Dep't of Agric. & Commerce v. Austin

Decision Date18 November 2014
Docket NumberNo. 2014–WC–00222–COA.,2014–WC–00222–COA.
Citation150 So.3d 994
PartiesDEPARTMENT OF AGRICULTURE AND COMMERCE and Mississippi State Agencies Workers' Compensation Trust, Appellants v. Hugh K. AUSTIN, Appellee.
CourtMississippi Court of Appeals

Peter L. Corson, Ridgeland, attorney for appellants.

Floyd E. Doolittle, attorney for appellee.

Before LEE, C.J., ROBERTS and CARLTON, JJ.

Opinion

CARLTON, J., for the Court:

¶ 1. Hugh Austin suffered a back injury while employed by the Mississippi Department of Agriculture and Commerce (Department of Agriculture). Austin filed a claim for workers' compensation benefits, which the administrative judge (AJ) granted. The Department of Agriculture and the Mississippi State Agencies Workers' Compensation Trust, the insurance carrier, appealed to the Mississippi Workers' Compensation Commission (Commission). The Commission affirmed the AJ's order finding Austin's claim compensable, and the Department of Agriculture now appeals the Commission's judgment to this Court.

¶ 2. On appeal, the Department of Agriculture raises the following issues: (1) whether the Commission erred by finding that Austin established a causal connection between his work injury and his subsequent treatment and surgery; and (2) whether the Commission erred by denying the Department of Agriculture's motion to correct the record and admit additional evidence. Upon review, we find that the record contains substantial evidence to support the Commission's decision. We therefore affirm.

FACTS

¶ 3. In 2001, Austin slipped off a ladder and fell thirty feet. As a result of the fall, Austin injured his hand and leg and began to experience pain in his lower back. Following the incident, Austin saw Dr. Bruce Senter, who performed spinal fusion surgery on Austin in January 2003. After the fusion, Austin continued to receive treatment from Dr. Senter. In April 2003, Dr. Senter released Austin to “go back to pretty much doing what he wants to do, with the exception of any lifting over [thirty] pounds and no long-term repetitive bending and stooping.”

¶ 4. In October 2003, Austin became employed with the Department of Agriculture and began working at the Mississippi Agriculture and Forestry Museum (Agriculture Museum). In 2007, Austin sought treatment for his back pain from Dr. John Lancon. Dr. Lancon referred Austin to Dr. Gordon Lyons, who gave Austin an injection for his back pain. On September 5, 2009, while working at the Agriculture Museum, Austin picked up a box of tile weighing fifty pounds and experienced pain in his back and legs. Austin reported his injury to Joel Kohler, the Department of Agriculture's payroll officer. On September 21, 2009, Austin again saw Dr. Lyons, who gave Austin injections and referred him to physical therapy. On November 17, 2009, Dr. Lyons reported that Austin had reached maximum medical improvement (MMI) and released Austin to return to work without any restrictions.

¶ 5. Almost a year later, on November 22, 2010, Austin returned to Dr. Lyons after experiencing additional lower back pain. While Dr. Lyons's notes indicated that Austin experienced chronic lumbar pain, the notes made no reference to Austin's September 2009 work-related injury. Dr. Lyons's notes also reflected that Austin had not experienced any new trauma and that Austin wanted the visit placed on his private insurance.

¶ 6. Dr. Lyons referred Austin to Dr. Senter. When Austin visited Dr. Senter in January 2011, Dr. Senter noted that Austin had experienced significant back pain since 2010. On the intake form for the visit, however, Austin failed to reference any work-related injuries and failed to mark the option on the form indicating that he had experienced an “injury at work.” On February 1, 2011, Austin was admitted to the hospital for surgery, and Dr. Senter repaired a non-union on Austin's spine.

¶ 7. Following the surgery, Dr. Senter reported that Austin would not reach MMI until around February 2012. Dr. Senter estimated that Austin's physical impairment rating would be a whole-body impairment of fifteen percent. Dr. Senter instructed Austin to only perform light-duty work that involved no overhead work, stooping, bending, or climbing stairs or ladders. Dr. Senter also gave Austin a twenty-pound lifting restriction. Dr. Senter opined that, based on a reasonable medical probability, Austin's September 2009 work-related injury aggravated Austin's lumbar spine condition to the extent that Austin required surgery.

¶ 8. The Department of Agriculture paid for the treatment provided by Dr. Lyons, and Austin asked that the Department of Agriculture also pay for the treatment provided by Dr. Senter. Austin reported to Kohler that he was receiving treatment from Dr. Senter, but Kohler failed to authorize a workers' compensation claim with Dr. Senter. After receiving no reply to his request for payment of Dr. Senter's fees, Austin filed a claim with his private insurance company. Although Austin's private insurance company paid Dr. Senter, Austin also had to pay several thousand dollars himself.

