1. Tommy Boykin v. Sanderson Farms,
Inc., 2005 WL 43476 (Miss.Ct.App. 1/11/05).
FACTS:. Claimant began working
for employer in April 1987 as the plant’s millwright.
It was undisputed that he worked in an area that required
him to wear ear protection for the high levels of noise
and undergo periodic hearing exams. Three months after
his hire claimant had his first, hearing test. Although
claimant never received written notice that he was experiencing
hearing loss at each testing period he admits he was
verbally informed by the company nurse that his hearing
was getting worse. The company nurse eventually referred
claimant to Dr. Michael Brooks for further testing.
Dr. Brooks first examined claimant on October 8, 1993.
It was determined that Mr. Boykin suffered hearing loss
in both ears. Dr. Brooks said that in 90% of cases with
the degree of bilateral hearing loss similar to claimant’s,
it is due to noise exposure. Claimant admitted sometimes
he worked without protective ear gear when the company
ran out and had to order more. Although other possible
reasons were given for the hearing loss, Dr. Brooks
sent a letter to Sanderson Farms with the precautionary
language that further hearing loss could be prevented
by use of protective ear gear. After this 1993 examination
he also told claimant that noise exposure was the primary
source of his hearing loss. No restrictions were placed
on claimant’s ability to work. In October 1995 Boykin
retired, citing problems with his hearing as the primary
cause. In July 1998 Claimant again went to Dr. Brooks
who then treated claimant with hearing aids as his hearing
had deteriorated substantially in both ears.
In November 1999 Boykin filed
a “Petition to Controvert” with the Workers’ Compensation
Commission for his hearing loss. Boykin characterized
his injury as a latent injury. Employer, Sanderson Farms,
raised the statute of limitations as an affirmative
defense. The Commission found that the statute of limitations
had indeed run in that Boykin’s results on the many
periodic tests and medical examinations serve to render
notice of a work related hearing loss to him.
ISSUE: Whether claimant suffered
from a latent injury and whether the two year statute
of limitation expired. The Court noted that Boykin had
indeed improperly characterized his hearing loss as
a latent, injury citing J. H. Moon & Sons, Inc.
v. Johnson, 753 Co.2d 445, 448 (Miss.1999) and Georgia
Pacific Corp. v. Taplin, 586 So. 2d 823, 827 ( Miss.
1991) wherein the Supreme Court has held that in workers’
compensation cases, “a latent injury is an injury that
the reasonable prudent person would not be aware of
at the moment it was sustained.” In affirming the Commission,
the Court noted that by Boykin’s own testimony he was
made aware after each company examination as early as
1993 that he was experiencing hearing loss and offered
no rebuttal to Dr. Brooks testimony that he informed
Boykin his hearing loss was due primarily to noise exposure.
Therefore, there is substantial evidence in the record
to conclude that claimant knew or should have known
at the time of his retirement, at the latest, that his
hearing loss was due to noise exposure at Sanderson
Farms.
2. Eubanks v. Professional Building
Services, 2005 WL 89402 ( Miss.Ct.App. 1/18/05).
FACTS: Claimant, Dwight Eubanks, suffered two slip and
falls at work in October and November of 1997. Evidence
was submitted that Mr. Eubanks was no stranger to the
workers’ compensation process; having recovered significant
benefits in an unrelated claim through a different employer
as early as 1989 for a back related injury. It was revealed
from the medical records that in June 1997, four months
prior to the alleged work related injuries, the claimant
had also sought treatment for severe back pain in the
emergency room and was in need of replenishing pain
medication for his back because the medication given
him by the V. A. Hospital had run out. Later in December
1997 claimant again arrived at the hospital’s emergency
room complaining of pain and swelling in his left knee
with no mention of a back injury. The record shows claimant
was involved in other incidents concerning job related
injuries and a non job related automobile accident where
he recovered compensation from the responsible driver’s
insurance company for a back injury. The record is clear
that neither of the two doctors who treated Mr. Eubanks
for a significant period of time connected any of his
complaints to the October or November 1997 falls. Mr.
Eubanks filed an incident report on the slip and falls
in the instant case only after he was informed in November
1997 that the contract with Professional Building Services
has ended. Compensability was denied and claimant filed
four petitions to controvert at that time. The Commission
found the emergency room visits were compensable for
October and November 1997 but denied compensability
for the remaining treatments for his alleged back problems.
Claimant appealed alleging the commission failed to
consider that aggravation of his pre-existing injuries
rendered his resulting disability compensable.
ISSUE: Whether claimant’s slip and fall incidents at
work aggravated a pre-existing condition that resulted
in a compensable disability. The Commission, as finder
of fact, determines the weight and credibility to be
accorded the evidence. The Court upheld the Commission’s
finding because there was substantial evidence to support
its decision to deny benefits.
3. Sanderson Farms, Inc. v. Deering,
2005 WL 147724 (Miss. Ct. App. 1/25/05)
FACTS:. Claimant injured his
left hand while loading plastic foil in a machine used
to wrap cellophane film around packages of corn dogs.
