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Moon v. Johnson

January 26, 1999

J. H. MOON & SONS, INC. AND WESTERN APPELLANTS CASUALTY AND SURETY CO.
v.
BILLY D. JOHNSON APPELLEE



The opinion of the court was delivered by: Thomas, P.j.

DATE OF JUDGMENT: 08/27/97

TRIAL JUDGE: HON. JOHN B. TONEY

COURT FROM WHICH APPEALED: MADISON COUNTY CIRCUIT COURT

NATURE OF THE CASE: CIVIL - WORKERS' COMPENSATION

TRIAL COURT DISPOSITION: REVERSED THE MISSISSIPPI WORKERS' COMPENSATION COMMISSION'S AWARD AND GRANTED COMPENSATION BASED UPON PLAINTIFF'S AVERAGE WEEKLY WAGE IN 1993

AFFIRMED

EN BANC

¶1. J.H. Moon and Sons, Inc. and Western Casualty and Surety Company appeal the decision of the Circuit Court of Madison County reversing the Mississippi Workers' Compensation Commission's award of compensation based on claimant's average weekly wage in 1981, the date of claimant's work related accident. The Circuit Court of Madison County awarded the claimant, Billy D. Johnson, compensation benefits based upon his average weekly wage rate in 1993, the date of his permanent disability. From this ruling, Moon and Sons assigns the following issues for review:

I. THE FULL COMMISSION'S FINDING THAT THE DATE OF THE ORIGINAL INJURY IS THAT WHICH SHOULD BE USED IN CALCULATING THE CLAIMANT'S COMPENSATION BENEFITS WAS SUPPORTED BY SUBSTANTIAL EVIDENCE; THEREFORE, THE REVERSAL BY THE CIRCUIT COURT OF MADISON COUNTY, WAS ERRONEOUS.

II. THE FINDINGS BY THE CIRCUIT COURT OF MADISON COUNTY ESTABLISHED A NEW DATE OF INJURY AND LIBERTY MUTUAL INSURANCE COMPANY, THE CARRIER, ON THIS DATE IN 1993 SHOULD BE RESPONSIBLE.

Finding no error, we affirm.

FACTS

¶2. Billy D. Johnson began employment with J.H. Moon and Sons in 1959 as a carpenter and was eventually promoted to construction superintendent. Moon and Sons primarily engages in the construction of bridges and highway overpasses. In December 1981, Johnson, while working in the scope and course of his employment, was involved in an automobile accident. As a result of the accident, Johnson experienced considerable pain and numbness in his neck, shoulders, arms, and hands. In January of 1982, Johnson sought treatment from Dr. Lucien Hodges of Jackson, Mississippi and later underwent cervical disc fusion surgery that same month. Johnson returned to work, but continued to experience pain in his neck and arms.

¶3. As a result of the continuing pain and discomfort, Johnson traveled to the Tulane Medical Center in New Orleans, Louisiana in May of 1983 and consulted with Dr. Raoul Rodriguez. After an examination, Dr. Rodriguez determined that Johnson's pain and discomfort was caused by the compression of the median nerve due to non-union of the vertebrae in the fusion performed by Dr. Hodges in January of 1982. Dr. Rodriguez further noted that the symptoms experienced by Johnson were indicative of compression of the median nerve in the carpal tunnel, carpal tunnel syndrome. Dr. Rodriguez continued to treat Johnson between 1983 and 1985.

¶4. In December of 1985, Dr. Rodriguez concluded that additional surgery was necessary to correct the non-union of the vertebrae in the cervical spine. The removal of a fragment of disc material and re- fusion of Johnson's vertebrae was performed in January of 1986. Although the surgery performed by Dr. Rodriguez helped to diminish Johnson's pain, Johnson continued to experience numbness in his right arm and hand.

¶5. On June 4, 1987, Judge Joseph Edmund Winston held that Johnson's injuries constituted a compensable injury arising from the December 1981 accident and ordered J.H. Moon and Sons, Inc. and Western Casualty to pay all of Johnson's medical expenses. However, the order did not result in a finding of permanent disability.

¶6. On November 25, 1987, after conducting an electromyogram, Dr. Rodriguez concluded that the earlier diagnosis of carpal tunnel syndrome was correct. Due to the continuing presence of pain Johnson continued to see Dr. Rodriguez, which resulted in approximately 15 follow-up office visits between August 1987 and April 1990. In April 1990, Judge Neil W. White held that the carpal tunnel syndrome experienced by Johnson was related to the December 1981 accident. Johnson was awarded both prior and future medical expenses related to his cervical spine injury.

¶7. Johnson had continued to work for Moon and Sons between the December 1981 accident and July 15, 1993. On this date Dr. Rodriguez concluded that Johnson was totally disabled and unable to return to work. Johnson received temporary total disability benefits from January 25, 1982 to March 7, 1982 at a rate of $112 per week and received wages in lieu of compensation from January 30, 1986 to July 7, 1986. Johnson sustained no additional injuries which aggravated or lightened the injury he sustained in the 1981 accident or that caused or contributed to his current state of disability. All resulting pain and discomfort, including the diagnosis of carpel tunnel syndrome were traced to the original accident in December 1981.

¶8. On May 6, 1996, Administrative Judge Deneise Lott ordered that Johnson was entitled to permanent total disability benefits at the rate of $112 per week for 450 weeks beginning December 2, 1981, the date of the injury, with proper credit for compensation and for wages paid in lieu of compensation. Judge Lott concluded that Liberty Mutual Insurance Company, the workers' compensation carrier as of July 15, 1993, was not liable for any benefits to be paid, and that Western Casualty was solely responsible for payment of Johnson's benefits.

¶9. Johnson filed a motion to reconsider on May 23, 1996. This motion was denied on June 26, 1996 by Judge Lott. The claimant appealed the order to the Full Commission.

ΒΆ10. On October 31, 1996, the Mississippi Workers' Compensation Full Commission affirmed the order of Judge Lott and the findings made therein. From that order, Johnson appealed to the circuit court. On August 27, 1997, Circuit Court Judge John B. Toney reversed the Full Commission and awarded Johnson compensation ...


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