Mississippi Workers' Compensation Commission

BEFORE THE MISSISSIPPI WORKERS' COMPENSATION COMMISSION

V MWCC NO. 16,903

BRIEF OF APPELLEE/CLAIMANT

Oral Argument Requested

TABLE OF CONTENTS

TABLE OF CONTENTS

TABLE OF AUTHORITIES

STATEMENT OF ISSUES

STATEMENT OF THE CASE

A. COURSE OF PROCEEDINGS

B. STANDARD OF REVIEW

C. STATEMENT OF FACTS

ARGUMENT

I. SUBSTANTIAL EVIDENCE EXISTS TO SUPPORT THE MISSISSIPPI WORKER'S COMPENSATION COMMISSION'S FINDING THAT THE CLAIMANT REACHED MAXIMUM MEDICAL IMPROVEMENT ON JUNE 1, 1991, AND THE COMMISSION'S ORDER SHOULD BE AFFIRMED

II. SUBSTANTIAL EVIDENCE EXISTS TO SUPPORT THE MISSISSIPPI WORKER'S COMPENSATION COMMISSION'S FINDING THAT THE CLAIMANT SUSTAINED A PERMANENT PARTIAL DISABILITY AND LOSS OF WAGE EARNING CAPACITY AS A RESULT OF HER WORK-RELATED INJURY AND THE COMMISSION'S ORDER SHOULD BE AFFIRMED

CONCLUSIONS

CERTIFICATE OF SERVICE

TABLE OF AUTHORITIES

Babcock & Wilcox Co. v. McClain, 149 So.2d 523 (Miss. 1963)

Bolton v. Catalytic Construction Company, 309 So.2d 167 (Miss. 1975)

Cowan v. Pearl River Tung Co., 67 So.2d 356 (Miss. 1953)

Dewberry v. Carter, 218 So.2d 27 (Miss. 1969)

Dixie Contractors, Inc. v. Ashmore, 349 So.2d 532 (Miss. 1977)

Dixie Pine Products Co. v. Dependents of Bryant, 89 So.2d 589 (Miss. 1952)

Ed Bush Sandwich Shop v. Strauss, 138 So.2d 741 (Miss. 1962)

Federated Mutual Implement & Hardware Insurance Company v. Spencer, 67 So.2d 878 (Miss. 1953)

Freeman v. Mississippi Power and Light, 92 So.2d 658 (Miss. 1957)

Georgia Pacific Corporation v. Veal, 484 So.2d 1025 (Miss. 1986)

Goasa & Son v. Goasa, 208 So.2d 575 (Miss. 1968)

Ingalls Shipbuilding Corporation v. Byrd, 60 So.2d 645 (Miss. 1952)

King & Heath Construction Co. v. Hester, 360 So.2d 692 (Miss. 1978)

Knox Glass Inc. v. Evans, 197 So.2d 784 (Miss. 1967)

Marshall Durbin, Inc. v. Hall, 490 So.2d 877 (Miss. 1986)

Miss. Federated Cooperatives v. Jefferson, 79 So.2d 723 (Miss. 1955)

Miss-Lou Equipment Co. v. McGrew, 153 So.2d 801 (Miss. 1963)

New Orleans Furniture Manufacturing Co. v. Martin, 190 So.2d 863 (Miss. 1966)

Odom's Dispensing Opticians v. Smith, 259 So.2d 486 (Miss. 1972)

Olen Burrge Trucking Co. v. Chandler, 475 So.2d 437 (Miss. 1985)

Rathbone, Hair & Ridgeway Box Co. v. Green, 115 So.2d 674 (Miss. 1959)

South Central Bell Telephone Company v. Aden, 474 So.2d 584 (Miss. 1985)

Staple Cotton Services Association v. Russell, 399 So.2d 224 (Miss. 1981)

Tate v. Dr. Pepper Bottling Company, 70 So.2d 602 (Miss. 1954)

United Funeral Homes, Inc. v. Culliver, 128 So.2d 579 (Miss. 1961)

Universal Manufacturing Company v. Barlow, 260 So.2d 827 (Miss. 1972)

W.G. Avery Body Company v. Hall, 79 So.2d 453 (Miss. 1955)

Dunn's Mississippi Workmen's Compensation, 2d Ed. Sec. 94 (1967)

Dunn, Mississippi Workmen's Compensation, 3d Ed. Sec. 289 (1982)

Footnote 37 of Dunn, Mississippi Workmen's Compensation, 3d Ed., Sec. 163 (1982)

Vol. 1, Larson's Workmen's Compensation Law, Section 12.20

STATEMENT OF THE ISSUES

1. Substantial evidence exists to support the Mississippi Worker's Compensation Commission's finding that the Claimant reached maximum medical improvement on June 1, 1991, and the Commission's Order should be affirmed.

