author: GRIFFIS, J., for the Court.

text:
    Beverly A. HAYES, Appellant v. UNIVERSITY OF SOUTHERN MISSISSIPPI and Ted Socha, Appellees.
    No. 2004-CA-02277-COA.
    Court of Appeals of Mississippi.
    Aug. 22, 2006.
    Rehearing Denied Jan. 16, 2007.

      Bill Waller, Sr., attorney for appellant.
    Rick Norton, Hattiesburg, Lee P. Gore, attorneys for appellees.
    Before KING, C.J., GRIFFIS and BARNES, JJ.
   GRIFFIS, J., for the Court.

¶ 1. Beverly Hayes brought suit against the University of Southern Mississippi (“USM”) and Ted Socha for personal injuries. The circuit court dismissed the claims against Socha and entered judgment in favor of USM. Hayes appeals and argues (1) neither Socha nor USM is immune, and (2) they are absolutely liable for her injuries. We find no error and affirm.

FACTS

¶2. On August 27, 2000, Hayes began her first day as a student of the Mississippi Police Corps, run by USM. The Mississippi Police Corps is a federally funded program which provides quasi-military police training. It is similar to the R.O.T.C. program, in that the students receive training, a stipend, room and board, and money to pay for college. In exchange, the students agree to serve at least four years in a local police department. Where local police academies have a ten-week program, the police corps training is a twenty-four week program. The training includes typical classroom settings and tests as well as physical fitness and field training.

¶ 3. The field training exercise in issue here took place at Camp Shelby. On August 31, at about 4:00 p.m., the students were taken into a room. The students were called out of the room one at a time to engage in a surprise combat drill. When selected, Hayes was given a padded helmet, mouth guard, arm padding, and groin padding. She was taken into a dimly lit gym. She saw Socha in full body padding. She now realized this was going to be a combat drill. She was thrown to the mat a total of three times. As a result, she suffered whiplash and a torn ACL, which required three knee surgeries. USM paid her medical bills until she reached maximum medical improvement.

¶ 4. Officers Bobby DeLeon, Weaver \ Stan Coats, and Mark Rockwell were there to keep Hayes and Socha from falling off the mats. Officer Mark Dunston was in charge and gave commands to both Socha and Hayes, stopping the drill and checking on Hayes after each take down. Socha wrapped her arms close to her body to prevent her from hurting her arms in trying to catch herself. He also used his feet to keep from falling on top of her. Nevertheless, during the third fall, Hayes brought her right knee up between herself and Socha. Her knee was injured.

STANDARD OF REVIEW

¶ 5. In a claim based on the Mississippi Tort Claims Act, the trial judge sits as the finder of fact. Miss.Code Ann. § 11^46 — 13(1) (Rev.2002). “A circuit court judge sitting without a jury is accorded the same deference with regard to his findings as a chancellor, and his findings will not be reversed on appeal where they are supported by substantial, credible, and reasonable evidence.” Donaldson v. Covington County, 846 So.2d 219, 222(¶ 11) (Miss.2003). The circuit judge’s findings of fact and conclusions of law will not be disturbed unless the judge abused his discretion, was manifestly wrong, clearly erroneous, or an erroneous legal standard was applied. Miss. Dep’t of Transp. v. Trosclair, 851 So.2d 408, 413(¶ 11) (Miss.Ct.App.2003).

ANALYSIS

I. Did the trial court err finding Socha immune?

¶ 6. Hayes says Socha was not immune, because he committed the act with malice. Socha responds that he acted within the course and scope of his employment, without malice.

¶ 7. Mississippi Code Annotated section 11-46-7(2) provides in part:

[N]o employee shall be held personally liable for acts or omissions occurring within the course and scope of the employee’s duties. For the purpose of this chapter an employee shall not be considered as acting within the course and scope of his employment and a government shall not be hable or be considered to have waived immunity for any conduct of its employee if the employee’s conduct constituted ... malice....

The lower court found that Socha was acting within the course and scope of his employment during the two-minute drill. Therefore, the judge dismissed the case against Socha at the end of trial.

¶ 8. Dunston and Socha testified that Socha was under Dunston’s instructions during the drill. Socha was instructed to tackle the student to the mat and hold her there until he was told to release her. Dunston testified that Socha obeyed the instructions and did not ad-lib any maneuvers. The two-minute drill was videotaped. There is nothing on the tape to indicate that Socha was doing anything other than what he was told. He tackled Hayes to the mat, released her when the whistle blew, restarted the drill when told to do so. Director of the police corps Keith Oubre opined that Socha’s “performance and behavior was consistent with the way we conduct the drill with other students in the past and the way we continue to do it in the future and do now.” Based on this, we find there was substantial credible evidence for the judge to conclude that Socha was acting within the course and scope of his employment at the time of Hayes’s injuries.

¶ 9. Nevertheless, Hayes urges that So-cha acted with malice. Hayes alleges that Socha threw her off the mat, causing her head to hit the gym floor. He then continued the drill even though she was disoriented as a result of this head injury. She further alleges that Socha was showing off to bystanders.

¶ 10. Whether or not Hayes hit her head on the gym floor was disputed. Unfortunately, the tape of the drill does not start until after Hayes’s first fall. She is seen with her head and shoulders off the mat, moving around. Dunston was crouched nearby to check to see if she is okay. Socha apparently used his arms to try and encourage her to get up, then stood back away from her. Hayes testified that she was thrown off the mat. Dunston testified that she was thrown onto the mat, and she crawled off it. It is not until her second fall that she complained that she hit her head. Dunston checked on her and told her she was okay, because her head hit the mat, and she had on her helmet.

