IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI N O. 2017-WC-01478-COA KENNETH NIX ON APPELLANT

v. HOWARD INDUSTRIES, INC. APPELLEE DATE OF JUDGMENT: 10/12/2017 TRIBUNAL FROM W HICH APPEALED: MISSISSIPPI W ORKERS’ COMPENSATION COMMISSION ATTORNEY FOR APPELLANT: FLOYD E. DOOLITTLE ATTORNEY FOR APPELLEE: RICHARD LEW IS YODER JR. NATURE OF THE CASE: CIVIL - W ORKERS’ COMPENSATION DISPOSITION: REVERSED AND RENDERED: 06/19/2018 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE GRIFFIS, P.J., FAIR AND GREENLEE, JJ. FAIR, J., FOR THE COURT: ¶1. Kenneth Nixon suf f e r e d a w ork-related injury within t he course a nd scope of his

em ploy m ent with Howard Industries. Following a hearing, the adm inistrative j udge f ound Nixon had incurred a loss of w a g e - e a r n ing capacity and awarded him perm anent partialdisability benef

its. The adm inistrative judge’s f indings a nd award were adopted by the Mississippi W orkers’ Com pensation Com m ission. The sole issue on appeal is whether the Com m i ssion e rred i n its c om putation of N ix o n ’ s disability benef its. Because the Com m i ssion f

ailed to u se Nixon’s stipulated pre-injury weekly wage in its calculation, we reverse and render. FACTS¶2. On August 27, 2011, Nixon was working as an assem bler at Howard Industries when he injured his back. At the hearing, both parties stipulated that N i xon’s average weekly wage was $645.40—considerably m ore than what he would m ake in a 40-hour w ork w eek at his hourly rate of $12.26. The record indicates th a t t h e stipulated f igure i ncluded regular overtim e. ¶3. Nixon kept working at H o w a r d I n d u s t r i e s af ter the accident and was still working there at the tim e of the h e aring. Since 2011, Nixon has r eceived two increases in his hourly
wage as a result of union negotiations—a total increase of $0.70 p er hour since the accident, to $12.96 an hour. ¶4. Nixon testif

ied that, since the i njury , his work a t Howard Industries has c ontinued to

cause pain in his back. He has r eceived injections, prescription pain m e dication, and has had

wor k d o n e o n the nerves in his back. N ixon h as b een treated by several doctors, but predom inantly by Dr. J oe Leigh, a n anesthesiologist and pain m a n a gem ent specialist. Dr. Leigh placed Nixon under r e s t r i ctions i n 2012, lim i ting him to l if ting 40 pounds occasionally

. In 2016, Dr. Leigh reduced t he lim it to 20 pounds, and Nixon is now unable to do m ost of his f orm er work. ¶5. In April 2016, Nixon m et with Bruce Bra w n e r , a v o cational rehabilitation expert. Brawner testif

ied that Nixon lost access to f ive of the six pre-injury occupations f or which he was qualif

ied, an 83% total loss of access. Brawner testif ied t hat Nixon suf

f ered a 53% loss of access based on his current conditions. Brawner added that Nixon could com pete in

2the open labor m arket based on the light-duty levels he had been assigned. He opined that Nixon should be able to e arn $8.96 per hour on t he open labor m arket. Assum ing a 40-hour work week, Nixon’s weekly salary would be $358.40. ¶6. Following the hearing, the adm inistrative judge f ound that Nixon h ad suf

f ered a loss of wage-earning capacity

. But instead o f using Nixon’s stipulated pre-injury weekly wage of $645.40 in calculating Nixon’s benef its, the adm inistrative judge used $490.40, which she arrived u pon by assum ing a 40-hour work w eek at his pre-injury hourly rate of $ 12.26. As

a r esult, the adm inistrative judge ordered Howard I ndustries t o pay perm anent partial

disability benef

its in the a m o unt of $88.27 per week, continuing f or 450 weeks. Pursuant to the statute, that f

