v. NO WC COA

Transcription

1 E-Filed Document Feb :22: WC COA Pages: 21 THE SUPREME COURT OF MISSISSIPPI COURT OF APPEALS OF THE STATE OF MISSISSIPPI BETTYE LOGAN CLAIMANT v. NO WC COA 201S-WC COA KLAUSSNER FURNITURE CORPORATION DIBI DIB/ A BRUCE FURNITURE INDUSTRIES EMPLOYER AND AMERICAN CASUALTY COMPANY OF READING, PA CARRIER On appeal from the Mississippi Workers' Compensation Commission APPELLEE'S BRIEF TO THE SUPREME COURT Amy Lee Topik- - MSB No Joseph A. Gerache III - MSB No MARKOW WALKER, P.A. P P. 0. O. Box Jackson, MS (601) ATTORNEYS FOR APPELLEES

2 CERTIFICATE OF INTERESTED PERSONS BETTYE LOGAN CLAIMANT v. NO WC COA KLAUSSNER FURNITURE CORPORATION DIB/ A BRUCE FURNITURE INDUSTRIES EMPLOYER AND AMERICAN CASUALTY COMPANY OF READING, PA CARRIER The undersigned counsel of record certifies that the following listed persons have an interest in the outcome of this case. These representations are made in order that the Circuit Court may evaluate possible disqualification or recusal. 1. Bettye Logan, Claimant/ Appellant 2. Roy 0. Parker, Sr., Attorney for Claimant/ Appellant 3. Haley W. Mclngvale, II, Attorney for Claimant/ Appellant 4. Klaussner Furniture Corporation. 5. American Casualty Company of Reading, PA 6. Administrative Judge Cindy P. Wilson 7. Commissioners Liles B. Williams, Thomas A. Webb and Beth H. Aldridge 8. Amy Topik, Attorney for Employer and Carrier/ Appellees 9. Joseph A. Gerache III, Attorney for Employer and Carrier/Appellees Amy Lee Topik - MSB No Joseph A. Gerache ID - MSB No COUNSEL FOR EMPLOYER/CARRIER (APPELLEES) i

3 TABLE OF CONTENTS CERTIFICATE OF INTERESTED PERSONS... i TABLE OF CONTENTS... ii TABLE OF AUTHORITIES... iii STATEMENT OF ISSUES iv STATEMENT OF THE CASE... 1 SUMMARY OF THE ARGUMENT... 6 ARGUMENT... 6 I. The Administrative Judge's Opinion On Remand, and the Subsequent Affirmation of the Same by the Full Commission, Was in Accordance With the Ruling of the Court of Appeals and Was Neither Arbitrary Nor Capricious. 7 II. The Administrative Judge, As Well As the Full Commission, Was Correct in Finding That Claimant Sustained a Permanent Partial Disability to Her Left Leg in Accordance With the Evidence CONCLUSION

4 TABLE OF AUTHORITIES A. Mississippi Cases. Natchez Equip. Co., Inc. v. Gibbs, 623 So. 2d 270,273 (Miss. 1993)... 6 Lucas v. Angelica Uniform Group, 733 So. 2d 285,291 (Miss. Ct. App. 1998)... 7 Weatherspoon v. Craft Metals, Inc., 853 So. 2d 776, 778 (Miss. 2003)... 7 Winters v. Choctaw Maid Farms, 782 So. 2d 155, 159 (Miss. Ct. App. 2000)... 7 Short v. Wilson Meat House, LLC, 36 So. 3d 1247, 1250 (Miss. 2010)... 7 Penrod Drilling co. v. Etheridge, 487 So. 2d 1330 (Miss. 1986) McDowell v. Smith, 856 So. 2d 581 (Miss. Ct. App. 2003) Smith v.jackson Constr. Co., Inc., 607 So. 2d 1119 (Miss. 1992)... 12~13 Good Earth Development, Inc. v. Rogers, 800 So. 2d 1164 (Miss. Ct. App. 2001)... 12~13 River Region Health Sys. v. Adams, 115 So. 3d 863,868 (Miss. Ct. App. 2013) Smith v. Tronox, LLC, 76 So. 3d 774, 780 (Miss. Ct. App. 2011) Raytheon Aerospace Support Servs. v. Miller, 861 So. 2d 330,336 (Miss. 2003) B. Statutes. Miss. Code Ann

