Martinez v. Swift Transp.

962 So. 2d 746, 2007 WL 2305555
CourtCourt of Appeals of Mississippi
DecidedAugust 14, 2007
Docket2006-WC-01442-COA
StatusPublished
Cited by5 cases

This text of 962 So. 2d 746 (Martinez v. Swift Transp.) 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
Martinez v. Swift Transp., 962 So. 2d 746, 2007 WL 2305555 (Mich. Ct. App. 2007).

Opinion

962 So.2d 746 (2007)

Calixto MARTINEZ, Appellant
v.
SWIFT TRANSPORTATION and Insurance Company of the State of Pennsylvania, Appellees.

No. 2006-WC-01442-COA.

Court of Appeals of Mississippi.

August 14, 2007.

*747 John Hunter Stevens, attorney for appellant.

L. Pepper Cossar, Ridgeland, attorney for appellees.

Before KING, C.J., GRIFFIS and BARNES, JJ.

KING, C.J., for the Court.

¶ 1. Calixto Martinez appeals the trial court's decision upholding the order of the Mississippi Workers' Compensation Commission. In that order, the Commission reversed the decision of the administrative law judge (ALJ), in which the administrative law judge found that Martinez was entitled to temporary total disability benefits at a rate of $316.46 per week for the period beginning April 12, 2001 through September 19, 2002, and permanent partial disability benefits for an 8% total body impairment rating at a rate of $252.51 per week for a period of 450 weeks, beginning September 19, 2002. The Commission upheld the award of temporary total disability benefits. The Commission also held that Martinez was not entitled to the permanent partial disability benefits as awarded by the ALJ; however, Martinez was entitled to receive permanent partial disability benefits for a 30% loss of use to his right arm at a rate of $316.46 per week for a period of 60 weeks. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Calixto Martinez is a fifty-five-year-old Hispanic male who emigrated to the United States from Mexico in 1976. He received his education in Mexico, where he completed ten years of general education (the Mexican equivalent of a high school *748 diploma) and received three years of training in the electrical field and three years of training as a mechanic. His educational credentials are not recognized in the United States, and his only vocational training in the United States was a three-week truck-driving class. Since arriving in the United States, Martinez has worked as a farm laborer, auto mechanic, forklift operator, machine operator, light electrician, and truck driver.

¶ 3. In April 2001, Martinez was employed with Swift Transportation as an over-the-road truck driver. On April 12, 2001, while Martinez was driving through Knoxville, Tennessee, a passenger car suddenly swerved in front of Martinez. Martinez, who was obeying the speed limit and all other traffic laws, swerved to avoid the car. As a result, he crashed into the median. His 18-wheeler jack-knifed and caught fire, resulting in a total loss of the tractor-trailer, which was valued at approximately $150,000. Martinez escaped with lacerations to his face and pain in his right shoulder and torso. He received emergency treatment in Knoxville before returning home. The emergency room physicians advised him to seek follow-up care.

¶ 4. Martinez sought treatment with Dr. Jose Ferrer, an orthopedic surgeon, on April 27, 2001, complaining of significant pain in his abdomen and torso. Following a physical examination and x-rays, Dr. Ferrer concluded that Martinez was suffering from a left rib fracture and a right shoulder contusion and sprain. Dr. Ferrer restricted Martinez's activities for three days, releasing him back to work on April 30, 2001. Martinez did not see Dr. Ferrer again for treatment until September 3, 2002.

¶ 5. The medical records submitted for review by the administrative law judge indicate that Martinez began seeing another orthopedic surgeon, Dr. H.F. Savoie, regarding his shoulder injury at some point before September 11, 2001. Dr. Savoie's September 11, 2001 report indicates that Martinez was undergoing physical therapy and was restricted from working until at least September 24, 2001. On October 25, 2001, Dr. Savoie declared that Martinez was at MMI, although he was concerned that Martinez might need further treatment at some point in the future. Dr. Savoie rated Martinez as having an 8% impairment to his arm, which translated to a 5% impairment to the entire body.

