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IN THE COURT OF APPEALS 03/25/97 OF THE STATE OF MISSISSIPPI
NO. 95-CC-01288 COA

JESSIE SPANN APPELLANT v. WAL-MART STORES, INC. and NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURG, PA APPELLEES

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B

TRIAL JUDGE: HON. ROBERT GOZA COURT FROM WHICH APPEALED: RANKIN COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: LEON MILLER ATTORNEY FOR APPELLEE: ROBERT CARPENTER NATURE OF THE CASE: WORKER'S COMPENSATION TRIAL COURT DISPOSITION: FOUND APPELLANT ENTITLED TO TREATMENT BUT BY SPECIFIED DOCTOR.

CERTIORARI FILED: 6/24/97

BEFORE THOMAS AND McMILLIN, P.JJ., AND KING, J. MCMILLIN, P.J., FOR THE COURT:

This case comes before the Court on appeal from a judgment of the Circuit Court of Rankin County affirming a final order of the Mississippi Workers' Compensation Commission. The claimant, Jessie Spann, has availed himself of his statutory appeal rights to claim that the commission erred when it concluded that he had reached maximum medical improvement as the result of a work-related injury and had suffered no permanent disability from the accident. He further claims that the commission exceeded its authority when it specified a particular doctor to provide any further treatment in connection with his injury. We conclude that the commission order should be affirmed except for a minor clarification of the matter of future medical treatment, which will not require remand. I. Facts Jessie Spann was employed at the Wal-Mart retail store in the city of Pearl as a mechanic on September 7, 1990, when he slipped and fell at work while carrying an automobile tire. He complained of both stomach pains and back pains and was treated by Dr. David Gandy, an orthopedic specialist, primarily for his back pains. Dr. Gandy referred Spann to Dr. Harvey Sanders because of concern of possible internal injuries to the abdominal area; however, it appears that these symptoms resolved themselves. Mr. Spann continued to complain of back pain and pain in his lower extremities that he attributed to his back injury. Dr. Gandy treated Spann conservatively. His treatment included a period of complete bed rest followed by a course of physical therapy. Spann, apparently dissatisfied with the progress of his recovery, sought treatment from Dr. Frenz, a neurosurgeon, who diagnosed disc damage at the L4-5 level. Dr. Frenz initially attempted to treat the problem through medication and therapy, but ultimately admitted Spann to the hospital in January 1991, and recommended a percutaneous nucletome discectomy to attempt to relieve Spann's symptoms. Wal-Mart's workers' compensation carrier refused to authorize the surgery and informed Dr. Frenz additionally that it would not authorize further charges associated with Spann's hospitalization. As a result, Spann was discharged from the hospital and shortly thereafter filed a petition seeking to compel Wal-Mart to provide the surgery suggested by Dr. Frenz. Immediately after his discharge from the hospital, Spann was examined by two additional doctors, one apparently on a referral from the attorney who was representing him in this matter at the time, and the other upon the referral of Dr. Frenz for a second opinion. Dr. Elmer Nix, an orthopedic surgeon, reported "a very minimal bulge of the L-4 disc" that he felt was "within normal limits." He further concluded that Spann appeared to be magnifying his symptoms during the course of the examination. His conclusion was that Spann had suffered only a low back strain from which he should have recovered within six to eight weeks. Dr. Patrick Barrett, an orthopedic surgeon who saw

Spann at the request of Dr. Frenz, diagnosed "probable internal disc derangement 4-5," but indicated that "his opinion would be that it would be less than a 50-50 chance that this [Dr. Frenz's suggested discectomy] would improve his situation enough to go back to heavy work." II. Wal-Mart's Denial of Surgery Wal-Mart's obligation to Spann is of statutory origin. It is obligated to "furnish such . . . surgical . . . treatment . . . for such period as the nature of the injury or the process of recovery may require." Miss. Code Ann.

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