5 STATEMENT OF THE ISSUES 1. The Administrative Judge's Opinion On Remand, and the Subsequent Affirmation of the Same by the Full Commission, Was in Accordance With the Ruling of the Court of Appeals and Was Neither Arbitrary Nor Capricious. 2. The Administrative Judge, As Well As the Full Commission, Was Correct in Finding That Claimant Sustained a Permanent Partial Disability to Her Left Leg in Accordance With the Evidence. iv

6 STATEMENT OF THE CASE PROCEDURAL HISTORY Bettye Logan (hereinafter "Claimant") filed her Petition to Controvert before the Mississippi Workers' Compensation Commission on December 9, This matter was heard before the Honorable Cindy P. Wilson in Oxford, Mississippi, on August 12, Judge Wilson found Claimant had sustained a four percent (4%) permanent partial impairment rating to her left lower extremity. Claimant appealed that finding to the Full Commission, which affirmed the decision of the Administrative Law Judge by way of an Order dated February 6,2012. Claimant then filed her Notice of Appeal before the Mississippi Court of Appeals appealing the decision of the Full Commission. The Court of Appeals reversed the Full Commission's decision, and remanded the case back to the Commission. Subsequently, the Employer and Carrier filed a Writ of Certiorari with the Supreme Court, but such was denied by order of the Court dated December 13,2013. On remand, Judge Wilson found Claimant had suffered a sixty percent (60%) loss of industrial use to her left lower extremity by an Order dated April 8, Judge Wilson further ruled that a finding that Claimant suffered a 100% loss of industrial use to her left lower extremity would be contrary to the medical evidence. Claimant again appealed Judge Wilson's order to the Full Commission for review. The Full Commission affirmed Judge Wilson's order finding Claimant suffered a 60% impairment to her left lower extremity, stating that both the medical and vocational evidence supported a finding that Claimant possessed the ability, at the least, to return to a sedentary level of employment. On November 17, 2015, Claimant filed with this Court her Notice of Appeal of the Full Commission's Order. 1

7 STATEMENT OF FACTS Claimant is from New Albany, Mississippi and was sixty,two (62) years of age at the time of the hearing. (Tr. 5). Claimant completed the tenth grade and later obtained her OED in (Tr. 6). Claimant sustained an admittedly compensable injury to her left leg on October 9,2003, with an average weekly wage at the time of injury of $ (Tr. 4). Prior to working for the employer herein, Claimant worked as a waitress and in various other manufacturing jobs. (Tr. 21,25). Following her medical treatment, Claimant returned to work light duty for the employer in May (Tr. 14). Claimant worked light duty until August 2004, at which time the plant manager suggested she take another job within the plant that paid less. Claimant did not believe she could perform this job, as she had never before performed such job. The plant manager inquired as to whether there was any other job that Claimant would like to try, to which Claimant advised management that she had only worked in the cutting room prior to her injury. Claimant decided to instead take a voluntary layoff; however, she later stated that she was not financially prepared to take such layoff status. Claimant subsequently drew two weeks of unemployment benefits. (Tr. 14, 18). Following her layoff, Claimant provided care for her diabetic mother with the assistance of Hospice Care. She also applied for some jobs in October Four out of the five places to which Claimant applied were not hiring at that time. (Tr. 19,20). Claimant began receiving social security disability benefits in May (Tr. 6). Claimant has not made application for any 2

