J.W. Duren v. Effex Management Solutions, LLC and Great American Alliance Insurance Company

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2021-WC-00337-COA

J.W. DUREN APPELLANT

v.

EFFEX MANAGEMENT SOLUTIONS, LLC AND APPELLEES
GREAT AMERICAN ALLIANCE INSURANCE
COMPANY

DATE OF JUDGMENT: 03/04/2021
TRIBUNAL FROM WHICH MISSISSIPPI WORKERS’ COMPENSATION
APPEALED: COMMISSION
ATTORNEY FOR APPELLANT: J.W. DUREN (PRO SE)
ATTORNEY FOR APPELLEES: GINGER MOORE ROBEY
NATURE OF THE CASE: CIVIL - WORKERS’ COMPENSATION
DISPOSITION: AFFIRMED - 06/07/2022
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

BEFORE CARLTON, P.J., LAWRENCE AND McCARTY, JJ.

CARLTON, P.J., FOR THE COURT:

¶1. J.W. Duren sustained a back injury while working for Effex Management Solutions

LLC (Effex). Duren sought workers’ compensation benefits from Effex and its insurance

carrier, Great American Alliance Insurance Company (collectively, “the Employer/Carrier”).

After a hearing on the matter, the administrative judge (AJ) entered an order denying Duren’s

claim for permanent partial disability benefits and additional temporary total disability

benefits. The AJ found that Duren failed to meet his burden of showing that he sustained a

permanent disability or a loss of wage-earning capacity. The AJ also denied Duren’s request

for the Employer/Carrier to pay for additional medical expenses incurred by Duren after he
reached maximum medical improvement (MMI). Duren filed a petition for review, and the

Mississippi Workers’ Compensation Commission (Commission) affirmed and adopted the

AJ’s decision.

¶2. Duren now appeals and asserts, among other things, that the Commission’s decision

is not supported by substantial credible evidence. After our review, we find that the

Commission’s decision is supported by substantial credible evidence, and we therefore

affirm.

FACTS

¶3. Duren worked as a general laborer for Effex, a temporary staffing agency. Effex

placed Duren at Luvata, a manufacturing company. On July 14, 2016, while building an air-

conditioning coil at Luvata, Duren stepped down from a table, fell down, and injured his

back.

¶4. Four days after his injury, Duren went to the Dr. Arenia C. Mallory Community

Health Center Inc. (Mallory Health Center) in Lexington, Mississippi, reporting back and leg

pain. Duren was seen by Dana Roberts, a nurse practitioner. Roberts eventually referred

Duren to Dr. Graham Calvert, an orthopaedic surgeon in Jackson, Mississippi.

¶5. Dr. Calvert first started treating Duren in September 2016. Dr. Calvert ordered an

MRI of Duren’s lumbar spine, which indicated a disc herniation at L3-L4 and L4-L5. Dr.

Calvert recommended that Duren receive steroid injections, and he placed Duren on a light

sedentary work restriction, noting that if Duren’s employer could not accommodate him, then

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he should be off work until further notice.

¶6. Duren returned to Dr. Calvert in October 2016. Dr. Calvert’s notes from that

appointment reflect that Duren reported feeling significant relief after receiving the steroid

injections and that his leg pain had significantly improved. Duren reported that he still

suffered a little bit of back pain. Dr. Calvert kept Duren limited to modified work duties.

¶7. In December 2016, Duren followed up with Dr. Calvert. At his appointment, Duren

reported that the effect of his steroid injections had worn off and that he suffered continuous

pain down his left leg. Dr. Calvert compared Duren’s updated MRI results to the September

2016 MRI results and observed that the L4-L5 herniation was resolving and “appears

improved.” However, Dr. Calvert noted that the L3-L4 disc herniation had not significantly

changed since September and was now at a “symptomatic” level.

¶8. Based on Duren’s updated MRI results, Dr. Calvert performed an L3-L4

microdiscectomy on Duren in December 2016. At a follow-up appointment on March 10,

2017, Dr. Calvert reported that Duren’s pain caused by the L3-L4 disc herniation “has

completely gone.” Dr. Calvert placed Duren at MMI with a whole-body impairment rating

of three percent, and he released him to return to work with no restrictions.

¶9. Duren returned to work on March 14, 2017. After working for a few hours that day,

Duren informed his supervisor that he was in pain. Duren’s supervisor advised him to go see

his doctor. Duren attempted to make an appointment with Dr. Calvert, but he was

unsuccessful. Duren instead went to Mallory Health Center, complaining of numbness and

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tingling in his left leg. Roberts prescribed Duren anti-convulsant and anti-inflammatory

medications to help with his pain.

¶10. Duren returned to work the next day, but after working several hours, he advised his

supervisor that he was again suffering pain. Duren reportedly did not show up for work on

March 16, 2017, and on March 17, 2017, Effex contacted Duren by telephone and terminated

his employment.

¶11. The record shows that the Employer/Carrier paid Duren temporary total disability

benefits at the rate of $332.37 per week from July 14, 2016, the date of his injury, through

March 10, 2017, the date that Dr. Calvert placed Duren at MMI and released him to return

to work without restrictions.

¶12. On April 5, 2017, Duren filed a petition to controvert alleging that he suffered a work-

related injury to his back, his left-lower extremity, and his body as a whole while working

for Effex. On April 14, 2017, the Employer/Carrier admitted that Duren suffered a

compensable injury to his back. The parties stipulated that Duren had an average weekly

wage of $498.47 at the time of the injury.

¶13. After filing his petition to controvert, Duren returned to the Mallory Health Center

complaining of low-back pain and left-lower extremity numbness and tingling. Roberts

prescribed Duren pain medication and referred him to a pain management specialist. Roberts

also recommended that Duren receive an MRI of his cervical, thoracic, and lumbar spine.

¶14. Duren filed a motion to compel medical treatment, requesting that the AJ compel the

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Employer/Carrier to approve and pay for his pain management treatment and medications

prescribed by Roberts. Duren claimed that Roberts referred Duren to pain management for

his continued back pain and numbness and tingling in his leg but that the Employer/Carrier

denied authorization for the pain management referral. The record reflects an e-mail from

the Employer/Carrier’s counsel denying authorization of the referral for pain management.

In the e-mail, counsel explained that Dr. Calvert is Duren’s treating physician, and the pain

management referral was from a nurse practitioner at Mallory Health Clinic and not from Dr.

