2005 Workers’ Compensation Case Law Summary
1. Boykin v. Sanderson Farms, Inc., 910 So.2d 52 (Miss.Ct.App. 2005).
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
2. Eubanks v. Professional Building Services, 909 So.2d 1132 ( Miss.Ct.App. 2005)
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
3. Sanderson Farms, Inc. v. Deering, 909 So.2d 1169 (Miss. Ct. App. 2005)
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., 909 So.2d 1194 (Miss.Ct.App. 2005)
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 , 909 So.2d 1209 (Miss.Ct.App. 2005)
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, 903 So.2d 42 (Miss. 2005)
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, 909 So.2d 1260 (Miss.Ct.App. 2005)
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
8. Lynch vs. Liberty Mut. Ins. Co., 909 So.2d 1289 (Miss.Ct.App. 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
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, 903 So.2d 678 (Miss. 2005)
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, 910 So.2d 624 (Miss.Ct.App. 2005).
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
11. Pike County Bd. of Supervisors v. Varnado, 912 So.2d 477 (Miss.Ct.App. 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., 906 So.2d 874 (Miss.Ct.App. 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. 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. Lee v. Singing River Hospital, 908 So.2d 159 ( Miss.Ct.App. 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
15. Goodlow v. Marietta-American, 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. 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
17. Tupelo Public School District v. 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. Boyd v. Miss. Workers’ Comp. Self-Insurer Guaranty Ass'n., 2005 WL 1384345
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.
19. Havard v. Titan Tire Corp. of Natchez, 2005 WL 1530499 (Miss.Ct.App. 6/28/05)
FACTS: This appeal was initiated by claimant from a denial of permanent partial
disability for a compensable injury he received. The injury was the result of a fall in which
he sustained a “closed head injury”. Prior to the injury claimant was diagnosed with bipolar
disorder and was on medication for his condition. The claimant’s treating psychiatrist, Dr.
Lawrence Hill, opined that claimant would encounter periods of disassociation, lack of
concentration and attention, possibly making it very dangerous to operate any type of
machinery. Dr. Mark Webb, another psychiatrist, opined that while the compensable injury was
not that severe, his injury was a “stressor” for his bipolar disorder. In sum, Dr. Webb indicated
the claimant’s work-related injury aggravated his underlying condition of bipolar disorder but
that the aggravation ceased on November 4, 1999 when claimant reached maximum medical
improvement. Dr. Webb further opined that claimant did not suffer any psychiatric work
restrictions as a result of his work-related injury. Pursuant to an independent medical
examination Dr. Philip Merideth evaluated claimant on June 9, 2001 and opined that based on
the medical information provided him, claimant’s bipolar disorder, anxiety disorder and
polysubstance dependence occurred prior to his injury of August 4, 1999. Claimant alleges
that he is entitled to additional indemnity benefits for permanent partial disability beyond the
stipulated date of maximum medical improvement .
ISSUE: Whether claimant is entitled to additional indemnity benefits for Permanent
Partial Disability? The medical evident presented in this case supports the finding of the Commission
that the claimant did not have any psychiatric work restrictions as a result of his work-related
injury nor were there any physical limitations which might justify work restrictions. Therefore
substantial evidence supports the Commission’s denial of further permanent benefits beyond
the stipulated date of maximum medical improvement.
20. Farm Bureau v. Parker, 2005 WL 1662812 (Miss.Sup.Ct. 6/30/05)
Note: This is not a Workers’ Compensation Case but may be useful in dealing with
FACTS: This matter was initiated by a Combined Petition and Brief for an
Interlocutory Appeal and Motion for Stay filed by the Insurance Companies in the above styled
cause. They sought leave to appeal from a civil cause entered on March 21, 2005 from an order
of the Circuit court of the Second Judicial District of Jones County. The action was initially
filed as a bad faith action against the above named Insurance Companies. The matter quickly
bogged down in a discovery dispute resulting in over 26, 000 Requests for Documents and
over 130 Interrogatories propounded to each defendant. The court enumerated the pages and
volumes submitted for its consideration. The denial of Parker’s motion for sanctions and the
Farm Bureau defendants’ motion for reconsideration and motion for sanctions lead to further
submissions of an additional 2, 655 pages of documents and pleading for the court’s
consideration. To add to the paper fray, the Court found language exchanged in the documents
that it characterized as abusive toward opposing counsel from both sides of the case. The
Court took action similar to that taken by the United States District court for the Northern District
of Texas in Dondi Properties Corp v. Commerce Savings & Loan Ass’n, 121 F. R .D. 284
(N.D. Tex. 1988, (en banc). The court in Dondi adopted standards of litigation conduct for
attorneys involved in civil litigation before the federal court of the Northern District of Texas.
