Alonzo Smith v. Johnston Tombigbee Furniture Manufacturing Company
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2009-WC-00381-COA
ALONZO SMITH
APPELLANT
v.
JOHNSTON TOMBIGBEE FURNITURE
MANUFACTURING COMPANY AND
BRIDGEFIELD CASUALTY INSURANCE
COMPANY
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEYS FOR APPELLANT:
ATTORNEY FOR APPELLEES:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
APPELLEES
02/20/2009
HON. LEE J. HOWARD
LOWNDES COUNTY CIRCUIT COURT
JOHN HUNTER STEVENS
MARK L. PEARSON
DENNIS W. VOGE
CIVIL - WORKERS’ COMPENSATION
AFFIRMED WORKERS’ COMPENSATION
COMMISSION DECISION AWARDING
THIRTY-PERCENT (30%) PERMANENT
PARTIAL DISABILITY BENEFITS
AFFIRMED - 03/23/2010
EN BANC.
MAXWELL, J., FOR THE COURT:
¶1.
Alonzo Smith suffered an on-the-job injury while employed by Johnston Tombigbee
Furniture Manufacturing Company (“Johnston Tombigbee”). Johnston Tombigbee and its
insurance carrier, Bridgefield Casualty Insurance Company (“Bridgefield”), admitted
compensability, but disputed Smith’s claims as to the extent of his disability.
The
administrative law judge (ALJ) found Smith permanently and totally disabled. The Workers’
Compensation Commission (“Commission”) affirmed the ALJ’s finding of compensability,
but reversed her award of disability benefits. The Commission amended the ALJ’s order to
reflect a thirty-percent (30%) permanent partial disability award. On appeal, the Lowndes
County Circuit Court affirmed the Commission’s decision.
¶2.
Employing our limited standard of review, we are unable to say the Commission erred
as a matter of law or acted in an arbitrary and capricious manner. Therefore, we affirm.
FACTS
I.
¶3.
Employment History
Smith was an employee of Johnston Tombigbee in Columbus, Mississippi, for about
thirty-five years. Smith spent many of his years there as a machine operator. This position
mainly involved operating heavy equipment and lifting boards onto a panel saw to make
bedroom suites. Smith eventually became an assistant supervisor in 1976. However, he
returned to his former duties as a machine operator in 1994, which he performed for the
remainder of his employment at Johnston Tombigbee. According to Smith, this change of
position was due to company lay-offs.
II.
¶4.
Injury and Medical Treatment
On June 26, 2003, Smith fell while pushing a load of boards onto a press, and suffered
an injury to his lower back. It is undisputed that he had no pre-existing problems with his
back. Smith continued to work for Johnston Tombigbee until he went to the emergency room
of Baptist Memorial Hospital in Columbus a couple of weeks after his work accident. While
at Baptist Hospital, Smith received diagnostic tests, and a physician there referred him to Dr.
David Chang with Columbus Neurosurgery for further treatment.
2
¶5.
At first, Dr. Chang treated Smith with medication and directed that he attend physical
therapy sessions. After this conservative treatment did not significantly relieve Smith’s pain,
Dr. Chang performed back surgery (a right L4-5 lumbar discectomy) on Smith in January
2004. Smith testified that he began to experience problems with numbness in his right leg
shortly after the back surgery. In Dr. Chang’s notes, he indicated that Smith showed signs
of right foot drop, but Dr. Chang was unable to explain these symptoms. Following Smith’s
complaints about his leg, Dr. Chang referred Smith to Dr. Art Leis of Jackson, Mississippi,
to conduct nerve studies.
¶6.
Dr. Leis found Smith had slight focal atrophy in his right leg, but believed Smith’s
complaints of diminished sensation and weakness in his leg were largely non-physiologic.
Dr. Leis observed: “Apparent non-physiologic weakness and sensory loss influence the
neurological examination and confound interpretation and future management.” He also
opined that these same non-physiologic complaints suggested “possible malingering or
secondary gain that may influence future management.”
¶7.
Dr. Chang treated Smith for about one-and-a-half years. He then released Smith on
October 28, 2004, finding that Smith had reached maximum medical improvement (MMI).1
On this date, Dr. Chang assigned to Smith a ten-percent (10%) impairment to the whole
body, and did not assign any work restrictions.2
¶8.
