BRIEF OF THE APPELLANT

Transcription

1 E-Filed Document Sep :39: WC COA Pages: 29 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO WC COA MWCC NO K-9582 CYNTHIA JOHNSON APPELLANT v. CITY OF JACKSON APPELLEE On Appeal from the Workers Compensation Commission, Mississippi BRIEF OF THE APPELLANT ORAL ARGUMENT REQUESTED Christopher H. Neyland Counsel for the Appellant Morgan & Morgan, P.A. 188 East Capitol Street, Ste. 777 Jackson, Mississippi Telephone: (601)

2 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO WC COA MWCC NO K-9582 CYNTHIA JOHNSON APPELLANT v. CITY OF JACKSON APPELLEE CERTIFICATE OF INTERESTED PARTIES THE UNDERSIGNED counsel of record certifies that the following listed persons and/or entities have an interest in the outcome of this case. These representations are made in order that the judges of the Court of Appeals of the State of Mississippi may evaluate possible disqualifications or recusal. 1. Cynthia Johnson, Appellant; 2. City of Jackson, Appellee; 3. Christopher H. Neyland, Esq., Counsel for the Appellant; 4. Carrie Johnson, Esq., Counsel for the Appellee; 5. Dorothy V. Thomas, Claims Supervisor with the City of Jackson Risk Management 6. Hon. Melba Dixon, Administrative Judge, Miss. Workers Compensation Commission 7. Liles Williams, Chairman, Mississippi Workers Compensation Commission 8. Thomas A. Webb, Esq., Commissioner, Mississippi Workers Compensation Commission 9. Beth Harkins Aldridge, Commissioner, Mississippi Workers Compensation Commission SO CERTIFIED, this 10 th day of September, i

3 Respectfully Submitted, /s/ Christopher H. Neyland Christopher H. Neyland Counsel for the Appellant ii

4 TABLE OF CONTENTS CERTIFICATE OF INTERESTED PARTIES.. TABLE OF CONTENTS TABLE OF AUTHORITIES.. i iii iv STATEMENT OF THE ISSUES 1 STATEMENT OF THE CASE... 2 A. Nature of the Case 2 B. Course of Proceedings and the Disposition in the Court Below 4 C. Statement of the Facts 5 STANDARD OF REVIEW 8 SUMMARY OF THE ARGUMENT ARGUMENT.. 10 I. The Mississippi Workers Compensation Commission erred when it affirmed the administrative law judge and determined that Cynthia Johnson s claim for carpal tunnel syndrome and depression were barred by the two-year statute of limitation 10 II. III. The Mississippi Workers Compensation Commission erred when it overturned the administrative law judge and determined that Cynthia Johnson s depression, bilateral ulnar neuropathy and Complex Regional Pain Syndrome Type II claims are barred by the two-year statute of limitations.. 15 The Order of the Mississippi Workers Compensation Commission as it relates to all claims of the Appellant was clearly erroneous and applied incorrect legal standards 18 CONCLUSION..23 CERTIFICATE OF SERVICE..24 iii

5 TABLE OF AUTHORITIES Supreme Court of Mississippi Cases Lucedale Veneer Co. v. Rogers, 48 So. 2d 148, 150 (Miss. 1950) Nat'l Sur. Corp. v. Kemp, 64 So. 2d 723, 725 (Miss. 1953) L.B. Priester & Son, Inc. v. Bynum's Dependents, 142 So. 2d 30, 31 (Miss. 1962) Struthers Wells-Gulfport, Inc. v. Bradford, 304 So. 2d 645, 649 (Miss. 1974)...11 Jenkins v. Ogletree Farm Supply, 291 So. 2d 561, 563 (Miss. 1974) ,13,14,15,16 Quaker Oats Co. v. Miller, 370 So. 2d 1363, 1366 (Miss. 1979)... 10,12 Lester Eng.g v. Richland Water & Sewer Dist., 504 So.2d 1185, 1186 (Miss.1987)....8 Robinson v. Packard Elec. Div., Gen. Motors Corp., 523 So. 2d 329, 332 (Miss. 1988) Morris v. Lansdell s Frame Co., 547 So. 2d 782 (Miss. 1989)... 8 Overstreet v. Merlos, 570 So.2d 1196, 1197 (Miss.1990) Miss. Transp. Comm'n v. Dewease, 691 So. 2d 1007, 1016 (Miss.1997) Court of Appeals of Mississippi Cases Fortenberry v. City of Hattiesburg, 758 So.2d 1023 (Miss.Ct.App.2000)...8 Waffle House, Inc. v. Allam, 976 So. 2d 919 (Miss. Ct. App. 2007)....5 Smith v. Nissan N. Am., 102 So. 3d 321, 323 ( 16) (Miss. Ct. App. 2012).. 10,20,21 Brown v. Illinois Tool Works, Inc., 135 So. 3d 161, 165 ( 20) (Miss. Ct. App. 2011)...8,11,15,19,22 Statutes Miss. Code Ann ,20 John R. Bradley and Linda R. Thompson, Mississippi Workers Compensation 4: (Thomson-West 2006) iv

6 STATEMENT OF THE ISSUES I. Did the Mississippi Workers Compensation Commission err when it affirmed the administrative law judge and determined that Cynthia Johnson s claim for carpal tunnel syndrome and depression were barred by the two-year statute of limitations? II. Did the Mississippi Workers Compensation Commission err when it overturned the administrative law judge and determined that Cynthia Johnson s depression, bilateral ulnar neuropathy and Complex Regional Pain Syndrome Type II claims are barred by the two-year statute of limitations as well? III. The Order of the Mississippi Workers Compensation Commission as it relates to all claims of the Appellant was clearly erroneous and applied incorrect legal standards. 1.

