United Methodist Senior Services v. Ice

749 So. 2d 1227, 1999 WL 715783
CourtCourt of Appeals of Mississippi
DecidedSeptember 14, 1999
Docket1998-WC-00999-COA
StatusPublished
Cited by9 cases

This text of 749 So. 2d 1227 (United Methodist Senior Services v. Ice) 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
United Methodist Senior Services v. Ice, 749 So. 2d 1227, 1999 WL 715783 (Mich. Ct. App. 1999).

Opinion

749 So.2d 1227 (1999)

UNITED METHODIST SENIOR SERVICES and Liberty Mutual Insurance Company, Appellants,
v.
Laura C. ICE, Appellee.

No. 1998-WC-00999-COA.

Court of Appeals of Mississippi.

September 14, 1999.

*1228 George E. Read, Oxford, J. Keith Pearson, Greenville, Attorneys for Appellants.

Gregory W. Harbison, Tupelo, Attorney for Appellee.

BEFORE SOUTHWICK, P.J., BRIDGES, AND IRVING, JJ.

SOUTHWICK, P.J., for the Court:

¶ 1. Laura C. Ice was awarded workers' compensation benefits for a back injury. The employer appeals, alleging that responsibility for the injury should be assigned to a subsequent employer, and further that the medical testimony supporting causation was speculative. We find substantial evidence to support the Workers' Compensation Commission's factual finding on the central matter in dispute, namely, that the back injury that Mrs. Ice suffered while working for one employer was not worsened nor otherwise affected by her work for a subsequent employer. We therefore affirm.

FACTS

¶ 2. The claimant in this case, Mrs. Laura C. Ice, suffered a back injury during the course of her duties as a certified nursing assistant with United Methodist Senior Services. The injury occurred while transferring a patient from his bed to a wheelchair. Mrs. Ice went to the emergency room and subsequently saw her own doctor. He referred her to two specialists, one of whom was Dr. McDonald. On July 2, 1996, Dr. McDonald surgically removed all the material from inside the degenerated, bulging disc, a procedure called a microdiskectomy. The doctor determined that the claimant had reached maximum medical improvement on October 1, 1996, and authorized her to return to work without restriction but with a 10% permanent partial disability.

¶ 3. Mrs. Ice was concerned that returning to her employment as a nursing assistant might result in further injury *1229 since the job required lifting. She did not seek to return to United Methodist Senior Services and instead took a position in October 1996 as a sales clerk with Belk Department Store. The job required a considerable amount of standing that she asserted caused her great discomfort due to her prior back injury. She left the job after six weeks. She next worked for another retail store, Dollar Tree, but had to leave work early several times due to her back pain. Mrs. Ice stated that her employer stopped scheduling her for work and she was effectively terminated.

¶ 4. On February 17, 1997, the claimant returned to Dr. McDonald. Another MRI was conducted. It revealed a recurrent disc herniation that did not appear on an MRI taken on August 26, 1996. This condition was described by Dr. McDonald as having resulted from some small fragment of the disc whose nucleus had earlier been removed, being left behind and eventually working its way out the same hole in the covering of the disc as was used for the surgery. That fragment ultimately forced its way through the hole. Considerable dispute existed regarding whether some new injury causes this problem or whether it "just happens." Dr. McDonald recommended a second surgery, but approval for this was denied by her first employer, United Methodist Senior Services, as not being its responsibility.

¶ 5. Proceedings were commenced by Mrs. Ice solely against Senior Services. The administrative judge and the Commission found that this first employer was responsible. The circuit court affirmed.

DISCUSSION

Issue 1: Whether the correct legal standard was applied

¶ 6. The employer argues that the Commission applied an incorrect legal standard to a situation in which an injury occurs while the claimant is working for one employer, but the problem recurs while working for a second. We first state the appropriate standard, and then determine whether that is what the Commission applied.

¶ 7. The starting point for analysis is that the Commission may not apportion responsibility for claims between employers. Singer Co. v. Smith, 362 So.2d 590, 592-93 (Miss.1978):

Our statutes make no provision for apportionment of awards except in the case of preexisting handicap or disease. Here, the apportionment is between successive employers or insurers.... [T]he Workmen's Compensation Commission is an administrative agency, not a court of law and that there is no method provided by law by which it may adjust equities between insurance companies.... Absent statutory provisions, the resolution of contribution between successive carriers whether based on contract or equity should be resolved in an action at law or equity, apart from the workmen's compensation determination.

Singer, 362 So.2d at 592-93. The reduction in benefits that results from a preexisting condition "refers to benefits which the injured employee will not receive at all, not to benefits which will be paid by someone else." Thyer Mfg. Co. v. Mooney, 252 Miss. 629, 639, 173 So.2d 652 (1965).

¶ 8. Despite the suggestion in Singer that the employer held solely liable might have a right to seek contribution from another employer or carrier, seeking contribution does not appear to be a common practice. At least it has not resulted in reported case law. In fact, the general rule is that these allocations of responsibility are final for all purposes, not just for administrative agency actions. For example, after noting the potential harshness of assigning total responsibility to one employer who may have been much less liable than another employer, one authority said that the potential unfairness in one claim was balanced by the overall impact of single assignment of liability in every case. 4 *1230 ARTHUR LARSON, WORKMEN'S COMPENSATION LAW § 95.24, at 17-224 (1996).

¶ 9. In order to assign liability just to one employer, somewhat arbitrary rules have been developed. One author's interpretation of Mississippi law is this:

As to the question of the existence of liability, it is settled that the first or originating employer is exclusively liable when the recurrence of disability is solely attributable to the original injury, but that the subsequent employer or carrier is exclusively liable where the second disability has no causal relation whatever with the original injury. On the other hand, when both employments contribute to the ultimate disability, as when the original injury is aggravated or lighted up by the activity associated with the later employment to produce disability, the general rule, in the absence of statute, is that the last employer or carrier is exclusively liable.

VARDAMAN S. DUNN, MISSISSIPPI WORKMEN'S COMPENSATION § 188 (1990) (footnotes omitted).

¶ 10. Whether this is in fact the law in the state needs to be reviewed, first by examining the employer's arguments. The employer presents two theories that would assign to a subsequent employer all the liability for an injury that first manifested itself at an earlier employer. We have not found these theories to have been adopted explicitly in Mississippi. We are cited to treatises and dicta for their implications. The first theory is called the last injurious exposure rule. In one case, a claimant was exposed to dust during his employment at a company that changed ownership and insurance carriers after his exposure but before its diagnosis. Singer, 362 So.2d at 591. Because of his inhalation of the dust, the claimant suffered a significant loss of lung tissue. Id. The supreme court quoted this definition of "last injurious exposure":

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Bluebook (online)
749 So. 2d 1227, 1999 WL 715783, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-methodist-senior-services-v-ice-missctapp-1999.