After being released by Dr. Chang, Smith sought pain-management treatment from
1
The parties agree that this is the correct date for Smith’s MMI.
2
The record indicates Dr. Chang had previously (several months earlier) restricted
Smith to light-duty work for six months.
3
orthopedic surgeon Dr. James T. Barnett, Jr. of Tuscaloosa, Alabama. Dr. Barnett apparently
prescribed a cane, leg brace, back brace, and special shoes for Smith. He also prescribed
Smith to take 800 milligrams of Neurotin three times per day. The ALJ found Smith was
responsible for paying the medical bills from the services of Dr. Barnett. The Commission
affirmed this decision, which Smith does not challenge.
¶9.
On November 17, 2005, Dr. Rahul Vohra of Jackson, Mississippi, examined Smith
at Bridgefield’s request. This was the only time Smith ever saw Dr. Vohra. According to
Dr. Vohra’s report and deposition testimony, he could find no objective explanation for
Smith’s complaints of weakness. He also found no objective explanation to support Smith’s
claims about the severity of his symptoms. Although Dr. Vohra found that Smith had the
presence of mild lumbar paraspinal spasms, and thought that it was reasonable for Smith to
be prescribed medication for his subjective pain complaints, Dr. Vohra did not believe Smith
needed any other further treatment. Dr. Vohra did not believe Smith showed any significant
signs of atrophy or foot drop. Dr. Vohra also found no medical need for Smith to have a
back brace or foot brace. Dr. Vohra further observed that Smith exhibited pain amplification
behavior, a non-organic symptom. According to Dr. Vohra’s deposition, there were only two
explanations for the inconsistency between Smith’s story and the medical evidence: Either
Smith had a psychological disorder, or he was intentionally misrepresenting his symptoms.3
Dr. Vohra assigned Smith a five-percent (5%) impairment to the body as a whole, and
released him without any work restrictions.
3
Dr. Vohra recommended Smith undergo a functional capacity evaluation (FCE), but
the record indicates no FCE was ever performed.
4
III.
¶10.
Job Search Efforts
Smith offered an exhibit showing his purported job-search efforts. Therein, Smith
recorded the date he allegedly inquired about potential work; the name of the businesses;
their addresses; and whether he applied for work, or the businesses were not hiring.
According to Smith’s list, he searched for work at 135 places of employment. The list
indicates that Smith looked for work at fifteen locations during each of nine different months
from August 2006 to August 2007. According to Smith, the vast majority of the businesses
were not hiring. Smith claimed he followed up with some of these businesses to see if a
position had become available. However, Smith claimed none of these inquiries resulted in
job offers.
¶11.
Smith’s documented search efforts did not commence until nearly two years after he
reached MMI. The parties disagree over the reason for this fact. Johnston Tombigbee
maintains Smith did not reasonably search for jobs before this time. Smith contends he
diligently searched for work but did not document his efforts until well after reaching MMI.
¶12.
Smith concedes that he never returned to his employer after the date of MMI to
inquire about employment opportunities. According to Smith, he was told that there was no
light-duty work at Johnston Tombigbee available. The only other evidence in the record
supporting the unavailability of work at Johnston Tombigbee was produced in anticipation
of litigation, where Johnston Furniture stated in an interrogatory response that it was unable
to provide “light duty” work. It is undisputed Smith did not reapply or otherwise inquire
about work at Johnston Tombigbee after reaching MMI.
¶13.
Johnston Tombigbee retained vocational expert Dennis Stewart to assist Smith in
5
finding employment. Stewart conducted two labor market surveys. Based on his research,
Stewart testified there were various jobs available that Smith was capable of performing.
Stewart testified that each potential employer was contacted to ensure that employment was
available. The record does not indicate that Smith ever contacted any of these potential
employers. However, Stewart admitted on cross-examination that some of the jobs he
identified might involve some lifting. In addition, Stewart admitted that he did not learn
Smith had experience as a supervisor until after compiling his report. Thus, Smith’s
management-level experience was not factored into his findings. Furthermore, Stewart
admitted he did not attempt to find work for Smith until over two years after Smith had
reached MMI. Finally, Stewart never met personally with Smith. The parties disagree over
why the two never met in person. Johnston Tombigbee alleges Smith failed to fully
cooperate with its vocational expert. Smith claims he was willing to meet with Stewart, but
only with his attorney present.
