                    IN THE COURT OF APPEALS 5/6/97
                                   OF THE
                            STATE OF MISSISSIPPI
                              NO. 96-CC-00525 COA



DELTA PRIDE CATFISH PROCESSORS, INC.

APPELLANT

v.

WILLIE T. TRAYLOR

APPELLEE



            THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND

                MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B



TRIAL JUDGE: HON. GRAY EVANS

COURT FROM WHICH APPEALED: SUNFLOWER COUNTY CIRCUIT COURT

ATTORNEYS FOR APPELLANT:

JOHN S. GONZALEZ

AMY S. HUDSON

ATTORNEY FOR APPELLEE:

KENNETH S. WOMACK

NATURE OF THE CASE: WORKERS’ COMPENSATION

TRIAL COURT DISPOSITION: REVERSED COMMISSION’S FINDING OF NO PERMANENT
AND TOTAL DISABILITY



CERTIORARI FILED: 7/29/97
MANDATE ISSUED: 10/9/97

BEFORE BRIDGES, C.J., HERRING, AND PAYNE, JJ.

BRIDGES, C.J., FOR THE COURT:



Willie Traylor (Traylor) was injured on the job during his employment with Delta Pride Catfish
Processors, Inc. (employer) on September 24, 1992. Traylor refused to submit to a medical
examination at the employer’s request. The employer filed its notice of conversion on April 15, 1993.
On April 27, 1993, Traylor filed his petition to controvert. The employer admitted the alleged injury
and alleged that Traylor’s average weekly wage at the time of the injury was $172.00. While
admitting to limited temporary total disability, the employer denied that Traylor was permanently
disabled or sustained any loss of wage earning capacity. The Administrative Law Judge (ALJ) found
that Traylor had suffered a compensable injury on September 24, 1992, and the employer had
assumed responsibility for that injury by in effect paying temporary total disability from September
25, 1992 to September 30, 1993, as well as permanent partial disability from September 30, 1993 to
September 1994. The ALJ denied any additional benefits, and the Workers’ Compensation
Commission (Commission) affirmed the ALJ’s order. The Circuit Court of Sunflower County
reversed the decision of the Commission and found that Traylor was entitled to permanent and total
disability. On appeal, the employer presents the following issues:

          1. WHETHER THE CIRCUIT COURT OF SUNFLOWER COUNTY, MISSISSIPPI
          ERRED IN REVERSING THE ORDERS OF THE ADMINISTRATIVE LAW JUDGE
          AND THE FULL COMMISSION OF THE MISSISSIPPI WORKERS’
          COMPENSATION COMMISSION.

           2. WHETHER THE CIRCUIT COURT OF SUNFLOWER COUNTY, MISSISSIPPI
          ERRED IN REVERSING THE FULL COMMISSION’S ORDER SINCE THERE WAS
          SUBSTANTIAL EVIDENCE TO SUPPORT THE COMMISSION’S FINDING THAT
          THE CLAIMANT FAILED TO ESTABLISH ANY LOSS OF WAGE EARNING
          CAPACITY.



          3. WHETHER THE CIRCUIT COURT OF SUNFLOWER COUNTY, MISSISSIPPI
          ERRED IN SUPPLANTING THE COURT’S OWN FINDING OF FACT AND
          AWARDING CLAIMANT PERMANENT DISABILITY BENEFITS WHEN THE
          COMMISSION FOUND THAT THE SUBSTANTIAL WEIGHT OF THE EVIDENCE
          WAS AGAINST ANY AWARD OF BENEFITS TO CLAIMANT.



