Fleming Enterprises, Inc. v. Henderson, 97-CC-01571-COA.

• Decision Date: 06 April 1999
• Docket Number: No. 97-CC-01571-COA.,97-CC-01571-COA.
• Parties: FLEMING ENTERPRISES, INC. and Fidelity and Casualty Company of New York, Appellants, v. Douglas A. HENDERSON, Appellee.
• Court: Mississippi Court of Appeals

741 So.2d 309

FLEMING ENTERPRISES, INC. and Fidelity and Casualty Company of New York, Appellants, v. Douglas A. HENDERSON, Appellee.

No. 97-CC-01571-COA.

Court of Appeals of Mississippi.

April 6, 1999.

Ronald T. Russell, Donald Paul Moore, Brandi C. Schwartz, Gulfport, Attorneys for Appellants.

John Finch Hester, Gulfport, Attorney for Appellee.

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, neuro-surgeon. 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 wage-earning 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...