7 STATEMENT OF THE CASE A. Nature of the Case Cynthia Johnson (hereinafter Ms. Johnson ) suffered a progressive injury to both her right and left upper extremities due to her work with the City of Jackson. Ms. Johnson was deputy court clerk for the City from her start date of April 16, 2003 until her last day of work, January 21, As a deputy court clerk, Ms. Johnson repetitively used her hands to type on a keyboard, grab paper, file, lift books and perform the other tasks of the job of deputy court clerk. On June 6, 2008, Ms. Johnson treated with her family doctor, Dr. Stephen Coachys, with chief complaints of her blood pressure going up and feeling dizzy. On that date, Dr. Coachys referenced in his impressions that Ms. Johnson may have carpal tunnel syndrome and ordered a nerve conduction study. Following the nerve conduction study, which did not definitively diagnose Ms. Johnson with carpal tunnel syndrome, Dr. Coachys recommended to Ms. Johnson that she follow up with an orthopedic surgeon. Ms. Johnson chose not to do so, as she was not having any difficulty in performing her work tasks. She continued to work for the City of Jackson throughout all of 2008, 2009, 2010 and into January of 2011, all as a deputy court clerk, and performing the same tasks described above. On or about January 21, 2011, Ms. Johnson reported to the City that she was having pain and swelling in both of her hands and wrists and was unable to continue working. The City of Jackson completed an accident report and immediately provided medical benefits to Ms. Johnson as a self-insured employer for worker s compensation purposes. The City of Jackson also provided indemnity benefits, dating from January 21, Ms. Johnson ultimately treated with Dr. David Gandy. Ms. Johnson s first visit with Dr. Gandy was on March 2, 2011, and Dr. 2.

8 Gandy diagnosed Ms. Johnson with bilateral carpal tunnel syndrome and possible ulnar neuropathy on both upper extremities. Dr. Gandy testified in his deposition that he had an opportunity to review the 2008 records from Dr. Coachys, and that the data from the nerve conduction study from 2008 did not localize, which Dr. Gandy explained meant that the 2008 nerve conduction study did not indicate whether the neuropathy was located at the elbow or at the wrist, and that the ulnar nerve could be at both places. As a result, Dr. Gandy ordered a new nerve conduction study, which was conducted by Dr. Michael Graeber. Following the new nerve conduction study by Dr. Graeber, Dr. Gandy confirmed his diagnosis of bilateral carpal tunnel syndrome and bilateral ulnar neuropathy. Following conservative treatment which did not resolve Ms. Johnson s complaints, a surgery was scheduled to release the pressure on the carpal tunnel nerve on the right and the ulnar nerve at the elbow. This surgery was performed on April 6, 2011, after having been approved by the City of Jackson and was paid for by the City of Jackson. Following this surgical procedure, Dr. Gandy prescribed physical therapy, which was approved by the City of Jackson. On May 9, 2011, during an office visit, Dr. Gandy makes note that the Claimant may have early causalgia, which Dr. Gandy testified was a different name for complex regional pain syndrome. This is the first reference to complex regional pain syndrome made by any of Ms. Johnson s treating physicians. Dr. Gandy then referred Ms. Johnson to Dr. Gordon Lyons for pain management. Dr. Lyons confirmed Ms. Johnson s diagnosis of complex regional pain syndrome and referred her to Dr. Leon Grigoryev for treatment of complex regional pain syndrome. Ms. Johnson also continued to treat with Dr. Gandy, and Dr. Gandy testified that as 3.

9 of his last office visit with Ms. Johnson (January 13, 2012), he was of the opinion that she may need surgery again on her right elbow, as well as the left carpal tunnel and ulnar nerve at the elbow. B. Course of Proceedings and Disposition in the Court Below On or about November 21, 2011, a Petition to Controvert was filed with the Commission by Ms. Johnson alleging that she sustained a compensable work injury on January 21, On the Petition, Ms. Johnson, through her previous counsel, Carlos Moore, listed as the description of the accident repetitive use of both upper extremities and the body parts involved were listed as hands. On or about December 29, 2011, an Amended Petition to Controvert was filed by Claimant s previous counsel, adding in hand-written words of progressive injury in the description of accident or illness, and adding in hand-written words both upper extremities, bilateral carpal tunnel syndrome & bilateral ulnar neuropathy. On or about January 9, 2012, an Answer was filed by the Employer denying the claim. On or about January 13, 2012, another Amended Petition was filed by Claimant s previous counsel, adding depression as an occupational disease, and identifying providers related to the Claimant s depression. There was no Answer filed to the last Amended Petition. The City of Jackson filed a Motion to Dismiss, asserting that the Claimant s statute of limitations had run on her claim. Following a hearing on the City s motion, the Administrative Judge denied the motion, in part, and granted it as to Ms. Johnson s claims of depression. Ms. Johnson asserted that the order of the administrative judge was unclear as to whether her carpal tunnel claims were not dismissed. The City filed a petition for review, and Ms. Johnson filed a cross-petition for review 4.

