Whittle v. Tango Transp.

Decision Date08 April 2014
Docket NumberNo. 2013–WC–00034–COA.,2013–WC–00034–COA.
Citation168 So.3d 1157
PartiesRuben WHITTLE, Appellant v. TANGO TRANSPORT and Zurich American Insurance Company, Appellees.
CourtMississippi Court of Appeals

James Kenneth Wetzel, Garner James Wetzel, Gulfport, attorneys for appellant.

Phillip W. Jarrell, Walter J. Eades, Gulfport, attorneys for appellees.



GRIFFIS, P.J., for the Court:

¶ 1. Ruben Whittle appeals the Mississippi Workers' Compensation Commission's decision that he suffered no compensable injury to his back as a result of a truck accident. Whittle argues that the evidence was sufficient to meet his burden of proof to establish that he suffered a compensable injury. We find reversible error and remand for further proceedings consistent with this opinion.


¶ 2. Whittle was employed as a truck driver for Tango Transport. On April 17, 2009, Whittle suffered an on-the-job injury when his truck was struck from behind by a dump truck while he was stopped at a railroad crossing.

¶ 3. The accident occurred while Whittle was making an out-of-state delivery. Whittle was unable to report to the emergency room immediately after the accident, because he had to remain out-of-state over the weekend to make the delivery. The delivery location was closed over the weekend.

¶ 4. Whittle returned home and reported to the emergency room of Memorial Hospital in Gulfport, Mississippi, on April 21, 2009. Whittle complained of pain all over his body.

¶ 5. Whittle was referred to Dr. Nyron Marshall, who began to treat him on April 22, 2009. Whittle complained of pain in his knees, stomach, back, elbow, neck, and shoulder. Dr. Marshall treated Whittle for his knee pain, which included a referral to physical therapy. Whittle was released to return to light-duty work on May 4, 2009. After further treatment, Dr. Marshall released Whittle to full duty on May 14, 2009. Dr. Marshall stated that Whittle could work with no restrictions.

¶ 6. Dr. Marshall referred Whittle to Dr. Lance Johansen, an orthopedic surgeon. Dr. Johansen treated Whittle from July 27, 2009, until he released Whittle to full duty on August 28, 2009. Dr. Johansen's treatment focused mostly on Whittle's knees. Dr. Johansen's notes mentioned that Whittle was “doing exercises for his lower back.”

¶ 7. In October 2009, Dr. Johansen referred Whittle for a functional-capacity evaluation. The evaluation report reflected that Whittle complained of pain in his knee, neck, back, and body; had knee problems; had decreased range of motion in his lumbar spine; and endured pain when he bent forward. The therapist placed Whittle in the heavy-work category after his evaluation.

¶ 8. One week later, on October 15, 2009, Whittle went to the Memorial Hospital emergency room and complained of severe back pain. He was initially treated by Dr. Cyril Bethala for congestive heart failure

, renal insufficiency, and uncontrolled hypertension. Whittle was then treated by Dr. Lee Voulters due to his back-pain complaints. Whittle complained that he had back pain since the accident. Dr. Voulters diagnosed Whittle with chronic lumbosacral sprain syndrome and ordered an MRI. The MRI was not performed because Tango and its workers' compensation insurance carrier, Zurich American Insurance Company, did not authorize payment for an MRI.

¶ 9. On December 23, 2009, Whittle filed a petition to controvert. The petition alleged that Whittle sustained a work-related injury to his knees

, arms, back, and neck. In their response, Tango and Zurich admitted Whittle's work-related injury.

¶ 10. On March 1, 2010, Dr. David Collipp performed an independent medical evaluation of Whittle, at the request of Tango and Zurich. Dr. Collipp noted tenderness around the L5–S1 vertebrae in Whittle's back, areas of tightness, and decreased range of motion in Whittle's lower back. Dr. Collipp opined, however, that Whittle's back problems were not causally related to the motor-vehicle accident. Instead, Dr. Collipp opined that the back problems were a result of degenerative changes coupled with Whittle's general physical condition. Dr. Collipp concluded that the October 2009 episode was an acute change that occurred around that time. Dr. Collipp further noted that because Whittle made no ongoing complaints of back pain, or of back pain worsening, there was no gradual progression of any back injury claimed to have been sustained in the accident.

¶ 11. Dr. Robert White, a neurosurgeon, also testified based on his review of Whittle's medical records. Dr. White did not examine Whittle. Dr. White diagnosed Whittle with preexisting cervical and lumbar disc disease with a recurrent lumbar sprain

and a resolved acute cervical sprain. Dr. White opined that Whittle's back condition was not related to the work accident. However, Dr. White testified, “I would have to assume that there was some element of cervical and lumbar sprain originally and acutely after the injury itself.”

