City of Jackson v. Sandifer

• Citation: 125 So.3d 681
• Decision Date: 22 October 2013
• Docket Number: No. 2012–WC–00197–COA.,2012–WC–00197–COA.
• Court: Mississippi Court of Appeals
• Parties: CITY OF JACKSON, Mississippi, Appellant v. Sam SANDIFER, Appellee.

125 So.3d 681

CITY OF JACKSON, Mississippi, Appellant

v.Sam SANDIFER, Appellee.

No. 2012–WC–00197–COA.

Court of Appeals of Mississippi.

Oct. 22, 2013.

Lara E. Gill, Ridgeland, Pieter John Teeuwissen, attorneys for appellant.

Timothy W. Porter, Ridgeland, Patrick Malouf, John Timothy Givens, Jackson, Robert Allen Smith Jr., attorneys for appellee.

Before GRIFFIS, P.J., BARNES and JAMES, JJ.

BARNES, J., for the Court:

¶ 1. The City of Jackson (City) appeals the order of the Circuit Court of Hinds County, which affirmed the award of permanent partial workers' compensation benefits to Sam Sandifer by the Mississippi Workers' Compensation Commission (Commission). Sandifer was a long-time firefighter for the City and was diagnosed with respiratory disease indicative of asbestosis. The administrative judge (AJ) and the Commission found substantial evidence linking Sandifer's illness with his employment.

¶ 2. On appeal, the City argues that Sandifer failed to show a direct causal connection between his employment as a firefighter and his illness. Further, the City claims the statute of limitations had expired, barring any award of benefits to Sandifer. Finding no error with the Commission's decision, however, we affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 3. Sandifer was employed by the Jackson Fire Department (JFD) from 1985 until 2007—twenty-two years. On February 20, 2007, Sandifer's pulmonologist, Dr. John Studdard, found his lung problems indicative of “asbestos-related pulmonary parenchymal and pleural disease—asbestosis” related to his employment as a firefighter. Sandifer was forty-three years old. His last day of “active employment” was July 23, 2006.¹ In November 2007, Sandifer filed a petition to controvert for workers' compensation benefits. Sandifer's employment and medical history were established as follows.

¶ 4. After graduating from high school in 1982, Sandifer worked as a meat cutter in a grocery store from 1983 until 1985, when he started working with the JFD. Sandifer also worked part-time as an outdoor plumber, digging ditches and installing PVC pipe for new residential construction for two months during the summers of 2004 and 2005. Additionally, he worked in 2005 for two months at a sawmill, where he hauled wood outside the mill, but he had to quit due to breathing problems. Sandifer denied coming into contact with asbestos during either of these part-time jobs.

¶ 5. As a Jackson firefighter, Sandifer held many positions, and eventually rose to the rank of captain. He claimed significant exposure to asbestos both at his workplace and when fighting fires. Over Sandifer's career, he was assigned and worked at nearly every JFD station but one. He testified that many of these fire stations contained asbestos ceiling and floor tiles that were often broken or torn. Also, the pipes in many stations were wrapped in asbestos insulation. He stated many of the stations had to be temporarily closed for the removal of asbestos. Part of his duties at these stations involved sweeping the floors and picking up asbestos floor tiles, which produced asbestos dust.

¶ 6. Additionally, Sandifer claimed exposure to asbestos while fighting numerous fires in older commercial buildings and older residential neighborhoods. He stated many older homes were constructed with asbestos siding, shingles, and insulation. He would often have to tear the asbestos off of the walls and pipes when extinguishing the fires. Even though he wore a mask and breathing apparatus while fighting fires, he claimed that dust and smoke still entered the mask.

¶ 7. Sandifer had two hospital-emergency-room visits for smoke inhalation while fighting fires—in August 2002 and in July 2006. Dr. Studdard was the pulmonologist when Sandifer went to the emergency room in 2002, and Sandifer has continued to be under his care. In 2002, Dr. Studdard stated that Sandifer's pulmonary function was “indicative of moderate to severe restrictive lung disease,” but the cause of the restriction was “unclear.” Further, a CT scan did not show any pleural disease.

¶ 8. In 2006, however, Sandifer's condition worsened significantly, and Dr. Studdard diagnosed him with a “new pleural effusion,” or excess fluid around the lungs, which caused difficulty breathing. In his deposition, Dr. Studdard testified that April 2006 was the first time any pleural disease was noted, and the cause was still unknown. Therefore, in May 2006, diagnostic lung surgery² was performed by Dr. Michael Koury, a thoracic surgeon.

¶ 9. On July 23, 2006, Sandifer went to the emergency room after fighting a fire because he was having trouble breathing. Dr. Studdard treated him, found fluid in Sandifer's lungs, and diagnosed him with pneumonia. On the advice of Dr. Studdard, Sandifer did not work again after this episode.

