MWCC NO. 99 02117-G-4897

EDWARD A. STUART                                                                                                                                  CLAIMANT

V.

JANSSEN PHARMACEUTICALS, INC.,
A DIVISION OF JOHNSON & JOHNSON                                                                                                EMPLOYER

AND

LUMBERMENS MUTUAL CASUALTY CO.                                                                                                CARRIER

REPRESENTING CLAIMANT:

Arthur F. "Skip" Jernigan, Attorney at Law
Jackson, Mississippi

REPRESENTING EMPLOYER AND CARRIER:

Joseph T. Wilkins, III, Attorney at Law
Jackson, Mississippi

The Commission heard the above styled and numbered cause on July 30, 2001 in the offices of the Mississippi Workers' Compensation Commission in Jackson, Mississippi on the employer and carrier's "Petition of Appeal from the Order of the Administrative Judge". The essential argument on appeal made by the employer and carrier is that there was insufficient medical evidence in the record before the Administrative Judge to support the Administrative Judge's finding that the claimant's thoracic injury was a result of the motor vehicle accident in which the claimant was involved on November 7, 1997. The employer and carrier argued further that the Administrative Judge erred in his decision on the issue of credits for long term disability benefits paid to the claimant under a disability policy.¹ Claimant, on the other hand, argued that the Administrative Judge was correct on the issue of causation as well as in his determination that the employer and carrier are not entitled to credit for payments of long term disability benefits.

After a thorough examination of the record on appeal, the Commission reverses the finding of the Administrative Judge on the issue of causation, substituting its finding of fact that the claimant failed to prove that his disability is casually related to the motor vehicle accident as alleged, and thus mooting the employer and carrier's argument as to credit for long term disability benefits. These findings are based largely on the medical testimony of Doctors Philip Adordegan, Ronald Davis, Ruth Fredericks, Adam Lewis, Scott H. McPherson, Thomas P. Mills, Bruce S. Senter, Howard L Smith and Robert R. Smith and the impact of these experts' testimony on the facts as presented by the claimant, his wife, and other corroborating witnesses.

At the outset, it is apparent from a review of the record that the claimant is a sincere, honest and forthright individual. There is no medical evidence suggesting that the claimant is involved with symptom magnification issues or secondary gain issues. It is further apparent that the claimant has suffered a serious injury and has sustained a significant disability as a result. A review of his direct and cross examination testimony clearly reflects that Mr. Stewart is an individual that one would want included in his circle of friends, an intelligent, honorable man with a good work ethic, a good sense of humor, a sense of responsibility to family and a sense of duty. These characteristics were evident to the Administrative Judge, who found the claimant to be "a very credible witness"² and went onto say: "[the Administrative Judge] accepts [claimant's] version of the facts, and finds that there is a causal connection between the accident and Mr. Stuart's injury, which is supported by the medical evidence."³ Certainly this would explain why, when viewing the evidence, the Administrative Judge recalled the beneficent purposes of the Mississippi Workers' Compensation Law (hereinafter "the Act") and found the injury to be compensable. The Commission, however, cannot agree with the Administrative Judge's finding that causation is supported by medical evidence.

Critical to the Commissions conclusion is the very appreciation of the honesty and intelligence of the claimant and the fact that, as a historian, he serves a vital function in attempting to prove causation. The claimant testified to, and it is undisputed that:

· claimant was involved in a motor vehicle accident on November 7, 1997, while he was acting within the course and scope of his employment;

· claimant is a nurse who has some generalized knowledge of medical issues which exceed the knowledge held by most lay individuals;

· claimant experienced only "tenderness" in his back after the accident, which tenderness had an onset during his plane ride from New Jersey to Mississippi on the same day as the accident;

· claimant continued to experience feelings of tenderness, which he testified gradually increased in intensity and were distracting, but was able to work as a pharmaceutical representative until January 14, 1998, the first day that he had to seek medical treatment;

· claimant believed that he was seeking treatment on January 14, 1998 for gastric distress, probably an ulcer or possibly a gallbladder problem;

· the claimant's history to emergency room physicians and Dr. Thomas Mills, the gastroenterologist, that he was experiencing severe back pain which had onset one week before he presented at the emergency room (on January 14, 1998);

· the claimant's wife, Judy, a registered nurse, was present during the time that the claimant gave a history to Dr. Mills and did not correct this history;

· claimant had seen two emergency room physicians, the gastroenterologist, Dr. Mills, and had begun treatment with Dr. Ruth Fredericks, a neurologist, before he related to any medical service provider the incident which occurred on November 11, 1 997 and before he related to any medical service provider that he was experiencing neurogenic bladder and erectile dysfunction or impotence;⁴

· the claimant did not experience intractable pain until January 14, 1998.

These undisputed facts posited by the claimant are in contradiction of the preponderance of the medical evidence in this case, and compel the conclusion that the claimant's disability is not a result of an injury sustained by him resulting out of the work related motor vehicle accident. Consider, for example, the following findings of the Administrative Judge:

· "In Dr. Fredericks' opinion it was more likely than not that the event that caused Mr. Stuart's back condition had occurred within two weeks of when she first saw Mr. Stuart on January 19, 1998, but she did not know what that event was. If, however, Mr. Stuart felt tenderness on the flight home that had gradually worsened into intense pain, it was possible that the accident had caused Mr. Stuart's problem."⁵
 

· "Although Mr. Stuart told Dr. Azordegan on March 2, 1998, that his condition had started with the accident, Dr. Azordegan was unable to determine when the herniation had occurred.*** Dr. Azordegan opined that it was unlikely that the accident and Mr. Stuart's condition were related.... however, if Mr. Stuart felt discomfort shortly after the accident that progressively worsened, then the accident and Mr. Stuart's condition were probably connected."⁶

· "Dr. Senter opined that if Mr. Stuart had no symptoms for two months after the accident, it was unlikely that the accident had caused the herniated disk. On the other hand, if Mr. Stuart experienced tenderness in his back, bladder problems, and sexual dysfunction soon after the accident, it was likely that the accident had caused those symptoms."⁷

· "Dr. [Robert R.] Smith opined that the herniation occurred or was aggravated around the second week in January 1998 and that he would have expected Mr. Stuart to have sought medical care shortly after that occurrence. If, however, Mr. Stuart had felt discomfort soon after the accident, which had intensified into pain, it was more likely than not that there was a connection between the accident and the herniation."⁸

· "Based on [the review of the claimant's medical records and a host of depositions] Dr. [Howard L.] Smith concluded that Mr. Stuart's herniated disc was not related to the accident and had probably occurred in January 1998."⁹

