Fidelity and Casualty Company of New York v. Douglas A. Henderson
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IN THE COURT OF APPEALS
OF THE
STATE OF MISSISSIPPI
NO. 97-CC-01571-COA
FLEMING ENTERPRISES, INC. AND FIDELITY AND CASUALTY
COMPANY OF NEW YORK
v.
DOUGLAS A. HENDERSON
APPELLANTS
APPELLEE
DATE OF JUDGMENT:
08/29/1997
TRIAL JUDGE:
HON. JERRY OWEN TERRY SR.
COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANTS: RONALD T. RUSSELL
DONALD PAUL MOORE
BRANDI C. SCHWARTZ
ATTORNEY FOR APPELLEE:
JOHN FINCH HESTER
NATURE OF THE CASE:
CIVIL - WORKERS' COMPENSATION
TRIAL COURT DISPOSITION:
AFFIRMED IN PART AND REVERSED IN PART THE
MISSISSIPPI WORKERS' COMPENSATION
COMMISSION'S ORDER ON ISSUE OF CLAIMANT'S
MEDICAL EXPENSES. AFFIRMED COMMISSION'S
ORDER GRANTING CLAIMANT COMPENSATION FOR
MEDICAL EXPENSES INCURRED BY DR. RAYNER
AND DR. WHITECLOUD. REVERSED COMMISSION'S
ORDER GRANTING CLAIMANT COMPENSATION FOR
FOURTH AND FIFTH SURGERIES.
DISPOSITION:
AFFIRMED IN PART - 04/06/99
MOTION FOR REHEARING FILED:
CERTIORARI FILED:
MANDATE ISSUED:
4/27/99
EN BANC
THOMAS, P.J., FOR THE COURT:
¶1. Fleming Enterprises, Inc. and Fidelity and Casualty Company of New York appeal to this Court the
decision of the Circuit Court of Harrison County affirming in part and reversing in part the Mississippi
Workers' Compensation Commission's order of August 23, 1996. From that order, the Commission ruled
that the claimant, Henderson, was entitled to full medical compensation or medical expense reimbursement
for medical services provided by Dr. Rayner and three surgical procedures preformed by Dr. Danielson on
January 5, 1990 and April 26, 1991 and Dr. Whitecloud on April 13, 1994, respectively. In affirming in
part and reversing in part, the circuit court upheld the Commission's findings of compensability of medical
treatment by Dr. Rayner and Dr. Whitecloud and found no abuse of discretion in the Commission's
admission and acceptance of the additional evidence proffered by Henderson to the Commission showing
he was referred to Dr. Whitecloud by Dr. Danielson. The circuit court did, however, reverse the
Commission's findings of compensability on Henderson's fourth and fifth surgical procedures performed by
Dr. Danielson as unappealed findings in the administrative law judge's order of November 20, 1992. It is
from the circuit court's ruling that Fleming brings its appeal to this Court and assign the following issues as
error:
I. WHETHER THE CIRCUIT COURT ERRED IN AFFIRMING THE MISSISSIPPI
WORKERS' COMPENSATION COMMISSION'S ORDER THAT THE MEDICAL
TREATMENT RENDERED TO THE CLAIMANT AFTER NOVEMBER 20, 1992 WAS
REASONABLE, NECESSARY, AND CAUSALLY RELATED TO THE SUBJECT INJURY
AND IN COMPLIANCE WITH THE PROVISIONS OF THE MISSISSIPPI WORKERS'
COMPENSATION FEE SCHEDULE.
II. WHETHER THE CIRCUIT COURT ERRED IN AFFIRMING THE ADMISSION INTO
EVIDENCE OF AN ADDITIONAL MEDICAL REPORT FROM DR. HARRY A.
DANIELSON BY THE MISSISSIPPI WORKERS' COMPENSATION COMMISSION AT
THE FULL COMMISSION.
¶2. Finding error of law, we reverse the circuit court and remand this case to the Full Commission to enter
an appropriate order in conformance with this opinion.
