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IN THE COURT OF APPEALS 12/17/96 OF THE STATE OF MISSISSIPPI
NO. 96-CC-00244 COA VEARLENE HENDERSON APPELLANT v. BATESVILLE MANOR NURSING HOME AND THE TRAVELERS INSURANCE COMPANY APPELLEES

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B

TRIAL JUDGE: HON. ANDREW CLEVELAND BAKER COURT FROM WHICH APPEALED: PANOLA COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: JACK R. DODSON ATTORNEY FOR APPELLEES: J. FRANKLIN WILLIAMS NATURE OF THE CASE: WORKERS' COMPENSATION TRIAL COURT DISPOSITION: DENIAL OF TEMPORARY AND PERMANENT BENEFITS RELATED TO BACK INJURY.

BEFORE THOMAS, P.J., KING, AND PAYNE, JJ. PAYNE, J., FOR THE COURT:

Vearlene Henderson brought this workers' compensation claim against her employer, Batesville Manor Nursing Home. The administrative law judge, after a hearing on the merits, determined that Henderson had not proved her injury to be work related and therefore denied all temporary and permanent disability benefits. The Workers' Compensation Commission affirmed the denial of benefits. The circuit court of Panola County subsequently affirmed the commission's order denying benefits. Henderson now appeals to this Court. We find that the commission's findings were clearly erroneous, not supported by substantial evidence, and against the overwhelming weight of the evidence. Accordingly, we reverse the commission's decision, and the circuit court's affirmance. FACTS On January 31, 1991, Vearlene Henderson was employed as a nurse's aide at the Batesville Manor Nursing Home. Henderson testified that her shift hours on January 31, 1991, were 2:30 P.M. to 10:30 P.M. Henderson indicated that her work activities included bathing patients, feeding them, getting them in and out of bed, and taking them to the bathroom. Henderson also indicated that she was required to do various housekeeping duties such as sweeping and mopping. Henderson testified that on January 31, Batesville Manor was short of aides and as a result, she was required to do more work than usual. Henderson testified that at the end of her shift she was more tired than usual, and her back hurt a little. Henderson stated that she thought it was nothing more than having had a hard day of work and immediately went home and went to bed. The next morning, however, she could not get out of bed, sit up, or move her legs. Henderson testified that she required her mother's assistance to get out of the bed. Henderson testified that on the same morning she called her supervisor, Kay Hull, and told her that she had hurt her back that night and was getting ready to go to the doctor. Kay Hull testified that she asked Henderson how she had hurt her back, and Henderson said that she did not know. Henderson visited Dr. Waller on February 1, 1991, and told him that she had hurt her back. Dr. Waller told Henderson that she had pulled some muscles and advised her to take off work for five days. Dr. Waller stated, in his deposition, that he could not recall whether Henderson had told him that her injury was work-related. Dr. Waller also stated that his notes contained nothing pertaining to the cause of Henderson's back injury. Henderson testified that she returned to work after five days and worked for two to three weeks but continued to experience back pain. Henderson then went to Dr. Aiello who checked her vital signs, examined her back, and advised her to take off work for five days. Henderson returned to work after five days but was suffering from pain every day. Henderson subsequently consulted with Dr. Hill who told her that she had pulled some muscles and advised her to take off work for a few days. Henderson testified that she eventually went back to Dr. Waller after receiving no relief from the medical treatment. Meanwhile, Henderson was placed on administrative leave due to her recurring painful condition and number of absences from work. The administrative leave commenced on October 16, 1991. Dr. Waller referred Henderson to Dr. Engleberg at the Semmes-Murphy Clinic in Memphis, Tennessee, whom Henderson saw on October 16, 1991. Dr. Engleberg diagnosed Henderson as having symptomatic lumbar disc syndrome but upon discovering that Henderson did not have insurance coverage, Dr. Engleberg referred her to the Baptist Monroe Clinic where she saw Dr. Parsioon, the chief resident of neurosurgery. After conducting a variety of tests, Dr. Parsioon

determined that Henderson was suffering from a large herniated disc. Henderson attempted to take Dr. Parsioon's deposition but due to hospital policy forbidding residents from giving depositions, she had no alternative but to consult Dr. Parsioon's supervisor, Dr. Robertson. Henderson asked Dr. Robertson to review Dr. Parsioon's reports, to examine Henderson himself and to give a deposition. Dr. Robertson agreed but did not examine the Appellant until December 12, 1992. In his deposition, Dr. Robertson stated that he concurred with Dr. Parsioon's findings that Henderson suffered from a large herniated disc and needed surgery. Dr. Robertson also stated that Henderson's case was "classical" and explained how such injuries can develop gradually. Dr. Robertson stated that he gathered from his interview with her that something happened on January 31, 1991, while she was working which resulted in the painful condition. The administrative law judge discounted Dr. Robertson's testimony on the grounds that he only saw Henderson one time, and that his examination took place nearly two years after the injury. The administrative law judge also indicated that Henderson's failure to tell Dr. Waller or her supervisor, Kay Hull, that she had been injured at work was detrimental to her case and thus warranted a denial of benefits. This denial of benefits was affirmed by the Workers' Compensation Commission and the Panola County Circuit Court. Henderson, feeling aggrieved, now appeals. ANALYSIS I. DID THE INJURIES SUSTAINED BY HENDERSON ARISE OUT OF AND IN THE COURSE OF HER EMPLOYMENT WITH BATESVILLE MANOR NURSING HOME AND WAS THE WORKERS' COMPENSATION COMMISSION'S ORDER DENYING BENEFITS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE, CLEARLY ERRONEOUS, AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE, OR RESULT IN MANIFEST INJUSTICE?