The Commission, having reviewed the medical evidence thoroughly, would suggest that the following testimony offered by the medical experts compel the conclusion that substantial weight of evidence does not support the finding made by the Administrative Judge of causal connection between the accident and the disability. Dr. Adam Lewis, a board certified neurosurgeon specializing in cerebral vascular surgery, treatment of strokes and complex brain tumors and treatment of spine conditions including herniated nucleus pulposus and spondylosis, who saw the claimant on referral from Dr. Bruce Senter for consideration of the implant of an intrathecal morphine pump for intractable back and leg pain, when asked a hypothetical question which included the history of the motor vehicle accident, the travel home, the claimant's work history for the 60 days following the accident, and the symptoms he experienced as he testified about them (tenderness slowly intensifying), opined that he would certainly expect spasm or complication to have occurred sooner if the accident had been the genesis of the annular tears and herniation. He testified that thoracic acute trauma resulting in annular tears and herniation promote symptoms "right away" rather than being characterized by a "vague onset in the troubled area." Could the motor vehicle accident have caused the claimant's annual tears and herniation, ultimately resulting in his disability? According to Dr. Lewis, it is a possibility.

The testimony of Dr. Senter, Dr. Howard L. Smith, and Dr. Robert R. Smith, likewise find it only possible that the accident resulted in the injuries and disabilities that the claimant currently suffers. Each of these physicians posits a clear skepticism that there is causation. As noted earlier (see note 7), Dr. Senter testified: that he would have expected the claimant to have back pain early on, within the first two days after the event, and that usually traumatic events of onset such as motor vehicle accidents cause symptoms which occur shortly, within one or two days; further he indicated that he would be "hard pressed" to say that the two annular tears and the hemiated disk would have been the result of the motor vehicle accident if the claimant had been able, as demonstrated by his work activities, to be virtually asymptomatic for two months. Dr. Robert R. Smith testified that the
claimant expressed pain that had acutely intensified within a week ("a matter of a few days") prior to the date the claimant presented at the emergency room, so in his opinion, to a reasonable degree of medical certainty, the herniation would have occurred early in the second week of January, 1998. According to Dr. Smith, had the herniation occurred on November 7, 1997, the claimant should have been experiencing "intense pain", "seeking medical attention", taking "pain medication" and not working. It was Dr. Smith's opinion, again to a reasonable degree of medical certainty, that the claimant's disk problem had been in existence for a long time based on the claimant's pain history and the bony spur which had formed. He further opined that when he reviewed the nature of Dr. Azordigan's findings, in his medical opinion, the claimant would have been unable to live comfortably" with his condition from November 7, 1997 until January 14, 1998. Dr. Howard L. Smith, who did not personally examine the claimant but merely reviewed medical records and depositions associated with this claim, testified that the claimant's history, as given to several medical service providers, supported "vicious pain" only one week before January 14, 1998, with only tenderness progressively developing prior. Dr. Smith testified that to a reasonable degree of medical certainty, he would expect that the condition of the claimant's thoracic disks would have caused intense pain symptoms within 24 hours, and certainly within 48 hours, of the herniation. Thus he concluded that the motor vehicle accident had nothing to do with claimant's symptoms on January 14, 1998, or with his resulting disability.

It is also interesting to note that several of the physicians who testified could find no organic cause for the claimant's back pain, radiculopathy, neurogenic bladder or erectile dysfunction, although none expressed an opinion that the claimant was magnifying symptoms. Dr. McPherson noted that by virtue of the diskectomy performed at 4 levels at the request of Dr. Senter (T7-T8, T8-T9, T9-T1O and T11-T12) he reproduced the claimant's severe back pain atT8-T9, pain with left leg radiculopathy at T9-T10, and concordant pain with right leg radiculopathy at Ti 0-T11, the reproduction at T9-T10 being most significant. However, he opined that there was no nerve impingement evident at T8-T9, T9-T1O or T1O-T11.  Dr. McPherson also opined, in conjunction with these findings, that he did not believe the claimant was "feigning" pain responses. Dr. Robert R. Smith testified that the claimant's complaints of bladder problems or impotence were "not supported by organic findings." Dr. Howard L. Smith testified that there was "no compression of the thoracic spinal cord" and thus no reason for the claimant to experience bowel or bladder problems or erectile dysfunction.

Moreover, the testimony of the claimant's primary and initial treating physicians charged with the treatment of his back disorder, does not establish to a reasonable degree of medical certainty that the claimant's injury and resulting disability are causally related to his motor vehicle accident. Dr. Fredericks, the neurologist, testified that she first saw the claimant on January 19, 1998 and he related that his back pain had gotten progressively worse over the prior week. Dr. Fredericks diagnosed the claimant's condition as being caused by a herniated disk and an osteophyte in the thoracic area. She referred the claimant to Dr. Azordegan for surgery, and then continued to treat the claimant after Dr. Azordegan's procedure. In perhaps February of 1998 the claimant related to Dr. Fredericks that he had been in a motor vehicle accident and had experienced problenis with urination since that time; this information caused Dr. Fredericks to refer the claimant to a urologist; it did not cause her to conclude that the disability the claimant experienced was a result of the motor vehicle accident. Indeed, on his intake sheet, the claimant stated that his condition was not work-related and he did not mention the motor vehicle accident to her at the time he presented himself on referral from Dr. Mills. When asked to relate the motor vehicle accident to the resulting injury and disability, Dr. Fredericks opined:

· if the claimant felt tenderness in his back during his plane flight on November 7, 1997, and that tenderness had increased in intensity until he was forced to go to the emergency room on January 14, 1998 because of that pain, it would be more Drobable than not that the motor vehicle accident caused the claimant's condition; and

· it was more likely than not that the claimant's condition arose within 2 weeks of when she initially saw the claimant on January 19, 1998.

· that it would be unlikely that the motor vehicle accident and the herniated disc were related;

· that he would expect to see more severe symptoms prior to 60 days after an incident such as the one causing the herniation and annular tears;

· that if from the time of the motor vehicle accident, the claimant had experienced pain which had progressively worsened until he sought treatment in the emergency room, there would "seem. ..to be a temporal relationship."¹⁰

The claimant in a workers' compensation case has a threshold burden. He must show an accidental injury arising out of and in the course of employment (admitted in this case) and a causal connection between the injury and the claimed disability. This showing must be established by reasonable probabilities and not by mere possibilities.¹¹ Vardamann Dunn, in viewing the burden of the claimant in this regard, noted: "The burden is not met by a showing that it could have been one way just as well as another."¹² Put another way, when the claimant has the burden of proof on the question of causal connection, the proof must rise above mere speculation. coniecture or possibility. But the burden may be carried, from a medical standpoint, by reasonable probabilities.¹³ In this case the Commission has carefully reviewed the medical evidence and cannot find that the claimant has proven by reasonable probabilities that there is a causal connection. Indeed, in this particular case, the best that can be said is that, when basing testimony on hypotheticals that reflect that the claimant began to experience pain resulting from a "tenderness" immediately after the accident, that the pain may have resulted from the accident as likely as having resulted from some other event closer in time to the date of January 14, 1998 when the claimant presented himself to the emergency room. This is insufficient.