¶ 11. As for whether or not Hayes was disoriented as a result of the fall, the evidence was again in dispute. Hayes had suffered abuse as a child. She and the psychiatrist testified this caused her to freeze up when confronted by a male figure. Hayes also contributed this fear to the fact that she did not initially fight back in the combat drill.

¶ 12. Socha testified that he kept Hayes on the mat and took precautions during the take downs to try to prevent injury to her. We cannot say the judge erred in finding Socha did not act with malice. There was substántial credible evidence to support such a finding. We affirm the dismissal of Socha.

II. Was USM entitled to immunity ?

¶ 13. Next, Hayes maintains it was error for the judge to apply police protection immunity in this case, because the training is too far removed from police protection, and, in the alternative, USM acted with reckless disregard. She also cites as error the judge’s finding of discretionary function immunity because USM had a positive duty not to injure her. USM maintains it is entitled to both immunities.

A. Police protection immunity

¶ 14. The Mississippi Tort Claims Act (“MTCA”) provides that a governmental entity is immune from a tort:

[ajrising out of any act or omission of an employee of a governmental entity engaged in the performance or execution of duties or activities relating to police ... protection unless the employee acted in reckless disregard of the safety and well-being of any person not engaged in criminal activity at the time of injury[.]

Miss.Code Ann. § 11 — 46—9(l)(c) (Rev. 2002). Hayes’s first argument is that the police corps training is not an “activity related to police protection.” The supreme court first addressed this phrase in McGrath v. City of Gautier, 794 So.2d 983 (Miss.2001). It considered whether negligent inspection and maintenance of the police vehicle was related to police protection. Id. at 984(¶ 7). Since it was not defined in the statute, the court looked to pre MTCA cases. Id. at 985-86 (¶¶ 10-12). These cases drew a distinction between governmental and proprietary functions and held that maintenance of a police vehicle was a governmental function. Id. at 986(¶ 12). Therefore, the McGrath court held that inspection and maintenance of a police vehicle was an activity relating to police protection. Id. at 987(11 16).

¶ 15. Subsequently, the supreme court considered whether a 911 operator is engaged in activities relating to police protection in Lee County v. Davis, 838 So.2d 243 (Miss.2003). The court cited the 911 statute, which defined the operator’s responsibilities as processing emergency calls and dispatching emergency services provided by public safety agencies. Id. at 245(117). The court also noted the operators are trained and certified by the state. Id. at 245(11 8). Therefore the court held that processing emergency calls is related to police protection and is an integral link to police services. Id. at 245(¶ 8).

¶ 16. Under this authority, we hold that the Mississippi Police Corps training is an activity relating to police protection. The Mississippi Police Corps was established by the federal Police Corps Act. Its purposes are to “(1) address violent crime by increasing the number of police with advanced education and training on community patrol; and (2) provide educational assistance to law enforcement personnel and to students who possess a sincere interest in public service in the form of law enforcement.” 42 U.S.C. § 14091 (2000). “The training sessions ... shall be designed to provide basic law enforcement training, including vigorous physical and mental training to teach participants self-discipline and organizational loyalty and to impart knowledge and understanding of legal processes and law enforcement.” 42 U.S.C. § 14097(d) (2000). Students are paid a stipend of $400 a week during training. 42 U.S.C. § 14097(f) (2000). While the students are not police officers while enrolled, a condition of their enrollment is that they will later serve as police officers. The Mississippi Police Corps’s trainers and graduates are certified by the state. The police corps provides local law enforcement with college-educated, specialized, quasi-military trained police officers to assist in protecting against violent crime. Therefore, it is related to police protection. It also satisfies the government/proprietary distinction under McGrath, as police training is a governmental function.

¶ 17. Even though training is covered by the statute, if done with reckless disregard, then USM is not immune. Reckless disregard is “a higher standard than gross negligence and ‘embraces willful or wanton conduct which requires knowingly and intentionally doing a thing or wrongful act.’ ” Collins v. Tallahatchie County, 876 So.2d 284, 287(¶ 8) (Miss.2004) (quoting Turner v. City of Ruleville, 735 So.2d 226, 230(¶ 19) (Miss.1999)). The focus is not on whether the officer intended to harm the plaintiff, but “whether the officer intended to do the act that caused harm to come to the plaintiff.” Turner v. City of Ruleville, 735 So.2d 226, 230(¶20) (Miss.1999). “In finding reckless disregard, the court must look at the totality of the circumstances” of the officer’s conduct. Thomas ex rel. Thomas v. Miss. Dep’t of Pub. Safety, 882 So.2d 789, 796(¶ 20) (Miss. Ct.App.2004). The common thread of these cases is “that the conduct involved evinced not only some appreciation of the unreasonable risk involved, but also a deliberate disregard of that risk and the high probability of harm involved.” City of Jackson v. Lipsey, 834 So.2d 687, 693(¶ 21) (Miss.2003) (quoting Maldonado v. Kelly, 768 So.2d 906, 910-11(1111) (Miss.2000)).

¶ 18. Hayes contends that Socha and USM acted with reckless disregard by throwing her off the mat and continuing the exercise despite the fact that she was disoriented from her head injury. As set out previously, whether or not these things happened was in dispute. There was substantial credible evidence that Socha did not cause her head to hit the gym floor and that she was not disoriented.

¶ 19. Additionally, there was evidence that the instructors took safety precautions. They engaged in a walk through of all curriculum and exercises before the students arrived. Dunston checked on Hayes after every take down. Socha’s method of tackling the students was designed to prevent injury to them. He attacked only their upper body, protected their arms, and kept his weight from falling fully on them. The video reveals during the final fall that Socha’s weight was leaning more towards Hayes’s left side, rather than on her right side. His body would not have contacted her right side but for the fact that Hayes raised her right knee.

