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MANDATE FROM THE SUPREME COURT OF MISSISSIPPI To the       County Circuit Court - GREETINGS: On the       day of       ,       , in proceedings held in the Courtroom,       , the City of       , Mississippi, the Supreme Court of Mississippi entered a final judgment as follows: Supreme Court Case #       Trial Court Case #             vs.       and       Reversed and Remanded,       , Appellee is taxed with all costs of this appeal. YOU ARE COMMANDED, that execution and further proceedings as may be appropriate forthwith be had consistent with this judgment and the Constitution and Laws of the State of Mississippi. WITNESS, the Hon.       , Chief Justice of the Supreme Court of Mississippi; also the signature of the Clerk and the Seal of said Court hereunto affixed, in the City of       , on             ,       , A.D. Supreme Court Clerk IN THE SUPREME COURT OF MISSISSIPPI NO.             VS.       AND       ON PETITION FOR WRIT OF CERTIORARI DATE OF JUDGMENT:       TRIAL JUDGE:       COURT FROM WHICH APPEALED:       ATTORNEY FOR APPELLANT:       ATTORNEY FOR APPELLEE:       NATURE OF THE CASE:       DISPOSITION:       MOTION FOR REHEARING FILED:       MANDATE ISSUED:       EN BANC.       /       /       HON.             COUNTY CIRCUIT COURT             CIVIL - WORKERS' COMPENSATION REVERSED AND REMANDED -       /       /             , PRESIDING JUSTICE, FOR THE COURT: Introduction 1. This matter is before the Court on the petition for writ of certiorari filed by       , the claimant/appellant in a workers' compensation case. A hearing was held on             ,       , before Administrative Law Judge       , who ruled that       was not entitled to surgery or further treatment by treating physician Dr.       ; that claimant had suffered no temporary disability for which compensation was due; and that claimant had suffered no permanent medical impairment attributable to this injury. 2. In its Order of             ,       , the Commission in a unanimous decision, affirmed the finding and decision of the       , with the exception that the commission ordered continued treatment by Dr.       .       County Circuit Judge       affirmed the Commission in full. Upon appeal, the Court of Appeals,       , affirmed, joined by       , dissented with a separate opinion joined by       did not participate. The Court of Appeals held: The Judgment of the       County Circuit Court is affirmed in all respects except insofar as it affirmed the order of the commission limiting fixture medical expenses to those provided by Dr.       . This provision of the order of the Commission is reversed and rendered. 3. The Court of Appeals recognized that       could be treated by Dr.       , his/her physician of choice, rather than by       's doctor of choice. The statute states that the claimant is entitled to choose his/her treating physician, as long as that physician is qualified within the meaning of the statute. The employer and carrier can request that the claimant see a doctor of their choosing for a second opinion, but cannot mandate the primary treating physician. Although the Court of Appeals approved continuing "treatment," it, as had the       , Commission, and lower court, disallowed the       recommended by the treating physician, finding that maximum medical recovery had been achieved; and that there was no temporary or permanent partial disability, despite the claimant's recognized need for continued treatment. 4. Certiorari review was granted by this Court on             ,       . Facts 5. All parties involved agree that       was a healthy, relatively new employee of       , participating in a training program under the supervision of his/her supervisor,       .       provided the following testimony when asked whether       was a good employee: A. I recruited him/her . he/she didn't come to me for a job. I went to him/her and recruited him/her and also seeked [sic] his/her employers' statements about him/her and what type of worker he/she was. I observed him/her . I saw he/she was a hard worker and with       more or less what we are told to do. Go out and if they don't know the job we can teach them the job. We can train them. 6. All parties also agree, that on             ,       , while in the course and scope of employment, a then healthy       , who was       ,       , which had recently been       and injured his/her       .       admitted the injury and sent       to see Dr.       .       felt that Dr.       was not helping his/her recovery, and on his/her own went to see Dr.       in       , Mississippi, who performed a       , a       and       while       was hospitalized. Dr. is certified by the       , and additionally board certified by the       and by the       . 7. The radiologist who initially read the x - rays found an abnormality or bulging of the       , which was confirmed by Dr.       . Dr.       recommended that due to the abnormality at the       that "       ." Dr.       testified that he/she believed, based on a reasonable medical certainty, that       could be relieved, at least in part, of his/her continuing symptoms and could reasonably be expected to have an improvement in his/her functional capacity if the procedure was completed. 8. Basing his/her opinion on       's history, examination, treatment and the diagnostic tests performed on him/her , Dr.       opined that there was a direct causal relationship between the accident which occurred on             ,       and the set of complaints, symptoms and findings for which he/she treated him/her . 9. Upon the referral of Dr.       ,       asked Dr.       , an       , for a second opinion. Dr.       reported "       ." he/she further concluded that       appeared to be magnifying his/her symptoms during the course of the examination and opined that       should recover from his/her "       " in six to eight weeks. However, during the hearing before the Commission, Dr.       stated on cross - examination that his/her answers were uncertain because he/she had not seen       very often. The record shows that Dr.       saw and examined       on only one occasion. Dr.       also admitted on cross - examination that he/she had not reviewed       's. 10.       also saw Dr. , another       , on a limited basis, upon the recommendation of his/her first attorney. Dr.       diagnosed "       ," but stated that "       ." Both Drs.       and       found that       could no longer perform the heavy work he/she had been doing prior to the injury. 11. After       returned to work, he/she was placed on light duty.       's supervisor testified that although       had been deliberately placed on light duty, he/she could not perform the work, and that on many occasions he could not work a full day because of the pain. The supervisor said that based on his/her observation       's pain prevented him/her from stooping or bending, and he/she could only stand for short periods of time. Issues Raised for Certiorari Review I. THE EVIDENCE IN THIS CASE IS OVERWHELMING THAT CLAIMANT HAS NOT REACHED MAXIMUM MEDICAL IMPROVEMENT, BUT IF THE COURT FINDS THAT HE/SHE HAS, THEN THE EVIDENCE IN THE RECORD OVERWHELMINGLY FINDS HIM TO BE DISABLED. II. IT IS NOT WITHIN THE POWER OF THE COMMISSION TO DENY A CLAIMANT MEDICAL TREATMENT PRESCRIBED BY THE TREATING DOCTOR WHEN ALL MEDICAL OPINIONS AGREE AS TO THE BASIC MEDICAL DIAGNOSIS, WHEN THE TREATING PHYSICIAN IS ADJUDGED TO BE COMPETENT IN THE SPECIALTY AND FURTHER WHEN THIS TREATMENT IS NOT UNRELIABLE OR CONTROVERSIAL. Spann initially saw an attorney in       , but was unable to make the necessary trips back and forth to       , and hired his/her present attorney who practices in       , Mississippi. III. EVEN IF THE COMMISSION HAS THE POWER TO DENY A CLAIMANT MEDICAL TREATMENT PRESCRIBED BY THE TREATING DOCTOR, IT WOULD BE AGAINST THE WEIGHT OF THE EVIDENCE IN THIS CASE. Analysis and Authority 12. Our standard of review of workers' compensation cases is well established. If the Commission's finding of fact and order are supported by substantial evidence, then they bind us even though we as fact finder would have been convinced otherwise. Fought V. Stuart C. Irby Co., 523 So. 2d 314, 317 (Miss. 1988). We will exercise de novo review on matters of law. KLLM Inc., V. Fowler, 589 So. 2d 670, 675 (Miss. 1991). 13. The AU and full Commission found that       had reached maximum medical recovery. However, the Commission's order differed from that of the AU in that the Commission ordered continued treatment by Dr.       . The Court of Appeals reversed and rendered that portion of the Commission's order limiting fixture medical expenses to those provided by Dr.       , and found that the Commission exceeded its authority when it specified a particular doctor to provide further treatment in connection with       's injury. The Court of Appeals agreed that there was a duty to continue medical treatment for       . The ALJ, Commission, circuit court and Court of Appeals found that       had achieved maximum medical recovery and suffered no temporary or permanent disability. 14. The Order of the Commission directs       to "pay for said treatment and supplies as required by the nature and extent of the injury in the process of claimant's recovery as provided in Section 71 - 3 - 15." The Court of Appeals found that "[the] language of the Commission's Order is somewhat troubling in that it seems to imply that       has not, in the opinion of the Commission, reached maximum medical improvement. Otherwise, it would make no sense to refer to the process of cia imantts recovery.' " The Court of Appeals went on to conclude that "[it] is entirely 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." COA op. at 7. 