REPLY BRIEF OF THE APPELLANTS

Transcription

1 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI WAYNE FARMS LLC AND PACIFIC EMPLOYERS INSURANCE COMPANY VS. CLAIROL WEEMS APPELLANTS CASE NO WC COA APPELLEE ON APPEAL FROM THE MISSISSIPPI WORKERS' COMPENSATION COMMISSION REPLY BRIEF OF THE APPELLANTS ~ ORAL ARGUMENT REQUESTED. JOSEPH T. WILKINS, III (MSB No._ WILKINS TIPTON. P.A. Post Office Box Jackson, Mississippi Phone: (601) Fax (601) jwilkins@wilkinstipton.com Attorneys for Appellants

2 CERTIFICATE OF INTERESTED PARTIES The undersigned counsel 0 f record certifies that the persons listed below may have an interest in the outcome of this case. These representations are made in order that the members of this Court may evaluate possible disqualification or recusal. I. Clairol Weems, Claimant/Appellee; 2. Wayne Farms LLC, Employer/Appellant; 3. Pacific Employers Insurance Company, Carrier/Appellant; 4. John Raymond Tullos, Esquire, attorney for the Claimant/Appellee; 5. Joseph T. Wilkins, III, Esquire, attorney for the Employer-Carrier/Appellants; 6. The Honorable Virginia Wilson Mounger, Administrative Judge, Mississippi Workers' Compensation Commission; and 7. The Honorable Liles B. Williams, The Honorable John R. Junkin, and The Honorable Debra Gibbs, Commissioners, Mississippi Workers' Compensation Commission. This the 31st day of August, , One LeFleur's Square, Suite Old Canton Road Post Office Box l3429 Jackson, Mississippi Telephone: (601) Telefax: (601) jwilkins@wilkinstipton.com Attorneys for Appellants

3 TABLE OF CONTENTS PAGE CERTIFICATE OF INTERESTED PARTIES... 1 TABLE OF CONTENTS TABLE OF AUTHORlTIES I. STATEMENT OF THE CASE... 1 II. SUMMARY OF THE ARGUMENT... 3 IIl. STANDARD OF REVIEW... 4 IV. CONCLUSION CERTIFICATE OF SERVICE I, 11

4 TABLE OF AUTHORITIES CASES PAGE Bates v. Dedicated Management Group, LLC, 67 So. 3d 855 (Miss. Ct. App. 2011)... 4 City of Laurel v. Blackledge, 755 So. 2d 573 (Miss. Ct. App. 2000)... 5 Coleman v. Chattanooga Container, 377 So. 2d 606 (Miss. 1979)... 5 Delta CMlv. Speck, 586 So. 2d 768 (Miss. 1991)... 4 Foamex Prods., Inc. v. Simons, 822 So. 2d 1050 (Miss. Ct. App. 2002)... 4 Fowler v. Durant Sportswear, Inc., 203 So. 2d 577 (Miss. 1967)... 6 Hamilton Mfg. Co. v. Kern, 242 So. 2d 441 (Miss. 1970) , 7 Hudson v. Keystone Seneca Wire Cloth Co., 482 So. 2d 226 (Miss. 1986)... 6,7 Hugh Dancy Co., Inc. v. Mooneyham, 68 So. 3d 76 (Miss. Ct. App. 2011)... 4 Mixon v. Grey Wolf Drilling Co., LP, 62 So. 3d 414 (Miss. Ct. App. 2010)... 4 Penrod Drilling Co. v. Etheridge, 487 So. 2d 1330 (Miss. 1986)... 6,7,8 Raytheon Aerospace Support Servs. v. Miller, 861 So. 2d 330 (Miss. 2003)... 5 Shelby v. Peavey Elecs. Corp., 724 So. 2d 504 (Miss. Ct. App. 1998)... 4 Stanford v. v.f. Jeanswear, LP, 84 So. 3d 825 (Miss. Ct. App. 2011) Weatherspoon v. Croft Metals, Inc., 853 So. 2d 776 (Miss. 2003)... 4 White v. Superior Products, Inc., 515 So. 2d 924 (Miss. 1987)... 6, 8 I, OTHER Dunn, Mississippi Workmen's Compensation, 271 (3d ed.)... 8,9 111

