IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2020-WC-01095-COA
RDJJ SERVICES INC. AND ACCIDENT FUND APPELLANTS GENERAL INSURANCE COMPANY
v.
MARGARITO RIVERA APPELLEE
DATE OF JUDGMENT: 09/02/2020 TRIBUNAL FROM WHICH MISSISSIPPI WORKERS’ COMPENSATION APPEALED: COMMISSION ATTORNEYS FOR APPELLANTS: P. SHARKEY BURKE BRADLEY ALLEN SHAW ATTORNEYS FOR APPELLEE: JAMES KENNETH WETZEL GARNER JAMES WETZEL NATURE OF THE CASE: CIVIL - WORKERS’ COMPENSATION DISPOSITION: AFFIRMED - 06/08/2021 MOTION FOR REHEARING FILED: MANDATE ISSUED:
BEFORE CARLTON, P.J., LAWRENCE AND SMITH, JJ.
SMITH, J., FOR THE COURT:
¶1. RDJJ Services Inc. (RDJJ) and its insurance carrier, Accident Fund General Insurance
Company (Accident Fund), appeal the Mississippi Workers’ Compensation Commission’s
(Commission) order finding that Margarito Rivera suffered a 100% industrial loss of use of
his left upper extremity and awarding permanent partial disability benefits to Rivera.
¶2. On appeal, RDJJ argues the Commission erred by (1) finding a 100% industrial loss
of use when the medical evidence showed that Rivera was capable of returning to heavy duty
work but for his status as an undocumented immigrant, and (2) denying RDJJ and Accident
Fund’s motion in limine to exclude Rivera’s job search. After review, we find no error and affirm the Commission’s order.
FACTS AND PROCEDURAL HISTORY
¶3. Rivera came to Mississippi in 2002 when he was hired by RDJJ as a “chicken catcher”
and remained employed in this position for the same company from 2002 until 2016. Rivera’s
job as a “chicken catcher” consisted of catching chickens by hand and throwing them into
a box. Rivera picked up six to eight chickens at a time and caught between 48,000 and
50,000 chickens per week. Rivera’s uncontradicted testimony was that RDJJ paid him
weekly, initially in cash but then later by check, based on the quantity of chickens he caught
that week and did not take out taxes or other withholdings to his knowledge. Rivera also
testified that when he was hired, the employer gave him a Social Security number to use
when he was working for them.
¶4. On September 1, 2016, Rivera suffered injuries to his left shoulder and arm while he
was grabbing and throwing chickens as part of his job for RDJJ. After learning of Rivera’s
arm pain, RDJJ instructed him to go to STATCare, an emergency clinic. Dr. Andrew Watson
performed x-rays, prescribed physical therapy, ordered an MRI, and referred Rivera to an
orthopaedic surgeon. Rivera then presented to Dr. Lawrence Line at Southern Bone & Joint,
where he was diagnosed with various left upper extremity ailments and underwent three
different surgeries between November 2016 and August 2017. At Dr. Line’s instruction,
Rivera simultaneously went to physical therapy as well. Dr. Line ordered an updated MRI
and an EMG/nerve study after Rivera continued to experience pain in his left shoulder and
2 arm, but neither test provided an explanation for Rivera’s pain. Rivera presented to Dr. James
Hurt on January 23, 2018, for a second opinion. Dr. Hurt stated that Rivera had passive range
of motion, physical therapy was not necessary, injections were not warranted, and Rivera’s
condition was not surgical.
¶5. On April 3, 2018, Rivera underwent a functional capacity examination (FCE) to
determine his ability to perform specific tasks related to his job. Based on this FCE, Dr. Line
placed Rivera at maximum medical improvement (MMI) on May 7, 2018, with an 18% upper
extremity impairment and sedentary restrictions. Rivera then presented to Dr. George
Salloum at Bienville Orthopaedics for an additional medical opinion. Dr. Salloum diagnosed
Rivera with complex regional pain syndrome of his left upper limb, noted a limited range of
motion and continued pain, and recommended a pain management program, which was
completed under the direction of Dr. Kelly Coleman.
¶6. Rivera filed a petition to controvert with the Commission on July 24, 2018, claiming
he suffered injuries to his left shoulder, left arm and hand, and neck. RDJJ answered on
August 8, 2018, admitting that Rivera suffered injuries while working as a chicken catcher
for RDJJ, but disputing the nature and extent of Rivera’s injury. Rivera then filed a motion
for medical treatment and payment of compensation on October 3, 2018, requesting the
authority to choose his own physician and seeking payment of all compensation benefits.
