Hardaway Company v. Harvey Bradley
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2002-WC-01025-COA
HARDAWAY COMPANY AND ST. PAUL FIRE AND
MARINE INSURANCE COMPANY
v.
HARVEY BRADLEY
DATE OF TRIAL COURT JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEYS FOR APPELLANT:
ATTORNEYS FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
CERTIORARI FILED:
MANDATE ISSUED:
APPELLANT
APPELLEE
5/9/2002
HON. TOMIE T. GREEN
HINDS COUNTY CIRCUIT COURT
ANDREW D. SWEAT
BRENDA CURRIE JONES
JESSIE L. EVANS
DANA HELENE EVANS
CIVIL - WORKERS' COMPENSATION
REVERSED THE FINDINGS OF THE FULL
COMMISSION
AFFIRMED: 10/21/2003
BEFORE KING, P.J., BRIDGES AND LEE, JJ.
KING, P.J., FOR THE COURT:
¶1.
This cause arises from a workers' compensation claim filed by Harvey Bradley who sustained a
compensable injury on November 1, 1996, while working as a carpenter/finisher for The Hardaway
Company. Bradley was injured when wet concrete was accidently poured onto his head and/or neck
causing injury to his neck, back and arms. Hardaway and its workers' compensation insurance carrier, St.
Paul Fire and Marine Insurance Company, paid Harvey temporary disability benefits from the date of injury
to August 29, 1997, in the amount of $12,282.67. Benefits were suspended at that time because one of
Bradley's treating physicians, Dr. Howard Katz, found that Bradley had reached maximum medical
recovery from a physiatric perspective. Even though Bradley's functional capacity evaluation indicated he
could only do a light duty job, Dr. Katz concluded that Bradley could probably do up to a medium duty
job. He released Bradley with some restrictions and no permanent impairment rating. Bradley's primary
treating physician, Dr. John Frenz, recommended surgical intervention. Dr. Katz disputed this finding. On
the basis of Dr. Katz's recommendation Hardaway notified Bradley that it would refuse to pay for the
surgery. A motion to controvert was filed.
¶2.
The parties agreed to submit the matter for determination by the Commission on the record made
by the affidavits of the medical providers. No evidentiary hearing was held to receive lay testimony. The
issues presented by the parties sought (1) a determination of whether Bradley needed surgery as a result
of his injury as recommended by his primary treating physician, and (2) a determination of the existence of
and extent of temporary disability attributable to the injury.
¶3.
The administrative law judge found that the preponderance of the evidence supported the finding
that Bradley did not need surgery and ordered Hardaway to pay temporary total disability at the rate of
$264.55 per week from November 1, 1996 to August 29, 1997. On appeal the Full Commission affirmed
the administrative law judge. The circuit court reversed the order of the Commission and Hardaway
appealed.
¶4.
According to the findings of the administrative law judge, Bradley was first treated on the day of
the injury at MEA Medical Clinic. The treating physician diagnosed a cervical strain secondary to blunt
trauma to the head. In a visit to the clinic several days later, in addition to neck pain and stiffness, Bradley
complained of intermittent numbness and tingling in the fingers of both hands, and chronic back pain
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radiating through his left leg. An MRI was ordered and physical therapy and pain medication were
prescribed.
¶5.
Bradley sought treatment from a neurosurgeon , Dr. John Frenz, on November 18, 1996. Dr.
Frenz saw Bradley on approximately twenty-six occasions between November 18, 1996 and November
25, 1997. According to Dr. Frenz, the MRI performed on November 6, 1996, had shown disc
desiccation (meaning that over time the intervertebral discs had dried out due to a decrease in the amount
of water present, causing the appearance of "Black disc" on an MRI) at C4-5 and C5-6 with central disc
bulging. According to Dr. Frenz, the bulge encroached slightly on the cervical cord canal but not
significantly on the cervical cord itself. Dr. Frenz noted that Bradley had not responded to a wide array of
conservative treatments including wearing a cervical collar, using a TENS (Transcutaneous Electrical Nerve
Stimulation device which works by sending electrical pulses across the surface of the skin and along the
nerve fibers which prevent pain signals reaching the brain and also stimulate the body to produce higher
levels of its own natural painkiller, called "endorphin") unit, and various spinal epidural corticosteroid
injections.