8 employment since October 2005 or applied for any of the jobs provided by Brawner and Associates, a vocational rehabilitation firm. (Tr. 36). Claimant's daughter, Ginny Graham, testified that her mother had lived with her for three to four years around the time of her alleged injury. She testified that her mother constantly complained about pain in her leg and had swelling in her ankle when standing. (Tr. 38, 40). Mr. Lamar Crocker testified for the claimant as an expert in the field of vocational rehabilitation. Mr. Crocker's opinion was that the claimant had a 100% loss in the labor market. (Tr.51). Mr. Crocker acknowledged during cross-examination that his opinion was based in part on the Social Security opinion. (Tr ). It was further noted that the Social Security Administration did not have the benefit of any records from Dr. Cooper Terry, because Dr. Terry did not see Claimant for the first time until some four years after her Social Security award. (Tr. 53). Mr. Crocker acknowledged that the Social Security Judge might have come to a different conclusion had he had Dr. Terry's records. (Tr. 54). Ms. Jennifer Oubre testified for the employer and carrier as an expert in the field of vocational rehabilitation. Claimant's attorney did not allow Ms. Oubre to meet with Claimant as part of her vocational analysis. (Tr. 62). Ms. Oubre's opinion was that Claimant has transferrable skills and is employable. (Tr ). Ms. Oubre based her opinions on all the medical records, and gave her opinion that even if she assumed that some medical restrictions assigned by Dr. Stimpson prior to his assignment of maximum medical improvement were Claimant's permanent medical restrictions, Claimant still remained employable. (Tr. 66). Medical records and medical depositions entered into evidence revealed that Claimant sustained a fractured fibula and a spiral fracture of the tibia as a result of her work injury. Claimant 3

9 was evaluated by Dr. Ernest Lowe, but elected to come under the care of Dr. Kim Stimpson. Dr. Stimpson treated the claimant with a long cast and later with a fracture brace. On March 26, 2004, Dr. Stimpson noted some lower extremity edema and recommended removal of the brace. (Exh. 3, p. 6). Claimant had symptoms of pain and swelling in the left leg and also some numbness in her left foot. Dr. Stimpson attributed what he termed neuralgia to the fracture brace being applied too tightly. The tibia fracture had healed and a work hardening program was started. Dr. Stimpson opined that Claimant could begin light duty work on April 23, (Exh. 3, p. 7). Nerve conduction studies performed in June 2004 revealed a right peroneal mononeuropathy with deep peroneal nerve injury. Dr. Stimpson clarified in his deposition testimony that this meant that the nerve injury was isolated to the peroneal nerve deep in the muscle. Dr. Oakes, who performed the studies noted that there would be recovery with time, as there was evidence of intact axons to the tibialis anterior. The muscle in the leg was intact with no damage. Further, the nerve at the peroneus longus was not injured. Claimant's recovery was complicated by the nerve injury. Dr. Stimpson last saw Claimant on August 24, (Exh. 7, p. 28~32). Dr. Stimpson testified in his deposition testimony that he would have assigned maximum medical improvement in October (Exh. 7, p. 15). Claimant had two functional capacities evaluations performed, one by Cornerstone Rehabilitation and the other by Hill Rehabilitation. The report from Cornerstone revealed that Claimant could return to work with no restrictions. The therapist at Cornerstone who performed the evaluation noted that based on a review of Claimant's job description, there was no physical reason why she could not perform her pre~injury job. The therapist at Hill found that Claimant could return to sedentary duty. Dr. Stimpson testified that he would rely on the report from Cornerstone because the evaluation was performed soon after his 4

10 last visit with Claimant, while the evaluation at Hill was completed several months later. (Exh. 7, p. 36~38). Claimant began treating with Dr. Rommel Childress for pain in her left knee. An MRI of the left knee revealed a cleavage tear in the medial meniscus. He recommended surgical intervention. (Exh. 4, p. 2). Dr. Cooper Terry first saw Claimant on February 9, 2009, for an employer's medical evaluation. Dr. Terry related the meniscal tear to Claimant's work injury and agreed that surgery would be proper. Claimant elected to continue her medical care with Dr. Terry. (Exh. 5, p. 3A). Dr. Terry also noted that Claimant suffered with a mild residual sensory deficit as a result of the peroneal nerve injury and that the motor deficient associated with this injury had resolved. (Exh. 5, p. 3~4). Dr. Terry did perform the arthroscopic surgery recommended. Postoperatively, Dr. Terry released the claimant as having reached maximum medical improvement on September 25, He assessed a four percent (4%) permanent partial impairment rating to the left leg and assigned no permanent work restrictions. (Exh. 5, p. 5). Prior to the surgery, Dr. Terry responded to questions posed by the employer and carrier with his initial evaluation. He opined that if Claimant elected not to have the knee surgery, she would have an 8% permanent partial impairment rating based on the meniscal tear and the residual sensory deficit. Further, if she elected not to undergo the knee surgery, she would be limited in her squatting and kneeling as well as no climbing or working at unprotected heights. However, Claimant did have the recommended surgery and followed up postoperatively with Dr. Terry. (Exh. 5, p. 4). 5

