Felter v. Floorserv Inc.

140 So. 3d 431, 2012 WL 2304275, 2012 Miss. App. LEXIS 371
CourtCourt of Appeals of Mississippi
DecidedJune 19, 2012
DocketNo. 2010-WC-01793-COA
StatusPublished
Cited by3 cases

This text of 140 So. 3d 431 (Felter v. Floorserv Inc.) 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
Felter v. Floorserv Inc., 140 So. 3d 431, 2012 WL 2304275, 2012 Miss. App. LEXIS 371 (Mich. Ct. App. 2012).

Opinion

IRVING, P.J.,

for the Court:

¶ 1. On February 1, 2007, Erika L. Fel-ter filed a petition to controvert with the Mississippi Workers’ Compensation Commission (Commission) alleging that she had sustained injuries to her neck, upper and lower back, head, right and left knees, left hip, and left arm and hand as a result of a car accident that occurred while she was working as a territory manager for FloorServ Inc. (FloorServ).1 A hearing was held before an administrative judge (AJ), who found that Fetter had suffered a work-related injury on March 27, 2006, and had reached maximum medical improvement (MMI) from that injury on August 30, 2006. Additionally, the AJ found that Fetter’s medical treatment was reasonable and necessary through August 30, 2006. However, because she did not seek employment after her MMI date, the AJ determined that Fetter had failed to demonstrate a loss of wage-earning capacity and was not entitled to additional indemnity or medical benefits from FloorServ.

¶ 2. Fetter appealed the AJ’s decision to the full Commission, which dismissed her appeal as untimely. Fetter appealed the Commission’s decision to the Adams County Circuit Court. The circuit court affirmed the AJ’s denial of additional benefits and the Commission’s dismissal of Fetter’s appeal as untimely.

¶ 3. Feeling aggrieved, Fetter appeals and argues that: (1) the Commission erred in dismissing her appeal; (2) the AJ’s decision was not based on substantial evidence; and (3) she should have been able to present her case to a jury in circuit court.

¶ 4. Finding no error, we affirm.

FACTS

¶ 5. While working as a territory manager for FloorServ, Fetter sustained injuries in a car accident. Fetter testified that because of the pain that she has experienced since the car accident, she can no longer participate in normal activities without assistance from her husband. Fetter further testified that she had returned to work one week after the accident and had continued to work until the pain from her injuries prevented her from working.

¶6. On the day of the ear accident, Fetter presented to the Natchez Regional Medical Center’s emergency room.2 She complained of pain “all over,” with specific complaints of neck and abdominal pain. Fetter underwent an abdominal and pelvic CT scan and x-rays of her chest, cervical spine, pelvis, left hip and knee, and lumbar spine. Fetter’s CT scans and and x-rays showed no abnormalities, and the medical center released Fetter to return home.

¶ 7. Following the accident, Fetter saw several other doctors. On April 2, 2006, Fetter presented to Dr. Ibrahim Seki at Riverpark After Hours Clinic, complaining of severe back pain. At this visit, Dr. Seki diagnosed Fetter with acute myofascial strain of the lumbar spine and possible degenerative-disc disease. Fetter returned to Dr. Seki for an MRI of the lumbar spine on April 8, 2006, which showed minimal changes at the L4-5 and L5-S1 areas. Dr. Seki ultimately diagnosed Fetter with low-back pain and possible degenerative-disc disease.

¶ 8. Dr. Seki referred Fetter to Dr. [434]*434Passman3 at Passman-Haimson Orthopedic Sports and Rehab. Dr. Passman ordered a second lumbar MRI, which showed no abnormalities. Dr. Passman concluded that Felter’s “nerves might be the source of her problems.” He also indicated that he did not believe that Felter needed treatment from an orthopedist or a neurosurgeon but that she might benefit from treatment from a psychiatrist.

