Linda Hayes v. Howard Industries, Inc. ( 2019 )

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2018-WC-01160-COA
LINDA HAYES APPELLANT
v.
HOWARD INDUSTRIES, INC. APPELLEE
DATE OF JUDGMENT: 07/18/2018
TRIBUNAL FROM WHICH MISSISSIPPI WORKERS’ COMPENSATION
APPEALED: COMMISSION
ATTORNEY FOR APPELLANT: FLOYD E. DOOLITTLE
ATTORNEYS FOR APPELLEE: RICHARD LEWIS YODER JR.
WILLIAM LAWRENCE THAMES
NATURE OF THE CASE: CIVIL - WORKERS’ COMPENSATION
DISPOSITION: AFFIRMED - 08/06/2019
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE BARNES, C.J., McDONALD AND C. WILSON, JJ.
C. WILSON, J., FOR THE COURT:
¶1. Linda Hayes sustained a neck injury while working at Howard Industries, Inc. and
filed a compensation claim. The Administrative Judge held an evidentiary hearing on the
matter, and the parties presented conflicting expert testimony. Thereafter, the Administrative
Judge entered an order finding Hayes sustained a loss of wage-earning capacity and requiring
Howard Industries to pay Hayes permanent partial disability benefits and future medical
benefits. Howard Industries filed a petition for review. The Mississippi Workers’
Compensation Commission (the “Commission”) then entered an order declining to accept
the Administrative Judge’s determination and found that Hayes did not sustain a loss of
wage-earning capacity. Hayes now appeals and asserts, among other things, that the
Commission’s decision is not supported by substantial creditable evidence. We affirm.
FACTS AND PROCEDURAL HISTORY
¶2. Hayes sustained a neck injury on March 21, 2012, while working at Howard Industries
using an overhead crane to pick up steel. At the time of her injury, Hayes made $11.83 per
hour as an internal assembler and was at an 11-0 pay-grade level.
¶3. Following the injury, Hayes received medical treatment, which Howard Industries
covered. Hayes initially sought medical treatment from an MEA Medical Clinic before being
referred to Dr. Ross Ward at Laurel Bone and Joint Clinic. On May 10, 2012, Dr. Ward
informed Hayes that she was not a surgical candidate and released Hayes to work full duty
with no restrictions beginning May 11. Dr. Ward also referred Hayes to Dr. Vivek Barclay
for pain management.
¶4. Hayes began seeing Dr. Barclay on May 23, 2012. Dr. Barclay gave Hayes work
restrictions, including no overhead work, no lifting over ten pounds, and eight-hour work
days. On May 24, 2012, Hayes returned to work at Howard Industries. Howard Industries
accommodated Hayes’s restrictions from Dr. Barclay.
¶5. On September 4, 2012, Hayes filed a petition to controvert. On September 28, 2012,
Howard Industries filed its answer, admitting compensability.
¶6. On August 23, 2013, Dr. Barclay placed Hayes at maximum medical improvement
(MMI) and stated that Hayes had permanent work restrictions of no heavy lifting, no
overhead reaching, and eight-hour work days and forty-hour work weeks.1 Dr. Barclay
1
At this time, Hayes made $12.56 per hour at Howard Industries and was at an 11-3
pay-grade level.
2
assigned Hayes a 5% whole-person impairment rating.
¶7. On September 16-17, 2013, Robbie Bishop performed a functional capacity evaluation
(FCE) on Hayes at Southern Bone and Joint Rehab. Bishop noted that Hayes had difficulty
with overhead lifting as well as difficulty with heavy lifting and carrying. Overall, Bishop
noted that Hayes could perform light-level work, was able to lift and carry and push and pull
at least twenty pounds occasionally, and was able to remain upright at a frequent level.
