BRIEF OF THE APPELLANT

Transcription

1 E-Filed Document Oct :28: WC COA Pages: 36 CASE NO WC COA IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI TIMOTHY PRICE, APPELLANT v. MTD PRODUCTS AND SAFETY NATIONAL CASUALTY CORPORATION, APPELLEES (On appeal from the Mississippi Workers' Compensation Commission, MWCC No.: M-3505) BRIEF OF THE APPELLANT ORAL ARGUMENT REQUESTED J. KEITH PEARSON (MSB # 9753) SARAH L. DICKEY (MSB # ) The Pearson Law Firm, PLLC 428 North Lamar Blvd, Suite 108 Oxford, MS Telephone: Facsimile: Attorneys for TIMOTHY PRICE

2 TIMOTHY PRICE IN THE COURT OF APPEALS OF MISSISSIPPI NO WC COA CLAIMANT/APPELLANT VS. MTD PRODUCTS AND SAFETY NATIONAL CASUALTY CORPORATION EMPLOYER/APPELLEE CARRIER/APPELLEE CERTIFICATE OF INTERESTED PERSONS The undersigned counsel of record certifies that the following listed persons have an interest in the outcome of this case. These representations are made in order that the Justices of the Mississippi Supreme Court and/or the Judges of the Court of Appeals Court may evaluate possible disqualification or recusal: Sarah L. Dickey Hon. Melba Dixon MTD Products Attorney for Claimant/Appellant Mississippi Workers Compensation Commission Administrative Law Judge Employer and Appellee J. Keith Pearson Attorney for Claimant/Appellant Timothy Price Ginger M. Robey Safety National Casualty Corporation Claimant and Appellant Attorney for Employer and Carrier/Appellees Carrier and Appellee SO CERTIFIED, this, the 21st day of October, i /s/ _J. Keith Pearson Attorney for Appellant

3 TABLE OF CONTENTS Certificate of Interested Persons... Table of Contents... Table of Authorities... Request for Oral Argument... Page i ii iii iv Statement of the Issues... 1 Statement of the Case... 2 I. Procedural History... 2 II. Statement of Facts... 3 Summary of the Argument... 9 Argument I. WHILE THIS COURT SHOULD EXAMINE THIS MATTER UNDER A DE NOVO STANDARD DUE TO THE LEGAL ERRORS IN THE COMMISSION S ORDER, THE COMMISSION S RULING IS ALSO DEFICIENT UNDER A SUBSTANTIAL EVIDENCE STANDARD OF REVIEW II. III. THE COMMISSION ADOPTED A MEDICAL FINDING FROM THE IME PHYSICIAN THAT CLAIMANT HAD SUSTAINED AN AGGRAVATION, AND YET THE COMMISSION STILL FAILED TO FIND CLAIMANT HAD SUSTAINED A WORK-RELATED INJURY, EVEN THOUGH AN AGGRAVATION IS UNQUESTIONABLY INCLUDED WITHIN THE SCOPE OF THE DEFINITION OF A WORK-RELATED INJURY THE COMMISSION'S DECISION IS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE Conclusion Certificate of Service ii

4 TABLE OF AUTHORITIES Mississippi Supreme Court Cases Page Chapman, Dependents of v. Hanson Scale Co., 495 So.2d 1357 (Miss.1986)... 14, 15 Hale v. Ruleville Health Care Ctr., 687 So.2d 1221 (Miss. 1997) Hedge v. Leggett & Platt, 641 So.2d 9 (Miss. 1994) , 15 Johnson v. Ferguson, 435 So.2d 1191 (Miss. 1983)... 12, 28 KLLM, Inc. v. Fowler, 589 So.2d 670, 675 (Miss. 1991)...12, 15, 16 McNeese v. Cooper Tire and Rubber Co., 627 So.2d 321 (Miss. 1993) Rathborne, Hair & Ridgeway Box Co. v. Green, 115 So.2d 674 (Miss. 1959) Reichhold Chemical, Inc. v. Sprankle, 503 So.2d 799 (Miss. 1987)... 27, 28, 29 Short v. Wilson Meat House, LLC, 36 So.3d 1247 (Miss. 2010) Smith v. Tippah Elec. Power Ass'n, 138 So.3d 900 (Miss. 2014) South Cent. Bell Telephone Co. v. Aden, 474 So.2d 584 (Miss. 1985) Mississippi Court of Appeals Cases Beverly Healthcare v. Hare, 51 So.3d 223 (Miss. Ct. App. 2010) Bryan Foods, Inc. v. White, 913 So.2d 1003 (Miss. Ct. App. 2005) DiGrazia v. Park Place Entm't, 914 So.2d 1232 (Miss. Ct. App. 2005) Guy v. B.C. Rogers Processors, Inc., 16 So.3d 29 (Miss. Ct. App. 2008)... 12, 13 J.R. Logging v. Halford, 765 So.2d 580 Miss. Ct. App. 2000) Wal-Mart Stores, Inc. v. Fowler, 755 So.2d 1182 (Miss. Ct. App. 1999) White v. Mississippi Dept. of Corrections, 28 So.3d 619 (Miss Ct. App. 2009) Statutes Miss. Code Ann iii

5 REQUEST FOR ORAL ARGUMENT Pursuant to Mississippi Rules of Appellate Procedure, Rule 34(b), Appellant hereby requests that this Honorable Court grant oral argument in this matter. Because there is room for development of the legal issues involved in this case, Appellant believes that oral argument is necessary to fully answer any questions the Court may have and to ensure sufficient discussion of the applicable law. iv

