Washington County Board of Supervisors and MS Public Entity WC Trust v. John Smith;

THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2019-WC-01193-COA

WASHINGTON COUNTY BOARD OF APPELLANTS
SUPERVISORS AND MS PUBLIC ENTITY WC
TRUST

v.

JOHN SMITH APPELLEE

DATE OF JUDGMENT: 06/24/2019
TRIBUNAL FROM WHICH MISSISSIPPI WORKERS’
APPEALED: COMPENSATION COMMISSION
ATTORNEY FOR APPELLANTS: R. BRITTAIN VIRDEN
ATTORNEY FOR APPELLEE: YANCY B. BURNS
NATURE OF THE CASE: CIVIL - WORKERS’ COMPENSATION
DISPOSITION: AFFIRMED IN PART; REVERSED AND
RENDERED IN PART; REMANDED IN
PART - 09/15/2020
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

EN BANC.

BARNES, C.J., FOR THE COURT:

¶1. The Washington County Board of Supervisors and the Mississippi Public Entity

Workers’ Compensation Trust (Employer/Carrier) appeal from the Mississippi Workers’

Compensation Commission’s (Commission) order finding that John Smith suffered a100%

loss of industrial use in his right lower extremity and sustained a compensable mental injury.

The Commission awarded Smith permanent partial disability benefits and ordered the

Employer/Carrier to pay for and provide any medical treatment that is reasonable, necessary,

and related to Smith’s compensable mental injury. The Commission also affirmed a separate
order of the Administrative Judge (AJ) compelling the Employer/Carrier to provide

evaluations to determine whether the placement of a spinal cord stimulator was reasonable,

necessary, and related to Smith’s injury.

¶2. On appeal, the Employer/Carrier claims (1) the Commission’s finding that Smith

sustained a 100% loss of industrial use to his right lower extremity was not supported by

substantial evidence; (2) the Commission’s finding that Smith had a compensable mental

injury was not supported by substantial evidence; (3) the Commission erred by affirming the

AJ’s separate order compelling it to pay for and provide evaluations to determine whether

the placement of a spinal cord stimulator was reasonable, necessary, and related to Smith’s

injury; and (4) the Commission erred by failing to address whether the Employer/Carrier was

entitled to apportionment or set-off credit for payments related to medical treatments for

Smith’s back.1

¶3. After review, we find that substantial evidence supported the Commission’s finding

that Smith sustained a 100% loss of industrial use of his right lower extremity and that the

Commission did not err in affirming the AJ’s separate order compelling the

1
In its brief, the Employer/Carrier raises an additional issue: whether the
Commission’s finding that Smith’s back condition was caused by his right knee injury was
supported by substantial evidence. However, the Employer/Carrier does not assert this as
a separate issue in the Argument section of its brief. Therefore, we will only address this
issue to the extent that it is necessary to resolve the issues properly raised on appeal. See
M.R.A.P. 28(a)(7) (“The argument shall contain the contentions of appellant with respect
to the issues presented, and the reasons for those contentions, with citations to the
authorities, statutes, and parts of the record relied on.”).

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Employer/Carrier to provide evaluations to determine whether the placement of a spinal cord

stimulator was reasonable, necessary, and related to Smith’s injury. Therefore, we affirm

in part. We find, however, that no substantial evidence supported the Commission’s finding

that Smith sustained a compensable mental injury; accordingly, we reverse and render in

part. Finally, because neither the AJ nor the Commission ruled on the issue of

apportionment or set off, we remand for further proceedings consistent with this opinion.

FACTS AND PROCEDURAL HISTORY

¶4. On March 29, 2016, John Smith, a correctional officer employed by the Washington

County Board of Supervisors, was injured while trying to detain an inmate. Smith was

initially diagnosed with a right-knee strain. However, in April 2016, an MRI showed a

complete tear of his patellar tendon. After undergoing surgery to repair the tendon, Smith

continued to have lower extremity pain as well as back pain. In April 2017, Smith filed a

petition to controvert, claiming that he had sustained work-related injuries to his patellar

tendon, lower extremity, and back. The Employer/Carrier admitted that Smith had sustained

an injury but denied that he had injured parts of the body as stated in the petition to

controvert.2 Almost a year later, in March 2018, Smith filed an amended petition to

controvert, claiming that he had suffered a compensable mental injury. The

Employer/Carrier disputed this claim as well.

2
At the hearing before the AJ, the Employer/Carrier stipulated that Smith suffered
a work-related injury to his right leg.