5 I. STATEMENT OF THE CASE The Appellee, Clairol Weems ("Weems"), refers to the relevant evidence of lay witnesses and the medical providers which provided substantial evidence to support her claim. There are none. Only Weems testified on her behalf regarding any injury at work in May Any alleged injury was denied by Wayne Farms. It is important to note that Weems alleges she suffered a herniated disc in her back which required surgery by Dr. Molleston. In her Brief, Weems lists numerous people to whom she claimed she reported her injury. These included co-workers, Virginia Williams and Lucille Jack. Moreover, Weems testified that she spoke to Ms. Margaret at Wayne Farms, her supervisor Ricky Pitts, and to an unnamed union steward. At the hearing of this matter, not a single person confirmed Weems' claim of a work injury sometime in May Weems was a longtime employee of Wayne Farms, 17 years, and had actually suffered workers' compensation injuries and no doubt, through the years, knew of other co-employees who had been injured. She admitted she knew how to report a workers' compensation claim. Yet, even with an allegedly herniated disc in her back, Weems continued to work until October 3, 2006 and saw physicians at the local MEA Clinic in Laurel where she never reported an injury to her treating physician, Dr. Williams. Weems had numerous occasions to report an injury at work to her medical providers. She was seen on May 11, 2006 for dizziness, right hip pain and low back pain for a j period of two days where she specifically noted difficulty in getting up and down but not that her condition was work related. Weems was seen on May 31,2006 and August 21,2006. The report of September 28, 2006 even shows the right hip and low back pain had existed for a few weeks

6 (R. Exh. Vol., Gen. Ex. 6). See MEA Clinic records in May and June 2006 for treatment by Weems; R.E.6. James E. (Bo) Gieger is the safety coordinator and plant paramedic and sought Weems after it had been reported to him that Clairol Weems had looked for him. He met face-to-face with Weems and specifically asked her if she had suffered an injury at work. Weems denied she had suffered an injury at work and could not explain her back condition but did report she was being treated at the MEA Clinic in Laurel. (R. Vol. 2, pp.56-57). All of this treatment at the MEA Clinic was submitted by Weems on her Blue CrosslBlue Shield of Alabama private insurance. (R. Vol. 2, p.58). Moreover, Weems continued to work her regular job at Wayne Farms and sought no accommodation or otherwise complain of her job until she was removed from work on October 3rd by Dr. Molleston. Weems stated on page 4 of her Brief that she "was performing her normal job duties while under the employ of Wayne Farms, thus making an undoubted connection between her employment and the injury and that she had met her burden of proof. [Appellant's RE 46]." The Appellants herein aver that Weems did not meet her burden of proof and aver that the Mississippi Workers' Compensation Commission committed error in affirming the Order of the Administrative Judge awarding benefits

7 II. SUMMARY OF THE ARGUMENT The burden of proof that Weems suffered an injury at work has not been shown by a fair preponderance of the evidence. Even though Weems alleged she suffered a lumbar herniated disc, she continued to work for Wayne Fanns. She never reported to any physician or medical provider at the MEA Clinic in Laurel that she suffered a work-related injury. Moreover, she submitted all of her claims for treatment on her private insurance. She missed no time from work. Weems specifically told Mr. Gieger, the Safety Coordinator at Wayne Fanns, that she suffered no injury and could not explain her back complaints. Why would Wayne F anns feel that they owed a duty to provide medical treatment to Weems? How more clear and convincing could be Weems' statement to the Safety Coordinator that she did not receive an injury at work and could not explain her back complaints; that she submitted her charges for medical treatment on her private insurance; she continued to work at her regular job with Wayne Fanns; that she sought no accommodation or change in job duties at Wayne Fanns; etc., during this four-month period of time? The Appellants submit that Weems' "undoubted connection" as stated in her brief, is doubtful and contested. The Appellants submit that substantial evidence does not support any award for benefits to Weems, and it was error for the Full Commission to find that Weems suffered a compensable injury