¶20. However, Hayes also cites reckless disregard in conducting the two-minute drill (1) so early in the training process, (2) without prior warning, (3) equally difficult for men and women, and (4) without leg padding for the students.

¶21. Oubre testified that federal law requires police corps training to be rigorous. He testified that the purpose of the two-minute drill was to expose the students to the violent nature of a physical attack and to evaluate the mental and physical strengths and weaknesses of the students to better tailor the training exercises to class and individual needs. Hayes’s own expert, Jeff Curtis testified as to the value of surprise combat drills. There was testimony that women police officers are just as likely to face violent attacks and were just as physically capable. The decision not to give the cadets leg padding was in order to keep their legs mobile and to better facilitate their success in the exercise. Based on this, we find that there was substantial credible evidence to support the trial judge’s finding that these actions did not constitute reckless disregard for Hayes’s safety. We therefore affirm.

B. Discretionary function immunity

¶ 22. Because we affirm the grant of police protection immunity, we do not reach whether USM was entitled to discretionary function immunity as well.

¶ 23. THE JUDGMENT OF THE CIRCUIT COURT OF FORREST COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., LEE AND MYERS, P.JJ., SOUTHWICK, IRVING, CHANDLER, BARNES, ISHEE AND ROBERTS, JJ., CONCUR.

      . Officer Weaver’s first name does not appear in the record.


source: Caselaw Access Project

author: ISHEE, J., for the Court.

license: Public Domain

text:
    WHIRLPOOL CORPORATION, Appellant v. Mary J. WILSON, Appellee.
    No. 2005-WC-01366-COA.
    Court of Appeals of Mississippi.
    Nov. 14, 2006.

      Kenneth Harold Coghlan, Oxford, attorney for appellant.
    Keith Sanders Carlton, Corinth, attorney for appellee.
    Before LEE, P.J., IRVING and ISHEE, JJ.
   ISHEE, J., for the Court.

¶ 1. On July 20, 1999, Mary J. Wilson injured her lower back while inspecting a microwave for her employer, Whirlpool Corporation (Whirlpool). The Mississippi Workers’ Compensation Commission (Commission) affirmed the decision of the administrative judge awarding permanent total disability benefits to Wilson on the grounds that Whirlpool failed to provide Wilson with suitable post-injury employment, and that Wilson reasonably but unsuccessfully attempted to find subsequent gainful employment. The Circuit Court of Lafayette County affirmed the Commission’s decision. Aggrieved, Whirlpool appeals. Whirlpool asserts the following issues for this Court’s review, which we list verbatim:

I. Whether Wilson proved that she had a permanent medical impairment.
II. Whether Wilson proved that she had a loss of wage-earning capacity as she failed to engage in any meaningful job search.

Finding no error, we affirm the decision of the circuit court.

FACTS

¶ 2. Wilson was a fifty-six-year-old resident of Thaxton, Mississippi at the time of the administrative judge’s decision. She graduated from high school in 1965 and did not receive any further education or vocational training. Prior to her employment with Whirlpool, Wilson was occupied as a housewife and mother, until 1984, when she began work, at the age of thirty-eight, sewing garments at Riviera Shirt Company (Riviera). Wilson’s work with Riviera lasted five years, and it occasionally required her to lift as much as twenty-five to thirty pounds.

¶ 3. Wilson began working for Whirlpool at the plant in Lafayette County in 1990. Initially, Wilson was assigned to numerous positions within Whirlpool. After working for Whirlpool for about one year, Wilson was assigned to an inspection/repair position. With the exception of several months following her injury, Wilson retained her inspection/repair position throughout the remainder of her employment with Whirlpool. According to Wilson, her duties in the inspector/repair position included standing for all ten hours of each work day, pushing and pulling microwave/oven combo units weighing as much as seventy to 100 pounds, and occasionally lifting microwave components weighing thirty to forty pounds.

¶ 4. On July 20, 1999, Wilson injured her lower back as she was pulling a microwave into her inspection area. On May 22, 2000, Wilson filed a petition with the Commission, asserting that she received a compensable injury to her lower back. Whirlpool admitted that Wilson received a compensable injury, but denied that Wilson suffered a permanent disability or loss of wage-earning capacity. A hearing on the matter was held on April 2, 2003.

¶ 5. During the hearing, the deposition of Dr. Thomas L. Windham, Wilson’s primary treating physician for her lower back injury, was admitted into evidence. Dr. Windham first examined Wilson on August 6, 1999, less than a month after her injury, and examined her on numerous occasions until June 27, 2000. Dr. Windham initially believed that Wilson suffered from a lumbar disc rupture, but after conducting a myelogram/CT scan, Dr. Windham concluded that Wilson suffered from something more like chronic back strain. Dr. Windham also testified during deposition that Wilson’s disk protrusion was to the left, but she complained of leg pain on the right. Over the course of Dr. Windham’s treatment of Wilson, he prescribed pain and nerve pills, as well as a series of epidural nerve block injections and a regimen of physical therapy. On October 4, 1999, Dr. Windham released Wilson to return to work at light duty only. When Wilson returned to Dr. Windham with ongoing complaints on November 2,1999, Dr. Windham determined that her condition was unchanged. Consequently, he recommended that she undergo a functional capacity evaluation.

¶ 6. The functional capacity evaluation indicated that Wilson needed therapy, or “work hardening,” in order to get back into her regular work. After a course of “work hardening” therapy, which brought about no improvement, Dr. Windham referred Wilson to Dr. Dowen Snyder for a second opinion. Dr. Snyder recommended that Wilson continue light duty work, if available, and that she adjust her lifestyle in order to deal with the pain. On February 22, 2000, Dr. Windham wrote a letter to the insurance case manager stating that Wilson reached maximum medical improvement on October 4, 1999, without an impairment rating or permanent work restrictions.

