Walmart Associates, Inc. and New Hampshire Insurance Company v. Joyce Cauley

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2020-WC-00929-COA

WALMART ASSOCIATES, INC. AND NEW APPELLANTS
HAMPSHIRE INSURANCE COMPANY

v.

JOYCE CAULEY APPELLEE

DATE OF JUDGMENT: 07/31/2020
TRIBUNAL FROM WHICH MISSISSIPPI WORKERS’ COMPENSATION
APPEALED: COMMISSION
ATTORNEYS FOR APPELLANTS: CASEY DALE YOUNGER
NICHOLAS DENSON GARRARD
ATTORNEY FOR APPELLEE: TAYLOR RHUE BRINKLEY
NATURE OF THE CASE: CIVIL - WORKERS’ COMPENSATION
DISPOSITION: AFFIRMED - 06/15/2021
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

BEFORE BARNES, C.J., McDONALD, McCARTY AND EMFINGER, JJ.

McCARTY, J., FOR THE COURT:

¶1. A longtime employee of Walmart suffered a work-related injury when the display at

the end of an aisle fell on her. Walmart appeals the Mississippi Workers’ Compensation

Commission’s decision to affirm the administrative judge’s award of benefits. Finding that

the decision was supported by substantial evidence, we affirm.

FACTS

A. Cauley is injured at work.

¶2. Joyce Cauley began working for Walmart nearly two decades ago. In 2008 she was

hired as an assistant store manager at the Walmart in Laurel. As an assistant manager,
Cauley was responsible for overseeing certain areas of the store. In addition to managing and

training employees, she performed various tasks such as stocking shelves, building endcaps,

zoning, cleaning, taking inventory, assisting customers, and more.

¶3. The day before Cauley’s injury was Mother’s Day. The store was particularly busy,

and Cauley was the only manager working. She was juggling multiple tasks when she heard

that a display at the end of an aisle had fallen twice in the garden center. Knowing the

endcap could fall again, Cauley ordered that it be taken down.

¶4. The following day, Cauley began her shift by surveying the garden center as her

manager had directed. She came upon the department manager who was stocking an endcap.

Realizing it was the same endcap that had fallen twice the day before, Cauley again ordered

that it be taken down.

¶5. Just as she told her colleague to “take it down now,” the endcap fell on Cauley. She

testified that the endcap “threw” her backward and knocked her left shoulder into a steel

beam. She then fell across a low pallet and onto the cement floor. When asked at the

administrative hearing whether she knew immediately that she was hurt, Cauley responded,

“Actually, at that time, I was just stunned and numb” and “I couldn’t feel anything.”

B. Cauley receives treatment.

¶6. Cauley notified Walmart of her injury and sought treatment the day of the

incident—May 9, 2016. She was diagnosed with contusions to her shoulder and back. The

clinic report noted that she was experiencing constant aching and throbbing in her back, left

shoulder, and arm. She was given medication and the following restrictions: “Overhead

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working may not be performed. Pushing and pulling should not be performed. Carrying

should be limited to 10 pounds or less. Reaching overhead may not be performed.”

¶7. Cauley returned to the clinic two days later with pain in her left shoulder and arm,

right shoulder, back, and pelvic area. She was diagnosed with contusions to her left and right

shoulders, lower back, and pelvis and given the same work restrictions as her previous visit.

The doctor referred her to Southern Bone & Joint Specialists for further evaluation.

¶8. About a week later, Cauley began treatment with Dr. Michael Patterson at Southern

Bone & Joint. She presented with a low-grade ache in her left shoulder and pain radiating

from her lower back to her buttocks and thighs. Dr. Patterson noted in his report that this

pain was not present before the work accident but was present afterward. X-rays of her

lower back did not reveal fractures or dislocations. For treatment Dr. Patterson

recommended medication and physical therapy to regain range of motion in her shoulder.

He determined that Cauley was unable to work.

¶9. The following week, Cauley underwent an occupational therapy evaluation. It was

estimated Cauley would need at least six weeks of therapy and that she could progress to full

functional use for work-related responsibilities.

¶10. For the next several months, Cauley continued treatment at the clinic. She attended

multiple physical therapy sessions per week. She reported “a lot of back pain” and described

it as moderate to severe, with symptoms flaring during mild activity. Cauley said that the

pain subsided with medication.

¶11. She complained of numbness, tingling, and other sensations in her neck, arms, and

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back. She testified at the hearing that she felt like she had “bugs crawling” on her arm. Dr.

Patterson ordered MRIs of Cauley’s cervical and lumbar spine, which revealed an ossified

disk herniation but no other acute problems. He also recommended Cauley undergo a work-

conditioning program. He noted that Cauley was still unable to work but that she “is

interested in getting back to work and says it is a good job that she needs to continue to

keep.”

¶12. Over the next few months, Cauley slowly progressed through her treatment plan

despite pain in her left shoulder, neck, and lower back. She continued with physical therapy

and the work-conditioning program, though her attendance was sporadic. One report noted

she was in so much pain that she did not attend treatment. Nonetheless, she showed

improvement, adjusting well to additional light lift-and-carry exercises in therapy. One

report stated that Cauley was “overall able to perform exercises with good form.”

¶13. Dr. Patterson ordered Cauley complete additional work conditioning then return to

work on September 1, 2016, with restrictions. He stated that she was “permitted to engage

in a light level of work activity, which means lifting 20 pounds maximum, frequent lifting

or carrying of objects that weigh up to 10 pounds, walking or standing to a significant degree,

or sitting most of the time with pushing and pulling or arm/leg controls.”

