OF JUDGMENT: 08/05/2016
FROM WHICH MISSISSIPPI WORKERS' COMPENSATION COMMISSION
ATTORNEY FOR APPELLANT: LINDSAY ERIN VARNADOE
ATTORNEYS FOR APPELLEES: RICHARD LEWIS YODER JR. WILLIAM
IRVING, P.J., FAIR AND WILSON, JJ.
This workers' compensation case involves one issue:
whether Travon McCall suffered a compensable injury under
Mississippi Code Annotated sections 71-3-7 and 71-3-121
(Supp. 2016). The administrative judge (AJ) held that
McCall's injury was compensable. The Mississippi
Workers' Compensation Commission (Commission) reversed
the AJ, holding his injury was not compensable because he had
refused to take a breathalyzer test after the injury
occurred. We find that the Commission's decision was not
supported by substantial evidence. Thus, we reverse and
render judgment in favor of McCall.
McCall worked as a cook-line operator for Sanderson Farms. On
May 10, 2014, he bent down to pick up a small tub of waste
flour and injured his lower back. He testified that the tub
weighed between thirty and forty pounds. McCall reported the
injury to his supervisor. Someone brought McCall a
wheelchair, but he was unable to sit because of the pain
running down his right leg. So he used the wheelchair to
scoot off the floor and went to the nurse's office to
wait for the nurse, Suzan Crisler. Crisler was at home
because it was a late shift. She was immediately called in to
perform a urine drug test and arrived twenty to thirty
Crisler testified that it is Sanderson Farms' policy to
perform both a drug test and an alcohol test when an employee
is injured on the premises. She also testified that McCall
initially provided an untestable urine sample (under
forty-five milliliters according to company policy), so she
requested that he take another one, telling him he could wait
up to three hours to take it. McCall immediately downed forty
ounces of water given to him by Crisler, took a cup into the
restroom, and failed to produce a sample. McCall testified
that, due to his pain, he lost his temper and walked out,
heading for a nearby hospital, instead of giving another
sample. Crisler said that as McCall was leaving, the
contracted breath-alcohol technician arrived to give the
breathalyzer test. The bill submitted by the technician
showed mileage of thirty miles and a charge of $100 for the
callout on May 10, without any listed arrival time.
River Oaks Hospital's records show that McCall was logged
in at River Oaks at 12:24 a.m. The hospital is approximately
two miles from Sanderson Farms. When McCall arrived, one of
his supervisors was already there with workers'
compensation paperwork. McCall was diagnosed with acute,
lower back pain. He received a shot in the back for pain
relief and then provided a urine sample. The sample tested
negative for amphetamines, barbiturates, benzodiazepines,
cocaine metabolite, marijuana metabolite, methadone, opiates,
phencyclidine, and propoxyphene. No breathalyzer test was
ever offered or administered to McCall. He took prescribed
medication for the pain, but declined a recommended opiate
(dilaudid/hydromorphone) pain medication. He was discharged
approximately two hours after arrival.
On May 12, 2014, McCall was terminated with the
"[r]eason for [t]ermination: voluntarily resigned"
because of "refusal of drug/alcohol test" and
because he "left [without] permission." The AJ
found that McCall's injury was compensable. The
Commission reversed the AJ's ruling, finding that McCall
was not entitled to compensation since he refused to submit
to alcohol testing. McCall appealed.
We will not reverse the Commission's decision unless it
is unsupported by "substantial evidence, is arbitrary or
capricious, or is based on an erroneous application of the
law." Weatherspoon v. Croft Metals Inc., 853
So.2d 776, 778 (¶6) (Miss. 2003). "No court can
reweigh the evidence[.] [T]he Commission is the fact-finder
and the judge of the credibility of witnesses."
Short v. Wilson Meat House LLC, 36 So.3d 1247, 1251
(¶23) (Miss. 2010) (citing Barber Seafood Inc. v.
Smith,911 So.2d 454, 461 (¶27) (Miss. 2005)). We
view questions of statutory interpretation de ...