Whiddon v. Southern Concrete Pumping, LLC

114 So. 3d 18, 2013 WL 1737209, 2013 Miss. App. LEXIS 208
CourtCourt of Appeals of Mississippi
DecidedApril 23, 2013
DocketNo. 2011-WC-01133-COA
StatusPublished
Cited by1 cases

This text of 114 So. 3d 18 (Whiddon v. Southern Concrete Pumping, LLC) 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
Whiddon v. Southern Concrete Pumping, LLC, 114 So. 3d 18, 2013 WL 1737209, 2013 Miss. App. LEXIS 208 (Mich. Ct. App. 2013).

Opinion

ISHEE, J.,

for the Court:

¶ 1. In August 2009, Paythan Whiddon was injured during the course of his employment with Southern Concrete Pumping LLC (Southern Concrete). Due to the accident, he suffered a lower-back injury. In September 2009, Whiddon filed a petition to controvert with the Mississippi Workers’ Compensation Commission (the Commission). He sought compensation for his loss of wage-earning capacity. The administrative judge (AJ) found that Whiddon had a temporary occupational disability, but that he did not have permanent loss of wage-earning capacity. In November 2010, Whiddon appealed the AJ’s decision to the Commission. In July 2011, the Commission affirmed the decision of the AJ. Whiddon now appeals arguing the Commission erred when it failed to find he had sustained a permanent loss of wage-earning capacity as a result of his work injury. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Whiddon was employed by Southern Concrete as a concrete-pump operator. On August 7, 2009, Whiddon was acting within the course and scope of his employment when he was involved in a motor-vehicle accident. While driving a concrete-pump truck in Hattiesburg, Mississippi, Whiddon’s vehicle was rear-ended by another vehicle.

¶ 3. Immediately after the accident, Whiddon began experiencing pain in his lower back and left leg. Because of the pain, Whiddon went to the Forrest General Hospital emergency room on the after[20]*20noon of the accident. At the emergency-room, x-rays were taken and showed moderate degenerative joint disease at the L5-S1 region. Whiddon was diagnosed with lumbar strain, and was told to follow up with his general physician.

¶ 4. The pain stemming from this accident was not the first time Whiddon had experienced back pain. In February 1998, Whiddon was involved in a different motor-vehicle accident. Following that accident, Whiddon experienced numbness and tingling in his legs and lower-back pain. He was treated by Dr. Michael Fromke at the Hattiesburg Clinic. The computed tomography scans (CT scans) taken after the accident showed left L4 and L3 transverse process fractures. The magnetic-resonance-imaging test (MRI) showed a minor bulge at L5 with degenerative changes within the disc. However, Dr. Fromke opined that this was caused by chronic degenerative changes associated with age and was unrelated to the accident.

¶ 5. Whiddon then began seeing Dr. Da-rell O’Quinn regarding his back pain. He consulted Dr. O’Quinn on November 15, 2002; April 7, 2003; June 23, 2005; December 5, 2005; and August 18, 2006. At each consultation, he received some form of pain management for his lower-back pain. On February 20, 2007, Dr. O’Quinn ordered an MRI, which revealed a disc bulge and degenerative disc disease at L5-Sl. Whiddon saw Dr. O’Quinn three more times in 2007 and again in October 2008, his final visit before the August 2009 accident.

¶ 6. Whiddon then saw Dr. O’Quinn again for his current injury. An MRI revealed a herniated disc with bulging toward the left side at L5-S1. Thereafter, Whiddon was treated by Dr. Michael Patterson at Southern Bone & Joint Specialists. Dr. Patterson recommended epidural-steroid injections at L5-S1 and physical therapy. On January 18, 2010, after receiving a series of epidural-steroid injections and physical therapy, Dr. Patterson determined that Whiddon had reached maximum medical improvement.

¶ 7. On February 8, 2010, and February 9, 2010, Whiddon underwent a functional-capacity evaluation performed by Robert Bishop. Bishop found that Whiddon had a two percent whole-person impairment. He concluded that Whiddon had the ability to perform at a medium work level with certain restrictions — including only occasional bending and crouching, and restricted continuous lifting. Based on this evaluation, Dr. Patterson released Whiddon to return to work on February 18, 2010.

¶ 8. Whiddon had been laid off by Southern Concrete in September 2009 due to decreased business. Therefore, after he was released to work, Whiddon had to seek alternative employment. He then began working for Nichols Concrete Equipment Company (Nichols Concrete), a company he had worked for previously. In his current position as a concrete-pump operator, Whiddon is paid $19 per hour. Whid-don claimed that he averages thirty-two to thirty-five hours per week; however, he has worked as many as sixty-six hours in one week. From February 27, 2010, through September 18, 2010, Whiddon averaged thirty-nine hours per week. Whid-don had been earning approximately $1,200 per week while working for Southern Concrete Pumping. However, he earned extra income while working there because he had additional job duties including the dispatching and management of personnel and equipment, sales work, supervision of three other pump-truck operators, and work involving the repair of the concrete-pump trucks.

¶ 9. On September 21, 2009, Whiddon filed a petition to controvert with the Commission. On September 28, 2010, a hearing was held before the AJ. Southern Con[21]*21crete and, its insurer, Gray Insurance Company, admitted the compensability of the injury; however, the parties disputed the extent of Whiddon’s permanent occupational disability and his loss of wage-earning capacity resulting from the injury. Whiddon asserted that he still experiences lower-back pain and numbness in his left leg as a result of the injury, which prevents him from earning income equivalent to his pre-injury wage.

¶ 10. Donald E. Woodall, a vocational, rehabilitation, and disability consultant, testified during the hearing. He opined that Whiddon was currently unable to perform the duties of his pre-injury job. Based on a thirty-hour work week, he found that Whiddon had lost $630 per week in income. When calculating lost wages using a forty-hour work week, Whiddon lost income in the amount of $440 per week. Woodall also noted that if Whiddon were to lose his current job, his access to jobs making $19 per hour was limited, and his post-injury labor market had diminished by twenty-five percent.

¶ 11. Bruce Brawner, a vocation-rehabilitation consultant, also testified at the hearing. Each of the three post-injury work scenarios presented by Brawner showed Whiddon earning less at his current job than he did while working for Southern Concrete; however, Brawner opined that Whiddon could seek other employment and earn pay equivalent to his pre-injury income. Thus, although Whid-don is currently earning less than he made prior to the accident, Brawner opined that this decrease in pay is not related to his injury.

¶ 12. On November, 8, 2010, the AJ entered an order. The AJ found that Whiddon is better educated than the average Mississippian because has a high-school diploma and several years of college. Whiddon has also had many years of experience in semiskilled and skilled work, including driving eighteen-wheeler and flatbed trucks, data entry, dispatching, and sales work. This experience increased his chances of finding gainful employment. The AJ further noted that most of this work has not required him to do more than the medium-exertion work suggested by the functional-capacity evaluation. In addition, the AJ considered Whiddon’s long history of intermittent lower-back pain and left-leg numbness.

¶ 13. In the order, the AJ determined that “[t]he great weight of the medical evidence does not support Mr.

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