167 So. 2d 920 | Miss. | 1964
The appellant filed an application for workmen’s compensation benefits against Woodall Industries, Inc., with the Workmen’s Compensation Commission, in which he
The hearing before the attorney-referee resulted in an order favorable to the defendants. The Workmen’s Compensation Commission affirmed the order of the attorney-referee and upon appeal the circuit court affirmed the order of the Commission. The case now comes to this Court upon appeal from the judgment of the Circuit Court of Jones County, Mississippi, Second Judicial District.
The testimony about which there is no controversy shows that the complainant is a white, male person, forty-five years of age; that in 1958, he had an injury to his back resulting in ‘ ‘ disc surgery. ’ ’ He began working for defendant-company in 1948 and continued to work for them until January 30, 1962. It is undenied that he is a hard worker and did heavy manual labor as a pallet maker, loader and carpenter for defendantWoodall Industries, Inc. He worked regularly after his operation (except a few days when he had an injured toe). The testimony shows he had suffered pain from his back since his operation but had been able to work regularly at heavy manual labor.
Claimant testified that some two or three weeks before January 30, 1962, he strained his back while loading a trailer, but he continued to work and his injury grew from bad to worse, the muscles of his leg began to quiver and draw, and the pain became so severe that he could not sleep. He called on his family doctor but his condition did not improve or respond to medical treatment. He then went to a neurosurgeon for treat
Defendants introduced Dr. Richard W. Naef, a specialist in neurology, who testified upon the assumption it had been established that claimant was suffering with amyotrophic lateral sclerosis. He said work or occupation would neither precipitate nor aggravate the disease. He admitted, however, that there could be nerve root pressure in the area complained of by appellant, which was not .a part of the disease.
Thus, it is seen from the testimony that appellant underwent surgery in 1958 for a ruptured disc at a point between “L-5” and the sacrum, but since that time there is a depression in the left side of “L-4” and that
The rule is now firmly established in this State that the findings of fact by the Workmen’s Compensation Commission and a trial judge will be respected by the Court unless such findings are against the overwhelming weight of the evidence. Smith v. St. Catherine Gravel Co., 220 Miss. 462, 71 So. 2d 221; Wallace v. Copiah County Lbr. Co., 223 Miss. 90, 77 So. 2d 316; Williams Bros. Company v. McIntosh, 226 Miss. 553, 84 So. 2d 692; Employers Insurance Company of Alabama v. Dean, 227 Miss. 501, 86 So. 2d 307; Lawson v. Traxler Gravel Co., 229 Miss. 159, 90 So. 2d 204; City of Moss Point v. Collum, 230 Miss. 139, 92 So. 2d 456; Welborn v. Joe N. Miles & Sons Lbr. Co., 231 Miss. 827, 97 So. 2d 734; Nicholas Company v. Dodson, 232 Miss. 569, 99 So. 2d 666; Scott v. Brookhaven Well Service, 246 Miss. 456, 150 So. 2d 508; Babcock & Wilcox Company v. McClain, 149 So. 2d 523 (Miss.); 2 Am. Jur. 2d, Administrative Law, § 583, p. 567.
ON MOTION FOR WRIT OF CORAM NOBIS
Appellant has filed a petition in this Court requesting a writ of coram nobis in which it is alleged that since the judgment in the circuit court, and almost a year since the opinion of the attorney-referee, it has now been discovered that the petitioner, Milton Evan Pryor, does not now have, nor has he ever, suffered from the degenerative neurological disease known as amyotrophic lateral sclerosis. Affidavits of Doctors Neill and Naef — the expert witnesses who testified at the hearing before the attorney-referee — are attached to the application for coram nobis, in which it is positively stated that the petitioner does not have this disease. Inasmuch as petitioner’s claim was rejected for the reason petitioner was thought to have been suffering from this disease, simple justice requires that careful consideration be given to this strange and unusual development.
In the case of Hill v. United Timber & Lbr. Co., 221 Miss. 473, 73 So. 2d 247 (1954), this Court had determined the issue on appeal, but while the case was pending on suggestion of error, an application was filed requesting a writ of coram nobis based upon evidence conclusively showing the original judgment of this Court was the result of facts which were incorrect, and that had the truth been known the original judgment would not have been entered.
The Court, after stating that this Court could disregard technical pleadings to grant a new hearing to
A careful examination of the case history of this State on “coram nobis” and “motion to remand” indicates that there is some disarray of the case opinions on the subject which should be clarified in order to avoid confusion. In the outset, it should be noted that the writ of coram nobis — although recognized by statute,
In the instant case, we are of the opinion that the petitioner has another legal remedy which will provide due process. The pertinent part of § 6998-27, Miss. Code 1942, Rec., is as follows: “Upon its own initiative, or upon the application of any party in interest on the ground of a change in conditions or because of a mistake in a determination of fact, the commission may, at any time prior to one (1) year after date of the last payment of compensation, whether or not a compensation order has been issued, or at any time prior to one (1) year after the rejection of a claim, review a compensation case, issue a new compensation order which may terminate, continue, reinstate, increase or decrease such compensation, or award compensation.” (Emphasis supplied.) The key words, here are “* * * at any time prior to one (1) year after rejection of a claim.”
In the instant case, at the time it was discovered that the claimant was not suffering from the alleged disease — for which the attorney-referee had rejected his claim for compensation — the case had been appealed to the Supreme Court of Mississippi. The appellant was confronted with the problem of whether or not to file an application for review before the Workmen’s Compensation Commission under the authority of § 6998-27, Miss. Code 1942, Rec., or to file application for relief in this Court.
Section 6998-26, Miss. Code 1942, Rec., among other things, provides that: “No controversy shall be heard by the commission or an award of compensation made therein while the same matter is pending either before a Federal Court or in any Court in this state.”
We are of the opinion that this section is applicable to the facts here because this case was pending in this Court at the time it was discovered that the applicant was not suffering from the alleged disease and the order rejecting the claim was not final until it reached this Court. The one-year statute of limitation applies to the final “rejection” of the claim by this Court as well as unappealed rejections before the Workmen’s Compensation Commission.
We recognize that there is a division of authority as to whether or not the statute is tolled by the appeal (Anno., Workmen’s Compensation — Review, 165 A.L.R. 25, subsection (e) ), but in view of the provisions of § 6998-26, which must be read and considered in conjunction with § 6998-27, we are of the opinion that the applicant is entitled to file his application for a review of his compensation claim with the Workmen’s Compensation Commission within one year after the judgment of this Court finally rejects his claim.
The judgment of the circuit court affirming the order of the Workmen’s Compensation Commission is affirmed, and the petition for writ of coram nobis is dismissed without prejudice to the appellant’s right to file an application for review with the Commission within one year from the date of the judgment of this Court.
Affirmed and petition for writ of coram nobis dismissed.
'“'Note:
Section 1992.5, Miss. Code 1942, Rec.
49 C. J. S., Judgments, § 311, p. 561; 30A Am. Jur., Judgments, § 734, p. 687; James v. Williams, 44 Miss. 47.
Corry v. Buddendorff, 98 Miss. 98, 54 So. 84.
Fugitt v. State, 85 Miss. 94, 37 So. 554.
30A Am. Jur., Judgments, § 742, p. 693; 49 C. J. S., Judgments, § 312, (b), p. 563.