¶ 7. A second functional capacity evaluation was performed on June 21, 2000. The recommendations included aquatic physical therapy in order to decrease weight and increase functional abilities, as well as treatment for depression and a chronic pain program. The evaluation also concluded that Wilson was not able to return to her regular duties and that she was only able to lift at the sedentary range, i.e., lift while seated.

¶ 8. Wilson was also examined by Dr. Richard Sharp, a physical medicine specialist, on March 25, 2002. Dr. Sharp’s report was also entered into evidence during the hearing. In the report, Dr. Sharp determined that Wilson had many pain syndromes and that additional injections might be helpful. Dr. Sharp also determined that, if Wilson declines further injections, she would be at maximum medical improvement. Dr. Sharp concluded that Wilson, due to the condition of her lower back, had a five percent whole person impairment. Nonetheless, the administrative judge determined that Dr. Sharp’s examination of Wilson was “too far removed from Dr. Windham’s last examination in June of 2000 for his opinions to be of any real probative value.”

¶ 9. Wilson testified that, after her injury, she was provided with light duty work at Whirlpool, which primarily involved producing labels for products on a computer. Wilson further testified that she worked in this position for several months, until April of 2000, when her supervisors, Carol Prin-gle and O’Neal Warren, told her that they had received a letter from Dr. Windham stating that she had been released to work without restrictions. Consequently, Prin-gle and Warren told Wilson that she had to return to work on the assembly line, which had no light duty positions.

¶ 10. Wilson testified that, after the meeting with Pringle and Warren, she returned to Dr. Windham, as it was her understanding that she was to be restricted to light duty. On April 7, 2000, Dr. Windham gave Wilson a return-to-work slip, which restricted her to light duty. Wilson testified that she gave the slip to Whirlpool’s workers’ compensation supervisor, John Roberts, and that she discussed the light duty restriction with Prin-gle and Warren. According to Wilson, Pringle and Warren responded that, regarding the job on the assembly line, she could “either take it or leave it.” Wilson then visited her family practitioner, Dr. William Spencer, who, on May 15, 2000, also provided her with a return-to-work slip restricting her to light duty. Wilson testified that she once again provided her supervisors with the documentation, and that they informed her that she could either go back to full duty on the assembly line or leave her employment.

¶ 11. Wilson further testified that, because she wanted to continue working at Whirlpool, she had her attorney write a letter to Whirlpool requesting that she be given a job consistent with Dr. Windham’s and Dr. Spencer’s light duty restriction. According to Wilson, she took this letter to Roberts, who “laughed in [her] face and told [her] that [she] was a liar.” Wilson then spoke with Pringle and Warren, who gave her a job installing wiring on the backs of oven units. Nevertheless, because that job involved pushing and pulling as much as fifty pounds, Wilson was only able to continue in that position for about two weeks, working only a little over an hour each day. Consequently, on June 28, 2000, Wilson voluntarily resigned from her employment with Whirlpool.

¶ 12. In August of 2000, Wilson began looking for other employment. Wilson testified that, in August of 2000, she contacted five businesses in Pontotoc, Mississippi, and one in Ecru, Mississippi, seeking employment. She also testified that she registered with the Mississippi Employment Security Commission on August 8, 2000. According to Wilson, she did not get a response from any of the businesses, so she contacted four of them a second time by telephone in 2001. Wilson testified that, in May of 2002, she returned to several of the previously contacted businesses, in addition to five other businesses. Unfortunately, none of Wilson’s efforts yielded a favorable response. Wilson admitted that, after August of 2000, her efforts to obtain employment became “half-hearted” because she believed that the businesses were seeking younger employees. She further acknowledged that she has not attempted to find employment since May of 2002, and that she has not worked since May of 2000.

¶ 13. Wilson testified that, since she is no longer able to work, her pain keeps her in the bed most of the time. She further testified that she is not able to do all of the household duties that she did before the injury, such as run a vacuum, take out the garbage, or go to the mailbox. Wilson insisted that she was in constant pain. Furthermore, Wilson testified that the medications she takes every day make her very sleepy and dizzy. After Wilson finished testifying, she rested her case. Whirlpool also rested its case at the conclusion of Wilson’s testimony.

¶ 14. On June 16, 2003, the administrative judge determined that, based on the work restrictions imposed by Dr. Wind-ham and Wilson’s ongoing pain, Wilson had sustained a permanent medical and occupational disability as a result of her lower back injury. The administrative judge also determined that Wilson made a prima facie case of total loss of wage-earning capacity, as she produced evidence that Whirlpool failed to provide her with employment after maximum medical recovery and that she unsuccessfully attempted to find other employment. After finding that Whirlpool failed to produce evidence to rebut Wilson’s prima facie case, the administrative judge concluded that Wilson was entitled to permanent disability benefits. The Commission affirmed the decision of the administrative judge on February 17, 2004, and on March 23, 2004, the Circuit Court of Lafayette County affirmed the judgment of the Commission. Aggrieved, Whirlpool appeals.

STANDARD OF REVIEW

¶ 15. This Court’s scope of review in workers’ compensation cases is limited to a determination of whether the decision of the Commission is supported by substantial evidence. Westmoreland v. Landmark Furniture, Inc., 752 So.2d 444, 447(¶ 7) (Miss.Ct.App.1999). The Commission sits as the ultimate finder of fact; its findings are subject to normal, deferential standards upon review. Natchez Equip. Co. v. Gibbs, 623 So.2d 270, 273 (Miss.1993). We will only reverse the Commission’s rulings where findings of fact are unsupported by substantial evidence, matters of law are clearly erroneous, or the decision was arbitrary and capricious. Westmoreland, 752 So.2d at 448(¶ 8); Hale v. Ruleville Health Care Ctr., 687 So.2d 1221,1225 (Miss.1997).

