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Mississippi Workers’ Compensation – Recent Decisions (1/28/14 – 2/13/14)

Mississippi Workers’ Compensation – Recent Decisions
1. Mississippi Dept. of Public Safety v. Adcox Miss. Court of Appeals Cause No. 2012-WC-01537-COA
Hand down date: 1/28/14

http://courts.ms.gov/Images/Opinions/CO89311.pdf

This case involved a mental/mental injury to claimant, who was an agent with the Mississippi Department of Public Safety/Bureau of Narcotics (“MBN”). The Claimant sought permanent total disability award based upon diagnosis of Post-Traumatic Stress Disorder (“PTSD”) following her assignment to the Mississippi Gulf Coast to assist in Katrina relief efforts. She testified that she began having panic attacks and flashbacks after personally observing many dead bodies during those relief efforts. Claimant had a pre-existing history of suffering from PTSD after her partner was shot in 1990, but later returned to full duty. She also had been treated for chronic migraine headaches since 2001.

The ALJ found that the Claimant failed to prove her work on the Gulf Coast aggravated or contributed to a worsening of preexisting headaches and neck pain, but that she had proven by clear and convincing evidence that her work on the Gulf Coast caused her to suffer from PTSD. Based upon this finding, the ALJ awarded the Claimant permanent total disability benefits. Both parties appealed to the Full Commission, which affirmed the ALJ’s award. MBN appealed to Circuit Court and the Full Commission award was affirmed. MBN appealed, arguing that the Full Commission erred in finding that the Claimant suffered from PTSD. Secondly, MBN argued that the evaluation report and testimony of Dr. Mark Webb should have been considered and given greater weight.

The Court of Appeals. With regard to the finding of permanent disability as a result of the Claimant’s diagnosis of PTSD, the Court found that there was substantial evidence to support the Commission’s finding that the Claimant presented clear and convincing evidence that her PTSD was causally related to her work-related Katrina experience.

On the medical front, the Claimant offered the testimony of her medical team from Region 8 Mental Health Center. This included medical testimony from Dr. Stanley Russell, a psychiatrist, and Nina Williams, a licensed therapist. MBN offered the testimony and report of Dr. Mark Webb, a psychiatrist who apparently performed an EME for MBN.

Dr. Russell diagnosed the Claimant as suffering from PTSD. Dr. Russell testified that the Claimant’s Katrina experience, which included the inadvertent discovery of a body in a vacant house, was “the straw that broke the camel’s back,” combining with her pre-existing headaches, neck pain, anxiety and depression to render her disabled. Nina Williams testified that the Claimant presented with one of the most severe cases of PTSD she had ever seen as a licensed therapist. As a result, Williams was of the opinion that the Claimant would never be able to hold a full-time or part-time job. Dr. Mark Webb countered this testimony with his report and deposition testimony, through which he opined that the Claimant’s disability arose from her long history of severe, chronic and documented physical pain. He further testified that the Claimant was not suffering from PTSD principally because during her Katrina work there was “no imminent danger to her or a loved one.” Both Dr. Russell and Nina Williams jumped on this statement by Webb, testifying that imminent danger to the patient and loved one is not required for a diagnosis of PTSD under the DSM-IV. The Commission ultimately found that Dr. Webb’s testimony was “unpersuasive at best.”

In affirming the decision, the Court of Appeals noted prior Mississippi Supreme Court precedent holding that “[w]here medical expert testimony is concerned, this Court has held that whenever the expert evidence is conflicting, the court will affirm the Commission[‘s judgment] whether the award is for or against the claimant.”

Justice Virginia Carlton dissented alone arguing that the medical testimony of Dr. Webb was persuasive and as a result, the Claimant failed to meet her burden of proof to show by clear and convincing evidence a causal connection between her mental injuries and her employment.

2. Ladner v. Zachry Construction Miss. Supreme Court Cause No. 2012-CT-00403-SCT
Hand down date: 1/30/14 (En banc decision)

http://courts.ms.gov/Images/Opinions/CO91533.pdf

This action arises out of a work–related accident that occurred on December 27, 2006 when the Claimant felt a “pop” in his back while working for Zachry. He reported the incident to his supervisor and was taken to first aid trailer, where he remained for the remainder of the day. He then missed the next few days of work because of his back. Ladner then returned to work, but his symptoms worsened causing him to spend two or three weeks sitting in the safety trailer during work hours. He was ultimately referred to a neurosurgeon, who treated the Claimant until May 20, 2008, at which time he was deemed to have reached maximum medical improvement (“MMI”). Ladner was later laid off by Zachry in December, 2008 along with a number of other employees.

The Claimant filed his Petition to Controvert on August 24, 2009 alleging that he had suffered a work related injury to his back and legs on December 27, 2006 while employed by Zachry. Through its Answer, Zachry admitted injury, but asserted that Claimant’s claim was barred by two-year statute of limitation, relying upon Section 71-3-35(1) of the Mississippi Code, which provides that:

No claim for compensation shall be maintained unless, within thirty (30) days after the occurrence of the injury, actual notice was received by the employer or by an officer, manager, or designated representative of an employer. . . . Regardless of whether notice was received, if no payment of compensation (other than medical treatment or burial expense) is made and no application for benefits filed with the [C]ommission within two years from the date of the injury or death, the right to compensation therefor shall be barred.

Id. (emphasis added).

