IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI 2015-WC COA MWCC # K-9582

Transcription

1 E-Filed Document Oct :24: WC COA Pages: 21 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI 2015-WC COA MWCC # K-9582 CYNTHIA JOHNSON APPELLANT VS CITY OF JACKSON APPELLEE ON APPEAL FROM THE MISSISSIPPI WORKERS COMPENSATION COMMISSION BRIEF OF THE APPELLEE Counsel for the Employer and Carrier Carrie Johnson, MSB # 9839 City of Jackson Office of the City Attorney Post Office Box 2779 Jackson MS Telephone: Facsimile: johnsonc@city.jackson.ms.us Counsel for the Claimant Christopher Neyland, MSB # East Capitol Street, Ste. 777 Jackson MS Telephone: Facsimile:

2 TABLE OF CONTENTS Page Certificate of Interested Persons Table of Authorities i ii Statement of the Issues 1 Statement of the Case 2-3 Summary of the Argument 4 Argument 5-11 Conclusion 12 Certificate of Service 13

3 CERTIFICATE OF INTERESTED PERSONS The undersigned counsel of record certifies that the following listed persons have an interest in the outcome of this case. These representations are made in order that the Administrative Law Judge and the Commission may evaluate possible disqualification or recusal: Tony Yarber, Mayor City of Jackson Ashby Foote, Councilman City of Jackson Margaret Barrett Simon, Councilman City of Jackson Kenneth Stokes, Councilman City of Jackson Charles Tillman, Councilman City of Jackson Tyrone Hendricks, Councilman City of Jackson Melvin Priester, Councilman City of Jackson DeKeither Stamps, Councilman City of Jackson John Anderson, Risk Manager City of Jackson Cynthia Johnson, Claimant Christopher Neyland, Claimant s Attorney Melba Dixon, Administrative Law Judge Mississippi Workers Compensation Commission Liles Williams, Chairman, Mississippi Workers Compensation Commission Thomas Webb, Commissioner Mississippi Workers Compensation Commission

4 Beth Harkins Aldridge, Commissioner, Mississippi Workers Compensation Commission Certified by Carrie Johnson, attorney for the City of Jackson, Mississippi.

5 TABLE OF AUTHORITIES STATUTES Page # MCA (1) 13 CASES Cooper v Miss. Dept. Rehab. Serv., 937 So.2d 51 (Miss. Ct. App. 2006) 10 Pepsi Cola Bottling Co. v Long, 362 So. 2d 182 (Miss. S.Ct. 1978) 8 Shipp v Betts, 13 So.3d 332 (Miss. Ct. App. 2009) 7,11 Smith v Nissan North America, 102 So. 3d 321 (Miss. App. 2012) 9 ii

6 STATEMENT OF THE ISSUES The Claimant filed a Petition with the Mississippi Workers Compensation Commission 1 alleging that she sustained injury on January 21, 2011 as a result of repetitive use of her upper extremities and indicated that the injury was progressive. Claimant also alleged that she suffered the injuries of ulnar neuropathy and depression on January 21, The Employer and Carrier have denied the occurrence of the injuries. The issues before the Commission is whether the Claimant sustained a compensable injury on January 21, Inherent in the determination of whether the Claimant sustained a compensable injury on January 21, 2011 is also a resolution of the question of whether the statute of limitations for Claimant s injuries began to run in June 2008 when she was initially diagnosed with carpal tunnel syndrome and there was an indication that ulnar neuropathy should be considered. Page 1 1 The Claimant also filed a Petition with the Commission at or near the time that she filed the Petition alleging the January 21, 2011 injury alleging that she sustained similar injuries on June 6, The Commission dismissed the claim alleging the June 6, 2008 injury based on the running of the statute of limitations. The Claimant appealed to the Mississippi Supreme Court, and the appeal was dismissed by the Mississippi Supreme Court for failure to file a brief.

