Bowdry v. City of Tupelo

Decision Date26 April 2022
Docket Number2021-WC-00390-COA
Citation337 So.3d 1158
Parties Keith BOWDRY, Appellant v. CITY OF TUPELO, Mississippi and Mississippi Municipal Workers’ Comp Group, Appellees
CourtMississippi Court of Appeals

ATTORNEY FOR APPELLANT: KEITH BOWDRY (PRO SE)

ATTORNEYS FOR APPELLEES: GEORGE E. READ, JOSEPH MILES FORKS, Oxford

BEFORE WILSON, P.J., WESTBROOKS AND LAWRENCE, JJ.

LAWRENCE, J., FOR THE COURT:

¶1. Keith Bowdry (Bowdry) was employed as a patrolman for the City of Tupelo, Mississippi. On April 21, 2017, Bowdry was injured while in pursuit of a burglary suspect in Tupelo. He reported his injuries to his supervisor, and his attorney filed a "Workers’ Compensation First Report of Injury or Illness." Bowdry was treated by multiple doctors and underwent two surgeries for injuries to his left hand. Those treatments were covered by the City of Tupelo (Employer) and Mississippi Municipal Workers’ Compensation Group (Carrier). During this time, Bowdry also sought treatment from Dr. Glenn Crosby (Dr. Crosby) for pain related to his neck. Bowdry sought to have the Employer pay for his medical bills for Dr. Crosby, but the Employer refused, stating that Dr. Crosby was not an authorized physician.

On May 10, 2017, Bowdry filed a petition to controvert, seeking payment for temporary disability related to injuries to his "left hand, left arm and left upper extremities and back." On March 6, 2019, Bowdry filed a second amended petition to controvert, asking for payment for temporary disability related to his "left hand, left arm and left upper extremities and back." Bowdry added injuries to his "neck" and "right upper extremity." The Employer maintained that Bowdry's neck claim was not related to his April 21, 2017 injury.

¶2. On June 2, 2020, an administrative judge (AJ) held a hearing on this matter. The AJ found that Bowdry was not entitled to any additional benefits for his neck claim. Bowdry filed a petition for review to the Mississippi Workers’ Compensation Commission (Commission). On March 9, 2021, the Commission affirmed the AJ's decision. Bowdry appealed, arguing (1) the AJ erred in finding Bowdry's neck claims were not related to his April 21, 2017 injury and by not awarding him additional benefits; and (2) the Commission erred in concluding that Bowdry did not establish medical causation through expert testimony about his neck claim. Upon review of the record, we affirm the findings of the Commission.

FACTS AND PROCEDURAL HISTORY

¶3. Prior to the April 21, 2017 injury at issue, Bowdry had three other work-related injuries that the Employer covered. On April 15, 2011, Bowdry injured his head

, neck, and lower back in a motor vehicle accident while on duty. On August 17, 2013, Bowdry injured his neck, arms, and legs while on duty. On December 23, 2015, Bowdry injured his neck, back, shoulder, and "left upper extremity" while on duty. Then, on April 21, 2017, Bowdry was injured while pursuing a burglary suspect on foot. Bowdry slipped and fell down a hill "causing him to hurt his neck and back as well as his left hand."1 On May 10, 2017, Bowdry filed a petition to controvert (Petition). In the Petition, Bowdry listed his "[l]eft hand, left arm and left upper extremities and back" as his injuries and sought damages for the temporary disability these injuries caused. The Employer responded to Bowdry's Petition, stating that Bowdry was temporarily disabled and that Bowdry did sustain a "loss of wage earning capacity."

¶4. Between April 21, 2017, and July 27, 2017, Bowdry was treated by Dr. John White Jr. at Work Clinic in Tupelo, Mississippi, who recommended physical therapy. Bowdry received additional treatment from Dr. Eric Lewis at North Mississippi Sports Medicine and Orthopedic Clinic. Bowdry complained of pain in his left hand from the April 21, 2017 injury to Dr. Lewis. An MRI performed on Bowdry's left hand revealed multiple torn tendons. On July 27, 2017, Dr. Lewis operated on Bowdry's hand, performing a "left small finger and left ring finger trigger finger release." After the surgery, Bowdry's hand was treated with physical therapy and injections. On March 18, 2018, Dr. Lewis performed an "endoscopic carpal tunnel release

left side and a Neuroplasty and transposition, ulnar nerve of [Bowdry's] left elbow."