6 STATEMENT OF THE ISSUES I. Whether an aggravation of a pre-existing condition constitutes a work-related injury under the Mississippi Workers Compensation Statute. II. Whether this Court should apply a de novo standard of review to this matter, given the Commission s failure to recognize that an aggravation of a pre-existing condition stemming from work activities is included under the auspices of compensable injuries under the Mississippi Workers Compensation Act. III. IV. Whether the Commission decision is otherwise supported by substantial evidence. Whether the Commission erred in failing to consider and address the entire record in reaching its decision in this matter. 1

7 STATEMENT OF THE CASE I. PROCEDURAL HISTORY After working for MTD Products for twenty-three years performing a heavy manuallabor job, Mr. Price sustained injuries to his cervical and lumbar spine on September 6, R. Vol. 2, p Mr. Price reported his injury to his supervisor David Swain, and the company nurse, Janice Moore on September 6, 2013, and was directed by Nurse Moore to go to Dr. Timothy Albers at Med Serve for treatment. R. Vol. 2, at p Employer then waited until November 1, 2012 to prepare a Supervisor's Incident Investigation Form of Mr. Price's reported accident, and the Carrier later denied that Mr. Price's cervical and lumbar injuries were a compensable injury sustained in the course and scope of his employment with Employer. Employer and Carrier's Exhibit 8; R. Vol. 1, at p. 3. No medical or indemnity benefits were ever paid to Mr. Price by Employer and Carrier. R. Vol. 1, at p. 1. On May 17, 2013, Mr. Price filed his Petition to Controvert with the Mississippi Workers' Compensation Commission. R. Vol. 1, at p. 1. Employer and Carrier filed their Answer on May 20, 2013, asserting that Mr. Price had "no work related injury." R. Vol. 1, at p. 3. A compensability hearing was held before Administrative Law Judge Melba Dixon ("ALJ") on August 18, R. Vol. 2, at p. 1. On October 16, 2015, the ALJ issued her written Order, finding that "a preponderance of the evidence presented shows that Claimant suffered a compensable work-related cervical and low back injury on or about September 6, 2012, when he aggravated his pre-existing condition." R. Vol. 1, at p. 74. Employer and carrier appealed the ALJ's decision to the Full Commission on October 26, R. Vol. 1, at p Following oral arguments on April 11, 2016, the Full 2

8 Commission reversed the ALJ's decision on June 13, 2016, finding that "the greater weight of the evidence in this claim does not support a finding of causation required to establish compensability in this claim." R. Vol. 1, at p Claimant timely filed his Notice of Appeal of the Full Commission's decision on June 24, R. Vol. 1, at p II. STATEMENT OF FACTS A. Mr. Tim Price has a limited intellect and is effectively illiterate. Tim Price was born on August 25, When he attended school as a youth, he was placed in special education classes. R. Vol. 2, at p. 6. Mr. Price testified that most of his grade promotions were social promotions. R. Vol. 2, at p. 6. Even in these classes, Mr. Price was unable to effectively complete the requirements for graduation and he ultimately dropped out of school to get a job. R. Vol. 2, at p.6-7. Mr. Price's reading ability is extremely limited. R. Vol. 2, at pp and 79. Much of the written documentation he submitted relating to the work accident was prepared by his wife. R. Vol. 2, at p. 79. At the hearing, he became confused easily and was obviously unable to understand a number of the questions presented to him. R. Vol. 2, at pp and B. During his 23 years of working for MTD, Mr. Price was a model employee. After Mr. Price left school, he worked in a couple of short-lived jobs before going to work for MTD Products in R. Vol. 2, at p. 7. Mr. Price worked continuously for MTD from 1989 until shortly after he sustained the work-related injury. R. Vol. 2, at pp. 7, 59. Mr. David Swain, who was Mr. Price's supervisor, testified at the hearing that Mr. Price was an exemplary worker. Per Mr. Swain, Tim Price would routinely show up to work early for his shift, which was scheduled to start at 6:30 a.m. R. Vol. 2, at p. 49. In response to 3

9 questions posed by the Administrative Judge, Mr. Swain further expounded on Mr. Price's work ethic: "He was always on time. He never missed. He did a great job at work and he always stayed late when he was needed." R. Vol. 2, at pp C. Mr. Price's job with MTD for 23 years consisted of extremely heavy and physically-challenging work. Since 1990, Tim Price had the same job responsibilities for MTD, which is a company that manufactures lawn equipment, including lawnmowers, snow blowers, edgers and tillers. R. Vol. 2, at p. 9. Mr. Price spent a portion of his day driving a tow motor, which aids in picking up and transporting boxes. R. Vol. 2, at p. 9. However, when the production lines became backed up or there were problems with the products coming down the regular line, Mr. Price would have to quickly physically pick up large boxes from an overflow line and manually stack the boxes, with no help from the tow motor or any other assistive device. R. Vol. 2, at p As would be expected with boxes containing lawnmowers, snow blowers, edgers and tillers, these boxes were uniformly heavy. Mr. Price estimated the weights for the various boxes to range from 50 to 120 pounds. R. Vol. 2, at p. 12. Mr. Swain estimated the boxes to weigh between 50 and 95 pounds each and to average 75 pounds per box. R. Vol. 2, at p. 47. Mr. Price testified that the boxes were stacked off a line to the floor, at a fast pace, with four boxes to a level. R. Vol. 2, at p. 11. The individual stacking off would stack the boxes two or three levels high. R. Vol. 2, at p. 11. Per Mr. Swain, the amount of stacking off performed on any given day varied from once every couple of hours to twice every thirty minutes. R. Vol. 2, at p. 50. Neither Mr. Swain nor any other witness disputed Mr. Price's description of his job responsibilities or his description of the work he was doing on the day he was injured. R. Vol. 2, at p. 50. According to 4