7 STATEMENT OF THE CASE On or about November 21, 2011, the Claimant filed a Petition to Controvert with the Commission alleging that she sustained a repetitive use injury to her upper extremities on January 21, Subsequently, the Claimant filed two additional petitions amending the initial petition alleging that her injury was progressive and further alleging that she sustained the additional injuries of bilateral carpal tunnel syndrome, ulnar neuropathy, and depression on January 21, The Employer and Carrier filed an Answer denying the occurrence of any compensable injuries and asserted that the Claimant s claim was time barred. On May 21, 2014, the Employer and Carrier filed a Motion to Dismiss the Claimant s claim and contended that the time for the running of the statute of limitations commenced to run with respect to the injuries on June 6, 2008 when the Claimant was diagnosed by Stephen Coachys, MD with carpal tunnel syndrome. A hearing on the Motion to Dismiss was held on July 28, 2014 in which evidence and arguments on the record were received. At the close of the hearing, the Administrative Law Judge requested that the parties submit briefs supporting their respective positions prior to issuance of a ruling within forty five (45) days. The Employer and Carrier submitted a brief, but the Claimant did not do so. The Administrative Law Judge entered her order on November 17, The Administrative Judge indicated that the Claimant s claim for depression was time barred, but not the claim for complex regional pain syndrome and ulnar neuropathy. It appears that the Administrative Law Judge also concluded that the claim for carpal tunnel syndrome was time barred and dismissed though not definitively set forth in the order. The Employer and Carrier filed a timely Petition for Review of the Administrative Law Page 2

8 Judge s Order, and the Claimant filed a Cross-Petition for Review before the Full Commission because it was not clear whether the claim for carpal tunnel was dismissed as being time barred. The Full Commission requested oral argument from the parties which occurred on April 6, In accordance with the Commission s rules, the Employer and Carrier timely filed a written brief prior to the oral argument. The Claimant filed a written letter brief but the same was stricken by the Commission for being untimely. The Commission affirmed the Administrative Law Judge in part and reversed her in part and concluded that all of Claimant s claims were time barred. Page 3

9 SUMMARY OF THE ARGUMENT There is substantial evidence in the record to support the Commission s finding that the Claimant s claims related to carpal tunnel syndrome, depression, ulnar neuropathy, and complex regional pain syndrome were time barred. Page 4

10 ARGUMENT Facts The Claimant, Cynthia Johnson was hired on or about April 13, 2003 by the City of Jackson s Municipal Court as a deputy clerk. She visited Dr. Stephen Coachys on June 6, 2008 and was diagnosed with a positive Tinel and Phalen sign. Based on the aforementioned, a nerve conduction study was performed on June 9, On June 20, 2008, the Claimant was advised by Dr. Coachys that she needed carpal tunnel surgery but refused same. Dr. Coachys later indicated that the reference in the record to need carpal tunnel surgery meant she needed a consult to determine if surgery was necessary. The Claimant refused the consult. On or about February 13, 2011, the Claimant was evaluated by Dr. Chris Etheridge, MD of Mississippi Sports Medicine after being referred by Dr. Coachys. She reported that she had numbness in hands, cramps, and pain in the wrist. She noted that the injury or problem began on June 6, Because the Claimant was not pleased with Dr. Etheridge s demeanor, she returned to Dr. Coachys, and he referred her to Dr. David Gandy, MD. The Claimant s initial visit with Dr. Gandy occurred on March 2, The Claimant reported to Dr. Gandy that her problem started on June 6, The Claimant had surgery in April 2011 and was eventually referred to Dr. Leon Grigoryev, MD. The Claimant reported to Dr. Grigoryev that she was injured on June 6, 2008 On or about January 21, 2011, the Claimant reported to the Employer that she sustained an injury on June 6, The Claimant did not report to the Employer and Carrier the occurrence of an injury on January 21, 2011 as alleged in the Petition to Controvert. On or about November 21, 2011, the Claimant filed a Petition to Controvert alleging that Page 5

