Johnson v. Ferguson

435 So. 2d 1191
CourtMississippi Supreme Court
DecidedAugust 10, 1983
Docket54319
StatusPublished
Cited by96 cases

This text of 435 So. 2d 1191 (Johnson v. Ferguson) 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
Johnson v. Ferguson, 435 So. 2d 1191 (Mich. 1983).

Opinion

435 So.2d 1191 (1983)

Larry D. JOHNSON
v.
H.K. FERGUSON & Aetna Casualty & Surety Company.

No. 54319.

Supreme Court of Mississippi.

August 10, 1983.

*1192 Lester C. Franklin, Pascagoula, for appellant.

J. Elmo Lang, Pascagoula, for appellees.

Before WALKER, P.J., and DAN M. LEE and ROBERTSON, JJ.

DAN M. LEE, Justice, for the Court:

This is an appeal from the Circuit Court of Jackson County wherein a decision of the Workmen's Compensation Commission denying benefits to appellant was affirmed. There being no substantial credible evidence to support the order of the administrative law judge and Workmen's Compensation Commission, we reverse.

On October 10, 1975, appellant Larry Johnson was employed as a laborer by appellee, H.K. Ferguson Company. At about 10:30 that morning, Johnson was moving some large wooden frames used as cement forms. They were approximately three feet wide, seven feet long, six inches deep, weighed about forty pounds, were rectangular in shape and had a handle or hand grip located in the center. Because of their size, shape and weight, the easiest manner in which to carry a form was to grab the handle and lift it onto one's back. Johnson was carrying a form in this manner when he stepped into a trench or uneven spot, causing him to lose his balance and fall to his knees, wrenching his back. Johnson immediately went to the company first aid station and from there was taken to the company physician, Dr. Thompson. Johnson was given a prescription for pain and he returned to work light duty the remainder of the day. The next morning he was unable to get out of bed because of back pain.

On October 14, 1975, four days after the accident, Johnson informed Ferguson that he desired to see a specialist and requested that they secure one for him. The following morning when he arrived at work Johnson was taken to an orthopedic surgeon, Dr. Daniel Enger. Dr. Enger admitted Johnson to the hospital where he remained for ten days. Dr. Enger diagnosed Johnson as having acute lumbosacral strain. After his discharge Johnson continued to complain of *1193 severe backache and was readmitted to the hospital by Dr. Enger on November 3, 1975, where he again remained for ten days. On November 12, Dr. Enger discharged him with a diagnosis of an acute psychiatric disturbance and a lumbosacral strain. Dr. Enger released Johnson for light duty on December 8, 1975, however, Johnson continued to complain of back pain and did not return to work.

Johnson filed a motion to controvert on February 13, 1976. After Johnson failed to appear at a scheduled pretrial conference on April 29, 1976, an order was entered on May 4 dismissing the cause without prejudice. Johnson then secured new counsel and on October 18, 1976, filed a motion for employer to provide additional medical attention and a motion to require employer to pay medical expenses incurred.

On February 10, 1977, Johnson's cause came on for hearing. During this hearing the administrative law judge admitted the deposition testimony of Dr. Lohnes, a chiropractor who had treated Johnson. Dr. Lohnes testified that Johnson had an unusually straight spine and that the present painful condition was related to the accident of October 10, 1975. On May 9, 1977, the cause was reopened for the purpose of admitting the deposition of Dr. Enger. This was Dr. Enger's first deposition in this cause and was dated February 22, 1977.

In his deposition, Dr. Enger testified that he took x-rays of Johnson's back and found a small narrowing in the L-5 disc space but that it had obviously occurred long before the accident. He further testified that the areas of pain complained of did not follow any particular back condition with which he was aware, including the disc rupture or fracture. Dr. Enger did state that to completely rule out either of these ailments would require performing a myelogram but that he did not choose to do so. To quote Dr. Enger:

I purposely avoided doing a myelogram due to the fact that I thought the patient had an underlying psychiatric condition. He was fitted with a lumbosacral back support and told I would see him as an out-patient in the office. I felt that if he persisted in having difficulty he may eventually require a myelogram for complete clearance, but I would be rather reluctant to recommend his at present... I feel quite strongly as an orthopedic surgeon that if we went ahead and further investigated Mr. Johnson's complaints, particularly going so far as a myelogram, we would only magnify his condition, and it was for this reason that I simply did not even consider sticking a needle into his back, except only as a last resort, and this never did develop.

Therefore, although he admitted that it was the sole diagnostic tool with which to achieve certainty in determining the existence or nonexistence of a disc rupture, he was adamant in his refusal to perform a myelogram.

Prior to an order on the merits, Johnson filed a motion to reopen, agreeing to take a myelogram on the advice of a Dr. Reuben Morris and moving that the carrier, appellee, be ordered to pay for it. The administrative law judge issued his findings of fact on January 3, 1978, along with an order denying the motion to reopen. The law judge's findings of fact were that, 1) Johnson had sustained a compensable injury on October 10, 1975; 2) as a result of the injury Johnson was temporarily totally disabled from October 11, 1975, through December 8, 1975; 3) Johnson suffered no permanent partial disability or loss in wage earning capacity, and 4) any medical treatment after December 17, 1975, was unrelated to the accident. The judge then ordered that Ferguson and the carrier pay Johnson $63 per week from October 11, 1975 through December 8, 1975, with credit for benefits already paid. The judge also ordered Ferguson and the carrier to pay all medical expenses related to the injury through December 17, 1975.

Johnson then filed a petition for review by full commission and subsequently a motion to open up hearing of full commission for receipt of new evidence. The full commission heard the case in review on August 14, 1978, and issued an interlocutory order *1194 dated March 30, 1979, which provided that they affirmed the law judge's findings of fact regarding the occurrence of the injury and dates of temporary total disability. However, the commission remanded the case to allow Johnson to submit further evidence regarding additional medical treatment or diagnosis, additional temporary total disability, a date of maximum recovery, the existence of permanent partial disability, preexisting condition, and loss of wage earning capacity.

On remand, the law judge admitted the deposition testimony of Dr. Pickel, a psychologist who diagnosed Johnson as having a psychoneurosis conversion reaction with depression. Dr. Pickel thought Johnson's condition resulted from personal problems and could not say with reasonable medical certainty that his symptoms were caused by the accident. He did however state that Johnson was not able to work. The law judge ruled the Workmen's Compensation Act requires disability to be proven by medical findings and that a psychologist was not qualified to give testimony regarding a medical disability. He therefore denied the request for additional disability.

Johnson then filed another petition for review by the full commission dated April 17, 1980, and a motion to transfer to administrative judge for review on newly discovered evidence dated November 6, 1980.

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Bluebook (online)
435 So. 2d 1191, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johnson-v-ferguson-miss-1983.