        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                               NO. 2017-WC-01396-COA

ROB HARRIS                                                                  APPELLANT

v.

STONE COUNTY BOARD OF SUPERVISORS                                           APPELLEES
AND MISSISSIPPI PUBLIC ENTITY WC TRUST

DATE OF JUDGMENT:                          10/03/2017
TRIBUNAL FROM WHICH                        MISSISSIPPI WORKERS’ COMPENSATION
APPEALED:                                  COMMISSION
ATTORNEY FOR APPELLANT:                    YANCY B. BURNS
ATTORNEY FOR APPELLEE:                     WALTER J. EADES
NATURE OF THE CASE:                        CIVIL - WORKERS’ COMPENSATION
DISPOSITION:                               REVERSED AND RENDERED - 09/25/2018
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE LEE, C.J., BARNES AND WESTBROOKS, JJ.

       LEE, C.J., FOR THE COURT:

¶1.    In this appeal we must determine whether the Mississippi Workers’ Compensation

Commission (Commission) erred when it found that Rob Harris was entitled to permanent

partial disability benefits rather than permanent total disability benefits following a work-

related injury to his left lower extremity. Finding the Commission’s decision was not

supported by substantial evidence, we reverse the Commission’s decision, and reinstate the

decision of the Administrative Judge (AJ).

                       FACTS AND PROCEDURAL HISTORY

¶2.    On May 29, 2012, Harris suffered a left-knee injury while at work with Stone County.

Prior to the work-related injury, Harris had been employed by the County for eleven years
cutting grass, keeping up the county buildings, and performing custodial duties. After the

injury, Harris underwent multiple surgeries to his left leg and reached maximum medical

improvement (MMI) in August 2016. Harris underwent a functional capacity exam (FCE)

that showed he was “able to work full time and perform [duties while] sitting frequently and

standing occasionally throughout the workday.” The FCE recommended that Harris receive

a thirty-one percent impairment rating to the left lower extremity. These results and

recommendations were adopted by Dr. Robert Dews, Harris’s treating physician, at the time

he opined Harris had reached MMI.

¶3.    After reaching MMI, Harris inquired with the County about the possibility of

employment that was less physically demanding. The County responded that there were no

positions available within Harris’s physical limitations. Harris was fifty years old, had

earned a high-school diploma, but had no vocational training or clerical or office-job

experience. Harris’s work history prior to employment for the County included working on

an assembly line at a plywood plant and cutting grass and custodial duties at a water park in

Wiggins, Mississippi.

¶4.    In an “Initial Vocational Evaluation and Labor Market Survey” dated November 15,

2016, Kathy Smith, a certified vocational-rehabilitation counselor, opined on behalf of the

County that Harris had “the ability to be employed in a very limited number of occupations

in and around his current geographical area.” Kathy identified seven “potential employment

opportunities” paying between $7.25 and $10.00 per hour that were sedentary in nature for

which Harris could apply. One month later, Kathy identified another five employment



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opportunities in a report dated December 14, 2016. Harris applied for these positions from

the report, as well as a several other positions, and registered with the WIN Job Center, but

he was unable to secure employment through these efforts. Harris’s vocational expert,

Ronnie Smith, testified by deposition that Harris would have a difficult time securing

employment.

¶5.    The County admitted that Harris had sustained a compensable injury. At a hearing

before the AJ, the parties stipulated that (1) Harris sustained a work-related injury to his left

knee on or about May 29, 2012; (2) his average weekly wage at the time of the work-related

injury was $469.20; (3) there were no issues remaining to be decided regarding the

reasonableness and necessity of the medical treatment Harris had received; (4) there were no

remaining issues to be decided regarding the existence and extent of temporary disability

benefits; and (5) Harris reached MMI on August 18, 2016. The only issue before the AJ was

“the existence and extent of permanent disability attributable to Harris’[s] work-related

injury.” The AJ determined that Harris was permanently and totally disabled and entitled to

permanent total disability benefits pursuant to Mississippi Code Annotated section

71-3-17(a) (Rev. 2011) of $312.82 beginning May 30, 2012, and continuing for a period of

450 weeks as compensation for Harris’s work-related disability.

¶6.    The County appealed the decision to the Commission, which reversed the AJ’s finding

that Harris was permanently and totally disabled and instead found that Harris was entitled

to permanent partial disability benefits under section 71-3-17(c) of $312.82 beginning

August 18, 2016, and continuing for a period of 175 weeks. Harris now appeals, arguing that



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(1) the County failed to rebut his prima facie showing of permanent total disability, and (2)

he met his burden to establish permanent total disability. We address Harris’s issues in turn

and include additional facts as relevant to the discussion.

                                STANDARD OF REVIEW

¶7.    “It is well-settled law in this State that the Commission is the ultimate finder of fact

in workers’ compensation cases, and where substantial credible evidence supports the

Commission’s decision, then, absent an error of law, the decision must stand without judicial

interference.” Logan v. Klaussner Furniture Corp., 238 So. 3d 1134, 1138 (¶11) (Miss.

2018). However, this Court will not hesitate to reverse the Commission’s decision “where

findings of facts are unsupported by substantial evidence, matters of law are clearly

erroneous, or the decision was arbitrary and capricious.” Bennett v. Miss. State Dep’t of

Health, 211 So. 3d 773, 776 (¶8) (Miss. Ct. App. 2016).