10 related to the depression claim, as well as for clarification on the carpal tunnel syndrome question. The full Commission affirmed in part and reversed in part the Administrative Judge s Order. On June 10, 2015, the full Commission denied and dismissed all of Ms. Johnson s claims, finding that all of the claims addressed in the Administrative Judge s Order were barred by the applicable statute of limitations. Ms. Johnson timely filed this appeal to the Court of Appeals of the State of Mississippi. C. Statement of the Facts a. Claimant s Injury Cynthia Johnson was a deputy court clerk employed by the City of Jackson from on or about April 16, 2003 until her last day of work, January 20, (R. Vol. 3, at 53). During that time, Ms. Johnson s work tasks included typing, filing, picking up books, grabbing of paper, pulling paper, pulling court files, and other tasks which required her to use her hands and wrists in a repetitive manner. (R. Vol. 3, at 54). On June 6, 2008, Ms. Johnson treated with her family doctor, Dr. Stephen Coachys, with chief complaints of her blood pressure going up and feeling dizzy. (R. Gen. Exh. 3 at 44). On that date, Dr. Coachys referenced in his impressions that Ms. Johnson may have carpal tunnel syndrome. (R. Gen. Exh. 3 at 12). A nerve conduction study was performed on June 9, 2008, and the results indicated that a mild left median neuropathy at the wrist should be considered, as well as a mild right median neuropathy at the wrist and to also consider a neuropathy involving the left and right ulnar nerves. Data does not localize. (R. Gen. Exh. 3 at 16, 17). The nerve conduction test states, parenthetically, that the study was possibly suggestive of 5.

11 carpal tunnel syndrome. (R. Gen. Exh. 3 at 95). Following the nerve conduction study, Dr. Coachys recommended to Ms. Johnson that she follow up with an orthopedic surgeon for further evaluation related to the findings of the nerve conduction study to find out whether she would need surgery. (R. Gen. Exh. 3 at 44). Ms. Johnson chose not to do so, as she was not having any difficulty in performing her work tasks. (R. Vol. 3, at 56). Ms. Johnson kept seeing Dr. Coachys for symptoms unrelated to her hand and wrist pain, until January 14, 2011, when she reports bilateral hand pain to Dr. Coachys on that date. (R. Gen. Exh. 3 at 43). The January 14, 2011 office visit if the first time Ms. Johnson presented to Dr. Coachys with a primary complaint of pain in her hands. (R. Gen. Exh. 3 at 43, 44). Ms. Johnson continued to work for the City of Jackson throughout all of 2008, 2009, 2010, and into January of 2011 as a deputy court clerk, performing the above described tasks. (R. Vol. 3, at 56). On or about January 20, 2011, Ms. Johnson went to her supervisor and reported that she was having significant problems with her left and right hands/wrists, to the point where she was unable to perform her work duties. (R. Vol. 3, at 56). On February 11, 2011, the Employer filed with the Commission a First Report of Injury. (R. Vol. 1, at 31). On the First Notice of Injury, a form which is filled out and signed by the Employer and its representatives, the Employer states that the date the Employer was notified of the work injury was January 20, 2011, that the disability began on January 21, (R. Vol. 3, at 41). The Claimant reported to the Employer that her injury occurred on January 20, (R. Vol. 3, at 42). The Claimant reported to the Employer that her injury occurred on January 20, 2011 in that that was the point where she was unable to continue doing her job and needed to seek medical treatment. (R. Vol. 3, at 56). 6.

12 However, on that First Report of Injury, the City of Jackson put an injury date of June 6, (R. Vol. 1, at 31). Ms. Johnson did not report this injury date to the City of Jackson. (R. Vol. 3, at 47). In fact, the City of Jackson, through its representative, testified at the motion hearing that this June 6, 2008 date was revealed once we requested the medical reports and got the nerve conduction study that did reveal that she was having problems and has this nerve conduction study done back in (R. Vol. 3, at 47). Following her report of injury on January 20, 2011, Ms. Johnson immediately started to receive medical treatment and indemnity benefits provided by the City of Jackson. She was allowed to change physicians, ultimately treating with Dr. David Gandy. Dr. Gandy diagnosed Ms. Johnson with moderate carpal tunnel syndrome on the right and mild carpal tunnel syndrome of the left. (R. Gen. Exh. 4, page 6). She underwent a surgical procedure by Dr. David Gandy on April 6, 2011, and was paid temporary total disability benefits. (R. Gen. Exh. 4 at 10; R. Vol. 1, at 4). Following her surgical procedure, Ms. Johnson developed Complex Regional Pain Syndrome Type II, which was due to the fact that she had surgeries for carpal tunnel syndrome on the right side and ulnar neuropathy of the right elbow. (R. Gen. Exh. 5 at 23, 26). She was then referred by Dr. Gandy to Dr. Lyons for pain management and to Dr. Grigoryev for treatment of complex regional pain syndrome. (R. Gen. Exh. 5 at 21). For some reason, in November of 2011, the City of Jackson suspended her benefits. (R. Vol. 1, at 32), and later claimed that the medical and indemnity benefits had been provided in error. 7.

