Tremayne Burton v. Nissan North America and ACE American Insurance Company;

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2018-WC-01490-COA

TREMAYNE BURTON APPELLANT

v.

NISSAN NORTH AMERICA AND ACE APPELLEES
AMERICAN INSURANCE COMPANY

DATE OF JUDGMENT: 10/16/2018
TRIBUNAL FROM WHICH MISSISSIPPI WORKERS’ COMPENSATION
APPEALED: COMMISSION
ATTORNEY FOR APPELLANT: YANCY B. BURNS
ATTORNEYS FOR APPELLEES: CLIFFORD B. AMMONS
CLIFFORD B. AMMONS JR.
NATURE OF THE CASE: CIVIL - WORKERS’ COMPENSATION
DISPOSITION: AFFIRMED - 03/17/2020
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

BEFORE J. WILSON, P.J., TINDELL AND C. WILSON, JJ.

C. WILSON, J., FOR THE COURT:

¶1. Tremayne Burton appeals from a final order of the Mississippi Workers’

Compensation Commission (Commission). Burton’s primary contention is that the

Commission committed manifest legal error by finding that he did not sustain a compensable

work-related injury on September 29, 2010. Upon reviewing the record, we disagree.

Because substantial evidence supports the Commission’s order, we affirm.

BACKGROUND AND PROCEDURAL HISTORY

¶2. Burton began working at Nissan North America (Nissan) in 2003. On or about

December 8, 2008, he sustained a back injury. Burton was working as a production
technician at this time. According to Burton, when he strained to loosen a bolt with a

wrench, he felt a sharp pain in his back, and his legs went numb. Burton testified that he had

experienced back pain before this incident, but this occurrence caused more serious pain.

¶3. Following the incident, Burton went to the computer lab; he stayed there and worked,

using the computer for the remainder of his shift. When his direct supervisor, Charlotte

Aldridge, asked him why he was in the computer lab, Burton allegedly told Aldridge that his

back was hurting. According to Burton’s testimony, he did not tell Aldridge that he had

injured his back while working due to fear of losing his job.

¶4. After Burton left work on December 8, 2008, he drove to the MEA Medical Clinic on

Ellis Avenue. He arrived at the clinic around closing time and told the staff that he thought

he had a urinary tract infection (UTI). Burton testified that he did not see a physician, but

a member of the staff gave him a prescription, signed by a physician, to treat a UTI. Burton

then went home.

¶5. Once at home, Burton sneezed, which caused an increase in Burton’s back pain and

leg numbness. Alarmed, Burton’s daughter then called an ambulance, which transported

Burton to the emergency room (ER) at Central Mississippi Medical Center (CMMC).

Following examination, an ER physician diagnosed Burton with a lumbar disc herniation and

referred him to Dr. Winston Capel for a neuro-surgical evaluation.

¶6. On December 10, 2008, Dr. Capel performed surgery on Burton’s spine, repairing a

lumbar disc herniation and removing a disc fragment. On or about January 6, 2009, Burton

developed a post-operative staph infection, requiring a second surgery. Following the second

2
surgery, Burton engaged in physical therapy treatment. On March 9, 2009, Dr. Capel

released Burton to return to work on “full duty” with no restrictions.

¶7. Sometime after returning to full-duty employment, Nissan transferred Burton to a

different job on the “sealer line.” According to Burton’s testimony, this job was a more

difficult one (or a more physical one) than the job he previously held. The new job entailed

using a sealer gun to seal various parts of a vehicle, such as sunroofs and gas tanks.

¶8. On September 27, 2010, Burton went to an appointment with Dr. Capel. At the

appointment, Burton complained of intermittent back pain and weakness. Dr. Capel’s notes

from this visit do not make any reference to causation for this pain. On October 5, 2010,

Burton visited the Nissan Comprehensive Health Center and reported that on September 29,

2010, he “started having severe gradual onset pain in his back.”1 The providers’ notes from

Burton’s October 5, 2010 visit indicate that Burton “believe[d] his pain is due to bending and

reaching overhead to put sealer on the sunroof.” On or about October 10, 2010, Nissan

terminated Burton for being unable to keep up with the physical demands of his work.

