            IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                                  NO. 2018-WC-00288-COA

MUELLER INDUSTRIES, INC. AND                                                 APPELLANTS
STONINGTON INSURANCE COMPANY

v.

SHANNON WAITS                                                                    APPELLEE

DATE OF JUDGMENT:                            02/08/2018
TRIBUNAL FROM WHICH                          MISSISSIPPI WORKERS’ COMPENSATION
APPEALED:                                    COMMISSION
ATTORNEY FOR APPELLANTS:                     DAVID B. McLAURIN
ATTORNEY FOR APPELLEE:                       YANCY B. BURNS
NATURE OF THE CASE:                          CIVIL - WORKERS’ COMPENSATION
DISPOSITION:                                 AFFIRMED - 04/09/2019
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE CARLTON, P.J., TINDELL AND McDONALD, JJ.

       CARLTON, P.J., FOR THE COURT:

¶1.    Mueller Industries and its insurance carrier, Stonington Insurance Company,1 appeal

the Mississippi Workers’ Compensation Commission’s (the Commission) order finding that

Shannon Waits suffered a 100% industrial loss of use in his right upper extremity and

awarding Waits temporary total disability benefits, as well as permanent partial disability

benefits.

¶2.    On appeal, Mueller Industries asserts the following assignments of error: (1) the

Commission erred in its finding of a 100% permanent partial disability; and (2) the



       1
           We will refer to the appellants collectively as Mueller Industries.
administrative judge (AJ) improperly showed partiality toward Waits.

¶3.    After our review, we find no error by the Commission. We therefore affirm the

Commission’s decision and award of benefits.

                                           FACTS

¶4.    On November 14, 2014, Shannon Waits fell and suffered injuries to his right arm and

shoulder while working as a breakout operator2 for Mueller Industries. After his injury,

Mueller presented to the emergency room at North Mississippi Medical Center and

underwent surgery.

¶5.    Waits filed a petition to controvert with the Commission on January 28, 2016,

claiming that he suffered injuries to his right arm and shoulder. On March 8, 2017, Mueller

Industries filed its answer admitting that Waits suffered the injuries that he set forth in his

petition to controvert.

¶6.    On June 14, 2017, the AJ held a hearing on the matter. At the hearing, the AJ heard

testimony from Waits,3 as well as from Daniel Turner, an expert in vocational rehabilitation;

and Travis Fisher, the human resources and safety director at Mueller Industries. The AJ also

reviewed deposition testimony from Dr. George Van Osten III, the orthopaedic trauma

physician who treated Waits on the day of his injury, and Dr. William Geissler, an expert in

the field on orthopaedic surgery who treated Waits. The AJ further reviewed Waits’s



       2
        Waits explained that as a breakout operator, he would relieve other machine
operators during their breaks.
       3
           Waits also testified by depositions taken on March 2, 2016, and March 31, 2017.


                                              2
vocational report prepared by Daniel Turner; evidence relating to Waits’s job search; Waits’s

Physical Therapy-Functional Capacity Evaluation (FCE), administered by Christin Boyd,

OTR/L.; as well as Waits’s medical records.

¶7.    On July 25, 2017, the AJ entered an order finding as follows:

       [Waits] is rendered unable to return to his previous employ, and he cannot
       return to that job should the circumstances permit as he is unable to perform
       the substantial acts of his usual occupation. The actual occupational effect has
       the same substantial effect as a total loss of the member. . . . It is the
       considered opinion of this Administrative Judge that the industrial loss of use
       in this instance is one hundred percent (100%).

The AJ accordingly held that “[c]ommencing on November 13, 2014 and concluding on

February 13, 2017, temporary total disability benefits are applicable with proper credit to be

given for any and all monies, wages or benefits previously paid to [Waits] during the

aforementioned time frame.” The AJ also awarded Waits permanent partial disability

benefits in the amount of $454.42 per week for a period of two hundred weeks, which the AJ

explained was “illustrative of one hundred percent (100%) industrial loss of use relative to

the right upper extremity.”

¶8.    On August 7, 2017, Mueller Industries filed a petition for review of the AJ’s decision,

arguing that the finding and decision of the AJ was contrary to the credible evidence,

contrary to the weight and overwhelming evidence, and contrary to the law. Mueller

Industries later filed an amended brief in support of its petition for review, asserting that the

AJ erred by showing partiality in favor of Waits in her finding and decision as exhibited by

her actions prior to the Full Administrative Hearing.

¶9.    On February 8, 2018, the Commission issued its Full Commission Order and


                                               3
summarily affirmed and adopted the AJ’s order. Mueller Industries filed its notice of appeal

on February 22, 2018.

                                STANDARD OF REVIEW

¶10.   This Court employs a limited standard when reviewing a workers’ compensation

appeal. Weathersby v. Mississippi Baptist Health Sys. Inc., 195 So. 3d 877, 882 (¶20) (Miss.

