Wade Short v. Wilson Meat House, LLC ( 2008 )

IN THE SUPREME COURT OF MISSISSIPPI
NO. 2008-CT-01224-SCT
WADE SHORT
v.
WILSON MEAT HOUSE, LLC AND
BRIDGEFIELD CASUALTY INSURANCE
COMPANY
ON WRIT OF CERTIORARI
DATE OF JUDGMENT: 06/30/2008
TRIAL JUDGE: HON. LAMAR PICKARD
COURT FROM WHICH APPEALED: COPIAH COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: JOHN HUNTER STEVENS
ATTORNEY FOR APPELLEES: PETER L. CORSON
NATURE OF THE CASE: CIVIL - WORKERS’ COMPENSATION
DISPOSITION: THE JUDGMENT OF THE COURT OF
APPEALS IS REVERSED. THE DECISION
OF THE MISSISSIPPI WORKERS’
COMPENSATION COMMISSION IS
REINSTATED AND AFFIRMED - 06/17/2010
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC.
DICKINSON, JUSTICE, FOR THE COURT:
¶1. The Mississippi Workers’ Compensation Commission denied an employee’s claim.
The Circuit Court of Copiah County, sitting as an appellate tribunal, affirmed. The Court of
Appeals reversed. We granted certiorari and now reverse the Court of Appeals and reinstate
the Commission’s decision.
FACTS AND PROCEDURAL HISTORY
¶2. For approximately twenty-eight years, Wade Short worked at Wilson’s Meat House,1
a slaughterhouse and retailer of meat, meat products (such as sausage), and other foods.2 In
addition to his regular duties in the meat-processing area, Short regularly filled in for
vacationing coworkers on the “kill floor,” where the slaughtering was done and where the
wages were higher.
¶3. On December 1, 2005, Jack Wilson, Jr. (whose family owned Wilson’s) received, for
Christmas, a large wooden desk which had been built by Mike Welch, who was Short’s
supervisor. Several employees, including Welch and Willie Keyes, unloaded the desk,3 which
weighed 150 to 200 pounds, from a truck. Short claims that as he was helping carry the desk,
he heard a popping sound in his neck. He claims he told Welch, who called him a wimp and
told him to carry the drawers. The workers removed the drawers and turned the desk on its
side to move it through a door.
¶4. When Short got home, he told his wife that he was in great pain. They decided that
he should go to the hospital. Short’s statements on the timing of the events that followed
were inconsistent,4 but according to hospital records, he went to the emergency room on
December 12, 2005. X-rays showed several problems, including two herniated discs. Short
1
Although this case is styled “Wade Short v. Wilson Meat House, LLC and Bridgefield
Casualty Insurance Company,” the name of the employer is actually Wilson’s Meat House, LLC.
2
Bridgefield Casualty Insurance Company, Wilson’s workers’ compensation insurance
carrier, is the co-respondent in this action.
3
Contrary to the testimony of several employees, Short testified he also was involved in
helping move the desk.
4
Short, who is illiterate, stated that he was “not good with dates.”
2
was given a prescription for pain medication and – because he had missed a day of work to
go to the hospital – a doctor’s excuse. The excuse allowed him to return to work the
following day, but limited him to lifting no more than five pounds.
¶5. The next day, Short resumed his usual duties at Wilson’s, despite the lifting limitation.
He said he gave the work excuse to Tammy Wilson Stowe,5 who handled employee-related
clerical matters for Wilson’s. Stowe testified she saw the document from the doctor, but did
not notice the restriction.
¶6. Short made several contradictory statements concerning the onset of his pain. During
a January 9, 2006, followup visit to his doctor, Short stated that he had been experiencing
neck pain radiating into his left leg and arm for three months (meaning since early October,
2005). During a January 11, 2006, physical therapy session, Short said that his pain began
on December 16, 2005, when he helped lift a desk at work. On February 20, 2006, Short
claimed to medical personnel that he had been having left arm pain for two and a half years,
and that he had new pain between his shoulder blades that radiated into his left side.
¶7. Short returned to the doctor several times during the spring and summer of 2006. On
July 31, 2006, during a presurgery doctor visit, he said that numbness in both hands — which
he claimed had begun in December 2005 because of heavy lifting — was causing him to drop
things. On August 9, 2006, a neurosurgeon fused several of Short’s vertebrae.
¶8. On August 29, 2006, Short filed a Petition to Controvert with the Mississippi
Workers’ Compensation Commission, alleging that Wilson’s had failed “to notify insurance
[carrier] of claim and pay benefits required by Act.” He also filed a motion requesting
5
Stowe is a member of the Wilson family.
3
“emergency relief,” stating that he was in straits following surgery, unable to buy food and
other necessities.6 For reasons unexplained in the record, a hearing on the motion that was
scheduled for November 27, 2006, was canceled and rescheduled for December 1, 2006.
¶9. Another notice found in the record scheduled a hearing “on the merits” for January
12, 2007. Although the record contains a transcript of a hearing held on that date, nothing in
the record indicates that more than one hearing was held.
¶10. At the hearing, witnesses provided conflicting accounts of whether Short helped carry
the main part of the desk, or just the drawers. Ultimately, all the witnesses except Short stated
that they could not remember. All except Short agreed that he had carried the drawers at
some point. Short, however, said he and another employee had carried the desk itself.
