Bermond v. Casino Magic, 2003-WC-01739-COA.

Decision Date25 May 2004
Docket NumberNo. 2003-WC-01739-COA.,2003-WC-01739-COA.
Citation874 So.2d 480
PartiesDebra BERMOND, Appellant, v. CASINO MAGIC, Employer and Great American Insurance Company, Carrier, Appellees.
CourtMississippi Court of Appeals

Floyd J. Logan, Gulfport, attorney for appellant.

William D. Blakeslee, Gulfport, attorney for appellees.

Before KING, C.J., BRIDGES, P.J., THOMAS and CHANDLER, JJ.

THOMAS, J., for the Court.

¶ 1. Following an award of temporary total benefits and medical treatment by an administrative law judge, the Mississippi Workers' Compensation Commission entered an order denying all benefits to Debra Bermond, stating that the findings of fact made by the administrative law judge did not support a finding that Bermond had suffered a compensable cervical injury on the date that she fell while working for Casino Magic. The Circuit Court of Hancock County affirmed the Commission. Bermond appeals asserting three issues which we quote verbatim:

1. Whether there was substantial evidence to support the Commissions reversal of the decision of the administrative law judge awarding benefits to claimant.
2. Whether the administrative law judge erred in admitting the employee accident report of March 7, 2000.
3. Whether claimant's failure to seek employment is fatal as a matter of law, under this case, to the claim of total disability.

We find that while the Commission relied in part on evidence not properly in the record, additional evidence supported the Commission's decision to overturn the administrative judge's order, and we affirm the finding that Bermond's work-related accident did not cause the injuries for which she sought treatment, and this finding makes it unnecessary for us to address whether Bermond's admitted failure to seek employment is fatal to her claim of total disability.

FACTS

¶ 2. The parties agree that Bermond was initially hired in April of 1998, and on March 7, 2000, she slipped and fell while at work. The disputed factual issue is whether the evidence could support a finding that the fall caused, or aggravated a preexisting condition, of spondylosis at the neck vertebrae C6-7 necessitating a cervical discetomy and bone fusion.

¶ 3. The day before the fall, March 6, 2000, Bermond went to Gulf South Urgent Care (Urgent Care) complaining of pain and tingling in her left arm, and carpal tunnel syndrome was diagnosed. On the day of the fall, Bermond's supervisor, Barbara Maas, testified that after Bermond fell, she initially did not complain of any injury to her left arm, shoulder or neck. Rather, the only injury Bermond reported was that she had skinned her knees, and she declined Maas' suggestion that she should go to Urgent Care for treatment. Additionally, on the employee accident report that Bermond completed on the day of the fall, the only injury she listed was to her "knee caps." However, during the hearing, which took place on December 6, 2001, the administrative judge ruled that Casino Magic had committed a discovery violation in failing to disclose this record prior to the hearing, and he initially ruled that the document could not be substantively entered into evidence, though he did allow it to be placed in the record for identification purposes. Inexplicably, the hearing officer reopened the record on May 24, 2002, without the presence of counsel for either party, and without any explanation admitted the document substantively into the record. Because this document was not put into evidence substantively at the hearing, Bermond was not questioned directly about it. However, Bermond testified prior to Maas, and Bermond stated that she did indeed complain to Maas about pain in her left arm and neck immediately after the fall.

¶ 4. Regardless of what injury Bermond actually reported, the record was clear that Bermond was placed on "light duty" in the laundry on March 7, 2000 and finished her shift that day. Bermond testified that she worked in the laundry again the next day, but her injuries were so painful that she could not continue. Maas initially testified Bermond did not work on March 8th, but on cross-examination appeared less certain. March 9th and 10th were Bermond's regularly scheduled days off. Bermond testified that Maas told her to take short-term disability leave, which she did for one week. Maas denied telling Bermond to take short-term disability leave. At any rate, the record was clear that on March 18, 2000, Bermond returned to Casino Magic and filed for both family medical leave and disability benefits. What actually transpired during the time after Bermond ceased working and returned to file for leave was disputed. Maas, and two other Casino Magic employees, Tamera Whavers, employee benefits manager, and Brandi Wyman, room attendant, testified that Bermond told them she had vacationed in Mexico or Disney World. Bermond denied both that she made such statements and that she took any vacation.