13 STANDARD OF REVIEW I. The Commission s decision will be overturned if it is clearly erroneous or arbitrary and capricious. Generally, the application of a statute of limitations is a question of law which is reviewed de novo. Brown v. Illinois Tool Works, Inc., 135 So. 3d 161, 165 ( 20) (Miss. Ct. App. 2013) (quoting Caves v. Yarbrough, 991 So. 2d 142, 146 ( 15) (Miss. 2008)). However, it is an issue of fact for the Commission to determine when the injury becomes reasonably apparent. Id. (citing Tabor Motor Co. v. Garrard, 233 So. 2d 811, 817 (Miss. 1970)). The Commission s findings should be supported by substantial evidence. Morris v. Lansdell s Frame Co., 547 So. 2d 782, 784 (Miss. 1989) (citing Myles v. Rockwell International, 445 So.2d 528, 538 (Miss. 1983)) (emphasis added.). Where no evidence or only a scintilla of evidence supports a Worker s Compensation Commission decision, this court does not hesitate to reverse. Waffle House, Inc. v. Allam, 976 So. 2d 919, 922 (Miss. Ct. App. 2007) (quoting Foamex Prods., Inc. v. Simons, 822 So. 2d 1050, 1053 (Miss. Ct. App. 2002)). A motion under Rule 12(b)(6) tests the legal sufficiency of the complaint. Fortenberry v. City of Hattiesburg, 758 So.2d 1023 (Miss.Ct.App.2000). In order to grant this motion there must appear to a certainty that the plaintiff is entitled to no relief under any set of facts that could be proved in support of the claim. Id. (citing Lester Eng'g v. Richland Water & Sewer Dist., 504 So.2d 1185, 1186 (Miss.1987)). Upon a motion for dismissal pursuant to Rule 12(b)(6), the pleaded allegations of the complaint must be taken as true, and a dismissal should not be granted unless it appears beyond a reasonable doubt that the plaintiff can prove no set of facts in support of his claim which entitles him to relief. Overstreet v. Merlos, 570 So.2d 1196, 1197 (Miss.1990). 8.

14 SUMMARY OF THE ARGUMENT Cynthia Johnson was injured during the course and scope of her employment and is thereby entitled to compensation. The Administrative Judge dismissed Claimant s carpal tunnel syndrome and depression claims because they were barred by the two-year statute of limitations, and held that Claimant s bilateral ulnar neuropathy and Complex Regional Pain Syndrome Type II claims were not barred by the two-year- statute of limitations. The Commission then affirmed in part the Administrative Judge s Order as to the dismissal of Claimant s claims for carpal tunnel syndrome and depression; and reversed in part the Administrative Judge s Order as to the timeliness of Claimant s bilateral ulnar neuropathy and Complex Regional Pain Syndrome Type II claims. The Commission found that all claims were time barred and dismissed them by ignoring the Mississippi Supreme Court s precedents and reviewing the evidence in a light which was unfavorable to the claimant, Ms. Johnson. The Mississippi Workers Compensation Commission s decision was arbitrary and capricious. The Commission s ruling was clearly erroneous and unsupported by substantial evidence as required by precedent. The Commission concluded that enough information had been provided to Ms. Johnson regarding her injuries on June 6, 2008 by her family physician without defining when a progressive injury is apparent to the claimant. The Mississippi Supreme Court has held that the key in determining when a progressive injury occurred is when a doctor relates the injury to the work. However, the Commission completely ignored the precedent of the appellate courts of Mississippi and made its ruling arbitrarily in favor of the employer/self-insured. Further, precedent of the appellate courts of Mississippi makes it clear that an injury becomes disabling when an injured worker is unable to perform his or her job. The Commission ignored this precedent in issuing its order. 9.

15 ARGUMENT I. The Workers Compensation Commission s decision that Cynthia Johnson s claim as to the carpal tunnel syndrome was barred by the two-year statute of limitation was clearly erroneous and capricious. Early in the history of the Workers' Compensation Law, this Court recognized that the act should be given a broad and liberal construction as to both individual cases and the laws that govern them. L.B. Priester & Son, Inc. v. Bynum's Dependents, 142 So. 2d 30, 31 (Miss. 1962). Doubtful cases are to be resolved in favor of compensation so that the beneficial purposes of the act may be achieved. Miss. Transp. Comm'n v. Dewease, 691 So. 2d 1007, 1016 (Miss. 1997); Robinson v. Packard Elec. Div., Gen. Motors Corp., 523 So. 2d 329, 332 (Miss. 1988); Nat'l Sur. Corp. v. Kemp, 64 So. 2d 723, 725 (Miss. 1953); Lucedale Veneer Co. v. Rogers, 48 So. 2d 148, 150 (Miss. 1950). Section (1) sets out the statute of limitations for workers compensation claims. It provides that if no payment of compensation (other than medical treatment or burial expense) is made and no application for benefits is filed with the commission within two (2) years from the date of the injury or death, the right to compensation therefor shall be barred. Carpel tunnel syndrome has been considered a latent infirmity and is not immediately recognizable. Smith v. Nissan N. Am., 102 So. 3d 321, 323 ( 16) (Miss. Ct. App. 2012) (quoting Shipp v. Thomas and Betts, 13 So. 3d 332, 334 ( 18) (Miss. Ct. App. 2009)). For a latent injury, the time period for filing a claim does not begin to run until the claimant, as a reasonable person, recognizes the nature, seriousness, and probable compensable character of his or her injury. Quaker Oats Co. v. Miller, 370 So. 2d 1363, 1366 (Miss. 1979). The claimant recognizes his or her injury when 10.