RDJJ responded on October 5, 2018, objecting to Rivera’s request to choose a second
physician and suggesting an evaluation by a court-appointed independent medical evaluator
3 instead.
¶7. On December 10, 2018, the administrative judge (AJ) ordered an independent medical
evaluation, declaring that Rivera could undergo a comprehensive evaluation by the doctor
he had chosen, requesting that the chosen doctor provide a written narrative, and ordering
RDJJ to pay the expenses of Rivera’s evaluation. Thereafter, on January 9, 2019, RDJJ
moved to exclude Rivera’s job search evidence, claiming Rivera’s job search was fraudulent
and irrelevant because he was not legally eligible to work in the United States.
¶8. The AJ heard RDJJ’s motion to exclude and Rivera’s petition to controvert on
February 12, 2020, during which Rivera was the only person to testify. The AJ reviewed
deposition testimony from Rivera and Dr. Line; medical reports from STATCare, Dr. Line,
Dr. Hurt, Dr. Salloum, and Dr. Coleman; Rivera’s FCE; reports from physical therapy;
evidence relating to Rivera’s job search; Rivera’s wage statement; and Rivera’s medical
records. Specifically, the AJ’s findings were based on Rivera’s “medical impairment rating
and restrictions and limitations and his inability to return to his former job and the substantial
acts of this employment and the employer’s refusal to rehire him.”
¶9. On May 15, 2020, the AJ entered an order denying RDJJ’s motion to exclude Rivera’s
job search information and addressed the existence, nature, and extent of Rivera’s disability.
In denying RDJJ’s motion to exclude, the AJ determined:
[T]he claimant may be unable to find work due to his immigration status, but his immigration status did not arise out of and in the course of his employment or follow as a natural consequence of his injury. The job search herein is hampered by the claimant’s immigration status, his elementary Mexican
4 education, his lack of communication and language skills and the paucity of jobs in the area of the claimant’s domicile that would be a match for his limited skills and prohibition physically to do jobs outside of the heavy labor market.
¶10. The AJ further found:
The claimant’s job as a “chicken catcher” may be viewed as his usual occupation due to the length of claimant’s tenure at RDJJ Services, Inc. and the fact that this job is viewed in the heavy duty classification, the type of jobs claimant had performed in the past, and all other relevant factors. Further, the employer/carrier did not offer up any evidence to the contrary with their defense that was premised on the fact that the claimant was an illegal alien/immigrant.
¶11. Accordingly, the AJ held that Rivera had “suffered a one hundred percent (100%)
functional loss of use for industrial purposes of the left upper extremity,” and ordered RDJJ
to pay permanent partial disability benefits for two hundred weeks.
¶12. On June 2, 2020, RDJJ and Accident Fund filed a petition for review of decision,
arguing several errors: the designated average weekly wage was contrary to the weight of
credible evidence; the denial of the motion in limine was contrary to law; finding a 100%
occupational loss was contrary to credible evidence and law; and ordering an independent
medical evaluation by Rivera’s chosen doctor was contrary to law. Thereafter, the
Commission entered its order on September 2, 2020, amending the AJ’s calculation of
Rivera’s average weekly wage and compensation rate, but otherwise affirming the AJ’s
order. Aggrieved, RDJJ and Accident Fund appeal.
STANDARD OF REVIEW
¶13. “This Court employs a limited standard when reviewing a workers’ compensation
5 appeal.” Mueller Indus. Inc. v. Waits, 283 So. 3d 1137, 1141 (¶10) (Miss. Ct. App. 2019).
The Commission is the ultimate fact-finder in a workers’ compensation case, and “decisions
by the Commission on issues of fact and credibility” must be given deference. Imperial
Palace Casino v. Wilson, 960 So. 2d 549, 552 (¶9) (Miss. Ct. App. 2006). Where substantial
evidence supports the Commission’s order, we must affirm on appeal. Id. This Court will
reverse only where the Commission’s order was “clearly erroneous and contrary to the
overwhelming weight of the evidence.” Id. Further, “[a] finding is clearly erroneous when,
although there is some slight evidence to support it . . . on the entire evidence[, the reviewing
court] is left with the definite and firm conviction that a mistake has been made by the
Commission in its findings of fact and in its application of the Act.” Barber Seafood Inc. v.