3
I. Medical History (Physical Injury)

A. Dr. Craft

¶5. A few months after Smith’s patellar-tendon surgery, in July 2016, Dr. Jason Craft,

with the Mississippi Sports Medicine & Orthopedic Center, stated that Smith could return

to sedentary work. Smith continued to complain of pain; so Dr. Craft again took him off

work in September 2016 and referred him to Dr. Michael Winkelmann with NewSouth

NeuroSpine. Smith also began seeing Dr. Timothy Beacham and Mandy Windham, a nurse

practitioner, with Comprehensive Pain Specialists.

¶6. In January 2017, Dr. Craft noted that Smith had continued knee pain and

intervertebral disk displacement. According to Dr. Craft, “[It] sounds like [Dr. Winkelmann

and Dr. Beacham] were thinking complex regional pain syndrome [(CRPS), formerly known

as RSD].” Dr. Craft stated, “I do think this is a component of [CRPS], and I do think a trial

of . . . injections would be in order . . . .” In June 2018, Dr. Craft stated that Smith had

reached maximum medical improvement and should continue pain management.

B. Dr. Winkelmann

¶7. In November 2016, Dr. Winkelmann noted that Smith’s tendon appeared to have a

small recurrent tear and that Smith had continued pain in his lower extremity as well as back

pain. According to Dr. Winkelmann, Dr. Craft was primarily concerned about Smith’s

lower-extremity pain and thought there may be a CRPS component. Ultimately, Dr.

Winkelmann ordered an MRI of the spine and physical therapy.

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¶8. In March 2017, Dr. Winkelmann was asked if he had an opinion as to whether

Smith’s back pain was causally related to the injury or work incident. He was also asked

whether his treatment recommendations were directed at treating the work-related

conditions. Dr. Winkelmann responded, “I do feel that the injury was related to [the]

work-related incident when he had to retain the inmate . . . [, and] yes, I believe my treatment

recommendations are appropriate and necessary for the well-being of the patient.”

¶9. On August 1, 2017, Dr. Winkelmann noted that Smith continued to have a significant

amount of “right lower extremity pain from his [CRPS].” However, he noted that Smith did

not wish to have a spinal cord stimulator placed in an attempt to alleviate the pain. Dr.

Winkelmann opined that Smith had reached maximum medical improvement and that he had

a 5% partial permanent impairment rating to the lower extremity and a 2% sensory

impairment rating to the lower extremity, for a 7% impairment rating to the lower extremity.

¶10. On August 16, 2017, Smith had a Functional Capacity Evaluation (FCE). The

examiner noted that Smith had deficits in his right lower extremity. However, Smith

performed most tasks at a heavy level, except the waist-to-floor lift was performed at a

medium level. The examiner noted the following limitations as potential barriers for Smith

returning to work: walking, forward bending, kneeling, and crouching. According to the

examiner, Smith’s walking and standing had “some limitation,” his forward bending and

kneeling had “significant limitation,” and his crouching was “self-limited.” The examiner

noted that he was unable to fully assess Smith’s ability to return to work because a job

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description was not available.

¶11. Approximately one week later, on August 22, 2017, Dr. Winkelmann noted that

Smith was considering the placement of a temporary spinal cord stimulator. He also noted

that per the FCE, Smith could perform work at a medium-to-heavy level, and he indicated

that Smith could return to work under those restrictions. Dr. Winkelmann also imposed a

restriction of lifting no more than thirty pounds frequently.

¶12. During his deposition in February 2018, Dr. Winkelmann opined that Smith injured

his back during the work incident. He explained that an MRI showed “a little disk bulge and

maybe a little mild neural . . . narrowing.” It was suggested to Dr. Winkelmann that Smith

did not complain of back pain until months after the work incident. Dr. Winkelmann stated

that suggestion did not necessarily alter his opinion. According to Dr. Winkelmann, a

person would typically experience pain within a few day, but it was possible that Smith was

preoccupied with the pain in his lower extremity.

¶13. In addition, Dr. Winkelmann stated that Smith’s CRPS symptoms were confined to

his lower extremity and did not have anything to do with his back. According to Dr.

Winkelmann, the placement of a spinal cord stimulator would be for his CRPS and lower-

extremity pain. However, Dr. Winkelmann stated that because the pain had subsided, he

would not make any further recommendation for a stimulator unless CRPS became a major

problem.

¶14. Several months after the deposition, in September 2018, Smith again saw Dr.

