                         IN THE SUPREME COURT OF MISSISSIPPI

                                       NO. 2000-CT-01411-SCT

BRENDA WEATHERSPOON

v.

CROFT METALS, INC., AND LIBERTY MUTUAL
INSURANCE COMPANY

                                     ON WRIT OF CERTIORARI

DATE OF JUDGMENT:                                  08/11/2000
TRIAL JUDGE:                                       HON. MIKE SMITH
COURT FROM WHICH APPEALED:                         PIKE COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                            LAMPTON O. WILLIAMS, JR.
ATTORNEY FOR APPELLEE:                             JOHN S. GONZALEZ
NATURE OF THE CASE:                                CIVIL - WORKERS' COMPENSATION
DISPOSITION:                                       REVERSED - 04/24/2003
MOTION FOR REHEARING FILED:
MANDATE ISSUED:



        EN BANC.

        CARLSON, JUSTICE, FOR THE COURT:

¶1.     At issue in this appeal is the amount of workers' compensation benefits due an employee for partial

loss of use of her arms. We granted certiorari because the case requires a reconsideration of the proof in

compensation cases of this nature. We reverse the decision of the Court of Appeals and reinstate the

judgment of the Commission.

                              FACTS AND PROCEEDINGS BELOW

¶2.     Brenda Weatherspoon was employed at Croft Metals, Inc. in the assembly of screens. Her

specific duties included repetitive insertion of vinyl strips used to hold the screening material in the frames.
Weatherspoon had been performing this job for four months when she suffered a repetitive-motion injury

to both hands that was diagnosed as carpal tunnel syndrome. Her condition was treated by surgery to both

wrists, and her physician concluded that, after reaching maximum medical improvement, Weatherspoon

suffered a ten percent (10%) permanent medical impairment to both upper extremities. The physician

advised her to avoid activities requiring prolonged periods of repetitive movements, including using her

hands for gripping or pushing activities. There is no dispute that these restrictions prevented her from

returning to the same duties at Croft Metals.

¶3.     The administrative judge found that Weatherspoon had suffered a one-hundred percent (100%)

industrial disability to her right arm, entitling her to two-hundred (200) weeks of compensation. The

administrative judge further concluded that the injury to her left arm could not further diminish her ability

to perform the duties of her previous employment and awarded her a ten percent (10%) of the maximum

scheduled benefits for the left arm, or twenty (20) weeks.

¶4.     Croft Metals appealed to the Full Commission which concluded that Weatherspoon had failed to

establish an industrial disability which exceeded the medical disability set by her physician. The

Commission reduced her award to forty (40) weeks or ten percent (10%) of the maximum period for each

arm, placing substantial reliance on evidence that Weatherspoon had been less than diligent in pursuing

other work. Upon judicial review, the Circuit Court of Pike County affirmed the decision of the Full

Commission.

¶5.     Weatherspoon appealed, and the Court of Appeals, in a 6-4 decision, reversed and remanded to

the Commission for a determination of the total amount of permanent partial benefits due based on two-

hundred (200) weeks for the right arm (or 100% industrial disability) and twenty (20) weeks for the left

arm. The Court of Appeals found that the evidence that Weatherspoon could not perform the tasks of her


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former job was uncontradicted, and that no other inquiry was required. The Court of Appeals held that

if Weatherspoon were unable to perform those substantial acts of her employment with Croft Metals as a

result of her injury, then she was entitled to benefits for the total loss of use of the scheduled member, citing

McGowan v. Orleans Furniture Co., 586 So.2d 163 (Miss. 1991); Piggly Wiggly v. Houston,

464 So.2d 510 (Miss. 1985); Richey v. City of Tupelo, 361 So.2d 995 (Miss. 1978); Bill Williams

Feed Serv. v. Mangum, 183 So.2d 917 (Miss. 1966); McManus v. S. United Ice Co., 243 Miss.

576, 138 So.2d 899 (1962).