igure is two-thirds of

the dif f erence between $490.40 and $358.40. ¶7. Nixon appeals. STANDARD OF REVIEW ¶8. “ T h e s c o p e a n d s t andards of revie w f o r w o r k e r s ’ c o mp e n s a t i o n c a s e s a r e well-established.” Short v. W ilson Mea t H

ouse LLC , 3 6 So. 3d 1247, 1 250 (¶16) (Miss. 2010). A s an appellate court, we review the d e cision of the Com m ission, n ot that of the adm inistrative judge. Id. ¶9. “This Court’s review is l im ited to d e t e r m i n i n g whether t he Com m ission’s decision

was supported by substantial evidence, was arbitrary and capricious, was b ey ond the scope

or power of the agency to m ake, or violated . . . constitutional or statutory rights. . . . [ T]he Com m i ssion is the ultim ate f act-f inder and judge of

the credibility of witnesses; theref ore,

3we m ay not reweigh the evidence that w as bef ore the Com m ission.” P u lliam v
. Miss. State Hudspeth Reg’l Ctr ., 147 So. 3d 864, 868 (¶16) (Miss. Ct. App. 2014) (citations and internal quotation m a rks om itted). “If an adm inistrative agency ’s decision i s n ot based on s u bstantial evidence, it necessarily f

o llows that the decision is arbitrary a nd capricious.’” Short , 36 So. 3d at 1251 (¶20) (quoting Public Emps.’ R et. Sys. v
. D earman , 846 So. 2d 1 014, 1019 (¶14) (Miss. 2003)). DISCUSSION ¶10. Nixon contends that the C om m ission erred in m ultiply ing his pre-injury hourly wage of $12.26 tim es 4 0 h ours ($490.40) to calculate his average w eekly wage instead of his stipulated weekly wage of $ 645.40. In s u p p o rt of his argum ent, Nixon cites Mississippi Code Annotated sections 71-3-31 (Rev. 2011) and 71-3-17(c)(25) (Rev. 2011). 1. Weekly Wage Calculation ¶11. Mississippi Code Annotated section 71-3-31 states t h a t “ the a v erage weekly wages

. . . [ are] to b e determ ined f rom the earnings of

the injured em

ploy ee in the em

ploy m ent in which he was working at the tim e of the i nj ury during the period o f f if ty -two ( 52) weeks im m ediately pre c e d i n g t h e date of injury divided by f if ty -two (52).” The Com m ission calculated Nixon’s weekly wages f rom his hourly rate, assum ing a 4 0

- h o u r workweek. Nixon contends it should h ave used $645.40, the stipulation based on his pre-injury history of regular overtim e. ¶12. Sin c e 1 9 5 6 , t h e M ississippi Suprem e Court has held that the basis of com putation

4under s ection 71-3-31 shall be the dif f erence of the c laim ant’s a verage weekly wage bef ore the injury and earning capacity post-injury

. See W e b ster Const. Co. v. Bates , 227 Miss. 207, 216-17, 85 So. 2d 795, 798 (1956). The suprem e court has em phasized that the calculation is based on “ actual earnings bef ore injury with e arning capacity af ter injury

. ” Russell v. Se. Utils. Serv. Co. , 230 Miss. 272, 281, 92 So. 2 d 544, 547 (1 9 5 7 ) (em phasis added). Accordingly , the C om m ission had no basis to reject Nixon’s stipulated average weekly wage of $645.40.
2. Calculation of Pay m ents ¶13. Next, Nixon contends that the C o mmi s s i o n e r r e d i n i t s calculation of disability

com pensation pay

m e nts. H e claim s that in order to calculate the com pensation owed, the C o m m ission m

ust com pare the average pre-injury weekly wage to the post-injury wee k l y wage under section 71-3-17(c)(25), which is based o n what he could earn f or 40 hours at the estim ated post-injury hourly rate in an open m arket, a warding com pensation in the am ount of 66-2/3% of the dif

f e rence. ¶14. Mississippi Code Annotated section 7 1

- 3

- 1 7 ( c ) ( 2 5 ) ( R e v . 2 0 11) s t ates that the

com pensation f

or perm anent partial disability “shall be sixty -six and two-thirds percent

. . . of the d if f erence between his a verage weekly wages . . . a nd his w a g e - e a r n ing capacity thereaf ter

