R.C. Petroleum, Inc. v. Hernandez

Citation555 So.2d 1017
Decision Date10 January 1990
Docket NumberNo. 07-CC-58662,07-CC-58662
PartiesR.C. PETROLEUM, INC. and the Travelers Insurance Company v. Ms. Prudence HERNANDEZ.
CourtUnited States State Supreme Court of Mississippi

Robert J. Arnold, III, Gary K. Jones, Daniel Coker Horton & Bell, Jackson, for appellants.

R.L. Netterville, David C. Bramlette, III, Adams Foreman Truly Smith & Bramlette, Natchez, for appellee.

Before ROY NOBLE LEE, C.J., and ANDERSON and PRATHER, JJ.

PRATHER, Justice, for the Court:

I. FACTUAL BACKGROUND

Prudence Hernandez was injured in an automobile accident while acting within the scope of her employment. On October 24, 1983, she filed a "Motion to Controvert"--seeking recovery from her former employer, R.C. Petroleum, Inc., and its carrier, The Travelers Insurance Company [hereinafter collectively referred to as Petroleum]. Petroleum denied Hernandez's allegation that she sustained any disability or loss of wage-earning capacity.

On August 6, 1985, after three hearings were held on the motion, 1 the Administrative Judge made the following fact-finding:

1. That on or about September 15, 1982, the claimant sustained a compensable injury while performing services in the course of her employment by the employer herein, R.C. Petroleum, Inc., and that the employer received adequate and legally sufficient notice of the claimant's injury in this case;

2. That on or about September 15, 1982, the claimant's average weekly wage was $237.23;

3. That the medical evidence in this case is insufficient to establish the duration of the claimant's temporary disability, if any, or the date the claimant reached maximum medical recovery and/or the nature, extent and degree of the claimant's permanent disability or permanent impairment, if any, and, therefore, that the claimant's claim for temporary compensation benefits and permanent compensation benefits is hereby denied; and

4. That, however, the defendants are liable for the medical, hospital, and related services and supplies resulting from treatment of the claimant by Drs. Herrington, Perez, Dewberry, Duncan, Mack, and DeCamp, and this Administrative Judge hereby orders the defendants to honor and pay for the medical services of a competent neurosurgeon and/or orthopedic surgeon and a general practice or family physician located near the claimant's residence in the State of California and this Administrative Judge specifically finds that until such time as extensive, complicated and expensive diagnostic tests, such as myelograms, etc. are performed on the claimant, it is impossible for any person to determine if the claimant has sustained any permanent impairment or permanent disability as a result of the September 15, 1982 injury.

Based on its fact-finding, which was substantiated through a lengthy written evaluation of the evidence, the Administrative Judge ordered Petroleum to pay for and provide all "medical, hospital, and related services and supplies required to treat and finally ascertain the nature of [the] injury, if any," and Hernandez's claim for temporary and permanent compensation benefits was "dismissed with prejudice."

This decision was appealed and cross-appealed. On October 31, 1985, after a review hearing was held, the Mississippi Workers' Compensation Commission [hereinafter Commission] determined that the judge's decision contains no "error of fact or law," and affirmed.

The Commission's decision was appealed and cross-appealed. The Adams County Circuit Court reversed and remanded. Specifically, the circuit court determined: (1) "that the medical evidence ... is uncontradicted, undisputed, and therefore, should be taken as true"; (2) "that [Hernandez] had no trouble before this accident in doing her work, that she was a good employee [and t]hat since the accident, [her] condition has worsened to the point that [her] mobility and ability to function has deteriorated substantially"; (3) "that [Hernandez] established by the testimony that [she] was totally disabled from the date she left the company until the date of the hearing"; (4) "that [Hernandez's] maximum medical recovery must be ascertained before the medical experts can determine and ascertain if there is permanent disability and, if so, how much, and if there is loss of wage earning capacity, how much"; (5) "that ... the ... Commission [shall make a] determination of [Petroleum's] liability for medical, hospital and related services, diagnostic tests, medical supplies and procedures for past treatment ... together with all such expenses required for treatment until such time as [Hernandez] reaches maximum medical recovery"; and (6) "[t]hat [Petroleum] shall pay unto [Hernandez] all sums due for temporary total disability ... plus all costs of this action."

On August 28, 1987, Petroleum appealed the circuit court's decision and, on January 26, 1988, presented the following issues for disposition by this Court:

1. The finding of fact by the Administrative Judge and the Full Commission that there is insufficient medical testimony to support a claim for temporary or total disability is supported by substantial credible evidence and, therefore, the Circuit Court was in error in reversing the Commission's order. Furthermore, the denial of the claim for disability benefits is supported by the preponderance of the credible evidence and the Circuit Court was in error in reversing the denial of benefits; and

2. The Administrative Judge and Full Commission erred in compelling the employer and carrier to pay the medical bills of Dr. Jose Francisco Magana Perez of Tijuana, Mexico as to treatment by Dr. Perez is neither authorized under the terms of the Act nor was the treatment reasonable as required by the Act.

