Barber Seafood, Inc., et al. v. Smith
| Docket Number: | 2003-WC-01343-COA Linked Case(s): 2003-CT-01343-SCT ; 2003-CT-01343-SCT ; 2003-CT-01343-SCT ; 2003-WC-01343-COA |
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| Court of Appeals: |
Opinion Link Opinion Date: 08-03-2004 Opinion Author: Southwick, P.J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Workers’ compensation - Maximum medical improvement - Loss of wage earning capacity - Admission of opinion Judge(s) Concurring: King, C.J., Bridges, P.J., Lee, Irving, Myers, Chandler and Griffis, JJ. Procedural History: Admin or Agency Judgment Nature of the Case: CIVIL - WORKERS' COMPENSATION |
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| Trial Court: |
Date of Trial Judgment: 03-12-2003 Appealed from: Pearl River County Circuit Court Judge: R. I. Prichard, III Disposition: WORKERS' COMPENSATION COMMISSION DECISION AFFIRMED AS TO L4-5 REGION BACK INJURY, EVIDENTIARY RULINGS, AND REVERSAL OF THE ALJ AS TO PERMANENT LOSS OF WAGE EARNING CAPACITY - REVERSED AND REMANDED AS TO L5-S1 INJURY Case Number: CVV2002-0536 |
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| Note: | Supreme Court later affirmed in part, reversed and rendered in part this decision. See Supreme Court decision at http://courts.ms.gov/Images/OPINIONS/CO27887.PDF | |
| Party Name: | Attorney Name: | |||
| Appellant: | Barber Seafood, Inc. d/b/a Uncle Chesters Fish House and Mississippi Restaurant Association Workmen's Compensation Trust |
SHANE CURTIS WHITFIELD
JOHN S. GONZALEZ
ROBERT ELLIOTT BRIGGS |
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| Appellee: | Sandra Louise Smith | WILLIAM H. JONES |
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Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Workers’ compensation - Maximum medical improvement - Loss of wage earning capacity - Admission of opinion |
| Summary of the Facts: | While employed as head cook at Uncle Chesters Fish House, Sandra Smith slipped and fell because of water and grease on the kitchen floor of the restaurant. The administrative law judge held that Smith failed to meet her burden of proof that there was a causal connection between her condition and the accident and that Smith had suffered no loss of wage earning capacity and was not entitled to any permanent disability benefits. Smith appealed to the Workers' Compensation Commission which reversed as to permanent disability and permanent loss of wage earning capacity. Smith appealed to circuit court and Barber Seafood cross-appealed. The circuit court affirmed the Commission's findings that Smith suffered a 25% loss of wage earning capacity and reversed the finding that Smith reached maximum medical improvement for the L5-S1 injury on June 28, 2000. The Commission was also found in error in concluding that surgery was not medically reasonable and necessary. Barber Seafood appeals, and Smith cross-appeals. |
| Summary of Opinion Analysis: | Issue 1: Maximum medical improvement Barber Seafood argues that the court erred in reversing the Commission's finding that Smith reached maximum medical improvement on June 28, 2000. This date corresponds to the date on which a pain management specialist disclosed in his office progress notes that "if she is not interested in further injections, then I have little else to offer her." While the Commission found that there was no causal connection between the condition at L4-5 and the accident, neither of the three surgeons recommended an operation on one disc problem, leaving the other untouched. A single operation on both certainly is reasonable. If the surgery ultimately is undertaken, a decision could be made then about whether Smith should be responsible for some of the costs attributable to surgery at the L4-5 level. None of the three surgeons stated that spinal surgery was unwarranted. To the contrary, all stated that it was an option for Smith to consider. None released Smith to return to work or stated a date of maximum medical improvement. The Commission's decision that none of the surgeons concluded that surgery was reasonable or necessary is not supported by substantial evidence. The refusal to undergo recommended surgery that would improve her condition prevents the claimant from being found to have reached maximum medical improvement. For now at least, Smith is entitled to be continued on temporary partial disability. Issue 2: Loss of wage earning capacity Barber Seafood argues that the Commission erred in awarding disability benefits for a loss of wage earning capacity, because Smith did not demonstrate acceptable efforts to find other employment. Smith's search was not so unreasonable as to preclude an award altogether. Therefore, the Commission's finding of a 25% loss of future earning capacity will remain undisturbed. Issue 3: Admission of opinion Smith argues that the injury at the L4-5 level was causally related to the work injury and that the introduction of the opinions of Dr. Gutnisky to the contrary were in error. The argument against accepting Dr. Gutnisky's evidence focuses on whether Barber Seafood gave proper notice of the evidence. The doctor's deposition was taken after the hearing before the administrative judge. All parties were present for the deposition. The rules of the Commission specifically permit additional evidence to be taken after the initial hearing and for the Commission itself to take evidence. Therefore, there was no error in the exercise of discretion by the administrative judge and the Commission to consider this deposition. |
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