. . . . ” H ere, the adm inistrative judge m odif ied the f o rm ula t o calculate Nixon’s
perm anent partial-disability b enef its, awarding the dif

f erence between the pre-injury hourly
wag e of $12.26 a nd the post-injury hourly wage of $ 8.96—the am ount Brawner, the

5vocational re h a b i l i t ation expert, had said Nixon was capable of earning outside Howard

Industries. ¶15. T h e C o m

m ission f ound Nixon’s pre-injury wage-earning capacity to be his h o u r l y r a t e

o f $ 1 2

. 2 6 t i mes 40 ($490.40). Subtracting that f rom the post-injury capacity of $8.96 per hour tim es 40 ( $ 3 5 8

. 40), the Com m ission arrived at $ 132.40. Further reducing t hat to the statutory two-thirds, the Com m i ssion arrived at a weekly com p ensation of

$88.27. ¶16. As we have a lready held, the Com m ission should have used the stipulated pre-injury weekly wage as Nixon’s average weekly wage, pursuant to section 71-3-31. It is theref ore clear that the Com m ission erred in calculatin g N i x on’s benef i ts. T he C om m ission should have taken the dif

f erence b etween the stipulated pre-injury average weekly wage of $645.40 f rom a 4 0-hour work week at the post-injury earning capacity of $8.96 per h our. Subtracting the p resent wage-earning capacity ($358.40) f rom the p r e -injury average weekly wage ($645.40) brings t he t otal to $287. Reducing that t o t h e s t a t utory two-thirds, we arrive at $191.33 as the am ount that should have been awarded by the Com m ission. ¶17. Because the C o m mi s s i o n e r r e d i n i t s c a l c u l a t i on of benef its, we reverse the Com m i ssion’s decision a nd render judgm ent that Nixon is entitled to $191.33 per week f or 450 weeks. 3. Cross-Appeal ¶18. Howard Industries contends that N ixon f ailed t o show that h e s u f f e r e d p erm anent disability and a l oss of wage earning capacity

. But Howard Industries f ailed to f ile a cross6appeal as required b y Rules 3 and 4 of the Mississippi Rules of Appella t e Procedure. W e

hold that this precludes review on appeal. See M.R.A.P. 4(c). ¶19. In the s eparate o pinion’s view, Howard I ndustries was not r equired to f i l e a crossappeal because “Nixon’s notice of appeal challenged the entire Order and sought reversal of the Com m ission’s ruling.” Mississippi Rule of Appellate Procedure 3(c) requires t hat “[ t]he notice of appeal

. . . specif y the party or p a r t i e s t a k i n g t he appeal and the p arty or parties against whom the appeal is taken, and shall designate as a whole or in part the judgm ent or order appealed f

rom .” M.R.A.P. 3(c). Nixon’s n otice of appeal stated that the C om m ission’s f inding s and opinions were his grounds f or appeal. In other words, t he separate opinion contends that Nixon appealed the whole judgm ent

. B ut i t has f ailed to cite any authority supporting the proposition that appealing the entire order f r om a lower tribunal excuses the appellee f rom f iling a cross-appeal. ¶20. The separate opinion attem pts to distinguish this case f rom Brock v. Hankins Lumber Company , 786 So. 2d 1064 (Miss. Ct. App. 2000), b ut we f ind t he cases to be quite sim ilar. Brock appealed the entire circuit court order reversing the Com m ission’s order. Id

. at (¶1). Like Nixon, Brock did not challenge f indings f avorable to h i s p o s i t ion—nam ely , the Com m i ssion’s f

inding that h e ha d s uf

f ered a work-related i njury (a f inding t hat was also af f irm ed by the circuit court). Id . at 1068 (¶19). In its appellee’s brief , the em ploy er tried
to argue t hat Brock had not suf f ered a work-related injury