ISSUES AND ANALYSIS

I. Whether Wilson proved that she had a permanent medical impairment.

¶ 16. Whirlpool asserts that Wilson’s claim of disability is unsupported by medical findings, as required by Mississippi Code Annotated section 71 — 3—3(i) (Rev. 2000). In support of this argument, Whirlpool cites Dr. Windham’s deposition testimony that Wilson’s myelogram/CT scan revealed that her disc protrusion was to the left, but she complained of pain on the right. Whirlpool further cites Wind-ham’s testimony that Wilson reached maximum medical improvement on October 4, 1999, without an impairment rating or permanent work restrictions. Finally, regarding Dr. Sharp’s finding of five percent whole person impairment, Whirlpool cites the determination of the administrative judge that Dr. Sharp’s report was “too far removed from Dr. Windham’s last examination in June of 2000 for his opinions to be of any real probative value.” Thus, Whirlpool maintains that the medical proof in this case establishes that Wilson had no physical impairment and no work restrictions. We disagree.

¶ 17. The second functional capacity evaluation, performed on June 21, 2000, concluded that Wilson was not able to return to her regular duties and that she was only able to lift at the sedentary range. The evaluation further recommended that Wilson begin a chronic pain program. Moreover, both Dr. Windham and Dr. Spencer provided Wilson with return-to-work slips that restricted her to light duty work only. Furthermore, Dr. Snyder also recommended that Wilson continue light duty work, if available, and that she adjust her lifestyle in order to deal with the pain. Therefore, we find substantial evidence to support the Commission’s decision that Wilson sustained a permanent medical and occupational disability as a result of her lower back injury. This issue is without merit.

II. Whether Wilson proved that she had a loss of wage-earning capacity as she failed to engage in any meaningful job search.

¶ 18. Whirlpool asserts that the record shows that it attempted to reinstate Wilson into a full-time position. Whirlpool further asserts that Wilson failed to prove that she made reasonable efforts to find similar or other employment.

¶ 19. Mississippi Code Annotated section § 71 — 3—3(i), provides that the party claiming disability benefits bears the burden of making a prima facie showing that he has sought and been unable to find work “in the same or other employment.” Hale, 687 So.2d at 1226. “When the claimant, having reached maximum medical recovery, reports back to the employer for work, and the employer refuses to reinstate or rehire him, then the claimant has established a prima facie showing of total disability.” Id Once a prima facie case for total disability has been established, the employer bears the burden of proving that the claimant has suffered only a partial disability or no loss of wage-earning capacity. Id (citing Jordan v. Hercules, Inc., 600 So.2d 179, 183 (Miss.1992)). In order to meet this burden, the employer may present evidence showing that “the claimant’s efforts to obtain other employment was a mere sham, or less than reasonable, or without proper diligence.” Hale, 687 So.2d at 1227 (citing Thompson v. Wells-Lamont Corp., 362 So.2d 638, 641 (Miss.978)).

¶ 20. According to Dr. Windham, Wilson reached maximum medical improvement on October 4, 1999. After reaching maximum medical improvement, Wilson attempted to continue working for Whirlpool in a light duty position. According to Wilson’s testimony, however, in April of 2000, her supervisors required her to return to full duty on the assembly line or leave. Wilson further testified, after being given no choice but to resign from her employment with Whirlpool, she contacted eleven different businesses seeking employment. She also testified that she registered with the Mississippi Employment Security Commission.

¶21. We find substantial evidence to support the Commission’s finding that Whirlpool failed to rebut Wilson’s testimony that Whirlpool failed to provide her with work consistent with her light duty restriction. Even though the administrative judge noted that Wilson’s efforts to find gainful employment were “somewhat suspect,” it is the long-standing rule of this Court that doubtful cases must be resolved in favor of compensation, so as to fulfill the beneficent purposes of the statute. E.g., Meridian Prof'l Baseball Club v. Jensen, 828 So.2d 740, 744-45 (¶ 10) (Miss.2002); Marshall Durbin Cos. v. Warren, 633 So.2d 1006, 1010 (Miss.1994). Therefore, this issue is without merit.

¶ 22. THE JUDGMENT OF THE CIRCUIT COURT OF LAFAYETTE COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., LEE AND MYERS, P.JJ., SOUTHWICK, IRVING, CHANDLER, GRIFFIS, BARNES, AND ROBERTS, JJ., CONCUR.

      . Wilson also injured her left knee while .working for Whirlpool, on February 17, 1994. This claim had a different docket number, but, for hearing purposes, was consolidated with the claim for injury to her lower back. Regarding the claim for injury to the left knee injury, however, the administrative judge found that Wilson failed to prove that she sustained an occupational disability in excess of the ten percent partial disability for which she had already been paid. Thus, the claim for injury to her left knee is not at issue in this appeal.

      . Mississippi Code Annotated section 71-3-3(i) (Rev.2000), provides that " ‘[disability’ " means incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or other employment, which incapacity and the extent thereof must be supported by medical findings.”


author: MYERS, P.J., for the Court.

text:
    James Leslie HENDERSON, Appellant, v. Stacey Gordon HENDERSON, Appellee.
    No. 2004-CA-01277-COA.
    Court of Appeals of Mississippi.
    Nov. 21, 2006.

      John Robert White, Ridgeland, attorney for appellant.
    William R. Wright, W. Benton Gregg, Jackson, attorneys for appellee.
   ON MOTION FOR REHEARING

MYERS, P.J., for the Court.