But the Commission's decision is not based on medical proof alone. The Commission is well aware that the ACT is to be given liberal construction and that doubtful cases should be resolved in favor of compensation.¹⁴  However, the Commission is called upon to apply "common knowledge, common experience and common sense" when weighing the evidence.¹⁵ The adherence to a liberal construction of the Act does not avoid the requirement for the claimant to proffer proof prerequisite to recovery. Several factors have been considered by the Commission and given weight in its determination. Many of these factors are provided by the uncontradicted testimony of the claimant, as noted on pages 3-4 of this opinion. Certainly the claimant's behavior for the 60 days immediately following the motor vehicle accident is not consistent with the behavior and pain response of an individual who has suffered the herniation and annular tears that Dr. Azordegan found to be present. Moreover, the claimant's recollection of the accident itself, the point of impact, and the nature of the impact, are contradicted by the limousine driver, Mr. Lennon, and by the trooper assigned to investigate the accident, Michael Moore of the New Jersey State Police. Both men characterized the impact as light and both men characterized the point of impact as near the rear of the van, not in the vicinity of Mr. Stuart's seat as he sat in the seat behind the driver. Other factors considered by the Commission are:

· the claimant's failure to mention this accident and injury to his immediate supervisor, Marta Schroeder, even though they spoke every day following the accident until his hospital admission; and

· the claimant's "stoicism" for 60 days in light of the nature of his injury.

Based on the foregoing, the Commission finds that the claimant has failed to prove to a reasonable degree of medical probability or by the weight of uncontradicted lay proof that his disability results from and is causally connected to his involvement in his admittedly compensable work related motor vehicle accident

It is, therefore, ORDERED, that the findings of the Commission be substituted for those of the Administrative Judge, that his opinion be reversed, and that the claims of the claimant as against the employer and carrier named herein be, and the same hereby are DISMISSED.

SO ORDERED, this the 21st day of August, 2001.

MISSISSIPPI WORKERS' COMPENSATION COMMISSION

BY:  BEN BARRETT SMITH
BARNEY SCHOBY
LYDIA QUARLES
COMMISSIONERS

ATTEST:
Jo Ann McDonald, Secretary

MWCC NO. 99 02117-G-4897

EDWARD A. STUART                                                                                                                                  CLAIMANT

VS.

JANSSEN PHARMACEUTICALS, INC.,
A DIVISION OF JOHNSON & JOHNSON                                                                                                EMPLOYER

AND

LUMBERMENS MUTUAL CASUALTY CO.                                                                                                CARRIER

REPRESENTING CLAIMANT:
Arthur F. "Skip" Jernigan, Esq.,Jackson, Mississippi
Clyde X. Copeland, III, Esq., Jackson, Mississippi

REPRESENTING THE DEFENDANTS:
Joseph T. Wilkins, III, Esq., Jackson, Mississippi

Edward A. Stuart alleged that an employment-related motor vehicle accident rendered him totally and permanently disabled. Because the Employer (Janssen) denied that the accident caused the injuries claimed by Mr. Stuart, a hearing was held at the Mississippi Workers Compensation Commission Building in Jackson, Mississippi. Considering all of the facts, the Administrative Judge finds that Mr. Stuart is entitled to permanent total disability benefits.

At the hearing the parties stipulated to these facts:
 

1. At the time of the motor vehicle accident on November 7, 1997, Mr. Stuart was acting within the course and scope of his employment;

2. On that date Mr. Stuart's average weekly wage was $1,038.45;

3. Mr. Stuart is permanently and totally disabled from working as a pharmaceutical representative; and,

4. If Mr. Stuart's injuries are job-related, Janssen is entitled to credit for the short-term disability benefits paid to Mr. Stuart.

The parties identified these issues:
 

1. Did the motor vehicle accident on November 7, 1997, cause the injuries alleged in Mr. Stuart's Petition to Controvert; and,

2. If so, is Janssen entitled to credit for the long-term disability benefits paid under the long-term disability reimbursement agreement involving Janssen and Mr. Stuart.

Edward A. Stuart, who was forty-five at the time of the hearing, was hired by Janssen as a pharmaceutical representative in October 1997. Mr. Stuart regarded that new position as the pinnacle of his career and was eager to make a good impression on his employer and supervisors.

On November 7, 1997, a Friday, Mr. Stuart completed two weeks of training in New Jersey. He and a group of other Janssen employees boarded a van to ride to the airport. On the way, however, a drunk driver collided with the van on the driver's side. At the time of the accident, Mr. Stuart was seated behind the driver.

After the wreck, Mr. Stuart continued to the airport in another vehicle and flew to the Jackson airport. On the flight Mr. Stuart noticed a "very mild tenderness" in his middle back, or thoracic region. This tenderness continued after he returned to his home in Brandon.

The next Monday he returned to work. From time to time when the pain intensified, Mr. Stuart took over-the-counter medication. He also mentioned the pain to his wife and son. Mr. Stuart was scheduled to be the best man in a wedding on November 23, 1997, but cancelled because of the back pain.

After the accident Mr. Stuart also began experiencing other health problems. He experienced impotency for the first time and found that urinating took long and longer. (Later Dr. Ron Davis related these difficulties to the accident.)

The pain slowly grew worse after Thanksgiving, and by Christmas Mr. Stuart condition. Since that time Mr. Stuart had undergone steroid therapy, a laminectomy, and a spinal fusion. In addition, he had had implanted two spinal rods, an electronic stimulator, and a pain pump. He also took pain medication.

According to his cross-examination testimony, after arriving in Jackson Mr. Stuart carried all of his luggage from the terminal to his car.

Mr. Stuart denied requesting a room by himself at the training because of insomnia caused by back pain, although his supervisor at the time, Marta Schroeder, so testified in her deposition. He had not had any pain in his middle back before the accident.

If Mr. Stuart had gone though triage at the ER, the history would nave accurately reflected that the severe pain had begun a week earlier.

When Mr. Stuart saw Dr. Fredericks on January 19, 1998, he indicated that his visit did not involve a workers' compensation claim because, at that time, he had not known what workers' compensation was.

After he had missed five days of work,. Mr. Stuart began receiving short-term disability payments.

