IN THE SUPREME COURT OF MISSISSIPPI

NO. 95-CT-01288 SCT

JESSIE SPANN

v.

WAL-MART STORES, INC. AND NATIONAL UNION

FIRE INSURANCE COMPANY OF PITTSBURG, PA

ON PETITION FOR WRIT OF CERTIORARI

DATE OF JUDGMENT: 9/20/95

TRIAL JUDGE: HON. ROBERT GOZA

COURT FROM WHICH APPEALED: RANKIN COUNTY CIRCUIT COURT

ATTORNEY FOR APPELLANT: LEON MILLER

ATTORNEY FOR APPELLEE: ROBERT CARPENTER

NATURE OF THE CASE: CIVIL - WORKERS' COMPENSATION

DISPOSITION: REVERSED AND REMANDED - 9/25/97

MOTION FOR REHEARING FILED:

MANDATE ISSUED: 10/16/97

EN BANC.

SULLIVAN, PRESIDING JUSTICE, FOR THE COURT:

Introduction

¶1. This matter is before the Court on the petition for writ of certiorari filed by Jessie Spann, the

claimant/appellant in a workers' compensation case. A hearing was held on July 20, 1992, before

Administrative Law Judge Denise Lott, who ruled that Spann was not entitled to surgery or further

treatment by treating physician Dr. John Frenz; that claimant had suffered no temporary disability for

which compensation was due; and that claimant had suffered no permanent medical impairment

attributable to this injury.

¶2. In its Order of February 15, 1993, the Commission in an unanimous decision, affirmed the finding

and decision of the ALJ, with the exception that the commission ordered continued treatment by Dr.
Patrick Barrett. Rankin County Circuit Judge Robert Goza affirmed the Commission in full. Upon

appeal, the Court of Appeals, McMillan, P.J., affirmed, joined by Thomas, P.J., King and Southwick,

JJ. Diaz, J., dissented with a separate opinion joined by Coleman and Payne, JJ. Bridges and Herring

did not participate. The Court of Appeals held:

The Judgment of the Rankin County Circuit Court is affirmed in all respects except insofar as it

affirmed the order of the commission limiting future medical expenses to those provided by Dr.

Barrett. This provision of the order of the Commission is reversed and rendered.

¶3. The Court of Appeals recognized that Spann could be treated by Dr. Frenz, his physician of

choice, rather than by Wal-Mart's doctor of choice. The statute states that the claimant is entitled to

choose his treating physician, as long as that physician is qualified within the meaning of the statute.

The employer and carrier can request that the claimant see a doctor of their choosing for a second

opinion, but cannot mandate the primary treating physician. Although the Court of Appeals approved

continuing "treatment," it, as had the ALJ, Commission, and lower court, disallowed the laprascopic

type surgery recommended by the treating physician, finding that maximum medical recovery had

been achieved; and that there was no temporary or permanent partial disability, despite the claimant's

recognized need for continued treatment.

¶4. Certiorari review was granted by this Court on August 7, 1997.

Facts

¶5. All parties involved agree that Jessie Spann was a healthy, relatively new employee of Wal-Mart,

participating in a training program under the supervision of his supervisor, Mark L. Tate. Tate

provided the following testimony when asked whether Spann was a good employee:

A. I recruited him. He didn't come to me for a job. I went to him and recruited him and also

seeked [sic] his employers' statements about him and what type of worker he was. I observed

him. I saw he was a hard worker and with Wal-Mart that's more or less what we are told to do.

Go out and if they don't know the job we can teach them the job. We can train them.

¶6. All parties also agree, that on September 7, 1990, while in the course and scope of employment, a

then healthy Jessie Spann, who was carrying a tire and tire mount, slipped and fell on a wet, slippery

floor which had recently been cleaned with both water and degreasers and injured his back. Wal-Mart

admitted the injury and sent Spann to see Dr. David Gandy. Spann felt that Dr. Gandy was not

helping his recovery, and on his own went to see Dr. John Frenz in Brandon, Mississippi, who

performed a myelogram, a CT scan and spinal x-rays while Spann was hospitalized. Dr. Frenz is

certified by the American Board of Neurologic and Orthopedic Surgeons, and additionally board

certified by the American Board of Clinical Neurosurgery and by the American Board of Spinal

Surgery.