¶6.
Dr. Frenz concluded that Bradley's "symptoms of cervical spine injury with chronic sprain/strain
and intervertebral disc injury disabled him from gainful employment." Dr. Frenz also concluded that
Bradley would "gain a reasonable degree of improvement by relief of symptoms and increased functional
capacity were he to undergo surgery to the cervical spine for a removal of the abnormal disc and fusion of
the involved vertebrae." He further opined that "it is within reasonable medical certainty that at best without
said surgery [Bradley] would remain in his present state of pain and incapacitation indefinitely, if not in fact
worsen over some undefined period of time." He also stated that Bradley had elected to proceed with
surgery.
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¶7.
On January 15, 1997, Bradley submitted to an independent examination by neurosurgeon Dr. Lon
Alexander. At that time, Dr. Alexander reported that Bradley was wearing a soft collar and complained
of posterior neck pain that radiated down his right arm into his right hand with numbness bilaterally.
Bradley also complained of low back pain with radiation into his right leg and burning in his legs.
¶8.
Dr. Alexander's report of the examination revealed a free range of cervical motion, normal strength
in all extremities, and reflexes that were found to be equal. It was also Dr. Alexander's opinion that the
November 6, 1996 MRI was "entirely within normal limits." Dr. Alexander concluded that:
1. Bradley was "status post injury with objectively normal neurological examination and
non-dermatomal sensory loss."
2. He had no surgical lesions in his neck and should continue with some sort of therapy.
3. An evaluation by a physiatrist would be prudent at some point.
4. A normal EMG and nerve conduction study might help rule out any structural lesions
if Bradley continued to complain of non-dermatomal, non-anatomic numbness in the upper
extremities.
¶9.
On May 9, 1997, Bradley saw Dr. Howard Katz, a physiatrist,1 for the first time for an
independent medical evaluation. Bradley's chief complaints were (1) low back pain; (2) burning in both
legs "on the tops and bottoms," sharp shooting pains throughout his legs, numbness and tingling in both legs
and sometimes his feet; (3) spasms in both arms, numbness down the medial right forearm down to the
index, long and ring fingers; (4) numbness down the left medial forearm to the small finger; and (5)
headaches every two days.
1
A physiatrist is a medical specialist in the field of physical medicine and rehabilitation whose
focus is on evaluating and restoring function. The physiatrist cares for patients who suffer acute and
chronic pain and musculoskeletal problems like back and neck pain, tendinitis, pinched nerves and
fibromyalgia. Florida Society of Physical Medicine & Rehabilitation,
http:www.fspmr.org/physiatrist.htm
4
¶10.
The report of Dr. Katz's physical examination indicated that:(1) a pin prick exam administered to
Bradley was unreliable throughout; (2) sometimes Bradley said that something was dull and the next time
when tapped in the same place he would say that it was sharp;(3) there was no dermatomal or anatomic
explanation for Bradley's inconsistent pin prick examination; (4) Dr. Katz found Bradley's pin prick
examination to be one of the most unreliable he had ever encountered; and (5) Dr. Katz found that
Bradley's deep tendon reflexes were normal and symmetric and the rest of the neurologic exam to be
normal.
¶11.
Dr. Katz assessed Bradley's condition as status post cervical strain with no objective evidence of
neurologic deficit. He concluded that Bradley's complaints were difficult to compare to his injury and could
represent symptom magnification, psychological overlay and malingering.
¶12.
A second pin prick examination By Dr. Katz on June 19, 1997, was again thought to be unreliable.