11 SUMMARY OF THE ARGUMENT Claimant alleges that the injury she sustained to her left leg on or about October 9,2003, has left her permanently and totally disabled. The Administrative Judge and the Full Commission, after reviewing all the medical evidence, came to conclusion, that Claimant had sustained a permanent partial disability to her left leg, namely sixty percent (60%). While Claimant's disability determination was increased fifteen,fold, on remand it was determined that a finding of permanent and total disability loss of industrial use would be contrary to the medical and vocational evidence. Furthermore, it was determined, and rightly so, that the vocational expert testimony of Ms. Jennifer Oubre was the most credible in determining whether Claimant had sustained any permanent disability as a result of her injury and whether she could be gainfully employed, as Ms. Oubre reviewed all the available medical records. The Administrative Judge and the Full Commission also determined that Claimant's assertion that she suffered a total loss of wage earning capacity is inconsistent with the medical evidence. Under the Mississippi Workers' Compensation Law, injury to a leg falls under the scheduled member provision of the law, which provides that Claimant's compensation must be determined by whether she suffered a loss of industrial use. There is substantial evidence to support the decision of the Full Commission in this matter, and therefore, this Honorable Court must affirm the decision of the Full Commission. ARGUMENT Standard of Review Under Mississippi Law, the Workers' Compensation Commission is the ultimate finder of fact in compensation cases. Natchez Equip. Co., Inc. v. Gibbs, 623 So. 2d 270, 273 (Miss. 1993). "The Commission is free to accept or reject the [Administrative Law Judge's] findings, so long as 6

12 the Commission's actions are based on substantial evidence." Id. Likewise, the applicable standard of review in workers' compensation cases is one that ensures that the Commission's decision is supported by "substantial evidence," and upon such a finding, appellate courts are to uphold Commission decisions. "Substantial evidence means evidence which is substantial, that is, affording a substantial basis of fact from which the fact in issue can be reasonably inferred." Lucas v. Angelica Uniform Group, 733 So. 2d 285, 291 (Miss. Ct. App. 1998). Reversal of a Commission order is proper only "when a Commission order is not based on substantial evidence, is arbitrary or capricious, or is based on an erroneous application of the law." Weatherspoon v. Croft Metals, Inc., 853 So. 2d 776, 778 (Miss. 2003). Further, an appellate court is bound by the findings of the Full Commission even though the evidence would convince that court otherwise if it were instead the ultimate fact finder. Winters v. Choctaw Maid Farms, 782 So. 2d 155, 159 (Miss. Ct. App. 2000). Lastly, this Honorable Court has routinely held that appellate courts of the state of Mississippi act as courts of review of the decisions of the Full Commission and are prohibited from hearing evidence or otherwise evaluating evidence and determining facts. Short v. Wilson Meat House, LLC, 36 So. 3d 1247, 1250 (Miss. 2010). 1. The Administrative Judge's Opinion On Remand, and the Subsequent Affirmation of the Same by the Full Commission, Was in Accordance With the Ruling of the Court of Appeals and Was Not Arbitrary or Capricious The Administrative Judge's opinion on remand, along with the Full Commission's confirmation of the same, did not rise to the level of being arbitrary or capricious, and was not contrary to the instruction of the Court of Appeals. Both the Administrative Judge, as well as the Full Commission, reviewed and weighed all the medical evidence presented at the original hearing 7