C. Cauley returns to work and continues treatment.

¶14. Cauley resumed her role as assistant manager at the Laurel Walmart in September

2016, receiving the same pay as before her injury. However, she was only able to return to

work with accommodations. The accommodations were through medical restrictions and

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occasional leaves of absence.

¶15. Meanwhile, Cauley continued treatment with Dr. Patterson. He conducted a muscle

and nerve evaluation, which revealed a pinched nerve in the cervical spine. A functional

capacity examination (FCE) was conducted to determine Cauley’s ability to perform work

tasks.

¶16. The FCE showed that Cauley was able to perform 76.2% of the physical demands of

her assistant manager job. The report stated that Cauley put forth full effort and was able to

perform within the light physical demand category with occasional lifting up to 20 pounds

below waist height and that she could occasionally tolerate reaching above her shoulders,

bending, kneeling, and crawling. It included a recommendation of 1% whole person

impairment and that Cauley could return to work full time with restrictions.

¶17. Cauley began treatment with pain management specialist Dr. Brian Trussell in 2017

and has seen him regularly since then. Dr. Trussell has pursued non-surgical treatment

options including nerve injections and medication.

¶18. Upon initial evaluation, Dr. Trussell noted that Cauley was experiencing pain in her

back, neck, left shoulder, and left arm with numbness in her fingers. The pain was

exacerbated by sitting, standing, leaning forward, lying on her back, lying on her stomach,

driving, walking, and exercising. He diagnosed her with cervical pain, degeneration of the

lumbar spine, and bilateral mid-thoracic pain. He expressed concern that Cauley had not

been treated for her thoracic-spine pain and that it was possible she had an injury in the upper

thoracic causing her shoulder pain. He noticed tenderness in the area of her body that hit a

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steel beam during her work injury and ordered x-rays and an MRI to evaluate. After

reviewing the scans, Dr. Trussell recommended nerve blocks to ease the pain.

¶19. Over the next several months, Cauley received nerve blocks that temporarily relieved

80-90% of her pain. Dr. Trussell confirmed his initial diagnosis of lumbar spondylosis based

on her response to these injections. Cauley also underwent radio-frequency ablation, a non-

surgical procedure used to reduce nerve pain. The procedure temporarily relieved 75% of

the pain in her back.

¶20. Dr. Rahul Vohra conducted an employer medical evaluation (EME) on Cauley in

October 2017. Dr. Vohra believed Cauley was at maximum medical improvement (MMI)

with regard to her cervical spine and thoracic spine with a 1% impairment rating to the body

as a whole. Dr. Vohra agreed with Dr. Trussell’s recommendation of radio-frequency

ablation and opined that if the procedure was unsuccessful, Cauley would be at MMI with

regard to her lumbar spine with a 2% body-as-a-whole impairment.

¶21. Despite Dr. Trussell’s treatments, Cauley’s pain persisted, with additional aches in her

hips, buttocks, and thighs. He diagnosed her with pelvic inflammation, lumbar-spine

degeneration, and thoracic pain. He prescribed medication and ordered additional injections

to alleviate her pain. The injections provided relief for a couple of days before the pain

returned. Although Cauley experienced difficulty performing daily tasks, she continued

working.

¶22. Over the next year, Cauley received more nerve blocks and continued radio-frequency

ablation. Coupled with medication, this treatment provided some relief, as Cauley noted

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increased function, improved ability to work, and overall better quality of life.

¶23. Cauley continued to report pain in her back, shoulder, and arm, as well as tingling in

her forearm and fingers. Cauley noted increased lower back pain, which Dr. Trussell’s report

described as “stabbing, burning, aching, shooting, and radiating.” She also reported severe

muscle spasms in her back. Dr. Trussell ordered additional MRIs, which revealed internal

disk disruption and nerve damage in the lumbar spine, along with mild spinal degeneration.

He also administered an epidural steroid, among other injections.

¶24. Cauley returned to Dr. Vohra, who opined that Cauley had reached MMI and suffered

an impairment rating of 2% to the whole body. Dr. Vohra recommended another FCE and

medium level work restrictions. He claimed that additional procedures would not be

beneficial but that intermittent use of medication could still provide some relief.

¶25. Dr. Trussell agreed with Dr. Vohra’s latest finding of MMI but hesitated to designate

an impairment rating before the next FCE. He continued to place Cauley on light work duty.

Both doctors agreed Cauley was not a surgical candidate.

¶26. Cauley’s pain, particularly the burning and aching back pain and tingling in her arms,

persisted into 2019—three years since her work injury. Cauley expressed that her pain was

exacerbated by walking, sitting, standing, lying down for extended periods, prolonged

activity, and bending backward and alleviated by sitting, heat, stretching, and medication.

At that time Dr. Trussell ordered an FCE and placed her at MMI pending the results. He also

kept her on light work duty. He believed she would no longer benefit from procedures but

that annual physical therapy would help.

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¶27. An FCE was conducted. The FCE report stated:

Ms. Cauley demonstrated the ability to perform work at the Medium level . . .
with the willingness to perform manual material handling tasks at the Light
level. Ms. Cauley has a decreased capacity due to low back pain and fatigue.
She was unable to complete the repetitive squat task and the kneeling task due
to pain and fatigue. She was also limited on floor to waist lifting, pushing,
pulling, unilateral and bilateral carrying tasks.