According to his redirect testimony, Mr. Stuart h~d not been able to drive in over a year. Not counting doctor's appointments, he had been out of the house six times in the last twelve months. He could not do anything to earn money but relied on social security disability benefits, long-term disability payments, and his wife's salary. The 1995 gallbladder problem was not related to his back, and he had not experienced any discomfort in the thoracic area before the accident.

2. Judy Stuart

Judy Stuart's testimony tended to corroborate the testimony of her husband, the Claimant.

3. Emmitt Kelly

Emmitt Kelly's testimony tended to corroborate the Claimant's testimony.

4. Ed Stuart. Jr.

The testimony of Ed Stuart, Jr., tended to corroborate the testimony of his father, the Claimant.

5. John Harris

John Harris's testimony tended to corroborate the Claimant's testimony.

6. Robert F. Ferrin

Robert F. Ferrin's testimony tended to corroborate the Claimant's testimony.

7. Amy Fineman-Gamarra

Amy Fineman-Gamarra became Mr. Stuart's supervisor on January 1, 1998. On January 6, 1998, Mr. Stuart flew to Dallas to meet with her, but she was too ill to keep the appointment. The meeting was not rescheduled.

Around January 14, 1998, Mr. Stuart called her and, in accordance with company policy, reported that he was sick and could not work. Ms. Fineman Garmarra explained to Mr. Stuart that he would begin receiving short-term disability benefits after he had missed five days of work because of illness. In that conversation Mr. Stuart did not mention the accident or workers' compensation.

Later in February 1998 Mr. Stuart informed Ms. Fineman-Gamarra that he had been injured in the November 1997 traffic accident and asked her whether he should be on short-term disability, or worker's compensation, benefits. After six months on short-term disability, Stuart began receiving long-term disability benefits around July 7, 1998.

8. Marta A. Schroeder

Marta A. Schroeder testified through her deposition that she worked for Janssen from May 25, 1992, until July 31, 1998, and was Mr. Stuart's supervisor in 1997.

In December 1997 or January 1998 Mr. Sturt told her about the accident, but he did not say that he had been injured. Later, after Mr. Stuart had been to the emergency room, he informed Ms. Schroeder that the accident might be related to his injury. Ms. Schroeder conveyed that information to Ms. Fineman-Gamarra when Mr. Fineman-Gamarra became Mr. Stuart's supervisor.

In February 1998 Mr. Stuart left Ms. Schroeder a voice mail message inquiring about short-term disability and workers' compensation. Ms. Schroeder responded with a voice message stating that she would forward that inquiry to Mr. Stuart's new
supervisor. Ms. Fineman-Gamarra. which she did.

According to her cross-examination testimony, Ms. Schroeder asked Mr. Stuart during their December 1997 meeting whether anyone had been injured in the accident.  He replied no.

Earlier before going to the training in New Jersey, Mr. Stuart inquired about the possibility of getting a single room because he often had insomnia, which was caused by a painful disc.

9. Eric Lennon

Eric Lennon testified through his deposition that he was a driver for A-1 Limousine, Inc. in New Jersey. In that capacity, he had been instructed to notify the police and call an ambulance whenever a passenger was injured.

On November 7, 1997, Mr. Lennon was driving a ten-passenger Ford Econoline van from the Janssen training center to the Newark Airport. A car sideswiped the van on the driver's side, striking the van just in front of the rear wheel and sliding along the side of the van. The impact did not throw any passengers from their seats. Mr. Lennon disagreed with Mr. Stuart's recollection that the car struck the van just behind the driver.

Mr. Lennon drove the van to the shoulder and stopped. He directed the passengers to leave the van and asked if anyone was injured. All of the passengers replied that they were not.

Mr. Lennon informed his supervisor of the accident, and the supervisor notified the New Jersey State Police. Before the State Policeman arrived, Mr. Stuart requested Mr. Lennon to arrange for another vehicle to take him to the airport.

According to Mr. Lennon's cross-examination testimony, the impact of the crash pushed the van partially, but not entirely, into theadjoining right lane. On redirect Mr. Lennon testified that the impact caused the van to go only a little over the line into the next lane, but the impact was not very hard.

10. Michael Moore

Trooper Michael Moore of the New Jersey State Police testified through his deposition that during his twelve years with the State Police he had received training in accident investigation. When Trooper Moore arrived at the scene of the accident, he inquired if any of the passengers was injured. Only a female passenger indicated that she was hurt. Based on his investigation of the accident, Trooper Moore concluded that the car sideswiped the van on the driver's side.

According to his testimony on cross-examination, Trooper Moore did not recall whether he had asked the passengers, individually or collectively, about whether anyone was injured in the accident.

11. Richard C. Randolph

Dr. Richard C. Randolph testified through his medical records that on June 5, 1995, Mr. Stuart complained that he had had pain the mid left back for two weeks and that he had experienced similar pain about ten years previously.

12. Emergency Room Records

According to the records from the St. Dominics Emergency Room. Mr. Stuart reported that he had had back pain for a week.

13. Thomas P. Mills

Dr. Thomas P. Mills, who was board-certified in gastroenterology and internal medicine, testified through his deposition that he first saw Mr. Stuart on June 7, 1995, for complaints of abdominal pain, interscapular back pain, and possible peptic ulcer, duodenitis, and gall bladder disease. (Dr. Randolph was Mr. Stuart' attending physician.) An upper endoscopy revealed that Mr. Stuart had a duodenal ulcer.

Dr. Mills did not treat Mr. Stuart again until January 14, 1998, when Dr. Mills saw Mr. Stuart during his second trip to the emergency room that day. Mr. Stuart told Dr. Mills that he had experienced severe back pain for a week. After examining Mr. Stuart and performing various tests, including an upper endoscopy, Dr. Mills concluded on January 16, 1998, that Mr. Stuart's back pain was probably neurologic in origin, rather than gastrointestinal. Dr. Mills then referred Mr. Stuart to Dr. Ruth Fredericks, a neurologist, and had not seen Mr. Stuart again. Mr. Stuart never mentioned the motor vehicle accident.

According to Dr. Mills' cross-examination testimony, his reference to interscapular back pain meant pain in the thoracic area between the should blades. After ruling out bacteria, Dr. Mills was not able to pinpoint the cause of Mr. Stuart's 1995 ulcer.

14. Ruth K. Fredericks

Dr. Ruth K. Fredericks, a board-certified neurologist, testified through her deposition that she first saw Mr. Stuart on January 19, 1998. Mr. Stuart reported that he had put off doing anything about his back pain but that the pain had gotten progressively worse over the previous week. Dr. Fredericks did not recall whether Mr. Stuart mentioned any injury to his back.