10 of the Code of Federal Regulations, Mr. Price's job would be classified as "Very Heavy Work", which is the most strenuous classification possible. Both Mr. Swain and Mr. Price also testified about the accident occurring during the slow time of the year for MTD, which has a somewhat seasonal business. Per Mr. Swain, the number of employees he supervised ranged from 60 during the busy season to 15 during the slow season. R. Vol. 2, at p. 46. Since September was the slow season, Mr. Swain testified that he was supervising probably around 15 employees when Mr. Price was injured. R. Vol. 2, at p. 46. When Mr. Price was testifying about how his injury occurred, he emphasized that the slow season is actually when he had to perform more stacking off: I was stacking off the lawnmowers trying to get back on the tow motor and move them out of the way because I didn't have no help back there. I was moving them out of the way and I had to wrap them myself, too. You have to do all of that when it's slow, but when it's busy, see, they have people back there stacking off. They have people back there wrapping, you know. You don't have to jump up and down off the clamper. R. Vol. 2. at p. 16. [Emphasis added.] D. Mr. Price sustained a compensable work injury to his low back and a compensable work injury to his neck on September 6, Tim Price testified that on September 6, 2012, he was engaging in his normal job duties, which included significant manual lifting of very heavy boxes, as described above. Around mid-day, he began feeling pain in his back and neck. R. Vol. 2, at pp Mr. Price testified that he was engaged in heavy lifting at work immediately prior to the onset of his symptoms, and employer and carrier cannot dispute this critical fact. R. Vol. 2, at p. 16. At the hearing, employer and carrier called Mr. Swain who testified that Mr. Price did approach him at some point, which may have been September 6, 2012, and ask to 5

11 go to the doctor for neck and back pain, but that Mr. Swain did not recall Mr. Price reporting that the pain was related to his work. R. Vol. 2, at pp and 48. Ms. Janice Moore, the company nurse, testified that she did not recall speaking to Mr. Price about an injury at all on September 6, 2012, but, it was possible Mr. Price may have come to her about a non-work-related problem. R. Vol. 2, at p. 56. The employer and carrier further provided testimony that the first Ms. Moore heard of a work injury was on October 30, 2012, when, according to Ms. Moore, Mr. Price called to report the injury of September 6, 2012 as work-related. R. Vol. 2, at pp Regardless, all witnesses agreed that Mr. Price had been performing very heavy lifting in the course of performing his job for MTD, when Mr. Price approached the employer and asked to be allowed to leave to see a doctor. E. Dr. Glenn Crosby, Mr. Price's primary treating physician, testified unequivocally that Mr. Price's cervical injury was caused by Mr. Price's performance of his job at MTD and that Mr. Price's pre-existing back condition was aggravated by the job-related lifting. Dr. Glenn Crosby, Mr. Price's primary treating physician, is a board certified neurosurgeon. The doctor testified by deposition, which was submitted at the hearing as General Exhibit 4. In this deposition, Dr. Crosby testified that he began treating Mr. Price on October 26, 2012, at which time Mr. Price was complaining of low back pain and, separately, cervical pain with radiation into the left arm. General Exhibit 4, p Dr. Crosby concentrated his early treatment on the cervical condition, as it was more severe at that time. General Exhibit 4, p After performing an MRI, which revealed a cervical disc rupture, Dr. Crosby performed surgery on February 6, 2013, to address the disc rupture. 6

12 General Exhibit 4, p. 7. In June of 2013, Dr. Crosby ordered a follow-up MRI on the lumbar spine, but this test was never conducted because the employer had terminated Mr. Price's health insurance. General Exhibit 4, p. 8. At the deposition, Dr. Crosby was provided with an excerpt from Mr. Price's deposition, in which Mr. Price described his work injury. General Exhibit 4, p. 9. (The excerpt was attached as Exhibit 3 to Dr. Crosby's deposition). Dr. Crosby indicated that the description set out in the deposition was consistent with the history provided by Mr. Price on his first visit. General Exhibit 4, p. 9. Dr. Crosby testified unequivocally, consistently, repeatedly and to a reasonable degree of medical probability that the cervical injury was caused by Mr. Price's employment and, specifically, Mr. Price's work-related exposure on September 6, General Exhibit 4, pp 10, 20, 21 and 23. Further, with regard to Mr. Price's lumbar problems, Dr. Crosby testified that these problems were more chronic than the neck problems, but that, nonetheless, Mr. Price's work injury aggravated these problems. General Exhibit 4, pp and 19. F. Dr. Rodney Olinger, the IME physician in this matter, testified that Mr. Price's cervical condition was caused by the work injury and that the low back condition was aggravated by the work exposure. Dr. Rodney Olinger performed an IME in this matter. His deposition was introduced as General Exhibit 6 at the hearing. Dr. Olinger testified as follows as to causation with regard to the cervical injury: Q. [By claimant's counsel] So, again, if Mr. Price on September 6, September 5, 2012 wasn't having problems with his neck, goes to work doing this lifting, doing the driving of the forklift with his arms and such and doing 7

13 the lifting, develops the problems manifest at work, worsened, get worse to where at the end of the day he's saying I need to see a doctor, would you relate what he was doing at work, would that be the cause of his neck problems? A. [By Dr. Olinger] Yes. I mean, that is the most likely cause. We don't have any other history. We don't suspect any other history. We're not given any other history. We have no reason to believe there's other history, so I would have to say yes. General Exhibit 6, p. 19, lines With regard to the lumbar aggravation, Dr. Olinger testified as follows: Q. [By claimant's counsel] But let me ask you a similar question. Obviously, Mr. Price had been treated for lumbar problems in 2009 and had had some intermittent lumbar problems -- I believe he testified in his deposition that he had some lumbar problems from, you know, kind of -- he would come home and his back would be hurting or his leg would be hurting, saw him between 2009 and But if Mr. Price were to testify that his lumbar pain worsened significantly on September 6 of 2012, would there be anything in the medical records that you've reviewed or your examination which would lead you to think that he was lying about that? A. [By Dr. Olinger] Nothing leads us to believe he's lying in anything that I have mentioned at all or that I have seen in his records. Q. [By claimant's counsel] And with regard to the lumbar injury, would you at least say that what happened on September 6, 2012 was an aggravation of his preexisting lumbar problems? A. It was an aggravation of his low back problems. That's what I would have to say. General Exhibit 6, p. 20, lines & p. 21, lines [Emphasis added.] While the deposition is important in its entirety, the following testimony further supports Mr. Price's case regarding the compensability of the pending claims: - Dr. Olinger testified that a cervical injury can occur gradually over the course of 8