PROCEDURAL HISTORY
¶14.
On March 16, 2005, Smith filed a petition to controvert with the Workers’
Compensation Commission. After conducting a hearing, the ALJ found Smith had suffered
a permanent total disability, and ordered Johnston Tombigbee and Bridgefield to provide
Smith compensation benefits for a period of 450 weeks. The Commission, however,
disagreed. It found Smith had failed to prove by a preponderance of the evidence he had
suffered a permanent total disability. Although the Commission affirmed the ALJ’s finding
of compensability, it reversed and amended the ALJ’s award of disability benefits to reflect
a thirty-percent (30%) permanent partial disability award for a period of 450 weeks. The
6
Commission later amended its own order to correct a mathematical calculation in its original
order. On appeal, the circuit court deferred to the Commission in its role as fact-finder, and
affirmed its decision.
STANDARD OF REVIEW
¶15.
Our standard of review in actions arising under Workers’ Compensation Law is
limited to determining whether the Commission erred as a matter of law or made findings of
fact contrary to the overwhelming weight of the evidence. Clements v. Welling Truck Serv.,
Inc., 739 So. 2d 476, 478 (¶7) (Miss. Ct. App. 1999) (citing Fought v. Stuart C. Irby Co., 523
So. 2d 314, 317 (Miss. 1988)). “Reversal is proper only when a Commission order is not
based on 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). Our supreme court has also stated the Commission will only be reversed “for an error
of law or an unsupportable finding of fact.” Ga. Pac. Corp. v. Taplin, 586 So. 2d 823, 826
(Miss. 1991) (internal citations omitted). When the Commission’s decision is supported by
substantial evidence, then it must be upheld. Vance v. Twin River Homes, Inc., 641 So. 2d
1176, 1180 (Miss. 1994). This remains true even though we might have reached a different
conclusion were we the trier of fact. Id.
¶16.
“Where no evidence or only a scintilla of evidence supports [the Commission’s]
decision, this Court does not hesitate to reverse.” Taylor v. First Chem., 19 So. 3d 160, 163
(¶12) (Miss. Ct. App. 2009). However, “[a] reviewing court commits error if it simply
re-weighs the evidence and substitutes its judgment for that of the Commission.” Lifestyle
Furnishings v. Tollison, 985 So. 2d 352, 358 (¶17) (2008) (citing Raytheon Aerospace
7
Support Servs. v. Miller, 861 So. 2d 330, 335 (¶11) (Miss. 2003)). Our role is not “to
determine where the preponderance of the evidence lies when the evidence is conflicting,
[since] it is presumed that the Commission, as trier of fact, has previously determined which
evidence is credible and which is not.” Hale v. Ruleville Health Care Ctr., 687 So. 2d 1221,
1224-25 (Miss.1997).
¶17.
We must bear in mind that “the Commission, not the administrative judge, is the
ultimate fact-finder, and this Court will apply a general deferential standard of review to the
Commission’s findings and decisions despite the actions of the administrative judge.” Smith
v. Jackson Constr. Co., 607 So.2d 1119, 1123-24 (Miss. 1992) (citations omitted). In
reviewing the Commission’s findings, the circuit court sits as an appellate court and applies
the same deferential standard applied by this Court. Tollison, 985 So. 2d at 358 (¶15)
(citation omitted).
DISCUSSION
I.
¶18.
Disability
We must decide whether the Commission’s award of thirty-percent (30%) permanent
partial disability benefits, and the circuit court’s decision affirming the Commission, was
error as a matter of law or was against the overwhelming weight of the evidence.
¶19.
