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Smith v. Commercial Trucking Co.6/10/1999
ON PETITION FOR WRIT OF CERTIORARI
DATE OF JUDGMENT: 02/27/97
TRIAL JUDGE: HON. BILLY JOE LANDRUM
COURT FROM WHICH APPEALED: JONES COUNTY CIRCUIT COURT
NATURE OF THE CASE: CIVIL - WORKERS' COMPENSATION
DISPOSITION: REVERSED AND REMANDED - 6/10/1999
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC.
. Smith, a manual laborer, injured his back at his employment while changing truck tires. He saw three physicians who diagnosed acute lumbar strain and no permanent injury. Continuing to experience pain and inability to function, Smith, with the assistance of his attorney, saw a fourth physician who performed a second MRI and a myelogram as well as other tests. These tests indicated a herniated disc, and this physician assessed permanent injury and disability and recommended corrective surgery.
. The ALJ found no permanent disability and this determination was affirmed by the full commission and later by the circuit court. Smith appealed and argues that the commission failed to give proper weight to the testimony of the physician who performed diagnostic tests not performed by the others. The Court of Appeals affirmed the circuit court and Smith has filed this Petition for Writ of Certiorari alleging the Court of Appeals opinion is contrary to our prior opinions, primarily Johnson v. Ferguson, 435 So.2d 1191 (Miss. 1983) in which the Court said that greater weight should be accorded to the testimony of experts who perform critical tests over those who do not. Because the Court of Appeals, the circuit court and the Commission failed to properly apply this precedent, the case is reversed and remanded.
FACTS
. Smith is a fifty-two year old man with an eighth grade education and no vocational training. His work experience includes employment as an oil industry roustabout, a pulpwooder, and a heavy equipment mechanic. All of these jobs involved heavy manual labor.
. In 1992, Smith was hired as a mechanic by the appellee, Commercial Trucking Company, Inc. of Laurel, Mississippi (Commercial Trucking). Commercial Trucking's workers' compensation carrier is United States Fidelity and Guaranty Company (USF&G;. Smith's job requirements included changing truck tires that weighed anywhere from 300 to 500 pounds. He testified that on September 4, 1993, he was bending over to pick up a truck tire when he felt back pain radiating down his leg. When the pain continued through the next day, he went to the emergency room at Methodist Hospital in Hattiesburg where he was seen by orthopedic surgeon Dr. Cleve Johnson. Dr. Johnson diagnosed a lumbar strain and prescribed physical therapy. During four more office visits over the next two weeks, Smith continued to complain of lower back pain and that the physical therapy was having no effect. On September 20, 1993, Dr. Johnson ordered an MRI, which showed a mild bulging at L4-L5 and normal degenerative changes. Dr. Johnson referred Smith to neurosurgeon Dr. Michael Lowry, who, based on the MRI, found some evidence of a small disc herniation at L5-S1, but attributed it to normal degenerative changes. Smith testified that Dr. Lowry did not recommend any further testing or therapy. Dr. Lowry's records and a Functional Capacity Examination (FCE) report by physical therapist Marty Cheeks reflect a subjective finding that Smith may have been exaggerating the extent of his pain and deliberately limiting his range of movement. Smith testified that while Dr. Lowry released him for light duty, his employer did not have any light duty available.
. Smith returned to see Dr. Johnson who prescribed conti
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