Opinion
No. 43195.
December 18, 1965.
1. Workmen's compensation — evidence — admissibility at subsequent hearing of corroborated testimony of claimant, now deceased, given at former hearing.
Corroborated testimony given by claimant on direct examination at first hearing, which was recessed until a future date, was admissible in consolidated hearing of both his claim and claim revived in name of administratrix and the widow and children subsequent to claimant's death. Sec. 6998-28, Code 1942.
2. Workmen's compensation — consolidation of revived claim of estate of deceased claimant and pending claim of dependents of deceased.
After claimant had died, Workmen's Compensation Commission did not err in consolidating revived claim of estate of deceased claimant and the claim of the dependents of the deceased.
3. Workmen's compensation — myocardial infarction — evidence, supported award.
There was substantial evidence to support Workmen's Compensation Commission's award of benefits for disability as result of myocardial infarction occasioned by work and the reduction of his permanent disability by twenty percent because of pre-existing disease.
4. Workmen's compensation — apportionment — none, as to medical and hospital expense.
No apportionment because of pre-existing disease was to be made with respect to medical, hospital and related expenses. Secs. 6998-01, 6998-08, Code 1942.
5. Workmen's compensation — apportionment — myocardial infarction.
Court erred in finding that apportionment because of pre-existing disease was not applicable in case in which the Commission had reduced permanent disability award by twenty percent because of pre-existing disease of claimant who had been disabled because of myocardial infarction.
Headnotes as approved by Jones, J.
APPEAL from the Circuit Court of Rankin County; O.H. BARNETT, J.
Carey E. Bufkin, Satterfield, Shell, Williams Buford, Jackson, for appellants.
I. The Mississippi Workmen's Compensation Commission erred in admitting the incomplete testimony and written statement of William F. Quimby, deceased. Barrios v. Legendre (La.), 127 So.2d 790; Home Insurance Co. v. Gerlach, 220 Miss. 732, 71 So.2d 787; Morace v. Avoyelles Wholesale Grocery Co. (La. App.), 39 So.2d 105; Succession of Derigny, 128 La. 853, 55 So. 552; Williams v. Jahncke Service, 217 La. 1078, 48 So.2d 93; Young v. Reed (La. App.), 192 So. 780; 31A C.J.S., Evidence, Sec. 390; 2 Larson, Workmen's Compensation Law, Sec. 79.83 p. 314.
II. The Mississippi Workmen's Compensation Commission erred in consolidating the revived claim of W.F. Quimby, deceased, and the dependents' claim.
III. The Mississippi Workmen's Compensation Commission erred in denying the appellants the right to use the text of Dr. Enos' report in cross-examination of Dr. Thaddeus D. Labecki.
IV. The Mississippi Workmen's Compensation Commission erred in denying the appellants the right to use the testimony of Dr. Labecki given in another case on the same subject, for impeachment purposes.
V. The decision of the Mississippi Workmen's Compensation Commission, affirming the attorney-referee, is against the overwhelming weight of the evidence. Central Electric Power Assn. v. Hicks, 236 Miss. 378, 110 So.2d 351; Russell v. Sohio Southern Pipelines, 236 Miss. 722, 112 So.2d 357.
VI. The Mississippi Workmen's Compensation Commission erred in not attributing more of the injury to the pre-existing disease. Cuevas v. Sutter Well Works, 245 Miss. 478, 150 So.2d 524; Southeastern Construction Co. v. Depend of Dodson, 247 Miss. 1, 153 So.2d 276.
VII. The Mississippi Workmen's Compensation Commission erred in not apportioning medical, hospital and related expenses. Gibbs v. Bass, 237 Miss. 823, 116 So.2d 542; Graeber Brothers v. Taylor, 237 Miss. 691, 115 So.2d 735; Grubbs v. Revell Furniture Co., 234 Miss. 319, 106 So.2d 390; Harris v. Bechtal Corp., 74 Idaho 308, 261 P.2d 818; Lindskog v. Rosebud Mines, 84 Idaho 160, 369 P.2d 580; Shainberg's Black White Store v. Prothro, 238 Miss. 444, 118 So.2d 862; Trehern v. Grafe Auto Co., 232 Miss. 854, 100 So.2d 786; Dunn, Mississippi Workmen's Compensation Law and Practice, Sec. 94.8.
VIII. The Circuit Court erred in finding that apportionment does not apply in this case. Cuevas v. Sutter Well Works, supra. J.A. Travis L.K. Travis, Jackson, for appellees.
I. The award of workmen's compensation death benefits as made to the appellees herein by the Circuit Court of Rankin County, Mississippi, was correct in all respects and should be affirmed by this court. Dependent of Payton v. Armstrong Tire Rubber Co., 250 Miss. 407, 165 So.2d 336; Fields v. Masonite Corp., 229 Miss. 524, 91 So.2d 282.