Mississippi Code Annotated section 71-3-3(i) (Rev. 2000) defines “disability” as
“incapacity because of injury to earn the wages which the employee was receiving at the time
of injury in the same or other employment, which incapacity and the extent thereof must be
supported by medical findings.” The concept of disability has components of both a physical
injury and a loss of wage-earning capacity. Univ. of Miss. Med. Ctr. v. Smith, 909 So. 2d
8
1209, 1218 (¶31) (Miss. Ct. App. 2005) (citing I. Taitel & Son v. Twiner, 247 Miss. 785, 792,
157 So. 2d 44, 46 (Miss.1963)). In order to meet the definition of disability, the claimant
must not be able to obtain work in similar or other jobs, and the claimant’s unemployability
must be due to the injury in question. Taplin, 586 So. 2d at 828 (citing V. Dunn, Mississippi
Workmen’s Compensation § 72.1 (3d ed. 1982)). The employee’s degree of disability is
assessed “by comparing the employee’s pre-injury wages with the employee’s post-injury
capacity to earn wages in the open labor market.” Smith, 909 So. 2d at 1218 (¶31) (citing
Karr v. Armstrong Tire & Rubber Co., 216 Miss. 132, 137, 61 So. 2d 789, 792 (1953)).
¶20.
Mississippi Code Annotated section 71-3-17(a) (Rev. 2000) contains the applicable
criteria for determining whether permanent total disability benefits are appropriate.4 The
statute lists certain injuries that automatically qualify an employee for permanent total
disability benefits: “Loss of both hands, or both arms, or both feet, or both legs, or both eyes,
or of any two (2) thereof shall constitute permanent total disability.” Id. The subsection
further provides: “In all other cases permanent total disability shall be determined in
accordance with the facts.” Id. Here, the Commission was obviously confronted with a factintensive determination since Smith’s injury is not specifically enumerated in the statute.
4
Compensation for permanent total disability is to be paid as follows:
[S]ixty-six and two-thirds percent (66-2/3%) of the average weekly wages of
the injured employee, subject to the maximum limitations as to weekly
benefits as set up in this chapter, shall be paid to the employee not to exceed
four hundred fifty (450) weeks or an amount greater than the multiple of four
hundred fifty (450) weeks times sixty-six and two-thirds percent (66-2/3%) of
the average weekly wage for the state.
Miss. Code Ann. § 71-3-17(a).
9
¶21.
It is well settled that workers’ compensation claimants have “the burden of proving
disability and the extent thereof.” Tollison, 985 So. 2d at 359 (¶21). “The issue of whether
a claimant’s permanent disability is partial or total is a fact question to be determined from
the evidence as a whole, including both medical and lay testimony.” Smith, 909 So. 2d at
1222 (¶47) (citing McGowan v. Orleans Furniture, Inc., 586 So. 2d 163, 167 (Miss. 1991)).
¶22.
A burden-shifting framework applies to claims of permanent total disability. Tollison,
985 So. 2d at 359-60 (¶21). The claimant is required to make a prima facie showing that “he
has sought and been unable to find work ‘in the same or other employment.’” Hale, 687 So.
2d at 1226 (quoting Miss. Code Ann. § 71-3-3(i)). Two methods of making this required
showing have been recognized by our supreme court. Tollison, 985 So. 2d at 359-60 (¶21).
First, the claimant may make a prima facie case by reporting back to the employer after
reaching MMI when the employer refuses to reinstate the claimant. Jordan v. Hercules, Inc.,
600 So. 2d 179, 183 (Miss. 1992). Second, the claimant may establish a prima facie case by
proving reasonable efforts to find other employment. Thompson v. Wells-Lamont Corp., 362
So. 2d 638, 640-41 (Miss. 1978). These two methods have been referred to collectively as
the Jordan/Thompson test. Tollison, 985 So. 2d at 359-60 (¶21). The following factors are
considered in assessing the reasonableness of job search efforts: (1) job availability within
the community, (2) the local economy, (3) the claimant’s skills and background, and (4) the
disability itself. Taplin, 586 So. 2d at 828.
¶23.
Another consideration in assessing a workers’ compensation claimant’s disability is
loss of wage-earning capacity. As our supreme court has held, “[a]n employee is entitled to
compensation to the extent that he has been incapacitated to earn wages.” Marshall Durbin,
10
Inc. v. Hall, 490 So. 2d 877, 880 (Miss. 1986). The following factors should be considered
in determining loss of wage-earning capacity: “the amount of education and training that the
claimant has had, his inability to work, his failure to be hired elsewhere, the continuance of
pain, and any other related circumstances.” Alumax Extrusions, Inc. v. Wright, 737 So. 2d
416, 422 (¶16) (Miss. Ct. App. 1998) (citing McGowan, 586 So. 2d at 167). However, we
have held that “the ability to earn post-injury wages, even significantly diminished
post-injury wages, defeats a claim of permanent total disability.” Hill v. Mel, Inc., 989 So.