14 the day and that the pain usually manifests soon after the causative event. General Exhibit 6, p. 12, lines In this case it is not disputed that Mr. Price approached his supervisor about going to the doctor after working and having to lift heavy boxes all morning. - Dr. Olinger testified that he had been provided no information which showed that Mr. Price was suffering from any significant cervical problems between 2009 and General Exhibit 6, p. 12, lines and p. 13, lines Dr. Olinger testified that someone with a significant cervical problem would probably not be able to perform the job performed by Mr. Price over the course of several years. General Exhibit 6, p. 13, line 24 and p. 14, lines This utterly refutes the employer and carrier's position that the cervical disc rupture was a preexisting, long-standing condition. - Dr. Olinger testified that he had nothing which would indicate that Mr. Price was not telling the truth about his injuries. General Exhibit 6, p. 14, lines 15-24, p. 15, lines 1-4. SUMMARY OF THE ARGUMENT The Commission adopted a medical finding from the IME physician that Mr. Price sustained a work-related aggravation of pre-existing conditions. While the Commission ignored the testimony from the IME physician clarifying his opinions as to causation of the cervical and back conditions, even the Commission s selective recitation of Dr. Olinger s opinion requires a finding that Mr. Price sustained a compensable injury. An aggravation of a pre-existing condition is unquestionably included within the definition of injury for 9

15 workers compensation purposes. Accordingly, this Court should apply a de novo standard of review in this matter, due to the Commission s failure to recognize and apply the correct law in this matter, and reverse the Commission Order. However, even ignoring the legal error of the Commission, their ruling in this matter does not survive review under the substantial evidence standard. The evidence presented at the Hearing on the Merits established that Mr. Price, who has a limited intellect and attended special education classes before dropping out of school entirely, did his best to report and, in fact did report his neck and back injuries as work-related to the employer and to the initial treating physician, and also to comply with the instructions given to him by the employer in taking the necessary steps to officially report the injury as work-related. However, in the end, the issue in this case is not whether Mr. Price reported his injuries as work-related or even knew whether the conditions were work-related. Instead the issue in this matter is simply whether the conditions were, in fact, work-related. In this matter, both the treating neurosurgeon who performed Tim Price's surgery and the neurosurgeon who performed the IME opined that Mr. Price sustained a compensable injury to his neck and a compensable aggravation of a low back condition on September 6, These opinions were based on the following facts established by the overwhelming proof in this matter: * Mr. Price worked for the employer for 23 years prior to his work injury and was described by his supervisor as a dedicated, hard-working employee. * Mr. Price's job required extremely heavy lifting on a regular basis, and Mr. Price was engaging in heavy lifting on September 6, 2012, when his cervical condition manifested and his lumbar condition worsened. 10

16 * Mr. Price was able to perform his extremely strenuous job with no problems until September 6, * If, in fact, Mr. Price's neck and back conditions were solely the result of preexisting, long-standing conditions unrelated to his employment, Mr. Price would not have been able to perform his extremely strenuous job with the employer with no problems whatsoever, prior to September 6, The Commission s determination that the conditions are not work related does not pass a common-sense smell test. Mr. Price undeniably performed extremely heavy work over a period of 23 years, having to regularly lift boxes weighing from 50 pounds to over 100 pounds, yet the Commission determined that claimant's back and neck injuries had nothing to do with this heavy work. Over his 23 years of employment with MTD, Mr. Price was, by all accounts, an exemplary employee who went above and beyond the call of duty in performing his job functions; yet, the Commission has determined that Mr. Price completely fabricated his work injuries. The evidence in this matter establishes that Mr. Price sought medical treatment for his injuries on September 6, 2012, after working all morning and engaging in lifting extremely heavy boxes. Mr. Price presented strong testimony that he told his supervisor and his initial doctor that his symptoms manifested after working all morning and engaging in lifting extremely heavy boxes, but regardless of whether anyone was told initially, it cannot be contested that Mr. Price had no cervical symptoms for several years and first sought medical treatment for the new cervical condition which manifested on September 6, The medical testimony in this case clearly established the necessary cause/effect between the work and the cervical injury and the lumbar aggravation. The Commission's determination otherwise is not supported by substantial evidence and should be reversed. 11

17 ARGUMENT I. WHILE THIS COURT SHOULD EXAMINE THIS MATTER UNDER A DE NOVO STANDARD DUE TO THE LEGAL ERRORS IN THE COMMISSION S ORDER, THE COMMISSION S RULING IS ALSO DEFICIENT UNDER A SUBSTANTIAL EVIDENCE STANDARD OF REVIEW. If the Commission fails to apply the law correctly in a matter, the standard of review is de novo. KLLM, Inc. v. Fowler, 589 So.2d 670, 675 (Miss. 1991). Otherwise, decisions of the Commission are reversed on appeal when "[the Commission's] findings of fact are unsupported by substantial evidence, matters of law are clearly erroneous, or the decision was arbitrary and capricious." Guy v. B.C. Rogers Processors, Inc., 16 So.3d 29, 32 (Miss. Ct. App. 2008) (citing Hale v. Ruleville Health Care Ctr., 687 So.2d 1221, 1225 (Miss. 1997)). When defining "substantial evidence," the Mississippi Supreme Court has stated that the Commission's decision must be based on "evidence which is substantial, that is, affording a substantial basis of fact from which the fact in issue can be reasonably inferred." Smith v. Tippah Elec. Power Ass'n, 138 So.3d 900, 903 (Miss. 2014) (quoting Short v. Wilson Meat House, LLC, 36 So.3d 1247, 1251 (Miss. 2010)). Mississippi appellate courts will reverse decisions of the Commission "when the findings of the Commission are based on a mere scintilla of evidence that goes against the overwhelming weight of evidence." Beverly Healthcare v. Hare, 51 So.3d 223, 229 (Miss. Ct. App. 2010) (quoting DiGrazia v. Park Place Entm't, 914 So.2d 1232, 1236 ( 8) (Miss. Ct. App. 2005) (citing Johnson v. Ferguson, 435 So.2d 1191, (Miss. 1983)). Further, a finding is clearly erroneous and warrants reversal when "the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been made by the 12

