17 Adv. S. 18 | Miss. | 1953
This appeal is from a judgment of the circuit court affirming an award of the Workmen’s Compensation Commission in favor of appellee for a hernia sustained by him in the course of his employment.
Appellants, the employer and its insurance carrier, contend that the claimant’s testimony, coupled with the physical facts and surrounding circumstances, do not support his claim as falling within that part of the Compensation Act with reference to hernia, Chapter 412,
“(f) In all cases of claim for hernia, it shall be shown by a preponderance of the evidence:
“1. That the descent or protrusion of the hernia or rupture immediately followed as the result of sudden effort, severe strain, or the application of force to the abdominal wall;
“2. That there was severe pain in the region of the hernia or rupture;
“3. That there has been no descent or protrusion of the hernia or rupture prior to the accident for which compensation is claimed;
“1. That the physical distress resulting from the descent or protrusion of the hernia or rupture was noticed immediately by claimant, and communicated to his employer within a reasonable time;
“5. That the physical distress following the descent or protrusion of the hernia or rupture was such as to require the attendance of a licensed physician or surgeon within five (5) days after the injury for which compensation is claimed. Post-operative hernias shall be considered as original hernias.”
The evidence is that the employer was engaged in the construction of a building at Keesler Air Force Base near Biloxi. Concrete for the ground floor and the second floor had been, poured. As a support for the concrete used in the second floor until it had hardened the employer had used metal pans about twelve feet in length, about three feet in width and about six inches in depth with a flange of an inch or two in width. These pans were placed with the bottom side up. The metal was about one-eighth of an inch in thickness and the pans weighed approximately 150 pounds each. The concrete had hardened and the employer was engaged in taking
From the foregoing statement of the facts it is readily seen that this case falls squarely within the five quoted requirements of the statute. The attorney-referee, however, before whom the hearing was first had, after finding as a fact that claimant has a double hernia and
Appellee contends that in the event of affirmance we should allow interest and statutory damages upon his recovery. Neither the order of the commission nor the judgment of the circuit court awards any definite or fixed sum of money. Both simply adjudicate that the claimant shall have all the benefits of the compensation act as related to hernia. Under the act the claimant will be entitled to compensation for twenty-six weeks unless he should refuse to submit to a surgical operation, in which, event he is entitled to only thirteen weeks compensation. If he submits to an operation he is entitled to a sum not exceeding $250 for medical, surgical and hospital care and attention. If he should refuse an operation, he is entitled, in addition to the thirteen weeks compensation, to recover not exceeding $250 for medical and hospital care and services and for a proper and necessary truss or other mechanical appliance to enable him to resume work. Thus it is seen that the amount to be paid him is not at this time a definite and fixed sum, even though it is established that the weekly payments are $25 each. The question of our allowing damages under such circumstances was before us on a motion to correct judgment in the case of Mills, et al. v. Jones, 213 Miss. 680, 685-686, 57 So. 2d 496, and we there held that damages are allowable under the judgment of this Court only when a fixed amount of compensation is awarded in the lower court. The allowance.of damages in a case of this type is a matter for the legislature. As to interest on the weekly payments we are of the opinion that each payment should bear interest at the rate of 6% per annum from its due date.
Affirmed and remanded.