Bradley was referred to physical therapy for therapeutic strengthening, exercise and flexibility. Pain
medication was also prescribed. On July 10, 1997, on a return visit to Dr. Katz, Bradley reported no
improvement with physical therapy. He still complained of neck pain, bilateral arm pain, low back pain and
right leg pain. He requested refills on Daypro and Valium and different pain medication. Bradley also
asked to have surgery performed. Dr. Katz's diagnosis remained unchanged and he ordered a functional
capacity evaluation for Bradley at the Rehability Center.
¶13.
Bradley was evaluated by the Rehability Center on August 20, 1997. The records from the Center
indicate that Bradley did not give his maximum effort and that he magnified his symptoms. The physical
therapist concluded that Bradley's true functional maximums could not be determined "secondary to
claimant stopping tasks due to complaint of pain with few, if any, changes in physical signs present to
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warrant stopping the tasks." The therapist noted that further evaluation of psychological social and/or
motivational factors might have been warranted.
¶14.
Dr. Katz next saw Bradley on August 29, 1997. Bradley complained that he still tingled all over.
Dr. Katz discussed the findings of the functional capacity evaluation with Bradley and questioned why it
showed four of five positive non-organic signs, inconsistent varying behaviors and overall self limiting, and
inconsistent and inappropriate behavior with all testing except for his strength grip. Bradley's immediate
response was, "They could have lied about me." When Dr. Katz asked why the therapist would lie,
Bradley said that he did not know.
¶15.
Dr. Katz's own examination of Bradley at this visit indicated that Bradley sat comfortably and
moved smoothly and evenly during conversations and when he walked down the hall with Dr. Katz. Dr.
Katz noted that when not testing, Bradley had no difficulty ambulating, but in testing he had only 3+ strength
in his lower extremities. Dr. Katz's diagnosis and impressions remained unchanged and he concluded that
Bradley might benefit from psychiatric counseling but that Bradley was only interested in surgery. Dr. Katz
saw no indication for surgery. He also concluded that Bradley had reached maximum medical recovery
from a physiatric perspective. While Bradley's functional capacity evaluation indicated he could do only
a light duty job, it was Dr. Katz's opinion that Bradley could probably do up to a medium duty job. He
released Bradley to return to work with some restrictions and no permanent impairment rating.
¶16.
The administrative law judge found that, even though Dr. Frenz treated Bradley more often and
over a longer period of time than did either Dr. Katz or Dr. Alexander, a preponderance of he evidence
indicated that the opinions of Drs. Alexander and Katz had greater probative value than the opinion of Dr.
Frenz. She also found that all of the diagnostic tests and analyses including the MRI, myleogram, CT scan
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and functional capacity evaluation supported Dr. Katz and Dr. Alexander's conclusion that no surgery was
warranted. These findings were affirmed by the Full Commission.
¶17.
In reversing the decisions of the administrative law judge and the Full Commission, the circuit court
judge found that their decisions were not supported by the substantial credible evidence. Circuit Court
Judge Tomie Green held as follows in her memorandum opinion and order:
In determining whether the Commission erred in its decision, the Court must review
the record as a whole. Even though there may be slight evidence to support the Workers'
Compensation Commission's decision, that decision can be clearly erroneous when in light
of the entire evidence, the reviewing court is left with the definite and firm conviction that
a mistake has been made. Guardian Fiberglass, Inc. v. LeSueur, 751 So. 2nd 120[1],
1204 (Ct. App. 1999). This Court, after review finds that Bradley submitted substantial
evidence to support an award of permanent partial disability benefits and that the Full
Commission may likely have made such a mistake in its assessment of Bradley's benefits.
While it is true that Dr. Katz and Dr. Alexander opined that Bradley did not require
surgery, and Dr. Katz specifically diagnosed Bradley as reaching maximum medical
recovery, Dr. Katz, Dr. Alexander, and Dr. Frenz's diagnosis conflicted in that, Dr. Frenz
opined that without the recommended surgery, Bradley's condition would not improve and
would in fact worsen. Further, it should be noted that the conflict regarding Bradley's
condition came from physicians who examined Bradley at the request of the Workers'
Compensation Commission. The Court in Atlas Roll-Lite Corporation v. Ener, 741 So.