¶9. On October 15, 2010, the Commission received Burton’s “First Report of Injury” for

the alleged September 29, 2010 injury. On this same date, the Commission also received

Nissan’s Notice of Controversion, which provided, “[P]er medical provider, condition is

personal and idiopathic—not work-related.” On October 25, 2010, Burton filed a petition

to controvert with the Commission. In the petition, Burton alleged a “low back” injury from

1
There is some discrepancy in the record about when Burton’s second alleged injury
occurred; the administrative judge’s order refers to a “September 27, 2010, work-related
injury” rather than one allegedly having occurred on September 29, 2010.

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“overhead reaching and repetitive motion of bending over.”

¶10. Nissan filed an answer to the petition, denying that Burton sustained a work-related

injury. On November 8, 2010, Burton filed a second petition to controvert for his previous

December 7, 2008 injury. There are discrepancies in the record as to whether this injury

occurred on December 7, 2008, or December 8, 2008. Regardless, Burton had not filed a

workers’ compensation claim for this injury before November 2010. In the second petition,

Burton alleged a “lower back” injury; according to Burton he was “changing [a] filter pot

with a long wrench” when he “strained [his] back” and his “leg went numb.”

¶11. On December 1, 2010, the administrative judge entered an order consolidating the two

cases for hearing and discovery purposes. On January 22, 2018, after rescheduling several

times, the administrative judge held a hearing on the merits. The following witnesses

testified at the hearing:

• Charlotte Aldridge, Burton’s direct supervisor in December 2008;

• Angela Malone, Burton’s vocational rehabilitation expert;

• Jimmy Holston, Burton’s co-worker in December 2008;

• Ray McCleskey, Burton’s co-worker in December 2008;

• Venicelon Burton, Burton’s wife;

• Burton;

• Lon Pepper, an investigator with Security Investigative Support Services; and

• Kathy Smith, Nissan’s vocational rehabilitation counselor/expert.

The parties also entered the following exhibits into evidence:

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• the deposition of Dr. Kelly Bishop, a family practitioner at MEA Medical
Clinic in December 2008;

• the deposition of Winston Capel, M.D., Burton’s neurosurgeon;

• the deposition of Howard Katz, M.D., a physical-medicine-and-rehabilitation
specialist hired by Burton to perform medical examination and provide
opinion;

• the deposition of Rahul Vohra, M.D., a physical-medicine-and-rehabilitation
specialist who evaluated Burton for an employer’s medical evaluation (EME);
and

• a medical records summary prepared by Dr. Bishop, which was agreed to by
Burton and Nissan.

¶12. In his deposition testimony, Dr. Capel opined that within a reasonable degree of

medical certainty, the traumatic events of December 2008 and September 2010 were

substantial, aggravating, and contributing events that contributed to the worsening of

Burton’s pre-existing lumbar-degenerative-disc disease. Regarding the September 2010

injury specifically, Dr. Capel opined, “Well, the bending, stooping, bending, stooping

aggravated his degenerative disc disease.”

¶13. Dr. Vohra opined to the contrary, concluding that Burton did not suffer an injury in

December 2008 or September 2010. Regarding the alleged December 2008 injury, Dr. Vohra

opined that Burton’s reported on-the-job injury “represents a pre[-]existing issue” and that

Burton likely herniated the disc in his back when he sneezed at home. As to the alleged

September 2010 injury, Dr. Vohra noted that Burton had seen Dr. Capel two days prior to the

alleged injury date and complained of intermittent back pain and weakness, meaning

Burton’s symptoms predated the alleged second injury and represented an issue that “had

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begun prior to [September 29].”