6
Winkelmann, who noted that Smith “ha[d] been developing what appeared to be [CRPS]

and for that reason, he had the persistent problem with right lower extremity, pain

particularly.” He stated, “[Smith] may be a candidate for a stimulator placement and for that

reason, we will make the referral to Dr. Laseter for evaluation as well as Dr. Jeanne Koestler

for evaluation.”

C. Dr. Beacham and Nurse Windham

¶15. In March 2017, Nurse Windham diagnosed Smith with knee pain, CRPS, and

lumbago. The medical record was co-signed by Dr. Beacham. In a separate document, Dr.

Beacham stated that he expected Smith to reach maximum medical improvement (MMI) in

six to twelve months. He indicated that Smith had the following restrictions: no standing

for prolonged periods, no walking for long distances, and no lifting greater than thirty

pounds.

¶16. In a letter dated March 21, 2018, Dr. Beacham was asked, “Are the chronic lumbar

and thoracic symptoms for which you provided treatment causally related to the reported

injury mechanism?” In a handwritten response, Dr. Beacham stated, “No.” Dr. Beacham

was also asked, “What limitations or restrictions if any are causally related to these

impairments?” He responded, “FCE reported limitations as to moderate to heavy activity.”

D. Dr. Collipp

¶17. In April 2017, Dr. David Collipp, with NewSouth NeuroSpine, performed an

Independent Medical Examination (IME) for the Public Employees’ Retirement System of

7
Mississippi (PERS). Dr. Collipp noted that Smith had his tendon repaired and that he had

been diagnosed with CRPS and a spine injury. According to Dr. Collipp, Smith’s

examination was complicated. However, Dr. Collipp did not believe any restrictions were

necessary for Smith’s knee. Dr. Collipp limited Smith to “about medium activity with a max

lift of only 60 [pounds].” However, Dr. Collipp indicated that this limitation was due to

Smith’s morbid obesity. Finally, Dr. Collipp opined that there was no present evidence of

CRPS or a spine injury.

E. Dr. Katz

¶18. In December 2017, Dr. Howard Katz with Gulf States Physical Medicine and

Rehabilitation performed an IME. According to Dr. Katz, Smith’s obesity and a cyst may

have delayed his healing and caused ongoing knee pain. Dr. Katz stated that Smith “does

not have the abnormalities required to diagnose [CRPS],” and he did not recommend a

spinal cord stimulator. According to Dr. Katz, Smith had reached maximum medical

improvement in June 2017. And he assessed Smith as having an 8% impairment rating to

the right lower extremity; however, he did not strongly disagree with Dr. Winkelmann’s 7%

impairment rating. According to Dr. Katz, Smith performed “very heavy duty work” prior

to his injury and was capable of “medium level work” at the time. Dr. Katz stated that Smith

could kneel rarely, occasionally stand/walk, and exert approximately forty pounds of force

occasionally or twenty-five pounds frequently.

F. Dr. Blount

8
¶19. In March 2018, Dr. Philip Blount, with Methodist Pain and Spine Center, noted that

Smith had suffered a knee injury. Dr. Blount opined that the medical record review and

examination did not meet the criteria for CRPS. Dr. Blount did not recommend the

placement of a spinal cord stimulator. Dr. Blount stated, “It is possible that due to gait

disturbance, Mr. Smith is having mechanical low back pain.” Dr. Blount agreed with the

MMI date, impairment rating, and medium-to-heavy work restrictions assigned by Dr.

Winkelmann.

II. Medical History (Mental Injury)

¶20. In October 2017, Smith began counseling sessions at Life Help. Smith reported that

he had sustained a work-related injury and that he had experienced sleep issues, depression,

anxiety, and had thoughts about hurting himself and others. However, he also indicated that

he had experienced anxiety a couple of times a week for several years prior to the incident.

Throughout the therapy sessions, he indicated that he was angry about the work incident.

During one therapy session, Smith threatened the Sheriff, which resulted in the therapist’s

reporting Smith’s statements to her supervisor and the Sheriff’s Department. Smith often

brought his girlfriend to therapy and reported issues with her, family conflicts, and other

interpersonal problems. Ultimately, Smith was diagnosed with major depressive disorder

(“moderate, single episode, with anxious distress”) and post-traumatic stress disorder.

III. Employment

¶21. In a letter dated November 21, 2017, Smith’s employment was terminated. Smith’s

9
employer indicated that he had been notified that Smith had been released to work. Because

the employer had not heard from Smith, he considered the position abandoned.