18 Commission in its findings of fact and in its application of the Act." Guy, at 32 (citing J.R. Logging v. Halford, 765 So.2d 580, 583 ( 13) (Miss. Ct. App. 2000). II. THE COMMISSION ADOPTED A MEDICAL FINDING FROM THE IME PHYSICIAN THAT CLAIMANT HAD SUSTAINED AN AGGRAVATION, AND YET THE COMMISSION STILL FAILED TO FIND CLAIMANT HAD SUSTAINED A WORK-RELATED INJURY, EVEN THOUGH AN AGGRAVATION IS UNQUESTIONABLY INCLUDED WITHIN THE SCOPE OF THE DEFINITION OF A WORK-RELATED INJURY. A. The Full Commission clearly adopted the finding of Dr. Olinger that Mr. Price had sustained a work-related aggravation. In its rather sparse order, the Commission included one and only one citation to the record as intended support for its ruling. This citation consisted of a quote from the report of the IME physician, Dr. Rodney Olinger. The Commission described the opinion of Dr. Olinger as the most telling medical evidence in the case (R. Vol. 1, at p. 104) and actually underlined and placed in bold lettering a portion of a sentence from the quote to emphasize the importance of that particular excerpt from the report to their ruling: I cannot say that this was all work-related and secondary to the injury of 9/06/2012 and the most I can say is that the episode may have aggravated the situation but obviously not caused it. The majority of the problem is pre-existing. R. Vol. 1, at p. 105, quoting from Exhibit 5, pp. 4-5, IME Report of Dr. Rodney Olinger. As will be discussed infra, the Commission erred in failing to even acknowledge the existence of a 51-page deposition of Dr. Olinger, instead taking his opinion solely from one small excerpt in a five-page report. However, even with this cherry-picking of the record, it remains an indisputable certainty that Dr. Olinger, at worst, opined that Mr. Price sustained an aggravation of a pre-existing injury. 13

19 B. A work-related aggravation of a pre-existing condition constitutes a compensable injury under the Mississippi Workers Compensation Statute and applicable precedent. Miss. Code Ann (b) defines injury for purposes of the Workers Compensation Statute as follows: Injury means accidental injury or accidental death 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 manner. In Hedge v. Leggett & Platt, 641 So.2d 9 (Miss. 1994) the Mississippi Supreme Court gave the following description of Mississippi's law on the compensability of aggravations: As we have stated before, an injury arises out of and in the course of employment even if it amounts to aggravation or exacerbation of a pre-existing condition. That proposition was expressed in a prior case before this Court, wherein we stated: The work connection test arises from Miss. Code Ann. Sec (1972). The worker's employment, however, need not have been the sole source of the injury. The claim is compensable if the injury or death is in part work connected. Injury or death arises out of and in the course of employment even when the employment merely aggravates, accelerates or contributes to the injury. See Dunn, Mississippi Workers' Compensation Sec. 164 (3d ed. 1982). Chapman, Dependents of v. Hanson Scale Co., 495 So.2d 1357, 1360 (Miss. 1986) (citations omitted). Confirming the compensability of aggravation of pre-existing conditions, in a recent case we said that: This Court has stated with respect to the effect of preexisting conditions in the determination of disability benefits following a work-related injury: "The rule in this State is that when a preexisting disease or infirmity of an employee is aggravated, lighted up, or accelerated by a work-connected injury, or if the injury combines with the disease or infirmity to produce disability, the resulting disability is compensable." 14

20 McNeese v. Cooper Tire and Rubber Co., 627 So.2d 321, 324 (Miss.1993) (quoting Rathborne, Hair & Ridgeway Box Co. v. Green, 115 So.2d 674, 676 (Miss.1959)). Hedge, 641 So.2d at The Hedge court went on to reject the contention that an employee s susceptibility to an injury or aggravation is held against the employee, and re-affirmed the established concept that the employer takes the worker as the worker is found--with all the strengths and weaknesses the worker brings to the job." Id. (citing Chapman, Dependents of v. Hanson Scale Co., 495 So.2d 1357, 1360 (Miss.1986)). In KLLM, Inc. v. Fowler, 589 So.2d 670 (Miss. 1991), the Mississippi Supreme Court set out the rule in Mississippi regarding the compensability of gradually developing injuries: "When an injury with physical results develops gradually from the work and cannot be traced to a single event or to a precise time, the injury meets the requirement of accidental injury if it is causally connected to the work activities or environment and the events are 'within a reasonably definite and not too remote period of time.' " KLLM, 589 So.2d at 675. In Rathborne, Hair & Ridgeway Box Co. v. Green, 115 So.2d 674, 237 Miss. 588 (Miss. 1959), the Mississippi Supreme Court stated [t]he rule in this State is that when a preexisting disease or infirmity of an employee is aggravated, lighted up, or accelerated by a work-connected injury, or if the injury combines with the disease or infirmity to produce disability, the resulting disability is compensable. Rathborne, 115 So.2d at

