Nosser v. First American Credit Corp.

814 So. 2d 178, 2002 Miss. App. LEXIS 193, 2002 WL 555119
CourtCourt of Appeals of Mississippi
DecidedApril 16, 2002
DocketNo. 2001-WC-00509-COA
StatusPublished
Cited by1 cases

This text of 814 So. 2d 178 (Nosser v. First American Credit Corp.) 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
Nosser v. First American Credit Corp., 814 So. 2d 178, 2002 Miss. App. LEXIS 193, 2002 WL 555119 (Mich. Ct. App. 2002).

Opinion

McMILLIN, C. J.,

for the Court.

¶ 1. Fred Nosser was denied compensation for a claimed work-related back injury. The Mississippi Workers’ Compensation Commission concluded that Nosser had failed to carry his burden of showing that the injury occurred while he was acting in the course and scope of his employment. Nosser appealed that decision without success to the Circuit Court of Warren County and now asks this Court to reverse that decision. We affirm.

I.

Facts

¶ 2. Nosser claimed to have injured his back while attempting to move a heavy box of broken glass on Saturday morning, March 28, 1998, while at work for his employer, First American Credit Corporation. Nosser testified to having contemporaneously informed a fellow worker, Thaddeus Markos, and his supervisor, David Norman, that he had hurt his back while performing the assigned task of cleaning up the broken glass from the rear of the business.

¶ 3. Both of these individuals testified at the hearing and denied that Nosser had made any such statements to them. Mar-kos further testified that Nosser had discussed with him the fact that Nosser had borrowed a tiller from the employer for personal use at his residence several days earlier and reported that its use had been “rough on his back.”

¶ 4. Nosser first saw a treating physician in regard to his injuries on April 1, 1998, when he was seen by Dr. Jose Ferrer. Dr. Ferrer’s clinic notes dictated shortly after the visit included a medical history from Nosser indicating that the injury had occurred while he “was doing some work around the home.” Nosser’s attorney filed a motion seeking to exclude that portion of the medical records as being a privileged communication protected by the physician-patient privilege that was neither explicitly waived by Nosser nor implicitly waived by his having pursued a claim for compensation. Despite Nosser’s motion, the clinical notes including the pertinent history were received into evidence.

¶ 5. The administrative law judge relied, at least in part, upon the notation in the doctor’s records in making his determination that the injury was not work related. The administrative law judge determined that Nosser had failed to prove satisfactorily that his back injury was incurred during the course of his employment and denied compensation on that basis. Nosser appealed that decision to the Full Commission. His appeal specifically included the issue of whether the administrative law judge improperly considered inadmissible matters protected from disclosure by the physician-patient privilege. The Commission summarily affirmed the administrative law judge’s decision in all respects. The circuit court affirmed the Commission’s decision in Nosser’s subsequent appeal, prompting Nosser to appeal to this Court.

II.

Issues

¶ 6. Nosser seeks to attack the Commission’s ruling on two fronts. First, he claims that the Commission erred in considering the statement allegedly made by Nosser to Dr. Ferrer as being a privileged [180]*180communication protected from disclosure by the applicable doctor-patient privilege. Secondly, Nosser claims that, when considering the totality of the evidence bearing on the question, even if the patient history is included, the substantial weight of the evidence supports the conclusion that Nos-ser was injured while on the job.

A.

Privilege

¶ 7. Proceedings before the Mississippi Workers’ Compensation Commission are not judicial proceedings in which evidence may only be admitted in strict accordance with the applicable rules of evidence. Miss.Code Ann. § 71-3-55 (Rev.2000); Brock v. Hankins Lumber Co., 786 So.2d 1064, 1068(¶ 21) (Miss.Ct.App.2000). Nevertheless, the Mississippi Supreme Court has said that, in the name of fundamental considerations of due process, the traditional rules of evidence must guide the admissibility of information intended to assist the Commission in making its determinations to some extent. Cooper’s, Inc., of Miss. v. Long, 224 So.2d 866, 870 (Miss.1969). Specifically, the supreme court has said that filing a claim for compensation does not constitute a blanket waiver by the claimant of the physician-patient privilege that protects disclosure of information made known to a treating physician to assist in determining the proper course of treatment. Id. Rather, the workers’ compensation statute removes the privilege only from “[mjedical and surgical treatment as provided in this section .... ” Miss.Code Ann. § 71-3-15(6)(Rev.2000).

¶ 8. Nosser argues that a patient’s statement indicating the location of where the injury was incurred does nothing to assist the physician in formulating a proper course of treatment for his back injury and, thus, would not be covered by the limited waiver of the privilege as contemplated by the statute. He relies on the case of Sessums v. McFall, 551 So.2d 178 (Miss.1989), which he contends stands for the proposition that information related to a physician concerning the circumstances of an accident that is not useful in formulating a course of treatment is not waived by putting one’s condition at issue.

¶ 9. Sessums was not a workers’ compensation case. In Sessums, the Mississippi Supreme Court considered that part of a claimant’s medical records in which the patient had informed the treating physician that his injury occurred because “he was not watching where he was going and ran into a car.” Sessums, 551 So.2d at 180. Sessums, the plaintiff, had not called the treating physician as a witness. Rather, he had simply introduced his statement for services as an element of his damages. The defendant, McFall, called the doctor as a witness and elicited this medical history over Sessums’s objection that the communication was privileged. The supreme court concluded that Sessums “did not waive the privilege by introduction of [the] medical bill,” nor “by answering questions on cross-examination and denying that he made the statements.... ” Id. at 180-81.

¶ 10. However, in the later case of Bechtel Corp. v. Phillips, which was a workers’ compensation case, the supreme court placed substantial reliance on the claimant’s history given his treating physician that “the injury derived from something that happened at his home.... ” Bechtel Corp. v. Phillips, 591 So.2d 814, 816 (Miss.1991). As in the case now before us, there was other evidence tending to cast doubt on the worker’s claim that he was injured at work, but there can be no doubt that the court considered the patient’s history contained in his medical records relating to the specific injury for which he claimed compensation to be com[181]*181petent evidence. Id. at 818. It is evident to this Court that, in the context of workers compensation claims, the supreme court would not countenance such a narrow interpretation of Section 71-3-15(6) as Nosser contends is appropriate, where every entry must be weighed to determine whether or not it arguably assists the physician in formulating a plan of treatment and becomes properly available for consideration by the Commission only if it is determined to be helpful in that respect. Instead, we are satisfied, based on the Bechtel Corp. v. Phillips

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814 So. 2d 178, 2002 Miss. App. LEXIS 193, 2002 WL 555119, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nosser-v-first-american-credit-corp-missctapp-2002.