BRIEF OF APPELLEE BEFORE THE COURT OF APPEALS FOR THE STATE OF MISSISSIPPI BELL SOUTH TELECOMMUNICATIONS, INC. VS. LARRY B.

Transcription

1 BEFORE THE COURT OF APPEALS FOR THE STATE OF MISSISSIPPI BELL SOUTH TELECOMMUNICATIONS, INC. A SELF-INSURER APPELLANT VS. LARRY B. HARRIS APPELLEE CAUSE NO WC COA APPEAL FROM ORDER OF WORKERS' COMPENSATION COMMISSION BRIEF OF APPELLEE LARRY B. HARRIS JOHN HUNTER STEVENS (MSB #8528) GRENFELL, SLEDGE, AND STEVENS, PLLC POST OFFICE BOX JACKSON, MISSISSIPPI TELEPHONE: (601) FACSIMILE: (601) j stevens91@aol.com

2 BEFORE THE COURT OF APPEALS FOR THE STATE OF MISSISSIPPI BELLSOUTH TELECOMMUNICATIONS, INC. A SELF-INSURER APPELLANT VS. LARRY B. HARRIS APPELLEE CAUSE NO WC COA APPEAL FROM ORDER OF WORKERS' COMPENSATION COMMISSION ORAL ARGUMENT NOT REQUESTED BRIEF OF APPELLEE?--/, IS BY:.~~~~~ ~~~ -Al',l'" H. Stevens, His Attorney JOHN HUNTER STEVENS (MSB #8528) GRENFELL, SLEDGE, AND STEVENS, PLLC POST OFFICE BOX JACKSON, MISSISSIPPI TELEPHONE: (601) FACSIMILE: (601) istevens91@aol.com

3 BEFORE THE COURT OF APPEALS FOR THE STATE OF MISSISSIPPI BELLSOUTH TELECOMMUNICATIONS, INC. A SELF-INSURER APPELLANT VS. LARRY B. HARRIS APPELLEE CAUSE NO WC-1975-COA CERTIFICATE OF INTERESTED PERSONS The undersigned counsel for the Appellee, Larry B. Harris, certifies the following parties have an interest in the outcome of this case. These representatives are made in order that the Court may evaluate possible disqualifications or recusal. 1. Larry B. Harris, Appellee; 2. John Hunter Stevens, Esq., Attorney for Appellee 3. Bellsouth Telecommunications, Inc., Appellant 4. Steven D. Slade, Esq., Attorney for Appellant 5. The Mississippi Workers' Compensation Commission Respectfully submitted, this the.j.f.-th day of March, LARRY B. HARRIS, APPELLEE BY: GRENFELL, SLEDGE & STEVENS, PLLC BY: -ll-

4 TABLE OF CONTENTS TITLE PAGE i CERTIFICATE OF INTERESTED PERSONS... ii TABLE OF CONTENTS... iii TABLE OF AUTHORITIES... iv STATEMENT OF THE ISSUES... 1 STATEMENT OF THE CASE... 1 STATEMENT OF THE FACTS... 1 SUMMARY OF ARGUMENT... 2 STANDARD OF REVIEW... 3 ARGUMENT... 3 DISCUSSION....4 CONCLUSION... 5 CERTIFICATE OF SERVICE lji-

5 TABLE OF AUTHORITIES CASES: Hale v. Ruleville Health Care Ctr., 687 So.2d 1221 (Miss. 1997) Delta CMIv. Speck, 586 So.2d 768, 773 (Miss. 1991) Frito-Lay, Inc. v. Leatherwood, 908 So.2d 175, (Miss.Ct.App. 2005). -IV-

