IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI N O. 2018-WC-01160-COA LINDA HAYES APPELLANT

v. HOWARD INDUSTRIES, INC. APPELLEE DATE OF JUDGMENT: 07/18/2018 TRIBUNAL FROM W HICH APPEALED: MISSISSIPPI W ORKERS’ COMPENSATION COMMISSION ATTORNEY FOR APPELLANT: FLOYD E. DOOLITTLE ATTORNEYS FOR APPELLEE: RICHARD LEW IS YODER JR. W I LLIAM LAW RENCE THAMES NATURE OF THE CASE: CIVIL - W ORKERS’ COMPENSATION DISPOSITION: AFFIRMED - 08/06/2019 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE BARNES, C.J., McDONALD AND C. WILSON, JJ. C. WILSON, J., FOR THE COURT: ¶1. Linda Hay es sustained a neck injury w hile working at Howard Industries, Inc. and f i l ed a com

pensation claim

. The Adm inistrative Judge held an evidentiary hearing o n t h e

m atter, and the parties presented conf licting expert t estim o ny . T h e r e a ft e r , the Adm inistrative Judge entered an order f

inding Hay es sustained a loss of w age-earning capacity and requiring Howard Industries to pay Hay es pe r ma n e n t partial disability benef its and f u ture m edical benef its. Howard Industries f iled a petiti o n f

or review. The Mississippi W orkers’ Com pensation C om m ission (the “Com m ission”) then entered an ord e r d eclining to accept the Adm inistrative J u dge’s determ ination and f ound that Hay es did not sustain a loss of wage-earning capacity

. Hay es now appeals and asserts, am ong oth e r things, that theCom m i ssion’s decision is not supported by substantial creditable evidence. W e af f irm

. FACTS AND PROCEDURAL HISTORY ¶2. Hay es sustained a n e ck injury on March 21, 2 012, w h i l e working a t Howard Industries using an overhead c rane to pick up steel. At the tim e of h er i njury , Hay es m ade $11.83 per hour as an internal assem bler and was at an 11-0 pay -grade level. ¶3. Following the i njury , H a y e s r eceived m edical treatm ent, which Howard Industries covered. H ay e s initially sought m edical treatm ent f rom an MEA Medical Clinic b ef ore being ref erred to Dr. R oss W ard a t Laurel B o n e a n d Joint Clinic. O n May 10, 2 012, Dr. W ard inf orm ed Hay es that she was not a surgical candidate and released H ay es to work f ull duty with n o restrictions beginning May 11. Dr. W ard also ref erred Hay es to Dr. V ivek Barclay f or pain m anagem ent. ¶4. Hay es b egan seeing D r. Barclay on May 23, 2012. Dr. Barclay gave H a y es work restrictions, i n c l u d i ng n o o verhead work, no lif ting over t en pounds, and eight-hour work day s. On May 24, 2 012, Hay es returned to work at Howard Industries. Howard Industries

accom m odated Hay es’s restrictions f rom Dr. Barclay

. ¶5. On Septem

ber 4, 2012, Hay es f

iled a petition to controvert. On S eptem b er 28, 2012, Howard Industries f

i led its answer, adm itting com pensability

. ¶6. On August 2 3, 2013, Dr. Barcla y p l a c e d Hay e s at m axim um m e dical im

provem ent (MMI) a nd stated t h a t H a y e s had perm anent work r estrictions o f n o h eavy l if ting, no overhead reaching, and e ight-hour w o rk day s and f o rty -hour work weeks. 1 Dr. Barclay

1 A t th is tim e, H ay es m ad e $ 1 2 .5 6 p er h o u r at H o w ard In d u stries an d w as at an 1 1 -3 p ay - g r ad e lev el. 2assigned Hay es a 5% whole-person im p airm e n t rating. ¶7. O n S e p t e m

b e r 1 6

- 1 7 , 2 0 1 3, Robbie Bishop perf orm ed a f unctional c a

p a c i t y e v a l u a t i o n (FCE) on Hay es at Southern Bone and Joint Rehab. Bishop n oted that H ay es had dif f iculty with overhead l if

ting as well a s dif

f iculty with heavy

lif t ing and carry ing. O verall, Bishop noted that Hay es c ould perf orm light-level work, was able to lif t and c arry and p ush and pull at least twenty

pounds occasionally , and was able to rem ain upright at a f r equent level. ¶8. On January 17, 2 014, Dr. Jef f rey Sum m ers perf

orm ed an independent m edical exam (IME) on Hay es at NewSouth NeuroSpine. Dr. Sum m ers reviewed Hay es’s m e d ical records f rom M EA, Dr. W ard, a nd Dr. Barclay

