Sanders v. B. E. Walker Construction Co.

169 So. 2d 803, 251 Miss. 352, 1964 Miss. LEXIS 357

• Court: Mississippi Supreme Court
• Decided: December 14, 1964
• Docket: 43163
• Status: Published

Opinions

Lee, C. J.

Ollie H. Sanders, claimant, was a 58 year old white male, of little education, with an average weekly wage of $84.29. He had been for three years, and was still, employed by B. E. Walker Construction Company. On May 24, 1961, he was engaged about the work, first operating a “cherry picker”, and then a front end loader to fill in the ditch. He described this as rough work. The machine, because of inadequate brakes, ran into the ditch, causing the sterring wheel to spin, thus injuring his hand and arm. In about an hour, he began to have pains in Ms chest, and toM Ms boss that he had to go to the doctor. When he went by Ms home, on the way, he Mst consciousness, and did not come to himself until he was in the hospital. He remained there under treatment of Dr. A. L. Gore for nineteen days; and was then carried home, staying in bed for three weeks. He had never had any trouble like that in the past.

No weekly benefits were paid to him, and on June 7, 1961, he filed with the workmen’s compensation commission his notice and claim. Thereafter, on July 31, 1961, the employer and its insurer filed their denial of liability, but asserted that, if mistaken in their refusal to assume payment of the weekly benefits, they were entitled to a proration because of pre-existing causes.

A hearing was conducted October 10, 1961 by the attorney-referee. The claimant testified substantially as set out above. Dr. Core testified that, upon his examination, he found a coronary occlusion. It was his opinion that the strenuous work, which Sanders was doing- that morning, had precipitated the occlusion, which caused the heart attack, and that he definitely sustained an infarct. It would require nine to twelve months before' the patient could return to the kind of work, which he had been doing, but that, in approximately three months, he ought to be able to do light work. Dr. J. Manning Hudson, an internist, was his consultant. The doctor, as family physician, had never had any complaint from claimant as to any heart condition. The heart was weakened from atherosclerosis as he now knows. He expects improvement in nine to twelve months. But he could not fix the percentage of contribution from the pre-existing condition. There was some disability at that time from both conditions, both pre-existing and the injury. He will not again be able to do that kind of work.

There was a further hearing on December 1, 1961, when Dr. William H. Rosenblatt testified. He said that there was a causal relationship between the work that Sanders was doing at the time and his acute heart attack. He attributed fifty percent to each, the preexisting and the job work. This was about two months after Dr. Gore had testified. He did not think there was a permanent disability as a result of the heart attack. He recommended a desk job of some kind for him.

Mrs. Sanders testified that her husband has done nothing since he got out of the hospital and was still under treatment of Dr. Gore.

At this juncture, on motion of the defendants, the case was recessed for rehearing, with notice to be given to all. But no further evidence was offered.

On January 2, 1962, the attorney-referee entered an order finding (1) that the defendants should pay the medical services and supplies; (2) that the claimant had not reached maximum medical recovery; and (3) that the claimant’s pre-existing disease contributed fifty percent to the claimant’s disability. He therefore ordered that the employer and insurer pay temporary total disability at the rate of $17.50, beginning May 24, 1961, and during the continuance of such disability, subject to the maximum limitations of the act; that they pay all of the medical services and supplies incurred or to be incurred, in accordance with section 7 of the workmen’s compensation act (Mississippi Code Annotated section 6998-08 (1952)); and that they pay the penalties provided by section 13(e) and section 28(d) of the act (Mississippi Code Annotated sections 6998-19 and 6998-34 (1952), as amended.

The foregoing order of the attorney-referee was affirmed by the commission on March 9, 1962.

The employer and its insurer prosecuted an appeal to the circuit court and claimant there filed a cross-assignment of errors, particularly, the apportionment of temporary total disability payments, and motion to correct the order of the commission accordingly.

On January 2, 1964, the circuit court affirmed the judgment of the commission, and this appeal is prosecuted. .

These same questions now recur on the briefs and arguments presented here.

When Mississippi adopted its workmen’s compensation law by chapter 354, Laws of 1948, Mississippi Code Annotated section 6998, et seq. (1953 and Supp. 1962), it was the last state in the union to do so. As appeals began to come to this Court, it was necessary that the Judges should devote much consideration to the study of this law. The statutes, in all of the other states, together with their court decisions, construing the terms of the various acts were available. It was found that in the change over from the law of torts, based on negligence, to this form of remedy, based entirely on disability resulting from accident, arising out of and in the course of the employment, some of the states placed strict constructions on the statutes. But it was evident that the great majority of the courts, all over the country, at the date of our statutory enactment, recognized that these laws should be liberally construed in order to carry out the humane purposes of the acts. Besides, section 1, chapter 354, Laws of 1948, section 6998-01 Mississippi Code Annotated (1953), as originally enacted, provided as follows: ‘ ‘ This act shall be known and cited as the ‘Workmen’s Compensation Law’, mid shall be administered by the Workmen’s Compensation Commission, hereinafter referred to as the commission, cooperating with other state and federal authorities for the prevention of injuries to worhers and in event of injury their rehabilitation or restoration to health and vocational opportunity.” (Emphasis supplied). The amendment thereto by chapter 275 Laws of 1960, by the addition of the words “and this act shall be fairly corn strued according to the law and the evidence”, in no way minimized the solemn declaration, supra.

