MWCC NO. 95 05189-F-4176

ELLEN A. TOPPS                                                                                                                                EMPLOYEE

vs.

BINSWANGER MIRROR                                                                                                                 EMPLOYER
AND
THE TRAVELERS INSURANCE COMPANY                                                                                     CARRIER

REPRESENTING CLAIMANT:
Honorable William L. Cook, Jr., Attorney at Law, Batesville, Mississippi

REPRESENTING EMPLOYER AND CARRIER:
Honorable Franklin Williams, Attorney at Law, Oxford, Mississippi
 

The above styled cause came on for review in the offices of the Mississippi Workers' Compensation Commission, Jackson, Mississippi on the Claimant's "Petition for Review" by the Full Commission.

Having thoroughly studied the record and the applicable law, the Commission affirms the "Order of Administrative Judge" dated April 10, 2000.

SO ORDERED, this the 28th day of November, 2000.

MISSISSIPPI WORKERS' COMPENSATION COM ISSION con
BY: BARRETT SMITH
BARNEY SCHOBY
BEVERLY BOLTON

ATTEST:
Joann McDonald, Secretary
___________________________
 

MWCC NO. 95 05189-F-4176

ELLEN A. TOPPS                                                                                                                              CLAIMANT

vs.

BINSWANGER MIRROR                                                                                                              EMPLOYER
AND
THE TRAVELERS INSURANCE COMPANY                                                                                 CARRIER

APPEARING FOR CLAIMANT:
William L. Cook, Jr., Esq., Batesville, Mississippi

APPEARING FOR EMPLOYER AND CARRIER:
Franklin Williams, Esq., Oxford, Mississippi
 

Alleging that her condition had changed and that the Commission had made mistakes in determining the facts underlying its decision, Ellen A. Topps petitioned to reopen her previously denied claim for workers' compensation benefits.

Topps contends that she injured her back on May 26, 1994, while working for Binswanger Mirror Products, but she waited until April 10, 1995, to file her Petition to Controvert. Because Binswanger denied liability, Administrative Judge Charles L. Balch, III, held a hearing on Topps's claim on August 21, 1996.

After Administrative Judge Balch vacated his position with the Commission, this case was reassigned to Administrative Judge Virginia Wilson Mounger. In her April 15, 1997, decision denying Topps's claim for benefits, Administrative Judge Mounger held:

1 . The claimant has failed to meet the requisite burden of proof necessary to sustain a claim for a work-related injury. No persuasive lay testimony was had and no medical testimony corresponding thereto was evidenced either. Absent such, compensability may not lie. The pronouncements of all medical practitioners, sans one, are not supportive of this claim.

2. The treatment received by the claimant with reference to Dr. Howser was not reasonable and necessary and not the subject of a legitimate claim of referrals and thus must be disallowed and not be borne by this employer and carrier.

3. The claimant forwarded no evidentiary matter as to any job search efforts or inquiries necessary to formulate and support a loss of wage-earning capacity and none is found.

4. Based upon the comments above referenced and this Order as a whole, no pronouncement is made regarding the issue of estoppel.

Topps promptly appealed that decision to the Commission. In her appeal brief, Topps first argued that the Administrative Judge's Order was "contrary to the overwhelming weight of evidence." Brief of Employee, Appellant at 5. Topps contended that the Administrative Judge had "ignored Ms. Topps' testimony and subjective complaints of pain ... [and had] also ignored further medical testimony." Id. at 6.

Specifically, Topps claimed that the Administrative Judge had disregarded Dr. John Howser's "objective diagnosis that Ms. Topps suffered from an aggravated canal stenosis which started a lumbar facette syndrome that was complicated by a peripheral neuropathy, all of which were accompanied by marked pain, and his finding that she suffered from chronic pain, along with Dr. Windham's diagnosis of a lumbar disc rupture." Id. Topps also claimed that the Administrative Judge had rejected "Dr. Howser's conservative finding of a 2% to 5% permanent impairment to the body as a whole due to her [ie., Topps's] work injury." Id. at 5.