The report also explained that due to Cauley’s “self-limiting and inconsistent behavior”

during the evaluation, her maximum work capacity could not be determined at that time.

¶28. Cauley later testified about the difficulties she encountered in completing the FCE.

While the FCE report noted “self-limiting and inconsistent behavior,” Cauley testified that

the only reason she stopped certain activities was because she was in significant pain. Letters

from Dr. Trussell support this contention. She stated that the FCE exercises brought on

“bad” symptoms and explained, “My back draws up on me. It gets real stiff. Shooting

pains.” She testified that during the lifting and placing boxes exercise “it just got to where

I couldn’t do it. I’d have to stop. At one point, I actually almost fell.”

¶29. Following the FCE, Cauley reported continued back and shoulder pain. Dr. Trussell

noted that the pain was “intermittent, worse in the morning and evening, and described as

aching, shooting, and throbbing in nature.” He ordered an MRI of her shoulder, which

Walmart did not approve.

D. Cauley receives accommodations at work.

¶30. Cauley continued working as an assistant manager at the Laurel Walmart with

accommodations in the form of medical restrictions and leaves of absence. But even with

the accommodations, Cauley faced limitations due to her work injury. At the hearing before

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the AJ, Cauley testified as to the difference in her work abilities before and after her injury.

¶31. Before her injury, she worked 9-, 10-, and 12-hour shifts—sometimes more—and had

no problem being on her feet all day. She testified that she regularly helped unload trucks

and stack and move pallets. She stated, “Before I had the injury, I mean, I could unload

almost, not all, but the majority of the freight.” According to Walmart the role of assistant

manager does not require lifting more than 25 pounds. However, Cauley testified that she

lifted items weighing 50 to 60 pounds. She also stacked and pulled pallets and stocked

shelves, which required her to reach overhead and crouch down for extended periods of time.

Cauley testified that she had no problem doing her job prior to her work injury.

¶32. After her injury, Cauley struggled to perform basic duties at home and at work. Her

medical records reflect that she could not bring herself to complete household chores. She

had trouble arranging items on lower shelves at work. She testified, “I’ve actually had

somebody have to come pick me up out of the floor.” She still suffers from back and

shoulder pain, as well as tingling in her arms. She testified that she still feels the “bugs

crawling” on her arm and that her “arm goes completely to sleep.”

¶33. In addition to following medical restrictions, Walmart allowed Cauley to take a

number of intermittent and personal leaves of absence. On two occasions Dr. Trussell

completed FMLA forms outlining the terms of intermittent leaves of absence. The first

intermittent leave of absence was granted in September 2018. Dr. Trussell stated that due

to her injury, Cauley would experience episodic flare ups that would prevent her from

performing essential functions of her job. He wrote, “Patient may experience severe pain

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causing inability to work.” Accordingly, he stated that she would need to miss work for two-

day periods twice a month.

¶34. Dr. Trussell ordered a new intermittent leave of absence that would be in effect for

one year beginning January 31, 2019. He again noted that Cauley would experience episodic

flare ups and “increased pain during flare ups causing inability to function/work.” Under this

leave, Cauley was permitted to miss work 2 to 3 times per month, 3 to 4 days per episode.

¶35. Cauley was also granted personal leaves of absence to care for her brother, who

struggles with severe long-term injuries from a near-fatal car wreck. She testified that her

brother requires assistance with basic functions like eating, moving around, and getting to

doctors’ appointments. Her brother was essentially unable to walk and uses an electric

wheelchair. Cauley is one of the few people able to care for him.

E. Cauley is placed on “inactive status.”

¶36. Cauley took a personal leave of absence to care for her brother in early 2019.

Walmart granted that leave, which was set to expire on May 15, 2019. She was scheduled

to return to work on May 16. Cauley testified that she fully intended to return to work that

day but experienced back pain that prevented her from coming to work. She did not go to

work on May 16, 17, or 18.

¶37. Cauley testified that she contacted her manager Manny Martinez to tell him she would

not be at work on May 16. She further testified, “I contacted Manny and told him I wasn’t

coming in, and he said okay.” When asked by counsel whether she told Martinez why she

would not be at work, she responded, “I believe I told him it had to do with my back because

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I have back spasms.”

¶38. Cauley missed work May 16-18 but showed up early for her shift on May 19. A few

hours after Cauley’s arrival, Martinez called her into his office. According to Cauley,

Martinez told her that he wanted to give her a chance to “get around and talk to everybody”

and that he was “going to have to take my keys and radio.” He then informed Cauley that

she was being placed on inactive status for 30 days and that Walmart was in the process of

replacing her.

F. Cauley searches for a job and continues treatment.

¶39. The manager told Cauley she would have to search for new jobs on “the Wire,” an

online portal for Walmart employees. She would have 30 days to look for a position at

another Walmart store before being terminated. While in his office that day, Martinez and

Cauley accessed the Wire but found no jobs available. He told her to check back periodically

and to contact the human resources manager as she would help Cauley relocate to another

store. Cauley called HR Manager Nikki Williams later that day and told her what Martinez

had said. According to Cauley, the HR manager said she “had no business calling her, and

not to call her again.”

¶40. Cauley encountered obstacles when applying for positions within Walmart. She

testified that she logged on to the Wire several more times after the day she checked it with

Martinez. First, she attempted to apply for a position at the Laurel Walmart but was blocked

from applying at that store because of her inactive status. However, the system did allow her

to apply for an asset protection management position at the Laurel store, but she was not

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hired.