15. This conclusion is troubling when either a common sense or legal analysis is applied to the situation before us.       was a perfectly healthy individual with no prior history of any back injury or pain, who was an excellent trainee in a heavy duty job as a       . If       had achieved maximum medical improvement, following an injury all parties agree occurred during the course and scope of employment, then       should be pain free as he/she was prior to the accident, with full mobility, and able to return to his/her prior duties. If he/she has reached maximum improvement, and is still suffering from and being treated for pain, immobility, and inability to perform any but the lightest duties, then it logically follows that he/she has some temporary or permanent partial disability. The logical conclusion is that       has not achieved maximum medical recovery. Drs.       and       agree that       cannot return to his former heavy duties. Their only disagreement lies in the fact that Dr.       is of the opinion that surgery would help, and Dr.       is of the opinion that there is only "a 50 - 50 chance" that having the surgery would allow       to return to heavy-duty work. Dr.       stated that       should be able to return to work at some point, but required work hardening." Dr.       faltered during cross - examination and testified that, "Perhaps if I had seen him/her on several more occasions, I might have been more definite or more positive about some of my answers." This Court held in Johnson V. Ferguson, 435 So. 2d 1191,1195 (Miss. 1983): When an expert's opinion is based upon an inadequate or incomplete examination, that opinion does not carry as much weight and has little or no probative value when compared to the opinion of an expert that has made a thorough and adequate examination. 16. Dr.       also testified that, "I did not as I recall as my records would reflect, I did not look at the MW." 17. The following exchange took place during the direct examination of Dr.       : Q.       ? A.       . Q.       ? A.       . Q.       ? A.       . 18. As previously stated Dr.       opined, "       ." Thus, clearly Dr.       is of the opinion that there is some temporary or permanent partial disability. The supervisor,       testified: A.       . 19. None of the above excerpts from the record supports a conclusion that reached maximum medical improvement, or in the alternative, the excerpts support the finding that if maximum medical improvement has been achieved by       , he/she then suffers from either a temporary or permanent disability. 20. Mississippi Code Ann. Section 71 - 3 - 7 requires that compensation shall be payable for "disability" for an injury arising out of and in the course of employment. The question of degree and duration of disability is one of fact. Wiggins V. Knox Glass, Jnc., 219 So. 2d. 154 (Miss. 1969). The degree of disability is determined by (1) actual physical injury and (2) loss of wage earning capacity. General Elec. Co. V. McKinnon, 507 So. 2d 363, 365 (Miss. 1987); BUl Williams Feed Store V. Mangum, 183 So. 2d 917 (Miss. 1966). A rebuttable presumption of no loss of wage earning capacity arises where the claimant's earnings after the injury are equal to or in excess of his/her earnings prior to the injury.       . at       . The statute has been construed by this Court to mean that post - injury earnings equal to or in excess of pre - injury earnings are strong evidence of non - impairment of earning capacity, but that the presumption arising therefore may be rebutted by evidence on the part of the claimant that the post - injury earnings are unreliable due to: increase in general wage levels since the time of accident, claimants own greater maturity and training, longer hours worked by the claimant after the accident, payment of wages disproportionate to capacity out of sympathy to claimant, and the temporary and unpredictable characteristics of post injury earning. (Citations omitted). General Electric Co., 507 So. 2d at 365, citing Wilcher v. D.D. Ballard Construction Co., 187 So. 2d 308, 310 - 311 (Miss. 1966)( string citation omitted)(emphasis in original). 21. This Court went on to hold: Moreover, this list is certainly not an exclusive one. See, Karr v. Armstrong Tire & Rubber Co., 216 Miss. 132, 61 So. 2d 789(1958). Our recent decision in Hall of Mississippi, Inc., v. Green, 467 So. 2d 935 (Miss. 1985), reflects that any factor or condition which causes the actual post - injury wages to become a less reliable indicator of earning capacity will be considered. McKinnon at 365. 22.       