APPELLANT, CHRISTOPHER WALKER'S, MOTION FOR REHEARING

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1 E-Filed Document Sep :19: WC COA Pages: 16 IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI CASE No WC-0141S-COA 2016-WC COA CHRISTOPHER WALKER (Claimant) APPELLANT VERSUS KINDER MORGAN, INC. (Employer) and OLD REPUBLIC INSURANCE CO. (Carrier) APPELLEES APPELLANT, CHRISTOPHER WALKER'S, MOTION FOR REHEARING 1

2 STATEMENT OF THE ISSUES L THE COURT OF APPEALS ERRED AS A MATTER OF LAW AND FACT IN AFFIRMING THE ORDER OF THE MISSISSIPPI WORKERS' COMPENSATION COMMISSION OF SEPTEMBER 26, 2016, AND SHOULD BE REVERSED AND REMANDED. 2

3 STATEMENT OF THE CASE A. Course of Proceedings and Disposition. This is a Motion for Rehearing by Christopher Walker, hereinafter referred to as "Walker" or "Claimant/Appellant", who filed a workers' compensation claim against his Employer, Kinder Morgan, Inc., and its Carrier, Old Republic Insurance Company, hereinafter referred to as "Employer/Carrier." In the present workers' compensation claim, Christopher Walker filed a Petition to Controvert on or about June 9, 2015, alleging that on February 24, 2015, he received a workrelated injury to his back. The Employer/Carrier filed an Answer on June 15, 2015, denying the injury. A compensability hearing was held at the Jackson County Courthouse in Pascagoula, Mississippi, on January 13, The record remained open for a joint medical exhibit to be submitted by the parties. Following the post-hearing briefs, the administrative law judge decided the one and only issue of "whether the Claimant sustained a compensable work related injury on or about February 24, 2015." The full order of the administrative law judge, the Honorable Melba Dixon, which comprises thirty-nine (39) pages, was handed down on March 15, The administrative law judge concluded, inter alia, as follows: FINDINGS OF FACT Having heard the evidence presented by the parties and having considered the same, I based the following findings on a preponderance of the credible evidence including medical proof, as required by the Act: 3

4 1. The first issue before this Administrative Judge is whether a compensable work-related injury occurred on or about February 24, 2015, as alleged by the Claimant. Miss Code Ann (b) (1972) as amended, provides in pertinent part that: "Injury" means accidental injury... arising out of and in the course of employment without regard to fault which results from an untoward event or events, if contributed to or aggravated or accelerated by the employment in a significant marmer... Claimant testified that he was injured in the course and scope of his employment on February 24, 2015, while lifting a metal lid on a compressor. While there were no witnesses to the alleged accident and injury, it is undisputed that the Claimant was about the employer's business in performing his job duties and assisting a co-worker, Myers, in servicing a compressor on this date. Claimant was consistent in his testimony and came across as a credible witness. His testimony is neither unreasonable, nor unbelievable, considering the facts ofthis case and the evidence as a whole. In fact, it is noted by this Administrative Law Judge that Myers acknowledged that after the date of the alleged injury, he personally added an eye bolt to the top of the compressor to assist with lifting the lid. When asked if he has any reason to doubt the Claimant's credibility during the time that he has known him, Gilliand, the facility terminal manager, responded "No. He's a hard worker. He may embellish on some things, but - He's a good guy and a hard worker." ( emphasis supplied) Certainly reasonable minds can differ on the question of causation. However, in evaluation the evidence, this Administrative Judge must be mindful that an award must be based on a reasonable probability, and where reasonable minds can differ there is sufficient evidence to support an award. The evidence shows that the Claimant has a lengthy medical history dating back to Regarding the injury at issue, Claimant reported to his primary care physician, Dr. Furr three (3) days after the alleged work-related accident on or about February 27, Dr. Furr's medical records noted that the Claimant had lifted something heavy at work last week, that he had hurt his back and that his right foot was numb. Claimant was referred to Dr. Graham. Claimant saw Dr. Graham on or about March 15, 2015, for the injury at issue. He has treated the Claimant since Dr. Graham 4