The Mississippi Supreme Court observed that even though Dondi was seventeen years earlier,
they were in agreement with the Dondi court’s assessment, as it applies to the contentious
legal environment in the State of Mississippi. The Supreme Court then detailed in its’ Order
standards similar to the Lawyer’s Creed and incorporated ten articles. The Supreme Court made
it clear that it is sometimes necessary to become involved in trial court discovery disputes but
that it was witnessing more and more, especially by way of interlocutory appeals, “Rambo-type”
tactics in a effort to, inter alia, force a settlement.
Additionally, the Court referred to the Miss R.. Civ. P. 26, 33(a) and 34 which provided
limitations on interrogatories and requests for documents. It is clear that absent a granting by
the court of additional interrogatories after a showing of necessity, the submission of additional
interrogatories is prohibited. The safeguards are necessary to preserve the dignity of the court
and access to the justice system.
Conclusion: The Court, in a 17 page Order, did grant the motion for the Interlocutory
Appeal filed by the Farm Bureau defendants. It also set aside three orders granting Parker’s
motions to compel discovery, remanded the case to Circuit Court and taxed all costs of the
appeal equally to the Petitioners and Respondent.
21. Tanks v. Lockheed Martin C orp., 417 F.3d 456 (5th Cir. 2005).
FACTS: In July 2003 at the Lockheed plant in Lauderdale County, Mississippi Douglas
Paul Williams, an employee, went on a shooting rampage within the plant killing several of
his co-workers, and wounding many others. He then killed himself. All the victims were
employees and in the plant on the job at the time they were shot. The daughter of one of
the murdered victims, Thomas Willis, filed a diversity-jurisdiction tort complaint in the Southern
District Court. She raised allegations that revealed Williams’ overt dislike for blacks and his
disgruntlement at having to work with and under the supervision of blacks. These allegations
were obviously intended to support her state tort claim and federal discrimination claims against
Lockheed. The complaint was grounded in gross negligence, willful and wanton inaction despite
Lockheed’s longstanding knowledge of Williams’s attitude. After limited discovery Lockheed
moved for partial summary judgment on the pleadings under the exclusive remedy provided
by the Act. The district court held Willis’ death was not compensable under the Act and denied
summary judgment. Lockheed moved for reconsideration or, in the alternative, certification of the
question for interlocutory appeal. The district court denied reconsideration but certified the
action for interlocutory appeal. In granting the motion for interlocutory appeal the court
characterized Mississippi state law as unsettled. In addressing the “unsettled” case law the court
revisited the line of decisions beginning with Mutual Implement & Hardware Ins. Co. v
Pittman , 59 So. 2d, 553 (Miss. 1952) and observed that it appeared to conflict with a later line,
commencing with Miller v McRae’s , 444 So.2d 370 (Miss. 1984). The Court’s analysis focused
on Sec. 71-3-3(b) as to the definition of an injury reasoning that it included an injury caused by the
willful acts of a third person directed against an employee because of his employment while
employed and working on the job. Under the Pittman line of cases the district court reasoned the
Mississippi Supreme Court relied on the presumption that willful assaults by co-workers were
accidental. Further it reasoned that in Pittman the courts held such attacks to be risks “incident
to the employment of many persons” and therefore compensable under the Act. In 1984 Miller
raised the question whether the action causing injury was an intentional act or accidental or
whether the injury was caused by the willful act of a third person directed against an
employee because of his employment while so employed and working on the job. The Court
concluded that “a third person includes a co-worker who is not acting in the course and scope
of his employment and in furtherance of the employer’s business.”
ISSUE: Whether the connection between the injury and the employment is close enough
to satisfy the “because of ” test ? It is well settled that when even a tenuous relationship exists
between an intentional injury inflicted by a third party and an employee’s job then the injury
is compensable under the Act. The Court further emphasized only that “the obligations or
conditions of employment create a ‘zone of special danger’ out of which the injury arose, and
thus the claims were covered under workers’ compensation law. The allegations were sufficient
to establish the required minimal causal nexus between Willis’ injuries and his employment.
The Court reversed and rendered in part and remanded in part for further proceedings
consistent with the ruling.
22. Frito-Lay, Inc. v. Leatherwood, 908 So.2d 175 (Miss.Ct.App. 2005)
FACTS: Claimant, James Leatherwood, suffered several injuries to his back, some work
related and others while doing yard work at home. His treating physician saw claimant after
a strain incident while trying to get his lawn mower out of a ditch in July 1999. On December 13,
1999 while making a delivery for the employer claimant fell from the back of his delivery
truck striking his back on the bumper and finally falling to the ground. The injury forced him
to see Dr. Clark that same day. Claimant did not tell Dr. Clark he fell and Dr. Clark noted
a significant change in the claimant’s condition since he saw him last in November 1999. Dr.
Clark mistakenly assumed the condition was related to the incident when he pulled the lawn
mower from the ditch. He performed surgery on December 21, 1999. However, after surgery
complications set in, another surgery was required and performed on February 17, 2000. Dr.
Clark provided follow-up care through April 4, 2000 and was never made aware of the fall
on December 13, 1999. Several doctors evaluated Leatherwood since the fall and all agreed
that he was totally and permanently disabled. Claimant applied to workers’ compensation for
benefits and the employer denied the claim. The Commission awarded benefits and the circuit
affirmed the Commission. The employer/carrier filed an appeal based on the fact that Dr.