Ct. App. 2016). On appeal, we are limited to reviewing “whether the Commission's decision

is supported by substantial evidence.” Id. (quoting Lott v. Hudspeth Ctr., 26 So. 3d 1044,

1048 (¶12) (Miss. 2010)). “This Court will reverse an order of the Commission only where

such order is clearly erroneous and contrary to the overwhelming weight of the evidence.”

Id.

¶11.   We further recognize “that the Commission, not the AJ, is the ultimate fact-finder.”

Weathersby, 195 So. 3d at 883 (¶23) (quoting Smith v. Jackson Constr. Co., 607 So. 2d 1119,

1123 (Miss. 1992)). “When the Commission adopts the AJ’s findings and conclusions, we

review the AJ’s findings and conclusions as those of the Commission.” River Region Health

Sys. v. Adams, 115 So. 3d 863, 866 (¶13) (Miss. Ct. App. 2013).

                                        ANALYSIS

       I.     Findings and Decision of the Commission

¶12.   On appeal, Mueller Industries asserts that “the key question in the instant case is

whether Waits’s usual employment was his employment at the time of the [w]orkers’

[c]ompensation injury, i.e. his employment at Mueller Industries, Inc. or employment in

‘production.’” Mueller Industries argues that the Commission’s finding that Waits suffered

a 100% permanent partial disability of his upper right extremity due to his inability to return

                                              4
to his previous employment and his inability to perform the substantial acts of his usual

occupation is contrary to the overwhelming weight of the credible evidence and also contrary

to the law. Mueller Industries asserts that Waits’s employment with Mueller Industries,

which the AJ described in its order as “production,” is not Waits’s “usual occupation.”

Rather, Mueller Industries maintains that Waits himself declared his usual occupation to be

that of sales. Mueller Industries therefore argues that the evidence presented at the hearing

fails to support the Commission’s finding that Waits is physically incapable of returning to

employment in the sales field.

¶13.   Mueller Industries also asserts that because the Commission summarily dismissed any

need to conduct an analysis regarding Waits’s reasonable effort to find work, the issue of

whether Waits made a prima facie case that he has made a reasonable effort to find work is

not properly before this Court on appeal.

¶14.   Waits, however, asserts that every job he had performed over the last eight years

required lifting fifty pounds occasionally. Waits argues that according to his medical

restrictions, he is only capable of occasionally lifting 18.5 pounds. Waits therefore argues

that the medical evidence clearly establishes that the injury prohibits him from performing

the occupation he performed at the time of the injury and his usual employment.

¶15.   The Mississippi Workers’ Compensation Law provides that “[w]orkers are entitled

to be compensated for total loss or total loss of use of a scheduled member in accordance

with the number of weeks provided by statute.” Meridian Prof'l Baseball Club v. Jensen,

828 So. 2d 740, 745 (¶12) (Miss. 2002). Here, the Commission awarded Waits permanent

partial disability benefits under Mississippi Code Annotated section 71-3-17(c) (Rev. 2011)

                                             5
due to the loss of use of his right upper extremity. Section 71-3-17(c) directs that

compensation for disability shall be paid to the employee as follows:

       (c) Permanent partial disability: In case of disability partial in character but
       permanent in quality, the compensation shall be sixty-six and two-thirds
       percent (66-2/3%) of the average weekly wages of the injured employee,
       subject to the maximum limitations as to weekly benefits as set up in this
       chapter, which shall be paid following compensation for temporary total
       disability paid in accordance with paragraph (b) of this section, and shall be
       paid to the employee as follows:

       Member Lost                                Number Weeks Compensation
       (1) Arm                                         200

       ....

       (22) Total loss of use: Compensation for permanent total loss of use of a
       member shall be the same as for loss of the member.

       (23) Partial loss or partial loss of use: Compensation for permanent partial
       loss or loss of use of a member may be for proportionate loss or loss of use of
       the member.

Miss. Code Ann. § 71–3–17.

¶16.   “The law compensates for two types of loss of use: (1) ‘functional’ or ‘medical’ and

(2) ‘industrial’ or ‘occupational.’” City of Laurel v. Guy, 58 So. 3d 1223, 1226 (¶13) (Miss.

Ct. App. 2011). The supreme court has clarified that “[i]ndustrial or occupational loss is the

functional or medical disability as it affects the claimant’s ability to perform the duties of

employment.” Meridian Prof'l Baseball Club v. Jensen, 828 So. 2d 740, 745 (¶11) (Miss.

2002) (internal quotation marks omitted) (quoting McGowan v. Orleans Furniture Inc., 586

So. 2d 163, 166 (Miss. 1991)). In cases like the one before us, where a claimant’s

industrial/occupational loss is greater than the medical/functional loss, “the claimant’s

industrial or occupational disability or loss of wage-earning capacity controls his degree of

                                              6
disability.” Smith v. Jackson Const. Co., 607 So. 2d 1119, 1126 (Miss. 1992) (citing Richey

v. City of Tupelo, 361 So. 2d 995, 997-98 (Miss. 1978) (50% permanent functional loss of

right arm but 100% permanent industrial impairment)).