11 she sustained a repetitive use injury to both upper extremities on January 21, The Claimant subsequently filed amended petitions alleging that the injury was progressive and additional injuries of bilateral carpal tunnel syndrome, ulnar neuropathy, and depression. The Employer and Carrier timely filed an Answer denying the occurrence of a compensable injury and asserted as a defense that the Claimant s claim was time barred pursuant to Section of the Mississippi Code. The Commission agreed and dismissed the claims. ANALYSIS OF THE ISSUES I. Did the Commission err by finding that the Claimant s claims of carpal tunnel syndrome, ulnar neuropathy and depression became apparent in 2008 and were time barred? The Claimant contends that she reported the carpal tunnel injury to her employer on or about January 21, 2011 by completing a Personal Injury Report but did not report that the injury 2 occurred on June 6, Transcript Hearing Motion to Dismiss Page 57 Lines and Page 58 Lines Claimant contends that the injury date was inserted by the Employer and Carrier. Transcript Hearing Motion to Dismiss Page 58 Lines The Employer and Carrier deny Claimant s assertions. Nevertheless, even if a representative of the Employer and Carrier inserted the injury date, it is consistent with the date provided by Claimant to Dr. Etheridge, Dr. Gandy, and Dr. Grigoryev as the date of injury or commencement of her problem with carpal tunnel. See General Exhibits 1, 2, 5. The Claimant did not report as her injury date January 21, 2011 to either Dr. Etheridge, Dr. Gandy, or Dr. Grigoryev. Claimant was evaluated by all Page 6 2 The Employer and Carrier admit that it received a Personal Injury Report signed by the Claimant on January 20, 2011, which contained or described the injury date as June 6, Erroneously, the Employer and Carrier began paying benefits and providing medicals.

12 of the aforementioned physicians after January 21, 2011 and could have stated to each that she was injured on January 20, 2011 but reported that the condition arose on June 6, The Claimant was diagnosed with carpel tunnel syndrome on June 6, Carpal tunnel syndrome is a latent or progressive infirmity. A progressive injury occurs when the claimant is aware that he acquired an injury that is work related. Shipp vs Betts, 13 So.3d 332, 334 (Miss. Ct. App. 2009). The time for filing a compensation claim under the two year statute of limitations when an injury is latent or progressive runs from the time a compensable injury becomes reasonably apparent. Shipp v. Betts, 13 So.3d at 334. In Shipp v. Betts, the Claimant worked as a warehouse worker for five (5) years. During the fourth year of her employment on March 17, 2003, the Claimant was diagnosed with carpal tunnel syndrome but did not miss days of work because of the injury. The Claimant was subsequently discharged for not keeping up with production and for being late on July 28, On May 2, 2005, the Claimant filed a Petition to Controvert alleging that she sustained a compensable injury on July 28, The Commission determined that the two year statute of limitation precluded Shipp s claim, and the decision was affirmed on appeal to the Court of Appeals. The present case is analogous to Shipp. Dr. Stephen Coachys diagnosed Johnson with carpal tunnel syndrome on June 20, 2008, and he recommended surgery or that she be evaluated for surgery. The Claimant refused and delayed evaluation until January See Dr. Stephen Coachys deposition Gen Exhibit 3 (Page 21 Lines and Page 22 Lines 1-15). The Claimant was also diagnosed with depression on June 20, 2008 and had begun treatment. Dr. Stepen Coachys deposition (Page 19 Lines 21-25, Page 20-21). Page 7

