Delores Lee v. Singing River Hospital
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2004-WC-00708-COA
DELORES LEE
APPELLANT
v
SINGING RIVER HOSPITAL, SELF INSURED
DATE OF 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:
MANDATE ISSUED:
APPELLEE
3/23/2004
HON. KATHY KING JACKSON
JACKSON COUNTY CIRCUIT COURT
GEORGE S. SHADDOCK
GINA BARDWELL TOMPKINS
MICHAEL J. McELHANEY, JR.
CIVIL - WORKERS COMPENSATION
AFFIRMED THE WORKERS’ COMPENSATION
COMMISSION’S DENIAL OF PERMANENT
DISABILITY BENEFITS
AFFIRMED-05/03/2005
BEFORE LEE, P.J., GRIFFIS AND ISHEE, JJ.
ISHEE, J., FOR THE COURT:
¶1.
Claimant Delores Lee appeals the decision of the Jackson County Circuit Court affirming the
decision of the Workers’ Compensation Commission denying her permanent disability benefits. Finding no
error on appeal, we affirm.
FACTS
¶2.
At the time of her injury on or about May 25, 1998, Delores Lee was employed as an x-ray
technician at the Singing River Hospital. While on duty, Lee was called to x-ray a patient with a portable
x-ray machine. While attempting to position the patient, Lee strained her back. Lee sat down on a curb
outside the emergency room door and found that she was unable to get back up. Lee obtained a physical
examination and treatment for her injury, and returned to work on or about July 21, 1998.
¶3.
After her return to work, Lee was to work in light duty positions four days each week. She was
assigned by her supervisor to run the darkroom which required her to transport oxygen bottles and IV
poles as well as x-ray films. The claimant worked four hour days until March 1999, when her daily work
load was increased to six hours. At all times after her return to work, she was paid as if she had worked
an eight-hour day.
¶4.
On August 4, 1998, Lee, complaining of additional pain in her lower back, consulted Dr. Charles
Winters, an orthopedic surgeon in Ocean Springs. Lee told Dr. Winters that she had trouble walking and
had constant lower back pain, numbness over the sacral area, and radiating pain down her left leg to her
big toe. At various times during this period, Lee would return to her work after some improvement, only
to leave again when her pain became acute. At all times, Singing River Hospital paid both her workers’
compensation benefits and her medical expenses.
¶5.
Dr. Winters treated Lee until May 18, 1999, when he refused to see her again after viewing a
surveillance videotape provided by her employer. The tape involved images of Lee pushing a cart of
groceries around local grocery stores, as well as images of Lee loading and rearranging large grocery bags
within her Chevrolet Blazer with apparent ease. In fact, the images showed her repeatedly bending and
twisting as she loaded the bags, some of which appeared to be twenty pound bags of dry dog food. Lee
also appeared to walk normally, and slid quickly and easily into the driver’s seat.
¶6.
The film also showed Lee, on May 17, 1999, assisting her husband in the unloading of a large
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fiberglass shower stall from the back of a pickup truck. At one point she literally jumped from the bed of
the pickup truck to the ground. While her employer claimed at trial that the stall weighed 170 pounds, Lee
claimed that the stall probably weighed 100 pounds, and informed an examining physician that it weighed
twenty-five pounds. At any rate, the circuit court judge noted that there was no doubt that the shower stall
was heavy and cumbersome to move.
¶7.
After unloading the stall, Lee commenced to drive a riding lawn mower. She twisted backwards
in her seat as she backed the mower down a loading ramp. Lee then commenced to embark on a visibly
bumpy and jolting ride. At one point Lee managed to climb aboard the mower by kicking one leg over
the mower steering wheel. Once, while seated on the mower, Lee bent over to the ground to pick up a
piece of trash with her left hand. She was also filmed throwing brush out of the way and pushing and
rocking the mower in an effort to extract one wheel of the mower from a rut in the ground.
¶8.
On June 4, 1999, Lee was called to a meeting with Nebo Carter, the Director of Human Resources
at Singing River Hospital, and Tommy Crawford, the Director of the Radiology Department, and Lee’s
supervisor. At this meeting, Lee was shown the surveillance videotape for which she had no explanation.
