Imperial Palace Casino v. Wilson

960 So. 2d 549, 2006 WL 3593447
CourtCourt of Appeals of Mississippi
DecidedDecember 12, 2006
Docket2006-WC-00056-COA
StatusPublished
Cited by3 cases

This text of 960 So. 2d 549 (Imperial Palace Casino v. Wilson) 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
Imperial Palace Casino v. Wilson, 960 So. 2d 549, 2006 WL 3593447 (Mich. Ct. App. 2006).

Opinion

960 So.2d 549 (2006)

IMPERIAL PALACE CASINO and Great American Insurance Company, Appellants
v.
Johnie E. WILSON, Jr., Appellee.

No. 2006-WC-00056-COA.

Court of Appeals of Mississippi.

December 12, 2006.
Rehearing Denied May 1, 2007.

*550 Meri Elizabeth Barr, John S. Gonzalez, Gulfport, attorneys for appellants.

James Kenneth Wetzel, Gulfport, attorney for appellee.

Before LEE, P.J., IRVING and ISHEE, JJ.

IRVING, J., for the Court.

¶ 1. This appeal arises out of a worker's compensation claim filed against Imperial Palace Casino by Johnie Wilson, Jr. On February 11, 2004, an administrative judge determined that Wilson's claim was compensable. Thereafter, Imperial Palace and Wilson both appealed that ruling to the Mississippi Workers' Compensation Commission (the Commission). The Commission found that Wilson's claim was compensable, and, as urged by Wilson, ordered Imperial Palace to pay full disability benefits to Wilson, rather than the partial benefits ordered by the administrative judge. Imperial Palace then appealed the Commission's decision to the Harrison County Circuit Court, which affirmed. Aggrieved, Imperial Palace now appeals to this Court and asserts four allegations of error: first, that there was no causal relationship between Wilson's injury and his work; second, that a letter from Wilson's attorney *551 was insufficient to constitute a return to work; third, that Wilson's job search was not reasonable; and fourth, that Wilson's refusal to cooperate with Imperial Palace's vocational expert should have been taken into account by the Commission.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. Wilson was hired by Imperial Palace in February of 2001. At that time, he suffered from chronic back pain, possibly as a result of an accident with a former employer. As part of his work for Imperial Palace, Wilson had to carry bags of coins weighing twenty to thirty pounds. Wilson testified that he was told by management at Imperial Palace to carry these bags on his shoulder. Wilson indicated that, on average, he might have to carry thirty of these bags each night he worked.

¶ 4. Wilson worked a full shift on October 25 and on October 26 of 2002. On October 27, Wilson woke up with a stiff neck. Despite his discomfort, he returned to work and worked throughout the week, although he testified that his pain intensified as the days passed. On October 31, 2002, Wilson saw Dr. Pacita Coss, a general physician. Dr. Coss noted that Wilson appeared to be in severe pain during their meeting. Wilson worked on November 1, but his pain was so severe on November 2 that he was unable to go to work. On November 4, Dr. Coss sent Wilson to a hospital emergency room due to the severity of his pain.

¶ 5. On November 18, Wilson met with Dr. Michael Lowry, a neurosurgeon. Wilson's intake form from the visit indicates that he was "probably" injured at work as he lifted bags of coins. On November 26, Wilson underwent surgery, which apparently significantly reduced his pain, although it did not ease the pain entirely. On May 7, 2003, Dr. Lowry indicated that Wilson could return to work on May 19, 2003, with some restrictions as to his activity.[1] In a letter dated May 16, 2003, Wilson's attorney asked Dr. Lowry to review an attached copy of Wilson's job duties and indicate whether Wilson could return to those duties. In mid-August, Dr. Lowry sent a response to Wilson's attorney, detailing which job duties Wilson could and could not perform. In that letter, Dr. Lowry indicated that Wilson could return to work, but he would not be able to perform all of the activities that he had performed prior to the injury, especially carrying around bags of coins on his shoulder.

¶ 6. Despite Dr. Lowry's opinion, Wilson never continued his work at Imperial Palace. Wilson testified that he did not return to his job because he thought that, because of his restrictions, Imperial Palace would not want him to return to work. On September 4, 2003, Wilson's attorney sent a letter to Imperial Palace, requesting that Imperial Palace contact Wilson if it had a job he could perform. Imperial Palace never responded to the letter. Wilson testified that he enjoyed his job at Imperial Palace, and would have continued working if he had not been injured.

¶ 7. According to Wilson, he attempted to locate employment with numerous companies in September of 2003. Wilson also made several follow-up attempts with some of the companies. Tommy Sanders, a vocational rehabilitation expert, testified on behalf of Imperial Palace. Sanders claimed that there were several jobs he had located for which Wilson was qualified. Sanders testified that he believed that Wilson's efforts to secure employment were *552 "sporadic." Wilson was asked to work with Sanders to find employment, but he refused because of how close to the initial hearing the request was made.

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

ANALYSIS AND DISCUSSION OF THE ISSUES

Standard of Review

¶ 9. When reviewing the Commission's determination, the Commission is "the ultimate judge of the credibility of witnesses." Barber Seafood, Inc. v. Smith, 911 So.2d 454, 461(¶ 27) (Miss.2005) (quoting Hardaway Co. v. Bradley, 887 So.2d 793, 795(¶ 11) (Miss.2004)). As a result, we "must defer to decisions by the Commission on issues of fact and credibility unless the Commission commits prejudicial error." Id. (quoting Hardaway, 887 So.2d at 795(¶ 11)). We "must affirm . . . where substantial evidence supports the Commission's order." Id. (quoting Hardaway, 887 So.2d at 795(¶ 11)). Therefore, we will reverse only if we find that the Commission's order was "clearly erroneous and contrary to the overwhelming weight of the evidence." Id. (quoting Hardaway, 887 So.2d at 795(¶ 11)).

¶ 10. After a finding of permanent partial disability, a "claimant bears the burden [in proving total disability] of making a prima facie showing that he has sought . . . work . . . pursuant to Mississippi Code Annotated section 71-3-3(i)" (Rev.2000). McNeese v. Coopper Tire & Rubber Co., 627 So.2d 321, 325 (Miss.1993) (quoting Jordan v. Hercules, Inc. 600 So.2d 179, 183 (Miss.1992)). However, when a claimant, after reaching maximum medical recovery, "reports back to his employer for work, and the employer refuses to reinstate or rehire him, then it is prima facie that the claimant has met his burden of showing total disability. The burden then shifts to the employer to prove a partial disability or that the employee has suffered no loss of wage earning capacity." Id. (quoting Jordan, 600 So.2d at 183).

1. Causal Relationship

¶ 11. In its first allegation of error, Imperial Palace claims that the court erred in affirming the Commission's determination that there was a causal relationship between Wilson's work and his injury. Imperial Palace bases its allegation on evidence that Wilson did not tell Dr. Lowry that his injury had been caused at work. Imperial Palace claims that Wilson "merely mentioned in his in-take form that he probably was injured at work and that he had been carrying coins the day before but it did not bother him until the next day." Imperial Palace also contends that Dr. Lowry testified in his deposition that "a disc herniation could be caused by sleeping the wrong way . . . or equally by many other factors as well." Imperial Palace acknowledges Dr.

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