Smith, 911 So. 2d 454, 461 (¶27) (Miss. 2005).
¶14. “A Commission decision that is supported by substantial evidence may not be
overturned even if, were this Court acting as the fact-finder, we would have reached the
opposite conclusion.” Lifestyle Furnishings v. Tollison, 985 So. 2d 352, 358-59 (¶17) (Miss.
Ct. App. 2008). On appeal, “[i]t is not the role of the reviewing court to determine where the
preponderance of evidence lies, when the evidence is conflicting, given that it is presumed
that the Commission as trier of fact has previously determined which evidence is credible and
which evidence is not.” Id.
ANALYSIS
¶15. The first ground on which RDJJ appeals is that the Commission’s award of 100%
6 industrial loss of use of Rivera’s left shoulder is not supported by substantial evidence. RDJJ
alleges three errors in the Commission’s examination of the evidence: illegal employment
as a chicken catcher should not be included in “usual employment”; unreasonable evidence
of a job search due to classification as an undocumented immigrant; and lack of medical
evidence or “other proof” to raise the presumption of total loss of industrial use.
I. “Usual Employment”
¶16. The Mississippi Supreme Court has defined “usual employment” as
broader in scope than the job held at the time of the injury. . . . Usual employment in this context means the jobs in which the claimant has past experience, jobs requiring similar skills, or jobs for which the worker is otherwise suited by his age, education, experience, and any other relevant factual criteria.
Meridian Prof’l Baseball Club v. Jensen, 828 So. 2d 740, 747 (¶20) (Miss. 2002) (citation
omitted). In a subsequent case, the supreme court affirmed the broad scope of “usual
employment” and stated “the Commission should look to the entire factual context to make
such a judgment.” Weatherspoon v. Croft Metals Inc., 853 So. 2d 776, 779 (¶14) (Miss.
2003).
¶17. RDJJ correctly acknowledges that Rivera’s “usual employment” is broader in scope
than the chicken-catcher job he held at the time of his injury and includes jobs requiring
skills similar to his prior employment. But RDJJ argues that Rivera’s job as a chicken catcher
should not be considered his “usual employment” because he was never legally employed in
the United States, even though it was the specific job RDJJ employed him to perform for
7 over a decade at the time of the injury. RDJJ cites Jensen and Weatherspoon in an attempt
to illustrate that, instead, only his legal employment in Mexico working heavy duty, manual
labor jobs constitutes his “usual employment.”
¶18. RDJJ misconstrues the application of the supreme court’s rulings in Jensen and
Weatherspoon. In Jensen, the court found the claimant had not suffered a total occupational
loss of use because he was young, educated, and had found post-injury employment. Jensen,
828 So. 2d at 750 (¶25). The court also found no total occupational loss in Weatherspoon
because the claimant only worked for the employer for a short time prior to the injury, and
the claimant was able to find a job as a truck driver after her injury. Weatherspoon, 853 So.
2d at 779 (¶13). Neither Jensen nor Weatherspoon addressed the necessary legality for a job
to be considered “usual employment.” Accordingly, Jensen and Weatherspoon do not support
RDJJ’s argument for excluding illegal employment. Therefore, RDJJ has failed to cite
relevant caselaw substantiating its argument that only Rivera’s employment in Mexico should
constitute “usual employment.” In a prior workers’ compensation case, this Court “not[ed]
that [the claimant] failed to cite any authority whatsoever in support of her appeal to this
Court” and held, “[t]ypically, an appellant’s lack of authority renders an issue procedurally
barred from review on appeal.” Roberson v. LFI Fort Pierce Inc., 3 So. 3d 788, 789-90 (¶5)
(Miss. Ct. App. 2008); see also J.P.M. v. T.D.M., 932 So. 2d 760, 779 (¶61) (Miss. 2006)
(holding where “[the party] has failed to cite any authority, let alone any relevant authority,
we find that [the party] is procedurally barred from raising [an] issue on appeal”). Because
8 RDJJ has failed to cite relevant authority, we decline to address the issue of whether Rivera’s
“usual employment” includes only his legal employment in Mexico.
¶19. Here, the Commission’s order shows it considered more than Rivera’s job at the time
of the injury and took into consideration the entire factual context of this workers’
compensation claim. The Commission concluded that the
“[c]laimant had been a chicken catcher for fourteen (14) years before the injury; and, prior to that position, the [c]laimant had worked in heavy, unskilled manual labor. Based on the evidence as a whole, we broadly deem the [c]laimant’s usual employment to be chicken catching, poultry work, and/or heavy, unskilled manual labor.”
