McKinley Mosby v. Farm Fresh Catfish Company
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2008-WC-01428-COA
MCKINLEY MOSBY
APPELLANT
v.
FARM FRESH CATFISH COMPANY AND
LIBERTY MUTUAL FIRE INSURANCE
COMPANY
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEES:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
APPELLEES
07/28/2008
HON. W. ASHLEY HINES
SUNFLOWER COUNTY CIRCUIT COURT
GREGORY W. HARBISON
R. BRITTAIN VIRDEN
CIVIL - WORKERS’ COMPENSATION
ORDER OF MISSISSIPPI WORKERS’
COMPENSATION COMMISSION
AFFIRMED ON ISSUE OF PERMANENT
DISABILITY AND REVERSED ON ISSUE
OF REIMBURSEMENT OF MEDICAL
EXPENSES
AFFIRMED - 10/06/2009
BEFORE MYERS, P.J., IRVING AND BARNES, JJ.
BARNES, J., FOR THE COURT:
¶1.
McKinley Mosby appeals the Sunflower County Circuit Court’s denial of additional
workers’ compensation benefits for his permanent partial disability and subsequent medical
treatments. Finding no error, we affirm.
SUMMARY OF FACTS
¶2.
Mosby was a truck driver for Farm Fresh Catfish Company (Farm Fresh) from 1991
to 1999. On January 14, 1999, Mosby was involved in an accident when his truck slid into
a catfish pond; he injured his lower back as a result of the accident. Mosby claims that he
was subsequently terminated from this job, as Farm Fresh was unable to provide him with
any work within the restrictions and limitations assigned by his treating physicians.
However, Farm Fresh argues that Mosby’s termination was due to the destruction of
company property.1 Over the next few years, Mosby worked for several companies, but he
claims that due to his injury, he was unable to maintain employment. Farm Fresh contradicts
Mosby’s claims, stating that some of the job terminations were due to job abandonment
which was attributed to Mosby’s obtaining a better-paying job.
Mosby’s History of Medical Treatment
¶3.
Immediately following the accident, the nurse for Farm Fresh took Mosby to the local
medical clinic where he was treated by Dr. Joe Pulliam. Approximately two weeks later,
Mosby was treated at Delta Regional Medical Center with similar complaints. Mosby was
referred to Dr. Frank Tilton, a neurologist in Greenville, who diagnosed Mosby with
ruptured discs. Dr. Tilton referred Mosby to Dr. Rodney Frothingham, a neurosurgeon, also
located in Greenville, Mississippi.
Mosby was, once again, referred to another
neurosurgeon, Dr. Lon Alexander, located in Jackson, Mississippi.
Dr. Alexander
recommended surgery, but Mosby resisted; so he was subsequently referred to Dr. Michael
1
There is no indication in the record if this is referencing the truck that slid into the
pond or other property.
2
Steuer for pain management treatments.2 Farm Fresh and its insurer, Liberty Mutual Fire
Insurance Company (Liberty Mutual), admitted that the accident occurred within the course
and scope of Mosby’s employment and paid temporary total disability benefits and the
above-stated medical costs.
¶4.
In 2000, Mosby moved to Baldwyn, Mississippi, and soon thereafter, he moved to
Booneville, Mississippi. It was at this point that Mosby went outside of the original chainof-referral and visited Dr. Erik Dukes, who is located in Booneville, Mississippi, for
treatment. Dr. Dukes referred Mosby to Dr. George Hammitt, who then referred Mosby to
Dr. Andrew Chiou, a neurosurgeon located in Tupelo, Mississippi. Chiou made the same
diagnosis as Dr. Alexander. Again, Mosby resisted having surgery. Farm Fresh refused to
pay for any medical expenses starting with his treatment by Dr. Dukes.
Procedural History
¶5.
Mosby filed a petition to controvert on April 5, 1999. Due to a change of Mosby’s
counsel and numerous other delays, a hearing on the merits before an administrative law
judge was not held until February 23, 2005. The administrative law judge issued an order
on April 7, 2005, that stated: (1) Mosby was entitled to temporary, total disability benefits
of $292.86 for those periods when Mosby was unable to work;3 (2) Farm Fresh was
financially responsible for the medical expenses stemming from treatment by Dr. Dukes and
2
According to Mosby, Dr. Steuer moved to Southaven, Mississippi, but there is no
indication when this occurred. However, the medical records show that Mosby’s last
treatment by Dr. Steuer was on June 15, 2000.
3
These periods were January 14, 1999, until May 27,1999, and August 15,1999, until
September 24, 1999.
