IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2023-WC-01195-COA
SABRINA L. DOUKAS APPELLANT
v.
KILN SELF STORAGE AND FARMERS APPELLEES INSURANCE EXCHANGE
DATE OF JUDGMENT: 10/26/2023 TRIBUNAL FROM WHICH MISSISSIPPI WORKERS’ COMPENSATION APPEALED: COMMISSION ATTORNEYS FOR APPELLANT: JAMES KENNETH WETZEL GARNER JAMES WETZEL ATTORNEY FOR APPELLEES: MATTHEW JASON SUMRALL NATURE OF THE CASE: CIVIL - WORKERS’ COMPENSATION DISPOSITION: AFFIRMED - 10/08/2024 MOTION FOR REHEARING FILED:
EN BANC.
BARNES, C.J., FOR THE COURT:
¶1. Sabrina Doukas appeals the December 2020 and October 2023 decisions by the
Mississippi Workers’ Compensation Commission (MWCC), which held, respectively, that
(1) Doukas was not entitled to indemnity benefits for an injury to her lower left-leg
extremity; and (2) her prior compensable injury to her lower right-leg extremity did not
render her permanently and totally disabled. Finding that the Commission’s judgments are
supported by substantial evidence, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2. On April 6, 2016, Doukas, a manager for Kiln Self Storage (Employer), was injured
after a heavy piece of furniture fell on her right foot. As a result, Doukas, who had uncontrolled type 2 diabetes,1 developed an infection in her foot, which eventually required
below-the-knee amputation of her right leg on April 19, 2016. She was fitted with a
prosthesis in September 2016. The Employer and its insurance carrier, Farmers Insurance
Exchange (Carrier) (collectively the Appellees), admitted the compensability of Doukas’s
injury and paid all temporary and permanent partial disability benefits (175 weeks)2 related
to the injury to her right lower extremity.
¶3. In May 2017, occupational therapy conducted a driver’s evaluation of Doukas, and
it was recommended that she come back for retesting because her visual acuity currently did
not meet the minimum requirements for driving. A functional capacity examination (FCE)
of Doukas was conducted on September 11, 2018. The FCE stated that Doukas, now fitted
with a prosthesis, “note[d] multiple falls” but had recently received a new foot for her
prosthesis and had “improvement in gait and balance since then.” The FCE concluded that
although she would be unable to return to her previous position, Doukas “meets the light to
light/medium demand classification level.”
¶4. A week later, Doukas filed a petition to controvert, claiming that she had 100% loss
of wage-earning capacity (WEC) and that the Appellees had arbitrarily terminated
compensation and medical benefits. In response, the Appellees denied that Doukas had
sustained 100% loss of WEC. They noted Doukas was paid a salary in lieu of compensation
1 Although Doukas’s pretrial statement claimed that her diabetes was “undiagnosed” until this injury, medical records indicate Doukas was diagnosed with diabetes in 2011 but had been non-compliant with her insulin and oral medication. 2 See Miss. Code Ann. § 71-3-17(c) (Supp. 2012).
2 from April 10, 2016, to April 22, 2016, and “has been paid indemnity at the rate of $324.36
from April 23, 2016 to present.”
¶5. Doukas achieved maximum medical improvement (MMI) on October 1, 2018, with
70% impairment to her lower extremity and 28% whole-body impairment with restrictions
in accordance with the FCE. Her treating physician, Dr. Samir Tomajian, agreed with the
FCE restrictions and impairment rating. Doukas filed a “Pretrial Statement of Claimant” on
November 28, 2018, claiming that she “continues to experience residual pain, balance issues
and swelling.”
¶6. In a deposition given on January 7, 2019, Doukas testified about two significant falls
due to her ill-fitting foot on the prosthesis, but she noted after recently receiving a new foot,
“[I] don’t fall anymore . . . but my leg still hurts because I need a new leg.” When asked if
her ability to earn a living had changed since the right-leg injury, Doukas replied, “Yes.” She
noted, “I failed [the driving evaluation] because [the therapist] never gives a right leg
amputee that,” and she could not use modified driving controls because she is “dyslexic.”