Thus, the Commission’s decision, which was based on Rivera’s employment as a chicken
catcher, was not clearly erroneous or contrary to the overwhelming weight of the evidence.
II. Rebuttable Presumption of Total Industrial Loss of Use
¶20. RDJJ alleges the Commission erred in finding a 100% industrial loss of use of
Rivera’s left upper extremity for three reasons: he is not restricted to sedentary duty; there
was no “other proof” that he is unable to perform the substantial acts of his usual
employment; and his job search was unreasonable.
A. Restricted to Sedentary Duty
¶21. The Commission found Rivera raised a rebuttable presumption of total industrial loss,
in part, because “the FCE restricts [Rivera] to less than eight hours a day in the sedentary
category work.” RDJJ claims that “there [was] no medical evidence that suggests [Rivera]
has sedentary restrictions[,]” and he has not suffered a 100% loss of industrial use of his left
9 arm. RDJJ argues instead that “the medical evidence shows that [Rivera] will eventually be
able to return to heavy duty jobs other than chicken catcher”; and “[Rivera] ‘is not medically
contraindicated from doing reasonable below[-]shoulder[-]level work at this time.’” RDJJ
points to evidence from the testimony and reports of Dr. Line, from Dr. Hurt’s notes
regarding Rivera’s lack of cooperation, and the lack of medical explanation for Rivera’s pain
complaints to show that classifying Rivera’s work level as sedentary is unwarranted.
¶22. The supreme court has held, “that disability need not be proved by medical testimony
as long as there is medical testimony which will support a finding of disability.” Hall of Miss.
Inc. v. Green, 467 So. 2d 935, 938 (Miss. 1985). This Court has further explained, “[t]he
medical evidence is sufficient if it supports, even if it does not fully prove, a finding of
disability.” Lang v. Miss. Baptist Med. Ctr., 53 So. 3d 814, 822 (¶28) (Miss. Ct. App. 2010).
Therefore, as long as there is medical testimony to support the Commission’s finding that
Rivera is subject to sedentary restriction, this Court must affirm.
¶23. Rivera was injured while working on September 1, 2016, and he presented to Dr. Line
for evaluation and treatment on October 17, 2016. Dr. Line performed several surgeries on
Rivera’s left arm between October 2016 and December 2018. Despite multiple surgeries and
Dr. Line’s attempts to treat Rivera’s injury, Rivera continued to have pain and a lack of
improvement in his shoulder. Rivera’s range of motion and rotator-cuff strength improved
a little over time, but during Rivera’s checkup on November 22, 2017, Dr. Line specifically
noted that Rivera “really made no improvement; [has] not been able to go back to work; [has]
10 not [been] able to meet the function of his job; [and] he continues to have pain and
limitations with motion and stiffness.” Dr. Line opined that there was nothing else he could
do for Rivera and suggested that Rivera seek a second opinion.
¶24. On January 23, 2018, Rivera presented to Dr. Hurt for a second opinion and possible
surgical intervention. Dr. Hurt noted that Rivera “continued to have pain and states that he
cannot go back to work and cannot lift the shoulder and has significant loss of motion and
pain.”
¶25. On April 3, 2018, based on Dr. Line’s referral, Rivera saw Clayton for an FCE to
determine his ability to perform specific job-related tasks. Clayton had Rivera attempt an
array of tasks, such as bilateral lifting and carrying, unilateral lifting and carrying, walking,
reaching, grasping, pinching, squatting, bending, and simulating a wide stance picking up
chickens and throwing to the right. According to her report, Clayton was able to evaluate
Rivera’s ability to perform chicken catcher job-specific tasks to the extent of “wide stance
simulating picking up chickens and throwing to the right.” She observed that Rivera was
“unable to engage in simulated throwing due to level of pain and compromised mechanics,”
and stated that the “[t]ask is placed on an avoid” basis.