Topps's second argument on appeal was that the "Order of the Administrative Judge contains numerous errors of fact and law." Id. at 7. Topps then cited four specific examples of alleged errors:

First the Administrative Law Judge found that no back complaints were recorded by Dr. Snyder. This is contrary to his testimony.
. . .

Second, the Administrative Law Judge found that the MRI ordered by Dr. Windham proved to be normal. The Judge failed to recognize that the CT scan done by Dr. Windham revealed a central disc bulge.

Third, the Administrative Law Judge found that Dr. Windham's [sic¹] treatment of Ms. Topps was not necessary or reasonable, and not subject to a legitimate chain of referrals. This finding is simply erroneous.
. . .

Further, the Administrative Law Judge erred by stating that Ms. Topps' job search was less than diligent.

In addition to filing an appeal brief, Topps's attorney² presented oral argument to the Commission on October 27, 1997; nevertheless, the Commission summarily affirmed the Administrative Judge's Order denying benefits. Topps did not appeal the Commission's decision.

Nearly a year later, however, on October 26, 1998, Topps filed a Petition to Reopen the denied claim pursuant to Miss. Code Ann. §71-3-53 (1972). In her petition Topps alleged that "mistakes in fact were made [in the Administrative Judge's Order and that] ... Topps' condition has changed from both a medical and a vocational standpoint and, as a result, she is now totally and permanently disabled." Petition to Reopen at 2.

At the March 1, 2000, hearing on her petition, Topps testified that the Administrative Judge had erred in finding that the testimony of only one doctor had supported Topps's claim. Instead Topps stated that five physicians had substantiated her back injury.

According to Topps, Drs. D. L. Harrison, Todd Lee, and Thomas L. Windham had found that she was in pain; Dr. Thomas Glasgow on February 23, 1995, had concluded that Topps had a mild disc bulge at the L5-S1 disc; and, Dr. John P. Howser on March 7, 1995, had discerned in a CT scan of Topps's spine a bulge at the L-5 disc. Topps added that she had been approved for Social Security Disability Benefits in April 1997.

Topps also testified concerning the Administrative Judge's conclusion that Topps had produced no evidence of an unsuccessful job search to support a finding of a loss of wage-earning capacity. Topps stated that between June 1998 and January 2000 she had contacted fifteen businesses in the Grenada area about a job and had updated her applications with the Mississippi Employment Service every sixty days. Topps said that she had told each prospective employer about her back injury, that she had received no job offers, and that the Mississippi Employment Service had not referred her for any jobs.

On cross-examination Topps agreed that the employer's attendance records correctly indicated that in June 1994 (the month following the accident on May 26, 1994), she had not missed any days of work until the 23rd and 24th; that she had not been absent at all in July 1994; and, that in August 1994 she had missed only the 3rd and 4th because of bronchitis and the 22nd because of pain in her legs. Concerning the medical records, Topps admitted that Dr. Harrison's May 26, 1994, report did not mention a back injury but referred instead to a "hurt right leg above knee;" and, that Dr. Lee's notes of June 24, June 30, July 14, September 15, and September 20, 1994, did not mention any back pain or injury but instead described Topps's various complaints as pain and numbness in the left leg, hot flashes, dizziness, fatigue, and a rash.

Then Dr. Robert P. Christopher testified by affidavit on Topps's behalf. Christopher stated that he had reviewed the records of Drs. Windham, Howser, Anderson, and Gupta; had examined Topps; had diagnosed her as suffering from "a chronic lumbosacral myofascial strain of the low back with radiculopathy superimposed on pre-existing degenerative arthritis in the lumbar spine," Claimant's Exhibit 1 at 5; had assigned her a permanent impairment rating of ten percent (10%) to the body as a whole; and, had concluded that, because of the job restrictions he had placed on Topps, she was "permanently and totally impaired from performing any work for which she is qualified by education, training and/or experience." Id.

In addition, Topps's attorney attempted to introduce the November 7, 1996, report of Dr. William E. Anderson, III. Identification Exhibit 4. Because that report had not been provided previously to the Employer/Carrier's attorney, the report was not admitted.

