White v. Mississippi Dept. of Corrections

Decision Date21 July 2009
Docket NumberNo. 2008-WC-01309-COA.,2008-WC-01309-COA.
PartiesJudy WHITE, Appellant, v. MISSISSIPPI DEPARTMENT OF CORRECTIONS, Appellee.
CourtMississippi Court of Appeals

Gilson Davis Peterson, attorney for appellant.

Cassandra B. Walter, Ridgeland, attorney for appellee.

EN BANC.

LEE, P.J., for the Court.

PROCEDURAL HISTORY

¶ 1. On November 21, 2005, Judy White filed a petition to controvert with the Mississippi Workers' Compensation Commission (Commission) alleging that she suffered a work-related injury to her lower back, specifically a herniated disc, on March 22, 2005. White stated that when she sat down on the toilet, she slipped and fell against the back of the toilet, resulting in the claimed injury. At the time of her injury, White was working as a correctional officer with the Mississippi Department of Corrections (MDOC) at its facility in Parchman, Mississippi.

¶ 2. After a hearing on the matter, the administrative law judge (ALJ) determined that White's injury arose out of her employment with the MDOC. The ALJ awarded White permanent total disability benefits of $349.18 per week for 450 weeks, penalties and interest at the legal rate, and any medical services needed for her recovery. The MDOC appealed to the Commission. The Commission reversed the ALJ's decision, finding that although White's injury may have occurred during the course of her employment, it did not arise out of her employment. White appealed to the Sunflower County Circuit Court, and the trial court affirmed the Commission's decision to deny benefits. White now appeals, asserting that the trial court erred in affirming the decision of the Commission to deny benefits.

FACTS

¶ 3. On March 22, 2005, White arrived at work, signed in, and spoke with some co-workers. White then went to the bathroom in the security office. The bathroom was used by both men and women, and it contained a single toilet. White testified that when she sat down on the toilet, her right foot slipped; she hit the back of the toilet; and she sat down hard on the seat. White immediately felt pain and when she stood up, pain "ripped" down her right leg. According to White, the toilet in that particular bathroom often leaked water on the floor.

¶ 4. Hattie Berry, a corrections officer, was on duty that morning. Officer Berry testified that she spoke with White prior to her injury, and White seemed fine. Officer Berry later saw White limping from the bathroom. Officer Berry testified that White "could barely, barely make it. By the time she got to me she couldn't even stand up on her own. I had to literally hold her to support her and she was just crying hysterically." Officer Berry stated that White said she had hit her back on the toilet. After observing White, Officer Berry called her supervisor, Lieutenant Rebecca Blount, and asked for assistance. Lt. Blount arrived at the scene approximately five to ten minutes after the call from Officer Berry.

¶ 5. Lt. Blount testified that when she arrived, White was leaning against a wall, crying, and repeating, "My leg is killing me." Officer Berry was rubbing White's leg. Lt. Blount offered to transport White to the hospital, but White wanted to see her own doctor. Lt. Blount notified her supervisor that White was sick, and she was taking White to seek medical help. At that moment White's daughter arrived and decided to take White for medical treatment. Lt. Blount testified that she practically had to carry White to her daughter's car. At the time Lt. Blount filled out a supervisor's accident report, she was unaware White had slipped and fallen in the bathroom.

¶ 6. White's daughter took White to her chiropractor's office in Batesville. Dr. Don Barnett, White's chiropractor, examined White and suspected she had a ruptured disc. Dr. Barnett's note describing White's visit stated that White told him she "tryed [sic] to get off of comode [sic] and pain sta[r]ted." Dr. Barnett noted that White "was in severe pain[;] she could hardly walk." Later that day White went to the emergency room at Baptist Memorial Hospital in Oxford. White filled out an admissions form and marked "No" to the question asking whether the injury was work related. White testified that she was in so much pain that she could not remember what she told the nurses.

¶ 7. The emergency room physician referred White to a neurosurgeon, Dr. Thomas Windham. Dr. Windham testified that White reported, "getting up in the bathroom at work and [having] right hip and leg pain with numbness." Dr. Windham indicated that White suffered an "acute lumbar disc rupture." Dr. Windham also stated that White's prior back problems, namely degenerative disc disease and osteoarthritis, did not cause the disc rupture. At Dr. Windham's office, White filled out a patient-intake form, and she marked "no" to the question about whether her injury was a workers' compensation case. White testified that she did not know her injury was considered a workers' compensation case. White had filed two prior workers' compensation claims, one in 1996 and the other in 2000. Both injuries resulted in back pain, but White was able to return to full-duty work.