¶26. According to Rivera’s FCE, Clayton determined that Rivera had an 18% upper-
extremity impairment for range of motion loss; 11% whole-person impairment; and
“demonstrated the ability to perform 28.8% of the physical demands of his job as a [c]hicken
[c]atcher.” The FCE concluded that Rivera “demonstrated the ability to perform within the
11 SEDENTARY Physical Demand Category based on the definitions developed by the US
Department of Labor and outlined in the Dictionary of Occupational Titles.” But, as Clayton
noted, “[Rivera’s] job as a [c]hicken [c]atcher is classified within the MEDIUM Physical
Demand Category”; and thus his ability to perform “is below his job[’]s demand category.”
The FCE stated that “[Rivera] is unable to work full time because he can only work within
the SEDENTARY physical demand category . . . for up to 5 hours and 17 minutes per day
while taking into account his need to alternate sitting and standing.” Moreover, his initial
“unskilled sedentary occupational base is significantly eroded because he is unable to lift
floor to waist 10 lbs or slightly less, power lift 10 lbs or slightly less, bilateral carry 10 lbs
or slightly less, sit frequently, and sit at least 2 hours at one time.”
¶27. When Rivera returned to Dr. Line’s office post-FCE, Dr. Line noted that Rivera “was
given a sedentary work level with restrictions.” Dr. Line initially stated, “I feel the
restrictions [Rivera] was given were a little bit exaggerated,” and then proceeded to opine
that “the impairment rating, FCE, and work restrictions I think are temporary and will
improve with time back to a fairly high level; however, it just will take time to reach that
point.” Even more significant, in the May 7, 2018 Workers’ Compensation Update report,
Dr. Line specifically wrote, “[P]atient may return to work with restrictions per FCE. . . .
Other Restrictions: MMI Sedentary Work Level. . . . Restrictions per FCE.”
¶28. Seven months later, Rivera went back to Dr. Line because he was “still having pain
in his shoulder and unable to work because of his continued shoulder problems.” Dr. Line
12 observed that Rivera was “able to grip with his hand,” his “[s]trength appear[ed] to still be
good, maybe weak in abduction testing,” but “[i]t [was] hard to tell whether it [was] pain or
actually weakness.” The report notes that after examination, Dr. Line “[thought] he ha[d] a
pain syndrome now that [was] really limiting him more than any structural abnormality.” Dr.
Line concluded that, “[w]ith regards to work, he is able to do whatever he can tolerate at this
point. I think it would be good for him to be allowed to be employed at some level until this
resolves. . . . In my opinion, he is not medically contraindicated from doing reasonable
below[-]shoulder[-]level work at this time.”
¶29. Rivera then presented to the medical staff at Bienville Orthopaedic Specialists LLC
complaining of severe pain in his left shoulder. On May 30, 2019, Dr. Salloum, an
orthopaedic specialist, observed that Rivera “had 5/5 strength for flexion and extension of
the elbow and wrist. He [had] good grip strength.” However, it was the doctor’s “impression
that the [Rivera] likely [had] chronic regional pain syndrome.” Notably, Dr. Salloum did not
address Rivera’s work status or restrictions. Rivera then presented to Dr. Coleman on July
8, 2019, and the report noted that Rivera “report[ed] the pain [had] a throbbing, a shooting,
a stabbing, an aching, a heavy, [and] exhausting . . . quality” and found that his range of
motion had decreased. Notably, Dr. Coleman did not comment specifically on Rivera’s work
restrictions either. On July 11, 2019, Dr. Salloum saw Rivera for a second time, due to
limited range of motion with pain, and concluded there was nothing else he could do to help
Rivera, but Dr. Salloum’s report was silent as to Rivera’s work status. Rivera then presented
13 to Amanda Rayburn, a nurse practitioner, who specifically wrote at the end of her report from
August 8, 2019, “[n]o change in work status.” When Rayburn evaluated Rivera at a follow-
up appointment on November 11, 2019, Rayburn again specifically noted that there was
“[n]o change in work status.”
¶30. As the record indicates, medical evidence from the FCE clearly placed sedentary
restrictions on Rivera. The language within the FCE listed the tasks Rivera was asked to
perform and then explicitly stated that Rivera “demonstrated the ability to perform within the
SEDENTARY Physical Demand Category,” which “is below his job[’]s demand category.”