Calvert. Counsel stated that as far as she knew, “Dr. Calvert has not indicated that pain

management is medically necessary.”

¶15. In July 2017, the AJ determined that an independent evaluation would be helpful, and

he ordered Dr. Philip Blount, a physical medicine and rehabilitation physician, to perform

an independent medical examination (IME) of Duren. Dr. Blount evaluated Duren and

issued his IME report. Dr. Blount agreed that Duren’s disc herniations at L3-L4 and L4-L5

were related to his fall at work in July 2016. Dr. Blount disagreed with Dr. Calvert’s three-

percent whole-body impairment rating, explaining that he would instead assign an eight-

percent whole-body impairment rating because the three-percent impairment rating only took

into account Duren’s L3-L4 disc herniation and not his L4-L5 disc herniation. Dr. Blount

agreed that Duren reached MMI on March 10, 2017.

¶16. On November 11, 2017, the AJ entered an order denying Duren’s motion to compel

medical treatment. The AJ explained that Duren’s “request for pain management is hereby

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denied as the provider who referred claimant to pain management is outside the scope of

medical providers in this claim, and pain management is also not reasonable and necessary

as opined by Dr. Philip Blount in his Independent Medical Examination report[.]” The AJ

also ordered Duren to undergo a comprehensive evaluation of his condition by Dr. Angela

Koestler, a psychologist.

¶17. In April 2018, Duren’s counsel requested that Dr. Blount clarify the opinions from his

IME report. In response, Dr. Blount issued an additional report clarifying his findings. Dr.

Blount opined that Roberts’s recommendation that Duren receive a post-surgery MRI to

diagnose the cause of his continued pain, as well as the prescribed pain medications, were

all reasonable and medically necessary to treat Duren’s work injury. Regarding Roberts’s

pain management referral, Dr. Blount stated that chronic pain from a work injury should be

managed by a medical professional trained in pain management, and he agreed with

transferring Duren from Roberts to a “higher level of care.”

¶18. In May 2018, Duren filed another motion to compel medical treatment, temporary

total disability benefits, and payment of medical bills. In this motion, Duren referenced Dr.

Blount’s report clarifying his opinions and opining that a post-surgery MRI and the pain

medications were reasonable and necessary to treat Duren’s work injury. Duren accordingly

requested that the AJ order the Employer/Carrier to pay for Duren’s medical bills from

Mallory Health Center, asserting that this continued treatment was related to his work injury.

Duren also requested that the AJ order the Employer/Carrier to (1) approve and pay for the

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past and future expenses of his pain medicine, as well as an evaluation and treatment pain

management, and (2) render temporary total disability benefits until Duren has been placed

at MMI by his pain management physician.

¶19. At the request of the Employer/Carrier, Dr. John Davis, a neurosurgeon, performed

an “Employer’s Medical Evaluation” on Duren. Dr. Davis performed his evaluation and

issued his report opining that as far as Duren’s disc herniation at L3-L4, he “indeed was and

remains at maximum medical improvement as of March 10, 2017.” Dr. Davis also testified

that he agreed with Dr. Calvert’s treatment protocol. Dr. Davis recommended a post-surgery

MRI of Duren’s lumbar spine to determine if there was any remaining L5 nerve root

compression.

¶20. On October 25, 2018, Duren underwent a lumbar MRI scan. Dr. Calvert and Dr.

Davis reviewed the updated MRI and issued a report detailing their findings. Neither doctor

found anything on the scan to explain Duren’s complaints of pain. Dr. Calvert recommended

“continued pain management, and/or physical medicine and rehab recommendations.” Dr.

Davis also performed a myelogram and post-myelogram CT scan on Duren to determine if

Duren suffered any L-5 nerve root compression, and after reviewing the scans, he found “no

evidence . . . of any nerve root compression at any level.”

¶21. In January 2019, Duren filed a third motion to compel medical treatment, total

temporary disability benefits, and payment of medical bills. After a hearing, the AJ entered

an order denying the motion on March 20, 2019. The AJ found that “[b]ased on the

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overwhelming evidence from the medical specialists, [Duren] reached MMI on March 10,

2017,” and therefore Duren was not entitled to receive temporary total disability benefits

after that date. The AJ also found that the treatment and prescriptions from the nurse

practitioner at Mallory Health Center did not appear to be reasonable and necessary, and

therefore the Employer/Carrier was not responsible for payment of these treatments and

medications.

¶22. Duren filed a motion for reconsideration of the AJ’s March 20, 2019 order. After a

hearing, the AJ entered an order denying Duren’s motion for reconsideration.

¶23. On February 20, 2020, Duren went to Dr. Neil Sloan, an internal medicine specialist,

for an IME. Dr. Sloan prepared an IME report detailing his findings. In his report, Dr. Sloan

opined that Duren had reached MMI as of February 20, 2020, the day of his exam. Dr. Sloan

assigned Duren a fourteen-percent whole-person impairment rating. On March 2, 2020, Dr.

Sloan issued an addendum stating that Duren would be precluded from returning to work that

includes lifting twenty pounds, twisting, and bending or kneeling positions.

¶24. On June 16, 2020, the AJ held an evidentiary hearing on the merits of Duren’s

compensation claim. The issues in dispute included the nature and extent of temporary

disability attributable to the work injury; the extent of any resulting loss of wage-earning

capacity, and Duren’s entitlement to any permanent disability benefits; and Duren’s

entitlement to ongoing medical treatment pursuant to the Mississippi Workers’ Compensation

Act and what treatment, if any, is reasonable and necessary treatment.

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¶25. At the hearing, the AJ heard testimony from Duren and his wife, LaWanda Duren.

The parties submitted Duren’s medical records and IME reports into evidence, as well as the

depositions of Dr. Blount, Dr. Calvert, and Dr. Davis. The AJ also considered the IME

report issued by Dr. Koestler, the psychologist, in which Dr. Koestler opined that from a

psychological standpoint, Duren had no impairment or restrictions from his July 2016 work

injury and recommended that returning to “some type of employment” would be beneficial

for Duren.

¶26. On September 2, 2020, the AJ entered a final order denying Duren’s claim for

permanent partial disability and payment of additional temporary total disability benefits and

medical expenses. Addressing the issue of permanent partial disability benefits and loss of

wage-earning capacity, the AJ recognized that Duren must first show that he suffered a

permanent disability, and this disability must be supported by credible medical testimony.

