Benjamin Ray Smith v. Dennis Wright & Son Plumbing and State Farm Fire & Casualty Company

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2025-WC-00046-COA

BENJAMIN RAY SMITH APPELLANT

v.

DENNIS WRIGHT & SON PLUMBING AND APPELLEES
STATE FARM FIRE & CASUALTY COMPANY

DATE OF JUDGMENT: 12/18/2024
TRIBUNAL FROM WHICH MISSISSIPPI WORKERS’ COMPENSATION
APPEALED: COMMISSION
ATTORNEY FOR APPELLANT: OLUFEMI GBOLAHAN SALU
ATTORNEYS FOR APPELLEES: ROBERT R. STEPHENSON JR.
MICHAEL MADISON TAYLOR JR.
NATURE OF THE CASE: CIVIL - WORKERS’ COMPENSATION
DISPOSITION: AFFIRMED - 03/31/2026
MOTION FOR REHEARING FILED:

BEFORE CARLTON, P.J., WESTBROOKS AND WEDDLE, JJ.

CARLTON, P.J., FOR THE COURT:

¶1. Benjamin Smith appeals from a final order of the Mississippi Workers’ Compensation

Commission (Commission). On appeal, Smith asserts that the Commission made an

erroneous finding of fact regarding Smith’s complaints of a left shoulder injury. Smith also

argues that the Commission failed to evaluate whether Smith’s employer and the employer’s

insurance carrier were equitably estopped from denying Smith’s claim for his left shoulder

injury. After our review, we find that the Commission’s decision was supported by

substantial evidence, and we affirm.

FACTS

¶2. Smith was employed by Dennis Wright & Son Plumbing (Wright Plumbing) as a
foreman. On February 20, 2020, Smith suffered a work-related injury after the trencher he

was operating struck a root and threw Smith to the ground.

¶3. Relevant to this appeal, the first medical treatment Smith sought for his injury was

from Dr. Mary Martin, a chiropractor. Smith presented to Dr. Martin on March 1, 2020, and

filled out an intake form. On his intake form, Smith listed “back and neck problems” as the

reason for his visit. Smith had approximately five more appointments with Dr. Martin.

Smith eventually sought treatment from other medical and chiropractic providers, and he

underwent two Employer Medical Examinations (EME) and two Independent Medical

Examinations (IME), which we will discuss in detail below.

¶4. On July 22, 2020, Smith filed a petition to controvert with the Commission alleging

that on February 20, 2020, he suffered work-related injuries to his cervical spine, thoracic

spine, lumbar spine, and body as a whole. Wright Plumbing and its insurance carrier, State

Farm Fire and Casualty Company (collectively, Employer/Carrier), initially denied

compensability. However, the Employer/Carrier later admitted that Smith sustained a

compensable, work-related injury on February 20, 2020. On April 28, 2022, Smith filed an

amended petition to controvert and added a left shoulder injury to his list of injuries.

¶5. An administrative judge (AJ) held a hearing on Smith’s claim. The parties stipulated

to the following: (1) Smith suffered an admitted injury to his neck and back on February 20,

2020, when a ditch witch trencher struck a root and threw Smith to the ground; (2) Smith’s

average weekly wage is $962.06; and (3) Smith was paid temporary total disability from

August 11, 2022, through June 30, 2023, at $505.43 per week. The only contested issues

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were (1) whether Smith suffered a work-related injury to his left shoulder on February 20,

2020, and whether Smith suffered a psychological overlay as a result of his work injury; (2)

the nature and extent of temporary disability, if any; (3) the extent of permanent disability

and resulting loss of wage-earning capacity and/or industrial loss of use, if any; and (4)

whether the Employer/Carrier are responsible for the treatment Smith received from Mid

South Chiropractic.

¶6. The following medical exhibits were admitted into evidence at the hearing: Smith’s

medical records from Dr. Mary Martin, Dr. Michael Winkelmann, Mid South Chiropractic,

Ortho South, the MRI report and MRI arthrogram report of Smith’s left shoulder, the EME

reports from Dr. Phillip Blount and Dr. Rahul Vohra, and the IME reports from Dr. Justin

Hall and Dr. Angela Koestler. The AJ also heard testimony from Smith; Smith’s wife,

Michelle; Smith’s mother-in-law, Sandra Kish; Dennis Wright, the owner of Wright

Plumbing; Jeff Wright, a manager at Wright Plumbing; and Phillip Tolbert Jr., Smith’s co-

worker who was on the scene at the time of Smith’s injury.