16 claimant has reason to foresee or ascertain the likelihood of compensable injury from which incapacity and its extent can reasonably be ascertained by medical evidence. Struthers Wells- Gulfport, Inc. v. Bradford, 304 So. 2d 645, 649 (Miss. 1974). The date of accident is the date on which disability manifests itself. Jenkins v. Ogletree Farm Supply, 291 So. 2d 561, 563 (Miss. 1974). The date the disability manifests itself is generally identified as the date the worker s condition progresses to the point that he or she is forced to quit his or her job. Id. Id. at 565. (emphasis added). In Jenkins, Jenkins, the Claimant suffered from a mild case of asthma when he began working in Jenkins complained of breathing difficulties to Dr. Laird while hospitalized for stomach problems in Id. at 564. In 1965, Jenkins was treated for emphysema. Id. He was hospitalized for four days in 1968 for emphysema. Id. In February 1969, he s condition had progressed to the stage where he was advised by two doctors to quit his job. Id. The Mississippi Supreme Court held that Jenkins accidental injury occurred when claimant s disability became so acute as to make him quit his job. Id. The Court of Appeals of Mississippi held in Brown v. Ill. Tool Works, Inc. that with a latent injury, the claim period for the statute of limitations runs from the time the compensable injury becomes reasonably apparent. 135 So. 3d 161, 165 (Miss. Ct. App. 2013). The time when the injury becomes reasonably apparent is an issue of fact for the Commission to determine. Id. The issue of fact must be based upon substantial evidence. Id. (citing Jordan v. Pace Head Start, 852 So. 2d 28, 30 ( 4) (Miss. Ct. App. 2002)). In Brown, the Administrative Judge ruled that the statute of limitations began to run on November 16, 2001, when Brown was diagnosed with carpel tunnel syndrome by her 11.

17 primary-care physician. Id. However, the full Commission held that the medical records from that date did not clearly establish a work-related injury. Id. Rather, the Commission found the statute began to run on January 8, 2003, when Dr. Sandifer [the orthopedic surgeon], on referral from Dr. Warrington [primary-care physician], more clearly found Brown s carpel tunnel syndrome to be work related. Id. The Mississippi Supreme Court held in another workers compensation case that a latent injury does not cause the statute to begin to run until the disabling nature of the injury manifests itself. Quaker Oats Co. v. Miller, 370 So. 2d 1363, 1365 (Miss. 1979) (citing Pepsi Cola Bottling Co. of Tupelo, Inc. v. Long, 362 So. 2d 182 (Miss. 1978); Struthers Wells-Gulfport, Inc. v. Bradford, 304 So. 2d 645 (Miss. 1974); and Tabor Motor Co. v. Garrad, 233 So. 2d 811 (Miss. 1970)). The Court adopted the rule that a claimant s awareness should arise from recognizing the nature, seriousness, and probable compensable character of the injury. Id. at (citing Larson, Workmen s Compensation, (1978)). A compensable injury means that the disabling injury was work related. Id. If the injury was from an apparently minor accident, it was impossible for the claimant to know that it would develop into a compensable injury. Id. In Quaker Oats, the Court held that the statute of limitations began to run when the claimant left his employment on sick leave. Id. It was at that time the claimant, as a reasonable person, knew or should have known the nature, seriousness and disabling character of his disease. Id. The claimant s testimony showed that he had actual knowledge of his disability and that it was caused by a work-connected aggravation of hypertension. Id. Another worker s compensation claimant sought compensation after she was bitten by a spider while working for the employer. Struthers Wells-Gulfport, Inc. v. Bradford, 12.

18 304 So. 2d 646 (Miss. 1974) The Mississippi Supreme Court held that in the two-year statute, injury refers to a compensable injury from which incapacity and its extent can reasonably be ascertained by medical evidence. Id. at 649. Consequently, the Court decided that the statute of limitations did not begin to run when claimant was bitten by the spider because she had no compensable injury resulting from the spider bite until it became reasonably apparent that she had a disability arising from the spider bite. Id. The Mississippi Workers Compensation Commission clearly erred when it concluded that Ms. Johnson was reasonably aware she had sustained work-related carpal tunnel injuries on the date of her diagnosis by the family physician, Dr. Coachys on June 6, Like Jenkins, during the first visit with Dr. Coachys on June 6, 2008, Ms. Johnson mentioned that her hands were hurting. However, this was not her chief complaint. Ms. Johnson kept seeing Dr. Coachys for symptoms unrelated to her hand pain, until January 14, 2011, when she reports to him that her chief complaint is bilateral hand pain. Applying the same rationale in Jenkins, Ms. Johnson s injury occurred on January 20, 2011 when she reported to the Employer that her injury had progressed to the stage that she was unable to continue doing her job and needed to seek medical treatment. Although Dr. Coachys performed a Nerve Conduction Test and reviewed the test result with Ms. Johnson, Dr. Coachys never explicitly told her that the Carpal Tunnel Syndrome was related to her work. In fact, Dr. Coachys explained in his Deposition that he only intended for Ms. Johnson to seek further evaluation from an orthopedic surgeon to find out whether she would need surgery. Additionally, the June 9, 2008 nerve conduction test doesn t even make a definitive diagnosis of carpal tunnel syndrome. 13.

