In I. Taitel Son v. Twiner, 247 Miss. 785, 157 So.2d 44 (1963), this Court held that where the injured employee had suffered approximately twenty percent (20%) permanent disability to the body as a whole, according to the medical testimony, the evidence supported a finding that she was one hundred percent (100%) totally and permanently disabled within the meaning of the act.Summary of this case from Richey v. City of Tupelo
October 28, 1963.
1. Workmen's compensation — permanent and total disability — work-connected injury.
Evidence warranted finding that claimant, who had been in good health prior to twisting knee at work and had had herniated disc removed after regular treatments had had no effect, had been permanently and totally disabled as result of work-injury since date of accident. Secs. 6998-02(9), 6998-09(c)(25), Code 1942.
2. Workmen's compensation — disability — purpose of 1960 amendment defining disability — medical findings.
Purpose of 1960 amendment defining disability as incapacity because of injury to earn wages received at time of injury was not to require medical findings to be exclusive basis for establishing disability. Sec. 6998-02(9), Code 1942.
3. Workmen's compensation — apportionment — pre-existing handicaps — burden on employer to establish all factors required by apportionment statute.
Employer has burden of establishing by preponderance of evidence all factors required by apportionment statute in Workmen's Compensation Act, including existence of pre-existing physical handicap, and fact that handicap is a material contributing factor in results following injury. Sec. 6998-04, Code 1942.
4. Workmen's compensation — apportionment — where Commission made no provision for apportionment, Supreme Court must presume it found the conditions precedent to its application not to exist.
Supreme Court was required to presume that Workmen's Compensation Commission, which made no provision for apportionment, found the conditions precedent to application of apportionment of compensation between effects of injury and effects of pre-existing physical handicap did not exist. Sec. 6998-04, Code 1942.
5. Workmen's compensation — apportionment — obesity and lordosis not pre-existing physical handicaps within apportionment statute.
Evidence justified finding that claimant's pre-existing obesity and apparent normal posture containing lumbar lordosis were not physical handicaps within apportionment statute, or were not material contributing factors in results following injury. Sec. 6998-04, Code 1942.
Headnotes as approved by Ethridge, J.
APPEAL from the Circuit Court of Sunflower County; ARTHUR B. CLARK, JR., Judge.
Dan McCullen, Butler, Snow, O'Mara, Stevens Cannada, Jackson, for appellants.
Appellants contend the Commission erred, as a matter of law, in the finding of an award of permanent total disability, there being no medical evaluation greater than 20 percent partial disability to the body as a whole and the new definition of disability requiring that both the incapacity and the extent thereof must be supported by medical findings. Ascher Baxter v. Edward Moyse Co., 101 Miss. 36, 57 So. 299; Board of Supervisors of Attala County v. Illinois Central R. Co., 186 Miss. 294, 190 So. 241; Clark v. Brennan Construction Co. (Idaho), 372 P.2d 761; Cole v. Superior Coach Corp., 234 Miss. 287, 106 So.2d 71; Craig v. DeBerge, 67 Ariz. 168, 193 P.2d 442; DeShazer v. Nail, 207 Okla. 446, 250 P.2d 456; Ebasco Services, Inc. v. Harris, 227 Miss. 85, 85 So.2d 784; Elliott v. Ross Carrier Co., 220 Miss. 86, 70 So.2d 75; Globe Steel Tubes Co. v. Industrial Comm., 251 Wis. 495, 29 S.W.2d 510; G.T. Harvey Co. v. Steele (Okla.), 347 P.2d 802; Harper v. Department of Labor Industries (Wash.), 281 P.2d 859; International Paper Co. v. Handford, 223 Miss. 747, 78 So.2d 895; International Paper Co. v. Wilson, 243 Miss. 659, 139 So.2d 644; Jewel Tea Co. v. Blamble, 227 Md. 1, 174 A.2d 764; Kirkpatrick v. Department of Labor Industries (Wash.), 290 P.2d 979; Lucedale Veneer Co. v. Keel, 223 Miss. 821, 79 So.2d 233; LoSauro v. D.G. Die Co., 198 N.Y. Supp.2d 95; McDonald v. Industrial Comm., 250 Wis. 134, 26 N.W.2d 165; Marley Construction Co. v. Westbrook, 234 Miss. 710, 107 So.2d 104; Modern Laundry, Inc. v. Williams, 224 Miss. 174, 79 So.2d 829; M.T. Reed Construction Co. v. Martin, 215 Miss. 472, 61 So.2d 300; Oliver v. Potlatch Forests (Idaho), 245 P.2d 775; Orr v. State Industrial Comm. (Oregon), 342 P.2d 136; Parnau v. Industrial Comm. of Arizona, 87 Ariz. 361, 351 P.2d 643; Parson-Gibson Buick Corp. v. Fox, 152 Okla. 196, 4 P.2d 38; Reyer v. Pearl River Tung Co., 219 Miss. 211, 68 So.2d 442; West v. Industrial Acc. Comm. of California, 79 Cal.App.2d 711, 180 P.2d 972; Secs. 2(9), 6998-02(9), Code 1942; 50 Am. Jur., Statutes, Sec. 275 p. 261; 82 C.J.S., Statutes, Sec. 384 p. 897; 100 C.J.S., Workmen's Compensation, Sec. 570 p. 780; Dunn, Mississippi Workmen's Compensation, Secs. 45, 173.
