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IN THE COURT OF APPEALS 09/17/96 OF THE STATE OF MISSISSIPPI
NO. 95-CC-00476 COA

JACKSON INDUSTRIAL UNIFORM SERVICE COMPANY, INC. AND MISSISSIPPI MANUFACTURERS' ASSOCIATION WORKERS' COMPENSATION GROUP AND ADJUSTCO, INC. APPELLANTS v. MARASCALCO DISTRIBUTING COMPANY, INC. AND MISSISSIPPI UNITED BUSINESS ASSOCIATION SELF-INSURED GROUP AND WARREN CHRISTOPHER CLARK APPELLEES

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

TRIAL JUDGE: HON. JOSEPH H. LOPER, JR. COURT FROM WHICH APPEALED: CIRCUIT COURT OF GRENADA COUNTY ATTORNEY FOR APPELLANTS: M. CHRISTINE CROCKETT, J. RANDALL PATTERSON, AND KEITH R. RAULSTON ATTORNEY FOR APPELLEES: RICHARD C. COKER, PATRICK S. WOOTEN, AND A. E. (GENE) HARLOW, SR. NATURE OF THE CASE: WORKERS' COMPENSATION TRIAL COURT DISPOSITION: REVERSED THE DECISION OF THE COMMISSION

BEFORE BRIDGES, P.J., BARBER, AND MCMILLIN, JJ. BARBER, J., FOR THE COURT:

Warren C. Clark filed petitions with the Mississippi Workers' Compensation Commission (commission) to controvert the denial of coverage by two of his former employers, Jackson Industrial Uniform Service Company, Inc. (Jackson Industrial) and Marascalco Distributing Company, Inc. (Marascalco). Because of common questions of law and fact these petitions were consolidated by the commission's administrative law judge. The administrative law judge determined that Clark had, in fact, incurred two separate work-related injuries. He ordered that those benefits arising out of the prior injury at Jackson Industrial be paid by that employer, and that the indicated surgery and temporary total disability benefits arising out of the subsequent aggravating injury at Marascalco be paid by that employer. Marascalco petitioned the commission for review. On petition for review to the full commission, the commission adopted the administrative law judge's findings and affirmed his order. The commission's order was appealed to the Circuit Court of Grenada County, which resulted in the reversal of the commission's order. The circuit court held that Clark's injuries arose solely out of his employment with Jackson Industrial. The appeal to this Court from the Circuit Court of Grenada County has been taken by Jackson Industrial and its workers' compensation insurance carrier. Opposing Jackson Industrial are the claimant, Clark, Marascalco, and its self-insurance carrier. FACTS Charles Clark worked as a delivery truck driver for Jackson Industrial from July 1987 to May 1992. Clark's responsibilities included the delivery and pickup of textile items and uniforms from customers of his employer. Clark's job required him to lift 100-pound bags of clothes on a daily basis and work approximately sixty hours per week. On January 13, 1992, Clark was making a delivery to the University of Mississippi Physical Plant in Oxford. While climbing the steps to get into his truck, Clark's feet slipped from under him causing him to fall backward, landing on his back with his head hanging out the door of the delivery truck. Clark testified that the fall immediately caused a sharp pain in his back and that he lay on the floor of the delivery truck for fifteen minutes after the fall, being unable to get up. Eventually Clark was able to get into the driver's seat of his truck and complete his delivery schedule. Upon completion of his route, Jackson Industrial ordered Clark to report to the emergency room at Grenada Lake Medical Center, where he was hospitalized for approximately one week. Clark's physicians diagnosed him as having a herniated disc in his back and that the injury could be treated by either steroid blockage or surgery although only surgery could actually cure the injury. Clark opted for the more conservative treatment, steroid blockage, which was administered in March of 1992. After the steroid treatment, Clark reported that most of his pain had dissipated and that he was moving easier. At Clark's request, his surgeon issued a medical release in April of 1992 allowing Clark to return to Jackson Industrial where he continued to work until May of 1992. In May of 1992 Clark left his job at Jackson Industrial and took a position as a delivery truck driver for Marascalco, which involved very little heavy lifting and a shorter work week. On August 9, 1992,

Clark awoke early in the morning with extreme pain in his back and numbness in his right leg. This was after having worked for Marascalco the previous day during which time he engaged in heavy lifting. Clark sought medical treatment for his pain and was informed by his surgeon, Dr. Rodney G. Olinger, that surgery would be required in order to correct the herniated disc. This was the same disc that had been injured in January of 1992 during Clark's employment with Jackson Industrial. Clark filed a petition to controvert against Jackson Industrial in September of 1992 after his former employer refused to pay for the surgery. Additionally, in March of 1993 Clark filed a petition to controvert his claim against Marascalco for surgical payments. Clark has yet to undergo the surgery, although Dr. Olinger has indicated that he will do everything possible to obtain neurosurgical treatment for Clark, either in Memphis or Jackson. Although Clark continued to work at Marascalco for two months after the August incident, he was only able to perform very light work, and was relieved from his duties as a delivery truck driver. Clark left Marascalco in October of 1992 and has not been employed since that time. ISSUES I. WHETHER THE CIRCUIT COURT OF GRENADA COUNTY ERRED IN FAILING TO AFFIRM THE DECISION OF THE MISSISSIPPI WORKERS' COMPENSATION COMMISSION.

II. WHETHER THE FACTUAL FINDINGS OF THE MISSISSIPPI WORKERS' COMPENSATION COMMISSION ARE SUPPORTED BY SUBSTANTIAL CREDIBLE EVIDENCE.

STANDARD OF REVIEW The standard of review utilized by this Court when considering an appeal of a decision of the Workers' Compensation Commission is well settled. "[W]hile appeals to the [s]upreme [c]ourt are technically from the decision of the [c]ircuit [c]ourt, the decision of the [c]ommission is that which is actually under review for all practical purposes." Delta CMI v. Speck, 586 So. 2d 768, 773 (Miss. 1991) (quoting Vardaman S. Dunn, Mississippi Workers' Compensation

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