108 So. 2d 844 | Miss. | 1959
This case is before us on appeal by E. J. Hale from a judgment of the Circuit Court of Lauderdale County, affirming orders of the attorney-referee and the Workmen’s Compensation Commission awarding compensation to the appellant for temporary total disability and permanent partial disability resulting from an injury sustained by the appellant on December 3, 1951, while he was engaged in the performance of his duties as an employee of the General Box Manufacturing Company. This is the second time the case has been before us on appeal. See Hale v. General Box Manufacturing Co., 87 So. 2d 679.
The record shows that the appellant sustained his injury as the result of a fall from a stack of veneer to the concrete floor on December 3, 1951, while engaged in the performance of the duties of his employment. The employer’s insurance carrier thereafter paid compensation to the appellant through December 18,1952. On January
New hearings on the appellant’s claim for additional compensation were begun on October 30, 1956, pursuant to the mandate of this Court. It was agreed that the record of the proceedings on the former hearing, including the testimony of the witnesses who had testified during the former hearing, should constitute a part of the record on the second hearing. After several witnesses had testified, it was agreed that Dr. Charles L. Neill, a neuro-surgeon, of Jackson, Mississippi, should make further diagnostic studies of the claimant’s condition, and the hearings were not concluded until July 9,1957. The claimant and his wife, two laymen and two doctors testified for the claimant. Three doctors and one of the plant supervisors of the box company testified for the employer and its insurance carrier.
The claimant testified during the hearing before the attorney-referee on February 22, 1955, that he was injured on December 3, 1951, when he fell from the top of a stack of veneer in the box company plant and landed on the concrete floor; that the stack of veneer was approximately 14 feet high; that he fell 9 feet and landed on another stack of veneer, and bounced off that stack onto the concrete floor, falling across a pile of trash and striking his head against the concrete. He got up and tried to walk, but his head and back were hurting him, and he had to lie down again. He was carried to Anderson’s Infirmary and was examined by Dr. Paul H. Parker. He remained in the hospital several days and was treated by Dr. Parker for the injury to his back. He complained to Dr. Parker about his head hurting him, and Dr. Parker told him that he thought he would be all right when his back was straight. He went to see Dr. Parker several times after leaving the hospital and complained all the time about his head. Dr. Parker said to him, “When you make up your mind there is nothing
Hale testified on October 30,1956, that he was in worse condition at that time than he was in at the time of the hearing in February 1955. His right leg would not function like his left leg functioned, and he continued to have seizures and blackouts. He had worked a little in his garden. The only other work that he was able to do was to sweep and mop the legion hall, for which he was paid $4 a week. He had put out circulars a few times for Western Auto Company, and had received $4 to $6 for that. Hale admitted on cross-examination that in April, 1953, he had applied to the box company for work and represented himself at that time as being able to work. Hale stated that he felt that he was able to work at that time, that his family was suffering and he was willing to
Mrs. Ozela Hale, the claimant’s wife, testified that the claimant had not been able to engage in his normal activities since he got hurt in 1951, and that his condition had grown steadily worse since that time; that he suffered blackouts, and when he had such attacks he would bite his tongue and jaws; that he tried to help her work in the garden, but, when he did that, he had to get down on his knees or sit on a stool, on account of his back and his leg. Charles Huston Swanner testified that he had known Hale for a period of approximately 20 years; that prior to his injury on December 3,1951, Hale had walked like any other able bodied man, and did not complain of having anything wrong with him; that since his injury he had suffered from a stiff back and right leg, and when he tried to work he had to sit down on a stool or get down on his knees, and if he overexerted himself, he had blackouts; and that he had no job other than cleaning up at the American Legion hut. Frank A. Gossett’s testimony was substantially the same as that of Swanner. Gossett stated that he had given Hale the job cleaning up the Legion dance hall, and for that service Hale was paid $2 per day. The hall was cleaned up once a week, and Hale sometimes put in two days in cleaning up the hall.
Dr. J. S. Hickman testified that he examined the claimant on March 2, 1955, and again on March 14, 1955, and that in his opinion Hale was suffering from innercranial injury to the brain, laryngeal and pharyngeal, partial motor paralysis and epileptic seizures. He attributed these conditions too the injury of December 3, 1951.
