Mabus v. Mueller Indus.
| Decision Date | 23 June 2020 |
| Docket Number | NO. 2019-WC-00983-COA,2019-WC-00983-COA |
| Citation | 310 So.3d 1192 |
| Parties | Barry MABUS, Appellant v. MUELLER INDUSTRIES and Zurich American Insurance Company, Appellees |
| Court | Mississippi Court of Appeals |
BEFORE CARLTON, P.J., GREENLEE AND McCARTY, JJ.
CARLTON, P.J., FOR THE COURT:
¶1. Barry Mabus filed a motion for medical treatment and requested that the Mississippi Workers’ Compensation Commission (Commission) review its prior order denying Mabus permanent-disability and medical-treatment benefits. After a hearing on the matter, the administrative judge (AJ) denied Mabus's motion, and the full Commission affirmed the decision.
¶2. Mabus now appeals from the Commission's order and asserts the following assignments of error: (1) the Commission improperly refused to hear medical evidence and testimony regarding Mabus's injury, attempts to obtain work, and loss of wage earning capacity; (2) the Commission failed to allow Mabus to depose his treating physician; (3) the Commission improperly applied the law of res judicata; and (4) the Commission failed to authorize an independent medical examination (IME).
¶3. After our review, we find no error. We therefore affirm the Commission's decision.
FACTS
¶4. In 2004, while operating a machine in the course of his employment at Mueller Industries, Mabus suffered a back injury. Mabus sought permanent disability benefits and medical-treatment payments from Mueller and its insurance carrier, Zurich American Insurance Company (collectively, Mueller). The Commission denied permanent disability benefits and medical-treatment payments after finding that "Mabus failed to show by a preponderance of the credible evidence that he suffered from a continuous work-related injury and from a permanent loss of wage-earning capacity." Mabus v. Mueller Indus. Inc ., 205 So. 3d 677, 681 (¶11) (Miss. Ct. App. 2016).
¶5. Mabus appealed from the Commission's order, and this Court affirmed. Id . at 686 (¶45). In that opinion, this Court set forth the relevant underlying facts, which we quote at length:
and discectomy on Mabus's L4 and L5 vertebrae. Mabus continued to see Dr. Lovell for follow-up appointments and reported continued back pain. At a July 7, 2005 evaluation, Mabus claimed that he reinjured his back at work, but Dr. Lovell noted he could not confirm that a reinjury occurred.
Dr. Lovell found Mabus reached maximum medical improvement (MMI) on August 11, 2005. At MMI, Dr. Lovell released Mabus for work duties with a seventy-pound weight restriction and an eight percent permanent-partial impairment (PPI) overall. Dr. Lovell treated Mabus five additional times after he reached MMI. Dr. Lovell's assessment remained the same, but he did refer Mabus to Dr. Sam Murrell for a second opinion upon Mabus's request.
Dr. Murrell sporadically treated Mabus from November 21, 2005, until June 5, 2006. Mabus did not return to Dr. Murrell again until July 14, 2008, when Dr. Murrell assessed Mabus with a PPI of thirteen percent and concluded Mabus reached MMI without any further work restrictions.
Mabus returned to Dr. Murrell on August 11, 2010, but Dr. Murrell did not see any change in Mabus's condition. In the interim, Mabus also sought treatment from Dr. Bruce Porter and Evans for pain management. Mabus also went to the emergency room on at least two occasions. Mabus failed to obtain authorization for treatment from Dr. Porter, Evans, and the emergency-room doctors.
Mueller stipulated to the compensability of the injury and paid medical expenses and temporary disability benefits from March until November 2005. Mabus filed a petition to controvert on December 7, 2005, after Mueller suspended the temporary disability payments.
Mueller fired Mabus around January 2006. Mabus applied for a handful of jobs, but did not find employment. At some point in 2006, Mabus started his own business and earned higher wages than he did at Mueller. During this time, however, Mabus sought treatment for continued back and leg pain. By 2009, Mabus closed his business and remained unemployed.
Mabus applied for and received Social Security disability benefits in 2012, but continued to seek permanent-disability and medical-treatment payments from Mueller. On October 7, 2011, Mabus's claim was dismissed for failure to file a complete prehearing statement. Mabus filed the prehearing statement and a motion to reinstate his claim on October 27, 2011. An order reinstated the claim on November 8, 2011.
On March 14, 2013, Mabus filed a motion for recusal of the AJ, who presided over the case beginning December 28, 2011, on the ground of bias or prejudice against Mabus. The AJ denied the motion to recuse on March 20, 2013, and the Commission affirmed the order on April 17, 2013.
¶6. On appeal, this Court affirmed the Commission's decision, finding as follows:
Based on the substantial evidence, Mabus failed to show he suffered from continuous back pain after 2006, and the medical evidence did not support a finding of permanent impairment. Further, Mabus could not show how his post-injury wages were unreliable, or that his later loss of wages resulted from his injury. Therefore, we find the AJ's and the Commission's decisions denying permanent disability benefits were supported by the substantial evidence.
Id . at 686 (¶45). The supreme court denied his petition for writ of certiorari on December 8, 2016. Mabus v. Mueller Indus. Inc. , 205 So. 3d 1081 (Miss. 2016).
¶7. On November 30, 2017, Mabus filed a motion for medical-treatment benefits, alleging that he was in need of medical treatment and that his condition had worsened since the AJ's November 21, 2013 order. Mabus claimed Mueller refused to provide him with medical treatment, and he has therefore been forced to seek and pay for his own medical treatment. Mabus listed the following health-care providers that he claimed to have seen at his own expense: Dr. Don Smith, who referred him for pain-management treatment, and Tim Evans, a nurse practitioner, who provided pain-management treatment. Mabus also alleged that because he suffered a permanent injury, he was entitled to permanent disability benefits.
¶8. Mueller filed a response to Mabus's motion for medical treatment. Mueller also filed a motion to dismiss and a motion for sanctions and attorney's fees. Mueller alleged that Mabus was attempting to re-litigate the same issues that the AJ previously denied and dismissed in its November 21, 2013 order, which the Commission later affirmed—specifically on the issues of the necessity of further medical treatment and entitlement to permanent disability benefits. Mueller therefore argued that the doctrine of res judicata would be applicable in preventing Mabus from trying to re-litigate the same issues. Mueller also asserted that Mabus failed to provide any legal or factual authority to support his motion for medical treatment, and Mueller therefore requested sanctions and attorney's fees from Mabus for having to respond to his motion for medical treatment.
¶9. Mabus then filed a reply to Mueller's response. Mabus also attached an exhibit list with medical documentation to his response. This medical documentation is the same medical documentation the prior AJ did not allow to be introduced into evidence at the August 20, 2013 hearing.
¶10. The AJ set a hearing for June 26, 2018. On June 13, 2018, Mabus forwarded his medical records from his treating physician, Dr. Samia Moizuddin, to Mueller's counsel. On June 18, 2018, Mabus filed three different sets of documents with the Commission: (1) a motion for an independent medical examination (IME), in which Mabus alleged that his counsel had unsuccessfully attempted to contact Mueller's counsel for the purposes of deposing Dr. Moizuddin. (Mabus explained that the AJ needed this current medical evidence to see how Mabus's condition limited him in his ability to obtain and keep employment.); (2) a notice of deposition stating that Mabus intended to take Dr. Moizuddin's on June 25, 2018 in Jasper, Alabama; and (3) Dr. Moizuddin's medical records, which appear to show Mabus's medical treatment with Dr. Moizuddin from January 14, 2015, until August 11, 2017.
¶11. On June 21, 2018,...
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