¶41. According to Cauley, the only other available positions were for trainees. Because

she was already a manager, she was unable to apply for trainee positions within the system.

The Wire would not allow her to apply for jobs below that of assistant manager.

¶42. She contacted Martinez to request she be reinstated in her old position as assistant

manager, which he denied. When asked at the hearing whether she would have accepted her

old job if offered reinstatement, Cauley responded, “Yes.” She also asked Martinez for

advice in navigating the Wire. Martinez suggested she consider hourly positions, department

management, or other jobs. Cauley testified that she did try to apply to those types of

positions but that the system said she was not qualified.

¶43. Martinez then told her to contact Melody at the Market HR office to ask that she open

an exception for Cauley to apply for jobs below the assistant-management level. When

Cauley called, Melody asked which jobs interested her. Cauley testified, “I told her any of

them, as I just needed a job.” After requesting the exception, Cauley checked the Wire and

found the only available jobs were at the Laurel store, where they would not hire her due to

her inactive status.

¶44. Cauley also reached out directly to contacts at other Walmart locations to ask about

any potential openings. She testified that she contacted an employee at the store on Highway

49 and was told they had no positions available. She also called an employee at the Petal

store several times but was unable to reach her.

¶45. Despite claiming that Cauley would be terminated after 30 days of inactive status,

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Walmart never fired her. As of the date of her administrative hearing, Cauley still had not

been terminated. When asked why Cauley was not terminated after 30 days, the HR manager

responded, “I don’t know.” Walmart filled Cauley’s position within a month of placing her

on inactive status, yet the company maintained her employment.

¶46. After hitting a brick wall, Cauley expanded her job search beyond Walmart.

According to her resume, she was experienced in retail management, sales, sewing, and

decorating. Residing in southeastern Jones County, Cauley applied for jobs in Ellisville,

Laurel, Petal, and Hattiesburg. She testified that Laurel and Petal are both about a thirty

minute drive from her house and that it takes longer to get to Hattiesburg. From May to

September 2019, Cauley applied for at least 14 jobs in her area and beyond.

¶47. In July, Cauley filed applications with Lowe’s, Comcast, Team Builders, and a child

care provider in Ellisville. The next month she posted her resume on Indeed.com. She

applied for jobs at BancorpSouth and Carter’s Jewelry in Petal. She applied for an assistant

manager position at Krispy Kreme Doughnuts in Hattiesburg, and she called Lenny’s in

Hattiesburg to ask if they were hiring. In September she filed applications for the following

jobs in Hattiesburg: office assistant at Furniture Direct, assistant manager at Kirkland’s,

sales associate at Michael’s, receptionist at Wellness Center, call center at Maximus, and

sales associate at Jo-Ann’s Fabric and Craft. She also applied to be a customer service

associate at Lowe’s in Petal.

¶48. While searching for a job, Cauley continued treatment with Dr. Trussell. He wrote

the following in a letter to Walmart counsel:

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After having worked with this patient for a period of time, I do recognize her
willingness and desire to return to work and note she has had some significant
difficulty with pain. Based on the functional capacity evaluation and her visit
with Dr. Vohra, I do believe the patient is most likely at a medium-duty work
level. I do also believe the patient should be limited to lifting no more than 50
pounds occasionally and should only be able to squat, stoop, or kneel
occasionally. I feel the patient would be able to perform minimal tasks with
her hands frequently with weights less than 10 pounds.

¶49. Cauley’s last visit with Dr. Trussell was in September 2019. He reported that her pain

persists and “is exacerbated by walking, sitting, standing, lying supine, prolonged activity,

and bending forward and is alleviated by changing positions, medications, heat, as well as

rest.” He also noted, “She has reached a point to where she is unable to proceed with any

new treatment regimen although we have ordered MRI of the left shoulder and physical

therapy, which are not approved.”

¶50. The week before her administrative hearing, Cauley got a job through her Indeed.com

post as a head cashier at Lowe’s in Petal earning $13.98 an hour. Cauley testified at the

hearing that this position is similar to that of customer service manager at Walmart—a

position she would have taken if offered or available to her.

COURSE OF PROCEEDINGS

¶51. Cauley filed a petition to controvert naming Walmart as her employer and New

Hampshire Insurance Company as its carrier.

¶52. The administrative judge (AJ) conducted a hearing. The parties stipulated that

Cauley’s average weekly wage was $948.25 and that she suffered a 2% impairment rating

to the body as a whole. The AJ heard testimony from Cauley, Laurel Walmart Manager

Manny Martinez, and Walmart Market HR Manager Nikki Williams.

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¶53. Martinez testified that Cauley was placed on inactive status because of the number of

days she missed work during the year. He explained that the Laurel Walmart was an

“Academy,” meaning employees throughout the region trained at that store, so manager

attendance was especially important. He stated that it was “a business decision made for that

store” to place Cauley on inactive status, whereby she could not work at the Laurel location

and would have 30 days to find a position at another Walmart.

¶54. Regarding the reason Cauley missed the days for which she was placed on inactive

status, Martinez provided the following testimony:

Q. And the days she missed throughout the year, do you know why she
missed those days?

A. Due to her back. The days that she called out?

Q. Yes.

A. Due to her back.

¶55. Martinez attempted to clarify that 52 of Cauley’s absences were allegedly “in

question” because 24 absences were not reported and another 28 were denied. But when

asked on cross why Cauley missed those days in question, Martinez again responded, “Due

to her back.”