¶11. Short testified that — although he had experienced back problems before the desk-
moving incident — the pain had never been severe enough to prevent him from working. He
said that he had managed it with pain pills. According to Short, even though he told his
supervisor and coworkers he was in pain, he was not given light duty. Other witnesses
testified that Short never had said his pain was bad enough to restrict his work; that he did
not seem to be impaired; and that he regularly had requested work on the kill floor which,
while physically difficult, paid more than other work in the plant. At the time of Short’s
alleged injury, his pay averaged $460.02 a week.
¶12. Several witnesses, including Short, testified about Short’s activities away from
Wilson’s. Short testified that his wife had an arrangement with the owner of a self-storage
6
This motion was styled as “Motion to Compel Payment of Temporary Total Disability
Benefits and Medical Treatment.” Within the text of the motion is the phrase: “this Motion for
Emergency Relief.”
4
warehouse to clean out units when renters vacated and left things behind. She kept the items
— which ranged from large appliances such as refrigerators to small goods such as shirts —
and sold them. Witnesses said that Short sometimes brought small items to Wilson’s to sell
to coworkers, but no one could recall seeing him bring large ones. Short testified that he had
never cleaned out storage units on a regular basis. It was his wife’s enterprise, and he had
merely helped sometimes. He said that he had never injured his back doing so. Welch and
Keyes, however, testified that Short and his wife were both actively involved in cleaning out
storage units.
¶13. Witnesses, including Short, testified about an incident in the spring of 2006 wherein,
as Short was unloading a horse from a trailer, something startled the horse, and it bolted. By
Short’s account, he wrapped the horse’s lead rope around a basketball goal post to restrain
it. Other witnesses described Short being dragged around for several minutes before he got
the animal under control.
¶14. The administrative law judge issued an Opinion and Order on April 20, 2007, denying
Short’s claim. Short had been injured, the judge wrote, but he had not offered proof that his
injury was work-related. Notably, Short failed to introduce evidence from a physician on the
causation issue. Attempting to correct that deficiency, Short filed a Motion to Supplement
the Record before the Commission. Without explanation, the Commission denied the motion
and affirmed the ALJ’s ruling.
¶15. Short appealed to the Circuit Court of Copiah County, which affirmed. The Court of
Appeals reversed, finding substantial evidence in the record to support Short’s claim,
5
especially in light of the caselaw that states that doubtful cases should be decided in favor
of compensation. Wilson’s petitioned for a writ of certiorari, which we granted.
ANALYSIS
I.
¶16. The scope and standards of review for workers’ compensation cases are well-
established. First, this Court reviews the decision of the Commission, not that of the ALJ,
the circuit court, or the Court of Appeals. Delta CMI v. Speck, 586 So. 2d 768, 773 (Miss.
1991) (quoting Vardaman S. Dunn, Mississippi Workmen’s Compensation § 286 n.39 (1982)
(“[W]hile appeals to the Supreme Court are technically from the decision of the Circuit
Court, the decision of the commission is that which is actually under review for all practical
purposes.”)).
¶17. Second, four disjunctive rules govern our review of an agency’s conclusions. They
must “remain undisturbed unless the agency’s order; (1) is not supported by substantial
evidence, (2) is arbitrary or capricious, (3) is beyond the scope or power granted to the
agency, or (4) violates one’s constitutional [or statutory] rights.” Public Employees’ Ret. Sys.
v. Dearman, 846 So. 2d 1014, 1018 (Miss. 2003) (quoting Miss. State Dep’t of Health v.
Natchez Cmty. Hosp., 743 So. 2d 973, 976 (Miss. 1999)) (brackets in original).
¶18. This Court has explained the first of these rules, the “substantial evidence standard,”
as follows:
[R]eview is limited to a determination of whether or not the decision of the
commission is supported by substantial evidence. If so, the decision of the
commission should be upheld. . . . The Supreme Court . . . acts as a court of
review and is prohibited from hearing evidence or otherwise evaluating
evidence and determining facts.
6
Speck, 586 So. 2d at 772-73 (citing Georgia-Pacific Corp. v. Veal, 484 So. 2d 1025 (Miss.
1986); Bruton v. Miss. Workmens’ Comp. Comm’n, 253 Miss. 694, 178 So. 2d 673 (1965);
Dunn at § 272).
¶19. Though “not easily defined,” id. at 773,
[s]ubstantial evidence . . . means something more than a “mere scintilla” of
evidence, and that it does not rise to the level of “a preponderance of the
evidence.” It may be said that it “means such relevant evidence as reasonable
minds might accept as adequate to support a conclusion. Substantial evidence
means evidence which is substantial, that is, affording a substantial basis of
fact from which the fact in issue can be reasonably inferred.”
Id. (citing United States v. Harper, 450 F.2d 1032 (5th Cir. 1971) quoting Johnson v.
Ferguson, 435 So. 2d 1191 (Miss. 1983)); Babcock & Wilcox Co. v. McClain, 149 So. 2d
523 (Miss. 1963); State Oil & Gas Bd. v. Miss. Mineral & Royalty Owners Ass’n, 258 So.
2d 767 (Miss. 1971)).