                                       DISCUSSION

¶8.    Harris claims that the Commission erred when it reversed the AJ’s finding that he was

permanently totally disabled, and instead found that Harris suffered permanent partial loss

to a scheduled member. Specifically, he argues that the County failed to rebut his prima facie

showing of permanent total disability and further argues he established he was permanently

totally disabled.

¶9.    “A worker injured in the course and scope of [his] employment is entitled to

compensation to the extent that he has been incapacitated to earn wages.” Lifestyle

Furnishings v. Tollison, 985 So. 2d 352, 359 (¶18) (Miss. Ct. App. 2008) (internal quotation



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mark omitted) (citing Marshall Durbin Inc. v. Hall, 490 So. 2d 877, 880 (Miss. 1986)). The

claimant bears the burden of proving the existence of a disability and its extent. Id. at (¶21).

“The order of proof is subject to a burden-shifting scheme.” Id.

¶10.   “To establish a prima facie case for permanent total disability, the claimant has the

burden to show he has sought and been unable to find work in the same or other

employment.” Howard Indus. Inc. v. Satcher, 183 So. 3d 907, 912 (¶14) (Miss. Ct. App.

2016) (internal quotation marks omitted). “The claimant can also establish a prima facie case

for total disability if, after reaching MMI, the claimant reports back to the employer for work

and the employer refuses to reinstate or rehire him.” Id. (internal quotation mark omitted).

¶11.   In the present case, it is undisputed by the parties that Harris suffered a compensable

work-related injury to his left lower extremity on May 29, 2012. The parties stipulated that

Harris reached MMI on August 18, 2016. The record shows that after reaching MMI, Harris

inquired with the County about the possibility of employment that was less physically

demanding. The County responded that there were no positions available within Harris’s

physical limitations. As such, Harris established a prima facie case of total disability. At this

point, the burden then shifted to the County to rebut the presumption of total disability by

showing that Harris only suffered a partial disability or no loss of wage-earning capacity.

Lifestyle Furnishings, 985 So. 2d at 360 (¶21).

¶12.   The Commission found that the County successfully rebutted the presumption of total

disability, citing that Harris “was released to sedentary duty for up to eight (8) hours per

day,” and “the vocational expert testimony identifying several jobs which [Harris] is qualified



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to perform that earn $7.25 to $10.00 per hour.” This evidence does not, however, support

a finding that the County successfully rebutted the prima facie showing of total disability, but

rather, supports Harris’s contention that he sustained permanent total disability. We discuss

the issue below.

¶13.   Once a claimant makes a prima facie showing of total disability as Harris did, the

burden shifts to the employer to rebut or refute the claimant’s evidence. Lott v. Hudspeth

Ctr., 26 So. 3d 1044, 1049 (¶15) (Miss. 2010). Rebuttal is accomplished “by showing that

the claimant only suffered a partial disability or no loss of wage-earning capacity.” Lifestyle

Furnishings, 985 So. 2d at 360 (¶22). “The employer may present evidence (if any) showing

that the claimant’s efforts to obtain other employment were a mere sham, or less than

reasonable, or without proper diligence.” Id. “The employer may accomplish this by setting

forth facts showing that suitable work was available to the claimant.” Id. “Factors which

should be considered in determining loss of wage-earning capacity include the amount of

education and training which the claimant has had, his inability to work, his failure to be

hired elsewhere, the continuance of pain, and any other related circumstances.” Id. at (¶25)

(internal quotation mark omitted).

       In assessing the reasonableness of a claimant’s job search, relevant factors for
       consideration are: the economic and industrial aspects of the local community,
       the jobs available in the community and surrounding area, the claimant’s
       general educational background, including work skills, and the particular
       nature of the disability for which compensation is sought.

Id. (internal quotation mark omitted).

¶14.   The record showed that Harris was fifty years old with no vocational training past high



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school. His entire employment history was limited to custodial and maintenance work,

including with the County for the past eleven years. It is undisputed that due to Harris’s

work-related injury, he was unable to return to the same type of employment he had

previously occupied. Harris applied for all of the jobs listed by the County’s vocational

expert, as well as other jobs, and was not hired. Additionally, all of the jobs listed by the

County’s vocational expert required clerical or office skills, which the evidence showed

Harris did not possess. The range of pay for these potential employment opportunities, which

Harris did not qualify for by education or training, was less than his pre-injury earnings, even

at the highest end of the range. The County’s vocational expert admitted that Harris’s ability

to be employed in and around his geographical area was very limited and that he should

“participate in retraining or further education to better qualify for sedentary employment.”

Harris’s vocational expert opined that it was unlikely that Harris could secure employment.

The medical testimony showed that Harris had sustained permanent impairment with Dr.

Dews opining Harris would “no longer be able to be employed in any sort of long-term job

that would require any significant physical demands.”

¶15.   We find that the Commission’s decision that the County rebutted the prima facie

showing of total disability was not supported by substantial evidence in the record. Further,

there is not substantial evidence in the record to support a finding that Harris suffered only

a permanent partial disability or no loss of wage-earning capacity.              As such, the

Commission’s decision is reversed, and the AJ’s decision, which was supported by

substantial evidence, is reinstated.



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¶16.   REVERSED AND RENDERED.

    IRVING AND GRIFFIS, P.JJ., BARNES, FAIR, WILSON, GREENLEE,
WESTBROOKS AND TINDELL, JJ., CONCUR. CARLTON, J., DISSENTS
WITHOUT SEPARATE WRITTEN OPINION.




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