Barber Seafood, Inc. v. Smith, No. 2003-CT-01343-SCT.

• Decision Date: 06 October 2005
• Docket Number: No. 2003-CT-01343-SCT.
• Citation: 911 So.2d 454
• Parties: BARBER SEAFOOD, INC. d/b/a Uncle Chester's Fish House and Mississippi Restaurant Association Workmen's Compensation Trust v. Sandra Louise SMITH.
• Court: Mississippi Supreme Court

911 So.2d 454

BARBER SEAFOOD, INC. d/b/a Uncle Chester's Fish House and Mississippi Restaurant Association Workmen's Compensation Trust v. Sandra Louise SMITH.

No. 2003-CT-01343-SCT.

Supreme Court of Mississippi.

August 4, 2005.

Rehearing Denied October 6, 2005.

John S. Gonzalez, Gulfport, Shane Curtis Whitfield, attorneys for appellants.

William H. Jones, Jackson, attorney for appellee.

EN BANC.

ON WRIT OF CERTIORARI

DICKINSON, Justice, for the Court.

¶ 1. This is the culmination of several appeals of a workers' compensation case. The Administrative Judge's ruling was appealed to the Workers' Compensation Commission which affirmed in part and reversed in part. The Commission's decision was appealed to the Pearl River County Circuit Court, which reversed a portion of the Commission's decision. The circuit court's decision was appealed to this Court, and the matter was referred to the Court of Appeals, which affirmed the circuit court's judgment. See Barber Seafood, Inc. v. Smith, 906 So.2d 1 (Miss.Ct.App.2004). All parties petitioned this Court for additional review, and we granted certiorari.

BACKGROUND FACTS AND PROCEEDINGS

¶ 2. Sandra Louise Smith worked as head cook at Barber Seafood, Inc., d/b/a Uncle Chester's Fish House. In December, 1998, she slipped on water and grease on the kitchen floor and attempted to break the fall using her right hand and arm. After an emergency room visit the following day, Smith was treated by several doctors for pain in her wrist and back.

¶ 3. Smith saw her family physician, Dr. T.O. McRaney, approximately ten times. She was referred her to Dr. Christopher Fox, an orthopedic surgeon. A CT study which was performed on February 23, 1999, indicated no evidence of disc bulging or herniation at L4-5 or L5-S1. However, an MRI performed on May 13, 1999, revealed mild central disc protrusion at L5-S1, but was otherwise normal. Over the next two years, Smith saw several physicians for diagnosis and treatment.

Dr. Lew

¶ 4. In June, 1999, Smith began to see pain management specialist Dr. Christopher Lew, who gave Smith myoneural lumbo-sacral or lumbar epidural injections until August 1999, when he stated that "if [Smith] is not interested in further injections, then I have little else to offer her." The injections resumed on August 20, 2001.

Dr. Krieger

¶ 5. Smith originally saw Dr. Charles Krieger for treatment of her wrist injury. After performing carpal tunnel decompression surgery to her right wrist on June 15, 1999, Dr. Krieger opined that Smith reached maximum medical improvement (MMI) for the wrist injury on September 17, 1999.

¶ 6. Dr. Krieger also saw Smith on a follow-up visit on January 19, 2000, for complaints of back pain. In deposition testimony, Dr. Krieger stated his "impression was that she could be a candidate for a diskectomy and fusion because she had two discs that were not normal." However, when asked whether he thought Smith "should reasonably submit to a surgery," Dr. Krieger testified, "Well, I can't really answer that question. You know, I only saw her one time, and I'll stand behind what I said, which basically is that she could be a candidate for it if that's her choosing."

¶ 7. When asked a follow-up question of whether he would recommend the surgery, he testified, "Well, I wouldn't recommend it unless she was just in such severe pain that there was no other way to control it, and she had ruptured discs."

Dr. Provenza

¶ 8. Dr. Louis Provenza, a neurosurgeon, originally saw Smith on August 5, 1999, noting that she suffered from "L5-S1 disk injury consistent with the history of suffering a fall." On September 17, 1999, Dr. Provenza recommended muscle strengthening and a functional capacity examination (FCE), which was performed on November 11, 1999. According to the facts provided by the Court of Appeals:

On November 12, 1999, Smith was transported by ambulance to the office of Dr. Provenza. She was admitted to the hospital where MRI testing revealed "multi-level stenosis most notable at L4-5 and slightly to a lesser extent at L5-S1, the stenosis present as a result of a large right posterior lateral disc herniation." This was said to be a deterioration of her condition. On December 23, 1999, Dr. Provenza recommended lumbar fusion at L5-S1 and L4-5 in order to treat two ruptured disks. He noted that the L4-5 was worse, and the L5-S1 was still there.