8 III. STANDARD OF REVIEW This Court has held that where the issue if one oflaw and not offact, the standard of review is de novo when it seeks to resolve a workers' compensation case and considers substantial evidence. Hugh Dancy Co., Inc. v. Mooneyham, 68 So. 3d 76, 79 (~6) (Miss. Ct. App. 2011) (quoting Shelby v. Peavey Elecs. Corp., 724 So. 2d 504, 506 (~8) (Miss. Ct. App. 1998)). Further, the Court has stated that it would reverse the decision of the Workers' Compensation Commission "for an error oflaw or an unsupported finding offact." Mixon v. Grey Wolf Drilling Co., LP, 62 So. 3d 414,417 (~10) (Miss. Ct. App. 2010) (quoting Weatherspoon v. Croft Metals, Inc., 853 So. 2d 776, 778 (~6) (Miss. 2003)). Substantial evidence is defined as to be "such relevant evidence as reasonable minds might accept as adequate to support a conclusion." Delta CMI v. Speck, 586 So. 2d 768, 773 (Miss. 1991). This means more than a "mere scintilla" of the evidence wherein the record must afford "a substantial basis of fact, which the fact and issue can be reasonably inferred." The Courts are not reluctant to reverse a decision of the Commission if it is not supported by substantial evidence. Citing Foamex Prods., Inc. v. Simons, 822 So. 2d 1050, 1053 (~11) (Miss. Ct. App. 2002). The Appellants submit that the cases cited in their Brief are timely and to the point relative to major factors to consider for reversal such as Weems' failure to disclose an injury to Wayne Farms, the MEA Clinic of Laurel or her insurance company, and to continue work for the Employer, Wayne Farms. In the case of Bates v. Dedicated Management Group, LLC, 67 So. 3d 855 (Miss. Ct. App. 2011), Terrience Bates alleged an injury occurring on August 26,2005 but later stated in his deposition, he was not sure of the exact date of his injury. suggesting that his medical records would reflect the correct date. He also testified that he had reported an injury at work to two of his -4-

9 supervisors. Mr. Bates' claim was denied, and his contention was that it was his employer's duty to contradict his testimony of reporting an injury to them. The Court did not support this argument stating that the claimant, not the employer, must meet his burden by "a fair preponderance of the evidence that an injury occurred that there is a causal connection with the claimant's employment." City of Laurel v. Blackledge, 755 So. 2d 573, ("1117) (Miss. Ct. App. 2000). Just as Mr. Bates, Clairol Weems could not recall the date of her alleged injury to her back. The Commission found that Mr. Bates did not adequately demonstrate he suffered an injury at work. He had presented no corroborating witnesses with respect to his injury, nor did Weems. Mr. Bates' employer, Dedicated Management Group, LLC, argued that Bates did not prove he suffered a work injury "beyond speculation or conjecture." Citing Coleman v. Chattanooga Container, 377 So. 2d 606, 608 (Miss. 1979). As in Bates, the Appellants herein submit that the testimony of Weems is not credible. She should at least be held to the same standard as was Bates wherein the Commission required at least corroboration of her testimony. Weems produced no corroborating witness. Moreover, the medical records do not corroborate a work-related injury in May, June or July As noted in Raytheon Aerospace Support Servs. v. Miller, 861 So. 2d 330,336 ("1116) (Miss. 2003), "When a patient gives a history to a physician which is inconsistent with allegations in a workers' compensation case, this is a significant factor in support of denial of a claim.",. The testimony taken as a whole has firmly established that there were no witnesses to any alleged accident and no proof of any specific injury date. Nor were any witnesses called to corroborate Weems' allegations. Weems' admission in medical records that she has arthritis - 5 -

10 comports to the finding by Dr. Molleston that she has degenerative disc disease in her back. One would expect complaints of discomfort of getting up and getting down with this condition. The threshold issue in this case is, therefore, the credibility ofclairol Weems' claim which have been contradicted by witnesses, medical records and other facts. It should be significant to the Court that no witnesses were called by Weems. Weems enumerated many witnesses, the least of which was a union steward to whom she made the report of an injury, but not one was called to confirm her testimony. Weems continued to work for Wayne Farms through May and the summer of2006. She missed no time from work. She did not have to pause or otherwise cease employment to seek treatment at the nurse's station or at her MEA Clinic because of pain and discomfort caused by her back condition. She sought no accommodation from her supervisor or otherwise changed her job to alleviate her discomfort to her alleged "herniated disc." That she continued to work with a herniated disc defies human nature and human experience. Inasmuch as this claim involves an unwitnessed accident with strong rebuttal evidence and '- inconsistencies in both Weems' statements and conduct from and after her alleged injury, the cases of Fowler v. Durant Sportswear, Inc., 203 So. 2d 577 (Miss. 1967); Hamilton Mfg. Co. v. Kern, 242 So. 2d 441 (Miss. 1970); Hudson v. Keystone Seneca Wire Cloth Co., 482 So. 2d 226 (Miss. 1986); Penrod Drilling Co. v. Ethridge, 487 So. 2d 1330 (Miss. 1986); and White v. Superior Products, Inc., 515 So. 2d 924 (Miss. 1987) are most relevant to this matter. In Fowler. supra, the Mississippi Supreme Court affirmed the Workers' Compensation Commission's denial of the claim holding that the evidence was sufficient to sustain finding that the -6-

