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McCall v. Sanderson Farms, Inc.

Court of Appeals of Mississippi

August 1, 2017

TRAVON MCCALL APPELLANT
v.
SANDERSON FARMS, INC. AND NEW HAMPSHIRE INSURANCE COMPANY APPELLEES

          DATE OF JUDGMENT: 08/05/2016

         TRIBUNAL FROM WHICH MISSISSIPPI WORKERS' COMPENSATION COMMISSION

          ATTORNEY FOR APPELLANT: LINDSAY ERIN VARNADOE

          ATTORNEYS FOR APPELLEES: RICHARD LEWIS YODER JR. WILLIAM LAWRENCE THAMES.

          BEFORE IRVING, P.J., FAIR AND WILSON, JJ.

          FAIR, J.

         ¶1. 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.

         FACTS

         ¶2. 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 minutes later.

         ¶3. 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.

         ¶4. 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.

         ¶5. 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.

         STANDARD OF REVIEW

         ¶6. 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 (ΒΆ27) (Miss. 2005)). We view questions of statutory interpretation de ...


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