Clark’s notes failed to give the on- the- job trauma as the basis for the onset of disability.
ISSUE: Whether the award of benefits to claimant was supported by substantial evidence?
While it is evident from the record Dr. Clark’s notes do not reflect that the job injury was the
basis for claimant’s disability, the claimant’s account of the injury was corroborated by eye
witnesses. The claimant’s ability to work until the date of the fall from the back of his
delivery truck, and the fact that Dr. Clark’s notes show that the claimant’s condition was
“markedly worse” and “clinically markedly different” on December 13, 1999, is significant
evidence to support the award. The doctor saw the claimant the same day of the fall. In
essence, despite the fact claimant never actually told his treating physician of the on the job
injury, the treating physician’s records reflect that there was a drastic change in the lumbar
region corresponding with the date of the compensable injury. The Commission found
substantial evidence to award benefits despite an incomplete medical history.
23. Miss. Ins. Guaranty Assoc. v. Brewer , 2005 WL 1745003 (Miss.Ct.App. 7/26/05)
FACTS: Claimant , Dot Brewer, sustained a compensable back injury and submitted to
back surgery. Claimant became a paraplegic as a result of the surgery and initiated a negligence
action against her surgeon, Dr. Dare and River Region Medical Corporation. At the time of
injury the employer had workers’ compensation coverage written by Home Insurance Company.
Home Insurance went into receivership and Brewer’s workers’ compensation claim was
transferred to Mississippi Insurance Guaranty Association. Initially the employer and carrier
denied the claim and the Workers’ Compensation Commission determined that the claim was
indeed compensable and ordered Riverboat Corporation and Home Insurance to pay for the
surgical aggravation of her compensable back injury and, pay for medical expenses.
Compensation benefits and medical expenses were paid accordingly. However, employer/carrier
sought to intervene in claimant’s negligence action against Dr. Dare and River Region for
subrogation pursuant to the Act. Claimant filed a motion to dismiss their motion to intervene
after she reached a settlement with the doctor and River Region in the negligence action.
The circuit court denied the employer/carrier’s motion to intervene for the purpose of
protecting their subrogation interests . Aggrieved by this decision, Riverboat , Home Insurance and
Mississippi Insurance Guaranty Association appealed the decision of the circuit court.
ISSUE: Whether the circuit court erred in denying the employer/carrier’s motion to intervene
in the employee’s negligence action for purposes of protecting their subrogation interests under
Miss. Code Ann. Sec. 71-1-71 (Rev. 2000) ? The fundamental question that gives rise to the
aforementioned issue is whether Brewer’s surgically induced paraplegia is covered by Sec. 71-3-71.
The commission determined Brewer met her burden of proof that her injury was work connected.
Once compensability was established then ‘aggravation of the primary injury by medical or
surgical treatment was compensable.’ Larson’s Workers’ Compensation Law, Sec. 13.21(a) Vol.1
(Re.78 5/97). The Court held that when the commission made the determination that the injury
was compensable under the Act, then there was a statutory right of subrogation for monies paid
to the claimant for this injury and subsequent medical aggravation that followed. Therefore,
the circuit court erred in denying Riverboat, Home Insurance and MIGA the opportunity to intervene
in the negligence action against Dr. Dare and River Region.
24. McElveen v. Croft Metals, Inc., 2005 WL 1745001 (Miss.Ct.App. 7/26/05)
FACTS: Claimant suffered a nervous breakdown on February 12, 1999, and became
disabled. In filing his claim for benefits, he alleged that consistently long hours prior to his
breakdown was the ‘untoward’ event that led to his disability and thus entitles him to benefits.
The medical evidence reveals claimant had a history of treatments for nerves and anxiety as
far back as 1985. His medical history shows other stressors that were non job related that
caused him to seek treatment and medication for his mental condition. The testimony from the
employer notes that overtime was required and he had to be present on the site as supervisor, but
generally there was not a lot for him to do. Testimony showed that claimant’s worries about
the security of the job were the result generally of over reacion to even the slightest
comments about the backlog of orders that must be filled within a certain time frame. In fact,
it was brought out from the claimant’s testimony that he never was in fear of losing his job
as a result of a direct threat from anyone. In an effort to justify his claim for a mental injury,
claimant he was required to work more overtime than usual. Three employees were called by
the employer as witnesses and none could corroborate his claims. In fact, increased hours yielded
incentive bonuses for those required to work during the peak of production. Claimant’s treating
psychiatrist opined that McElveen was genetically predisposed to bipolar disorder and
acknowledged that as a manager responsible for meeting production with limited resources he
could experience stress but nothing untoward for claimant’s position. Dr. Mark Webb performed
an independent medical examination and concluded that claimant’s breakdown of 1999 was not
related to his work. Claimant failed to prove clear and convincingly that his breakdown was
caused by his employment.
