Dulaney v. National Pizza Co.

733 So. 2d 301, 1998 WL 812343
CourtCourt of Appeals of Mississippi
DecidedNovember 24, 1998
Docket97-CC-00224 COA
StatusPublished
Cited by7 cases

This text of 733 So. 2d 301 (Dulaney v. National Pizza Co.) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dulaney v. National Pizza Co., 733 So. 2d 301, 1998 WL 812343 (Mich. Ct. App. 1998).

Opinion

733 So.2d 301 (1998)

Patricia A. DULANEY, Appellant,
v.
NATIONAL PIZZA COMPANY, Lumbermans Mutual Casualty Company, And American Motorist Insurance Company, Appellees.

No. 97-CC-00224 COA.

Court of Appeals of Mississippi.

November 24, 1998.
Rehearing Denied February 9, 1999.
Certiorari Denied April 22, 1999.

*303 Gene Barton, Pontotoc, Attorney for Appellant.

Kenneth H. Coghlan, Oxford, Attorney for Appellees.

BEFORE THOMAS, P.J., KING, AND SOUTHWICK, JJ.

SOUTHWICK, J., for the Court:

¶ 1. Patricia Dulaney filed a workers' compensation claim as a result of a fall. She was awarded temporary benefits but not all her claimed medical expenses. On appeal she alleges error in not receiving permanent disability benefits and in not having the fees of one of her physicians paid. The employer cross-appeals arguing that the fees of another physician should also have been rejected and that the date of maximum medical improvement is clearly erroneous. We affirm the Commission except as to the denied expenses of one doctor. We reverse and remand regarding that issue.

FACTS

¶ 2. While employed on August 17, 1991, by a Pizza Hut in Fulton, Patricia Dulaney slipped on a wet floor in the restaurant's kitchen and was injured. She went to the emergency room shortly afterward and then at her employer's suggestion to see Dr. Marlin, her family physician. Dr. Marlin referred her to Dr. Doorly, a neurosurgeon. Doorly treated her for back pain until November 1991, when Dulaney quit attending a back therapy program. Doorly did not diagnose Dulaney as having any permanent impairment. Without a referral from another doctor, Dulaney began to see Dr. John McFadden, a pain management specialist, in December of 1991.

¶ 3. A dispute arose between the parties at this time regarding continuing treatment. An order from Administrative Judge Linda Thompson is referenced, but does not appear in the record, that the employer was to pay for additional medical services. This order resulted in Dulaney being treated at the Semmes-Murphey Clinic. There Dr. Gaines, a neurosurgeon, first examined Dulaney on July 17, 1992. After several diagnostic tests, Gaines recommended therapy. Dulaney was examined by Dr. Carro, also a neurosurgeon, who diagnosed Dulaney with "chronic pain syndrome" which he felt "would resolve when the litigation process was closed." Carro referred Dulaney to Dr. Anton, a psychologist, who saw her on January 29, 1993. Anton felt Dulaney was exaggerating her claims. All these doctors were provided by the employer and liability for the expense of their care is not in dispute.

¶ 4. Throughout this period, Dulaney continued to see Dr. McFadden. He referred Dulaney to Dr. Bruce Senter, an orthopedic surgeon. Dulaney first saw Senter on February 15, 1993. Senter recommended back surgery. Dulaney underwent a total of three operations by Senter. The first occurred on April 13, 1993, the second on March 1, 1994, and a third several weeks later.

¶ 5. The Commission found that the employer was responsible for the treatment by Senter but not by McFadden. The Commission accepted Senter's evaluation as to Dulaney's medical condition and found his treatment to be reasonable and necessary. Senter's opinion was also accepted that Dulaney's date of maximum medical improvement was March 1, 1995, not November 25, 1991, as asserted by the employer. Although accepting Senter's diagnosis that Dulaney had a seventeen percent permanent impairment, the Commission found no permanent industrial disability.

*304 DISCUSSION

¶ 6. A decision of the Workers' Compensation Commission is upheld if the fact-findings are based upon substantial evidence and if there is no error of law. Metal Trims Industries, Inc. v. Stovall, 562 So.2d 1293, 1296-97 (Miss.1990). With that deference we proceed with our review.

1. Denial of permanent benefits.

¶ 7. Dulaney argues that the Commission erred in refusing to award permanent partial disability benefits because it improperly applied a 1992 statutory amendment to her claim based on a 1991 injury. The amendment removed a requirement that a $25 minimum weekly payment be made for permanent partial disability. Cf. Miss.Code Ann. § 71-3-13(1) (Rev.1995) & 1990 Miss. Laws ch. 405, § 7. Whatever merit this argument may have is academic unless we find that the Commission erred in refusing to find permanent disability at all. We thus turn to whether there is substantial evidence supporting the Commission's finding.

¶ 8. Dr. Senter's testimony established that Dulaney had a seventeen percent permanent impairment after her maximum medical improvement. That is not by itself enough to prove an industrial disability for purposes of workers' compensation law. "Generally, `disability' means incapacity because of injury to earn the wages which the employee was receiving at the time of the injury in the same or other employment." Jordan v. Hercules, Inc., 600 So.2d 179, 183 (Miss.1992). Dulaney failed to seek any employment after March 1, 1995, her date of maximum medical improvement. She argues that this is because she was on Social Security disability. Regardless of what some other governmental agency concludes and on what basis it reaches that conclusion, the obligation of a claimant under workers' compensation rules is to prove her industrial disability. Dulaney's principal witness on her injuries and necessary treatment, Dr. Senter, stated that she had a seventeen percent medical disability with a restriction of not lifting more than 45 pounds "and that would be the extent of my limitations." It was uncontested that she made no effort to find additional employment after recovery.

¶ 9. Dulaney failed to prove that she had sought but nonetheless failed to gain alternate employment. This prevents an award of permanent disability benefits. Georgia Pacific v. Taplin, 586 So.2d 823, 828 (Miss. 1991).

2. Fees of Drs. McFadden and Senter

¶ 10. The parties contest different parts of the Commission's decisions on medical expense liability. Dulaney asserts that Dr. McFadden's services should be compensated, and the employer argues that Dr. Senter's should be rejected. Correct analysis of these issues requires attention to the time line of visits by Dulaney to these two physicians and a comparison of the law which was applicable when those visits occurred as the statute in question was amended during this period.

a. Dr. McFadden

¶ 11. Dulaney first went to see McFadden in December of 1991. The version of section 71-3-15 in effect at that time provided in relevant part that the "injured employee shall have the right to accept the services furnished by the employer or, in his discretion, to select a competent physician of his choosing to administer medical treatment." Miss.Code Ann. § 71-3-15 (Rev.1989) (emphasis added). This language was changed to "one (1) competent physician" on July 1, 1992, eight months after Dulaney started with Dr. McFadden. Miss.Code Ann. § 71-3-15 (Rev.1995). That "a" might mean something other than "one" certainly seems, at least initially, to be a strained view. The Commission in a 1985 case that Dulaney cites held that "a competent physician" should be read broadly to mean any number of physicians. McKay v.

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Bluebook (online)
733 So. 2d 301, 1998 WL 812343, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dulaney-v-national-pizza-co-missctapp-1998.