FACTS
¶3. Douglas Henderson suffered an admittedly compensable work related injury to his lower back during
the scope and course of his employment with Fleming on September 22, 1988. Henderson initially sought
treatment from Dr. Harry A. Danielson. Dr. Danielson offered a preoperative diagnosis of herniated and
extruded disc L4-5 with spondylolysis of L5, spondylolisthesis L5-S1 with right sided probable herniated
disc, asymptomatic. On October 8, 1988, Dr. Danielson performed what would become the first in a series
of lower back surgeries. Dr. Danielson's October 8, 1988 procedure consisted of an interlaminal
laminotomy and foraminotomy with left lateral and central disc excision L4-5. Dr. Danielson made a
postoperative diagnosis of a large herniated disc with massive extruded fragment down the body of L5.
¶4. Three days after Henderson's discharge, he was readmitted for extreme lower back pain. The nerve
roots around the recurrent extruded disc L4-5 had narrowed into the aberrant root canal and were causing
him extreme pain. A second surgery was performed by Dr. Danielson on October 25, 1988, where an
extension of the interlaminal laminotomy and foraminotomy was necessitated by the conjoined nerve root
problem.
¶5. Henderson continued to experience persistent pain in his lower back and increased inability to get
around. As a result, Henderson was readmitted for a third surgical procedure under the principal diagnosis
of herniated nucleus pulposus, L-4. The surgery was performed by Dr. Danielson on November 23, 1988.
Henderson continued to complain of persistent pain and inability to get around throughout 1989. In late
1989, Dr. Danielson recommended a fourth surgical procedure to correct what he opined to be a herniated
nucleus pulposus L-5 with cicatrix formation with marked adhesions and scar tissue about the L-5 nerve
root.
¶6. Fleming had either paid or reimbursed Henderson for each of the three surgeries performed by Dr.
Danielson. However, upon Dr. Danielson's recommendation for the fourth surgery in late 1989, Fleming
questioned the need for a fourth surgical procedure and requested that Henderson undergo an independent
medical examination. Fleming referred Henderson to Dr. Richard W. Levy, neurosurgeon. Henderson was
examined by Dr. Levy on December 1, 1989, and based on his examination, Dr. Levy opined that
Henderson was not in need of additional surgery on December 1, 1989, and that a fourth surgical
procedure would not offer reasonable chances of success in relieving the pain. A second referral at
Fleming's request was performed on December 18, 1989, by Dr. Craig M. Slater. Based on his
examination, Dr. Slater also opined that further surgery would not relieve Henderson of the pain he was
experiencing.
¶7. Despite these conclusions and Fleming's decision not to pay for the recommended fourth surgical
procedure, Dr. Danielson performed a fourth surgery on January 5, 1990. On February 13, 1990, Fleming
filed a petition to controvert contesting the necessity of the fourth surgical procedure. Shortly thereafter,
Henderson accidently fell and struck the tailbone area on the transom of his 18-foot fishing boat after the
wake of larger passing vessel caused him to fall. Henderson also was struck from behind by a large wave
while surf fishing in water less than waist deep in April 1991. Following the April 1991 incident, Henderson
underwent a fifth surgery, total laminectomy at L4-5, performed by Dr. Danielson on April 26, 1991.
However, Dr. Levy opined that the two incidents in March 1990 and April 1991 were the precipitating
causes of Henderson's problem in April 1991.
¶8. From these facts and the medical testimony offered at the hearing to controvert, administrative law judge
Martha R. Griffin issued her findings of fact and conclusions of law on November 20, 1992. First, based on
what was found to be the greater weight of the credible evidence offered in this cause, the fourth surgical
procedure preformed by Dr. Danielson on January 5, 1990 was not a necessary procedure and the fifth
surgical procedure preformed on April 26, 1991 was necessitated by non-work-related incidents which
occurred in March 1990 and April 1991. Fleming was held not responsible for payment of expenses
incurred as the result of the surgeries on January 5, 1990 and April 26, 1991. The order concluded that
Henderson reached his maximum medical recovery as a result of his compensable injury on January 5,
1990, the date Dr. Danielson performed Henderson's fourth surgical procedure.