. Dr. Sum m e rs reported that he did not f eel that Hay es was at MMI and recom m e nded that she begin both a hom e exercise program and an active therapy program . On Decem ber 23, 2014, D r. B arclay again placed Hay es at M MI with the

sam e restrictions. ¶9. Given the conf

licting m edical opinions, Howard Industries requested Hay es undergo another IME. The Adm i nistrative Judge granted Howard Industries’s reques t and ordered Hay es to undergo an IME with Dr. Leon Grigory ev. Dr. Grigory ev perf orm ed this exam on May 1, 2015. Following the e xam ination, Dr. Grigory ev reported that H a y e s had reached
MMI a nd assigned Hay es a 0% im pairm ent r atin g. H e f

urther reported that Hay es had no work restrictions a nd no work lim itations and th a t H ay es d id not need any f urther m edical

treatm ent f

or her March 21, 2012 injury

. ¶10. Hay es worked a n accom m od a t ed job at Howard Industries f rom August 2013 to Septem ber 2015. F ollowing Dr. Grigory ev’s IME, Hay es’s supervisor r equested Hay es

3return to work f ull duty in Septem

ber 2015 b ased o n the I ME f indings. Hay es com

plied and worked f ull d uty f o r f our m onths—f

rom Septem

ber 2015 to Decem

ber 2015—with no

com plaint s . N o n e t heless, when Hay es returned to work a f ter Christm as in January 2016, Hay es told her supervisors that s h e w o u l d not work f ull duty a nd requested a job that

com plied with Dr. Barclay ’s restrictions. Howard Industries term inated Hay es on January 5, 2016, f or ref usal to perf

orm her required work. At the tim e of her term ination, Howard Industries paid Hay es $12.91 per hour, and Hay es was at an 11-3 pay -grade level. ¶11. Af ter her term in a t i o n , Hay es’s union a ppealed her grievance to arbitration. The arbitrator, Connie M. Stokes, issued an order on August 3, 2016, stating that Hay es should

not have ref

used t o work the job of f er e d by Howard Industries. However, d ue to the uncertainty of Hay es’s phy sical condition on the date of her term ination, 2 Stokes decreased Hay es’s penalty to a six- mo n t h s u s pension. Pursuant to Stokes’s arbitration order, Hay es returned to w ork on August 1 1, 2016. But upon returning, Hay es again ref used to work f

ull duty , so Howard I ndustries t erm inated H ay es f or a second tim e on August 23, 2016. At the tim e o f her second term ination, Hay es m ade $12.91 per hour and was at an 11-3 pay -grade level. ¶12. Hay es’s union appealed Hay es’s grievance to arbitration again, alleging Howard
I n d u stries f

a iled to accept statem ents f rom H ay es’s d octor and docum entation concerning Hay es’s work restrictions. The second arbitrator, Steven A

. Zim m erm an, issued an order on August 28, 2017, f

inding that Howard Industries had properly term inated Hay es f or violation

2 H ay es testif

ied th at sh e w as in p a in w h en sh e ref u sed to w o r

k f u ll d u ty in Jan u ary 2 0 1 6

. 4of c om

p any rules and deny ing a l l relief requested by H ay e s ’s u nion. Zim m erm an s pecif ically noted that H ay es testif

ied th a t s h e w a s n o t in pain on the day she returned to Howard Industries in August 2016 and ref used to work f

ull duty

. ¶13. Even though D r . Grigory ev perf orm ed an IME on Hay es in May 2015, Hay es

con t i n u e d t o s e e Dr. B arclay in 2016 and 2017. During this tim e f ram e, Dr. Barclay indicated that he h ad no changes o r other recom m endations to m a k e a f t er Dr. G rigory ev’s
IME. Dr. Barclay also m aintained the sam e work restrictions f or H ay e s of no h eavy lif

ting, no overhead reaching, an eight-hour work day , and a f o rty -hour work week. ¶14. On July 26, 2017, the Adm inistra t i v e J u dge held a hearing t o determ ine Hay es’s

m edical rating, restrictions, and perm an e n t d i s ability

. At the hearing, Angela Malone 3
testif i ed as a vocational expert on behalf of Howard Industries a n d Kathy Sm ith 4 testif ied as

a v ocational expert o n behalf of Hay es. Hay es also sought to adm it the v ocational report of
Tom S te w a r t into evidence a t the hearing. 5 Because Stewart passed away prior to the evidentiary hearing, Howard I ndustries objected to the a d mission of Stewart’s vocational

