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Whittle v. Tango Transport

Court of Appeals of Mississippi

April 8, 2014

RUBEN WHITTLE, APPELLANT
v.
TANGO TRANSPORT AND ZURICH AMERICAN INSURANCE COMPANY, APPELLEES

COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT. DATE OF JUDGMENT: 12/18/2012. TRIAL JUDGE: HON. LISA P. DODSON. TRIAL COURT DISPOSITION: AFFIRMED THE ORDER OF THE MISSISSIPPI WORKERS' COMPENSATION COMMISSION AND FOUND NO COMPENSABLE INJURY AS A RESULT OF APPELLANT'S ACCIDENT.

FOR APPELLANT: JAMES KENNETH WETZEL, GARNER JAMES WETZEL.

FOR APPELLEES: PHILLIP W. JARRELL, WALTER J. EADES.

BEFORE GRIFFIS, P.J., ISHEE AND CARLTON, JJ. LEE, C.J., IRVING, P.J., BARNES, ISHEE, ROBERTS, MAXWELL, FAIR AND JAMES, JJ., CONCUR. CARLTON, J., DISSENTS WITH SEPARATE WRITTEN OPINION.

OPINION

Page 1158

NATURE OF THE CASE: CIVIL - WORKERS' COMPENSATION

GRIFFIS, P.J.:

[¶1] Ruben Whittle appeals the Mississippi Workers' Compensation Commission's decision that he suffered no compensable injury to his back as a result of a truck accident. Whittle argues that the evidence was sufficient to meet his burden of proof to establish that he suffered a compensable injury. We find reversible error and remand for further proceedings consistent with this opinion.

FACTS AND PROCEDURAL HISTORY

[¶2] Whittle was employed as a truck driver for Tango Transport. On April 17, 2009, Whittle suffered an on-the-job injury when his truck was struck from behind by a dump truck while he was stopped at a railroad crossing.

[¶3] The accident occurred while Whittle was making an out-of-state delivery. Whittle was unable to report to the emergency

Page 1159

room immediately after the accident, because he had to remain out-of-state over the weekend to make the delivery. The delivery location was closed over the weekend.

[¶4] Whittle returned home and reported to the emergency room of Memorial Hospital in Gulfport, Mississippi, on April 21, 2009. Whittle complained of pain all over his body.

[¶5] Whittle was referred to Dr. Nyron Marshall, who began to treat him on April 22, 2009. Whittle complained of pain in his knees, stomach, back, elbow, neck, and shoulder. Dr. Marshall treated Whittle for his knee pain, which included a referral to physical therapy. Whittle was released to return to light-duty work on May 4, 2009. After further treatment, Dr. Marshall released Whittle to full duty on May 14, 2009. Dr. Marshall stated that Whittle could work with no restrictions.

[¶6] Dr. Marshall referred Whittle to Dr. Lance Johansen, an orthopedic surgeon. Dr. Johansen treated Whittle from July 27, 2009, until he released Whittle to full duty on August 28, 2009. Dr. Johansen's treatment focused mostly on Whittle's knees. Dr. Johansen's notes mentioned that Whittle was " doing exercises for his lower back."

[¶7] In October 2009, Dr. Johansen referred Whittle for a functional-capacity evaluation. The evaluation report reflected that Whittle complained of pain in his knee, neck, back, and body; had knee problems; had decreased range of motion in his lumbar spine; and endured pain when he bent forward. The ...


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