19 Furthermore, as decided by the Mississippi Court of Appeal in Brown, the key in determining when an injury such as Carpal Tunnel Syndrome is when a doctor relates the injury to the work. The first time a physician could have related Ms. Johnson s carpal tunnel syndrome and ulnar neuropathy to Ms. Johnson s work was during the March 2, 2011 office visit with Dr. Gandy. Prior to that date, no physician had indicated to Ms. Johnson that her injuries were related to her employment with the City of Jackson. As Dr. Gandy made clear in his deposition, he related her diagnosis of bilateral carpal tunnel syndrome and ulnar neuropathy to her employment, and did so based upon a reasonable degree of medical probability (R. Gen. Exh. 4, page 9). The Mississippi Workers Compensation Commission arbitrarily concluded that Ms. Johnson was reasonably aware that she had sustained work-related Carpal Tunnel injuries on the date of her diagnosis by Dr. Coachys on June 6, Notwithstanding the vagueness of a carpal tunnel diagnosis in June of 2008, and the fact that Dr. Coachys never indicated to Ms. Johnson that her possible carpal tunnel syndrome was related to her work, the Commission concluded that Ms. Johnson should have known that her problems were work related and should have received care in Of course, this finding by the Commission also ignores the fact that Ms. Johnson did not need treatment in 2008 for carpal tunnel syndrome (or any other condition), as she was able to fully perform her job duties throughout 2008, 2009, 2010 and into January of In so doing, the Commission simply ignored relevant case law which would have necessitated a different conclusion. Applying the Jenkins decision to the facts at hand, the Commission would have been compelled to conclude that Ms. Johnson s date of injury was 14.

20 January 20, 2011, the date she was no longer able to perform her job. Applying Brown v. Ill. Tool Works, Inc., the Commission would have been compelled to conclude that Ms. Johnson s latent injury could not have been readily apparent to her until some treating physician related her carpal tunnel syndrome and ulnar neuropathy to her employment. And this was not done by Dr. Coachys in There is no evidence of that. No doctor addressed Ms. Johnson s causal relationship between her employment and her injuries until Dr. Gandy did so, after her January 20, 2011 report to the City of Jackson that she was no longer able to perform her job duties. Therefore, the Commission s holding was arbitrary and capricious when it held that Ms. Johnson was reasonably aware that she had sustained work-related carpal tunnel injuries on June 6, 2008, and thus her claim was barred by the statute of limitation. II. The Workers Compensation Commission s decision that Cynthia Johnson s claim as to the depression, Ulnar Neuropathy, and Complex Regional Pain Syndrome were barred by the two-year statute of limitation was clearly erroneous and capricious. The Mississippi Supreme Court has recognized that where a claimant s employment contributes to his condition, the injury is compensable. Jenkins, 291 So. 2d at 563. Also, it is well settled that an injury arises out of the employment when there is a causal connection between it and the job. Id. The injury may accrue gradually over a reasonably definite and not a remote time. Id. at 564. The onset of disability may be gradual and progressive and the ultimate disability may result from the cumulative impact of activities occurring in employment and operating upon the employee s body or his physical weaknesses or infirmities. Id. at 563 (citing Dunn, Mississippi Workmen s Compensation 150, at (2d Ed. 1967)). Further, 15.

21 the Mississippi Supreme Court has held that for certain purposes the date of accident may be identified with the onset of pain occasioning medical attention Id. at (citing 1A Larson, Workmen s Compensation Law, 39.50, at 7-227, (1973)). In Jenkins, the claimant was able to perform his work duty when he began working in 1963 although he suffered from a mild case of asthma. Id. at 564. He complained of breathing difficulties to Dr. Laird while hospitalized for stomach problems in Id. He was treated for emphysema in 1965 and Id. at 565. In February, 1969, the claimant s condition had progressed to the point that he was advised by his doctors to quit his job. Id. The Mississippi Supreme Court held in this case that it is apparent that the dates mentioned above would supply the necessary evidence for proving that Jenkins gradual injury occurred within a reasonably definite and not too remote period of time. Id. The Mississippi Workers Compensation Commission erred when it concluded that sufficient information was provided to Ms. Johnson in 2008 which made readily apparent the existence of ulnar neuropathy. In fact, Dr. Coachys nerve conduction study showed mild medial nerve neuropathy at the right wrist and possible neuropathy of the left and right ulnar nerves, Ms. Johnson s ulnar neuropathy was not confirmed until March 2 nd, 2011 by Dr. Gandy after she reported a work injury to City of Jackson on January 20, Just like Ms. Johnson s carpal tunnel syndrome diagnosis, Dr. Coachys never told her that her ulnar neuropathy was workrelated and was compensable. As a matter of fact, the pain associated with ulnar neuropathy became apparent to Ms. Johnson when she reported the injury to the City on January 20, Therefore, the June 2008 diagnosis of ulnar neuropathy was not readily apparent to Ms. Johnson. 16.