6 STATEMENT OF THE ISSUES The only issue for review is whether or not the Administrative Law Judge and Full Commission's findings are supported by the substantial credible evidence. STATEMENT OF THE CASE THIS CAUSE is on appeal from the Full Commission and the Order of the Administrative Law Judge granting a Motion to Compel Payment of certain medical treatment related to a kidney condition caused by medication being taken for a lung injury. The Administrative Law Judge and the Full Commission correctly found that the treatment is reasonably related and the responsibility ofthe Employer and Carrier. All other medical treatment is not disputed, continues to be provided and will continue for his lifetime. All other issues relating to disability have been tried to conclusion. and not subj ect to this appeal. STATEMENT OF THE FACTS The findings of the Commission should be affirmed. This case involves an admitted compensable pulmonary injury which occurred almost 15 years ago. It is undisputed that certain types of medication in which the Claimant was taking for his pulmonary condition can cause kidney dysfunction. This was also opined by treating physicians of the Claimant. The Employer and Carrier have put forth no evidence to refute the causation issues on whether or not the medications can cause complications, including kidney dysfunction. As a result, there is no evidence in this record to substantiate or support that the findings of the Commission which require reversal. Claimant sustained an admittedly compensable injury on or about October 6, Since that date he has received significant ongoing treatment for the condition which will likely continue 1

7 for the remainder of his lifetime. During the course of his treatment, he received certain medications. identified as Amphotercin B and Prednisone. These medications were for treatment for the admitted lung condition. As a result of the complications from these medications, his doctors have opined a resulting condition which requires him to take kidney medication. This has been opined by treating physicians, including his nephrologist, Dr. Murphy S. Martin. (R. at 182.) SUMMARY OF ARGUMENT Arguments made by the Appellant have no basis in law or fact. In fact, in a desperate argument, the employer makes a feeble attempt to claim that this is instead some type of new case and should be prosecuted as a products liability claim, which again is illogical and defy's the clear meaning and provisions of the Workers' Compensation Act. The Commission's findings afford a great difference by Mississippi Courts on appeal. The Court cannot reverse the Commission's rulings where the findings of fact are supported by substantial evidence. Hale v. Ruleville Health Care Ctr., 687 So.2d 1221 (Miss. 1997). Substantial evidence means evidence that reasonable minds might accept as adequate to support a conclusion. Delta em! v. Speck, 586 So.2d 768, 773 (Miss. 1991). The facts in this case overwhelmingly provide that the employer and carrier are responsible for treatment relating to kidney dysfunction. The Employer and Carrier have submitted no significant evidence to refute this claim, with the exception of one evaluation by an employer's medical examination by a Dr. Collipp who is a physiatrist and not appropriately qualified to give any type of opinions relating to kidney dysfunction. When compared to the evidence provided by the Appellee, there is only one logical conclusion that the Administrative Law Judge and the Full Commission findings are based on substantial evidence.. This was a fact issue and certainly not a legal question as misrepresented by the Appellant. The 2

8 findings of the Commission should be affirmed. STANDARD OF REVIEW The Court should affirm the Commission's findings of fact if they are supported by substantial evidence. Doubtful claims should be resolved in favor of the Claimant. As with any fact finder, the Commission is entitled to rely upon the evidence and reasonable inferences. Frito-Lay, Inc. v. Leatherwood, 908 So.2d 175, (Miss.Ct.App. 2005). ARGUMENT Dr. Martin's diagnosis is chronic kidney disease. He opined that "this is caused by prior amphotericin b therapy for aspergillosis contracted while he was at work". (R. Vol. II at 182) (R. at 183.) One of the claimant's treating physicians, Dr. Obie McNair noted in medical records from the hospital stay on January 29, 1998 to February 24, 1998 that the claimant had problems with low potassium and increase creatinine from the treatment of Amphotericin B. (R. at ) Dr. William Causey reported on April 9, 1998 elevation of Claimant's creatinine ofl.6 which he believed reflects residual Amphotericin B effects that the claimant was taking for his restrictive airway disease. The claimant was on the Amphotericin B and Prednisone for over 6 months. (R. at 188.) Dr. Causey again noted on May 1, 1998 that the Claimant had low potassium and elevated creatinine which he believes were residual effects of the Amphotericin that the received for his pulmonary illness back in late (R. at 190.) Dr. Douglas Campbell noted on September 25, 2005 that the Claimant was seen by Dr. Rose several times and he referred him to nephrologist because of increased creatinine which was 2.2. Dr. 3