¶8. On January 17, 2014, Dr. Jeffrey Summers performed an independent medical exam
(IME) on Hayes at NewSouth NeuroSpine. Dr. Summers reviewed Hayes’s medical records
from MEA, Dr. Ward, and Dr. Barclay. Dr. Summers reported that he did not feel that Hayes
was at MMI and recommended that she begin both a home exercise program and an active
therapy program. On December 23, 2014, Dr. Barclay again placed Hayes at MMI with the
same restrictions.
¶9. Given the conflicting medical opinions, Howard Industries requested Hayes undergo
another IME. The Administrative Judge granted Howard Industries’s request and ordered
Hayes to undergo an IME with Dr. Leon Grigoryev. Dr. Grigoryev performed this exam on
May 1, 2015. Following the examination, Dr. Grigoryev reported that Hayes had reached
MMI and assigned Hayes a 0% impairment rating. He further reported that Hayes had no
work restrictions and no work limitations and that Hayes did not need any further medical
treatment for her March 21, 2012 injury.
¶10. Hayes worked an accommodated job at Howard Industries from August 2013 to
September 2015. Following Dr. Grigoryev’s IME, Hayes’s supervisor requested Hayes
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return to work full duty in September 2015 based on the IME findings. Hayes complied and
worked full duty for four months—from September 2015 to December 2015—with no
complaints. Nonetheless, when Hayes returned to work after Christmas in January 2016,
Hayes told her supervisors that she would not work full duty and requested a job that
complied with Dr. Barclay’s restrictions. Howard Industries terminated Hayes on January
5, 2016, for refusal to perform her required work. At the time of her termination, Howard
Industries paid Hayes $12.91 per hour, and Hayes was at an 11-3 pay-grade level.
¶11. After her termination, Hayes’s union appealed her grievance to arbitration. The
arbitrator, Connie M. Stokes, issued an order on August 3, 2016, stating that Hayes should
not have refused to work the job offered by Howard Industries. However, due to the
uncertainty of Hayes’s physical condition on the date of her termination,2 Stokes decreased
Hayes’s penalty to a six-month suspension. Pursuant to Stokes’s arbitration order, Hayes
returned to work on August 11, 2016. But upon returning, Hayes again refused to work full
duty, so Howard Industries terminated Hayes for a second time on August 23, 2016. At the
time of her second termination, Hayes made $12.91 per hour and was at an 11-3 pay-grade
level.
¶12. Hayes’s union appealed Hayes’s grievance to arbitration again, alleging Howard
Industries failed to accept statements from Hayes’s doctor and documentation concerning
Hayes’s work restrictions. The second arbitrator, Steven A. Zimmerman, issued an order on
August 28, 2017, finding that Howard Industries had properly terminated Hayes for violation
2
Hayes testified that she was in pain when she refused to work full duty in January
2016.
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of company rules and denying all relief requested by Hayes’s union. Zimmerman specifically
noted that Hayes testified that she was not in pain on the day she returned to Howard
Industries in August 2016 and refused to work full duty.
¶13. Even though Dr. Grigoryev performed an IME on Hayes in May 2015, Hayes
continued to see Dr. Barclay in 2016 and 2017. During this time frame, Dr. Barclay
indicated that he had no changes or other recommendations to make after Dr. Grigoryev’s
IME. Dr. Barclay also maintained the same work restrictions for Hayes of no heavy lifting,
no overhead reaching, an eight-hour work day, and a forty-hour work week.
¶14. On July 26, 2017, the Administrative Judge held a hearing to determine Hayes’s
medical rating, restrictions, and permanent disability. At the hearing, Angela Malone3
testified as a vocational expert on behalf of Howard Industries and Kathy Smith4 testified as
a vocational expert on behalf of Hayes. Hayes also sought to admit the vocational report of
Tom Stewart into evidence at the hearing.5 Because Stewart passed away prior to the
evidentiary hearing, Howard Industries objected to the admission of Stewart’s vocational
3
Angela Malone testified that she reviewed all of Hayes’s medical records in
preparation of her February 12, 2014 vocational report. In her report, Malone outlined three
different scenarios based upon (1) Dr. Ward’s release of Hayes to work full duty, (2) Dr.