¶14. Dr. Katz offered an opinion that fell somewhat between Dr. Capel’s and Dr. Vohra’s

opinions. In his deposition testimony, Dr. Katz opined that Burton’s disc herniation that

required surgery in December 2008 was caused by, or aggravated by, Burton’s alleged

December 2008 work injury. Dr. Katz specifically noted that although Burton had pre-

existing degenerative disc disease, Burton did not become symptomatic to the point of

requiring emergency surgery until the December 2008 work event. Dr. Katz further opined

that Burton did not suffer a second injury in September 2010 but had a natural progression

of degenerative disc disease that was aggravated by the December 2008 injury: “But to me

it didn’t look like a second injury, it looked like he always had this injury. He never got

completely well.”

¶15. On March 27, 2018, following the hearing on the merits, the administrative judge

found that Burton suffered a work-related injury on or about December 8, 2008, and awarded

Burton temporary disability benefits in the amount of $398.93 per week, beginning on

December 8, 2008, and continuing through March 11, 2009, which was the date of maximum

medical improvement. In support of this finding, the administrative judge explained, “The

Claimant and other co-employees, Holston and McCleskey, testified credibly in support of

his claim. In fact, McCleskey, the lead technician, specifically testified that the Claimant

reported the injury to him. It is also noted that Aldridge, Claimant’s supervisor at the time,

. . . seemed to corroborate much of his testimony.” But because Burton returned to full-duty

work at Nissan in March 2009 with no loss of wage-earning capacity, the administrative

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judge found that Burton was not entitled to permanent disability benefits for the December

2008 injury.

¶16. Nonetheless, the administrative judge also found that Burton suffered an aggravation

to his back in the course and scope of his employment on or about September 27, 2010, and

awarded Burton permanent partial-disability benefits at a rate of $422.31, beginning October

19, 2011, and continuing for a period of 450 weeks (subject to the statutory maximum).

Regarding the September 2010 injury, the administrative judge explained, “I find the medical

opinion of Dr. Capel, a neurosurgeon, to be more compelling as it relates to causation.” The

administrative judge went on to find that Burton suffered permanent partial disability

attributable to the alleged September 2010 injury. After considering Burton’s age, education,

training, prior work experience, physical impairment, and restrictions, the administrative

judge found that Burton had an $885.45 loss of wage-earning capacity (subject to the

statutory maximum amount of $422.31).

¶17. On April 13, 2018, Nissan petitioned for the full Commission to review the

administrative judge’s decision. Nissan contended that the administrative judge erred in

awarding compensation for the alleged September 29, 2010 injury. (Nissan did not contest

the administrative judge’s decision regarding the alleged December 2008 injury.) On

October 16, 2018, the Commission entered an order reversing the administrative judge’s

order and finding that Burton did not sustain a compensable work-related injury in September

2010. Burton now appeals.

STANDARD OF REVIEW

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¶18. “It is well-settled law in this State that the Commission is the ultimate finder of fact

in workers’ compensation cases, and where substantial credible evidence supports the

Commission’s decision, then, absent an error of law, the decision must stand without judicial

interference.” Logan v. Klaussner Furniture Corp., 238 So. 3d 1134, 1138 (¶11) (Miss.

2018) (citing Smith v. Jackson Constr. Co., 607 So. 2d 1119, 1124 (Miss. 1992)). “The

Commission’s decision will be reversed only if it is not supported by substantial evidence,

is arbitrary or capricious, or is based on an erroneous application of the law.” Id. (quoting

Lovett v. Delta Reg’l Med. Ctr., 157 So. 3d 88, 89 (¶7) (Miss. 2015)). “[W]e may not

reweigh the evidence that was before the Commission.” Wright v. Turan-Foley Motors Inc.,

269 So. 3d 160, 167 (¶26) (Miss. Ct. App. 2018). “When the Commission’s decision is

supported by substantial evidence, it must be upheld. This remains true even though we

might have reached a different conclusion were we the trier of fact.” Id. We review issues

of law de novo but “accord[] the interpretation of the Commission great weight and

deference.” Ball v. Ashley Furniture Indus., 71 So. 3d 1251, 1255 (¶9) (Miss. Ct. App.

