HUDSPETH REGIONAL CENTER AND MISSISSIPPI STATE AGENCIES WORKERS' COMPENSATION TRUST APPELLANTS
LINDA MITCHELL APPELLEE
OF JUDGMENT: 02/15/2018
TRIBUNAL FROM WHICH APPEALED: MISSISSIPPI WORKERS'
ATTORNEYS FOR APPELLANTS: JOSEPH T. WILKINS III NICHOLAS
ATTORNEY FOR APPELLEE: STEVEN HISER FUNDERBURG.
Linda Mitchell was a state employee and a nurse supervisor at
Hudspeth Regional Center. She injured her back at work, but
about six weeks later she returned to work fulltime at her
same position with the same duties and no accommodations. She
continued to work at Hudspeth for seven months thereafter
until she was terminated for cause for refusing to see a
patient under her care. Mitchell admits that she should not
have refused to see the patient, and she did not exercise her
right as a state service employee to appeal her termination.
Instead, she filed a workers' compensation claim against
The administrative judge (AJ) and the Workers'
Compensation Commission initially found that Mitchell had
sustained a total loss of wage-earning capacity and awarded
her permanent total disability benefits. However, our Supreme
Court reversed and remanded. The Supreme Court held that the
AJ, the Commission, and this Court all erred by failing to
apply a rebuttable presumption that Mitchell sustained no
loss of wage-earning capacity. That presumption arose as a
matter of law because Mitchell had returned to her same
position with the same or greater earnings as prior to her
injury. Hudspeth Reg'l Ctr. v. Mitchell, 202
So.3d 609, 610-11 (¶¶7-9) (Miss. 2016) (citing
Omnova Solutions Inc. v. Lipa, 44 So.3d 935, 941
(¶17) (Miss. 2010)).
On remand, the AJ entered a new order that argued at length
that the Supreme Court's decision was wrong. The AJ then
reached the same result as before, finding that Mitchell
sustained a total loss of wage-earning capacity and awarding
permanent total disability benefits. The full Commission
affirmed the AJ's order in part and
"incorporate[d]" the AJ's "findings"
in part. However, the Commission "amended" the
AJ's order based on the Commission's own finding that
Mitchell is "capable of performing minimum-wage
employment" and thus had sustained a less-than-total
loss of wage-earning capacity. The Commission found that
"the evidence as a whole rebuts the presumption that
[Mitchell] sustained no permanent disability due to her
brief return to an accommodated position before reaching
maximum medical improvement." (Emphasis added.) The
Commission then held that Mitchell "successfully
rebutted the presumption that she is entitled to no permanent
disability as a result of her brief return to
accommodated employment." (Emphasis added.)
The Commission's description of the applicable
presumption includes a clear error of fact: Mitchell did not
return to an "accommodated position" or
"accommodated employment." Rather, Mitchell
testified that six weeks after her injury, she returned to
work at Hudspeth full-time with the same job duties and
expectations as before and with no accommodations. Indeed, in
this appeal, Mitchell does not attempt to defend the
Commission's misstatement of the facts. We cannot ignore
the Commission's factual error, as it improperly
minimizes the Supreme Court's clear mandate and holding.
This would be reason enough for us to reverse and remand the
However, we also conclude that Mitchell failed to present
substantial evidence to rebut the presumption that she
sustained no loss of wage-earning capacity. For that reason,
the decision of the Commission must be reversed and rendered.
AND PROCEDURAL HISTORY
Mitchell began working as a nurse after she obtained her
associate degree in nursing in 1991. She began working for
Hudspeth in 2003 as a registered nurse supervisor. Mitchell
dispensed medications and provided care to individuals with
intellectual or developmental disabilities who lived in the
residential "cottages" on Hudspeth's campus.
Mitchell supervised the second shift, which ran from 3 p.m.
to 11 p.m. However, Hudspeth allowed Mitchell to complete her
forty-hour work week in three days by starting early and
working fourteen-hour days. Mitchell testified that her work
as a nurse supervisor at Hudspeth was "easy"
compared to other nursing positions she had held because she
was not expected to lift patients, and she had "a lot of
Mitchell injured her back while at work in 2009. She returned
to work after the injury and testified that she had fully
recovered. However, Mitchell's medical records from 2009
show that she reported "relentless" and
"chronic" low-back pain "since the 1990s"
and "several" prior "back injuries."
Subsequent records describe "degenerative disease"
in her lower back and show that she received injections and
continued to take medicines for her back pain. In her
testimony in this case, Mitchell acknowledged that she had
experienced back pain on and off for years.
In 2010, Mitchell was diagnosed with cancer. She underwent
surgery followed by chemotherapy and radiation treatments.
Mitchell testified that her treatments were successful,
although she continued to take a chemotherapy pill that
caused some fatigue. She also testified that she continued to
suffer from lymphedema due to the removal of her lymph nodes
during her cancer treatments. This condition causes painful
swelling in Mitchell's right arm that worsens when she
uses the arm.
On September 24, 2011, Mitchell fell and injured her back at
work. While pulling a medication cart into a patient's
room, she slipped and fell and landed hard on her buttocks.