However, she insisted that she “could get a job and figure out a way because I’ve never
missed a day from any job I’ve had for the last 17 years.” As to her work history, Doukas
testified that she had worked at National Car Rental for fifteen years as a senior rental
representative and manager. Thereafter, she worked for a physician for more than a decade,
which included spreadsheets, advertising, accounts receivable and payable until he later
moved to Dallas. She subsequently went to work for the Employer as an office manager
where she worked for around seven years. Doukas testified that she did not want to go on
3 disability and would “work, you know, if I can.”
¶7. On February 5, 2019, Doukas filed a motion to compel, seeking payment for medical
treatment and services. She asserted that she was still experiencing “severe pain, swelling,
sores and blisters to her right leg stump due to [an] ill-fitted prosthesis.”3 The Appellees
moved for Doukas’s motion to “be held in abeyance” because Doukas had yet to see the
referred orthopedist for evaluation, whose opinion may “affect the prosthesis fitting.” On
February 22, 2019, the MWCC administrative judge (AJ) issued an order finding Doukas was
“entitled [(1)] to be fitted with a prosthesis for her right leg and foot,” as recommended by
her pain management physician, Dr. Tomajian, and (2) to be evaluated by the orthopedic
physician, and that “the [C]arrier shall be responsible and shall pay for same.”
¶8. One Source, the prosthetic supplier, provided Doukas with a new socket for her
prosthesis on April 8, 2019. A few days later, Doukas allegedly fell in her driveway due to
her ill-fitted prosthesis and sustained an injury to her left toenail. She sought medical
treatment for her left foot on April 23, 2019. The physician’s assessment was cellulitis of
the left foot, a neurologic disorder associated with type 2 diabetes mellitus, an open wound
of the left foot, and gangrene of the left toe. The medical report noted that Doukas’s diabetes
was “not well controlled.” There was no mention of a fall or complaints about the prosthesis.
Doukas was immediately referred to Memorial Hospital for further treatment. Doukas
developed a septic infection in her left toe, eventually requiring amputation of her left leg
below the knee on May 2, 2019. Weeks later, Doukas suffered a stroke.
3 Other issues were also raised that are not relevant to this appeal.
4 ¶9. A second deposition of Doukas was held on June 4, 2019. She said that the first day
she had the new prosthesis for her right leg, “it would slip up and down.” Doukas claimed
that shortly thereafter, she went to move her car, and she “fell flat on the ground” and “ripped
[her] toenail off [her] left leg.” She testified that on her left foot, she was wearing a soft
tennis-like shoe and a sock. Doukas claimed that her daughter, Morgan, was in the house at
the time of the fall. When she showed Morgan her foot, “Morgan said, my God, what’s all
that blood? I’m like, it ripped my toenail.” Doukas testified that she bandaged her left foot
and called One Source. She was told not to wear the prosthesis until One Source could come
out. She claimed that when she went to the hospital days later, the “vascular doctor said on
the right leg, you can’t wear that thing anymore, it don’t fit right[.]”
¶10. Doukas filed a motion to compel medical treatment and services on July 9, 2019,
seeking “all medical and indemnity benefits to which she may be entitled [to] paid by the
[C]arrier.” In her motion, Doukas asserted “that on or about April 10, 2019,” her right-leg
prosthesis “cut into her right stump leg, causing sores and swelling issues.” She claimed that
these issues with her prosthesis made “mobility difficult,” causing her “to trip and fall” and
resulting in the injury to her left toe.
