Mitchell Buick v. Cash

592 So. 2d 978, 1991 WL 277801
CourtMississippi Supreme Court
DecidedDecember 18, 1991
Docket89-CC-0603
StatusPublished
Cited by39 cases

This text of 592 So. 2d 978 (Mitchell Buick v. Cash) 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
Mitchell Buick v. Cash, 592 So. 2d 978, 1991 WL 277801 (Mich. 1991).

Opinion

592 So.2d 978 (1991)

MITCHELL BUICK, PONTIAC AND EQUIPMENT COMPANY and Federated Mutual Insurance Company
v.
Henry L. CASH.

No. 89-CC-0603.

Supreme Court of Mississippi.

December 18, 1991.

*979 David L. Sanders, Mitchell McNutt Threadgill Smith & Sams, Columbus, for appellant.

Jan R. Butler, Butler & Butler, Eupora, for appellee.

Before ROY NOBLE LEE, C.J., and PRATHER and SULLIVAN, JJ.

ROY NOBLE LEE, Chief Justice, for the court:

Mitchell Buick, Pontiac and Equipment Company and Federated Mutual Insurance Company have appealed from an order of the Clay County Circuit Court affirming a decision of the Workers' Compensation Commission awarding Henry L. Cash compensation benefits, presenting the following issue for discussion by this Court:

Whether there is substantial medical evidence to establish a direct causal connection between Cash's condition of cardiomyopathy and his occupation as a body shop repairman.

Henry L. Cash cross-appeals the order of the Clay County Circuit Court and presents the following issues for discussion:

I. Whether an award of compensation may be apportioned when claimant experienced no pre-existing occupational disability prior to his untoward event of September 11, 1979?
II. Whether the Workers' Compensation Commission may fail to order the employer and carrier to pay penalties without a specific finding excusing the penalty?

FACTS

On September 11, 1979, Henry L. Cash, an employee of the Mitchell Buick, Pontiac and Equipment Company, hereinafter referred to as Mitchell, was forced to leave work as a result of experiencing a heart attack. Cash had been employed continuously with Mitchell from July 22, 1950 until September 11, 1979. While in Mitchell's employ, Cash worked as an auto body and fender repairman. In the course of his employment, Cash came in contact with numerous chemicals contained in automobile paints, primers and sealers and was required to perform heavy physical labor. Cash was fifty-four (54) years old at the time of his attack and had been diagnosed previously, three (3) years prior to the attack, as suffering from obstructive pulmonary disease and hypertension. As a consequence of his heart attack, Cash was permanently and totally disabled.

On March 16, 1981, Cash filed a motion to controvert with the Mississippi Workers' Compensation Commission, alleging that he had contracted an occupational disease while working for his employer Mitchell, who denied the same. A hearing was held before Administrative Judge Tulane E. Posey, Jr. and he entered an order on January 4, 1984 denying Cash's claim.

On January 12, 1984, Cash filed a petition for review, which was heard by the Full Commission of the Workers' Compensation Commission on June 11, 1984. The Commission, on November 30, 1984, ordered the reversal of the administrative judge's denial of compensation and remanded the cause to the administrative judge for a determination of the apportionment of compensation benefits.

Pursuant to the Full Commission's order, Administrative Judge Posey conducted an apportionment hearing on November 3, 1986. On March 5, 1987, Posey denied Cash any recovery of compensation benefits, finding that Cash's preexisting condition contributed one hundred percent (100%) towards his disability.

Cash filed a second petition for review with the Full Commission on March 25, 1987, which was heard on February 22, 1988. The Full Commission, by order dated May 11, 1988, reversed Administrative Judge Posey's ruling and awarded Cash permanent total disability benefits at the unapportioned rate of ninety-eight dollars ($98.00) per week from September 11, 1979 to January 30, 1980 and at the apportioned rate of twenty-five dollars ($25.00) per week beginning January 30, 1980 and continuing thereafter for a period not to exceed the balance of four hundred and fifty (450) weeks or the maximum limitations of the Workers' Compensation Act.

*980 Mitchell subsequently filed an appeal from the Full Commission's order to the Clay County Circuit Court. On October 7, 1988, that court affirmed the May 11, 1988 order of the Full Commission awarding Cash the stated compensation benefits.

LAW

I.

The Workers' Compensation Commission found that Cash's exposure to chemicals at work aggravated his pre-existing heart condition, rendering him permanently and totally disabled. The simple question is whether or not that finding is supported by substantial evidence.

The findings and order of the Workers' Compensation Commission are binding on this Court so long as they are supported by substantial evidence. Fought v. Stuart C. Irby Co., 523 So.2d 314, 317 (Miss. 1988); Champion Cable Const. Co., Inc. v. Monts, 511 So.2d 924, 927 (Miss. 1987); Penrod Drilling Co. v. Etheridge, 487 So.2d 1330, 1332 (Miss. 1986); Georgia-Pacific Corp. v. Veal, 484 So.2d 1025, 1027 (Miss. 1986); Evans v. Marko Planning, Inc., 447 So.2d 130, 132 (Miss. 1984); see also Dunn, Mississippi Workers' Compensation § 286, 288 (3d ed. 1982). "This is so, even though the evidence would convince this Court otherwise, were we the fact finder." Fought, 523 So.2d at 317; Georgia-Pacific Corp., 484 So.2d at 1028 (quoting Olen Burrage Trucking Co. v. Chandler, 475 So.2d 437, 439 (Miss. 1985)). This Court will reverse an order of the Workers' Compensation Commission only where such order is clearly erroneous and contrary to the overwhelming weight of the evidence. Fought, 523 So.2d at 317; Myles v. Rockwell International, 445 So.2d 528, 536 (Miss. 1983); Riverside of Marks v. Russell, 324 So.2d 759, 762 (Miss. 1975).

In the case at bar, the Full Commission order finding that Cash's exposure to chemicals in the work place aggravated his preexisting condition and rendered him totally and permanently disabled was not clearly erroneous. Testimony before the Commission revealed that Cash, in the regular performance of his employment for Mitchell, came into contact with acrylic lacquer thinner containing acetone, alcohol, ester, petroleum distillate and toluene solvents; acrylic enamel containing toluene and xylene; window-weld sealer containing toluene diisocyanate and toluene; urethane flex agent containing aliphatic polyisocyanate, ketone, toluol and ester solvents; plastic paint primer containing toluol; acrylic lacquer containing toluene; vinyl color spray containing methyl ethyl ketone and cellosolve acetate; dulux enamel containing toluene; and prokril acrylic lacquer containing xylene, toluene and lead. The testimony also revealed that Cash performed his duties in a building that contained no ventilation system, other than a fan which could not be operated during painting, since dust would be blown onto the surface which was to be painted.

At the Full Commission hearing, the Commission was advised by experts as to the negative effects some of the paint products used by Cash while in Mitchell's employ could exhibit upon Cash. Doctor Leon Combs, an expert in the field of chemistry and physics, testified extensively that several of the products used by Cash contained volatile solvents. Dr. Combs explained that volatile solvents are carrying agents. He said in part:

Q. Well, let me ask about the solubility of these particular solvents, what can you tell us about that?
A. Well it would be quite soluble also.

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Cite This Page — Counsel Stack

Bluebook (online)
592 So. 2d 978, 1991 WL 277801, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mitchell-buick-v-cash-miss-1991.