Dr. John G. Atwood testified that Hale was referred to him for ah examination by the County Department of Public Welfare in February 1955, and that he examined Hale at that time. He found a generalized weakness, headaches, backaches and speech difficulty. The diag
Dr. Atwood admitted that the symptoms which he had described could have resulted from some congenital con
Dr. Paul H. Parker was the first witness who was called to testify for the employer. Dr. Parker testified that Hale was referred to him on December 3, 1951. Hale stated to him at that time that he was up on a stack of new veneer, and that he fell, it might have been 8 feet, and that he hurt his back in the lumbosacral. Hale was admitted to Anderson’s Infirmary and X-ray pictures were made. There was no evidence of any fracture or any other pathology of the bone. The diagnosis at that time was lumbosacral sprain. The doctor treated Hale until December 15, gave him diathermia treatment, and strapped his back and gave sedation. Hale made no complaint to him during that time about having hit his head or his head hurting him; he complained only about his back. The doctor examined him again on February 8, 1952. His complaint at that time was pain in his back. X-rays were made and no evidence of fractures or dislocations was noted. The doctor saw Hale again on March 12 and several times thereafter, and sometime during the
Dr. Blake testified that he first saw Hale on March 31, 1952. Hale complained of back pains, and he thought that Hale was suffering- from a protruded disc or back strain. On May 1, 1952, he made another examination which indicated strongly the existence of a ruptured disc. On May 13,1952, a myelogram was done, and the presence of a ruptured disc was confirmed. • A surgical operation on account of the ruptured disc was performed on June 20, 1952, and Hale was discharged from the hospital on June 28, 1952. Dr. Blake stated that he saw Hale from time to time until November 24, 1952, and that Hale continued to complain of pain in his back, and during the examination made in November Hale complained of pain on all tests, including the false test. In Dr. Blake’s opinion Hale was able to resume light work on August 21, 1952, and after a “break in” period he would be able to resume his normal activity. Dr. Blake testified that Hale made no complaint to him of headaches, blackouts or seizures. But in November 1952 Dr. Blake requested neuro-surgical consultation, and made an appointment with Dr. Charles Neill for an examination of Hale on December 4, 1952.
Dr. Neill testified that he examined Hale on December 4, 1952, and that Hale told him at that time that he had slipped and fallen on his hands and stomach from a stack of veneer in the General Box plant on December 3, 1951, and had slipped again and fallen flat on his back. Hale told him that he had remained under the treatment of Dr. Parker for sometime thereafter, and was then sent to Dr. Blake, who found his trouble and operated on him, but
Dr. Neill testified again on July 9, 1957, after he had completed his diagnostic studies of the claimant. The doctor testified at that time, that when he began his studies on December 18, 1956, the claimant stated to him that he began to have convulsions about 3 months after his injury and had continued to have convulsions thereafter; that during the hard seizures at night he chewed Ms tongue, but when the light seizures occurred during the daytime he could sometimes prevent them by bending over and putting his head between his knees. The doctor stated that these complaints represented considerable deterioration from Hale’s status at the time of his first examination in 1952. The doctor stated, however, that he could not relate any head injury or injury to the brain too the accident which occurred on December 3,1951; and if the claimant had suffered seizures or anything of that kind, they were just something that he had developed. Dr. Neill estimated the claimant’s disability as a whole arising out of the alleged back injury, and the subsequent operation performed as a result of the back injury, Ms walking with a limp, etc., at 20%. He was also of the opinion that the claimant was able to do his usual work and needed no more treatments, and that the claimant had reached maximum medical recovery at the time he first saw him on December 4, 1952.
The attorney-referee found that the claimant was employed by the G-eneral Box Manufacturing Company at
Three points are argued by the appellant’s attorney as ground for reversal of the order of the Commission and the judgment of the lower court: (1) That the attorney-referee, the Commission and the circuit court erred as a matter of fact in fixing appellant’s loss of earning capacity as a result of the injury at $6 per week; (2) that the attorney-referee, the Commission and the circuit court erred as a matter of law in disregarding the express provisions of Section 6(b) of the Mississippi Workmen’s Compensation Act as amended (Section 6998-07, Code of 1942 rec.), providing for a minimum weekly payment of $10 under an award; and (3) that the attorney-referee, the Commission and the circuit court erred in their finding of fact that the appellant had suffered no serious permanent disability.
We have made a careful examination of the record in this case, and we find no substantial evidence in the record to support the finding's of the attorney-referee and the Commission ‘ ‘ that the claimant suffered no serious permanent disabilities as a result of the accident”, or “that his loss of wage earning capacity in the same employment or otherwise subsequent to December 1,1952, was $6 per week”. It is true that Dr. Neill stated that he could not see how any disability resulting from a brain injury or epileptic seizures could be related to the accident which occurred on December 3, 1951, and that a twenty percent rating for the disability resulting from the ‘ ‘ alleged back difficulty, his walking with a limp and straight leg raising and so forth” and “the fact that he had an operation”, would be very generous. But it is clear that the estimate of Dr. Neill as to the claimant’s physical disability was merely an estimate of disability in the medical or physical sense resulting from the back injury and the operation for the ruptured disc, and not an estimate of the loss of wage earning capacity. The question which the Commission had to determine in this case, after disability in the medical or physical sense had been shown, was the extent of the claimant’s loss of wage earning capacity resulting from the injury. Section 6998-09(c) 21, Code of 1942 Bee.
