OF JUDGMENT: 10/12/2017
WORKERS' COMPENSATION COMMISSION
ATTORNEY FOR APPELLANT: FLOYD E. DOOLITTLE
ATTORNEY FOR APPELLEE: RICHARD LEWIS YODER JR.
GRIFFIS, P.J., FAIR AND GREENLEE, JJ.
Kenneth Nixon suffered a work-related injury within the
course and scope of his employment with Howard Industries.
Following a hearing, the administrative judge found Nixon had
incurred a loss of wage-earning capacity and awarded him
permanent partial-disability benefits. The administrative
judge's findings and award were adopted by the
Mississippi Workers' Compensation Commission. The sole
issue on appeal is whether the Commission erred in its
computation of Nixon's disability benefits. Because the
Commission failed to use Nixon's stipulated pre-injury
weekly wage in its calculation, we reverse and render.
On August 27, 2011, Nixon was working as an assembler at
Howard Industries when he injured his back. At the hearing,
both parties stipulated that Nixon's average weekly wage
was $645.40-considerably more than what he would make in a
40-hour work week at his hourly rate of $12.26. The record
indicates that the stipulated figure included regular
Nixon kept working at Howard Industries after the accident
and was still working there at the time of the hearing. Since
2011, Nixon has received two increases in his hourly wage as
a result of union negotiations-a total increase of $0.70 per
hour since the accident, to $12.96 an hour.
Nixon testified that, since the injury, his work at Howard
Industries has continued to cause pain in his back. He has
received injections, prescription pain medication, and has
had work done on the nerves in his back. Nixon has been
treated by several doctors, but predominantly by Dr. Joe
Leigh, an anesthesiologist and pain management specialist.
Dr. Leigh placed Nixon under restrictions in 2012, limiting
him to lifting 40 pounds occasionally. In 2016, Dr. Leigh
reduced the limit to 20 pounds, and Nixon is now unable to do
most of his former work.
In April 2016, Nixon met with Bruce Brawner, a vocational
rehabilitation expert. Brawner testified that Nixon lost
access to five of the six pre-injury occupations for which he
was qualified, an 83% total loss of access. Brawner testified
that Nixon suffered a 53% loss of access based on his current
conditions. Brawner added that Nixon could compete in the
open labor market based on the light-duty levels he had been
assigned. He opined that Nixon should be able to earn $8.96
per hour on the open labor market. Assuming a 40-hour work
week, Nixon's weekly salary would be $358.40.
Following the hearing, the administrative judge found that
Nixon had suffered a loss of wage-earning capacity. But
instead of using Nixon's stipulated pre-injury weekly
wage of $645.40 in calculating Nixon's benefits, the
administrative judge used $490.40, which she arrived upon by
assuming a 40-hour work week at his pre-injury hourly rate of
$12.26. As a result, the administrative judge ordered Howard
Industries to pay permanent partial-disability benefits in
the amount of $88.27 per week, continuing for 450 weeks.
Pursuant to the statute, that figure is two-thirds of the
difference between $490.40 and $358.40.
"The scope and standards of review for workers'
compensation cases are well-established." Short v.
Wilson Meat House LLC, 36 So.3d 1247, 1250 (¶16)
(Miss. 2010). As an appellate court, we review the decision
of the Commission, not that of the administrative judge.
"This Court's review is limited to determining
whether the Commission's decision was supported by
substantial evidence, was arbitrary and capricious, was
beyond the scope or power of the agency to make, or violated
. . . constitutional or statutory rights. . . . [T]he
Commission is the ultimate fact-finder and judge of the
credibility of witnesses; therefore, we may not reweigh the
evidence that was before the Commission." Pulliam v.
Miss. State Hudspeth Reg'l Ctr., 147 So.3d 864, 868
(¶16) (Miss. Ct. App. 2014) (citations and internal
quotation marks omitted). "If an administrative
agency's decision is not based on substantial evidence,
it necessarily follows that the ...