Although he usually worked in refrigeration he had other
responsibilities. After treatment for his injuries he
tested positive for blood alcohol and tested above the
legal limit. Upon commencement of a workers’ compensation
claim by the claimant Sanderson Farms denied compensability
under Mississippi Code Annotated Section 71-3-7 (Rev.
2000). The Commission found the claim to be compensable
and the Circuit Court affirmed. Sanderson Farms appealed
claiming that claimant’s intoxication impaired his critical
judgment and ultimately was the proximate cause of the
injury. Employer/ carrier relied on the Court’s ruling
in Edwards v. World Wide Personnel Services, Inc. ,843
So. 2d 730 (Miss. Ct. App. 2002), where claimant was
injured where performing his job in a manner not consistent
with normal procedure. Claimant here testified that
he received very little training on the proper operation
of the Allpac machine in question. However , by nature
of his position as a master skill maintenance operator
claimant admitted that he knew that it should have been
turned off at the time he began working on it and he
failed to do this. Employer /carrier then produced the
testimony of a toxicologist as to the effect claimant’s
blood alcohol content would have on his judgment. At
the time of the accident his blood alcohol level was
estimated to be .160 percent based on his having tested
at a level of .129 percent two hours after the accident.
ISSUE: Whether the claimant’s
intoxication was the proximate cause of his injury.
The toxicologist , Dr. William J. George, opined that
a person begins to see significant and progressive impairment
to judgment and coordination to the point of double
vision at the level claimant tested positive for blood
alcohol. Claimant admitted he circumvented the safety
guards and failed to turn the machine off before he
began working on it. The Court found that claimant’s
injury was proximately caused by his intoxication thus
denying benefits.
4. Ford v. KLLM, Inc. 2005 WL
147735 (Miss. Ct. App. 1/25/05)
FACTS: Claimant, Mattie Ford,
filed a Petition for Review with the Full Commission.
twenty one days after a denial from the administrative
law judge. The Commission dismissed the appeal for lack
of timeliness. Claimant asserts her failure to file
the appeal timely constituted excusable neglect pursuant
to Mississippi Rule of Appellate Procedure 4(g). Additionally,
claimant contends that the accompanying motion to admit
additional evidence tolled the twenty day appeal period.
ISSUE: Whether the filing of
a motion to admit additional evidence tolled the twenty
day appeal period. Claimant relied on the ruling of
Johnston v. Hattiesburg Clinic, P. A., 423 So. 2d 114
(Miss. 1982), for the proposition that a motion requesting
a review of evidence by the Commission filed within
the statutory period tolled the time for appeal until
an order is entered by the Commission on the motion.
However, in the instant case the appeal itself was untimely
therefore the accompanying motion to admit additional
evidence would not toll the time. The dismissal was
affirmed.
5. University of Mississippi Medical Center v. Smith
, 2005 WL 225331 (Miss.Ct.App. 2/01/05)
FACTS: Claimant, David Smith,
sustained a compensable injury as a carpenter at UMC.
In the process of carrying a steel door up a flight
of stairs in March of 1993 he began to experience pain
in his neck and back. This incident was immediately
reported and he was sent to physical therapy which failed
to alleviate the problem. He was then referred to Dr.
McGuire who provided conservative treatment until November
1996 ,when Dr. McGuire performed surgery. Dr. McGuire
kept claimant off work for six weeks after surgery.
Upon his return to work the claimant continued to have
neck pain. Although he resumed his regular duties his
neck and back pain gradually increased in intensity
and began to progress down into his shoulders. Dr. McGuire
opined that the claimant reached MMI on December 16,
1996. In February 1997 claimant developed carpel tunnel
syndrome and headaches; both of which Dr. McGuire associated
with the 1993 workers’ compensation injury. Dr. McGuire
then referred claimant to a neurologist, Dr. Corbett,
and ultimately to a pain management specialist, Dr.
Strong, who prescribed medication for the pain which
limited the claimant’s ability to perform the essentials
of his pre-injury duties. Dr. Corbett opined that Smith’s
cervicogenic headaches were related to Smith’s injury
itself or from the injury’s aggravation of a pre-existing
condition. On September 29, 1997 an MRI revealed degenerative
changes above the site of the fusion surgery. Dr. McGuire
opined that the degeneration was related to the March
1993 injury to a reasonable degree of medical probability.
Denial of workers’ compensation benefits by the Commission
was based on finding that claimant had failed prove
loss of wage earning capacity because he maintained.
The same position since the 1996 surgery. Upon suggestion
of Dr. McGuire, claimant applied and received approval
for disability retirement from PERS and his last day
at work at UMC was August 29, 1998.
ISSUE: Whether the presumption
of no loss of a wage earning capacity in this case was
properly applied or successfully rebutted by claimant.
