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Hudspeth Regional Center v. Mitchell

Court of Appeals of Mississippi

April 30, 2019

HUDSPETH REGIONAL CENTER AND MISSISSIPPI STATE AGENCIES WORKERS' COMPENSATION TRUST APPELLANTS
v.
LINDA MITCHELL APPELLEE

          DATE OF JUDGMENT: 02/15/2018

          TRIBUNAL FROM WHICH APPEALED: MISSISSIPPI WORKERS' COMPENSATION COMMISSION.

          ATTORNEYS FOR APPELLANTS: JOSEPH T. WILKINS III NICHOLAS DENSON GARRARD.

          ATTORNEY FOR APPELLEE: STEVEN HISER FUNDERBURG.

         EN BANC.

          J. WILSON, P.J.

         ¶1. 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 Hudspeth.

         ¶2. 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)).

         ¶3. 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.[1] 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.)

         ¶4. 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 case again.

         ¶5. 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.

         FACTS AND PROCEDURAL HISTORY

         ¶6. 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 free time."

         ¶7. 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.

         ¶8. 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.

         ¶9. 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.

         ¶10. 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.

         ¶11. 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 she] didn't."

         ¶12. 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.

         ¶13. 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).

         ¶14. 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.

         ¶15. 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.

         ¶16. 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).

         ¶17. The Supreme Court granted certiorari and reversed 8-0, with one justice not participating.[2] 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 (¶17)). The

         Supreme Court held that the Omnova presumption applies here because "Mitchell's case is no ...


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