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Harris v. Stone County Board of Supervisors

Court of Appeals of Mississippi

September 25, 2018

ROB HARRIS APPELLANT
v.
STONE COUNTY BOARD OF SUPERVISORS AND MISSISSIPPI PUBLIC ENTITY WC TRUST APPELLEES

          DATE OF JUDGMENT: 10/03/2017

          ATTORNEY FOR APPELLANT: YANCY B. BURNS

          ATTORNEY FOR APPELLEE: WALTER J. EADES

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

          LEE, C.J.

         ¶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 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 (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 (ΒΆ11) (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 ...


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