9 Rose was concerned that this might be due to some Amphotercin B. (R. at 191.) Dr. John Spurzem noted on September 8,20 I 0 that subsequent physicians have assumed that the claimant's renal insufficiency has been related to the Amphotericin B and he has no reason to think otherwise. He noted that it is very possible that the Amphotericin B that was used back in 1998 contributed to renal insufficiency. He went on to say that claimant was on Prednisone at some time in the past which can aggravate diabetes and make the glucose control much more difficult. (R. at ) Dr. Murphy Martin, nephrologist noted on February 25, 2011 thatmr. Harris is being treated for Stage III chronic kidney disease. This is caused by prior Amphotericin B therapy for aspergillosis contracted while at work. (R. at 182.) He had Amphotericin induced renal failure with biopsy showing secondary focal segmental glomerulosclerosis. He also received Prednisone therapy because of the lung disease that resulted in diabetes, which persists today. The Employer and Carrier have had years to investigate the requested medical opinions to refute these physicians. In fact, the Employer and Carrier did pay for the kidney disease treatment, but now it is being denied. Dr. Martin is highly regarded as a Board Certified nephrologist that has provided an affirmative opinion on causation and medical necessity which the employer and carrier have chosen to ignore. The Employer and Carrier were provided with the medical documentation, but declined to provide the medical treatment and medications ordered by the treating physician. DISCUSSION A substantial factual basis supports the opinion of the Administrative Law Judge and subsequent Full Commission, the Court need look no further than the first page of the Full 4

10 Commission's Order providing: The Administrative Judge considered and weighed a significant amount of medical evidence concerning the potential complications which can arise from the use of Amphotericin B, which was given to Mr. Harris in 1997 and 1998 following his lung injury in late We find more than enough credible evidence linking Mr. Harris' current renal and other problems to the use of the medicine. The opinions of all of the different physicians involved are not unanimous, but the greater weight of their testimony support the causative link found by the Judge and by us. (R. at 229.) The Employer and Carrier apparently argue that the Commission erred in not allowing belated evidence of a physicians' report, provided belatedly after the record was closed. The Commission correctly found that the report clearly was untimely filed, as it was not provided until more than ninety (90) days after oral arguments and a significant amount of time had lapsed since the record had been closed. Furthermore, the alleged supplementation by the Employer and Carrier, even if it would have been timely filed and allowable by the rules, is nothing more than speculatory opinions insufficient to support the arguments on appeal. CONCLUSION The arguments by the employer and carrier, while voluminous, provide no legitimate issue that would justify a reversal of the findings of the Commission. Instead, the Employer makes the misrepresentation that these claims should be addressed by a new standard recently enacted by the legislature. Notwithstanding, this claim is governed by the liberal construction in favor of the Claimant. In this case, overwhelming evidence supports the findings of the Commission. The employer (in apparent desperation) does nothing but create new arguments (with no support) which show the complete failure of the employer and carrier to link, argue or provide any proof of evidence whatsoever that would justify a reversal of the Commission's findings. A review of the complete 5

11 record, the Commission's findings are supported by the substantial overwhelming evidence. The Order of the Commission should be affirmed. RESPECTFULLY SUBMITTED, this the -#..-th day of March, LARRY B. HARRIS, APPELLEE, OF COUNSEL: John Hunter Stevens, Esq./ MSB NO GRENFELL, SLEDGE & STEVENS, PLLC 1535 Lelia Drive (39216) Post Office Box Jackson, Mississippi Telephone: (601) Facsimile: (601) CERTIFICATE OF SERVICE I, John Hunter Stevens, do hereby certify that I have this day mailed by United States Mail, postage prepaid, the above and foregoing to: Steven D. Slade, Esq. Post Office Box 3490 Meridian, Mississippi DATED, this the ~th day of March, 2013.