322 So.3d 500
Miss. Ct. App.2021Background
- Rivera worked as a "chicken catcher" for RDJJ from 2002 until his work injury on September 1, 2016, when he injured his left shoulder/arm while catching and throwing chickens.
- He underwent multiple surgeries and treatment; a May 2018 FCE placed him at maximum medical improvement with an 18% upper‑extremity impairment and sedentary restrictions, showing he could perform about 28.8% of his preinjury job’s physical demands.
- RDJJ refused to rehire Rivera post‑injury; Rivera filed a petition to controvert and sought compensation and choice of physician.
- The administrative judge denied RDJJ’s motion to exclude Rivera’s job‑search evidence, found Rivera could not perform the substantial acts of his usual employment, and awarded a 100% industrial loss of use of the left upper extremity (200 weeks).
- The Mississippi Workers’ Compensation Commission affirmed (with a wage calc amendment); RDJJ and its carrier appealed. The Court of Appeals affirmed the Commission’s finding and award.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Rivera’s chicken‑catcher work (undocumented employment) may be treated as his "usual employment" | Rivera: his long tenure and prior heavy manual work make chicken catching his usual employment | RDJJ: illegal employment should be excluded from "usual employment" and only lawful prior work (e.g., in Mexico) should count | Court: RDJJ failed to cite controlling authority; Commission reasonably considered his long‑term chicken‑catcher work as part of usual employment; affirmed |
| Whether medical evidence defeats a presumption of total industrial loss (i.e., claimant can return to heavy work) | Rivera: FCE, physician opinions, and inability to perform job tasks show he cannot do substantial acts of usual employment | RDJJ: medical evidence shows Rivera is not permanently limited to sedentary work and could return to heavy work apart from immigration status | Court: substantial medical and FCE evidence supported sedentary restrictions and physicians’ views that returning to chicken catching was unlikely; presumption of total loss stood |
| Whether inability to perform substantial acts of usual employment created a rebuttable presumption of total industrial loss and whether RDJJ rebutted it | Rivera: inability to perform substantial acts (per FCE and physician testimony) gives rise to presumption; RDJJ offered no effective rebuttal | RDJJ: claimed post‑MMI work offers and that immigration status explained inability to find work | Held: Commission properly applied Jensen/Waits presumption; RDJJ failed to present evidence to rebut presumption; presumption upheld |
| Whether job‑search evidence should have been excluded because Rivera was undocumented | Rivera: job‑search admissible to show efforts/limitations; status not caused by injury | RDJJ: job‑search was irrelevant/fraudulent because claimant was not legally employable | Court: AJ properly denied motion in limine; but because inability to perform substantial acts was proved, court did not need to decide reasonableness of the job search further |
Key Cases Cited
- Meridian Prof’l Baseball Club v. Jensen, 828 So. 2d 740 (Miss. 2002) (establishes rebuttable presumption of total occupational loss when claimant cannot continue in position held at injury)
- Mueller Indus. Inc. v. Waits, 283 So. 3d 1137 (Miss. Ct. App. 2019) (clarifies that inability to perform substantial acts of usual employment establishes total loss without separate wage‑capacity inquiry)
- McGowan v. Orleans Furniture Inc., 586 So. 2d 163 (Miss. 1991) (factors for determining loss of wage‑earning capacity and role of lay testimony)
- Hall of Mississippi, Inc. v. Green, 467 So. 2d 935 (Miss. 1985) (medical testimony that supports but need not fully prove disability is sufficient)