¶7. The radiologist who initially read the x-rays found an abnormality or bulging of the L 4-5 spinal

disc, which was confirmed by Dr. Frenz. Dr. Frenz recommended that due to the abnormality at the L

4-5 spinal disc, that "he [Spann] have a partial removal of that disc by a procedure called automated

percutaneous nucleotome disectomy, which more simply put is something similar to orthoscopic

surgery of the knee [with] which many people are familiar." Dr. Frenz testified that he believed, based
on a reasonable medical certainty, that Spann could be relieved, at least in part, of his continuing

symptoms and could reasonably be expected to have an improvement in his functional capacity if the

procedure was completed.

¶8. Basing his opinion on Spann's history, examination, treatment and the diagnostic tests performed

on him, Dr. Frenz opined that there was a direct causal relationship between the accident which

occurred on September 7, 1990 and the set of complaints, symptoms and findings for which he

treated him.

¶9. Upon the referral of Dr. Frenz, Spann asked Dr. Elmer Nix, an orthopedic surgeon, for a second

opinion. Dr. Nix reported "a very minimal bulge of the L-4 disc" that he felt was "within normal

limits." He further concluded that Spann appeared to be magnifying his symptoms during the course

of the examination and opined that Spann should recover from his "lower back strain" in six to eight

weeks. However, during the hearing before the Commission, Dr. Nix stated on cross-examination

that his answers were uncertain because he had not seen Spann very often. The record shows that Dr.

Nix saw and examined Spann on only one occasion. Dr. Nix also admitted on cross-examination that

he had not reviewed Spann's MRI.

¶10. Spann also saw Dr. Patrick Barrett, another orthopedic surgeon, on a limited basis, upon the

recommendation of his first attorney.(1) Dr. Barrett diagnosed " probable internal disc derangement 4-

5," but stated that "his opinion would be that it would be less than a 50-50 chance that this [Dr.

Frenz's suggested disectomy] would improve Spann's situation enough to go back to heavy work."

Both Drs. Frenz and Barrett found that Spann could no longer perform the heavy work he had been

doing prior to the injury.

¶11. After Spann returned to work, he was placed on light duty. Spann's supervisor testified that

although Spann had been deliberately placed on light duty, he could not perform the work, and that

on many occasions he could not work a full day because of the pain. The supervisor said that based

on his observation Spann's pain prevented him from stooping or bending, and he could only stand for

short periods of time.

Issues Raised for Certiorari Review

I. THE EVIDENCE IN THIS CASE IS OVERWHELMING THAT CLAIMANT HAS NOT

REACHED MAXIMUM MEDICAL IMPROVEMENT, BUT IF THE COURT FINDS THAT

HE HAS, THEN THE EVIDENCE IN THE RECORD OVERWHELMINGLY FINDS HIM

TO BE DISABLED.

II. IT IS NOT WITHIN THE POWER OF THE COMMISSION TO DENY A CLAIMANT

MEDICAL TREATMENT PRESCRIBED BY THE TREATING DOCTOR WHEN ALL

MEDICAL OPINIONS AGREE AS TO THE BASIC MEDICAL DIAGNOSIS, WHEN THE

TREATING PHYSICIAN IS ADJUDGED TO BE COMPETENT IN THE SPECIALTY AND

FURTHER WHEN THIS TREATMENT IS NOT UNRELIABLE OR CONTROVERSIAL.

III. EVEN IF THE COMMISSION HAS THE POWER TO DENY A CLAIMANT MEDICAL

TREATMENT PRESCRIBED BY THE TREATING DOCTOR, IT WOULD BE AGAINST THE

WEIGHT OF THE EVIDENCE IN THIS CASE.
Analysis and Authority

¶12. Our standard of review of workers' compensation cases is well established. If the Commission's

finding of fact and order are supported by substantial evidence, then we are bound by them even

though we as fact finder would have been convinced otherwise. Fought v. Stuart C. Irby Co., 523

So. 2d 314, 317 (Miss. 1988). We will exercise de novo review on matters of law. KLLM, Inc., v.