¶11. A hearing before the AJ was held on October 10, 2019. Morgan testified that she had
moved home from college in 2017 to assist Doukas and help monitor her diabetes
medication. Morgan explained to the AJ that Doukas continually had problems with her
prosthesis socket and that the loose fit of the prosthesis caused her mother to fall and develop
blisters. In 2018, the foot on her prosthesis was replaced, but it still had the original socket
5 and shaft. Eventually, Doukas received the new socket in April 2019; the company tested
her walking with the new prosthesis using parallel bars. Morgan said her mother fell outside
a few days later. Morgan testified that she was not at home when her mother fell, but when
she returned home from college classes later that day, her mother’s left toenail had been
pulled back.4 Because of the stroke, it was difficult for Doukas to provide meaningful
testimony, but her medical records and depositions, as well as the depositions by two One
Source employees, were reviewed by the AJ.
¶12. On June 26, 2020, the AJ entered an order finding that Doukas’s fall in April 2019 and
the resulting amputation to her lower left leg were “causally related to her original work-
related accident on April 6, 2016.” The AJ ordered that Doukas be awarded “[p]ermanent
total indemnity benefits beginning April 10, 2016, and continuing for a period of 450 weeks.”
See Miss. Code Ann. § 71-3-17(a) (Rev. 2011). The Carrier was ordered to pay “all
reasonable and necessary medical services and supplies as the nature of her injury or the
process of her recovery . . . may require in accordance” with Mississippi Code Annotated
section 71-3-15 (Rev. 2011) and the medical fee schedule.
¶13. The Appellees filed a petition for review by the full Commission, arguing that the AJ
erred in finding that the amputation of Doukas’s “left lower extremity” was related to her
April 2016 compensable work injury. On December 7, 2020, the Commission reversed the
AJ’s ruling that the left-leg injury was compensable but “affirmed her finding that Doukas’s
4 This testimony directly contradicts Doukas’s version of the events; she claimed that Morgan was home at the time and that the fall occurred on a Sunday.
6 stroke was not compensable.”5 The Commission remanded the case to the AJ for additional
proceedings to determine the extent of Doukas’s permanent disability attributable to her
compensable right-leg injury.6
¶14. A second hearing before the AJ was held on October 13, 2022. Having recovered
from her stroke, Doukas testified. She said she was only able to wear her right-leg prosthetic
“about an hour a day.” Doukas’s only income is from Social Security disability benefits. She
said that she was unable to drive a vehicle because she could not feel the pedal and that the
Carrier had not provided her with a modified vehicle. Doukas also noted that she “stopped
trying [to drive], you know, because it was too complicated” and that her daughter assisted
her with activities of daily living. Doukas claimed, “This injury has just disabled me totally
. . . and it all is from this – it all started from [my right leg.]” She asserted that her left leg
“would never have been chopped off” if her right leg had been “fitted right with a prosthetic
and correctly done right.”
¶15. Ty Pennington, a vocational rehabilitation counselor, also testified. He noted that two
FCEs of Doukas had been conducted, one in 2018 and one in 2021. The 2021 FCE
determined that Doukas was unable to (1) lift and carry; (2) carry from floor to waist; (3)
carry from waist to shoulder anything over ten pounds; (4) stand-walk; (5) bend-reach
without support; (6) perform low-level work (requiring kneeling or squatting); (7) perform
5 One commissioner entered a dissenting opinion. 6 Doukas appealed the Commission’s order with this Court. We dismissed that appeal as it was not a final, appealable judgment. See Order No. 235683, No. 2020-WC-01388- COA (Miss. Ct. App. Mar. 4, 2021).
7 elevated or overhead work; (8) climb stairs; or (9) climb a ladder. The 2021 FCE concluded
that Doukas did not demonstrate “the ability to perform a sedentary occupation on a full-time
basis and it is highly unlikely she would be employable in her current condition.” Thus,
Pennington opined that Doukas was now totally disabled and unemployable.