ISSUE: Whether the proper standard was applied in determining whether an untoward
event occurred? To be compensable, the mental injury unaccompanied by physical trauma, as
in the instant cause, must have been caused by something more than the ordinary incidents of
employment. The denial of compensation was affirmed.
25. Texas Gas Transmission Corp. v. Dabney, 2005 WL 1805048 (Miss.Ct.App. 8/2/2005)
FACTS: Claimant was awarded benefits as a result of a snakebite on September 1,
1992. Temporary total disability benefits were received from September 1, 1992 through
September 13, 1993. Upon reaching MMI claimant was awarded fifty-two and one-half weeks
of permanent partial disability as well as medical services and supplies as required by the
nature of his injury and the process of his recovery. The final order from the Full Commission
was entered on March 15, 1996. The employer/ carrier did not appeal this order and thus it
became final and binding. Three years later claimant filed a motion to reopen and compel
payment for additional disability benefits and for immunoglobulin treatment rendered by Dr.
Charles Cape at the neurology clinic. The AJ awarded the immunoglobulin treatment as
medically necessary but denied additional disability benefits. The Full Commission and the
Circuit Court affirmed the order denying additional benefits and awarding medical care. The
employer/carrier appealed asserting insufficient evidence to support the Full Commission’s
award in that there was no expert scientific or medical evidence which proved by a
reasonable decree of medical probability that Dabney’s condition of peripheral polyneuropathy
was caused by snakebite. Employer/carrier alleged the possibility claimant had a pre-existing
disease or unrelated medical condition which caused neuropathy and so, whether claimant
proved a direct relationship between his condition and a snakebite. The claimant, on the other
hand, alleged he should have been awarded additional partial permanent benefits.
ISSUE: Whether there is substantial evidence to support the Commission’s findings
that claimant’s condition of polyneuropathy was caused by snakebite and, if so, whether the
immunoglobulin treatment is medically reasonable and necessary. The Court found that there
was substantial evidence to support the Commission’s decision.
26. Stewart v. Singing River Hospital, 2005 WL 1870031 (Miss.Ct.App. 8/09/05)
FACTS: Janie Stewart suffered a compensable injury on October 31, 1996 when she fell
attempting to sit in a chair. Her family physician, Dr. Steven Fineburg, referred her to a
neurosurgeon, Dr. John McCloskey. He performed a series of tests and determined she was
a good candidate for decompressive foraminotomy. The procedure was performed on April 14,
1997. There was improvement initially but in May 1997 she began to experience a reoccurrence
of pain in the same areas as before the surgery. Dr. McCloskey then began a regime of
physical therapy which did help with the leg pain but did not resolve the back pain. In
August 1997 she was allowed to return to work with restrictions and worked part time and
within a month began to work full time with restrictions. In August 1998 Dr. McCloskey referred
claimant to Dr. Jeffery Laseter who diagnosed her with post-laminectomy syndrome and
cervical myofacial pain. He placed her on additional physical therapy which was not successful
in reducing her pain. In October 1999, claimant was involved in an automobile accident which
aggravated her pain, particularly in her neck. She continued to work until July 6, 2000 when
Dr. Laseter took her off work because of pain. Improvement was noted in August 2000
basically due to lack of work activity, but she was given new restrictions and was to remain
off work for an undetermined period of time. Finally in November 2000, Dr. Laseter opined
that claimant could not work at any activity full-time and placed her at maximum medical
recovery for her condition. The Employer did not have any part time positions and could
not meet claimant’s restrictions. On May 17, 2001, Dr. Laseter opined that claimant was
permanently and totally disabled and would not be able to work in any type of work capacity.
Claimant was given a favorable decision at the AJ level but was reversed by the Full
Commission based in part on the finding of fact that “ at no time after being taken off work
did claimant attempt to find employment”.
ISSUE: Whether the Commission’s decision was clearly erroneous? The Court, in
reversing the Commission, held when a claimant has been removed from work and declared
totally disabled based on competent medical evaluation, there is no requirement that the
claimant go against medical advice and seek employment. The Court remanded to the
Commission to determine extent of permanent disability.
27. Barber Seafood, Inc. v. Smith, 911 So.2d 454 (Miss. 2005)
FACTS : Claimant slipped on grease in the course of her employment injuring her hand and
arm in December 1998. She sought medical treatment at the emergency room the following day.
Claimant was treated by several doctors for pain in her wrist and back for a period following this
initial treatment. Two months later a CT ordered by Dr. Christopher Fox, an orthopedic surgeon
indicated no evidence of disc bulging or herniation at L4-5 of L5-S1. Three months later an MRI
was performed revealing a mild central disc protrusion at L5-S1 but was otherwise normal. Claimant
saw several physicians for diagnosis and treatment over the next two years. In June 1999 claimant
began pain management treatment by specialist Dr. Christopher Lew who administered lumbar epidural
injections until August 1999. Claimant refused further injections until August 20, 2001 when she
resumed treatment under Dr. Lew. Dr. Charles Krieger had performed surgery on Smith’s wrist in
June 1999 and later saw her for complaints of back pain on a follow-up visit on January 19, 2000.
