Mueller Copper Tube Co., Inc. v. Upton

930 So. 2d 428, 2005 WL 2851650
CourtCourt of Appeals of Mississippi
DecidedNovember 1, 2005
Docket2004-WC-01493-COA
StatusPublished
Cited by8 cases

This text of 930 So. 2d 428 (Mueller Copper Tube Co., Inc. v. Upton) 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
Mueller Copper Tube Co., Inc. v. Upton, 930 So. 2d 428, 2005 WL 2851650 (Mich. Ct. App. 2005).

Opinion

930 So.2d 428 (2005)

MUELLER COPPER TUBE COMPANY, INC. and The Travelers Insurance Company, Appellants
v.
Stanley W. UPTON, Appellee.

No. 2004-WC-01493-COA.

Court of Appeals of Mississippi.

November 1, 2005.
Rehearing Denied February 21, 2006.
Certiorari Denied June 1, 2006.

*431 David B. McLaurin, Tupelo, James Gregory Brown, attorneys for appellants.

Duncan L. Lott, Booneville, attorney for appellee.

EN BANC.

CHANDLER, J., for the Court.

¶ 1. Stanley Upton was an employee for Mueller Copper Tube Company. After he sustained a work-related ankle injury and underwent surgery, he returned to Mueller and attempted to work in job capacities that were less physically demanding. However, each of the four jobs he performed after the surgery caused him to have back problems. Upton's treating physician took him off work and opined that Upton had reached maximum medical improvement. Upton applied for other jobs but was unable to find employment.

¶ 2. Mueller Copper Tube Company admitted that the injury to the ankle was compensable, but it denied that Upton sustained any work-related back injuries and denied that Upton was permanently or totally disabled. The administrative law judge held a hearing and found that Upton was permanently and totally disabled. The Workers' Compensation Commission and Itawamba County Circuit Court affirmed. Mueller appeals, raising the following issues:

WHETHER UPTON IS ABLE TO RELY ON A PRESUMPTION OF PERMANENT DISABILITY WHEN UPTON FAILED TO REPORT TO WORK
WHETHER THE COMMISSION ERRED IN AWARDING BENEFITS BECAUSE UPTON FAILED TO MAKE A REASONABLE OR DILIGENT JOB SEARCH ATTEMPT
WHETHER THE WORKERS' COMPENSATION ERRED IN GIVING THE OPINIONS OF DR. CHRISTOPHER MORE WEIGHT THAN THOSE OF DR. TYRER AND DR. MITIAS
WHETHER THE WORKERS' COMPENSATION COMMISSION'S DETERMINATION OF PERMANENT AND TOTAL DISABILITY TO UPTON'S BACK WAS BASED UPON SUBSTANTIAL EVIDENCE

¶ 3. Finding no error, we affirm.

FACTS

¶ 4. Stanley Upton attended school through the ninth grade and had worked for Mueller Copper Tube Company, Incorporated ("Mueller"), since 1987. Prior to working at Mueller, Upton worked in several manual labor, unskilled jobs. These jobs included that of a lumber stacker, press operator, painter, carpenter, and plumber. Upton's responsibilities at Mueller were to pick up coils of pipe weighing approximately eighty-seven pounds, place the coils in a box, and seal the box. The performance of those duties required Upton to bend, stoop, pivot on his feet, and walk. On January 29, 1997, Upton sustained an injury to his ankle during the course and scope of his employment. Upton's surgery and much of his follow-up treatment was performed by Dr. Robert Christopher, an orthopedic surgeon. After Dr. Christopher told Upton that he had *432 reached maximum medical improvement, Upton filed for workers' compensation benefits. Mueller admitted that Upton had a compensable workers' compensation claim, but it denied that Upton was permanently disabled. Upton filed his motion to controvert on August 7, 1998.