¶9. The order concluded that Henderson's compensable accident and subsequent three surgical procedures
necessitated by his compensable accident produced a permanent impairment resulting in a loss of wageearning capacity of no less than $200 a week. Therefore, Henderson was entitled to permanent partial
disability benefits in the amount of $133 a week beginning January 5, 1990 and continuing for a period not
to exceed 450 weeks. The evidence failed to establish claimant suffered a pre-existing occupational
disability. Finally, the administrative judge held that although Henderson's fifth surgical procedure was
necessitated by independent/intervening accidents in March 1990 and in April 1991, Henderson's
permanent occupational disability is solely attributable to Henderson's compensable injury and resulting
three surgeries.
¶10. The November 20, 1992 order went unappealed. The order did, however, fail to address the issue of
whether Henderson's possible future medical expenses and surgical procedures were to be
compensated based on his original compensable injury or whether the subsequent independent/intervening
accidents March 1990 and April 1991 severed Fleming's responsibility as to future medical expenses and
surgical procedures.
¶11. Beginning in early 1993 Henderson underwent additional medical treatment by Dr. Rayner and a sixth
surgical procedure performed by Dr. Whitecloud on April 13, 1994. Motions by the parties were filed with
the Commission on the issue of the additional medical expenses incurred through Henderson's subsequent
medical services and supplies and whether Fleming was responsible for payment. From those motions, the
issue of payment for the additional medical services provided by Dr. Rayner and the sixth surgical
procedure performed by Dr. Whitecloud was addressed in a supplemental order by Administrative Judge
Griffin on October 17, 1995. In the supplemental order Administrative Judge Griffin clarified her previous
unappealed order of November 20, 1992 and stated that it was her original intent that the obligation of
Fleming and its carrier Fidelity cease as of January 5, 1990, due to the break in the causal chain by the
unnecessary fourth surgery and the subsequent accident of March 1990 and April 1991. Therefore,
Administrative Judge Griffin denied Henderson's claim against Fleming for the medical services and
expenses incurred as a result of treatment by Dr. Rayner and Dr. Whitecloud. From that supplemental
order, Henderson petitioned for review of the supplemental order to the Commission on October 30, 1995.
¶12. The Commission issued an order on August 23, 1996, after hearing the matter on June 24, 1996 and
making subsequent conclusions of law and findings of fact. The Commission held that despite the first three
surgeries in close proximity of each other Henderson continued to experience low back and leg pain with
increasing intensity as time progressed. The fourth, fifth, and sixth procedures, despite the space of time
occurring between them and the original procedures for which the carrier accepted as reasonable, did not
stand as separate and distinct surgeries required by new and intervening causes. Fleming was held to be
liable for the medical services the claimant sought and received in relation to the severe back pain he
continued to suffer. Fleming was ordered to pay for all medical services provided to claimant from the
attending care and surgeries provided by the following physicians: Dr. Harry A. Danielson, Dr. Thomas
Whitecloud, and Dr. Donald R. Rayner beginning prior to and after January 1990 as they relate to the
claimant's lower back and leg that remain unpaid. Fleming was further ordered to provide reimbursement
for all expenses submitted as paid by the claimant from the time of denial of said services. Finally, Fleming
was ordered to continue to pay for and provide all medical services and supplies as the nature of
Henderson's injury and the process of his recovery shall require as provided by law. From this order,
Fleming appealed to the Circuit Court of Harrison County on September 6, 1995.
¶13. First, the circuit court could not find an absence of substantial evidence supporting the Commission's
findings of compensability of medical treatment by Dr. Rayner and Dr. Whitecloud. Second, the circuit
court found no abuse of discretion in the Commission's acceptance of additional evidence proffered by
Henderson to the Commission showing he was referred to Dr. Whitecloud by Dr. Danielson. Third, the
circuit court found that Fleming's argument about the fee schedule documentation does not require reversal,
since that Commission order requires reimbursement for those expenses only "after the proper forms are
presented by the medical providers for payment." In this respect, the circuit court affirmed the Full
Commission's order of August 23, 1996.
