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Ladner v. Zachry Construction

Court of Appeals of Mississippi, En Banc

September 5, 2017

MATTHEW LADNER APPELLANT
v.
ZACHRY CONSTRUCTION AND ZURICH AMERICAN INSURANCE COMPANY APPELLEES

          DATE OF JUDGMENT: 06/24/2015

          REVERSED AND RENDERED: 07/26/2016

          MOTION FOR REHEARING FILED: 08/23/2016

         MISSISSIPPI WORKERS' COMPENSATION APPEALED: COMMISSION

          ATTORNEYS FOR APPELLANT: JAMES KENNETH WETZEL GARNER JAMES WETZEL

          ATTORNEY FOR APPELLEES: WALTER J. EADES

          GRIFFIS, P.J.

         MODIFIED OPINION ON MOTION FOR REHEARING

         ¶1. The motion for rehearing is denied. The previous opinion of this Court is withdrawn, and this opinion is substituted in its place.

         ¶2. 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.

         FACTS

         ¶3. 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.

         ¶4. 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 work duties.

         ¶5. 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 ...


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