283 So.3d 1137
Miss. Ct. App.2019Background
- Shannon Waits injured his right shoulder/arm at work on November 14, 2014; surgery and post‑op treatment followed. He ultimately underwent a reverse shoulder replacement in July 2016.
- Waits filed a petition to controvert; Mueller Industries admitted the injury. An AJ held a hearing, reviewed medical records, two FCEs, vocational evidence, and depositions. The Full Commission adopted the AJ’s findings.
- The AJ found Waits unable to perform the substantial acts of his usual employment and awarded temporary total disability (Nov. 13, 2014–Feb. 13, 2017) and permanent partial disability equal to 100% industrial loss of use of the right upper extremity (200 weeks at $454.42/wk).
- Medical evidence: Dr. Van Osten (initial surgeon) rated a 25% upper‑extremity impairment (15% whole person) and released Waits with restrictions in May 2015; Dr. Geissler (later surgeon) placed MMI Feb. 13, 2017 and opined a 25% right upper‑extremity impairment with specific lifting limits (e.g., floor‑to‑waist 18.5 lbs).
- Vocational evidence: vocational expert Daniel Turner identified transferable skills and potential job listings; the AJ found most listed jobs required substantial acts Waits could not perform. Employer pointed to some light jobs at Mueller and Turner’s listings but did not overcome the presumption of total occupational loss.
- Procedural posture: Commission summarily affirmed the AJ’s 100% industrial loss finding; Mueller appealed raising (1) error in finding 100% industrial loss and (2) alleged AJ partiality during prehearing settlement discussions.
Issues
| Issue | Waits' Argument | Mueller's Argument | Held |
|---|---|---|---|
| Whether Waits suffered 100% industrial (occupational) loss of use of his right upper extremity | Waits: medical restrictions (lifting ~18.5 lbs) prevent him from performing the substantial acts of his usual employment (production/breakout operator) and past jobs that required heavier lifting | Mueller: "usual employment" should be broader (sales); Waits has past experience and transferable skills allowing return to work; Commission ignored wage‑earning capacity analysis and reasonable job search | Affirmed: substantial evidence supports Commission finding that Waits cannot perform the substantial acts of his usual employment, creating a presumption of total industrial loss not rebutted by employer evidence |
| Whether employer rebutted presumption of total occupational loss by showing ability to earn same wages | Waits: presumption stands once inability to perform substantial acts is shown; employer must prove wage‑earning capacity | Mueller: pointed to job openings, vocational report, and light‑duty positions at employer | Held for Waits: Commission considered wage‑earning evidence but found it insufficient to rebut presumption; employer failed to prove ability to earn same wages |
| Whether a work search was required to prove industrial loss of a scheduled member | Waits: not required; industrial loss inquiry is narrower than body‑as‑a‑whole wage‑earning capacity | Mueller: criticized Commission for not analyzing reasonable effort to find work | Held: Claimant need not make a work search to prove industrial loss of a scheduled member; Commission properly based award on inability to perform substantial acts |
| Whether the AJ showed partiality in settlement conference/prehearing conduct | Mueller: AJ pressured parties to settle for 100% and appeared upset when settlement failed, demonstrating bias | Waits: no record evidence supporting bias; allegations are outside record | Held: Issue procedurally barred and unsupported by the record; no reversible partiality shown |
Key Cases Cited
- Weathersby v. Mississippi Baptist Health Sys. Inc., 195 So. 3d 877 (Miss. Ct. App. 2016) (standard of appellate review for workers’ compensation Commission decisions)
- Lott v. Hudspeth Ctr., 26 So. 3d 1044 (Miss. 2010) (substantial‑evidence review of Commission findings)
- Meridian Prof’l Baseball Club v. Jensen, 828 So. 2d 740 (Miss. 2002) (definition of "usual employment" and presumption of total occupational loss when claimant cannot perform substantial acts of usual employment)
- City of Laurel v. Guy, 58 So. 3d 1223 (Miss. Ct. App. 2011) (industrial/occupational loss vs. medical loss; presumption mechanics)
- Smith v. Jackson Constr. Co., 607 So. 2d 1119 (Miss. 1992) (industrial loss controls when greater than medical loss)
- McGowan v. Orleans Furniture Inc., 586 So. 2d 163 (Miss. 1991) (industrial loss inquiry narrower than wage‑earning capacity test)
- McDonald v. I.C. Isaacs Newton Co., 879 So. 2d 486 (Miss. Ct. App. 2004) (employer must present evidence of ability to earn same wages to rebut presumption of total occupational loss)
- Cole v. Ellisville State Sch., 59 So. 3d 612 (Miss. Ct. App. 2010) (claimant not required to perform work search to prove industrial loss of a scheduled member)
- Richey v. City of Tupelo, 361 So. 2d 995 (Miss. 1978) (recognition that industrial disability may exceed functional loss and that occupational disability governs)