¶14. However, the circuit court concluded that an error of law was committed in the Commission's reversal
of the administrative law judge's unappealed finding that the fourth and fifth surgeries were unnecessary or
were necessitated by non-work-related injuries and the Commission's finding and order that Fleming was
responsible for the expenses associated with those surgeries. The circuit court concluded that since there
was no petition for review of the administrative law judge's November 1992 order, the order was
conclusive as to the factual determinations of lack of necessity and causal connection of those surgeries, and
as to the holding that Fleming was not obligated to pay those expenses. From the circuit court's order of
August 23, 1996, Fleming appeals to this Court.
STANDARD OF REVIEW
¶15. Our standard of review in workers' compensation cases is well settled. We are limited to a
determination of whether the Commission's findings of fact and order are supported by substantial evidence.
Marshall Durbin Companies v. Warren, 633 So. 2d 1006, 1009 (Miss. 1994). Reversal is only
warranted when an order of the Workers' Compensation Commission is clearly erroneous and contrary to
the overwhelming weight of the evidence. Hedge v. Leggett & Platt, Inc., 641 So. 2d 9, 12 (Miss. 1994).
¶16. While on appeal from rulings of the Full Commission to this Court it is our function to determine
whether there exists substantial credible evidence to support the Commission's ruling. Like our circuit
courts, we are not to determine where the preponderance of the evidence lies when the evidence presented
to the Commission is conflicting. As the trier of fact, it is presumed that the Commission made proper
determinations as to which evidence was credible and which was not. Metal Trims Industries, Inc. v.
Stovall, 562 So. 2d 1293 (Miss. 1990). Unless the Commission's decision was arbitrary and capricious,
we will not tamper with the Commission findings. Georgia Pacific Corp. v. Taplin, 586 So. 2d 823
(Miss. 1991).
¶17. "[W]e are reminded that workers' compensation law is to be liberally and broadly construed, resolving
doubtful cases in favor of compensation so that the beneficent purposes of the act may be accomplished."
Marshall Durbin Companies v. Warren, 633 So. 2d 1006, 1010 (Miss. 1994). See also Miller
Transporters, Inc. v. Guthrie, 554 So. 2d 917, 919 (Miss. 1989); Reichhold Chemical, Inc. v.
Sprankle, 503 So. 2d 799, 802 (Miss. 1987); Barham v. Klumb Forest Products Center, Inc., 453 So.
2d 1300, 1304 (Miss. 1984). We exercise a de novo review on matters of law. Spann v. Wal-Mart
Stores, Inc., 700 So. 2d 308 (¶12) (Miss. 1997).
I.
WHETHER THE CIRCUIT COURT ERRED IN AFFIRMING THE MISSISSIPPI
WORKERS' COMPENSATION COMMISSION'S ORDER THAT THE MEDICAL
TREATMENT RENDERED TO THE CLAIMANT AFTER NOVEMBER 20, 1992 WAS
REASONABLE, NECESSARY, AND CAUSALLY RELATED TO THE SUBJECT INJURY
AND IN COMPLIANCE WITH THE PROVISIONS OF THE MISSISSIPPI WORKERS'
COMPENSATION FEE SCHEDULE.
¶18. In light of this case's procedural history, specifically the unappealed November 1992 order, we feel it
prudent that we begin our analysis with a discussion on the fourth and fifth surgical procedures performed
by Dr. Danielson and the related medical expenses incurred as a result and the apparent ambiguity
concerning Fleming's responsibility to continue providing future medical services and supplies. In that order,
the administrative law judge ruled the fourth surgical procedure, performed on January 5, 1990,
unnecessary and the fifth surgical procedure, preformed on April 26, 1991, necessitated by non-workrelated incidents. Fleming was held not responsible for payment or expenses incurred as a result of those
two surgeries, January 5, 1990 and April 26, 1991. In regard to any future responsibility for medical
services and supplies, the order further, in an otherwise ambiguous fashion, ordered the following:
Pay for, furnish and provide to claimant all reasonable and necessary medical services and supplies as
the nature of his injury or the process of his recovery may require as provided in Mississippi Code
Annotated, Section 71-3-15 (1972), except as provided in Finding of Fact No. 1.
