Karen Johnson v. Sanderson Farms, Inc.
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2008-WC-01218-COA
KAREN JOHNSON
APPELLANT/CROSSAPPELLEE
v.
SANDERSON FARMS, INC.
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
APPELLEE/CROSSAPPELLANT
06/30/2008
HON. LAMAR PICKARD
COPIAH COUNTY CIRCUIT COURT
JOHN HUNTER STEVENS
RYAN JEFFREY MITCHELL
CIVIL - WORKERS’ COMPENSATION
AFFIRMED THE DECISION OF THE
WORKERS’ COMPENSATION
COMMISSION AWARDING TEMPORARY
TOTAL AND PERMANENT PARTIAL
DISABILITY BENEFITS
AFFIRMED – 08/25/2009
BEFORE MYERS, P.J., IRVING AND ROBERTS, JJ.
IRVING, J., FOR THE COURT:
¶1.
On October 20, 2002, Karen Johnson filed a petition to controvert with the Mississippi
Workers’ Compensation Commission, alleging that she had developed thoracic outlet and
carpal tunnel syndromes while working at Sanderson Farms, Inc. (Sanderson Farms).
Following a hearing, an administrative law judge (ALJ) concluded that Johnson had
developed bilateral carpal tunnel syndrome while employed at Sanderson Farms and awarded
her temporary total benefits for the period commencing March 19, 2002, and ending April 14,
2005. The ALJ also awarded Johnson permanent partial disability benefits for a fifty percent
and twenty-five percent loss of use of her upper right and upper left extremities, respectively.
Sanderson Farms appealed to the Commission, which affirmed the ALJ’s finding of
compensability for bilateral carpal tunnel syndrome and the award of temporary total
disability benefits. However, the Commission reduced the award of permanent partial
disability benefits to five percent in accordance with the medical bilateral impairment rating
assigned to Johnson by her treating physician. Johnson then appealed to the Copiah County
Circuit Court, and Sanderson Farms cross-appealed. The circuit court affirmed the decision
of the Commission. It is from this decision that Johnson appeals, and Sanderson Farms crossappeals.
¶2.
Johnson asserts that the Commission erred in reversing the findings of the ALJ and that
the circuit court erred in failing to reinstate the findings of the ALJ. Sanderson Farms asserts
that the Commission erred (1) in affirming the ALJ’s finding that Johnson had developed
carpal tunnel syndrome while employed at Sanderson Farms, (2) in affirming the ALJ’s
finding that Johnson was temporarily and totally disabled for a three-year period, and (3) in
finding that Johnson suffered a five percent permanent industrial loss of her left and right
upper extremities.
¶3.
Finding no reversible error, we affirm.
FACTS
¶4.
Johnson began working in 1993 as a deboner at Sanderson Farms in Hazelhurst,
Mississippi. As a deboner, Johnson cut and clipped chicken daily. At some point during the
2
course of her employment, she was moved to a position which required her to load chickens
onto a machine. Johnson’s jobs required her to perform repetitive, manual work.
¶5.
Early in 2002, Johnson began experiencing pain in her wrists as well as pain,
numbness, and tingling in her hands. Per her supervisor’s advice, Johnson sought help from
Jean Boone, a nurse at Sanderson Farms. Boone wrapped Johnson’s hands and sent her back
to work. After this course of treatment continued for a while, Johnson sought relief from Dr.
Alfonso H. Santos Jr. on March 19, 2002.1 At that time, Johnson complained of bilateral hand
and wrist pain, more on the right than on the left. Dr. Santos established a management plan
for Johnson that included twenty-five milligrams of Vioxx and amitriptyline for pain,
headaches, and sleeplessness. He recommended that Johnson wear a wrist guard on her right
wrist. Dr. Santos gave Johnson a two-day work excuse and wrote a letter recommending that
she avoid repetitive motion while at work. Johnson saw Dr. Santos again on March 26, 2002,
and on April 1, 2002. There was no improvement in her condition. Therefore, he referred
Johnson to the University of Mississippi Medical Center Hand Clinic and ordered an
electromyography (EMG) and nerve conduction study (NCS) to confirm that she had carpal
tunnel syndrome.
¶6.
On April 26, 2002, Dr. Abelardo S. Wee performed an NCS on Johnson which
revealed that “there was no electrophysiologic evidence of carpal tunnel syndrome.”
¶7.