“Disability”, as that term is used in the Mississippi Workmen’s Compensation Law, is defined in Section 6998-02, Code of 1942 Bee., as meaning “incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or other employment. ’ ’
Section 6998-09 (c) 21, Code of 1942 Bee., provides that the compensation for permanent partial disability in a
Larson, in his Workmen’s Compensation Law, Vol. 2, par. 57.10, says:
“It has been stressed repeatedly that the distinctive feature of the compensation system, by contrast with tort liability, is that its awards (apart from medical benefits) are made, not for physical injury as such, but for ‘disability’ produced by such injury. The central problem, then, becomes that of analyzing the unique and rather complex legal concept which, by years of compensation legislation, decision and practice, has been built up around the term ‘compensable disability’.
“The key to the understanding.of this problem is the recognition, at the outset, that the disability concept is a blend of two ingredients, whose recurrence in different proportions give rise to most controversial disability questions: The first ingredient is disability in the medical or physical sense, as evidenced by obvious loss of members or by medical testimony that the claimant simply cannot make the necessary muscular movements and exertions; the second ingredient is cle facto inability to earn wages, as evidenced by proof that claimant has not in fact earned anything’. ’ ’
The Commission in a case of this kind properly gives great weight to medical evidence in determining incapacity, but the Commission is not conclusively bound by such evidence. As stated by the Virginia Court in the very recent case of Foust Coal Co. v. Messer, (1954) 195 Va. 762, 80 S. E. 2d 533, medical evidence is not the sole criterion. There have been and properly will continue to be cases where the medical evidence shows
In the case that we have here the testimony of the appellant and his wife and the two lay witnesses who testified for the appellant was all to the effect that the appellant was almost completely disabled from earning wages, and that disability had existed since the date of his injury. The appellant testified that his earnings had amounted to about $4 to $6 per week since his injury. While the appellant’s earnings after the injury are not necessarily determinative of his earning capacity, they are of evidential value in establishing his earning capacity after the injury in the same employment or otherwise. Elliott v. Ross-Carrier Co., supra. Dr. Parker admitted on cross-examination that, when the appellant applied to the box company for reemployment in May, 1953, and was referred to him for an examination, he refused to advise the box company that the appellant was able to work, because the appellant told him at that time that he still had pains in his back. That was six months after the date fixed in the Commission’s order as the date the appellant reached maximum recovery. Dr. Parker testified that he had treated the appellant only for his back injury, and that his record showed nothing about Hale’s complaint of a head injury. Dr. Atwood testified that
It is admitted in this case that the appellant’s injury arose out of and in the course of his employment. The attorney-referee and the Commission also found that the appellant reached maximum recovery on December 1,1952, and that he was entitled to permanent partial disability from and after that date. The fact that the appellant is not totally disabled, or, that he may be “physically capable of going out and getting to work”, as Dr. Neill stated, does not affect his right to compensation based upon his loss of wage earning capacity resulting from the injury. Neither does the fact that the appellant’s disability may have been aggravated by an onset of disease, as to the nature of which the medical experts have been unable to agree, affect the appellant’s right to compensation for the loss of earning power resulting from the injury. “Where the requisite standards of proof have otherwise been met, inherent perplexities cannot be permitted to defeat an award.” 100 C. J. S., p. 583, Workmen’s Compensation, par. 547 (1).
The evidence in this case, in our opinion, clearly shows that the appellant has suffered as a direct result of his injury a loss of wage earning capacity of not less than 50% of total. Reasonably stable employment is not
The employer and its insurance carrier have sought to attribute the appellant’s disability, or the major part of it, to causes for which they are not legally responsible. But the courts have generally held in compensation cases that, “Where injury by accident arising out of and in the course of employment is shown, the burden is on the employer to prove his defense that present disability is due to some other intervening cause or preexisting condition for which he is not responsible. ’ ’ 100 C. J. S., p. 490, Workmen’s Compensation, par. 521a; and cases cited; Serignese v. Air Reduction Sales Co., (1947), 135 N. J. L. 317, 51 A. 2d 543; Ptak v. General Electric Co., (1951), 13 N. J. Super. 294, 80 A. 2d 337; Texas Indemnity Ins. Co. v. Dean, (Tex. Civ. App. 1934) 77 S. W. 2d 748. We think the employer and its insurance carrier have failed to meet that burden in this case.
The findings of the attorney-referee and the majority of the Commission that the appellant suffered no serious disability as a result of the accident, and that the appellant’s loss of earning capacity resulting from his injury was only $6 per week are, in our opinion, arbitrary and
The judgment of the circuit court is therefore reversed, and judgment will be entered here amending the findings and the order of the Commission in the manner stated above, so as to show an award of compensation of $11.67 per week, instead of $4 per week; and the order of the Commission as thus amended, will be affirmed and the cause remanded to the Commission for the enforcement of the award.
Reversed and judgment rendered in favor of the appellant, and cause remanded.