***
1). Based upon what I find to be the greater weight of the credible evidence offered in this cause, I
find the surgical procedure performed by Dr. Danielson on January 5, 1990 was not a necessary
procedure and find the surgical procedure performed by Dr. Danielson on April 26, 1991 was
necessitated by non-work-related incidents which occurred in March, 1990 and April, 1991.
Therefore, I find defendants are not responsible for payment of expenses incurred as the result of the
surgeries of January 5, 1990 and April 26, 1991.
¶19. While not an issue on appeal, we reiterate that this order went unappealed and is therefore conclusive
with regard to the fourth and fifth surgical procedures performed by Dr. Danielson on January 5, 1990 and
April 26, 1991, and any related medical expenses incurred as a result of those two surgeries. However, the
November 1992 order is open to two different interpretations: 1) one being that any future medical services
or supplies expenses incurred by Henderson are not the responsibility of Fleming due to the intervening
nature of the non-work-related incidents in March 1990 and April 1991 which necessitated a fifth surgical
procedure or 2) that Fleming is not responsible for the medical expenses incurred as a result of the fourth
and fifth surgeries but is responsible for any future medical services and supplies preformed after the fifth
surgical procedure which could be reasonably related to the original injury. Fleming, for obvious reasons,
read the order to reflect the former, while Henderson, likewise, read the order to reflect the latter of the two
interpretations. The dispute before us today can best be addressed by deciding the issue of whether
Fleming was justified in denying Henderson further medical services and supplies in July of 1993 in reliance
of the November 1992 order.
¶20. Following the unappealed November 1992 order, Henderson was discharged from continued care
and treatment by Dr. Danielson. Henderson, on his own initiative, without referral from Dr. Danielson and
without notice to Fleming, sought and obtained treatment from Dr. Rayner. Henderson began seeing Dr.
Rayner in the latter part of January 1993 and continued to receive treatment from Dr. Rayner throughout
1993 and into March 1994. The treatment provided by Dr. Rayner consisted primarily of prescription pain
relievers and muscle relaxers.
¶21. Fleming promptly paid the medical expenses incurred by Henderson for the treatment provided by Dr.
Rayner until July 1993. In July 1993, Fleming denied further medical services and supplies stating that the
November 1992 order was conclusive and had alleviated their responsibility to cover Henderson's future
medical expenses. Fleming denied continued coverage on this basis and relied on the findings of fact in the
November 1992 order that the continued difficulties suffered by Henderson were due to the intervening
incidents which necessitated the fifth surgical procedure performed by Dr. Danielson on April 26, 1991.
This was communicated to Henderson. As to the initial expenses incurred and paid by Fleming for Dr.
Rayner's treatment in early 1993, Fleming maintains that the expenses were paid inadvertently.
¶22. On January 3, 1994, Henderson was referred by Dr. Danielson to Dr. Whitecloud at the Tulane
University Medical Center in New Orleans, Louisiana. In his September 19, 1994 deposition, Henderson
stated that the referral to Dr. Whitecloud came about after he ran into Dr. Danielson by chance and the two
began discussing whether Henderson's condition had changed since Dr. Danielson had last seen him. It was
during this conversation that Henderson requested the referral letter.
¶23. Shortly thereafter, Dr. Whitecloud began to treat Henderson in Louisiana. After a series of initial
evaluations performed in Louisiana, Henderson underwent a sixth surgical procedure at the Tulane
University Medical Center in New Orleans, Louisiana on April 13, 1994. Dr. Whitecloud performed an L3
to S-1 posterior spinal fusion with TSRH instrumentality with Gill laminectomy of L-5 and right posterior
iliac crest bone graft. This procedure consisted of an internal fixation of the spine itself with the aid of
instrumentation, pedicel screw fixation devices, consisting of screws, plates, hooks, rods and/or wires to aid
in the fusion of the spine. The surgical procedure was not an approved medical procedure by the Food and
Drug Administration.