¶22. Smith’s former supervisor, Lieutenant Darren Addison, completed an “Employer’s

Certification of Job Requirements” for PERS. Lieutenant Addison indicated that Smith had

been offered light-duty work without a deduction in pay. Major Andrew Kaho agreed but

did not know when the offer was made to Smith; he admitted that no permanent light-duty

position was available.3 According to Smith, the light-duty position was offered while he

was still under total work restrictions. But after his FCE, Smith went to the Administrator’s

office, informed them of his restrictions, and asked for his job back. Smith also stated that

he tried to re-apply for his job after he was terminated but was told that he would have to go

in front of a board.

¶23. Lieutenant Addison also completed an “Employer’s Job Activities Checklist” for

PERS. According to Lieutenant Addison, correctional officers were frequently required to

walk and lift less than ten pounds. They were occasionally required to sit, stand, bend at the

waist, and lift less than thirty-five pounds. They were rarely required to squat, kneel, crawl,

climb a ladder, and lift thirty-five to 100 pounds. During his deposition, Major Kaho stated

that he agreed with Lieutenant Addison, and he thought that the job was medium level.

However, he admitted that the job required physical force. According to Smith, correctional

3
According to Major Kaho, Smith would have been assigned to the outer gate of the
facility “until he was able to work inside.”

10
officers were primarily required to patrol the facility, oversee inmates, and protect

themselves and others. According to Smith, 80% of the job involved walking or standing,

and 20% involved sitting. Smith stated, “[Y]ou’ve got to sneak a sit. . . . [I]n a correction

facility, you don’t have a break.” According to Smith, he was not capable of returning to

his employment because he could not defend himself against a 200 or 300 pound inmate, but

he said he would return if his restrictions were accommodated.

¶24. In 2018, Smith began working with Kathy Smith, a vocational rehabilitation counsel,

in an attempt to find another job. According to Kathy, Smith reported that he had applied

for approximately 200 jobs including his former job. Kathy stated that Smith was a

cooperative client and did everything she asked him to do. According to Smith, the

positions that he applied for were filled, the positions did not exist, or his restrictions could

not be accommodated.

IV. The Administrative Judge’s Ruling

¶25. After a hearing, the AJ entered his order on November 7, 2018. The AJ found that

Smith had sustained a 100% loss of industrial use of his right lower extremity. Accordingly,

the AJ ordered the Employer/Carrier to pay Smith permanent partial disability benefits in the

amount of $279.06 per week beginning August 1, 2017, and continuing for 175 weeks. The

AJ also ordered the Employer/Carrier to pay for “medical services and supplies as are

reasonable and necessary as required by the nature of [Smith’s] injury and the process of

recovery therefrom. . . .” However, the AJ found that Smith did not prove his mental-injury

11
claim. Subsequently, the Employer/Carrier filed a petition for review with the Commission,

and Smith filed a cross-petition.

V. The Commission’s Ruling

¶26. The Commission entered its order on June 24, 2019. The Commission affirmed the

AJ’s ruling that Smith had sustained a 100% loss of industrial use of his right lower

extremity. However, the Commission reversed the AJ’s ruling as to Smith’s mental-injury

claim. The Commission found that Smith had established a compensable mental injury,

though the injury did not result in any temporary or permanent disability.

¶27. Ultimately, the Commission ordered the Employer/Carrier to pay permanent partial

disability benefits to Smith. The Commission also ordered the Employer/Carrier to pay for

and provide any medical treatment that is reasonable, necessary, and related to Smith’s

compensable mental injury. Finally, the Commission affirmed the AJ’s special order

compelling the Employer/Carrier to provide evaluations to determine whether the placement

of a spinal cord stimulator was reasonable, necessary, and related to Smith’s work injury.

STANDARD OF REVIEW

¶28. In workers’ compensation cases, “[i]f the Commission’s order is supported by

substantial evidence, this Court is bound by the Commission’s determination, even if the

evidence would convince us otherwise if we were the fact-finder.” Prairie Farms Dairy v.

Graham, 270 So. 3d 37, 41 (¶10) (Miss. Ct. App. 2018) (quoting Forrest Gen. Hosp. v.

