IN THE COURT OF APPEALS FOR THE STATE OF MISSISSIPPI APPEAL FROM THE MISSISSIPPI WORKER'S COMPENSATION COMMISSION MWCC N0.12 NO.

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1 E-Filed Document Jan :57: WC COA Pages: 9 IN THE COURT OF APPEALS FOR THE STATE OF MISSISSIPPI MJSSISSIPPI PERCY TATE Appellant vs. VS. CAUSE NO WC COA 2014-WC-0I377-COA INTERNATIONAL PAPER SELF INSURED Appellee REPLY BRIEF BRlEF OF APPELLANT APPEAL FROM THE MISSISSIPPI WORKER'S COMPENSATION COMMISSION MWCC N0.12 NO M-0002-C Darryl M. Gibbs, MBS# B. Seth Thompson, MSB B # Chhabra & Gibbs, P.A. Attorneys for Appellee 120 N. Congress St., Suite 200 Jackson, MS

2 IN THE COURT OF APPEALS FOR THE ST A TE OF MJSSISSIPPI PERCY TATE Appellant vs. CAUSE NO WC COA INTERNATIONAL PAPER SELF INSURED Appellee CERTIFICATE OF INTERESTED PERSONS Pursuant to Rule 28. M.R.A.P (a)(l). undersigned does hereby certify that the following listed persons have an interest in the outcome of this case. These representations are made in order that this CoUii may evaluate potential disqualification or recusal. 1) International Paper Self-Insured. Appellee 2) Courtney Davis, Esq. & Markow Walker. P.A.. Attorneys for Jntemational Paper, A Self Insured 3) Percy Tate, Appellant 4) Chhabra & Gibbs, P.A. 5) Rogen K. Chhabra, Esq. 6) Darryl M. Gibbs, Esq. 7) B. Seth Thompson, Esq. 8) Ashley Hendricks. Esq. 9) Candace Mayberry, Esq. 10) Amanda Hill. Esq.

3 Respectfully submitted. Darryl M. Gibbs, MBS# B. Seth Thompson, MSB # Chhabra & Gibbs, P.A. Attorneys for Appellee 120 N. Congress St., Suite 200 Jackson, MS 3920 I Isl Danyl M. Gibbs Darryl M. Gibbs ii

4 TABLE OF CONTENTS TABLE OF AUTHORlTIES Cases "... IV ARGUMENT... 1 I. Claimant Percy Tate has proven every element of his claim necessary to support a finding of compensability II. Claimant Percy Tate was not required 10 provide expert medical testimony on the issue of whether a work injury or work injuries occurred l CONCLUS ion

5 TABLE OF AUTHORITIES Mississipoi Supreme Court Bechlel Corp. v. Phillips, 591 So.2d 814, (Miss. 1991) Cole v. SlIperior Coach Corp., 106 So.2d 71 (Miss. 1958) Parker v. Uniled Gas Corporalion, 127 So.2d 438, 439 (Miss. 1961) Shorl v. I Vilson Meal HOllse, 36 So.3d 1447 (Miss. 2010) Mississippi Court of Appeals Johnson v. Sysco Food Services. 122 So.3d 159 (M iss. App. 2013)... 2 iv