13 The Claimant reported to the Employer and Carrier on January 21, 2011 that she had carpal tunnel syndrome. The Claimant did not report any injury other than carpal tunnel syndrome. The Claimant reported the carpal tunnel injury more than two (2) years after the diagnosis and did not file a Petition to Controvert until more than three (3) years had elapsed since the diagnosis. Certainly, if the Betts Claimant s petition filed twenty six (26) months after the carpal tunnel syndrome was diagnosed was considered untimely, then Johnson s petition filed more than thirty six (36) months after the carpal tunnel was diagnosed is untimely. Claimant s counsel has argued that the Commission erred in finding that the Claimant s condition was reasonably apparent on June 6, 2008 because Dr. Coachys did not relate the condition to the work in In support of the argument, Claimant s counsel cites Brown vs Illinois Toolworks Inc., 135 So. 3d 161, 165 (Miss. Ct. App. 2013). Claimant s counsel states that the earliest time a physician could have related the carpal tunnel syndrome and ulnar neuropathy to the work of Johnson was March 2, 2011 when she visited with Dr. Gandy. The argument of Claimant s counsel fails because (1) the Claimant apparently had an awareness of a causal work connection prior to the visit to Dr. Gandy since she reported an injury to the employer in January 2011; and (2) Dr. Gandy testified that he did not discuss causation with the Claimant. See General Exhibit 4 Page 32 Lines and Page 33 Lines 1-9. Notwithstanding the fact that the Claimant reported the carpal tunnel injury to the employer in January 2011 prior to the visit to Dr. Gandy, reasonable diligence must be exercised by the Claimant in order to confirm the occurrence of a compensable injury. Pepsi Cola Bottling Co. vs Long, 362 So.2d 182, 184 (Miss. S. Ct. 1978)(citing Tabor Motor Co. vs Garrard, 233 So. 2d 811, 814 (Miss. 1970). The Claimant Johnson did not exercise reasonable diligence because Page 8

14 she refused the recommendation of Dr. Coachys to consult with an orthopaedic for the carpal tunnel and ulnar neuropathy condition for a period of three (3) years. The record clearly indicates that the Claimant saw Dr. Coachys in June 2008 and was diagnosed with depression for which treatment commenced. General Exhibit 4 Dr. Gandy s Deposition Page 19 Lines and Page 20 Lines 1-3. The Claimant also had a nerve conduction study in which carpal tunnel syndrome and the possibility of ulnar neuropathy were noted but data did not localize. The fact that the data did not localize did not mean that the Claimant s diagnosis of carpal tunnel syndrome was not confirmed. It meant that the neurologist did not state whether it was at the elbow or in the wrist. See General Exhibit 4 Dr. Gandy s Deposition Page 7 Lines Indeed, Dr. Gandy testified as follows: No. He diagnosed the carpal tunnel syndrome, the nerve testing. What he didn t localize was where the elbow was compressed as I recall. Let s see. Yeah mild median nerve neuropathy at the wrist, possible neuropathy at the left and right ulnar nerves, but that the didn t localize. So the ulnar nerve was not localized, whether it was the elbow or the wrist. The median nerve was localized at the wrist. The record also clearly indicates that Dr. Coachys advised the Claimant that she needed an orthopaedic consult but refused same. Gen. Exhibit 3 Page 21 Lines 7-25 and Page 22 Lines Any ambiguity in the diagnosis concerning the carpal tunnel syndrome and ulnar neuropathy could have been resolved if Claimant had been prudent and followed the recommendation of Dr. Coachys for the orthopaedic consult at the onset. Even more noteworthy is this Court s prior holding stating that the statute begins to run when a condition becomes reasonably apparent not when the diagnosis is confirmed. See Smith v Nissan North America, 102 So. 3d 321, 323 (Miss. Ct. App. 2012) (specifically holding that the Claimant s carpel tunnel syndrome did not have to confirmed before the statute began to run). Page 9

