In The Supreme Court Of Mississippi No 97 CA 00153 SCT

IN THE SUPREME COURT OF MISSISSIPPI

VS.

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B

HON. COUNTY CIRCUIT COURT

WORKER' S COMPENSATION

FOUND APPELLANT ENTITLED TO TREATMENT BUT BY SPECIFIED DOCTOR.

BEFORE , AND , FOR THE COURT:

This case comes before the Court on appeal from a judgment of the Circuit Court of affirming a final order of the Mississippi Workers' Compensation Commission.

The claimant, , has availed him/herself of his/her statutory appeal rights to claim that the commission erred when it concluded that he/she had reached maximum medical improvement as the result of a work-related injury and had suffered no permanent disability from the accident.

He/She further claims that the commission exceeded its authority when it specified a particular doctor to provide any further treatment in connection with his/her injury.

II.

Facts

was employed at the in the city of as a on , when he/she .

He/She complained of both and and was treated by Dr. , an , primarily for his/her .

Dr. referred to Dr. because of concern of possible internal injuries to the abdominal area; however, it appears that these symptoms resolved themselves.

He/She continued to complain of pain and pain in his/her lower extremities that he/she attributed to his/her injury.

Dr. treated conservatively. His/Her treatment included a period of complete bed rest followed by a course of physical therapy.

He/She apparently dissatisfied with the progress of his/her recovery, sought treatment from Dr. , a , who diagnosed .

Dr. initially attempted to treat the problem through medication and therapy, but ultimately admitted to the hospital in , and recommended a to attempt to relieve symptoms.

The workers' compensation carrier refused to authorize the surgery and informed Dr. additionally that it would not authorize further charges associated with the hospitalization.

As a result, was discharged from the hospital and shortly thereafter filed a petition seeking to compel to provide the surgery suggested by Dr. .

Immediately after his/her discharge from the hospital, was examined by two additional doctors, one apparently on a referral from the attorney who was representing him/her in this matter at the time, and the other upon the referral of Dr. for a second opinion.

Dr. , an , reported that he/she felt the patient was within normal limits.

Dr. , an who saw the claimant at the request of Dr. , diagnosed probable internal disc derangement 4-5, but indicated that the proposed discectomy would have less than a 50-50 chance of improvement.

II.

Denial of Surgery

The carrier's obligation to is of statutory origin. It is obligated to furnish surgical treatment for such period as the nature of the injury or the process of recovery may require.

The administrative judge concluded that a preponderance of the evidence indicates that the claimant has reached maximum medical improvement and does not need surgery.

The full commission affirmed the findings and order of the administrative judge except that it directed the claimant to consult with Dr. for continuing treatment as required for management of continuing symptoms of pain associated with the injury and directed the carrier to pay for said treatment and supplies as required by law.

The claimant argues that the commission's reference to the necessity for further medical treatment constitutes an adjudication that he/she has not reached maximum medical improvement.

He/She further argues that it is not within the jurisdiction of the commission to select his/her treating physician for him/her, but that, rather, he/she is entitled to be treated by his/her physician of choice, who is Dr. .

III.

Whether the Commission Exceeded its Statutory Authority in Denying Surgery

The commission is not compelled, as a matter of law, to direct payment for all medical services provided simply on the allegation that such services were related to a work injury.

The court in Lanterman v. Roadway Express, Inc. and White v. Hattiesburg Cable Co. considered whether payment could be denied for services already provided.

The court in Oswalt v. Abernathy & Clark determined that certain unauthorized diagnostic procedures were not compensable because the treatment was not medically reasonable and necessary.

The principle is essentially the same for services proposed but not yet obtained.

A determination that a particular medical procedure is unnecessary based upon a conclusion that it is not reasonably calculated to assist in rehabilitation or restoration to health and vocational opportunity appears to be within the authority of the commission.

The employer may, during the course of a proceeding, require a claimant to submit to an independent medical examination for the purpose of evaluating temporary or permanent disability or medical treatment being rendered.

IV.

Whether the Decision Was Supported by Substantial Evidence

There was conflicting testimony from a number of competent medical professionals in this case, all of whom had examined the claimant.

The only physician recommending a surgical procedure was Dr. .

At least two other examining physicians were of the opinion that there was no spinal injury that necessitated surgery.

The commission adopted the finding of the administrative judge that the claimant had reached maximum medical improvement and that surgery was not necessitated.

V.

The Referral to Dr. for Continuing Treatment

The language of the commission's order is somewhat troubling in that it seems to imply that the claimant has not reached maximum medical improvement.

However, after a review of the record, including the various doctors' reports and depositions, the Court concludes that the commission was merely referring to treatment of the claimant's continuing subjective complaints of pain associated with the injury.

It is possible that an injured worker may reach maximum medical improvement and still be bothered by recurring pain symptoms that are not of sufficient severity to be disabling.

The claimant would be entitled to the reasonable costs of medical treatment to attempt to manage these symptoms.

The commission exceeded its authority as a matter of law insofar as the order can be interpreted as limiting treatment to conservative pain-management assistance from Dr. .

To the extent that the commission may have suggested a particular physician, such direction is error and is reversed and rendered.

THE JUDGMENT OF THE COUNTY CIRCUIT COURT IS AFFIRMED IN ALL RESPECTS EXCEPT INSOFAR AS IT AFFIRMED THE ORDER OF THE COMMISSION LIMITING FUTURE MEDICAL EXPENSES TO THOSE PROVIDED BY DR. .

THIS PROVISION OF THE ORDER OF THE COMMISSION IS REVERSED AND RENDERED.

THE COSTS OF THIS APPEAL ARE TAXED TO THE APPELLANT.