Dr. Krieger later opined that she could be a candidate for a diskectomy and fusion because of two
abnormal discs. He declined to elaborate any further having seem her only once for the back
problem . When pressed, he was clear that he would not recommend surgery unless her pain was so
severe that their was no alternative in controlling it. The claimant was also seen by Dr. Louis
Provenza , a neurosurgeon, who noted a L5-S1 disc injury consistent with her history of a fall. He
recommended conservative treatment in the nature of muscle strengthening and ordered a functional
capacity examination which was performed on November 11, 1999. On November 12, 1999 claimant
was admitted to the hospital where an MRI revealed significant deterioration of her condition at L4-
5. December 23, 1999 he recommended a fusion. Employer/Carrier requested that Dr. Gustavo
Gutnisky , a neurosurgeon, examine Smith. He opined that surgery was an option of decreasing the
pain but with an unpredictable outcome and was not something she necessarily had to have. The
AJ’s denied claimant’s claim for injury to the disc between the 4th and 5th lumbar vertebra , awarded
temporary benefits for the wrist injury and found that Smith reached maximum medical improvement
of her wrist on September 17, 1999 with no impairment or restrictions. The Full Commission
affirmed in part and reversed in part and awarded instead a 25% loss of wage earning capacity. The
case was then appealed to Circuit Court , which affirmed the Commission in all respects except it
ruled claimant reached MMI for her L5-S1 back injury on the date she refused surgery. The circuit
court order was appealed to the Court of Appeals which affirmed the circuit court’s decision. All
parties successfully petitioned the Supreme Court for a writ of certiorari . The Supreme Court pointed
out that neither the AJ nor the Full Commission made a finding that Smith reached MMI on the
date she refused surgery but rather she reached MMI on the last date Dr. Lew treated her based
on a finding that surgery would not likely reduce or eliminate disability. Therefore the issue before
the circuit should have been whether the Commission abused its discretion in finding that surgical
intervention has not been shown to be medically necessary.
ISSUE: Whether the Commission abused its discretion in its evaluation of the testimony of
the doctors concerning claimant’s need for surgery? The Supreme Court held there was no such abuse
of discretion and reversed the Court of Appeals. The Court further held that all prior rulings as to
the L4 -5 injury being unrelated to her work were premature as the matter would not be ripe
until such time as Smith sought treatment for it.
28. Powe v. Roy Anderson Const. Co., Inc., 910 So.2d 1197 (Miss.Ct.App. 2005).
FACTS: Johnny Powe suffered a compensable injury on January 17, 1002. He received
benefit payments from workers’ compensation. Powe and his wife then filed a civil action
against the employer ADS, LLC., and Roy Anderson, the general contractor that hired ADS.
Anderson, the general contractor, is a Mississippi Corporation but sub-contracted ADS, an
Alabama Corporation , to perform work in Oxford, Mississippi . ADS subsequently hired the
Powes to work as laborers and Mr. Powe was permanently partially disabled as a result of
a fall. ADS was covered under the Alabama Self-Insured Workers’ Compensation Fund
which paid benefits to Powe and provided medical coverage. Anderson’s defense was based
on its immunity under Mississippi law in that ADS was a covered sub. Powe argued that
Alabama law applied and allows an employee who has suffered a work-related injury to
sue a prime contractor in a tort action for failure to provide a safe work environment. They
further allege that since their recovery for medicals and benefits were under Alabama law
then their remedy falls under Alabama law. The Defendants argue that this is an action in tort
and Mississippi law controls and , therefore; workers’ compensation provides an exclusive
ISSUE: Which state’s substantive law would apply ? The court made a choice of laws
analysis and concluded the following factors weighed in favor of applying Mississippi law;
the accident occurred in Mississippi; the witnesses to the accident are in Mississippi; the activities
giving rise to the accident occurred in Mississippi; and finally, Anderson is a Mississippi
Corporation. Mississippi has the most significant contacts with the parties and the occurrence.
Additionally, the decision to apply Mississippi law, provides the exclusive remedy for an
injured employee and “his legal representative, husband wife and anyone entitled to recover
damages at common law or otherwise”. Mississippi extended this immunity to general
contractors who have required subcontractors to secure workers’ compensation insurance as in the
case sub judice. In conclusion , the Court held, “ to deny immunity to the general of a covered sub
would defeat the purpose of the statute”.