15 The record contains substantial evidence supporting the Commission s finding that the Claimant s carpal tunnel, depression, and ulnar neuropathy injuries were reasonably apparent in June 2008; therefore, the Commission did not err in finding the claims to be time barred. II. Did the Commission err by finding that the complex regional syndrome pain which Claimant later developed following surgery to address the carpal tunnel and ulnar neuropathy did not revive the time barred claims? The Administrative Law Judge concluded that the Claimant s complex regional pain syndrome was not reasonably apparent to the Claimant in June 2008, and the Claimant could not have known that she would develop the condition after she had surgery. As a result, the Administrative Law Judge concluded that the Claimant s claim for complex regional pain syndrome was not time barred. The Commission reversed the administrative law judge on this issue and concluded that the time barred claim could not be revived because the complex regional pain syndrome was an additional consequence of the original injury. Claimant s counsel does not extensively brief the issue before this Court, but at the hearing before the Administrative Law Judge, the Claimant argued or suggested that the date the complex regional syndrome arose controlled and not the date of the occurrence of the original injury - carpal tunnel syndrome. The problem with the assertion of Claimant s counsel is that it is based upon an incorrect interpretation of the law. The statute of limitations for progressive injuries begins to run when a person through the exercise of reasonable diligence knew or should have known of the compensable nature and character of the disease not when subsequent diagnosis concerning related conditions and ailments are made. See Cooper vs Miss. Dept. Rehab. Serv. 937 So.2d 51, 54 (Miss. App. 2006). Carpal tunnel syndrome is considered by the Page 10

16 Court to be a progressive injury. Shipp v. Betts, 13 So. 3d 332, 334 (Miss. App. 2009). Because carpal tunnel syndrome is progressive, the worsening of the condition or the onset of other related conditions during the treatment does not result in a new injury or serve to change the focus of the analysis which is: When should the compensable character of the disease become apparent by a person exercising reasonable diligence?. The Commission determined that the Claimant was presented with sufficient medical information in 2008 to make her aware of the carpal tunnel syndrome and the bilateral ulnar neuropathy, but she did not timely seek consultation regarding the injury until The Claimant had surgery in 2011 and subsequently developed complex regional pain syndrome; however, at this time, the Employer and Carrier had 3 an affirmative defense concerning the statute of limitations which relieved it of the obligation to the Claimant. The evidence in the record supporting the Commission s findings has previously been explained. Because the Claimant had sufficient information concerning the carpal tunnel syndrome and bilateral ulnar neuropathy or through the exercise of reasonable diligence would have acquired information concerning the compensable character of her condition as early as June 2008, the statute of limitations was not tolled because she was diagnosed with complex regional pain syndrome following surgery for the carpal tunnel condition. The Commission did not err when it rejected the argument of Claimant s counsel and declined to allow the Claimant to resurrect the time barred claims on the mere basis that Claimant was not aware that she would develop complex regional pain syndrome when she was initially diagnosed. Page 11 3 The Employer and Carrier erroneously paid benefits and provide some medical services to the Claimant in 2011 prior to the filing of the Petition to Controvert. However, the erroneous payment of the benefits did not preclude the Employer and Carrier from raising the affirmative defense of the statute of limitations, and it did so.

17 CONCLUSION The Claimant was diagnosed with carpal tunnel syndrome and was advised by her physician that the condition may warrant surgery; however, the Claimant declined the orthopaedic evaluation and did not request same until three (3) years after she was diagnosis. The Claimant knew or through the exercise of reasonable diligence should have known of the disabling character of her condition as early as June 20, No medicals or benefits were provided by the Employer and Carrier within the two year period following June 20, 2008, and the Claimant did not file an application for benefits within the two (2) year period. Therefore, the Commission did not err when it dismissed Claimant s claims for carpal tunnel syndrome, ulnar neuropathy, depression, and complex regional pain syndrome as being time barred pursuant to Section of the Mississippi Code. This Court should affirm the Commission because there is substantial evidence in the record supporting its determination. Respectfully submitted The City of Jackson Office of the City Attorney Monica Davis Joiner, City Attorney By /s/ Carrie Johnson MSB # 9839 Page 12

18 CERTIFICATE OF SERVICE I, Carrie Johnson, do hereby certify that I have this day mailed a true and correct copy of the above and foregoing Brief to counsel for the Claimant Christopher Neyland at the following address: 188 East Capitol Street, Ste. 777, Jackson MS th This the 12 day of October Office of the City Attorney Post Office Box 2779 Jackson MS Telephone: Facsimile: /s/ Carrie Johnson Page 13

19

20

21