To combat the statute of limitations argument, the Claimant presented testimony that he continued to report to work during the time he was under the care of his treating physician and was paid his regular wages from the date of injury until he reached MMI. However, the Claimant noted that he didn’t perform regular job responsibilities during this time, but instead “basically sat or lay” in the safety trailer during work hours and did occasional light duty work assignments such as filing paperwork, “hole watch” duty and “standby attendant” duty during safety audits. It was Claimant’s testimony that 95% of the time he was on the job, he sat in the safety trailer watching TV until he reached MMI. Accordingly, the Claimant argued that he was paid wages in lieu of compensation benefits and therefore the statute of limitations did not begin to run until his “benefits” were terminated. See, e.g., Parchman v. Amwood Prods. 988 So. 2d 346, 350 (Miss. 2008) (generally when a claimant is paid his usual salary and does no work for a given period or does so little work that he does not really earn his wage, the continued payment of the claimant’s salary will be considered as having been in lieu of compensation benefits). The summary of the testimony presented by Zachry indicates that they did not have a witness who could strongly contest the Claimant’s testimony. The strongest rebuttal was “I don’t think that’s accurate, . . . because [I] saw [Claimant] out in the work force.”

The ALJ found that claim was not time barred because Claimant had received wages in lieu of compensation, thereby tolling the statute of limitations. On appeal, the Full Commission reversed, holding claim was in fact time-barred based upon their finding that the Claimant’s post-injury work activities were not “so little” that he did not “earn” his wages. And since he had “earned” his wages, such wages did not constitute “wages in lieu of compensation;” thus the Claimant’s claim was time-barred. Both the Circuit Court and Court of Appeals affirmed the Full Commission’s finding. The Mississippi Supreme Court granted certiorari review and then reversed and remanded through an en banc decision.

The Mississippi Supreme Court decision noted that the Commission found that the Claimant was not paid wages in lieu of compensation by Zachry based upon determination that Claimant had participated in post-injury work activities during the period of time he contended he was paid wages in lieu of compensation. In particular, the Court noted that the Full Commission was persuaded by testimony of two Zachry employees who testified that the Claimant had performed these duties. The Court went on to find that this meager testimony was insufficient to rebut the Claimant’s claim that he was in fact paid wages in lieu of compensation. The Court concluded that despite the fact that the Claimant had performed some post-injury duties for Zachry, no evidence was presented from which someone could reasonably conclude that the Claimant had actually “earned” his wages during the time he was under the medical care of his treating physician. Accordingly, there was insufficient evidence to support the Full Commission decision. The case was ultimately remanded to the Commission for a hearing on the merits.

3. Smiley v. Hercules Concrete Pumping Service, Inc. Miss. Court of Appeals Cause No. 2012-WC-01437-COA
Hand down date: 2/11/14

http://courts.ms.gov/Images/Opinions/CO91880.pdf

Claimant claimed to have injured his lower back while working on the job for Hercules on February 14, 2008. He further claimed that he reported the injury to a co-worker at Hercules along with the company dispatcher and president. Both the company president and company dispatcher testified that the Claimant never informed them that the injury was an on-the-job injury. In fact, the company president testified that the Claimant reported to him that “his back was hurting from on old injury.” Moreover, the company president testified that he specifically asked the Claimant if the injury was an on-the-job injury because they would need to fill out paperwork if it was. Despite this conversation, the Claimant never indicated that it was necessary to fill out the paperwork and never asked for the paperwork to be filled out. There was also testimony presented that the Claimant was aware of this company procedure in the event of a work-related injury. Finally, the co-worker that the Claimant named as having been a witness to the on-the-job injury presented a statement within which he denied that he saw the Claimant suffer an on-the-job injury as the Claimant alleged.

The Claimant did not see a medical professional for his back injury until February 18, 2008, at which time he saw a nurse practitioner. The Claimant testified that he told the nurse practitioner that he was injured at work, yet there was no notation within the Claimant’s medical records with the nurse practitioner to support this. Moreover, no other medical records presented into evidence indicated that the injury was work related.

On June 5, 2009, the Claimant was evaluated by Dr. David Collipp with NewSouth NeuroSpine at the request of the carrier. Dr. Collipp’s medical records indicated that the Claimant’s “medical records after the February 2008 incident indicate that there was no known injury and ‘[t]here [was] no documentation of any work injury, or other injury.’” Dr. Collipp further noted that if the Claimant’s injury was work related, then he suffered from a lumbar strain and would have reached maximum medical improvement on March 14, 2008.

The ALJ found that the Claimant’s testimony as to his injury was credible and awarded him temporary total disability benefits from the date of the injury until March 10, 2008. The ALJ further found that the Claimant should undergo an MRI to aid in determining issues regarding further treatment, maximum medical improvement, disability ratings and permanent restrictions.
The Full Commission reversed based upon its determination that the testimony of the events presented by the Hercules’ witnesses testimony was more credible that the Claimant’s testimony alleging an on-the-job injury.

On appeal, the Mississippi Court of Appeals affirmed. In so doing, the Court noted that the Commission was presented with conflicting testimony regarding an alleged injury. The Commission, as the finder of fact, found that the testimony presented by Hercules to be more trustworthy than that submitted by the Claimant. Moreover, the Court found persuasive the lack of medical evidence to causally link the injury to an on-the-job injury. Having found that the record contained substantial evidence in support of the Full Commission’s findings, the Court of Appeals affirmed.