The Court said the facts bore a similarity to those
in J. H. Moon & Son, Inc. v. Johnson, 753 So. 2d
445 (Miss. 1999). Factually in Moon, claimant was injured
at work, had a cervical disc fusion in 1981, continued
to work despite the pain, had additional surgery , continued
to work until 1993,when he was declared disabled as
a result of the progressive worsening of the 1981 injury.
The court found the injury was not complete until it
was determined that he was disabled or had a permanent
injury and therefore should base his disability payment
rate at the date (1993) the disability becomes permanent
in nature. The reasoning being..... to hold otherwise
would punish Johnson economically for his ever worsening
physical condition. In the instant case, despite the
fact Smith suffered no loss of wages initially, and
in fact experienced increases in income with the same
employer, it was established Smith only grew worse,
he could no longer perform his former job and could
not likely secure steady work in other jobs, and the
willingness of his supervisors to accommodate his neck
injury does not prove he suffered no post-injury loss
of wage earning capacity. Benefits were awarded for
permanent total disability.
6. Mississippi Employment Security Com'n. v. Parker,
2005 WL 171407 (Miss. 1/27/05)
FACTS: In this case, the attorney
for the unemployment compensation claimant attempted
to appeal an MESC Appeals Referee's decision denying
Parker benefits. The Appeals Referee's decision was
mailed to Parker on July 1, 2002, and the appeal was
filed on July 16, 2002. The Board of Review dismissed
this appeal as untimely because it was not filed within
"fourteen (14) days after the date of notification
or mailing" of the Claims Examiner's decision,
as required by Miss. Code Ann. §71-5-519 (Rev.
2000).
Parker argues that Rule 6(e)
of the Miss. Rules of Civil Procedure should apply and
allow him three extra days in which to file his appeal.
Rule 6(e) states that whenever a party is required to
take some action withing a prescribed period of time
after being served notice by mail, "three days
shall be added to the prescribed period."
ISSUE: Does Rule 6(e) in particular,
and the Rules of Civil Procedure in general, apply to
the proceeding of the Employment Security Commission?
The Supreme Court held that the Rules of Civil Procedure
are inapplicable to administrative procedures and appeals,
and apply instead only to proceedings in circuit, chancery
or county court, as stated in Rule 1. Because the MESC
is a State administrative agency, these rules do not
apply. The Court has reached like conclusions with regard
to proceedings before the State Oil & Gas Board
and the Department of Health. The Court applied the
applicable statute and affirmed the dismissal of Parker's
appeal even though it was but one day late.
COMMENT: We can readily conclude
that the Rules of Civil Procedure likewise have no application
to proceedings before the Commission, except to the
extent the Commission has specifically adopted these
rules or parts thereof.
7. Levy v. Mississippi Uniforms, 2005 WL 351345 (Miss.
Ct. App. 2/15/05)
FACTS:. Claimant initiated a
claim for an alleged April 26, 1994 injury by filing
a petition to controvert on October 17, 1994. It was
noted by the Commission that two days prior to the alleged
injury date the claimant had received her tenth reprimand
. On April 29, 1994 claimant saw the company doctor,
Dr. Gilliland, who found that the cyst was not related
to claimant’s work activities. Later, on August 12,
1994 Dr. McWillie Robinson , an orthopaedic surgeon,
issued a report which failed to address whether claimant’s
employment in any way caused or contributed to the formation
of her ganglion cyst. Claimant later sought treatment
for the cyst from her family doctor, Dr. John Downer,
on May 12 and May 26, 1994, two weeks after she reported
the cyst as a work connected injury to the employer,
but failed to give a history of being injured at work.
In summary, the Commission fund that claimant did not
complain of any problem with her left upper extremity
at the time of her last reprimand although she later
testified that she was experiencing pain and a burning
sensation in her left arm at that time. However, in
an interview concerning her low production, claimant
expressed her belief that her low production was due
to lack of work and never mentioned pain or an alleged
injury. Claimant was terminated on May 31, 1994, without
any complaint of pain due to a job related injury. Other
than her ganglion cyst, claimant did not complain again
of right or left upper extremity symptoms until some
13 months after her termination when she saw Dr. Geissler
on July 13, 1995. The Commission found that claimant
did not prove her claim of compensability.
ISSUE: Whether claimant met
her burden of proof in establishing a compensable injury
and, if so, the extent of the employer’s liability for
the alleged injury. The only medical opinion that would
tend to support claim for job relatedness falls short
of clear medical proof in that the medical opinion rests
upon a disputed factual history . The court found in
reviewing the medical proof and the record as a whole
that substantial evidence was lacking to resolve the
claim in the claimant’s favor. The denial of benefits
was affirmed.
8. Lynch vs. Liberty Mut. Ins. Co., 2005 WL 407168 (Miss.Ct.App.
2/22/2005) Bad Faith Issue
FACTS:. This is a non workers’s
compensation case. Factually ,Ms. Lynch filed a claim
for injuries allegedly suffered in an automobile accident
covered by the Insurer, Liberty Mutual. The investigator
, Brett Pendleton, followed and recorded her actions.
