The issue in this Workmen’s Compensation case before the Commission was whether a back injury and a 1970 operation sustained by appellee James Vines arose out of the scope and in the course of his employment or whether it arose as a result of the pulling of a lawn mower from under his house after his employment had been terminated. The Commission found that his back injury did not arise out of the scope and in the course of his employment. The circuit court reversed. The issue on this appeal by the employer Moseley Auto Sales & Service and its carrier Tri-State Insurance Company is whether there is substantial evidence to sustain the findings of fact by the Commission.
The record shows that in 1966, appellee was paid a 10% permanent partial disability for an injury to his back. In October 1968, he underwent an operation in which the 5 th lumbar disc was removed. At that time he was awarded another 10% permanent partial disability to his back. In the fall of 1969 he started to work for Moseley Auto Sales & Service as a mechanic. He also helped in the body shop and did some work in the junk yard, operated by the same employer. On December 29, 1969, appellee admittedly received an injury when he fell on the running board of a pickup truck. He was treated at that time by Dr. Merl Crow and received Workmen’s Compensation benefits for one and six-sevenths (1 6/7) weeks. He returned to work on January 12, 1970, ahd continued to work until he was terminated February 20, 1970, because of lack of work. He did not see a doctor from the time he returned to work on January 12th until March 16th when he went to see Dr. G. F. Wynne. Thereafter, Dr. James Callaway did a laminectomy and removed the 4th lumbar disc.
Appellee describes himself as being as good as new prior to the December 29th injury. He describes the pain at that time as being in his back and left leg. At that time he was treated by Dr. Merl Crow. He states that the pain in his back got worse the two weeks that he was off and that he went back to work on January 12th because he needed the money. The pain continued thereafter, until he went to see Dr. Wynne on March 16th.
Dr. Callaway testified that when appellee visited him appellee gave a history of having been injured on December 29th with continuous sporadic pain thereafter. However, Dr. Callaway got the impression that appellee had continued to work until his pain made him unable to work. Neither did appellee tell Dr. Callaway about an incident with a lawn mower. Dr. Callaway also stated that a disc may rupture or become herniated with relatively mild traumatic experience or even with bending in an improper way. To tie a shoe could rupture a disc if it was of a predisposition to rupture. A disc deteriorates as a part of the aging process. The deterioration rate is different for different individuals. Admittedly, Dr. Calla-way’s sole basis for saying that the duration of pain was from December 1969 was the history obtained from appellee.
Dr. Merl Crow testified that he did not feel like appellee had a ruptured disc when he saw him the last of December 1969, and in January 1970.
Dr. G. F. Wynne testified that on March 16th appellee told him that he hurt his back pulling a lawn mower out from under the house and the catch caught him in the back and he was having a lot of trouble. Admittedly, appellee only went to see Dr. Wynne because he could not get in to see Dr. Crow. In answer to a hypothetical question Dr. Wynne stated that he would say that the pulling of the lawn mower caused the disc syndrome.
At the first hearing before the referee Mr. Moseley testified that when Vines returned to work in January he did the same type work that he did prior to the December 29th incident and that Vines never complained about his back hurting. At that time Mr. Moseley stated that Vines’ complaints about his back were not any different before December 29, 1969, and after January 12, 1970. After the circuit court had remanded the case to the commission to hear additional testimony, and Mr. Moseley had reduced his work force, his testimony became much more ameliorative toward Vines. For instance he then testified that after the December 29th injury, he cautioned Mr. Vines not to do the heavy lifting like he had done before.
In the record there is testimony that Mr. Moseley, between the layoff and March 16th, furnished a brace for Vines, but no such evidence was presented at the first hearing although both appellee and his wife testified.
Upon the record before us the issue is not where a preponderance of the evidence lies but only if there is substantial evidence to support the finding of the Commission. There is other evidence, not quoted, which tends to corroborate appellee’s version but as we view the record, whether you take the appellee’s version or that of the Commission, the case boils down to an issue of credibility. The Commission had the right to believe Dr. Wynne. Consequently, we cannot say that there is no substantial evidence to sustain the finding of the Commission.
For affirmance appellee suggests that Mr. Derby, the respondent insurance company’s local representative, instructed appellee to obtain medical attention. Derby not only testified that he did not recall making any such statement but showed in addition that he had no such authority. Derby was not a general agent of the carrier.
Reversed and remanded.
Harris, C.J., not participating. Jones, J., dissents.