Smith v. Jackson Const. Co.

• Decision Date: 12 August 1992
• Docket Number: No. 90-CC-0145,90-CC-0145
• Citation: 607 So.2d 1119
• Parties: Wilson SMITH v. JACKSON CONSTRUCTION COMPANY and Fireman's Fund Insurance Company.
• Court: Mississippi Supreme Court

Page 1119

607 So.2d 1119

Wilson SMITH v. JACKSON CONSTRUCTION COMPANY and Fireman's Fund Insurance Company.

No. 90-CC-0145.

Supreme Court of Mississippi.

Aug. 12, 1992.

Charlie Baglan, Charlie Baglan & Associates, Batesville, for appellant.

Lindsey C. Meador, Meador & Crump, Cleveland, for appellees.

En Banc.

SULLIVAN, Justice, for the court:

The Circuit Court of Coahoma County, Mississippi, reversed the Order of the Mississippi Workers' Compensation Commission (Commission) which had granted benefits to Wilson Smith and reinstated the order of the Administrative Judge, who had found that Smith suffered no disability as a result of an injury he received to the lateral portion of his right leg while performing the duties of his employment for the Jackson Construction Company on July 30, 1985.

Smith appeals to this Court and assigns three errors:

1. Whether substantial, credible evidence supported the Full Commission's finding that Claimant Smith's injury to his right leg July 30, 1985, resulted in ongoing medical problems. ¹

2. Whether the Full Commission erred in failing to find that Claimant Smith sustained a thirty percent permanent partial disability to his right lower extremity.

3. Whether the Full Commission erred by failing to grant penalties and interest to Claimant Smith.

Smith was 31 years old at the end of July, 1985, when a jackhammer fell and hit his leg. The evidence is contradictory as to whether this resulted in one or two wounds to his leg.

On July 31, 1985, Smith saw Dr. Stone in Batesville. Dr. Stone observed an infected penetrating wound an inch or two above Smith's right ankle, cleaned and bandaged it, and gave Smith antibiotics. Dr. Stone saw no need for Smith to take any time off work.

Smith saw Dr. Stone thirty to thirty-five times during the following three months for cleaning, redressing, and antibiotic treatment of the infected wound. During this period the wound had frequent drainage and some cellulitis had developed.

Smith believed he was not able to work because his leg was swollen and draining and he had difficulty getting his shoes on. He missed one or two days of work each week after his injury until September 10, 1985, when he was terminated.

On November 5, 1985, Dr. Stone noted that the ulcer had a "good scab and was healing." On November 19, Dr. Stone wrote that the ulcer had completely healed. Smith states that Dr. Stone did not even look at the wound on that visit. Although the wound continued to drain from November through December 1985, and Smith did not believe he was well, he did not seek additional medical treatment because he could not afford it. In January of 1986, Smith went to the health department for treatment, but the pediatrician on duty would not look at the wound.

Finally, on July 14, 1986, Smith saw Dr. Smoot. Dr. Smoot examined Smith and found that Smith had two wounds on his lower right leg, one healed and one not. The unhealed wound was a deep ulceration over the distal tibia or shin area with severe swelling up to mid-thigh and cellulitis for several inches around the scar.

Smith was hospitalized for five days and diagnosed as having a stasis ulceration and cellulitis as well as a probable blood clot or thrombosis in his right leg. A bone scan indicated that he could have developed osteomyelitis or an infection of the bone on his right tibia or shin bone.

On July 18, Smith was transferred to what is now the Baptist Memorial Medical Center in Oxford for treatment by Dr. Moore, an orthopedic surgeon. Moore observed two wounds on the lower right leg: an anterior wound that was draining over his right tibia and a lateral healed wound. Dr. Moore performed a surgical irrigation, debridement, and skin graft on the unhealed wound. The pathology report showed that Smith had chronic osteomyelitis, an infection of the bone. Smith remained at the hospital until August 11.

After August 11, Smith returned to the care of Dr. Smoot in Batesville. He continued to have problems with his right lower leg and on September 29, 1986, he was hospitalized through October 13 to treat the wound, which was now clearly infected.

In April, 1987, Smith was again hospitalized, this time with a complete obstruction to the deep venous system of his right leg, which was most likely secondary to thrombus formation.

In May, a venogram showed no obstruction, but did show some unusual filling of the superficial venous system within the calf. Smith's lab work also showed some abnormalities indicative of increased infection or an inflammatory process. Suspecting a reoccurrence of Smith's osteomyelitis, Dr. Smoot performed a bone scan and referred Smith back to Dr. Moore.