¶ 6. Martinez saw Dr. Savoie again in January 2002 with complaints of shoulder pain. An MRI scan revealed an injury requiring surgery on the right shoulder. Dr. Savoie operated in February 2002, repairing Martinez's rotator cuff. By June 24, 2002, Dr. Savoie stated that Martinez's shoulder "objectively looks quite good and his x-rays look quite good," but Martinez was still complaining of shoulder pain, popping, grinding, and swelling. At this time, Dr. Savoie still had not released Martinez to return to work. Dr. Savoie ordered an arthrogram, which came back negative. Dr. Savoie released Martinez to return to work on July 25, 2002. On September 19, 2002, Dr. Savoie issued a final impairment rating. Dr. Savoie determined that Martinez had "a total permanent partial impairment of 14% to the right upper extremity based on the problems in his shoulder. A 14% impairment to the upper extremity is an 8% impairment to the body as a whole. He can be safely released at MMI with a 14% impairment to the arm and 8% to the body." Dr. Savoie further found that Martinez had no permanent restrictions or limitations related to his shoulder injury, but Dr. Savoie acknowledged that Martinez was seeing a second physician for injuries to his ribs and chest *749 and that Martinez might have some restrictions associated with those injuries.

¶ 7. During the final stages of his treatment with Dr. Savoie, Martinez returned to see Dr. Ferrer on September 3, 2002. This time, Martinez was complaining of "severe left lumbar pain and pain in the sternum." Dr. Ferrer conducted some tests and gave Martinez a steroid shot for immediate pain relief. Two weeks later, Martinez returned for a follow-up visit. At that time, Dr. Ferrer diagnosed Martinez with "severe posttraumatic arthritis of the sternal manubrial joint." Dr. Ferrer concluded that Martinez had an 8% total body impairment rating based on his shoulder injury, the arthritis, and some remaining issues stemming from Martinez's rib fracture. Dr. Ferrer released Martinez to return to work with the following restrictions: "no heavy lifting more than 15 pounds and no overhead work."

¶ 8. Martinez filed his petition to controvert on November 7, 2002. Swift answered the petition and subsequently named Dr. Rahul Vohra as a medical expert and Mr. Bruce Brawner as a vocational expert. Swift contested the existence and extent of Martinez's temporary total and permanent partial disability as a result of the work-related accident.

¶ 9. Dr. Vohra examined Martinez on December 8, 2003. After a physical examination and a review of Martinez's medical records, Dr. Vohra requested a functional capacity exam. Dr. Vohra's initial impression was that Martinez exhibited signs of histrionics and pain amplification. The results of the functional capacity exam (FCE) were inconclusive, as the therapist conducting the examination found that the results indicated "what the patient was willing to do and not his physiological maximum." She concluded that it was "difficult to determine true physical abilities at this time." Dr. Vohra reviewed the results of the FCE and concluded that Martinez was able to "work at a full-duty level other than overhead lifting," which Dr. Vohra recommended be limited "to 50 lbs on an occasional basis." Ultimately, Dr. Vohra adopted Dr. Savoie's 14% impairment rating for Martinez's right arm.

¶ 10. On March 15, 2005, following a hearing on February 7, 2005, the ALJ entered an order. In that opinion, the ALJ adopted the findings of Drs.

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

Related

Logan v. Klaussner Furniture Corp.
238 So. 3d 1166 (Court of Appeals of Mississippi, 2016)
Choctaw Resort Development Enterprise v. Applequist
161 So. 3d 1134 (Court of Appeals of Mississippi, 2015)
Kittrell v. Hancock
162 So. 3d 857 (Court of Appeals of Mississippi, 2014)
Mosby v. Farm Fresh Catfish Co.
19 So. 3d 789 (Court of Appeals of Mississippi, 2009)
Goolsby Trucking Co., Inc. v. Alexander
982 So. 2d 1013 (Court of Appeals of Mississippi, 2008)

Cite This Page — Counsel Stack

Bluebook (online)
962 So. 2d 746, 2007 WL 2305555, Counsel Stack Legal Research, https://law.counselstack.com/opinion/martinez-v-swift-transp-missctapp-2007.