The AJ acknowledged that Dr. Calvert returned Duren to work without any restrictions, and

that neither Dr. Blount nor Dr. Davis disagreed with Dr. Calvert’s assessment that Duren

could return to full-duty work. The AJ also found it “telling” that when Dr. Calvert released

Duren to return to work, Duren expressed that he did not want to return to work and

“catastrophicized” his pain. The AJ noted Dr. Calvert’s testimony that he felt that Duren was

malingering. The AJ also acknowledged that Dr. Blount felt that Duren could return to his

prior activity level without any increased risk and that Dr. Davis found no evidence of any

structural abnormality that was consistent with Duren’s subjective complaints of pain. The

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AJ accordingly found that Duren failed to meet his burden of proving that his work injury

resulted in a permanent disability causing him to suffer a loss of wage-earning capacity, and

he therefore denied Duren’s claim for permanent partial disability benefits.

¶27. The AJ also determined that Duren was only entitled to temporary total disability

benefits from July 15, 2016, until March 10, 2017, the date Duren was “clearly” placed at

MMI. The AJ specified that these benefits would be made at the compensation rate of

$332.33 per week. The AJ ordered that the Employer/Carrier would receive credit for any

disability payments previously made.

¶28. As to Duren’s claim seeking payment for continued medical treatment, the AJ ruled

that Duren was entitled to continued reasonable and necessary treatment related to the work

injury. However, the AJ reiterated his prior finding that the treatment, medications, and pain

management referrals provided by Mallory Health Center after March 14, 2017, were not

reasonable and necessary and therefore were not the responsibility of the Employer/Carrier.

¶29. Duren appealed from the order of the AJ to the Commission, and on March 4, 2021,

the Commission affirmed and adopted the AJ’s September 2, 2020 order. Duren now

appeals.

STANDARD OF REVIEW

¶30. In workers’ compensation cases, the Commission is the ultimate finder of fact.

Walmart Assocs. Inc. v. Cauley, 321 So. 3d 1216, 1227 (¶61) (Miss. Ct. App. 2021). “Our

scope of review in workers’ compensation cases is limited to a determination of whether the

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decision of the Commission is supported by substantial evidence.” Id. at (¶62). “We will

only reverse the decision of the Commission if it is clearly erroneous and contrary to the

overwhelming weight of the evidence.” Id.

¶31. In the case before us, “the Commission’s order affirmed the AJ’s order without

additional analysis.” Mabus v. Mueller Indus. Inc., 205 So. 3d 677, 682 (¶21) (Miss. Ct.

App. 2016). In such cases, “this Court will examine the findings of fact made by the AJ.”

Id. We “then look[] to the AJ’s order for determination of the underlying issues.” Id.; see

also Cauley, 321 So. 3d at 1227 (¶61) (“When the Commission accepts the findings and

conclusions of the administrative judge, this Court reviews those findings and conclusions

as those of the Commission.”). We review the Commission’s application of the law de novo.

Gregg v. Natchez Trace Elec. Power Ass’n, 64 So. 3d 473, 475 (¶9) (Miss. 2011).

DISCUSSION

I. Permanent Partial Disability and Loss of Wage-Earning Capacity

¶32. On appeal, Duren argues that the Commission erred in finding that he sustained no

permanent partial disability or loss of wage-earning capacity. Duren maintains that he

submitted sufficient evidence to show that he suffered a permanent disability, and he claims

that the AJ did not give proper weight to Duren’s medical evidence. Duren asserts that in

making his determination, the AJ improperly gave more weight to the medical evidence and

opinions of Dr. Calvert and Dr. Davis. Duren also argues that because his employment at

Effex was terminated due to his work-related injury, and he has been unable to earn the

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wages that he was receiving at the time of his injury in the same or other employment, the

Commission erred in finding that he suffered no loss of wage-earning capacity.

¶33. The Mississippi Workers’ Compensation Act provides compensation to an employee

“for disability . . . from injury . . . arising out of and in the course of employment, without

regard to fault as to the cause of the injury[.]” Miss. Code Ann. § 71-3-7(1) (Rev. 2021).

Mississippi Code Annotated section 71-3-3(i) (Rev. 2021) defines “disability” as “incapacity

because of injury to earn the wages which the employee was receiving at the time of injury

in the same or other employment, which incapacity and the extent thereof must be supported

by medical findings.” (Emphasis added). The Mississippi Supreme Court has clarified that

“[d]isability comprises (1) an actual physical injury; and (2) loss of wage-earning capacity.”

Gregg, 64 So. 3d at 475 (¶9) (internal quotation mark omitted). “In order to meet the

definition of disability, the claimant must not be able to obtain work in similar or other jobs,

and the claimant’s unemployability must be due to the injury in question.” Smith v. Johnston

Tombigbee Furniture Mfg. Co., 43 So. 3d 1159, 1165 (¶19) (Miss. Ct. App. 2010). The

claimant bears the burden of proving both an actual physical injury and loss of wage-earning

capacity. Weathersby v. Miss. Baptist Health Sys. Inc., 195 So. 3d 877, 883 (¶24) (Miss. Ct.

App. 2016) (citing Gregg, 64 So. 3d at 476 (¶11)).

¶34. Relevant to our discussion, the supreme court has stated that “[o]ne first must find that

the claimant has a disability as defined by statute before analyzing the loss of wage-earning

capacity.” Lott v. Hudspeth Ctr., 26 So. 3d 1044, 1049 n.1 (Miss. 2010). While both parties

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agree that Duren suffered an injury, “that injury must rise to the level of a disability before

it is compensable.” Id. at (¶18). To determine the extent of Duren’s disability in the case

before us, “[t]his Court must look to the medical evidence.” Mabus, 205 So. 3d at 683 (¶25).

¶35. At the hearing on the merits of Duren’s claim, the AJ heard testimony from Duren and

his wife, LaWanda Duren. The following medical exhibits were admitted into evidence: the

depositions and medical reports from Dr. Calvert, Dr. Blunt, and Dr. Davis; the medical

records from Mallory Clinic; the IME reports from Dr. Sloan and Dr. Koestler; and the

return-to-work slips from Dr. Calvert and Mallory Health Center. The record shows that in

July 2016, Duren fell at work and injured his back. Four days after his fall, Duren presented

himself to Nurse Practitioner Roberts at Mallory Health Center, complaining of back pain.

