Flowers v. Crown Cork & Seal USA, Inc.

168 So. 3d 1009, 2013 WL 3185999, 2013 Miss. App. LEXIS 388
CourtCourt of Appeals of Mississippi
DecidedJune 25, 2013
DocketNo. 2011-WC-01552-COA
StatusPublished
Cited by4 cases

This text of 168 So. 3d 1009 (Flowers v. Crown Cork & Seal USA, 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
Flowers v. Crown Cork & Seal USA, Inc., 168 So. 3d 1009, 2013 WL 3185999, 2013 Miss. App. LEXIS 388 (Mich. Ct. App. 2013).

Opinion

BARNES, J.,

for the Court:

¶ 1. After filing six petitions to controvert for work-place injuries that he allegedly sustained from 1996 through 2007, Levon Flowers was awarded temporary and permanent partial disability benefits by an administrative judge (AJ). Flowers was denied benefits for workplace injuries allegedly sustained in 2005 and 2007, and his claims for injuries sustained in 1999 and 2000 were found to be barred by the statute of limitations. The AJ’s order was affirmed by the Mississippi Workers’ Compensation Commission (Commission) and the Circuit Court of Panola .County.

¶ 2. Flowers now appeals, claiming that he “sustained greater than 25% loss of wage-earning capacity” with regard to his lower-back injuries.' He also contends that he had not reached maximum medical improvement (MMI) for his 2007 foot injury and, therefore, is entitled to additional temporary total disability benefits for his foot injury until he reaches MMI. Flowers alternatively argues that if it is found that he reached MMI for his 2007 foot injury, then the Commission erred in not finding that he was entitled to permanent total disability benefits.

¶ 3. After reviewing the evidence and testimony, we affirm on the issue of loss of wage-earning capacity for the 1996 back injury. However, we reverse the Commission’s decision to terminate temporary total disability benefits for Flowers’s 2007 foot injury as of January 14, 2008, as the evidence does not support a finding that Flowers reached MMI as of that date, and we remand for further consideration of this issue in accordance with this opinion. Since permanent disability benefits cannot be awarded until a claimant has reached MMI, we also reverse the Commission’s finding that permanent disability benefits should not be awarded for the 2007 foot injury, as any such determination would be premature. In regard claims of the Appel-lees/Cross-Appellants on cross-appeal, we find no error.

SUMMARY OF FACTS

¶4. Flowers had been a front-end mechanic/machine operator for Crown Cork & Seal USA (Crown) since 1990. His job required him to stand and walk on a concrete floor for twelve-hour shifts and, occasionally, to climb stairs, catwalks, and ladders. In April 1996, Flowers suffered a back injury while attempting to stop a two-hundred-and-fifty-pound table from falling over. He was paid temporary disability benefits for this injury and was compensated for his medical treatment.

¶ 5. Flowers suffered an aggravating injury to his back in October 1999, while putting oil in a machine. He reported the injury and was treated by a physician. During his treatment, Flowers was diagnosed with degenerative disc disease. In October 2000, Flowers slipped at work and twisted his back. He immediately notified his supervisor of the injury and sought treatment. Then, in August 2005, Flowers claimed he injured his neck while lifting an object at work. No surgical procedure [1013]*1013was recommended for any of these injuries.

¶ 6. Flowers was diagnosed with prostate cancer in March 2007, for which he was successfully treated. During this time, he received short-term disability benefits. After returning to work, Flowers re-injured his back on June 28, 2007, while trying to break loose a pipe. He immediately reported the injury and sought treatment. It was determined that Flowers had returned to work too soon after prostate surgery, so he remained off work throughout the summer of 2007.

¶ 7. While off work, Flowers sought treatment in August 2007 from a podiatrist, Dr. Chris Varva, for shooting pain in his left foot. Flowers claimed that he had suffered from the foot pain for one to two years. Dr. Varva concluded that Flowers had either a ganglion cyst or spurring in the metatarsal joint. He recommended Flowers wear a walking boot and take a six-week leave of absence from work. Dr. Varva noted that surgery might be a option, but wanted Flowers to keep weight off his foot for six weeks before making that decision. Flowers sought a second opinion from Dr. Chad Webster, another podiatrist. Dr. Webster placed Flowers in a walking brace and wanted to fit him for a permanent prosthetic brace.