                                       STANDARD OF REVIEW

¶6.     The standard of review in workers' compensation cases is limited. The substantial evidence test

is used. See Walker Mfg. Co. v. Cantrell, 577 So.2d 1243, 1245-47 (Miss. 1991). The Workers'

Compensation Commission is the trier and finder of facts in a compensation claim. This Court will overturn

the Workers' Compensation Commission decision only for an error of law or an unsupported finding of

fact. Georgia Pac. Corp. v. Taplin, 586 So.2d 823, 826 (Miss. 1991). Reversal is proper only when

a Commission order is not based on substantial evidence, is arbitrary or capricious, or is based on an

erroneous application of the law. Smith v. Jackson Constr. Co., 607 So.2d 1119, 1124 (Miss. 1992).

                                               DISCUSSION

¶7.     At issue is whether a permanent partial disability of scheduled members (arms) which renders a

worker unable to continue in the position held at the time of the injury entitles that worker to benefits

commensurate with full occupational loss of use of her arms. This issue involves the proper analysis of a

claimant's "usual employment" and whether that analysis should be made with regard only to the claimant's

job at the time of injury or whether "usual employment" has a broader meaning.



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¶8.     Case law has established that a claimant suffering a scheduled member injury is entitled to the higher

of the two disabilities, functional or occupational, in the event of a variance in the two. For example, if

Weatherspoon had suffered an arm injury which translated to a 25% occupational/industrial disability, but

a 40% functional disability, she would be entitled to benefits based on the 40% functional disability.

Walker Mfg. Co. v. Cantrell, 577 So.2d at 1248.

¶9.     Recently, this Court addressed the issue in Meridian Professional Baseball Club v. Jensen,

828 So.2d 740 (Miss. 2002). In that case, Blair Jensen, a twenty-one year old high school graduate

suffered an injury to his left arm while employed as a professional baseball player for the Meridian

Brakemen. Even though Jensen's arm was classified at only 7% functionally impaired after maximum

recovery, he sought workers' compensation benefits for full occupational loss of use of his left arm, arguing

that he was unable to return to his "usual profession" as a baseball catcher. It was undisputed that Jensen

had worked a wide array of other jobs between baseball seasons and, that at the time of his hearing, he

was working full time at a medical clinic making more money per week than he had as a baseball catcher.

¶10.    The Court noted that case law has clearly established that maximum scheduled benefits should be

awarded where the injury prevents the worker from performing the "substantial acts of his usual

employment." McGowan, 586 So.2d at 166-68; Piggly Wiggly v. Houston, 464 So.2d at 513;

Richey v. City of Tupelo, 361 So.2d at 997-98; Bill Williams Feed Serv. v. Mangum, 183 So.2d

at 920; McManus v. S. United Ice Co., 243 Miss. at 584, 138 So.2d at 901; Tyler v. Oden Constr.

Co., 241 Miss. 270, 273, 130 So.2d 552, 553 (1961); Modern Laundry v. Williams, 224 Miss. 174,

179-80, 79 So.2d 829, 832 (1955); Lucedale Veneer Co. v. Keel, 223 Miss. 821, 827, 79 So.2d




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233, 236 (1955); M.T. Reed Constr. Co. v. Martin, 215 Miss. 472, 473, 61 So.2d 300, 303 (1952),

overruled on other grounds by Smith, 607 So.2d at 1128.

¶11.    In the case before us today, just as in Meridian Baseball, the question is whether the job at the

time of injury is necessarily the claimant's usual employment. Furthermore, like Meridian Baseball, this

case illustrates the distinction between functional and occupational loss, where "functional" or "medical" loss

refers to physical impairment and "industrial" or "occupational" loss is how the "functional or medical

disability" affects the claimant's ability to performduties of employment. McGowan, 586 So.2d at 166.

¶12.    When a permanent partial disability renders a worker unable to continue in the position held at the

time of the injury, there is a rebuttable presumption of total occupational loss of use of the member, subject

to other proof of the claimant's ability to earn the same wages that the claimant was receiving at the time

of the injury. See McGowan, 586 So. 2d at 167.

¶13.    Brenda Weatherspoon had been working at Croft Metals for only four months before developing

carpal tunnel syndrome. Prior to her employment with Croft Metals, she held a variety of other jobs and,

at the time of the workers' compensation hearings, she held a commercial driver's license. She testified that

she intended to find work as a truck driver, and the record before this Court indicates that she has since

found employment as a truck driver. In light of the foregoing analysis, Weatherspoon's claim for benefits

for total occupational loss of use of her arms fails. Because the Commission's findings are supported by

substantial evidence and Weatherspoon failed to establish an industrial disability that exceeds her medical

disability, the decision of the Commission should be reinstated.