¶56. Martinez spoke about his impression of Cauley based on his time as her colleague.

Q. . . . So based on your knowledge and experience of working with Ms.
Cauley, if she were to apply to another assistant management job at any
of the other local stores, do you think she would have been hired?

A. I believe she has the ability; and if they, you know, would have
interviewed her with her being seasoned, she would have been a good
candidate.

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Q. But in order to get an interview, you have to apply for a job. Right?

A. Yes, sir.

Q. All right. So let me ask you this: Was she a solid employee?

A. Yes, sir.

Q. When she was at work?

A. Absolutely.

¶57. Like Martinez, Williams testified that Cauley was placed on inactive status because

she missed an excessive number of work days. As HR manager, Williams was responsible

for overseeing Cauley’s leaves of absence. In her testimony, she acknowledged that Cauley

had taken leaves of absence due to her work-related injury and to care for her brother.

Williams and Cauley exchanged a series of text messages during and after her most recent

leave of absence. Responding to Cauley’s message explaining why she had not contacted

her, Williams sent the following: “There is no need for excuses. Do what you must to heal;

and once you return to the workplace, your store manager will speak with you. Enjoy the rest

of your evening.”

¶58. Williams also testified about Cauley’s work performance. When asked whether

Cauley had the experience for an assistant manager position at another Walmart, Williams

stated, “Absolutely.” She noted, “[S]he’s a solid performer, and she works in a facility where

top talent is typically promoted from that store.”

¶59. The AJ ruled in a detailed, thirty-three-page decision. She determined that Cauley

reached MMI on December 7, 2018, and found that Cauley suffered a 25% loss of wage-

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earning capacity. The AJ found that Cauley’s job search was adequate and not a “mere

sham.” She awarded temporary total disability benefits in the amount of $468.63 per week

from the date of injury to the MMI date with credit for wages paid during that time and

permanent partial disability benefits in the amount of $158.04 per week beginning

immediately after the MMI date. The award also included any penalties and interest and

medical services and supplies applicable under statute.

¶60. The Commission adopted and affirmed the AJ’s decision. Walmart timely appealed,

arguing five assignments of error. For clarity, we combine some of the issues raised.

STANDARD OF REVIEW

¶61. The Commission is the ultimate finder of fact in workers’ compensation cases. Pruitt

v. Howard Indus. Inc., 232 So. 3d 822, 825 (¶7) (Miss. Ct. App. 2017). “When the

Commission accepts the findings and conclusions of the administrative judge, this Court

reviews those findings and conclusions as those of the Commission.” Id.

¶62. “Our scope of review in workers’ compensation cases is limited to a determination

of whether the decision of the Commission is supported by substantial evidence.” River

Regions Health Sys. v. Adams, 115 So. 3d 863, 866 (¶13) (Miss. Ct. App. 2013). “We will

only reverse the decision of the Commission if it is clearly erroneous and contrary to the

overwhelming weight of the evidence.” Id.

¶63. We review questions of law de novo. Prairie Farms Dairy v. Graham, 270 So. 3d 37,

41 (¶9) (Miss. Ct. App. 2018). Absent error of law, this Court must affirm the Commission’s

decision so long as it is supported by substantial evidence. Id.

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DISCUSSION

I. Substantial evidence supported the AJ’s findings regarding loss of
wage-earning capacity.

¶64. Walmart challenges the AJ’s findings regarding loss of wage-earning capacity.

Namely, Walmart argues that Cauley failed to overcome the rebuttable presumption of no

loss of wage-earning capacity. The employer further claims that Cauley failed to establish

a prima facie case of loss of wage-earning capacity and that the AJ erred in determining

Cauley suffered a 25% loss of wage-earning capacity.

¶65. Cauley received permanent disability benefits for her body-as-a-whole injury. A

“disability” for the purpose of workers’ compensation is an “incapacity because of injury to

earn the wages which the employee was receiving at the time of injury in the same or other

employment.” Miss. Code Ann. § 71-3-3(i) (Rev. 2011). “[T]he concept of disability

comprises a physical injury coupled with a loss of wage-earning capacity.” Ameristar

Casino-Vicksburg v. Rawls, 2 So. 3d 675, 680 (¶20) (Miss. Ct. App. 2008). Therefore, a

claimant can only receive permanent disability benefits for a body-as-a-whole injury if the

injury resulted in a loss of wage-earning capacity. Id.

A. Cauley overcame the rebuttable presumption against loss of
wage-earning capacity.

¶66. Walmart argues that because Cauley returned to her pre-injury wages, a rebuttable

presumption that she suffered no loss of wage-earning capacity applies.1 Walmart further

1
Walmart also argues that the AJ erred in finding Cauley temporarily totally disabled
for the period during which she worked and received full wages. However, Walmart did not
mention this in its statement of the issues and cited no authority supporting the contention
as required under our rules of appellate procedure. M.R.A.P. 28(a)(3), (7). Therefore, we

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argues that Cauley failed to overcome that presumption.

¶67. The Mississippi Supreme Court has held, “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.” Gregg v. Natchez Trace Elec. Power Ass’n, 64 So. 3d 473, 476 (¶12)

(Miss. 2011).