Roberts referred Duren to Dr. Calvert. Duren’s first appointment with Dr. Calvert was on

September 6, 2016. At the appointment, Duren complained of low-back pain that radiated

down his left leg and lower thigh, along with what Dr. Calvert described as a “very

straightforward left L5 radiculopathy.” Dr. Calvert ordered an MRI of Duren’s lumbar spine.

¶36. On September 9, 2016, Duren returned to Dr. Calvert for the results of the MRI. Dr.

Calvert testified that the MRI results showed a L3-L4 disc herniation impinging upon the

nerve, as well as a disc herniation at L4-L5. Dr. Calvert recommended physical therapy and

steroid injections as treatment. Dr. Calvert also restricted Duren to light sedentary work with

a ten-pound lifting restriction. Dr. Calvert noted that if Duren’s employer could not

accommodate him, then Duren should be off work until further notice.

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¶37. Duren followed up with Dr. Calvert on October 25, 2016. According to Dr. Calvert’s

notes from this appointment, Duren reported that he felt “significant relief” after his steroid

injections. Dr. Calvert noted that Duren still suffered “a little bit of back pain” with L5

radiculopathy, but he reported that Duren’s “leg pain is significantly improved.” After

examining Duren, Dr. Calvert found that Duren had a normal gait and a normal motor,

sensory, and reflex neurologic exam. Dr. Calvert kept Duren at modified work duty with

instructions to follow up in six weeks.

¶38. Duren returned to Dr. Calvert for a follow-up appointment on December 1, 2016. At

this appointment, Duren complained that his pain had worsened and that the steroid injection

had worn off. Dr. Calvert testified that at the December 2016 visit, Duren “was very

symptomatic over the L3 dermatologic pattern.” Dr. Calvert explained that Duren’s “pain

pattern changed from that of an L5 radiculopathy to a very straightforward L3

radiculopathy.” Dr. Calvert ordered a repeat MRI of Duren’s lumbar spine.

¶39. According to Dr. Calvert, the December MRI results showed that Duren’s L3-L4 disc

herniation was bigger compared to the image from the September 2016 MRI. However,

Duren’s L4-L5 disc protrusion had improved. Dr. Calvert explained that Duren still had a

“slight protrusion” at L4-L5, but “it was not as . . . big as the previous protrusion” shown on

the September 2016 MRI. Dr. Calvert testified that after viewing the December 2016 MRI

images and performing an evaluation on Duren, he determined that Duren’s L4-L5 disc “was

not an issue anymore.” Dr. Calvert testified that because Duren’s L3-L4 disc herniation

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“looked worse” on the December 2016 MRI than it did on the September 2016 MRI, he

decided to perform a left L3-L4 microdiscectomy on Duren.

¶40. On December 12, 2016, Dr. Calvert performed a microdiscectomy on Duren. Duren

returned for a follow-up visit on December 27, 2016. Dr. Calvert testified that at that visit,

Duren “state[d] his radiating leg pain was gone,” but he complained of numbness and

weakness in his thigh. Dr. Calvert testified that complaints of numbness and tingling two

weeks after surgery is normal because the nerve needs time to recover.

¶41. Dr. Calvert saw Duren again on January 27, 2017, approximately six weeks after his

surgery. Dr. Calvert testified that at this appointment, Duren informed him that his leg still

hurt, but when Dr. Calvert questioned Duren about the pattern of the pain or where the pain

was located, Duren’s explanation “did not follow any specific dermatologic pattern.” Dr.

Calvert explained that Duren stated that his pain “was really over the whole leg. He was just

like, ‘My whole leg hurts.’” Dr. Calvert testified that in his opinion, “[i]t didn’t really make

sense from an anatomic standpoint or from an injury standpoint or from a nerve root

impingement standpoint what was causing the leg pain or if the leg pain was real, or if

[Duren] was just exhibiting some odd behavior because he wasn’t quite ready to go back to

work.” Dr. Calvert explained that “most people at six weeks from a microdiscectomy are

completely returning to all normal activities and have no leg pain.” At that point, Dr. Calvert

recommended that Duren receive physical therapy.

¶42. Dr. Calvert confirmed that Duren did attend physical therapy, and that when Duren

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returned to see Dr. Calvert on March 10, 2017, Duren reported that he was better. During

the March 10, 2017 appointment, Dr. Calvert also noted that Duren’s L3 nerve root

compression was completely resolved and that Duren was pain-free. Dr. Calvert prescribed

Duren a pain medication, as well as anti-inflammatory medications, for limited use if Duren

developed any muscle pain upon returning to work. Dr. Calvert concluded that Duren

reached MMI on March 10, 2017, and he assigned Duren a whole-body impairment rating

of three percent. Dr. Calvert testified that his three-percent impairment rating was

“generous.” Dr. Calvert released Duren to return to work with no restrictions, and he

instructed that no follow up was necessary unless Duren developed a new disc herniation.

¶43. Regarding pain management, Dr. Calvert testified that he did not feel that a pain

management referral was reasonable or medically necessary at that point because Duren was

not having a lot of pain, if any pain at all. As for Duren’s prior L4-L5 nerve compression,

Dr. Calvert testified that Duren never complained of pain over an L5 dermatologic pattern

after the September 9, 2016 appointment.

¶44. Dr. Calvert stated that he was surprised to hear that four days after he assigned Duren

at MMI, Duren sought treatment from Roberts at Mallory Health Center for back and leg

pain. According to Dr. Calvert, at the March 10, 2017 appointment, Duren’s leg pain was

gone.

¶45. Dr. Calvert testified that “from the get-go,” Duren “made it pretty clear” that he did

not want to go back to work at his former job. Dr. Calvert said he was concerned that Duren

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was “malingering” due to his “catastrophicized” pain complaints. Dr. Calvert testified that

Duren’s complaints and behavior were consistent with what he has seen from other patients

who “utilize [Workers] Comp and are malingering,” explaining that he has seen that type of

behavior “a lot.”

¶46. Duren’s medical records from Mallory Health Center show that on March 14, 2017,

the same day he returned to work without restrictions, he went back to the health clinic,

complaining of back and leg pain and left-leg numbness and tingling. The records show that

Duren had an abnormal gait and that he walked stiffly and slowly. Roberts prescribed Duren

medications to relieve his pain. Duren returned to Mallory Health Center in April 2017 and

October 2017, both times complaining of back and leg pain and left-leg numbness and

tingling. At these appointments, Roberts prescribed Duren more medications to relieve his

pain, and she instructed him to follow up with Dr. Calvert. At Duren’s request, Roberts also

referred Duren to a pain management specialist.