3 A n g ela M alo n e testif

i ed th a t sh e r e v iew ed all o f H ay es’s m e d ical reco rd s in p rep aratio n o f h er F eb ru ary 1 2 , 2 0 1 4 v o catio n al r ep o rt. In h er rep o r t, M alo n e o u tlin ed th ree d if f eren t scen ario s b ased u p o n (1 ) D r . Ward ’ s r e lease o f H ay es to w o rk f u ll d u ty , (2 ) D r. B a rcl a y ’ s a s s i g n ed w o rk restrictio n s f o r H ay es, an d (3 ) B ish o p ’s F C E o f H ay es. M alo n e also d raf ted a su p p lem e n tal v o cat i o n al rep o rt, d ated Ju n e 2 3 , 2 0 1 5 , af ter D r. G r ig o ry ev ’s IM E o f H ay es.

4 O n A p ril 2 4 , 2 0 1 7 , S m ith in terv iew ed H ay es f o r a v o catio n al ev alu a t i o n . S m ith th en d raf ted a v o catio n al ev a lu atio n an d lo ss access rep o rt, o n H ay es’s b eh alf , d ated Ju n e 1 2 , 2 0 1 7

. S m ith ’s rep o rt relied u p o n in f o rm a tio n f

r o m D r. B arclay a n d d i d n o t m en tio n D r. G r ig o ry ev ’s 2 0 1 5 IM E rep o rt o r th e M ay 2 0 1 2 m ed ical rep o rt f

ro m D r. Ward

. 5 S tew art m et w i th H ay es in M ay 2 0 1 6 an d rev iew ed m ed ical reco rd s p ro v id ed to h im p rio r to d raf tin g a v o catio n al rep o rt f

o r H ay es d ated Ju n e 3 , 2 0 1 6

. 5report. T he Adm inistrative J udge overruled t h e o bjection and allowed Hay es to enter

Stewart’s vocational report into evidence. ¶15. Howard Ind u s t r i e s sought to adm it Stokes’s a rbitration order i nto evidence at the hearing. Hay es m oved t o s t r i k e and/or exclude S tokes’s arbitration order, and the Adm inistrative Judge granted Hay es’s m otion. ¶16. Following the hearing, on Septem ber 1 1, 2017, Howard Industries f iled a m otion to allow and adm i t a dditio n a l e v idence, specif ically the second a rbitration order issued by Zim m erm an. The Adm i nistrative Judge denied Howard Industries ’ m o t i on to allow and adm it additional evidence on October 17, 2017

. On October 25, 2017, the Adm inistrative Judge entered an order f

inding Hay es sustained a loss of w age-earning capacity and requiring
H o w a r d I ndustries pay Hay es perm anent partial disability benef its and f uture m edica l benef its. Howard Industries then f iled a petition f

or review on Novem

ber 13, 2017. ¶17. O n July 1 8, 2 018, the Com m ission e ntered an o rder rejecting the O ctober 25, 2017 order of the Adm inistrative Judge’s determ ination and f inding that Hay es did not sustain a loss of w age-earning capacity as a result of h er alleged work-related i nj ury . 6 The Com m i ssion also rejected the Adm inistrative J udge’s decision to adm i t Tom Stewar t’s vocational report into evidence a n d t h e Adm inistrative Judge’s October 16, 2017 decision deny ing Howard Industries’s m otion t o allow an d adm i t additional evidence. The

6 M o re sp ecif

ically , th e C o m m issio n f

o u n d : (1 ) H ay es ach iev ed M M I as o f M ay 1 , 2 0 1 5 ; (2 ) H ay es h a s a 0 % p erm a n en t p artial im p airm en t ratin g an d n o w o rk restrictio n s an d n o w o rk lim itatio n s; (3 ) H ay es w as ab le to p erf o r m th e reg u lar d u ties o f h er em p lo y m en t w i th o u t restrictio n s o r acco m m o d atio n s f ro m S ep tem b e r 2 0 1 5 to D e cem

b er 2 0 1 5 ; an d (4 ) H a y e s d id n o t w o rk f

o r H o w ard In d u s tries af ter D e cem

b er 2 0 1 5 b ecau se o f h e r in su b o r d in atio n , n o t b ecau se o f h er in j u ry . 6Com m i ssion adm itted into evidence both Stokes and Zim m erm an’s arbitration orders.