2. Substantial evidence exists to support the Mississippi Worker's Compensation Commission's finding that the Claimant sustained a permanent partial disability and loss of wage earning capacity as a result of her work-related injury and the Commission's Order should be affirmed.

STATEMENT OF THE CASE

A. COURSE OF PROCEEDINGS:

The parties stipulated that the Claimant was injured in an industrial accident on July 10, 1990, whereby she fractured several ribs.

Subsequently, the Claimant suffered back problems, including compression fractures, and was diagnosed as having multiple myeloma.

The Employer filed a Notice of Controversion on February 13, 1991. On March 28, 1991, Claimant filed her Petition to Controvert to which the Employer and Carrier responded on April 18, 1991.

A Hearing was held at the Mississippi Worker's Compensation Commission in Jackson, Mississippi, on May 26, 1992, before the Administrative Judge of the Commission.

The primary issue before the Judge was the determination of what percentage, if any, of the Claimant's current total permanent disability was caused by her industrial accident of July 10, 1990.

Judge issued an Order on July 16, 1992, which he subsequently amended July 28, 1992, finding that the Claimant was involved in an industrial accident on July 10, 1990, whereby she sustained fractured ribs and a back injury; that the Claimant reached maximum medical recovery from the injuries sustained in that industrial accident on June 1, 1991; and that the Claimant has been permanently totally occupationally disabled since the date of her injury.

Judge further found that the Claimant was able to perform the duties of her employment prior to and at the time of her industrial accident, despite her pre-existing condition; that she would be able to return to her employment with a permanent partial disability, except for her pre-existing myeloma and chronic obstructive lung disease; and that the Claimant's pre-existing conditions contribute seventy-five percent (75%) to her permanent disability and, therefore, benefits due the Claimant should be apportioned by that amount.

Further, the Employer and the Carrier were ordered to pay for all treatment of Claimant's myeloma which was necessary in order to properly treat her back and rib problems.

B. STANDARD OF REVIEW:

Under the substantial evidence rule, if the decision of the Commission is supported by substantial evidence, the decision must be affirmed by the Court on appeal.

The Supreme Court clarified this test in Freeman v. Mississippi Power and Light, as follows:

The test that we have sought to apply has been not as to whether the claim is supported by substantial evidence, but rather whether or not the finding of the trier of facts, either in allowing or denying the claim is supported by substantial evidence.

C. STATEMENT OF FACTS:

The Claimant earned her associate degree in nursing at age fifty-three. She was employed originally at Hinds General Hospital both as a staff nurse and as charge nurse on the post surgery floor.

She subsequently took private duty cases at Upjohn, and was Director of Nurses for Community Hospital until her voluntary retirement at age sixty-two.

Two years later, the employer solicited her services in the implementation of a new program, never previously tried in Mississippi.

She accepted their offer of employment, and, on the day of the industrial accident, she was sixty-seven years old, and was employed as head nurse on Building 73 at the facility.

Prior to her employment, she took a medical examination during which she candidly disclosed that she had a previous heart condition at age thirty-eight, and that she had occasional fluid accumulations as a result thereof.

However, she testified that there were no problems with her heart or fluid accumulation which caused her to miss work, from age thirty-eight until the time of her industrial accident.

The Claimant's testimony clearly shows that her temporary retirement was voluntary, and that there were no physical limitations or health problems during her brief retirement period.

Her testimony further clearly shows that she was able to work, and that no restrictions were placed on her physical activities by either her doctors or by her employers.

At the time that the industrial accident occurred, the Claimant, age sixty-eight, was doing her job at the facility.

She had lost no time due to illness, and was, in fact, an exemplary employee who had been selected Nurse of the Month, only weeks prior to the industrial accident.

On July 10, 1990, in the course of her employment, a disturbed patient struck the Claimant in the chest with both fists and knocked her against the steel door.

The parties stipulated that the Claimant sustained an injury in that industrial accident whereby she fractured several ribs.

As a result of those injuries arising out of and in the scope of her employment, she has been in continuous pain and unable to work.

On July 23, 1990, she first visited Dr. ___, complaining of having pain in her chest and in her back.

On August 24, a bone scan revealed fractures of the 5th, 6th, 7th and 8th ribs at the trauma site.

The severe pain in her chest and back area continued to increase. On November 7, 1990, because of her worsening symptoms, the Claimant was hospitalized and, subsequently, diagnosed as suffering from a compression fracture in her back and from multiple myeloma.

Treating physicians during this hospital stay included Dr. ___, Dr. ___, and Dr. ___.

Dr. ___ testified to the effect of trauma on a patient with multiple myeloma explaining that if a patient has multiple myeloma, those lesions in the bones or other areas weaken the bones and predispose them to fractures with much less trauma.