Johnson began seeing Dr. Sheila Lindley as her primary physician on May 2, 2002.2
1
Although no specific injury occurred on March 19, 2002, the parties stipulated that
Johnson’s date of injury was March 19, 2002, and that her last day of work at Sanderson
Farms was April 19, 2002.
2
Dr. Lindley saw Johnson numerous times between May 2002 and March 2005.
3
Dr. Lindley diagnosed Johnson with bilateral carpal tunnel syndrome, ordered her to obtain
an EMG and an NCS, and recommended that Johnson refrain from returning to work until she
reviewed the results.
Dr. Lindley then referred Johnson to Dr. Art Leis, an
electromyographer. Dr. Leis performed an EMG and an NCS on Johnson’s upper extremities
on May 20, 2002. The EMG and NCS revealed “no electrophysiologic evidence of carpal
tunnel syndromes or other mononeuropathies involving the upper limbs.”
¶8.
On June 20, 2002, Dr. Lindley examined Johnson and diagnosed her as possibly having
thoracic outlet syndrome in addition to carpal tunnel syndrome.3 Johnson saw Dr. Lindley
again on August 8, 2002. Following this visit, Dr. Lindley noted that Johnson’s problem did
not require surgery despite Johnson’s continued complaints of pain and numbness in her
hands. Instead, Dr. Lindley prescribed medication and ordered therapy in the form of heat,
stretching, and trigger-point massage. On November 21, 2002, Dr. Lindley gave Johnson a
steroid injection in her right carpal tunnel, but the injection provided no relief. Dr. Lindley’s
notes from January 23, 2003, reveal that she did not think that Johnson was a surgical
candidate because the injection did not provide her any relief. Rather, Dr. Lindley felt that
Johnson could benefit from physical therapy, so she referred her to Dr. Michael Winkelmann
for physical therapy.
¶9.
Prior to seeing Dr. Winkelmann, Johnson saw Dr. Eric E. Wegener on September 2,
2003, for an independent medical examination. Dr. Wegener’s notes reflect the results of the
examination:
3
According to Dr. Lindley, Johnson’s thoracic outlet syndrome has been resolved.
4
On extremity exam she has Tinel’s Phalen’s [sic] and compression test positive
bilateral wrist [sic] over the median nerve. She has positive compression over
her pronator tares [sic] bilaterally. All other provocative tests of the wrists are
negative. She has no numbness, tingling or ulnar nerve symptoms. Range of
motion is normal. Strength appears to be normal. . . .
Johnson saw Dr. Wegener for a follow-up visit on October 21, 2003. In notes from this visit,
Dr. Wegener wrote that, in his view, Johnson did not have carpal tunnel syndrome. He
specifically stated:
After reviewing [Johnson’s] medical history and her examination,
diagnostic/therapeutic injection, etc., it is become [sic] my medical opinion that
this patient does not have carpal tunnel syndrome. Therefore, no intervention
from that standpoint should be undertaken. Since she has no carpal tunnel
syndrome and no abnormalities that can be detected other than subjective
abnormalities, I think a permanent impairment rating of 0% and return to
regular duty without restrictions is indicated.
¶10.
In January 2004, Dr. Wee performed another EMG and an NCS on Johnson. Johnson
was referred to Dr. Wee by Dr. Alan E. Freeland, one of Dr. Lindley’s partners. Following
the EMG and the NCS, Dr. Wee noted: “Nerve conduction and needle EMG studies were
performed on the right upper extremity. The findings were within normal limits. There is no
electrophysiologic evidence of neuropathy, myopathy, or cervical motor radiculopathy.”
¶11.
On January 12, 2004, Johnson saw Dr. Chris Etheridge at the Mississippi Sports
Medicine and Orthopaedic Center. Dr. Robert Walker, whom Johnson saw on her own,
referred her to Dr. Etheridge. Dr. Etheridge noted the following regarding Johnson’s physical
examination:
She has an immediately positive compression test in less than 10 to 15 seconds.
Positive Tenel’s into each hand, carpal tunnel area. She has been wearing
splints faithfully. She is on pain medication. No anti-inflammatories. She has
had a nerve conduction study at UMC, which we will get. But, she has
worsening symptoms despite being off [work]. She has had several injections
5
which would give her 2-3 weeks relief only.
Dr. Etheridge also stated that he planned to schedule surgery for a right carpal tunnel release.