¶7. On July 12, 2024, the AJ entered an order finding that Smith sustained a compensable,

work-related injury to his neck and back on February 20, 2020, and that he was entitled to

temporary total disability benefits at a rate of $505.43 per week from September 23, 2021,

through November 11, 2022. However, the AJ found that Smith did not suffer a work-related

injury to his left shoulder. The AJ further found that Smith failed to show he suffered any

permanent disability and that the Employer/Carrier were not responsible for medical

treatment provided by Mid South Chiropractic.

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¶8. Smith filed a petition for review by the full Commission. On December 18, 2024, the

Commission entered an order affirming the findings and opinion of the AJ. This appeal

followed.

STANDARD OF REVIEW

¶9. “This Court employs a limited standard when reviewing a workers’ compensation

appeal.” Mueller Indus. Inc. v. Waits, 283 So. 3d 1137, 1141 (¶10) (Miss. Ct. App. 2019).

When reviewing a Commission’s decision, we must affirm where the decision is supported

by substantial evidence. Id. We will reverse “only where such order is clearly erroneous and

contrary to the overwhelming weight of the evidence.” Id.

¶10. The Commission is the ultimate fact-finder; therefore, in cases like the one before us,

where “the Commission adopts the AJ’s findings and conclusions, we review the AJ’s

findings and conclusions as those of the Commission.” Id. at (¶11).

DISCUSSION

I. Left Shoulder Injury

¶11. Smith’s central issue on appeal is whether the Commission erred in finding that Smith

failed to record any injury to his left shoulder on his March 1, 2020 intake form at Dr.

Martin’s office. Smith argues that the Commission relied on this erroneous finding in

determining that Smith did not suffer a compensable, work-related injury to his left shoulder.

¶12. The Commission is the ultimate fact-finder in a workers’ compensation case. Whittle

v. Tango Transp., 168 So. 3d 1157, 1160 (¶17) (Miss. Ct. App. 2014). As the fact-finder, the

Commission has a duty “to evaluate and determine the weight of the evidence.” Id. “Where

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there is conflicting medical testimony, the Commission has the responsibility to apply its

expertise and determine which evidence is more credible.” Id. “Because the Commission

is the ultimate fact-finder and judge of the credibility of the witnesses, this Court may not

reweigh the evidence before the Commission.” Curry v. Ashley Furniture Indus., 296 So.

3d 193, 197 (¶13) (Miss. Ct. App. 2020). As stated, when the Commission’s decision is

supported by substantial evidence, we must affirm. Waits, 283 So. 3d at 1141 (¶10).

¶13. Smith, as the claimant, bears the burden of proving that he is entitled to workers’

compensation benefits. City of Jackson v. Sandifer, 125 So. 3d 681, 688 (¶27) (Miss. Ct.

App. 2013). Specifically, Smith must 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 claimed disability.” Id. This Court

has held that “[u]nless common knowledge is sufficient, medical evidence must prove the

existence of the disability and its causal connection to the employment.” Id. “The evidence

used to prove the causation must be credible medical evidence and not mere speculation.”

Id.

¶14. In his appellate brief, Smith acknowledges that all the medical opinions admitted into

evidence at the hearing “referenced and repeated” that Smith did not record a left shoulder

injury on his intake form. Smith therefore does not cite any medical opinions in support of

his argument on appeal; instead, Smith relies on his wife’s and Tolbert’s testimony that

Smith suffered an injury to his left shoulder on February 20, 2020.

¶15. The Commission ultimately found that Smith did not meet his burden of proving that

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he sustained a compensable work-related injury to his left shoulder. In finding that Smith

did not sustain a compensable injury to his left shoulder on February 20, 2020, the

Commission relied on Smith’s March 1, 2020 intake form, as well as the medical records and

opinions admitted into evidence.