2d 343, 347 (Ct. App. 1999), was clear in its opinion that "doubtful cases should be
resolved in favor of compensating a claimant so that the beneficent purposes of the
Workers' Compensation Act may be accomplished."
In light of the rulings in Atlas and Guardian Fiberglass, the Court is of the opinion
that Bradley had not reached maximum medical recovery on August 29, 1997, and that
further surgery is needed.
¶18.
Finding that Judge Green came to the correct resolution of this matter, this Court affirms her ruling
to reverse the Commission, albeit on different grounds.
ANALYSIS OF THE LAW
¶19.
Under this Court's standard of review on workers' compensation matters the Full Commission,
as the ultimate fact finder, enjoys the presumption that it made proper determinations as to the weight and
credibility of the evidence and its findings are binding on this Court provided they are supported by
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substantial evidence. Furthermore, this Court will only reverse the Commission's decision when the
decision is erroneous and contrary to the weight of the evidence. Page v. Zurich Am. Ins. Co. of Ill., 825
So.2d 721, 722 (¶ 3) (Miss. Ct. App. 2002). Finding that the Commission's decision was erroneous and
contrary to the weight of the evidence, reversal is in order. ¶20.
In a factually similar case, The
Mississippi Supreme Court held that "it is the obligation of the employer to provide whatever is needed or
is reasonably calculated to carry out the humanitarian purposes of the Workers' Compensation Act," and
that," there is a broad public policy behind the Act to provide the necessary treatment to restore the injured
worker to health and productivity." Spann v. Wal-Mart Stores, Inc., 700 So.2d 308, 315 (¶¶ 31-32)
(Miss. 1997).
¶21.
In Spann, the Commission upheld the administrative law judge's ruling that Spann was not entitled
to surgery that had been recommended by his primary treating physician who was, coincidentally, Dr. John
Frenz. As in the case sub judice, two other physicians had found that surgery was unnecessary or would
not be beneficial to Spann's recovery. In reversing the Commission, the court held that the employer,
Wal-Mart, was obligated, pursuant to the Act, to allow Spann to have the surgery recommended by Dr.
Frenz. Id. at (¶ 33). The court further held that "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 . . . [and] [t]here is no dispute that Dr. Frenz is a competent
physician as defined by the Act." Id. at (¶ 34).
¶22.
Following the dictates of the supreme court's holding in Spann, it is the finding of this Court that
"[f]ollowing 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." Id. at (¶ 36).
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¶23. THE JUDGMENT OF THE CIRCUIT COURT OF HINDS COUNTY IS AFFIRMED.
ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.
McMILLIN, C.J., BRIDGES, THOMAS, LEE, IRVING, MYERS AND CHANDLER,
JJ., CONCUR. GRIFFIS, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED
BY SOUTHWICK, P.J.
GRIFFIS, J., DISSENTING:
¶24.
With respect to the majority, I am of the opinion that both the circuit court and now this Court
reached an incorrect result. Therefore, I dissent.
¶25.
In Fought v. Stuart C. Irby Co., 523 So.2d 314 (Miss. 1988), the Mississippi Supreme Court
succinctly stated the appropriate standard of review of a decision by the Mississippi Workers'
Compensation Commission. The Court held:
The Workers' Compensation Commission is the trier and finder of facts in a compensation
claim, the findings of the Administrative Law Judge to the contrary notwithstanding. See
Dunn, Mississippi Workers' Compensation §§ 284 (3d ed. 1982). If the Commission's
findings of fact and order are supported by substantial evidence, all appellate courts are
bound thereby. [citations omitted.] This is so, even though the evidence would convince
this Court otherwise, were we the fact finder. Georgia-Pacific Corp., 484 So.2d at 1028
(quoting Olen Burrage Trucking Co. v. Chandler, 475 So.2d 437, 439 (Miss.1985)).