Humphrey, 136 So. 3d 468, 471 (¶14) (Miss. Ct. App. 2014)). “Because the Commission

12
serves as the ultimate fact-finder and judge of the credibility of witnesses, we may not

reweigh the evidence that was before the Commission.” Id. (quoting Pruitt v. Howard

Indus. Inc., 232 So. 3d 822, 825 (¶7) (Miss. Ct. App. 2017)).

DISCUSSION

I. Whether substantial evidence supports the Commission’s finding
that Smith sustained a 100% loss of industrial use to his right
lower extremity.

¶29. The Employer/Carrier claims that the Commission’s finding that Smith sustained a

100% loss of industrial use to his right lower extremity was not supported by substantial

evidence.

¶30. In workers’ compensation cases, “the law compensates for two types of loss of use:

(1) ‘functional’ or ‘medical’ and (2) ‘industrial’ or ‘occupational.’” Mueller Industries Inc.

v. Waits, 283 So. 3d 1137, 1142 (¶16) (Miss. Ct. App. 2019) (quoting City of Laurel v. Guy,

58 So. 3d 1223, 1226 (¶13) (Miss. Ct. App. 2011)). Our supreme court has stated that

“industrial or occupational loss is the functional or medical disability as it affects the

claimant’s ability to perform the duties of employment.” Id. (quoting Meridian Pro.

Baseball Club v. Jensen, 828 So. 2d 740, 745 (¶11) (Miss. 2002)). “In cases like the one

before us, where a claimant’s industrial/occupational loss is greater than the

medical/functional loss, ‘the claimant’s industrial or occupational disability or loss of wage-

earning capacity controls his degree of disability.’” Id. (quoting Smith v. Jackson Constr.

Co., 607 So. 2d 1119, 1126 (Miss. 1992)).

13
¶31. This Court has held that “where a permanent partial disability renders a worker

unable to continue in the position held at the time of injury, . . . such inability creates a

rebuttable presumption of total occupational loss of the member, subject to other proof of

the claimant’s ability to earn the same wages which the claimant was receiving at the time

of injury.” Id. at (¶17) (quoting City of Laurel v. Guy, 58 So. 3d 1223, 1226 (¶15) (Miss.

Ct. App. 2011)). “A presumption of total occupational loss arises ‘when the claimant

establishes that he has made a reasonable effort but has been unable to find work in his usual

employment, or makes other proof of his inability to perform the substantial acts of his usual

employment.” Id. at 1142-43 (¶17) (quoting Guy, 58 So. 3d at 1126-27 (¶15)). “An

employer can then rebut this presumption by showing ‘all the evidence concerning wage-

earning capacity . . . .” Id. at 1143 (¶17).

¶32. According to the FCE, the following limitations were potential barriers for Smith’s

returning to work: walking, forward bending, kneeling, and crouching. According to the

examiner, Smith should rarely forward bend and kneel and occasionally stand and walk.

Additionally, Dr. Winkelmann imposed a restriction of lifting no more than thirty pounds

frequently. However, according to Lieutenant Addison, correctional officers were required

to walk frequently. Moreover, they were required to sit, stand, bend at the waist, and lift up

to thirty-five pounds occasionally. Additionally, Major Kaho admitted that the job required

physical force. According to Smith, 80% of the job involved walking or standing, and 20%

involved sitting. Smith stated he was not capable of returning to his employment because

14
he could not defend himself against a 200 or 300 pound inmate.

¶33. Furthermore, Smith established that he attempted to return to work but was refused

reinstatement or rehire. See Chestnut v. Dairy Fresh Corp., 966 So. 2d 868, 871 (¶5) (Miss.

Ct. App. 2007) (“When the claimant has not returned to work after reaching maximum

medical recovery, the claimant must establish” either that “he reported back to his employer

and the employer refused to reinstate or rehire him” or “he has sought and been unable to

obtain work in similar or other jobs.”). Although Lieutenant Addison indicated that Smith

was offered a light-duty position, Major Kaho did not know when the position was offered.

According to Smith, the temporary position was offered while he was on “total work

restrictions.” Further, Smith claimed he attempted to return to work on at least two

occasions but was unsuccessful.

¶34. Finally, Smith established that he was unable to find employment in similar or other

positions. See id. The Employer/Carrier argues that Smith failed to make a reasonable

attempt to return to the work force. However, the record indicates that Smith conducted an

extensive job search and applied for numerous jobs with the help of a vocational expert.

The Employer/Carrier asserts that Smith’s testimony was “less than credible” and that he

emphasized his restrictions to potential employers, made false allegations about job

openings, and never applied for available jobs. However, as discussed, this Court does not

make credibility determinations; that is the Commission’s responsibility.