2d 969, 972 (¶14) (Miss. Ct. App. 2008).
¶24.
In the present case, the Commission held that Smith had “failed to prove by a
preponderance of credible evidence that he has suffered permanent total disability.” The
Commission found appropriate to amend the ALJ’s order to reflect a thirty-percent (30%)
permanent partial disability award, which the Commission based on the following findings
of fact:
The claimant misrepresented the fact that he was put on restrictive duty when
in fact the medical evidence points to the contrary; the claimant failed to
engage in a meaningful job search to support his claim for total disability
despite the effort of the employer and carrier to provide him access to a
vocational rehabilitation expert who made every effort to act as a liaison
between prospective employers and the claimant; that all efforts toward these
ends [were] met with resistence; the claimant’s medical proof falls short of
providing him with the necessary support for an award of permanent disability;
to the contrary, the medical evaluators and physicians found his results in their
estimation to be less than reliable based on his subjective continued complaints
of pain and discomfort despite the fact there was no objective explanation for
his claims of the severity of his symptoms.
II.
¶25.
The Lott Decision
In considering the case at hand, we are guided by the supreme court’s recent decision
11
in Lott v. Hudspeth Center, No. 2007-CT-01525-SCT (Miss. Jan. 7, 2010).5 In that case,
Martha Lott suffered a work-related shoulder injury while employed by Kilmichael Group
Home, which is owned by Hudspeth Center. Id. at (¶2). Prior to undergoing surgery for her
injury, Lott was terminated from her employment. Id. at (¶3). She began to search for other
jobs about five months after her original injury. Id. The record indicated Lott inquired about
or applied for 194 jobs, both in her own community and in the surrounding community. Id.
at (¶6). Lott never reapplied to her former employer or inquired about employment there.
Id. at (¶21).
¶26.
One of Lott’s physicians, Dr. Asa Bennett, conducted a physical examination and
afterward released Lott without any work restrictions. Id. at (¶3). Hudspeth’s carrier then
referred Lott to Dr. David Collipp for a second evaluation. Id. at (¶5). Dr. Collipp found that
Lott was unable to lift 100 pounds, so Dr. Collipp restricted Lott’s lifting in the workplace
to a 60-pound maximum. This was the only restriction imposed by Dr. Collipp. Id.
¶27.
A vocational expert for Hudspeth and its carrier claimed Lott never requested his
services in finding employment. Id. at (¶7). He also testified the unemployment rate of the
county where Lott had been employed was higher than the state average, which had limited
Lott’s employability as much as her injury. Id.
¶28.
The ALJ found Lott was entitled to permanent total disability benefits. Id. at (¶8).
The Commission reversed, finding Lott was only entitled to permanent partial disability
benefits for injury to a scheduled member. Id. The circuit court affirmed. Id. at (¶9). On
appeal, this Court held the Commission had applied the incorrect legal standard in failing to
5
A final mandate in Lott was issued on January 28, 2010.
12
address whether Lott had established a prima facie case of total disability. Id. at (¶17). This
Court also concluded that Lott had established a prima facie case of total disability that
Hudspeth had failed to rebut. Id. at (¶10). We therefore reversed the Commission’s finding
of permanent partial disability and rendered judgment that Lott was entitled to permanent
total disability benefits. Id. at (¶10).
¶29.
On certiorari, the supreme court reversed, finding the Commission did not apply an
incorrect legal standard and that the Commission’s decision was supported by substantial
evidence. Id. at (¶¶17, 24). The supreme court held the Commission did not apply an
incorrect standard because it found Lott failed to prove loss of wage-earning capacity, and
accordingly failed to prove a prima facie case of total disability. Id. at (¶18). This was true
even though the Commission made no findings on whether Lott had made a prima facie case
of total disability by showing a reasonable but unsuccessful job search. Id. at (¶¶17-18). The
supreme court then relied on its prior decision in Taplin, which stated that a prerequisite to
a finding of disability is a finding “that the claimant could not obtain work in similar or other
jobs and that the claimant’s unemployability was due to the injury in question.” Id. at (¶19)
(quoting Taplin, 586 So. 2d at 828). The supreme court in Lott also reasoned that Mississippi
Code Annotated section 71-3-3, which defines “disability,” makes abundantly clear that a
finding of disability requires that unemployability be because of one’s injury. Id. at n.1.