Barclay’s assigned work restrictions for Hayes, and (3) Bishop’s FCE of Hayes. Malone
also drafted a supplemental vocational report, dated June 23, 2015, after Dr. Grigoryev’s
IME of Hayes.
4
On April 24, 2017, Smith interviewed Hayes for a vocational evaluation. Smith
then drafted a vocational evaluation and loss access report, on Hayes’s behalf, dated June
12, 2017. Smith’s report relied upon information from Dr. Barclay and did not mention Dr.
Grigoryev’s 2015 IME report or the May 2012 medical report from Dr. Ward.
5
Stewart met with Hayes in May 2016 and reviewed medical records provided to him
prior to drafting a vocational report for Hayes dated June 3, 2016.
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report. The Administrative Judge overruled the objection and allowed Hayes to enter
Stewart’s vocational report into evidence.
¶15. Howard Industries sought to admit Stokes’s arbitration order into evidence at the
hearing. Hayes moved to strike and/or exclude Stokes’s arbitration order, and the
Administrative Judge granted Hayes’s motion.
¶16. Following the hearing, on September 11, 2017, Howard Industries filed a motion to
allow and admit additional evidence, specifically the second arbitration order issued by
Zimmerman. The Administrative Judge denied Howard Industries’ motion to allow and
admit additional evidence on October 17, 2017. On October 25, 2017, the Administrative
Judge entered an order finding Hayes sustained a loss of wage-earning capacity and requiring
Howard Industries pay Hayes permanent partial disability benefits and future medical
benefits. Howard Industries then filed a petition for review on November 13, 2017.
¶17. On July 18, 2018, the Commission entered an order rejecting the October 25, 2017
order of the Administrative Judge’s determination and finding that Hayes did not sustain a
loss of wage-earning capacity as a result of her alleged work-related injury.6 The
Commission also rejected the Administrative Judge’s decision to admit Tom Stewart’s
vocational report into evidence and the Administrative Judge’s October 16, 2017 decision
denying Howard Industries’s motion to allow and admit additional evidence. The
6
More specifically, the Commission found: (1) Hayes achieved MMI as of May 1,
2015; (2) Hayes has a 0% permanent partial impairment rating and no work restrictions and
no work limitations; (3) Hayes was able to perform the regular duties of her employment
without restrictions or accommodations from September 2015 to December 2015; and (4)
Hayes did not work for Howard Industries after December 2015 because of her
insubordination, not because of her injury.
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Commission admitted into evidence both Stokes and Zimmerman’s arbitration orders.
¶18. Hayes now appeals, asserting: (1) the Commission’s findings and opinions are not
supported by substantial evidence; (2) the Commission’s findings and opinions are contrary
to the law; (3) the Commission’s findings and opinions are arbitrary and capricious; (4) the
Commission erred when it did not consider all of the evidence of record; (5) the Commission
erred when it excluded the written vocational report of Tom Stewart; (6) the Commission
erred when it admitted the arbitration order of Connie M. Stokes dated August 3, 2016; (7)
the Commission erred when it reversed the Administrative Judge’s order denying Howard
Industries’s motion to allow and admit additional evidence and admitted the arbitration order
of Steven A. Zimmerman dated August 28, 2017; (8) the Commission erred when it adopted
arbitrator Zimmerman’s findings that Howard Industries properly terminated Hayes and that
the IME of Dr. Grigoryev is the controlling medical record; (9) the Commission erred in
finding Hayes had no impairment, no restrictions, and no work limitations; (10) the
Commission erred in finding Hayes’s inability to find employment after diligent job search
was not due to work related impairment, restrictions, and limitations; and (11) the
Commission erred in denying Hayes reasonable and necessary future medical treatment for
her work-related injuries.7
STANDARD OF REVIEW
¶19. “It is well-settled law in this State that the Commission is the ultimate finder of fact
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Hayes’s first, third, fourth, ninth, tenth, and eleventh assignments of error each go
to whether the Commission’s decision is supported by substantial credible evidence.