¶16. The AJ entered an order on January 27, 2023, holding that based on the testimony,
2018 FCE, and medical proof, Doukas “is totally and permanently disabled due to her right
lower extremity injury/amputation.” The AJ further concluded that the Appellees had “not
proven an independent intervening event occurred to interrupt Doukas’s disability from her
compensable right lower extremity injury.” The AJ awarded Doukas “[p]ermanent disability
benefits in an amount to be determined beginning April 6, 2016, and continuing for a period
of 450 weeks,” as well as “interest at the legal rate from and after the date such compensation
was due.”7
¶17. Upon petition for review, the Commission reversed the AJ’s decision on October 26,
2023, with one commissioner dissenting. The Commission determined that “from September
11, 2018, the time of [Doukas’s] first FCE, until April 19, 2019, the date of her non work-
related left leg injury and resulting stroke, Doukas was capable of returning to some form of
employment.” The Commission concluded that “Doukas’s compensable right leg injury did
not cause her to become permanently and totally disabled; therefore, indemnity benefits are
limited to the schedule found in Miss. Code Ann. § 71-3-17(c)(2).”
7 The AJ held in abeyance the amount to be paid pending a joint stipulation as to average weekly wage (AWW) and compensation benefit amounts. The parties later submitted a stipulation assessing Doukas’s AWW at $486.54 and a compensation rate of $324.36.
8 ¶18. Doukas appeals the Commission’s December 2020 and October 2023 decisions,
arguing that the AJ’s orders “regarding the compensability of the left leg and the finding of
permanent and total disability [are] supported by substantial evidence.”8 As will be
discussed, however, the question is not whether the AJ’s orders were supported by substantial
evidence, but whether substantial evidence supports the Commission’s subsequent orders.
STANDARD OF REVIEW
¶19. “The law in this State is that the Commission, not the [AJ], is the ultimate fact-finder,
and this Court will apply a general deferential standard of review to the Commission’s
findings and decisions despite the actions of the [AJ].” Smith v. Jackson Const. Co., 607 So.
2d 1119, 1123-24 (Miss. 1992). We will only reverse the MWCC’s decision if it “lacks the
support of substantial evidence, is arbitrary or capricious, is beyond the Commission’s scope
or its power, or violates constitutional or statutory rights.” West v. Nichols Center, 369 So.
3d 110, 113 (¶17) (Miss. Ct. App. 2023). “In determining whether substantial evidence
supports the Commission’s decision, ‘this Court serves only as a reviewing court and will not
re-weigh the evidence.’” Id. Thus, we will not “set aside a decision that is supported by
substantial credible evidence, even if conflicting evidence exists and even if this Court may
have found the facts otherwise if it were the trier of facts.” Id.
DISCUSSION
I. Whether the Commission erred in reversing the AJ’s June 2020 order holding that Doukas’s injury to her lower left leg was related to her prior compensable work injury.
8 Doukas has not challenged the AJ’s or the Commission’s findings with regard to the compensability of her subsequent stroke.
9 ¶20. Doukas argues that the Commission erred in finding that her lower left-leg injury was
a non-compensable injury. She claims that there was “uncontradicted and unrefuted”
testimony that her right-leg prosthetic caused her to fall and resulted in the injury and
amputation of her lower left extremity. As the claimant, Doukas bore the burden “of proving
by a preponderance of the evidence ‘(1) an accidental injury, (2) arising out of and in the
course of employment, and (3) a causal connection between the injury and the claimed
disability.’” West, 369 So. 3d at 113-14 (¶18) (quoting Hedge v. Leggett & Platt Inc., 641
So. 2d 9, 13 (Miss. 1994)). “Our law requires that an injured worker must support her claim
of disability with medical findings.” Myrick v. Univ. of Miss. Med. Ctr., 358 So. 3d 1109,
1116 (¶25) (Miss. Ct. App. 2023) (quoting Dept. of Health/Ellisville State Sch. v. Stinson,
988 So. 2d 933, 936 (¶10) (Miss. Ct. App. 2008)). “Medical evidence must prove not only
the existence of a disability but also its causal connection to employment.” Id. (quoting
Clark v. Spherion Corp., 11 So. 3d 774, 778 (¶16) (Miss. Ct. App. 2009)).