¶47. Dr. Blount, a physical medicine and rehabilitation physician, performed an IME of

Duren in September 2017. In his IME report, Dr. Blount acknowledged Duren’s “well

documented work injury,” and he opined that Duren’s multiple-level disc herniations (L3-L4

and L4-L5) were related to his fall at work on July 14, 2016. After examining Duren and

reviewing his medical records, Dr. Blount reported that he disagreed with the three-percent

whole body impairment rating assigned by Dr. Calvert. Dr. Blount stated that he would

instead assign an eight-percent whole-body impairment rating, explaining that the three-

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percent impairment rating only took into account Duren’s L3-L4 disc herniation and not his

L4-L5 disc herniation. Dr. Blount agreed, however, that Duren reached MMI on March 10,

2017.

¶48. During Dr. Calvert’s deposition, he reviewed Dr. Blount’s IME report and testified

that he agreed with Dr. Blount’s whole-body impairment rating for Duren of eight percent

based on the rationale that Duren had two disc herniations rather than one. Dr. Calvert

testified that he thought a cumulative impairment rating of eight percent was “appropriate.”

He explained that when he assigned the three-percent impairment rating, he was referring to

the L3-L4 disc, and he was not thinking about the L4-L5 disc. Dr. Calvert acknowledged

that although he did not perform surgery on the L4-L5 disc, he did treat Duren for pain

stemming from that disc herniation. When questioned further, Dr. Calvert stated that he

would have given the L3-L4 disc a three-percent impairment rating and the L4-L5 disc a

three-percent impairment rating, for a cumulative impairment rating of six percent. Dr.

Calvert opined that a six-percent whole-body impairment rating would be “more appropriate”

than an eight-percent impairment rating.

¶49. Dr. Blount testified that when he examined Duren for the IME in September 2017,

Duren was not pain free. Dr. Blount suggested a post-surgery MRI with contrast to assess

whether Duren has a recurrent disc herniation or scar formation from the surgery. Dr. Blount

stated he believed that when a patient has ongoing complaints after surgery, ordering a repeat

MRI with contrast “would be [the] standard of care.”

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¶50. In September 2018, Dr. John Davis performed an Employer’s Medical Evaluation on

Duren, per the Employer/Carrier’s request. After examining Duren and reviewing his

medical history and records, Dr. Davis issued his report. Dr. Davis stated that Duren suffered

a work-related injury to his lumbar spine that involved two levels: L3-L4 and L4-L5. Dr.

Davis opined that as far as Duren’s lateral disc herniation at L3-L4, he “indeed was and

remains at maximum medical improvement as of March 10, 2017.” Dr. Davis also testified

that he agreed with Dr. Calvert’s treatment protocol of Duren.

¶51. Dr. Davis opined that the ongoing pain Duren complained of in his low back,

consistent with the L5 nerve root, “is directly causally related” to his work injury. Dr. Davis

explained that from a radiculopathy perspective, Duren “is left with almost exclusively L5

(or SI) distribution symptoms.” Dr. Davis agreed that an MRI of Duren’s lumbar spine was

“reasonable, appropriate, and needed” to determine “whether there is any significant or

persistent ongoing left-sided L5 nerve root compression.”

¶52. After reviewing Duren’s updated MRI and CT scans from October 2018, Dr. Davis

determined that the scans showed no evidence of any structural abnormality that was

consistent with or fit with Duren’s ongoing subjective complaints of pain. Dr. Davis reported

that he did not see any residual herniated disc at L3-L4, and he determined that “the issues

at L3-L4 are largely moot certainly from a surgical perspective.” Dr. Davis also stated that

“[m]ost importantly, on the left side at L4-L5, there is not a hint of a left L5 nerve root

compression.”

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¶53. Dr. Calvert also reviewed the October 2018 MRI results, and he provided a report

stating that the MRI results revealed “scar tissue, granulation tissue around the exiting left

L3 nerve root consistent with postoperative changes.” Dr. Calvert stated that “[t]here is a

clear delineation between this scar tissue and the disc margin[,]” and he found that “[t]his

does not appear to be a recurrent disc herniation or free fragment.” Dr. Calvert stated that

he found nothing on the MRI that would warrant a revision surgery or a change in Duren’s

work status. Dr. Calvert also stated that the new MRI “does not shed any light or

explanations” for Duren’s continued complaints of pain.

¶54. In his final order, the AJ found that Duren “failed to meet his burden of proof that his

work injury resulted in a permanent disability causing him to suffer a loss of wage[-]earning

capacity,” and the AJ denied Duren’s claim for permanent partial disability benefits. The

AJ’s order reflects that in making his decision, he relied “most heavily” on the opinion of Dr.

Calvert, as Duren’s treating physician. The AJ found that “for the most part, Dr. Calvert’s

opinions are supported by the opinions of Dr. Blount, Dr. Davis, and Dr. Koestler,” while the

medical opinions of Roberts and Dr. Sloan were “out of line” with the opinions of the other

doctors. The AJ explained that he gave “little, if any, weight” to Roberts’s medical opinion,

because the AJ had previously entered an order finding that her treatment of Duren was not

reasonable or necessary. The AJ also stated that he gave “little weight” to the opinions of

Dr. Sloan because Dr. Sloan did not see Duren until February 20, 2020, and Dr. Sloan failed

to comment on the appropriateness of any of the treatments or opinions of Duren’s previous

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physicians. Dr. Sloan’s report also does not reflect whether he reviewed any records or

findings from Dr. Davis or Duren’s most recent MRI or CT scan.

¶55. After our review, we find that the record contains substantial credible evidence to

support the Commission’s determination that the medical evidence in this case did not

support a finding of a permanent impairment. Dr. Calvert concluded that Duren reached

MMI on March 10, 2017, and he released Duren to work without any restrictions. Dr. Davis

and Dr. Blount performed their own examinations of Duren, and the record shows that they

did not disagree with Dr. Calvert’s findings as to MMI and work restrictions. Additionally,

Dr. Calvert and Dr. Davis reviewed Duren’s most recent MRI and found nothing on the scan

to explain Duren’s ongoing complaints of pain. We recognize that “subjective complaints

of debilitating pain unsupported by any medical proof of an underlying physical cause may,

if found credible by the finders of fact, support a claim for disability.” Wagner v. Hancock

Med. Ctr., 825 So. 2d 703, 706 (¶11) (Miss. Ct. App. 2002). However, the AJ did not find

Duren’s subjective complaints of pain to be credible.

