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5/20/97 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 95-CC-00730 COA ROGER DALE VARNADO AND GULF COAST MEDICAL CENTER APPELLANTS v. SANITARY LANDFILL COMPANY, INC. AND COMMERCIAL UNION INSURANCE, COMPANY APPELLEES PER CURIAM AFFIRMANCE MEMORANDUM OPINION THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B TRIAL JUDGE: HON. BILL JONES COURT FROM WHICH APPEALED: JACKSON COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: MAGER A. VARNADO, JR. ATTORNEY FOR APPELLEE: BEN ELLIS SHEELY NATURE OF THE CASE: WORKERS' COMPENSATION TRIAL COURT DISPOSITION: WORKER'S COMPENSATION BENEFITS DENIED MANDATE ISSUED: 6/10/97 BEFORE THOMAS, P.J., COLEMAN, AND KING, JJ. PER CURIAM:

Roger Dale Varnado alleged that he suffered injuries to his head, neck, back, legs and feet as a result of a fall he sustained on the job. After hearing conflicting evidence, the administrative law judge denied Varnado's claim for workers' compensation benefits, finding that Varnado either staged the accident or intentionally injured himself. The administrative law judge found that Varnado's testimony was highly suspect due to two previous workers' compensation claims and found that there was no need for the surgical procedure that was performed. The case was appealed to the full Commission which affirmed the decision of the administrative law judge. Thereafter, the Circuit Court of Jackson County affirmed the full commission order. At the time of the alleged accident, Varnado was performing general maintenance on a stump grinding machine or chipper. Having finished his maintenance work on the machine, Varnado was tightening down the last bolt with a torque wrench. Varnado testified that his hand slipped off the wrench, causing him to fall backwards to the ground. Fellow worker and eyewitness Mike Smith testified that Varnado staged the accident and did not injure himself when he jumped backwards off the machine. There was also testimony from Roger Applewhite, the general manager of Sanitary Landfill, that Varnado had been told that he would either have to continue to travel out of town in his job or be laid off. According to Applewhite, Varnado had refused to go out of town and was in the process of being terminated at the time the alleged accident occurred. Dr. M. F. Longnecker, Jr. performed a spinal fusion on Varnado on June 8, 1993. Dr. Longnecker estimated that Varnado had a thirty percent impairment rating and attributed half of that to a preexisting condition. Dr. Charles Winters testified that he had treated Varnado for a long history of back problems which he attributed to a pre-existing condition of a degenerative disk at L5-S1 with spondylosis, a congenital defect. Dr. Winter stated that Varnado would not benefit from back surgery. Dr. Dan Enger, who also treated Varnado, diagnosed the problem as spondylosis at L5-S1. He also testified that Varnado would not benefit from surgery. Dr. James West, who examinedVarnado at the employer's request, testified that Varnado's problems were due to degenerative disk disease at L5-S1 and was of the opinion that surgery would potentially make the condition worse. On appeal to this Court, Varnado raises the following issues: I. The Commission erred in affirming the decision of the administrative law judge that there was insufficient evidence to support the fact of accident. II. The Commission erred in affirming the decision of the administrative law judge that the medical treatment provided to the claimant was not reasonable and necessary. Finding no error, we affirm. Appellate review of compensation claims is narrowly restricted. 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). 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. . . . 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). The Commission order denying Varnado's claim was not clearly erroneous or against the overwhelming weight of the evidence. The testimony of eyewitness Mike Smith supports the finding that Varnado either staged the accident or intentionally injured himself. The Commission's finding that the medical services, specifically the back surgery performed by Dr. Longnecker, was unnecessary was based on conflicting expert medical testimony. The testimony from Drs. Winters, Enger and West showed that Varnado was suffering from a congenital defect where surgery was not advised and would not improve the condition. Applying the standard of review to the record, we are compelled to affirm the decision of the Commission denying workers' compensation benefits. THE JUDGMENT OF THE JACKSON COUNTY CIRCUIT COURT IS AFFIRMED. ALL COSTS OF APPEAL ARE TAXED TO THE APPELLANTS. BRIDGES, C.J., McMILLIN AND THOMAS, P.JJ., COLEMAN, DIAZ, HERRING, HINKEBEIN, KING, PAYNE, AND SOUTHWICK, JJ., CONCUR.



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