¶20. The second rule states that a reviewing court may reverse if the Commission’s order
was “arbitrary or capricious.” Dearman, 846 So. 2d at 1018. To some extent, this test
overlaps the substantial-evidence standard. This Court explained, “‘If an administrative
agency’s decision is not based on substantial evidence, it necessarily follows that the decision
is arbitrary and capricious.’” Dearman, 846 So. 2d at 1019 (quoting Fulce v. Pub.
Employees’ Ret. Sys., 759 So. 2d 401, 404 (Miss. 2000)).
¶21. The third rule, that the scope of judicial review includes determining whether the
Commission exceeded its authority, involves questions of law. Questions of law are proper
for judicial review. Miss. Code Ann. § 71-3-51 (Rev. 2000); Central Elec. Power Ass’n v.
Hicks, 236 Miss. 378, 388, 110 So. 2d 351, 356 (1959) (citing 42 Am. Jur. Public Admin.
7
Law § 210 (“Whether an administrative agency applies the legislative standards is an
appropriate question for judicial decision. Moreover, the analytical basis of a distinction
between reviewable questions of law and non-reviewable questions of fact is often narrow.”))
¶22. The fourth rule concerns constitutional and statutory rights. This Court has regularly
reiterated that it can review alleged violations of rights under both the state and federal
constitutions. See, e.g., Warren v. Miss. Workers’ Comp. Comm’n, 700 So. 2d 608 (Miss.
1997) (allegation of violation of due-process rights); Georgia-Pacific Corp. v. McLaurin,
370 So. 2d 1359 (Miss. 1979) (same); Pathfinder Coach Div. of Superior Coach Corp. v.
Cottrell, 216 Miss. 358, 62 So. 2d 383 (1953) (no constitutional-rights violation when
bigamous wife was allowed death benefits).
¶23. While courts always review questions of law de novo, Smith v. Jackson Constr. Co.,
607 So. 2d 1119, 1125 (Miss. 1992), otherwise the standards of review in workers’
compensation cases are highly deferential to the Commission. No court can reweigh the
evidence; the Commission is the fact-finder and the judge of the credibility of witnesses.
Barber Seafood, Inc. v. Smith, 911 So. 2d 454, 461 (Miss. 2005) (citing Jackson Constr.
Co., 607 So. 2d at 1123-24; Miller Transporters, Inc. v. Guthrie, 554 So. 2d 917, 918 (Miss
1989)). In sum, “[N]either [the circuit court] nor the Mississippi Supreme Court is
empowered to determine where the preponderance of the evidence lies when the evidence
is conflicting. . . . Instead, [a court] must affirm the decision of the Commission where
substantial credible evidence supports the Commission’s order.” Id. (citing Jackson Constr.
Co., 607 So. 2d at 1124).
8
¶24. Finally, deference means that unless a reviewing court finds that the Commission’s
decision was not based on substantial evidence; was arbitrary or capricious; exceeded the
Commission’s power; or violated a constitutional or statutory right, it cannot set aside a
Commission order even if it would rule differently if it were the trier of facts. Walker Mfg.
Co. v. Cantrell, 577 So. 2d 1243, 1247 (Miss. 1991) (“That we may have found the fact
otherwise, had we been the triers of the fact, is similarly of no moment, so long as the record
contains credible evidence which, if believed, would take the Commission’s decision out of
the realm of the arbitrary.”)
II.
A. Whether the Commission’s decision was supported by substantial evidence.
¶25. Short first argues that the Commission’s finding — that he failed to establish that he
was injured on the job while helping carry the desk 7 — was not supported by substantial
evidence. We begin by looking at the evidence that tends to support the Commission’s
decision.
¶26. On January 9, 2006, about a month after the incident, Short told medical personnel
that he had been having pain for three months. On July 3, 2006, Short stated that the pain
had begun more than a year earlier, which would have been at least five months before the
incident. Short’s supervisor, Welch, testified that he (Welch) and Keyes had carried the
desk, and that Short had carried only the drawers. Welch did not remember Short saying that
he had been hurt. Keyes also testified that he and Welch had carried the desk, and that Short
7
Neither the ALJ, the Commission, nor the circuit court considered whether the act of
carrying the drawers, as opposed to the body of the desk, would have been enough to cause Short’s
injury. No testimony or evidence was adduced as to the weight or size of the drawers.
9
had carried only the drawers. Raglan testified that Short had carried only the drawers and
not the desk itself. Jones testified that Welch and Keyes carried the desk, and that Short had
carried only the drawers. Wilson’s work records showed that Short continued to work from
the second week of December 2005 through the second week of August 2006,8 and that he
took off about two weeks in March 2006 and one week in April of that year.
¶27. Other relevant evidence in the record includes the following:
1. Welch testified that he had known Short for thirty-two years and that
“you believe half of what he tells you.” 9
2. Short continued to perform his usual work duties upon returning to
work after the incident.
3. The number of animals Short slaughtered between December 2005 and
August 2006 increased.
4. Keyes worked with Short during the period between the incident and
Short’s surgery. He testified that he never saw any indication that Short
had trouble doing his work.
5. Jones, the state meat inspector, regularly observed Short working on the
kill floor. He testified that he never saw any indication that Short had
trouble doing the job.
6. Raglan testified that, from time to time over a period of several years,
Short had complained of pain and numbness in his right shoulder.