¶17.   We have recognized that “where a permanent partial disability renders a worker

unable to continue in the position held at the time of injury, . . . such inability creates a

rebuttable presumption of total occupational loss of the member, subject to other proof of the

claimant's ability to earn the same wages which the claimant was receiving at the time of

injury.” City of Laurel, 58 So. 3d at 1226 (¶15). A presumption of total occupational loss

arises “when the claimant establishes that he has made a reasonable effort but has been

unable to find work in his usual employment, or makes other proof of his inability to perform

the substantial acts of his usual employment.” Id. at 1226-27 (¶15) (emphasis added); see

also Jensen, 828 So. 2d at 746 (¶16) (providing that a worker is entitled to receive the

maximum scheduled benefits “where the injury prevents the worker from performing the

‘substantial acts of his usual employment”). An employer can then rebut this presumption

by showing “all the evidence concerning wage-earning capacity, including education and

training which the claimant has had, his age, continuance of pain, and any other related

circumstances.” Id.

¶18.   Here, the Commission found that due Waits’s arm and shoulder disability resulting

from his injury, he was left “unable to return to his previous employ” and “unable to perform

the substantial acts of his usual occupation.” Based on this finding, the Commission did not

engage in an analysis of whether Waits established that he had made a reasonable effort to

find work in his usual employment. See City of Laurel, 58 So. 3d at 1226-27 (¶15)

                                              7
(providing that a presumption of total occupational loss arises “when the claimant establishes

that he has made a reasonable effort but has been unable to find work in his usual

employment, or makes other proof of his inability to perform the substantial acts of his usual

employment”). The Commission then determined that because Waits was unable to perform

the substantial acts of his usual employment, he suffered a total occupational/industrial loss

of a member. The Commission accordingly awarded Waits permanent partial disability

benefits in the amount of $454.42 per week for a period of two hundred weeks, which the

Commission explained was “illustrative of one hundred percent (100%) industrial loss of use

relative to the right upper extremity.” Mueller Industries maintains that the Commission

erred in its definition of Waits’s “usual employment” and frames its argument around the

question of “whether Waits’s usual employment was his employment at the time” of his

injury.

¶19.      When determining benefits, “[o]ur primary concern is whether the job at the time of

injury is necessarily the usual employment.” Jensen, 828 So. 2d at 747 (¶20) (internal

quotation marks omitted). The supreme court provided guidance in the matter, defining

“usual employment” as “the jobs in which the claimant has past experience, jobs requiring

similar skills, or jobs for which the worker is otherwise suited by his age, education,

experience, and any other relevant factual criteria.” Id. The supreme court further stated that

“‘usual employment’ is broader in scope than the job held at the time of the injury, and

narrower than ‘other employment’ as contained in [section] 71-3-3(i).” Id.

¶20.      Turning to examine the evidence before us, the record reflects that at the time of the

hearing on June 14, 2017, Waits was 46 years old. At the hearing, Waits testified that he

                                                8
began working at Mueller Industries in 2012, two years before his injury. Waits testified that

after he fell at Mueller Industries and injured his right shoulder in November 2014, he

underwent surgery and rehabilitation.

¶21.   Dr. Van Osten is an orthopedic trauma physician who treated Waits on the day of his

injury. Dr. Van Osten testified that Waits arrived at the emergency room on November 14,

2014, in extreme pain after falling and injuring his shoulder and arm. Dr. Van Osten testified

that Waits suffered a complex injury to his shoulder that “was fairly unique, [with] several

broken areas in the shoulder girdle, several different fractures that were all unique entities

unto themselves.” Dr. Van Osten explained that Waits had the worst kind of fracture, a

four-part fracture of the proximal humerus, which is the upper part of the arm bone, that

“exploded in several different fragments.” Dr. Van Osten testified that Waits also had “a

complex fracture of the coracoid, which is a bony protrusion out from the scapula, which

serves as a little strut for attachment of several different soft tissue types of structures,”

which was shattered. Dr. Van Osten performed surgery on Waits on November 18, 2014, to

reposition the fragments of the broken bone into their normal position.

¶22.   Dr. Van Osten testified that he saw Waits several times after his surgery, including

a post-op follow up on December 4, 2014, and a six-week post-op visit on January 8, 2015.

Waits next presented to Dr. Van Osten on March 19, 2015. Dr. Van Osten testified that at

that appointment, Waits expressed that he did not understand why he had been prescribed

physical therapy and that he did not attend the first physical therapy session. Dr. Van Osten

read into testimony the notes taken by his physician’s assistant at that appointment. The

notes reflected that Waits was advised of the importance of physical therapy and also advised

                                              9
him to lose weight in order to help him achieve a greater range of motion in his shoulder.