II. With the undisputed medical evidence disclosing two pre-existing handicaps which have contributed to claimant's disability and period of recovery, it was error for the Commission to make an award for total disability without making an apportionment under Section 4 of the Act. Federal Compress Warehouse Corp. v. Dependent of Clark, 246 Miss. 868, 152 So.2d 921; Southeastern Construction Co. v. Dependent of Dodson, 247 Miss. 1, 153 So.2d 276; Sec. 4, Code 1942; Dunn, Mississippi Workmen's Compensation, Secs. 94.4, 94.7.
III. Where the pain and symptoms which prevent claimant from resuming her employment are caused by a condition completely separate and distinct from the accidental injury, then the disability resulting therefrom should not be considered in evaluating the extent of claimant's disability. It is error for the Commission to consider any elements of disability other than those caused or aggravated by the compensable accident. International Paper Co. v. Wilson, supra; Pearl River Hampers, Inc. v. Castilow, 234 Miss. 768, 108 So.2d 200; Rathbone, Hair Ridgeway Box Co. v. Green, 237 Miss. 588, 115 So.2d 674.
IV. There is not substantial evidence in this record to support an award of total disability. Williams Brothers Co. v. McIntosh, 226 Miss. 553, 84 So.2d 692; Dunn, Mississippi Workmen's Compensation, Sec. 171.
V. The temporary total disability should terminate as of the spring of 1961, and appellants should be given credit on the permanent partial disability for the amount of weekly benefits paid to claimant through November 22, 1961. Dunn, Mississippi Workmen's Compensation, Sec. 38.
Jacobs, Griffith Hatcher, Cleveland, for appellee.
I. The award to appellee based on permanent total disability involves primarily a question of fact, and being supported by medical findings both as to incapacity and the extent thereof, it should be affirmed under the substantial evidence rule. Brookhaven Steam Laundry v. Watts, 214 Miss. 569, 59 So.2d 294; Hale v. General Box Manufacturing Co., 235 Miss. 301, 108 So.2d 844; L.B. Priester Son, Inc. v. Dependents of Bynum, 244 Miss. 185, 141 So.2d 246, 142 So.2d 30; Lee v. Minneapolis Street Railway Co., 230 Minn. 315, 41 N.W. 433; Lucedale Veneer Co. v. Keel, 223 Miss. 821, 79 So.2d 233; Lucedale Veneer Co. v. Rogers, 211 Miss. 613, 53 So.2d 69; McManus v. Southern United Ice Co., 243 Miss. 576, 138 So.2d 899; Modern Laundry, Inc. v. Williams, 224 Miss. 174, 79 So.2d 829; M.T. Reed Construction Co. v. Martin, 215 Miss. 472, 61 So.2d 300; T.H. Mastin Co. v. Mangum, 215 Miss. 454, 61 So.2d 298; Tyler v. Oden Construction Co., 241 Miss. 511, 130 So.2d 552; Sec. 6998-02(9), Code 1942; 58 Am. Jur., Workmen's Compensation, Sec. 27; 99 C.J.S., Workmen's Compensation, Sec. 20b, p. 95; Dunn, Mississippi Workmen's Compensation, Sec. 45; 1 Larson, Workmen's Compensation, Sec. 2 et. seq.; 2 Larson, Workmen's Compensation, Secs. 57.00, 57.10, 57.51.