¶21. In ruling on the compensability of the left-leg injury, the AJ gave great weight to
Doukas’s and Morgan’s testimonies, which we find were contradictory. Morgan said that
she came home from school and that her mother told her about the fall, but Doukas said that
she fell while moving her car on a Sunday and that Morgan was home at the time. There
were also inconsistencies in the evidence regarding the timeline of her fall and the resulting
injury. Doukas reported at the hospital that her left-toe injury had “been developing over
several weeks” and that she had developed an “ulcer of her left great toe that had been
present for 16 days.” (Emphasis added). However, the AJ concluded that Doukas fell on
April 19, only four days prior to her admission into the hospital.
10 ¶22. Moreover, Doukas told One Source employees Jay Rubenstein and Keith Wade that
she “stubbed” her toe; neither employee could recall that Doukas said she suffered a fall as
a result of the prosthesis. Rubenstein stated in his deposition that while Doukas had a callus
on her right stump due to an ill-fitting socket in January 2019, she had made no complaints
about falling since getting her new foot. Wade testified that Doukas did not contact him with
any complaints about her prosthesis after receiving her new socket on April 8, 2019; nor did
she tell him that she fell as a result of the prosthesis. He also noted that the special shoes for
people with diabetes that Doukas was allegedly wearing when she fell were designed to help
prevent foot injuries. The medical records of Dr. Roach and the medical records of
Memorial Hospital contain no mention of a fall or that a fall caused her toe condition. It was
also noted in her hospital records (dated April 24, 2019) that Doukas stated her new
prosthesis “fit her the best.”
¶23. Doukas’s 2019 medical records also indicate that her diabetes was uncontrolled. Her
blood glucose was in the 400s, well above normal range. Dr. Lennon Bowen was deposed
on October 25, 2019, as an expert in neurology and neurophysiology. He opined that “[i]t
would be unusual to knock a toenail off just with a simple fall in the grass with diabetic shoes
on.” Dr. Bowen further asserted, “If you don’t take care of yourself, your odds of having a
complication like a diabetic foot infection go up expedientiably [sic],” especially when you
“don’t inspect your feet regularly” or “take care of your blood sugar.” He noted that the
orthopedic surgeon’s April 25, 2019 evaluation stated that Doukas’s foot had “decreased
sensation secondary to diabetic neuropathy.” Dr. Bowen concluded that to a reasonable
degree of medical probability, Doukas’s lower left-leg amputation was not attributable to her
11 prosthesis or the fall that she alleged occurred in April 2019. Dr. David Gandy, a board-
certified orthopedic surgeon, reviewed Doukas’s medical records. He explained in his
November 2019 deposition that people with diabetes are at an increased risk for amputation
due to neuropathy and vascular problems. Dr. Gandy specifically noted that Doukas had
been advised to perform regular foot examinations, as sores can rapidly develop. He opined
that the medical records did not support a finding that a fall was the cause of Doukas’s left-
toe injury and subsequent amputation. The Commission found the testimonies by Dr. Bowen
and Dr. Gandy “more probative than the Claimant’s testimony concerning the issue before
the Commission.”
¶24. While there is certainly evidence Doukas experienced ongoing issues with the right-
leg prosthesis prior to her being fitted with the new socket on April 8, 2019,9 there is
substantial evidence from which the Commission could have determined that “the evidence
as a whole” does not support a causal connection between Doukas’s left-leg injury and her
compensable right-leg injury. Accordingly, finding no error, we affirm the Commission’s
December 2020 judgment.
II. Whether Doukas’s right lower extremity injury rendered her 100% permanently and totally disabled.
¶25. On remand, the AJ concluded that Doukas’s compensable right lower extremity injury
rendered her “permanently and totally disabled and entitled [her] to 450 weeks of permanent
9 For example, Dr. Tomajian examined Doukas on December 19, 2018, and noted that “patient is not satisfied with leg prosthesis due to bone rubbing and creating a callus that is very painful.” She was referred to One Source and received a new foot for her prosthesis in January 2019.