Further, the record contains an instruction form for the surgery, which was scheduled for
February 4, 2004. There is a handwritten note at the top, left corner of the form which reads:
“pt. called to cancel surgery – car trouble will call when ready to reschedule.” Apparently,
Johnson never rescheduled the surgery, as the record lacks any further communication with
Dr. Etheridge.
¶12.
In April 2004, Johnson saw Dr. Winkelmann. Dr. Winkelmann’s impression was that
Johnson’s symptoms could be tendinitis related; however, he noted that she did not appear to
have “any clear neurologic deficits.” Further, Dr. Winkelmann concluded that “a short course
of physical therapy should help get her back into working condition.” Johnson saw Dr.
Winkelmann again in May 2004. Dr. Winkelmann’s notes from this visit read, in pertinent
part, as follows: “At this point, I am getting a functional capacity evaluation and proceed[ing]
with returning her to work per her original functional capacity evaluation. I do feel that it is
mostly tendinitis related.” 4
¶13.
Johnson returned to see Dr. Lindley on June 24, 2004. In her office notes regarding
this visit, Dr. Lindley wrote:
I have discussed operative intervention with Karen Johnson. I have been
reluctant to perform surgery on this patient, but she has had a positive
diagnostic injection into the right carpal canal that is encouraging and her
symptomatology is very strongly that of carpal tunnel syndrome. . . . I will
discuss surgery with her further at her next visit. . . .
Then, on October 8, 2004, Dr. Lindley performed a right carpal tunnel release on Johnson.
4
Johnson never underwent the functional capacity evaluation.
6
During a post-operative visit on October 21, 2004, Dr. Lindley diagnosed Johnson with left
carpal tunnel syndrome. Thereafter, Dr. Lindley referred Johnson to Dr. Philip Blount who
saw her the following December. Dr. Blount performed an EMG and an NCS of Johnson’s
left and right hands. He concluded that the “study reveals no evidence of carpal tunnel
syndrome and peripheral neuropathy.” Nevertheless, Dr. Lindley performed a left carpal
tunnel release on December 20, 2004.5
¶14.
As stated, Johnson filed a claim for workers’ compensation benefits in October 2002.
During the course of the investigation into Johnson’s claim—that she developed carpal tunnel
syndrome while working at Sanderson Farms— Dr. Lindley provided two depositions.
¶15.
In the first deposition, taken November 17, 2004, Dr. Lindley testified that Johnson had
an NCS at some point between January 2003 and June 2004 that was positive for carpal tunnel
syndrome. 6 Dr. Lindley stated that she recommended surgical intervention after Johnson’s
visit on June 20, 2004. She stated that her decision was based on several factors: (1) Johnson’s
complaints remained consistent, (2) Johnson had “progressed to a positive objective EMG
nerve conduction study,” and (3) Johnson had responded well to a carpal tunnel injection. Dr.
Lindley noted that the EMG showed moderately severe carpal tunnel syndrome, which she
5
In her second deposition, Dr. Lindley was asked about a March 10, 2004, office
note. She acknowledged seeing Johnson on that date but stated that Johnson was also seen
by Dr. Jason Reem and that Dr. Reem surmised that Johnson had “questionable bilateral
carpal tunnel syndrome, right greater than left.” Therefore, according to Dr. Lindley, Dr.
Reem gave Johnson a diagnostic injection into the carpal canal. Dr. Lindley testified that
she saw Johnson almost two months after the injection and that Johnson “reported an
improvement from the injection.” We have scoured the record and have been unable to
locate a March 10, 2004, office note.
6
Despite her assertion, Dr. Lindley was unable to produce any medical records which
reflect that Johnson had a positive NCS.
7
surmised was a surgical condition.
¶16.
During her second deposition, taken March 30, 2005, Dr. Lindley admitted that she had
been mistaken during her previous deposition when she stated that Johnson had had a positive
NCS. Also, Sanderson Farms’s attorney pointed out that Dr. Lindley performed a left carpal
tunnel release on December 20, 2004, even though an NCS of Johnson’s wrists, which had
been taken only four days earlier, was normal.
Dr. Lindley responded by saying that
“clinically, she had a mild carpal tunnel syndrome on the left, and she had shown marked
improvement on the right side following an open decompression.7 And she had clinically
intraoperative [sic] compression on the right side.”
¶17.