¶56. As to Duren’s claim that the AJ improperly gave more weight to the medical

testimony and evidence provided by Dr. Calvert and Dr. Davis, this Court has held that

“where there is conflicting medical testimony, the Commission has the responsibility to apply

its expertise and determine which evidence is more credible.” Weathersby, 195 So. 3d at 882

(¶21). Accordingly, “where medical expert testimony is concerned, the [s]upreme [c]ourt has

held that whenever the expert evidence is conflicting, the Court will affirm the Commission

21
whether the award is for or against the claimant.” Id. (quoting Raytheon Aerospace Support

Servs. v. Miller, 861 So. 2d 330, 336 (¶13) (Miss. 2003)).

¶57. In addition to medical evidence, “[a]nother consideration in determining whether a

claimant has a disability is her wage-earning capacity.” Lott, 26 So. 3d at 1049 (¶16). “A

rebuttable presumption of no loss of wage-earning capacity arises when the claimant’s

post-injury wages are equal to or exceed his preinjury wage.” Gregg, 64 So. 3d at 476 (¶12).

The supreme court has held that a claimant can rebut this presumption by presenting evidence

that

the post-injury earnings are unreliable due to: increase in general wage levels
since the time of accident, claimant’s own greater maturity and training, longer
hours worked by claimant after the accident, payment of wages
disproportionate to capacity out of sympathy to claimant, and the temporary
and unpredictable character of post-injury earnings.

Id. Additionally, “any factor or condition which causes the actual post-injury wages to

become a less reliable indicator of earning capacity will be considered, including the

claimant’s inability to work, continuing pain, and loss of access to the job market.” Kroger

Co. v. Pybus, 327 So. 3d 678, 684 (¶19) (Miss. Ct. App. 2021) (internal quotation mark

omitted).

¶58. The record reflects that after Dr. Calvert released Duren at MMI with no work

restrictions, Effex had work available for Duren and allowed him to return to his duties.

Duren did not dispute that upon returning to work, he continued to earn the same wages post-

injury. Accordingly, a rebuttable presumption arose in this case that Duren suffered no loss

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of wage-earning capacity. After our review, however, we find that Duren failed to show that

his post-injury wages were unreliable; therefore, he failed to overcome this presumption.

¶59. Duren returned to work at Effex on March 14, 2017, but he started feeling

“excruciating pain,” and he left work after a few hours. Duren returned to work the next day,

but he left early again when the pain returned. Duren did not show up to work on March 16,

2017, and Effex terminated his employment on March 17, 2017. Duren testified that he tried

to return to work at Effex, but he was in too much pain to perform his duties. Duren also

testified that he had applied for over one hundred jobs after he was fired, but he has not

received a job offer.

¶60. Although Duren failed to earn any wages after March 17, 2017, “he did not prove that

this loss of earnings resulted from his injury.” Mabus, 205 So. 3d at 685 (¶39); see also

Wagner, 825 So. 2d at 706 (¶10). As discussed, the AJ found that the medical evidence did

not support a finding of permanent impairment. We have held that an “incapacity to earn

wages and the extent thereof must be supported by medical findings, but the requirement is

met when the fact and extent of incapacity is corroborated in part by medical testimony.” Id.

(citation and internal quotation marks omitted) (quoting Greenwood Utils. v. Williams, 801

So. 2d 783, 791-92 (¶31) (Miss. Ct. App. 2001)). Accordingly, we find that Duren “could

not show how his post-injury wages were unreliable, or that his later loss of wages resulted

from his injury.” Mabus, 205 So. 3d at 686 (¶45).

¶61. The AJ ultimately determined that Duren failed to present persuasive medical

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evidence that his work injury resulted in a permanent disability that caused him to suffer a

loss of wage-earning capacity. After our review, we find the Commission’s decision denying

permanent partial disability benefits was supported by substantial evidence.

II. Temporary Total Disability Benefits

¶62. Duren and the Employer/Carrier agree that Employer/Carrier paid Duren temporary

total disability benefits from July 14, 2016, the date of his injury, until March 10, 2017. Dr.

Calvert placed Duren at MMI on March 10, 2017. Duren argues that because Dr. Sloan

found that he did not actually reach MMI until February 20, 2020, the Commission erred by

failing to award Duren temporary total disability benefits from March 2017 until the present.

¶63. “Temporary disability, whether total or partial, has reference to the healing period

following injury[] until such time as the employee reaches the maximum benefit from

medical treatment.” Flowers v. Crown Cork & Seal USA Inc., 167 So. 3d 188, 191 (¶12)

(Miss. 2014). “Whether and when a claimant has reached maximum medical recovery are

questions which are to be determined by the Commission based on testimony from both lay

and medical witnesses.” Id. at (¶11); see also Chestnut v. Dairy Fresh Corp., 966 So. 2d

868, 871 (¶6) (Miss. Ct. App. 2007).

¶64. As the AJ acknowledged, the record shows that both Dr. Blount and Dr. Davis stated

that they either agreed with or deferred to Dr. Calvert’s finding of MMI. Only Dr. Sloan

disagreed with this finding, and he instead found that Duren reached MMI “as of” February

20, 2020, the same day that Dr. Sloan examined Duren.

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¶65. As stated, “where there is conflicting medical testimony, the Commission has the

responsibility to apply its expertise and determine which evidence is more credible.”

Weathersby, 195 So. 3d at 882 (¶21). “We will uphold that determination unless it is clearly

erroneous.” Wesson v. Fred’s Inc., 811 So. 2d 464, 469 (¶23) (Miss. Ct. App. 2002). Here,

the AJ stated that he gave “little weight” to Dr. Sloan’s opinions because “they are far out

of line with Dr. Calvert, Dr. Blount and Dr. Davis” with regard to MMI and the impairment

ratings. Dr. Sloan’s report does not document a review of any records or findings from Dr.

Davis, nor did he document any review of Duren’s October 2018 MRI or CT scan.

¶66. After our review, we find that the Commission’s determination that Duren reached

MMI on March 10, 2017, was supported by substantial evidence.

