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IN THE COURT OF APPEALS 10/29/96 OF THE STATE OF MISSISSIPPI
NO. 93-CC-00239 COA

GILBERT BAKER, JR. APPELLANT v. CITY OF HOLLANDALE - EMPLOYER; MISSISSIPPI MUNICIPAL WORKERS COMPENSATION GROUP - CARRIER APPELLEES

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B

TRIAL JUDGE: HON. HOWARD Q. DAVIS, JR. COURT FROM WHICH APPEALED: WASHINGTON COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: ALSEE MCDANIEL ATTORNEY FOR APPELLEES: ROBERT M. CARPENTER NATURE OF THE CASE: ADMINISTRATIVE TRIAL COURT DISPOSITION: AFFIRMED DECISION OF WORKERS' COMPENSATION COMMISSION DENYING BENEFITS

BEFORE FRAISER, C.J., KING, AND PAYNE, JJ. FRAISER, C.J., FOR THE COURT:

Appellant, Gilbert Baker (Baker), a former police officer with the City of Hollandale Police Department, was allegedly injured in a scuffle with a suspect while in the line of duty. Baker claims he sustained injuries to his head, neck, back, shoulders, arms, and vision. He filed a petition to controvert on October 15, 1991, alleging temporary total disability. The final judgment of Administrative Law Judge Higginbotham (ALJ) stated that medical evidence failed to establish any injury related to Baker's work. The Worker's Compensation Commission (commission) affirmed the order of the ALJ. Subsequently, Baker filed a motion to reconsider and supplement the record. His motion was denied, and Baker appealed the commission's decision to the Washington County Circuit Court. The circuit court affirmed the commission's decision. On appeal to this Court, Baker presents the following issues: I. WHETHER THE COMMISSION COMMITTED ERROR IN DENYING APPELLANT'S MOTION FOR RECONSIDERATION AND TO SUPPLEMENT RECORD.

II. WHETHER THE COMMISSION'S ORDER AND DECISION ARE SUPPORTED BY SUBSTANTIAL EVIDENCE IN THE RECORD.

These issues being meritless, we affirm. FACTS Baker alleged he was injured on the job while apprehending a suspect. He claims he hit his head on an air conditioning unit and sustained injuries to his eye, head, back, and arms. The alleged injury occurred on April 15, 1991; however, Baker did not seek medical attention until June 1991. Baker filed his petition to controvert in October 1991, alleging temporary total disability. Evidentiary hearings were held in January and March 1992. During that time, Baker went through two competent attorneys and ultimately chose to represent himself at the final hearing on April 3, 1992. During the entire process leading up to the final hearing, the ALJ attempted to assist Baker in understanding the commission rules and procedures, despite Baker's sometimes garrulous and unpleasant disposition towards the ALJ and the commission. Baker, a veteran with full access to the Veteran's Hospital in Jackson, refused to take advantage of his free medical care because he insisted that he wanted his employer to pay for it. In addition to Baker's sworn testimony, the following documents were received into evidence: 1) affidavit of Dr. John M. Estess; 2) sworn medical report of Dr. Edwin G. Egger; 3) sworn medical statement of Dr. J. Edward Hill; 4) affidavit of Dr. John W. McFadden; 5) sworn medical statement of Dr. Edwin G. Egger, dated May 8, 1992; and 6) sworn medical report of Dr. John C. Neill, dated April 14, 1992. Baker complains that the last two documents received into evidence after the April 2, 1992 hearing were admitted contrary to the authority of Georgia-Pacific Corp. v. McLaurin, 370 So.

2d 1359 (Miss. 1979). Also admitted into evidence were letters the ALJ sent to the parties on April 20 and May 1, 1992, illustrating the hearing procedures adopted at Baker's request. The following is an excerpt from the ALJ's evaluation of evidence and findings of fact: The record consists of the claimant's sworn testimony of April 3, 1992, the aforementioned medical testimony by Affidavit, and other documents received on behalf of claimant on April 3, 1992. Claimant testified that he struck his head against an air conditioner on April 15, 1991. Claimant at first denied being struck in the eye, and then stated that he was poked in the eye by the finger of an assailant. Based upon a history that claimant "struck an air conditioner," Dr. McFadden, a pain specialist, testified that claimant suffered injuries to his neck, back, shoulder, arm, wrist and eye as a result of that incident. Not only does this appear to be inherently improbable, but Dr. McFadden's opinions are also contradicted by Dr. John Neill, a neurologist, who received a much more detailed history from claimant and even then found no physical abnormalities to account for claimant's myriad complaints. Dr. Egger found that claimant suffered an impairment of vision in his left eye as a result of a macular hole in that eye. Dr. Egger stated that he could not find to a reasonable degree of medical probability that this condition resulted from claimant being struck on the side of the head on April 15, 1991. Dr. Egger did not note a history of claimant having been poked in the eye by his assailant's finger, and thus rendered no opinion on any relationship between such an event and claimant's macular hole. The concern evidenced by Dr. Estess that claimant may have suffered an injury to the cervical spine is dispelled by the examination and findings of Dr. Neill. Dr. Hill's Affidavit testimony speaks only to whether claimant's complaints were being caused by degenerative arthritis. I do not find this evidence to be relevant in light of the Affidavit testimony of Dr. Neill. The evidence demonstrates that claimant's accident occurred on April 15, 1991. Claimant told Dr. Neill that he lost consciousness at that time. Claimant variously told physicians that his symptoms commenced on April 15, 1991; and that they developed "at some time" afterward. However, the record does not disclose that claimant sought any medical treatment until June 11, 1991. I hereby find that the credible medical evidence fails to establish on the basis of reasonable medical probabilities that claimant suffered any injury as a result of his accident of April 15, 1991 for which medical or disability compensation benefits are due.

The ALJ's order was affirmed by the full commission on September 2, 1992. Baker filed a motion to reconsider and supplement the record that was denied by the commission on October 29, 1992. The Washington County Circuit Court affirmed the commission's decision affirming the ALJ's order denying benefits. I. WHETHER THE COMMISSION COMMITTED ERROR IN DENYING APPELLANT'S MOTION FOR RECONSIDERATION AND TO SUPPLEMENT RECORD.

Baker contends that the commission erred in refusing to reopen his case. He had filed a motion to reconsider and supplement the record, but on appeal relies on case law pertaining to reopening a case as opposed to reconsidering a case. This Court is satisfied that Baker's motion to reconsider and supplement the record was an attempt to reopen his case, and we consider it accordingly. Baker is correct in stating that the commission may reopen a case when there is a change in conditions or because of a mistake in the determination of fact. Georgia-Pacific Corp. v. Gregory, 589 So. 2d 1250, 1254 (Miss. 1991); see also Miss. Code Ann.

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