Dr. Van Osten explained that Waits was morbidly obese. Dr. Van Osten also testified that

his physican’s assistant gave Waits a work excuse, which stated that Waits could return to

work with restrictions of no overheard lifting and no lifting greater than 30 pounds.

¶23.   Dr. Van Osten saw Waits next on April 21, 2015. According to Dr. Van Osten, he had

difficulty interpreting Waits’s shoulder x-rays due to Waits’s weight. At that time, Waits

weighed 400 pounds. Dr. Van Osten testified that although everything appeared to be in

place, Waits’s shoulder x-ray also showed loosening of some of the screws “as well as some

overall degenerations of the joint.” Dr. Van Osten testified that he and Waits “discussed

frankly and very openly the . . . reality of the situation, that he was probably going to not have

a very functional shoulder, given the nature of the injury that he had experienced.” Dr. Van

Osten informed Waits that “his size really limited a lot of our options at that point.” Dr. Van

Osten opined that “there was always a possibility that [Waits] could continue to improve but

that a lot of that would be up to him, you know, in the sense of taking care of himself overall

and his health, but also in the sense of just continuing with an appropriate rehabilitation

program or something like that.”4

¶24.   Dr. Van Osten testified that he felt Waits’s results were “poor” overall, explaining:

       I think the number one factor was just the body -- his size, frankly, and -- and
       his general overall condition. And I think that I even mentioned at one point


       4
        At the deposition, Dr. Van Osten reviewed Waits’s medical records from Dr. Brent
Lawrence at South Arkansas Orthopedics, who treated Waits in March 2016. Waits’s
attorney asked Dr. Van Osten if, after reviewing these new medical records, he would agree
that “MMI at this point is kind of a fluid concept and we might wait to visit that.” Dr. Van
Osten responded, “Yes.”

                                               10
       how the body habitus and the nature of the injury, of course, are interrelated.
       But those two things, the body habitus and the nature of the injury, I think, are
       . . . two of the most important things that led to his probably poor, you know,
       outcome. . . . I think the nature of the injury, the size and the body habitus of
       the patient, the difficulty of the surgery, the -- I think, frankly, you have to
       consider the fact that there was some miscommunication, for whatever reason,
       between [Waits] -- you know, [Waits], our office, my team, and potential the
       case manager; that for some reason, [Waits] seemed to have missed several
       therapy visits as well as follow-up appointments at certain intervals; so
       whatever the nature of that was and whatever the other issues surrounding his
       situation were with visits to behavioral health, I -- I can’t speak to that or
       comment on that. But, certainly, I can -- there’s one thing I know is that in
       situations where I have -- I treat a lot of complex injuries and in situations
       where I have seamless communication and well-structured follow-through
       plans, there tend to be better results[.]

¶25.   Waits underwent a Functional Capacity Examination (FCE) on May 5, 2015. Dr. Van

Osten explained that he uses the services of Chan Brown from Crossroads Rehabilitation to

perform FCEs and provide disability ratings. Dr. Van Osten reviewed Waits’s FCE results

and explained that Waits’s impairment rating was 25% to the upper extremity equivalent to

15% to the whole person. Dr. Van Osten testified that based on his treatment with Waits,

Waits reached maximum medical improvement on May 7, 2015. Dr. Van Osten then

released Waits to return to work on May 12, 2015, with the following restrictions, which he

based upon Waits’s FCE results: no bending, no standing greater than 30 minutes, and no

lifting with the right arm.

¶26.   The record reflects that Waits returned to work at Mueller Industries in May 2015

under the restriction of “light duty.” Waits testified that his light duty constituted cleaning

the plant, but that it was hard, heavy work that caused him pain in his shoulder. Waits

testified that he was ultimately unable to continue to perform those duties when the severe

pain in his shoulder returned.

                                              11
¶27.   Travis Fisher, the human resources and safety director at Mueller Industries, testified

that after his injury, Waits returned to work performing a light-duty type job. Fisher stated

that Waits eventually approached him and asked if he could be placed in a forklift operator’s

job. Fisher testified that he placed Waits there per his request, and he stayed in that job for

several months. Fisher testified that Waits seemed to be happy with his job. However,

according to Fisher, in late 2015, Waits failed to call in or report to work for three days.

Fisher explained that based on the point system set in place by the union contract, an

employee is terminated when they reach seven points. Waits received six points for failing

to call in or report to work for three days, and he had received a point prior to that. Because

Waits reached seven points, he was terminated in December 2015.

¶28.   Waits testified that the pain in his shoulder returned in November 2015, he went to

see a family doctor, Dr. Clint Washington, who placed Waits on FMLA and restricted him

from working until Waits could get approved to see an orthopedist. Waits testified that while

he was on FMLA leave, he called in to work every day. He explained, however, that it was

his understanding that once he was approved to see an orthopedist, he no longer had to call

in to work.

