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.