Bryan Foods, Inc. v. White, 2004-WC-00357-COA.

• Decision Date: 27 October 2005
• Docket Number: No. 2004-WC-00357-COA.,2004-WC-00357-COA.
• Citation: 913 So.2d 1003
• Parties: BRYAN FOODS, INC., Appellant v. James David WHITE, Appellee.
• Court: Mississippi Supreme Court

913 So.2d 1003

BRYAN FOODS, INC., Appellant v. James David WHITE, Appellee.

No. 2004-WC-00357-COA.

Court of Appeals of Mississippi.

April 19, 2005.

Rehearing Denied July 26, 2005.

Certiorari Denied October 27, 2005.

COPYRIGHT MATERIAL OMITTED

James C. Helveston, West Point, attorney for appellant.

Roger K. Doolittle, Jackson, attorney for appellee.

Before BRIDGES, P.J., GRIFFIS and ISHEE, JJ.

GRIFFIS, J., for the Court:

¶ 1. James David White injured his neck while working at Bryan Foods, Inc. The Mississippi Workers' Compensation Commission found that White had sustained a work-related injury resulting in a fifty percent loss in his wage-earning capacity. The Clay County Circuit Court affirmed the Commission's decision. We find substantial evidence to support the Commission's decision and affirm.

FACTS

¶ 2. James White was hired by Bryan Foods in 1977 as a certified diesel mechanic. White performed heavy labor including the overhauling of engines, transmission repairs and work on the cooling units of refrigerated trucks until 1998.

¶ 3. The first injury occurred on May 30, 1995. While attempting to pry an engine open, the tire tool slipped and injured White's right elbow. Bryan Foods accepted the compensability of this claim and provided medical treatment. Dr. Russell Linton, an orthopedic surgeon, treated White's elbow injury in November of 1995, and released him to work in January of 1996. Due to flare-ups from the injury, White reported to Dr. Linton in May June, and July of 1996. Thereafter, Dr. Linton restricted White to light duty for six weeks. White returned to his full work responsibilities in September of 1996.

¶ 4. White alleged that a second work-related injury occurred on November 27, 1996. White testified that when he attempted to pull a large tire from an eighteen-wheeler he felt an immediate pain in his neck. White did not immediately report the incident to his supervisor or the company nurse since he thought that it was merely a "crick in his neck." After seeing White apply pain medication to his neck, Roby White, his direct supervisor, asked White what was wrong. White told his supervisor that he had a "crick in his neck," but did not relate the pain to any specific cause. Several days later, White approached the company nurse complaining of the same "crick." The nurse told White that his neck pain could not possibly be related to his work, and Bryan Foods would not compensate him.

¶ 5. White sought treatment for his injury from several physicians. Relying on the opinion of Bryan's nurse, White testified that he did not report the accident to any of his treating physicians. White first went to his family physician, Dr. Sue Simmons, on December 5, 1996. After examining White, Dr. Simmons referred White to Dr. Linton.

¶ 6. On December 20, 1996, White told Dr. Linton about his neck and shoulder pain. White told Dr. Linton that he had been experiencing these pains for approximately one month, again failing to report a work-related accident as the cause of his injury. Dr. Linton diagnosed White's condition as a cervical radiculopathy and referred him to Dr. Thomas McDonald, a neurosurgeon.

¶ 7. Dr. McDonald first treated White on December 27, 1996. White reported neck and shoulder pains existing since Thanksgiving but again was unable to specify a cause. Dr. McDonald diagnosed a ruptured C-4 disc and a bulging disc at C6-7. Surgery was immediately performed on White. After his recuperation, White was released to work by Dr. McDonald on March 3, 1997. White consulted Bryan's nurse again when he returned to work regarding the cause of his injury. The nurse told White that his injury could not have been work-related and that he would have had to have "fallen from a two-story building to mess [his] neck up."

¶ 8. One year later, Dr. McDonald again treated White. In March of 1998, White's condition was reevaluated due to further complaints of neck and shoulder pain. Dr. McDonald recommended a second surgery. Dr. McDonald performed the second surgery on March 10, 1998. White was released to full and unrestricted duty on July 27, 1998.

¶ 9. After returning to his mechanic duties, White testified that his condition did not improve. White returned to Dr. Simmons who referred him to a second neurosurgeon, Dr. Robert Ray Smith. Dr. Smith evaluated White's condition and ordered a Functional Capacity Evaluation ("FCE"). Due to the results of the FCE, Dr. Smith determined that White had reached maximum medical improvement and had incurred a twenty percent medical impairment. Dr. Smith imposed a sixty pound lifting restriction and restricted White to medium duty.