Because our analysis of Hayes’s first assignment of error applies equally to the others, we
will not address them separately.
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in workers’ compensation cases, and where substantial credible evidence supports the
Commission’s decision, then, absent an error of law, the decision must stand without judicial
interference.” Logan v. Klaussner Furniture Corp., 238 So. 3d 1134, 1138 (¶11) (Miss.
2018) (citing Smith v. Jackson Constr. Co., 607 So. 2d 1119, 1124 (Miss. 1992)). “The
Commission’s decision will be reversed only if it is not supported by substantial evidence,
is arbitrary or capricious, or is based on an erroneous application of the law.” Logan, 238
So. 3d at 1138 (¶11) (quoting Lovett v. Delta Reg’l Med. Ctr., 157 So. 3d 88, 89 (¶7) (Miss.
2015)). We review issues of law de novo. Weathersby v. Miss. Baptist Health Sys., Inc., 195
So. 3d 877, 882 (¶21) (Miss. Ct. App. 2016).
DISCUSSION
I. Whether the Commission’s decision is supported by substantial
credible evidence.
¶20. Hayes first asserts that the Commission’s decision is not supported by substantial
evidence. Hayes’s argument is two-fold. First, Hayes contends that it is obvious that the
Commission did not consider all of the evidence, as mandated by law, because the
Commission did not address certain expert opinions in its order. Second, Hayes contends
that “[t]he only relevant and material evidence as to Ms. Hayes[’s] physical restrictions and
ability to perform work on the date of the hearing before the Administrative Judge is the
opinion of Dr. Barclay.”
¶21. As stated by the Supreme Court, we are
bound by the decision of the Mississippi Workers’ Compensation Commission
if the Commission’s findings of fact are supported by substantial evidence
[. . .] Stated differently, this Court will reverse the Commission’s order only
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if it finds that order clearly erroneous and contrary to the overwhelming weight
of the evidence. A finding is clearly erroneous when, although there is some
slight evidence to support it, the reviewing court on the entire evidence 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) (quoting Hardaway
Co. v. Bradley, 887 So. 2d 793, 795 (¶11) (Miss. 2004)).
¶22. “Where there is conflicting medical testimony, the Commission has the responsibility
to apply its expertise and determine which evidence is more credible.” Weathersby, 195 So.
3d at 882 (¶21) (quoting Washington v. Woodland Vill. Nursing Home, 25 So. 3d 341, 355
(¶33) (Miss. Ct. App. 2009)). “Thus, ‘where medical expert testimony is concerned, the
Supreme Court has held that whenever the expert evidence is conflicting, the Court will
affirm the Commission whether the award is for or against the claimant.’” Weathersby, 195
So. 3d at 882 (¶21) (quoting Raytheon Aerospace Support Servs. v. Miller, 861 So. 2d 330,
336 (¶13) (Miss. 2003)). “The findings of the Commission should be reversed ‘only in rather
extraordinary cases.’” Logan, 238 So. 3d at 1138 (¶11) (quoting Raytheon Aerospace
Support Servs., 861 So. 2d at 335 (¶11)). Based on our review of the record, we do not find
this case to be one that requires reversal.
¶23. To begin, Hayes’s first contention, that the Commission did not consider all of the
evidence because it did not address certain expert opinions, is contrary to the Commission’s
order. In its order, the Commission stated, “The Full Commission gives greater weight to
the medical opinions of Dr. Ward and Dr. Grigoryev, as well as the vocational testimony of
Angela Malone.” The Commission further stated, “Based on the above and the evidence as
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a whole, we find that [Hayes] has not sustained a loss of wage-earning capacity as a result
of her work-related injury.” (Emphasis added). Accordingly, Hayes’s assertion that the
Commission failed to consider all of the evidence lacks merit.