5 testified about Claimant's past medical history to his neck and lower back. It is Dr. Graham's opinion that the February 24, 2015, lifting incident at work aggravated the Claimant's low back at L5-S 1 resulting in the need for surgery. He said before the lifting incident Claimant was prone to lumbar problems/back re-injury due to his preexisting developmental condition and because of his substantial history of preexisting low back problems. Although the February 24, 2015, incident aggravated Claimant's preexisting problems, the preexisting problems contributed to his current condition. Dr. Graham would not give a percentage as to how much of Claimant's current condition is due to the preexisting problems versus the lifting incident. He indicated, however, that the Claimant's work injury was the "straw that broke the camel's back." Dr. Amundson, the EME doctor who saw the Claimant once, is of the opinion that the Claimant did not injure his back while lifting the metal compressor lid on February 24, He opined the low back and right leg symptoms that the Claimant was experiencing were secondary to symptom magnification and/or preexisting symptomatic pathology at L5- S1. I find the medical opinion of Dr. Graham, the treating physician, to be more compelling than that of Dr. Amundson. Considering the factual setting ofthis claim and the evidence as a whole, I am persuaded that causation is supported by a reasonable medical probability. 2. Claimant's average weekly wage on the date of injury was $1,161.58, as stipulated by the parties. 3. Having suffered a compensable work-related injury, Claimant is entitled to reasonable and necessary medical services and supplies as the nature of his injuries and the process of his recovery requires, pursuant to the Mississippi Workers' Compensation Act. I find the surgery recommendation by Dr. Graham to be reasonable and necessary. 4. Claimant is entitled to temporary total disability benefits for his work-related injury from February 27, 2015, until he reaches maximum medical improvement. March 15, (R.E.3). 5

6 The Employer/Carrier filed a Petition for Review to the Full Commission. The order from the Full Commission dated September 26, 2016, reversed the order of the administrative law judge and dismissed the claim. From the Commission's ruling Walker appealed to Mississippi Supreme Court which ultimately referred the case to the Court of Appeals. Noteworthy is the fact that the Commission's decision was not a unanimous decision but a 2-1 decision with Commissioner Thomas A Webb having entered a dissenting opinion as follows: "Although the Commission has voted to reverse the Order of Administrative Judge entered on March 15, 2016, I respectfully disagree with that decision and therefore must dissent. Based on the evidence presented in the record, I find that the Claimant has established that he sustained a lifting injury at work on February 24, 2015, that "aggravated" his pre-existing lumbar spine problems, or "accelerated" his need for surgical repair of the lumbar spine at the L5-S 1 level. Miss. Code Ann (b). The existence ofa pre-existing disease or infirmity of the employee does not disqualify a claim under the "arising out of employment" requirement of the Act, if the employment aggravated, accelerated or combined with the disease or infirmity to produce the disability for which compensation is sought. Ingalls Shipbuilding Corp. v. Byrd, 216 Miss. 234, 60 So.2d 645 (1952); see also Tate v. Dr. Pepper Bottling Company, 220 Miss. 311, 70 So.2d 602 (1954); Marshall Durbin, Inc. v. Hall, 490 So.2d 877, 880 (Miss. 1986); Bolton v. Catalytic Construction Co., 309 So.2d 167, 172 (Miss. 1975); and Miller Transporters, Inc. v. Guthrie, 554 So.2d 917, 919 (Miss. 1989). Accordingly, I would affirm the Order of the Administrative Judge." (Emphasis added.) Commissioner Webb Dissent. (Commission Order, pg.9, September 26, 2016). (R.E.4). 6

7 ARGUMENT I. THE COURT OF APPEALS ERRED AS A MATTER OF LAW AND FACT IN AFFIRMING THE ORDER OF THE MISSISSIPPI WORKERS' COMPENSATION COMMISSION OF SEPTEMBER 26,2016, AND SHOULD BE REVERSED AND REMANDED. In this petition for rehearing Christopher Walker is asking the majority to reconsider their opinion in light of the dissent in this case. When viewed in its entirety, the evidence, facts and sworn testimony presented in this case support a reversal of the Commission's order. The Court of Appeals' affirmance of the Commission's order denying Claimant's benefits stated that the "Claimant failed to establish the existence of a compensable injury occurring at work on February 24, 2015," is not supported by substantial evidence. The Claimant is not asking this Honorable Court to simply re-weigh the evidence, but rather the Commission and the Court of Appeal's order were clearly erroneous and contrary to the overwhelming weight of the credible evidence. This particular decision of the Commission and the Court of Appeals fails to take into consideration that the Full Commission held the Claimant to a higher burden of proof in establishing his prima facie case of disability by a fair preponderance of the evidence that 1) an accidental injury occurred; 2) which arose out of and in the course of employment; and 3) that the injury and claimed disability are causally connected. See Harrison Cty. Bd. of Sup 'rs v. Black, 127 So.3d 272, 275 (Miss. Ct. App. 2013) (citing Hedge v. Leggett & Platt, Inc., 641 So.2d 9, 13 (Miss. 1994). Once the claimant establishes a prima facie case of disability, the burden of proof shifts to the employer to rebut or refute the claimant's evidence. See Thompson v. Wells-Lamont Corp., 362 SO.2d 638, 641 (Miss. 1978). The Court of Appeals, as well as the 7