¶ 10. Given White's inability to return to work as a mechanic, he sought alternate employment. White testified that he made seventeen unsuccessful attempts to secure a new job in October and November of 1999. Unable to find new employment, White was assigned by Bryan Foods to Weiner World as a maintenance technician. The new position required White to work in refrigerated areas with extremely cold temperatures that required him to wear heavy coats provided by Bryan Foods. White testified that the heavy coats aggravated his neck injury.

¶ 11. In May of 2000, White sought treatment from Dr. Smith. White complained of neck pain aggravated by wearing the heavy coats. After his examination, Dr. Smith found White to be in good strength without any neurological deficits. Dr. Smith's ultimately opined that White's condition had not deteriorated. Although no objective evidence existed, due to White's subjective complaints, Dr. Smith recommended that White be assigned to light duty outside of the cold temperatures.

¶ 12. White returned to Dr. Smith in August of 2001. White's complaints were the same. White complained that having to work nine hours a day in such a cold environment aggravated his neck injury. Dr. Smith further restricted White to an eight hour workday with no work in the freezer areas or any cold environments. Ultimately, in 2001, White left Weiner World, citing his physical inability to perform the work as grounds.

¶ 13. After White's departure from Weiner World, Bryan Foods offered him another job. The position was in the lard room trimming ears and pulling tongues from hog carcasses. He did not attempt these jobs because the required tasks exceeded his FCE restrictions. White testified that he would attempt to perform any job Bryan Foods offered if the job was within the FCE restrictions

¶ 14. The claims based on White's 1995 elbow injury and his 1996 neck injury were consolidated for trial. Prior to trial, the parties stipulated the following:

1. On May 30, 1995, White sustained an injury to his right elbow within the course and scope of his employment at Bryan Foods.

2. White's average weekly wage for the twelve month period prior to the 1995 injury was $561.84.

3. White's average weekly wage for the twelve month period prior to the 1996 injury was $497.97.

¶ 15. The administrative law judge found that White had sustained a neck injury while on the job and awarded benefits. The administrative law judge found that White experienced a 50% loss of wage earning capacity. He was entitled to various disability benefits for the period between November 27, 1996 and July 27, 1998, and all medical services and supplies required during his recovery. This award was affirmed by the Commission and the Clay County Circuit Court. Bryan Foods appeals.

STANDARD OF REVIEW

¶ 16. An appellate court must defer to an administrative agency's findings of fact if there is even a quantum of credible evidence which supports the agency's decision. Hale v. Ruleville Health Care Center, 687 So.2d 1221, 1224 (Miss.1997). "This highly deferential standard of review essentially means that this Court and the circuit courts will not overturn a Commission decision unless said decision was arbitrary and capricious." Id. at 1225; Georgia Pacific Corp. v. Taplin, 586 So.2d 823, 826 (Miss.1991).

¶ 17. The supreme court has held:

We do not sit as triers of fact; that is done by the Commission. When we review the facts on appeal, it is not with an eye toward determining how we would resolve the factual issues were we the triers of fact; rather, our function is to determine whether there is substantial credible evidence to support the factual determination by the Commission.

South Central Bell Telephone Co. v. Aden, 474 So.2d 584, 589 (Miss.1985). Stated differently, this Court will reverse the Commission's order only if it finds that order clearly erroneous and contrary to the overwhelming weight of evidence. Myles v. Rockwell Int'l., 445 So.2d 528, 536 (Miss.1984) (citing Masonite Corp. v. Fields, 229 Miss. 524, 91 So.2d 282 (Miss.1956)); Riverside of Marks v. Russell, 324 So.2d 759, 762 (Miss.1975). An appellate court may not simply reweigh the evidence and substitute its decision for that of the Commission. Indeed, this Court has a duty to defer to the Commission when its decision can be supported. Fought v. Stuart C. Irby, Co., 523 So.2d 314, 317 (Miss.1988).

ANALYSIS

I. Whether the Order of the Mississippi Workers' Compensation Commission is supported by substantial evidence.

¶ 18. To establish entitlement to benefits under workers' compensation, the claimant bears the burden of proving by a preponderance of the evidence each element of the claim of disability. Hedge v. Leggett & Platt, Inc., 641 So.2d 9, 13 (Miss.1994). Therefore, White must prove that: (1) an accidental injury occurred, (2) arising out of and in the course of employment, and (3) a causal connection between the injury and the claimed disability. Id. at 13.

¶ 19. Bryan Foods argues that the substantial evidence does not support White's claim of a work-related injury. We must consider the Commission as the ultimate fact finder. South Central Bell Telephone Co., 474 So.2d at 589. The Commission, therefore, enjoys the presumption that it made proper determinations as to the...