Henderson contends that the decision by the commission was not based on the credible evidence presented. Henderson argues that, although she put on substantial and admissible evidence showing the causation of her injury, the commission "chose to ignore this evidence and rely on evidence that was conjectural and speculative, and in some cases, simply untrue or irrelevant. Henderson contends that the sole deciding factor considered by the commission was its determination that Henderson did not initially tell Dr. Waller that she had injured her back at work. Henderson contends that Dr. Waller never stated that she did not tell him the cause of her injury, but that he could not recall whether she told him or not. Henderson argues that reliance on the fact that no mention of the cause of injury was found in Dr. Waller's medical record is misplaced because Dr. Waller did not include any history whatsoever of the cause of injury. Henderson argues that at the time she consulted with Dr. Waller, she did not know how she had injured her back but later came to appreciate that her injury must have been caused by something she had done at work because she had not performed any other physical activities in the interim. Henderson contends that, in light of Dr. Waller's diagnosis that she had pulled some muscles, she had no reason to realize the seriousness of her condition and only after she was forced to quit her job because of her back condition did she file a claim for compensation. Henderson argues further that her employer had actual notice of her back injury on February 1, 1991, and either knew or should have known that the injury was caused by her work. Henderson contends

that her employer made no attempt to find out if the work she had been doing was the cause of her injury. Henderson also argues that the commission erroneously discounted the testimony of Dr. Robertson. Henderson contends that the factual circumstances coupled with the testimony of Dr. Robertson clearly prove the causal relationship between her injury and the tasks that she was required to perform on her job. Henderson argues that this case should be reversed and remanded with an order that the employer and carrier pay for all of Henderson's medical bills, and that a hearing to determine the extent of her disability should be conducted. On the other hand, Batesville Manor Nursing Home argues that the commission was correct in its determination that Henderson did not suffer a compensable work-related injury. Batesville Manor contends that the commission's decision to deny benefits was based not only on medical evidence but also on the fact that Henderson had failed to tell Dr. Waller that she had injured her back at work; the fact that she did not tell anyone at work that she had been injured; the absence of witnesses to the alleged incident; and that her testimony was inconsistent. Specifically, Batesville Manor points to the fact that Henderson did not initially tell Dr. Waller or subsequent physicians that she had been injured on the job, nor did she tell her supervisors that her injury was work-related until September of 1991. Batesville Manor argues further that Henderson had a prior history of back pain beginning in 1982 and continuing for nearly a decade. Batesville Manor takes issue with the fact that Henderson failed to fully disclose her medical history to treating physicians. Finally, Batesville Manor contends that Henderson's appeal is based on an incorrect application of the law regarding proof of causation as she seeks to prove when and how she was hurt through the testimony of Dr. Robertson, a physician that only examined her once and was not privy to her medical history. The standard of appellate review of a decision of the Workers' Compensation Commission is wellsettled: The findings and order of the commission are binding as long as they are supported by substantial evidence. Vance v. Twin River Homes, 641 So. 2d 1176, 1180 (Miss. 1994) (citations omitted). Substantial evidence has been defined as relevant evidence that reasonable minds could accept as adequate to support a conclusion and that affords a substantial basis of fact from which the fact in issue can be properly inferred. Delta CMI v. Speck, 586 So. 2d 768, 773 (Miss. 1991) (citations omitted). "Evidence which is not contradicted by positive testimony or circumstances, and which is not inherently improbable, incredible, or unreasonable, cannot, as a matter of law, be arbitrarily or capriciously discredited, disregarded or rejected." Morris v. Lansdell's Frame Co., 547 So. 2d 782, 785 (Miss. 1989). Uncontradicted testimony is to be taken as conclusive and binding on the trier of facts, unless one party shows it to be untrustworthy. Id. (citation omitted). An appellate court will reverse a commission order only where it is clearly erroneous and contrary to the overwhelming weight of the evidence. Vance, 641 So. 2d at 1180 (citations omitted); see also Natchez Equip. Co. v. Gibbs, 623 So. 2d 270, 273 (Miss. 1993) (commission is ultimate finder of facts in compensation cases; its findings are subject to normal deferential standard upon review, and this Court will not disturb the commission's findings as long as the latter's decision has no error of law and is based on substantial evidence). Mississippi statutory law states that, in a workers' compensation context, an injury means "accidental injury or accidental death arising out of and in the course of employment without regard to fault

which results from an untoward event or events, if contributed to or aggravated or accelerated by the employment in a significant manner." Miss. Code Ann.

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