8
The ALJ’s Opinion reads, “from the week ending on December 6, 2005, through the week
ending on August 9, 2006.” December 6, 2005, was a Tuesday and August 9, 2006, was a
Wednesday, neither of which is conventionally regarded as the end of a week. Stowe testified that
the company’s pay period is Thursday through Wednesday, which would explain the phrase “the
week ending on [Wednesday] August 9, 2006,” though not “the week ending on [Tuesday]
December 6, 2005.”
9
In the “Summary of Relevant Evidence” section of the ALJ’s Opinion, the judge transposed
this into “Welch . . . had not believed half of what [Short] told him.” (Emphasis added.)
10
7. Stowe testified that Short never notified her that he had been hurt on the
job.
8. Hospital records state that on February 20, 2006, about two and a half
months after the incident, Short told medical personnel that he had been
having left arm pain for two and a half years.
¶28. Although the evidence listed above — all of which tends to support the Commission’s
decision — is substantial, we are mindful that context matters,10 and that “we must look at
all the evidence on both sides.” Harpole Bros. Constr. Co. v. Parker, 253 So. 2d 820, 823
(Miss. 1971). However, we find very little evidence in the record supporting Short’s claim.
He testified that, as he helped move the desk, he heard a popping sound in his neck. Short
was the only witness who testified that his injury had occurred on the job. Of course, this did
not preclude the Commission from finding in his favor. See, e.g., Alexander Smith, Inc. v.
Genette, 232 Miss. 166, 170-77, 98 So. 2d 455, 456-60 (1957) (Claimant was alone when
he fell and was injured, so no other witness could have corroborated his testimony, but the
Commission accepted it as true.). When, however, such uncorroborated testimony is
contradicted by other witnesses, or when evidence before the Commission casts doubt on the
credibility of the testimony (as when the claimant has made conflicting statements), it is
certainly within the discretion of the Commission to reject it. Barnes v. Buckeye Molding
Co., 247 Miss. 614, 615-16, 157 So. 2d 63, 63 (1963) (Coworkers testified that claimant had
10
For instance, a physician’s testimony that might, in isolation, “amount to substantial
evidence supporting a finding by the commission, when considered with the entire evidence may
lose much of its character and not rise to the position of substantial evidence.” Shippers Express v.
Chapman, 364 So. 2d 1097, 1100 (Miss. 1978) (citing Harpole Bros. Constr. Co. v. Parker, 253
So. 2d 820, 820 (Miss. 1971)).
11
told them she had hurt her back at home, so Commission was not bound to base its decision
on claimant’s uncorroborated testimony.).
¶29. In this case, the evidence before the Commission was conflicting. Short made
inconsistent statements about when he first had back pain. His supervisor, based on an
acquaintance of thirty-two years, cast doubt on Short’s truthfulness.
¶30. The ALJ stated that, while it was clear that Short had been injured, the issue was
whether he was injured at work. Ultimately, the ALJ found that, against the backdrop of the
evidence detailed supra, the absence of evidence from a physician regarding a causal
connection between Short’s job and his injury was dispositive. We cannot say the
Commission erred in this finding. In Cole v. Superior Coach Corporation, another back-
injury case, this Court stated that “[t]he issues with reference to an alleged injury of this type
are properly within the province of medical experts. In all but the simple and routine cases,
it is necessary to establish medical causation by expert testimony.” Cole v. Superior Coach
Corp., 234 Miss. 287, 291, 106 So. 2d 71, 72 (1958). This Court has also held:
We recognize the rule that the workmen’s compensation law should be broadly
and liberally construed, that doubtful cases should be resolved in favor of
compensation, and that the humane purposes the act seeks to serve leave no
room for narrow and technical construction. But the rule of liberal construction
may not be extended so as to eliminate the necessity of making proof
prerequisite to recovery; and the humane spirit of the law does not warrant its
extention [sic] beyond its legitimate scope.
Ingalls Shipbuilding Corp. v. Howell, 221 Miss. 824, 832, 74 So. 2d 863, 865 (1954).
¶31. The quantum of evidence supporting the Commission was considerable. That, coupled
with the absence of evidence on the critical issue of causation, doomed Short’s case, as his
uncorroborated testimony was contradicted by other evidence. Therefore, we cannot say that
12
the Commission’s decision — which was supported by substantial evidence — was arbitrary
or capricious.
B. Whether the Commission erred in denying Short’s Motion to Supplement the
Record.
¶32. After the ALJ issued his Opinion and Order, Short filed a Motion to Supplement the
Record. He sought to put before the Commission a letter from his surgeon which he said
would establish a causal connection between his injury and the incident at work. The
Commission denied Short’s motion.
¶33. Short is correct that the Commission had the power to grant his motion. This Court
has held that “the Commission has the authority to receive live testimony and other evidence
to supplement the record made before the AJ [administrative law judge].” Walker Mfg. Co.
v. Cantrell, 577 So. 2d 1243, 1246 (Miss. 1991) (citing MWCC Pr. Rule 9; Dunn at § 369).
Also, “[a]mendments are of course liberally allowed so that the truth may be ascertained.”
Crump v. Fields, 251 Miss. 864, 871, 171 So. 2d 857, 859 (1965).
