IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2016-WC-01652-COA
LOWE’S HOME CENTERS, LLC APPELLANT
v.
EDWIN SCOTT APPELLEE
DATE OF JUDGMENT: 10/24/2016
TRIBUNAL FROM WHICH MISSISSIPPI WORKERS’ COMPENSATION
APPEALED: COMMISSION
ATTORNEYS FOR APPELLANT: JILL RENEE MILLER
MICHAEL MADISON TAYLOR JR.
ATTORNEY FOR APPELLEE: BRETT ANDREW FERGUSON
NATURE OF THE CASE: CIVIL - WORKERS’ COMPENSATION
DISPOSITION: AFFIRMED: 10/31/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE GRIFFIS, P.J., BARNES AND FAIR, JJ.
FAIR, J., FOR THE COURT:
¶1. Edwin Scott developed a staph infection in his spine after receiving epidural injections
as treatment for a workplace injury. After being presented with dueling expert opinions, the
Mississippi Workers’ Compensation Commission found that the infection had resulted from
the injections and thus was a compensable injury itself. Lowe’s Home Centers, the
employer/carrier, contends that Scott’s expert should not have been be credited. We disagree
and affirm.
STANDARD OF REVIEW
¶2. “[R]eview of a decision of the Workers’ Compensation Commission is limited to
determining whether the decision was supported by substantial evidence, was arbitrary and
capricious, was beyond the scope or power of the agency to make, or violated one’s
constitutional or statutory rights.” Cook v. Home Depot, 81 So. 3d 1041, 1044 (¶3) (Miss.
2012) (citation omitted). “Because the Commission is the ultimate fact-finder and judge of
the credibility of the witnesses, [an appellate court] may not reweigh the evidence before the
Commission.” Id. at 1044-45 (¶3) (citation omitted). Questions of law, on the other hand,
are reviewed de novo. Ladner v. Zachry Constr., 130 So. 3d 1085, 1088 (¶9) (Miss. 2014).
DISCUSSION
¶3. Scott injured his lower back while unloading a heavy appliance. He was to be treated
with a series of epidural steroid injections. The first was on May 9, 2014, with the second
following on May 29, 2014. On May 30, Scott was found to have an epidural abscess in the
lower back, a staph infection caused by methicillin-resistant staphylococcus aureus (MRSA)
bacteria. The infection necessitated several serious surgeries.
¶4. The factual dispute in this case is causation – whether the injections led to the staph
infection. “In workers’ compensation cases, the claimant bears the burden of proving by a
fair preponderance of the evidence . . . a causal connection between the injury and the . . .
claimed disability.” Harper v. Banks, Finley, White & Co. of Miss., 167 So. 3d 1155, 1163
(¶19) (Miss. 2015) (citation omitted).
¶5. The expert for Lowe’s, Dr. Eric Amundson, a neurosurgeon, testified that infections
rarely resulted from epidural injections and that Scott, a diabetic, was especially vulnerable
to “spontaneous” infections. He noted that Scott had had two staph infections in the past two
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years in other parts of his body. Dr. Amundson concluded that the injections were not the
cause of Scott’s infection.
¶6. On the other hand, Dr. Eric McVey, an infectious disease specialist who treated Scott,
testified that he believed the infection was caused by the injections. He based this finding
on the timing of the injections and their location, which was a few centimeters from the
infection. Dr. McVey noted that “spontaneous” infections do not appear from nowhere, but
require staph bacteria to have entered the blood somehow. Because it is not possible to fully
sterilize skin prior to an injection, the bacteria could have entered Scott’s body from the
needle punctures. Alternatively, bacteria already present in the blood could have infected the
spine because of inflammation from the injections. Dr. McVey acknowledged that it would
be unusual for an infection to result from an epidural infection or for such an infection to
progress in some of the ways Scott’s did, but in his judgment it was still more likely than not
that the infection was caused by the injections.
¶7. Dr. Vivek Barclay, a specialist in anesthesiology and pain management, also treated
Scott. He testified that while he could not say the injections caused the infection, he
disagreed with Dr. Amundson’s opinion that one could say with any confidence that they had
not.
¶8. On appeal, Lowe’s contends that Dr. McVey’s testimony was not reliable for several
reasons. First, it contends that Dr. McVey “admittedly had not reviewed the relevant medical
records, including the medical records regarding the injections or the MRI films.” But
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Lowe’s fails to show how this undermines Dr. McVey’s opinion; it does not identify what
records McVey should have reviewed, other than the MRI. And while McVey did not look
at the MRI itself, he testified that he had relied on the radiologist’s report of what it showed
and that his examination of Scott was consistent with the report. Dr. McVey never even
suggested that he had to review the MRI itself to formulate an opinion on the cause of the
infection. Lowe’s fails to show how not viewing the MRI itself undermined Dr. McVey’s
opinion – in fact, McVey seems to have drawn the same conclusions from the radiologist’s
summary of the MRI that Dr. Amundson reached from looking at the MRI itself; he just
disagreed about how much weight to give them in the end.
¶9. Otherwise, the arguments advanced by Lowe’s appear to be an attempt to reweigh the
various facts considered by Dr. McVey in reaching his ultimate conclusion – the progression
of the infection, the probabilities of a “spontaneous” infection versus introduction of bacteria
from the injections, the usual formation and progression of infections of the spine. The
record reflects that Dr. McVey considered all of these factors, and he candidly acknowledged
that it was a close call; but he still concluded that, more likely than not, the infection resulted
from the injections. The weighing of these factors was an exercise of Dr. McVey’s
professional judgment as an infectious disease specialist, something this Court is in no
position to second-guess. And the Commission, as the finder of fact, was entitled to decide
whether to credit Dr. McVey’s judgment on this matter over that of Dr. Amundson. It is
axiomatic that “whenever the expert evidence is conflicting, the [reviewing court] will affirm
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the Commission whether the award is for or against the claimant.” Raytheon Aerospace
Support Servs. v. Miller, 861 So. 2d 330, 336 (¶13) (Miss. 2003). “[T]he Commission has
the responsibility to apply its expertise and determine which evidence is more credible.”
Hamilton v. Southwire Co., 191 So. 3d 1275, 1282 (¶24) (Miss. Ct. App. 2016) (citation
omitted).
¶10. AFFIRMED.
LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, GREENLEE
AND WESTBROOKS, JJ., CONCUR. WILSON AND TINDELL, JJ., NOT
PARTICIPATING.
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