Davis v. Scotch Plywood Co. of Mississippi, 56366

• Decision Date: 18 March 1987
• Docket Number: No. 56366,56366
• Citation: 505 So.2d 1192
• Parties: Alfred Grant DAVIS v. SCOTCH PLYWOOD COMPANY OF MISSISSIPPI and Employers Casualty Company.
• Court: Mississippi Supreme Court

Page 1192

505 So.2d 1192

Alfred Grant DAVIS v. SCOTCH PLYWOOD COMPANY OF MISSISSIPPI and Employers Casualty Company.

No. 56366.

Supreme Court of Mississippi.

March 18, 1987.

Stanford Young, David Slaughter, Waynesboro, for appellant.

Brooke Ferris, Eugene M. Harlow, Gibbes, Graves, Mullins, Bullock & Ferris, Laurel, for appellee.

Before HAWKINS, P.J., and DAN M. LEE and GRIFFIN, JJ.

HAWKINS, Presiding Justice, for the court:

Alfred Davis has filed this appeal from the circuit court of Wayne County, where the circuit judge affirmed the findings of the Mississippi Workers Compensation Commission (MWCC) regarding the denial of permanent partial disability payments for Davis' back injury. The circuit judge further found that the employer/carrier was responsible for the medical services rendered by Davis' doctor, a ruling contested by the employer/carrier on cross-appeal.

Davis also appeals the decision of the circuit judge in affirming the Commission's decision not to reopen the hearing after additional evidence was discovered by Davis.

We affirm the denial of permanent partial disability payments, but we find Davis' temporary total disability payments should not have been cut off by the Administrative Judge. We further hold the employer/carrier is not responsible for the medical services of Davis' doctor. We also affirm the circuit judge regarding MWCC's refusal to reopen the hearing.

FACTS

Alfred Davis was injured on April 28, 1982, in the course of his employment with Scotch Plywood Company (SPC) in Waynesboro. While stacking plywood on a buggy, Davis felt a catch in the bottom part of his back.

Davis first went to see his family doctor, Dr. Wood, who referred him to Dr. Ralph Wicker, a Hattiesburg neurosurgeon. On May 4 Dr. Wicker ran standard tests on Davis and found his nerves were intact and reflexes okay. Wicker's diagnosis at that time was low back pain, etiology undetermined. On May 18 Wicker hospitalized Davis and conducted several tests. Wicker testified that Davis had a myelogram, a bone scan, and spine x-rays, and the results of all tests were normal. On June 10 Wicker again examined Davis when he complained of back pain. Wicker testified that he found no nerve root irritation, no evidence of a ruptured disc, and felt Davis had reached maximum recovery. Wicker testified that it was his opinion at that time that Davis had no permanent disability.

Subsequently, Davis was seen again by Dr. Wood and after a friend suggested that he see Dr. Donald Cook in Meridian, he was referred by Dr. Wood to Dr. Cook. Davis was initially seen by Dr. Cook on June 29, where standard tests were conducted by Cook. Dr. Cook opined that reflexes, strength, and feeling in the legs were normal. Spinal x-rays were also normal. Davis returned to see Dr. Cook on July 7, and in view of the fact he still complained of pain, he was again hospitalized on July 25. At that time a nuclear bone scan, a repeat myelogram, and a CT scan were performed and reported as normal. At this time Dr. Fleckenstein, a Meridian neuro-surgeon, expressed suspicion of a disc process, but recommended treatment other than surgical measures. Cook agreed with this diagnosis, and it was concluded that he had a Stage I or a Stage II discogenic disorder (lumbosacral strain).

On August 17 Dr. Edward Randolph Turnbull, a Laurel orthopedic surgeon, saw Davis. Turnbull conducted standard tests, found no areas of tenderness or spasm, and judged the x-rays to be normal. On August 31 Davis had an office visit with Dr. Cook, who determined no appreciable difference in Davis' condition. On September 13 Davis had an office visit with Dr. Turnbull, who determined no difference. On September 21 another examination was conducted by Dr. Cook.

On October 11 Davis had an office visit with Dr. Turnbull, during which Turnbull found no difference in Davis' condition. Davis claimed to be feeling better and asked to go back to work, and Dr. Turnbull released him. On October 12 Dr. Cook released Davis to go back to work. Davis gave this release to his boss the next day at SPC.

After working two weeks, Davis was pushing a buggy when he slipped or fell down, and again complained of pains in his back. On October 27 Davis reported the injury to his boss, Gerald Loper, who asked Davis where he wanted to go. Davis said, "Dr. Wood," and the employer sent him there.