Fowler, 589 So. 2d 670, 675 (Miss. 1991).

I.

¶13. The ALJ and full Commission found that Spann had reached maximum medical recovery.

However, the Commission's order differed from that of the ALJ in that the Commission ordered

continued treatment by Dr. Patrick Barrett. The Court of Appeals reversed and rendered that portion

of the Commission's order limiting future medical expenses to those provided by Dr. Barrett, and

found that the Commission exceeded its authority when it specified a particular doctor to provide

further treatment in connection with Spann's injury. The Court of Appeals agreed that there was a

duty to continue medical treatment for Spann. The ALJ, Commission, circuit court and Court of

Appeals found that Spann had achieved maximum medical recovery and suffered no temporary or

permanent disability.

¶14. The Order of the Commission directs Wal-Mart to "pay for said treatment and supplies as

required by the nature and extent of the injury in the process of claimant's recovery as provided in

Section 71-3-15." The Court of Appeals found that "[t]he language of the Commission's Order is

somewhat troubling in that it seems to imply that Spann has not, in the opinion of the Commission,

reached maximum medical improvement. Otherwise, it would make no sense to refer to 'the process

of claimant's recovery.' " The Court of Appeals went on to conclude that "[i]t is entirely possible that

an injured worker may reach maximum medical improvement and still be bothered by recurring pain

symptoms that are not of sufficient severity to be disabling." COA op. at 7.

¶15. This conclusion is troubling when either a common sense or legal analysis is applied to the

situation before us. Spann was a perfectly healthy individual with no prior history of any back injury

or pain, who was an excellent trainee in a heavy duty job as a mechanic. If Spann had achieved

maximum medical improvement, following an injury all parties agree occurred during the course and

scope of employment, then Spann should be pain free as he was prior to the accident, with full

mobility, and able to return to his prior duties. If he has reached maximum improvement, and is still

suffering from and being treated for pain, immobility, and inability to perform any but the lightest

duties, then it logically follows that he has some temporary or permanent partial disability. The

logical conclusion is that Spann has not achieved maximum medical recovery. Drs. Frenz and Barrett

agree that Spann cannot return to his former heavy duties. Their only disagreement lies in the fact

that Dr. Frenz is of the opinion that surgery would help, and Dr. Barrett is of the opinion that there is

only "a 50-50 chance" that having the surgery would allow Spann to return to heavy duty work. Dr.

Nix stated that Spann should be able to return to work at some point, but required "work hardening."

Dr. Nix faltered during cross-examination and testified that, "Perhaps if I had seen him on several

more occasions, I might have been more definite or more positive about some of my answers." This

Court held in Johnson v. Ferguson, 435 So. 2d 1191, 1195 (Miss. 1983):

When an expert's opinion is based upon an inadequate or incomplete examination, that opinion
does not carry as much weight and has little or no probative value when compared to the

opinion of an expert that has made a thorough and adequate examination.

¶16. Dr. Nix also testified that, "I did not as I recall as my records would reflect, I did not look at the

MRI."

¶17. The following exchange took place during the direct examination of Dr. Frenz:

Q. And if he does not have this surgery that you recommend, would his disability then be in the

form of a permanent nature?

A. Yes, it would.

Q. And would your statements earlier as to his restrictions as to employment now would they

go forward on a permanent basis?

A. Yes, they would.

Q. Would you be able to at this time to give him a medical rating of disability to the body as a

whole?

A. I would probably best be able to answer that question by stating he has an impairment of low

back function that approximates 70 to 75 percent and his low back condition, including

deranged disks and nerve root symptoms to the right lower extremity, cause him additional

impairments so that in his present circumstance and considering his previous employment

activities as a mechanic-type worker, I would have to think that he would be disabled.