FACTS

Willie T. Traylor (Traylor) was a forty-nine year old plant worker at Delta Pride Catfish Processing
Plant (hereinafter "employer") in Indianola, Mississippi, when he suffered an injury to his back. On
September 24, 1992, Traylor was struck in the back by a forklift while working "stack-off" duty at
the conveyor line. He was treated at the Hull Brothers Clinic, and eighteen days later was referred to
Dr. Alexandre Solomon, a neurosurgeon in Traylor’s hometown of Greenville. Dr. Solomon
performed surgery on Traylor for a ruptured disk, and continued to treat him for post-operative pain.
A second myelogram was performed to determine the source of Traylor’s pain, but the test came
back negative. A functional capacity evaluation was performed on Traylor. He scored a 13 out of a
possible 16, which indicated that he was greatly magnifying his symptoms in addition to putting forth
little effort. Dr. Solomon designated February 1, 1994 as Traylor’s date of maximum medical
recovery, and although he could not find an objective neurological deficit in Traylor, gave him a 10%
permanent anatomical impairment rating. As a result of Traylor’s score on the functional capacity
test, and because he could not find an explanation of the post-operative pain, Dr. Solomon declared
that he could no longer be objective in his treatment of Traylor. The employer sent Traylor to
orthopedic surgeon Dr. Daniel Dare.

Dr. Dare noted that Traylor used a cane to walk into his office (although Dr. Solomon could not
remember prescribing the use of a cane), and again when he left the office, but during his
examination, Traylor did not need the cane to move about the examining room. Dr. Dare also stated
that Traylor exhibited responses and indications of pain and numbness that did not correspond to any
known anatomical patterns. Traylor told Dr. Dare on three different occasions that he did not have
any previous back injuries. However, on cross examination, Traylor admitted to having a previous
back injury. In May 1993, Dr. Dare performed another functional capacity test on Traylor. Again,
Traylor’s scores indicated that he was malingering and exerting little effort in taking the test. Dr.
Dare’s impression of Traylor was that he exhibited extreme symptom magnification. In other words,
as Dr. Dare testified, he thought Traylor was a con man. Moreover, Dare did not believe that the
injury for which Traylor had been treated could have been caused by the forklift accident, but rather
could only have been caused by heavy lifting or a tremendous blow like that from an automobile. Dr.
Dare found Traylor’s maximum medical recovery to be on April 6, 1993, and found a permanent
partial disability rating of 8% with no physical limitations.

The Commission, the finder of fact, found that Traylor had not proved a loss of wage earning
capacity. At the hearing, Traylor stated that he contacted Delta Pride after his accident, and he was
told to come to the office with his paperwork and they would see what they could find for him.
However, Traylor never went back to Delta Pride with his paperwork to follow up on the
employment opportunity. Traylor testified that he began his subsequent job search on June 24, 1994
and ceased on July 18, 1994, less than one month of job seeking. Traylor stated that he checked with
28 potential employers.

Sam Cox, a vocational expert testified that there were at least five employers accepting applications
for work that Traylor was qualified to do. Additionally, a video tape was admitted showing Traylor
doing the following: walking without his cane except when visiting his doctor or his lawyer; lifting a
case of soft drinks without assistance; carrying a vacuum cleaner into a store; and cleaning his car.

At the hearing before the ALJ, the following findings of fact were made:

           1. Claimant suffered an injury on September 24, 1992 while in the employ of Delta Pride
           for which the employer assumed at the time responsibility and in effect paid benefits in the
          amounts of temporary total disability benefits which were paid from September 25, 1992
          to September 30, 1993, at the rate of $114.67 per week with a subsequent period of
          permanent partial disability benefits paid to this claimant from September 30, 1993 to
          September, 1994, in a total amount of $11,250.00;

           2. The claimant achieved maximum medical improvement on April 6, 1993, the date
          herein designated as the maximum medical improvement date of the claimant by Dr.
          Daniel Dare;

           3. The average weekly wage of the claimant is determined to be $172.00 per week;

           4. The claimant has, as a result of the event which occurred on September 24, 1992,
          suffered a 8%-10% permanent partial disability as conferred on him by two separate
          physicians as a result of his injury and the subsequent surgery which was performed on
          him;

           5. The claimant has not suffered any loss of wage earning capacity as substantiated by the
          evidence submitted herein, the totality of the circumstances and the indication that this
          claimant was not forthright in his appearance before the Commission as regards prior
          injuries, prior lawsuits, and his present condition;

           6. The amendment by the employer and carrier in their Answer to the Petition
          subsequently denying compensability in this cause is warranted and is hereby upheld.