¶68. Here, Cauley returned to her job as an assistant manager at Walmart a few months

after her work injury. She earned the same wages as she did prior to the injury. Therefore,

a rebuttable presumption existed that Cauley did not suffer a loss of wage-earning capacity.

¶69. However, this presumption is not necessarily determinative. A claimant can rebut the

presumption of no loss of wage-earning capacity by showing that her post-injury wages are

unreliable due to, among other factors, “the temporary and unpredictable character of post-

injury earnings.” Weathersby v. Miss. Baptist Health Sys. Inc., 195 So. 3d 877, 883 (¶25)

(Miss. Ct. App. 2016). “[A]ny factor or condition which causes the actual post-injury wages

to become a less reliable indicator of earning capacity will be considered.” Gen. Elec. Co.

v. McKinnon 507 So. 2d 363, 365 (Miss. 1987).

¶70. Here, Cauley’s wages upon her return as assistant manager at Walmart were not a

reliable indicator of her capacity to earn wages because her post-injury employment with

Walmart was temporary. Following her injury in May, Cauley was unable to work until

September of that year. Further, missed days due to her injury led to her effective

termination in May 2019. Her post-injury Walmart wages were also unpredictable, as her

do not address it on appeal.

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ability to continue the job depended on the grant of accommodations from her physician and

her employer.

¶71. A claimant may also rebut the presumption against loss of wage-earning capacity by

showing “payment of wages disproportionate to capacity out of sympathy to claimant.” Univ.

of Miss. Med. Ctr. v. Smith, 909 So. 2d 1209, 1219 (¶32) (Miss. Ct. App. 2005). This Court

has held that “wages attributable to the kindness and generosity of an employer are not

indicative of the employee’s actual capacity to command a certain wage on the open labor

market.” Id. at 1221 (¶43). This includes situations in which an employer makes efforts to

accommodate an injury. Id.

¶72. Here, Cauley was only able to continue her job at Walmart because she was granted

accommodations in the form of physician-ordered restrictions and intermittent leaves of

absence. The record indicates that without those accommodations, Cauley could not have

performed the essential functions of her job. For example, the role of assistant manager

required Cauley to conduct at least some manual labor, such as stocking shelves and zoning.

Cauley also testified that she regularly helped unload trucks and stack pallets, even though

she was not necessarily required to do so. She was afforded restrictions on certain

movements and tasks such as lifting and reaching. Intermittent leaves of absence allowed

Cauley to miss work when she experienced episodes of severe pain. Cauley’s reliance on

these accommodations make her post-injury Walmart wages unreliable as an indicator of her

actual capacity to earn wages in the open labor market.

¶73. Furthermore, the uncontested testimony of her manager makes clear Walmart was

20
accommodating Cauley. When asked why she missed so many work days throughout the

year he stated, “Due to her back.” Martinez testified twice he understood Cauley had to miss

work due to her injury.

¶74. Walmart relies primarily on the Mississippi Supreme Court decision Omnova

Solutions Inc. v. Lipa, 44 So. 3d 935 (Miss. 2010), and its progeny to argue that Cauley failed

to rebut the presumption of no loss of wage-earning capacity. In Omnova, the claimant, Lipa,

returned to her pre-injury job earning her pre-injury wages following a work-related injury.

Id. at 936 (¶1). Therefore, the rebuttable presumption of no loss of wage-earning capacity

applied. Id. Sometime after returning to work, Lipa was demoted and replaced from her

pre-injury position. Id. The AJ found that Lipa had suffered loss of wage-earning capacity.

Id. at (¶2).

¶75. The Mississippi Supreme Court stated that the AJ’s finding of loss of wage-earning

capacity “was reached—at least in part—based on Lipa’s loss of her preinjury position,

which decidedly was due to the union contract, not her injury.” Id. at 942 (¶20). For this

reason, the Court remanded the case for a hearing to determine whether Lipa rebutted the

presumption of no loss of wage-earning capacity “without consideration of the fact that Lipa

lost her preinjury job” due to reasons unrelated to her injury. Id.

¶76. The present case differs from Omnova in a critical way. In Omnova the AJ found that

the claimant was fired from her job for reasons completely unrelated to her injury. Id. at

(¶19). The Court noted that the AJ “failed to connect Lipa’s acknowledged loss in wages to

a work-related injury.” Id. Yet in this case, the AJ fully explained the reason for Cauley’s

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effective termination in her decision:

It was because of these missed days that employer made the decision to
terminate her from the position . . . . Her supervisor testified at the hearing that
this decision was made due to the fact that she had missed several days over
the previous year. He also testified that the reason for those missed days was
due to her work related back injury.

The AJ specifically cited testimony from Martinez revealing that Cauley was placed on

permanent inactive status for days missed “due to her back.” Unlike in Omnova, the AJ

found that Cauley suffered a loss of wage-earning capacity due to her work-related injury.

¶77. Given this distinction, we find that substantial evidence indicated that Cauley

overcame the presumption against loss of wage-earning capacity by showing her post-injury

Walmart wages were not a reliable indicator of her capacity to earn wages.

B. Cauley established a prima facie case of loss of wage-earning
capacity.

¶78. Walmart argues the AJ erred in finding that Cauley established a prima facie case of

loss of wage-earning capacity. Specifically, Walmart claims that Cauley failed to show that

her injury resulted in a diminished wage-earning capacity.2

¶79. “The burden is on the claimant to prove an industrial injury by showing medical

impairment and that the medical impairment resulted in a loss of wage earning capacity.”