was earning $       per hour before his/her injury, and in his/her light duty job created for him/her post - injury, he/she was paid $       cents per hour. However, according to his/her supervisor, exhibited clear signs of pain and disability and was unable to perform his/her new job well. In DeLaughter v. South Central Tractor Parts, 642 So. 2d 375 (Miss. 1994), this Court reversed the Commission's denial of disability benefits where an employee returned to work and continued to work despite severe pain, but could not perform all of his current duties. The same is true of McNease v. Cooper Tire and Rubber Co., 627 So. 2d 321, 325 (Miss. 1993), in which this Court held: "Clearly ignored is testimony by McNease, corroborated by his supervisor, that McNeese continued to complain of back pain while doing his job..." 23. There is no substantial evidence in this record that       has achieved maximum medical recovery; or put in the alternative; there is substantial evidence that if maximum medical recovery has been achieved, there exists some temporary or permanent partial disability. It cannot be said that this claimant has been restored to his state of health existing prior to injury. There is no dispute that the injury occurred during the course and scope of employment. There was no pre - existing injury. Everyone with the exception of the ALJ recognizes and admits that payment for continuing treatment and care is owed to       , and Drs.       and       both agree that in his/her present condition,       is not able to do any heavy duty work. Dr.       , who said that       should be "work hardened" prior to returning to his/her former duties, admits he/she saw       on only one occasion, and did not review       's MW. 24. This Court has held that "the act should be liberally construed to carry out its beneficent remedial purpose..." Stuart v. Brown, ~43 So. 2d 649, 652 (Miss. 1989). On this issue we remand to the Commission for a determination of whether or not maximum medical improvement has been achieved, and if so, whether there exists some temporary or permanent partial disability. II. and III. 25. The ALJ, Commission, Circuit Court and Court of Appeals denied       the       recommended by Dr.       ,       's primary treating physician. Dr.       opined that there was only a 50 - 50 chance the surgery would enable       to resume heavy work duties, which indicates a 50 percent chance the surgery would enable       to resume heavy work duties. Aside from that consideration, Dr.       stated that in his opinion, the surgery would alleviate       's pain. It logically follows that       would not be dependant upon the strong medication prescribed to relieve his pain, and which, according to       's supervisor, further hindered       's ability to perform even light duties.       asserts in his/her petition for writ of certiorari that "[it] is not within the power of the Commission to deny a claimant medical treatment prescribed by the treating doctor when all medical opinions agree as to the basic medical diagnosis, when the treating physician is adjudged to be competent in the specialty and further when this treatment is not unreliable or controversial."       further asserts that "even if the Commission has the power to deny a claimant medical treatment not prescribed by the treating doctor, it would be against the weight of the evidence in this case." 26. The Court of Appeals addressed these issues as two inquiries: First, whether       is correct as a matter of law, that it is not within the power of the commission to deny him/her medical treatment recommended by his/her treating physician. Secondly, and assuming that the first issue is resolved against       there is the question of whether the decision of the commission, though one permitted under the law, is nevertheless erroneous as being unsupported by substantial evidence. 27. The Court of Appeals held that, "It seems clear to this Court that 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." COA op. at 5. This wording is a bit puzzling as there is no mere "allegation" that the injury or services [surgery] would relate to a work injury.       admitted the injury. There was no previous injury, pain or disability of any sort prior to the admitted work related injury.       has continued to attempt to work at the lighter duty job created for him/her after injury, although his/her supervisor testified that       cannot perform the duties of even the light duty job. 28. In       , this Court reversed a case where the Commission had denied payment for certain services that had already been provided. The Court of Appeals cites       v.       ,       , in support of its holding. However, a review of the case reveals that       would appear to support       's case rather than the holding of the Court of Appeals. This Court held: It was error to deny compensation to       for the services of Dr.       , his chiropractor. Dr.       services clearly were related to both his first and second injury.The Administrative Judge awarded compensation for the services of       neurologist, Dr. Andy, but not for Dr.       . This assignment of error has merit and the order of the circuit court will be reversed and this issue remanded to the Commission for a determination as to whether or not the chiropractic treatment was necessary and the charges reasonable. White v. Hattiesburg Cable Co. & Travelers Insurance Co., 590 So. 2d 867, 870 (Miss. 1991). Id. at 1346 (emphasis added). 