III. Denial of Treatments, Medications, and Reimbursement for
Mileage at Mallory Health Center after Reaching MMI

¶67. Duren argues that the Commission erred in failing to hold the Employer/Carrier

responsible for his treatment, medications, and mileage at Mallory Health Center. Duren

claims that after he returned to work and suffered back and leg pain, Dr. Calvert refused to

treat him, and Duren had no choice but to seek treatment from Roberts at Mallory Health

Center. Duren further argues medications and treatments prescribed by Roberts were all

reasonable and medically necessary to treat Duren’s work injury.

¶68. The record reflects that on March 14, 2017, four days after Dr. Calvert placed Duren

at MMI and released him to work without restrictions, Duren went to Mallory Health Center

complaining of back and leg pain, as well as tingling and numbness in his left leg. Roberts

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evaluated Duren and observed that he was walking stiffly and slowly with an abnormal gait.

Roberts prescribed him Gabapentin, a medication used to relieve nerve pain, and Mobic, an

anti-inflammatory medication used to relieve pain.

¶69. Duren returned to Mallory Health Center on April 19, 2017, again complaining of

back and leg pain, as well as weakness and left-leg numbness and tingling. The notes from

the appointment showed that Duren wanted to be referred to a specific pain management

doctor in Jackson, Mississippi. Roberts prescribed Duren Ketorolac Tromethamine, an

anti-inflammatory medication used to relieve pain, for his back pain, and she also increased

his dosage of Gabapentin. Roberts also referred Duren to a pain management clinic, and she

instructed him to follow-up with Dr. Calvert on his existing back issues to see if another

surgery was needed.

¶70. Duren followed up at Mallory Health Center on October 4, 2017. Roberts

recommended an x-ray of Duren’s spine. She also recommended that he undergo another

MRI of his cervical, thoracic, and lumbar spine without contrast. Roberts also prescribed

Hydrocodone Acetaminophen. Duren underwent an x-ray of his spine that same day, which

revealed mild facet arthropathy (arthritis).

A. Medications

¶71. In Dr. Blount’s April 27, 2018 report clarifying his IME findings, he agreed that

Roberts’s prescriptions for Gabapentin, Ketorolac Tromethamine, and Hydrocodone were

related to the treatment of Duren’s work injury. Dr. Blount also testified that it is reasonable

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for a patient to go see a provider if he is still having pain after surgery. Dr. Blount stated

that, ideally, the patient would return to the treating physician, but often the patient returns

to his primary care physician or a nonsurgical provider for his postoperative pain. Dr. Blount

specifically agreed with Roberts’s use of the medication Gabapentin to treat Duren, stating

that it is his first choice for patients with lumbosacral radiculopathy, like Duren. Dr. Blount

recommended increasing Duren’s dosage of Gabapentin.

¶72. Dr. Calvert, however, opined that the medications Roberts prescribed Duren were not

reasonable or necessary. Dr. Calvert explained that Gabapentin is a pain medication meant

to modulate the nerve, and Duren complained of back pain, so Gabapentin would not be

indicated and therefore would not be a medically reasonable treatment. Dr. Calvert stated

that when he released Duren on March 10, 2017, he did not need these medications because

his leg pain was gone. Dr. Calvert testified that if Duren’s back pain and leg pain was

significant enough for him to seek medical treatment four days after being released at MMI,

Mobic would be a reasonable and necessary medication to treat Duren, but only for the

limited time period of a month or less.

¶73. In response to Duren’s claim that Dr. Calvert refused to treat him after Duren returned

to work, Dr. Calvert testified that he was not aware that Duren had contacted him. Dr.

Calvert explained that he will typically see a patient if the patient experiences problems after

being released from treatment. During the deposition, counsel for the Employer/Carrier

informed Dr. Calvert that the AJ ordered the Employer/Carrier to contact Dr. Calvert’s office

27
and ask him to see Duren for a follow-up visit, and counsel was told that Dr. Calvert was not

willing to see Duren and had nothing further to offer. Dr. Calvert testified that as far as he

could recall, Duren never contacted him, and Dr. Calvert did not recall “closing the door” on

follow-up treatments for Duren “other than saying he’s at [MMI].” Dr. Calvert stated that

it had been too long for him to remember if he closed the door on treating Duren or if

“workers’ compensation” closed the door on further treatment. Dr. Calvert also testified that

when he closes a workers’ compensation case and places someone at MMI, then “the case

is closed” from a workers’ compensation perspective, and he is unwilling to see a patient

back for complaints that they think stem for the previous workers’ compensation claim. Dr.

Calvert explained that “sometimes it can be difficult because I have to protect my clinic from

[workers’ compensation] patients who are trying to take advantage of the system and

continuing wanting to get follow-up and follow-up, and which can make it very difficult for

me to see patients and continue to provide care for the rest of the community.” Dr. Calvert

testified that he had concerns that Duren was “malingering,” explaining that Duren made it

clear that he did not want to return to work and that he “catastrophicized” the pain.

B. Pain Management and Physical Therapy

¶74. Duren also argues that the Commission erred in denying Duren reasonable medical

treatments, pain management, physical medicine, and physical therapy as recommended by

his doctors, including Dr. Blount, Dr. Davis, and Dr. Calvert.

¶75. On April 8, 2021, after filing his notice of appeal from the Commission’s order, Duren

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filed a letter with the Full Commission in which he requested several corrections to the

record. Duren also asserted as follows:

Dr. [Calvert] agreed to look over [the] last MRI done on October 25, 2018 and
make a determination [as to] whether I should continue with medical
treatments due to my work injuries. He clearly states he recommended I, J. W.
Duren, continued pain management and/or physical medicine and rehab
recommendations. I don’t see where [the Employer/Carrier] have given me
any of these treatment after or before December 7, 2018, [(the date of Dr.
Calvert’s report issuing this finding)]. I have been denied medical treatments
per treating Dr. Calvert for [four] years.

The Full Commission entered an order on June 15, 2021, finding that “[t]his appears to be

an argument for the appellate court to consider rather than any objection to the content of the

record. The argument has to do with treatment allegedly recommended by Dr. Calvert and

not approved by Employer and Carrier.”