8 Full Commission, failed to set out what testimony was more believable than that of the credible testimony found by the Administrative Law Judge and the dissenting opinion outlined above. The only facts cited by this Honorable Court was that six ( 6) depositions of the Employer/Carrier's employees were submitted during the compensability hearing and that four ( 4) of the six ( 6) merely reiterated Kinder Morgan's policy that injuries be reported immediately and that the depositions of Gillion and Stillson contradicted Claimant's testimony that it was not reported for only three (3) days. Notices of injuries are required to be filed within 30 days according to the Mississippi Workers' Compensation Law. See (1). Further, the Full Commission, as well as the Court of Appeals herein, state that the Full Commission (2 Commissioners) found that the greater weight of the evidence did not support the medical causation required to establish compensability. The Administrative Law Judge and the dissent by Commissioner Webb of the Full Commission found otherwise. The sworn deposition of Dr. Eric Graham was submitted, which supported causation and was submitted to the Administrative Law Judge and the Full Commission. A one-time exam and medical report was submitted by Dr. Eric Amundson (Employer/Carrier Examiner) who only stated in his records that he felt that the Claimant's symptoms upon his one-time evaluation were exaggerated and that the reported lack of strength in the muscle groups was non-physiologic in nature. Dr. Amundson stated the surgery recommended by Dr. Eric Graham was not warranted in the claim. His further opinion was that the Claimant did not sustain an injury, only a temporary aggravation to a pre-existing condition during his work activities on February 24, However, there was nothing in Dr. Amundson's one time medical report to support that supposition. This Honorable Court states on Page 11 of 8

9 its decision that Walker could not cite to any specific action of the Commission to illustrate that it acted arbitrarily or capricious, however, more than credible evidence was submitted as the Appellant set out in his original brief how Dr. Graham's testimony was more compelling through a sworn deposition and Dr. Graham, who has treated him since 2008, was in the best position to evaluate his particular injury and causation. Most importantly, this ruling creates a dangerous precedent for workers in the future in that the Commission and the Court of Appeals has basically upheld a position in this case that if your accident is not reported on the first day that you are injured, you are going to be precluded from workers' compensation benefits. It is very dangerous precedent for the Court of Appeals and the Full Commission in not considering sworn testimony over that of a one-time medical report that is unsworn. Wbere are the checks and balances for an Administrative Law Judge or Workers' Compensation Commission in making credibility determinations? Are we going to subject injured workers to not receiving workers' compensation benefits on a one time report without clearly considering the sworn testimony of a Board Certified Orthopaedic Surgeon with a spine fellowship? The Commission, as well as the Court of Appeals, in the final page of its opinion, Page 8, stated: "The evidence used to prove the causation must be credible medical evidence and not mere speculation." The Commission has failed to set out how Dr. Eric Graham was speculating about the treatment, history received from the Claimant or causation Oplllion. How can the Workers' Compensation Commission and the Court of Appeals find Dr. Amundson' s testimony more compelling as he did not testify in the case and all that was submitted was a medical report? This is a very dangerous precedent for this Court to allow a 9

