Smiley v. Hercules Concrete Pumping Serv., Inc.
| Decision Date | 11 February 2014 |
| Docket Number | No. 2012–WC–01437–COA.,2012–WC–01437–COA. |
| Citation | 132 So.3d 655 |
| Court | Mississippi Court of Appeals |
| Parties | Shelton SMILEY, Appellant v. HERCULES CONCRETE PUMPING SERVICE, INC. and the Travelers Indemnity Company, Appellees. |
OPINION TEXT STARTS HERE
Christopher Hederi Neyland, Jackson, attorney for appellant.
Bryan Gray Bridges, attorney for appellees.
EN BANC.
ROBERTS, J., for the Court:
¶ 1. The Mississippi Workers' Compensation Commission (Commission) reversed an administrative judge's (AJ) decision that Shelton Smiley was entitled to workers' compensation benefits for an alleged on-the-job injury he suffered while working for Hercules Concrete Plumbing Service Inc. in February 2008. Smiley appealed the Commission's decision to the Noxubee County Circuit Court, and the circuit court affirmed the Commission's decision. Smiley has now appealed and asks this Court to determine whether the circuit court's decision to affirm was supported by substantial evidence and whether its decision was arbitrary or capricious. Finding no error, we affirm.
FACTS
¶ 2. Smiley, an employee of Hercules since July 1998, was working a job in Noxubee County on February 14, 2008, that required him to connect approximately ten-foot sections of pipe through which cement would be poured. Though there is contradictory testimony as to how the injury occurred and the events following, Smiley claims that he injured his lower back while completing the job that day. Smiley claims that he reported the injury to Eli Sanchez, his coworker, to Kenny Barker, the dispatcher at Hercules, and to Paul Shelley, Hercules's president, on the same day as the injury. Barker and Shelley testified that Smiley never informed them that the injury was an on-the-job injury. However, Smiley is adamant that he informed individuals at Hercules several times that it was an on-the-job injury.
¶ 3. Shelley explained that he had asked Smiley multiple times whether the injury was an on-the-job injury, because they would need to fill out some paperwork; however, Smiley never indicated to him that this was necessary and never asked to have the paperwork filled out for the injury. Shelley testified that there was a procedure all employees followed when an on-the-job injury occurred. The employee was to report the injury to Shelley, who would fill out the appropriate paperwork. The employee would then be evaluated and treated at Baptist Occupational Medical Center, located across the street from Hercules. Shelley further testified that Smiley was familiar with this procedure, as he had been injured in the past and had utilized this procedure in seeking treatment for those injuries; however, Smiley did not follow any of this procedure.
¶ 4. According to Smiley, he again informed Shelley that his back was injured and that he would not be able to work. Smiley also attempted to see his family doctor, but could not do so because the doctor was unable to see him that day. It was not until February 18, 2008, that Smiley was able to see a medical professional regarding his back. Smiley stated that he informed the nurse practitioner that he was injured at work and that she ordered that he remain off work and placed him on lifting restrictions of no more than ten pounds. There is no notation on his medical records with the nurse practitioner indicating an on-the-job injury occurred. No other medical records presented indicate an on-the-job injury occurred. Smiley did attend physical therapy six times, but he did not receive any further treatment or evaluation for his injury until the independent medical examination in June 2009.
¶ 5. On June 5, 2009, Smiley was evaluated by Dr. David Collipp with NewSouth NeuroSpine at the request of the insurance carrier. Dr. Collipp's report notes that Smiley's medical records after the February 2008 incident indicate that there was no known injury and “[t]here [was] no documentation of any work injury, or any other injury.” Dr. Collipp further noted that “[f]rom the available information, particularly the documentation from around the time of the injury, it does not appear [Smiley] suffered a work-related injury.” Additionally, Dr. Collipp stated that, hypothetically, if Smiley's injury was work related and was a lumbar strain, Smiley “would have reached maximum medical improvement on or about March 14, 2008[.]” Lastly, Dr. Collipp found that Smiley “has a minimum of medium duty according to his physical examination, with a minimum maximum lift of [fifty] pounds.”
PROCEDURAL HISTORY
¶ 6. On July 10, 2008, Smiley filed his petition to controvert. A hearing was held before the AJ on March 2, 2010, where the AJ heard live testimony from Smiley and reviewed Smiley's medical records, the deposition of Shelley, the deposition of Kevin McCarthy, and phone records. The AJ found that Smiley's testimony as to his injury was credible; therefore, he did suffer a compensable injury. The AJ awarded Smiley temporary total disability benefits from the date of the injury until March 10, 2008, and found that any further determination would require the submission of additional evidence. Additionally, the AJ found Smiley should undergo an MRI to aid in determining “further proposed treatment, maximum medical improvement, disability ratings [,] and permanent restrictions....”
