Westmoreland v. Landmark Furniture, Inc., 1998-WC-01729-COA.

• Decision Date: 23 November 1999
• Docket Number: No. 1998-WC-01729-COA.,1998-WC-01729-COA.
• Citation: 752 So.2d 444
• Parties: David WESTMORELAND, Appellant, v. LANDMARK FURNITURE, INC. and Wausau, Appellees.
• Court: Mississippi Court of Appeals

752 So.2d 444

David WESTMORELAND, Appellant, v. LANDMARK FURNITURE, INC. and Wausau, Appellees.

No. 1998-WC-01729-COA.

Court of Appeals of Mississippi.

November 23, 1999.

William Lowery Sneed, Pontotoc, Attorney for Appellant.

Michael G. Soper, Tupelo, Attorney for Appellees.

BEFORE McMILLIN, C.J., MOORE, AND THOMAS, JJ.

THOMAS, J., for the Court:

¶ 1. This is a workers' compensation case. David Westmoreland appeals the decision of the Pontotoc County Circuit Court affirming the Mississippi Workers' Compensation Commission's denial of temporary total and permanent partial disability benefits for claimant's asserted loss of wage earning capacity. On appeal, Westmoreland raises the following assignments of error

I. WHETHER WESTMORELAND'S INJURY WAS CAUSED BY, CONTRIBUTED TO OR AGGRAVATED BY HIS EMPLOYMENT WITH LANDMARK FURNITURE COMPANY.

II. WHETHER APPORTIONMENT OF THE BENEFITS AWARDED BY THE ADMINISTRATIVE LAW JUDGE WAS PROPER.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. On October 19, 1995, Westmoreland was working for Landmark Furniture Company in Pontotoc, Mississippi. He testified that he began his work day at around 7:00 a.m. and continued to work until around 8:00 a.m., the time of his injury. According to Westmoreland he and a fellow co-worker were moving a piece of furniture from one table to the next when he felt a "pop or a pull" in his back and began to experience pain. He stated that he continued to work, but that when he attempted to move the next piece of furniture to his table, the pain was so great that he could not completely lift the furniture piece. Westmoreland testified that he then went to see Randall Holcomb, the production line supervisor, about his injury. The plant supervisor, Truitt Clayton, was also informed of the situation. Landmark made an appointment for Westmoreland to see Dr. Paul Whiteside at 9:00 a.m. that same morning. A physical examination was performed by Dr. Whiteside, and Westmoreland was excused from work for the remainder of the week. He returned to work the following week but continued to experience pain in his lower back. Westmoreland again informed Holcomb of the situation, and a second appointment with Dr. Whiteside was made. Following his second visit with Dr. Whiteside, Westmoreland was placed in a light duty capacity.

¶ 4. Westmoreland testified that he continued to work as best he could until mid to late December when at such time the pain became so great that he could barely function. After returning to work from the Christmas holidays, Clayton inquired as to Westmoreland's progress, to which he responded that he had a difficult time over the holidays with his back pain. Landmark then made a third doctor's appointment for Westmoreland. This appointment was with Dr. Walter Eckman, a board certified neurosurgeon in Tupelo, Mississippi. Following Dr. Eckman's examination, which consisted of a physical examination and a MRI, Westmoreland was returned to light duty and placed on a physical therapy program by Dr. Eckman. However, Westmoreland became dissatisfied with the requirements of the physical therapy program proscribed by Dr. Eckman and soon thereafter quit the program. He then requested from Landmark that he be allowed to see a physician of his choice. Westmoreland's choice was Dr. Marvin Leventhal, an orthopaedist, with the Campbell Clinic in Pontotoc, Mississippi. Westmoreland was removed from any type of work for a period of two weeks per Dr. Leventhal's orders. After seeing Dr. Leventhal for the second time, Westmoreland was allowed to return to work at Landmark in a light duty capacity, which he did for several months until Westmoreland quit Landmark on his own volition to secure employment as a meat cutter at the Jitney Jungle Supermarket in New Albany, Mississippi.

¶ 5. Westmoreland filed his petition to controvert on February 20, 1996. Following a hearing before an administrative law judge, Westmoreland was granted temporary total benefits in the amount of $252.59 per week commencing October 19, 1995 and payable through August 9, 1996 with appropriate credits for payments heretofore made by the employer and carrier. Permanent partial benefits of $25 per week were also awarded commencing August 9, 1996, for a period of 450 weeks. Landmark appealed to the Full Commission on June 16, 1997. From that appeal, the Full Commission reversed the prior decision of the administrative law judge awarding compensation. The Full Commission dismissed Westmoreland's claim based on what it found to be a claim founded on speculation, surmise, conjecture and the like. In support of its decision, the Full Commission noted that Westmoreland's testimony was often contradicted or not entirely supported by that of his co-workers and that the contradictory and at times incomplete medical histories provided by Westmoreland to the various doctors who treated him gives rise to a less than credible claim. On these findings, Westmoreland's claim was dismissed. Likewise, the circuit court affirmed the decision reached by the Full Commission.

