Blackwell v. Howard Indus., Inc., 2016–WC–01214–COA

243 So.3d 774

Cardie B. BLACKWELL, Appellant/Cross–Appellee

v.HOWARD INDUSTRIES, INC., Appellee/Cross–Appellant

NO. 2016–WC–01214–COA

CONSOLIDATED WITH NO. 2010–CT–01516–COA

CONSOLIDATED WITH NO. 2014–CT–00342–SCT

Court of Appeals of Mississippi.

January 30, 2018

Rehearing Denied May 29, 2018

WILLIAM H. JONES, PETAL, ATTORNEY FOR APPELLANT

PARKER FORD LEGGETT, LAUREL, ATTORNEY FOR APPELLEE

BEFORE IRVING, P.J., BARNES AND WESTBROOKS, JJ.

IRVING, P.J., FOR THE COURT:

¶ 1. Cardie Blackwell appeals the decision of the Jones County Circuit Court affirming the Workers' Compensation Commission's (Commission) decision, denying him total disability benefits. He cites four alleged instances of error.¹ Howard Industries Incorporated (Howard) cross-appeals, citing six errors alleged to have been committed by the Commission.²

¶ 2. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 3. The procedural history in this case is extensive, as it stems from a claim that arose on May 22, 2002, when Cardie sustained a work-related injury to his left elbow. Since this case is now on its third appeal to this Court, and the record has been consolidated, we adopt the facts from this Court's most recent opinion in Blackwell v. Howard Indus . Inc. , 210 So.3d 1018, 1020 (¶¶ 2–6) (Miss. Ct. App. 2015) (vacated by order on other grounds relating to jurisdiction) (internal quotations omitted):

[Cardie] was working for Howard ... when he sustained a work-related injury to his left elbow. He received temporary-total-disability benefits, and Howard paid for [Cardie]'s surgical procedure. After a disagreement regarding his treatment, [Cardie] filed a petition to controvert. [Cardie] and Howard exchanged volleys of pleadings and motions between 2003 and 2007.

The administrative judge (AJ) found that [Cardie] was not entitled to permanent and total disability benefits [because he failed to participate in reasonable/necessary medical treatment]. [Cardie] appealed, and the full Commission affirmed the AJ's judgment. In October 2009, [Cardie] appealed to the circuit court. Howard successfully moved to dismiss [Cardie's] appeal because he never filed a brief with the circuit court. The circuit court issued a deficiency notice and gave [Cardie] fourteen days to file a brief. After [Cardie] filed a brief that did not conform to Rule 28(a) of the Mississippi Rules of Appellate Procedure, Howard successfully moved to dismiss [Cardie's] appeal.

[Cardie] appealed to this Court, and we held that a second notice of deficiency should have been sent to [Cardie] and that lesser sanctions, rather than dismissal, would have been appropriate.

Blackwell v. Howard Indus. Inc. , 98 So.3d 463, 465 (¶ 6) (Miss. Ct. App. 2012). Consequently, we reversed the circuit court's judgment and remanded the case for further proceedings. Id .

On remand, Howard filed a motion to strike [Cardie's] briefs. According to Howard, [Cardie's] briefs failed to comply with Rule 11 of the Mississippi Workers' Compensation Commission's Procedural Rules. Howard also moved to strike [Cardie's] reference to an internet article on the basis that it was inadmissible hearsay and irrelevant, it lacked a proper foundation, and it could not be authenticated.

The circuit court agreed with both of Howard's claims. In its order, the circuit court found that [Cardie's] notice of appeal did not reference the issues that [Cardie] raised in his brief. The circuit court granted Howard's motion to strike [Cardie's] briefs. In addition to the internet article that Howard moved to strike, the circuit court struck four other internet articles and texts that [Cardie] attached as exhibits to his reply brief. After the circuit court struck [Cardie's] briefs and five articles that were attached as exhibits, [Cardie] appealed to this Court.

¶ 4. After review, this Court held that the circuit court clearly erred when it struck Cardie's briefs and dismissed his appeal on the basis that his notice of appeal inadequately set forth the grounds of his appeal. We therefore reversed the circuit court's judgment and remanded the matter for further proceedings. Blackwell , 210 So.3d at 1019 (¶ 1). However, the Mississippi Supreme Court granted Howard's petition for a writ of certiorari and, by order filed May 12, 2016, found that "the order from which [Cardie] appealed was not a final judgment on the merits of the case[,] and [Cardie's] appeal therefrom [was] interlocutory in nature." Blackwell v. Howard Indus. , No. 2014–CT–00342–SCT (Miss. May 12, 2016) (order dismissing appeal). The supreme court dismissed the appeal, vacated the opinion of this Court, and remanded the case to the circuit court "for proceedings consistent with the instant order." Id .