¶ 8. In October 2007, Flowers filed for short-term disability benefits for his foot injury. In the first application, it was noted that the injury was work-related, and the application was denied. Flowers filled out a second application; this time the application noted that the injury was not work-related, and benefits were awarded.

¶ 9. Dr. Varva re-examined Flowers on November 3, 2007, and reluctantly allowed him to return to work on December 3, 2007, against the doctor’s recommendation. Dr. Varva was concerned Flowers would risk injury if . he returned to work at that time, but Flowers insisted upon returning to work. Dr. Webster also examined Flowers in January 2008 and released him for work with no restrictions if he wore his brace.

¶ 10. However, before allowing Flowers to return to work, Crown obtained an opinion by a vocational rehabilitation specialist, Morris Selby, who opined that “[a] person who has foot problems that are aggravated by walking would have difficulty performing] this job.” Crown also had Flowers examined by Dr. Fred Sandifer, an orthopedic surgeon. In his report, Dr. Sandifer stated:

I responded to the questions of Crown Cork and Seal, this patient does have some orthopedic symptoms, which may be aggravated by standing 12 hours a day. The patient expresses his desire to return to work and I think the modification with a conditional trial of returning to work for six weeks with understanding if he is unable to do so will lead to his not being employed. The patient’s symptoms are fairly mild, but may be exacerbated by the prolonged standing requirement. He has been seen by rehabilitation services who actually evaluated the patient’s job and felt that the patient has foot problems that are aggravated by walking and would not be able to perform his job and I concur.

Although he never examined Flowers, Dr. David Spratt also gave Crown a medical opinion that Flowers’s medical impairment would make it unsafe for him to return to work on unrestricted duty. As a result, Crown prohibited Flowers from returning to work. Flowers sought employment in a few mechanic retail shops and with a retail grocer, but was unsuccessful.

PROCEDURAL HISTORY

¶ 11. Flowers filed six petitions to controvert concerning his various injuries be[1014]*1014tween 1996 and 2007: 1996 back injury (G-5239); 1999 back injury (H-6719); 2000 back injury (H-6720); 2005 back injury (J-3510); 2007 back injury (J — 8089); and 2007 foot injury (J-8738). The Appellees admitted that the 1996 back injury and the 2007 back injury were compensable injuries. However, the Appellees argued that the claims for the 1999 and 2000 injuries were barred by the statute of limitations and that the evidence did not support com-pensability for the 2005 back injury. They also denied any responsibility for Flowers’s 2007 foot injury under the doctrine of equitable estoppel, claiming that his foot injury was not work-related and that Flowers had received short-term disability benefits for the injury.

¶ 12. A hearing was held before the AJ on October 27, 2009. At the hearing, the parties stipulated to the following: (1) Flowers’s weekly wage in 1996 was $426.40; (2) Flowers suffered a compensa-ble back injury on April 4, 1996; and (3) Flowers suffered a compensable back injury on June 28, 2007. The AJ issued an order on April 7, 2010, finding:

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

Related

Bridgeman v. AT&T
S.D. Mississippi, 2023
Hazel Smith v. Howard Industries, Inc.
271 So. 3d 774 (Court of Appeals of Mississippi, 2018)
Flowers v. Crown Cork & Seal USA, Inc.
167 So. 3d 188 (Mississippi Supreme Court, 2014)
Levon Flowers v. Crown Cork & Seal USA, Inc.
Mississippi Supreme Court, 2011

Cite This Page — Counsel Stack

Bluebook (online)
168 So. 3d 1009, 2013 WL 3185999, 2013 Miss. App. LEXIS 388, Counsel Stack Legal Research, https://law.counselstack.com/opinion/flowers-v-crown-cork-seal-usa-inc-missctapp-2013.