¶18. As previously stated Dr. Barrett opined "it would be less than 50-50 that he would improve his

situation enough to go back to heavy work [with surgery]." Thus, clearly Dr. Barrett is of the opinion

that there is some temporary or permanent partial disability. The supervisor, Mark Tate testified:

A. He had . . . a lot of difficulty especially when he started taking lesser drugs which I

encouraged him to get off the medication and maybe go for a TENS unit or something like that

that could probably use [sic] his pain up or seek some type of therapy, but he was still in pain

after he used the TENS unit or appeared to me anyway. You know, he had a hard time bending

over. He'd stand for a little while. We got him a seat, but he couldn't always stand up or sit

down around the desk because he had to go out and help customers . . . . And some days I had

to send him home early or allow him to go home early.

¶19. None of the above excerpts from the record supports a conclusion that Spann reached maximum

medical improvement, or in the alternative, the excerpts support the finding that if maximum medical

improvement has been achieved by Spann, he then suffers from either a temporary or permanent

disability.

¶20. Mississippi Code Ann. § 71-3-7 requires that compensation shall be payable for "disability" for

an injury arising out of and in the course of employment. The question of degree and duration of

disability is one of fact. Wiggins v. Knox Glass, Inc., 219 So. 2d. 154 (Miss. 1969). The degree of

disability is determined by (1) actual physical injury and (2) loss of wage earning capacity. General
Elec. Co. v. McKinnon, 507 So. 2d 363, 365 (Miss. 1987); Bill Williams Feed Store v. Mangum, 183

So. 2d 917 (Miss. 1966). A rebuttable presumption of no loss of wage earning capacity arises where

the claimant's earnings after the injury are equal to or in excess of his earnings prior to the injury.

General Elec. at 365.

The statute has been construed by this Court to mean that post-injury earnings equal to or in

excess of pre-injury earnings are strong evidence of non-impairment of earning capacity, but

that the presumption arising therefrom may be rebutted by evidence on the part of the

claimant that the post-injury earnings are unreliable due to: increase in general wage levels

since the time of accident, claimants own greater maturity and training, longer hours worked

by the claimant after the accident, payment of wages disproportionate to capacity out of

sympathy to claimant, and the temporary and unpredictable characteristics of post injury

earning. (Citations omitted).

General Electric Co., 507 So. 2d at 365, citing Wilcher v. D.D. Ballard Construction Co., 187 So.

2d 308, 310-311 (Miss. 1966)( string citation omitted)(emphasis in original).

¶21. This Court went on to hold:

Moreover, this list is certainly not an exclusive one. See, Karr v. Armstrong Tire & Rubber Co.,

216 Miss. 132, 61 So. 2d 789(1958). Our recent decision in Hall of Mississippi, Inc., v. Green,

467 So. 2d 935 (Miss. 1985), reflects that any factor or condition which causes the actual postinjury wages to become a less reliable indicator of earning capacity will be considered.

McKinnon at 365.

¶22. Spann was earning $4.75 per hour before his injury, and in his light duty job created for him

post-injury, he was paid $4.85 cents per hour. However, according to his supervisor, Spann exhibited

clear signs of pain and disability and was unable to perform his new job well. In DeLaughter v. South

Central Tractor Parts, 642 So. 2d 375 (Miss. 1994), this Court reversed the Commission's denial of

disability benefits where an employee returned to work and continued to work despite severe pain,

but could not perform all of his current duties. The same is true of McNease v. Cooper Tire and

Rubber Co., 627 So. 2d 321, 325 (Miss. 1993), in which this Court held: "Clearly ignored is

testimony by McNease, corroborated by his supervisor, that McNeese continued to complain of back

pain while doing his job . . . "

¶23. There is no substantial evidence in this record that Spann has achieved maximum medical

recovery; or put in the alternative, there is substantial evidence that if maximum medical recovery has

been achieved, there exists some temporary or permanent partial disability. It cannot be said that this

claimant has been restored to his state of health existing prior to injury. There is no dispute that the

injury occurred during the course and scope of employment. There was no pre-existing injury.

Everyone with the exception of the ALJ recognizes and admits that payment for continuing treatment

and care is owed to Spann, and Drs. Frenz and Barrett both agree that in his present condition, Spann

is not able to do any heavy duty work. Dr. Nix, who said that Spann should be "work hardened" prior

to returning to his former duties, admits he saw Spann on only one occasion, and did not review

Spann's MRI.
¶24. This Court has held that "the act should be liberally construed to carry out its beneficent

remedial purpose . . ." Stuart v. Brown, 543 So. 2d 649, 652 (Miss. 1989). On this issue we remand

to the Commission for a determination of whether or not maximum medical improvement has been

achieved, and if so, whether there exists some temporary or permanent partial disability.

