Mosby v. Farm Fresh Catfish Co.

• Decision Date: 06 October 2009
• Docket Number: No. 2008-WC-01428-COA.,2008-WC-01428-COA.
• Citation: 19 So.3d 789
• Parties: McKinley MOSBY, Appellant v. FARM FRESH CATFISH COMPANY and Liberty Mutual Fire Insurance Company, Appellees.
• Court: Mississippi Court of Appeals

19 So.3d 789

McKinley MOSBY, Appellant v. FARM FRESH CATFISH COMPANY and Liberty Mutual Fire Insurance Company, Appellees.

No. 2008-WC-01428-COA.

Court of Appeals of Mississippi.

October 6, 2009.

Gregory W. Harbison, Tupelo, attorney for appellant.

R. Brittain Virden, attorney for appellees.

Before MYERS, P.J., IRVING and BARNES, JJ.

BARNES, J., for the Court.

¶ 1. McKinley Mosby appeals the Sunflower County Circuit Court's denial of additional workers' compensation benefits for his permanent partial disability and subsequent medical treatments. Finding no error, we affirm.

SUMMARY OF FACTS

¶ 2. Mosby was a truck driver for Farm Fresh Catfish Company (Farm Fresh) from 1991 to 1999. On January 14, 1999, Mosby was involved in an accident when his truck slid into a catfish pond; he injured his lower back as a result of the accident. Mosby claims that he was subsequently terminated from this job, as Farm Fresh was unable to provide him with any work within the restrictions and limitations assigned by his treating physicians. However, Farm Fresh argues that Mosby's termination was due to the destruction of company property.¹ Over the next few years, Mosby worked for several companies, but he claims that due to his injury, he was unable to maintain employment. Farm Fresh contradicts Mosby's claims, stating that some of the job terminations were due to job abandonment which was attributed to Mosby's obtaining a better-paying job.

Mosby's History of Medical Treatment

¶ 3. Immediately following the accident, the nurse for Farm Fresh took Mosby to the local medical clinic where he was treated by Dr. Joe Pulliam. Approximately two weeks later, Mosby was treated at Delta Regional Medical Center with similar complaints. Mosby was referred to Dr. Frank Tilton, a neurologist in Greenville, who diagnosed Mosby with ruptured discs. Dr. Tilton referred Mosby to Dr. Rodney Frothingham, a neurosurgeon, also located in Greenville, Mississippi. Mosby was, once again, referred to another neurosurgeon, Dr. Lon Alexander, located in Jackson, Mississippi. Dr. Alexander recommended surgery, but Mosby resisted; so he was subsequently referred to Dr. Michael Steuer for pain management treatments.² Farm Fresh and its insurer, Liberty Mutual Fire Insurance Company (Liberty Mutual), admitted that the accident occurred within the course and scope of Mosby's employment and paid temporary total disability benefits and the above-stated medical costs.

¶ 4. In 2000, Mosby moved to Baldwyn, Mississippi, and soon thereafter, he moved to Booneville, Mississippi. It was at this point that Mosby went outside of the original chain-of-referral and visited Dr. Erik Dukes, who is located in Booneville, Mississippi, for treatment. Dr. Dukes referred Mosby to Dr. George Hammitt, who then referred Mosby to Dr. Andrew Chiou, a neurosurgeon located in Tupelo, Mississippi. Chiou made the same diagnosis as Dr. Alexander. Again, Mosby resisted having surgery. Farm Fresh refused to pay for any medical expenses starting with his treatment by Dr. Dukes.

Procedural History

¶ 5. Mosby filed a petition to controvert on April 5, 1999. Due to a change of Mosby's counsel and numerous other delays, a hearing on the merits before an administrative law judge was not held until February 23, 2005. The administrative law judge issued an order on April 7, 2005, that stated: (1) Mosby was entitled to temporary, total disability benefits of $292.86 for those periods when Mosby was unable to work;³ (2) Farm Fresh was financially responsible for the medical expenses stemming from treatment by Dr. Dukes and his referrals as Mosby had to abandon the chain-of-referral; and (3) Mosby was entitled to permanent disability benefits of $67.30 starting October 28, 1999, continuing for 450 weeks, as he sustained a loss of wage-earning capacity. On April 15, 2005, Farm Fresh filed a petition for review of the order with the Mississippi Workers' Compensation Commission (Commission), followed by a motion to supplement the record. Prior to the matter being considered by the Commission, the administrative law judge conducted a second evidentiary hearing on March 1, 2006. The administrative law judge entered her second order on March 21, 2007, which summarily affirmed her previous findings. Soon thereafter, Farm Fresh filed another petition for review with the Commission. On December 19, 2007, the Commission affirmed the administrative law judge's findings regarding the temporary total disability benefits and the reasonableness and necessity of Mosby's medical treatment. However, the Commission reversed on the issue of the permanent partial disability based on its finding that Mosby failed to prove any permanent loss of wage-earning capacity as he had "managed to work at no less than ten different companies doing the same or similar work as before his injury, and making the same or better wages as before his injury."