¶29.   Waits moved to Arkansas briefly after his termination from Mueller. Waits testified

that he saw Dr. Brent Lawrence at South Arkansas Orthopaedics in March 2016. The record

reflects that Waits’s medical records from South Arkansas Orthopaedics were attached to Dr.

Van Osten’s deposition. The medical records reflect that on March 11, 2016, Waits

presented to South Arkansas Orthopaedics with a chief complaint of right shoulder pain.

Waits was diagnosed with “posttraumatic osteonecrosis of the right humeral head with

                                              12
previous history of fixation of proximal humerus fracture.” The medical records showed that

Waits had “prominent hardware going into the glenoid,” which was causing Waits

“significant pain and limitations in motion.”

¶30.   Waits next received treatment from Dr. William Geissler at the University of

Mississippi Medical Center on June 13, 2016. Dr. Geissler was accepted to testify via

deposition as an expert in the field of orthopaedic surgery. Dr. Geissler testified that in June

2016, he diagnosed Waits with avascular necrosis to his proximal humerus and recommended

shoulder surgery.5 Dr. Geissler testified that he eventually performed a reverse shoulder

replacement surgery on Waits in July 2016. Waits testified that after this surgery, the pain

in his shoulder improved.

¶31.   Waits underwent another FCE on January 31, 2017, and the results reflected that

Waits suffered “Right upper extremity-Medium below shoulder level” and “Left upper

extremity-Medium above and below shoulder level.” Dr. Geissler stated that based on the

FCE results, he released Waits for work with the following restrictions: Waits was cleared

to “lift floor to waist 18 and a half pounds, waist to crown 15 pounds; front carry 16 pounds;

carry 40 pounds on the right and 25 pounds on the left; push 52 pounds and pull 121

pounds.” Waits was “restricted from overhead work on the right and overhead on the left for

one-third of the day. . . . [and] restricted on the left shoulder for overhead one-third of the

day.” Dr. Geissler placed Waits at maximum medical improvement on February 13, 2017,

and cleared him to return to work with the FCE restrictions. Dr. Geissler testified that, based


       5
       Dr. Geissler also placed Waits off of work prior to the surgery, and he remained off
of work until February 2017.

                                              13
on a reasonable degree of medical probability, he opined that Waits has a 25% permanent

partial medical impairment rating to his right upper extremity, and he did not believe that any

further medical treatment was required. Dr. Geissler stated that the shoulder replacement he

used on Waits was designed to “stay with him forever.”

¶32.      Cristin Boyd performed Waits’s FCE on January 31, 2017. Boyd reported that Waits

gave maximal effort to all test items. According to the FCE, Waits demonstrated lifting

ability within medium Department of Labor (DOL) category using both upper extremities

below shoulder level, lifting ability within medium DOL category using left upper extremity

above shoulder level, and excellent fine motor coordination. Waits demonstrated a lack of

physical endurance and positional tolerance in standing and the inability to perform elevated

work and overhead lifting with the right upper extremity. Boyd stated that she was unable

to fully assess Waits’s ability to return to work because a formal job description was not

available. Boyd explained that Waits was not sure if he was still employed with Mueller

Industries.

¶33.      Boyd stated that “dependent on job requirements, [Waits’s] limitations in elevated

work and overhead lifting may be a barrier to return to work. Also, [Waits’s] limited

endurance and positional tolerance to standing work and static standing may also be a

barrier.” Boyd found that Waits was a candidate for vocational rehabilitation. Boyd opined,

“Based on client’s verbal description of job requirements with Mueller, his physical abilities

do not match job demands at this time. However, if client is no longer employed by Mueller,

he has abilities within Medium [Department of Labor guidelines] lifting below shoulder

level.”

                                              14
¶34.   Waits’s March 2, 2016 deposition testimony reflects that he graduated from high

school and attended college for one year, but he did not graduate. Regarding his past

employment, Waits testified prior to his job at Mueller Industries that he “had been in sales

most of my life.” He explained that he had “done heavy equipment operating and things like

that from time to time, but mainly, I’ve been in sales my whole life.” Waits stated that he

worked as a singer and songwriter from 1991 to 1996. From 1996 to 2002, he worked as a

financial services representative and application support coordinator at Alltel in Little Rock,

Arkansas, where he mainly performed customer service work. Waits then worked as an

assistant manager at McDonald’s for two years. Waits testified that in his capacity as an

assistant manager, he was required to do some hands on work and overheard lifting. After

his job at McDonald’s, Waits worked as a roofing contractor in Fort Worth, Texas for six

years. As far as his duties as a roofing contractor, Waits explained that “he might clean up

the yard a little bit, but I stayed off the roof except to map and measure. I basically sold and

put in the jobs, made sure everything was done correctly.” Waits testified that the only

“factory work” he had ever done was at Mueller Industries. Waits testified that at the time

of the hearing, he was working a part-time job picking up railroad crews and transporting

them, and he earned $8 an hour.