¶16. Smith’s March 1, 2020 intake form from Martin Chiropractic reflects that Smith wrote

“back and neck problems” as the reason for his visit. In response to the question asking

when his symptoms appeared, Smith answered, “years ago.” The intake form also contains

a pain diagram, which includes a picture and an outline of a body, and directs the patient to

“mark an X on the picture where you continue to have pain, numbness, or tingling.” Smith

asserts that he “clearly” placed an “X” on the left shoulder portion of the diagram to indicate

left shoulder pain.

¶17. Over the next three years, four different medical providers reviewed Smith’s intake

form and chiropractic notes and determined that Smith did not complain of left shoulder pain

at his March 1, 2020 appointment with Dr. Martin. Moreover, these providers also opined

that Smith did not suffer a left shoulder injury on February 20, 2020.

¶18. The first provider to make such finding was Dr. Philip Blount, a physiatrist, who

conducted an EME on Smith on December 12, 2021. Dr. Blount’s EME report reflects that

he reviewed Smith’s medical records, including the chiropractic records from Martin

Chiropractic, and he examined Smith. Regarding whether Smith suffered a left shoulder

injury on February 20, 2020, Dr. Blount stated:

It is clear in the chiropractic notes from March of 2020 that the chief
complaints according to pain diagram, intake form filled out by Mr. Smith, as

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well as chiropractic clinic notes and written communications that issues were
that of right-sided neck pain, right headache, right upper back, and low back
pain. There is no mention here of difficulty with the left shoulder.

Dr. Blount concluded that he was not able to say with a reasonable degree of medical

probability that Smith’s left shoulder complaints were due to his February 20, 2020 work-

related injury.

¶19. On June 16, 2023, Dr. Rahul Vohra, a physiatrist, conducted another EME on Smith.

Dr. Vohra’s EME report reflects that he reviewed Smith’s medical records, including his

intake sheet from Martin Chiropractic, and he examined Smith. In his report, Dr. Vohra

opined that Smith’s complaints of pain “are not related to an on-the-job injury” on February

20, 2020. Dr. Vohra further opined that “no portions” of Smith’s body were injured on

February 20, 2020.

¶20. Regarding Smith’s alleged left shoulder injury, Dr. Vohra stated, “It is my opinion that

his left shoulder complaints are not related [to his February 20, 2020 injury] as there was no

mention of left shoulder pain when he was initially treated by his chiropractor.” Dr. Vohra

found that Smith first complained of left shoulder pain on September 23, 2021—more than

a year and a half after his work injury—when he presented to physiatrist Dr. Winkelmann for

treatment. At that appointment, Dr. Winkelmann noted that Smith complained of pain in his

neck, shoulder, and left lower extremity, and he ordered imaging of Smith’s left shoulder to

evaluate Smith’s complaints. Dr. Winkelmann reviewed the MRI results on June 21, 2022,

and found that the MRI “showed no evidence of an anterior-inferior labral tear as previously

suspected” but rather “suggests more likely degenerative changes rather than labral tear.”

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¶21. On November 27, 2023, Dr. Justin Hall, an orthopedic surgeon, conducted an IME on

Smith. In addition to examining Smith, Dr. Hall reviewed Smith’s medical records,

including Dr. Martin’s notes from her first post-injury appointment with Smith. In his report,

Dr. Hall observed that Dr. Martin noted that Smith did not complain of any shoulder pain at

that appointment. Dr. Hall stated that he found “no anatomic evidence to support the fact”

that Smith’s left shoulder pain resulted from his work injury. Dr. Hall ultimately opined that

Smith’s neck pain and left shoulder pain “are less likely not caused by his work injury and

more so by degenerative changes and accumulation of injuries throughout his life.”

¶22. On December 6, 2023, Smith presented to Dr. Angela Koestler, a psychologist, for an

IME. Dr. Koestler noted that Smith’s March 1, 2020 evaluation by Dr. Martin reflects that

Smith presented “with right neck pain, right headache, right upper back pain, and left low

back pain.” Dr. Koestler found that Smith did not report any shoulder pain at this

appointment.

