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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 96-CC-00763 COA KENNETH GRANT v. UNITED PARCEL SERVICE AND LIBERTY MUTUAL INSURANCE COMPANY APPELLANT APPELLEES

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B DATE OF JUDGMENT: TRIAL JUDGE: COURT FROM WHICH APPEALED: ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEES: NATURE OF THE CASE: TRIAL COURT DISPOSITION: 6/7/96 HON. ROBERT GIBBS HINDS COUNTY CIRCUIT COURT KENNETH WATKINS BENJAMIN U. BOWDEN CIVIL - WORKER'S COMPENSATION DENIED COMPENSABLE BENEFITS OTHER THAT TEMPORARY TOTAL DISABILITY FROM JULY 21, 1992 TO AUGUST 18, 1992, AND FOUND NO LOSS OF WAGE EARNING CAPACITY. AFFIRMED - 9/23/97

DISPOSITION: MOTION FOR REHEARING FILED: CERTIORARI FILED: MANDATE ISSUED:

10/14/97

BEFORE BRIDGES, C.J., COLEMAN, AND PAYNE, JJ. PAYNE, J., FOR THE COURT: PROCEDURAL HISTORY The claimant filed his Petition to Controvert on November 10, 1993, against United Parcel Service and Liberty Mutual Insurance Company. The administrative law judge denied any compensable benefits to the claimant outside temporary total disability from July 21, 1992, to August 18, 1992. The administrative law judge found no loss of wage earning capacity. The Mississippi Workers

Compensation Commission (Commission) affirmed the administrative law judge's order, and the circuit court affirmed the Commission. Grant now appeals the circuit court's affirmance of the Commission. We find that substantial evidence existed to support the previous findings, and that the Commission's decision was not arbitrary or capricious. We therefore affirm the Commission's decisions and the circuit court's affirmance.FACTS Kenneth Grant was injured in a work related accident. The brakes of his truck failed while in the service of his employer, United Parcel Service "UPS". At the time of the accident, he was earning an average weekly wage of $708. 80. His knees, neck, and left shoulder were injured. The claimant first sought treatment from Dr. Hale Byrd in Jackson, Mississippi, on July 16, 1992. Byrd limited the claimant's physical duties to the performance of light duty jobs and to the lifting of twenty pounds or less. The claimant returned to work at UPS shortly thereafter, on light duty status. Soon after he resumed driving, his condition intensified, and he again visited Dr. Byrd. Subsequently, the claimant voluntarily quit his job and moved to Houston, Texas. The claimant found work at a church within the Houston metro area, earning roughly $350 to $400 dollars per week after he was first employed in October, 1992, and then $450 per week from October, 1993, forward. This work does not entail any heavy lifting or bending. For the four month period between August and November 1992, there is no indication that Grant received any medical treatment. The claimant did start seeing Dr. Jack Pennington, an orthopedic surgeon, in the Houston area for treatment purposes beginning December 21, 1992. UPS referred the claimant to Dr. Pennington, who treated the claimant for a period of about a year and a half. On January 25, 1993, Dr. Pennington reviewed the results of a cervical MRI and left knee MRI performed at Herman Hospital in Houston, Texas, on January 7, 1993. These results revealed small spur formations at C3-4, C4-5, C5-6, and C6-7 on the left. It was also Dr. Pennington's opinion that the MRI of the claimant's left knee revealed an abnormality of the articular cartilage of the medial femoral condyles, suggesting some degenerative changes. Pennington treated the claimant until the claimant reached maximum medical recovery on March 10, 1994. Pennington gave him an eighteen percent whole body impairment due to his on the job injuries. More specifically, Pennington gave the claimant a five percent impairment to his lower extremity and a seventeen percent impairment loss of range of motion of the neck. Dr. Pennington opined that there was no objective evidence of impairment of the right knee or the lower back as a result of the accident, nor could he say with certainty that the accident caused the condition to the claimant's left knee. There is no evidence that Dr. Pennington placed any final restrictions on the claimant. However, Pennington did recommend the claimant undergo physical therapy for his neck and left knee and use Tylenol as needed. The employer/carrier later instructed the claimant to see Dr. Terry Millette, a neurologist in Pascagoula, Mississippi. The claimant's medical examination took place on May 10, 1994. Dr. Millette testified that although he did not see the claimant until May 10, 1994, he believed that the claimant had reached maximum medical recovery six to eight months following the injury. Dr. Millette also noted that after reading the UPS feeder driver job description, the claimant would be able to perform his duties as a feeder driver, so long as the claimant did not lift any items exceeding the weight restrictions he had placed on the claimant. Dr. Millette testified that he reviewed the records of Dr. Byrd and Dr. Pennington and the results of the diagnostic studies. Combining those