. Id

. at (¶17). This Court declined to address the issue, holding that “[ i]n order f or the appellee to gain reversal of any part of

7the decision of a lower tribunal a bout which the appellant brings no com plaint, the appellee is required to f

ile a cross appeal.” Id . at (¶¶18-19). ¶21. M o r e r e c ently in R asdon v. Thrash , 2 25 S o. 3 d 557 ( Miss. Ct. App. 2 017), Rasd o n f iled a notice o f appeal f

rom the circuit court’s entire o rder af f irm ing the county court’s grant of s um m ary judgm e nt. Part o f t hat judgm ent included the denial of Thrash’s attorney ’s f ees and e xpenses. Id

. at 561 (¶11). I n his appellant’s brief , Rasdon r aised one issue—that it was

“ im proper f or the c ounty court to rule sum m arily that [ Thrash] did n ot breach th e i mp l i e d
covenant of good f

aith and f air d ealing.” Id

. at 559 (¶6). In his appellee’s brief , Thrash claim ed that he was entitled to attorney ’s f e e s. Id

. at 561 (¶11). Although R asdon had appealed the whole judgm ent, this Court declined to address Thrash’s claim since he f ailed to f i le a cross-appeal. Id

. ¶22. As this Court did in Brock and Rasdon , w e h o l d that Nixon’s appeal of the entire Com m i ssion order does n ot r elieve Howard Industries of its o bligation to f ile a cross-appeal. Holding otherwise would s et a dangerous p recedent f o r f uture appea ls to this Court. Obviously , Nixon w as not appealing any part of t h e j u d g me n t that was in his f avor, particularly the Com m ission’s f inding that he suf

f ered a loss of wage earning capacity

. For the reasons listed above, we f ind this issue i s n o t properly bef ore us and m ay not be considered. ¶23. REVERSED AND RENDERED. LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, WILSON, G R E E N L E E , W E S T B R O O K S A N D T IN D E L L , JJ., CONCUR. CARLTON, J., CONCURS IN
8PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION.

CARLTON, J., CONCURRING IN PART AND DISSENTING IN PART: ¶24. I concur in part b ecause I, like the m ajority , would r e v e r s e t h e j u d g me n t o f the Com m i ssion. I, however, would r everse t he Com m ission’s f indings and r ender judgm ent in f avor o f Howard Industries because t h e r e cord r ef lects that Nixon f

a iled to show that he suf f e red a loss o f wage-earning capacity and perm anent disability

. Precedent ref lects that the degree o f disability is determ ined by (1) a c t u a l p hy sical injury ; and (2) l oss of wage earning capacity

. See Gen. Elec. Co. v. McKinnon , 507 So. 2d 363, 3 6 5 ( Miss. 1987);
W ilcher v. D. D. Ballard Const. Co. , 187 So. 2d 308, 310-11 (Miss. 1966). ¶25. I subm it that a r e v i e w o f t h e r e c o r d r e f l ects that t he Com m ission a n d the AJ’s d e term inations t hat Nixon overcam e the presum p tion t hat he suf

f ered no loss of w a g e earning capacity were arbitrary and capricious, in that they were not supported by s u bstantial evidence. 1 Nixon returned to work af t e r h i s injury in a production job, in “Internal Assem bly , ” a n d t h e record ref

lects that he was m aking m ore m o ney post-injury in that

assem b ly production job with the sam e em ploy er, Howard Industries, t h a n h e e a rned pre1 A s t h e m aj o rity reco g n izes, “[ t ] h is C o u r t’s rev iew is l im ited t o d eterm i n i n g w h eth er th e C o mmissio n ’s d ecisio n w as su p p o rted b y su b s tan tial ev id en ce, w as arb itrary an d cap ricio u s, w as b ey o n d t h e sco p e o r p o w er o f t h e a g e n c y t o m a k e, o r v io lated