6 ARGUMENT J. Claimant Percy Tatc bas proven every element of his claim necessary to support a finding of compensability. At a minimum, Mr. Tate has created aprima!acie showing that he suffered a workrelated injury while employed with International Paper. The Full Commission's decision should now be reversed and remanded (0 the Administrative Judge for a detennination on Mr. Tate's indemnity and medical benefits, after he has been evaluated by hi s elected choice of physician, and after that physici an has rendered an opinion on the nature and extent of temporary total and pennanenl disability, as well as the necessity afaoy future medical treatment. The Em ployer and Carrier, throughout its Brief. indicates that causation in workers' compensation claims must be proven by expert medicaltcstimony. This is simply untrue. As was discussed in the Brief of Appellant. the oruy issue at Mr. Tate's hearing on compensability was whether or not a work injury or work injuries occurred. An anempt to relate causation by correlating a work injury to whatever Mr. Tate'S disability wi ll be (as detennined by ex pen medical testimony) is premature at this time. The evidence presented 10 the Administrative Judge at a hearing on the sole issue of whelher or noi a work injury or work injuries occurred, overwhelm ingly supported the Administrative Judge's finding that Mr. Tate did. in fact, suffer a work-related injury or injuries, and the Full Commission's reversal or thai finding was in error. II. Claimant Percy Tate was not required to provide expert medical testimony on the issue of whether a work injury or work injuries occurred, In looking for authority to support its position that expert testimony is required in order for a Claimant to win a hearing on compensability. the Employer and Carrier cite to several cases, all of which are distinguishable from that of Mr. Tate's. For instance, Appellee refers this Court to Cole v. Superior Coach Corp., as well as Short v. Wilson Meat House, both of which were di scussed in Appellant's Brief. 106 So.2d 71 (Miss. 1958) and 36 So.3d 1447 (Miss. 2010) 1

7 respectively. Again. those cases involved conflicting medical and/or conflicting testimonial evidence. as well as complex medical questions for which the a medical expen was needed to clarify the complex medical issue and its relatedness to a work injury, or to serve as the "tiebreaker;' if you will, for conflicting testimony. The Employer and Canier also direct this Coun to Johnson \'. Sysco Food Services. but fail to fully address the underlying facts of that panicular situation. 122 So.3d 159 (Miss. App. 20 \3). [n Johnson, the Claimant reponed to his medical provider with complaints of knee pain and. in doing so, specifically denied that his injury occurred at work and. in fact, provided an alternate cause of his injury - running. Jd. at 161. Likewise. in Bechtel Corp. v. Phillips. the Claimant provided a history to his physician that he had been hun at home. and not at work. 591 So.2d (Miss. 1991). In another case relied on by the Employer and Carrier, the Commission's decision to deny benefits was upheld by the Mississippi Supreme Court, but only after the Court noted. in its opinion that the claimant "admined on several occasions that no accident or incident had occurred on the job which could have caused or aggravated or precipitated his condition." Parker v. United Gas Corportllion, 127 So.2d 438, 439 (Miss. 1961). Mr. Tate's claim is like none of the cases on which the Employer and Carrier re ly. He never indicated to any physician. or to any lay person for that matter, that his injuries occurred anywhere other than at work. thus obviating the need for any type of expen medical opinion on whether he had. in fact, suttered a work-related injury. Mr. Tate reponed his injury to his physician, and he reported his injury to his employer. He has sustained the requisite proof to demonstrate that he suttered a work injury, and lhe Full Conunission's Order finding otherwise was III error. 2

8 CONCLUSION The Full Conunission erred in finding that Mr. Tate did not suffer a compensable, work related injury. No expert medical opinion was required to determine the sole issue at hearing - did a work injury or work injuries occur? The overwhelming evidence. as relied on by the Administrative Judge present at the hearing answered that question affirmatively, and there was no evidence presented that could support a finding to the contrary. The Full Commission's Order should be reversed, and this claim remanded to the Administrative Judge for a determination on Mr. Tate's indemnity and medical benefits. DATED this. the day of January, Respectfully Submitted, PERCY TATE, Claimant Isl Darrvl M Gibbs BY: Darryl M. Gibbs A TIORNEY FOR CLAIMANT Darryl Gibbs (MSB #100232) Seth Thompson (MSB # I 03887) CHHABRA, & GIBBS, P.A. 120 No1th Congress Street. Suite 200 Jackson. Mississippi 3920 I Telephone: (601) Facsimile: (601) sthompsonl@cglawms.com dgi bbs@cglawms.com 3

9 CERTIFICATE OF SERVICE I, Darryl Gibbs, do hereby certify that J have this day delivered a true and correct copy of the above. foregoing Reply Brief of Claimant in a manner prescribed by law to: Courtney Davis, Esq. Markow Walker. P.A. P.O. Box Jackson, MS This the 3 l5 1 day of January Isl Darryl J\1. Gibbs Darryl M. Gibbs 4