22 The orthopaedic surgeon, Dr. Gandy testified that Ms. Johnson s job duties, including repetitive grasping and pulling, are enough to say within a reasonable degree of medical probability that it s a causal relationship to ulnar neuropathy. Further, by continuing to work for the City in the exact same position, performing the exact same tasks from June 2008 to January 2011, Ms. Johnson s injuries accrued gradually and resulted from the cumulative impact of activities occurring in employment with the City, such as typing, repetitive grasping and pulling. Consequently, in April 2011, Ms. Johnson had to seek medical attention and two surgical releases due to severe pain in her hands. The Workers Compensation Commission agreed that there was a causal relation between the Complex Regional Pain Syndrome to the original work-related carpal tunnel syndrome and ulnar neuropathy. However, the Commission erred when it held that Ms. Johnson s Complex Regional Pain Syndrome would not revive a claim already barred by the statute of limitations. As the previous analysis in this brief, Ms. Johnson was not aware of the seriousness and compensable character of the initial work-related carpal tunnel syndrome and ulnar neuropathy. Hence, Ms. Johnson s carpal tunnel syndrome and ulnar neuropathy claims are not tolled by statute of limitation. Further, [w]hen the primary injury is shown to have arisen out of and in the course of employment, every natural consequence that flows from the injury likewise arises out of the employment, unless it is the result of an independent intervening cause attributable to claimant s own intentional conduct. John R. Bradley and Linda R. Thompson, Mississippi Workers Compensation 4:24 (Thomson-West 2006). Therefore, Ms. Johnson s Complex Regional Pain Syndrome is a compensable work-related injury because it is derived from her surgeries for the original work-related injuries. 17.

23 Also, Ms. Johnson submits that her claim for depression should not be barred by the statute of limitation because no doctor has been afforded the opportunity to opine if Ms. Johnson s depression was made worse by her January 20, 2011 work-related injury. Alternatively, while Ms. Johnson does not concede that she was definitely diagnosed with carpal tunnel syndrome and ulnar neuropathy in 2008, even if she were so diagnosed, she continued to work for the same Employer for the next thirty months, doing the same tasks, without any treatment for both injuries in the way of splinting or physical therapy. As such, even if she was definitively diagnosed with carpal tunnel syndrome and ulnar neuropathy in 2008, she was making those conditions progressively worse by her continued employment with the City. Further, the diagnoses of complex regional pain syndrome were not made until after January 20, There is no way either of those diagnoses could be barred by the two year statute of limitations. III. The Order of the Mississippi Workers Compensation Commission as it relates to all claims of the Appellant was clearly erroneous and applied incorrect legal standards As the Commission order makes clear, what is relevant in this claim is the date of injury for Ms. Johnson s claims. The Commission first addresses Ms. Johnson s carpal tunnel claim, and states that the greater weight of the evidence in this claim supports the fact that the Claimant was at least reasonably aware she had sustained work-related carpal tunnel injuries on the date of her diagnosis by Dr. Coachys on June 6, (R. Vol. 2, page 198). There is simply no factual, medical or legal basis for this conclusion. The Claimant was never notified by Dr. Coachys in 2008 that her carpal tunnel syndrome related to her employment. There is no evidence in the record that the Claimant ever had a conversation with 18.

24 Dr. Coachys about the cause of her possible carpal tunnel syndrome in The Claimant testified that she did not assert or report a work injury in 2008 (R. Vol. 3, page 55), did not ask the City of Jackson to pay for any of the medical care she received in 2008 (Id.), used her private insurance to pay for the office visit with Dr. Coachys in June of 2008 (Id.) and did not relate any of the treatment she received in June of 2008 to a work injury (Id.). As Brown v. Ill. Tool makes clear, a Claimant is not aware that a latent injury such as carpal tunnel syndrome is reasonably apparent until after a physician advises an injured worker that their condition is related to their employment. ( Brown had been diagnosed as early as November 16, 2001, with carpel tunnel syndrome; however, the issue became how clearly the condition was related to work.) Brown. v. Ill. Tool Works, Inc. 135 So.3d 160, at 166. As the undisputed facts make clear, this could not have happened for Ms. Johnson until after January 20, The Commission is not able to cite to any fact in the record which supports its conclusion that Ms. Johnson was at least reasonably aware she had sustained workrelated carpal tunnel injuries on the date of her diagnosis by Dr. Coachys on June 6, Further, the Commission ignores relevant case law, as it must do in order to reach the conclusion in its order. Next, the Commission addresses Ms. Johnson s claim of depression. The Mississippi Workers Compensation Act defines injury as follows: "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 (b), (1972, as amended). 19.

25 The Commission concludes that the Claimant treated for depression prior to her January 20, 2011 claim, and as such, her claim is barred by the statute of limitations set forth in Miss. Code Ann In doing so, the Commission ignores the definition of injury as set forth in Miss. Code Ann In granting the City of Jackson s motion to dismiss, the Commission failed to allow Ms. Johnson to put forth evidence that her depression was aggravated or accelerated by her work injury. The Commission cites no legal precedent in its order, and none exists. That an injured worker may have depression before a work injury does not defeat a claim that a work injury has aggravated or accelerated their condition, as the statute makes clear. The Commission order then addresses Ms. Johnson s ulnar neuropathy claims. Ignoring the testimony of Dr. Gandy that the 2008 nerve conduction study did not localize as to where Ms. Johnson s ulnar neuropathy was located (the wrist or the elbow), and Dr. Gandy s testimony that the ongoing employment of Ms. Johnson was making her condition progressively worse, the Commission concluded that this claim is also barred by the statute of limitations. In so doing, the Commission cites to Smith v. Nissan North America, but in so doing ignores much of the decision in Smith v. Nissan North America. Smith v. Nissan North America, 102 So. 3d 321 (Miss. App. 2012). In Smith v. Nissan North America, the Claimant, Smith, was diagnosed with carpal tunnel syndrome on or about February 19, 2007, was told that she would require surgery, and left her employment with Nissan on July 22, 2007, due to issues unrelated to her carpal tunnel syndrome diagnosis. The Claimant continued to seek treatment for carpal tunnel syndrome after her February 19, 2007 diagnosis, including a left carpal tunnel release on September 5, 2008, and a right carpal tunnel release on October 15,