The Employer and Carrier's attorney then offered a February 29, 2000, report from Senior Rehabilitation Specialist David E. Stewart. Employer/Carrier's Exhibit 2. Because that report had not been provided previously to Topps's attorney, the report was admitted for impeachment purposes only. In essence, Stewart stated that Topps should have no difficulty obtaining employment in the Grenada area.

Turning now to the standard for reviewing a Petition to Reopen, Topps has the burden of proving the requisite mistakes of fact or change in condition. North Mississippi Medical Center v. Henton, 317 So.2d 373 (Miss. 1975). "It is discretionary with the commission whether or not it will reopen a case.... [T1he action is not mandatory. So long as its discretion is not abused, the commission's action in refusing to reopen the case is not reversible error." Dunn, Mississippi Workmen's Compensation §336 (3d 1982) (footnotes omitted).

Considering first Topps's request to reopen because of mistakes in factual determination, Dunn stated in his widely recognized treatise:

[T]he rule has evolved that a mere error in a factual finding by the commission is not enough to authorize reopening the case where the error is obvious to the extent that it could have been a proper subject for an assignment of error on appeal and no legal excuse for not perfecting an appeal is shown to exist. The mistake, therefore, must be one which involves the failure to consider facts which are not reflected on the record made on the hearing before the commission and one which is not due merely to the failure of the party involved to produce available evidence. Any different approach would afford a party two or more trials instead of the single trial contemplated by the Act . . . . The party seeking to reopen ... must meet the burden of proving a mistake within the stated rule.

In the present case Topps's basic argument is that the Administrative Judge mistakenly found that there was not sufficient medical evidence to substantiate Topps's allegation of a work-related injury. That is not a new argument.

As discussed earlier, Topps made the same assertion in her appeal brief to the Commission. It is clear, in Topps's eyes at least, that this alleged "error is obvious to the extent that it ... [was] a proper subject for assignment of error on appeal. "³ Id. For that reason Topps has not met her "burden of proving a mistake within the stated rule," Id.; therefore, her attempt to reopen her claim on the basis of mistakes in fact must fail.

Now as to the request to reopen based on a change in condition, Topps argues that because of her physical condition and loss of wage-earning capacity, "she is now totally and permanently disabled." Petition to Reopen at 2. That also is not a new argument.

Topps asserted in her appeal to the Commission that her alleged "injury has . . . caused . . . [her] to be totally disabled." Brief of Employee, Appellant at 4. How can there be a change in Topps's condition when she has consistently argued that she is totally disabled?

Even assuming arguendo that Topps has demonstrated that her condition has changed, that showing would not affect the Administrative Judge's dispositive determination that Topps had not met "the requisite burden of proof necessary to sustain a claim for a work-related injury." Order of Administrative Judge at 14 (April 15, 1997) (emphasis added). In other words, Topps may be totally disabled now, but she has not proven a causal connection between a work-related injury and her alleged disability.

Faced with that lack of causality, "the change in condition did not have the legal effect to bring into being the requisite causal connection for compensability." Aetna Cas. & Sur. Co. v. Espinosa, 469 So.2d 64, 67 (Miss. 1985). See Dunn, Mississippi Workers' Compensation §336.1 (3d ed. Supp. 1990). For that reason, Topps's attempt to reopen her claim on the basis of a change of condition must fail.

Accordingly; the claimant's Petition to Reopen is denied.
 

IT IS, THEREFORE, ORDERED AND ADJUDGED that the Petition to Reopen is denied.

SO ORDERED this the 10th day of April, 2000.

MARK HENRY
ADMINISTRATIVE JUDGE

ATTEST:
Brenda H. Goolsby, Secretary
___________________________

1. The Administrative Judge actually made these determinations concerning Dr. Howser, not Dr. Windham. Opinion at 14 (April 15, 1997).

2. From April 7, 1995, through the appeal to the Commission, Topps was represented by M. Collins Bailey, Esq., of Batesville, Mississippi. On the Petition to Reopen, Topps is represented by William L. Cook, Jr., Esq., of Batesville, Mississippi.

3. In this quotation Dunn may have used "appeal" to refer to an appeal from the Commission to the Circuit Court, but the same principle should apply to an appeal from the Administrative Judge to the Commission.