ANALYSIS

I.

WHETHER WESTMORELAND'S INJURY WAS CAUSED BY, CONTRIBUTED TO OR AGGRAVATED BY HIS EMPLOYMENT WITH LANDMARK FURNITURE COMPANY.

¶ 6. Westmoreland appeals the decision of the Full Commission, as affirmed by the Pontotoc County Circuit Court, denying his claim for compensation under Mississippi workers' compensation law. Westmoreland asserts that substantial evidence of a compensable injury was presented before the Full Commission and the circuit court.

¶ 7. Our standard of review in workers' compensation cases mandates that we are limited in scope when reviewing factual issues on appeal from the Commission and are bound by the following:

Under settled precedent, courts may not hear evidence in compensation cases. Rather, their scope of review is limited to a determination of whether or not the decision of the commission is supported by the substantial evidence. If so, the decision of the commission should be upheld. The circuit courts act as intermediate courts of appeal. The Supreme Court, as the circuit courts, acts as a court of review and is prohibited from hearing evidence or otherwise evaluating evidence and determining facts; ... "[W]hile appeals to the Supreme Court are technically from the decision of the Circuit Court, the decision of the commission is that which is actually under review for all practical purposes."

As stated, the substantial evidence rule serves as the basis for appellate review of the commission's order. Indeed, the substantial evidence rule in workers' compensation cases is well established in our law. Substantial evidence, though not easily defined, means something more than a "mere scintilla" of evidence, and that it does not rise to the level of "a preponderance of the evidence." It may be said that it "means such relevant evidence as reasonable minds might accept as adequate to support a conclusion. Substantial evidence means evidence which is substantial, that is, affording a substantial basis of fact from which the fact in issue can be reasonably inferred."

Delta CMI v. Speck, 586 So.2d 768, 772-73 (Miss.1991) (citations omitted).

¶ 8. The Commission sits as the "ultimate finder of facts" in deciding compensation cases; and therefore, "its findings are subject to normal, deferential standards upon review." Natchez Equipment Co., Inc. v. Gibbs, 623 So.2d 270, 273 (Miss.1993). Matters of law are reviewed under the de novo standard of review. Spann v. Wal-Mart Stores, Inc., 700 So.2d 308(1112) (Miss.1997). We will only reverse the Commission's rulings where issues of fact are unsupported by substantial evidence and matters of law are clearly erroneous.

¶ 9. We now turn to the issue at hand: whether Westmoreland did in fact sustain a compensable back injury in the scope and course of his employment at Landmark as he has alleged. In order that we gain a complete understanding of Westmoreland's medical history, we turn to the primordial events which were found by the Full Commission to have had direct bearing on the disposition of Westmoreland's claim.

¶ 10. The medical evidence, as substantiated in part by Westmoreland's own testimony, reveals that in 1987 and 1990, he suffered multiple back injuries while employed by other employers. He recovered from those injuries following brief periods of disability and returned to full time employment. The first injury occurred while he was employed at Claybrook Furniture Company in December of 1987 while he was lifting a sofa. He was treated by Dr. James W. Speck and diagnosed with a "central bulging of disk material at L-4-5 and L-5-S-1." Dr. Speck prescribed limited activity and home rest for approximately two to three weeks. Light activity was prescribed following his return to work prior to returning to full duty. The second injury to Westmoreland's lower back similarly occurred while he was lifting a piece of furniture during his employment with Washington Furniture Company in July of 1990. On this occasion, Westmoreland was treated by Drs. Flavia H. West and Walter Eckman. Westmoreland described this particular injury as a "popping" sound that came from his lower back during the lift. Drs. West and Eckman concluded that he suffered from spondylolisthesis at L-5 on S-1 and a "slight narrowing of the L-4 to L-5 disc space." Conservative treatment for two weeks was prescribed which consisted of light activity and plenty of rest for his back. Dr. Eckman noted improvement upon a follow-up visit one month later and released Westmoreland to return to full duty. Dr. Eckman further advised Westmoreland of the spondylolisthesis and/or the bulging discs at levels L-5 and S-1 of the back and that he would continue to experience intermittent problems with his back and that work which consists of significant lifting or twisting should be avoided.

¶ 11. On September 25, 1995, while carrying a load of firewood into his home, Westmoreland again...