¶18. Hay es now appeals, a s s e r t i ng: (1) the Com m ission’s f indings and opinions are not supported by substantial evidence; (2) the Com m ission’s f indings a n d opinions are contrary
to the l aw; (3) the Com m ission’s f indings and opinions a re arbitrary and capricious; (4) the Com m i ssion erred when it did not consider all of the evidence of record; (5) the Com m ission erred when it excluded the written vocational report of Tom S tewart; (6) the Com m ission erred when it adm itted the arbitration order o f Connie M. Stokes dated August 3, 2016; (7) the Com m ission e rred when it r evers e d the Adm i nistrative Judge’s order d eny ing Howard Industries’s m otion to allow a nd adm it additional evidence and adm itted the arbitration order of Steven A. Zim m erm an dated August 2 8, 2017; ( 8) the Com m i ssion erred when it adopted arbitrator Zim m e rm an’s f indings that Howard Industries properly term inated Hay es and that the IME of Dr. Grigory ev is th e c ontrolling m e d ical record; (9) the Com m ission erred in f inding Hay es had no im p airm ent, no restrictions, and no wo r k l im itations; (10) the Com m i ssion erred in f

inding Hay e s’s inability to f ind em ploy m ent af ter diligent job search

was not d

ue to work r elated im

pairm e n t, restrictions, and lim itations; an d ( 1 1 ) t he Com m i ssion erred in deny ing Hay es reasonable and necessary f uture m edical treatm ent f or her work-related injuries. 7
S TANDARD OF REVIEW ¶19. “It is well-settled law in this State that the C om m ission is the ultim ate f inder of f act

7 H ay es’s f

irst, th ird , f

o u rth , n in th , ten th , an d elev en th assig n m en ts o f e rro r each g o t o w h eth er th e C o m m issio n ’s d ecisio n is su p p o rted b y su b stan tial cred ib le ev id en ce. B e cau se o u r an aly sis o f H a y es’s f irst assig n m en t o f

erro r ap p lies eq u ally

to th e o th ers, w e w i ll n o t ad d ress th em

sep arately

. 7in workers’ com pensation cases, and where s u b s t a ntial credible evidence supports the Com m i ssion’s d ecision, then, a bsent an error o f l aw, the d ecision m ust stand without judicial interf ere n c e . ” L ogan v. Klaussner Furniture Corp ., 238 So. 3d 1134, 1 138 (¶11) (Miss. 2018) ( c i t i n g S

m i t h v
. Jackson Constr. Co. , 607 So. 2d 1 119, 1124 (Miss. 1992)). “The Com m i ssion’s decision will be reversed only if it is not supported by

substantial e vidence, is arbi t r a r y or capricious, o r is b ased on an erroneous application of the law.” Logan , 238 So. 3d at 1138 (¶11) (quoting Lovett v. Delta Reg’l Med. Ctr ., 157 So. 3d 88, 89 (¶7) (Miss. 2015)). W e review issues of law de novo. W eathersby v. Miss. Baptist Health Sys., Inc. , 195 So. 3d 877, 882 (¶21) (Miss. Ct. App. 2016). DISCUSSION
I. Whether t he Com m ission ’ s d ecision i s supported by substantial credible evidence. ¶20. Hay es f

irst a s s e rts that the Com m ission’s decision is n ot supported by s u bstantial evidence. Hay es’s argum e nt i s two-f old. F i r s t , H ay es c ontends that it is obvious that the Com m i ssion did not consider all of th e e v i d e n c e , a s m andated by law, because the C o mm ission did not address certain expert opinions in its order. Second, H ay es conte n d s that “[ t]he only r elevant and m aterial evidence as to Ms. Hay es[ ’s] phy sical restrictions and ability t o p e r f

o r m w ork on the date of the hearing b ef ore the Adm inistrative J udge is the opinion of

