Richard McMillian v. Delphi Packard
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2003-WC-01199-COA
RICHARD MCMILLIAN
APPELLANT
v.
DELPHI PACKARD ELECTRIC SYSTEMS,
DIVISION GENERAL MOTORS CORPORATION, A
SELF INSURER
DATE OF TRIAL COURT JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEYS FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
CERTIORARI FILED:
MANDATE ISSUED:
APPELLEE
5/6/2003
HON. MIKE SMITH
LINCOLN COUNTY CIRCUIT COURT
WILLIAM MICHAEL KULICK
VIRGINIA S. GAUTIER
ANDREW D. SWEAT
CIVIL - WORKERS' COMPENSATION
AFFIRMED DECISION OF THE FULL
COMMISSION.
AFFIRMED - 03/16/2004
BEFORE SOUTHWICK, P.J., LEE AND CHANDLER, JJ.
LEE, J., FOR THE COURT:
PROCEDURAL HISTORY
¶1.
This is a workers' compensation case. Richard McMillian, the claimant, filed a petition to
controvert with the Mississippi Workers' Compensation Commission on February 3, 1999, alleging that
he injured his knees when he slipped and fell at work in September 1998. McMillian alleged that he had
some period of temporary disability and that any permanency or loss of wage earning capacity was
unknown at that time. Delphi Packard Electric Systems responded on March 1, 1999, denying that
McMillian was entitled to any period of temporary disability benefits, any period of permanent disability
benefits, and that McMillian suffered any loss of wage earning capacity as a result of the work related
injury.
¶2.
Hearings were held before the administrative law judge on July 25, 2001, and December 18, 2001.
In his order dated April 19, 2002, the judge found that McMillian suffered a compensable injury to both
knees when he fell at work in September 1998. The judge determined that McMillian was temporarily and
totally disabled from June 17, 1999, through September 17, 1999, and that Delphi was responsible for
compensation benefits for that period. Delphi was also ordered to pay the reasonable medical services and
supplies incurred by McMillian as a result of the fall. The judge also held that McMillian had a 3%
permanent partial medical impairment to each lower extremity as a result of his injury and further
determined that McMillian failed to prove he was entitled to an award of permanent disability benefits in
excess of the scheduled member impairment ratings.
¶3.
McMillian appealed this decision to the Full Commission and Delphi also appealed arguing errors
in the administrative law judge's order. On July 25, 2002, the Commission affirmed the administrative law
judge's decision and adjusted the errors in the original decision. The errors consisted of a calculation
mistake in the weekly rate of permanent partial disability benefits and the number of weeks the benefits
were to be paid. McMillian then appealed this decision to the Lincoln County Circuit Court, which
affirmed the decision of the Commission on May 8, 2003, finding that there was nothing arbitrary and
capricious in the decision, that it was supported by substantial evidence, and that there was not prejudicial
error of law in its application.
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¶4.
Aggrieved, McMillian now perfects his appeal to this Court asserting that the administrative law
judge erred in applying the apportionment doctrine which resulted in an erroneous award of benefits.
FACTS
¶5.
McMillian was hired in March 1995, by General Motors (which later became Delphi) as a part-
time machine operator, a job which involved running wires and making terminals in the cutter department.
On September 6, 1998, McMillian was walking to his work station when he slipped and fell on the recently
mopped floor. McMillian claimed that he injured both of his knees as a result of the fall. McMillian
continued working and, four months later, on December 14, 1998, he obtained full-time employment status
and received an increase in hourly pay.
¶6.
McMillian sought medical treatment for his fall on September 14, 1998, from his personal
physician, Dr. Kyle Bateman, who was also Delphi's company doctor. McMillian told Dr. Bateman that
he slipped at work and landed on his right knee and either strained or twisted his left knee. Dr. Bateman
diagnosed McMillian with a strained right knee and provided medical treatment to him through October
1998. Dr. Bateman did not take McMillian off work, but he did recommend light duty work. It was also
Dr. Bateman's opinion that McMillian's condition did not improve because McMillian failed to follow the
treatment recommendations and failed to lose weight. McMillian weighed about 500 pounds at the time
of the accident. Dr. William Dudley also provided treatment to McMillian and found that he was able to
work, releasing him to return to work without restrictions on October 8, 1998. Dr. James Sikes, an
orthopedist, noted, in a letter to Dr. Bateman dated October 14, 1998, that McMillian's "overlying
pathology is his weight." In a letter dated September 17, 1999, Dr. Peter Cole stated that McMillian's
knee problems were "exacerbated and perpetuated by his morbid obesity. . . ."