Our first decision, in the case of Lucedale Veneer Company v. Rogers, 211 Miss. 613, 48 So. 2d 148 (1950), said that “the construction must he sensible as well as liberal.”

The Court came to the conclusion that it was the purpose of the legislature by its enactment at least to assure the attainment of the following aims:

(1) To provide a quick remedy for the settlement of claims, arising’ out of industrial accidents;

(2) To insure prompt hospitalization and medical services for those workers who might be fatally injured or sustain temporary or permanent disabilities as a result, and arising out, of accidental injuries, as those workers were engaged in the course of their duties to their employers;

(3) To provide, in case of death, payment of funeral expenses, and weekly benefits to the dependents of the deceased worker, based on a percentage of his average weekly wages, but subject to both maximum and minimum amounts. If death should not occur, like weekly payments in rehabilitation and restoration to health and vocational opportunity (section 6998-01, supra), should be made to the disabled worker during the continuance of the total disability. Under Mississippi Code Annotated section 6998-09 (1953 and Supp. 1962) subsections (a) and (b) (1953), being provisions for disability, no difference whatever is made in the basis for the weekly benefits as between permanent total disability and temporary total disability, so long as the latter condition exists. To this end, the legislature gave assurance that, as long as the injured worker was in the hospital, or otherwise totally disabled, subsistence should be provided for him, thus including his dependents, to insure his rehabilitation and restoration. Of course, as long as he might be in the hospital, he would get food and lodging; but his dependents, being at home, would also have to live, since the breadwinner would have no earnings as long as he was unable to engage in any kind of gainful employment. It had to be kept in mind that the great majority of workers have dependents, who must, at least, have a bare subsistence in order to live; and

(4) To provide that, when the results to the worker could be determined, that is if the disability should result as partial only, the worker would then be partially restored and be able to return to some kind of work and contribute something toward the support of himself and dependents. At that time, the weekly benefits for permanent partial disability would be determined and conform to the schedule, set out in the act. If the disability proved to be total and permanent, the payments, as applied from the beginning, would continue for the statutory period, and in the prescribed amounts.

So construing the act, this Court, in its many decisions, has attempted to follow these clear purposes of the legislature and has exacted of the employer that he commence the weekly payments within fourteen days following the onset of the accidental disability. If the disability was total, these weekly payments were required to be made until such time as the commission might determine that the worker had reached maximum medical recovery. In other words, the results following the injury, that is, the extent and residuals from the injury could not be determined by honest doctors or anyone else until there was an end of total disability and some restoration to health. See J. F. Crowe Well Servicing Contractor v. Fielder, 224 Miss. 353, 80 So. 2d 29 (1955), concurred in by all nine judges. This case has been followed by Guess v. Southeastern Utilities Service Co., 226 Miss. 637, 644, 85 So. 2d 173, 175 (1956); Morgan v. Campbell Construction Co., 229 Miss. 289, 294, 90 So. 2d 663, 665 (1956); and Houston Contracting Co. v. Reed, 231 Miss. 213, 221, 95 So. 2d 231, 234 (1957). Our cases have consistently held to that principle. They are numerous. For a compilation, see Dunn, Mississippi Workmen’s Compensation Law and Practice sections 32, 37 and 38 (1957 and Supp. 1963).

It was found, in practice, that a number of persons, with pre-existing diseases, etc., were employed in industry. Some of these were affected by their work in different degrees, for various reasons, known or unknown. Heart disease, as in this case, is an instance. These conditions may be unknown at the time, or thought to be so mild by the victims as to be ignored. The work might affect them adversely, but, on the other hand, it may not. The welfare of such persons demanded and required that they have a chance to work, if they are ready, willing, and able to do so; and it would, indeed, be an indictment of the American system and heritage if such handicaps, etc., are to deny to them employment in industry. But, under the law, as originally enacted, which took this class of actions out of the field of tort law, no provision for apportionment of resulting disabilities on account of such pre-existing handicaps, etc., had been incorporated therein.

The Legislature, in 1958, evidently reasoning that industry should only be required to incur limited risks from pre-existing handicaps, took the first action toward that end. Mississippi Laws 1958 chapter 454. Under that amendment, however, a preliminary physical examination, in advance of any subsequent injury, was a condition precedent to an apportionment.

But, by Mississippi Laws 1960 chapter 277, Mississippi Code Anotated section 6998-04 (Supp. 1962), it was provided in part as follows: ‘ ‘ Compensation shall be payable for disability or death of an employee from injury arising out of and in the course of employment, without regard to fault as to the cause of the injury, subject to the following:

“Where a pre-existing physical hcmdicap, disease or lesion is shown by medical findings to be a material contributing factor in the results following injury, the compensation which., but for this paragraph would be pay able, shall be reduced by that proportion which such pre-existing physical handicap, disease or lesion cotitributed to the production of the results following the injury.” (Emphasis supplied).

