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Sheffield v. S.J. Louis Construction Inc.

Court of Appeals of Mississippi

March 26, 2019

ROBERT SHEFFIELD APPELLANT
v.
S.J. LOUIS CONSTRUCTION INC. AND ZURICH AMERICAN INSURANCE COMPANY APPELLEES

          DATE OF JUDGMENT: 02/28/2018

          MISSISSIPPI WORKERS' COMPENSATION COMMISSION

          ATTORNEYS FOR APPELLANT: JAMES KENNETH WETZEL GARNER JAMES WETZEL

          ATTORNEY FOR APPELLEES: WILLIAM BIENVILLE SKIPPER

         EN BANC.

          TINDELL, J.,

         ¶1. During the course and scope of his employment with S.J. Louis Construction Inc. (S.J. Louis), Robert Sheffield suffered a June 1, 2015 injury to his lower back. On September 2, 2015, Sheffield filed a petition to controvert against S.J. Louis and its insurance carrier, Zurich American Insurance Company (Zurich) (collectively, the Appellees). Following a hearing, the administrative judge (AJ) entered an opinion awarding Sheffield permanent-disability benefits for a 60% loss of wage-earning capacity. The Appellees appealed the AJ's findings to the full Workers' Compensation Commission (Commission).

         ¶2. The Commission concluded that Sheffield's action of knowingly providing inaccurate information on his employment application with S.J. Louis posed no bar to his claim. In addition, the Commission found apportionment failed to apply to Sheffield's claim. Finally, the Commission concluded that Sheffield experienced no additional loss of wage-earning capacity attributable to his current injury. The Commission therefore reversed the AJ's determination as to that issue. Aggrieved, Sheffield appeals.

         ¶3. No dispute exists that Sheffield sustained a work-related compensable injury while employed by S.J. Louis. The parties dispute, however, whether Sheffield established that he recovered from prior work-related injuries and then experienced a new injury in 2015 that resulted in an additional loss of wage-earning capacity. Like the AJ, we find Sheffield presented substantial evidence to support his claim as to this issue. In reaching its decision, the Commission appeared to overlook the totality of the evidence presented and to rely only on select evidence that dismissed the possibility of an additional loss of wage-earning capacity simply because Sheffield's new injury returned him to his prior baseline abilities and an even lower impairment rating. However, the fact Sheffield's impairment rating from his 2015 back injury was lower than his prior impairment rating did not automatically foreclose the possibility that he suffered an additional loss of wage-earning capacity, and Sheffield provided substantial evidence to support this position.

         ¶4. Because substantial evidence supported the AJ's finding that Sheffield suffered an additional loss of wage-earning capacity, and because the Commission appeared not to consider the totality of the evidence before it in reversing the AJ's decision as to this issue, we find the Commission's reversal to be arbitrary and capricious. See Pulliam v. Miss. State Hudspeth Reg'l Ctr., 147 So.3d 864, 868 (¶16) (Miss. Ct. App. 2014) (discussing the standard of review applicable to workers' compensation cases). We therefore reverse the Commission's judgment as to Sheffield's loss of wage-earning capacity so that on remand the Commission may consider all the evidence fully and determine whether, despite the now lower impairment rating, Sheffield's new injury resulted in any additional loss of wage-earning capacity.

         FACTS

         ¶5. At the time of Sheffield's June 1, 2015 injury, he had worked seven months for S.J. Louis as a truck driver. Prior to his 2015 back injury, Sheffield suffered two other work-related injuries. In 1990, during his employment with Dibs Chemical Company, Sheffield fell while moving a dolly loaded with fifty-pound bags of sand. Due to the fall, Sheffield injured his lower back and ultimately required a lumbar fusion. About a year and a half after his back surgery, Sheffield's doctor released him to return to work. Sheffield testified that he fully recovered from the 1990 back injury and related surgery.

         ¶6. In 2010, while employed by Warren Paving, Sheffield injured his neck during a work- related automobile accident. Sheffield underwent surgery to fuse the C6 and C7 vertebrae in his neck. On October 24, 2011, Sheffield's treating physician, Dr. Eric Wolfson, placed Sheffield at maximum medical improvement (MMI) and released Sheffield to return to work with light-duty restrictions. Dr. Wolfson assigned Sheffield an 8% impairment rating to the body as a whole.