3
his referrals as Mosby had to abandon the chain-of-referral; and (3) Mosby was entitled to
permanent disability benefits of $67.30 starting October 28, 1999, continuing for 450 weeks,
as he sustained a loss of wage-earning capacity. On April 15, 2005, Farm Fresh filed a
petition for review of the order with the Mississippi Workers’ Compensation Commission
(Commission), followed by a motion to supplement the record. Prior to the matter being
considered by the Commission, the administrative law judge conducted a second evidentiary
hearing on March 1, 2006. The administrative law judge entered her second order on March
21, 2007, which summarily affirmed her previous findings. Soon thereafter, Farm Fresh
filed another petition for review with the Commission. On December 19, 2007, the
Commission affirmed the administrative law judge’s findings regarding the temporary total
disability benefits and the reasonableness and necessity of Mosby’s medical treatment.
However, the Commission reversed on the issue of the permanent partial disability based on
its finding that Mosby failed to prove any permanent loss of wage-earning capacity as he had
“managed to work at no less than ten different companies doing the same or similar work
as before his injury, and making the same or better wages as before his injury.”
¶6.
Mosby filed a petition for appeal and review with the Sunflower County Circuit Court
on January 30, 2008. Farm Fresh had already filed a cross notice of appeal on January 25,
2008, on the issue of payment for Mosby’s subsequent medical treatment.4 The circuit court,
on July 31, 2008, affirmed the Commission’s disqualification of Mosby’s claim for
permanent disability benefits; and it reversed on the issue of Mosby’s medical treatment
4
Mosby’s petition and Farm Fresh’s cross notice of appeal had already been
submitted to the Commission on January 8 and January 10, 2008, respectively.
4
received outside of the chain-of-referral, finding that Farm Fresh was not financially
responsible for those expenses. Mosby appealed the circuit court’s order on August 8, 2008.
STANDARD OF REVIEW
¶7.
This Court’s review of decisions by the Workers’ Compensation Commission is
limited, and we will only reverse a Commission’s order if it “is not based on substantial
evidence, is arbitrary or capricious, or is based on an erroneous application of the law.”
Goolsby Trucking Co., Inc. v. Alexander, 982 So. 2d 1013, 1019 (¶15) (Miss. Ct. App. 2008)
(citation omitted). The purpose of our review of the facts on appeal is “to determine whether
there is substantial credible evidence which would support the factual determination made
by the Commission.” Id. at (¶16) (quoting Martinez v. Swift Transp., 962 So. 2d 746, 750
(¶16) (Miss. Ct. App. 2007)). This Court is bound to accept the findings by the Commission
if supported by substantial evidence, even if the evidence “would not be sufficient to
convince us were we the fact[-]finders.” Id.
I.
¶8.
Whether the circuit court erred in finding that Mosby was not
totally disabled.
Mosby claims that, as he suffered a loss of wage-earning capacity, he has established
a prima facie case that he is totally disabled. Farm Fresh counters that the wage statements
included in the record show that, not only did Mosby not suffer any loss of wage-earning
capacity, but he also enjoyed an increase in his wages.
¶9.
We must first note that no order, either from the administrative law judge, the
Commission, or the circuit court, found Mosby to be totally disabled. Rather, Mosby was
found to be permanently partially disabled, and it is clear from the evidence presented that
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Mosby is not totally disabled. In order for a claimant to demonstrate permanent and total
disability, he must make a diligent, yet unsuccessful, effort to obtain other gainful
employment. Wal-Mart Stores, Inc. v. Patrick, 5 So. 3d 1119, 1123-24 (¶11) (Miss. Ct. App.
2008). This Court has also recently clarified the rule on determining whether a claimant is
totally disabled finding “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). As is evident from the table below,
Mosby has been able to obtain employment at numerous jobs following his termination from
Farm Fresh.
Employer
Dates of Employment
Occupation
Toler Trucking
02/99 - 05/99
Truck driver
Delta Bus Lines
05/99 - 09/99
Bus driver (terminated for
job abandonment)
Deaton, Inc.
09/99 - 06/00
Truck driver
ROCOR International
06/00 - 02/01
Truck driver
Morgan Van Lines
03/01 - 01/04
Truck driver
MST Express, Inc.
01/04 - 03/04
Truck driver
D&A Transportation, Inc.
04/04 - 08/04
Truck driver
Nationwide Logistics
08/04 - 03/05
Truck driver (terminated
for falsification of
documents)
Gillespie Transportation
05/05 - 06/05
Truck driver
Riverside Dedicated
Logistics
06/05 - present (?)
Truck driver
¶10.
As to the issue of permanent partial disability, this Court has found that a decision
6
regarding the “loss of wage-earning capacity [is] ‘largely factual and [is] to be left largely
to the discretion and estimate of the [C]ommission.’” Neshoba County Gen. Hosp. v.
Howell, 999 So. 2d 1295, 1298 (¶8) (Miss. Ct. App. 2009) (quoting Bryan Foods, Inc. v.
