SMITH v. JOHNSTON TOMBIGBEE FURNITURE Mfg. Co.

• Decision Date: 16 September 2010
• Docket Number: No. 2009-WC-00381-COA.,2009-WC-00381-COA.
• Citation: 43 So.3d 1159
• Parties: Alonzo SMITH, Appellant v. JOHNSTON TOMBIGBEE FURNITURE MANUFACTURING COMPANY and Bridgefield Casualty Insurance Company, Appellees.
• Court: Mississippi Court of Appeals

43 So.3d 1159

Alonzo SMITH, Appellant v. JOHNSTON TOMBIGBEE FURNITURE MANUFACTURING COMPANY and Bridgefield Casualty Insurance Company, Appellees.

No. 2009-WC-00381-COA.

Court of Appeals of Mississippi.

March 23, 2010.

Rehearing Denied July 20, 2010.

Certiorari Denied September 16, 2010.

COPYRIGHT MATERIAL OMITTED.

COPYRIGHT MATERIAL OMITTED.

John Hunter Stevens, Mark L. Pearson, Jackson, attorneys for appellant.

Dennis W. Voge, Tupelo, attorney for appellees.

EN BANC.

MAXWELL, J., for the Court:

¶ 1. Alonzo Smith suffered an on-the-job injury while employed by Johnston Tombigbee Furniture Manufacturing Company ("Johnston Tombigbee"). Johnston Tombigbee and its insurance carrier, Bridgefield Casualty Insurance Company ("Bridgefield"), admitted compensability, but disputed Smith's claims as to the extent of his disability. The administrative law judge (ALJ) found Smith permanently and totally disabled. The Workers' Compensation Commission ("Commission") affirmed the ALJ's finding of compensability, but reversed her award of disability benefits. The Commission amended the ALJ's order to reflect a thirty-percent (30%) permanent partial disability award. On appeal, the Lowndes County Circuit Court affirmed the Commission's decision.

¶ 2. Employing our limited standard of review, we are unable to say the Commission erred as a matter of law or acted in an arbitrary and capricious manner. Therefore, we affirm.

FACTS

I. Employment History

¶ 3. Smith was an employee of Johnston Tombigbee in Columbus, Mississippi, for about thirty-five years. Smith spent many of his years there as a machine operator. This position mainly involved operating heavy equipment and lifting boards onto a panel saw to make bedroom suites. Smith eventually became an assistant supervisor in 1976. However, he returned to his former duties as a machine operator in 1994, which he performed for the remainder of his employment at Johnston Tombigbee. According to Smith, this change of position was due to company lay-offs.

II. Injury and Medical Treatment

¶ 4. On June 26, 2003, Smith fell while pushing a load of boards onto a press, and suffered an injury to his lower back. It is undisputed that he had no pre-existing problems with his back. Smith continued to work for Johnston Tombigbee until he went to the emergency room of Baptist Memorial Hospital in Columbus a couple of weeks after his work accident. While at Baptist Hospital, Smith received diagnostic tests, and a physician there referred him to Dr. David Chang with Columbus Neurosurgery for further treatment.

¶ 5. At first, Dr. Chang treated Smith with medication and directed that he attend physical therapy sessions. After this conservative treatment did not significantly relieve Smith's pain, Dr. Chang performed back surgery (a right L4-5 lumbar discectomy) on Smith in January 2004. Smith testified that he began to experience problems with numbness in his right leg shortly after the back surgery. In Dr. Chang's notes, he indicated that Smith showed signs of right foot drop, but Dr. Chang was unable to explain these symptoms. Following Smith's complaints about his leg, Dr. Chang referred Smith to Dr. Art Leis of Jackson, Mississippi, to conduct nerve studies.

¶ 6. Dr. Leis found Smith had slight focal atrophy in his right leg, but believed Smith's complaints of diminished sensation and weakness in his leg were largely nonphysiologic. Dr. Leis observed: "Apparent non-physiologic weakness and sensory loss influence the neurological examination and confound interpretation and future management." He also opined that these same non-physiologic complaints suggested "possible malingering or secondary gain that may influence future management."

¶ 7. Dr. Chang treated Smith for about one-and-a-half years. He then released Smith on October 28, 2004, finding that Smith had reached maximum medical improvement (MMI).¹ On this date, Dr. Chang assigned to Smith a ten-percent (10%) impairment to the whole body, and did not assign any work restrictions.²

¶ 8. After being released by Dr. Chang, Smith sought pain-management treatment from orthopedic surgeon Dr. James T. Barnett, Jr. of Tuscaloosa, Alabama. Dr. Barnett apparently prescribed a cane, leg brace, back brace, and special shoes for Smith. He also prescribed Smith to take 800 milligrams of Neurotin three times per day. The ALJ found Smith was responsible for paying the medical bills from the services of Dr. Barnett. The Commission affirmed this decision, which Smith does not challenge.