¶24. Following Fleming's denial of continuing medical coverage in July 1993, Henderson filed a motion to
compel Fleming to provide medical services and supplies on August 27, 1993. Fleming filed a response on
September 8, 1993, and asserted their reliance on the November 1992 order. This issue was addressed in
an October 17, 1995 supplemental order by Administrative Judge Griffin.
¶25. Administrative Judge Griffin clarified her order of November 1992 and held that it was the intent of the
order to limit Fleming's liability for medical charges to those expenses incurred prior to January 5, 1990, the
date of Henderson's fourth and unnecessary surgical procedure. The order further held that any later
treatment received by Dr. Rayner was unauthorized, was not by his designated treating physician and would
not be the responsibility of Fleming and Fidelity. Likewise the treatment received by Dr. Whitecloud was
unauthorized and not in accordance with the medical fee schedule provisions on the Mississippi Workers'
Compensation Act.
¶26. The Commission held that Fleming, by law, was liable for the medical services the claimant sought and
received in relation to the severe back pain he continued to suffer. Fleming was ordered to provide
reimbursement for all expenses submitted as paid by the claimant from the time of denial of said services.
Finally, Fleming was ordered to continue to pay for and provide all medical services and supplies as the
nature of Henderson's injury and the process of his recovery shall require as provided by law.
¶27. Mississippi Code Annotated § 71-3-15 states, "The injured employee shall have the right to accept the
services furnished by his employer or, in his discretion, to select one (1) competent physician of his
choosing and such other specialists to whom he is referred by his chosen physician to administer medical
treatment." Miss. Code Ann. § 71-3-15 (Rev. 1994). Dr. Danielson was Henderson's designated treating
physician. It is an evident requirement of § 71-3-15 that the selection of additional treating physicians must
be through a referral by the designated physician. Henderson admittedly states that he had neither written
nor verbal permission to see Dr. Rayner and that he sought treatment from Dr. Rayner on his own accord
without referral. From the record, we cannot conclude that Henderson followed that requirements of § 713-15 in obtaining the medical services of Dr. Rayner beginning in January 1993 and continuing into 1994.
¶28. In July 1993, Fleming communicated to Henderson that any future medical services or supplies sought
by Henderson would not be paid or reimbursed. Fleming further communicated to Henderson that their
denial of future coverage was based on the unappealed November 1992 order by Administrative Judge
Griffin, which Fleming asserted to be conclusive of the matter. In response, Henderson filed a motion to
compel Fleming to continue to pay for Henderson's medical services and supplies. Henderson continued to
receive medical treatment from Dr. Rayner during the pending motions filed with the Commission. Before a
ruling had been made on the issue of whether Fleming was liable for Henderson's continued medical
services and supplies and without notice or authorization, Henderson sought and received further medical
treatment from Dr. Whitecloud at the Tulane University Medical center in early 1994.
¶29. The Mississippi Workers' Compensation Commission, pursuant to § 71-3-15 (3), implemented a fee
schedule which was in effect during this time. The pertinent portion of the fee schedule outlining the
requirements for out of state medical treatment is as follows:
4. Prior authorization must be obtained from the payer for referral to out-of-state providers. The
documentation must include the following:
a. Name and location of out-of-state provider
b. Justification for out-of-state provider, including qualifications of the provider and description of
services being requested.
¶30. Henderson, by his own admission, neither attempted to obtain prior approval from Fleming or from the
Commission nor did he provide the required documentation before receiving medical services and supplies
from Dr. Whitecloud, an out of state provider. Henderson, admittedly without any notice to Fleming or the
Commission sought and received medical treatment from Dr. Whitecloud. Henderson argues that Fleming's
denial of any further medical services or supplies in July 1993 justified his non-compliance with the
applicable fee schedule.