¶35.   Waits testified that he has a forklift license from Texas, but Waits stated Mississippi

does not require a license. Waits also has a valid driver’s license, but he does not have a

commercial license. Waits further testified that he is right-hand dominant, but he cannot use

his right hand after his injury. Waits explained that he no longer possesses knowledge of the

current technology used in the application support field.

                                              15
¶36.   Fisher testified that after Waits was released at maximum medical improvement

following his July 2016 surgery performed by Dr. Geissler, Waits asked Fisher if he could

come back to work at Mueller Industries. Fisher explained to Waits that he had “pointed out”

based on the point system and “had several write ups,” so they would not be able to re-hire

him.   Fisher clarified that this decision had nothing to do with Waits’s workers’

compensation claim. Fisher also explained that the position of breakout operator no longer

exists at Mueller Industries because it is a union contracted job, and with the most recent

employment contract, “they did away with that particular position.” Regarding jobs at

Mueller Industries, Fisher testified that there were six job openings where the position

requires lifting of no more than twenty pounds.

¶37.   Daniel Turner was accepted as an expert in the field of vocational rehabilitation.

Turner testified that he met with Waits in March 2017, and then he prepared a Vocational

Rehabilitation Assessment in relation to Waits. In preparing his assessment, Turner reviewed

Waits’s deposition, his medical records, Waits’s interrogatories and amended responses to

interrogatories, as well as the documents produced by Waits in discovery.

¶38.   In his assessment, Turner reported that Waits is right hand dominant, 5'8" tall and

weighs 390 pounds. Turner stated that in the past, Waits had performed the following jobs:

       1) roofing contractor, selling and managing roofing jobs, hiring and managing
       the crews, ordering materials, and subcontracting siding and painting; 2)
       assistant manager at McDonald’s, including supervising employees in the
       restaurant and assuring the safe delivery of the food to customers; 3) Financial
       Services Representative at Alltel Financial Services, including working with
       customers to resolve billing issues and to collect past due accounts and
       working as an Applications Support Coordinator at Alltel, assisting retailers
       with technology questions and issues with the local area network and other
       computer problems, and; [4]) lead singer and songwriter in a band from 1991

                                             16
       through 1996. Claimant has also worked for short periods as a heavy
       equipment operator, a car salesman, a construction salesman and a delivery
       person.

¶39.   Turner identified 28 job listings suitable for Waits, all of which would allow Waits

to work within his medical restrictions and use his transferrable skills. Turner opined that

Waits has the opportunity to obtain employment and earn competitive wages in his labor

market. Turner also opined that Waits could perform medium/light work. Turner stated that

from his understanding, “there are jobs at Mueller [Industries]” that Waits “would have been

able to do,” even with his restrictions from Dr. Geissler.6

¶40.   On cross examination, Turner admitted that with workers’ compensation cases, he

does not send job listings to physicians and ask if the claimant would be capable of

performing those jobs with his medical restrictions. Turner also admitted that the restrictions

recommended by Dr. Geissler contradict the Depart of Labor’s definition of medium duty.

However, Turner stated that he had identified light and sedentary jobs for Waits.

¶41.   In her order, which the Commission summarily affirmed and adopted, the AJ stated

that she reviewed Turner’s vocation assessment updates for Waits. As stated, Turner opined

that Waits had the opportunity to obtain full time employment in the labor market and earn


       6
         We recognize that since the Commission did not make a finding on whether Waits
established that he made a reasonable effort to find work in his usual employment, we will
not engage in such analysis on appeal. The record reflects, however, that the Commission
heard testimony from Turner stating that he reviewed Waits’s initial job search and did not
consider it to be a reasonable job search. Turner explained: “Well, this was back in 2016,
and he had -- looked like he had applied for one, two, three, four, five, six jobs. And the
reason I say it would not be reasonable is to me a reasonable job search is you’re spending
enough time in applying for jobs, for enough jobs to where you could reasonably expect it
to obtain employment. And applying for six jobs in the year 2016, I wouldn’t expect you
to be able to obtain employment.”

                                              17
competitive wages. The AJ found, however, that “upon a rigorous cross-examination [of

Turner] and further information concerning these positions and what they actually entailed,

it became obvious that [Waits] could NOT perform the substantial acts required by the

majority of these listed jobs. Further, [Waits] was NEVER offered a job of any kind.”

¶42.   In examining relevant case law, we recognize that in Jensen, 828 So. 2d at 745 (¶12),

the supreme court focused on “the extent of benefits Jensen can be awarded for permanent

partial functional loss to his arm.” In that case, the Commission affirmed the AJ’s finding

of a 25% occupational loss of use of Jensen’s left arm, notwithstanding this wage-earning

capacity, and awarded benefits. Id. at 743 (¶4). Upon review, the supreme court found that

Jensen “established, or very nearly established, that he could no longer perform the

substantial acts of his actual employment at the time of his injury.” Id. at 749 (¶25).