White, 913 So. 2d 1003, 1010 (¶28) (Miss. Ct. App. 2005)). In its determination of the
“claimant’s loss of wage[-]earning capacity, the Commission should take into consideration
all of the factual elements presented to it in order to arrive at its conclusion regarding the
extent of the claimant’s disability.” Airtran, Inc. v. Byrd, 953 So. 2d 296, 301 (¶11) (Miss.
Ct. App. 2007). If the claimant’s post-injury wages are equal to or exceed the pre-injury
wages, then “a rebuttable presumption arises that the claimant has experienced no loss of
wage-earning capacity.” Howell, 999 So. 2d at 1298 (¶9) (citing Gen. Elec. Co. v.
McKinnon, 507 So. 2d 363, 365 (Miss.1987)). In order “[t]o rebut this presumption, the
claimant must show that the post-injury wages are an unreliable indicator of post-injury
wage-earning capacity by evidence that may include an ‘increase in general wage levels
since the time of accident; claimant’s own greater maturity or training; longer hours worked
by claimant after the accident; payment of wages disproportionate to capacity out of
sympathy to claimant; and the temporary and unpredictable character of post-injury
earnings.’” Id. (quoting Howard Indus., Inc. v. Robinson, 846 So. 2d 245, 256 (¶37) (Miss.
Ct. App. 2002)). The Mississippi Supreme Court has identified the factors that should be
considered in determining whether a claimant has suffered a loss of wage-earning capacity.
These include the claimant’s education and training, his inability to work, the failure to be
hired elsewhere, the continuance of his pain, and any other related circumstances. McGowan
v. Orleans Furniture, Inc., 586 So. 2d 163, 167 (Miss. 1991). Moreover, the claimant bears
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the burden of “showing medical impairment and that the medical impairment resulted in a
loss of wage[-]earning capacity.” White, 913 So. 2d at 1009 (¶26).
¶11.
At the time of initial hearing before the administrative law judge, Mosby was
employed by Nationwide. Although admitting that Mosby’s wages prior to his employment
at Nationwide showed an increase, the administrative law judge commented that his wages
at Nationwide had decreased. Therefore, she reasoned that Mosby had sustained a loss of
wage-earning capacity and was entitled to permanent partial disability.5
Mosby’s
employment was eventually terminated at Nationwide for falsifying documents, as he stated
on his application for employment that he did not suffer from chronic lower-back pain.
When the administrative law judge conducted her second review based upon Farm Fresh’s
supplementation of Mosby’s employment records, she affirmed her previous judgment,
based upon Mosby’s “struggle” to maintain a permanent work position. The Commission
reversed the administrative law judge’s ruling on this issue based on the fact that Mosby had
managed to obtain continuous employment and that he had failed to prove any permanent
loss of wage-earning capacity.
¶12.
We find that there is substantial evidence to support the Commission’s findings on
the issue of permanent partial disability. Mosby has not demonstrated that his post-injury
earnings are temporary or unpredictable. Mosby’s wages have steadily increased since his
employment with Farm Fresh, and he has not been unemployed for any significant period
5
The administrative law judge calculated Mosby’s actual average weekly wages
from Nationwide to be $500.35, which was $100.90 less than what he earned at Farm Fresh.
After the hearing, Farm Fresh, in its supplementation of the record, showed that Mosby
earned $848.25 per week from Nationwide.
8
of time after his termination from Farm Fresh. Even though Mosby has stated that he
experiences continuous pain, the pain has not prevented him from maintaining long-term
employment. Mosby worked for Morgan Van Lines for nearly three years and was
employed with Riverside for over two years as of the date of the Commission’s order.
¶13.
Accordingly, we affirm on this issue.
II.
¶14.
Whether Mosby is entitled to reimbursement for the medical
treatment he received outside of the chain-of-referral.
Although the Commission found that Farm Fresh was financially responsible for
medical expenses incurred by Mosby outside of the chain-of-referral, the circuit court
reversed, finding the decision “erroneous and contrary to the overwhelming evidence.”
Mosby claims that this holding constitutes error as the law provides for a claimant to change
physicians if it is no longer reasonable for him to see his original treating physician.
Mississippi Code Annotated section 71-3-15(1) (Rev. 2000) requires an employer to “furnish
such medical, surgical, and other attendance or treatment, nurse and hospital service . . . for
such period as the nature of the injury or the process of recovery may require.” Further, the
employee has “the right to accept the services furnished by the employer or, in his discretion,
to select one (1) competent physician of his choosing and such other specialists to whom he
is referred by his chosen physician to administer medical treatment.” Id. The statute also
provides that:
Referrals by the chosen physician shall be limited to one (1) physician within
a specialty or subspecialty area. Except in an emergency requiring immediate
medical attention, any additional selection of physicians by the injured
employee or further referrals must be approved by the employer, if selfinsured, or the carrier prior to obtaining the services of the physician at the
expense of the employer or carrier. If denied, the injured employee may apply
9
to the [C]ommission for approval of the additional selection or referral, and
if the [C]ommission determines that such request is reasonable, the employee
may be authorized to obtain such treatment at the expense of the employer or
carrier.