evaluations with his own, he opined that the claimant was neurologically normal, was not experiencing any permanent partial impairment, and assigned specific restrictions to the claimant. Dr. Millette further stated that the claimant had no disability rating, but did state that the claimant should not lift over seventy-five pounds. On October 26, 1994, a hearing on issues derived from this accident was held. Testifying in support of the employer and carrier's case was James Lott, the health and safety manager with UPS, and David Martin, the claimant's supervisor with UPS. David Martin testified that following the claimant's return to work, the claimant underwent post accident classroom instruction. Martin also testified that upon the claimant's return, the claimant received his full pay. James Lott, a certified tractor/trailor trainer and health and safety manager for UPS testified that he remained in contact with the claimant following the accident and until the claimant quit his employment with UPS on August 19, 1992. During this period of time the claimant informed Lott that he (claimant) was looking for a job in Texas because his wife had taken a job there. After considering all of the evidence, the administrative law judge entered an order granting the claimant all reasonable medical expenses. Also the administrative law judge granted the claimant temporary total disability beginning July 22, 1992, through August 18, 1992. ARGUMENT AND DISCUSSION OF THE LAW I. 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. The Mississippi Supreme Court has stated that "[t]he findings and order of the Workers' Compensation Commisssion are binding on this Court so long as they are 'supported by substantial evidence.'" Vance v. Twin River Homes, Inc., 641 So. 2d 1176, 1180 (Miss. 1994) (quoting Fought v. Stuart C. Irby Co., 523 So. 2d 314, 317 (Miss. 1988)). An appellate court is bound even though the evidence would convince that court otherwise if it were instead the ultimate fact finder. Barnes v. Jones Lumber Co., 637 So. 2d 867, 869 (Miss. 1994). This Court will reverse only where a commission order is clearly erroneous and contrary to the weight of the credible evidence. Vance, 641 So. 2d at 1180; see also Hedge v. Leggett & Platt, Inc., 641 So. 2d 9, 12 (Miss. 1994). "This Court will overturn a [c]ommission decision only for an error of law, or an unsupportable finding of fact." Georgia Pacific Corp. v. Taplin, 586 So. 2d 823, 826 (Miss. 1991) (citations omitted). Therefore, this Court will not overturn a Commission decision unless it finds that the Commission's decision was arbitrary and capricious. Id. ; see also Walker Mfg. Co. v. Cantrell, 577 So. 2d 1243, 1247 (Miss. 1991) (stating that where the court finds credible evidence supporting a commission decision, it cannot interfere with that decision any more than with a case from any other administrative body). We believe that the administrative law judge and the full Commission correctly applied the law. We do not believe that the judge or the full Commission abused their discretion in the fact finding process. Thus, we uphold their decisions. II. ANALYSIS OF ISSUES PRESENTED

I. WHETHER OR NOT THE CLAIMANT/APPELLANT IS ENTITLED TO SUBSTANTIAL PERMANENT AND PARTIAL DISABILITY OR TOTAL DISABILITY AND LOSS OF WAGE EARNING CAPACITY DUE TO HIS ON-THE-JOB INJURY ON OR ABOUT JULY 15, 1992, WHILE WORKING FOR UNITED PARCEL SERVICE. II. WHETHER OR NOT THE ADMINISTRATIVE LAW JUDGE FAILED DUE TO MANIFEST ERROR TO FIND THAT MR. KENNETH GRANT REASONABLY SOUGHT EMPLOYMENT. Mississippi statutory law states that in workers' compensation matters, an injury means "accidental injury or accidental death arising out of and in the course of employment without regard to fault which results from an untoward event or events, if contributed to or aggravated or accelerated by the employment in a significant manner." Miss. Code Ann.

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