The FCE explained in detail how Rivera performed each task and analyzed each section and
then delineated the manner and nature of the restrictions that the sedentary category placed
on Rivera’s work level. Additionally, Dr. Line’s report from Rivera’s post-FCE appointment
acknowledged that Rivera was given a sedentary work level and adopted the sedentary work
restrictions as part of the assessment report. The fact that Dr. Line believed the restrictions
were “a little bit exaggerated” and only temporary does not remove or negate the sedentary
work restrictions. Thereafter, when Rivera presented to the Bienville Group in August and
November 2019, Rayburn specifically noted Rivera’s work status had not changed, implying
Rivera was still under the FCE sedentary work-level restrictions. Furthermore, since the
Commission is permitted to consider lay testimony, it is plausible that the Commission found
Rivera’s testimony stating he physically could not use his left arm and could not work to be
contributing evidence of sedentary work-level restrictions.
14 ¶31. This Court recognizes that Dr. Line’s statements within his December 5, 2018 report
could raise doubt as to Rivera’s sedentary restrictions. Dr. Line’s report could be construed
as modifying Rivera’s work level to a level above sedentary by stating that Rivera could “do
whatever he can tolerate at this point.” Nonetheless, Dr. Line stated immediately afterward
that Rivera should “be allowed to be employed at some level” and is not medically prevented
from “below[-]shoulder[-]level work.” Rivera’s sedentary work restrictions as listed in his
FCE did not restrict him from below-shoulder-level work entirely but rather restricted lifting
a certain amount of weight. Thus, there is substantial record support for the Commission’s
findings that Dr. Line had not removed the FCE restrictions and that Rivera was still subject
to a sedentary work level.
¶32. As noted, this Court’s only task is to evaluate whether there is substantial evidence
in the record to support the Commission’s decision without re-evaluating the credibility and
weight of the evidence. A thorough review of the record shows substantial evidence supports
the Commission’s finding that Rivera was restricted to sedentary duty.
B. Ability to Perform Substantial Acts of Usual Employment
¶33. Where a partial loss of use of a scheduled member “causes the worker to be unable
to perform substantial acts of the worker’s usual occupation. . . . the actual occupational
effect of this partial impairment has substantially the same effect as total loss of use of the
member.” John R. Bradley & Linda A. Thompson, Mississippi Workers’ Compensation Law
§ 5:44 (2020 update). In determining “whether the worker has lost all or only part of the use
15 of the member” for disability benefit purposes, “the extent of loss of use of the member in
the worker’s usual occupation is the greatest factor[.]” Id. Thus, it follows that when partial
impairment is in effect a total, permanent loss, “benefits for the permanent injury are not
limited to the proportion of medical or functional impairment of the scheduled[ ]member.”
Id.
¶34. When examining the evidence to “determin[e] the percentage of loss to be assigned
to an injury,” “[t]he Commission is not confined to medical testimony. . . . Lay testimony
may be considered to supplement medical testimony but ‘the probative value of any
witness’[s] testimony is for the fact-finder to determine.’” McGowan v. Orleans Furniture
Inc., 586 So. 2d 163, 167 (Miss. 1991) (citation omitted). The relevant “question in these
cases is the degree of loss of use of the member for wage earning purposes,” and “whether
[the claimant] suffered a 100% industrial loss of use is a question of fact to be determined
from the evidence as a whole.” Id. at 166-67. The supreme court has stated that “[f]actors
which this [c]ourt has considered in determining loss of wage earning capacity include the
amount of education and training which the claimant has had, his inability to work, his failure
to be hired elsewhere, the continuance of pain, and any other related circumstances.” Id. at
167.
¶35. RDJJ alleges that Rivera has not presented evidence that he cannot perform the
substantial acts of his usual employment and cannot prove a total loss of use. RDJJ claims
Rivera told prospective employers that he could only work with one arm even though Dr.
16 Line had not imposed such a restriction; he was offered a post-injury job driving trailers; and
he had minimal pain complaints at his last doctor appointment.
¶36. As authority for its decision, the Commission cited Jensen, in which the supreme court
articulated a rebuttable presumption for loss-of-use-of-a-scheduled-member cases:
where a permanent partial disability renders a worker unable to continue in the position held at the time of injury, . . . such inability creates a rebuttable presumption of total occupational loss of the member, subject to other proof of the claimant’s ability to earn the same wages which the claimant was receiving at the time of injury. [A] presumption [of total occupational loss] arises when the claimant establishes that he has made a reasonable effort but has been unable to find work in his usual employment, or makes other proof of his inability to perform the substantial acts of his usual employment.
Jensen, 828 So. 2d at 747-48 (¶21) (internal quotation marks omitted).