12 disability in accordance with” section 71-3-17(a). The Commission reversed the AJ’s
finding, holding that “Doukas suffered a 100% industrial loss of use of her right leg and is
entitled to 175 weeks of permanent partial disability benefits beginning on the date she
reached [MMI] for her right leg injury.” Doukas contends that this Court should reverse the
Commission’s October 2023 judgment and find that, “based upon the admittedly
compensable right leg injury alone[, she] is permanently and totally disabled.”
¶26. Upon a finding of permanent partial disability under Mississippi Code Annotated
section 71-3-17(c), a claimant shall be paid for 175 weeks for loss of a leg. “Coverage under
Section 71-3-17(c), including its familiar schedule, proceeds on the faith that the worker will
be able to resume the same or other employment after he adapts to his disability.” Smith, 607
So. 2d at 1128. It is only “where that injury results in a permanent loss of wage earning
capacity within Section 71-3-17(a), the latter section controls exclusively and the employee
is not limited to the number of weeks of compensation prescribed in Section 71-3-17(c)’s
schedule.” Id.
¶27. In his report, Pennington determined that from September 2018 to April 2019 (before
her lower left-leg injury), Doukas could have returned to the labor market performing light
to partial medium sedentary work. He identified potential job openings (i.e., customer
service representative or telephone operator) based on her 2018 FCE. Pennington also
opined that Doukas had a wage-earning capacity of $9.00 to $12.00 per hour. Dr. Philip
Blount, a board-certified physical medicine and rehabilitation physician, evaluated Doukas’s
records and agreed with the work restrictions as stated in the 2018 FCE, finding them
“reasonable in relation to a right lower extremity below the knee amputation.” Doukas
13 averred that she could not drive because of her right-leg prosthesis, and her May 2017
driving evaluation noted that she had vision issues that affected her driving ability. Yet
Morgan testified that before the 2019 left-leg injury and stroke, her mother “was pretty self-
sufficient” and “was able to pretty much do things on her own,” although Morgan did assist
Doukas with cooking and taking her medicine.
¶28. “A decision regarding the loss of wage-earning capacity is ‘largely factual and is to
be left to the discretion and estimate of the Commission.’” Tew v. Siemens Power
Transmission, 156 So. 3d 329, 332 (¶10) (Miss. Ct. App. 2010) (quoting Bryan Foods Inc.
v. White, 913 So. 2d 1003, 1010 (¶28) (Miss. Ct. App. 2005)). Based on the evidence, the
Commission determined that from September 11, 2018, to April 2019, “Doukas was capable
of returning to some form of employment.” Finding the Commission’s decision is supported
by substantial evidence, we also affirm its October 2023 judgment.
¶29. AFFIRMED.
CARLTON AND WILSON, P.JJ., McCARTY AND EMFINGER, JJ., CONCUR. McDONALD, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. LAWRENCE, J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY WESTBROOKS, McDONALD AND SMITH, JJ.
LAWRENCE, J., DISSENTING:
¶30. This case presents two issues on appeal. First, whether the Workers’ Compensation
Commission erred in its decision to deny Sabrina Doukas 450 weeks of permanent total
benefits for a work-related injury to her right foot—which ultimately resulted in an
amputation below the knee—and award her, instead, with 175 weeks of “loss of a scheduled
member” disability benefits, asserting that she was not permanently totally disabled.
14 Doukas’s right leg was amputated below the knee due to what everyone agreed was a work-
related injury to her right foot. There was no dispute that the loss of the leg caused balance
and walking issues that prevented her from earning any wages. Second, whether the loss of
her left leg by amputation was causally related to the work-related right-leg amputation. I
believe the two members of the Commission who determined both of the issues in the
negative ruled contrary to the substantial evidence, resulting in an arbitrary and capricious
decision. I would reverse the Commission’s findings on both issues.
¶31. “The standard of review in worker’s compensation cases is limited by the substantial
evidence test.” McDonald v. I.C. Isaacs Newton Co., 879 So. 2d 486, 489 (¶11) (Miss. Ct.