¶35. In this case, the presumption of total loss was not rebutted by the Employer/Carrier.

15
Therefore, we find that the Commission’s finding that Smith sustained a 100% loss of

industrial use of his right lower extremity is supported by substantial evidence.

II. Whether substantial evidence supports the Commission’s finding
that Smith sustained a compensable mental injury.

¶36. The Employer/Carrier claims that the Commission’s finding that Smith had a

compensable mental injury was not supported by substantial evidence.

¶37. “[W]hen a claimant seeks compensation benefits for disability resulting from a mental

or psychological injury, the claimant has the burden of proving by clear and convincing

evidence the connection between the employment and the injury.” Fought v. Stuart C. Irby

Co., 523 So. 2d 314, 317 (Miss. 1988).

¶38. In October 2017, Smith began therapy sessions at Life Help. Smith reported that he

had sustained a work-related injury and that he had experienced sleep issues, depression,

anxiety, and thoughts about hurting himself and others. Throughout his therapy sessions,

he explained he had constant pain, and he was angry that his life would never be the same.

He often brought his girlfriend to therapy and reported issues with her, family conflicts, and

other interpersonal problems. Smith indicated that he had anxiety a couple times per week

for several years prior to the incident.

¶39. Smith suggests that the therapy sessions themselves establish the causal connection

that is required to prove his claim. We disagree. Smith did not submit any medical opinions

confirming that his employment caused his mental injury. As the AJ noted, Smith’s therapist

never related any of his mental injuries to his employment, nor did she give Smith any work

16
restrictions. Smith admitted that he had anxiety prior to the incident at work. However,

many of Smith’s issues were related to other life stressors, such as issues with his girlfriend

and family. Therefore, we reverse the Commission’s finding that Smith sustained a

compensable mental injury.

III. Whether the Commission erred by affirming the AJ’s separate
order compelling it to pay for and provide evaluations to
determine whether the placement of a spinal cord stimulator is
reasonable, necessary, and related to Smith’s injury.

¶40. On November 7, 2018, the AJ entered a separate order compelling authorization of

medical treatment. The AJ found that “evaluations with Dr. Laseter and Dr. Koestler are

reasonable, necessary and related to the claimant’s work injury, and employer/carrier shall

pay for and provide claimant with evaluations with Dr. Laseter and Dr. Koestler to

determine whether the placement of a spinal cord stimulator is reasonable, necessary and

related to [Smith’s] work injury.” The Employer/Carrier claims the Commission erred by

affirming the AJ’s order.

¶41. “The Commission sits as the finder of fact[,] and its findings are entitled to

substantial deference. As a reviewing court, we may only interfere with the Commission’s

findings if they are arbitrary and capricious.” Richardson v. Johnson Elec. Auto. Inc., 962

So. 2d 146, 150 (¶10) (Miss. Ct. App. 2007) (citation omitted). “Where there is conflicting

medical testimony, the Commission has the responsibility to apply its expertise and

determine which evidence is more credible. We will uphold that determination unless it is

clearly erroneous.” Washington v. Woodland Vill. Nursing Home, 25 So. 3d 341, 355 (¶33)

17
(Miss. Ct. App. 2009).

¶42. We find substantial evidence to support an evaluation for a spinal stimulator. The

basis for a specialty referral for a spinal stimulator evaluation was explained in detail by Dr.

Winkelmann in his deposition testimony in February 2018 and recommended again in his

subsequent treatment notes of September 13, 2018. Importantly, the spinal stimulator would

not be used to treat the pain from Smith’s thoracic-spine disk bulge even though the device

is actually placed on the spine. Dr. Winkelmann testified that the device would be used to

alleviate Smith’s CRPS symptoms, which were confined to his lower extremity (specifically,

his knee). Dr. Winkelmann explained that CRPS is “a condition where you have an injury

that occurs, but your body actually starts responding to it.” An area of the body becomes

sensitized and has increased symptoms “of an otherwise not even particularly prominent

injury.”

¶43. Although Smith declined pursuing the placement of a spinal stimulator in August

2017, by the time he saw Dr. Winkelmann in September 13, 2018, Smith’s lower extremity

pain had persisted. Dr. Winkelmann’s medical notes stated that Smith’s persistent lower

extremity pain was due to what “appeared to be” CRPS, which had developed since the time

of the work injury in March 2016. Dr. Winkelmann again found that Smith “may be a

candidate for a stimulator placement” and referred him to Drs. Laseter and Koester for a

stimulator evaluation. Importantly, this recommendation was made after Dr. Winkelmann’s

deposition in February 2018, where his frequently cited testimony read that he was “not

18
“making any further recommendations to pursue . . . stimulator placement” because before

that time, Smith’s CRPS had been subsiding.