He further testified that if those lesions were caused by myeloma, then in order to treat the fractured ribs it was necessary to treat the underlying condition of myeloma.

Dr. ___ testified that, in his medical opinion, the injury which the Claimant sustained precipitated problems which at least partially contributed to her disability.

He further testified that the underlying aggravated condition subsided, and she reached maximum medical recovery on June 1, 1991.

The parties stipulated that as of the date of Medical Maximum Recovery, the Claimant was permanently totally disabled and unable to work.

Dr. ___, in his professional opinion, assigned twenty percent (20%) of that permanent occupational disability as the cause and the result of her industrial accident.

ARGUMENT

1. Substantial evidence exists to support the Mississippi Worker's Compensation Commission's finding that Claimant reached maximum medical improvement on June 1, 1991, and the Commission's Order should be affirmed.

There is clearly substantial evidence in the record to substantiate the finding that the Claimant reached maximum medical improvement on June 1, 1991.

The employer and the carrier submit that the treating physician, Dr. ___, is arguably more qualified to offer an expert opinion than is Dr. ___.

However, in January of 1991, the date Dr. ___ gives as the date of maximum medical improvement, he indicated that Dr. ___ was the primary physician under whose care she was in during that January '91 hospitalization.

Dr. ___ acknowledges that he had previously referred the Claimant on to specialist in November of 1990.

Dr. ___, the Claimant's primary physician in January of 1991, made the following responses to the same question in his deposition:

Q. All right. When, in your opinion, did Mrs. Humphrey reach a state of maximum medical recovery wherein the effects of the trauma had reached a state of maximum medical cure?

A. That's a good question. I'll tell you why -- what I'm thinking about, and then maybe we can work toward the answer, but she had -- her pain had stabilized. Her protein -- the abnormal protein level had come down by about June of 1991. She was getting around on a walker. At that point with her protein levels being normal, I thought she had improved about as much as she, you know, was going to; however, when I saw her a couple of weeks ago, she actually had gotten some stronger. Her pain is a bit better. As far as the healing of the ribs themselves, I believe that had pretty much healed as much as it was going to by May of 1991.

Q. Okay. In the course of treatment that you administered up to May of 1991, was it necessary for you to treat the underlying condition, the myeloma, in order to treat the results produced by the July 1990 trauma?

A. Yes. I believe that the ribs would not have healed as well without the myeloma being brought under control because that contributed to some of the rib damage.

Q. Did you have the myeloma under control by your June 1, 1991, maximum medical date that you gave earlier?

A. I believe so. Yes.

Q. Had the results of the injury either been cured or had they subsided to the point where they needed no further medical care by June 1, 1991?

A. Of the injury per se it had subsided to that.

The Claimant respectfully submits that substantial evidence exists to support the Mississippi Worker's Compensation Commission's finding that Claimant reached maximum medical improvement on June 1, 1991, and the Commission's Order should be affirmed.

2. Substantial evidence exists to support the Mississippi Worker's Compensation Commission's finding that Claimant sustained a permanent partial disability and loss of wage earning capacity as a result of her work-related injury and the Commission's Order should be affirmed.

It is settled law that the substantial evidence rule is the basis for the Court's review of Workman's Compensation Commission rulings.

The test, under the mandatory substantial evidence rule, is not whether the claim is supported by evidence; the test is whether or not the finding of the trier of facts is supported by substantial evidence.

The Court is not justified in reversing the Commission merely because there is substantial evidence on each side of the issue.

The Court may not dictate to the Commission as to which witness to believe and which witness to disbelieve.

It is not the province of the appellate courts to pass on the weight of the evidence nor is it the province of the appellate courts to determine where the preponderance lies.

The "preponderance" test is for the Commission and is not the test for appeal. The substantial evidence rule must be applied.

The record, including the live testimony of the Claimant and the depositions of Dr. ___ and Dr. ___ clearly provides substantial evidence to support the findings of the Commission.

In Dixie Pine Products Co. v. Dependents of Bryant, the Supreme Court stated that if the employment aggravates or accelerates a pre-existing disease or infirmity, or combines with the disease or infirmity to produce the death or disability, then such death or disability is compensable.

The record clearly substantiates that the Claimant had several pre-existing conditions.

Although it is apparent that the Claimant had no knowledge of her myeloma, in his deposition, Dr. ___ verified this medical history and also stated that, in the natural history of the myeloma it probably was present in July.

He subsequently agreed that it was more likely than not that she had a pre-existing cancerous condition that existed prior to July 10, 1990.

These pre-existing conditions did not interfere with the Claimant's ability to work prior to the July 10, 1990, industrial accident.