29. Fresenius Medical Care v. Woolfolk, 2005 WL 2358341 (Miss.Ct.App. 9/27/05)
FACTS: Stella Woolfolk, suffered a ruptured aneurysm resulting in a stroke. Claimant
underwent surgery and awoke with no apparent neurological changes. Nine days later she
became confused and underwent an angioplasty procedure. She never regained consciousness
and remained in a vegetative state until her death some two years later. Claimant’s son filed
a petition to controvert alleging the stress of the job caused the stroke. As a registered nurse
claimant worked at Central Dialysis Center in Yazoo City, Mississippi. She became ill shortly
after receiving a phone call from a patient who had undergone dialysis at clinic the day
before. The patient was concerned about fluid retention and shortness of breath which is a
known symptom of excessive fluid retention in dialysis patients. On rare occasions it is
necessary to perform dialysis again the next day. The claimant alleges the phone call from
the patient precipitated an elevation of blood pressure that aggravated an aneurysm causing
rupture, leading to a stroke and complications thereof, leading to her eventual demise. The
Commission found that the telephone call from the patient was an untoward event that caused,
exacerbated, and / or aggravated Woolfolk’s aneurysm, causing the rupture.
ISSUE: Whether the Commission erred in finding that claimant’s injuries were
not work-related and, therefore, were compensable under the Workers’ Compensation Act.
The Court, in reversing the Commission, found that there is no substantial evidence that the
phone call from the dialysis patient on the morning of Woolfolk’s illness lead to stroke.
Additionally, there was insufficient evidence to support a reasonable inference that the phone
call was stressful to Woolfolk in that occasionally patients do have to be re-dialyzed. The
Court, in reversing the decision of the Commission, did not find substantial evidence to
support the decision.
30. Sanderson Farms, Inc. v. Jackson, 911 So.2d 985 (Miss.Ct.App. 2005)
FACTS: Claimant received a closed head injury in an assault on the job by a co-
worker following a heated argument concerning repayment of ten dollars the claimant had
loaned his assailant. Claimant was hospitalized as a result of the blow to his head with a
two-by-four, and it is questionable whether some permanent hearing loss is the result of the
assault of December 15, 2000. Claimant was released on March 22, 2001 and placed at maximum
medical improvement with no job restrictions. The employer, a self-insured corporation, denied
benefits and a petition to controvert was filed by the claimant. The Commission denied
benefits and upon appeal by the claimant the circuit court reversed the Commission’s decision.
ISSUE: Whether the Commission erred in finding that Jackson’s injuries were not
work-related and, therefore, were not compensable under the Act ? An employee’s injury caused
by the willful act of a third person arises out of the employment and is compensable only
if the willful act was directed against the employee because of his employment. Brookhaven
Steam Laundry v. Watts, 214 Miss. 569, 59 So. 2d 294, 299 (1952). However, third party
assaults that occur due to a purely personal vendetta or disagreement do not arise out of the
employment. Big “2" Engine Rebuilders v. Freeman, 379 So. 2d 888, 891 (Miss. 1980). The
Court, in reversing the circuit court and reinstating the Commission’s decision, held that the
assault was the culmination of a purely personal vendetta; therefore, the assault did not arise
out of the claimant’s employment with Sanderson Farms.
31. Mabry v. Tunica County Sheriff’s Department, 911 So.2d 1038 (Miss.Ct.App. 2005)
FACTS: Claimant Byron Mabry, appealed the decision by the Commission denying
benefits for stroke suffered as the result of an intracerebral hemorrhage. The fact the claimant
passed out while on the job was the basis for his reliance on the notion that his disability
was in fact job related. While in the course and scope of his job performance claimant related
several stressful situations including having to shoot and kill a robbery suspect in self defense.
Claimant has had an extensive medical history of uncontrolled hypertension and admitted having
failed to continue taking his medication for some five months prior to his collapse. Claimant
was underwent a CT scan and as a result Dr. Winston Craig Clark performed a surgical
evacuation of the blood clot caused by the intracerebral hemorrhage. Dr. Clark, the treating
physician opined that it would be difficult to say that a hypertensive hemorrhage could be
caused by his occupation and he further stated that it was merely a possibility and not a
probability that this was the case. On the contrary, Dr. Jimmy Miller, opined that Mabry’s
cerebral hemorrhage was caused by hypertension, and that Mabry’s stress over having killed
a man months earlier could have exacerbated his hypertension causing the hemorrhage. The
Commission affirming the AJ who found that the claimant had failed to prove by the
preponderance of the evidence that the disability was related to his employment.
ISSUE: Whether the Order of the Commission was supported by substantial evidence?
The Court, in affirming the Commission, determined that substantial evidence supported the
Commission’s decision in denying benefits. The opinion of Dr. Miller, the physician called
to support the claimant, did not carry as much weight in that he did not examine Mabry or
speak with him and had failed to review all of the pertinent medical records.
32. Smith v. Durant Electric Corp., 2005 WL 2739656 (Miss.Ct.App. 10/25/05)
FACTS: Ms. Smith’s right elbow was injured on June 4, 1997 while working on the
assembly line. She was treated on the day of the injury, returned to work and finished the rest
of the day. Upon returning to work the next day she developed swelling in the injured arm and
was sent home by the plant nurse. She initially saw Dr. Fletcher Schrock. His diagnosis was
ulnar nerve trauma and contusion and he referred her to Dr. Richard Weddle, a neurologist. Dr.
