Citation909 So.2d 1209
Decision Date01 February 2005
Docket NumberNo. 2003-WC-02610-COA.,2003-WC-02610-COA.
PartiesUNIVERSITY OF MISSISSIPPI MEDICAL CENTER and Mississippi Institutions of Higher Learning, Self-Insured, Appellants v. David H. SMITH, Appellee.
CourtCourt of Appeals of Mississippi

Joseph T. Wilkins, III, Jackson, attorney for appellants.

John Griffin Jones, Jackson, attorney for appellee.


CHANDLER, J., for the Court.

¶ 1. This workers' compensation appeal requires us to determine whether or not the Workers' Compensation Commission properly applied a rebuttable presumption of no loss of wage earning capacity to bar recovery for the claimant's admittedly work-related injury. The Circuit Court for the First Judicial District of Hinds County held that the Commission misapplied the presumption and reversed the Commission's denial of benefits to David H. Smith. The self-insured employer, University of Mississippi Medical Center and Mississippi Institutions of Higher Learning (UMC), appeals. UMC contends that the circuit court wrongly substituted its own opinion for that of the Commission despite substantial evidence supporting the Commission's decision.

¶ 2. We find the Commission erred by applying the presumption of no loss of wage earning capacity. We further find that Smith showed that he was permanently totally disabled. Therefore, we affirm the decision of the circuit court.


¶ 3. Smith worked as a carpenter for UMC. He sustained an admittedly compensable injury to his neck in 1993 for which he had surgery on November 5, 1996. On January 5, 1999, he filed a petition to controvert. After a hearing on November 1, 1999, the administrative law judge found Smith to be permanently, totally disabled and awarded Smith disability benefits and the cost of medical services and supplies. The Commission reversed that decision.

¶ 4. UMC hired Smith as a carpenter in 1993. Smith testified that he has a high school education and two years' experience in the military. His prior work experience was as a carpenter, millwright, truck driver and liquor store owner. At UMC, Smith repaired and maintained the outside areas of several buildings on the campus in Jackson. Though he was part of a twelve person crew, Smith primarily worked by himself on assigned tasks. He commuted to UMC from his home in Crystal Springs. He was sixty-two years old at the time of the hearing. Smith's stipulated average weekly wage was $404.39

¶ 5. In March 1993, Smith strained his neck while helping another worker carry a two to three hundred pound steel door up a flight of stairs. He immediately reported the injury to his supervisor and went to the employee health department. He began a course of physical therapy lasting for two weeks during which he continued to work. Smith did not improve, and he saw Dr. Robert McGuire, an orthopedic surgeon at UMC, on June 4, 1993. Dr. McGuire's impression was a cervical spondylosis with a C6 radiculopathy. He prescribed traction and an anti-inflammatory. He felt that Smith could continue working, but within the confines of his pain.

¶ 6. Over the next three years, Smith continued to have problems, but his physical condition remained unchanged upon examination. On September 30, 1996, Smith saw Dr. McGuire and reported increased neck pain that had progressed over the previous month. Dr. McGuire found that Smith had developed some neurologic problems and an MRI of the cervical spine revealed stenosis at the C5-6 level with the disc essentially absent. Dr. McGuire performed an anterior diskectomy and innerbody fusion at the C5-6 level on November 5, 1996. During the surgery, Dr. McGuire found the "disc was essentially worn out with a big osteophyte formation causing compression of the nerve itself."

¶ 7. At Smith's request, Dr. McGuire released him to return to work on light duty status on November 18, 1996. On December 16, 1996, Dr. McGuire removed Smith's brace and allowed him to return to full activities as he could tolerate them. Dr. McGuire noted that Smith had good recovery and his strength was essentially back to normal. In his deposition, Dr. McGuire opined that Smith reached maximum medical improvement on December 16, 1996. Smith received temporary total disability benefits from November 4, 1996 to December 29, 1996.

¶ 8. In February 1997, Smith returned to Dr. McGuire and said that he was starting to have some headaches. Dr. McGuire said that, while Smith was doing well from a neurologic standpoint, the headaches were "a little bit of a new pattern." He prescribed a collar, but when that failed to alleviate the headaches, he referred Smith to a neurologist, Dr. Jim Corbett.

