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Kittrell v. W.S. Red Hancock

Court of Appeals of Mississippi, En Banc

October 7, 2014

JOSEPH KITTRELL, APPELLANT
v.
W.S. RED HANCOCK AND FARMINGTON CASUALTY COMPANY, APPELLEES

WHICH APPEALED: COMMISSION. TRIBUNAL FROM MISSISSIPPI WORKERS' COMPENSATION COMMISSION. DATE OF JUDGMENT: 04/02/2013. TRIBUNAL DISPOSITION: DENIED BENEFITS.

AFFIRMED.

FOR APPELLANT: TAYLOR RHUE BRINKLEY, H. ALEXANDER BRINKLEY.

FOR APPELLEES: REBECCA LEIGH WOLTJER.

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

OPINION

Page 858

NATURE OF THE CASE: CIVIL - WORKERS' COMPENSATION

MAXWELL, J.

¶1. Joseph Kittrell filed for workers' compensation benefits after he claimed he hurt his back working as a pipefitter for W.S. Red Hancock. Hancock denied Kittrell suffered a work-related injury and contested the claim. After hearing testimony from Kittrell, his supervisors, and coworkers, the administrative judge (AJ) and Mississippi Workers' Compensation Commission found Kittrell had not suffered a work-related injury and denied disability benefits. Our review shows the Commission's decision is supported by substantial evidence, so we affirm.

Facts and Procedural History

¶2. On January 10, 2011, Kittrell began working for Hancock as a pipefitter in Laurel, Mississippi. He claimed tat around March 10, 2011, he jarred his back when a coworker dropped a 300 pound pipe they were carrying. Kittrell did not immediately seek medical treatment. Though he says he reported the injury to Hancock that day, his supervisors at Hancock disputed this. The record shows Kittrell returned to work the next day. And he worked three more days as a pipefitter before calling Hancock on March 18 and 19, to tell them he had a doctor's appointment.

¶3. On March 19, 2011, Kittrell visited the Greene County Hospital complaining of back pain. He reported he was injured nine days earlier when his " partner dropped his end of [a six-inch] pipe." Kittrell said he was holding the other end of the pipe and was " jerked downward." He was diagnosed with a back sprain and Grade 1 Spondylolisthesis of L5 on S1 and was referred to an orthopedic surgeon.

¶4. Hospital records show Kittrell was born with a birth defect in his back. He had also suffered a previous back injury in 1992 from a work-related fall. In 1993, he injured his back again, this time working as a pipefitter for Brown & Root Construction Company. He received a workers' compensation settlement for this injury. The records also show that on July 31, 2007, Kittrell was diagnosed with " Grade 1 anterolisthesis of L5 on S1 probably secondary to bilateral pars and/or articularis defects at L5." There was also a finding of " mild disc space narrowing at L4-L5

Page 859

compatible with degenerative disc disease." And in the 2007 medical records, Kittrell reported a history of chronic back pain.

¶5. On March 20, 21, and 22, Kittrell was marked absent from work. Because Hancock had a three-day no-call, no-show policy, Kittrell was terminated on March 23. While Kittrell insists the company told him he need not keep calling in to work because he had not been medically released to return to work, the company denied he had contacted them.

¶6. On March 21, 2011, Kittrell went to Greene County Family Medical Clinic where Nurse Practitioner Jason Box treated him. Insurance records from the medical clinic show Kittrell was paying out-of-pocket for a non-work-related condition. There was no indication he asked Hancock to send him to a doctor or pay his medical bills.

¶7. On April 1, 2011--after Hancock had already terminated Kittrell--Nurse Box wrote a letter to Hancock, noting he had seen Kittrell on March 21, 2011, and March 28, 2011, for " an injury sustained at work" and had recommended an MRI of Kittrell's lumbar spine. This letter was written at Kittrell's request. Kittrell mailed the letter to Hancock's main office in Bentonia, Mississippi--not the Laurel office where he worked. On April 25, 2011, Hancock's attorney responded to Box's letter, informing Box that Hancock was " not presently aware of any work-related injury involving [Kittrell]."

¶8. On May 10, 2011, Kittrell filed a petition to controvert with the Commission. He claimed he " was installing a metal pipe [for Hancock] when he strained his lower back." While Kittrell listed March 10, 2011, as the date of injury, he later testified he was unsure of the exact date. Kittrell maintained he notified his supervisor, Jerry Platt, about the accident. But Hancock denied Kittrell gave the company any notice of an injury. It also denied that Kittrell injured himself at Hancock.

¶9. On November 1, 2011, the AJ held a hearing on the compensability of Kittrell's claim. Several witnesses testified live and around 30 exhibits were introduced, including deposition testimony from some non-present witnesses. On June 15, 2012, the AJ entered an order denying benefits. The AJ found Kittrell did not suffer a work-connected injury. On May 20, 2013, the Commission adopted the AJ's order and denied Kittrell disability benefits.

¶10. Kittrell now appeals.

Testimony

A. Claimant's Witnesses


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