¶24. In support of her second contention, that the Commission committed reversible error
by relying on opinions other than Dr. Barclay’s, Hayes cites Smith v. Commercial Trucking
Co. Inc., 742 So. 2d 1082 (Miss. 1999). In Smith, the Supreme Court found that the
Commission’s underlying decision was not supported by substantial evidence. Id. at 1088
(¶15). There, only one expert performed a complete series of diagnostic tests to determine
the claimant’s injury. Id. at 1086 (¶10). Nonetheless, the Commission gave greater
deference to other experts who “failed or refused to perform tests that would have
conclusively proved or disproved [the claimant’s injury] . . . .” Id. The Supreme Court found
this was improper under Johnson v. Ferguson, 435 So. 2d 1911, 1195 (Miss. 1983), which
provides “[w]hen an expert’s opinion is based upon an inadequate or incomplete
examination, that opinion does not carry as much weight and has little or no probative value
when compared to the opinion of an expert that has made a thorough and adequate
examination.” Id. at 1085, 1087 (¶¶9, 13). Accordingly, the Supreme Court reversed and
remanded the Commission’s decision. Id. at 1088 (¶16).
¶25. Smith is inapplicable here. Unlike Smith, there is no evidence in this case that certain
experts performed “inadequate or incomplete examination[s].” Rather, there is simply
conflicting medical testimony. Dr. Ward and Dr. Grigoryev assigned Hayes a 0%
impairment rating, and Dr. Barclay assigned Hayes a 5% impairment rating. Dr. Ward and
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Dr. Grigoryev also assigned Hayes no work restrictions and limitations whereas Dr. Barclay
assigned Hayes permanent work restrictions.
¶26. Where there is conflicting expert testimony, it is the Commission’s responsibility “to
apply its expertise and determine which evidence is more credible.” Weathersby, 195 So. 3d
at 882 (¶21) (quoting Washington, 25 So. 3d at 355 (¶33)). As noted by the Supreme Court
in Smith, “[t]he test in [a multi-expert] case is not one of the weight of the sheer number of
duly qualified experts, but rather the credibility of the expert(s) based on the weight of
objective proof, evidence, or results used in rendering an opinion.” Smith, 742 So. 2d at
1087 (¶13). After taking all of the evidence under consideration, the Commission gave
greater weight to the medical opinions of Dr. Ward and Dr. Grigoryev, as well as the
vocational testimony of Angela Malone. “[T]he Commission is the ultimate finder of fact
in workers’ compensation cases . . . .” Logan, 238 So. 3d at 1138 (¶11) (citing Smith, 607
So. 2d at 1124). Upon our own review of the record, we find the Commission’s decision is
supported by substantial credible evidence, so we affirm.
II. Whether the Commission’s decision is contrary to the law.
¶27. Hayes next contends that the Commission’s decision is contrary to law. Under
Mississippi law, “[a] rebuttable presumption of no loss of wage-earning capacity arises when
the claimant’s post-injury wages are equal to or exceed his preinjury wage.” Weathersby,
195 So. 3d at 883 (¶25) (quoting Gregg v. Natchez Trace Elec. Power Ass’n, 64 So. 3d 473,
476 (¶12) (Miss. 2011)). Hayes asserts that the Commission’s finding that she did not rebut
this presumption is contrary to law. We disagree. Based on our review, the Commission’s
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decision did not rest on any finding about the rebuttable presumption of no loss of wage-
earning capacity. The Commission simply concluded that Hayes’s unemployability was
because of her insubordination, not because of her injury. In reaching this conclusion, the
Commission relied on Lott v. Hudspeth Ctr., 26 So. 3d 1044, 1050 (Miss. 2010). In Lott, the
Supreme Court clarified:
It is true that a claimant may establish a prima facie case [of loss of wage-
earning capacity] by showing that, despite a reasonable job search, she is
unable to find the same or similar employment. However, this Court has held
that a conclusion that the employee is disabled rests on a finding that the
claimant could not obtain work in similar or other jobs and that the claimant’s
unemployability was due to the injury in question.