At that time Mr. Stuart had pain in the mid portion of his back that radiated down his body. He felt electrical shocks in his extremities and his lower extremities were hyper-reflexive, meaning that his legs were so tight that it was hard for him to take big steps. Following various tests, including an MIRI on January 22, 1998, Dr. Fredericks diagnosed Mr. Stuart's condition as a herniated disc and an osteophyte, or bony spur, in the thorac. (An osteophyte develops slowly over time but can cause damage very quickly when it becomes large enough and is pushed into the spinal cord.)

Dr. Fredericks referred Mr. Stuart to Dr. Philip Azordigan, a neurosurgeon. Dr. Fredericks continued to see Mr. Stuart, and after his surgery, he continued to have severe pain in the same portion of his back.

At some point in the treatment Mr. Stuart told Dr. Fredericks about the motor vehicle accident and that he had experienced difficulties in urinating since that time. For that reason Dr. Fredericks referred Mr. Stuart to a urologist.

Dr. Fredericks saw Mr. Stuart for the last time on March 9, 1998. Dr. Fredericks assumed that the event causing Mr. Stuart's condition occurred around the time his pain began, but she did not know what that cause was - whether it was the motor vehicle accident or something else.

On his patient form dated January 19, 1998, Mr. Stuart stated that his condition was not a workers' compensation injury and did not mention the motor vehicle accident.

According to Dr. Fredericks' cross-examination testimony, if Mr. Stuart had felt a tenderness in his back on the flight to Jackson that had increased in intensity until the pain became so intense that he had to go to the emergency room in January 1998, it would be more probable that the motor vehicle accident caused Mr. Stuart's condition.

Both the osteophyte and herniated disc were causing the pain by impinging on a nerve in Mr. Stuart's back. As long as the osteophyte and herniated disc were present but not impinging on the nerve, Mr. Stuart would not have felt any back pain.
Based on Mr. Stuart's medical history. it was reasonable for him to think that he had a peptic ulcer.

In Dr. Fredericks' opinion, it was more likely than not that Mr. Stuart's condition arose within two weeks of when she first saw him.

15. Philip Azordigan

Dr. Philip Azordigan, a board-certified neurosurgeon. testified through his deposition that he first saw Mr. Stuart on January 28, 1998. At the time Mr. Stuart reported that he had severe pain radiating up and down from his middle chest and mid thoracic region, and radiating around his rib cage. (Later Mr. Stuart experienced numbness.)

After reviewing the results of Dr. Fredericks' tests and examining Mr. Stuart, Dr. Azordigan continued Dr. Fredericks' conservative treatment and concluded that Mr. Stuart had a lateral disc rupture.

By February 5, 1998, MRI's of Mr. Stuart's lumbar, cervical, and thoracic areas indicated that he had several bone spurs. On February 19, 1998, Dr. Azordigan operated on Mr. Stuart's back and removed a disc fragment and an osteophyte that were pushing against the T8 T9 nerve root. In Dr. Azordigan 's opinion the disc and the osteophyte combine to produce the pain going around Mr. Stuart's chest, but he was unable to determine when the herniation occurred. Mr. Stuart's other symptoms
continued, but Dr. Azordigan did not locate their cause.

On March 2, 1998, Mr. Stuart told Dr. Azordigan that his condition had started with the motor vehicle accident. On April 27, 1998, Dr. Azordigan advised against further surgery and fixed that day at the date on which Mr. Stuart attained maximum medical improvement following the operation.

When asked whether the motor vehicle accident was the cause ofthe herniated disc, Dr. Azordigan replied, "I think it would be unlikely they were related... .I would expect probably to see some type of symptoms before 60 days after an incidence such as that."¹  He added that he would have expected Mr. Stuart to have experienced considerable pain within a few days of herniating the disc.

According to his cross-examination testimony, Dr. Azordigan stated that, if from the time of the accident Mr. Stuart had felt discomfort that progressively worsened until he went to the emergency room, there would "seem.. .to be a temporal relationship"² between the accident and Mr. Stuart's symptoms.

On redirect Dr. Azordigan testified that, if Mr. Stuart's pain began a week before he went to the emergency room, the cause of that pain probably occurred in January 1998.

16. RonaldD.Davis

Dr. Ronald D. Davis, a board-certified urologist, testified through his deposition that he first saw Mr. Stuart on January 29, 1998. On that date Mr. Stuart reported that he had been in a motor vehicle accident two or three months earlier, had hurt his back, and had experienced difficulty urinating and erectile dysfunction since then. Dr. Davis examined Mr. Stuart and administered various tests but was unable to determine the cause of either urological condition, although the doctor thought that symptoms were probably caused by Mr. Stuart's back condition or an enlarged prostate. Dr. Davis, therefore, began conservative treatment with an alpha blocker medication.

After Mr. Stuart had back surgery, he returned to Dr. Davis on February 20, 1998, with the same complaints. Dr. Davis continued conservative treatment and saw Mr. Stuart again on March 11, 1998. By that time Mr. Stuart's pain had decreased somewhat.

On April 8, 1998, when Mr. Stuart returned to Dr. Davis, the bladder condition was better. Dr. Davis, however, still could not determine the cause of Mr. Stuart's complaints, so Dr. Davis sent Mr. Stuart for a cystoscopy and urodynamics.

Based on the test results, Dr. Davis concluded on May 22, 1998, that Mr. Stuart's condition was most likely related to the thoracic disc herniation but with some benign prostatic hypertrophy, or enlarged prostate, present. On July 8, 1998, when Dr. Davis saw Mr. Stuart again, there was no substantial change in Mr. Stuart's condition.. Mr. Stuart returned to Dr. Davis on October 20, 1999, and January 5, 2000, and was still in chronic pain, but his bladder problem was better.

According to Dr. Davis's cross-examination testimony, Mr. Stuart stated during the first visit on January 29, 1998, that his problems had started after the motor vehicle accident. If the problems began soon after the accident and Mr. Stuart had had no previous symptoms, then in Dr. Davis's opinion it was likely that the accident had caused the symptoms.

17. Bruce S. Senter

Dr. Bruce S. Senter, an orthopedic surgeon specializing in spines, testified through his deposition that he first saw Mr. Stuart on May 19, 1998. At that time Mr. Stuart reported that he had had pain since the accident. The disc surgery had helped, but he still experienced excruciating pain in his back. He added that during the two months following the accident he had developed difficulties in urinating and obtaining an erection.