¶34. The Procedural Rules of the Commission, however, set certain requirements for such
a motion:
Where additional evidence is offered on the review before the Full
Commission, it shall be admitted in the discretion of the Commission. A
motion for the introduction of additional evidence must be made in writing at
least five (5) days prior to the date of the hearing of the review by the Full
Commission. Such shall state with particularity the nature of such evidence,
the necessity therefor, and the reason it was not introduced at the evidentiary
hearing.
M ississippi W orkers’ Compensation Comm ission Procedural R ule 9,
http://www.mwcc.state.ms.us/law-clms/_rules.asp#prodrule9 (last visited June 14, 2010).
13
¶35. Nothing in the three sentences that comprise the substance of Short’s motion suggests
the reason he did not introduce the evidence at, or prior to, the hearing.11 It is understandable
that the Commission viewed Short’s motion as deficient, especially in light of the rule’s
particularity requirement. We cannot say that the Commission abused its discretion by
requiring conformity with its rules and by denying Short’s motion.12
¶36. Short argues that, under the Commission’s Procedural Rule 8, evidentiary standards
are relaxed. On this point, he is correct: “In compensation hearings the general rules of
evidence shall be relaxed so as to permit the introduction of any relevant and competent
evidence.” Mississippi Workers’ Compensation Commission Procedural Rule 8,
http://www.mwcc.state.ms.us/law-clms/_rules.asp#prodrule8 (last visited June 15, 2010).
This rule has been construed to apply to the Mississippi Rules of Evidence. For example, this
Court has said that the statute “grant[s] authority to the Workmen’s Compensation
Commission to relax, in its discretion, the traditional common law and statutory rules of
evidence in order to obtain a full development of the facts concerning each claim.” Cooper’s,
Inc. of Miss. v. Long, 224 So. 2d 866, 870 (Miss. 1969) (emphasis added). Again, we find
no abuse of discretion; the Commission is entitled to require adherence to its procedural
rules.
11
Because the Commission’s ruling was critical to Short’s case, we required additional
briefing on the question of why the evidence was not presented earlier. Short’s counsel offered no
explanation.
12
The Commission’s rules require that “[a] proposed order must accompany each non-
dispositive motion.” Mississippi Workers’ Compensation Commission Procedural Rule 22(a),
http://www.mwcc.state.ms.us/law-clms/_rules.asp#prodrule22 (last visited June 15, 2010). No such
order appears in the record.
14
CONCLUSION
¶37. Substantial credible evidence supported the Commission’s decision. Furthermore, we
cannot say the Commission abused its discretion in denying Short’s Motion to Supplement
the Record. Accordingly, we reverse the Court of Appeals and reinstate and affirm the
decision of the Mississippi Workers’ Compensation Commission.
¶38. THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED. THE
DECISION OF THE MISSISSIPPI WORKERS’ COMPENSATION COMMISSION
IS REINSTATED AND AFFIRMED.
WALLER, C.J., CARLSON, P.J., RANDOLPH, LAMAR, CHANDLER AND
PIERCE, JJ., CONCUR. GRAVES, P.J., DISSENTS WITH SEPARATE WRITTEN
OPINION. KITCHENS, J., NOT PARTICIPATING.
GRAVES, PRESIDING JUSTICE, DISSENTING:
¶39. I agree with the majority’s finding that the Workers’ Compensation Commission did
not abuse its discretion in denying Short’s Motion to Supplement the Record; however, I
disagree that there was substantial evidence to support the Commission’s finding that Short
had failed to prove the elements of his workers’ compensation claim. I must therefore dissent
and would affirm the Court of Appeals’ decision to reverse the Circuit Court’s judgment,
which affirmed the Commission’s decision. Further, I would remand the case to the
Commission for a determination of the extent to which Short has suffered a loss of wage-
earning capacity due to his disability.
¶40. The record reflects that Short was a hardworking laborer at Wilson’s Meat House
(Wilson’s) for more than twenty-five years. His supervisor testified that he was a good,
productive employee throughout the entire length of his employment. Moreover, throughout
his many years at Wilson’s, despite experiencing pain before and especially after the desk
15
incident, Short never once filed a workers’ compensation claim until the instant one. Rather,
he “was taking pain pills and finding the work to make a living.” He “kept trying to do his
job the best [he] could,” and he “[did] whatever they told [him] to do,” whether it was to go
slaughter animals on the kill floor or perform other tasks, like removing the meat from the
bones of slaughtered animals. Short prided himself on being a hardworking, efficient
butcher, and when Wilson’s did not alter his duties to accommodate the five-pound weight
restriction indicated on the work excuse he submitted, Short continued performing his
customary duties until his condition worsened to the point of needing surgery. Only then did
he finally file his workers’ compensation claim. Furthermore, as explained below, it is
undisputed that, on December 1, 2005, Short was involved in transporting the large wooden
desk, and not a single witness was able to refute that Short, at some point, helped lift the desk
itself and, in doing, suffered a neck and back injury.13
¶41. This Court has explained that in a workers’ compensation case, the claimant has the
burden of establishing the following elements by a fair preponderance of the evidence:
(1) an accidental injury, (2) arising out of and in the course of employment,
and (3) a causal connection between the injury and the death or claimed
disability.
Hardin’s Bakeries v. Dependent of Harrell, 566 So. 2d 1261, 1264 (Miss. 1990).