¶23. After reviewing the evidence and testimony, the AJ found Smith did not suffer a

work-related injury to his left shoulder. The AJ explained that “[i]t is clear that not only do

the medical records not support a finding of any injury to the left shoulder from the February

20, 2020 incident but actually are overwhelming in showing that any left shoulder pain is not

related to the February 20, 2020 incident.” The Commission then affirmed the AJ’s findings

and decision.

¶24. After reviewing the record, we find that the Commission’s decision that Smith did not

suffer a compensable, work-related injury to his left shoulder is supported by substantial

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evidence. Smith failed to provide any medical evidence in support of his claim of a left

shoulder injury; therefore, he failed to meet his burden of showing that he is entitled to

workers’ compensation benefits.

¶25. Because we affirm the Commission’s decision as to this issue, we decline to address

Smith’s related claims as to whether he suffered any psychological overlay or is entitled to

disability benefits and loss of wage-earning capacity as a result of his left shoulder injury.

II. Equitable Estoppel

¶26. Smith next argues that the Employer/Carrier are equitably estopped from denying his

left-shoulder injury claim due to misconduct, delays, intimidation, and fraud by Wright

Plumbing.

¶27. Smith raises this argument for the first time on appeal. Although Smith made

allegations of employer misconduct, retaliation, fraud, and denial of benefits by Wright

Plumbing in the proceedings below, Smith never argued that the Employer/Carrier should

be equitably estopped from denying his left shoulder claim due to these allegations. Because

this Court “need not consider matters raised for the first time on appeal,” we find that

“consideration of this issue on appeal is procedurally barred.” Anglin v. Gulf Guar. Life Ins.

Co., 956 So. 2d 853, 864 (¶26) (Miss. 2007).

¶28. Furthermore, Smith failed to cite any legal authority in support of his argument. “Our

caselaw clearly provides that the failure to cite supporting legal authority precludes

consideration of an issue on appeal.” Green v. Green, 349 So. 3d 1187, 1200 (¶47) (Miss.

Ct. App. 2022); accord M.R.A.P. 28(a)(7).

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¶29. Based on the foregoing, we find that Smith has waived consideration of this issue on

appeal.1

III. Modifying the Record on Appeal

¶30. At the hearing before the AJ, Smith submitted a flash drive containing audio

recordings of conversations among Smith, Dennis Wright, and other co-workers into

evidence. After Smith filed his notice of appeal, Smith’s appellate counsel had the audio

recordings transcribed and filed in this Court. In his appellant’s brief, Smith seeks admission

of the transcript of these audio recordings as part of the record excerpts pursuant to

Mississippi Rule of Appellate Procedure 10(c).2 Smith acknowledges that this transcript was

not part of the record below; however, he submits that reading the transcript will be less

cumbersome for this Court than listening to the audio on the flash drive.

¶31. Because the flash drive containing the audio recordings is included in the record on

appeal, we find it unnecessary and duplicative to modify the record to include a transcript of

the recordings. Smith’s request to admit the transcript as part of the record on appeal is

1
The record reflects that although Smith was represented by several different
attorneys at various stages in the proceedings below, he ultimately proceeded pro se at the
hearing before the AJ. See Green, 349 So. 3d at 1200 (¶47) (recognizing that “while pro se
litigants are afforded some leniency,” they are still “held to the same procedural and
evidentiary requirements as individuals represented by counsel”). However, Smith is
represented by counsel on appeal.
2
Rule 10(c) provides the appropriate procedure for modifying the record on appeal
when “no stenographic report or transcript of all or part of the evidence or proceedings is
available.” M.R.A.P. 10(c). In that instance, an appellant may prepare a statement of the
evidence or proceedings from recollection. Id. Rule 10(c) requires that the appellant file
this statement “with the clerk of the trial court within 60 days after filing the notice of
appeal.” Id. Our review of the record reflects that Smith failed to follow the procedure
outlined in Rule 10(c).

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denied.

CONCLUSION

¶32. We find that the Commission’s decision that Smith did not suffer a compensable,

work-related injury to his left shoulder is supported by substantial evidence. We therefore

affirm the Commission’s order.

¶33. AFFIRMED.

BARNES, C.J., WILSON, P.J., WESTBROOKS, McDONALD, LAWRENCE,
McCARTY, EMFINGER, WEDDLE AND LASSITTER ST. PÉ, JJ., CONCUR.

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