.
LEE, C.J., CONCURS IN RESULT ONLY. SMITH, J., NOT PARTICIPATING.