Stated differently, this Court will reverse the Commission's order only if it finds that order
clearly erroneous and contrary to the overwhelming weight of the evidence. Myles v.
Rockwell International, 445 So.2d 528, 536 (Miss.1983) (citing Masonite Corp. v.
Fields, 229 Miss. 524, 91 So.2d 282 (Miss.1956)); and Riverside of Marks v. Russell,
324 So.2d 759, 762 (Miss.1975).
Fought, 523 So.2d at 317.
¶26.
In the second sentence of its analysis, the majority cites the appropriate standard of review to be
that “this Court will only reverse the Commission’s decision when the decision is erroneous and contrary
to the weight of the evidence.” I am of the opinion that this is incorrect. The court in Fought stated one
principle, which may be applied through two similar examinations. First, an appellate court is bound by the
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Commission’s decision if it is supported by “substantial evidence.” Second, stated differently, an appellate
court may reverse the Commission only if the decision is clearly erroneous and contrary to the
overwhelming weight of the evidence. Id. In practice, the difference between these two standards is
slight; however, the essence is that appellate courts may not simply reweigh the evidence and interject its
decision for that of the Commission. Indeed, this Court has a duty to defer to the Commission when its
decision can be supported. Id. My review will consider the facts and an examination of both versions of
the standard of review.
¶27.
Several different physicians examined Bradley. An MRI was performed and interpreted. The
physicians arrived at two totally opposite conclusions. Dr. Frenz, Bradley’s physician, concluded that the
MRI revealed abnormalities which required surgery. Dr. Alexander and Dr. Katz, who performed
independent medical examinations at the request of the Commission, found the MRI to be within normal
limits and concluded that Bradley was not in need of further surgery. The administrative law judge and the
Commission considered these conflicting opinions and determined that Bradley had reached maximum
medical improvement and was not in need of further medical or surgical intervention.
¶28.
The Commission’s decision is supported by the opinions of Dr. Alexander and Dr. Katz. Under
Fought, we must consider whether the Commission relied on “substantial evidence.” If it did, we must
affirm. Substantial evidence has been defined as more than a scintilla of evidence. Central Elec. Power
Ass'n v. Hicks, 236 Miss. 378, 389-90, 110 So.2d 351, 357 (1959). Here, with the testimony of two
physicians, who conducted independent medical examinations, the Commission’s decision was supported
by more than a scintilla of evidence. Therefore, “substantial evidence” supporting the Commission’s
decision was present.
¶29.
Next, the majority concludes that the Commission’s decision was erroneous and against the weight
10
of the evidence. Neither the circuit court nor this Court should attempt to reweigh the evidence. In Baugh
v. Cent. Miss. Planning, 740 So. 2d 342, 344 (Miss. Ct. App. 1999), we held:
Where two or more qualified medical experts reach different conclusions, we will not
determine where the preponderance of the evidence lies when the evidence is conflicting,
the assumption being that the Commission as the trier of fact, has previously determined
which evidence is credible, has weight, and which is not.
Again, with the opinion of two physicians to support the Commission’s decision, it is difficult to conclude
that the Commission’s decision was against the “overwhelming” weight of the evidence.
¶30.
Other legal principles must also be considered. In reviewing this claim and the evaluation of
evidence by the Commission, this Court is bound by the factual findings of the Commission “even though
the evidence would convince the court otherwise if it were instead the fact finder.” Ladnier v. Shoney’s
Inn, 751 So. 2d 1099, 1101 (Miss. Ct. App. 1999). We may not interfere, absent an error of law, where
credible evidence exists to support the Commission’s decision. Lanternman v. Roadway Express, Inc.,
608 So. 2d 1340, 1345 (Miss. 1992). As in this claim, “where there is a conflict of qualified and
substantial medical testimony, the decision of the commission, for or against an award, is final and must be
affirmed on review.” Ladnier, 751 So. 2d at 1103.
