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Mueller Industries, Inc. v. Waits

Court of Appeals of Mississippi

April 9, 2019

MUELLER INDUSTRIES, INC. AND STONINGTON INSURANCE COMPANY APPELLANTS
v.
SHANNON WAITS APPELLEE

          DATE OF JUDGMENT: 02/08/2018

          MISSISSIPPI WORKERS' COMPENSATION COMMISSION

          ATTORNEY FOR APPELLANTS: DAVID B. McLAURIN

          ATTORNEY FOR APPELLEE: YANCY B. BURNS

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

          CARLTON, P.J.

         ¶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 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 operator[2] 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 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 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 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 ...


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