¶ 9. On November 17, 2005, Dr. Rahul Vohra of Jackson, Mississippi, examined Smith at Bridgefield's request. This was the only time Smith ever saw Dr. Vohra. According to Dr. Vohra's report and deposition testimony, he could find no objective explanation for Smith's complaints of weakness. He also found no objective explanation to support Smith's claims about the severity of his symptoms. Although Dr. Vohra found that Smith had the presence of mild lumbar paraspinal spasms, and thought that it was reasonable for Smith to be prescribed medication for his subjective pain complaints, Dr. Vohra did not believe Smith needed any other further treatment. Dr. Vohra did not believe Smith showed any significant signs of atrophy or foot drop. Dr. Vohra also found no medical need for Smith to have a back brace or foot brace. Dr. Vohra further observed that Smith exhibited pain amplification behavior, a non-organic symptom. According to Dr. Vohra's deposition, there were only two explanations for the inconsistency between Smith's story and the medical evidence: Either Smith had a psychological disorder, or he was intentionally misrepresenting his symptoms.³ Dr. Vohra assigned Smith a five-percent (5%) impairment to the body as a whole, and released him without any work restrictions.

III. Job Search Efforts

¶ 10. Smith offered an exhibit showing his purported job-search efforts. Therein, Smith recorded the date he allegedly inquired about potential work; the name of the businesses; their addresses; and whether he applied for work, or the businesses were not hiring. According to Smith's list, he searched for work at 135 places of employment. The list indicates that Smith looked for work at fifteen locations during each of nine different months from August 2006 to August 2007. According to Smith, the vast majority of the businesses were not hiring. Smith claimed he followed up with some of these businesses to see if a position had become available. However, Smith claimed none of these inquiries resulted in job offers.

¶ 11. Smith's documented search efforts did not commence until nearly two years after he reached MMI. The parties disagree over the reason for this fact. Johnston Tombigbee maintains Smith did not reasonably search for jobs before this time. Smith contends he diligently searched for work but did not document his efforts until well after reaching MMI.

¶ 12. Smith concedes that he never returned to his employer after the date of MMI to inquire about employment opportunities. According to Smith, he was told that there was no light-duty work at Johnston Tombigbee available. The only other evidence in the record supporting the unavailability of work at Johnston Tombigbee was produced in anticipation of litigation, where Johnston Furniture stated in an interrogatory response that it was unable to provide "light duty" work. It is undisputed Smith did not reapply or otherwise inquire about work at Johnston Tombigbee after reaching MMI.

¶ 13. Johnston Tombigbee retained vocational expert Dennis Stewart to assist Smith in finding employment. Stewart conducted two labor market surveys. Based on his research, Stewart testified there were various jobs available that Smith was capable of performing. Stewart testified that each potential employer was contacted to ensure that employment was available. The record does not indicate that Smith ever contacted any of these potential employers. However, Stewart admitted on cross-examination that some of the jobs he identified might involve some lifting. In addition, Stewart admitted that he did not learn Smith had experience as a supervisor until after compiling his report. Thus, Smith's management-level experience was not factored into his findings. Furthermore, Stewart admitted he did not attempt to find work for Smith until over two years after Smith had reached MMI. Finally, Stewart never met personally with Smith. The parties disagree over why the two never met in person. Johnston Tombigbee alleges Smith failed to fully cooperate with its vocational expert. Smith claims he was willing to meet with Stewart, but only with his attorney present.

PROCEDURAL HISTORY

¶ 14. On March 16, 2005, Smith filed a petition to controvert with the Workers' Compensation Commission. After conducting a hearing, the ALJ found Smith had suffered a permanent total disability, and ordered Johnston Tombigbee and Bridgefield to provide Smith compensation benefits for a period of 450 weeks. The Commission, however, disagreed. It found Smith had failed to prove by a preponderance of the evidence he had suffered a permanent total disability. Although the Commission affirmed the ALJ's finding of compensability, it reversed and amended the ALJ's award of disability benefits to reflect a thirty-percent (30%) permanent partial disability award for a period of 450 weeks. The Commission later amended its own order to correct a mathematical calculation in its original order. On appeal, the circuit court deferred to the Commission in its role as fact-finder, and affirmed its decision.

STANDARD OF REVIEW

¶ 15. 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. Clements v. Welling Truck Serv., Inc., 739 So.2d 476, 478 (¶ 7) (Miss.Ct.App.1999) ...