Georgia-Pacific Corp. v. Gregory

589 So. 2d 1250, 1991 Miss. LEXIS 763, 1991 WL 230219
CourtMississippi Supreme Court
DecidedNovember 6, 1991
Docket89-CC-0869
StatusPublished
Cited by7 cases

This text of 589 So. 2d 1250 (Georgia-Pacific Corp. v. Gregory) 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
Georgia-Pacific Corp. v. Gregory, 589 So. 2d 1250, 1991 Miss. LEXIS 763, 1991 WL 230219 (Mich. 1991).

Opinion

589 So.2d 1250 (1991)

GEORGIA-PACIFIC CORPORATION
v.
David L. Gregory.

No. 89-CC-0869.

Supreme Court of Mississippi.

November 6, 1991.

*1252 Robert G. Germany, Crymes G. Pittman, Cothren & Pittman, Jackson, for appellant.

Michael H. Steele, Steele & Shaw, Kosciusko, for appellee.

Before HAWKINS, P.J., and PRATHER and ROBERTSON, JJ.

PRATHER, Justice, for the Court:

I.

Georgia-Pacific Corporation, a self-insured employer, has appealed a judgment of the Circuit Court of Winston County affirming an award of permanent partial disability to the body as a whole made by the Mississippi Workers' Compensation Commission (the Commission) to David Gregory for an inner ear dysfunction known as Meniere's Syndrome. Georgia-Pacific argues on appeal that:

(1) the finding of the Commission is not supported by substantial evidence;
(2) the Commission erred in finding that Gregory had a loss of wage earning capacity of $25.00 a week; and
(3) the Commission erred in not finding that any permanent disability sustained by Gregory was limited to the partial loss of use of a scheduled member in accordance with Miss. Code Ann. § 71-3-17(c)(17) (1972).

On review, this Court holds there was substantial credible evidence supporting the findings made by the Commission and, accordingly, we affirm.

II.

Meniere's Syndrome is a rare inner ear dysfunction created by an abnormal build-up of fluid in the canals of the inner ear. This condition usually results in a fluctuating hearing loss, a feeling of fullness, tinnitus (ringing in the ears), and episodic vertigo (dizziness). It affects the entire body and appears to be life-long in nature. The etiology or cause of Meniere's Syndrome is largely unknown.

David L. Gregory has been an employee with Georgia-Pacific since 1967. During his course of employment, he has operated a de-barking machine, a block saw, and a skinner saw. For the past eight to ten years, he had been operating a sanding machine which had a noise level, which was, in Gregory's opinion, "very high." In his own words, "it just makes a lot of racket."

In the late seventies Gregory became aware of a hearing loss. Subsequently, he noticed the onset of dizziness. On January 7, 1981, Gregory filed with the Mississippi Workers' Compensation Commission a "Motion To Controvert" in which he claimed that during the month of July, 1980, he became aware he had received a compensable injury while employed by Georgia-Pacific. In his motion, Gregory claimed he had been "exposed to job related noises resulting in hearing loss and vertigo."

Following a series of hearings, the administrative judge, on May 1, 1984, entered an order finding, inter alia, "[t]hat during the Month of July, 1980, the claimant sustained a compensable injury which arose out of and within the course and scope of his employment with Georgia-Pacific Corporation and which was the sole causative factor of a five percent (5%) permanent partial loss of hearing in each of his ears." The administrative judge ordered Georgia-Pacific to pay Gregory "... permanent partial disability benefits at the rate of $98.00 per week, commencing on July 31, 1980, and continuing for a period of seven and one-half (7 1/2) weeks thereafter." No review of this order was sought and it became final twenty days later. Georgia-Pacific paid benefits through December 3, 1984, and filed with the Commission a Form B-31 on February 19, 1985, thus triggering the one year limitations period of Miss. Code Ann. § 71-3-53.

Within one year, on December 3, 1985, Gregory filed a second "Petition To Controvert" together with a "Motion To Reopen Claim." Gregory, alleging changes in his condition (additional difficulties with hearing and increase in balance dysfunction) related to his original industrial injury, requested additional benefits.

*1253 On April 18, 1988, the same administrative judge entered a second order finding there had been a worsening of Gregory's condition with regard to his ears and dizziness since the date of the last hearing. The judge found that Gregory was suffering from Meniere's Syndrome, that "the noise at Georgia-Pacific Corporation was a contributing, precipitating or aggravating factor in the production of this disease", and that claimant had a permanent partial disability to the body as a whole. A judgment was entered requiring Georgia-Pacific to pay $25.00 per week to Gregory for a period of 450 weeks.

The administrative law judge found as a fact "[t]hat as a result of the claimant's employment the claimant received a permanent partial disability to his body as a whole which said disability was not ascertained or diagnosed until a time subsequent to February 19, 1985; ..."

The reopening of Gregory's claim for benefits and the award of benefits over and above those benefits awarded by the administrative judge in his order issued May 1, 1984, is based largely upon two findings of fact: (1) that Gregory has Meniere's Syndrome/Disorder/Disease and (2) that the disease is work-related. Georgia-Pacific contends these findings are not supported by substantial evidence.

III.

Our scope of review is as limited as it is familiar. We will reverse the decision of the Commission only if it is manifestly wrong and not supported by substantial evidence. Metal Trims Industries, Inc. v. Stovall, 562 So.2d 1293 (Miss. 1990); Robinson v. Packard Elec. Div. General Motors Corp., 523 So.2d 329 (Miss. 1988).

A. Diagnosis

Georgia-Pacific questions the diagnosis of Meniere's Syndrome made by Dr. Emmett, a Board Certified Otolaryngologist associated with the Shea Clinic in Memphis, Tennessee. One-fourth (1/4) to one-third (1/3) of the patients he sees every day at the Shea Clinic in Memphis are afflicted with this malady. Shea Clinic is a referral center for this inner ear dysfunction. Three (3) textbooks on the disorder have been edited from the Shea Clinic. Dr. Emmett treats over 100 medical doctors from around the country with this problem.

In Dr. Emmett's deposition, he concluded, "based on Mr. Gregory's history of episodic vertigo, tinnitus, possible fluctuant hearing loss on the right as well as the results of his inner ear function tests, I felt that he had Meniere's Disorder or Disease." Emmett's "final diagnosis," based on a reasonable medical probability, was Meniere's Disease. Dr. Emmett concluded from his diagnostic tests and a review of Gregory's medical history that the disorder was confined to the claimant's right ear. In any event, Gregory "had a fairly classic pattern for the one that we see with Meniere's Disease." This Court is convinced of the sufficient level of medical proof concerning the identity of Gregory's condition and has little difficulty in concluding that the fact-finding by the Commission that Gregory suffered from Meniere's Syndrome is supported by substantial evidence.

B. Causal Connection

The administrative law judge found as a fact that, as a result of the claimant's employment, Gregory received a permanent partial disability to the body as a whole resulting from Meniere's Syndrome. In reaching this conclusion the administrative judge relied upon "Dr.

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Bluebook (online)
589 So. 2d 1250, 1991 Miss. LEXIS 763, 1991 WL 230219, Counsel Stack Legal Research, https://law.counselstack.com/opinion/georgia-pacific-corp-v-gregory-miss-1991.