Lynch alleges she became aware of the investigator shortly
after he began following her sometime around March 11,
2000. She filed a complaint with the local Sheriff Department.
Mr. Pendleton followed her to her place of employment
and was arrested and charged with stalking. He was found
not guilty in Municipal Court some three months later
in June 2000. During that trial Lynch discovered he
had been hired by Liberty Mutual to investigate and
record her actions. A little over three years later,
on April 10, 2003 Lynch filed suit against Liberty Mutual
and Pendleton. Lynch alleged bad faith, slander, right
to privacy, negligence and various and sundry boiler
plate intentional tort actions. The defendants filed
responses. Pendleton, as basis for his motion to dismiss,
alleged that the negligence claim was barred by the
three year statute of limitation and her intentional
tort claim was barred by the one year statute of limitations.
The trial court ruled that notwithstanding the language
in Lynch’s complaint, all of the claims appeared to
be intentional torts and were barred by the one year
statute of limitations. The Court further ruled that
the negligence claim was subject to the three year statute
of limitations and more than three years had elapsed
between the time Lynch became aware of the injury the,
“ alleged stalking”, and the filing of the complaint.
The motion to dismiss was granted with prejudice. Lynch
appealed.
ISSUE: Whether Lynch’s intentional
torts claims were subject to the one year statute of
limitations? The Court is not bound by the parties’
characterization of the act but determines the nature
of the act based on the facts. In the instant case the
acts complained of were intentional rather than negligent.
The deliberate acts in investigating the claim by way
of surveillance were intentional, thus falling under
the one year statute of limitation for intentional torts.
Lynch testified to being unaware of any such investigative
surveillance until after the arrest on March 11, 2000.
The trial judge thus ruled the one year statute for
the intentional tort ran from March 11, 2000 the last
known act thus the claim was barred. The trial court
further ruled that any negligence claims were subject
to the three year statute of limitation. It further
held that the time began to run from the time when she
should have been reasonably aware that a tort had been
committed. Therefore the negligence claim was barred
-by the three year statute of limitation because her
action was filed in excess of three years from the date
of the arrest of the investigator. Determined, Lynch
suggests that the statute of limitations as to Liberty
Mutual should have commenced only after the identity
of Liberty Mutual was established at the June 2000 trial.
The Court rejected this argument because Liberty Mutual
took no separate action and thus could be liable only
if Pendleton was liable. The Statute of Limitation runs
from the same date. Note: On one hand in the broad complaint,
Lynch alleges respondeat superior/vicarious liability,
and would later appear to abandon this argument in an
unsuccessful attempt to avoid having the statute of
limitation defeat her claim against Liberty Mutual.
9. Cives Steel Co. v. Williams, 2005 WL 427192 (Miss.
2/24/05 ) ON WRIT OF CERTIORARI
FACTS:. Claimant suffered a compensable injury and was
awarded permanent partial disability to the body as
a whole by the Commission. Employer/carrier appealed
to the Circuit Court and the Circuit Court in turn affirmed
three awards contained in the Commission Order, more
specifically a period of temporary total disability,
permanent partial disability for 450 weeks and medical
services and supplies as required by law, together with
a ten percent penalty on all untimely paid installments
and interest at the legal rate. The Circuit Court, however,
found that the Commission erred in awarding total disability
benefits for the period claimant actually worked with
a partial disability and ordered a remand for the Commission
to reopen the case for additional testimony necessary
to make the Howard Industries determination. In Howard
Industries, Inc. v. Robinson, 846 So. 2d 245 ( Miss.
Ct. App. 2002) a determination was necessary to distinguish
the periods of temporary total disability from temporary
partial disability for the purpose of determining credit
for periods the employer earned reduced wages because
of his injuries. The Court in Howard made it clear that
a worker is not entitled to temporary total disability
benefits if the worker is not totally disabled. Calculations
based upon reduced earnings at two thirds of reduced
earnings for that period of temporary partial disability
must be made.
ISSUE: Whether the appeal to
the Appeals Court was interlocutory and thus unauthorized
as the dissent suggested in the case below. Procedurally,
the Circuit Court affirmed a portion of the award but
remanded to the Commission for further evidentiary proceedings
for a determination of partial disability earnings.
The law requires an order of the Commission to be final
to be appealable. Southern Natural Resources, Inc. v.
Polk, 388 So. 2d, 494, 495 (Miss. 1980).Once the Circuit
Court issued an Order remanding the case for additional
testimony, despite the fact it affirmed a portion of
the Commission’s award, this was not a final order from
which an appeal could be perfected. Therefore, the Appeals
Court erred in considering the matter on the merits.
The Court of Appeals’s judgment was vacated, the appeal
was dismissed and the cause is remanded to the Commission.
10. Renfroe v. Berryhill, 2005 WL 468392 (Miss.Ct.App.
3/01/05).