II. ANALYSIS

This analysis comprises three sections. Applicable workers' compensation law is noted in the initial section. The next section deals with the first issue presented on appeal (i.e., whether reversal of the Commission's decision was an error). The last section deals with the second issue (i.e., whether treatment by the Mexican physician was authorized or reasonable).

A. Workers' Compensation Law: A General Overview

In a workers' compensation action in which a disability is alleged, the claimant bears the burden to prove by a "clear preponderance" each element of the claim. See Bracey v. Packard Elec. Div., Gen. Motors Co., 476 So.2d 28, 29 (Miss.1985) (Commission's "inartfully-drawn" statement, that claimant was required to "prove her claim by a fair preponderance of the evidence and to a legal certainty," "simply restates the requirement that a recovery must be based upon reasonable probabilities and not mere possibilities"); El Patio Motor Court, Inc. v. Long's Dependents, 242 Miss. 294, 134 So.2d 437 (1961); see also Narkeeta, Inc. v. McCoy, 247 Miss. 65, 153 So.2d 798 (Miss.1963) (claimant cannot leave any questions which may be answered through speculation only). These elements include: (1) an injury, (2) occurrence within the scope of the claimant's employment, (3) a disability, (4) causal relationship between the injury and disability. See Potts v. Lowery, 242 Miss. 300, 134 So.2d 474 (Miss.1961); see also American Potash & Chemical Corp. v. Rea, 228 So.2d 867 (Miss.1969) (claimant must establish extent of disability); Wiggins v. Knox Glass, Inc., 219 So.2d 154 (Miss.1969) (question of degree and duration of disability is one of fact).

Circumstantial evidence may be used to establish the elements. L.B. Priester & Son, Inc. v. Bynum's Dependents, 247 Miss. 664, 157 So.2d 399 (1963). However, medical testimony is generally necessary to secure an award for any degree of disability. Davis v. Scotch Plywood Co. of Miss., 505 So.2d 1192 (Miss.1987) (burden of proof is not often met through the claimant's testimony alone); see also Penrod Drilling Co. v. Etheridge, 487 So.2d 1330 (Miss.1986) (Medical testimony does not go to liability; rather, it goes to the extent of the disability.). Medical testimony need not actually prove disability; it may merely be supportive. Marshall Durbin, Inc. v. Hall, 490 So.2d 877 (Miss.1986); Delta Drilling Co. v. Cannette, 489 So.2d 1378 (Miss.1986); Hall of Miss., Inc. v. Green, 467 So.2d 935 (Miss.1985); see also MISS.CODE ANN. Sec. 71-3-3(i) (1972 & Supp.1988). Lay testimony may be presented as proof supplemental to medical testimony. Medart Lockers, Inc. v. Yarbrough, 251 Miss. 124, 168 So.2d 660 (1964). The probative value of any witness' testimony is for the fact-finder to determine. Johnson v. Gulfport Laundry & Cleaning Co., 249 Miss. 11, 162 So.2d 859 (1964); see, e.g., McManus v. Southern United Ice Co., 243 Miss. 576, 138 So.2d 899 (1962) (case in which Supreme Court upheld a finding of 100% loss of use of hand on basis of lay testimony even though medical testimony indicated only a 20% loss).

In workers' compensation cases, the Commission is the ultimate fact-finder. Olen Burrage Trucking Co. v. Chandler, 475 So.2d 437 (Miss.1985); Valley Dry Goods Co. v. Odom, 244 Miss. 125, 141 So.2d 254 (1962). Thus, the Commission is empowered to accept or reject the Administrative Judge's findings. Day-Brite Lighting Div., Emerson Elec. Co. v. Cummings, 419 So.2d 211 (Miss.1982).

The circuit court is the intermediate appellate court in an appeal of the Commission's fact-finding. Bynum's Dependents, 247 Miss. at 664, 157 So.2d at 399; see also Sonford Prods. Corp. v. Freels, 495 So.2d 468 (Miss.1986) (to avoid unnecessary expense and delay, Supreme Court may grant an appeal from Commission interlocutory order); Ingalls Shipbuilding Corp. v. Neuman, 322 F.Supp. 1229 (S.D.Miss.1970), aff'd, 448 F.2d 773 (5th Cir.1971) (issues presented to circuit court for disposition must have been raised before Commission or they will be deemed waived); Sawyer v. Head, 510 So.2d 472 (Miss.1987). The court may review questions of law or fact. Roberts v. Jr. Food Mart, 308 So.2d 232 (Miss.1975); MISS.CODE ANN. Sec. 71-3-51 (1972); but see Sam Jones Casing Crews v. Skipper's...

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