Id. at 1050 (¶19) (emphasis added) (citation and internal quotation mark omitted). There, the
Supreme Court went on to find that “there [wa]s substantial evidence that [Lott’s] lack of
employment was not due to [Lott’s] injury.” Id. at 1050 (¶20).
¶28. Here, the Commission concluded the same was true for Hayes. The Commission
reached its conclusion based upon the following factual findings: (1) Hayes reached MMI
on May 1, 2015; (2) Hayes had a 0% permanent partial impairment rating; (3) Hayes has no
restrictions and no limitations with respect to work activities; (4) Hayes was able to perform
the regular duties of her employment at Howard Industries without accommodation from
September 2015 to December 2015; and (5) Hayes did not continue to work at Howard
Industries after December 2015 because of her insubordination, not because of her injury.
Because the Commission’s conclusion does not turn on any finding related to the rebuttable
presumption regarding no loss of wage-earning capacity, Hayes second assignment of error
lacks merit.
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III. Whether the Commission erred in excluding Stewart’s vocational
report and in admitting Stokes and Zimmerman’s arbitration
orders.
¶29. Hayes asserts that the Commission erred by excluding the written vocational report
of Tom Stewart and admitting the arbitration order of Stokes. Hayes also asserts that the
Commission erred by rejecting the Administrative Judge’s decision to deny Howard
Industries’ motion to admit the arbitration order of Zimmerman. We disagree.
¶30. The Commission has wide discretion in the administration of compensation claims
and operates under a relaxed standard in making evidentiary findings. See Miss. Code Ann.
§ 71-3-55(1) (Rev. 2011); Delta Drilling Co. v. Cannette, 489 So. 2d 1378, 1380-81 (Miss.
1986). Pursuant to section 71-3-55(1),
[i]n making an investigation or inquiry or conducting a hearing, the
commission shall not be bound by common law or statutory rules of evidence
or by technical or formal rules or procedure, except as provided by this
chapter, but may make such investigation or inquiry or conduct such hearing
in such manner as best to ascertain the rights of the parties.
“It is a rare day when we will reverse the Commission for an action taken in the
implementation and enforcement of its own procedural rules.” Delta Drilling Co., 489 So.
2d at 1380-81.
A. Stewart’s Vocational Report
¶31. Hayes first contends that the Commission erred in rejecting the Administrative
Judge’s introduction of Stewart’s vocational report into evidence. Stewart prepared a
vocational report for Hayes dated June 3, 2016. But prior to Hayes’s July 26, 2017
evidentiary hearing, Stewart passed away. Still, Hayes sought to enter Stewart’s vocational
13
report into evidence at the hearing. Howard Industries objected to the admission of Stewart’s
vocational report because Stewart could not be cross-examined and the report could not be
authenticated. The Administrative Judge nonetheless allowed Stewart’s vocational report
to be admitted into evidence. On review, the Commission reversed the Administrative
Judge’s ruling because Stewart was deceased at the time of the evidentiary hearing.
¶32. Hayes contends the Commission’s reversal constituted error because “[h]earsay, even
if not corroborated in the traditional sense, is highly probative when it has a strong indicia
of reliability and can in many situations be substantial evidence.” While this may be true,
we do not find that the Commission abused its discretion by excluding Stewart’s vocational
report. Further, “[f]or a case to be reversed based on the admission or exclusion of evidence,
a party must be actually prejudiced, harmed, or have a substantial right adversely affected.”
Walls v. Franklin Corp., 177 So. 3d 1156, 1164 (¶35) (Miss. Ct. App. 2015) (quoting Ill.
Cent. R.R. v. Brent, 133 So. 3d 760, 779 (¶42) (Miss. 2013)). At the evidentiary hearing,
Hayes had another vocational expert, Smith, testify on her behalf, and Hayes introduced
Smith’s vocational report into evidence. Accordingly, Hayes was not prejudiced or otherwise
adversely affected by the exclusion of Stewart’s report, and this issue lacks merit.