FACTS: A personal injury claim was brought in Madison
County Circuit Court. Factually, during horseplay Renfroe
suffered a severe injury to his ankle. A motion in limine
was filed as well as a motion for a partial summary
judgment on the issue of Renfroe’s employment status
with Brad Berryhill owner of J & B Mill Store. Both
motions were denied and the case went to trial. The
jury returned a verdict in favor of Renfroe in the amount
of $20,0000 but found Renfroe to be contributory negligent,
there reducing the award by $1,000.00. Renfroe filed
a post-trial motion for a new trial on the issue of
damages or in the alternative for an additur, both motions
were also denied. Renfroe then appealed to the Court
of Appeals.
ISSUE: Whether the trial court
erred in failing to instruct the jury that contributory
negligence could not be assigned if Renfroe was found
to be an employee? In denying Renfroe’s motion for a
partial summary judgment, the court concluded that the
question of Renfroe’s employment status was a fact issue
that should be decided by the jury. Later, however,
when the employment issue came up in the court’s consideration
of proposed jury instructions, the trial judge refused,
for fear of confusing the jury , to give any instruction
specifically on the issue of employment status and its
relationship to the issue of contributory negligence.
Strangely enough the court allowed an instruction to
the effect that employers with five or more employees
are required to maintain workers’ compensation coverage.
This instruction was given with no other instruction
concerning the workers’ compensation issue and therefore
lacked relevance. The jury was sent into deliberations
without having been instructed on how the question of
Renfroe’s employment status could affect their verdict.
Pursuant to Miss. Code Ann. Sec. 71-3-9 Berryhill’s
failure to maintain workers’ compensation coverage would
preclude the common law defenses of contributory negligence.
The issue of the employment status of Renfroe bore directly
on the issue of contributory negligence, and the jury
was not instructed on the relationship between these
two issues. Berryhill argues the employment status issue
was not raised in the initial pleadings and was not
being tried by express or implied consent. The Court
rejects this argument, finding that the issue was, in
fact, tried by implied consent. The Court found: When
the parties were selecting and examining jury instructions
Berryhill’s counsel made arguments relating the issue
of Renfroe’s employment status without objection; during
the trial Berryhill’s counsel not only failed to object
to questions on the employment status but counsel asked
questions of Renfroe and his witnesses relating the
Renfroe’s employment status. Therefore the Court held
Berryhill cannot legitimately claim that he did not
recognize Renfroe’s employment status was a very relevant
issue at the time of the trial. The issue of employment
status was tried by implied consent and the Circuit
Court’s judgment is reversed as to the finding of contributory
negligence and rendered as to the full award.
11. Pike County Board of Supervisors v. Otis Varnado,
2005 WL 704207 (Miss.Ct.App. 3/29/ 2005)
FACTS: Claimant, 61 year old
Otis Varnado, controverted his claim for a work related
injury to his back . The facts established that Varnado
had a history of 27 years as a heavy equipment operator
for the employer. The claimant was awarded permanent
total disability by the Commission. Pike County appealed
to the Pike County Circuit Court which affirmed the
decision of the Full Commission. Employer appealed alleging
lack of substantial evidence to support the permanent
total disability award. The allegations were based partially
on the fact the claimant’s treating physician, Dr. Senter
made notations to the fact claimant had “ marked stenosis
at the second to the last and third to last disc”, but
he did not state the stenosis was cause by the occupational
injury. However, he does state that the seven per cent
impairment rating was being given “ due to his back
from his injury”. Dr. Westbrook, however, opined that
the claimant was one hundred percent disabled because
of “recurrent back pain and spinal stenosis.” It is
not totally clear from the medical record of Dr. Westbrook
whether there is a causal connection between Varnado’s
stenosis and the occupational injury which he suffered.
ISSUE: Whether the decision of the Full Commission for
permanent total disability is supported by substantial
evidence. The Appeals Court made it clear once again
its function is to determine whether there is substantial
credible evidence which would support the factual determination
made by the Commission. Furthermore, if there be substantial
credible evidence to support the decision, they are
without authority to disturb the Commission findings
even though the evidence would not be sufficient to
convince them were they the fact finders. Considering
the evidence as a whole the Court affirmed the judgment
of the Circuit Court affirming the decision of the Commission.
12. Hensarling v. Casablanca Construction Co.,, 2005
WL 757305 (Miss.Ct.App. 4/5/2005)
FACTS: Claimant, Stewart Hensarling,
filed a petition to controvert March 12, 1998 after
he was diagnosed with moderate anemia and significant
neutropenia as well as leucopenia. He alleges this was
a result of exposure to toxic chemicals on his job.
The Full Commission conducted a hearing on December
10, 2001 and concluded that the preponderance of proof
did not support a finding that claimant’s illness resulted
from his work environment and denied benefits. Claimant
appealed to the Circuit Court of Forrest Count and the
Circuit Court affirmed the Full Commission’s denial.
Claimant then appealed to the Court of Appeals alleging
the denial was not supported by substantial evidence.
ISSUE: Whether the denial of the award was clearly erroneous
and contrary to the weight of the credible evidence.