Bryan Foods Inc. v. White, 913 So. 2d 1003, 1009 (¶26) (Miss. Ct. App. 2005). Courts

consider multiple factors in determining loss of wage-earning capacity: “(1) an increase in

general wage levels, (2) increased maturity or training, (3) longer hours worked, (4)

2
Walmart also alleges that Cauley failed to establish a prima facie showing of loss
of wage-earning capacity because her job search was inadequate. We address the job search
issue in full in Section II of this opinion.

22
sympathy wages, (5) temporary and unpredictable character of post-injury earnings, (6)

employee’s inability to work, (7) employee’s failure to be hired elsewhere and (8) the

continuance of pain and other related circumstances.” Id.

¶80. The evidence and testimony presented at the administrative hearing satisfy several of

these factors. First, Cauley’s post-injury wages were temporary and unreliable for reasons

previously discussed. Cauley also demonstrated an inability to work without

accommodations. Medical records from the dozens of appointments in the years following

Cauley’s work-related injury show that she continues to experience severe, disabling pain

that interferes with her ability to work. Furthermore, despite a reasonable job search, Cauley

is currently working an hourly job earning significantly less money than she did as an

assistant manager at Walmart.

¶81. In its brief, Walmart states that Cauley’s decrease in wages is a result of “her failure

to return to work on time, and failure to re-apply for any similar position.” Walmart further

claims Cauley was replaced “due to her own actions entirely unrelated to her work injury.”

These assertions are clearly contradicted by the evidence, namely the testimony from

Cauley’s manager. Martinez agreed on cross-examination that Cauley was placed on inactive

status not because she had missed two days following the expiration of her personal leave

of absence, but because she had missed several days throughout the year. He admitted he

was aware Cauley missed those days because of her work injury.

Q. And the days she missed throughout the year, do you know why she
missed those days?

A. Due to her back. The days that she called out?

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Q. Yes.

A. Due to her back.

Martinez also stated that Cauley’s absences “in question”—those that were either denied by

or unreported to the employer—were “due to her back.”

¶82. Given this, we find that substantial evidence supported the AJ’s decision that Cauley

established a prima facie case of loss of wage-earning capacity.

C. Substantial evidence supported the AJ’s determination of
25% loss of wage-earning capacity.

¶83. Walmart challenges the AJ’s finding that Cauley suffered a 25% loss of wage-earning

capacity. Specifically, the employer argues that the AJ “erred as a matter of law and fact by

failing to consider the medical proof,” and that the determination of 25% loss of wage-

earning capacity is against the overwhelming weight of the evidence.

¶84. “[D]ecisions as to loss of wage-earning capacity are largely factual and [are] to be left

largely to the discretion and estimate of the commission.” Neshoba Cnty. Gen. Hosp. v.

Howell, 999 So. 2d 1295, 1298 (¶8) (Miss. Ct. App. 2009) (quotation marks omitted). The

fact-finder must consider the evidence as a whole. Id. at 1300 (¶16). Courts weigh a number

of factors in evaluating loss of wage-earning capacity. Bryan Foods, 913 So. 2d at 1009

(¶26).

¶85. Walmart argues that the AJ failed to consider the undisputed medical proof that

Cauley suffered a 2% impairment rating to the body as a whole. However, the AJ

specifically referred to the 2% impairment rating six times in her decision, including in her

analysis of loss of wage-earning capacity: “Dr. Vohra’s 2% rating was to the body as a

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whole. When presented with Dr. Vohra’s report, Dr. Trussell concurred with the impairment

rating to the body as a whole.”3

¶86. Finally, a finding of 25% loss of wage-earning capacity was not against the

overwhelming weight of the evidence. In her decision, the AJ stated that the evidence must

be considered as a whole. She then discussed the particular evidence that contributed to her

determination of loss of wage-earning capacity. In addition to citing the impairment rating

and Cauley’s persistent pain, the AJ pointed out the numerous ways the claimant’s injury has

led to her diminished wage-earning capacity. For example, medical records and testimony

show that Cauley is unable to work without accommodations, as she continues to experience

painful, episodic flare ups due to her injury at Walmart. Testimony established that Cauley

was effectively terminated from her position at Walmart and has since only been able to find

a lower-level job earning significantly less than before her injury.4

¶87. Because the AJ’s determination of 25% loss of wage-earning capacity was supported

by substantial evidence, we affirm.

II. Substantial evidence supported the finding that Cauley’s job search

3
The AJ also noted that the employer’s refusal to allow the physician-ordered MRI
of Cauley’s left shoulder made it difficult to ascertain the extent of her impairment.
4
Though not specifically raised in its statement of the issues, Walmart argues that the
AJ erred in accepting the claimant’s alleged diminished wages because “no reliable
information” was provided regarding her employment at Lowe’s. Yet, “[t]he commission[,]
within legal limits, is the sole judge of the weight and sufficiency of the evidence.” Morris
v. Lansdell’s Frame Co., 547 So. 2d 782, 785 (Miss. 1989). Furthermore, “[e]vidence
which is not contradicted by positive testimony or circumstances, and which is not inherently
improbable . . . is to be taken as conclusive and binding on the triers of facts.” Id. Cauley
testified that she earned $13.98 per hour working 39 hours per week at Lowe’s, and there
was no evidence to contradict her testimony.

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was adequate.