¶42. As the majority explained, this Court will disturb the Commission’s order only if it
is not supported by substantial evidence. Id.; Hardaway Co. v. Bradley, 887 So. 2d 793, 795
13
The medical records reflect, and it is undisputed that, when Short went to the emergency
room on December 12, 2005 (shortly after the desk-lifting incident), he was diagnosed with disk
herniation. As the ALJ’s Opinion stated: “The real question here is not whether Mr. Short has a
cervical condition – he obviously does. The threshold issue is simply whether he was injured at
work.”
16
(Miss. 2004). “Stated differently, this Court will reverse the Commission’s order only if it
finds that order clearly erroneous and contrary to the overwhelming weight of the evidence.”
Hardaway Co., 887 So. 2d at 795 (quoting Fought v. Stuart C. Irby Co., 523 So. 2d 314,
317 (Miss. 1988)). As the majority also recognizes, in the workers’ compensation realm,
“doubtful cases should be resolved in favor of compensation.” Hardin’s Bakeries, 566 So.
2d at 1264.
¶43. I conclude that there was not substantial evidence to support the Commission’s
finding that Short had failed to prove the elements of his workers’ compensation claim by
a fair preponderance of the evidence. The overwhelming weight of the evidence indicates
that Short suffered an accidental injury arising out of and in the course of his employment,
and that there was a causal connection between that injury and his claimed disability.
¶44. First, not a single testifying witness was able to refute that, at some point, Short lifted
the desk. As the Court of Appeals explained in its opinion of the instant case:
. . . [All of Short’s co-workers] stated that they simply could not remember
whether Short lifted the desk or not. Short’s supervisor, Welch, testified that
he had built the large desk and had recruited Short and another co-worker,
Willie Keyes, to deliver the desk to the second floor of Wilson’s on December
1, 2005. . . .
When specifically questioned by counsel if he remembered Short
carrying the desk at any time, Welch testified that “[h]e really couldn’t say.
You know, [Short] might have helped it over the table but I really couldn’t say
. . . you know.” Shortly thereafter, in an attempt to clarify a question, the ALJ
stated to Welch, “Okay. You can’t recall whether [Short] did or didn’t [carry
or lift the desk at some point]. Is that what you’re telling us?” Welch
responded, “Yes, sir.” Early in Welch’s testimony, the ALJ asked if Short was
present at the time the desk was initially taken off of the truck that delivered
the desk, and Welch testified that Short was present at that time. When the
ALJ asked Welch what Short was doing during the time they were taking the
desk into the building, Welch testified that “we [were] all, you know, standing
there trying to get the desk in . . . . We [were] all on break so that’s when we
17
[were] doing that. So I don’t know . . . .” When responding to a later question
posed by the ALJ whether he kept up with what Short was doing during all of
this period, Welch responded, “[n]o, sir.” Welch testified at least seven times
that he “reckoned” or “assumed” events relating to Short’s involvement or that
he simply could not remember what Short was doing. Although, Welch
distinctly testified that Short was present during the entire episode and that
Short lifted and carried the desk drawers, he presented no definitive testimony
that Short did not at some point, during the transportation of the desk, lift or
carry the desk. Short testified that he helped to carry the desk twice, and after
he told Welch that he felt something “pop” in his neck, Keyes helped carry the
desk upstairs. . . . Welch testified that he did not recall if Short indicated that
he had hurt himself after [he, Welch, got] the desk upstairs. He also testified
that he did not have any knowledge that Short ever indicated that he hurt his
neck as a result of lifting the desk. Also, he did not recall if Short had ever
presented a doctor’s excuse to take him off of work because of a work-related
injury. However, when asked if he had heard that Short hurt his neck at work,
he stated, “[y]ou know, I can’t tell you who and I don’t know exactly if they
were joking or what, you know.” The ALJ then attempted to clarify Welch’s
statement, and he asked Welch if he was saying that somebody might have told
him that Short injured his neck at work. Welch answered, “[y]es, sir.” . . .
. . . Keyes’s testimony was much the same as Welch’s testimony.
Keyes testified that he did not remember whether Short had helped them lift
the desk at any time. Also, Keyes testified that he could not even remember
if Short had entered the elevator with them while they were moving the desk.
After Keyes testified that Short lifted the drawers, . . . [Short’s counsel asked
Keyes: “If Mr. Welch testified that it’s possible [Short] could have helped y’all
get the thing up over the table, you wouldn’t disagree with that if he said that
was possible. You just don’t remember.” Keyes responded: “No, sir. I don’t
remember.”] In the same vein, Keyes went on to testify that he could not
remember whether Short had put the drawers down at any point. Neither co-
worker distinctly remembered whether Short had helped lift the desk or not.
Jimmy Jones, a meat inspector for the Mississippi Department of
Agriculture, was also present on the day in question. . . . Jones testified that he
was not present downstairs when the desk was moved from the truck into the
building, maneuvered over the table, through the narrow hallway, and into the
elevator. Although Jones may have been able to speak about Short’s
involvement upstairs, he was unable to attest to or deny Short’s account of
what happened downstairs. Jones offers no contradiction to Short’s statement
of the events. In regard to carrying the drawers, Short testified as follows:
After I picked [the desk] up I felt something that popped in my
neck up there. I said, Mr. Curly [i.e., Mr. Welch], I feel
something that popped in my neck.