¶ 7. Hercules and its insurance carrier appealed the AJ's decision to the Commission. On October 18, 2010, the Commission reversed the AJ's decision because of several inconsistencies in Smiley's testimony and “the lack of any history of a work injury in the initial medical reports following the date of alleged injury.” In considering all the evidence presented, the Commission ultimately found Shelley's testimony of the events to be more credible than Smiley's. Smiley timely filed his appeal of the Commission's decision to the circuit court. The circuit court affirmed the Commission's decision by order dated April 5, 2012. Still aggrieved, Smiley filed the present appeal.
¶ 8. On appeal, Smiley raises two issues:
I. Did the [Commission] err when it overturned the [AJ] and determined that [Smiley] did not suffer an on[-]the[-]job injury while employed by [Hercules]?
II. Mississippi is a notice pleading state[; therefore] the purpose of pleading in Mississippi is to give notice, not state facts.
STANDARD OF REVIEW
¶ 9. “Our standard of review in actions arising under Workers' Compensation Law is limited to determining whether the Commission erred as a matter of law or made findings of fact contrary to the overwhelming weight of the evidence.” Smith v. Johnston Tombigbee Furniture Mfg. Co., 43 So.3d 1159, 1164 (¶ 15) (Miss.Ct.App.2010) (citing Clements v. Welling Truck Serv. Inc., 739 So.2d 476, 478 (¶ 7) (Miss.Ct.App.1999)). If the Commission's order is not “based on substantial evidence, is arbitrary or capricious, or is based on an erroneous application of the law,” then reversal of its order is appropriate. Id. (citing Weatherspoon v. Croft Metals Inc., 853 So.2d 776, 778 (¶ 6) (Miss.2003)). Additionally, “the Commission, not the administrative judge, is the ultimate fact-finder, and this Court will apply a general deferential standard of review to the Commission's findings and decisions despite the actions of the administrative judge.” Id. at (¶ 17) (quoting Smith v. Jackson Constr. Co., 607 So.2d 1119, 1123–24 (Miss.1992)).
ANALYSIS
¶ 10. Smiley's primary argument is that the Commission erred because the uncorroborated testimony of a claimant “should be accepted by the Commission unless it is inherently improbable, incredible, unreasonable, or shown to be untrustworthy.” Washington v. Woodland Village Nursing Home, 25 So.3d 341, 357 (¶ 40) (Miss.Ct.App.2009) (citing Penrod Drilling Co. v. Etheridge, 487 So.2d 1330, 1333 (Miss.1986)). However, we find that the Commission's decision was based on substantial evidence, and was not arbitrary or capricious or based on an erroneous application of the law. Upon our review of the record, we find that there was substantial evidence to support the Commission's finding that Smiley did not suffer a compensable injury.
¶ 11. The Commission sits as the finder of fact, irrespective of the AJ's findings. Lott v. Hudspeth Ctr., 26 So.3d 1044, 1048 (¶ 12) (Miss.2010) (citing Smith v. Container Gen. Corp., 559 So.2d 1019, 1021 (Miss.1990)). As the finder of fact, the Commission is also charged with determining the credibility of the witnesses and evidence presented. Short v. Wilson Meat House, 36 So.3d 1247, 1251 (¶ 23) (Miss.2010) (citations omitted). When conflicts in credible evidence arise, the Commission is also charged with determining where the preponderance of the evidence lies. Richardson v. Johnson Elec. Auto. Inc., 962 So.2d 146, 152 (¶ 16) (Miss.Ct.App.2007). Additionally, “contradictory or negative testimony concerning the cause of injury may be substantial evidence upon which a claim may be denied.” Langford v. Southland Trucking LLC, 30 So.3d 1266, 1277 (¶ 40) (Miss.Ct.App.2010) (citing Westmoreland v. Landmark Furniture Inc., 752 So.2d 444, 449 (¶ 15) (Miss.Ct.App.1999)).
¶ 12. The Commission reviewed Smiley's testimony given at the hearing before the AJ. Smiley testified that on February 14, 2008, he was working a job for Hercules. His job was to connect pipes that would carry cement from a cement truck to a slab. He testified that he was lifting one of the pipes when he injured his lower back. According to Smiley, he immediately informed Sanchez of his injury and then called several people at Hercules about his injury; specifically, he spoke directly to Shelley. Smiley presented phone records showing he called Shelley's cell phone at the time of the injury, and he claimed it was during that phone call that he informed Shelley he had been injured. He also stated that he spoke with Shelley in person on February 15, 2008, about his injury. Smiley finished the rest of the job responsibilities for that day, but he had to take two BC powders. Smiley also explained that when he...
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