2011).

DISCUSSION

I. The Commission’s order is supported by substantial, credible
evidence and is not contrary to law.

¶19. Burton’s first contention on appeal is that the Commission’s order, finding that Burton

did not sustain a compensable work-related injury on September 29, 2010, is not supported

by substantial, credible evidence; is arbitrary and capricious; and is contrary to law. We

disagree.

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¶20. In workers’ compensation matters, it is the claimant’s burden to prove the following

elements by a preponderance of the evidence: “(1) an accidental injury, (2) arising out of and

in the course of employment, and (3) a causal connection between the injury and the death

or claimed disability.” Smith v. Tronox LLC, 76 So. 3d 774, 779 (¶16) (Miss. Ct. App. 2011).

An “accidental injury” is any “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. § 71-3-3(b) (Rev. 2011) (emphasis added).

¶21. In KLLM Inc. v. Fowler, 589 So. 2d 670, 676 (Miss. 1991), our supreme court

provided further insight on the definition of “injury.” In Fowler, the court explained that

“[r]equiring the work and injury to be causally connected in a significant manner is nothing

more than a requirement that the work connection be supported by substantial evidence as

minimally causative of the injury.” Id. (emphasis added). Still, “[t]o be even minimally

causative, . . . conditions of employment must be some substantial or significant factor in

bringing about the injury.” Id. (adopting analysis from secondary source).

¶22. It is likewise the claimant’s burden to show the “causal connection between the

claimant’s employment and the resulting disabling condition.” Tate v. Int’l Paper Co., 194

So. 3d 136, 138 (¶13) (Miss. Ct. App. 2015). “Unless common knowledge suffices, medical

evidence must prove not only the existence of a disability but also its causal connection to

the employment.” Id. at 138-39 (¶13). Further, “[i]n all but the simple and routine cases, it

is necessary to establish medical causation by expert testimony.” Id. at 139 (¶15). Given

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Burton’s admitted pre-existing history of back pain, this is not a “routine” case regarding

causation. Wright, 269 So. 3d at 168 (¶32). Accordingly, Burton had the burden of proving

causation by medical evidence or testimony before the Commission.

¶23. In his appellate brief, Burton contends that he provided “overwhelming proof of a

disabling injury that was rejected by the Commission in favor of incomplete expert opinions

and erroneous factual findings.” Upon reviewing the record, we do not agree. To the

contrary, we find there is substantial evidence to support the Commission’s finding that

Burton failed to prove that he sustained a compensable work-related injury on or about

September 29, 2010.2

¶24. To begin, the record contains several discrepancies—including ones from Burton’s

own testimony—as to the date of the alleged second work injury as well as to whether the

alleged injury was the result of a specific occurrence or the cumulative effect of Burton’s

work duties. Further, Burton’s medical records lack support for his contention that he

suffered an additional second—or progressive—work injury on or about September 29, 2010.

2
Burton contends that “[t]here is no testimony in the record to support a finding of
mild, moderate or severe chronic back pain at the pre-injury ‘baseline’ similar to Burton’s
post injury and current physical state.” However, the employer had no duty to prove that
Burton did not suffer an injury at work; rather, Burton had the burden of proof. Also, to the
extent that Burton contends his first (2008) work injury progressively worsened to the point
that he was unable to work, this contention likewise lacks merit. Burton returned to work
on full duty, with no restrictions, for over one year following his complete release by Dr.
Capel, and the Commission found that he sustained no loss of wage-earning capacity.
Accordingly, the “Rathborne rule,” as invoked by Burton, is inapplicable here. Cf.
Rathborne, Hair & Ridgeway Box Co. v. Green, 237 Miss. 588, 594, 115 So. 2d 674, 676
(1959) (“A corollary to the rule just stated is that when the effects of the injury have
subsided, and the injury no longer combines with the disease or infirmity to produce
disability, any subsequent disability attributable solely to the disease or infirmity is not
compensable.”).