¶ 9. On her own accord, Felter presented to Dr. J.H. Fairbanks. Dr. Fairbanks diagnosed Felter with thoracic strain and possible sciatica. He also recommended that she attend physical therapy sessions and ordered an MRI of her thoracic spine. Ultimately, Dr. Fairbanks concluded that Felter was temporarily totally disabled. However, he noted that Felter’s MRI did not indicate the need for surgical intervention, and he determined that she had reached MMI on June 21, 2006. Dr. Fairbanks also referred Felter to Dr. Joseph Turnipseed, a pain-management specialist.

¶ 10. Dr. Turnipseed first saw Felter on May 81, 2006. She presented to him with complaints of mid-back pain, low-back pain, and left-leg pain with numbness. On June 27, 2006, Dr. Turnipseed released Felter to return to light-duty work. On September 12, 2006, Felter returned to Dr. Turnipseed’s office, complaining of neck pain. However, Dr. Turnipseed could not connect Felter’s neck pain to her on-the-job injury.

¶ 11. At FloorServ’s request, Dr. Anthony Iappolo, a neurosurgeon, examined Felter on August 30, 2006. Dr. Iappolo found that Felter’s MRI results did not support her complaints. During the examination, Dr. Iappolo discovered a spinal L4 protrusion but determined that it was not related to Felter’s back-pain complaints. He also did not find any herniated discs. Further, Dr. Iappolo determined that Fel-ter’s medical treatment up to August 30, 2006, had been reasonable and necessary. However, he saw no need for further treatment except possibly a nerve-conduction study to investigate Felter’s complaints of radiating pain on the left side of her body. Dr. Iappolo diagnosed Felter with chronic cervical and lumbar pain of unknown origin.

¶ 12. FloorServ also referred Felter to Dr. W. Lyn Stringer, a neurosurgeon, for evaluation. Dr. Stringer examined Felter on September 17, 2007. Based on Felter’s medical history, a review of past radiological films, and his examination of Felter, Dr. Stringer diagnosed her with post-traumatic cervical, thoracic, and lumbar-spine pain of uncertain origins. Dr. Stringer noted a degenerative-disc bulge at the T8-T9 area, which was present prior to the accident, and also noted degenerative changes in the lumbar spine during the year following the accident.

¶ 13. On January 1, 2009, the AJ ruled that Felter had reached MMI on August 30, 2006, and that she was not entitled to additional indemnity or medical benefits from FloorServ. The AJ also ruled that Felter had failed to prove that she suffered a loss of wage-earning capacity. On February 19, 2009, the AJ allowed Felter’s attorney to withdraw from the case and gave Felter thirty days “to obtain representation by another attorney or continue prosecution of [the] claim without legal representation.” Felter proceeded pro se and appealed the AJ’s order to the full Commission. The Commission dismissed Felter’s appeal as untimely.

¶ 14. Additional facts, as necessary, will be related during our analysis and discussion of the issues.

[435]*435ANALYSIS AND DISCUSSION OF THE ISSUES

¶ 15. Pro se litigants are “held to the same rules of procedure and substantive law as represented parties.” Buckel v. Chaney, 47 So.3d 148, 153 (¶ 10) (Miss.2010) (quoting Dethlefs v. Beau Maison Dev. Corp., 511 So.2d 112, 118 (Miss.1987)). Additionally, “[i]t is the duty of the appellant to provide authority in support of an assignment of error.” Jones v. Howell, 827 So.2d 691, 702 (¶ 40) (Miss.2002) (citations omitted). Because Felter has failed to provide authority to support her contentions of error, the issues that she presents on appeal are procedurally barred. Id. Notwithstanding the procedural bar, Felter’s arguments lack merit.

1. Commission’s Decision

¶ 16. Felter argues that the Commission erred in dismissing her appeal as untimely.

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Related

Felter v. FloorServ Inc.
188 So. 3d 589 (Court of Appeals of Mississippi, 2015)
Felter v. Floorserv, Inc.
140 So. 3d 426 (Mississippi Supreme Court, 2013)
Erika L. Felter v. Floorserv, Inc.
Mississippi Supreme Court, 2010

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Bluebook (online)
140 So. 3d 431, 2012 WL 2304275, 2012 Miss. App. LEXIS 371, Counsel Stack Legal Research, https://law.counselstack.com/opinion/felter-v-floorserv-inc-missctapp-2012.