Dr. Lindley remained steadfast in her diagnosis that Johnson had carpal tunnel
syndrome. She also stated unequivocally that Johnson’s work at Sanderson Farms contributed
to her carpal tunnel syndrome. Dr. Lindley testified that her opinions were based on her
prolonged relationship with Johnson.
¶18.
During the hearing before the ALJ, Johnson testified, inter alia, that since leaving
Sanderson Farms she had been unable to find work. Further, Johnson stated that, although she
continues to have pain, her condition has improved, as the pain is not as bad as it was prior to
the surgeries.
¶19.
Margaret Easterling, the field-employee-relations manager at Sanderson Farms, testified
that Johnson brought a work excuse from Dr. Santos sometime after March 19, 2002.
According to Easterling, when Johnson returned to work, her duties were modified per Dr.
Santos’s instructions. Easterling testified that Johnson brought in another medical excuse on
7
A decompression of the carpal tunnel is the same as a carpal tunnel release.
8
April 22, 2002, advising that she needed to be off work for two weeks. Easterling recalled that
she then gave Johnson family-medical-leave papers but that Johnson never returned them.
Also, according to Easterling, she has not heard anything from Johnson since that day.
¶20.
Following the hearing, the ALJ found, as we have already noted, that Johnson
developed carpal tunnel syndrome while working at Sanderson Farms and ordered Sanderson
Farms and its insurance carrier to pay Johnson workers’ compensation benefits as follows: (1)
temporary total disability benefits in the amount of $153.53 per week for the period of March
19, 2002, to April 14, 2005; (2) permanent partial disability benefits in the amount of $153.53
for a period of 100 weeks, representing a fifty percent loss of use of her right upper extremity;
and (3) permanent partial disability benefits in the amount of $153.53 for a period of fifty
weeks, representing a twenty-five percent loss of use of the left upper extremity.8 The ALJ
ordered the employer and carrier to commence payment of the permanent partial benefits on
April 15, 2002, following payment of the temporary total disability payments.
¶21.
As stated, the Commission affirmed the ALJ’s finding that Johnson developed a
compensable, work related injury and the award of temporary total disability benefits but
reversed the ALJ’s finding that Johnson suffered a permanent partial disability of fifty and
twenty-five percent to her upper right and left extremities, respectively, finding instead that
Johnson suffered only a five percent bilateral impairment to her upper right and left
extremities.
8
Sanderson Farms and its insurance carrier were also ordered to pay any penalties and
interest pursuant to Mississippi Code Annotated section 71-3-37(5) and (6) (Supp. 2008) and
to provide medical services and supplies to Johnson as required by her injury and recovery
in accordance with Mississippi Code Annotated section 71-3-15 (Rev. 2000).
9
¶22.
Additional facts, as appropriate, will be related during our analysis and discussion of
the issues.
ANALYSIS AND DISCUSSION OF THE ISSUES
¶23.
We begin our analysis by setting forth our standard of review, which is well established:
The standard of review in workers’ compensation cases is limited. The
substantial evidence test is used. See Walker Mfg. Co. v. Cantrell, 577 So. 2d
1243, 1245-47 (Miss. 1991)). The Workers’ Compensation Commission is the
trier and finder of facts in a compensation claim. [An appellate court] will
overturn the Workers’ Compensation Commission decision only for an error of
law or an unsupported finding of fact. Georgia Pac. Corp. v. Taplin, 586 So. 2d
823, 826 (Miss. 1991)). 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. Smith v. Jackson Constr. Co., 607 So. 2d
1119, 1124 (Miss. 1992)).
Weatherspoon v. Croft Metals, Inc., 853 So. 2d 776, 778 (¶6) (Miss. 2003).
DIRECT APPEAL
¶24.
Johnson contends that the Commission erred in reversing the findings of the ALJ and
that the circuit court erred in not reinstating those findings. Before going further, we point out
that it is the Commission’s decision, not the ALJ’s, that is appealable to the circuit court.
Therefore, the issue is not whether the Commission erred in reversing the findings of the ALJ,
but whether there is substantial evidence to support the findings of the Commission and
whether the circuit court erred in affirming the decision of the Commission.
¶25.