13 on the merits in this matter. After the matter was remanded back to the Administrative Judge, she again reviewed and weighed all the evidence as mandated by the Court of Appeals. Judge Wilson correctly concluded that the most credible medical evidence was that of Dr. Cooper Terry. This is so because Dr. Terry was the last physician to evaluate and treat Claimant. Furthermore, although previously disputed by Claimant, Dr. Terry took into consideration the nerve damage Claimant suffered to her left leg in his assessment of permanent impairment and restrictions. Such is made very clear in Dr. Terry's medical records. As stated in her brief, Claimant would have this Honorable Court rely on the temporary restrictions assigned by Dr. Kim Stimpson in August However, at that point in Claimant's medical treatment, she had not yet reached maximum medical improvement. Claimant alleges that the restrictions were never lifted; however, Dr. Stimpson specifically testified in his deposition that he would adopt the findings of the functional capacity evaluation performed by Cornerstone Rehabilitation over the one performed by Hill Rehabilitation. Furthermore, at that time, it was not known that Claimant had sustained the cleavage tear to her medial meniscus and would require further treatment to her left leg. Claimant did undergo additional medical treatment, and following said treatment, an assessment was made by her treating physician as to her permanent impairment and work restrictions. Aside from Dr. Terry's records, there is no medical evidence following Claimant's additional medical treatment, and both functional capacity evaluations were conducted while Claimant had an undiscovered cleavage tear in the medial meniscus of her left knee. Thus, the only evidence of Claimant's then,current state of disability following her last medical treatment is from Dr. Terry. 8

14 The pertinent statute here is clear in that any finding of disability "must be supported by medical findings." Miss. Code Ann. 71,3,3 (i). The Administrative Judge carefully reviewed all the medical evidence, as did the Full Commission, and the findings and opinions of both are supported by the medical evidence. By the same token, a finding of total industrial loss of use or permanent and total disability is not supported by the medical evidence. Judge Wilson did not make a finding that Claimant suffered no permanent disability resulting from her injury; on the contrary, she considered the four percent (4%) permanent disability rating previously assigned by Dr. Terry and adopted in her original order, and increased that rating to sixty percent (60%). The difference is a remarkable fifteen,fold increase, and one which was based on Judge Wilson's consideration of both the medical and lay testimony presented at the original hearing. In fact, the only evidence which would support a significant finding of industrial loss of use is the lay testimony. All medical evidence presented points to no permanent restrictions on claimant's ability to work; therefore, the Commission relied primarily on the testimony of Ms. Logan in reaching their conclusion that claimant had sustained 56% more disability than the medical impairment rating. Claimant argues that the opinion of Judge Wilson on remand, and the Full Commission's confirmation of the same, is arbitrary and capricious because neither considered all of the medical and lay testimony. However, such an assertion is without merit. Judge Wilson, in her original opinion, considered the testimony of both expert witnesses, the medical records of Dr. Terry, the findings of both functional capacity evaluations, as well as the deposition testimony of Dr. Stimpson. As for the vocational expert testimony, Judge Wilson, as did the Full Commission, found that the testimony of Ms. Jennifer Oubre was more credible than the testimony of Mr. Lamar Crocker. This determination was based on the fact that Mr. Crocker's testimony was based on the 9

15 opinion of the Social Security Administration's decision regarding Claimant's disability application. However, said decision of the Social Security Administration was rendered prior to the final medical opinion of Dr. Terry in Mr. Crocker further testified that Dr. Terry's medical opinion could have made an impact in the Social Security Administration's findings, which, in turn, could have impacted his opinion as well. Ms. Oubre, the expert witness for the employer and carrier, testified that Claimant had transferrable job skills that made her employable in the local job market. Ms. Oubre's expert testimony was based on her review of the medical records outlining Claimant's treatment and permanent work restrictions. At this point, Claimant would have this Honorable Court believe that Ms. Oubre's testimony was not as credible as that of Mr. Crocker's, pointing to the transcript of Ms. Oubre's testimony at the original hearing. Claimant even goes as far as contorting Ms. Oubre's testimony so that it seems favorable to Claimant. However, Claimant's relying on the transcript misleads this Honorable Court as to Ms. Oubre's testimony. Although Ms. Oubre testified that she would possibly alter her vocational opinion after hearing the lay testimony of Claimant and her daughter Ginnie, she did not testify that hearing such would certainly cause her to opine that claimant was permanently and totally disabled. The Full Commission even went as far as stating they found no indication, after reviewing the testimony, that such would have led Ms. Oubre to alter her opinion to the point where she believed Claimant had suffered a total loss of wage,earning capacity. Furthermore, Claimant fails to point out that the reason Ms. Oubre was hearing the testimony of Claimant and her daughter Ginnie testimony for the first time at the hearing-ms. Oubre had been denied the chance to interview Claimant by Claimant's attorney. 10