. . . co n stitu t io n al o r statu to ry rig h ts

. . . . [ T ] h e C o m m issio n is th e u ltim ate f a ct-f in d er a n d j u d g e o f th e cred ib ility o f w itn esses; th eref o re, w e m ay n o t rew eig h th e ev id en ce t h at w as b ef o re th e C o m m issio n .” P u llia m , 1 4 7 S o . 3 d at 8 6 8 ( ¶1 6 ). “If an ad m in istrativ e ag en cy ’s d ecisio n is n o t b ased o n s u b stan tial ev id en ce, it n ecessarily f o llo w s th at th e d ecisio n is arb itrary an d cap ricio u s.” S

h o rt , 3 6 S o . 3 d at 1 2 5 1 (¶2 0 ) (in tern al q u o tatio n m ark s o m itted ). 9injury

. See W eathersby v. Miss. Baptist Health Sys. Inc ., 195 So. 3d 877, 883-85 (¶¶22-31) (Miss. Ct. App. 2 016) (af f irm ing Com m ission’s f

inding that claim a nt f

ailed to overcom e presum ption that claim ant suf

f ered no l oss of wage earning capacity where c laim a nt returned

t o w o r k a f

ter injury with 100% im

pairm e n t and continued to earn the sam e wages p o s t injury ); Herbert v. City of Horn Lake , 138 S o. 3d 943, 946 (¶¶10-11) (Miss. Ct. App. 2013);

s e e also Agee v. Bay Springs Forest P rod., Inc ., 419 So. 2d 188, 1 89 ( Mi s s . 1 9 8 2 ) (discussing a back injury

where worker m oved f

rom job with lif

ting to f ork-lif t operator at

sam e wages a s b ef

ore his injury ) ; Smith v. Picker S e r v
. C o
. , 2 4 0 So. 2d 454, 456 (Miss. 1970) (discussing a b ack injury and post-injury increased wages w here claim ant f ailed to

overcom e presum

ption that he had not sustained im pairm e nt of

earning capacity ). ¶26. The m ajority f

inds that w e cannot reverse on this basis because Howard Industries did not f ile a cross-appeal on the i ssue of whether Nixon showed that he had suf f ered a loss of wage-earning capacity and p e rm anent disability

. I d isagree bec a u se t he notice o f appeal

encom passed the basis upon which I would reverse this case. ¶27. Generally , “[ i]n order f or the appellee to gain reversal of any p art of the decision of

a lower tribunal about which the appellant brin g s no com plaint, t he appellee is r equired to f ile a cross appeal.” Brock v. Hankins L umber Co. , 786 So. 2d 1064, 1068 (¶¶18-19) (Miss. Ct. App. 2000); see Brown v. Y ates , 68 So. 3d 7 58, 762 (¶¶21-23) (Miss. Ct. A p p. 2011); see also Dunn v. Dunn , 853 S o. 2d 1 150, 1 152 ( ¶¶3-8) (Miss. 2003). However, as stated, in this

case, no cross-appeal was r equired because Nixon’s notice of a ppeal challenged the entire

1 0Order and sought reversal of the Com m ission’s ruling. ¶28. The record shows that N ixon “com plained of ” t he e ntire Order in h is notice of appeal. Nixon’s notice of appeal was very b road, seeking reversal of t he entire Order as “not

s u p p o r t ed by substantial evidence,” “contrary to the law,” and “arbitrary and c apricious.” Nixon did not a t t e m

p t t o l im it the i ssues until h e set out the statem ent of issues in his appellant’s brief