¶88. Walmart argues that the AJ and the Commission erred in finding that the claimant’s

job search was adequate and not a “mere sham.”

¶89. In order to establish a prima facie case of permanent disability for a body-as-a-whole

injury, a claimant must make reasonable efforts to obtain the same or similar employment.

Lott v. Hudspeth Ctr., 26 So. 3d 1044, 1050 (¶19) (Miss. 2010). The determination of

reasonableness of a claimant’s job search is a fact-finding process. Lifestyle Furnishings v.

Tollison, 985 So. 2d 352, 360 (¶25) (Miss. Ct. App. 2008).

¶90. What constitutes “reasonable” varies by situation and depends on a number of factors.

Thompson v. Wells–Lamont Corp., 362 So. 2d 638, 641 (Miss. 1978). The relevant factors

are “job availability, economics of the community, the claimant’s skills and background, and

the nature of the disability.” Lott, 26 So. 3d at 1049 (¶15).

¶91. Once a claimant establishes a prima facie case of disability, the employer may refute

the claimant’s case by showing that suitable employment was available and “that the

claimant’s efforts to obtain other employment were a mere sham, or less than reasonable, or

without proper diligence.” Thompson, 362 So. 2d at 641.

¶92. When Cauley was placed on inactive status and lost her job as assistant manager, she

requested to be reinstated to that position. When that effort was unsuccessful, she searched

Walmart’s online portal numerous times to find either a lower-level position at the Laurel

store or any position at another location. She also reached out to colleagues at other Walmart

stores to inquire about openings. Testimony from the HR manager revealed Cauley was “a

26
solid performer” at work, and Martinez stated she “would have been a good candidate” in the

application process. Despite this, Cauley was unable to obtain a job at Walmart.

¶93. Effectively locked out of Walmart’s system, Cauley expanded her search and applied

for at least 14 various positions in a relatively wide geographic area. While testimony and

medical records indicate driving hurt her back, Cauley was willing to take jobs in towns more

than thirty minutes away, like Hattiesburg. She was also willing to take a lower-level, lower-

paying job. In addition to posting her resume online and filing applications, Cauley

personally reached out to businesses in the area to ask if they were hiring. She ultimately got

a job at Lowe’s through her online post.

¶94. Cauley’s resume shows she has experience in retail sales, sewing, and decorating, and

her reported job applications reflect her effort to obtain employment relating to those skills

and experience. For example, she applied for positions at Jo-Ann’s Craft and Fabric store,

Lowe’s, Michael’s, Kirkland’s, and other retail stores.

¶95. Walmart dismisses Cauley’s job search by claiming that she refused to apply for

available assistant manager positions at Walmart. In its brief, Walmart claims such positions

were available but that Cauley “flat out refused” to apply for them. However, Cauley

repeatedly testified she never found any assistant manager positions on the Wire or by

contacting colleagues at nearby stores. She testified that she applied for the only

management position available to her, but she was not hired.

¶96. Nevertheless, the relevant test is not whether Cauley applied to positions within

Walmart. Rather, it is whether she made reasonable efforts to find “the same or other

27
employment.” Miss. Code Ann. § 71-3-3(i). Cauley did both. She asked to be reinstated in

her assistant manager position and tried multiple ways to find any available jobs at other

Walmart locations. When that effort proved unsuccessful, she expanded her search to a

range of jobs in her community and surrounding areas. She applied for jobs relevant to her

skill set, as well as lower-level, hourly jobs. In the end, Cauley took an hourly cashier job

at Lowe’s earning significantly less than her salaried position at Walmart.

¶97. Tellingly, Cauley testified that if any other position had been available to her at

Walmart, she would have accepted it. Yet Martinez explained that Walmart would not hire

her for lower positions at the Laurel store because she had been an assistant manager there

and because it was a training facility. She was also ineligible for hire at the Laurel Walmart

due to her inactive status. She had to request an exception to apply for positions at other

locations, but every time she checked the online portal, none were available.

¶98. Walmart also argues that Cauley failed to establish that her injury was a contributing

reason for her unsuccessful job search under Georgia Pacific Corporation v. Taplin, 586 So.

2d 823 (Miss. 1991). However, the Taplin Court held “a finding of lost wage-earning

capacity [is supported] if a claimant cannot perform the jobs he once could.” Id. at 828. The

Court explained, “It is enough that . . . the claimant did sustain an injury leading to a

disability which has diminished his wage-earning capacity, and that he has reasonably

attempted to find employment.” Id. at 829. Therefore, Cauley did not have a burden to prove

that she was denied employment by prospective employers because of her injury. Rather, it

is sufficient that she suffered an injury and that injury resulted in a loss of wage-earning

28
capacity.

¶99. Given the application of the relevant factors and Walmart’s failure to refute the

claimant’s showing of a reasonable job search, we find that substantial evidence supported

the AJ’s decision that Cauley’s job search was adequate and not a “mere sham.”

CONCLUSION

¶100. The AJ’s findings with regard to loss of wage-earning capacity were supported by

substantial evidence. Further, substantial evidence supported the finding that Cauley’s job

search was adequate and not a “mere sham.” We therefore affirm the decision of the AJ and

the Commission.

¶101. AFFIRMED.

BARNES, C.J., CARLTON AND WILSON, P.JJ., WESTBROOKS,
McDONALD, LAWRENCE, SMITH AND EMFINGER, JJ., CONCUR. GREENLEE,
J., NOT PARTICIPATING.

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