Dr. Senter reviewed an MIRI from April 1998 and ordered a thoracic discography and a CT scan. Based on the results of those tests, Dr. Senter recommended surgery at the T8-9, T9-l0, and TlO-l 1 levels. Then on June 25, 1998, Dr. Senter performed fusions at those three levels; however, x-rays taken on December 15, 1998, revealed that the fusions had failed. For that reason Dr. Senter inserted rods and hooks in Mr. Stuart's back on January 7, 1999.

Dr. Senter opined that if a person had an accident but experienced no symptoms for two months, it was unlikely that the accident could cause the type of herniated disc experienced by Dr. Stuart.

According to Dr. Senter's cross-examination testimony, a back injury can cause problems in voiding and achieving an erection; Mr. Stuart had annular tears at the T8-9 and T9-lO levels with protruding or herniated discs at the left of each level; and, a person can have an osteophyte for years with no symptoms until the osteophyte impinges on a nerve.

If a person were in a motor vehicle accident and within forty-eight hours experienced problems voiding, sexual dysfunction (and had never had these problems before), and a tenderness in the back, it was more likely than not that the accident had caused a back injury.

Dr. Senter assigned Mr. Stuart a seventeen percent impairment rating to the whole body. Dr. Senter did not have the benefit of a functional capacity examination, so he did not impose any work restrictions on Mr. Stuart.

18. Scott H. McPherson

Dr. Scott H. McPherson, a board-certified radiologist with certifications in the subspecialities of interventional and neuro radiology, testified through his deposition. Dr. Senterreferred Mr. Stuart to him for a discogram and follow-up CT scan. The rests revealed annual tears at T8-9 and T9-10 but no nerve compression.

19. Adam I. Lewis

Dr. Adam I. Lewis, a board-certified neurosurgeon with a subspecialty in cerebral vascular surgery, treated spine injuries and spine conditions, and testified through his deposition. He first saw Mr. Stuart on June 2, 1999, on referral from Dr. Senter for the insertion of an intrathecal morphine pump. At that time Mr. Stuart suffered from chronic pain, left leg weakness and numbness, and difficulties with bladder function and in obtaining an erection.

Dr. Lewis implanted the morphine pump, which was not totally effective. For that reason February 10, 2000, Dr. Lewis inserted a spinal cord stimulator to reduce Mr. Stuart's pain further.

A thoracic disc herniation, such as the one Mr. Stuart had, usually required a large impact, as opposed to happening by itself.

According to Dr. Lewis's cross-examination testimony, Mr. Stuart had arachnoidities, which is an inflammation of the nerve roots that is usually caused by spine surgery or a myelograph.

In general, Dr. Lewis would expect to see symptoms right after a trauma, but the symptoms following a herniated disc can become worse over time. In addition, an annual tear can worsen and later cause a herniated disc. In Mr. Stuart's case, Dr. Lewis did not know what had happened.

20. Robert R. Smith

Dr. Robert R. Smith, a board-certified neurosurgeon, testified through his deposition that, at the request of the Employer/Carrier, he examined Mr. Stuart on December 28, 1999. Mr. Stuart reported that while flying home after the motor vehicle accident, he felt a tenderness between his shoulder blades. The tenderness developed into pain that worsened until finally Mr. Stuart went to the emergency room.

Dr. Smith reviewed Dr. Howard Smith's records, Dr. Azordigan's records and deposition, Ms. Schroeder's deposition, records from St. Dominic's Hospital, Dr. Mills's records and deposition, Dr. Senter's records and deposition, Dr. Fredericks' records, Dr. Finch's records, and Dr. McPherson's discogram and CT scan. Those records revealed a herniated disc at T8 and T9, a bulging disc at TlI and T12, and bone spurring. The bone spur or osteophyte at the T8-9 level was large enough to cause intermittent problems before the accident in November 1997. Based on this review, Dr. Smith believed that the herniation occurred or became worse around the second week in January 1998.

According to his cross-examination testimony, Dr. Smith saw Mr. Stuart only once on December 28, 1999, for about an hour. The instructions to Dr. Smith concerning his examination of Mr. Stuart told him to assume that the history Mr. Stuart gave the emergency room was correct.

If Mr. Stuart experienced discomfort soon after the accident which worsened into pain, then it was more likely than not that the accident contributed to a herniated disc, especially if the disc were abnormal.

On redirect, Dr. Smith testified that based on Dr. Azordigan's notes, he would have expected Mr. Stuart to have sought medical treatment shortly after the herniation occurred.

21. HowardL. Smith

Dr. Howard L. Smith, a board-certified neurosurgeon, testified through his deposition that he was also a certified independent medical examiner. Dr. Smith reviewed Mr. Stuart's medical records and deposition, and the depositions of Dr. Davis, Dr. Senter, Dr. Azordigan, and Ms. Schroeder. Based on that review, Dr. Smith opined that the herniated disc was not related to the November 1997 motor vehicle accident. In Dr. Smith's opinion Mr. Stuart developed an osteophyte at T8-9 over a period of time, perhaps years, that eventually caused his pain. That osteophyte probably caused Mr. Stuart's back pain in 1995. In addition Mr. Stuart suffered from degenerative disc disease in the thoracic region before the accident. The herniated disc probably occurred in January 1998.

22. Betty Boatner

Ms. Betty Boatner, a registered nurse, testified through her deposition that she specialized in pain management through use of the pain pump. Dr. Lewis referred Mr. Stuart to her so that she could assess the pump at Mr. Stuart's home on July 1, 1999. At that time Mr. Stuart described his pain as unbearable. The pump reduced his pain somewhat but not to an acceptable level.

Upon consideration of the pleadings, pretrial statements, stipulations, lay and medical evidence, demeanor of the witnesses at the hearing, and applicable law, the Administrative Judge finds these facts:

1. Edward Stuart, a pharmaceutical representative, was acting within the course and scope of his employment with Janssen when he was involved in a motor vehicle accident on November 7, 1997, as stipulated by the parties. At that time the van in which Mr. Stuart was riding was sideswiped. Although he did not appear to be injured, Mr. Stuart noticed a tenderness in his upper back on the flight home.

2. Over the next several months the pain intensified. Believing that he had an ulcer, Mr. Stuart attempted to treat himself and continue working, although he curtailed other activities. In addition, soon after the accident Mr. Stuart experienced bladder problems and impotence.

3. On January 14, 1998, however, the pain was so great that Mr. Stuart went to the emergency room. The admission records indicated that Mr. Stuart had experienced back pain for a week. In the emergency room Mr. Stuart was treated for an ulcer, sedated, and sent home.