¶44. Admittedly, there were conflicting medical opinions concerning the helpfulness of

a spinal stimulator to alleviate Smith’s lower extremity pain. Dr. Winkelmann was the only

physician to recommend the possible placement of the stimulator to alleviate Smith’s CRPS

pain. Dr. Blount, Dr. Collipp, and Dr. Katz stated that Smith did not meet the criteria for

CRPS. Further, Dr. Blount and Dr. Katz stated that they did not recommend the placement

of a spinal cord stimulator. However, it is well established that the Commission is charged

with making case-by-case credibility determinations of the witnesses before it. Richardson,

962 So. 2d at 150 (¶10). Therefore, the Commission had to resolve these conflicting

medical opinions.

¶45. Even though Dr. Winkelmann was the only physician who recommended the

stimulator, and only to treat Smith’s CRPS and not his back pain, this fact does not make

offering the evaluation improper, as the separate opinion contends. Only one physician’s

opinion was needed to recommend an evaluation for a spinal stimulator if the Commission

found his opinion credible. Just because three physicians were unsure if Smith had CRPS4

and two of the three physicians disagreed with him about the stimulator does not make it

improper to grant an evaluation under Dr. Winkelmann’s recommendation. Finally, the

4
Smith points out that all of his treating physicians adopted the diagnosis of
RSD/CRPS.

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physician evaluators will determine if Smith currently has CRPS, if the lower extremity pain

relates to the work injury, and if the device will help alleviate Smith’s pain. If the evaluation

finds the stimulator may help, Smith will then be able to accept or reject the procedure.

¶46. Moreover, the grant of an evaluation for a spinal stimulator does not, as the separate

opinion states, shift the burden of proof from Smith to the Employer/Carrier. Smith met his

burden of proving his knee injury arose out of the course of employment and was causally

connected to his employment. The pain possibly caused by CRPS is a secondary diagnosis.

Because this syndrome is admittedly difficult to diagnose, is intermittent, and may not be a

symptom of the knee injury, the AJ and Commission properly concluded that an evaluation

to confirm these matters is necessary.

¶47. The evaluation itself for the efficacy of a spinal cord stimulator to alleviate Smith’s

long history of intermittent lower extremity pain will determine many of the unknown

factors raised by the Employer/Carrier, such as if Smith has CRPS, if it is related to his lower

extremity work injury, and if the placement of the stimulator will help his pain.

Accordingly, the Commission’s order should be affirmed on this issue and

authorization/payment of the evaluations granted.

IV. Whether the Commission erred by failing to consider the
Employer/Carrier’s request for apportionment or set-off credit.

¶48. The Employer/Carrier claims that the AJ and Commission erred by failing to address

whether it was entitled to apportionment or set-off credit for payments related to Smith’s

“unrelated, pre-existing” back pain.

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¶49. The AJ acknowledged that among the issues to be decided were “. . . whether the

employer and carrier are entitled to apportionment . . . [and] whether the employer and

carrier are entitled to a credit or setoff with regard to payments made to Dr. Beacham.”

However, it does not appear that either the AJ or the Commission decided these issues.

¶50. With respect to apportionment benefits, Mississippi Code Annotated section 71-3-

7(2) (Supp. 2012), provides in relevant part:

Where a preexisting physical handicap, disease, or lesion is shown by medical
findings to be a material contributing factor in the results following injury, the
compensation which, but for this subsection, would be payable shall be
reduced by that proportion which such preexisting physical handicap, disease,
or lesion contributed to the production of the results following the injury. The
preexisting condition does not have to be occupationally disabling for this
apportionment to apply.

However, “[a]pportionment may only be considered after the claimant has met its burden of

establishing a causal connection between an injury and a resulting disability.” Redman

Homes Inc. v. Dependents of Bennington, 749 So. 2d 1201, 1205 (¶14) (Miss. Ct. App.

1999) (citing Vardaman, S. Dunn, Mississippi Workmen’s Compensation § 55 (reprint

1990) (3d ed. 1982)).

¶51. Because the AJ and Commission failed to address this issue of apportionment or set

off credit, we remand for further proceedings.