16 Claimant asserts that Judge Wilson's opinion on remand, and the Full Commission's subsequent confirmation, is not consistent with the opinion handed down by the Court of Appeals. Throughout this appeal, Claimant has asserted that the Administrative Judge and the Full Commission did not abide by the Court of Appeal's ruling that Claimant be found to have suffered a permanent partial or total disability. However, the key word in the Court of Appeal's directive is "or," a conjunction which, according to Merriam' Webster, is "used as a function word to indicate an alternative..." Taking the Court of Appeals' ruling by its plain meaning, the Administrative Judge had a choice of finding that Claimant sustained either a permanent partial or permanent total disability. After reviewing the medical evidence, lay testimony and the vocational expert testimony, the Administrative Judge decided Claimant had sustained a permanent partial disability. By finding that Claimant had suffered a 60% impairment to her left lower extremity, the Administrative Judge, along with the Full Commission, followed the directive of the Court of Appeals that they find that Claimant suffered a "permanent partial or total disability." II. The Administrative Judge, As Well As the Full Commission, Was Correct in Finding That Claimant Sustained a Permanent Partial Disability to Her Left Leg in Accordance With the Opinions of Dr. Cooper Terry The finding of the Administrative Judge, along with the Full Commission's confirmation, that Claimant had sustained a permanent partial disability to her left leg was based on a review and weighing of all the medical evidence presented at the original hearing on the merits. Both concluded, and rightly so, that the most credible medical evidence was that from Dr. Cooper Terry. Dr. Terry was the last physician to evaluate and treat Claimant and, although disputed by Claimant, 11

17 Dr. Terry did take into consideration the nerve damage to Claimant's left leg in his assessment of permanent impairment and restrictions. Furthermore, it is well,established that the injured employee bears the general burden of proof of establishing every essential element of the claim. See e.g. Penrod Drilling Co. v. Etheridge, 487 So. 2d 1330 (Miss. 1986). Claimant alleges that the injury to her left leg has rendered her permanently and totally disabled. Typically, an injury to a scheduled member is subject to a maximum number of weeks allowed under the Schedule for permanent disability. When dealing with a lower extremity, that number is 175 weeks. Although it is certainly possible under our law for an injured employee to prove that a scheduled member injury has resulted in permanent and total disability, the burden is on Claimant to prove that her injury has resulted in a total permanent loss of wage, earning capacity. However, such burden is not an easy one for Claimant to prove. In McDowell v. Smith, 856 So. 2d 581 (Miss. Ct. App. 2003), the Court of Appeals emphasized that an injured employee must show that their injuries rendered him totally occupationally disabled from "any form of gainful employment." See also, Smith v. Jackson Constr. Co., Inc., 607 So. 2d 1119 (Miss. 1992) and Good Earth Development, Inc. v. Rogers, 800 So. 2d 1164 (Miss. Ct. App. 2001). In the instant case, Claimant has failed to prove that she is totally occupationally disabled from any gainful employment. Claimant points this Honorable Court to case law which discusses loss of wage,eaming capacity and the factors that the courts must use in determining the same. However, this is incorrect analysis. As seen throughout the record of this case, Claimant has suffered injury to a scheduled member, not a body as a whole injury. And as such, she must show that she has sustained an industrialloss of use over and above the impairment rating issued by a treating physician or 12

18 permanent and total disability. Only in the rarest of instances can a scheduled member injury be taken out of the schedule. In the two cases cited by Claimant, Smith and Good Earth, both claimants had severe injuries that resulted in high medical impairment ratings as well as significant permanent work restrictions issued from a treating physician that prevented them from engaging in any form of work. Furthermore, both claimants had extremely limited education. Next, Claimant asserts that the finding of the Administrative Judge, along with the Full Commission's confirmation, is based solely on the medical evidence and did not take into account the testimony of Claimant and her daughter, nor did the Administrative Judge consider the expert witness testimony. Such assertions are without merit. The Administrative Judge, in her original findings and opinion, already considered all testimony, including testimony of lay and expert witnesses, at the original hearing on the merits. On remand, the Administrative Judge even noted that "[r]his Order sets forth in detail both lay and medical testimony and, as such, it will not be repeated but is incorporated herein." (Amended Ord. of A.L.J. on Remand at O. Furthermore, as is evident in the initial Order of the Administrative Judge, Judge Wilson very clearly set out her review of the medical evidence and the weight she afforded the testimony of each treating physician and vocational expert. Judge Wilson also described the testimony of both Claimant and her daughter Ginnie. And following the Administrative Judge's initial Order and Opinion on Remand, the Full Commission fully affirmed both orders, affirming as fact finder that the Administrative Judge had reviewed and considered all evidence, affording the proper weight to certain medical and vocational evidence over other medical and vocational evidence. In decades of jurisprudence of the appellate courts of this state, the Commission is charged with the task of weighing all the evidence and determining which evidence will be afforded greater 13