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¶7.
Delphi transferred McMillian to the re-op or containment area where he inspected parts and
received a higher hourly rate. The containment area job was a self-paced position allowing the employee
to work within any physical restrictions set forth by his physician. McMillian remained at Delphi until June
17, 1999, when he voluntarily left his employment.
¶8.
The administrative law judge ordered McMillian to submit to an independent medical examination
on September 12, 2000, by Dr. Howard Katz. After obtaining McMillian's medical history and reviewing
his medical records, Dr. Katz determined that McMillian had reached maximum medical improvement on
September 17, 1999. Dr. Katz noted that "the patient's knee problems were initially caused by a slip and
fall injury at work but at this time, are perpetuated and caused by his obesity and the way he has to walk
because of his obesity." Dr. Katz further stated that "all of the patient's current symptoms are related to
his obesity." Dr. Katz found that McMillian should be limited to light duty work, stating that "the patient's
restrictions are related to his obesity, his restrictive lung disease, and his knee pain. A very small portion
of the patient's current knee problems are related to a September 6, 1998, fall." Lastly, Dr. Katz found
that McMillian had chronic bursitis in his knees and rated him 3% impaired to each lower extremity.
DISCUSSION
I.
DID THE ADMINISTRATIVE LAW JUDGE ERR IN APPLYING THE
APPORTIONMENT DOCTRINE, WHICH RESULTED IN AN ERRONEOUS AWARD OF
BENEFITS?
¶9.
In this issue, McMillian claims that the judge applied the apportionment doctrine and, as a result,
erroneously awarded benefits. McMillian contends that only pre-existing occupational disabilities
necessitate the duty to apportion and that his pre-existing condition, namely his obesity, did not prevent him
from performing his occupational duties. At the outset, we note our standard of review in workers'
compensation cases. If supported by substantial evidence, this Court will affirm the findings and order of
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the Commission. Vance v. Twin River Homes, Inc., 641 So. 2d 1176, 1180 (Miss. 1994). "This Court
will reverse an order of the Workers' Compensation Commission only where such order is clearly
erroneous and contrary to the overwhelming weight of the evidence." Mitchell Buick, Pontiac & Equip.
Co. v. Cash, 592 So. 2d 978, 980 (Miss. 1991). If the Commission's findings are supported by
substantial evidence, appellate courts are bound by the Commission's findings, even if the evidence would
persuade this Court to find otherwise, if it were the fact finder. Hedge v. Leggett & Platt, Inc., 641 So.
2d 9, 12 (Miss. 1994).
¶10.
The apportionment doctrine is found in Mississippi Code Annotated Section 71-3-7 (Rev. 2000),
which states in pertinent part:
Where a preexisting physical handicap, disease, or lesion is shown by medical findings to
be a material contributing factor in the results following injury, the compensation which. .
. would be payable shall be reduced by that proportion which such preexisting physical
handicap, disease, or lesion contributed to the production of the results following the injury.
In Stuart's, Inc. v. Brown, 543 So. 2d 649, 654 (Miss. 1989), the supreme court found that only "preexisting occupational disabilities generate a duty to apportion." However, in the present case, neither party
raised the issue of apportionment nor was there any evidence presented to prove that McMillian had a preexisting disability which caused him to be occupationally disabled prior to his injury at work. The
administrative law judge did not address or contemplate apportionment in his order and, therefore, we must
presume that the Commission also found that the facts did not warrant an application of the apportionment
statute.
¶11.
In the judge's order, which was accepted by the Commission and the circuit court, he found that
none of McMillian's present problems were the result of his injury at work. The judge found that
McMillian's injury was temporary and therefore awarded him temporary benefits. The judge relied upon
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expert medical testimony in determining that McMillian had reached maximum medical improvement on
September 17, 1999. Although McMillian claims he was permanently disabled, the judge stated that
McMillian had failed to prove that he was entitled to permanent disability benefits beyond the 3%
impairment ratings assigned to each knee. As this Court can only reverse where the Commission's order
is clearly erroneous and contrary to the overwhelming weight of the evidence, we fail to rule so here. We
find that there was ample evidence for the Commission to affirm the administrative law judge's order; thus,
this issue is without merit.
¶12. THE JUDGMENT OF THE LINCOLN COUNTY CIRCUIT COURT IS AFFIRMED.
COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.
McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, IRVING,
MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR.
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