Johnson’s principal argument is that the Commission erroneously favored the findings
of non-treating physicians over the findings of Dr. Lindley, Johnson’s treating physician. In
support of her position, she directs our attention to a footnote in Clements v. Welling Truck
Services, Inc., 739 So. 2d 476, 478 (Miss. Ct. App. 1999) which cites Johnson v. Ferguson,
10
435 So. 2d 1191 (Miss. 1983) and various other authorities for the proposition that under the
Workers’ Compensation Act, treating physicians’ opinions carry more weight than those of
physicians who examined a claimant solely for the purpose of testifying at trial.
¶26.
We agree that the authorities cited in the footnote stand for the asserted proposition.
However, we find that Johnson’s reliance on Clements and the authorities cited therein is
misplaced, as there is no evidence in this case which suggests that the Commission disregarded
the findings of Dr. Lindley. The record reveals quite the contrary. The Commission accepted
the ALJ’s finding as it relates to the compensability of Johnson’s claim for bilateral carpal
tunnel syndrome. While the Commission rejected the ALJ’s finding that Johnson suffered a
permanent partial disability of a fifty and twenty-five percent loss of industrial use to her upper
right and left extremities, respectively, it is noteworthy that Dr. Lindley never assessed such
percentages to Johnson. Rather, Dr. Lindley assessed Johnson’s permanent partial disability
at five percent in both the right and left extremities. That is the exact percentage awarded by
the Commission.
¶27.
We find substantial evidence in support of the Commission’s findings. As noted, Dr.
Lindley affirmatively stated that she believed that Johnson suffered from carpal tunnel
syndrome even though none of the nerve conduction studies revealed positive findings for
carpal tunnel syndrome. According to Dr. Lindley, she based her diagnosis on Johnson’s
complaints and on the fact that Johnson received relief from the carpal tunnel injections. The
ALJ determined that Johnson, in fact, suffered from carpal tunnel syndrome, a finding that was
accepted by the Commission.
No medical witness testified that Johnson suffered any
impairment greater than five percent. Therefore, we find no merit to the issues raised by
11
Johnson on direct appeal. We now turn to the issues presented by Sanderson Farms’s crossappeal.
CROSS-APPEAL
¶28.
Sanderson Farms argues that the circuit court erred in affirming the Commission’s
finding that Johnson developed carpal tunnel syndrome while employed at Sanderson Farms.
Sanderson Farms contends that because there is no objective medical evidence which supports
a finding of carpal tunnel syndrome, the finding that Johnson developed carpal tunnel
syndrome while employed at Sanderson Farms is not supported by substantial evidence.
¶29.
The record clearly reflects that although Johnson had several nerve conduction studies,
none revealed carpal tunnel syndrome. Nevertheless, Dr. Lindley stated that she believed that
subjective evidence, e.g., Johnson’s physical examination and complaints, supported her
diagnosis. She stated in her first deposition that she ordered the EMG and nerve conduction
studies in order to confirm her clinical diagnosis of carpal tunnel syndrome. The following
exchange occurred during Dr. Lindley’s first deposition:
Q.
What would the results of the EMG tell you? Would it confirm that --
A.
It usually tells me -- it either confirms my clinical diagnosis, it -- and it
tells me severity.
Q.
Okay. Does it -- do the results, are they used to rule out carpal tunnel
syndrome?
A.
Well, not entirely. They can come back to [sic] normal. If they did, then
I would say that’s a very mild carpal tunnel. It’s not -- it’s not positive
on electrophysiologic studies, but I think she may have it clinically. If
it’s mild, then I usually think, [w]ell, it’s not an operative case at this
point.
****
12
Q.
Okay. When was the next time you saw Ms. Johnson?
A.
On June the 20th of 2002.
Q.
And at that time, she had had the nerve conduction study done?
A.
Correct.
Q.
Okay. And did you have the results of the nerve conduction study at that
visit?
A.
I did.
Q.
What did the results show?
A.
It showed -- [Dr. Leis] did both, he did the nerve conduction study, and
he also did the needle that we were talking about, checking multiple
muscles in the upper extremity. All the muscles tested normal. And he
said that it was a normal nerve conduction study as well.
Q.
Okay. So both of the tests that [Dr. Leis] performed came back normal?
A.
That’s correct.
****
Q.
A.
¶30.
Okay. Your impression at that time continued to be that she had bilateral
carpal tunnel syndrome?
That’s correct.
Dr. Lindley stated that Johnson had received an injection in her right carpal tunnel, but
she did not receive any improvement. Therefore, she referred her to Dr. Winkelmann for
physical therapy. She stated that at that point she did not feel as though Johnson was a
candidate for surgery because she did not get relief from the injection:
Q.