¶37. The Commission also cited a portion of Mueller Industries Inc. v. Waits, 283 So. 3d
1137 (Miss. Ct. App. 2019), in its explanation of applicable law, but its findings placed less
emphasis on the precedent in Waits. While this Court agrees that the Jensen case is
applicable here, the holding in Waits simplifies and lends greater support for the
Commission’s findings. Waits clarified that “[w]hen the evidence shows inability to perform
substantial acts of the usual employment, total loss of use of the member exists without
further inquiry into occupational effect or effect on wage-earning capacity.” Bradley &
Thompson, supra, § 5:46.
¶38. The Court’s opinion in Waits provided that a claimant is able to establish total
occupational loss by showing either that “he has made a reasonable effort but has been
unable to find work in his usual employment,” or by “mak[ing] other proof of his inability
17 to perform the substantial acts of his usual employment.” Id. at 1142-43 (¶17). The
Commission had “found that due [to] Waits’s arm and shoulder disability resulting from his
injury, he was left ‘unable to return to his previous employ’ and ‘unable to perform the
substantial acts of his usual occupation.’” Id. at 1143 (¶18). Consequently, “the Commission
did not engage in an analysis as to whether Waits established that he had made a reasonable
effort to find work in his usual employment.” Id. The Court held that “[t]he Commission’s
finding that Waits’s permanent partial disability rendered him unable to perform the
substantial acts of his usual employment created a rebuttable presumption of total
occupational loss of his right arm and shoulder.” Id. at 1150 (¶45). Moreover, the Court also
noted that the Commission’s findings correctly “acknowledged that wage earning capacity
was not part of Waits’s burden of proof,” explaining that “[a] claimant is not required to
make a work search to prove an industrial loss of use of a scheduled member . . . because he
is not required to meet the test for loss of wage earning capacity in body-as-a-whole cases.”
Id. at 1149-50 (¶44).
¶39. The ruling in Waits is consistent with the supreme court’s holding in McGowan. To
show that the partial loss of use is, in effect, a total loss of use, the McGowan court held that
the test asks whether the employee “is prevented by his injury from doing the substantial acts
required of him in his usual occupation, or if his resulting condition is such that common care
and prudence require that he cease work[.]” McGowan, 586 So. 2d at 166. McGowan held
“that as a matter of law, the worker had met the legal test for entitlement to benefits without
18 seeking other employment.” Bradley & Thompson, supra, § 5:46.
¶40. As part of Rivera’s job, “he would grab multiple chickens at a time and throw them
in the box.” Here, the Commission determined that Rivera presented medical evidence
proving he could not return to his position with RDJJ as a chicken catcher. Notwithstanding
the medical evidence, Rivera’s unrebutted testimony that RDJJ asked “what [he] was . . .
going to do with just the one arm” and its refusal to rehire him because it had “no use” for
him shows that RDJJ recognized Rivera could not perform the substantial acts of a chicken
catcher. Based on Waits, this evidence gave rise to the rebuttable presumption of total loss
of use.
¶41. The Commission found proof that Rivera was incapable of performing the substantial
acts of his job from “Dr. Line’s opinion that [Rivera] cannot return to his position as a
chicken catcher.” The following discussion occurred during Dr. Line’s deposition:
[Dr. Line]: [Chicken catching is] very, very, vigorous work . . . because of the amount of weight and the repetitiveness of what they do. ....
[Attorney]: Does it give you any pause to think that he’s going to be able to return to doing that [chicken-catcher] type of activity?
[Dr. Line]: I would say that would be unlikely. That’s difficult for a person with a normal shoulder to do that anyway. ....
[Attorney]: And you also testified it’s unlikely he will be able to return to work as a chicken catcher in his former capacity?
[Dr. Line]: Most likely.
19 ....
[Attorney]: Doctor, with regard to the question of would he be unable to return to work as a chicken catcher, would that be due to his work injury or just due to the level of the difficulty and harshness of that type of work? ....
[Dr. Line]: I think in that case it’s more to the nature of the job. But that’s like anybody who has a shoulder issue with that job description, I would say it would be unlikely to go back even with almost perfect – I’d be very uncomfortable for him going back to that job after a significant problem because of the nature of the work.
