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Prairie Farms Dairy v. Graham

Court of Appeals of Mississippi

July 17, 2018

PRAIRIE FARMS DAIRY AND ACE AMERICAN INSURANCE COMPANY APPELLANTS
v.
GREGORY GRAHAM APPELLEE

          DATE OF JUDGMENT: 09/19/2017

          MISSISSIPPI WORKERS' COMPENSATION COMMISSION

          JOHN S. GONZALEZ LINDSEY BLACKWELL HARRIS ATTORNEYS FOR APPELLANTS

          JAMES KENNETH WETZEL GARNER JAMES WETZEL ATTORNEYS FOR APPELLEE

          BEFORE LEE, C.J., CARLTON AND WESTBROOKS, JJ.

          LEE, C.J.,

         ¶1. In this appeal we must determine whether the Mississippi Workers' Compensation Commission (Commission) erred when it affirmed and adopted the administrative judge's (AJ) findings that Gregory Graham (1) sustained a 50% industrial loss of use of his left knee and was entitled to disability benefits, and (2) sustained a compensable back injury and was entitled to related medical expenses and temporary total disability benefits. Finding that the Commission's decision was supported by substantial credible evidence, we affirm.

         FACTS AND PROCEDURAL HISTORY

         ¶2. On July 25, 2014, Graham, who was employed by Prairie Farms Dairy to deliver milk to commercial establishments, injured his left knee while completing a delivery at a local grocery store in Moss Point, Mississippi. According to Graham, when he stepped off the truck and onto the pavement while holding a milk crate, his "knee popped and it would not move at all . . . ." Graham received treatment for his knee under workers' compensation, including physical therapy and eventual surgery, but stated that throughout his treatment his knee continually cracked, popped, and would give way or "buckle." In March 2015, Graham fell because his leg gave way as he was standing up from his chair in his home. Graham stated that he landed on his right side to keep from hitting a coffee table and that when he hit the floor, his "back popped in" and he experienced immediate pain in his neck and back.

         ¶3. Graham later testified that he saw Dr. George Salloum, an orthopedist, the next day, with whom he already had a previously scheduled appointment for his knee. According to Graham, he told Dr. Salloum about his continued knee/leg problems and his subsequent fall the night before and his resulting back pain. Dr. Salloum told Graham that he should follow up with Dr. Terry Smith, a neurosurgeon, for Graham's back concerns-as Dr. Smith had performed back surgery on Graham in 2007. In May 2015, during another follow-up appointment with Dr. Salloum following Graham's knee surgery, Dr. Salloum again indicated that Graham should see a neurosurgeon for his back/neck-related symptomology. Graham subsequently discussed a neurosurgery appointment with a nurse case manager and was informed that it would not be authorized under workers' compensation because he had preexisting back problems. Graham followed up with Dr. Robert Kimber, an orthopedic surgeon and spine specialist, under his own insurance, as Dr. Kimber was the last physician Graham had seen for his back.

         ¶4. On June 22, 2015, Graham filed a petition to controvert. He sought benefits for a left knee injury and his subsequent back and neck injury. Prairie Farms filed their answer, admitting the left knee injury but disputing the claims for a back and neck injury. Graham filed a motion for medical treatment on August 18, 2015, requesting treatment for his back and indemnity benefits. Prairie Farms disputed the requested treatment and indicated their intent to obtain an Employer Medical Evaluation (EME). Prairie Farms then filed a motion to compel an EME. The AJ granted the motion, instructing Graham to attend the EME with Dr. Rahul Vohra.

         ¶5. Dr. Vohra reviewed Graham's medical records and examined him in person. With regard to Graham's left knee, Dr. Vohra agreed with Dr. Salloum's findings that Graham reached maximum medical improvement on June 9, 2015, and the 10% impairment assignment to the left lower extremity. Dr. Vohra also agreed with the restriction imposed by Dr. Salloum of no lifting over forty pounds, but otherwise opined that Graham's knee did not need further medical treatment. Because of Graham's previous left knee surgery, Dr. Vohra noted apportionment would apply; however, he did not opine as to what the apportionment should be because he did not have any medical records to support any preexisting impairment to the left knee. As to Graham's back pain, Dr. Vohra noted that Dr. Smith had previously performed a multilevel lumbar decompression; Dr. Salloum's medical records indicated that Graham had fallen several times but did not mention an injury resulting from any falls; and Graham had received pain-management treatment for his back prior to the 2014 work-related knee injury. Dr. Vohra concluded that Graham's complaints of back pain and back-related symptomology were not related to or aggravated by the left knee injury and were separate issues.

         ¶6. Dr. Kimber was deposed by Prairie Farms regarding his treatment of Graham. Dr. Kimber acknowledged that Graham had longstanding chronic back problems and noted that he had first seen Graham in September 2013 prior to the July 2014 work injury. At the initial 2013 appointment, Dr. Kimber noted that Graham had severe degenerative disc disease. When Graham returned to Dr. Kimber in 2015 for back pain, Dr. Kimber noted that Graham had sustained a knee injury and subsequently undergone knee surgery. Dr. Kimber further opined that Graham's back pain and symptomology was worse in 2015 (post-knee injury) than when he saw Graham in 2013 (pre-knee injury). Dr. Kimber concluded in his medical report that the back injury happened after the knee injury and that Graham's back issues were aggravated by the knee/leg issues.

         ¶7. On September 29, 2015, a hearing on the merits was held before the AJ to determine (1) the existence and extent of permanent disability, if any, from the work-related left knee injury; and (2) whether a compensable back injury arose out of the July 25, 2014 work-related accident when Graham fell at home in March 2015 due to his knee buckling; and assuming compensability, whether Graham was entitled to temporary disability benefits and medical treatment. The parties stipulated that Graham sustained a compensable injury to his left knee on July 25, 2014. They also stipulated ...


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