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Fleming Enterprises Inc. v. Henderson

April 06, 1999

FLEMING ENTERPRISES, INC. AND FIDELITY AND CASUALTY COMPANY OF NEW YORK APPELLANTS
v.
DOUGLAS A. HENDERSON APPELLEE



The opinion of the court was delivered by: Thomas, P.j.

DATE OF JUDGMENT: 08/29/1997

TRIAL JUDGE: HON. JERRY OWEN TERRY SR.

COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT

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

EN BANC

¶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.

ΒΆ7. 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 ...


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