Hardin's Bakery v. Taylor, 91-CC-0246

• Citation: 631 So.2d 201
• Decision Date: 27 January 1994
• Docket Number: No. 91-CC-0246,91-CC-0246
• Parties: HARDIN'S BAKERY and Pacific Employers Insurance Company v. Louis G. TAYLOR.
• Court: United States State Supreme Court of Mississippi

Page 201

631 So.2d 201

HARDIN'S BAKERY and Pacific Employers Insurance Company v. Louis G. TAYLOR.

No. 91-CC-0246.

Supreme Court of Mississippi.

Jan. 27, 1994.

Ronald L. Roberts, Mitchell McNutt Threadgill Smith & Sams, Columbus, for appellant.

Hal H.H. McClanahan, Lipscomb Geeslin & McClanahan, Columbus, for appellee.

Before DAN M. LEE, P.J., and SULLIVAN and PITTMAN, JJ.

PITTMAN, Justice, for the Court:

FACTS AND PROCEDURAL HISTORY

Louis G. Taylor (hereinafter "Taylor") was employed by Hardin's Bakery. Taylor worked in the shipping department and had been employed by Hardin's Bakery for approximately eighteen years. On June 29, 1986, Taylor, in an on-the-job accident, injured his back while unloading bread trays.

Prior to the June 29, 1986 on-the-job accident, Taylor injured his back in a non-work related incident in January 1983. As a result of that injury, Dr. William C. Sanders excised a ruptured disc at the L-5 level of Taylor's back. Dr. Sanders discharged Taylor on June 24, 1983. Taylor testified that he returned to work without restrictions and performed all aspects of his job which required lifting, bending, stooping, and carrying heavy loads.

Taylor returned to Dr. Sanders for the first time since his 1983 back surgery on April 14, 1986. At this visit Dr. Sanders noted that Taylor was experiencing nerve root irritation as a result of the first surgery and the pre-existing disc herniation. Because of Taylor's continuing back problems, Dr. Sanders put him on Tandearil, an anti-inflammatory drug, on April 14, 1986. Furthermore, because of this pre-existing back condition Taylor missed work from April 14, 1986 until April 22, 1986. Continuing to have further back problems, Taylor visited Dr. Sanders again on May 13, 1986 and May 28, 1986. Taylor again visited Dr. Sanders on June 16, 1986, complaining of back pain the first six to eight hours after waking up. All of these visits for medical treatment related to Taylor's pre-existing condition. However, with the exception of the work missed in April 1986, Taylor returned to work between these office visits and resumed full employment.

As stated earlier, Taylor was involved in an on-the-job accident on June 29, 1986 while unloading bread trays. Taylor was hospitalized by Dr. Sanders on July 2, 1986, and was discharged on August 5, 1986. Taylor was treated conservatively and no surgery was performed. Taylor reached maximum medical recovery on January 7, 1987, and was released by Dr. Sanders on that date. However, Taylor testified that he could lift only 25 pounds, couldn't sit long or drive long, and still took medication.

When Taylor attempted to return to work, he was told that Hardin's Columbus operation had been closed. However, Hardin's informed Taylor that there may be a position available for him in Meridian, Mississippi. Bobby L. Snyder, Hardin's personnel manager, testified that he informed Taylor of several job openings in Meridian, Mississippi. First, there was the position of truck loader which did involve some lifting, but paid $6.89 per hour (Taylor made $6.30 per hour in Columbus). Second, there was a packaging job which involved no lifting and paid a minimum of $5.75 per hour. Third, there was a job in the maintenance department that involved no heavy lifting and also paid a minimum of $5.75 per hour. Lastly, there were jobs in the production area which involved monitoring and regulating oven controls. These jobs also paid a minimum of $5.75 per hour. Snyder testified that Taylor stated he was not interested in these jobs. On cross-examination Snyder stated that no specific On February 23, 1989, Taylor pleaded guilty of touching a child for lustful purposes in the Circuit Court of Lowndes County. The judge sentenced Taylor to a term of eight years in the custody of the Mississippi Department of Corrections. Taylor testified that he had been incarcerated since July 7, 1988, and therefore did not know whether or not he was still employed with Pinkerton.

job offer was made to Taylor. Taylor subsequently obtained a job with the Pinkerton Agency as a security guard earning $3.50 per hour. Taylor testified that he sought other employment but was only able to find employment with Pinkerton.

The deposition of Dr. William C. Sanders, an orthopedic surgeon in Columbus, Mississippi, was introduced into evidence. Dr. Sanders testified that Taylor was predisposed to having back problems related to his pre-existing back injury of 1983. He also stated that the pre-existing condition was a material contributing factor in the current disability. However, Dr. Sanders acknowledged that the first injury did not affect Taylor's ability to perform all of his duties as called for by his job. Following the work-related injury in 1986, Taylor could not do the work that he was required to do at Hardin's. On January 7, 1987 Dr. Sanders released Taylor as having reached maximum medical improvement. Dr. Sanders assigned Taylor a twenty percent (20%) overall permanent partial disability to the body as a whole, with ten percent (10%) pre-existing as a result of the 1983 surgery.