Weddle found her neurological functions to be normal and advised her to return to work.
Claimant continued to complain of pain and was given approval to see Dr. Calvin Ramsey,
an internist. Dr. Ramsey treated her from August 18, 1997 until October 2, 2001 and attributed
her ailments to reflex sympathetic dystrophy. He prescribed a TENS unit and physical therapy.
He gave her a ninety percent impairment to her right upper extremity and equated that
impairment to one hundred percent to the whole person. Claimant became pregnant and
discontinued her use of the TENS unit and physical therapy. Claimant, instead underwent
wrist, elbow and shoulder surgery performed by Dr. Larry Field, an orthopedic surgeon. Dr. Field
opined that she had a six percent impairment rating to her upper extremity and eventually
released her to return to work. Ms. Smith did return to work but continued to complain of
pain, so Dr. Field referred her to Dr. Carroll McLeod for pain management. Dr. McLeod
initiated a series of nerve block injections but Ms. Smith claimed the treatment offered no
relief. She was then referred to Dr. Jeffery Summers, a pain management specialist for a
second opinion. Dr. Summers found her complaints at odds with what he observed in the
records of her prior treating physicians. Dr. Summers opined that claimant demonstrated illness
behavior and extreme overreaction. Employer obtained an Independent Examination of Ms. Smith
on February 14, 2000 by Dr. Rahul Vohra who found no indication of reflex sympathetic
dystrophy but rather a significant amount of pain behavior. He assigned a seven percent
impairment to her right upper extremity. He opined further that she was not precluded from
employment and refused to issue any restriction. He was of the same opinion in April 2002
and again assigned the same 7% impairment rating. The Commission affirmed the
Administrative Judge’s decision of permanent partial disability benefits commensurate with a
fifteen percent occupational loss of use of the upper extremity. The Circuit Court ultimately
affirmed the Commission and claimant appealed to the Court of Appeals.
ISSUE: Whether the commission’s decision was based on substantial evidence? In
affirming the Commission, the court noted the expert evidence is conflicting, and it
declined to assign new weight to the various medical opinions. Raytheron Aerospace Support
Serv. v. Miller, 861 So.2d 330 336 (Miss. 2003).
33. Mueller Cooper Tube Co. v. Upton, 2005 WL 2851650 (Miss.Ct.App. 11/01/05)
FACTS: Claimant sustained a work related ankle injury and after surgery he attempted to
return to work in job capacities that were less demanding.. His treating physician, Dr. Robert
Christopher, took him off work due to back muscle spasms and opined that he had reached
maximum medical recovery. The employer/carrier denied the back injury was work-related. The
facts established claimant attended school through the ninth grade and had been employed with
Mueller since 1987. Prior to his employment with Mueller claimant performed heavy manual labor
unskilled jobs. On January 29, 1997 claimant sustained a work related ankle injury and after
surgery attempted to return to work in job capacities that were less physically demanding. At
the time of his injury claimant’s job involved bending, stooping pivoting on his feet and
walking; all while lifting coils of pipe weighting approximately eighty-seven pounds, placing
them in boxes and sealing the boxes. Mr. Upton made four attempts to return to work at
Mueller; the first attempt involved scrapping paint and sorting parts; his second assignment
after his release involved packing coils for approximately one month; the third job attempt
involved tying coils, a job requiring bending, twisting, and throwing thirty-pound coils over his
head; the fourth and final attempt to work for the employer involved sweeping floors, which
lasted for approximately three weeks. The four jobs he performed after his surgery caused
him to experience back problems. Claimant made unsuccessful job searches with three other
prospective employers in his home county. When Dr. Christopher concluded Upton had reached
maximum medical improvement he assigned an impairment rating of twenty percent to the foot,
which converted to an eight percent rating for the entire body. The Workers’ Compensation
Commission found Mr. Upton to be totally and permanently disabled.
ISSUE: Whether the Commission’s decision was based on substantial evidence? The
claimant’s treating physician did not release claimant to return to work at the time he reached
maximum medical improvement due recurrent muscle spasms in his back which Dr. Christopher
specifically and unequivocally connected to the injured ankle . The decision reached by the
commission was supported by substantial evidence.
34. DiGrazia v. Park Place Entertainment, 2005 WL 3046847 (Miss.Ct.App. 11/15/05)
FACTS: Claimant sustained a compensable injury as a result of being hit on the head by
the top door of a freight elevator. She alleged injury to her neck and back pain and inability to
move her right leg. A CT Scan was performed by her treating emergency room doctor, Dr. Fred
Dale. The CT scan was found to be normal and claimant was given Tylenol for her headache.
He informed her she was to return to work on September 8, 1995. On September 19, 1995
claimant was referred to Dr. Terry Millette, a neurologist, apparently due to further complaints and
was diagnosed with mild cervical muscle spasm, and a post traumatic headache-like syndrome,
or a near post concussion-like syndrome. Grand Casino paid temporary total disability benefits
from September 1995 through March 1996 based on Dr. Millette’s findings. From a neurological
standpoint Dr. Millette released claimant at maximum medical improvement on April 18, 1996.