¶76. The record reflects that Duren filed several motions to compel medical treatment and

specifically requested that the AJ “enter an [o]rder instructing the Employer and Carrier to

approve and pay for [Duren’s] referral to pain management treatment.” The AJ entered an

order denying the motions, with the most recent order being the March 20, 2019 order. In

that order, the AJ denied Duren’s third renewed motion to compel medical treatment after

finding that the treatments prescribed by Mallory Health Center were not reasonable and

necessary. The AJ’s September 2, 2020 final order, which the Commission affirmed and

adopted, stated that Duren “is entitled to continuing medical treatment under the Act as long

as it is reasonable, necessary and related to the claimant’s work injury[.]” The AJ

specifically incorporated his March 20, 2019 order into the final order.

29
¶77. Turning to review the medical evidence regarding Duren’s pain management referral,

the record reflects that Dr. Davis testified that he did not recommend a referral to pain

management. Dr. Davis testified that after looking at the imaging from Duren’s MRI, he saw

that the pathology had been successfully addressed. Dr. Davis explained that subjective pain

is pain that cannot be corroborated. Dr. Davis testified that the MRI scan and CT scans

showed no evidence of any structural abnormality that was consistent with or fit with Duren’s

ongoing subjective complaints of pain.

¶78. When asked whether he agreed with the nurse practitioner’s referral to pain

management, Dr. Blount responded that “[c]hronic pain related to a postsurgical Workers’

Compensation case should be managed by a medical professional trained and familiar with

the process. I would agree to transfer from [the] nurse practitioner to [a] higher level of care.

Services rendered, however, would need to be reviewed prior to my opinion.” During his

deposition, Dr. Blount clarified that if pain is still a problem for Duren, “it is possible that

some degree of self-management, some degree of pain management, and possibly a position

with work limitations or restriction, could get Mr. Duren back in the workplace” without the

use of Ultram or opiods.

¶79. Dr. Calvert disagreed with Dr. Blount’s opinion that Duren could benefit from being

evaluated by a pain management specialist, explaining, “Dr. Blount says that [Duren] has

axial related pain and only intermittent leg symptoms, and Dr. Blount even said that [Duren]

does not qualify for axial injections, so I really don’t understand what the point of the pain

30
management physician is in this particular case.” However, Dr. Calvert issued an updated

report on December 7, 2018, after reviewing Duren’s October 25, 2018 MRI results. Dr.

Calvert found that the new MRI “does not shed any light or explanations” for Duren’s

continued complaints of pain, and “[f]or this reason[,] I see no reason to evaluate Mr. Duren

for revision surgery or changes in treatment.” Dr. Calvert then stated that he recommended

“continued pain management, and/or physical medicine and rehab recommendations.”

C. Reimbursement

¶80. In his final order, the AJ found, after reviewing the medical evidence, that “[n]othing

submitted at the merit hearing changed this [AJ’s] opinion” regarding the treatments or

medications prescribed by Mallory Health Center after Duren reached MMI on March 10,

2017. The AJ reiterated his findings from his March 20, 2019 order where he found that the

medications and treatment provided by Mallory Health Center were not reasonable and

necessary and were therefore not the responsibility of the Employer/Carrier. The AJ

incorporated this prior order into his final judgment. The AJ also stated that based on these

findings, the Employer/Carrier were not responsible for any mileage reimbursement for travel

to Mallory Health Center or to pick up medications prescribed by Mallory Health Center.

The record shows that the AJ considered Dr. Calvert’s December 7, 2018 report in his March

20, 2019 order as well as in his September 2, 2020 final order ruling on the merits of Duren’s

compensation claim.

¶81. After our review, we find that the Commission’s decision was supported by

31
substantial evidence in the record and was not clearly erroneous.

¶82. We find that while the Commission did deny Duren’s requests for pain management

and payment of the medications prescribed by Roberts as not a reasonable or necessary

medical treatment, the Commission did not make any findings regarding physical therapy.

However, we do not see in the record where, or if, Duren requested payment for physical

therapy or a referral to physical therapy. Roberts did not recommend physical therapy as a

treatment for Duren, nor did Roberts refer Duren to a physical therapist.

IV. Additional Claims of Error

¶83. Finally, Duren claims that the AJ failed to enter and weigh all the evidence submitted

by Duren, Dr. Blount, and Roberts, including Dr. Sloan’s February 20, 2020 IME report and

addendum, the physical therapy report from Tyler Holmes Rehab, Duren’s CT scan from

January 8, 2019, and his MRI from October 25, 2018.

¶84. The record on appeal before us contains the medical records from Roberts at Mallory

Health Clinic; the IME report and deposition of Dr. Blount; Dr. Sloan’s IME report and

addendum; as well as reports from Dr. Davis and Dr. Calvert stating the results from Duren’s

CT scan and MRI. As stated above, the AJ had the responsibility to determine which of the

conflicting medical evidence was more credible, and we find that the AJ’s determinations,

and thus the Commission’s, were supported by substantial credible evidence.

¶85. The record does not, however, contain any report from Tyler Holmes Rehab or

Duren’s actual CT scan and MRI. Duren, as the claimant, bears the burden of proving that

32
his work injury resulted in a permanent disability causing him to suffer a loss of wage-

earning capacity, and this disability must be supported by medical findings. Duren had the

opportunity to submit his physical therapy report and the actual CT scan and MRI at the

evidentiary hearing before the AJ, and the record reflects that he did not submit these

documents. “[T]his Court only considers the medical evidence properly admitted before the

AJ and Commission.” Mabus, 205 So. 3d at 683 (¶28). Therefore, we decline to further

address this claim.

Conclusion

¶86. After our review, we find that the Commission’s decision that Duren failed to prove

that he suffered a permanent disability is supported by substantial evidence. Therefore, we

affirm the Commission’s denial of permanent partial disability benefits. For the reasons set

forth above, we also affirm the Commission’s decision awarding temporary total disability

benefits until March 10, 2017, the date of MMI, and denying medical treatments or

prescriptions recommended by Roberts, as well as mileage reimbursement, after Duren

reached MMI.

¶87. AFFIRMED.

BARNES, C.J., GREENLEE, LAWRENCE, McCARTY, SMITH AND
EMFINGER, JJ., CONCUR. WILSON, P.J., CONCURS IN PART AND IN THE
RESULT WITHOUT SEPARATE WRITTEN OPINION. WESTBROOKS AND
McDONALD, JJ., CONCUR IN RESULT ONLY WITHOUT SEPARATE WRITTEN
OPINION.

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