¶ 1. The motion for rehearing is denied, and the original opinion is withdrawn and the present opinion is substituted in lieu thereof. On May 24, 2004, the Madison County Chancery Court refused to grant Jim Henderson and Stacey Henderson a divorce, awarded Stacey sole legal and physical custody of their two minor children, Luke Henderson and Cash Henderson, subject to Jim’s visitation rights and ordered Jim to pay' Stacey $2,000 per month in child support and $1,000 per month in spousal support along with her attorney fees accrued during a contempt hearing as a result of him not following a previous order entered by the court. Finding no error, we affirm the ruling of the chancery court.

FACTS

¶ 2. Jim and Stacey were married on April 26, 2000. This was the second marriage for Jim and third for Stacey. Jim was a resident at the University of Mississippi Medical Center in Jackson and Stacey was a nurse anesthetist. Stacey had one son, Tucker, by a previous marriage and Jim had no children. Shortly after the two were married, Jim accepted a fellowship in Birmingham, Alabama. Stacey stayed behind in Jackson because she was pregnant with their first son, Luke, who was born on December 16, 2000. During Jim’s fellowship, he traveled to Jackson two to three weekends a month. Jim returned to Jackson in August of 2001. Jim worked as an emergency room physician and Stacey as a nurse anesthetist which allowed them flexible work schedules so that someone was always able to care for Luke. A month before Cash, their second son, was born, Stacey and Jim separated and Stacey filed a complaint for divorce and motion for temporary relief on January 23, 2002. These proceedings were postponed due to the birth of Cash and their attempted reconciliation.

¶ 3. On January 2, 2003, Stacey filed a motion for an emergency temporary hearing and as a result an agreed order of temporary custody was entered on January 3, 2003. That order provided for shared custody and each party was forbidden to consume alcohol while driving a vehicle with the children in it. The chancellor entered another temporary order on February 6, 2003, which awarded both Stacey and Jim joint legal and physical custody of the children. During this time period there were numerous accusations by both parties of alcohol and drug use. After an altercation which resulted in assault charges being filed during an exchange of the boys, Stacey filed a motion for an emergency temporary hearing on March 31, 2003. As a result Jim filed his response along with a counterclaim which resulted in the chancellor, on June 13, 2003, entering an agreed temporary order granting Jim legal and physical custody of the boys but both parties retained visitation.

¶ 4. Other temporary motions were filed which resulted in Jim retaining custody which was granted to him on June 13, 2003, until the case went to trial. On November 14, 2003, Stacey filed an amended complaint for divorce adding grounds of uncondoned adultery and constructive desertion.

¶ 5. The case went to trial on January 20, 22 and February 2, 2004. Jim hired four different attorneys during this domestic dispute; therefore, Jim moved for three different continuances which the chancellor denied. The chancellor ruled that Stacey failed to prove any of her grounds for divorce, so that portion of the case was dismissed. After hearing testimony from both parents, the guardian ad litem and other witnesses, the chancellor granted legal and physical custody of both children to Stacey with standard visitation given to Jim. The chancellor also ordered Jim to pay child support in the amount of $2,000 monthly and temporary spousal support in the amount of $1,000. The chancellor held Jim in contempt for past due alimony in the amount of $7,000 and for allowing someone of the opposite sex to spend the night when he had the children in violation of a court order. As a result of this contempt, Jim was ordered to pay Stacey’s attorney fees for the contempt proceedings.

¶ 6. Aggrieved by the chancery court’s ruling, Jim appeals to this Court raising the following nine issues:

I. THE CHANCELLOR ABUSED HIS DISCRETION BY OVERRULING JIM’S THREE MOTIONS FOR CONTINUANCE.
II. THE CHANCELLOR ERRED IN REFUSING TO GRANT JIM’S ORE TENUS MOTION FOR RECU-SAL.
III. THE CHANCELLOR ERRONEOUSLY APPLIED THE AL-BRIGHT FACTORS AND SHOULD HAVE AWARDED LEGAL AND PHYSICAL CUSTODY OF THE CHILDREN TO JIM.
IV. THE CHANCELLOR’S AWARD OF “STANDARD” VISITATION TO JIM FAILS TO PROVIDE HIM WITH ADEQUATE VISITATION WITH HIS CHILDREN.
V. THE CHILD SUPPORT AWARDED BY THE CHANCELLOR IS EXCESSIVE AND IS NOT BASED ON A PROPER FINDING BY THE COURT.
VI. THE CHANCELLOR ABUSED HIS DISCRETION IN OVERRULING JIM’S MOTION TO MODIFY TEMPORARY SPOUSAL SUPPORT AND IN GRANTING STACEY’S MOTIONS FOR CONTEMPT.
VII. THE CHANCELLOR ABUSED HIS DISCRETION IN FINDING JIM IN CONTEMPT OF COURT FOR ALLOWING SAMANTHA McDUFFY TO SPEND THE NIGHT AT HIS HOME.
VIII. THE CHANCELLOR ABUSED HIS DISCRETION BY ORDERING HIM TO PAY A PORTION OF STACEY’S ATTORNEY FEES.
IX. THE CUMULATIVE EFFECT OF THE CHANCELLOR’S ERRORS WARRANTS REVERSAL OF THE CASE.

DISCUSSION

I. THE CHANCELLOR ABUSED HIS DISCRETION BY OVERRULING JIM’S THREE MOTIONS FOR CONTINUANCE.

¶ 7. Jim argues that he was prejudiced as a result of the chancellor denying his three motions for continuance. He claims that he lacked the opportunity to prepare witnesses; however, he does not show how this alleged lack of preparation prejudiced his case. The grant or denial of a continuance is within the discretion of the trial court. McDonald v. McDonald, 850 So.2d 1182, 1188(1120) (Miss.Ct.App. 2002). The only time this Court will overturn the denial for a continuance is when manifest injustice has occurred. Hatcher v. Fleeman, 617 So.2d 634, 639 (Miss.1993). Prejudice must result from the denial in order to have that decision reversed. Dew v. Langford, 666 So.2d 739, 746 (Miss.1995). This case had been pending for over a year giving Jim ample time to prepare witnesses, and Jim changed attorneys numerous times. See Weeks v. Weeks, 832 So.2d 583, 585-86(¶ 9) (Miss.Ct.App.2002).