¶31.
The portion of the circuit court’s memorandum opinion, cited by the majority, clearly indicates that
the circuit court reweighed the evidence before the Commission and interposed its findings in the place of
the Commission’s, which should not occur. While the majority states that it relies on different grounds, it
must be noted that there was a direct conflict in the qualified medical testimony presented to the
administrative law judge and the Commission. Accordingly, the appropriate standard of review requires
that we, as an appellate court, must therefore accept the Commission’s findings and conclusions.
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¶32.
The majority’s other grounds for reversal focuses on language contained in the Mississippi Supreme
Court’s decision in Spann v. Wal-Mart Stores, Inc., 700 So. 2d 308 (Miss. 1997). Spann does not
support the majority’s position. In Spann, three doctors offered testimony. Dr. Frenz concluded that
Spann needed surgery; Dr. Nix testified that surgery was not necessary; 2 and Dr. Barrett concluded that
there was a 50-50 chance that Dr. Frenz's planned surgery would improve Spann's condition enough for
him to go back to work. Id. at 310 (¶¶ 7-10). The supreme court ordered treatment, by Dr. Barrett
instead of Dr. Frenz, to continue on the basis that “the only disagreement” between Dr. Frenz and Dr.
Barrett was that the former opined surgery was required and the latter opined it had a 50-50 chance of
success. Id. at 312 (¶15). The expert opinions by Drs. Frenz and Barrett were not in direct conflict. The
only credible physician testimony was that the proposed medical treatment had a high rate of success, i.e.
it would allow Spann to resume heavy work duties. Id. at 314 n.2 (¶25). Such is not the case here.
¶33.
Instead, the majority cites Spann for the proposition that if a competent treating physician says that
a particular treatment is necessary and reasonable, the employer and carrier must pay for it. Id. at 315
(¶34). This reading of Spann is contrary to our workers' compensation laws. Certainly, the employer,
through the proper procedures, has the right to question whether a certain treatment is necessary. The
statutes and rules allow the employer to object and require the Commission to decide whether certain
medical procedures should be authorized. Mississippi Code Annotated Section 71-3-47 (Rev. 2000);
Commission General Rule 9; Procedural Rule 22. “[I]f a dispute arises about whether a particular medical
service or supply is reasonable and necessary, one or more of the parties may call upon the Commission
to resolve the dispute.” 9 Ency. Miss. Law, Workers' Compensation Law, § 76:102 (2001).
2
Dr. Nix’s testimony was not considered credible because (a) his answers on crossexamination were uncertain; (b) he examined Spann only once; and (c) he admitted that he had not
reviewed Spann’s MRI. Spann, 700 So. 2d at 310.
12
¶34.
The majority here reads Spann to override the employer’s right to challenge a particular medical
treatment on the grounds that it is not reasonable or necessary. Such cannot be the case. In Spann, the
only two credible physicians agreed that the planned treatment was reasonable, necessary, and there was
a significant chance that the surgery would allow Spann to resume his work duties. Spann, 700 So. 2d at
310. Spann stands for the proposition that if all physicians agree that a certain medical treatment would
benefit the employee and there is no credible evidence to the contrary, the Commission is then obligated
to authorize the treatment.
¶35.
Here, the situation is different. The expert testimony by Dr. Alexander and Dr. Katz was in direct
conflict to the testimony of Dr. Frenz. The physicians did not agree on the treatment. Instead, there was
substantial evidence from two physicians, both of whom conducted independent medical examinations as
ordered by the Commission, that the planned treatment was not reasonable or necessary based on the
medical findings.
¶36.
For these reasons, I find that the Commission’s decision was proper. The decision was supported
by substantial evidence, and it was not clearly erroneous and contrary to the overwhelming weight of
the evidence. Therefore, I would reverse the circuit court and reinstate the Commission’s decision.
SOUTHWICK, P.J., JOINS THIS SEPARATE OPINION.
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