The claimant has the burden of proving disability, and
that the disability has a casual relationship to an
injury suffered on the job. The Commission relied on
the medical proof presented on Claimant’s behalf from
his treating physician, an expert in hematology and
oncology, and a board certified physician in emergency
medicine and toxicology. The Claimant's treating physician,
an internist, stated that he "had no idea” whether
there was a causal relationship between the work environment
and the Claimant’s illness. The internist deferred to
the hematologist/oncologist who stated “nowhere can
I tell you with certainty at all about what is the definite
etiology of this.” Injuries such as this must be proven
by credible medical evidence rather than by mere speculation.
Hensarling did not prove the causal relationship between
his injury and the employment. In fact, the toxicologist
opined that the condition of neutropenia was likely
an adverse reaction to certain medication the Claimant
had taken previously for sinus and urinary tract infections.
The Court, in affirming the Commission and Circuit Court,
found the Claimant failed to meet the burden of proof.
13. Bryan Foods, Inc. v. James David White, 2005- WL-894864,
( Miss. Ct.App., 4/19/05)
FACTS: Claimant, James White
worked for employer as a diesel mechanic. Claimant’s
initial injury to his elbow occurred on May 30, 1995
during the course and scope of his employment. He was
treated for this injury from November 1995 through January
1996. He had flare ups from that injury in June and
July of 1996 and was restricted to light duty for six
weeks. He was returned to full responsibilities in September
of 1996. Claimant suffered another injury on November
27, 1996 when he attempted to remove a large tire from
an eighteen-wheeler and felt immediate pain in his neck.
The injury was not immediately reported due to the fact
that claimant though it to be merely a “crick”. While
applying medicated cream to his neck in the presence
of the supervisor he told that supervisor it was a “crick’.
Several days later claimant went to the company nurse
complaining of the problem. The nurse responded that
the problem with his neck could not be compensated by
the company as it was not related to his work. Relying
on the opinion of the company nurse that it was not
a work related injury he did not report the incident
of the tire removal with the onset of pain on November
27, 1996 to the doctors he saw for the problem with
his neck. Claimant went to his family physician on December
5, 1996 giving a month long history of neck and shoulder
pain. His family doctor referred him to Dr. Simmons
who diagnosed the condition as cervical radiculopathy
and referred him to a neurosurgeon, Dr. Thomas McDonald.
Dr. McDonald first treated claimant on December 27,
1996. Claimant again never included in his history the
incident of the tire removal and the immediate onset
of pain, relying on the nurse’s assertions that is was
not work related and therefore not a compensable injury.
Dr. McDonald diagnosed a ruptured C-4 disc and a bulging
disc at C6-7. He immediately performed surgery. Upon
his return to work claimant again approached the company
nurse about the work relatedness of the injury and she
again discouraged his filing a claim. A second surgery
was performed on March 10, 1998. However, despite the
fact he was released to full duty on July 27, 1998,
claimant’s condition failed to improve. Based on the
opinion of a second neurosurgeon, and upon completion
of a FCE, claimant was put on a lifting restriction
and assessed a twenty percent medical impairment. The
Commission awarded the claimant benefits for a 50% loss
of wage earning capacity based on his failed efforts
to secure a position at the same rate of his pre-injury
income, and his inability to perform the duties of his
usual occupation.
ISSUE: Whether commission based its Order on substantial
evidence ? The Commission found that claimant did present
substantial medical and lay testimony to support his
claim for the 50% loss of wage earning capacity awarded.
The Commission is affirmed.
14. Delores Lee v. Singing River
Hospital, Self Insured, 2005-WL-1021177, Miss. App.,
May 3, 2005
FACTS: Claimant filed an appeal
from a denial of permanent disability benefits. The
claimant suffered a compensable injury on May 25, 1998
from a strained back. She was treated and returned to
work on or about July 21, 1998. The return to work was
a light duty assignment requiring her to work only four
hours per day four days each week. Claimant continued
in this light duty status until March 1999 when she
was required to increase her hours to six hours per
day. During both periods of light duty claimant was
paid for a full eight hour day. Dr. Winters treated
claimant until May 18, 1999. Dr. Winters refused to
see her again after viewing a videotape of claimant
engaging in activities indicating she had not been truthful
with him about her limitations. She was shown engaging
in strenuous activities with ease and without any assistance
while lifting. Other activities involved climbing, and
carrying cumbersome objects weighing in excess of 100
pounds. When confronted by her employer with the videotape
on June 4, 1999 claimant offered no explanation for
her insistence that she was unable to resume her duties
at work. She was immediately terminated. Claimant was
awarded temporary disability from May 25, 1998 until
July 21, 1998 but was denied permanent disability. Claimant
appealed.
ISSUE: Whether claimant proved
her claim for permanent disability notwithstanding the
videotapes that captured her engaging in activities
that she allegedly was unable to perform based on her
assertions to her physicians? Although medical proof
was presented in this claim to show there was some degenerative
and chronic disc changes, the videos show that any injury
claimant sustained was obviously not as symptomatic
and painful as she had indicated. Claimant failed to
meet her burden of proof that her job related injury
caused permanent disability. The Commission had substantial
evidence to award only temporary benefits.