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Even Dr. Capel, on whom Burton primarily relies to support his assertion that he suffered a

second work injury, did not make any notes regarding causation in Burton’s

contemporaneous medical records. And both Dr. Katz and Dr. Vohra opined that Burton had

no new work-related injury in 2010 but rather experienced back pain from his pre-existing

condition of degenerative disc disease or spondylosis.3 These medical opinions are supported

by the fact that Burton told Dr. Capel that he was experiencing back pain during his

September 27, 2010 visit, two days prior to his alleged September 29, 2010 injury.

¶25. Regardless, when the record contains conflicting medical testimony, as it does here,

it is the Commission’s “responsibility to apply its expertise and determine which evidence

is more credible.” Wright, 269 So. 3d at 167 (¶28). The Commission reviewed the entirety

of the record and found Dr. Katz’s and Dr. Vohra’s opinions most probative.4 Even if we

might have reached a different conclusion, “we may not reweigh the evidence that was before

the Commission.” Id. at 167 (¶26). Indeed, “whenever the expert evidence is conflicting,

the Court will affirm the Commission whether the award is for or against the claimant.” Id.

3
Dr. Katz opined that Burton’s natural progression of degenerative disc disease or
spondylosis was aggravated by his 2008 work injury. Further, despite Dr. Capel’s opinion
that Burton suffered a second exacerbating injury, Dr. Capel also agreed that Burton was
dealing with the downward progression of degenerative disc disease.
4
We find no merit to Burton’s contention that the Commission allocated undue
weight to Dr. Vohra’s medical testimony. As Burton notes, “while a treating physician’s
opinion is without question of great import, the Commission is not required to abide by it
or required to give it any greater weight than other physicians’ opinions.” Richardson v.
Johnson Elec. Auto. Inc., 962 So. 2d 146, 152 (¶16) (Miss. Ct. App. 2007). Further, Dr.
Vohra testified to his qualification to provide his medical opinion in this case during his
deposition: “[A]s far as being able to evaluate someone clinically, assess their imaging,
assess their functional status, and then assess if they have an underlying surgical issue, I feel
very comfortable in it and – that I can have a valid opinion on that.”

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at 168 (¶28).

¶26. Mindful of the record, as weighed against our deferential standard of review,

substantial, credible evidence supports the Commission’s finding that Burton failed to meet

his burden of proving that he sustained a compensable work-related injury on September 29,

2010. We therefore affirm the decision of the Commission, as it is the ultimate fact finder.5

II. The Commission did not fail to liberally to construe the Mississippi
Workers’ Compensation Act.6

¶27. Burton also contends that the Commission, in finding that Burton failed to prove that

he sustained a compensable work-related injury on September 29, 2010, “made no apparent

effort to liberally construe the [Mississippi Workers’ Compensation] Act in order to

accomplish the law’s purpose . . . .” This contention lacks merit.7

¶28. Prior to a 2012 legislative amendment, common law required the Mississippi

Workers’ Compensation Act “be given a liberal interpretation in order to effect its

humanitarian aims.” Total Transp. Inc. v. Shores, 968 So. 2d 456, 465-66 (¶24) (Miss. Ct.

App. 2006) (citing ABC Mfg. Corp. v. Doyle, 749 So. 2d 43, 47 (¶17) (Miss. 1999)).

Although this requirement was legislatively abolished for injuries occurring on or after July

5
Because substantial evidence supported the Commission’s finding that Burton did
not meet his burden of proving that he sustained a compensable work-related injury on
September 29, 2010, we do not address Burton’s second issue, namely that the Commission
committed factual and legal error in finding that Burton’s injuries did not result in temporary
and permanent occupational disability.
6
Miss. Code Ann. §§ 71-3-1 to -129 (Rev. 2011).
7
We combine Burton’s third and fourth issues on appeal, as they are substantially the
same.