¶31. We cannot say that Fleming's denial of further medical services and treatment in July 1993 justified
Henderson's disdain for the Commission's procedures as set forth in the fee schedule. Henderson has cited
several cases in his brief to this Court where the Mississippi Supreme Court has upheld a claimant's right to
secure medical services on his own elsewhere after the employer/carrier refused to provide medical services
and supplies to the injured employee and that the employer/carrier should be held liable for the medical
services selected by the injured employee. Thornbrough Well Servicing Co. v. Brown, 223 Miss. 322,
78 So. 2d 159 (1959) (holding injured employee who asked his employer for medical assistance, and
employer refused, and employee then went to physician of his own choice, employee could recover medical
benefits); Central Elec. & Machinery Co. v. Shelton, 220 So. 2d 320 (Miss. 1969) (holding that where
employee gave notice to employer of injury and employer told employee that nothing could be done for him
through workman's compensation, employer had breached statute and was liable for medical treatment
which was reasonable and necessary to restore employee to maximum usefulness); Roberts v. Junior
Food Mart, 308 So. 2d 232 (Miss. 1975) (holding that employer's knowledge of employee's injury
followed by the employer's failure to provide the necessary medical services sufficient to impose liability
upon the employer for medical services selected by the employee).
¶32. However, in each of these instances the employer failed to acknowledge that a compensable injury
had even occurred and refused to provide the necessary medical treatment to the injured employee from the
outset. The case sub judice is readily distinguishable in that Fleming did provide initial medical treatment
and services and continued to provide medical treatment and services to Henderson until the issue of
continued medical treatment was concluded in the November 1992 order, albeit in an ambiguous fashion
and subject to differing interpretations. We note that the administrative law judge's supplemental order of
October 17, 1995 clearly supports Fleming's interpretation of the original November 1992 order despite
the subsequent Full Commission's order of August 23, 1996 reversing the same. Therefore, we cannot say
that Fleming was not justified in relying on the unappealed, yet ambiguous, order of November 1992 when
further medical services and supplies were denied Henderson in 1993. Under this reasoning, we additionally
cannot say that Fleming was obligated to seek an independent medical examination on Henderson's
condition upon denying further medical coverage in July 1993, as argued by Henderson in his brief, under
the circumstances before us today.
¶33. To his credit in asserting his position before the Commission, Henderson took the appropriate actions
upon filing his motion to compel Fleming to provide continued medical services and supplies with the
Commission on August 27, 1993, after Fleming's denial in July 1993. However, this does not excuse the
claimant's failure to abide by the requirements of § 71-3-15 when a referral by the designated physician is
desired in the case of the treatment provided by Dr. Rayner. Nor is the claimant excused from the
procedures set forth under the fee schedule requirements covering out-of-state treatment and treatment
which is the subject of a legitimate dispute as to its investigative or experimental nature, as was in the case
of the treatment provided by Dr. Whitecloud.
¶34. Therefore, the August 29, 1997 order of the Harrison County Circuit Court is reversed on the issue of
Fleming's liability for the medical services and supplies provided by Dr. Rayner and Dr. Whitecloud. We
find the Commission committed an error of law when it held that Fleming was liable for the medical services
and supplies provided by Dr. Rayner and Dr. Whitecloud as a result of the July 1993 denial of further
medical treatment.
II.
WHETHER THE CIRCUIT COURT ERRED IN AFFIRMING THE ADMISSION INTO
EVIDENCE OF AN ADDITIONAL MEDICAL REPORT FROM DR. HARRY A.
DANIELSON BY THE MISSISSIPPI WORKERS' COMPENSATION COMMISSION AT
THE FULL COMMISSION.
¶35. Fleming argues error in admitting a medical report from Dr. Danielson into evidence at the Full
Commission hearing and error by the circuit court in affirming its admission. Fleming contends that the
admission of the report by the Full Commission denied them their right to cross-examination and dueprocess. In view of our disposition of the previous issue this assignment of error is moot.
¶36. THE JUDGMENT OF THE HARRISON COUNTY CIRCUIT COURT IS REVERSED
AND REMANDED TO THE MISSISSIPPI WORKERS' COMPENSATION COMMISSION
FOR PROCEEDINGS CONSISTENT WITH THIS OPINION. COSTS ARE ASSESSED
AGAINST THE APPELLEE.
McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, DIAZ, IRVING, LEE, AND
PAYNE, JJ., CONCUR. COLEMAN, J., NOT PARTICIPATING.
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