21 In Wal-Mart Stores, Inc. v. Fowler, 755 So.2d 1182, 1185 (Miss. App. 1999), the Mississippi Court of Appeals stated "[i]t is well settled that when a dormant, pre-existing condition is aggravated by a work related injury, the condition is compensable." C. The Commission s adoption of Dr. Olinger s opinion regarding the occurrence of a work-related aggravation and the Commission s corresponding failure to apply the law addressing the compensability of aggravations requires this Court to overturn the Commission decision. The Commission specifically quoted an opinion from an IME physician referencing Mr. Price s work-related aggravation, described the excerpt as the most telling evidence in the case and yet, without any explanation, somehow found that Mr. Price had not suffered a work-related injury, even though the relevant statute and an overwhelming amount of case law hold that an aggravation of a pre-existing injury is a work-related injury. Employer and carrier will undoubtedly argue that the quoted excerpt from Dr. Olinger s report spoke only in terms of possibilities. In fact, in his deposition, Dr. Olinger affirmed that his opinions were based on a reasonable degree of medical probability. General Exhibit 6, p. 25. However, it would be pure speculation for anyone to determine how the Commission went from a medical opinion describing what is a compensable injury under the law to a determination that Mr. Price had not sustained a compensable injury. The Commission did not in any fashion explain its rationale or describe how the quoted opinion, which would seemingly lead to a conclusion that the injury was compensable, would, in fact, lead the Commission to an opposite conclusion. The Commission s failure to apply the correct and applicable law also mandates that this Court apply a de novo standard of review to this case. KLLM, 589 So.2d at

22 III. THE COMMISSION'S DECISION IS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE. While the Commission s failure to apply or even acknowledge relevant law dictates that this Court apply a de novo standard of review, this is not a case where the result of this case is dependent on the standard of review applied. In numerous and critical respects, the Commission s decision is not supported by substantial evidence. The Administrative Judge s Order, finding Mr. Price s injury to be compensable, was 17 pages in length and fully addressed all testimony and evidence presented at the hearing on the merits. The Commission Order overturning the Administrative Judge s Order was five pages and in no way addressed the relevant issues in this case. Appellant is not claiming that the relative length of the Orders is an automatic indicator that the Commission Order was not supported by substantial evidence, but the Mississippi Supreme Court has held that an appeals court s analysis regarding whether a Commission decision is supported by substantial evidence must take into account the entire record. See, e.g., White v. Mississippi Dept. of Corrections, 28 So.3d 619, 623 (Miss Ct App 2009). The Commission s Order failed to address a number of critical facts central to a resolution of the issues in this case, and the Order cannot be said to be based on substantial evidence absent something more than sweeping factual pronouncements. The Commission s Order summarily addressed three areas of the case in reaching its determination that Mr. Price did not sustain a compensable injury. In addition to the medical findings of Dr. Olinger, discussed in Section II of this brief, the Commission addressed the dispute regarding the reporting of the injury and Mr. Price s pre-existing back and neck problems. Each of these shall be addressed in turn. 17

23 A. Whether the injury was reported as work-related is disputed but is ultimately secondary to the issue of whether the injury was actually work-related, based upon a review of all of the evidence in the entire record. There is no dispute whatsoever that, late in the day on September 6, 2012, after working and engaging in heavy lifting for an entire day, Mr. Price went to his supervisor and reported that he was in pain and needed to see a doctor. Claimant propounded several requests for admissions to the employer and carrier regarding what Mr. Price reported to the employer on September 6, R. Vol. 1, p ; Claimant's Exhibit 10. In their response to these requests for admissions, the employer and carrier admitted that Mr. Price told his supervisor that his back was aching and that the supervisor instructed Mr. Price to see Janice Moore and that Mr. Price then told Ms. Moore that his back was aching. See Claimant's Exhibit 10, Request No.'s 2 and 3. The employer representative, Ms. Janice Moore, testified at the hearing that she could not dispute Mr. Price's testimony that, on September 6, 2012, Mr. Price developed pain in his back and neck after a long day of heavy lifting on the job for the employer: Q. [By claimant's counsel] Mr. Price testified that lifting on that date made his back condition worse and made his cervical condition develop. Do you have anything to contest that at all? Do you think that's incorrect? A. [By Ms. Moore] No, sir. Q. So for all you know he was in fact loading and unloading boxes on that day as he described? A. Yes, sir

24 Q. Mr. Price testified that lifting on that date made his back condition worse and made a cervical condition develop. Do you have anything to dispute that? A. I guess not, no. And I have no recollection of it. I have no knowledge of it, but, no, I can't dispute it either. R. Vol. 2, at pp As discussed, supra, in Section I(D) of this brief, the only dispute between the parties as to the reporting of the injury relates to what information Mr. Price conveyed to the employer on September 6, 2012, regarding whether Mr. Price was, at that time, relating his physical problems to his job duties. How does one explain the discrepancies in testimony between the employer's witnesses and Mr. Price regarding the reporting of the injury as work-related? The employer and carrier contend that claimant is simply lying and that this entire claim is simply a plot by Mr. Price to make the employer and carrier responsible for a non-workrelated injury. To be clear, Mr. Price stands by his testimony under oath regarding his reporting of the work injury. However, trying to assume some degree of good faith on the part of the employer in this matter, it may be possible that there was a misunderstanding between Mr. Swain/Ms. Moore and Mr. Price, especially given Mr. Price's limited intelligence. Regardless, the following cannot be reasonably disputed: - As of September 6, 2012, Mr. Price had worked for MTD for 23 years and, throughout that time, had been an exemplary employee, who worked hard and always volunteered to stay late, if needed; - On September 6, 2012, after Mr. Price had been engaging in the extremely heavy lifting required by his job for an entire day, he reported to his 19