. Hence, at the tim e Howard I ndustries would h a v e h a d t o determ ine whether f iling a cross-appeal was necessary , it had n o notice f rom Nixon’s notice of appeal that he w as not pursuing all the issues raised by his notice of appeal b ut was instead only appealing the determ i nation of the wage am ount. Additionally , in this Court’s review of the
wage am ount determ ination, we m ust nec e s s a r i ly review whether the record supports a f inding of loss of w age-earning cap a c i t y f or such calculation. Howard Industries should theref ore not be required to f

ile a cross-appeal in this case. ¶29. I f ind helpf ul the M ississippi S u p r e m e C o u r t ’ s d e cision in W atkins Dev., LLC v.
Hosemann , 214 So. 3d 1050 (Miss. 2017). In W atkins , t he Court specif

i cally looked at the appellants’ n otice of a

ppea l , noting that appellants, W atkins and W atkins Developm ent LLC, had specified their basis f or a ppeal. Id. at 1052-53 (¶¶11-14). Under those circum stances, the C o u r t held that the appellee, the Secretary of State, was required to f ile a cross-appeal addressing the portion of t he Chancellor’s r u l i n g t h at was not appealed. Id. In this case, given the general nature of Nixon’s notice of appeal placing into issue and challenging the evidentiary a nd legal support f or the entire Com m ission’s order, Howard Industries should

1 1not have been required to f ile a cross-appeal. ¶30. Precedent ref

l ects that a cross-appeal is needed where considerat i o n i s sought on a separate basis f

or error than that raised by the appellant. In Brock , f or exam ple, it appears that the C ourt was looking at t he a ssignm ents of error in the b rief ing, not the contents of the notice o f appeal. In that case, however, the o pinio n d i d n o t set f orth the contents of the notice of appeal. The Court held: The Com m ission f

ound that Brock [ the appellant] h ad suf f ered a work r elated injury

. That conclusion w as explicitly a f f i rm ed by t he circuit court. Brock in his appeal to the court did not address that f inding, as of course there was no reason f or Brock t o challenge a f

avorable d ecision. A cross-appeal is a r equest given t o an a

ppel l a t e c o u r t to consider a separate b asis f or error by the trial court than t hose raised b y the appe l lant. W ere we to agree with Brock’s assignm ent of error, and we have, in order to avoid the e f f ect of that agreem ent Hankins [ the appellee] would have needed to raise as a cross-appeal the other alleg e d error b y the t rial court. Hankins did not do so and the i ssue is not properly raised. Brock , 786 So. 2d at 1068 (¶19); see also, e.g. , B rown , 68 So. 3d at 763 (¶¶21-23) ( “Because Kim [ the appellee] s eeks to reverse the chancery court' s f inding t hat sections 9 3-16-3(1) and 96-16-5 are constitutional, and Annie [ the appellant] did not raise the issue on direct appeal, Kim was required to f

ile a c ross-appeal.”). The analy sis set f orth in Brock does not apply in the c ase herein because t h e b a s is f or error raised by Howard Industries is encom passed within Nixon’s notice of

appeal. ¶31. The notice of appeal in this case stated as f o llows: COMES NOW , the Claim ant, who

. . . respectf ully f iles this Notice Of A ppeal to T he Mississippi Suprem e Court of the O rder o f the Mississippi W orkers’ Com p ensation C o mmi s s ion dated October 12, 2017, and assigns as grounds
1 2f

or appeal the f

o llowing: 1. The f indings and opinions o f t he Mississippi W orkers’ Com pensation Com m ission are not supported by substantial evidence. 2. The f indings and opinions o f t he Mississippi W orkers’ Com pensation Com m ission are contrary to the law. 3. The f indings and opinions o f t he Mississippi W orkers’ Com pensation Com m ission are arbitrary and capricious. 4. The Mississippi W orkers’ Com pensation Com m ission f

ailed to f ollow the m andates of statu[ t ory ] law, in c l u d i n g but not lim ited to Ms. Code Section 71-3-17. Nixon, the appellant herein, sought reversal of t he Com m i ssion’s order a nd challenged the entire order as f

actually and legally def

icient. Thus, to reverse and render upon review of the evidentiary and legal support f o r the C o mmi s sion’s order, n o cross-appeal was required herein because the basis of this determ ination was encom passed within the appellant’s notice of appeal.

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