II. and III.

¶25. The ALJ, Commission, Circuit Court and Court of Appeals denied Spann the laprascopic

surgery recommended by Dr. Frenz, Spann's primary treating physician.(2) Spann asserts in his

petition for writ of certiorari that "[i]t is not within the power of the Commission to deny a claimant

medical treatment prescribed by the treating doctor when all medical opinions agree as to the basic

medical diagnosis, when the treating physician is adjudged to be competent in the specialty and

further when this treatment is not unreliable or controversial." Spann further asserts that "even if the

Commission has the power to deny a claimant medical treatment not prescribed by the treating

doctor, it would be against the weight of the evidence in this case."

¶26. The Court of Appeals addressed these issues as two inquiries:

First, whether Spann is correct as a matter of law, that it is not within the power of the

commission to deny him medical treatment recommended by his treating physician. Secondly,

and assuming that the first issue is resolved against Spann, there is the question of whether the

decision of the commission, though one permitted under the law, is nevertheless erroneous as

being unsupported by substantial evidence.

COA op. at 4.

¶27. The Court of Appeals held that, "It seems clear to this Court that the commission is not

compelled, as a matter of law, to direct payment for all medical services provided simply on the

allegation that such services were related to a work injury." COA op. at 5. This wording is a bit

puzzling as there is no mere "allegation" that the injury or services [surgery] would relate to a work

injury. Wal-Mart admitted the injury. There was no previous injury, pain or disability of any sort prior

to the admitted work related injury. Spann has continued to attempt to work at the lighter duty job

created for him after injury, although his supervisor testified that Spann cannot perform the duties of

even the light duty job.

¶28. In Lanterman, this Court reversed a case where the Commission had denied payment for certain

services that had already been provided. The Court of Appeals cites Lanterman v. Roadway Express,

Inc., 608 So. 2d 1340, 1346 (Miss. 1992), in support of its holding. holding. However, a review of

the case reveals that Lanterman would appear to support Spann's argument, rather than the holding

of the Court of Appeals. This Court held:

It was error to deny compensation to Lanterman for the services of Dr. McKelvie, his

chiropractor. Dr. McKelvie's services clearly were related to both his first and second injury.

The Administrative Judge awarded compensation for the services of Lanterman's neurologist,

Dr. Andy, but not for Dr. McKelvie. This assignment of error has merit and the order of the

circuit court will be reversed and this issue remanded to the Commission for a determination as

to whether or not the chiropractic treatment was necessary and the charges reasonable. White
v. Hattiesburg Cable Co. & Travelers Insurance Co., 590 So. 2d 867, 870 (Miss. 1991).

Id. at 1346 (emphasis added).

¶29. This Court further held:

Lanterman is correct when he contends that he is entitled to be compensated by Roadway for

all future medical treatment by doctors selected by Lanterman for such period of time as the

nature of his injuries require.(3)

Id.

¶30. In White v. Hattiesburg Cable Co., 590 So. 2d 867 (Miss. 1991), this Court cited Dunn

Mississippi Workers' Compensation, § 340 (3rd ed. 1982):

§ 340 Generally. The injured employee is entitled to medical and hospital care without limit,

but the fees and other charges are subject to regulation by the commission and may not exceed

those which prevail in the same community. . . . Medical benefits include surgical treatment,

nursing, hospital service, medicine, crutches, artificial members and other apparatus.

The purpose of unlimited services is to insure restoration of the employee to the maximum

usefulness that he can attain under the physical impairment resulting from the injury, and the

services are in addition to all other compensation benefits, and this is the established yardstick

by which benefits are to be measured.

In this field, liberality is especially notable and, in practical effect, it is the obligation of the

employer to provide whatever is needed or is reasonably calculated to carry out the

humanitarian purposes of the Act. (Footnote omitted; emphasis added).