15. Lillian Goodlow v. Marietta-American and Employers
Insurance of Wausau, 2005- WL-1384317, ( Miss. Ct. App.,
5/31/05)
FACTS: Claimant, Lillian Goodlow,
appealed from a Full Commission Order awarding her seventeen
and one-half weeks of permanent partial disability benefits
arising out of a work-related injury to her leg. Factually,
following an operation to repair a fractured fibula
and tibia in her left leg on March 23, 2000 Claimant
was allowed to return to work on September 13, 2000
at a sedentary job for four hours per day. Goodlow was
subsequently released on January 17, 2001 to full duty
with no restrictions and given a permanent partial impairment
rating of ten percent to her left, lower extremity.
She returned to her position with the same number of
hours and at the same rate of pay she earned prior to
her injury. The claimant voluntarily terminated her
employment and testified that she had held at least
four other jobs since her injury but could not continue
to work due to problems with her leg. Claimant filed
a petition to controvert on July 6, 2001. The Employer
/carrier agreed she sustained a compensable injury but
denied that she suffered a loss of wage earning capacity.
The Commission ordered employer/carrier to pay permanent
partial disability for a period of seventeen and one-half
weeks with credit for any benefits already paid. The
Commission’s decision , having been affirmed by the
Circuit Court, gave rise to an appeal by the claimant.
ISSUE: Whether the Commission’s
decision was supported by substantial evidence ? In
affirming the Commission the Court of Appeals made it
clear that the claimant bears the burden of presenting
to the Commission sufficient evidence to establish entitlement
to compensation. The question of the existence and extent
of any permanent disability arising out of a work-related
injury is a question of fact and the Commission as fact
finder makes a determination as to the sufficiency of
proof. Further, under the present law where there exists
a permanent functional impairment to a scheduled member
the proper measure of compensation is dependant upon
two factors: the degree of functional loss of use as
demonstrated by medical evidence and the impact that
the loss of function of the scheduled member has on
the worker’s ability to perform the normal and customary
duties associated with their usual occupation. The claimant
failed to present medical evidence that her loss went
beyond the permanent functional impairment of ten percent
to her leg. Claimant, although not now working in the
per-injury occupation, left the job voluntarily as well
as other subsequent positions she held and presented
no evidence that she was unable to perform those subsequent
jobs due to the injury to her leg. The Court affirmed
the Commission.
16. Lane Furniture Industries, Inc. V. Barbara J. Essary,
2005 -WL- 1384320 ( Miss. Ct. App., 5/31/05)
FACTS: Employer/ carrier appeals
form an award of Permanent Total Disability by the Commission
and affirmed by the Circuit Court.
ISSUE: The primary issue is whether the claimant proved
or sustained her burden for an award of permanent total
disability based on employer/ carrier’s failure to rehire
claimant? The claimant was admittedly injured in a compensable
accident. The parties stipulated to the wages, temporary
benefits and the date of maximum medical recovery. The
controversy began at MMI with the impairment rating
of sixteen percent to the body as a whole resulting
in a total permanent disability award. The Commission
, considering the claimant’s age, (sixty-two), limited
education, history of manual labor, two back surgeries
and work restrictions, approved for social security
benefits, coupled with the fact employer had not offered
to rehire or reinstate her, found she was entitled to
permanent total disability benefits.
The company’s action gave rise to the question of what
was their responsibility when the claimant was released
from her doctor. Factually, employer asserts that claimant
failed to establish that she attempted to return to
work and was refused reinstatement or employment and
therefore, she was not entitled to total disability
by law. Although the company was aware she had been
released from the doctor, the claimant never indicated
that she was desirous of returning to work nor did she
attempt to meet with the employer for the purpose of
being considered for a position to accommodate her restrictions.
Mere statements directed to her supervisor that she
had been released does not mean that she was refused
reinstatement or employment with the company. In addition,
claimant alleged she made many attempts to find work
but admitted in all instances she made the prospective
employers aware she had back problems and back surgeries
which prevented her from lifting anything. In any event,
the Court ultimately reversed the award based on the
fact that claimant did not meet her burden of showing
the employer refused to rehire or reinstate her, making
it clear that the burden rests with the injured worker
to pursue re- employment. This award was reversed and
remanded to the Commission to determine 1)whether claimant
was medically unable to return to work for employer
so as not to require her to seek re-employment, and
2) whether or not any restrictions placed on claimant’s
employment were subject to accommodation at Lane, and
3) whether considering any restrictions placed upon
claimant’s employment, she made reasonable effort to
seek similar or other employment.