Dr. Barclay

. ” ¶21. As stated by

the Suprem e Court, we are bound by the decision of the Mississippi W orkers’ Com pensation Com m ission if the C om m ission’s f

indings of f

act are supported by substan tial evidence [

. . .] Stated dif

f erently , this Court will reverse the C o m m ission’s o rder only

8if it f inds that order c learly erroneous and contrary t o the overwhelm ing w eight of the evidence. A f

inding is clearly erroneous when, although there is som e slight evidence to support it, the reviewing court on the entire evidence is l ef t with the def

init e 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 of the Act. Barber S e afood Inc. v. Smith , 911 So. 2d 4 54, 461 (¶27) (Miss. 2005) (quoting Hardaway Co. v. Bradley , 887 So. 2d 793, 795 (¶11) (Miss. 2004)). ¶22. “W here there is c onf licting m edical testim ony , the Com m ission has the responsibility

to apply its expertise and determ ine which evidence is m ore credible.” W eathersby , 195 So. 3d at 882 (¶21) (quoting W ashington v
. W

oodland Vill. Nursing Home , 25 So. 3d 341, 355 (¶33) ( Miss. Ct. App. 2009)). “Thus, ‘where m e d ical expert testim o ny is concerned, the Suprem e Court has held that whenever the e x pert evidence is c onf licting, the Court will af f irm the Com m ission whether the award is f or or against the claim ant.’” W eathersby , 195 So. 3d at 882 (¶21) (quoting Raytheon Aerospace Support Servs. v. M iller , 861 So. 2d 330, 336 (¶13) (Miss. 2003)). “The f indings of the Com m ission should be reversed ‘only in rather extraordinary cases.’” L ogan , 238 So. 3d at 1138 (¶11) (quoting R a y t h e o n A e rospace Support S e rvs. , 8 6 1 So. 2d at 335 (¶11)). Based on our r eview of the r ecord, we do not f ind this case to be one that requires reversal. ¶23. To begin, Hay es’s f irs t c o n t e n tion, that the Com m ission d id not consider all of the evidence because it did not address certain expert opinions, is contrary to the C om m ission’s order. In its o rder, the Com m ission s t a t e d , “ T he Full Com m i ssion gives g reater weight to the m edical opinions o f Dr. W ard and Dr. Grigory ev, as well as the v ocational t estim ony of Angela Malone.” The Com m i ssion f urther stated, “Based on the above and the evidence as

9a whole , w e f ind that [ H ay es] has not sustained a loss of wage-earning c apacity a s a result of her work-related injury .” (Em phasis added). A ccordingly , H a y e s ’ s a ssertion that the Com m i ssion f

a iled to consider all of

the evidence lacks m e r it. ¶24. In support o f her second c ontention, that the Com m ission com m itted reversible error by rely ing on opinions other than D r. Barclay ’ s, Hay es cites Smith v
. Commercial Trucking Co. Inc ., 742 S o. 2d 1082 (Miss. 1999). In S mith , the Suprem e Court f o und that the Com m i ssion’s underly ing decision was not supported by substantial evidence. Id. at 1088 (¶15). There, only o n e expert perf orm ed a com

p lete series of d iagnostic tests to determ ine

t h e c laim ant’s injury

. Id. at 1086 (¶10). Nonetheless, the Com m i ssion g av e g r e a t e r d e f e r e n c e to other experts who “f ailed or ref

used to perf

orm tests that would hav e conclusively proved or d i sproved [ the claim ant’s i njury ]

. . . .” Id. The Suprem e Court f ound this was im

proper under Johnson v. Ferguson , 435 So. 2d 1911, 1195 (Miss. 1983), which provide s “ [ w]hen an expert’s opinion is based upon a n inadequate or incom plete

exam ination, that opinion does not carry as m uch weight a n d has little or no probative value when com

pared to the opinion of an expert that h as m ade a thorough a nd adequate

exam ination.” I

d. a t 1 0 85, 1087 (¶¶9, 1 3 )

