Goodwood Lumber Co. v. Entrikin

753 So. 2d 470, 1999 Miss. App. LEXIS 664, 1999 WL 1034834
CourtCourt of Appeals of Mississippi
DecidedNovember 16, 1999
DocketNo. 1999-WC-00206-COA
StatusPublished

This text of 753 So. 2d 470 (Goodwood Lumber Co. v. Entrikin) 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
Goodwood Lumber Co. v. Entrikin, 753 So. 2d 470, 1999 Miss. App. LEXIS 664, 1999 WL 1034834 (Mich. Ct. App. 1999).

Opinion

McMILLIN, C.J.,

for the Court:

¶ 1. This case originated as a proceeding before the Mississippi Workers’ Compensation Commission. William Entrikin sought compensation for disability alleged to have arisen out of a work-related injury occurring during his employment at Good-wood Lumber Company, Inc. The Commission awarded certain benefits to Entrikin. His employer and its workers’ compensation insurance carrier appealed the decision to the Circuit Court of DeSoto County. That court affirmed the Commission’s decision and this appeal followed. Finding no basis to disturb the Commission’s decision regarding compensability, we affirm.

I.

Facts

¶2. Entrikin was employed by Good-wood to work as a delivery truck driver. On April 26, 1994, while delivering an order that included a number of eighty-pound bags of concrete, Entrikin reported experiencing a sharp pain in his shoulder. Entrikin’s doctor attempted to treat his condition conservatively while Entrikin worked on “light duty” status, primarily behind the customer counter at his employer’s business.

¶3. Ultimately, after his pain failed to subside, a more intensive investigation revealed a ruptured cervical disk that was surgically removed and replaced with a bone graft obtained from his pelvic bone. Entrikin recovered from this surgery and was released to return to his former employment. The treating surgeon assigned Entrikin a ten percent disability to the body as a whole arising out of permanent physical impairment related to the surgery, but imposed no recommended limitations on his physical activities.

¶ 4. Entrikin resumed his work of delivering building supplies but testified that he was unable to properly perform the lifting duties associated with that position. He claimed that matters came to a head when he had to deliver and unload a number of doors on a Saturday morning without assistance. He said he strained his arm because of his inability to properly perform the unloading work. He left the job that day and did not return.

¶ 5. Entrikin performed odd jobs for his father for a few months in exchange for lodging and the use of a. vehicle, then obtained work for Federal Express at a distribution center where his duties consisted of sorting and re-routing packages and parcels. After four months of this [472]*472work, Entrikin testified he continued to experience severe pain that continued to grow worse. As a result, he returned to his treating physician, who discovered no physical evidence of additional injury. The doctor was of the opinion that Entri-kin’s heightened pain was a manifestation of the disability arising out of his earlier injury and surgery. Based on Entrikin’s reports of pain arising out of his work at Federal Express, the physician for the first time suggested certain weight restrictions on Entrikin’s lifting. However, the physician reiterated that these restrictions were attributable to the disabled condition that existed before Entrikin began his employment at Federal Express.

¶ 6. After leaving Federal Express, En-trikin became self-employed, engaging in various home repair or home improvement projects for customers. He reported doing such jobs as house-painting, building a deck, and other similar projects that utilized his previous experience in home construction. He reported that he had to hire assistants to do any heavy lifting associated with these projects and said that the flexibility of being self-employed was helpful in avoiding over-exertion and the resulting pain he experienced while working in regular employment. Income figures from his self-employment activities indicated a substantially decreased income from his salary at Goodwood Lumber.

¶ 7. Based on this evidence, the Commission concluded that Entrikin suffered a disabling injury while employed at Good-wood Lumber that permanently impaired his ability to earn wages through employment. Specifically, the Commission concluded that Entrikin suffered a fifty percent loss of wage-earning ability due to the permanent complications of his spinal injury.

¶ 8. Dissatisfied with the conclusions of the Commission, Goodwood Lumber and its carrier appealed to the DeSoto County Circuit Court. That court affirmed the Commission, which prompted this appeal in which Goodwood Lumber and the carrier present three issues for consideration.

II.

The First Issue: Is the Correct Employer Before the Court?

¶ 9. Goodwood Lumber argues that the Commission erred as a matter of law when it assessed it with the obligation to compensate Entrikin for his disabling injuries. According to Goodwood, the proof is overwhelming that Entrikin’s disability actually arose out of a subsequent injury, or aggravation of his prior condition, that occurred during his employment at Federal Express. Goodwood Lumber, therefore, urges the application of a rule that appears in Vardaman S. Dunn’s treatise on Mississippi workers’ compensation law and in the respected treatment of compensation law on a national basis by Arthur S. Larson. The rule announced by Dunn is as follows:

[W]hen the original injury is aggravated or lighted up by the activity associated with the later employment to produce disability, the general rule, in the absence of statute, is that the last employer or carrier is exclusively liable.

Vardaman S. Dunn, Mississippi WoRkmen’s Compensation § 188 (3d ed.1990). Essentially the same rule is announced in Larson’s work at § 95.20. 9 Arthur Larson et al., Larson’s Workers’ Compensation Law § 95.20 (Matthew Bender ed.1998). Though the Mississippi Supreme Court has never unequivocally adopted the rule in Mississippi, this Court has recently applied it after concluding that it was “consistent with existing interpretations of Mississippi law.” United Methodist Senior Services v. Ice, 749 So.2d 1227 (¶ 13)(Miss.Ct.App.1999).

¶ 10. However, conceding the applicability of the rule in Mississippi does not, as Entrikin urges, compel a finding that the Commission decided the case on an incorrect legal principle. Before the rule can be invoked, there must be substantial evi[473]*473dence establishing that a subsequent injury or subsequent aggravation of a previously-existing injury has occurred during the course of the claimant’s subsequent work at a new employer. It is on this point that Entrikin’s argument fails.

¶ 11. We reach this conclusion despite conceding that there was evidence from the claimant that he reinjured himself while lifting parcel containers at Federal Express. This testimony, standing alone, might seem to invoke the “intervening cause” rule and implicate Federal Express as the proper employer to be subjected to a claim for compensation. However, the Commission is charged with determining where the preponderance of the evidence regarding compensability lies and must make that decision from the entire body of credible evidence presented to it. Hollingsworth v. IC Isaacs & Co., 725 So.2d 251 (¶ 11)(Miss.Ct.App.1998). Despite Entrikin’s statements, there was substantial medical evidence from the only treating physician to give evidence at the hearing that Entrikin’s difficulties experienced while working at Federal Express were merely a manifestation of the problems associated with his earlier injury and the permanent impairment associated with his incomplete recovery from that injury.

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Related

Pontotoc Wire Products Co. v. Ferguson
384 So. 2d 601 (Mississippi Supreme Court, 1980)
Hollingsworth v. IC Isaacs and Co.
725 So. 2d 251 (Court of Appeals of Mississippi, 1998)
United Methodist Senior Services v. Ice
749 So. 2d 1227 (Court of Appeals of Mississippi, 1999)

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Bluebook (online)
753 So. 2d 470, 1999 Miss. App. LEXIS 664, 1999 WL 1034834, Counsel Stack Legal Research, https://law.counselstack.com/opinion/goodwood-lumber-co-v-entrikin-missctapp-1999.