¶ 5. On remand, Cardie filed a motion for reconsideration with the circuit court, which the circuit court granted on June 24, 2016. In its order, the circuit court, noting that Cardie had elected to stand on his previously filed brief, granted Howard twenty days to submit a supporting brief on the merits of the case. Howard also elected to stand on its previously filed brief. On July 20, 2016, the circuit court issued its order affirming the decision of the Commission. Cardie now appeals from that order.

DISCUSSION

¶ 6. Appellate review of workers' compensation claims is a narrow one. The standard of review utilized by this Court when considering an appeal of a decision of the ... Commission is well settled. The Mississippi Supreme Court has stated that the findings and order of the ... Commission are binding on this Court so long as they are supported by substantial evidence.

Under settled precedent, courts may not hear evidence in compensation cases. Rather, their scope of review is limited to a determination of whether or not the decision of the [C]ommission is supported by the substantial evidence. If so, the decision of the [C]ommission should be upheld. The circuit courts act as intermediate courts of appeal. The Supreme Court, as the circuit courts, acts as a court of review and is prohibited from hearing evidence or otherwise evaluating evidence and determining facts; [w]hile appeals to the Supreme Court are technically from the decision of the [c]ircuit [c]ourt, the decision of the [C]ommission is that which is actually under review for all practical purposes.

As stated, the substantial evidence rule serves as the basis for appellate review of the [C]ommission's order. Indeed, the substantial evidence rule in workers' compensation cases is well established in our law. Substantial evidence, though not easily defined, 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.

Toldson v. Anderson–Tully Co. , 724 So.2d 399, 401–02 (¶ 10) (Miss. Ct. App. 1998).

I. Cardie's Statement of the Issues

A. Reasonable and Necessary Medical Care and Treatment

¶ 7. Cardie raises three issues: "Whether [he] had a right to choose his physician and by doing so had the right to follow the care recommended by that physician as opposed to an alternative method of care urged by Howard"; "Whether substantial evidence existed to support a finding, by the AJ and the Commission, that [he] did not participate in reasonable and necessary medical care and treatment"; and "Whether evidence existed that [his] refusal ... to participate in a form of treatment and therapy different from that of the treating physician[ ] ‘impacted’ his condition[.]"

¶ 8. The polestar question is: Did Cardie's preferred method of treatment and the testimony of his preferred medical professional supersede the recommendations by other physicians who treated him? He was treated by multiple physicians in addition to the physician that he preferred, Dr. David McKellar, who continued his pain management in lieu of physical therapy.

With regard to workers' compensation claims, this Court has recognized: An employer is to pay for medical treatments that are reasonable and necessary and that result from the work-related injury. In addition, there are procedural safeguards involved with the incurring of medical costs. The Workers' Compensation Act requires that an employer provide medical services to the injured employee commensurate with the nature of the injury or the process of recovery. Miss. Code Ann. § 71–3–15(1) (Rev. 2000). We summarize this statute's requirements. An employee may choose a personal physician or accept a physician chosen by the employer. The employer is also responsible for expenses of a physician to whom the claimant is referred by the original treating physician. An employee is allowed referral to one physician practicing within a specialty or subspecialty area. Referrals to additional physicians must be approved by either the employer or the employer's insurance carrier. Treatment rendered by a physician or referrals from a physician other than the original treating physician that have not been approved are not the responsibility of the employer or its insurance carrier.

Allegrezza v. Greenville Mfg. Co. , 122 So.3d 755, 762 (¶ 30) (Miss. Ct. App. 2012), aff'd , 122 So.3d 719 (Miss. 2013). Cardie argues that he had a right to choose the doctor and treatment that he felt was best suited for his situation. He contends that the pain-management treatments administered and prescribed by Dr. McKellar were more beneficial and caused him to be less stressed and depressed than the pain associated with physical-therapy sessions. He further contends that Dr. McKellar was his primary doctor, and, therefore, his determination regarding the course of treatment should carry more weight than the recommendations of the other treating doctors who spent less time with him.

¶ 9. Howard...