. A c c o r d ingly , the Suprem e Court reversed and

rem anded the Com m i ssion’s decision. Id. at 1088 (¶16). ¶25. Smith is inapplicable here. Unlike Smith , there is no evidence in this c ase that certain experts perf

orm ed “inadequate o r incom plete ex a m i n a t ion[ s].” Rather, there is sim ply conf l i c t i n g m edical testim ony . Dr. W ard a nd Dr. Grigory e v assigned Hay es a 0% im p airm ent rating, and Dr. Barclay assigned Hay es a 5 % i m pairm ent rating. Dr. W ard and

1 0Dr. Grigory ev also a ssigned Hay es no work restrictions and lim itations w hereas D r. Barclay

assigned Hay es perm anent work restrictions. ¶26. W h ere there is conf licting e xpert testim ony , it is the C om m ission’s responsibility “to apply its expertise and determ ine which evidence is m ore credible.” W eathersby , 195 So. 3d

at 882 (¶21) (quoting W

ashington , 25 So. 3d at 355 ( ¶33)). As noted by the Suprem e Court in Smith , “[ t]he test in [ a m ulti-expert] case is n ot one of the weight of the sheer num ber of duly qualif

ied e xperts, but rather the credibility of the expert(s) based on the weight of objective proof

, evidence, o r resul t s u s e d i n r e ndering an opinion.” Smith , 742 So. 2d at 1 0 8 7 ( ¶ 1 3). Af

ter taking all of the evidence under consideration, the Com m i ssion g a v e g r e a t e r weight to the m edical opinions of Dr. W ard and Dr. Grigory ev, as well a s t h e vocational testim ony of Angela Malone. “[ T]he Com m ission is the ultim ate f i nde r of f act in workers’ com

pensation cases . . . .” Logan , 238 So. 3d at 1138 (¶11) (citing Smith , 607 So. 2d at 1124). Upon our own review of the record, w e f ind the Com m ission’s decision is supported by

substantial credible evidence, so we af f irm

. II. Whether the Com m ission’s decision is contrary to the law . ¶27. Hay es next contends that the Com m i ssion’s decision is contrary to law. U n der Mississippi l aw, “[ a] rebuttable p resum ption of no loss of wage-earning c a pacity arises when the claim ant’s post-injury wages are equal to o r exceed his preinjury wage.” W eathersby , 195 So. 3d at 883 (¶25) (quoting G regg v. Natchez Trace Elec. Power Ass’n , 64 So. 3d 473, 476 (¶12) (Miss. 2011)). Hay es asserts that the Com m ission’s f inding that she did not rebut this presum

ption is contrary to law. W e disagree. Based on o ur review, the C om m ission’s

1 1decision did not rest on any f i nding about the r ebuttable p r esum ption of no loss of wageearning capacity

. T he Com m ission sim ply concluded that Hay es’s unem ploy ability was because of her insubordination, not because of her injury

. In reaching this conclusion, the Com m i ssion relied on Lott v. Hudspeth Ctr. , 26 So. 3d 1044, 1050 (Miss. 2 010). In Lott , the Suprem e Court clarif

ied:
It is true that a claim ant m ay establish a p r i ma f a c ie c ase [ of loss of wageearning c apacity ] by showing that, d espite a reason a b l e j o b search, she is unable to f

ind the sam e or sim ilar em ploy m ent. However , this C ourt has h eld that a conclusion that the em ploy ee is dis a b l e d r e s t s on a f inding that the claim ant could n ot obtain work in sim ilar or other jobs and that the claimant’s unemployability was due to the injury in question

. Id. at 1050 (¶19) (em

phasis added) (citation and i nternal q uotation m ark o m i tted). There, the Suprem e Court went on to f ind that “there [ wa ] s s u b s t a n tial evidence that [ Lott’s] lack of

em ploy m ent was not due to [ Lott’s] injury

. ” Id. at 1050 (¶20). ¶28. Here, the C om m ission concluded the sam e was true f or Hay es. T he C o m m ission reached its conclusion b a sed u pon the f ollowing f

actual f i ndings: ( 1 ) H a y es reached MMI

on May 1, 2015; (2) Hay e s had a 0% perm a n ent partial im pairm ent r ating; (3) Hay es has no restrictions a nd no l im i tations with respect to work activities; (4) H ay es was able to perf orm the regular d

uties of h e r em

ploy m ent at Howard Industries witho u t a c c o m m odation f rom Septem ber 2015 t o D e c em

ber 2015; and (5) Hay es did not continue to work at Howard Industries af

ter D ecem

ber 2015 because of h er insubordination, not because o f her injur y . Because the Com m ission’s conclusion does not turn o n any f inding related to the rebuttable
presum ption regarding no loss of wage-earning capacity , Hay es second assignm ent of error lacks m e rit.