10 medical report, untested, not cross-examined, to be used to deny an injured worker to those benefits to which he is rightfully entitled to under the Mississippi Workers' Compensation Act unless there is significant credibility problems with the Claimant's testimony or huge contradictions in his testimony as to how he was injured on the date in question. Dr. Graham testified that he received the information regarding the automobile accident and received proper information from the Claimant through his history that he had recovered totally from the automobile accident prior to his work related injury. The Court of Appeals cites the same language used in the Commission's opinion "the evidence used to prove the causation must be credible medical evidence and not mere speculation. See Langford v. Southland Trucking LLC, 30 So.3d 1266, 1280 (if52) (Miss. Ct. App. 2010)." The Commission and this Court of Appeals do not set out any facts about the testimony of Dr. Graham as to how his opinions were speculative. The Mississippi Supreme Court has held time andtime again that the tests for work connection in a workers' compensation statues - "arising out of in the course of employment" is a term of art in workers' compensation law. The chosen language differs markedly from proximate cause in tort law. The workers' compensation test is much more easily met test of work connection and contains no element or fault. In legal analysis, the two parts of the phrase are often discussed separately: 1) arising out of employment ( causal connection); and 2) arising in the course of employment (time, place and situation). However, as written, the statutory language requires that the risk of injury arise out of the employment and in the course of employment, and the two parts of the test are not to be considered independent, one from the other. This is a unitruy test of work connection. 10

11 For instance, there is no requirement that the injury occurred during the course of employment. That is, while time and place of the activity are frequently pertinent to the arising issue, if the work contribution is present, there is no requirement that the injury actually happened during work hours on a work premises. See Mississippi Research and Development Center v. Dependents of Shults, 287 So.2d 273 (Miss. 1973) ( employee died in his kitchen at home; work place stress contributed to his heart attack); Walker Manefacturing Co. v. Pickens, 206 So.2d 639 (Miss. 1968) (symptoms began one evening at work; substantial hemorrhage occurred the next morning at home). The Mississippi Supreme Court has summarized the approach as follows: "The statutory language "arising out" and "in the course of' creates a requisite for compensability. Broadly, "arising out of' calls for some causal connection between the employment and the injury. However, the employment need not be the sole cause of the injury; it is sufficient if it rationally contributes to it. ( citing omitted) Reasonable relation of employment and injury may involve minimal causation, less than needed for liability in the field of torts. ( citing omitted) ( emphasis added) The decisions also display the breadth of the phrase "in the course of" This phrase is satisfied whenever the injury resulted from activity which is ( 1) in its overall contours actuated at least in part by a duty to serve the employer, or (2) reasonably incidental to employment. Incidental activities have been held to include such personal pursuits as cleaning teeth, smoking and procuring tobacco and going to the telephone. ( citing omitted) We permitted compensation for emotional upset resulting from an employee's purchase of a bottle of soft drink containing a mouse. The purchase of soft drinks was without doubt "purely personal" but being rationally connected with the employment, customary and expectable, compensation was allowed. See Big 2 Engine Rebuilders v. Freeman, 379 So.2d 888, 890 (Miss. 1980). Also see Mississippi Workers' Compensation, Mississippi Practice Series 2017 Ed. Section 4.1, Pg " 11

12 Regarding medical evidence of connection between work and injury, the following is quoted in the Treatise Mississippi Workers' Compensation by Bradley & Thompson, 2017 Edition, Chapter 4, Section V. MEDICAL EVIDENCE OF CONNECTION BETWEEN WORK AND INJURY, Section 4:20 Generally: "Medical evidence frequently is needed to show the connection between the work and the injury. There is no statutory mandate for medical support for causation as there is for the extent of disability, but, in an early case, the court observed that "[iln all but the simple and routine cases..., it is necessary to establish medical causation by expert testimony". In a case involving a complicated interplay of physical and mental components, the court noted that: "Medical testimony is not essential on every industrial injury case to establish the fact, character, and consequences of an accident or injury, but is necessary in cases where there is a serious question resolvable only by skilled determination and which is not within the knowledge of lay witnesses or members of the fact finding tribunal." See Bates v. Merchants Co., 161 So.2d 652 (1964). Opinion regarding causation from another kind of expert may be as appropriate as that of a medical doctor. In a claim of work related death caused by exposure to chemicals, for example, the court recognized that "biochemists and toxicologists are at least equally competent to testify as to the cause and effect of chemicals in our environment as medical doctors." The issue of whether the expert witness "is in fact qualified - by knowledge, skill, experience, training or education - not by what degree he holds." The court has ruled that "medical testimony, to sufficiently support causation, must be more than mere conjecture." See Segar v. Garan, Inc., 388 So.2d 164 (Miss. 1980) and Dixie Contractors, Inc. v. Asmore, 349 So.2d 532 (Miss. 1977). Inferences properly can be drawn of the physician's intent to testify to causal connection although the exact words are not so precise." 12