¶ 5. When Upton returned to work at Mueller after his surgery, he attempted to work at other jobs within the company. Upton testified that he had problems with his ankle and back while performing all of these jobs. His first job with Mueller after his surgery involved scrapping paint and sorting parts. His second job involved packing coils. This job lasted for about a month. Upton's third job involved tying coils, a job that required bending, twisting, and throwing thirty-pound coils over his head. This job lasted for approximately one week. Upton's final job with Mueller was sweeping floors, which lasted for approximately three weeks.

¶ 6. After leaving his job with Mueller, Upton was unable to obtain other employment. He sought light-duty work with three prospective employers in Itawamba County, but no such positions were available. The three prospective employers were B & B Metal Manufactures, which makes bushhogs; TCA, a packing company; and Mid-American Hardwood Company. Upton also contacted Key Staff Source, a temp agency, which was unable to find a job for Upton due to his limitations and restrictions.

¶ 7. Dr. Christopher's records showed that Upton visited his office thirty-four times between February 7, 1997 and March 1, 1999. Dr. Christopher examined Upton on February 7, 1997, and diagnosed his condition as a ruptured Achilles tendon in his left ankle. On February 11, 1997, Dr. Christopher performed the surgery, finding that the tendon was completely torn off the bone.

¶ 8. On June 6, 1997, Dr. Christopher allowed Upton to begin working at light duty for four hours a day. On June 13, 1997, Dr. Christopher took him off work because Upton's job duties made his ankle hurt. On July 7, 1997, Dr. Christopher allowed Upton to resume working. Dr. Christopher's notes revealed that Upton's Achilles tendon was aggravated whenever Upton increased his work activity.

¶ 9. On June 15, 1998, Dr. Christopher concluded that Upton had reached maximum medical improvement and was assigned an impairment rating of twenty percent to the foot, which converted to an eight percent rating for the entire body. Dr. Christopher described the ratings as "very conservative" and concluded that it was "more than likely [that] in the future the actual numbers will increase as his post traumatic arthritis increases."

¶ 10. On September 30, 1998, Upton complained to Dr. Christopher about his back, which Dr. Christopher said was related to Upton's antalgic gait as a result of his ruptured achilles tendon. He also believed that the pushing and pulling involved in Upton's job activity aggravated Upton's back and caused muscle spasms. Since that time, ninety-five percent of Dr. Christopher's treatment of Upton was for his back.

¶ 11. On January 18, 1999, Dr. Christopher told Upton that he could work at Mueller as a chopper because that job caused the least aggravation to his back. He recommended that Upton take a ten-minute break every hour to reduce the pressure to his ankle and back.

¶ 12. On May 5, 1999, Dr. Christopher referred Upton for physical therapy for his back and took him off work. Since that time, Dr. Christopher never released Upton to return to work. Two months later an MRI to Upton's back revealed a very *433 large bulging disc with neural foramina encroachment and spinal stenosis. Dr. Christopher referred Upton to Dr. Walter Eckman, a neurosurgeon. Dr. Eckman did not recommend surgery for Upton's back but did recommend physical therapy.

¶ 13. On July 2, 2001, Dr. Christopher gave Upton a maximum medical improvement. Upton was assigned a twenty percent impairment rating to the lower left extremity, which translated to an eight percent rating to the body as a whole. Upton was not allowed to work because of muscle spasms.

¶ 14. Dr. Roy Tyrer saw Upton on July 19, 2001, for the purpose of conducting a Commission-appointed independent medical examination. Dr. Tyrer testified through his deposition taken on October 16, 2001, that Upton's gait or walk was essentially normal. Dr. Tyrer stated that Dr. Christopher's opinion that Upton's back pain originated from the ankle injury involved speculation and that he would not have rationalized it to the degree to which Dr. Christopher had. Dr. Tyrer also testified that he would not place much restriction on Upton's physical activity because there was no premise upon which to base it.

¶ 15. Dr.

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Bluebook (online)
930 So. 2d 428, 2005 WL 2851650, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mueller-copper-tube-co-inc-v-upton-missctapp-2005.