The Claimant's testimony clearly establishes that no limitations were placed upon her physical activities by either her doctors or by her employers, that she had no lost time from the job due to these pre-existing conditions, and that she was able to fully perform her normal duties until the time of the accident.

In fact, she was an exemplary employee who had just been named Nurse of the Month.

The employer and carrier admit that the Claimant sustained an injury arising out of her employment whereby she fractured some ribs in an industrial accident on July 10, 1990, and further admit that she is presently totally occupationally disabled.

The rule in this State is that when a pre-existing disease or infirmity of an employee is aggravated, lighted up, or accelerated by a work-connected injury, or if the injury combines with the disease or infirmity to produce disability, the resulting disability is compensable.

There is substantial evidence in the record to warrant this Court's affirmation of the Commission's finding that the Claimant's pre-existing conditions contributed seventy-five percent (75%) to her permanent disability and that her industrial accident contributed twenty-five percent (25%).

The medical testimony clearly provides substantial evidence that the trauma suffered by the Claimant at the time she was slammed into a steel door thereby fracturing four (4) ribs, and the medically prescribed bed rest thereafter acted to light up, precipitate, accelerate or combine with a pre-existing condition which resulted in a compensable disability.

The Claimant's disability must arise out of employment as a proximate result but it is a sufficient basis for compensation that work is a contributing cause.

The causal connection is viewed from the standpoint of the injured employee.

Although the pre-existing disease or infirmity may require an apportionment of benefits, this does not disqualify the claim in its entirety.

It has been repeatedly held that where a workman has some pre-existing infirmity which is dormant or inactive so that he is able to pursue the normal requirements of his employment, but because of an injury resulting from his employment, his dormant infirmity is lighted up or activated so that the injury and the infirmity combine together to cause him to become totally or partially disabled, his disability is compensable.

The Claimant is entitled to disability benefits and medical treatment until such time as she reaches maximum medical recovery.

The Supreme Court in New Orleans Furniture Manufacturing Co. v. Martin held that the allowance of medical expenses for the treatment of a medical condition is proper if the treatment of that medical condition is required in the process of recovery from the Claimant's injury.

The evidence in the record substantially supported the Commission's finding that the treatment of the underlying condition of myeloma was necessary to treat the fractured ribs.

The evidence substantially supported the Commission's finding that the chronic obstructive lung disease was precipitated by the trauma and by the subsequent enforced bed rest, and that treatment of the chronic obstructive lung disease was required for the process of recovery.

The Claimant on July 10, 1990, was gainfully employed. She was experiencing no occupational disability on that date as the result of any pre-existing condition, nor had she prior thereto.

The argument that there is no testimony in the record to substantiate the fact that the Claimant's loss of wage earning capacity is attributable to the rib fractures does not alter the undisputed fact that, functionally, Claimant performed her job effectively and with no discomfort prior to her injury on July 10, 1990.

She earned wages and engaged in the strenuous exertions required by her nursing job, all without any discomfort or apparent disability.

She was fully able to perform her normal duties until the time of the accident and was disabled to do so thereafter.

The Supreme Court in Dixie Contractors, Inc. v. Ashmore dictates that the whole of the doctor's testimony be examined to determine the real substance of his statements concerning causal connection.

The totality of Dr. ___'s testimony indicates that he intended to convey that there was a causal connection between the trauma resulting from the Claimant's industrial accident and her pre-existing diseases which contributed at least twenty percent (20%) to her permanent partial disability.

Judge included in his opinion a specific Findings of Facts and Conclusion of Law.

His discussion of the issues on page 30 of the record clearly shows that he applied the proper legal test.

The function of the Court is to determine whether there is substantial credible evidence which would support the factual determination made by the Commission.

If there should be substantial credible evidence to support the finding, the Court is without authority to disturb that which the Commission has found, even though that evidence would not be sufficient to convince the Court were they the factfinders.

The Claimant respectfully submits that substantial evidence exists to support the Mississippi Worker's Compensation Commission's finding that Claimant sustained a permanent partial disability and loss of wage earning capacity as a result of her work-related injury and the Commission's Order should be affirmed.

CONCLUSION

The Claimant respectfully submits that substantial evidence exists to support the Mississippi Worker's Compensation Commission's finding that Claimant sustained a permanent partial disability and loss of wage earning capacity as a result of her work-related injury and to support the finding that Claimant reached maximum medical improvement on June 1, 1991, and the Commission's Order should be affirmed.

CERTIFICATE OF SERVICE

I, the undersigned attorney, do hereby certify that I have this day caused to be mailed, United States Mail, postage pre-paid, a true and correct copy of the above and foregoing Brief of Appellee/Claimant to:

Name(s) and Address(es) of recipients:

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