Dr. Wood referred Davis back to Dr. Turnbull, who examined Davis on November 12. Although Davis complained of pain, Dr. Turnbull found no evidence of abnormality. Dr. Turnbull examined Davis on November 22 and December 6, and during the latter visit, Dr. Turnbull first learned of Davis' second injury on October 27, 1982. Accordingly, additional lab evaluation and tests were conducted by Turnbull. Two more examinations by Turnbull in late December gave Turnbull the conclusion that maximum medical improvement had been reached by Davis as of December 30. Since Davis still complained of pain, Turnbull referred him to Dr. Buford Yerger in Jackson.

On January 7, 1983, Dr. Yerger conducted a series of tests on Davis. Yerger's conclusion was that the x-rays were normal, no surgery was necessary, and maximum medical improvement had been reached.

On January 18 Davis still complained of pain in his lower back which would often shoot down into his left leg. He went back to see Dr. Cook, who examined him and found all tests still normal. Due to Davis' complaints, Dr. Cook re-admitted him to the hospital on January 23, where the standard tests were run. In addition, a repeat CT scan was conducted.

The CT scan was interpreted by the radiologist and Dr. Cook as showing a generalized bulge at the L-5 S-1 level, but no localized herniation. This was not present on the previous CT scan and, in Dr. Cook's opinion, was consistent with the area in which Davis was experiencing pain. Dr. Cook diagnosed that Davis had a tear on the interior of the annulus of sufficient degree to allow a generalized bulge in the band but not localized enough to warrant the classification of a herniated disc or a ruptured disc.

From February, 1983, until August, 1983, the date of Cook's deposition, Davis made periodic visits to Dr. Cook, where Cook examined and evaluated him. Cook testified that Davis' complaints remained the same, and his examination was essentially unchanged except for the fact that he did experience pain going into the left thigh, and there was diminished sensation over the outside border of his left foot. In Cook's opinion, this indicated some degree of irritation to a spinal nerve at the area where the CT scan had disclosed the annulus bulge. Dr. Cook was of the opinion that Davis was in need of further treatment, additional hospitalization, and evaluation for surgery. In Dr. Cook's opinion, Davis had not reached maximum medical recovery as of September 1, 1983, the date of the deposition.

At an evidentiary hearing on March 30, 1983, Davis and his wife testified that he was in continuous pain, and when he stood or walked a lot, his back would give out. The medical depositions of Drs. Cook, Turnbull, Wicker and Yerger were entered into evidence. The issues before the Administrative Judge that are relevant here are:

1. Extent of permanent partial disability, if any;

2. Duration of temporary total disability, if any;

3. Whether or not the medical services rendered by Dr. Cook should be paid by the employer/carrier.

On March 26, 1984, the Administrative Judge entered an order in which he found that all four medical specialists were in agreement that none of their medical evaluations determined any major objective findings that would cause any of the doctors to recommend surgery, limitations or restrictions upon Davis' activities, or the assigning of any degree of permanent partial impairment to the body as a whole from a medical standpoint. The Administrative Judge found that Dr. Cook did not express any opinion different from the other doctors because he made no recommendation that the claimant have surgery. The Administrative Judge further found that should there be a question that Dr. Cook's testimony was different from that of the other three specialists, the greater weight should be placed upon the testimony of Drs. Turnbull, Wicker and Yerger, which was "stronger, clearer and more convincing than the minor differences of opinion expressed by Dr. Donald E. Cook herein."

The Administrative Judge ordered that:

1. Davis failed to meet his burden of proof that he was disabled or incurred any degree of permanent partial disability.

2. Temporary total disability should be paid to Davis from 4-27-82 to 10-12-82 and from 10-27-82 to 1-07-83.

3. The employer/carrier was required to pay all hospital, medical services and supplies incurred due to Davis' injuries, but specifically excluded any services rendered by Dr. Cook.

On March 29, 1984, Davis arranged to have a thermogram performed. A thermogram is a heat photograph that detects heat emissions throughout various regions of the body. Davis' thermogram showed heat emissions around the lower part of his back and extending down into the left leg. Based on the results of this thermogram, Davis filed a motion to have the hearing re-opened since this evidence weighed in his favor and would bolster the testimony of Dr. Cook.

On October 9, 1984, the full Commission, after hearing arguments on Davis' motion to re-open and on the case-in-chief, issued an order overruling Davis' motion to re-open and affirming the order of the Administrative Judge. Davis filed an appeal to the circuit court of Wayne County.

The circuit court affirmed the full Commission's findings as they related to Davis' disability and motion to re-open. However, the circuit judge found that the opinions expressed by Dr. Cook were materially different from those expressed by Drs. Yerger, Turnbull and Wicker. Therefore, the circuit judge reversed the full Commission's findings as to the financial...