11 " claimant did not sustain a back injury while perfonningherjob of sewing skijackets notwithstanding her testimony that she experienced back pain after lifting a 20 pound bundle. The Court was of the opinion that the testimony of the contradicting witnesses was substantial evidence sufficient to justify the Commission in declining to accept the uncorroborated testimony of the claimant. In Hamilton, supra, the Supreme Court held that where a record fails to disclose any accident or incident sustained by the claimant arising out of and in the course of employment except for the testimony of the claimant alone that he was hurt, is grounds for denial of benefits especially when fellow employees working in close proximity to claimant saw no accident. In Hudson, supra, the Court noted that the behavior of Ms. Hudson following her alleged injury defied human experience and belief. The Court noted particularly that Ms. Hudson had not related any back injury to two of the physicians who were treating her for various ailments during the period of time which she was allegedly experiencing back pain. As in Hamilton, supra, there were no eyewitnesses to Weems' alleged injury and no report of injury to her physicians. In Penrod, supra, the Court noted that Ethridge had failed to prove that his back injury for which he had been treated was causally related to his employment at Penrod, and specifically, the Court noted that he had failed to prove that he had sustained a compensable injury which arose out of and in the course of his employment with Penrod. The Court noted the following general principles that must be borne in mind in unwitnessed cases: I. The claimant generally bears the burden of proof to show an injury arising out of employment, and a causal connection between the injury and the claimed disability; - 7 -

12 2. The commission is the trier of facts, judges the credibility of witnesses, and facts supported by substantial evidence should be affirmed by the circuit court; 3. Unless prejudicial error is found, or the verdict is against the overwhelming weight of the evidence, the commission's order should be affirmed. The Supreme Court in Penrod cited Dunn, Mississippi Workmen's Compensation, 271 (3d ed.) as follows: In the application of this rule, it is said that the commission is not bound to accept the uncorroborated testimony of a claimant which is impeached by contradictory statements made to third parties and by witnesses who saw the claimant shortly after the time of the alleged accident and observed no signs of disability such as that claimed. The Court in Penrod further noted that as a general rule, a doctor's testimony does not go to liability but rather to the extent of injury. In White, supra, the Supreme Court again addressed an unwitnessed accident wherein only the claimant testified as to what happened. The Court noted that where a claimant is the only eyewitness who supports the claim of accidental injury, the Commission must proceed with sensitivity. It further noted that the Commission is the judge of the credibility of the witnesses, and if the claimant's testimony proves untrustworthy or incredible, the Commission has the authority to reject it. The Court stated that "negative testimony concerning the cause of injury may be substantial evidence upon which a claim is denied.",, The Court in White held that there was considerable circumstantial evidence from which the Commission could find the testimony of White not worthy of belief, particularly wherl: co

13 workers working in the same area did not see the accident where no report of inj ury was made to the employer until well after the fact. Dunn, Mississippi Workmen's Compensation, 271 (3d ed. 1982) on the weight of evidence noted that the Commission, as a "fact finding agency," must act upon the evidence and recovery must be based on "probabilities." Dunn further states that "when the evidence is so contrary to the probabilities that reasonable minds could not accept it, other than as clearly an improbability, it would not support the affirmative ofthe issue, even in the absence of direct conflicting evidence." The Commission is to weigh the evidence in light of knowledge, experience, and common sense. When a witness, as was Clairol Weems, is contradicted by the facts, her whole story is discredited, and it is particularly discredited when there is a long delay in the claimant's claim for benefits. It should be noted here that Weems alleged an inj ury sometime in May 2006; that she continued to work at Wayne Farms until October 3,2006 when Dr. Molleston instructed her to stop working. She filed her Petition to Controvert in this matter on August 22, 2007,15 months after suffering her alleged injury in May During this period of time, she had undergone surgery by Dr. Molleston whose charges had been submitted on her Blue Cross/Blue Shield of Alabama insurance. In summary, negative testimony and lack of credibility of Clairol Weems should be, crucial factors considered in this matter. If anything, the Administrative Judge and the Commission should have noted that Weems continued to work for Wayne Farms without complaint, performing her regular job and failing to mention any injury to her local - 9 -