However, the supreme court determined that “Jensen’s claim for benefits for total

occupational loss of his arm must fail . . . because of the Commission’s finding, supported

by substantial evidence, that Jensen suffered only a 25% occupational loss of use of the arm.”

Id. The supreme court explained that “[t]hat finding is supported by Jensen’s work history,

including his youth, his education, and the jobs held after his injury, which together

demonstrated no loss of wage-earning capacity.” Id. The Jensen court then expressed the

following guidance:

       Where the occupational disability due to permanent partial loss of use of a
       scheduled member exceeds the functional or medical loss, the AJ and the
       Commission [must] properly look to the entire factual context to determine
       whether total occupational loss has occurred. This necessarily goes beyond a
       literalistic interpretation of the “usual employment” test as applying solely to
       the job held at the time of the injury, regardless of the broader context.
       Common sense, our case law, and the policy behind the Workers’

                                             18
       Compensation Law all support the holding that loss of wage-earning capacity
       is a factor in whether or not occupational disability is greater than the medical
       loss of use would indicate.

Id. at 750 (¶27).

¶43.   We recognize that on appeal, we are limited to reviewing “whether the Commission’s

decision is supported by substantial evidence,” and we will reverse the Commission’s order

“only where such order is clearly erroneous and contrary to the overwhelming weight of the

evidence.” Weathersby, 195 So. 3d at 882 (¶20). In reviewing the Commission’s finding

that Waits could no longer perform the substantial acts of his usual occupation, we keep in

mind the supreme court’s guidance that usual employment constitutes “the jobs in which the

claimant has past experience, jobs requiring similar skills, or jobs for which the worker is

otherwise suited by his age, education, experience, and any other relevant factual criteria.”

Jensen, 828 So. 2d at 747 (¶20). Here, Waits testified that prior to his job at Mueller

Industries, he had “done heavy equipment operating and things like that from time to time,

but mainly, I’ve been in sales my whole life.” Waits stated that he worked as a singer and

songwriter from 1991 to 1996. From 1996 to 2002, he worked as a financial services

representative and application support coordinator, performing mainly customer service

work. Waits then worked as an assistant manager at McDonald’s for two years, where he

was required to do some hands on work and overheard lifting. Waits also testified that he

worked as a roofing contractor for six years, and explained that in performing his duties, “he

might clean up the yard a little bit, but I stayed off the roof except to map and measure. I

basically sold and put in the jobs, made sure everything was done correctly.” Waits testified

that the only “factory work” he had ever done was at Mueller Industries. Waits testified that

                                              19
at the time of the hearing, he was working a part-time job picking up railroad crews and

transporting them, and he earned $8 an hour.

¶44.   After reviewing the evidence before us, and in keeping in mind our limited standard

of review, we find that the record contains substantial evidence to support the Commission’s

finding that Waits could not perform the substantial acts of his usual employment, and that

he therefore suffered a one-hundred percent industrial/occupational loss of use of his right

upper extremity. The Commission correctly found that Waits met his burden of proving that

he suffered a total occupational/industrial loss by showing that he could not perform the

substantial acts of his usual employment. In its finding, the Commission acknowledged that

wage earning capacity was not part of Waits’s burden of proof, explaining that “a claimant

is not required to make a work search to prove industrial loss of use of a scheduled member

because he is not required to meet the test for loss of wage earning capacity in

body-as-a-whole cases.” See City of Laurel, 58 So. 3d at 1226-27 (¶15).7 In the AJ’s order,

which the Commission summarily affirmed and adopted, she explained as follows:



       7
         A claimant is not required to make a work search to prove an industrial loss of use
of a scheduled member. See Cole v. Ellisville State Sch., 59 So. 3d 612, 617 (¶24) (Miss.
Ct. App. 2010). Additionally, a claimant is not required to make a work search because he
is not required to meet the test for loss of wage earning capacity in body-as-a-whole cases:
incapacity to earn wages in the same or other employment on the open labor market. See id;
McGowan, 586 So. 2d at 167-68 (providing that claimant’s inability to perform the
substantial acts of his usual employment – climbing ladders and stairs, standing for long
periods and carrying heavy loads – established as a matter of law that he had one hundred
percent industrial loss of use of his leg although he had not attempted to return to work).
We recognize that industrial loss of use is a narrower inquiry than loss of wage earning
capacity, consistent with the expectation that workers with scheduled member injuries will
return to work and are eligible for a maximum of only 200 weeks of benefits under the
schedule. See Jensen, 828 So. 2d at 747-48 (¶¶20-22).