App. 2004) (citing Smith v. B.C. Rogers Processors Inc., 743 So. 2d 997, 1002 (¶13) (Miss.
Ct. App. 1999)). “This Court will not reverse the decision of the Workers’ Compensation
Commission unless it finds that the decision is clearly erroneous and contrary to the
overwhelming weight of the evidence.” Id. “Substantial evidence consists of sufficient
evidence for reasonable minds to accept as adequate to support the Commission’s
conclusion.” Bowdry v. City of Tupelo, 337 So. 3d 1158, 1163 (¶12) (Miss. Ct. App. 2022)
(quoting Sheffield v. S.J. Louis Constr. Inc., 285 So. 3d 614, 618 (¶8) (Miss. 2019)).
¶32. “If an administrative agency’s decision is not based on substantial evidence, it
necessarily follows that the decision is arbitrary and capricious.” Pub. Emps.’ Ret. Sys. v.
Marquez, 774 So. 2d 421, 430 (¶11) (Miss. 2000). “An administrative agency’s decision is
arbitrary when it is not done according to reason and judgment, but depending on the will
alone.” Miss. State Dep’t of Health v. Natchez Cmty. Hosp., 743 So. 2d 973, 977 (Miss.
1999). “An action is capricious if done without reason, in a whimsical manner, implying
15 either a lack of understanding of or disregard for the surrounding facts and settled controlling
principles.” Id.
¶33. In Smith v. Jackson Constr. Co., 607 So. 2d 1119, 1128 (Miss. 1992), the supreme
court held that when “an employee suffers an injury” to a scheduled member of his body, and
that injury “results in a permanent loss of wage earning capacity,” Mississippi Code
Annotated section 71-3-17(a) dealing with permanent total disability “controls exclusively
and the employee is not limited to the number of weeks of compensation prescribed in
section 71-3-17(c)’s schedule.” The court further clarified that when an injured employee
becomes permanently and totally disabled, the “schedule becomes irrelevant.” Id. at 1128.
Since the schedule for loss of use of a member of the employee’s body “takes no account of
a claimant’s loss of wage earning capacity[,]” the permanent and total compensation
provisions of Mississippi Annotated Code section 71-3-17(a) apply, not the schedule
provisions of section 71-3-17(c). Here, as in Smith, the issue was whether Doukas was
permanently and totally disabled due to the amputation of her right leg or, rather, whether she
was entitled to a limited number of weeks for loss of a scheduled member.
¶34. Doukas was sixty-three years old. The Commission’s findings of fact indicate the
following regarding her work history:
Before working at Kiln Self-Storage, she worked as a car rental representative, an accounts payable/receivable and car title clerk, a maid, a company runner, and a property manager. In one of her jobs, she was an administrative assistant who produced spreadsheets and advertisements for 61 hotels. At Kiln Self- Storage, where she was injured, Doukas was an office manager whose duties included renting storage units and handling accounts payable and receivable. After her April 6, 2016 injury, Doukas did not return to work for Kiln Self- Storage. Although she applied for other jobs, she was unable to obtain one.
16 (Emphasis added). Doukas was unable to return to work at Kiln Self-Storage after her right
leg injury because she was no longer capable of fulfilling her duties. Doukas applied to other
jobs but was not hired because her injury caused issues with her standing and stability. For
example, she testified that “the only way [she] can go to a grocery store is if they have a cart
. . . [o]r if [her daughter] pushes [her] in the wheelchair.”
¶35. The Commission relied on the testimony of one witness, Ty Pennington, a vocational
rehabilitation expert who was called as a witness “on behalf of the employer/carrier.”