19 weight. As the fact finder, the Commission must further resolve conflicting medical evidence, and the Commission's decision should not be disturbed if it is based on substantial evidence. To this standard, this Honorable Court, as well as the Court of Appeals, has gone further to say that they will not disturb that decision, even if they were to reach a different conclusion than the Commission. River Region v. Adams, 2012,WC,00961,COA, citing Smith v. Tronox, LLC, 76 So. 3d 774, 780 (Miss. Ct. App. 2011) and Raytheon Aerospace Support Servs. v. Miller, 861 So. 2d 330, 336 (Miss. 2003). Claimant's assertions on appeal are in direct and blatant conflict with this long,standing standard of review, and incorrectly replaces the Commission's review and weighing of all the lay evidence, vocational expert testimony and medical evidence with that of the Court of Appeals. It is clear, beyond any doubt, that the evidence reviewed and considered by the Commission, at the very least, meets the substantial evidence standard. As such, the Commission's decision must be allowed to stand. As there was no incorrect application of the law by the Commission, Claimant is requesting that this Honorable Court essentially order the Commission to re,weigh the evidence and reach a conclusion that Claimant finds best fitting given the facts as she has presented them. Finally, Claimant asserts that her limited education, age and lack of special training are factors that limit her ability to work, and as such, merits a finding of a loss of wage,eaming capacity. However, Claimant possesses a OED, which, in terms of employability, is the same as a high school diploma. Although vocational testing did show Claimant had significant deficits in mathematics, she exhibited exceptional skills in spelling and reading, where she scored above a high school level. This testing was taken into consideration by the vocational expert in reaching her opinion. 14

20 CONCLUSION Claimant has failed to prove that the injury to her left leg has rendered her, as she claims, permanently and totally disabled. First, the credible and overwhelming weight of the medical evidence points to the fact that Claimant does have a degree of permanent partial disability, but does not support a claim for permanent and total disability. On the same note, the Administrative Judge's finding on remand, and the Full Commission's affirmation of the same, does not rise anywhere near being arbitrary or capricious, as the finding of a 60% permanent partial disability falls squarely within the Court of Appeal's ruling. Secondly, Claimant's vocational expert's opinion was not based on all of the available medical evidence. Thirdly, Claimant did not perform any job search after October Finally and most importantly, the Commission's Order is based on substantial evidence. There is ample credible evidence in the record to support the Administrative Law Judge's Opinion and the Commission's Order affirming her decision. When reviewing the evidence as a whole, only one conclusion can be made. The Commission's Order should be affirmed in all respects. THIS the 10th day of February, Respectfully submitted, KLAUSSNER FURNITURE CORPORATION DIB/A BRUCE FURNITURE INDUSTRIES AND AMERICAN CASUALTY COMPANY OF READING, PA BY: MARKOW WALKER, P.A. sf/ Amy Lee Topik Amy Lee Topik 15

21 Amy Lee Topik, MSB No MARKOW WALKER, P.A. P. 0. Box Jackson, MS 39236,3669 P: (601) 853,1911 F: (601) 853,8284 ATTORNEYS FOR APPELLEES CERTIFICATE OF SERVICE I, Amy Lee T opik, attorney for the employer and carrier, do hereby certify that I have filed, via ECF, with the Supreme Court a true and correct copy of the above and foregoingappellee's Brief to the Supreme Court to: Roy 0. Parker, Sr., Esq. P. 0. Box 92 Tupelo, MS A courtesy copy has been sent to: Chairman Liles Williams Mississippi Workers' Compensation Commission P. 0. Box 5300 Jackson, MS This the 10th day of February, s/1 Amy Lee T opik Amy Lee T opik 16