4. Later that day when the sedation wore off, Mr. Stuart returned to the emergency room and was seen by Dr. Thomas P. Mills, a gastroenterologist who had treated Mr. Stuart in 1995 for a duodenal ulcer. (On June 5, 1995, Mr. Stuart complained to Dr. Richard C. Randolph about pain in his mid left back, which he had also experienced in 1989. Dr. Randolph referred him to Dr. Mills. Dr. Mills was not able to determine the cause of Mr. Stuart's ulcer in 1995).

5. Mr. Stuart reported to Dr. Mills that he had experienced severe back pain for a week. After various tests, Dr. Mills ruled out an ulcer and referred Mr. Stuart to Dr. Ruth Fredericks, a neurologist.

6. Dr. Fredericks examined Mr. Stuart on January 19, 1998. Dr. Fredericks concluded that Mr. Stuart had a herniated disc and osteophyte in the thoracic area of the back and referred him to Dr. Philip Azordigan, a neurosurgeon. In the course of the treatment Mr. Stuart told Dr. Fredericks about the accident and that he had experienced difficulties in urinating. For that reason she also referred him to Dr. Ronald Davis, a urologist.

7. In Dr. Fredericks' opinion it was more likely than not that the event that caused Mr. Stuart's back condition had occurred within two weeks of when she first saw Mr. Stuart on January 19, 1998, but she did not know what that event was. If. however, Mr. Stuart had felt tenderness on the flight home that had gradually worsened into intense pain, it was possible that the accident had caused Mr. Stuart's problem.

8. Dr. Azordigan first saw Mr. Stuart on January 28, 1998. On February 19, 1998, Dr. Azordigan removed a disc fragment and an osteophyte from the T8-9 level of Mr. Stuart's back. Although Mr. Stuart told Dr. Azordigan on March 2, 1998, that his condition had started with the accident, Dr. Azordigan was unable to determine when the herniation had occurred.

9. Dr. Azordigan opined that it was unlikely that the accident and Mr. Stuart's condition were related. If Mr. Stuart's pain began about a week before he went to the emergency room, then, in Dr. Azordigan's opinion, the cause of the pain probably occurred in January 1998; however, if Mr. Stuart felt discomfort shortly after the accident that progressively worsened, then the accident and Mr. Stuart's condition were probably connected. Dr. Azordigan concluded that Mr. Stuart attained maximum medical improvement on April 27, 1998.

10. Dr. Davis first saw Mr. Stuart on January 29, 1998. Mr. Stuart reported that he had experienced bladder and erectile difficulties since the accident. After various tests Dr. Davis concluded that the herniated disc and an enlarged prostate probably were related to Mr. Stuart's problems. Dr. Davis opined that if Mr. Stuart's difficulties had begun shortly after the accident, then the accident caused Mr. Stuart's urological symptoms.

11. On May 19, 1998, Mr. Stuart told Dr. Bruce Senter, an orthopedic surgeon, that he had had pain since the accident and that the pain had continued after the surgery. On June 25, 1998, Dr. Senter performed fusions at the T8-9, T9-10, and T10-l 1 levels. Those functions, however, failed, so on January 7, 1999, Dr. Senter inserted rods and hooks in Mr. Stuart's back.

12. Dr. Senter opined that if Mr. Stuart had no symptoms for two months after the accident, it was unlikely that the accident had caused the herniated disc. On the other hand, if Mr. Stuart experienced tenderness in his back, bladder problems, and sexual dysfunction soon after the accident, it was likely that the accident had caused those symptoms.

13. Dr. Senter assigned Mr. Stuart an impairment rating of seventeen percent to the body as a whole but, in the absence of a functional capacity examination, did not impose any work restrictions on Mr. Stuart.

14. Because Mr. Stuart's pain continued, Dr. Adam Lewis, a neurosurgeon. implanted a morphine pump on June 2, 1999, and a spinal cord stimulator on February 10, 2000.

15. At the request of the Employer/Carrier, Dr. Robert Smith, a neurosurgeon, examined Mr. Stuart on December 28, 1999. The Employer/Carrier instructed Dr. Smith to assume that Mr. Stuart had not experienced any back pain until a week before he went to the emergency room on January 14, 1998.

16. Dr. Smith opined that the herniation occurred or was aggravated around the second week in January 1998 and that he would have expected Mr. Stuart to have sought medical care shortly after that occurrence. If, however, Mr. Stuart had felt discomfort soon after the accident, which had intensified into pain, it was more likely than not that there was a connection between the accident and the herniation.

17. At the request of the Employer/Carrier, Dr. Howard L. Smith, a neurosurgeon and certified independent medical examiner, reviewed Mr. Stuart's medical records and a host of depositions. Based on that review Dr. Smith concluded that Mr. Stuart's
herniated disc was not related to the accident and had probably occurred in January 1998.

18. At the time of the hearing Mr. Stuart was still in great pain. He could not drive and was barely able to leave the house. He was totally and permanently disabled from working as a pharmaceutical representative, as stipulated by the parties.

19. At the time of the accident on November 7, 1997, Mr. Stuart's average weekly wage was $1,038.45, as stipulated by the parties.

The central issue in this case is whether Mr. Stuart's condition is work-related, or stated more precisely, whether the motor vehicle accident on November 7, 1997, is causally connected to Mr. Stuart's injury.

Mr. Stuart argues that, although he did not notice an injury immediately following the accident, on the flight home he experienced a tenderness in upper back that gradually worsened into the intense pain that sent him to the emergency room on January 14, 1998. Mr. Stuart adds that shortly after the accident he developed bladder difficulties and impotence, problems that he had not experienced previously. He also contends that the 1995 pain in his mid, not thoracic back, was caused by an ulcer, not an osteophyte.

Janssen responds that Mr. Stuart experienced back pain in 1995, told Marta Schroeder that he had a bad disc, indicated immediately after the injury that he was not hurt, went to work after he returned home, stated in the emergency room on January 14, 1998, that he had felt pain for a week, did not attempt to connect the accident and the injury until some time later, and denied that the injury was a workers' compensation matter.

As to the medical evidence, only one physician, Dr. Howard Smith, definitively ruled out the accident as the cause of Mr. Stuart's injury. Dr. Howard Smith, however, was not a treating physician and did not examine Mr. Stuart.

To summarize, the other doctors who expressed an opinion, opined that if Mr. Stuart first felt pain a week before going to the emergency room, there was no connection with accident; but, if soon after the accident he experienced a discomfort that intensified into pain, and had bladder difficulties and erectile dysfunction, there probably was a causal relationship between the accident and the injury - particularly if Mr. Stuart had not had those symptoms previously.

Suffice it to say that the Administrative Judge found Mr. Stuart to be a very credible witness, accepts his version of events, and finds that there is a causal connection between the accident and Mr. Stuart's injury, which is supported by medical evidence.