Pennington testified that Doukas could work as a telephone operator and customer service
representative. However, when Pennington was confronted on cross-examination about
whether Doukas’s employability would be affected if she was wheelchair-bound, he
responded, “[T]hat is kind of a tough question to answer.” When pressed on the issue, he
admitted he did not “ask the employer” about the wheelchair when he called about potential
jobs Doukas could perform. He never explained how she could do any of those jobs when
she was unable to walk and maintain her balance with a prosthetic device she could only
wear for a limited amount of time. Further, the following exchange sheds more troublesome
light on Pennigton’s testimony:
Q: The functional capacity evaluation doesn’t take into consideration the chronic pain that she has, medication she has to have, a wheelchair she has to have. All they’re doing is taking into effect physical requirements that they do inside of a controlled setting; isn’t that correct?
A: Well, I would agree with that. But there again, as a vocational expert, it’s not my role to add to that and to consider all of these other things.
¶36. Doukas’s lack of employment was not for a lack of discipline or for a lack of trying.
A dissent written by one of the commissioners summarized what the evidence showed about
17 Doukas:
Since early in her life, she has been constantly employed. She has held job for long periods of time, and by all accounts her employers have been pleased with her work. One reason her employers were pleased is because Doukas did not limit herself to the duties described in her job descriptions. She was willing to do whatever was needed to get the job done. Also, she worked long hours and weekends. The record shows she was a model employee. I think the evidence shows if Doukas could have worked after her right leg amputation, she would have.
(Emphasis added).
¶37. The administrative judge found that Doukas was permanently and totally disabled and
entitled to 450 weeks of disability benefits in accordance with section 71-3-17(a). Two
members of the Commission reversed that decision and decided she could work based on
Pennington’s testimony and held Doukas was only entitled to 175 weeks of benefits due to
loss of her right leg. This holding was contrary to clear and substantial evidence. The
evidence showed that Doukas could only wear the prosthetic “about an hour a day” because
it caused “big blisters all over [her leg].” Her prosthetic on her “right leg has never fit[]
right.” The doctor “tried all kinds of ways” to fix the problem but was unsuccessful. There
was also evidence that she could not drive and had difficulty walking and maintaining
balance. The Commission’s decision was based on the testimony of one witness, Pennington,
who admitted he did not give all the relevant information about her medical problems to the
different employers he called about hiring Doukas. That certainly meets the definition of
“[a]n action is capricious if done without reason, in a whimsical manner, implying either a
lack of understanding of or disregard for the surrounding facts and settled controlling
principles.” Miss. State Dep’t of Health v. Natchez Cmty. Hosp., 743 So. 2d 973, 977 (¶13)
18 (Miss. 1999). Further, pursuant to Smith, if she had a member injury that caused her to be
permanently and totally disabled, then she was entitled to 450 weeks if she was totally and
permanently disabled. Doukas worked her whole life, but after losing her right leg to a work-
related injury, she never worked again despite trying to find jobs. That is a loss of wage-
earning capacity. The Commission’s finding that Doukas was limited to 175 weeks of
permanent partial disability benefits for the loss of a scheduled member is arbitrary and
capacious and contrary to the substantial evidence and the holding of Smith.
¶38. Further, there was substantial evidence to prove that Doukas’s left leg amputation
was causally related to her work-related right-leg amputation. There is testimonial evidence
that Doukas’s balance was impaired due to her work-related injury. Doukas testified and her
daughter confirmed that the left leg injury and ultimate amputation of that leg occurred
because she lost her balance getting out of her car due to her right leg having been
amputated. Thus, the left leg amputation would not have occurred but for her work-related
injury to her right foot. There was substantial evidence to prove that the work-related right-
leg amputation was causally related to the left leg amputation.
¶39. “When a disability develops gradually, or when it comes as the result of a succession
of accidents, the insurance carrier covering the risk at the time of the most recent injury or
exposure bearing a causal relation to the disability is usually liable for the entire
compensation.” United Methodist Senior Servs. v. Ice, 749 So. 2d 1227, 1230 (¶10) (Miss.
Ct. App. 1999). I would reverse both of the Commission findings as to Doukas and remand
for further proceedings. Accordingly, I dissent.
WESTBROOKS, McDONALD AND SMITH, JJ., JOIN THIS OPINION.