Although claimant was offered a position to return on March 12, 1996 after her release from the
doctor, she moved from the Gulf Coast . Employer made several other offers of modified positions
to claimant all to no avail. Claimant later denied these offers were ever communicated to her and
maintained she was unable to work . Claimant admits having been plagued by family problems
including but not limited to anxiety over an alcoholic son and a series of past martial problems
with three separate spouses. Upon making claims that her mental state was the result of her job
related injury the employer conducted an independent medical examination through Dr. Diane Ross,
a neurologist and Dr. Henry Maggio, a psychiatrist. When deposed Dr. Ross opined she could
return to work from a neurological standpoint. Dr. Maggio, in reviewing her past history, primarily
through medical records and a two hour interview opined that claimant suffered from emotions
of adjustment disorder, personality disorder, which preexisted her employment and post traumatic
headache syndrome which had resolved. He opined further she had the ability to return to her original
job with no modifications. Claimant then filed a Petition to Controvert some two years later
alleging total permanent disability. The Commission denied claimant’s Petition for total permanent
disability, finding claimant failed to show that her psychiatric condition was related to her head
injury and that she failed to show a reasonable effort to return to work.
ISSUE: Whether the Commission based its decision on substantial evidence? Based
on the medical evidence presented, the Court found the claimant failed in her burden of proof
that her mental and emotional condition was casually related to the injury.
35. Duke v. Parker Hannifin Corp., 2005 WL 3111957 (Miss.Ct.App. Nov. 22, 2005)
FACTS: The deceased, Laura Duke was involved in a fatal single vehicle accident on
April 3, 2001. Decedent husband’s filed a claim for workers’ compensation benefits under
the Act. Factually, on the date of Mrs. Duke’s death she was a salaried employee as the
Manufacturing Information Systems Manager. In that position she was responsible for all
communications, including the computer systems, networks, telephone systems, fax machines,
and copy machines at the employer’s plant. Shortly after arriving to work the plant was
evacuated due to a fire causing a leak of hazardous material from a storage tank. While
she was instructed to leave the immediate area she was not officially released from work.
This was never in dispute. The decedent followed procedure for informing the public of the
situation by putting a message on the company phone voice mail notifying callers of the
temporary plant closure. She also secured the backup data tapes and vacated the premises. She
then drove to a home of an Independent Contractor who on a regular basis provided
computer consulting to the employer. It was evident that she performed some job related
work on her laptop by downloading plant related information while at the contractor’s
home office. The decedent spoke with the plant manager from this location and was instructed
to return to the plant. The decent was involved a fatal automobile accident returning to
the plant site. The Commission found that the accident was not compensable. The Circuit
Court affirmed the commission. Mr. Duke, the husband of the decent, appealed
maintaining the facts support a finding of compensability. The claimant attorney based
his argument on the fact she was engaged in activity that placed her within an
exception to the “ coming and going rule”. He argued she was on a special mission or errand,
and also that she was acting to safeguard company property.
ISSUE: Whether the circumstances surrounding the decedent’s death fit any of the
exceptions to the “going and coming” rule ? In reversing the Commission’s decision, the court
found that the facts of this claim did in fact fit one exception, see Miller’s Transporters,
Inc. v. Dependents of Daniel L. Seay, 350 So. 2d at 691 ( 1977). That exception involves
circumstances “ where the employee is on a special mission or errand for his employer, or
where the employee is accommodating his employer in an emergency situation .”
1. Tupelo Public School District and Mississippi School Boards Association Worker’s
Compensation Trust v. Karen King Parker , Appellee’s motion for rehearing denied. 2004-WC-
00668 (COA 8/23/05).
2. Richard McMillian v. Delphi Packard Electric Systems, Division General Motors
Corporation, A Self- Insurer. 2003-WC-01199 (COA 9/6/05). Appellant’s motion for rehearing
3. Barber Seafood, Inc. d/b/a Uncle Chester’s Fish House and Mississippi Restaurant
Association Workmen’s Compensation Trust v. Sandra Louise Smith , Motion for rehearing
filed by Sandra Louise Smith is denied. 2003-CT-01343 (SCT 10/6/05)
4. Tupelo Public School District and Mississippi School Boards Association Workers’
Compensation Trust v. Karen King Parker: Petition for Writ of Certiorari filed Karen King
Parker is denied. 2004-CT- 00668 (SCT 10/20/05)
5. Texas Gas Transmission Corporation and Liberty Mutual Insurance Company,
Employer and Carrier v. Elmer O. Dabney: Disposition: Appellant’s motion for rehearing is
denied. 2004- WC-00064 (COA 11/8/05)
6. The Mississippi Insurance Guaranty Association; Daniel P. Dare, M. D. ; and River
Region Medical Corporation v. Dot Brewer: Ruling Date: 12-9-03. Appellee’s motion for
rehearing is denied.. 2004-WC-00136-COA (COA 11/15/05)