MWCC NO. 93 03396-E-8206

AUDRAY JOHNSON                                                                                                                           CLAIMANT

vs.

GULF STATES CANNERS, INC.                                                                                                       EMPLOYER
AND
ZURICH INSURANCE COMPANY                                                                                                       CARRIER

REPRESENTING CLAIMANT:
Pro Se

REPRESENTING DEFENDANT:
Hon. Forrest Stringfellow, Attorney at Law, Jackson, Mississippi
 

The Commission heard the above styled cause on March 20, 2000 in the offices of the Mississippi Workers' Compensation Commission in Jackson, Mississippi on the "Claimant's Petition for Review".

Having heard the arguments offered on behalf of the parties and having thoroughly studied the record and the applicable law, the Commission affirms the "Order of the Administrative Judge" dated November 2,1999.

SO ORDERED, this the 24th day of March, 2000.

MISSISSIPPI WORKERS' COMPENSATION COMMISSION
BY: Barney Schoby
Beverly Bolton
COMMISSIONERS

ATTEST:
Brenda H. Goolsby, Secretary
___________________________
 

MWCC No. 93 03396-E-8206

AUDRAY JOHNSON                                                                                                                           CLAIMANT

vs.

GULF STATES CANNERS, INC.                                                                                                       EMPLOYER
AND
ZURICH INSURANCE COMPANY                                                                                                       CARRIER

APPEARING FOR CLAIMANT:
Pro Se

APPEARING FOR DEFENDANTS:
Honorable Forrest W. Stringfellow, Attorney at Law, Jackson, Mississippi
 

A hearing was held on June 17, 1999 at the Mississippi Workers' Compensation Commission in Jackson, Mississippi at approximately 11:00 a.m. This cause concerns whether or not the claimant's claim should be reopened for further consideration. It is noted that this hearing deals with a 1992 alleged injury and that a Petition to Controvert was filed at a date certain in 1993. Also, in addition to the issue of whether or not this claim should be reopened, there is consideration of whether or not the reopening of this claim is barred by the statute of limitations applicable thereto, namely Mississippi Code Annotated, Section 71-3-53 (1972).

It is essential for the understanding of this Order that a procedural history be reviewed. As an aside, it is noted that a claimant for a long period of time was represented by J. Peyton Randolph in this claim but on the date of this hearing he entered a pro se appearance. The claimant filed with the Commission on December 7, 1998 his pro se Motion to Reopen. Administrative Judge Willie Rose (now an Administrative Judge with the Social Security Administration) had rendered his Order of Administrative Judge on July 11, 1994. Administrative Judge Rose found that the claimant had failed to establish a causal connection between his mental disability and his employment. The Order of Administrative Judge was affirmed on November 16, 1994 with a Full Commission Order. Upon appeal to the Circuit Court of the First Judicial District of Hinds County, Mississippi, Judge James E. Graves rendered his Opinion and order on August 22, 1995 that the Full Commission Order be affirmed. Thereafter, an appeal was filed to the Supreme Court of Mississippi. By Order dated June 6, 1996, the Court dismissed the appeal due to the failure of appellant, Audray Johnson, to timely pay the appeal cost and to timely file the Designation of Record and/or Certificate of Compliance with the proper court clerk. The presently pending Motion to Reopen was filed at the Commission more than two years after dismissal of the appeal by the Supreme Court of Mississippi. This brings into play Mississippi Code Annotated, Section 71-3-53 (1972) which would appear to bar at this time any attempt to relitigate the Petition to Controvert which was filed on March 11, 1993. Further focus is had on the premise that Mr. Johnson is attempting to substitute the presently filed Motion to Reopen for an appeal. Any dissatisfaction with the results rendered should have been addressed to and by the Mississippi Supreme Court. The doctrine of res judicata does apply in this Workers' Compensation proceeding and
would also appear to bar relitigation of the same issues previously raised. See Aetna Casualty & Surety Company and Arvin Industries. Inc. v. Espinosa. 469 So.2d 64 (Miss, 1985).

On the occasion of this hearing the claimant called as his first witness, himself and was allowed to testify freely as to his past and present condition and all other particulars which he felt were pertinent to the hearer of this claim. The second witness he called his wife, Linda Johnson, who presented as cumulative and corroborative in regard to the testimony of the claimant. As his third witness, claimant called Lucille Sutton, mother of the claimant, who likewise testified in a cumulative and corroborative fashion.