1 2III. Whether t he Com m ission erred in ex cluding Stew art’s vocational re p o r t and in adm itting Stokes and Z im m erm an’s arbitration orders. ¶29. Hay es asserts that the Com m ission erred by excluding the written vocational report

o f Tom Stewart and adm i tting the arbitration o rder o f Stokes. Hay es also a s serts that t h e Com mi s s ion e rred b y rejecting the Adm inistrative J udge’s d ecision to deny Howard Industries’ m otion to adm it the arbitration order of Zim m erm an. W e disagree. ¶30. The Com m ission has wide discretion i n t h e adm inistration of com pensation claim s and operates under a relaxed standard in m aking evidentiary f indings. See M iss. Code Ann. § 7 1-3-55(1) ( Rev. 2011); Delta D rilling Co. v. Cannette , 4 89 So. 2 d 1378, 1380-81 (Miss. 1986). Pursuant to section 71-3-55(1), [ i]n m aking an investigation or inquiry or conducting a hearing, the com m ission shall not be bound by com m on law or statutory rules of evidence or by technical or f

o rm a l r u l e s or procedure, except as provided by this chapter, b ut m ay m a ke such investigation or inquiry or conduct such hearing in such m anner as best to ascertain the rights of the parties. “It is a rare day when w e will reverse the Com m ission f or an action t a k e n in the im p lem entation and e nf

orcem e nt of its o wn p rocedural rules.” D elta Drilling C o. , 489 So. 2d at 1380-81.

A. Stew art’s Vocational Report ¶31. Hay es f

irst contends that the C om m ission e rred i n rejecting the Adm inistrative Judge’s introduction of Stewart’s vocational report into e v i d e nce. Stewart prepared a vocational report f

o r H a y e s d a t e d June 3 , 2016. But prior to Hay e s’s J uly 26, 2017 evidentiary hearing, Stewart passed away . Still, Hay es sought to e n ter Stewart’s vocational

1 3report into evidence at the hearing. Howard Industries objected to the a d m ission of Stewart’s

vocational report because S tewart could not b e cross-exam ined and the report could not be authenticated. The Adm inistrative Judge nonetheless al l o w e d Stewart’s vocational report
to be adm itted i nto evidence. On review, the Com m issio n r eversed the Adm inistrative Judge’s ruling because Stewart was deceased at the tim e of the evidentiary

hearing. ¶32. Hay es contends the Com m ission’s reversal constituted error because “[ h]earsay , even if n ot corroborated in the traditional sense, is highly probative when it has a strong indicia of reliability and can in m a ny situations be substantial e v i d e n c e . ” W hile this m ay be true,

we do not f

ind that the Com m i ssion abused its discretion by excluding Stewart’s vocational report. Further, “[ f

] or a case to b e reversed based on the adm i ssion or exclusion of e vidence,

a p arty m ust be a ctually prejudiced, harm ed, or have a substantial right adversely af f ected.”
W alls v. Franklin Corp ., 177 So. 3d 1156, 1164 (¶35) (Miss. Ct. App. 2 0 1 5 ) ( quoting Ill. Cent. R.R. v. Brent , 133 So. 3d 760, 779 (¶42) (Miss. 2 0 1 3 ) )

. At the evidentiary hearing, Hay es had another vo c a t i o nal expert, Sm ith, t estif y on h er behalf

, and Hay es i ntroduced Sm ith’s voc a t i o n a l r e p o r

t i n t o evidence. Accordingly , Hay es was not prejudiced or o therwise adversely af f ected by the exclusion of

Stewart’s report, and this issue lacks m e rit.
B. Stokes and Z im m erm a n’s Arbitration Orders ¶33. In regard to the a dm ission of the ar b i t r a tion orders, Hay es contends that the Com m i ssion im

properly reversed the A d

m i n i s t r a t i v e J u d g e’s rulings excluding Stoke’s order during the hearing a nd later deny ing Howard I ndustries’s m otion to adm it Zim m erm an’s order. Pursuant to secti o n 7 1