¶ 5. Bermond testified that she did not apply for workers' compensation benefits because Whavers told her sometime around March 20th to 22nd that she would be better off applying for disability benefits. Bermond also stated that Whavers counseled her to not disclose that her injury was work related, because this disclosure would prevent her from qualifying for disability insurance provided by Casino Magic as an employee benefit. Bermond also testified that she did not discuss any medical treatment with Whavers when she applied for disability benefits because she had not yet made any appointment with a physician. Whavers denied telling Bermond to not disclose a work-related injury. Whavers testified that when Bermond came to apply for disability benefits, she told Bermond that an employee could not apply for disability insurance benefits if they had a work-related injury, and that Casino Magic policy was that an employee had to apply for family medical leave prior, or simultaneously, to applying for disability benefits.

¶ 6. Bermond returned to Urgent Care on March 21, 2000 complaining of left arm pain and finger numb and tingling. Dr. Burwell testified that Bermond complained of pain and tingling in her left arm and hand, and pain in her left shoulder, all of one month's duration. She specifically told him her injury was not work-related. He diagnosed degenerative changes to her spine, gave her a work restriction of not lifting more than twenty pounds, and planned to see her in a month, but she never returned.

¶ 7. Dr. Henry Danielson, a neurosurgeon, testified that he initially saw Bermond on May 18, 2000. He said Bermond gave him a history of a fall at work and brought with her an MRI. He performed the cervical discetomy on June 28, 2000. His medical opinion was that the fall at work caused "a considerable aggravation of her pre-existing condition," and necessitated the surgery. He said that she had been temporarily totally disabled from the date of the surgery until December 12, 2000, and was instructed against prolonged extension of her neck and had sustained a 10% permanent partial impairment, but lifting up to her shoulder level was permissible. However, Dr. Danielson testified on cross-examination that he had not been aware that Bermond had not complained of a work-related injury prior to seeing him, but he would not agree with Casino Magic's counsel that the injury was not work related, because he felt that Bermond's symptoms changed following the fall at work. Nevertheless, Bermond did in fact report substantially the same symptoms to Urgent Care on March 6, 2000, that she reported to the Hancock Medical Center of March 20, 2000. The March 20th records state she presented "the same complaints" that she reported to Urgent Care two weeks previously. Following her recuperation, Bermond did not seek any employment.

¶ 8. Upon this evidence, the administrative judge found:

[T]he claimant has proven by a slim but fair preponderance of the evidence that her admitted slip and fall accident on March 7, 2000 resulted in the cervical injury that required the surgical intervention by Dr. Harry Danielson on June 28, 2000, based on her own testimony and the expert testimony of Dr. Danielson. Even if we were to accept as a given that Ms. Bermond went to Mexico in March of 2000, as urged by the defendants, that fact would not be preclusive of an award in this case, and, besides doubtful
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8 cases
  • Vaughn v. Vaughn
    • United States
    • Mississippi Court of Appeals
    • March 22, 2011
    ...recognized discovery rules impacts whether a decision is seen as arbitrary and capricious, and [a] violation of due process.” Bermond v. Casino Magic, 874 So.2d 480, 484–85 (¶ 11) (Miss.Ct.App.2004) (emphasis added). But see Molden v. Miss. State Dep't of Health, 730 So.2d 29, 40–41 (¶¶ 26–......
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    ...v. Averitt Exp. Inc. , 115 So.3d 874, 877 (¶ 13) (Miss. Ct. App. 2013) ; Robinson Prop. Grp. , 975 So.2d at 260 (¶ 8) ; Bermond v. Casino Magic , 874 So.2d 480, 484–85 (¶ 11) (Miss. Ct. App. 2004) ; Posey v. United Methodist Senior Servs. , 773 So.2d 976, 979 (¶ 9) (Miss. Ct. App. 2000) ; M......
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    ... ... Newton, 975 So.2d 256, 260 ( 8) (Miss.Ct.App.2007) (citing Bermond v. Casino Magic, 874 So.2d 480, 485 ( 11) (Miss.Ct.App.2004)).[115 So.3d ... ...
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    ...discovery rules impacts whether a decision is seen as arbitrary and capricious, and an [sic] violation of due process." Bermond v. Casino Magic, 874 So.2d 480, 484-85(¶ 11) (Miss.Ct.App.2004) (citing Mid-Delta Home Health, Inc. v. Robertson, 749 So.2d 379, 386-87(¶ 28) (Miss.Ct.App.1999)). ......
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