         ¶7. Sheffield petitioned the Commission for approval to settle the claim arising from his 2010 neck injury. The Commission granted Sheffield approval to receive $95, 000 from Warren Paving and its insurance carrier and $50, 000 from the third-party tortfeasor involved in the accident. In his sworn petition for approval of the third-party settlement, Sheffield acknowledged that Dr. Wolfson had limited him to light-duty work after the 2010 accident and that the settlement included compensation for any loss of wage-earning capacity he experienced due to the 2010 neck injury.

         ¶8. After Dr. Wolfson released him to return to work following his 2010 neck injury, Sheffield again sought employment as a commercial truck driver. In October 2014, S.J. Louis hired Sheffield. On his employment application, Sheffield purposely failed to disclose his prior injuries and surgeries and his light-duty work restriction. He also falsely stated on the application that he had finished high school. At the hearing before the AJ, Sheffield admitted that he falsified his application answers because the truth would have disqualified him from the truck-driving position. He further testified, however, that he believed he was capable of performing the job since it required no lifting or bending. Sheffield's duties for S.J. Louis included, but were not limited to, ensuring his truck was not overloaded, being on-site as needed, flagging traffic, and hauling loads. To obtain his commercial driver's license, Sheffield had to pass a physical examination, which he testified required him to lift at least seventy pounds, demonstrate good eyesight and hearing, and be in overall good health. During the seven months prior to his June 1, 2015 injury, Sheffield performed his work duties without any reported incidents. He received $15 an hour for the first forty hours a week that he worked. Sheffield testified that he then received time and a half for any hours he worked after forty hours a week and that he typically worked sixty to seventy hours a week.

         ¶9. On June 1, 2015, Sheffield lost his balance when he attempted to look into the back of his dump truck. Although Sheffield grabbed a handle on the side of his truck to steady himself, he still missed the step beneath him. Sheffield experienced immediate lower-back pain, which he reported to his supervisor, Max Hardin. Hardin then reported the injury to his supervisor, Telley Lopez, who took Sheffield to see Dr. Rickey Chance. Dr. Chance ordered X-rays of Sheffield's back and prescribed Sheffield pain medicine and muscle relaxers. Sheffield participated in physical therapy but had to stop due to increased pain. He followed up with Dr. Chance, who recommended an MRI and referred Sheffield to Dr. Wolfson.

         ¶10. On August 13, 2015, Sheffield saw Dr. Wolfson, who then referred him to Dr. Samir Tomajian, a pain-management specialist. After treatment methods provided minimal or temporary pain relief, Sheffield underwent a functional-capacity evaluation (FCE). The physical therapist who performed the FCE recommended that Sheffield perform only light-duty work and limit standing and sitting for prolonged time periods. On October 27, 2015, Dr. Eric Amundson performed an employer medical evaluation (EME) on Sheffield. Dr. Amundson found Sheffield could return to work in a moderate-duty capacity, but he recommended that Sheffield lift no more than forty pounds.

         ¶11. In February 2016, Dr. Wolfson found that Sheffield had reached MMI for his 2015 back injury. Sheffield testified Dr. Wolfson stated he could do nothing else and did not recommend surgery for Sheffield. Dr. Wolfson assigned Sheffield a 7% impairment rating to the body as a whole and stated Sheffield was capable of performing light-duty work. After Dr. Wolfson released Sheffield to return to work, Sheffield began completing job applications in May 2016. Sheffield applied for at least 130 jobs and even contacted Hardin, his former supervisor at S.J. Louis. S.J. Louis informed Sheffield, however, that it had no job openings.

         ¶12. On August 26, 2016, Dr. Rahul Vohra conducted an independent medical evaluation (IME) on Sheffield. Dr. Vohra concurred with Dr. Wolfson's finding that Sheffield had reached MMI on February 19, 2016. Dr. Vohra noted Sheffield's 7% whole-person impairment rating for the 2015 back injury as well as his preexisting whole-person impairment rating for his lumbar spine. Dr. Vohra concluded that "in light of no ...


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