26 The Appellant, Ms. Johnson would point out that both of the surgical procedures in Smith were performed more than a year after the Claimant in Smith left her employment with Nissan, and that the decision in Smith v. Nissan North America is unclear whether the surgical procedures were paid for by Nissan, or through some other means. In Smith v. Nissan North America, the Claimant filed a petition more than two years after the February 17, 2007 diagnosis and the Commission and Court of Appeals found that the petition was outside of the two year statute of limitations. In the case at hand, Ms. Johnson had no such treatment until after she reported her problems in her hands and wrists on January 20, And unlike the claimant in Smith v. Nissan North America, Ms. Johnson continued to work for the City of Jackson right up to her report to the City that she was unable to perform her work and needed medical treatment. Further, whereas the Smith decision is silent as to whether any of Smith s treating physicians related her diagnosis of carpal tunnel syndrome to her work injury, in this case, Ms. Johnson s physicians have related her diagnoses of carpal tunnel syndrome, ulnar neuropathy and complex regional pain syndrome to her employment with the City of Jackson. In fact, Dr. Gandy was quite clear when he testified that Ms. Johnson s continued work without treatment would have made her problems progressively worse (R. Gen. Exh. 4, p. 10). Finally, the Commission addressed Ms. Johnson s complex regional pain syndrome claim. The Commission admits that Ms. Johnson was not diagnosed with complex regional pain syndrome until after January 20, 2011, and admits that the complex regional pain syndrome was causally related to the surgery performed by Dr. Gandy on April 6, 2011, a surgery which was 21.

27 approved by and paid for by the City of Jackson. However, the Commission then concludes that In the claim presently before the Commission, Claimant developed bilateral ulnar neuropathy as an injury arising out of employment. The surgical repair of that work gave rise approximately three years later to Claimant s Complex Regional Pain Syndrome. The Commission cites to no factual or medical basis for this finding, and ignores the testimony of Dr. Gandy that the 2008 nerve conduction study did not localize the findings of ulnar neuropathy, ignores Dr. Gandy s testimony that the Claimant s condition was made progressively worse by her continued employment with the City of Jackson, ignores the fact that the City approved the surgery for Ms. Johnson in April of 2011, and ignores the relevant case law that (1) Ms. Johnson s injury did not arise until it became occupationally disabling (Jenkins), and (2) was not causally related to her employment by a physician until after January 20, 2011 (Brown v. Ill. Tool Works). And throughout, the Commission ignores the precedent of this Court that the Mississippi Workers Compensation Act serves a beneficent purpose in favor of an injured worker. Despite what the Commission asserts about the purpose of the compensation Act, the Act serves to benefit the injured worker. 22.

28 CONCLUSION Cynthia Johnson respectfully requests that this Court reverse the decision of the Mississippi Workers Compensation Commission. The Commission erred when it concluded that Ms. Johnson was reasonably aware she had sustained work-related carpal tunnel and ulnar neuropathy injuries on the date of her diagnosis by her family physician, Dr. Coachys on June 6, Its decision was arbitrary and capricious because the Commission failed to determine when the injuries became reasonably apparent based on substantial evidence. The Commission is bound to follow the Mississippi Supreme Court s precedents when determining when an injury such as carpal tunnel syndrome and/or ulnar neuropathy occurred. The key to determine this issue of fact is when an injury becomes occupationally disabling, and when a physician relates such a condition to an injured worker s employment. By ignoring the clear precedents of the appellate courts, and by ignoring the factual and medical testimony provided at the hearing on the motion to dismiss, the Commission has denied benefits to an injured worker who was employed and working full time for the City of Jackson right up to the point she reported to the City that she was unable to continue working. Respectfully Submitted, /s/christopher H. Neyland Christopher H. Neyland, Counsel for the Appellant Christopher H. Neyland MSB No Morgan & Morgan, P.A. 188 E. Capitol St., Ste. 777 Jackson, MS Telephone: (601) Facsimile: (601) cneyland@forthepeople.com 23.

29 CERTIFICATE OF SERVICE I, the undersigned, do hereby certify that a true and correct copy of the above and foregoing document has been served by the Electronic Filing System and by United States Mail, First Class, to: Carrie Johnson, Esq. Office of the City Attorney City of Jackson Counsel for the Appellee P.O. Box 2779 Jackson, MS Chairman Liles Williams Commissioner Thomas A. Webb Commissioner Beth Harkins Aldridge Mississippi Workers Compensation Commission 1428 Lakeland Drive Jackson, MS SO CERTIFIED, this the 10 th day of September, /s/ Christopher H. Neyland Christopher H. Neyland, Counsel for the Appellant