Opinion
No. 45286.
March 24, 1969. Rehearing Denied April 14, 1969.
Appeal from the Circuit Court of Leflore County, Arthur B. Clark, Jr., J.
Bell McBee, Greenwood, for defendants-appellants.
D. Briggs Smith, Jr., Charles C. Finch, M. Collins Bailey, Batesville, for claimant-appellee.
This is an appeal from an order of the Circuit Court of Leflore County which affirmed an award to the claimant, Earl N. Warren, against Consumer Discount Store, employer, and Transamerica Insurance Company, carrier, in a workmen's compensation case.
Heretofore this Court upheld an order of the Circuit Court which affirmed an award for the claimant's temporary partial disability and temporary total disability and reversed it as to the award for permanent partial disability. The reversal was accompanied by a remand for "the purpose of taking additional testimony, if any, as may be required to reevaluate the permanent partial disability award made by the commission. * * *" It established that there was insufficient evidence to affirm an award for permanent partial disability.
This appeal is from the trial imposed by the remand. The hearing before the attorney-referee consisted of the reintroduction of the former record with no additional testimony with regard to the reevaluation of the permanent partial disability though an additional award was made by the attorney-referee. This order was affirmed by the commission and by the circuit court. We reverse and dismiss the appellee's claim.
The first order of the circuit court which reversed the finding of the commission and which was affirmed by this Court, became the law of the case. It established that there was insufficient evidence to affirm the former award. We think it clear that the circuit court would have affirmed the award, as would this Court, if in the opinion of either there was sufficient evidence to sustain the same.
The case before us is nothing more than relitigation of the identical facts upon which an adjudication has been heretofore made. The former opinion established the law of the case and was controlling upon a retrial following remand, and in the absence of additional testimony it is our opinion that the claimant has not established a permanent partial disability for which an award could be made. Colson v. Sims, Miss., 198 So.2d 225 (1967); State Highway Commission v. Coahoma County, 203 Miss. 629, 37 So.2d 287 (1948); and Middleton v. Davis, 105 Miss. 152, 62 So. 164 (1913).
Reversed and judgment here for the defendants.
GILLESPIE, P.J., and INZER, SMITH and ROBERTSON, JJ., concur.
ON PETITION FOR REHEARING
We have carefully considered the points presented in appellee's petition for a rehearing and find them to be without merit. However, since there seems to be some misunderstanding as to the effect of our judgment reversing this case and entering a judgment here for appellant, it should be pointed out that this affects only appellee's claim for permanent partial disability.
When we affirmed the judgment of the circuit court on the first appeal to this Court, we construed that judgment to mean that the circuit court affirmed the order of the commission except as to appellee's claim for permanent partial disability. The original order of the commission affirmed the order of the attorney-referee finding that appellee had suffered an accidental injury arising out of and in the course of his employment and ordered the employer to pay appellee temporary partial disability, temporary total disability, permanent partial disability, to pay for and furnish the necessary medical services and supplies resulting from the injury together with penalties on unpaid installments. The only error found by the circuit court was relative to the allowance of permanent partial disability and its judgment affirmed the order of the commission as to the other features of the case. When we affirmed the judgment of the circuit court, the order of the commission became final as to everything except the permanent partial disability and upon remand to the commission the only issue left for the commission to determine was whether appellee was entitled to permanent partial disability. We assumed that the order of the commission had been complied with except as to the payment of permanent partial disability and when we stated in our opinion on this appeal that "we reverse and dismiss appellee's claim" we were referring only to his claim for permanent partial disability. This was the only issue left in the case and in our judgment does not affect any other matters.
The petition for rehearing is denied.
All Justices concur.