Dr. Moses C. Jones, Jr., a neurosurgeon in Tuscaloosa, Alabama, also examined Taylor following the work-related accident in June 1986. Dr. Jones' deposition was introduced into evidence. He stated that he saw Taylor on February 19, 1987, and after performing an examination assigned to claimant a ten (10%) percent permanent partial disability related to the 1983 surgery, but no disability as a result of the June 29, 1986, injury. Dr. Jones further stated that he thought Taylor was basically recovered from whatever had happened to him on June 29, 1986, and that he could find no evidence of any disability from the examination other than the 1983 episode.

This case was first heard by Administrative Law Judge Tulane E. Posey, Jr. The Administrative Law Judge determined that Taylor: (1) was temporarily and totally disabled from June 29, 1986, to January 7, 1987, as the direct result of his accidental injury; (2) had a loss of wage earning capacity of $26.75 as a result of a 10% permanent partial disability arising out of the June 29, 1986, accident; (3) that he had a 10% permanent partial disability resulting from the previous injury of January, 1983, but that condition was not a material contributing factor in the injury of June 29, 1986; and (4) was placed in jail on July 7, 1988, as a result of a criminal charge, and therefore was not available to work or seek employment in the open job market.

The Administrative Judge ordered that Hardin's Bakery, and its carrier, Pacific Employers Insurance Company, pay compensation benefits as follows: (1) pay for, furnish and provide Taylor all reasonable and necessary medical expenses incurred due to his injury of June 29, 1986; (2) pay to Taylor temporary total disability benefits at a rate of $133.00 per week from June 29, 1986 until January 7, 1987; (3) pay to Taylor permanent partial benefits at a rate of $25.00 per week from January 7, 1987, until Taylor was incarcerated on or about July 7, 1988. In other words, Taylor's benefits ceased on the date of incarceration.

Taylor filed a petition to review the findings of the Administrative Judge and Hardin's Bakery filed a cross-petition for review of the decision by the Full Commission. On appeal the Full Commission affirmed in part and reversed in part and held that:

(1) the Employer and Carrier were to furnish and provide to Taylor all reasonable and necessary medical expenses and supplies incurred due to his injury on June 29, 1986, for such period as the nature of his injury or the process of his recovery may require;

(2) the Employer and Carrier pay the Claimant temporary total disability benefits at the regular $133.00 per week from June 29, 1986, until January 7, 1987, with proper credit of time the Claimant worked during this period (3) since Taylor did in fact perform the substantial acts of his employment following the 1983 injury until the disabling injury of June 29, 1986, that apportionment under the authority of Stuarts, Inc. v. Brown, 543 So.2d 649 (Miss.1989), did not apply, thus amending the Order of the Administrative Judge to reflect that Taylor sustained twenty percent (20%) permanent partial disability of his body as a whole;

(4) Taylor was entitled to $85.01 per week for permanent partial disability benefits from his date of maximum medical recovery on January 7, 1987, continued for 450 weeks with proper credit being given for any such payment already made;

(5) Taylor was entitled to receive the permanent partial disability benefits while incarcerated, since there was no statutory or regulatory authority by which the Mississippi Workers' Compensation Commission could deny such benefits.

From this Order of the Commission of September 25, 1990, the Employer/Carrier perfected an appeal to the Circuit Court of Lowndes County, Mississippi. On February 15, 1991, the Circuit Court of Lowndes County affirmed the decision of the Commission in all respects. Subsequently the Employer/Carrier perfected an appeal to this Court by Notice of Appeal dated March 12, 1991.

ASSIGNMENT OF ERRORS

Hardin's Bakery and Pacific Employers Insurance Company assert that the Full Commission's decision was not supported by substantial evidence and therefore the Circuit Court erred in affirming the decision. The Employer/Carrier assign the following as errors:

I. (A).

WHETHER THE FULL COMMISSION ERRED IN DETERMINING THAT TAYLOR SUFFERED A PERMANENT PARTIAL DISABILITY AND RESULTING LOSS OF WAGE EARNING CAPACITY AS A RESULT OF THE WORK-RELATED INJURY.

I.(B).

ASSUMING, ARGUENDO, TAYLOR SUFFERED ANY DISABILITY WHATSOEVER ARISING OUT OF THE ACCIDENT OF JUNE 29, 1986, WHETHER THE FULL COMMISSION ERRED IN FAILING TO APPORTION THE CLAIMANT'S RECOVERY BASED ON THE 1983 INJURY.

II. WHETHER THE FULL COMMISSION ERRED IN FINDING THAT THE CLAIMANT WAS ENTITLED TO RECEIVE PERMANENT PARTIAL DISABILITY...