CONCLUSION

¶52. After review, we find that substantial evidence supported the Commission’s finding

that Smith sustained a 100% loss of industrial use of his right lower extremity, and that the

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Commission did not err in affirming the separate order of the AJ compelling the

Employer/Carrier to provide evaluations to determine whether the placement of a spinal cord

stimulator was reasonable, necessary, and related to Smith’s injury. Therefore, we affirm

in part. We find that substantial evidence did not support the Commission’s finding that

Smith sustained a compensable mental injury. Therefore, we reverse and render in part.

Finally, because neither the AJ nor the Commission ruled on the issue of apportionment or

set-off, we remand for further proceedings consistent with this opinion.

¶53. AFFIRMED IN PART; REVERSED AND RENDERED IN PART;
REMANDED IN PART.

WESTBROOKS, McDONALD AND LAWRENCE, JJ., CONCUR. WILSON,
P.J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE
WRITTEN OPINION. GREENLEE, J., CONCURS IN PART AND DISSENTS IN
PART WITH SEPARATE WRITTEN OPINION, JOINED BY CARLTON, P.J.,
AND McCARTY, J.

GREENLEE, J., CONCURRING IN PART AND DISSENTING IN PART:

¶54. I respectfully dissent from the majority’s decision to affirm the Commission’s order

compelling the Employer/Carrier to provide evaluations to determine whether the placement

of a spinal cord stimulator was reasonable, necessary, and related to Smith’s work injury.

However, I concur with the majority on the remaining issues.

¶55. On November 7, 2018, the AJ entered an order compelling authorization of medical

treatment. The AJ found that “evaluations with Dr. Laseter and Dr. Koestler are reasonable,

necessary and related to the claimant’s work injury, and employer/carrier shall pay for and

provide claimant with evaluations with Dr. Laseter and Dr. Koestler to determine whether

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the placement of a spinal cord stimulator is reasonable, necessary and related to [Smith’s]

work injury.”

¶56. Our standard of review is well established. “If the Commission’s order is supported

by substantial evidence, this Court is bound by the Commission’s determination, even if the

evidence would convince us otherwise if we were the fact-finder.” Prairie Farms Dairy v.

Graham, 270 So. 3d 37, 41 (¶10) (Miss. Ct. App. 2018) (quoting Forrest Gen. Hosp. v.

Humphrey, 136 So. 3d 468, 471 (¶14) (Miss. Ct. App. 2014)). “Because the Commission

serves as the ultimate fact-finder and judge of the credibility of witnesses, we may not

reweigh the evidence that was before the Commission.” Id. (quoting Pruitt v. Howard Indus.

Inc., 232 So. 3d 822, 825 (¶7) (Miss. Ct. App. 2017)).

¶57. As a general proposition, the claimant has the burden of proof. He must meet this

burden by showing an accidental injury arising out of and in the course of his employment

and a causal connection between the injury and the claimed disability.” Toldson v. Anderson-

Tully Co., 724 So. 2d 399, 402 (¶12) (Miss. Ct. App. 1998) (quoting Narkeeta Inc. v. McCoy,

247 Miss. 65, 69, 153 So. 2d 798, 800 (1963)). Ordering the Employer/Carrier to pay for an

evaluation to determine whether the placement of a spinal cord stimulator is related to

Smith’s work injury shifts the burden of proof from Smith to the Employer/Carrier.

¶58. Furthermore, Dr. Winkelmann explained that he initially recommended the placement

of a spinal cord stimulator to alleviate Smith’s pain associated with CRPS. However, Dr.

Blount, Dr. Collipp, and Dr. Katz stated that Smith did not meet the criteria for CRPS. Dr.

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Blount and Dr. Katz further stated that they did not recommend the placement of a spinal

cord stimulator. Even if Smith had CRPS, Dr. Winkelmann admitted that it is not clear why

a person gets CRPS. And he could not say with certainty that only the injury to Smith’s

lower extremity caused the response. Therefore, substantial evidence did not support the

finding that evaluations for the placement of a spinal cord stimulator were reasonable,

necessary, or related to Smith’s work injury.

¶59. Because I believe that the Commission erred by affirming the AJ’s separate order

compelling it to pay for and provide evaluations to determine whether the placement of a

spinal cord stimulator is reasonable, necessary, and related to Smith’s injury, I would reverse

on this issue.

CARLTON, P.J., AND McCARTY, J., JOIN THIS OPINION.

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