¶ 6. Mosby filed a petition for appeal and review with the Sunflower County Circuit Court on January 30, 2008. Farm Fresh had already filed a cross notice of appeal on January 25, 2008, on the issue of payment for Mosby's subsequent medical treatment.⁴ The circuit court, on July 31, 2008, affirmed the Commission's disqualification of Mosby's claim for permanent disability benefits; and it reversed on the issue of Mosby's medical treatment received outside of the chain-of-referral, finding that Farm Fresh was not financially responsible for those expenses. Mosby appealed the circuit court's order on August 8, 2008.

STANDARD OF REVIEW

¶ 7. This Court's review of decisions by the Workers' Compensation Commission is limited, and we will only reverse a Commission's order if it "is not based on substantial evidence, is arbitrary or capricious, or is based on an erroneous application of the law." Goolsby Trucking Co., Inc. v. Alexander, 982 So.2d 1013, 1019(¶ 15) (Miss.Ct.App.2008) (citation omitted). The purpose of our review of the facts on appeal is "to determine whether there is substantial credible evidence which would support the factual determination made by the Commission." Id. at (¶ 16) (quoting Martinez v. Swift Transp., 962 So.2d 746, 750(¶ 16) (Miss.Ct. App.2007)). This Court is bound to accept the findings by the Commission if supported by substantial evidence, even if the evidence "would not be sufficient to convince us were we the fact[-]finders." Id.

I. Whether the circuit court erred in finding that Mosby was not totally disabled.

¶ 8. Mosby claims that, as he suffered a loss of wage-earning capacity, he has established a prima facie case that he is totally disabled. Farm Fresh counters that the wage statements included in the record show that, not only did Mosby not suffer any loss of wage-earning capacity, but he also enjoyed an increase in his wages.

¶ 9. We must first note that no order, either from the administrative law judge, the Commission, or the circuit court, found Mosby to be totally disabled. Rather, Mosby was found to be permanently partially disabled, and it is clear from the evidence presented that Mosby is not totally disabled. In order for a claimant to demonstrate permanent and total disability, he must make a diligent, yet unsuccessful, effort to obtain other gainful employment. Wal-Mart Stores, Inc. v. Patrick, 5 So.3d 1119, 1123-24(¶ 11) (Miss. Ct.App.2008). This Court has also recently clarified the rule on determining whether a claimant is totally disabled finding "that the ability to earn post-injury wages, even significantly diminished post-injury wages, defeats a claim of permanent total disability." Hill v. Mel, Inc., 989 So.2d 969, 972(¶ 14) (Miss.Ct.App.2008). As is evident from the table below, Mosby has been able to obtain employment at numerous jobs following his termination from Farm Fresh.

                Employer Dates of Employment Occupation
                -----------------------------------------------------------------------------------------
                Toler Trucking                       02/99-05/99            Truck driver
                -----------------------------------------------------------------------------------------
                Delta Bus Lines                      05/99-09/99            Bus driver (terminated for
                                                                            job abandonment)
                -----------------------------------------------------------------------------------------
                Deaton, Inc.                         09/99-06/00            Truck driver
                -----------------------------------------------------------------------------------------
                ROCOR International                  06/00-02/01            Truck driver
                -----------------------------------------------------------------------------------------
                Morgan Van Lines                     03/01-01/04            Truck driver
                -----------------------------------------------------------------------------------------
                MST Express, Inc.                    01/04-03/04            Truck driver
                -----------------------------------------------------------------------------------------
                D & A Transportation, Inc.           04/04-08/04            Truck driver
                -----------------------------------------------------------------------------------------
                Nationwide Logistics                 08/04-03/05            Truck driver (terminated for
                                                                            falsification of documents)
                -----------------------------------------------------------------------------------------
                Gillespie Transportation             05/05-06/05            Truck driver
                -----------------------------------------------------------------------------------------
                Riverside Dedicated Logistics        06/05-present (?)      Truck driver
                -----------------------------------------------------------------------------------------
                

¶ 10. As to the issue of permanent partial disability, this Court has found that a decision regarding the "loss of wage-earning capacity [is] `largely factual and [is] to be left largely to the discretion and...