The full Commission affirmed the ALJ, but the Sunflower County Circuit Court reversed, finding that
a compensable injury and permanent medical disability was established, as well as claimant’s
demonstrated reasonable effort to return to work.

          1. WHETHER THE CIRCUIT COURT OF SUNFLOWER COUNTY, MISSISSIPPI
          ERRED IN REVERSING THE ORDERS OF THE ADMINISTRATIVE LAW JUDGE
          AND THE FULL COMMISSION OF THE MISSISSIPPI WORKERS’
          COMPENSATION COMMISSION.

           2. WHETHER THE CIRCUIT COURT OF SUNFLOWER COUNTY, MISSISSIPPI
          ERRED IN REVERSING THE FULL COMMISSION’S ORDER SINCE THERE WAS
          SUBSTANTIAL EVIDENCE TO SUPPORT THE COMMISSION’S FINDING THAT
          THE CLAIMANT FAILED TO ESTABLISH ANY LOSS OF WAGE EARNING
          CAPACITY.

           3. WHETHER THE CIRCUIT COURT OF SUNFLOWER COUNTY, MISSISSIPPI
          ERRED IN SUPPLANTING THE COURT’S OWN FINDING OF FACT AND
          AWARDING CLAIMANT PERMANENT DISABILITY BENEFITS WHEN THE
          COMMISSION FOUND THAT THE SUBSTANTIAL WEIGHT OF THE EVIDENCE
          WAS AGAINST ANY AWARD OF BENEFITS TO CLAIMANT.

We will address all the issues raised by the employer together. The standard of review for appellate
review of compensation claims is narrow at best. It is well settled that "[t]he Commission is the
ultimate fact-finder." Hardin’s Bakeries v. Dependent of Harrell, 566 So. 2d 1261, 1264 (Miss.
1990). "Accordingly, the Commission may accept or reject an administrative judge’s findings." Id. In
the case sub judice, the commission affirmed the ALJ’s rejection of permanent total disability after
studying the record testimony of Traylor’s doctors and the applicable law. Our standard of review is
set forth in Delta CMI v. Speck:

           Under settled precedent, courts may not hear evidence in compensation cases. Rather,
           their scope of review is limited to a determination of whether or not the decision of the
           commission is supported by the substantial evidence. If so, the decision of the commission
           should be upheld. The circuit courts act as intermediate courts of appeal. The Supreme
           Court, as the circuit courts, acts as a court of review and is prohibited from hearing
           evidence or otherwise evaluating evidence and determining facts; . . . "[W]hile appeals to
           the Supreme Court are technically from the decision of the Circuit Court, the decision of
           the commission is that which is actually under review for all practical purposes."

           As stated, the substantial evidence rule serves as the basis for appellate review of the
           commission’s order. Indeed, the substantial evidence rule in workers’ compensation cases
           is well established in our law. Substantial evidence, though not easily defined, means
           something more than a "mere scintilla" of evidence, and that it does not rise to the level of
           "a preponderance of the evidence." It may be said that it "means such relevant evidence as
           reasonable minds might accept as adequate to support a conclusion. Substantial evidence
           means evidence which is substantial, that is, affording a substantial basis of fact from
           which the fact in issue can be reasonably inferred."

Delta CMI v. Speck, 586 So. 2d 768, 772-73 (Miss. 1991) (citations omitted). "This Court will
reverse an order of the Workers’ Compensation Commission only where such order is clearly
erroneous and contrary to the overwhelming weight of the evidence." Mitchell Buick, Pontiac &
Equip. Co. v. Cash, 592 So. 2d 978, 980 (Miss. 1991) (citations omitted).

Under this standard, this Court must determine whether there was substantial evidence of Traylor’s
failure to prove loss of wage earning capacity or proof that the employer successfully overcame any
proof of loss of wage earning capacity to show that any attempt to secure other employment was
simply a sham.