Id. (emphasis added). Therefore, under the statute, the employee has the right to choose one
competent physician and such other specialist to whom he is referred by his physician. PDN,
Inc. v. Loring, 843 So. 2d 685, 688 (¶10) (Miss. 2003). However, “[t]reatment rendered by
a physician or referrals from a physician other than the original treating physician that have
not been approved are not the responsibility of the employer or its insurance carrier.”
Wesson v. Fred’s Inc., 811 So. 2d 464, 467 (¶9) (Miss. Ct. App. 2002).
¶15.
There is no dispute that Mosby went outside of the chain-of-referral in his visits to
Drs. Duke, Hammitt, and Chiou. However, Mosby argues for the first time on appeal that
his medical expenses should be paid by Farm Fresh as the treatment constituted an
“emergency” pursuant to section 71-3-15(1), due to the fact that his referred pain
management doctor, Dr. Steuer, had relocated. Mosby reasons that it was unreasonable to
expect him to obtain treatment at Dr. Steuer’s new location in Southaven. In discussing the
workers’ compensation statute as it relates to medical expenses, the Mississippi Supreme
Court has defined an emergency as a situation which does not allow for a “reasonable
alternative consistent with the preservation of life or irreparable injury from delay.” Ingalls
Shipbuilding Corp. v. Holcomb, 217 So. 2d 18, 21 (Miss. 1968). We find that Mosby’s
obtaining medical treatment by a doctor outside of the chain-of-referral merely because it
was more convenient to his home did not constitute an “emergency” as contemplated by the
statute.
10
¶16.
“It is an evident requirement of [section] 71-3-15 that the selection of additional
treating physicians must be through a referral by the designated physician.” Fleming
Enters., Inc. v. Henderson, 741 So. 2d 309, 316 (¶27) (Miss. Ct. App. 1999). While it may
be understandable that Mosby did not to want to drive a long distance to see any of his
previously-approved physicians, it does not excuse him from neglecting to obtain approval
for the treatment received outside of the chain-of-referral. “When one party is responsible
for another party’s expenses, it is critical that some controls exist.” Wesson, 811 So. 2d at
468 (¶15). There was no serious effort by Mosby to obtain approval for the medical
treatment at issue, except to assert that the nurses/administrative staff at the respective
physician’s offices called to obtain approval on his behalf. He testified at the February 23,
2005, hearing that, when he went to the respective physicians’ offices, he told them that he
had a workers’ compensation claim and that the physicians’ office staff called Liberty
Mutual, which denied the claim. However, the medical records from Dr. Hammitt and Dr.
Chiou reflect that Mosby listed Blue Cross/Blue Shield as his insurance carrier.6
Additionally, Dr. Chiou testified in his deposition that Mosby did not inform him that the
treatment was for injuries arising from a workers’ compensation claim. There is nothing in
the record to suggest that Mosby himself attempted to make contact with Liberty Mutual,
either by phone or correspondence, to obtain approval.
¶17.
Alternatively, Mosby claims that, by making these medical bills part of his claim, he
received the Commission’s approval pursuant to section 71-3-15(1) for these expenses in its
6
This was Morgan Van Lines’s insurance carrier.
11
December 19, 2007, order. The statute allows a claimant to apply to the Commission for
“approval of the additional selection or referral, and if the [C]ommission determines that
such request is reasonable, the employee may be authorized to obtain such treatment at the
expense of the employer or carrier.” Miss. Code Ann. § 71-3-15(1). In Patrick, 5 So. 3d
1119 at (¶21), this Court held that section 71-3-15(1) requires that prior approval must be
obtained from either the employer or the Commission for physician referrals. We have
already concluded that Mosby never made a serious attempt to obtain approval from Farm
Fresh or Liberty Mutual prior to receiving treatment from Drs. Duke, Hammitt, and Chiou.
Additionally, it is clear that Mosby never obtained approval from the Commission prior to
said medical treatment. Consequently, we find that this claim by Mosby is without merit.
¶18.
We affirm the judgment of the circuit court as we can find no substantial evidence to
support the Commission’s finding that Farm Fresh should pay for Mosby’s medical expenses
outside of the chain-of-referral.
¶19. THE JUDGMENT OF THE CIRCUIT COURT OF SUNFLOWER COUNTY
IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
APPELLANT.
KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, ISHEE, ROBERTS,
CARLTON AND MAXWELL, JJ., CONCUR.
12
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