Okay. And you didn’t feel like she was a surgical candidate because she
had not shown any improvement from the injection?
A.
Well -- correct. And she had negative nerve conduction studies. It would
13
be very unusual for me to operate on someone with negative nerve
conduction studies.
Dr. Lindley went on to state that Johnson had an NCS between January 2003 and June 2004
that was positive for carpal tunnel syndrome. However, as previously noted, Dr. Lindley stated
in her second deposition that she was mistaken and that Johnson never had an NCS to come
back positive for carpal tunnel syndrome. Nevertheless, she stood by her diagnosis and her
decision to perform right and left carpal tunnel releases. On this point, the record reflects the
following:
Q.
A.
That’s correct.
Q.
Okay. And I believe you told me that, if that happened, your diagnosis
would be of a mild case of carpal tunnel syndrome?
A.
That’s correct.
Q.
Okay. We had some discussion at that time about a nerve conduction
study that was done on this claimant that you were under the impression
at that time that there were some positive findings on [a] nerve
conduction study. Since that time, have you been able to locate any
nerve conduction study that showed any positive findings?
A.
¶31.
Dr. Lindley, we are continuing your deposition of November 17th, 2004,
that was recessed so that we could all try to obtain some records that we
did not have access to at that time. Let me start with confirming some of
the things that you testified to before, and then we’ll pick up with the
records. We talked about nerve conduction studies in relation to this
claimant’s carpal tunnel syndrome. One of the things you told me at your
earlier deposition was that, if a nerve conduction study came back normal
and showed no evidence, electrophysiological evidence of carpal tunnel
syndrome, then as I understand it, that doesn’t keep you from ruling out
the presence of carpal tunnel syndrome; is that right?
No. I have not. And I was in error.
It is undisputed that Johnson experienced pain in both of her hands. However, what is
14
disputed is whether the pain was caused by carpal tunnel syndrome. Dr. Lindley, who treated
Johnson regularly over a two-year period, remained steadfast in her belief that Johnson’s pain
was a result of carpal tunnel syndrome. Dr. Lindley defended her diagnosis by stating: (1) that
Johnson’s history and physical examination showed “provocative testing” for carpal tunnel
syndrome, (2) that Johnson responded well to medications that she had placed her on for carpal
tunnel syndrome, and (3) that Johnson responded well to carpal tunnel injections. Also, Dr.
Lindley stated that Johnson’s examination continued to be “pretty well consistent with carpal
tunnel.”
¶32.
Further, Dr. Lindley testified that she relied on a clinical study done by Dr. David
Green, a hand surgeon in San Antonio, Texas, to support her diagnosis. Dr. Lindley stated that
Dr. Green found that patients who had had injections as a diagnostic test for carpal tunnel
syndrome experienced improvement. According to Dr. Lindley, Dr. Green’s study constitutes
statistically significant evidence that a patient suffers from carpal tunnel syndrome if the
patient’s condition improves after having the diagnostic injections.
¶33.
Based on the foregoing reasons, we conclude that substantial evidence exists to support
the Commission’s finding that Johnson developed carpal tunnel syndrome while working at
Sanderson Farms, even though no EMG or NCS revealed the same. Therefore, we affirm the
judgment of the circuit court, which affirmed the decision of the Commission. This issue lacks
merit.
¶34.
Sanderson Farms also argues that the circuit court erred in affirming the Commission’s
decision, which found Johnson temporarily and totally disabled for the three-year period from
March 19, 2002, to March 30, 2005. Sanderson Farms asserts that Johnson failed to prove that
15
she was disabled within the meaning of Mississippi Code Annotated section 71-3-3(i) (Rev.
2000), which defines disability as the “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.”
¶35.
Sanderson Farms argues that even though Dr. Lindley testified that Johnson could have
performed light-duty work with restrictions prior to receiving the carpal tunnel releases,
Johnson never returned to Sanderson Farms to inquire about job opportunities after she brought
in the work excuse from Dr. Santos in April 2002.9 As a result, Sanderson Farms contends that
Johnson is not eligible to receive temporary benefits and cites Hale v. Ruleville Health Care
Center, 687 So. 2d 1221 (Miss. 1997) to support its contention. In Hale, our supreme court
held that:
Pursuant to [Mississippi Code Annotated section] 71-3-3(i), when there is a
finding of permanent partial disability, the claimant bears the burden of making
a prima facie showing that he has sought and been unable to find work “in the
same or other employment.” When the claimant, having reached maximum
medical recovery, reports back to the employer for work, and the employer
refuses to reinstate or rehire him, then the claimant has established a prima facie
showing of total disability. The burden then shifts to the employer to prove that
the claimant has suffered only a partial disability or that the employee has
suffered no loss of wage earning capacity.