¶5. While Bowdry was being treated by Dr. Lewis, he began seeking treatment from Dr. Crosby for neck pain. Bowdry's first visit was on July 28, 2017. In May 2018, Dr. Crosby contacted the Employer to request approval to perform a cervical MRI on Bowdry for "injuries sustained in the April 21, 2017, work-related injury." The Employer denied the MRI request because Dr. Crosby was not an authorized physician.2 On March 6, 2019, Bowdry filed an amended Petition and added "neck" to his list of "parts of the body involved or injured." On the same day, Bowdry filed a second amended Petition and listed his "neck" and "right upper extremity" as "parts of the body involved or injured." The Employer filed an amended answer to Bowdry's second amended Petition and denied that Bowdry "suffered an injury to his right upper extremity."

¶6. On October 18, 2019, Bowdry filed a motion for continuance for the hearing originally set for November 20, 2019, to determine whether the Employer owed damages to Bowdry for his alleged neck injury. Bowdry stated that he needed the continuance "due to the fact that [Bowdry's] treating physician Dr. Glenn Crosby ... recently diagnosed [Bowdry] with Cervical Radiculopathy

and ordered that [he] undergo an MRI." Additionally, Bowdry stated that he needed the continuance so that he could be re-examined by Dr. Crosby before having a hearing on the merits. The Employer filed its response on October 22, 2019, arguing that Bowdry had ample time to pursue a neck claim arising out of his April 2017 injury. The Employer also stated that if Bowdry has any "problems with his neck, those relate to his three prior injuries." The Commission continued the hearing to May 6, 2020, to allow Bowdry the time he needed to depose Dr. Crosby and gather other necessary medical documentation.3

¶7. On June 1, 2020, Bowdry filed his pre-hearing statement. He claimed he suffered injuries to his "neck, back, left hand, left arm, and left upper extremities." Bowdry did not attach a work search list, post-maximum-medical-improvement employment, vocational reports, or stipulations. On June 2, 2020, the AJ held a hearing to determine whether the Employer owed damages to Bowdry for his alleged neck injury. Throughout the hearing, Bowdry's attorney attempted to admit various documents into evidence. However, the Employer objected to all of these documents claiming it was never shown those documents prior to the hearing. The AJ marked all of the documents Bowdry presented for identification only.4

¶8. On October 14, 2020, the AJ issued an order finding that Bowdry was not entitled to any additional benefits. Specifically, the AJ found Bowdry's "recent attempts to again link his neck complaints to his current left-arm claim are simply attempts to turn a scheduled-member claim into a whole person claim. The admitted evidence makes it clear that any neck complaint is not related to this claim." The AJ concluded that "[n]o medical proof of causation on the neck claim was presented" and denied benefits for Bowdry's neck injury.

¶9. On October 23, 2020, Bowdry submitted a "Petition for Review of Order by Full Commission." He argued that the AJ erred in finding the Employer was not responsible for his neck complaints and erred in finding that Bowdry failed to meet his burden of proof. He also claimed that the AJ's findings were "contrary to the credible evidence, contrary to the overwhelming weight of the evidence, and contrary to the law." Finally, Bowdry claimed that the AJ's findings were erroneous. On February 22, 2021, the Commission considered Bowdry's claim, and on March 9, 2021, the Commission issued an order, affirming the AJ's findings.

¶10. In its order, the Commission found that Bowdry "simply failed to prove by competent evidence that his alleged neck injury was a result of his admitted work injury on April 21, 2017." The Commission stated Bowdry did not present any "expert testimony or objective medical evidence that his current complaints are related to his most recent injury." Additionally, the Commission found that Bowdry had been given a continuance and chose not to depose Dr. Crosby or gather medical evidence to support his claim. The Commission also reviewed the medical records that Bowdry presented at his original hearing, which had all been marked for identification purposes only. The Commission stated: "Out of an abundance of caution, the Commission has reviewed the medical records from Dr. Crosby marked for identification purposes only. After review, we find that these records do not establish that the Claimant's current neck complaints are related to his admitted work injury on April 21, 2017."

¶11. Bowdry appealed the Commission's findings. On appeal, Bowdry argues: (1) the AJ erred in finding Bowdry's neck claims were not related to his April 21, 2017 injury and by not giving him additional benefits, and (2) the...

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