....
18
And he told me, . . . you ain’t nothing but a wimp. . . . And
that’s when Mr. Bubba Keyes [came] and helped me and Curly
to pick it on up and carry it up to the office. That’s when Mike
Welch told me to back up and start taking the drawers out of the
desk, and carry it on up the stairs, me, him, and Bubba Keyes.
Short did not claim to have carried or lifted the desk while he was upstairs, and
Jones was not downstairs to prove or disprove Short’s account of what
happened downstairs.
Short v. Wilson Meat House, LLC, 2009 WL 1668491, at *3-4 (Miss. Ct. App. June 16,
2009).
¶45. In sum, Short’s testimony about the occurrence of the work-related injury, while
uncorroborated by other witnesses, was not refuted, and this Court has held that “the
undisputed testimony of a claimant which is not so unreasonable as to be unbelievable, given
the factual setting of the claim, generally ought to be accepted as true.” White v. Superior
Products, Inc., 515 So. 2d 924, 927 (Miss. 1987). See also Penrod Drilling Co. v.
Etheridge, 487 So. 2d 1330, 1333 (Miss. 1986) (“The claimant is competent to prove his own
claim, and his testimony may be accepted without corroboration. It may be acted upon
although disputed by other witnesses and if undisputed and not untrustworthy, must be taken
as conclusive proof of fact.”).14 Therefore, Short’s unrefuted, reasonable testimony about the
alleged work-related injury he suffered while lifting the desk should be accepted as true.
14
This Court has also explained that, “[o]n the other hand, if the claimant is uncorroborated
as to the occurrence of a claimed accident and is shown to have made statements inconsistent with
the claim, the commission is not bound to accept the testimony as the basis for an award.” Penrod
Drilling Co., 487 So. 2d at 1333. In the instant case, however, Short did not make statements
inconsistent with his claim.
19
¶46. In addition to Short’s testimony being unrefuted, his medical records support his
testimony that he suffered the work-related injury, and that the injury caused his disability.
As the Court of Appeals explained:
. . . [M]edical records verify that Short visited the emergency room for
treatment soon after the incident at work, and he reported to the triage nurse
that his pain and numbness began after “lifting a heavy desk.” Although the
medical records do not contain a specific statement by a doctor that lifting the
desk caused Short’s injury, there is no statement or diagnosis by a physician,
or other medical personnel, that contradicts Short’s statement to the emergency
room personnel about the cause of his pain. . . .
. . . Short’s medical records show that no doctor ever excluded the
lifting incident as an event that may have exacerbated Short’s condition. . . .
Furthermore, multiple medical records reflect that Short consistently gave the
same statement about the incident at work and his injury. At no point did he
state that he was injured at home or during some other activity. . . .
Short, 2009 WL 1668491, at *5. Thus, Short presented uncontradicted testimony, supported
by his medical records, that he had suffered a work-related injury, and that the injury had
caused his disability. Notably, this Court has held that “it is not necessary that medical
testimony [e.g., from Short’s treating physician] be supplied to establish the cause and effect
of an injury of the nature which the claimant says that he sustained.” 15 Marley Constr. Co.,
Inc. v. Westbrook, 107 So. 2d 104, 108 (Miss. 1958). “A claimant, like any lay witness, may
not undertake to make a prognosis, but he may state facts concerning his condition and these
facts may be of such a nature as to enable the Board to determine the extent and duration of
15
The injury suffered by the claimant in Westbrook was an injury in his lower back that he
felt occur while he and a co-worker were lifting transite boards weighing from 175 to 200 pounds.
Marley Constr. Co., Inc. v. Westbrook, 107 So. 2d 104, 105 (Miss. 1958). A few days following
the incident, the claimant went to the doctor. Id. In other words, the fact surrounding the work-
related injury in Westbrook are similar to the facts in the instant case.
20
the disability even in the absence of medical testimony.” Id. (quoting Yocum Creek Coal
Co. v. Jones, 214 S.W.2d 410, 412 (Ky. Ct. App. 1948)).
¶47. In addition, as the Court of Appeals aptly noted, there is a presumption that statements
made by a person seeking medical treatment are truthful. Short, 2009 WL 1668491, at *5-6.
This presumption of truthfulness is embodied in Mississippi Rule of Evidence 803(4), the
hearsay exception allowing admission of statements made for purposes of medical diagnosis
or treatment. Id. (citing Miss. R. Evid. 803(4)). Thus, it should be presumed that Short’s
reports to the emergency room nurse and his physical therapist that he had experienced pain
and numbness after lifting a heavy desk were truthful.
¶48. Therefore, the overwhelming weight of the evidence that was presented at the
evidentiary hearing establishes that Short suffered a work-related injury that caused his
disability, and an opinion from a medical expert is not required to establish the causation
element of Short’s claim.
¶49. The arguments Wilson’s presents in an attempt to refute Short’s claims that he
suffered the work-related injury and that it caused his disability lack merit. First, while it is
true that during some of Short’s doctor visits he reported that his pain began before the date
of the desk-lifting incident,16 that does not indicate, as Wilson’s contends, that Short made
16
As the Court of Appeals explained:
The medical records reflect an entry on July 3, 2006, which states that Short
described symptoms of weakness, numbness, and tingling for a little over a year, and
an entry in January 2006 that states he experienced pain for three months.