No evidence was entered in this cause by the claimant in that whatever was tendered was not in proper form to be allowed into evidence. However, with an abundance of caution and in an attempt to safeguard the rights of the claimant, a review was had by the undersigned. It was noted that as to the pertinent factual considerations, the claimant began working for the employer Gulf State Canners, Inc., in October, 1990. Claimant was employed in Quality Assurance, and his official title was lab technician 1. This position entailed testing of the products and the containers in which the product is packaged for retail sale. Claimant worked with employer in this capacity for one month on the night shift which commenced from 2:00 p.m. to 10:00 p.m. After one month's time the claimant was laid off in a union dispute for a period of five months. The claimant subsequently returned to the permanent employment of the employer in March, 1991. It is noted for the record that the employer is a packager and bottler of Coca Cola soft drink products. In March, 1991 when he re-entered the employ of the instant employer the claimant was earning $10.00 per hour. Mr. Johnson indicated that his position enjoyed a great deal of pressure. He was told that he was solely responsible for the quality of the product which was being packaged. Mr. Johnson also testified that he often worked over 70 hours per week. At the first trial Ms. Linda Tipton, a witness for the employer, testified that although breaks were allotted to employees there simply was not time to take breaks when the lines were running. Mr. Johnson further testified on that occasion that there were times when his supervisor, Darren James, would leave him to attend the night shift completely on his own while Mr. James was allegedly sleeping in his office. While Mr. Johnson was working on the bottle line (as opposed to the can line) he was performing a test on one of the bottles. The testing mechanism (SST) exploded while Mr. Johnson was performing a test on one of the bottles. This explosion sprayed Mr. Johnson with glass and water. Linda Johnson, the claimant's wife, testified at that time that this incident "really upset him" and that he was convinced the testing mechanism had been personally sabotaged. She further testified that Mr. Johnson's condition drastically deteriorated following this incident. Mr. Johnson also had testified that he was the subject of verbal abuse and racial slurs on several occasions by both co-workers and his supervisors. Mr. Johnson testified that his co-workers were apparently jealous of his rapid rise in the company and vented their abuse against him via these verbal assaults. In fact, Linda Johnson testified the claimant was particularly upset about having been called Bubba by coworkers. In July, 1992 Mr. Johnson became overwhelmed by the pressure of his job and the circumstances surrounding it. He testified that he took the week of July 6 through July 10, of that year off in an attempt to "get my head back together." During that week he visited a Dr. Granger who prescribed medication for anxiety and depression. Mr. Johnson returned to work on the 13th of July and on the 16th, saying he was no longer able to deal with the pressure and anxiety surrounding his job as well as the alleged abuses against him, Mr. Johnson resigned. Claimant testified that part of his anxiety was due to the fact that while working on the 3rd shift he made it his business to "stay up on that product, not taking his proper breaks." Claimant took it upon himself to make sure the product went out right and no one told him not to take breaks. The claimant testified that no specific incident happened on the third shift and that everybody "pretended" they appreciated his work. When he was moved from the bottle line on the first shift he had the same basic duties he previously had. Claimant testified that he stayed on this shift until he quit in July, 1992 and that at some point his supervisor, Curtis Murphy, ceased to be satisfied with the claimant's work even though he was "saving the company hundreds of thousands of dollars." Claimant reiterated that Curtis Murphy intentionally raised the pressure on the pressure tank causing the bottle to explode as alluded to earlier herein. Claimant related that he resigned on the July date after working three hours that day because of the alleged verbal abuse and inconsistent job duties.

On the occasion of the first hearing the claimant admitted that he had been treated by Drs. Summers, Guild, Ritter and Russell and was presently seeing Dr. Russell every three months. He admitted he was not under the care of any other physicians at that time and he was not presently looking for work and that he was not having any of the headaches that he previously complained of. He further testified that "as long as he took his medication, he did well."