¶42. Based on the record, Dr. Line undoubtedly believed that Rivera’s arm injury would
prevent him from being able to grab “six and eight . . . live chickens . . . [that are] active and
trying to get away” and throw them into a box. Therefore, Rivera would be prevented from
performing the substantial acts of his usual employment. Nonetheless, even broadening
“usual employment” beyond catching chickens for RDJJ to “chicken catching, poultry work,
and/or heavy, unskilled manual labor,” Dr. Line’s testimony still indicated Rivera could not
perform the substantial acts of employment. The following exchange also occurred during
Dr. Line’s deposition:
[Dr. Line]: His motion was still restricted enough to allow him to do overhead work. He was still having pain . . . I felt that over time that would improve and his function would get better and his pain[,] and he would ultimately be able to get back to work.
....
[Attorney]: So from a permanent standpoint, you wouldn’t place any permanent restrictions on Mr. Rivera?
20 [Dr. Line]: Well, you’re always caught in a point in time so I can’t state to what he -- I know what he might and possibly and ultimately reach as far as his activity level, but I can’t state that he in his particular case will, so I would say at this point he has the impairment rating and the function restrictions that he was given.
¶43. According to Rivera’s FCE, his work restrictions included occasional bilateral lifting
up to five pounds, occasional bilateral carrying up to five pounds, occasional unilateral lifting
up to two pounds, and no unilateral carrying. He was also restricted to occasional walking,
above-shoulder reaching, pinching, bending, and squatting. But Rivera was told to entirely
avoid reaching, simple and firm grasping, bending, sustained squatting, and wide-stance
simulating picking up chickens and throwing to the right. Dr. Line’s statement that the
restrictions in Rivera’s FCE applied and that the FCE prevented him from lifting more than
five pounds showed that Rivera was unable to perform the substantial acts of employment
in heavy/unskilled manual labor.
¶44. Thus, substantial evidence in the record supported the Commission’s finding that
Rivera was unable to perform the substantial acts of his usual employment. Under Waits, the
rebuttable presumption of total industrial loss of use arose since Rivera proved an inability
to perform the substantial acts of his usual employment.
¶45. Once the presumption has arisen, “the next question this Court must answer is whether
[RDJJ] successfully rebutted the presumption of total occupational loss of the members with
proof of [Rivera’s] ability to earn the same wages which he was receiving at the time of
injury.” Waits, 283 So. 3d at 1150 (¶45). RDJJ bore the burden of “rebut[ting] this
21 presumption by showing ‘all the evidence concerning wage-earning capacity, including
education and training which the claimant has had, his age, continuance of pain, and any
other related circumstances.’” Id. at 1143 (¶17).
¶46. RDJJ failed, however, to offer relevant evidence to rebut this presumption. The
Commission found that the only rebuttal RDJJ asserted was “that the Employer did not offer
the Claimant a post-MMI job because it is illegal for an employer to hire an illegal
alien . . . [a]t the hearing, however, the Employer/Carrier did not present any testimony or
other evidence to support this argument.”
III. Job-Search Evidence
¶47. Finally, RDJJ contends that Rivera’s job-search evidence was unreasonable and
should have been excluded from consideration. This Court’s decision in Waits holds that
once the Commission has found substantial evidence showing the claimant is unable to
perform the substantial acts of his usual employment, the claimant is not required to also
prove a reasonable effort to find work in his usual employment. Id. at 1142-43 (¶17).
Because we find that the Commission properly held that Rivera proved he was unable to
perform the substantial acts of usual employment, and RDJJ failed to rebut the presumption,
our inquiry ends there. Thus, we decline to further address the issue of whether Rivera’s job
search was reasonable. “The purpose of our appellate review is not to settle questions in the
abstract or to issue advisory opinions.” Oak Creek Invs. LLC v. Atlas FRM LLC, 307 So. 3d
503, 508 n.4 (Miss. Ct. App. 2020) (quoting Scoggins v. Baptist Mem’l Hosp.-Desoto, 967
22 So. 2d 646, 649 n.1 (Miss. 2007)).
CONCLUSION
¶48. The record reflects that the Commission considered all the evidence provided by
Rivera and RDJJ in finding that Rivera suffered a 100% total industrial loss of use and in
concluding that RDJJ did not rebut this presumption. Therefore, the Commission did not err
in finding a 100% total industrial loss of use based on Rivera’s sedentary work level and
restrictions. Because substantial evidence supported the Commission’s decision, we affirm.
¶49. AFFIRMED.
BARNES, C.J., CARLTON, P.J., GREENLEE, WESTBROOKS, McDONALD, LAWRENCE, McCARTY AND EMFINGER, JJ., CONCUR. WILSON, P.J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.