Short, 2009 WL 1668491, at *7. The medical records also reflect that on February 20, 2006, Short
reported having experienced pain for two and a half years.
21
conflicting statements. Rather, it simply supports Short’s doctors’ recorded opinions that
Short had a preexisting condition of cervical disk degeneration, and this Court has held that
“when a preexisting disease or infirmity of an employee is aggravated, lighted up, or
accelerated by a work-connected injury, or if the injury combines with the disease or
infirmity to produce disability, the resulting disability is compensable.” Hedge v. Leggett
& Platt, Inc., 641 So. 2d 9, 14 (Miss. 1994). As the Court of Appeals noted:
. . . [T]here are multiple entries where Short told medical personnel that he
experienced sudden pain after lifting the desk. A review of the medical
records reveals that Short never gave any reason other than moving the desk
for the sudden worsening of his pain, nor is there anything in the record that
indicates that Short ever sought treatment for pain or weakness prior to the
incident with the desk. It is imprudent to ignore multiple statements made to
medical personnel for the purpose of seeking treatment because of statements
about a prior pain or weakness.
Short, 2009 WL 1668491, at *7.
¶50. Wilson’s effort to show that Short’s disability was caused by an injury that had
occurred outside the course of employment also fails. Wilson’s suggests that Short’s injury
may have come about during Short’s personal time, while lifting heavy items he and his wife
removed from storage units or while being dragged by a horse; however, these suggestions
are purely speculative and unpersuasive. Short testified that he never worked steadily
cleaning out the storage units, and no witness testified that Short ever brought any large items
from the storage units to work to sell, nor that they ever otherwise had seen Short in
possession of large items from the storage units.17 Furthermore, the incident with the horse
17
Moreover, even if it were somehow established that Short was injured at some point prior
to his first emergency room visit (on December 12, 2005) due to lifting an object from the storage
units (or from anywhere, for that matter), it still would not disprove that he was injured on the job
from lifting the desk. Additionally, as explained above, the fact that a claimant may have a
22
occurred months after Short initially went to the emergency room and reported that he was
experiencing pain after having lifted a heavy desk.
¶51. Wilson’s also highlights the fact that, following the desk incident up until Short left
Wilson’s to have his surgical procedure, Short continued to perform his regular work duties
well and seemed eager to work on the “kill floor,” where he earned more money.18 As the
Court of Appeals explained:
Short testified that he was taking pain medicine, and he did what he was told
to do. At one point during his cross-examination when asked what tasks he
performed, he stated: “I do whatever they tell me to do, sir. If they come tell
me to go back there and hang some more sausage or whatever, I do what they
tell me to do if I want my job.” He also testified that he would “work
anywhere [he] c[ould] to make . . . a dollar.”
Short, 2009 WL 1668491, at *7. Like the Court of Appeals, I refuse to penalize a person for
persevering in order to earn a living, and, as the Court of Appeals noted, Short is not the first
claimant who continued to work after having suffered a compensable injury. Id. (citing
Frito-Lay, Inc. v. Leatherwood, 908 So. 2d 175, 178 (Miss. Ct. App. 2005); Bryan Foods,
Inc. v. White, 913 So. 2d 1003, 1006 (Miss. Ct. App. 2005)).
¶52. Lastly, Wilson’s contention that Short never indicated that he suffered a work-related
injury is incorrect. As the Court of Appeals explained:
preexisting condition or injury (from, for example, having lifted something heavy at some time prior
to the work-related injury at issue) does not necessarily bar recovery under workers’ compensation
law.
18
Notably, it was another witness (Jones), not Short, who testified that Short liked working
on the kill floor. Short explained the following in response to a question about him working on the
kill floor despite his worsening pain: “When they tell me, Mr. Short, you’ve got to go on the kill
floor if I wanted my job I had to do what they tell me to do. . . . If I didn’t I’d get sent home or else
I’d lose my job, so I had to go where they tell me to go.”
23
. . . [U]ndisputed testimony shows that shortly after moving the desk, Short
presented a medical excuse to Tammy Stowe [a member of the Wilson family
who handles Wilson’s time and wage records, as well as workers’
compensation claims] that indicated he had been treated at the University
Hospital and that he should not lift anything heavier than five pounds until
cleared by neurosurgery. Also, other co-workers testified that Short
complained of back pain and other ailments throughout the months preceding
his surgery. . . . Short also testified that he told his supervisor, Welch, that he
had experienced a “pop” in his neck as well as pain while moving the desk,
and he complained off and on at work during the following eight months, until
his surgery, that he had hurt his neck.
Short, 2009 WL 1668491, at *8. Welch also testified that at some time after the desk
incident but before his surgery, he gave Jack Wilson, the owner of Wilson’s, a doctor’s
excuse indicating that he could not lift more than five pounds.
¶53. For the foregoing reasons, I conclude that there was not substantial evidence to
support the Commission’s finding that Short had failed to prove the elements of his workers’
compensation claim, and I therefore dissent. Accordingly, I would affirm the Court of
Appeals’ decision to reverse the Circuit Court’s judgment, which affirmed the Commission’s
decision, and I would remand the case to the Commission for a determination of the extent
to which Short has suffered a loss of wage-earning capacity due to his disability.
24