17. Tupelo Public School District And Mississippi School
Board Association Worker’s Compensation Trust v. Karen
King Parker , 2005-WL-1389579, (Miss. Ct. App., 6/7/05)
FACTS: Claimant collapsed while
at work on September 21, 1998 and was treated overnight
at the hospital. The claimant missed four days of work,
and although covered by workers’ compensation insurance,
she took sick leave and was given full pay for the time
off. The employer filed a B-3 First Report of injury
with the Commission on or about June 13, 2000. On June
30, 2000 the employer/carrier filed a B-52, Notice of
Controversion stating they were investigation the claim.
Parker filed a B5-11 Petition to Controvert on February
28, 2001, approximately two years and five months after
the date of her alleged injury. It was stipulated no
settlement discussions regarding the claim were ongoing
or ever initiated. The employer/carrier argued that
claim was time barred by the two year statute of limitation
pursuant to Mississippi Code Annotated Section 71-3-35(1)
( Rev. 2000). The Commission denied the claim on that
basis and the claimant contends that the commission
was in error, advancing the argument that the Form B-52
filed by the employer/carrier was enough to toll the
two year statute of limitation. The Circuit Court reversed
and remanded the case, basing its decision, in part,
on its finding that the employer/carrier’s filing the
form B-52 was an acknowledgment of the pending claim
and thus tolled the two year statute of limitation.
ISSUE: Whether the employer’s
filing form B-52 tolled the two year statute of limitation
pursuant to Mississippi Code Annotated Section 71-3-35
(1) (Rev. 2000)? The relevant part of this statute provides,
“ regardless of whether notice was received, if no payment
of compensation other than medical treatment of burial
expense is made and no application for benefits filed
with the commission within two years from the date of
the injury or death, the right to compensation therefore
shall be barred.” The Commission took the position,
and rightly so, That “application for benefits” means
a petition to controvert , or some variation of a petition
or motion, filed with the Commission by the claimant,
not the employer or carrier. The claimant advanced the
argument that McCrary v. City of Biloxi, 757 So.2d 978
(Miss. 2000) applied. In McCrary, the employer told
claimant that he would file his claim for him and engaged
in settlement negotiations with the claimant for a substantial
period of time. Claimant relied on this misrepresentations
to his detriment. In the instant case neither the employer
nor the carrier made any misrepresentations to claimant
that they would file a claim on her behalf nor was claimant
induced to not file an applications for benefits, thus
McCrary would not apply. The Court of Appeals made it
clear in affirming the Commission that an application
for benefits ( the filing of a “B5-ll” ) within the
two year period as required by law was not done in a
timely fashion; thus the claim was time barred.
18. Ada Boyd v. Mississippi Workers’ Compensation Commission
Self-Insurer Guaranty Association, 2005 -WL-1384345
(Miss Ct. App., 6/07/05)
FACTS: Claimant filed an appeal
from a denial of permanent partial disability benefits
for a compensable injury she suffered on September 14,
1995. In an unsuccessful appeal to the Circuit Court
of Leflore County, which affirmed the decision of the
Commission, claimant appealed to the Court of Appeals.
Factually, claimant worked for the employer since 1976
and was terminated in May 1996 after roughly twenty
years for failure to report to work after being released
to return to work from a compensable injury. Claimant
denies having been informed by her treating physician
that she was released to return to work. Claimant was
injured on or about September 14, 1995 and received
temporary total disability from that date until May
23, 1996. Her treating physician Dr. Dowen Snyder, determined
her date of maximum medical improvement was in fact,
May 23, 1996. Dr. Snyder notified employer that claimant
was released to return to work. Claimant never contacted
the employer about returning to work nor did she make
any attempt to return to work within three days, as
required by company policy. Claimant was terminated.
Almost one year later, March 21, 1997, claimant filed
a petition to controvert, alleging permanent disability
due to the September 14, 1995 injury. Historically,
claimant had two attorneys to withdraw and her claim
eventually was dismissed for failure to prosecute in
1998. Roughly , a year later on January 14, 1999 her
claim was reinstated after she secured another attorney.
A second petition to controvert was filed with additional
information. During the time in which Claimant received
benefits for temporary disability, she received ongoing
treatment from Drs. Costilow, Snyder and Stringer. Claimant
worked briefly as a sitter for an elderly couple and
made one inquiry about employment at Wal-Mart with some
substitute teaching. There were no other attempts for
securing employment.
ISSUE: Whether the Commission’s
findings that claimant failed to present a prima facie
case for loss of wage earning capacity is supported,
and whether claimant presented substantial evidence
that she is temporarily totally disabled or in the alternative
permanently partially disabled ? In affirming the Commission’s
decision the Court found that claimant failed to produce
medical evidence to support her claim for temporary
total disability, and she was not she able to supply
substantial evidence to support an award for permanent
partial disability. In addition, claimant made no reasonable
attempt to secure employment as required to establish
a prima facie case of permanent disability and resulting
loss of wage earning capacity. Claimant’s misplaced
attempt to Jordan v. Hercules, Inc., 600 So. 2d 179
(Miss. 1992) was rejected. The court made it clear that
the Jordan rule creates a presumption that a permanent
injury is totally disabling; it does not create a presumption
that someone who had a temporary injury has a permanent
one.
