Cox v. International Harvester Co.

221 So. 2d 924, 1969 Miss. LEXIS 1509
CourtMississippi Supreme Court
DecidedApril 14, 1969
DocketNo. 45284
StatusPublished
Cited by6 cases

This text of 221 So. 2d 924 (Cox v. International Harvester Co.) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cox v. International Harvester Co., 221 So. 2d 924, 1969 Miss. LEXIS 1509 (Mich. 1969).

Opinion

INZER, Justice:

This is a workmen’s compensation case. The only question to be determined is whether there was substantial evidence to support the finding of the Workmen’s Compensation Commission that claimant-appellant had not suffered a loss of wage earning capacity as a result of a compen-sable injury which arose out of and in the ^course of hisiemployment by appellee, International Harvester Company.

Claimant was employed as an apprentice mechanic for International Harvester Company at Clarksdale, Mississippi, and on October 24, 1966, he suffered an accidental injury in the nature of a myocardial infarction in the course and scope of his employment. His average weekly wage at the time of his injury was $81.60. The attorney referee found that claimant reached maximum medical recovery on February 1, 1967, and that as a result of his injury he had sustained a thirty percent permanent partial disability to the body as a whole of which fifty percent was due to claimant’s pre-existing condition.

The employer was ordered to pay claimant temporary total disability from the date of injury until the date of maximum medical recovery. The employer was also ordered to furnish and pay for all necessary medical treatments, services, and supplies resulting from the injury. However, the attorney-referee found that claimant had not suffered any loss of wage earning capacity for the reason that his post-injury earnings were equal to, or in excess of, his average weekly wage prior to his injury. He also found that claimant had failed to overcome the presumption that his earning capacity had not been impaired. The attorney-referee held that the presumption had not been rebutted (a) by evidence of general wage increases since injury, (b) by claimant’s own greater maturity and training, (c) by longer hours worked by claimant after the accident, (d) by payment of sympathy wages, or (e) by temporary or unpredictable character of post-injury earnings. The findings of the attorney-referee [925]*925were affirmed by an order of the commission and on appeal the Circuit Court of Coahoma County affirmed the order of the commission. Hence this appeal.

It is the contention of the claimant that although the proof does show that he was earning more than he made prior to his injury, the uncontradicted proof shows that prior to his injury claimant was strong, in good health, doing a job which required considerable exertion and strain. -Not only was he able to perform his work well but also able to engage in all activities of a normal, healthy person including those requiring considerable strength and physical ability. That his injuries resulted in severe physical limitations in that he can no longer do heavy lifting, he is short of breath, tires easily, hurts at night after doing his work. He cannot engage in any recreational activity that he could prior to his injury. The injury moreover has resulted in his life being substantially changed and all his activities restricted. Under these circumstances appellant contends that it is obvious that his injuries have resulted in a severe limitation on his job opportunities.

Appellee contends that there was substantial evidence to support the finding of the commission because the proof shows that appellant is doing the same type of work as he did before the accident and is earning more wages and that he failed to overcome the presumption that there was no loss of earning capacity.

There is no doubt that claimant’s ability to perform his work activities has been limited to some extent as a result of his injuries. Dr. William V. Bobo, a cardiologist specialist, who examined claimant, testified that he had suffered a thirty percent permanent partial disability for his type of work. It was the doctor’s opinion that he should remain under a doctor’s surveillance with periodic check ups. He stated that appellant would be able to and should engage in some work but he would have to take the precautions to work at a more deliberate pace than he had prior to his injury and that he will have to be very conscious of saving his own strength and use all the labor saving devices he can. He should work only the minimum time necessary to make a living and not do any overtime work or engage in any vigorous pastimes. It was his opinion that these precautions and limitations would change the tenor and character of claimant’s life.

Dr. Van R. Burnham, Jr., treated claimant for his accidental injury by prescribing medication to keep his blood from clotting and checked his blood at regular intervals to make sure he was getting enough medicine to keep his blood at an adequate anticoagulant level. He stated that when he was in pain claimant was still having to take nitroglycerin tablets to dilate the coronary arteries and increase the blood supply to the heart. He was of the opinion that claimant had sustained a thirty percent permanent partial disability as a result of his injury. When asked if he had an opinion as to claimant’s limitation with reference to his physical work, he said:

Well, I think his whole tempo of life should be slowed down from what it was previously. I think that he should think slow and act slow and should not engage in any strenuous or sustained physical activity which would require undue exertion.

The only other medical testimony was that of Dr. Charles V. Dowling, a specialist in cardiology, who testified as an expert witness. He never examined claimant and his testimony was principally directed to the question of whether the work activities of claimant were a contributing cause of the myocardial infarction. However, he did say where there was a good recovery, such as claimant had experienced, the chances of claimant’s carrying on his old occupation were good and that his limitations would be slight.

Claimant has a third grade education and the only type of work that he is qualified to do is mechanical work. He was a strong, able bodied man with no limitation on his [926]*926activities. He returned to work at International at the same weekly wage on February 1, 1967, and worked for appellee until July 1, 1967. He performed his work in a satisfactory manner and during that period made no complaint to his employer. 'He testified that the work was more than he could do and for this reason he quit his job. About two weeks later he went to work for Wade, Inc. as a mechanic working on farm equipment. His employer did not require a physical examination and claimant did not reveal that he had suffered a heart attack. He testified that the shop where he was now working was .much better equipped and he was not required to do any heavy lifting. His work had been confined to repair of tractors, combines and other farm equipment which did not require much stooping and bending. He stated that this work was much easier than that at International but he did not know whether he could continue to do the work because it tires him and after working hours he is too tired to do anything.

The shop foreman at Wade, Inc. testified that he employed claimant and that claimant told him before he was hired that he would be able to do the work that they had to do and that he was hired on a basis that if he could not do the work he could not stay. He further said that so far claimant’s work had been satisfactory and without complaint.

The pertinent statute involved is Section 6998-09(c) (25), Mississippi Code 1942 Annotated (Supp.1966) which states:

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Cite This Page — Counsel Stack

Bluebook (online)
221 So. 2d 924, 1969 Miss. LEXIS 1509, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cox-v-international-harvester-co-miss-1969.