With reference back to the Administrative Judge Order of Judge Willie Rose, he noted that the overwhelming weight of the medical proof shows claimant has a genuine mental condition which substantially impairs his ability to engage in meaningful work activity, though there was some disagreement as to the nature of the problem or its permanent effect. Dr. Summers testified he first saw the claimant July 23, 1992 and concluded he was suffering from an acute schizophrenic episode and had an obsessive compulsive personality. As treatment, Dr. Summers prescribed electroconvulsive therapy and medication. He testified as well that this obsessive compulsive personality was not caused by his employment but that the acute schizophrenia was caused by it. He noted the claimant was unable to work during the time period he saw him and he believed the condition would be likely of a long term duration. Likewise, Dr. Stanley Russell, a psychiatrist, diagnosed claimant as having a mental disability caused by paranoid schizophrenia disorder due to a chemical imbalance in the brain rather than any job related incident or series of incidents. He also believed that claimant was occupationally disabled because of his mental condition and would for the remainder of his life need treatment for his paranoid schizophrenia disorder. Dr. Donald Guild (who saw the claimant in 1993) felt the claimant was suffering from atypical psychosis. This is a subcategory of a broader schizophrenia disorder whereby one loses contact with reality, but the symptoms do not clearly satisfy the classifications of a manic depressive illness or delusionary disorder. He felt the main cause of the claimant's problem was having a history of an obsessive compulsive personality and the family predisposition to mental illness. The record indicated that the claimant has other family members who were treated for mental problems. And, also, though Dr. Guild believes the claimant's employment did not cause his mental problem, he felt it did substantially aggravate it. Dr. Robert Ritter, a neuro psychiatrist, evaluated claimant in 1993 and thought that the claimant exhibited a delusionary paranoid disorder of a persecution type due to biochemical factors not caused or aggravated by claimant's employment. Dr. Ritter at that time testified that because the claimant was receiving proper medication he is presently able to handle his own affairs and go about normal activities. Judge Rose felt that as to the nature of the claimant's disabling mental condition which rendered him totally occupationally disabled, he was inclined to accept the testimony of Drs. Summer and Russell that the primary problem was due to his suffering from paranoid schizophrenic disorder. He further accepted Drs. Summer and Guild's findings that part of the claimant's problems was caused by compulsive obsessive personality. However, he noted that although it was well settled that a mental disability caused by work related accident is compensable, to substantiate a claim based on a mental disability the claimant must prove by clear and convincing evidence a causal connection between disability and employment (unaccompanied by physical trauma) and must be caused by something other than an ordinary incidence of employment. Reference is made to Fought v. Stuart C. Irby Co., 523 So.2d 314 (Miss. 1988). The determining question of this cause is whether the claimant's disability was caused by an event other than one that can be attributed to an ordinary incidence of employment. Judge Rose felt that considering the weight of the evidence, same does not show that claimant was subject to any intentional harassment, but does show he has a disabling mental condition that is biochemical in nature and together with the standard required to prove his claim, the only conclusion that could be reached was that claimant has failed to prove by clear, and convincing evidence the causal connection between his mental disability and his employment and for that reason he denied the claim. As referenced above in the procedural history, same was the conclusion of all higher courts. It is noted that for the reasons parties reiterated on the day of this hearing that this claim was not heard by the Supreme Court due to inaction by the claimant.
 

Upon evaluation of all testimony lay and medical and based upon the applicable standard for review for reopening of a Mississippi Workers' Compensation case, I hereby render the following findings of fact:

1. This Motion to Reopen Mr. Johnson's claim along with the testimony had at this hearing was reviewed by the Undersigned. As related earlier herein, the Undersigned also reviewed the file and pertinent parts therein related to the procedural history of this claim and the hearing had on the merits under the tutelage of Judge Willie Rose. It is noted that there is no credible and/or substantive reasoning for the reopening of this claim for any purpose and reference is hereby made to Mississippi Code Annotated, Section 71-3-53 (1972). In order for a case to be reopened, there must be a material change in condition and/or mistake in fact. Neither is the situation presently before the Commission, and the allotted time frame has long since passed.

2. With reference to the forwarding of the defense as to the Statute of Limitations, it is also found that this claim is barred by the applicable statute of limitations, namely Mississippi Code Annotated, Section 71-3-53 (1972), as cited above with reference to the continuing jurisdiction of the Commission.

3. Also of note is the employer and carrier attorney's contention that this case would be more appropriately had (if indeed an appeal could be timely) to the Supreme Court of the State of Mississippi and there is no reason for same to be heard in this forum.
 

IT IS, THEREFORE, ORDERED AND ADJUDGED that the claimant's Motion to Reopen this cause be and the same is hereby denied.

SO ORDERED this the 2nd day of November, 1999.

VIRGINIA WILSON MOUNGER
ADMINISTRATIVE JUDGE

ATTEST:
Brenda H. Goolsby, Secretary