DeLaughter v. South Cent. Tractor Parts

642 So. 2d 375, 1994 WL 378656
CourtMississippi Supreme Court
DecidedJuly 21, 1994
Docket91-CC-01048
StatusPublished
Cited by26 cases

This text of 642 So. 2d 375 (DeLaughter v. South Cent. Tractor Parts) 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
DeLaughter v. South Cent. Tractor Parts, 642 So. 2d 375, 1994 WL 378656 (Mich. 1994).

Opinion

642 So.2d 375 (1994)

Frank T. DeLAUGHTER
v.
SOUTH CENTRAL TRACTOR PARTS and Insurance Company of North America.

No. 91-CC-01048.

Supreme Court of Mississippi.

July 21, 1994.
Rehearing Denied September 29, 1994.

*376 G. Kenner Ellis, Jr., Greenville, for appellant.

Joseph T. Wilkins, III, Diane V. Pradat, McCoy Wilkins Stephens & Tipton, Jackson, for appellees.

Before DAN M. LEE, P.J., and McRAE and SMITH, JJ.

McRAE, Justice, for the Court:

This appeal arises from an October 14, 1991, order of the Washington County Circuit Court affirming the findings of the Mississippi Workers' Compensation Commission that Frank DeLaughter sustained a permanent partial disability compensable at the rate of $25.00 per week, reducing a $100.00 per week award established by the Administrative Judge. We affirm the award of temporary disability benefits, payment of necessary medical expenses and penalties. However, finding that certain of the Commission's findings are unsupported, we reverse and remand for redetermination of DeLaughter's loss of wage earning capacity.

FACTS

Frank DeLaughter was employed by South Central Tractor Parts, a farm implements salvage dealer in Leland, Mississippi. He had worked for South Central since 1984 as a yardman and a stockman, tearing down old tractors and other equipment, steam cleaning parts, and placing them on storage racks. DeLaughter, who was thirty-five years old when he was injured, has only an eighth grade education and has worked always as a semi-skilled laborer.

On September 24, 1987, DeLaughter sustained a compensable injury to his back when he fell from a six-foot-high "bolder rack." He was treated and released at the Delta Medical Center, but sought further treatment from his family doctor for pain in his right shoulder and both "flanks," the area his physician described as spanning "[l]aterally, between the rib cage and wings of the pelvis." He returned to work shortly thereafter.

Although he complained of back pain to his family and co-workers, DeLaughter continued working, often putting in considerable overtime, until April 2, 1988. After taking a two week vacation in March, 1988, DeLaughter returned to work for several days, and then, without notifying his supervisor, left.

In April, 1988, DeLaughter sought further treatment from doctors in Greenville and Jackson. Still complaining of back pain, DeLaughter then went to see Dr. Albert Azordegan, a Jackson neurosurgeon, on July 15, 1988. Dr. Azordegan prescribed medicine for pain and saw DeLaughter again on July 29 and August 8. The August evaluation revealed an objective neurological deficit, leading Dr. Azordegan to admit DeLaughter to the hospital on August 10. Although a myelogram taken at that time was normal, Dr. Azordegan diagnosed his condition as *377 "traumatic lumbosacral spine the nerve root irritation." On September 12, 1988, DeLaughter was released for light work. He again returned to the doctor on November 29, complaining of "generalized soreness." At that time, Dr. Azordegan found that DeLaughter had reached maximum improvement and again released him to work. He advised DeLaughter to avoid excessive bending and not to lift anything in excess of forty (40) pounds.

Based on his treatment and evaluations of DeLaughter, Dr. Azordegan opined that he sustained a four percent (4%) partial disability. Dr. Ward McRaney, an orthopedic surgeon in Jackson who performed an "independent medical evaluation" on DeLaughter on November 21, 1988, found, however, that the claimant had "subjective symptoms of pain which were not substantiated by demonstrable pathology" and had suffered no permanent impairment from his injury.

DeLaughter went back to work at South Central in late November or early December, 1988, and was assigned light work. After a week, he returned to his former job as a stockman. A co-worker, Walter Mister, was assigned to assist DeLaughter in lifting anything weighing more than forty pounds.

DeLaughter left South Central in February, 1989. He testified that he was fired or "terminated," whereas Bruce Clifft, then manager of the business, stated that he had quit. DeLaughter had secured another job at the "Double Quick" convenience store, operating the cash register, restocking shelves, making biscuits and keeping the store clean. He left "Double Quick" after only two or three weeks, stating that he could not do the work because he was in pain. Pat Horne, the "Double Quick" manager, testified that he performed the job poorly, especially having difficulties with running the cash register and keeping the store clean. After leaving "Double Quick," DeLaughter went to work for a cabinet shop, building and sanding cabinets. He left shortly thereafter, again complaining of back pain.

DeLaughter testified that he attempted to find other work, contacting between 125 and 130 businesses. He stated that he had applied in person at some thirteen to fifteen businesses. Despite these efforts, he was unable to find other employment. His only income has been derived from making wooden toys to sell at flea markets and selling Mexican pottery by the side of the road.

DeLaughter initially filed a motion to controvert with the Mississippi Workmen's Compensation Commission on April 8, 1988. The Administrative Judge entered an order on June 13, 1990, finding that DeLaughter was entitled to temporary total disability benefits in the amount of $140.00 per week for the period beginning September 24, 1987 and ending October 2, 1987, as well as from April 4 through September 12, 1988. He further ordered South Central to pay permanent partial disability payments of $100.00 per week for 450 weeks, beginning September 12, 1988, necessary and reasonable medical services and supplies, and penalties pursuant to Miss. Code Ann. § 71-3-37.

South Central filed its petition of appeal from the Administrative Judge's order on June 25, 1990. A two-member panel of the Workers' Compensation Commission heard arguments on the case on December 17, 1990. The Commission entered an order on February 8, 1991. Finding that DeLaughter suffered only minimal industrial incapacity as a result of his injury, the Commission affirmed the Administrative Judge's order, but reduced the permanent partial disability benefit payments to $25.00 per week. DeLaughter perfected his appeal to the Washington County Circuit Court, which affirmed the Commission's order. He now appeals to this Court.

STANDARD OF REVIEW

Upon review, this Court is bound by those findings and orders of the Workers' Compensation Commission which are supported by substantial evidence. Mitchell Buick, Pontiac and Equipment Co. v. Cash, 592 So.2d 978, 980 (Miss. 1991); Hardin's Bakeries v. Dependent of Harrell, 566 So.2d 1261, 1264 (Miss. 1990); Fought v. Stuart C. Irby Co., 523 So.2d 314, 317 (Miss. 1988). "This is so, even though the evidence would convince this Court otherwise, were we the fact finder." Fought, 523 So.2d at 317. We *378 will overturn decisions of the Commission only where there is an error of law or a finding unsupported by the evidence. Walker Manufacturing Co. v. Cantrell, 577 So.2d 1243, 1246-1247 (Miss. 1991). Further, we have held that "the circuit court is limited in its review and must defer to the findings of the Commission unless the Commission commits prejudicial error." Lanterman v. Roadway Express, Inc., 608 So.2d 1340, 1345 (Miss. 1992); Smith v. Jackson Construction Co.,

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642 So. 2d 375, 1994 WL 378656, Counsel Stack Legal Research, https://law.counselstack.com/opinion/delaughter-v-south-cent-tractor-parts-miss-1994.