¶ 10. In a “To Whom It May Concern” letter dated February 20, 2007, Dr. Studdard listed Sandifer's lung problems ³ and found them “typical” of “asbestosis.” “Within a reasonable medical certainty,” Dr. Studdard related the disease to Sandifer's employment as a firefighter.

¶ 11. Because Sandifer continued to have problems breathing and his chest x-rays were worsening, in July 2007, Sandifer was referred to Dr. Robert Cerfolio, who performed an additional diagnostic surgery on both lungs (another thoracoscopy and pleural biopsy). Dr. Cerfolio also stripped the pleural lining off Sandifer's lungs to help him breathe. Sandifer's lungs showed significant pleural disease, but no mesothelioma.

¶ 12. In another “To Whom It May Concern” letter dated October 10, 2008, Dr. Studdard stated that the “clinical picture of asbestos-related lung disease only became clear” after Sandifer's diagnostic lung surgeries. Dr. Studdard further wrote and later testified that “within a reasonable medical certainty,” Sandifer's respiratory disease was “related to previous asbestos exposure.” He stated Sandifer's lung volume was reduced to less than fifty percent, which was considered “severe[ly] restrictive” and “clearly is disabling.” With such reduced lung function, Dr. Studdard found Sandifer “completely and totally disabled from any employment,” let alone as a fireman, and that Sandifer had reached maximum medical improvement. Further, Dr. Studdard stated it was more likely Sandifer's medical condition would get worse rather than better.

¶ 13. Sandifer, who never smoked, testified that he did not think he could hold down a job due to his breathing problems. He cannot take deep breaths, has pain in his chest, and feels dizzy after exertion. Lifting heavy objects is difficult, and he becomes winded after walking or talking. He claimed he was not exposed to asbestos at any job other than firefighting.

¶ 14. Johnny Bass, a retired district chief and a thirty-year employee of JFD, testified at the hearing before the AJ. He corroborated Sandifer's testimony that there was asbestos in many fire stations and at the fires he and Sandifer fought together. Bass recalled the firefighter union's concern about asbestos in the City's fire stations during the 1980s, resulting in an asbestos-abatement program. A project manual from 1989 was entered into evidence; it was the City's contract with an environmental group for the removal of asbestos materials from several Jackson fire stations. It was stipulated that Earl Jones, a former JFD firefighter, would also corroborate Sandifer's and Bass's testimonies about exposure to asbestos while on the job.

¶ 15. Dr. Obie McNair, a pulmonologist retained by the City, reviewed Sandifer's case documents and medical records, and concluded Sandifer was not occupationally disabled. However, Dr. McNair had never treated or spoken with Sandifer. While he agreed that Sandifer suffered from respiratory disease, it was his opinion that a more likely cause of any asbestos-related pulmonary condition was Sandifer's temporary part-time work as a plumber.

¶ 16. In June 2010, the AJ awarded Sandifer permanent total disability benefits due to work-related pulmonary disease. The AJ made the following findings. Sandifer's respiratory disease became “occupationally disabling” as of July 24, 2006, or Sandifer's last day of active employment. Sandifer's and Bass's unrefuted testimonies, and the asbestos-abatement document, show Sandifer was exposed to asbestos throughout his career as a firefighter. And there was no credible evidence Sandifer was exposed to asbestos anywhere else. Dr. Studdard's testimony was found to carry more weight than Dr. McNair's testimony, as Dr. Studdard was Sandifer's treating physician for several years. Additionally, Dr. Studdard proved Sandifer suffers from respiratory disease as a result of exposure to asbestos in his employment as a firefighter. Sandifer began suffering from respiratory ailments in 2002, when he first saw Dr. Studdard, but he was not aware of the “compensable nature” of his respiratory disease prior to February 2007.

¶ 17. The Commission affirmed the AJ's order, except it found Sandifer entitled to permanent partial (not permanent total) benefits.⁴ The Commission pointed to Sandifer's testimony, which suggested that he retained some physical capabilities. Sandifer testified that since he retired from firefighting, he takes his children to school, checks on his mother, cuts his grass, drives his vehicle, does laundry, and cooks. Also, Bruce Brawner, a vocational-rehabilitation expert retained by the City, testified that Sandifer would probably be limited to sedentary work, but he did not have enough information to give a definitive opinion on Sandifer's employability. Further, Dr. McNair testified that Sandifer was capable of performing forty hours of sedentary work per week. Accordingly, the Commission found Sandifer could perform at a full-time, sedentary, minimum-wage job.

¶ 18. The Hinds County Circuit Court found the Commission's award of permanent partial disability supported by substantial evidence. The court also...