13 Depending on the particulars of the injury, the Commission may find the opinion of a medical specialist more persuasive than that of a general practitioner and may or may not conclude that the treating physician is more knowledgeable about the worker's condition than a physician chose to do a medical evaluation only. Likewise the Commission may choose to give more weight to the opinion of a medical expert if it has selected to do so, an independent medical examination. In this particular case, there was no independent medical examiner but only an Employer chosen examiner who, quite frankly, was hired and paid for by the Employer/Carrier in this case. An injury arises out of employment "if contributed to or aggravated or accelerated by the employment." See Mississippi Code Annotated (b). In other words, the Claimant's preexisting weakness or infmnity does not defeat his or her claim for benefits when the work incident is a contributing cause of the disability. This is so even if the employer has no knowledge of the workers' pre-existing condition. As the Supreme Court has said, "employer takes its employees as they are." The aggravation issue can be carried further. When an injury is work connected, all medical problems or disabilities that derive from that primary injury or the process of worker's recovery therefrom are also compensable, so long as the progression of complication has some causal relationship to the original injury and is not the result of an intervening independent mjury. The Commission and Court of Appeals have failed to take into consideration the testimony of the Claimant that he had worked for 3-4 years for Kinder Morgan and had not 13

14 missed any worked based upon his prior back injury and had carried out all of the heavy physical requirements of his position and was an excellent worker. Further, the Claimant testified, uncontradictedly, that he did have a car wreck just prior to his industrial accident, but he had returned to work and there was no testimony from any doctor indicating any type of exacerbation of his previous pre-existing condition. Further, there is no testimony to indicate that the Commission did not believe the Claimant in his testimony of how the injury occurred and there was no substantial testimony to contradict his testimony by his co-employees. The Court of Appeals basically just quoted the same evidence that the Commission quoted, which was not supported by substantial evidence to deny the compensation benefits the Claimant was entitled to under the Mississippi Workers' Compensation Act. When you consider this case as a whole, we have an Administrative Law Judge who found that the Claimant sustained his burden of proof and persuasion and we have a dissenting Commissioner on the Commission who also held that way against two Commissioners. Therefore, this case should be reviewed and scrutinized by the Court of Appeals again to determine whether there is truly substantial evidence to support the Commission's decision. CONCLUSION Christopher Walker (Claimant! Appellant) would. submit that the Commission and Court of Appeals erred as a matter of law and fact in failing to apply Mississippi Workers' Compensation Law correctly to the facts herein and that substantial evidence does not support the finding of the Commission. Based on this Motion for Rehearing, Christopher Walker respectfully requests this Honorable Court to reevaluate and reconsider its opinion of September 19, 2017 and reverse and remand this case on the merits. Christopher Walker would submit to this Honorable Court that after 14

15 the foregoing is reviewed in its entirety, this Honorable Court will be left with a clear and finn conviction that a mistake has been made by the Commission and the Court of Appeals in their application of the law and fact. Christopher Walker respectfully requests this Honorable Court to reconsider its September 19, 2017, opinion in light of the facts and law it failed to consider in its earlier opinion. ~7"'- Respectfully submitted, this~ day of September, CHRISTOPHER WALKER, APPELLANT By: 15

16 CERTIFICATE OF SERVICE I, undersigned counsel, hereby certify that I have this day electronically filed the foregoing pleading or other paper with the Clerk of the Court using the MEC system which sent notification of such filing to the following: Jeff Skelton, Esquire, attorney for the Appellees; and by US mail, postage prepaid to the Honorable Melba Dixon, Administrative Law Judge with the Mississippi Workers' Compensation Commission, P. 0. Box 5300, Jackson, MS '/I- SO CERTIFIED, this the$ day of September, s:/james K. WETZEL JAMES K. WETZEL, ESQUIRE (MS Bar No. 7122) GARNERJ. WETZEL, ESQUIRE (MS Bar No ) WETZEL LAW FIRM th Avenue Post Office Box I Gulfport, MS (228) (ofc); (228) (fax) jkwetzel@wetzellawfinn.com gjwetzel@wetzellawfirm.com RUSSELL S. GILL, ESQUIRE (MS Bar No. 4840) Russell S. Gill, PLLC 638 Howard Avenue Biloxi, MS rsgill@rsgill-lawfirm.com ATTORNEYS FOR APPELLANT (Claimant) 16