White 590 So. 2d at 869-70.

¶31. This Court went on to hold:

There is a broad public policy behind the Act to provide the necessary treatment to restore the

injured worker to health and productivity. This should be the focus of the Commission. Was

this treatment necessary? Are the charges reasonable? These questions should be thoroughly

investigated, but if both are answered in the affirmative White cannot be denied benefits solely

because the service was rendered by a licensed chiropractor.

Id. at 870.

¶32. And finally, in Oswalt v. Abernathy & Clark, 625 So. 2d 770 (Miss. 1993), this Court denied

payment for a procedure that was controversial because it was considered unreliable and not

indicated by Oswalt's type of injury. However, we reversed the Commission's refusal to pay for

treatment that was "reasonable and necessary."

¶33. Wal-Mart is obligated, pursuant to the Act, to allow Spann to have the surgery recommended by

Dr. Frenz, the primary treating physician. Dr. Barrett states that in his opinion, having seen Spann on

a limited basis, that there is only a 50-50 chance the laprascopic surgery will allow Spann to return to
heavy work, and he does not express an opinion as to whether or not this surgery would relieve

Spann's pain. Only Dr. Nix, whose opinion pursuant to Johnson, 435 So. 2d at 1195, supra, "has

little or no probative value when compared to the opinion of an expert that has made a thorough and

adequate examination," took the position that surgery was unnecessary or would not be beneficial to

Spann's recovery.

¶34. Spann's third and final argument is that "Even if the Commission has the power to deny a

claimant medical treatment prescribed by the treating doctor, it would be against the weight of the

evidence of this case." This issue will not be addressed as the case law and Act mandate that as long

as a particular treatment is deemed "necessary and reasonable" by a competent treating physician, the

employee and carrier are obligated to furnish such treatment. There is no dispute that Dr. Frenz is a

competent physician as defined by the Act.

Conclusion and Recommendation

¶35. The record reflects that this case presents a worker who was injured during the course and

scope of his employment doing heavy work for Wal-Mart, who had no pre-existing condition or

previous injuries, and who now is in extreme pain, unable to perform even light duties well. The

injury is admitted, Spann's inability to do the work, even light work, is undisputed by Wal-Mart and

the carrier, and all medical evidence concludes that Spann has a bulging disc as a result of his work

related injury. Yet, the Respondents conclude that Spann has reached maximum medical recovery,

has no temporary or permanent partial disability, and refuse to pay for the surgery recommended by

the primary treating physician. Wal-Mart's obligation to Spann is of statutory origin. It is obligated to

"furnish such . . . surgical. . . treatment. . . for such period as the nature of the injury or the process of

recovery may require." Miss. Code Ann. § 71-3-15 (1972).

¶36. Following surgery, if still indicated, and the appropriate period of recovery, it should be

determined whether or not maximum medical recovery has indeed been achieved, and if so, whether

any temporary or permanent partial disability exists. The judgment of the Court of Appeals is

reversed. The case is remanded to the Commission for action consistent with this opinion.

¶37. REVERSED AND REMANDED.

LEE, C.J., PRATHER, P.J., PITTMAN, BANKS, McRAE, ROBERTS AND MILLS, JJ.,

CONCUR. SMITH, J., NOT PARTICIPATING.

1. Spann initially saw an attorney in Hattiesburg, but was unable to make the necessary trips back and

forth to Hattiesburg, and hired his present attorney who practices in Pearl, Mississippi.

2. Dr. Barrett opined that there was only a 50-50 chance the surgery would enable Spann to resume

heavy work duties, which indicates a 50 percent chance the surgery would enable Spann to resume

heavy work duties. Aside from that consideration, Dr. Frenz stated that in his opinion, the surgery

would alleviate Spann's pain. It logically follows that Spann would not be dependant upon the strong

medication prescribed to relieve his pain, and which, according to Spann's supervisor, further
hindered Spann's ability to perform even light duties.

3. Miss. Code Ann. § 71-3-15 states in pertinent part: (1) the employer shall furnish such medical,

surgical, and other attendance or treatment, nurse and hospital service . . . for such period as the

nature of the injury or the process of recovery may require. . . .