II. The Commission did not err as a matter of law in making an award of permanent total disability to appellee, and there were medical findings that support the finding of said disability and the extent thereof. International Paper Co. v. Handford, 223 Miss. 747, 78 So.2d 895; L.B. Priester Son, Inc. v. Dependents of Bynum, supra; Marley Construction Co. v. Westbrook, 234 Miss. 710, 107 So.2d 104; Reyer v. Pearl River Tung Co., 219 Miss. 211, 68 So.2d 442; Sec. 6998-02(9), Code 1942; 100 C.J.S., Workmen's Compensation, Sec. 570 p. 780; Dunn, Mississippi Workmen's Compensation, Sec. 173; Webster's Collegiate Dictionary (5th ed.) word "supported".
III. Appellants did not sustain their burden of proof to show that any part of the disability of appellee was due to a pre-existing physical handicap, disease or lesion, nor that same was a material contributing factor in the results following the injury. Cuevas v. Sutter Well Works, 245 Miss. 478, 150 So.2d 524; Federal Compress Warehouse Co. v. Dependent of Clark, 246 Miss. 868, 152 So.2d 921.
Mrs. Iva Lou Twiner, appellee, worked as a seamstress and "bundle boy" in a garment plant. On July 27, 1960 she received an injury which arose out of and in the course of her employment by I. Taitel Son, appellant. After a lengthy hearing, the attorney referee awarded her temporary total disability benefits from date of injury through December 1, 1961, and thereafter permanent partial disability. The Workmen's Compensation Commission, the trier of facts, amended the attorney referee's order, and found that claimant had been permanently and totally disabled since the date of her accident. It therefore awarded her permanent total disability benefits from the date of the accident. The Circuit Court of Sunflower County affirmed the commission's order. We have concluded that there was substantial evidence supporting the order, and affirm the commission and circuit court.
Section 8 of the Workmen's Compensation Act (Miss. Code 1942, Rec., § 6998-09) provides compensation for different types of disability. Section 8(c) (25) states:
"Other cases: In all other cases in this class of disability, the compensation shall be sixty-six and two-thirds per centum (66-2/3%) of the difference between his average weekly wages, subject to the maximum limitations as to weekly benefits as set up in this act, and his wage-earning capacity thereafter in the same employment or otherwise, payable during the continuance of such partial disability, but subject to reconsideration of the degree of such impairment by the commission on its own motion or upon application of any party in interest, and such payments shall in no case be made for a longer period than four hundred fifty (450) weeks."
In 1960 the Legislature amended Section 2(9), the "definitions" section of the statute, by adding the last clause. Miss. Laws 1960, ch. 276; Code § 6998-02. It provides:
"`Disability' means incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or other employment, which incapacity and the extent thereof must be supported by medical findings."
(Hn 1) Prior to her injury Mrs. Twiner was in good health. Her regular job as a seamstress was to operate an electrically powered commercial sewing machine, sewing pockets onto boys' and men's jackets. For temporary intervals she served as a "bundle boy", carrying bundles of garments, which she stacked on a table. As she turned to pick up a bundle which weighed 40-50 pounds, she twisted a knee, and pain began in her right leg. She went to her personal physician and was then referred to two Memphis doctors: Dr. Fred P. Sage, an orthopedic surgeon, and Dr. James C.H. Simmons, a neurosurgeon. After giving Mrs. Twiner regular treatments without effect, Dr. Simmons operated on her on January 18, 1961 and removed a herniated disc. The commission was warranted in finding that claimant has been permanently and totally disabled since the date of her accident and in excluding any cause other than the work-injury; and in holding that she is not able to perform any work in a gainful occupation. Morgan v. J.H. Campbell Constr. Co., 229 Miss. 289, 90 So.2d 663 (1956).