25 supervisor that his back and neck were hurting sufficiently to require Mr. Price to seek medical assistance; - In 2012, prior to September 6, Mr. Price had performed his extremely heavy job fully, competently and without any complaint whatsoever; To be clear, it is employer and carrier's legal position that Mr. Price's back and neck problems are completely unrelated to the fact that Mr. Price had been performing "very heavy work" for the employer for 23 years. The tenuous nature of employer and carrier's position is shown by their attempted reliance on Mr. Price's initial application for FMLA leave. The employer and carrier presented testimony, apparently to support an argument that Mr. Price must have known that, since FMLA leave is not available for work injuries, Mr. Price's application for FMLA was an admission on his part that he knew his work injuries were not work-related. R. Vol. 2, at pp Mr. Price testified that, with regard to all of the forms he filled out, including the FMLA forms, he simply tried to fill out the forms he was given by the employer: "I didn't know -- I didn't know no better, ma'am. That's something new. I just filled out the paper what they told me to fill out. I didn't know. I didn't know. I'm just being honest. If I had known better I wouldn't have done it, but I don't know how they work in their office." R. Vol. 2, at p. 82. Frankly, the employer and carrier's averment in this respect is preposterous. Their argument depends on Mr. Price, who did not graduate from high school and was in special education classes when he attended school, having knowledge of the intricacies of the 20

26 interaction between the federally-enacted Family Medical Leave Act and the state-enacted workers compensation act. 1 Employer and carrier also point to two medical histories as being inconsistent with Mr. Price having sustained a work-related injury on September 6, The medical records of Med-Serve, which is a clinic used by the employer for work-related injuries, were submitted into evidence as General Exhibit 2. Mr. Price went to Med Serve and saw Dr. Timothy Albers on September 7, Per Mr. Price's recollection, he told Dr. Albers that his back and neck started hurting at work. R. Vol. 2, at p. 22. Dr. Albers' specific notes regarding his history do not contain any specific notations which dispute this testimony. Dr. Albers first notes that Mr. Price has had back and neck pain on and off since General Exhibit 2, Note of 9/7/12. The medical records detailed in number 9 above establish that Mr. Price had neck and back pain in 2009, and Mr. Price testified that he had intermittent back pain, on and off, from 2009 until This specific notation is consistent with this testimony and does not dispute Mr. Price's testimony that he had no significant cervical problems in 2010, 2011 and 2012, prior to the date of injury and that his back problems during this time were manageable. Dr. Albers also states that Mr. Price did not report a history of a "discrete trauma". General Exhibit 2, Note of 9/7/12. The report Mr. Price provided to the employer in October of 2012 (submitted as Exhibit 9 at the hearing), Mr. Price's deposition testimony (attached as Exhibit 3 to the Deposition of Dr. Crosby, which was General Exhibit 4 submitted at the hearing), and the testimony of Dr. Crosby (General Exhibit 4, pp. 9-10) all support the fact 1 Frankly, prior to the hearing, Mr. Price s counsel, who has BBA, MBA and JD degrees, was not aware that FMLA leave is not available in relation to work accidents. 21

27 that Mr. Price's symptoms developed over the course of September 6, Dr. Olinger testified in his deposition that a developing pain would not be described as a "discrete trauma". General Exhibit 6, p. 46, lines Further, Dr. Albers indicates that claimant reported pain for a three-month period, but the doctor does not indicate whether the pain was for the low back or neck. General Exhibit 2, Note of 9/7/12. This is consistent with Mr. Price's testimony in which he testified that he had been having back pain prior to September 6, Employer and carrier attempt to argue that a nurse practitioner, Ms. Pam Hodges, determined that Mr. Price did not sustain a work injury. In fact, the only pertinent notation in her records (introduced as General Exhibit 3) in this regard is simply a repetition of the notation made by Dr. Albers, that the condition is not "injury related", not that the condition is not work-related. General Exhibit 3, p. 1. The records of Dr. Albers and the records of Ms. Hodges are both from the same system. Both sets of records have the heading "ROI Customer Service Center" at the top of the page of each record, and a cursory review of the records indicate that the notation was not independently made by Ms. Hodges. See General Exhibits 2 & 3. In fact, on the one visit in question, Ms. Hodges took a specific history, which does not comment on the cause of the injuries in question in any fashion. General Exhibit 3, p. 2. Later records from the same clinic indicate that that back and neck problems are work-related. See, et al, General Exhibit 3, Note of 5/21/12, p Mr. Price's testimony at the hearing was sometimes confusing on this issue, as Mr. Price was having a difficult time understanding the questions posed. Still, Mr. Price ultimately clarified his testimony (R. Vol. 2, at p. 29), and the overwhelming evidence in this case establishes that Mr. Price never reported a sudden, discrete pain but rather, on September 6, 2012, developed pain over course of the day, with this pain becoming very noticeable around mid-day, after Mr. Price had been engaging in extremely heavy lifting. See also, Exhibit 9. 22