¶ 8. White had surgery to repair a herniated disc in April 2005. After her surgery, Dr. Windham advised her to apply for disability benefits. During the first week of June 2005, White went to Parchman to apply for disability. White discussed her case with Karen Ware, who was responsible for assisting employees when applying for retirement. White informed Ware of her circumstances, including the injury she received on March 22, 2005. Ware informed White that her injury might be compensable, and she advised White to see Jay Philley, who administered work-related claims for Parchman employees.

¶ 9. While meeting with Philley, White was shown Lt. Blount's incident report prepared in March 2005. White informed Philley that the report was not accurate, and she was advised to prepare a report of the incident. On June 13, 2005, White completed an incident report that stated her foot slipped; her back hit the toilet tank; she fell hard on the seat; and she experienced a "ripping" pain when she got up from the toilet. At some time in early to mid June 2005, Officer Berry visited White to pay her respects following the death of White's mother. Officer Berry stated that White told her she was instructed to fill out a report because her back injury might have been work related. Officer Berry, not at the request of White, then decided to fill out her own report stating that after the accident, White informed her that she had slipped and fallen on the toilet and hit her back. Officer Berry stated that she was so upset about White's injury that she inadvertently forgot to tell Lt. Blount how White's injury occurred. Officer Berry said that "[m]y ultimate concern, at the time, was to try and get [O]fficer White some type of assistance because it was apparent she was in a lot of pain." Officer Berry testified that immediately after White left with her daughter, she had to run to her post to perform part of her job duties and did not have the opportunity to discuss the accident with Lt. Blount.

¶ 10. Lt. Blount testified that she was informed in June 2005 that White's injury was the result of a slip and fall. Lt. Blount stated that her supervisor ordered her to do a follow-up incident report containing the new information from White.

STANDARD OF REVIEW

¶ 11. The standard of review in workers' compensation cases is well established. The decision of the Commission will be reversed only if it is not supported by substantial evidence, is arbitrary or capricious, or is based on an erroneous application of the law. Weatherspoon v. Croft Metals, Inc., 853 So.2d 776, 778(¶ 6) (Miss.2003) (citing Smith v. Jackson Constr. Co., 607 So.2d 1119, 1124 (Miss. 1992)). If the Commission's decision and findings of fact are "supported by substantial evidence, then we are bound by them" even if we would have been convinced otherwise. Spann v. Wal-Mart Stores, Inc., 700 So.2d 308, 311 (¶ 12) (Miss.1997) (citing Fought v. Stuart C. Irby Co., 523 So.2d 314, 317 (Miss.1988)). We will exercise de novo review on matters of law. KLLM, Inc. v. Fowler, 589 So.2d 670, 675 (Miss. 1991).

DISCUSSION

¶ 12. White's sole issue on appeal is whether the Commission erred in finding that her injury did not arise out of her employment. Mississippi's workers' compensation statutes compensate injuries "arising out of and in the course of employment without regard to fault which results from an untoward event or events, if contributed to or aggravated or accelerated by the employment in a significant manner." Miss.Code Ann. § 71-3-3(b) (Rev.2000). The term "arising out of employment" simply means there is a causal connection between the employment and the injury. Singley v. Smith, 844 So.2d 448, 453(¶ 20) (Miss.2003). One is injured in the course of employment when an injury results from activity actuated partly by a duty to serve the employer or reasonably incident to the employment. Id.

¶ 13. Our supreme court has held that a personal-comfort activity of an employee should be compensable if it is reasonably incident to the employment, although not a necessity of it. Collums v. Caledonia Mfg. Co., 237 Miss. 607, 611, 115 So.2d 672, 673 (1959). What is reasonably incidental depends both on the practices permitted in the particular workplace by the employer and on the general customs of the employment environment. Id. Examples of those personal-comfort activities that are reasonably incident to the employment include: (1) brushing teeth, (2) drinking water, (3) going to the bathroom, (4) smoking a cigarette, and (5) so forth. John R. Bradley & Linda R. Thompson, Mississippi Workers' Compensation § 4:34 at 4-51 (Thompson-West 2006).

¶ 14. The ALJ determined that White was engaged in a personal-comfort activity and that the...

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