29. This Court further held: Lanterman is correct when he contends that he is entitled to be compensated by Roadway for all future medical treatment by doctors selected by Lanterman for such period of time as the nature of his injuries require. Id. 30. In White v. Hattiesburg Cable Co., 590 So. 2d 867 (Miss. 1991), this Court cited Dunn Mississippi Workers' Compensation, 340 (3 rd ed. 1982). 40. Generally, The injured employee is entitled to medical and hospital care without limit, but the fees and other charges are subject to regulation by the commission and may not exceed those which prevail in the same. Miss. Code Ann. Section 71 - 3 - 15 states in pertinent part: (1) the employer shall furnish such medical, surgical, and other attendance or treatment, nurse and hospital service for such period as the nature of the injury or the process of recovery may require....community.... Medical benefits include surgical treatment, nursing, hospital service, medicine, crutches, artificial members and other apparatus. The purpose of unlimited services is to insure restoration of the employee to the maximum usefulness that he can attain under the physical impairment resulting from the injury, and the services are in addition to all other compensation benefits, and this is the established yardstick by which benefits are to be measured. In this field, liberality is especially notable and, in practical effect, it is the obligation of the employer to provide whatever is needed or is reasonably calculated to carry out the humanitarian purposes of the Act (Footnote omitted; emphasis added). 590 So. 2d at 869 - 70. 31. This Court went on to hold: There is a broad public policy behind the Act to provide the necessary treatment to restore the injured worker to health and productivity. This should be the focus of the Commission. Was this treatment necessary? Are the charges reasonable? These questions should be thoroughly investigated, but if both are answered in the affirmative White cannot be denied benefits solely because the service was rendered by a licensed chiropractor. Id. at 870. 32. And finally, in Oswalt v. Abernathy & Clark, 625 So. 2d 770 (Miss. 1993), this Court denied payment for a procedure that was controversial because it was considered unreliable and not indicated by Oswalt's type of injury. However, we reversed the Commission's refusal to pay for treatment that was "reasonable and necessary." 33.       is obligated, pursuant to the Act, to allow       to have the surgery recommended by Dr.       , the primary treating physician. Dr.       states that in his opinion, having seen       on a limited basis, that there is only a 50 - 50 chance the       will allow       to return to heavy work, and he/she does not express an opinion as to whether or not this surgery would relieve       's pain. Only Dr.       whose opinion pursuant to Johnson, 435 So. 2d at 1195, supra, "has little or no probative value when compared to the opinion of an expert that has made a thorough and adequate examination," took the position that surgery was unnecessary or would not be beneficial to       's recovery. 34.       's third and final argument is that "Even if the Commission has the power to deny a claimant medical treatment prescribed by the treating doctor, it would be against the weight of the evidence of this case." This issue will not be addressed as the case law and Act mandate that as long as a particular treatment is deemed "necessary and reasonable" by a competent treating physician, the employee and carrier are obligated to furnish such treatment. There is no dispute that Dr.       is a competent physician as defined by the Act. Conclusion and Recommendation 35. The record reflects that this case presents a worker who was injured during the course and scope of his employment doing heavy work for       , who had no pre - existing condition or previous injuries, and who now is in extreme pain, unable to perform even light duties well. The injury is admitted,       's inability to do the work, even light work, is undisputed by       and the carrier, and all medical evidence concludes that       has a bulging disc as a result of his work related injury. Yet, the Respondents conclude that       has reached maximum medical recovery, has no temporary or permanent partial disability, and refuse to pay for the surgery recommended by the primary treating physician.       's obligation to       is of statutory origin. It is obligated to "furnish such...surgical... treatment... for such period as the nature of the injury or the process of recovery may require." Miss. Code Ann. Section 71 - 3 - 15 (1972). 36. Following surgery, if still indicated, and the appropriate period of recovery, it should be determined whether or not maximum medical recovery has indeed been achieved, and if so, whether any temporary or permanent partial disability exists. The judgment of the Court of Appeals is reversed. The case is remanded to the Commission for action consistent with this opinion. 37. REVERSED AND REMANDED.       ,NOT PARTICIPATING.