But Birdsong had a contractual duty to cooperate with Travelers' investigation, and Cooper has not shown that obtaining or using surveillance video of a workers' compensation claimant involves bad faith. See Bis Salamis, Inc. v. Dir., Office of Workers' Comp. Programs, 819 F.3d 116, 122 (5th Cir. 2016) (discussing use of employer-captured surveillance of workers' compensation claimant); Chestnut v. Dairy Fresh Corp., 966 So. 2d 868, 871 (Miss. Ct. App. 2007) ("After viewing the surveillance video depicting Chestnut changing a flat tire and picking up a child, both of Chestnut's physicians opined that Chestnut had reached maximum medical improvement."). He likewise never rebuts that the video in fact showed him walking.
d . at (¶11) ; see alsoChestnut v. Dairy Fresh Corp ., 966 So. 2d 868, 871 (¶6) (Miss. Ct. App. 2007).
Furthermore, Smith established that he attempted to return to work but was refused reinstatement or rehire. SeeChestnut v. Dairy Fresh Corp ., 966 So. 2d 868, 871 (¶5) (Miss. Ct. App. 2007) ("When the claimant has not returned to work after reaching maximum medical recovery, the claimant must establish" either that "he reported back to his employer and the employer refused to reinstate or rehire him" or "he has sought and been unable to obtain work in similar or other jobs.").
¶15. "The Commission has the primary duty to analyze the evidence before it and to determine whether a claimant has reached maximum medical improvement or recovery." Chestnut v. Dairy Fresh Corp. , 966 So. 2d 868, 871 (¶6) (Miss. Ct. App. 2007). A. The credibility of conflicting expert opinions is for the Commission to determine.
Miss. Code Ann. § 71-3-3(i) (Rev. 2011). If, after reaching MMI, the claimant has not returned to work, "the claimant must establish either that he has sought and been unable to obtain work in similar or other jobs or show that, upon his reaching [MMI], he reported back to his employer and the employer refused to reinstate or rehire him." Chestnut v. Dairy Fresh Corp. , 966 So. 2d 868, 871 (¶5) (Miss. Ct. App. 2007). To determine loss of wage-earning capacity, "[t]he Commission considers the employee's actual wages earned prior to the injury as compared to the employee's capacity to earn those same wages after the injury, as well as other factors such as the employee's age, education, training and work experience, and his or her ability to return to the same or other employment."
Additionally, a claimant seeking benefits based on loss of wage-earning capacity who fails to return to work after reaching maximum medical improvement must establish inability to find work in similar or other positions, or that she returned to work for her original employer and was refused reinstatement or rehire. Chestnut v. Dairy Fresh Corp., 966 So.2d 868, 871 (¶ 5) (Miss.Ct.App.2007). See also Lott, 26 So.3d at 1049 (¶ 14) (“In order to determine that an employee is disabled, there must be 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.’ ”
Additionally, a claimant seeking benefits based on loss of wage-earning capacity who fails to return to work after reaching maximum medical improvement must establish inability to find work in similar or other positions, or that she returned to work for her original employer and was refused reinstatement or rehire. Chestnut v. Dairy Fresh Corp., 966 So.2d 868, 871 (¶ 5) (Miss.Ct.App.2007). See also Lott, 26 So.3d at 1049 (¶ 14) (“In order to determine that an employee is disabled, there must be 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.’ ”
On the Employer's Certification of Job Requirements filled out for Golden, Sheriff Banks indicated that Golden could no longer perform his job and that Golden had not been offered another position with the sheriff's department. ¶ 13. Lastly, the Commission, quoting Chestnut v. Dairy Fresh Corp., 966 So.2d 868, 870 (¶ 5) (Miss.Ct.App.2007), considered other factors such as Golden's “actual wages earned prior to the injury as compared to [his] capacity to earn those same wages after the injury, as well as ... [his] age, education, training[,] work experience, and ability to return to the same or other employment.” The Commission found that Golden was not a candidate to return to his previous jobs of deputy sheriff, truck driver, or general laborer due to restrictions placed on him by Dr. Winkelmann. The Commission again relied on Dr. Winkelmann's above-quoted testimony to support the finding that Golden “became occupationally disabled after his admitted work-related injury.” Further, once a prima facie case of disability has been made, “[t]he burden then shifts to the employer to prove a partial disability or that the employee has suffered no loss of wage-earning capacity.
If, after reaching maximum medical improvement, the claimant has not returned to work, "the claimant must establish either that he has sought and been unable to obtain work in similar or other jobs or show that, upon his reaching maximum medical improvement, he reported back to his employer and the employer refused to reinstate or rehire him." Chestnut v. Dairy Fresh Corp., 966 So.2d 868, 871 (¶ 5) (Miss.Ct.App. 2007) (citing Hale v. Ruleville Health Care Ctr., 687 So.2d 1221, 1226 (Miss. 1997)).
In other words, "this Court will reverse the Commission's order only if it finds that order clearly erroneous and contrary to the overwhelming weight of the evidence." Chestnut v. Dairy Fresh Corp., 966 So.2d 868, 870 (¶ 2) (Miss.Ct.App. 2007) (quoting Barber Seafood, Inc. v. Smith, 911 So.2d 454, 461 (¶ 27) (Miss. 2005)).