Id. at 1226 (citing Jordan v. Hercules, Inc., 600 So. 2d 179, 183 (Miss. 1992)).
¶36.
Sanderson Farms’s attorney asked Johnson whether she had called Sanderson Farms at
9
Dr. Lindley testified that most patients who have had a carpal tunnel release would
be advised to refrain from performing any repetitive wrist flexion or extension and repetitive
or sustained gripping. She also testified that she would not advise the use of vibratory or air
tools. Further, according to Dr. Lindley, people who have undergone a carpal tunnel release
should not be exposed to cold environments for extended periods of time.
16
any point after her surgeries to see if there was a job available that she could perform. Johnson
responded that she had not because Boone, the nurse at Sanderson Farms, had told her in 2002
that there were no jobs at Sanderson Farms that would not require her to use her hands.
¶37.
Simply because Johnson did not return to Sanderson Farms to seek employment is of
no consequence, as the record reflects that she looked for employment elsewhere, which is in
accordance with section 71-3-3(i). Johnson reached maximum medical improvement in March
2005 and conducted a job search the following May and again in January 2006. During this
time, Johnson submitted applications at fourteen different businesses.
¶38.
Because we find that substantial evidence exists to support the circuit court’s judgment
affirming the Commission’s decision that Johnson was temporarily and totally disabled from
March 19, 2002, to March 30, 2005, we affirm. There is no merit to this issue.
¶39.
In its final issue, Sanderson Farms argues that if we find that substantial evidence
supports the circuit court’s judgment the Commission’s decision finding a compensable injury,
we should also affirm the circuit court’s judgment affirming the Commission’s award of a five
percent impairment rating to Johnson for industrial loss of use of each upper extremity. Based
on our disposition of the issues presented in the direct appeal, this issue is moot.
¶40. THE JUDGMENT OF THE COPIAH COUNTY CIRCUIT COURT IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED ONE-HALF TO THE
APPELLANT/CROSS-APPELLEE AND ONE-HALF TO THE APPELLEE/CROSSAPPELLANT.
KING, C.J., LEE AND MYERS, P.JJ., BARNES, ISHEE, ROBERTS AND
MAXWELL, JJ., CONCUR. CARLTON, J., DISSENTS WITH SEPARATE WRITTEN
OPINION JOINED BY GRIFFIS, J.
CARLTON, J., DISSENTING:
17
¶41.
I respectfully dissent to the majority’s opinion, as I would reverse the circuit court’s
judgment affirming the Mississippi Workers’ Compensation Commission’s award of
temporary total and permanent partial disability benefits and would grant the Sanderson Farms’
cross-appeal. See Miss. Code Ann. § 71-3-7 (Rev. 2000) (requiring a causal connection
between injury and claimed disability and requiring the claimant to show injury that arose out
of and in the course of employment).
¶42.
The claimant bears the burden of proving entitlement to benefits by a preponderance
of the evidence as to each element of the claim. Harrell v. Time Warner/Capitol Cablevision,
856 So. 2d 503, 506 (¶7) (Miss. Ct. App. 2003) (citing Hedge v. Leggett & Platt, Inc., 641 So.
2d 9, 12 (Miss. 1994)). The claimant must prove the following elements: “(1) an accidental
injury, (2) arising out of and in the course of employment, and (3) a causal connection between
the injury and the claimed disability.” Id. “It is well-established that recovery under the
workers’ compensation scheme must rest upon reasonable probabilities, not mere possibilities.”
Id. at 511 (¶30) (citing Burnley Shirt Corp. v. Simmons, 204 So. 2d 451, 454 (Miss. 1967)).
Therefore, I respectfully submit that the Commission’s decision finding a compensable injury
was not supported by substantial evidence. I find that the claimant failed in her burden of
proof to prove an injury and consequently also failed to prove a causal connection.
GRIFFIS, J., JOINS THIS OPINION.
18
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