Bechtel Corporation v. Phillips

591 So. 2d 814, 1991 WL 261405
CourtMississippi Supreme Court
DecidedDecember 4, 1991
Docket90-CC-0217
StatusPublished
Cited by7 cases

This text of 591 So. 2d 814 (Bechtel Corporation v. Phillips) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bechtel Corporation v. Phillips, 591 So. 2d 814, 1991 WL 261405 (Mich. 1991).

Opinion

591 So.2d 814 (1991)

BECHTEL CORPORATION and Industrial Indemnity Company
v.
Junior W. PHILLIPS.

No. 90-CC-0217.

Supreme Court of Mississippi.

December 4, 1991.

*815 Terry B. Germany, Markow Walker Reeves & Anderson, Jackson, for appellants.

Harry J. Rosenthal, Albert Dickens, Jackson, for appellee.

En Banc.

ON PETITION FOR REHEARING

HAWKINS, Presiding Justice for the Court:

The original decision affirming this case is withdrawn. The petition for rehearing of the employer Bechtel Corporation (Bechtel) and carrier Industrial Indemnity Company, the appellants herein, is granted and the cause is reversed and judgment rendered for the appellants.

FACTS

Junior W. Phillips on September 29, 1987, filed a motion to controvert with the Mississippi Workers' Compensation Commission (Commission), claiming he suffered a back injury in the early morning of October 2, 1986, while employed with Bechtel. There is no conflict but that Phillips either sustained a back injury or an acute manifestation of a back problem on that date. Rather, the question is whether he sustained any injury on the job that day, as he claimed before the Commission.

Phillips' family physician is Robert A. Dale, M.D., in general practice in Hazlehurst, who Phillips started seeing in 1980.

On October 2, 1986, Phillips went to Dr. Dale complaining of low back pain. Following an examination, Dr. Dale referred Phillips to Walter Shelton, M.D., an orthopedic surgeon in Jackson. Dr. Dale's notes did not reflect any history being given by Phillips of receiving an injury on the job. He testified that he tried to get a history of work-related injuries, but on some days because he was alone seeing 40 to 60 patients, he did not get a history.

Dr. Dale was never asked, and never gave a medical opinion that Phillips' back problem was work related.

Dr. Shelton testified that he saw Phillips on October 15. He testified from his office notes:

At the time he was having back and left leg pain. Stated that he worked as a pipe fitter at Grand Gulf, and he bent over two weeks prior to this getting out of the bathtub and had sudden severe onset of back pain radiating to the left foot.

Asked if Phillips had ever related a history of having injured his back while working as a pipe fitter at Bechtel, Dr. Shelton replied: "Let me see. (Reviews file). No, he did not." The only history of an injury Dr. Shelton obtained was that Phillips hurt his back getting out of the bathtub.

Because Dr. Shelton concluded Phillips had a neurological deficit, he referred him to Glen C. Warren, M.D., engaged in neurological surgery in Jackson.

Dr. Warren saw Phillips on November 10, 1986. He testified:

I saw him initially on the 10th day of November, and he related that on the 2nd of October the same year, he had bent forward at home, felt a pop in his leg and then began to experience left hip and leg pain that extended down into his calf, describing some numbness on the outside of his left foot.
.....
*816 Denied ever having had that type of problem before.

This history was given Dr. Warren at the River Oaks Hospital on November 10. He was further asked:

Q. Yes, sir. From the history that you just stated, if I caught it correctly, I believe the injury derived from something that happened at his home; is that correct?
A. That was the history he gave me, yes, sir.
.....
Q. Doctor, could you tell me whether or not your diagnosis was consistent with the history of the injury as related to you by the claimant and by his prior doctors?
A. Yes, that's a very common history, that is, bending and feeling popping in your back. And that occurs with or without lifting. You don't necessarily have to do any lifting in order to have this occur. So this is probably the most common story that we have in someone who ruptures a disc in his back.

A myelogram was performed, and surgery performed on a herniated disc in the degenerative stage at the L5, S1 level on November 12.

None of the doctors filed claims for medical services with the Commission, although all were familiar with the procedure for making claims for such services.

Louie F. Wilkins, Jr., M.D., engaged in general medicine and surgery in Hazlehurst, saw Phillips on November 25, 1986, for the purpose of making a social security disability evaluation. He took a detailed history and made a detailed examination. The report begins:

Mr. Phillips comes in complaining of back problems. He states that he was doing well until sometime in early October, when after taking a shower, he stepped out of the shower, bent over, and his back popped. The pain started immediately in his back and radiated down the left leg. He was in severe pain and was taken to a local doctor in Hazlehurst, who treated him and had him stay in bed for about ten days.

Under diagnosis, the report states: "This patient is status post surgery for herniated lumbar disc on the left."

None of these treating and examining physicians ever testified that in his opinion Phillips had sustained a work-related injury of any kind. As noted, if they testified at all as to its etiology, the onset began with Phillips getting out of the tub at his home.

Phillips, who was born August 8, 1929, had other physical problems as well. He was a heavy smoker and was overweight. He had both pulmonary and some heart problems. He also had a chronic skin rash.

Phillips filed a motion to controvert in September 29, 1987. The administrative law judge conducted a hearing on August 24, 1988.

Phillips went through the seventh grade in school. He spent several months in the Air Force in 1951 and was discharged because of a suspected residual tubercular problem. He went through several years as an apprentice plumber and engaged in the pipe fitter trade. He began work for Bechtel at the Grand Gulf plant August 28, 1986, commuting 75 miles to work each day.

On the late night shift, around 4:30 a.m. on October 2, 1986, he testified:

Now my back kind of popped. I was lifting some pipe and tool stuff up on the scaffold. And the way I had to hold the stuff, pull it up, swing it over a rail, when I did my back kind of popped and there was a burning went down this left hip.

He told a fellow worker he had hurt his back. He nursed it for the rest of the shift, then took Anacin and drove home. He was not feeling well, and did not eat any breakfast, but went to bed. That afternoon he got out of bed, went to the shower, and while drying off was hurting so bad he called his wife to help him back to bed. She called for an appointment with Dr. Dale who saw him around 5:00 o'clock that afternoon.

*817 Mrs. Phillips telephoned the time keeper at the plant, notifying him that her husband would be unable to go to work.

Phillips testified that he believed he told Dr. Dale that he hurt his back while working. He did not recall giving Dr. Shelton any history, only that Dr. Dale and Dr. Shelton conversed about his condition.

On cross-examination he testified:

Q. Do you recall relating — now you testified about taking a shower on the afternoon of October the 2nd, 1986. Do you recall relating anything to Dr. Shelton when you went to see him the first time about the shower and getting out of the shower?
A. I don't know if I did.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Harper Ex Rel. Harper v. Banks, Finley, White & Co. of Mississippi
167 So. 3d 1155 (Mississippi Supreme Court, 2015)
Frito-Lay, Inc. v. Leatherwood
908 So. 2d 175 (Court of Appeals of Mississippi, 2005)
Lane Furniture Industries, Inc. v. Essary
919 So. 2d 153 (Court of Appeals of Mississippi, 2005)
Bryan Foods, Inc. v. White
913 So. 2d 1003 (Court of Appeals of Mississippi, 2005)
Nosser v. First American Credit Corp.
814 So. 2d 178 (Court of Appeals of Mississippi, 2002)

Cite This Page — Counsel Stack

Bluebook (online)
591 So. 2d 814, 1991 WL 261405, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bechtel-corporation-v-phillips-miss-1991.