¶ 12. After a hearing, the administrative judge issued an order that found that Whittle had met his burden of proof that he sustained a work-related back injury from the April 2009 accident, and that his back injury was causally connected to the accident. The judge based the decision on Whittle's consistent reports of back pain during his various doctor and hospital visits as well as the testimony of Dr. Voulters, who related Whittle's back condition to the accident.

¶ 13. On appeal, the Commission reversed the judge's order. The Commission held that Whittle had failed to meet his burden of proof that his back injury was work-related and therefore compensable. The Commission's decision was based on the fact that several months elapsed between Whittle's initial hospital visit after the accident and when he ultimately sought treatment for his back injury, despite his complaints about his back during that time. The Commission also cited Dr. Collipp's opinion that found that Whittle's back injury was not causally related to his accident.

¶ 14. The decision was timely appealed to the circuit court, which affirmed the Commission's decision. That decision was appealed and assigned to this Court.


¶ 15. This Court employs a substantial-evidence standard of review to resolve a workers' compensation case; however, the standard of review is de novo when the issue is one of law and not of fact. Hugh Dancy Co. v. Mooneyham, 68 So.3d 76, 79 (¶ 6) (Miss.Ct.App.2011) (citation omitted). “Absent an error of law, we must affirm the Commission's decision if there is substantial evidence to support the Commission's decision.” Id. (citing Shelby v. Peavey Elecs. Corp., 724 So.2d 504, 506 (¶ 8) (Miss.Ct.App.1998) ). “In a workers' compensation case, the Commission is the trier and finder of facts.” Id. (citing Radford v. CCA–Delta Corr. Facility, 5 So.3d 1158, 1163 (¶ 20) (Miss.Ct.App.2009) ). If the Commission's order is supported by substantial evidence, this Court is bound by the Commission's determination even if the evidence would convince us otherwise if we were the fact-finder. Id. (citation omitted). “On the other hand, reversal is proper where the Commission has misapprehended the controlling legal principles, as the standard of review in that event is de novo.” Id. (citation omitted).


¶ 16. Whittle argues that the evidence he provided was sufficient to meet his burden of proof, which would entitle him to workers' compensation benefits for his back injury. Hence, Whittle argues that the Commission's decision should be reversed.

¶ 17. The Commission has a duty, as the finder of fact, to evaluate and determine the weight of the evidence. Daniels v. Peco Foods of Miss., Inc., 980 So.2d 360, 365 (¶ 16) (Miss.Ct.App.2008) (citation omitted). “Where there is conflicting medical testimony, the Commission has the responsibility to apply its expertise and determine which evidence is more credible.” Washington v. Woodland Village Nursing Home, 25 So.3d 341, 355 (¶ 33) (Miss.Ct.App.2009) (citation omitted). Because the Commission is the fact-finder and also the judge of witness credibility, appellate courts cannot reweigh the evidence and are thus highly deferential to the Commission's decisions. Short v. Wilson Meat House, LLC, 36 So.3d 1247, 1251 (¶ 23) (Miss.2010). Further, this Court has ruled that “whenever the expert evidence is conflicting, the Court will affirm the Commission['s decision] whether the award is for or against the claimant.” Raytheon Aero. Support Servs. v. Miller, 861 So.2d 330, 336 (¶ 13) (Miss.2003) (citation omitted).

¶ 18. However, “although this Court must defer to the Commission on issues of the weight and credibility to be given to the testimony and evidence, the Commission's ultimate decision must be based on substantial evidence.” Guy v. B.C. Rogers Processors, Inc., 16 So.3d 29, 35 (¶ 24) (Miss.Ct.App.2008) (citation omitted). Further, [w]hen the testimony is undisputed and not so unreasonable as to be unbelievable, taking into account the factual setting of the claim, the claimant's testimony generally ought to be accepted as true.” Id. at 35–36 (¶ 25) (citation and internal punctuation omitted). “Contradiction exists when there is affirmative evidence to the contrary.” Id. at 36 (¶ 25) (citation omitted). Therefore, when the medical testimony is insufficient to provide affirmative evidence that fully contradicts the claimant's testimony, then the claimant has satisfied his or her required burden of proof. Id. at (¶ 26) (citation omitted).

¶ 19. We find that the Commission's decision was not supported by substantial evidence. The Commission ruled:

Based on the evidence as a whole, the Commission finds that Claimant has failed to meet his burden of proof to establish that he sustained a compensable back injury on April 17, 2009. Although the evidence establishes that Claimant complained of back pain among other conditions during the

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