OF JUDGMENT: 06/24/2015
REVERSED AND RENDERED: 07/26/2016
FOR REHEARING FILED: 08/23/2016
WORKERS' COMPENSATION APPEALED: COMMISSION
ATTORNEYS FOR APPELLANT: JAMES KENNETH WETZEL GARNER JAMES
ATTORNEY FOR APPELLEES: WALTER J. EADES
OPINION ON MOTION FOR REHEARING
The motion for rehearing is denied. The previous opinion of
this Court is withdrawn, and this opinion is substituted in
Matthew Ladner appeals the decision of the Mississippi
Workers' Compensation Commission (Commission) denying his
claim for permanent-partial-disability benefits. The
Commission overturned the ruling by the administrative judge
(AJ) that Ladner's former employer, Zachry Construction,
and its insurance carrier, Zurich American Insurance Company
(collectively "Zachry"), owed Ladner disability
payments. Finding Ladner proved his permanent-partial
disability, this Court reverses and renders.
On December 27, 2006, Ladner injured his lower back while
working for Zachry. Ladner returned to work a few days after
the incident, but continued to experience pain. On January
31, 2007, Ladner visited Dr. Kevin Cooper. Dr. Cooper
diagnosed Ladner with a lumbar strain, but concluded that
Ladner did not need surgery and allowed him to return to work
under light or regular work duties as tolerated. Ladner
returned to Dr. Cooper on February 9 and February 16, 2007.
An MRI conducted on February 27, 2007, indicated a slight
narrowing at T10-11, a slight bulge at L4-5, and minimal
protrusion at L5-S1. Based on the MRI results, Dr. Cooper
referred Ladner to Dr. Lee Kesterson, a neurosurgeon.
On March 15, 2007, Dr. Kesterson evaluated Ladner. Dr.
Kesterson concurred with Dr. Cooper's diagnosis of a
lumbar strain, recommended physical therapy, and released
Ladner for light-duty work. Ladner saw Dr. Kesterson again on
May 7, 2007, and June 26, 2007. Dr. Kesterson recommended
continued physical therapy and conditioning. On July 30,
2007, a functional capacity exam (FCE) indicated that Ladner
could function in the medium range of physical ability for
On September 25, 2007, and January 15, 2008, Ladner returned
for follow-up visits with Dr. Kesterson. On March 28, 2008,
Ladner underwent a lumbar discography, which did not reveal
any problems warranting surgery. Ladner returned to Dr.
Kesterson on May 2, 2008, and on May 7, 2008, a ...