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1, 2012,8 Burton’s alleged injury occurred in 2010. Still, “it is the duty of the [C]ourt to

construe the Act as it is written.” Id. As discussed supra, Burton had the burden of proving,

by a preponderance of the evidence, that he sustained a compensable work-related injury in

September 2010. The Commission found that Burton failed to meet this burden, and even

liberally construing the statute in Burton’s favor, there is sufficient record evidence to

support the Commission’s decision. Accordingly, the Commission’s order is affirmed.

¶29. AFFIRMED.

BARNES, C.J., CARLTON AND J. WILSON, P.JJ., GREENLEE, TINDELL
AND LAWRENCE, JJ., CONCUR. WESTBROOKS AND McDONALD, JJ.,
DISSENT WITHOUT SEPARATE WRITTEN OPINION. McCARTY, J., DISSENTS
WITH SEPARATE WRITTEN OPINION, JOINED BY WESTBROOKS AND
McDONALD, JJ.

McCARTY, J., DISSENTING:

¶30. The Commission was bound by precedent and statute to broadly construe the

autoworker’s claims in favor of finding a compensable injury. It violated this standard.

Because we should reverse and remand, I respectfully dissent.

¶31. “The singular purpose pervading the Workermen’s Compensation Act is to promote

the welfare of laborers within the state.” Big “2” Engine Rebuilders v. Freeman, 379 So.

2d 888, 889 (Miss. 1980) (citations omitted). “As remedial legislation to compensate and

make whole it should be construed fairly to further its humanitarian aims.” Id. (citation

omitted).

8
See Miss. Code Ann. 71-3-1(1) (Supp. 2019) (“[N]otwithstanding any common law
or case law to the contrary, this chapter shall not be presumed to favor one party over
another and shall not be liberally construed in order to fulfill any beneficent purposes.”).

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¶32. As Justice Waller proclaimed, for a unanimous Supreme Court, “[t]here is a broad

public policy behind the Act to provide the necessary treatment to restore the injured worker

to health and productivity.” Smith v. Commercial Trucking Co., 742 So. 2d 1082, 1087 (¶13)

(Miss. 1999) (quoting White v. Hattiesburg Cable Co., 590 So. 2d 867, 870 (Miss. 1991)).

¶33. The timeline is critical here and lends credence to the autoworker’s claims for

compensation. It is true that Burton was released to return to work on “full duty” with no

restrictions, even though there was evidence he may not have been in perfect health. Yet it

was only in September 2010—roughly seventeen months after resuming work following his

original injury—that he reported the second injury. Construing this information in the light

most favorable to him, it logically follows that Burton’s claims are compensable.9

¶34. Construing Burton’s claims broadly in his favor, the Commission should have granted

the autoworker benefits for his subsequent injury. Because it failed to do so contrary to

precedent and public policy, I respectfully dissent.

WESTBROOKS AND McDONALD, JJ., JOIN THIS OPINION.

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Nor does any doctrine bar compensation. “The rule in this State is that when a
pre-existing disease or infirmity of an employee is aggravated, lighted up, or accelerated by
a work-connected injury, or if the injury combines with the disease or infirmity to produce
disability, the resulting disability is compensable.” Rathborne, Hair & Ridgeway Box Co.
v. Green, 237 Miss. 588, 594, 115 So. 2d 674, 676 (1959). Another rule logically follows
that one–that “when the effects of the injury have subsided, and the injury no longer
combines with the disease or infirmity to produce disability, any subsequent disability
attributable solely to the disease or infirmity is not compensable.” Id. (emphasis added). In
this case, there was evidence the subsequent injury was a new injury, which would not be
barred by the Rathborne corollary.

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