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Barber Seafood8/4/2005
ON WRIT OF CERTIORARI
NATURE OF THE CASE: CIVIL - WORKERS' COMPENSATION
DISPOSITION: AFFIRMED IN PART AND REVERSED IN PART - 08/04/2005
EN BANC.
.This is the culmination of several appeals of a workers' compensation case. The Administrative Judge's ruling was appealed to the Workers' Compensation Commission which affirmed in part and reversed in part. The Commission's decision was appealed to the Pearl River County Circuit Court, which reversed a portion of the Commission's decision. The circuit court's decision was appealed to this Court, and the matter was referred to the Court of Appeals, which affirmed the circuit court's judgment. See Barber Seafood, Inc. v. Smith, 2004 WL 1728601 (MisS.Ct. App. 2004). All parties petitioned this Court for additional review, and we granted certiorari.
BACKGROUND FACTS AND PROCEEDINGS
. Sandra Louise Smith worked as head cook at Barber Seafood, Inc., d/b/a Uncle Chester's Fish House. In December, 1998, she slipped on water and grease on the kitchen floor and attempted to break the fall using her right hand and arm. After an emergency room visit the following day, Smith was treated by several doctors for pain in her wrist and back.
. Smith saw her family physician, Dr. T. O. McRaney, approximately ten times. She was referred her to Dr. Christopher Fox, an orthopedic surgeon. A CT study which was performed on February 23, 1999, indicated no evidence of disc bulging or herniation at L4-5 or L5-S1. However, an MRI performed on May 13, 1999, revealed mild central disc protrusion at L5-S1, but was otherwise normal. Over the next two years, Smith saw several physicians for diagnosis and treatment.
Dr. Lew
. In June, 1999, Smith began to see pain management specialist Dr. Christopher Lew, who gave Smith myoneural lumbo-sacral or lumbar epidural injections until August 1999, when he stated that "if [Smith] is not interested in further injections, then I have little else to offer her." The injections resumed on August 20, 2001.
Dr. Krieger
. Smith originally saw Dr. Charles Krieger for treatment of her wrist injury. After performing carpal tunnel decompression surgery to her right wrist on June 15, 1999, Dr. Krieger opined that Smith reached maximum medical improvement (MMI) for the wrist injury on September 17, 1999.
. Dr. Krieger also saw Smith on a follow-up visit on January 19, 2000, for complaints of back pain. In deposition testimony, Dr. Krieger stated his "impression was that she could be a candidate for a diskectomy and fusion because she had two discs that were not normal." However, when asked whether he thought Smith "should reasonably submit to a surgery," Dr. Krieger testified, "Well, I can't really answer that question. You know, I only saw her one time, and I'll stand behind what I said, which basically is that she could be a candidate for it if that's her choosing."
. When asked a follow-up question of whether he would recommend the surgery, he testified, "Well, I wouldn't recommend it unless she was just in such severe pain that there was no other way to control it, and she had ruptured discs."
Dr. Provenza
. Dr. Louis Provenza, a neurosurgeon, originally saw Smith on August 5, 1999, noting that she suffered from "L5-S1 disk injury consistent with the history of suffering a fall." On September 17, 1999, Dr. Provenza recommended muscle strengthening and a functional capacity examination (FCE), which was performed on November 11, 1999. According to the facts provided by the Court of Appeals:
On November 12, 1999, Smith was transported by amb
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