¶ 9. When Dr. Senter recommended that Austin undergo back surgery, Austin alerted the Department of Agriculture of the recommendation. However, the Department of Agriculture made no offer to pay for the surgery. Austin informed the Department of Agriculture of his work restrictions and continued to work until his surgery. He also sought other employment but was unable to find work that suited his limitations. On October 31, 2011, Austin tendered his letter of resignation to the Agriculture Museum.

¶ 10. After hearing all the parties' evidence, the AJ concluded that Austin sustained a work-related injury on September 5, 2009. The AJ further found that Austin's work-related injury caused the need for Austin's surgery on February 1, 2011. Finding Austin's surgery to be compensable, the AJ ordered the Department of Agriculture and its insurance carrier “to provide medical services and supplies as required by the nature of [Austin's] injury and the process of his recovery.”

¶ 11. The Department of Agriculture appealed the AJ's decision to the Commission. Six months after the hearing before the AJ, the Department of Agriculture also filed a motion to correct the record and to admit additional evidence from Dr. Lyons. In an order entered January 17, 2014, the Commission affirmed the AJ's order. The Commission found that “the overwhelming weight of the factual and medical evidence ... supports a finding that [Austin] sustained a compensable work injury ... on September 5, 2009, and that his work injury ... accelerated the need for [his] lumbar surgical repair on February 1, 2011.” The Commission also denied the Department of Agriculture's motion to correct the record and admit additional evidence. Aggrieved by the Commission's ruling, the Department of Agriculture appeals to this Court.

STANDARD OF REVIEW

¶ 12. In a workers' compensation appeal, this Court's standard of review is limited to a determination of whether substantial evidence supports the Commission's decision. Harrison Cnty. Bd. of Supervisors v. Black, 127 So.3d 272, 274 ( ¶ 7) (Miss.Ct.App.2013). “The Commission sits as the ultimate finder of fact; its findings are subject to normal deferential standards upon review.” Id. (citation omitted). We will only reverse the Commission's rulings where findings of fact are unsupported by substantial evidence, matters of law are clearly erroneous, or the decision was arbitrary and capricious.” Id. (citation omitted). “Though we defer to the Commission's findings of fact, we review the Commission's application of the law de novo.” Clark v. Spherion Corp., 11 So.3d 774, 777 ( ¶ 13) (Miss.Ct.App.2009) (citation and internal quotation marks omitted).

DISCUSSION

I. Whether the Commission erred by finding that Austin established a causal connection between his work injury and his subsequent treatment and surgery.

¶ 13. As the record reflects, no dispute exists as to the compensability of Austin's September 5, 2009 work-related injury. Instead, the parties' disagreement centers on whether the Commission properly determined that Austin's work injury caused a need for the treatment provided by Dr. Lyons in November 2010 and the surgery performed by Dr. Senter in February 2011. The Department of Agriculture asserts that Austin failed to establish causation because the evidence showed that his work injury had been treated and had resolved prior to his November 2010 visit to Dr. Lyons.

¶ 14. Arguing that the Commission's findings lack support in the record and misapplied the relevant caselaw, the Department of Agriculture asks this Court to reverse the Commission's decision. The Commission's order reflects, however, that Austin's September 2009 work-related injury was causally related to, and necessitated the need for, the November 2010 treatment by Dr. Lyons and the February 2011 surgery by Dr. Senter. While Dr. Lyons's patient history and notes contained no reference to Austin's prior work injury, his diagnosis reflected that Austin experienced chronic lumbar pain and suffered no new trauma that could have caused the chronic lumbar pain. As our caselaw acknowledges, [o]nce it is shown that a disability was produced by an injury and that the employee continues to be disabled, the presumption is that the disability continues to be causally related to the injury, and the burden of proof is upon the employer to show that the continuing disability is due to some other intervening cause or pre-existing condition for which he is not responsible.” Marshall Durbin Cos. v. Warren, 633 So.2d 1006, 1009 (Miss.1994) (citation omitted).1

¶ 15. In Rathborne, Hair & Ridgeway Box Co. v. Green, 237 Miss. 588, 594, 115 So.2d 674, 676 (1959), the Mississippi Supreme Court held:

The rule in this State is that when a pre-existing disease or infirmity of an employee is aggravated, lighted up, or accelerated by a work-connected injury, or if the injury combines with the disease or infirmity to produce
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