According to the recent Lott decision, only after this showing of disability is made do
considerations of loss of earning capacity and job search efforts need to be analyzed. Id.
¶30.
The supreme court acknowledged that Lott may have conducted an extensive job
search. Id. at (¶20). Indeed, the record showed Lott had applied for or inquired about 194
13
positions. Id. Nevertheless, the supreme court found the Commission’s decision was based
on substantial evidence that Lott’s unsuccessful job search was not due to her workplace
injury. Id. at (¶¶19-20). The supreme court cited the following facts as important to its
holding: (1) Dr. Bennett released her without any work restrictions; (2) Dr. Collipp only
imposed the restriction that she not lift over sixty pounds; (3) the unemployment rate in
Lott’s county of residence was high, which limited Lott’s ability to find work; and (4) Lott
never reapplied or sought information from Hudspeth regarding her employment. Id. at (¶2022).
¶31.
Applying Lott to the present facts, we conclude the Commission’s decision is based
on substantial evidence. We also conclude the Commission applied the correct legal standard
notwithstanding its failure to cite the Jordan/Thompson test.
¶32.
Just as in Lott, the Commission did not apply the burden-shifting analysis, but found
that Smith had failed to prove a prima facie case of total disability for reasons independent
of his job-search efforts. Another parallel to Lott was Smith’s release by both Dr. Chang and
Dr. Vohra without work restrictions. Also similar to Lott, the record indicates Smith did not
reapply or make an otherwise diligent effort to return to work at Johnston Tombigbee after
reaching MMI. Dr. Chang, who treated Smith extensively for about a year and a half, was
never able to explain Smith’s subjective complaints about pain in his right leg. Dr. Leis, to
whom Smith was referred by Dr. Chang to conduct nerve studies, was likewise unable to
explain Smith’s complaints of decreased sensation in his leg. Furthermore, Dr. Vohra agreed
with Dr. Leis’s assessment that many of Smith’s complaints were non-physiologic. Under
these circumstances, we find the Commission did not err in concluding that Smith had failed
14
to establish a prima facie case of permanent total disability.
¶33.
Our holding in Hill is also instructive. In Hill, the claimant’s lawyer sent a letter to
the claimant’s former employer (following the date of MMI) inquiring about job openings
within the claimant’s physicians’ restrictions. Hill, 989 So. 2d at 971 (¶7). The employer
responded that no such positions were available. Id. On appeal to this Court, the claimant
argued he had made a prima facie showing of total disability due to the employer’s refusal
to rehire him. Id. at 971-72 (¶12). However, we rejected the view that the claimant had
established permanent total disability because the claimant in fact had the capacity to earn
post-injury wages. Id. at 972-73 (¶¶14, 16). Thus, we affirmed the Commission’s finding
that the claimant should receive twenty-percent (20%) permanent partial disability benefits.
Id. at 972-73 (¶¶9, 20).
¶34.
Although Smith is claiming to have established a prima facie case for a different
reason than in Hill (i.e., reasonableness of his job search rather than the employer’s refusal
to rehire upon the former employee’s MMI), we find Hill’s reasoning equally applicable to
the situation before us. Mindful that “the ability to earn post-injury wages, even significantly
diminished post-injury wages, defeats a claim of permanent total disability,” see id. at 972
(¶14), we find ample support for the Commission’s decision that Smith was not entitled to
permanent total disability benefits.
¶35.
We decline the temptation to re-weigh the conflicting evidence in this case or to make
witness-credibility determinations. This was the province of the Commission, and we refuse
to substitute our judgment for its own. Accordingly, we affirm the circuit court’s decision.
¶36.
THE JUDGMENT OF THE CIRCUIT COURT OF LOWNDES COUNTY IS
15
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
APPELLANT.
LEE AND MYERS, P.JJ., IRVING, GRIFFIS, ISHEE AND ROBERTS, JJ.,
CONCUR. KING, C.J., CONCURS IN RESULT ONLY. BARNES, J., NOT
PARTICIPATING.
16
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