II. The award of workmen's compensation disability and death benefits, as made to the appellees herein by the Mississippi Workmen's Compensation Commission, except as to apportionment was correct in all respects and should be affirmed by this Court as was done by the Circuit Court of Rankin County, Mississippi. Boyd Construction Co. v. Worthy, 234 Miss. 671, 107 So.2d 120; California Eastern Airways v. Neal, 228 Miss. 370, 87 So.2d 895; Capitol Broadcasting Co. v. Wilkerson, 240 Miss. 64, 126 So.2d 242; Cole v. Superior Coach Corp., 234 Miss. 287, 106 So.2d 71; Dowdle Pearson v. Hargrove, 222 Miss. 64, 75 So.2d 277; Fair Stores v. Bryant, 238 Miss. 434, 118 So.2d 295; Freeman v. Mississippi Power Light Co., 230 Miss. 396, 92 So.2d 658; Gaines v. McCormick, 238 Miss. 535, 117 So.2d 467; Grubbs v. Revell Furniture Co., 234 Miss. 319, 106 So.2d 390; Jackson Oil Products Co. v. Curtis, 241 Miss. 188, 129 So.2d 403; Kennedy v. Williams-McWilliams Industries, 247 Miss. 595, 156 So.2d 806; Malley v. Over The Top, Inc., 229 Miss. 347, 90 So.2d 678; Mississippi Products, Inc. v. Gordy, 224 Miss. 690, 80 So.2d 793; Railway Express Agency v. Hollingsworth, 221 Miss. 688, 74 So.2d 754; Russell v. Southeastern Utilities Service Co., 230 Miss. 272, 92 So.2d 544; Smith v. St. Catherin Gravel Co., 220 Miss. 462, 71 So.2d 221; Southern Engineering Electric Co. v. Chester, 226 Miss. 136, 83 So.2d 811; Tanner v. American Hardware Corp., 238 Miss. 612, 119 So.2d 380; William Brothers Co. v. McIntosh, 226 Miss. 553, 84 So.2d 692; Wilson Furniture Co. v. Wilson, 237 Miss. 512, 115 So.2d 141.
On August 27, 1962, the attorney-referee entered an order awarding compensation benefits to a legal representative of William F. Quimby, deceased, and to his dependents, a widow and two minor children.
The deceased was found to have suffered a myocardial infarction (occasioned by his work) on November 4, 1960, totally disabling him until November 19, 1960, and also from January 1, 1961, to July 28, 1961, when he died as a consequence of the accidental injuries suffered as aforesaid.
At the first hearing, the claimant Quimby was examined on direct examination, but at the conclusion of the direct examination the hearing was recessed until a future date. Before the future date arrived the claimant died. Thereupon his claim was revived in the name of his administratrix, and the widow and children as dependents filed their claim. On motion the Commission ordered both claims consolidated and heard them at the same time.
After hearing the testimony the Workmen's Compensation Commission entered an order awarding the claimant's administratrix compensation and also awarding compensation to the dependents.
The permanent benefits were reduced twenty per cent because of the pre-existing condition of the claimant which the doctors showed contributed to his injury. Penalties were also allowed, but no question is raised in this Court as to the penalties.
On appeal to the circuit court the circuit judge affirmed the order of the Commission, but modified same by holding that there was no evidence to justify the twenty per cent reduction because of the pre-existing condition. (Hn 1) The employer and carrier appeal here, and, among other things, assign as error the fact that the Compensation Commission admitted the direct testimony of William F. Quimby, deceased, as given on the first hearing. The testimony as given by Quimby on his direct examination was corroborated by others who were present and also by his wife. This evidence was admissible by Section 22 of the Workmen's Compensation Act, being Mississippi Code Annotated section 6998-28 (1952). Schilling v. Mississippi State Forestry Commission, 226 Miss. 858, 85 So.2d 562 (1956).
(Hn 2) The appellants also complain that the Compensation Commission erred in consolidating the revived claim of the Estate of W.F. Quimby, deceased, and the claim of the dependents of the deceased. This was a procedural matter for handling by the Commission and we cannot see how the appellants were injured. It appears to us to be the only logical and practical way to handle the matter.
(Hn 3) They also assign as error that the decision of the Commission was against the overwhelming weight of the evidence. We do not agree.
The next assignment is that the Commission erred in not attributing more of the injury to the pre-existing disease. This was a matter for the Commission as the trier of fact, and they had substantial evidence to justify assessing the disability at this percentage.
(Hn 4) The appellants also assign as error the fact that the Commission did not apportion medical, hospital and related expenses. This matter has been decided by this Court in the recent case of Ollie Sanders v. B.E. Walker Construction Co., 251 Miss. 352, 169 So.2d 803, decided December 14, 1964. Such decision is contrary to the contention of appellants.
(Hn 5) The last assignment is that the circuit court erred in finding that apportionment does not apply in this case. With this assignment we agree.
We do not think it necessary to discuss the other assignments of error.
The case is reversed, the order of the Workmen's Compensation Commission reinstated, and the case remanded to the Commission.
Reversed and remanded.
Lee, C.J., McElroy, Rodgers and Brady, JJ., concur.