28 B. Regardless of any determination regarding the reporting of an injury, the medical testimony supports that the cervical and lumbar conditions are related to the extremely heavy lifting performed by Tim Price, and the injuries are therefore compensable. Mr. Price testified that he told both the employer and Dr. Albers that his cervical symptoms began and the low back symptoms worsened after having to lift heavy boxes at work. However, even presuming for the sake of argument that this is not the case or that Mr. Price had difficulty communicating what happened to him because of his limited intellect, this claim would still be compensable. It is not contested that Mr. Price had been engaging in heavy lifting when his cervical symptoms manifested and when his lower back condition worsened, to the extent that he had to seek medical treatment. It has never been required of a claimant that he or she know the exact etiology of their injury and its relation to his or her employment as long as the proof ultimately submitted at the hearing supports the causal connection. In South Cent. Bell Telephone Co. v. Aden, 474 So.2d 584 (Miss. 1985), the Mississippi Supreme Court stated as follows: [T]here is something offensive about Employer's use for purposes of this litigation of claimant's failure to report her injury for four days. The ethics of our society condemns bellyachers. Hypochondriacs are scorned. When a real American is hurt, he or she tries to tough it out. We admire the soldier, the athlete, the worker who endures injury without complaint. We are aware that this employer and all employers have policies requiring that workers report injuries immediately. We certainly do not question the reasonableness or necessity of such policies. Yet we put our heads in the sand if we fail to recognize that such a policy runs sharply counter to one of the most powerful positive ethical and psycho-sociological norms of our society. If Frances Aden's condition had not worsened, if she had worked three or four days in pain and then had that pain gradually subside to the point where it no longer affected her, her employer and her peers would have applauded her failure to complain. Does employer seriously want us to believe that during the four days following May 12, 1978, Frances Aden was not hoping against hope that her injury 23

29 was minor, that her pain and discomfort would be only temporary? Common sense empathy gives us to understand that on May 12, 1978, surely claimant had the doubts about the likelihood of the incident she described producing serious injury and disability, doubts no doubt similar to those employer presses upon us with such fervor. Aden, 474 So.2d at [Emphasis added]. The case of Bryan Foods, Inc. v. White, 913 So.2d 1003 (Miss. Ct. App. 2005) deals with a much less-nuanced fact pattern than the case currently before this Court. In Bryan Foods, the claimant was undisputedly unable to relate a cause for his neck problem to the employer, the original doctor and even two treating neurosurgeons. Bryan Foods, 913 So.2d at Nonetheless, because of the totality of the evidence, the claim was found to be compensable. Bryan Food, 913 So.2d at Mr. Price's proof in the case at hand is substantially and dramatically stronger than the claimant's proof in the Bryan Foods case: - The employer and carrier in Bryan Foods argued that claimant's 12 reported workers compensation claims established that the claimant in that case knew exactly what to do to file a claim; Conversely, Tim Price had never previously had a workers' compensation claim in 23 years of work for the employer. R. Vol. 2, at p The Bryan Foods claimant took over a year to officially report the work injury; Even accepting the employer and carrier's position for the sake of argument, Mr. Price officially reported the injury in less than two months. - The Bryan Foods claimant undisputedly did not report his injury as work-related to any treating physician. Conversely, with Mr. Price, there is actually only a question with regard to one doctor. It is not disputed that Mr. Price reported a work injury to 24

30 Dr. Crosby and all other treating and examining doctors following the one disputed visit with Dr. Albers, who is a general practitioner at MedServe. The issue in this case is not when the injury was reported as work-related initially by Mr. Price but whether, in fact, the injury was work-related based upon a review of the entire record. The overwhelming proof as well as good old fashioned common sense lead only to a conclusion that, after Mr. Price had been engaging in very heavy lifting on September 6, 2012, the development and/or aggravation of his cervical and back problems manifested as a result of the lifting. C. The evidence in the record is woefully insufficient to support a finding that Mr. Price s cervical and back problems which manifested on September 6, 2012, were simply a continuation of prior problems and were wholly unrelated to the extremely heavy lifting Mr. Price was performing on a day-in, day-out basis for the employer. Employer and carrier have repeatedly attempted to argue that all of Mr. Price's cervical and low back problems were pre-existing and are completely independent of the very heavy work Mr. Price was doing on September 6, 2012 and, indeed, had been doing for 23 years for the employer. The Commission referenced the pre-existing problems in their Order and appeared to base their decision on employer and carrier s argument. It is absolutely critical to note at this stage that this case involves two injuries - an injury to the neck and an injury to the low back. Throughout the course of this controverted claim, employer and carrier have attempted to blur the distinctions between these two injuries. However, there are two distinct injuries, and the histories of prior problems with the two injuries are very different. Employer and carrier had the opportunity to obtain and submit all relevant medical 25

31 records relating to any problems Mr. Price had with his back and neck, whether these problems existed before or after September 6, The records which were submitted at the hearing are the same records which were provided to the IME and EME doctors and are the only relevant records. The following is a timeline of the treatment outlined in these records prior to the date of injury, which is September 6, 2012: 2009 January 26 - August 11 - Mr. Price treated with Dr. George Hammitt on four occasions in /26, 5/4, 7/20 and 8/11. On the initial visit, Mr. Price complained of cervical and lumbar pain but presented for lumbar treatment only. On subsequent visits, Mr. Price complained only of lumbar and leg pain. Dr. Hammitt performed lumbar epidural steroid injections. The lumbar symptoms were the primary problem, and no treatment was provided or prescribed for any cervical symptoms. October 5 - Mr. Price treated with Dr. Walter Eckman. Mr. Price reported cervical and lumbar symptoms. The lumbar symptoms were the primary problem, and no treatment was provided or prescribed for any cervical symptoms. Dr. Eckman ordered a lumbar CT scan and prescribed a home exercise program. There are no records which indicate that Mr. Price ever returned to Dr. Eckman after October 5, August 23 - Mr. Price was treated at MedServe for constipation. In his history, he mentioned shoulder, back and left leg pain, but no treatment was provided for any of these conditions. There was no mention whatsoever of cervical pain or symptoms or treatment There are no medical records of any type showing that Mr. Price treated for any condition in 2011, and there is no evidence whatsoever that he was having any cervical symptoms during this time Prior to September 6, the date of injury, there are no medical records of any type showing that Mr. Price treated for any condition in 2012, and there is no evidence whatsoever that he was having any cervical symptoms in 2012 before the date of injury. Consequently, there is not one scintilla of evidence that Mr. Price had any significant 26