She was taken to the emergency room and told to follow up
with Dr. Morris the following Monday. Dr. Winklemann also
treated Mitchell before Dr. Morris released her to return to
work on November 6, 2011. Mitchell was sixty-three years old
at the time of her injury and subsequent return to work.
Mitchell testified she returned to the "same job"
that she had performed prior to her injury. She had the same
duties, expectations, and pay as before. She also continued
to work full-time and fourteen-hour days. She did not
request, nor was she given, any sort of accommodation.
Mitchell testified that there is no such thing as "light
duty" at Hudspeth. She testified that she
"struggled" at times but "felt like [she] was
doing [her] job properly" and got her "job
done." Mitchell testified that "[n]othing changed
about what [she] was expected to do" when she returned
to work at Hudspeth after her injury. Mitchell continued
performing all of her job duties without incident or
accommodation for six months.
On May 5, 2012, at approximately 10:15 p.m., Mitchell was
working at Hudspeth when she received a call from a
supervisor at the Dogwood Cottage, one of the residential
cottages on Hudspeth's campus. The supervisor asked
Mitchell to examine a patient for a possible case of
ringworm. Mitchell responded that "she had just left the
[cottage] and . . . would not be coming back." Mitchell
told the supervisor to "write up the incident however
she wanted" and that another nurse could see the patient
the following morning. Because Mitchell refused to see the
patient, the supervisor had to call another nurse to examine
the patient. In her testimony in this case, Mitchell admitted
that she "should have gone back to the [cottage], [but
On June 4, 2012, Mitchell received "pre-termination
notice" of a recommendation to terminate her employment.
Mitchell's refusal to see the patient at the Dogwood
Cottage was the primary reason for her recommended
termination. Mitchell's conduct was deemed a "Group
III offense," which is the "most serious"
category of offense under State Personnel Board regulations.
Miss. Admin. Code § 27-110:9.1(C) (2012). Hudspeth also
found that Mitchell was "rude and unprofessional in
[her] conversation" with the cottage supervisor. The
notice also listed approximately thirty reprimands that
Mitchell had received for less serious Group I and Group II
offenses from 2003 to 2009. The notice advised that Mitchell
could respond in writing or orally at a pre-termination
conference with Hudspeth's director. On June 12, 2012,
Mitchell attended her pre-termination conference. On June 22,
2012, Hudspeth terminated Mitchell's employment for the
reasons given in her pre-termination notice. Mitchell was
informed of her right as a state service employee to appeal
her termination to the State Employee Appeals Board. However,
Mitchell chose not to appeal. She testified that she did not
think an appeal "would do any good," and she did
not want to pay the $100 filing fee. Instead, in October
2012, she filed a workers' compensation claim.
After she was fired at Hudspeth, Mitchell conducted only a
limited search for new employment. She testified that she
applied for four nursing jobs, three by online applications,
and did not receive "any callbacks." She testified
that, "of course, the first question" on a job
application is "why you left your last job."
Mitchell agreed that the reasons for her termination at
Hudspeth might cause other employers not to want to hire her.
Mitchell also testified that it was "between difficult
and impossible" for her to find a new nursing job
because she has only an associate degree in nursing (ADN),
and today most employers require or prefer a bachelor of
science degree in nursing (BSN).
In November 2012, Dr. Winkelmann wrote that Mitchell was
"at MMI" with a "3% partial impairment to the
body as a whole." In January 2013, at the request of
Mitchell's attorney, Dr. Winkelmann referred Mitchell for
a functional capacity evaluation (FCE). The FCE was conducted
in February 2013 and is described in more detail below.
Mitchell's workers' compensation case proceeded to a
hearing on the merits on April 24, 2014. At the hearing,
Mitchell testified that she would have continued working at
Hudspeth had she not been terminated. She testified that she
would return to the job if it was offered to her and that she
was physically able to do the job.
Following the hearing, the AJ found that Mitchell had
experienced a total loss of wage-earning capacity as a result
of her September 2011 injury. Therefore, the AJ awarded
Mitchell permanent total disability benefits at the maximum
rate of $427.20 per week for 450 weeks. The full Commission
affirmed the AJ's order, and this Court affirmed the
Commission by an evenly divided Court. Hudspeth Reg'l
Ctr. v. Mitchell, 202 So.3d 617 (Miss. Ct. App. 2015),
rev'd, 202 So.3d 609 (Miss. 2016).
The Supreme Court granted certiorari and reversed 8-0, with
one justice not participating. Mitchell, 202 So.3d at
611 (¶¶9-10). The Supreme Court held that the AJ,
the Commission, and this Court erred by failing to apply a
rebuttable presumption of no loss of wage-earning capacity.
Id. The Supreme Court followed its prior decision in
Omnova, supra. There, the Court held that
"where an injured employee returns to work and receives
the same or greater earnings as those prior to his injury,
there is created a rebuttable presumption that he has
suffered no loss in his wage-earning capacity."
Mitchell, 202 So.3d at 610 (¶7) (quotation
marks omitted) (quoting Omnova, 44 So.3d at 936
Court held that the Omnova presumption applies here
because "Mitchell's case is no ...