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ITTA Bena Plantation III v. Gates

Court of Appeals of Mississippi

August 13, 2019

ITTA BENA PLANTATION III AND BENCHMARK INSURANCE COMPANY APPELLANTS/ CROSS-APPELLEES
v.
RAYMOND L. GATES APPELLEE/ CROSS-APPELLANT

          DATE OF JUDGMENT: 05/30/2018

          MISSISSIPPI WORKERS' COMPENSATION

          ATTORNEY FOR APPELLANTS: LORALEIGH CHRISTINE PHILLIPS

          ATTORNEY FOR APPELLEE: JOSEPH RODNEY FRANKS

          BEFORE CARLTON, P.J., GREENLEE AND McCARTY, JJ.

          McCARTY, J.

         ¶1. In this appeal, we must determine whether the Mississippi Workers' Compensation Commission erred in calculating loss of wage-earning capacity when awarding Raymond L. Gates permanent partial disability benefits. Finding that the Commission's decision was supported by substantial evidence, we affirm. As to Gates's issues on cross-appeal, we also affirm the Commission's decision.

         PROCEDURAL HISTORY

         ¶2. Gates suffered a work-related back injury while employed as a tractor driver for Itta Bena Plantation. Gates's employer stipulated that the injury was compensable and that his average weekly wage at the time was $718.05. After a hearing, the administrative judge (AJ) found that Gates had suffered a 75% loss of wage-earning capacity. The AJ awarded Gates $359.02 per week in permanent partial disability (PPD) benefits beginning July 13, 2015, for 450 weeks. The Employer appealed to the Commission, which affirmed the AJ's findings.

         ¶3. The Employer appealed, arguing that the Commission erred in (1) calculating Gates's loss of wage-earning capacity, and (2) interpreting medical evidence regarding Gates's permanent work restrictions.

         ¶4. Gates cross-appealed, arguing the Commission erred by (1) not finding him permanently totally disabled; (2) finding the Employer rebutted the presumption of permanent total disability (PTD); (3) permitting the deposition of the vocational expert, Angela Malone, in lieu of her testimony; (4) denying his motion to strike Malone's report; and (5) relying upon Malone's testimony.

         FACTS

         ¶5. After his injury, Gates initially sought medical treatment from a local hospital. Later, he was treated by both Dr. Rahul Vohra, a physical medicine specialist, and Dr. Jack Moriarity, a neurosurgeon. Gates was diagnosed with fractures to his lumbar spine, a broken rib, and significant multilevel lumbar stenosis. Dr. Vohra and his nurse practitioner, Alice Messer, treated Gates for his injuries for about one year. The treatment involved prescribing physical therapy and pain medication. According to Dr. Vohra, Gates reached maximum medical improvement (MMI) on July 13, 2015. Dr. Vohra assigned permanent work restrictions to light duty, which constituted lifting up to thirty pounds rarely and up to twenty pounds occasionally. Dr. Vohra determined that Gates had a 7% impairment rating to his body as a whole.

         ¶6. Later, Dr. Howard Katz conducted an independent medical evaluation (IME) on Gates. He agreed with Dr. Vohra's 7% impairment rating. But Dr. Katz determined that Gates was capable of performing medium-duty work. Gates saw Dr. Vohra and Messer twice after undergoing the IME. On both occasions, ...


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