- 3

- 1 , W orkers’ Com pensation Law “shall be f airly and

1 4im

p artially c onstrued and applied according to the law an d t h e e v i dence in the record[ .]” This C ourt h a s p r e viously f ound that “ the Com m ission e njoy s great latitude in deciding whether t o reopen a workers’ com pensation case f

o r the adm ission of additional evidence.” Dep’t of Agric. & Commerce v. A u s t i n , 1 50 So. 3d 994, 999 (¶22) (Miss. Ct. App. 2014) (quot i n g M

i d

- Delta H ome Health Inc. v. Robertson , 749 So. 2d 379, 388 (¶33) (Miss. Ct. App. 1999)). “The decision to reopen a workers’ com pensation case is p urely d iscretionary with the Com m ission, and the Com m ission’s o rder will not be reversed absent a clear abuse of discretion.” Id. (quoting Mid-Delta Home Health Inc ., 749 So. 2d at 387 (¶29)). ¶34. Here, the Com m ission reversed the Adm inistrative J u dge’s exclusion of Stokes and Zim m erm an’s arbitration orders. W e cannot say the Com m ission abused its wide discretion in doing so. P articularly , as to Z i mme r ma n’s o rder, based on our review of the record, Howard I ndustries did not receive Zim m erm a n ’s order until a f ter the Adm inistrative Judge’s evidentiary hearing. And, alm ost im m ediately , Howard Industrie s f i l e d a m otion to allow and adm it additional evidence. W e thus f ind the Com m ission d id n ot abuse its d iscretion in rejecting the Adm inistrative Judge’s decision deny ing Howard Industries’ m otion to adm it the additional evidence. ¶35. Hay es al s o c o n t e nds that both Stokes and Zim m erm an’s arbitration o rders “are hearsay within hearsay [ ] a nd are doubly unreliable a n d inadm issible.” B ut as discussed
supra , the Com m ission operates under a relaxed evidentiary st a n d a r d

. Moreover, Hay es does

not ref er this C ourt to any c ase law dem onstrating that it is im proper f o r the Com m ission to adm it relevant a rbitration orders i n t o evidence. A s the appellant, Hay e s “has the duty to

1 5m ake m ore than m ere assertions and should set f orth reasons f

or h[ er] a rgum ents and cite authorities in their support.” W a lker v
. State , 823 So. 2d 557, 5 62-63 (¶13) (Miss. Ct. App. 2002). Additionally , Hay es wa s n o t p r e judiced or otherwise adversely af f ected by the adm ission of the arbitration orders. Hay es had a f air opportunity to present her evidence and
argum ents to both the arbitrators and the Com m ission. F or these reasons, Hay es’s assignm ent s o f e r ror that the C om m ission im p roperly adm itted Stokes and Zim m erm an’s arbitration orders lack m erit. ¶36. Finally , Hay es asserts that M ississippi C ode Annotated section 71-3-1(1) (Rev. 2011)
“m andates that the Com m ission m ake its decision b ased on the evidence in the record, not adopt t h e d e c i s i o n o f an arbitrator.” W hile the Com m ission does ref erence the arbitration orders i n its order, the C om m ission does not state t hat it “adopted” either arbitration order in ma k i ng its decision. Rather, the Com m ission’s order appropriately sets f orth the Com m i ssion’s f

actual f i ndings and the law it f

o llowed i n reaching its d ecision. Accordingly , Hay e s ’ s a ssertion that the Com m i ssion im properly adopted the decisions of the a rbitrators lacks m e rit. CONCLUSION ¶37. The C om m ission i s the ultim ate f act f inder in w orkers’ com

pensation m atters. Logan , 238 So. 3d at 1138 ( ¶11). Upon review, we f ind that substantial credible evidence supports the Com m ission’s decision here, and that the Com m ission’s decision i s n ot contrary to the law. Further, the Com m ission has wide discretion in the adm i nistration of co mp ensation claim s. The Com m ission did n o t abuse this discretion in it s a d mi s s i o n o r exclusion of

1 6evidence in t h i s m a t t e r . Mindf ul of our def

erential s tandard of review, we af f irm the Com m i ssion’s decision. ¶38. AFFIRMED. BARNES, C.J., C ARLTON AND J. WILSON, P.JJ., GREENLEE, WESTBROOKS, LAWRENCE A N D McCARTY, JJ., CONCUR. TINDELL AND McDONALD, JJ. , C O N C U R I N R ESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.

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