Felter v. FloorServ Inc.

188 So. 3d 589, 2015 Miss. App. LEXIS 331, 2015 WL 3791440
CourtCourt of Appeals of Mississippi
DecidedJune 16, 2015
DocketNo. 2014-WC-01064-COA
StatusPublished

This text of 188 So. 3d 589 (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., 188 So. 3d 589, 2015 Miss. App. LEXIS 331, 2015 WL 3791440 (Mich. Ct. App. 2015).

Opinion

GRIFFIS, P.J.,

for the Court:

¶ 1. Erika Felter appeals the decision of the Mississippi Workers’ Compensation Commission denying permanent disability and additional medical benefits she requested as part of her workers’ compensation judgment. We find no' error and affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On March 27, 2006, Felter suffered injuries in a car accident while working for her employer, FloorServ. On April 1, 2007, Felter filed a petition to controvert with the Commission. The administrative judge (AJ) issued an order awarding Fel-ter compensation through August 30,> 2006, when Felter reached her maximum medical improvement (MMI). Felter then, .attempted to appeal the AJ’s decision.

¶ 3. This Court previously considered this case. Felter v. FloorServ Inc. (Felter I), 140 So.3d 431 (Miss.Ct.App.2012). The Court affirmed the decision of the Commission and the Adams County Circuit Court, which found Felter’s appeal of the AJ’s decision untimely. Id. at 433 (¶2).

■ ¶ 4. We restate the facts and procedural history discussed in the earlier opinion:

On the day of the car accident, Felter presented to the Natchez Regional Medical Center’s emergency room. She complained of pain “all over,” with specific complaints of neck and abdominal pain. Felter underwent an abdominal and pelvic CT scan and x-rays of her chest, cervical spine, pelvis, left hip and knee, 'and'lumbar spine. Felter’s CT scans and ... x-rays showed no abnormalities, and the medical center released Felter to return home.
Following the accident, Felter saw several other doctors. On April 2, 2006, Felter presented to Dr. Ibrahim Seki at Riverpark After Hours Clinic, complaining of severe back pain. At this visit, Dr. Seki diagnosed Felter with acute myofascial strain of the lumbar spine and possible degenerative-disc disease. Felter 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 Felter. with low-back pain and possible degenerative-disc disease.
Dr..Seki referred Felter to Dr. Passman 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.
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 [591]*591determined that she had reached MMI on June 21, 2006. Dr. Fairbanks also referred Fetter to Dr. Joseph Turnip-seed, a pain-management specialist.
Dr. Tumipseed first saw Fetter on May 31, 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. Tumipseed released Fetter to return to light-duty work. On September 12, 2006, Fetter returned to Dr. Turnipseed’s office, complaining of neck pain. However, Dr. Tumipseed could not connect Fetter’s neck pain to her on-the-job injury.
At FloorServ’s request, Dr. Anthony Iappolo, a neurosurgeon, examined Fel-ter on August 30, 2006. Dr. Iappolo found that Fetter’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' Fetter’s back-pain complaints. He also did not find any herniated discs. Further, Dr. iappolo determined that Fetter’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 Fetter’s complaints of radiating pain on the left side of her body. Dr. Iappolo diagnosed Fetter with chronic cervical' and lumbar pain of unknown origin.
FloorServ also referred Fetter to Dr. W. Lyn Stringer, a neurosurgeoh, for evaluation. Dr. Stringer examined Fetter on September 17, 2007. Based on Fetter’s medical history, a review of past radiological films, and his examination of Fel-ter, 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.
On January [9], 2009, the AJ ruled that Fetter 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 Fetter had failed to prove that she suffered a loss of wage-earning capacity. On February 19, 2009, the AJ allowed Fetter’s attorney to withdraw from the case and gave Fetter thirty days “to obtain representation by another attorney or continue prosecution of the claim without legal representation.” Fetter proceeded pro se and appealed the AJ’s order to the full Commission. The Commission dismissed Fetter’s appeal as untimely.

Id. at 433-34 (¶¶ 6-13).

¶ 5. The Mississippi Supreme Court granted certiorari and reversed the case, finding' that Fetter timely appealed the AJ’s decision. Felter v. FloorServ Inc. (Fetter II), 140 So.3d 426, 429 (¶ 9) (Miss.2013). The supreme court remanded the case to the Commission for á finding on the merits of her appeal. Id.

¶ 6. On remand, the Commission affirmed the AJ’s decision on the merits of Fetter’s appeal on June 20, 2014. It is from this ruling that Fetter now appeals.

STANDARD OF REVIEW

¶ 7. “The standard of review by which an appellate court resolves a workers’ compensation case is that of substantial evi-dénce; however, where the issue is one of law and not of fact, the standard of review is de novo.” Hugh Dancy Co. v. Mooneyham, 68 So.3d 76, 79 (¶ 6) (Miss.Ct.App.2011) (quoting Shelby v. Peavey Elecs. Corp., 724 So.2d 504, 506 (¶ 8) (Miss.Ct.App.1998)). “Absent an error of law, we [592]*592must affirm the Commission’s decision if there is substantial evidence to support the Commission’s decision.” Id. (citation omitted). -

ANALYSIS

¶ 8. Fetter asserts on appeal that the AJ refused to take certain medical records into consideration in her findings. Fetter also argues that the AJ decided the outcome of the case during a September 23, 2008 phone conference, which occurred the day before the September 24, 2008 hearing. FloorServ counters that Fetter failed to support her assertions with legal authority and substantial evidence supported the AJ’s and the Commission’s decisions.

¶ 9. “Rule 28(a)(6) of the Mississippi Rules of Appellate Procedure requires an appellant’s brief to ‘contain the contentions of the appellant with respect to the issues presented, and the reasons for those com tentions, with citations to the authorities, statutes, and parts of the record relied on.’ ” Bishop v. Miss. Dep’t of Emp’t Sec.,

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Bluebook (online)
188 So. 3d 589, 2015 Miss. App. LEXIS 331, 2015 WL 3791440, Counsel Stack Legal Research, https://law.counselstack.com/opinion/felter-v-floorserv-inc-missctapp-2015.