The last time that Dr. Smoot saw Smith before the deposition of July 14, 1987, was on July 3. At that time the medical treatment was ongoing, and Smoot said Smith would be on coumadin, a blood thinner medication, for at least six months. Dr. Smoot additionally believed that Smith could have a subsequent thrombosis or a reactivation of his osteomyelitis.

In the deposition Dr. Smoot testified that with respect to the venous problems in his right leg, Smith reached maximum medical recovery on July 3, 1987. Applying the 1984 American Medical Association Guides to the Evaluation of Permanent Impairment (2d ed. 1984), Dr. Smoot believed that the venous problem caused Smith a permanent medical impairment of 15 percent of the body as a whole or a 30 percent permanent partial impairment to his leg. Smoot not only believed that Smith was temporarily totally disabled from the time he first saw Smith until he reached maximum medical recovery, but that Smith was also probably temporarily totally disabled from the time of his injury until he saw Dr. Smoot. Dr. Smoot further testified that Smith's condition would cause him work limitations because standing in one position for five or ten minutes would be unhealthy and he would have to be able to sit down and elevate his leg if it began to hurt or swell.

Dr. Moore did not believe the osteomyelitis or Smith's venous problems would cause Smith any significant permanent impairment. But, Dr. Moore admitted that he had not treated Smith's venous problems and was not familiar with the AMA Guidelines for rating impairments of persons with venous problems.

I.

DID SUBSTANTIAL, CREDIBLE EVIDENCE SUPPORT THE FULL

COMMISSION'S FINDING THAT CLAIMANT SMITH'S INJURY

TO HIS RIGHT LEG JULY 30, 1985, RESULTED

IN ONGOING MEDICAL PROBLEMS?

When Smith sought treatment from Smoot and Moore in July 1986, he undeniably had two wounds, a healed anterior wound a few inches above the ankle bone and an infected lateral wound of the right shin. The dispositive issue here is whether Smith received two wounds, as he claims, when he was injured on July 30, 1985. Dr. Stone, Smith's attending physician, says over the three months he treated Smith he only saw one wound, which was on the lateral or outer portion of the right leg. Dr. Stone denies that Smith had the wound which was later treated by Dr. Smoot. Smith, his brother, his sister, and a co-worker say there were two wounds.

Eddie Dogan, a previous employee at Jackson Construction, saw Smith after the accident with a bandage on his lower right leg. The bandage was bloody up on the shin bone and around the sides of Smith's leg in the general area where Smith now has a horseshoe-shaped scar.

Both Drs. Moore and Smoot observed two injuries on Smith's right lower leg. Neither could testify as to the cause of the wounds other than what Smith had told them: that he sustained two wounds when a jackhammer penetrated his leg. If Smith only had a healed lateral wound in November 1985, then Dr. Moore could give no opinion why he would have an anterior wound in July 1986.

Dr. Moore did state that though he thought it unlikely, Smith could have had a lateral wound when he was treated by Dr. Stone, and subsequent to the treatment developed the anterior wound because of a ceding effect from the lateral wound. Dr. Moore believed that the anterior wound would still have been evident sometime during the first two or three months. He then qualified his statement by saying, "Now I really want to stay away from probabilities in this. But in ... when a leg is traumatized, the most likely possibility is that this wound was substantially contributive [sic] to by an earlier trauma. But it's not something that I can say definitely and [make] substantially firm statements on."

When the Administrative Judge denied Smith compensation benefits, the basis for his decision was that Dr. Stone did not observe an open wound at any time during the course of three months of treatment and Dr. Moore testified by deposition that the second wound would have been apparent during Dr. Stone's treatment. Also, the Administrative Judge found it "beyond the realm of credibility that the claimant could have an infected draining wound on his right leg which went unattended from November 19, 1985, through July 14, 1986, a period of over 7 months."

The Full Commission reversed the Order of the Administrative Judge finding that Smith's ongoing medical problems were causally related to the jackhammer injury on July 30, 1985. It is worthy of note that the Commission found that Dr. Stone's testimony for three months of treatment to Smith consisted of "seven index cards with extremely brief notations handwritten by Dr. Stone" and that Dr. Stone had no written record at all to support the detail of his testimony or his recollection of the location of Smith's wound.

The Circuit Court then reversed the Full Commission's order stating that "... the Administrative Judge was in a better position to judge the credibility of the witnesses." The Circuit Court, noting that it could not reverse if substantial evidence supported the Commission's findings, stated the following:

However, in determining the "substantial evidence" question, it is recognized that evidence supporting the conclusion of the...