¶ 9. Dr. Corbett saw Smith on February 18, 1997. He diagnosed Smith with very rare cervicogenic headaches and placed him on Naprosyn. In a letter to Nancy Sistrunk, a claims specialist with American Federated General Agency, Inc., Dr. Corbett opined that Smith's cervicogenic headaches were related to Smith's workers' compensation injury on January 12, 1996,1 and had either resulted from the injury itself or from the injury's aggravation of a pre-existing condition. Dr. Corbett stated that the headaches were related to Smith's neck injury and its subsequent repair, which damaged the soft tissue structures in the neck and caused pain to radiate into the back of the head.

¶ 10. On June 20, 1997, Smith told Dr. McGuire that his headaches were essentially resolved. On July 24, 1997, Smith returned to Dr. Corbett complaining of dizziness. After testing, Dr. Corbett ruled out vertebrobasilar arterial disease. On August 19, 1997, Smith reported that he had not had a dizzy spell for three to four weeks, but complained that Naprosyn had not helped his headaches and neck pain and that he was taking Ultram instead.

¶ 11. Smith returned to Dr. McGuire complaining of numbness in his hand; Dr. McGuire suspected carpal tunnel patterns. An MRI on September 29, 1997 revealed degenerative changes at the C4-5 level, above the site of the fusion surgery. The MRI showed osteophytes at C4-5 causing severe left neural foramina narrowing, neural foramina narrowing at C5-6, a left uncinate process spur at C6-7 with moderate neural foramina narrowing, and loss of signal in the disc spaces of the entire cervical spine. Dr. McGuire said that the degeneration at C4-5 was probably related to the fusion, which stresses the levels above and below the fusion site. He stated that Smith's fusion surgery and resultant C4-5 degeneration were related to his March 1993 injury to a reasonable degree of medical probability.

¶ 12. Dr. McGuire referred Smith to Dr. William Geissler for his hand condition. Dr. Geissler began investigating the possibility of carpal tunnel syndrome. An electromyelogram did not show nerve compression at the wrist. Dr. Geissler's impression was that Smith's carpal tunnel symptoms resulted from nerve compression at the neck exacerbating slight compression at the wrist, known as a "double crush" phenomenon. Smith's symptoms improved somewhat with a wrist brace, and he continued to work.

¶ 13. At some point, Smith applied for disability retirement with the Public Employees' Retirement System (PERS). Smith testified that his application was prompted by Dr. McGuire's informing him that there was nothing more he could do for his neck and advising him to seek disability retirement. That recommendation does not appear in either the correspondence or the deposition of Dr. McGuire that were in the record before the Commission. However, the record before the Commission did not include Dr. McGuire's complete medical records on Smith and only included three of Dr. McGuire's office notes appearing in the medical records of another physician.

¶ 14. On June 3, 1998, Smith saw Dr. David Collipp for a PERS disability evaluation. In the evaluation, Dr. Collipp stated that Smith's job included lifting and carrying over 100 pounds, overhead work, crawling, bending, and stooping, and that while Smith tolerated the work as best he could to stay employed, Smith was concerned that his work activities would cause increasing damage to his neck over time. Smith reported that he suffered from headaches that initially improved after the surgery but which had slowly returned.

¶ 15. Dr. Collipp stated that Smith exhibited no pain behavior or pain magnification and provided excellent effort throughout the exam. Dr. Collipp observed that Smith had no strength deficits but had diminished reflexes and a decreased range of cervical motion. His impression was that Smith had increasing neck pain secondary to cervical strain. He stated:

All in all this gentleman is presently at work and that would suggest that he is able to tolerate his work. It is notable however that he has difficulty looking up which was absolutely consistent with his surgery. I think that he is probably working to his absolute limits of pain as well as his absolute physical limits, and that he would be best protected by receiving appropriate restrictions. He has explained that restrictions would not be something he would be able to work within at his present job, but I think that for his present underlying condition we should get cogent restrictions regarding his neck and his back. I reminded him to participate well with a functional capacity evaluation. It is my impression that there is going to be a limitation on his overhead work as well as a limitation in terms of his lifting. These limitations may exclude him from his present duty even though he is operating right now just within those limitations. I think that the sporadic nature of some of his duties allow[s] him time to recover from some of them, but if he does these too frequently he could cause some significant damage.

¶ 16. Smith's condition was unchanged upon examination by Dr. McGuire on July 6, 1998. On August 27, 1998, Dr. McGuire assigned Smith an impairment rating of eleven percent to the body as a whole resulting from his...

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