Barber Seafood, Inc. v. Smith, 906 So.2d at 2 (¶¶ 2-9). When asked if he made any recommendations to Smith, Dr. Provenza testified, "I subsequently saw her and recommended lumbar surgery with a fusion." When asked, "So there is additional medical care you could provide [Smith] by way of surgical intervention that may improve her condition," Dr. Provenza replied, "Correct."

Dr. Gutnisky

¶ 9. Dr. Gustavo Gutnisky, a neurosurgeon who examined Smith at the request of the employer and carrier, was asked if he could state to a reasonable degree of medical certainty "whether [Smith] would benefit from surgical intervention?" His response was,

Basically I told her that if she didn't want surgery, she didn't have to. There was no — this is not a matter of life and death. And she was, in my opinion, not a major risk of getting paralyzed or developing any, you know, significant neurological deficit. The only reason to do the surgery would be to get rid of the pain. In my opinion, and, you know, quite a bit of people too, lumbar fusions are fairly unpredictable as far as whether they're going to be successful in getting rid of the back pain. . . . We had an understanding that it would be very difficult to predict whether the surgery would give her any relief.

¶ 10. Smith filed a petition to controvert, claiming additional temporary and total disability benefits.

The Administrative Judge's Decision

¶ 11. Smith's case was first heard by Administrative Judge Cindy P. Wilson ("AJ") on September 5, 2001. During the course of the hearing, the AJ was presented with the testimony by deposition of numerous doctors and other witnesses. The AJ also heard the live testimony of Smith and several witnesses including a private investigator who presented video surveillance tapes of Smith's activities.

Prior work-related injuries

¶ 12. The AJ found that Smith was not entirely forthcoming in her testimony concerning prior work-related injuries. The AJ noted that, during cross-examination, Smith admitted she fell and injured her head, shoulders, neck and back during her prior employment at Delchamps, resulting in visits to her doctor and "in excess of 10 chiropractic visits." The AJ found that Smith "suffered another work-related accident prior to her employment with Barber, while working for Claiborne Hill Deli, where she cut her knuckles on a meat slicer." The AJ further observed that, contrary to Smith's testimony of no other work-related accidents prior to the accident at Barber Seafood, there "was a March 5, 1998, Crosby Memorial Hospital emergency room record . . . which reflects that Ms. Smith presented to the emergency room via ambulance complaining that while at work (The Warehouse), some boxes and groceries fell on her and hit on her left neck and shoulder."

Other injuries

¶ 13. The AJ pointed out that, in her direct testimony, Smith admitted fracturing her ankle while watching her daughter at a school function, but denied any other injuries subsequent to the accident at Barber Seafood. However, according the AJ, Smith "back peddled" on cross-examination, admitting that she "failed to mention" a head-on collision which resulted in a total loss to her vehicle. The AJ also stated, "Initially, she stated that she was not hurt during that accident; however, she then testified that `It shook me up enough that I had to go to the Emergency Room for spasms in my back.'" The AJ further stated that "[Smith] was also involved in two automobile accidents, one occurring during her 20's, resulting in a concussion and the other accident occurring when someone backed into her automobile."

¶ 14. Upon conclusion of the hearing, the AJ issued her opinion on May 17, 2002, which included the following findings:

The wrist injury

¶ 15. The AJ held that Smith "sustained work related injuries¹ on December 31, 1998, to her right wrist. . . ." The AJ further stated, "Dr. Krieger assigned no impairment rating nor did he assess any restrictions and was of the opinion that [Smith] could return to her prior employment as a cook." Finally, with respect to the wrist injury, the AJ stated that Smith reached maximum medical improvement of her wrist injury on September 17, 1999.

Injury to the disc at L4-5

¶ 16. The AJ found that Smith "failed to meet her burden of proof that the condition of the L4-5 [was] causally related to the December 1998 accident." The AJ based this finding on

several factors including the fact that the May 1999 lumbar MRI did not reflect a rupture or bone spur, yet the November 1999 lumbar did. As stated by Dr. Krieger, "the fact that she had an MRI that showed a bulge at L-5 and then six months later she had a disc that looks like it's almost ruptured, something happened, you know, to make that worse." Further, when Dr. Provenza was questioned as to whether he could causally relate to a reasonable degree of medical certainty the L4-5 levels as to the December 1998 injury, he stated, "Now, whether the L4-5 or L4-5 level is a progression of her initial injury or a different injury, I can't tell." Additionally, Dr. Gutnisky, who apparently was the only one of these three physicians who actually reviewed the films from the November 1999 lumbar MRI, testified that at the L4-5 level the Claimant had degenerative disc disease and a central and a slightly off to the right rupture of the disc or bony spur. Dr. Gutnisky attributed the change in the MRIs, in the absence of any additional trauma, to part of the aging process.

¶ 17. Thus, the AJ denied Smith's claim² with respect to her claim of injury to the disc...