B. Stokes and Zimmerman’s Arbitration Orders
¶33. In regard to the admission of the arbitration orders, Hayes contends that the
Commission improperly reversed the Administrative Judge’s rulings excluding Stoke’s order
during the hearing and later denying Howard Industries’s motion to admit Zimmerman’s
order. Pursuant to section 71-3-1, Workers’ Compensation Law “shall be fairly and
14
impartially construed and applied according to the law and the evidence in the record[.]”
This Court has previously found that “the Commission enjoys great latitude in deciding
whether to reopen a workers’ compensation case for the admission of additional evidence.”
Dep’t of Agric. & Commerce v. Austin, 150 So. 3d 994, 999 (¶22) (Miss. Ct. App. 2014)
(quoting Mid-Delta Home Health Inc. v. Robertson, 749 So. 2d 379, 388 (¶33) (Miss. Ct.
App. 1999)). “The decision to reopen a workers’ compensation case is purely discretionary
with the Commission, and the Commission’s order will not be reversed absent a clear abuse
of discretion.” Id. (quoting Mid-Delta Home Health Inc., 749 So. 2d at 387 (¶29)).
¶34. Here, the Commission reversed the Administrative Judge’s exclusion of Stokes and
Zimmerman’s arbitration orders. We cannot say the Commission abused its wide discretion
in doing so. Particularly, as to Zimmerman’s order, based on our review of the record,
Howard Industries did not receive Zimmerman’s order until after the Administrative Judge’s
evidentiary hearing. And, almost immediately, Howard Industries filed a motion to allow
and admit additional evidence. We thus find the Commission did not abuse its discretion in
rejecting the Administrative Judge’s decision denying Howard Industries’ motion to admit
the additional evidence.
¶35. Hayes also contends that both Stokes and Zimmerman’s arbitration orders “are
hearsay within hearsay[] and are doubly unreliable and inadmissible.” But as discussed
supra, the Commission operates under a relaxed evidentiary standard. Moreover, Hayes does
not refer this Court to any case law demonstrating that it is improper for the Commission to
admit relevant arbitration orders into evidence. As the appellant, Hayes “has the duty to
15
make more than mere assertions and should set forth reasons for h[er] arguments and cite
authorities in their support.” Walker v. State, 823 So. 2d 557, 562-63 (¶13) (Miss. Ct. App.
2002). Additionally, Hayes was not prejudiced or otherwise adversely affected by the
admission of the arbitration orders. Hayes had a fair opportunity to present her evidence and
arguments to both the arbitrators and the Commission. For these reasons, Hayes’s
assignments of error that the Commission improperly admitted Stokes and Zimmerman’s
arbitration orders lack merit.
¶36. Finally, Hayes asserts that Mississippi Code Annotated section 71-3-1(1) (Rev. 2011)
“mandates that the Commission make its decision based on the evidence in the record, not
adopt the decision of an arbitrator.” While the Commission does reference the arbitration
orders in its order, the Commission does not state that it “adopted” either arbitration order
in making its decision. Rather, the Commission’s order appropriately sets forth the
Commission’s factual findings and the law it followed in reaching its decision. Accordingly,
Hayes’s assertion that the Commission improperly adopted the decisions of the arbitrators
lacks merit.
CONCLUSION
¶37. The Commission is the ultimate fact finder in workers’ compensation matters. Logan,
238 So. 3d at 1138 (¶11). Upon review, we find that substantial credible evidence supports
the Commission’s decision here, and that the Commission’s decision is not contrary to the
law. Further, the Commission has wide discretion in the administration of compensation
claims. The Commission did not abuse this discretion in its admission or exclusion of
16
evidence in this matter. Mindful of our deferential standard of review, we affirm the
Commission’s decision.
¶38. AFFIRMED.
BARNES, C.J., CARLTON AND J. WILSON, P.JJ., GREENLEE,
WESTBROOKS, LAWRENCE AND McCARTY, JJ., CONCUR. TINDELL AND
McDONALD, JJ., CONCUR IN RESULT ONLY WITHOUT SEPARATE WRITTEN
OPINION.
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