There is no case from this Court, and none has been cited from other courts of value in the construction of the above language. Consequently,, the Court must construe the same in line with reason. '

The noun, “results”, is defined as “a synoptic publication of the outcome of related competitive events.” Webster’s Third New International Dictionary page 1937 (1961).

Such “results following the injury” cannot be determined until hospitalization and such surgical nr medical treatment, or both, have been concluded, and competent medical authority is in position to say that these services have been rendered in accordance with good medicine. Thus, it is only at that time that the commission can reasonably entertain the' question of an apportionment.

Consequently, at that time, if, on a hearing, the commission is satisfied and can reasonably determine from ■ the evidence, confirmed by medical finding, the proportion of the handicap, disease or lesion' to the production of the results following the injury,- it then becomes its duty to do so. In the- meantime, from .the' date of the accidental injury, the employer and its insurer must pay to the claimant the weekly wage benefit, as required by the statute, beginning' on the-fourteenth day following the injury until the order of apportionment has been made. Any other construction would.be unreasonable and nullify the salutory provisions of .the Act. Since the Legislature did not provide that the apportionment be made at an earlier date, it is evident that it had no such intention.

The evidence was sufficient to sustain the order of the apportionment on the date of the attorney-referee’s order, January 2, 1962. However, he was in error in making the apportionment applicable as of the date of the accidental injury. Neither the commission nor the circuit court having corrected the error, the same is reversed and a judgment will be rendered here in favor of the claimant for the weekly benefit of $35.00 from May 24, 1961 to January 2, 1962, and thereafter, as ordered by the attorney-referee at the rate of $17.50 each week during the continuance of total disability.

THE REFUSAL TO MAKE AN APPORTIONMENT OF MEDICAL AND HOSPITAL SERVICES.

There are several good reasons why such an apportionment should not be made, viz: (1) Section 6998-08, Mississippi Code Annotated (1952) provides in part: “ (a) The employer shall furnish such medical, surgical, and other attendance or treatment, nurse and hospital service, medicine, crutches, artificial members, and other apparatus, for such period as the nature of the injury or the process of recovery may require. If the employer fails to provide the same, after request by the injured employee, such injured employee may do so at the expense of the employer. * # *” (Emphasis supplied). Besides, ordinarily, under the provisions of the section, the doctor must furnish a report of the injury and treatment to the employer and commission. (2) Under section 6998-01, Mississippi Code Annotated (1952), supra, the rehabilitation or restoration to health is one of the fundamental objects and purposes of the act. (3) Medical services would necessarily be begun, and, in large measure, performed and rendered, before the results following the injuries could be determined. (4) Impossible situations would arise, for instance, as to when and how such expenses conld and would, be made. (5) Besides, the legislative amendment of 1960 did not mention medical expenses; and, in the absence of any direct reference thereto, there is no basis on which the court could reasonably announce that it was the purpose of the Legislature to make an apportionment of such expenses.

But appellants argue that, in Graeber Brothers Inc. v. Taylor, 237 Miss. 691, 702, 117 So. 2d 469 (1959), where a question arose as to whether the claim was reopened within one year, as provided by Section 6998-27, Mississippi Code Annotated (1952), the Court said that the legislature considered medical treatment as a payment of compensation. This was stated in the original opinion, but, on suggestion of error, the Court negatived such idea when it said: “Of course, we did not hold in the original opinion herein that monetary amounts paid for medical expenses under Section 7 of the Workmen’s Compensation Act, Miss. Code 1942, Sec. 6998-08, are to be included in the maximum amounts fixed for disability benefits under other sections of the act. Section 7 is separate and distinct, without monetary limitations on medical benefits for injuries which arise out of and in the course of employment. Payments therefor are not included in the maximum sums established for specific types of disabilities or death. In the instant case we hold simply that a payment of medical expenses constitutes a ‘payment of compensation’ for the purpose of tolling the one-year statute of limitations, Code Section 6998-27.” The reference to section 6998-OS therein clearly showed that the court had no idea whatever of holding that the payment of medical services was linked with benefits to be paid to claimants on account of some loss or deprivation which they may have sustained, nor to recompense therefor. Webster’s New International Dictionary 2d Ed. (1951); Webster’s New College Dictionary (1961). It was the obligation of the employer and insurer to pay such expenses direct to those who rendered them.

Consequently, the Commission correctly held that no apportionment of the cost of such services can be made.

The assessment of penalties against the appellants was rightly made. These should be assessed on the actual amounts, which have been found to be due.

It therefore follows that, on direct appeal of Ollie Sanders, appellant and cross-appellee, the cause must be, and it is, reversed as to benefits for temporary total disability and judgment will be entered here for him, fixing such benefits at $35.00 per week from the date of the injury until the date of apportionment, January 2, 1962; and on cross-appeal of the appellee and cross-appellant B. E. Walker Construction Company and its insurer, the cause must in all respects be, and it is affirmed.

Reversed in part on direct appeal and judgment rendered; and on cross-appeal, affirmed; and remanded to Commission.

Kyle, McElroy, Rodgers and Patterson, JJ., concur.