                                             CONCLUSION

¶14.    In determining whether the occupational disability due to the permanent partial loss of use of a

scheduled member exceeds the functional or medical loss, the scope of "usual employment" is broader than

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the job held at the time of the injury. Wage-earning capacity is a factor to be considered, and the

Commission should look to the entire factual context to make such a judgment. The Commission's decision

that Weatherspoon had failed to establish an industrial or occupational disability that exceeds the medical

disability set by her physician was proper and should be reinstated. The Court of Appeals erred in holding

that Weatherspoon was entitled to benefits for the total loss of use of a scheduled member merely because

she was unable to return to her employment with Croft Metals. Accordingly, the judgment of the Court of

Appeals is reversed, and the decision of the Commission is reinstated.

¶15.    THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED.

       PITTMAN, C.J., SMITH, P.J., WALLER AND COBB, JJ., CONCUR. GRAVES,
J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. McRAE, P.J., DISSENTS
WITH SEPARATE WRITTEN OPINION JOINED BY DIAZ AND EASLEY, JJ.


        McRAE, PRESIDING JUSTICE, DISSENTING:

¶16.    I dissent to the majority's finding that Brenda Weatherspoon is not entitled to workers'

compensation benefits for having suffered a total occupational loss of her arms due to carpal tunnel

syndrome. I would affirm the Court of Appeals.

¶17.    The majority places emphasis on newly presented evidence which shows Weatherspoon has

obtained employment as a truck driver. Her current employment status was not before the Commission

and is not part of the original record for which this Court is called upon to review. Her current job and

income should not matter. At the time this case was before the Commission for review, Weatherspoon was

without employment and had no income. This Court has held that the applicable standard of review is as

follows:




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       Our standard of review of workers' compensation cases is well established. If the
       Commission's finding of fact and order are supported by substantial evidence, then we are
       bound by them even though we as fact finder would have been convinced otherwise.

Spann v. Wal-Mart Stores, Inc., 700 So.2d 308, 311 (Miss. 1997) (citing Fought v. Stuart C. Irby

Co., 523 So.2d 314, 317 (Miss. 1988)). Additionally, the Court of Appeals has stated the standard of

review as follows:

       The Workers' Compensation Commission sits as the "ultimate finder of facts" in deciding
       compensationcases, and therefore, "its findings are subject to normal, deferential standards
       upon review." We hold that judicial review of findings of the Commission extends to a
       determination of whether they are clearly erroneous. And a finding is clearly erroneous
       when, although there is some slight evidence to support it, the reviewing court on the entire
       evidence is left with the definite and firm conviction that a mistake has been made by the
       Commission in its findings of fact and in its application of the Act.

Good Earth Dev., Inc. v. Rogers, 800 So.2d 1164, 1166 (Miss. Ct. App. 2001) (quoting J.R.

Logging v. Halford, 765 So.2d 580, 583 (Miss. Ct. App. 2000) (other citations omitted)). "The

commission is the agency empowered to apply the statutory scheme created for workplace injuries, and

within broad limits their view on the evidence is binding." City of Laurel v. Blackledge, 755 Fo.2d

573, 576 (Miss. Ct. App. 2000) (citing Smith v. Jackson Constr. Co., 607 So.2d 1119, 1124 (Miss.

1992)). As this Court and the Court of Appeals have found, review of Commission findings is limited to

the evidence presented before the Commission. Here, the Court of Appeals correctly applied the law to

the Commission's findings based on the evidence presented, and this Court should not disturb the Court

of Appeals' judgment.

¶18.   Furthermore, does this Court want to discourage and punish those who seek to obtain employment

despite their disability? Weatherspoon did exactly what the Workers' Compensation Act and precedent

encourage her to do. She sought new employment. This Court should not punish her efforts by now



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denying her disability benefits, especially since she may soon be forced to leave the truck driving profession

once her carpal tunnel syndrome begins to worsen.

¶19.    For these reasons, I dissent.

        DIAZ AND EASLEY, JJ., JOIN THIS OPINION.




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