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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 96-CC-00965 COA THE KROGER COMPANY AND TRANSPORTATION INSURANCE COMPANY v. ANTHONY CRAIG BOLING APPELLANTS

APPELLEE

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: ATTORNEYS FOR APPELLANTS: ATTORNEY FOR APPELLEE: NATURE OF THE CASE: TRIAL COURT DISPOSITION: DISPOSITION: MOTION FOR REHEARING FILED: CERTIORARI FILED: MANDATE ISSUED: 08/08/96 HON. GEORGE C. CARLSON, JR. PANOLA COUNTY CIRCUIT COURT ROBERT H. PEDERSEN CLIFFORD B. AMMONS JOHN L. BAILEY CIVIL - WORKER'S COMPENSATION COMMISSION AMENDED ALJ'S FINDINGS AFFIRMED - 11/4/97

11/25/97

BEFORE BRIDGES, C.J., HERRING, AND PAYNE, JJ. PAYNE, J., FOR THE COURT: PROCEDURAL HISTORY The employer and carrier filed its petition to controvert with the Mississippi Workers' Compensation Commission concerning an injury sustained by an employee in the course of employment on October 3, 1991. At a hearing on May 24, 1994, the administrative law judge ordered Kroger Company and Continental Casualty Company to pay the claimant temporary total disability from October 3, 1991 until July 16, 1992. The administrative law judge also granted the claimant permanent partial disability benefits of $76.09 per week from July 17, 1992, and continuing for the statutory period and medical expenses. The Commission amended the administrative law judge's order dated October 19,

1994, concerning permanent partial disability benefits, affirming the remainder. The Circuit Court of Panola County affirmed the findings of the Commission. Feeling aggrieved, Kroger appeals. We find that substancial evidence existed to support the previous findings of the Commission's decision which was not arbitrary or capricious. We therefore affirm the Commission's decisions and the circuit court's affirmance. FACTS On October 3, 1991, Anthony C. Boling was injured in a work related accident while grabbing a case of orange juice. At the time he was employed by Kroger Company as a order puller/selector. As the order puller for Kroger, it was Boling's job to pull the orders which came into the company from the stocked shelves and place them on pallets for distribution. This work required physical effort. At the time of the accident, Boling was earning an average weekly wage of $342 per week. Boling was initially treated by Dr. Haire, who x-rayed him but could find nothing wrong. Dr. Haire referred the claimant to Dr. Vick, who in turn referred Boling to Dr. David Cunningham. Dr. Cunningham indicated that Boling had a ruptured disc at L5 level protruding into a nerve. Thereafter, he performed back surgery on January 22, 1992. On July 21, 1992, Boling returned to his previous position at Kroger as an order puller. Subsequent to the surgery and return to work, Boling's back hurt. Thereafter, he revisited Dr. Cunningham, who released him as able to return to work. Boling also saw Drs. D.J. Canale and Anthony Segal, each of whom ultimately released him to return to work. Finally, Boling saw Dr. Robert Christopher, who placed him on restrictions. In January of 1994, almost a year and a half after Boling's back injury, he was terminated by Kroger for "wasting time." Boling counters this by claiming that his poor work performance was due to his back injury which he sustained while on the job. Boling has since failed to procure other employment, but he has indicated that he had applied for several jobs. These potential jobs included working for Inca, Schwabe Shirt Factory, Coca-Cola, Standard Welding Supply, Expert Auto Glass, International Chemical, Tucker Manufacturing and House Plumbing. Numerous people, including the claimant's estranged wife, testified at the hearing. His wife observed him since the back injury and stated that he was in constant pain. She testified that he had been active prior to the injury, but since that time he had been unable to perform his chores as before. In a similar vein, George Campbell, a forklift operator at Kroger, testified that after the injury he noticed the claimant get down on his knees to pull an order and be unable to get all the way back up. Campbell also testified that he had seen the claimant lie on his side in order to pick himself up from the floor and that in his opinion the claimant was in pain, was not wasting time, but took longer to perform his warm up exercises and was slower in performing his job than a normal individual would have been. Dr. Sam Hunter, a practicing neurosurgeon who has actively taught neurosurgery in Memphis, testified that after the surgery performed by Dr. Cunningham, the claimant suffered from a degenerative disc disease at the L5 with sub annular disc protrusion. Also, he testified that the claimant should have a job with low incident flexion, bending, and twisting. Further, he indicated that the claimant would be best suited to perform desk jobs.

Likewise, Dr. Robert Christopher testified that his diagnosis indicated that the claimant suffered a post-laminectomy syndrome because of the scar tissue causing compression on the nerve roots in the low back region. He too opined that the claimant should find lighter work and that in his opinion the claimant would be permanently limited in his physical activity. Likewise, Dr. Christopher testified that he told the claimant to refrain from bending from the waist, crawling, stooping, squatting, or stair climbing on a frequent basis. The claimant is twenty-nine years of age and has a twelfth grade education. He has no specialized training, and his work history includes working on a farm, driving a forklift, roofing, working as an auto mechanic, and pulling orders for Kroger. 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 Commission are binding on the 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). II. ANALYSIS OF THE ISSUES PRESENTED 1. WHETHER SUBSTANTIAL EVIDENCE SUPPORTS THE COMMISSION'S FINDING THAT CLAIMANT BOLING CAN DO ONLY "SEDENTARY WORK." 2. WHETHER SUBSTANTIAL EVIDENCE SUPPORTS THE COMMISSION'S FINDING THAT "SEDENTARY" WORK PAYS ONLY $4.25 AN HOUR. The dispute on appeal centers around the absence or presence of substantial evidence to support the permanent partial disability benefits awarded by the Commission and affirmed by the circuit court for the claimant's work related back injury. In 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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