14 physicians until Dr. Molleston concluded that she had injured her back at work. The fact that Dr. Molleston made a determination of injury six months later of causation should have caused the Administrative Judge to look further into the allegations and other evidence presented. The testimony of the safety coordinator, James (Bo) Gieger, is especially noteworthy. Weems did not know what caused her back discomfort. Weems' credibility has been impeached. She failed to sustain her burden of proof required to establish a work-related injury. It was error to find her injury to be compensable in light of her actions and inconsistencies. As an employee of Wayne Farms for 17 years, Weems knew how to report a workers' compensation claim. She knew the difference between a workers' compensation injury and an injury submitted on her private insurance. Weems had ample opportunities to report to her medical providers at the MEA Clinic that she has suffered an injury at work to her low back. This report of an injury never occurred. More significantly, Weems continued to work every day until on October 3rd when she was instructed by Dr. Molleston to stop her work and was informed that he planned to perform surgery, not for removal of a herniated disc, but for what was shown to be a diseased back requiring a fusion. As in Stanford v. VF. Jeanswear, LP, So. 3d 825 (~19) (Miss. Ct. App. 2011), the record on appeal reveals that Weems made no mention of a work-related injury; that not witnesses corroborated an injury at work; and the Weems continued to work until she was instructed to cease her employment with Wayne Farms

15 In the case at bar, Weems accepted the statement of Dr. Molleston that she had been injured at work. Rather than noting a surgical lesion, Dr. Molleston suggested in his letter to Dr. Williams on August 24, 2006, that Weems could utilize conservative treatment rather than surgery but that, ultimately, she would require surgery. CR. Exh. Vol., Gen. Ex. 2, pp to 9-26). See Molleston 's letter; R.E. 7. This diagnosis of a herniated disc, as reflected in his letter, at the L2-3 level hardly comports to his November 2,2006 history that Weems suffers with lumbar spinal stenosis with only evidence of disc bulging and spurs at the L2-3 and L3-4 level. The procedure for which he performed surgery is one required for a spinal fusion and does not reflect evidence of a herniated disc, only evidence of diffuse spinal stenosis. CR. Exh. Vol., Gen. Ex. 2, pp to 12-26). See Molleston 's Operative Report; R.E. 8. Dr. Molleston's reports are contradictory as to any surgical lesion and should not be utilized to prove causation

16 IV. CONCLUSION Reversible error was committed by the Commission in not questioning Clairol Weems' credibility in light of her admission of no injury to her Employer, her continuing to work at her regular job for months; her failure to report an injury to her physicians; her reporting her medical treatment to her private insurance company rather than making an allegation of a workers' compensation injury; and her waiting until months after surgery by Dr. Molleston to allege an injury at work. Weems has not met her burden of proof beyond speculation. Weems' testimony is untrustworthy and incredible in light of what transpired from May to October Her testimony is uncorroborated. The Commission erroneously followed Dr. Molleston's report to find liability rather than the extent of any injury. This case is a departure from the long line of cases noted which properly placed the burden of proof on the claimant. Here, Wayne Farms was asked to prove an accident did not take place. This was error and calls for reversal. Respectfully submitted, this the 31st day of August, WAYNE FARMS LLC AND PACIFIC EMPLOYERS INSURANCE COMPANY, Appellants BY: WILKINS TIPTON, P.A. '-,,

17 CERTIFICATE OF SERVICE I, JOSEPH T. WILKINS, III, attorney for Appellants, do hereby certify that I have this day mailed, by United States mail, postage prepaid, a true and correct copy of the above and foregoing REPLY BRIEF OF THE APPELLANTS to: John Raymond Tullos, Esquire Tullos & Tullos Post Office Box 74 Raleigh, Mississippi Attorney for Appellee The Honorable Virginia Wilson Mounger, Administrative Judge The Honorable Liles B. Williams, Chairman Mississippi Workers' Compensation Commission 1428 Lakeland Drive Jackson, Mississippi MWCC No J-8377-D THIS, the 31st day of August, ~JL~. I NS, III [IV., WILKINS TIPTON, P.A. One LeFleur's Square, Suite Old Canton Road Post Office Box Jackson, Mississippi Telephone: (601) Telefax: (601) jwilkins@wilkinstipton.com Attorneys for Appellants