Lee was then terminated from her employment.
¶9.
After her release by Dr. Winters, Lee continued to seek treatment with a variety of physicians. Lee
continued treatment for her back injury, and on November 18, 1999, her then treating physician, Dr. Terry
Smith performed a fusion on Lee’s L4/5 discs in her lower back. On November 10, 2000, Lee filed for
long term disability benefits under the Workers’ Compensation Act. Administrative Judge Linda A.
Thompson held a full hearing in Pascagoula on March 26, 2002. In her decision on Lee’s claims, the
administrative judge found that Lee was correctly deemed temporarily disabled from her May 25, 1998
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work-related accident, and properly paid disability and medical benefits by Singing River Hospital.
However, Lee’s claim for long term disability benefits was denied as not being related to the May 1998
accident. Lee timely requested a review of the decision by the Full Commission. Judge Thompson’s
decision was affirmed by the Commission after review.
¶10.
Lee appealed the decision of the Commission of the Circuit Court of Jackson County. The
judgment was affirmed by the circuit court’s order of March 24, 2004. Lee now asserts the following error
on appeal: (1) whether the administrative judge, the Full Commission and the circuit court judge erred in
their reliance upon the various videotapes of Lee as dispositive of her permanent physical condition.
ISSUE AND ANALYSIS
I.
¶11.
Whetherthe administrative judge, the full commission and the circuit court
judge erred in their reliance upon the various videotapes of Lee as
dispositive of her permanent physical condition.
Lee asserts on appeal that the videotape entered into evidence was not sufficient for the purpose
of accurately portraying Lee’s day to day physical state, and that the tape caused volumes of important
medical evidence to be ignored. On appeal, if there is substantial evidence to support the Commission,
absent an error of law, this Court must affirm. However, where the Commission has misapprehended the
controlling legal principles, we will review de novo. Smith v. Jackson Constr. Co., 607 So.2d 1119, 1125
(Miss. 1992). In short, this Court will reverse only where a Commission order is clearly erroneous and
contrary to the weight of the credible evidence, and will overturn a Commission decision for an error of law
or an unsupportable finding of fact. Weatherspoon v. Croft Metals, Inc., 853 So.2d 776, 778 (¶ 6)
(Miss. 2003).
¶12.
After review of the relevant medical evidence, it is impossible to say that the symptoms and
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complaints Lee related to her physicians were the consequence of the injury she sustained on May 25,
1998. It is clear that all relevant evidence was examined in great detail at each stage of this claim. It is also
clear, and Lee has admitted as much, that she suffered a pre-existing injury due to a fall on Horn Island in
1992. Furthermore, Lee suffers from estopenia of the bones and chronic thinning of her vertebra. The xray report taken after Lee was admitted to Singing River Hospital on May 26, 1998 pursuant to her injury
the previous day noted a mild disc bulge at the L4-5 level but noted that it appeared to represent chronic
changes also shown on film dated February 1, 1993. Lee’s degenerative disc problems and instability at
the L4/5 level were noted by numerous physicians.
¶13.
The videotape of Lee’s daily activities only goes to show that any injury Lee sustained was
obviously not as symptomatic and painful as she had indicated. Furthermore, Lee was simply unable to
meet her burden of proof that her injury was due to the incident of May 25, 1998, and that any injury
sustained on that date caused permanent disability. The Commission found that Lee’s pre-existing
condition as shown by her 1993 and 1998 post injury x-ray was aggravated by her May 25, 1998 work
injury. However, as illustrated by her videotaped exploits, the temporary effects of that work injury had
fully subsided and any subsequent disability was attributable to the pre-existing disease or condition.
Finding no error on appeal, we affirm.
¶14. THE JUDGMENT OF THE JACKSON COUNTY CIRCUIT COURT IS AFFIRMED.
ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.
BRIDGES AND LEE, P.JJ., IRVING, MYERS, CHANDLER, GRIFFIS AND BARNES,
JJ., CONCUR. KING, C.J., CONCURS IN RESULT ONLY.
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