¶ 8. Jim states that he was entitled to a continuance after Paul Davey, a counselor who evaluated the children and both parents, changed his recommendations regarding the custody of the children after further observation of the children. However, the chancellor struck this “Second Addendum to Evaluation Report” which was prepared by Davey; therefore, no continuance was needed. Jim also moved for a continuance so that he could compel testimony of the expert who had performed DNA testing done on a piece of hair which he allegedly got from Stacey’s hairbrush in order to prove her cocaine use. The chancellor did not err in denying this request because it was undisputed that Jim failed to timely disclose the identity of the expert witness who purportedly would have testified that the hair sample was probative of Stacey using cocaine. Therefore, we find that the chancellor did not err in denying Jim’s motions for continuance.

II. THE CHANCELLOR ERRED IN REFUSING TO GRANT JIM’S ORE TENUS MOTION FOR RECU-SAL.

¶ 9. Jim alleges that he was entitled to an ore tenus motion for recusal because the chancellor would not allow the results of the DNA testing into evidence. As stated above, Jim had a strand of hair which allegedly came from Stacey’s hairbrush tested for cocaine use. While the chancellor did state that he questioned whether Jim was capable of tampering with evidence, and there was no chain of custody showing that the sample did indeed come from Stacey, it is clear that his ruling in disallowing the evidence was based upon Jim’s failure to comply with discovery.

¶ 10. It is presumed that a judge who is sworn to administer justice is qualified, impartial and unbiased and when the judge is not disqualified under constitutional or statutory provisions the judge is to decide the propriety of her sitting and that decision is subject to review only in a case of manifest abuse of discretion. Steed v. State, 752 So.2d 1056, 1061(¶ 14) (Miss. Ct.App.1999). However, the chancellor’s rulings do not preference either party. The chancellor may have ruled in favor of Stacey in granting her custody of the children, but the chancellor denied Stacey’s petition for divorce stating that she had not proved her grounds. Therefore, we find no abuse of discretion.

III. THE CHANCELLOR ERRONEOUSLY APPLIED THE AL-BRIGHT FACTORS AND SHOULD HAVE AWARDED LEGAL AND PHYSICAL CUSTODY OF THE CHILDREN TO JIM.

¶ 11. Jim asserts that the chancellor did not analyze the Albright factors correctly in determining the best interest of the children. The chancellor ruled that all of the factors other than the age, health and sex of the children and the continuity of care prior to the separation, favored neither parent. The chancellor found that the previous three factors favored Stacey, and Jim claims that this ruling was erroneous.

¶ 12. This Court’s standard of review in domestic relations cases is established and clear. Child custody matters fall within the sound discretion of the chancellor. Sturgis v. Sturgis, 792 So.2d 1020, 1023(¶ 12) (Miss.Ct.App.2001). Therefore, a chancellor’s ruling will not be disturbed by this Court unless we find the trial court was manifestly wrong, clearly erroneous, or applied an erroneous legal standard. Cooper v. Ingram, 814 So.2d 166, 167(12) (Miss.Ct.App.2002).

¶ 13. The Mississippi Code Annotated § 93-5-23 (Rev.2004) gives the court authorization to make all orders regarding the children during a divorce case. Mississippi is guided by the best interest of the child regarding custody matters. Miss.Code Ann. § 93-5-24 (Rev.2004). Jim argues that the age of the children is not the deciding factor for custody. Jim correctly states that the best interest of the child is the most important concern in determining custody of the children. Dickerson v. Dickerson, 245 Miss. 370, 374-75, 148 So.2d 510, 512 (1963). Therefore, the Mississippi Supreme Court has set out certain factors for the chancellor to consider in determining the best interest of the child. Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983). The chancellor went through an analysis of these factors, and we cannot rule that he erroneously applied them in determining the best interests of Luke and Cash. The chancellor listened to testimony of witnesses including the recommendation of the guardian ad litem. The chancellor is in the best position to evaluate all factors relating to the best interest of the child; therefore, it is appropriate to state that our review is limited. Ash v. Ash, 622 So.2d 1264, 1266 (Miss.1993). We find that the chancellor committed no error in analyzing these factors and awarding custody of the children to Stacey.

IV. THE CHANCELLOR’S AWARD OF “STANDARD” VISITATION TO JIM FAILS TO PROVIDE HIM WITH ADEQUATE VISITATION WITH HIS CHILDREN

¶ 14. Jim argues that, since the guardian ad litem recommended Jim should have liberal visitation and the chancellor agreed with this recommendation, the chancellor erred in only giving Jim standard visitation with his children. Jim accurately states that the chancellor does not have to follow the recommendations of the guardian ad litem, but he states that the chancellor abused his discretion in employing standard visitation in this case. The same standard as stated -above is applied for visitation as for custody. Where a chancellor has made a factual finding on the matter of visitation, this Court will not disturb those findings unless there is no credible evidence, he has committed manifest error or he has applied an erroneous legal standard. Bredemeier v. Jackson, 689 So.2d 770, 775 (Miss.1997). The chancellor’s paramount concern remains the best interest of the child. Harrington v. Harrington, 648 So.2d 543, 545 (Miss.1994).

