        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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