Considering all of the facts, the Administrative Judge finds that Mr. Stuart is permanently and totally disabled. The parties stipulated that Mr. Stuart's pre-injury average weekly wage was $1,038.45, which produces a weekly benefit of $692.30; however, that amount must be reduced to the 1997 maximum weekly benefit of $270.67. Accordingly, Mr. Stuart is entitled to permanent total disability benefits of $270.67 a week for 450 weeks from the date of the accident.

The parties stipulated that Janssen is entitled to credit for the short-term disability benefits paid to Mr. Stuart. The question remains, however, of whether Janssen is entitled to credit for the long-term disability benefits paid to Mr. Stuart.

Janssen points out that on April 27, 1998, Mr. Stuart executed a document entitled, "Johnson & Johnson LTD Reimbursement Agreement," General Exhibit 4. That agreement provided that Mr. Stuart's long-term disability benefits would be reduced by the amount of workers' compensation benefits that he received. (The agreement also provided for the long- term benefits to be reduced by the amount of certain other payments, such as Social Security benefits). For that reason Janssen argues that it is entitled to a credit for the long-term disability payments to Mr. Stuart.

Mr. Stuart responds that Janssen is not entitled to a credit because Mr. Stuart paid all of the premiums for the long-term disability policy; and, that the Carrier cannot seek subrogation because the policy is an unconscionable contract of adhesion that is against public policy.

In Siemens Energy & Automation. Inc. v. Pickens, 732 So. 2d 276, 289 (Miss. App. 1999), the Mississippi Court of Appeals held that where the employee "had contributed earned wages to the long-term disability program," the employer was not entitled to credit for the long-term disability benefits paid to the employee. In the present case Mr. Stuart paid all of the premiums for the long-term disability policy, and Janssen contributed nothing.

Accordingly, Janssen is not entitled to a credit for the long-term disability benefits. In addition, pursuant to Miss. Code Ann. Section 71-3-15 (7) (Rev. 2000), Mr. Stuart's workers' compensation benefits are not subject to subrogation by the Carrier. Assuming, arguendo, that there is some legal means by which Janssen may enforce the offset provision of the "Johnson & Johnson LTD Reimbursement Agreement," this workers' compensation proceeding is not the appropriate avenue for doing so.

Finally, Mr. Stuart argues that the Employer and Carrier should be required to reimburse the medical expenses paid by him or his private health insurance carrier before the date of this opinion because Mr. Stuart paid a portion of the premiums for that policy. On the other hand, the Employer argues that it is entitled to a credit for those payments because the insurance was not a private policy but instead was the group health insurance policy provided by the Employer for its employees.

The Employer paid ninety-five percent of the cost for this health insurance policy, and Mr. Stuart paid five percent until he began receiving long-term benefits on July 15, 1998. From that date it appears that the Employer paid all of the premiums.

Under the rationale of Pickens the Employer is not entitled to a credit, and Mr. Stuart is entitled to reimbursement, for all medical expenses incurred before the long term benefit plan became effective on July 15, 1998; but, the Employer is entitled to a credit for the medical expenses incurred and paid under the health insurance policy from that date through the date of this Opinion.

IT IS, THEREFORE, ORDERED AND ADJUDGED that the Employer/Carrier shall pay workers' compensation disability benefits to the Claimant as follows:
 

1. Permanent total disability payments in the amount of $270.67 each week beginning November 7, 1997, and continuing for 450 weeks, with credit to the Employer/Carrier for the short-term disability benefits paid to the Claimant; and,

2. Penalties and interest on any due and unpaid compensation benefits.

IT IS FURTHER ORDERED AND ADJUDGED that the Employer/Carrier shall provide reasonable and necessary medical services and supplies as required by the nature of the Claimant's injury and the process of recovery therefrom, pursuant to Miss. Code Ann. Section 71-3-15 (Rev. 2000), and the Medical Fee Schedule, with credit to the Employer/Carrier for such medical services and supplies provided under the Claimant's health insurance policy from July 15, 1998, through the date of this order.

SO ORDERED this the 7th day of February, 2001.

MARK HENRY
ADMINISTRATIVE JUDGE

ATTEST:
Jo Ann McDonald, Commission Secretary

1 The parties agree that the employer and carrier are entitled to credit for the short term disability benefits paid to the claimant.

2 Opinion of the Administrative Judge issued February 7, 2001, p. 27.

3 ID.

4 There is evidence in the record that the claimant reported to Dr. Robert R. Smith, a neurosurgeon who saw the claimant for an Employer's Medical Evaluation, that he had been impotent since November 8, 1997 and since that time had experienced trouble with voiding. The record does not reflect any other specific time frame that these symptoms would have had onset. The claimant, in his direct testimony, notes that when requested by treating physicians to "think back" to any trauma that might have occurred, he thought of the motor vehicle accident and the fact that at shortly thereafter he began to experience impotence for the first time and sometime thereafter began to experience difficulty attempting to void.
 

5 Opinion of the Administrative Judge issued February 7, 2001, p. 23 (emphasis supplied).

6 Id. (emphasis supplied). Dr. Azordegan testified in Exhibit GEN-9 at pp. 49:

Q: (by Mr. Smith) "Let me ask you this: A patient with a herniated disk at T-8 and T-9 and with the degenerative (sic) that you saw on this man in January of 1998, would you expect that person to experience pain on getting in and out of cars and getting in and out of bed and carrying luggage and that type thing?"

R: "I would have, yes sir.***If you're asking would I have expected him to have some pain before that, what he related the onset, I would have expected some type of pain. It would not necessarily have been severe, but I do think I would have expected some type of pain before that."

And on p. 50:

Q: "On the date of this accident, if he had a herniated disk at T8 and T9 and he is carrying all this luggage around and flying and landing and taking off in an airplane, wouldn't you expect him to have considerable pain-"

R: "Yes, sir.

Q: "-on that date?"

R: "It's more likely than not, yes sir."

Q: "And that's to a reasonable degree of medical probability?"

R: "Yes, sir.

(emphasis supplied)
 

8 Id at p. 25 (emphasis supplied).

9 Id. (emphasis supplied).

10 Deposition of Dr. Philip Azordegan, admitted as exhibit GEN-9, p. 72.

11 Bracey v. Packard Elec., Division of General Motors, 476 So. 2d 48 (Miss. 1985). 12

12 V. Dunn, Mississippi Workers' Compensation, § 268 (3d. ed. 1990).

13 Id. at § 273.

14 Id. at § 32.

15 Hill v. United Timber & Lumber Co.,68 So. 2d 420 (Miss. 1953).

16 482 So. 226 (Miss. 1986).

17 Id., at p. 228.

2 Id., at72.