DATE OF JUDGMENT: 9/14/96 TRIAL JUDGE: HON. WARREN ASHLEY HINES COURT FROM WHICH APPEALED: WASHINGTON COUNTY CIRCUIT COURT
Before Thomas, P.j., Herring, And Hinkebein, JJ.
THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B
This case involves an appeal from a decision of the Circuit Court of Washington County, Mississippi, which reversed an order of the Workers' Compensation Commission of the State of Mississippi. The Commission awarded Nathaniel E. Walker, the claimant and appellant herein, temporary total disability benefits and permanent partial disability benefits as a result of an injury which he sustained during the course of his employment. The circuit court reversed the decision of the Commission and Walker now appeals to this Court.
After reviewing the record and applicable law, we find that the circuit court committed reversible error. Thus, we reverse and remand this action to the Commission for further findings.
Nathaniel Walker was injured on April 28, 1992, during the course and within the scope of his employment with Pines Trailer Limited Partnership. The injury occurred when Walker bumped his knee on a metal rail while he was inspecting trailers during the course of his duties. The record discloses that Walker reported the accident immediately to his supervisor. As a result of the accident, Walker suffered a dislocated kneecap. According to the deposition of Dr. Richard A. Knutson, an orthopedic surgeon, Walker continued to work full-time after the accident and participated in a regimen of conservative treatment and physical therapy for his injury. However, he was taken off work on August 25, 1992, by Dr. Walter A. Shelton and was first seen by Dr. Knutson on September 11, 1992. Dr. Knutson later performed knee surgery on September 29, 1992, to correct the recurrent dislocation of Walker's left patella, or kneecap, which had been unresponsive to conservative therapy. All parties have stipulated that Walker's knee injury was work related and compensable.
Following his surgery, Walker had a continued collection of fluid in his knee that was very persistent, and he was ordered to perform knee exercises under the supervision of Gene Snipes, a physical therapist. At some point during the course of his physical therapy exercises, Walker developed significant back pain. As a result, his physical therapy schedule was modified. The Appellant was later examined by a neurological surgeon, Dr. Earnest Cashion. Both physicians, Drs. Knutson and Cashion, were of the opinion that the back pain experienced by Walker resulted from degenerative bulging in the lumbar area and was caused by the physical therapy exercises engaged in by Walker as a result of his knee injury. A myelogram was performed on December 10, 1993, by Dr. Robert Oliver, and the result of that test indicated that Walker had a mild central bulging disc at L5-S1. On October 14, 1994, Dr. Knutson assigned Walker a permanent eighteen percent (18%) impairment to his body as a whole as a result of the back injury, and a four percent (4%) permanent disability to the body as a whole in regard to his knee injury. The record indicates that Walker had no previous history of knee or back problems
EMPLOYMENT SUBSEQUENT TO INJURY
As stated, Walker's injury occurred on April 28, 1992, but he continued to work with a leg brace while undergoing outpatient treatment for his knee problem. Thereafter, he was taken off work by his physician on August 25, 1992, when his kneecap would not stabilize in its normal position. Knee surgery was performed on September 29, 1992, to correct the chronic dislocation of the kneecap. Dr. Knutson released Walker for work with no restrictions on March 25, 1993. Walker testified that prior to that time he attempted to return to light duty at Pines Trailer on several occasions but was unable to do the work assigned to him. Ultimately, he voluntarily discontinued his employment with Pines Trailer, without notice, because there were no light duties for him to perform there. He was terminated by Pines Trailer some time around April 1, 1993. Thereafter, he worked at a series of jobs, most of which he voluntarily quit, as follows:
(1) He worked for Baxter's Cleaning Service for approximately two weeks for $4.25 per hour during March, 1993, while he was still on the employment rolls of Pines Trailer. Walker considered the work at Baxter's Cleaning Service to be light duty compared to his work at Pines Trailer, although it involved frequent stooping, reaching, and bending. He stated that reoccurring physical problems caused him to leave Baxter's and seek other employment.
(2) The Appellant left Baxter's and went to work for McDonald's Restaurant in March, 1993, earning $5.50 per hour. He was eventually promoted to shift manager. This work included cooking, sweeping, cleaning, and some lifting, as well as meeting the public. Walker testified that he had great difficulty performing this job because of his physical problems, but he performed his duties because he needed to work. He also encountered harassment from jealous co-workers who took offense to the fact that he was promoted to shift manager, even though he did not and could not perform many of the jobs performed by other employees. As a result of the stressful environment and reoccurring problems with his knee and back, Walker voluntarily terminated his employment with McDonald's in August, 1993. He remained unemployed from August to December, 1993.
(3) Walker was employed by the Cotton Club Casino from December, 1993, until February 28, 1994, with an hourly pay of $6.00. *fn1
(4) From the Cotton Club, he went on to work as a floor attendant for the Las Vegas Casino, where he worked for the sum of $8.50 per hour. It is noteworthy that prior to his injury, Walker's salary at Pines Trailer was $7.50 per hour. His duties at Las Vegas casino included filling slot machines with coins, monitoring "change persons" in the slot machine area, and paying off jackpots. Walker was terminated by Las Vegas Casino on August 21, 1994, because he failed to show up for work without advising his employer. However, Walker stated that he left voluntarily, due to increased back pain, to return to the Cotton Club Casino, for a salary of $5.50 per hour.
(5) Two weeks following his return to the Cotton Club Casino, Walker, along with a huge number of other employees, was laid off. It is noteworthy that Monica Williams, a shift supervisor at the Cotton Club, testified that Walker was laid off because of his inability to do the required work due to his back pain. After a brief period, Walker was asked to return to the Cotton Club, but declined to ...