(Hn 2) Appellants argue there is no substantial evidence to support the finding of total and permanent disability. This is based principally on statements of Dr. Simmons that Mrs. Twiner "had 15% permanent partial impairment to her body as a whole as a result of her disc trouble"; and by Dr. Sage that she had a permanent disability of "approximately 20% of the value of the body as a whole." These particular conclusions must be related to the terms of the statute and other relevant testimony, about which later reference will be made. The thrust of appellants' argument involves the effect of the 1960 amendment to Section 2(9). It defines disability as incapacity because of injury to earn wages received at time of injury "in the same or other employment, which incapacity and the extent thereof must be supported by medical findings." Appellants say this amendment reflects a legislative intent to measure disability exclusively by medical evidence and functional loss "rather than by industrial loss." So they contend any evaluation by the commission greater than 20% of permanent partial disability is not "supported" by medical findings, under section 2(9).
The purpose of the 1960 amendment was not to require medical findings to be the exclusive basis for establishing disability. Such a mandate would be utterly inconsistent with the remainder of section 2(9), which establishes a standard of incapacity to earn wages in the same or other employment; and with the statutory basis of this particular award, section 8(c)(25), which measures compensation by loss of "wage earning capacity thereafter in the same employment or otherwise."
The 1960 amendment to section 2(9) requires medical findings to corroborate or support the fact of incapacity and its extent. They do not have to be the exclusive basis for establishing disability. Both of the stated sections reflect an intent to maintain nonscheduled disabilities on the principle of a loss in wage earning capacity, but further to require that such loss must be corroborated in part by medical findings, both as to incapacity and its extent.
Larson points out that the disability concept is "unique and rather complex"; it is a blend of two ingredients: "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 can not make the necessary muscular movements and exertions; the second ingredient is de facto inability to earn wages, as evidenced by proof that claimant has not in fact earned anything." Although the two ingredients usually occur together, each may be found without the other. Under the Mississippi act, however, inability to earn wages must be corroborated in part, but not exclusively by medical findings. Errors frequently result, Larson states, from pre-occupation with either the medical or wage loss aspect of disability. "An absolute insistence on medical disability in the abstract would produce a denial of compensation" in many deserving cases, and an insistence on wage loss as the test would deprive a claimant utterly shattered and ruined in a physical sense from an award, if by his own ingenuity he contrives to make a living. "The proper balancing of the medical and wage-loss factors is, then, the essence of the disability problem in Workmen's Compensation." 2 Larson, Workmen's Compensation Law, § 57.
The commission's findings and order appropriately combined these two ingredients of actual physical injury and de facto wage loss. Dr. Sage, although referring to a functional disability of 20% of the body as a whole, stated that claimant was unable to work at a job which would place stress on her back or which would not allow her to move about as comfort dictated. Mrs. Twiner, with only an eighth grade education and no particular training and experience other than as a seamstress, was in his opinion not capable of holding a job requiring sitting long hours and without freedom to move about. He also thought she was disabled from holding any other such employment which would have these requirements. In addition, the employer's plant manager admitted that he had refused to rehire Mrs. Twiner, and he could not use her, since she could not sit for long periods and needed to move around frequently. The manager of a state employment office testified that claimant in her condition would meet "employer resistance." Claimant had applied at other places for employment, but had not received any. The commission considered all of these and other facts. It was warranted in finding total, permanent disability.
Mrs. Twiner was obese, and her apparent normal posture contained a lumbar lordosis, or "sway-back." Section 4 of the act provides that where there is a "pre-existing physical handicap, disease or lesion" materially contributing to the results following injury, compensation shall be apportioned between that and the effects of the injury. Appellants say that lordosis and obesity were preexisting physical handicaps, and the commission erred in not apportioning disability between them and the effects of the injury.
(Hn 3) The burden of proof is upon the employer to establish by a preponderance of the evidence all of the factors required by the apportionment statute, including the existence of a preexisting physical handicap by medical findings, and it being a material contributing factor in the results following injury. Cuevas v. Sutter Well Works, 150 So.2d 524 (1963 Miss.). (Hn 4) Since the commission made no provision for apportionment, we must presume it found the conditions to its application did not exist. The testimony of Dr. Sage supported that conclusion. (Hn 5) The evidence justified findings that these conditions were not "physical handicaps" within the meaning of section 4, or if they were, they were not material contributing factors in the results following the injury; and that the compensable disability of Mrs. Twiner had nothing to do with the swelling in her legs.
McGehee, C.J., and Gillespie, McElroy and Brady, JJ., concur.