¶ 15. The Mississippi Supreme Court has said that shifting children constantly from one parent to another is not in the best interest of the child. Gardner v. Pettit, 192 So.2d 696, 697 (Miss.1966). The chancellor even explained in his ruling that by allowing liberal visitation as the guardian ad litem recommended would cause this order to be modified once the children started school and this process would begin again. The chancellor stated that this would be detrimental to the best interest of the two children. Shifting custody only accommodates the parent and is not in the best interest of the child. Brocato v. Walker, 220 So.2d 340, 343 (Miss.1969). We, therefore, find this issue to be without merit.

V. THE CHILD SUPPORT AWARDED BY THE CHANCELLOR IS EXCESSIVE AND IS NOT BASED ON A PROPER FINDING BY THE COURT.

¶ 16. The chancellor ordered Jim to pay Stacey child support in the amount of $2,000 per month. Jim claims that this award exceeds the child support guidelines. It is within the chancellor’s discretion to award child support, and this Court will not reverse that award unless the chancellor was manifestly wrong in the findings of fact or manifestly abused his discretion. Chesney v. Chesney, 910 So.2d 1057, 1060(¶ 5) (Miss.2005). The chancellors awarding of child support is actually an exercise of fact finding; therefore, this Court’s review is significantly restrained. Clausel v. Clausel, 714 So.2d 265, 267(¶ 6) (Miss.1998).

¶ 17. The guidelines of awarding child support are set out in § 43-19-103 of the Mississippi Code Annotated. The guidelines for two children is twenty percent of the adjusted gross income; however, if the income is more than $50,000 the court shall make a written finding in the record as to whether this amount is reasonable. Miss. Code Ann. § 43-19-101(Rev.2004).

¶ 18. The chancellor deducted the amount Jim pays for medical malpractice insurance and determined that his monthly adjusted gross income is $9,370. Twenty percent of that amount is. $1,874, and the chancellor ordered Jim to pay $2,000. The chancellor pointed out that Jim is a doctor; therefore, he has the ability to earn more income but he voluntarily chooses not to. See Hensarling v. Hensarling, 824 So.2d 583, 588(¶ 14) (Miss.2002). After reviewing the record it is obvious that Jim is capable of supporting himself and paying the amount of child support ordered by the chancellor. See Smith v. Smith, 614 So.2d 394, 396 (Miss.1993). Even though we would have benefitted from more detailed information regarding the reasonableness of child support, we find that the chancellor did not abuse his discretion or commit manifest error.

VI. THE CHANCELLOR ABUSED HIS DISCRETION IN OVERRULING JIM’S MOTION TO MODIFY TEMPORARY SPOUSAL SUPPORT AND IN GRANTING STACEY’S MOTIONS FOR CONTEMPT.

¶ 19. The chancellor ordered Jim to pay temporary spousal support of $1,000 per month on February 6, 2003, as well as again on June 13, 2003. Jim refused to pay this support for seven months; therefore, the court held him in contempt for not paying spousal support. Jim argues that Stacey has returned to full-time employment; therefore, he should not be required to pay spousal support.

¶ 20. This Court remains limited in the review of the chancellor’s award of temporary spousal support. Holley v. Holley, 892 So.2d 183, 184(¶6) (Miss.2004). We find no error in the chancellor awarding temporary spousal support. The chancellor stated in the record that Jim has the financial ability to make these payments, and he is held in contempt for not paying this alimony for seven months. Stacey is a nurse and Jim is a doctor. The chancellor reviewed the financial situation of both parties and after doing so awarded temporary alimony. See Jordan v. Jordan, 510 So.2d 131,133 (Miss.1987).

¶ 21. Jim refused to follow a court order for seven months; therefore, the chancellor held him in contempt. This Court will not reverse a finding of contempt unless the lower court committed manifest error. Illinois Cent R. Co. v. Winters, 815 So.2d 1168, 1180(¶45) (Miss.2004). We find no error in the chancellor holding Jim in contempt for not following this temporary order.

VII. THE CHANCELLOR ABUSED HIS DISCRETION IN FINDING JIM IN CONTEMPT OF COURT FOR ALLOWING SAMANTHA McDUFFY TO SPEND THE NIGHT AT HIS HOME.

¶ 22. Jim argues that the court erred in holding him in contempt for allowing Samantha McDuffy to spend the night in his home. The lower court entered a temporary order on February 6, 2004, providing that neither Jim nor Stacey should have members of the opposite sex, not related to them stay overnight while the children are present. Jim again blatantly disregarded a court order; therefore, it was not error for the chancellor to hold him in contempt.

VIII. THE CHANCELLOR ABUSED HIS DISCRETION BY ORDERING HIM TO PAY A PORTION OF STACEY’S ATTORNEY FEES.

¶ 23. Jim was ordered by the court to pay $2,500 of Stacey’s attorney fees in order to reimburse her for the contempt proceedings. Jim argues that he should not have been held in contempt; therefore, he should not have to pay Stacey’s attorney fees. When one party is held in contempt for violating a court order, attorney’s fees should be awarded to the party that has been forced to see the court’s enforcement of its own judgment. Elliott v. Rogers, 775 So.2d 1285, 1290(¶ 25) (Miss.Ct.App.2000). Had Jim not failed to pay this alimony in accordance with the court order, Stacey would not have incurred these expenses.

IX. THE CUMULATIVE EFFECT OF THE CHANCELLOR’S ERRORS WARRANTS REVERSAL OF THE CASE.

¶ 24. Jim asserts that all the above mentioned errors made by the chancellor warrants reversal in this case. However, first he must prove that multiple errors did occur. Sheffield v. State, 844 So.2d 519, 525(¶15) (Miss.Ct.App.2003). We have declined to find error; therefore, Jim’s cumulative claim is without merit.

Id.

¶ 25. THE JUDGMENT OF THE CHANCERY COURT OF MADISON COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., LEE, P.J., SOUTHWICK, IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE, AND ROBERTS, JJ., CONCUR.