I. The Circuit Court Exceeded Its Authority Under Their Scope Of Review

"On appeal to the Circuit Court, that court cannot pass upon the weight of the evidence where
sufficient as a matter of law or act as an original fact finding tribunal." Morris v. Lansdell’s Frame
Company, 547 So. 2d 782, 784 (Miss. 1989). If the Commission’s order is supported by substantial
evidence, the circuit court is bound by the order. The Commission is the finder of fact, and not the
circuit court, court of appeals, or the supreme court. In Traylor’s case, the Sunflower County Circuit
Court made findings of fact and reversed the Commission’s order. After reviewing the record, we are
satisfied that the Commission’s order was undergirded by substantial evidence, and the circuit court
erred in reversing.

II. Claimant Was Not Entitled To Disability Benefits

Both Drs. Solomon and Dare doubted the sincerity of Traylor’s long lasting symptoms and pain
following his disk surgery. Both doctors performed functional capacity examinations, and the results
from both tests indicated that Traylor was magnifying his symptoms and exerting very little effort in
taking the test. Dr. Solomon eventually had to cease treating Traylor because he could no longer
form an objective opinion about his pain and symptoms. Additionally, Dr. Dare stated that the kind of
pain experienced by Traylor and necessitating the disk surgery performed by Dr. Solomon was far
greater than what would have been caused by the injury reported. Although Traylor repeatedly told
Dr. Dare that he had no previous back injury, he later confessed on cross-examination that he had
injured his back on a prior job.

Traylor’s deceitfulness was further evidenced by Dr. Dare’s testimony that he observed Traylor using
a cane to enter and exit his office, but while in the examining room, could move about freely. Even
more damning is the videotape of Traylor doing all kinds of activities that he testified he could not do
because of the debilitating pain: walking without his cane except when visiting his doctor or his
lawyer; lifting a case of soft drinks without assistance; carrying a vacuum cleaner into a store; and
cleaning his car.

The ALJ and the Commission held that Traylor did not prove the connection between the injury at
the plant and his resulting pain. Therefore, he was disallowed disability. The circuit court erred in
reversing the decision of the Commission. The Commission is the finder of fact and the best to judge
the credibility of the evidence and witnesses.

III. Claimant Failed To Prove Loss Of Wage Earning Capacity

It was Traylor’s burden to show that his medical impairment resulted in a loss of wage earning
capacity. While Traylor did testify that he went to 28 different employers inquiring about a job, his
testimony was rebutted, and his attempts at securing a job were shown to be a sham. Several of the
employers Traylor spoke with were not even hiring. Moreover, he was told at Delta Pride to bring in
his social security card and other paperwork and they would see what they could do for him. He was
told that he could not return to his previous job because it had been phased out. However, Traylor
never went back to Delta Pride to see what employment was available for him there.

Dr. Dare stated that Traylor did not have any restrictions or limitations which would render him
unable to retun to work. Samuel Cox (Cox), a vocational specialist, testified that several businesses in
Greenville had job openings with rates of pay that would have cost Traylor no loss of wage earning
capacity. Moreover, Cox testified that Traylor would have been able to maintain the positions and
fufill the duties required. The videotape evidenced Traylor’s ability to lift, bend carry and walk
unaided.

Traylor failed to prove any loss of wage earning capacity. Additionally, the employer proved that
Traylor had been dishonest about past work injuries, his physical limitations and the extent of his
alleged disability. The Commission’s order was supported by substantial evidence, and the circuit
court was without authority to reverse. The judgment of the circuit court is reversed and the order of
the Commision is reinstated.

THE JUDGMENT OF THE SUNFLOWER COUNTY CIRCUIT COURT IS REVERSED
AND THE ORDER OF THE WORKER’S COMPENSATION COMMISSION FINDING
CLAIMANT NOT ENTITLED TO DISABILITY IS REINSTATED. COSTS ARE TAXED
TO APPELLEE.



McMILLIN AND THOMAS, P.JJ., COLEMAN, DIAZ, HERRING, KING, PAYNE, AND
SOUTHWICK, JJ., CONCUR. HINKEBEIN, J., NOT PARTICIPATING.