                                            20
       The loss of use standard is applied and the claimant should be compensated for
       this loss of use for industrial purposes accordingly. Any effect on wage earning
       capacity is not a part of the calculation of the benefits and is not part of the
       burden of proof. Loss of wage earning capacity is not the legal standard to be
       applied.

As stated, the Commission based its determination of loss and award of benefits on its

finding that Waits “is rendered unable to return to his previous employ, and he cannot return

to that job should the circumstances permit as he is unable to perform the substantial acts of

his usual occupation.”

¶45.   The Commission’s finding that Waits’s permanent partial disability rendered him

unable to perform the substantial acts of his usual employment created a rebuttable

presumption of total occupational loss of his right arm and shoulder. Therefore, “[t]he [next]

question this Court must answer is whether [Mueller Industries] successfully rebutted the

presumption of total occupational loss of the members with proof of [Waits’s] ability to earn

the same wages which [he] was receiving at the time of injury.” McDonald v. I.C. Isaacs

Newton Co., 879 So. 2d 486, 490 (¶16) (Miss. Ct. App. 2004).8

¶46.   To rebut the presumption of total occupational loss of Waits’s right arm and shoulder,


       8
         In McDonald v. I.C. Isaacs Newton Co., 879 So. 2d 486, 490 (¶19) (Miss. Ct. App.
2004), this Court found that the employer failed to rebut the presumption that, as a result of
her work-related injuries, the claimant no longer possessed the ability to earn the same
wages that she was receiving at the time of her injury. This Court explained that at the
hearing before the AJ the employer “offered no proof of its own that [the claimant]
possessed the ability to earn the same wages she was receiving at the time of injury to rebut
the presumption of total occupational loss of use of her upper extremities.” Id. at (¶18).
This Court acknowledged that evidence was presented showing that “there were other
positions available for which [the claimant] was suitable[,]” but clarified that “the rebuttable
presumption of total occupational loss of members created by [Jensen] must be overcome
by proof of the claimant’s ability to earn the same wages which the claimant was receiving
at the time of injury.” Id.

                                              21
Mueller Industries bears the burden of showing “all the evidence concerning wage-earning

capacity, including education and training which the claimant has had, his age, continuance

of pain, and any other related circumstances.” Id. Our review of the Commission’s decision

and order reflects that the Commission did consider the evidence presented by Mueller

Industries relevant to their burden of showing “all the evidence concerning wage-earning

capacity, including education and training which the claimant has had, his age, continuance

of pain, and any other related circumstances.” McDonald, 879 So. 2d at 490 (¶16). In its

order, the Commission recognized that wage earning capacity, medical evidence, and other

vocation and industrial factors were relevant, as evidenced by the following finding: “Also

of note, the claimant is right hand dominant, is 46 years of age, has a high school education,

has worked in production, and has been unable to return to work and earn wages since his

work injury.” The Commission also stated that it had considered the evidence presented,

including “all testimony, lay and medical.” The record reflects that the Commission

considered all of the evidence presented by Waits and Mueller Industries in finding that

Waits suffered a total occupational/industrial loss and in further determining that this finding

was not rebutted by the medical evidence, wage earning capacity, and vocational factors

presented. We therefore find that the Commission’s decision is supported by substantial

evidence, and we affirm.

       II.    Showing of Partiality

¶47.   Mueller Industries next argues that the AJ erred by showing partiality in favor of

Waits as exhibited by her actions prior to the full administrative hearing. Mueller Industries

claims that, prior to the administrative hearing, the AJ held a settlement conference with

                                              22
counsel for both sides at which time the AJ “informed both counsel that the case should be

settled” for one hundred percent permanent partial disability benefits. Mueller Industries

asserts in its appellate brief that “it was obvious” from the AJ’s discussion regarding

settlement that the AJ “had already made up her mind on the value of the case before hearing

all of the testimony, vocational evidence, and medical evidence.” Mueller Industries also

claims that the AJ “appeared very upset” that settlement could not be agreed upon for

payment of one hundred percent permanent partial disability benefits.

¶48.     As Waits asserts in his appellate brief, Mueller Industries fails to provide any

evidentiary support for its assertions against the AJ. This Court cannot consider evidence

outside of the record. Hardy v. Brock, 826 So. 2d 71, 76 (¶26) (Miss. 2002). We also

recognize that the failure to cite relevant authority prevents the appellate court from

reviewing an issue; therefore, this issue is procedurally barred. Byrom v. State, 863 So. 2d

836, 863 (¶84) (Miss. 2003); Bridges v. Kitchings, 820 So. 2d 42, 49 (¶27) (Miss. Ct. App.

2002).

¶49.     AFFIRMED.

    BARNES, C.J., J. WILSON, P.J., GREENLEE, WESTBROOKS, TINDELL,
McDONALD, LAWRENCE, McCARTY AND C. WILSON, JJ., CONCUR.




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