Opinion
No. 42590.
March 4, 1963.
1. Workmen's compensation — pre-existing back injury aggravated by second work-connected back injury — claimant entitled to temporary total disability.
Evidence, including medical testimony, supported Commission's finding that claimant's previous permanent disability was attributable to his initial back injury, and that the second injury contributed to, and aggravated, his back condition so as to entitle claimant to temporary total disability established by Commission's order.
2. Workmen's compensation — same — Commission's order limiting temporary total disability to specified period of time was erroneous.
Evidence failed to support Commission's order limiting temporary total disability to period of time based on medical testimony given before claimant underwent surgery on his spine a second time, where medical testimony given after second operation established that claimant was totally disabled at date of hearing and that his condition then was caused by second injury in that second injury aggravated condition of permanent spine disability. Sec. 6998-26, Code 1942.
3. Workmen's compensation — Commission's findings — upheld unless not supported by substantial evidence.
Supreme Court will generally sustain finding of facts by Workmen's Compensation Commission, but when there is no substantial evidence supporting findings, judgment will be reversed.
4. Workmen's compensation — where judgment clearly erroneous — duty of Circuit Court to enter judgment that should have been entered.
Where judgment in workmen's compensation case is clearly erroneous and prejudicial in question of law or fact, Circuit Court should enter such judgment as Commission should have entered. Sec. 6998-26, Code 1942.
5. Workmen's compensation — judicial review — scope and extent of review by Supreme Court.
Supreme Court has duty to check any fundamentally erroneous exercise of administrative power so as to require application of workmen's compensation law in just and reasonable manner. Sec. 6998-26, Code 1942.
6. Workmen's compensation — claimant allowed benefits for temporary total disability, and for permanent damage, if any, and medical expense occasioned by second injury.
Workmen's compensation claimant was entitled to benefits for temporary total disability for time while such disability continued, and for permanent damage, if any, caused by second injury which aggravated permanent, first injury, and medical benefits during period of disability from second injury.
Headnotes as approved by Rodgers, J.
APPEAL from the Circuit Court of Lincoln County; TOM P. BRADY, Judge.
A.B. McGraw, Jackson; Johnson Johnson, Natchez, for appellant.
I. The order of the Workmen's Compensation Commission is not supported by substantial evidence.
A. Evidence not contradicted by positive testimony or circumstances and not inherently and improbable, incredible or unreasonable cannot be arbitrarily discredited and rejected, and unless shown to be untrustworthy is to be taken as conclusive upon the trial of the facts. Lucedale Veneer Co. v. Rogers, 211 Miss. 613, 53 So.2d 69; Pearson v. Dixie Electric Power Assn., 219 Miss. 884, 70 So.2d 6; Reyer v. Pearl River Tung Co., 219 Miss. 211, 68 So.2d 442; W.G. Avery Body Co. v. Hall, 223 Miss. 863, 79 So.2d 457, 543; Weathersby v. State, 165 Miss. 207, 147 So. 481; Westbrook v. State, 202 Miss. 426, 32 So.2d 251.
B. An aggravated injury is compensable. Cowart v. Pearl River Tung Co., 218 Miss. 472, 67 So.2d 356; Ingalls Shipbuilding Corp. v. Boyd, 215 Miss. 234, 60 So.2d 645; LaDew v. LaBorde, 216 Miss. 598, 63 So.2d 56; Mississippi Products, Inc. v. Gordy, 224 Miss. 690, 80 So.2d 793; Railway Express Agency v. Hollingsworth, 221 Miss. 688, 74 So.2d 754, 75 So.2d 639; Southern Engineering Electric Co. v. Chester, 226 Miss. 136, 83 So.2d 811; Thornbrough Well Servicing Co. v. Brown, 223 Miss. 322, 78 So.2d 195; W.G. Avery Body Co. v. Hall, supra; 1 Larson, Workmen's Compensation Law, Secs. 12, 20.
Daniel, Coker Horton, Jackson, for appellees.
I. There was substantial evidence to support the finding of the Commission, and the Circuit Court properly affirmed the order. Brookhaven Steam Laundry v. Watts, 214 Miss. 569, 59 So.2d 294; Chance v. American Mutual Liability Ins. Co. (La.), 92 So.2d 493; Cudahy Packing Co. v. Ward, 241 Miss. 595, 130 So.2d 858; Ed Bush Sandwich Shop v. Strauss, 243 Miss. 507, 138 So.2d 741; Itawamba Manufacturing Co. v. Dependents of Christian, 244 Miss. 587, 145 So.2d 161; Kennedy v. Alaska Industrial Board, 138 F. Supp. 209; Lloyd Ford Co. v. Price, 240 Miss. 250, 126 So.2d 529; Majure v. William H. Alsup Associates, 216 Miss. 697, 63 So.2d 113; Parker v. United Gas Corp., 240 Miss. 351, 127 So.2d 438; Pearson v. Dixie Electric Power Assn., 219 Miss. 884, 70 So.2d 6; Potts v. Lowery, 242 Miss. 300, 134 So.2d 474; Rathbone, Hair Ridgeway Box Co. v. Green, 237 Miss. 588, 115 So.2d 674; Rivers Construction Co. v. Dubose, 241 Miss. 527, 130 So.2d 865; Sullivan v. C. S. Poultry Co., 234 Miss. 126, 105 So.2d 558; Sunnyland Contracting Co. v. Davis, 221 Miss. 744, 74 So.2d 858; Wallace v. Copiah County Lumber Co., 223 Miss. 90, 77 So.2d 316; 100 C.J.S., Workmen's Compensation, Sec. 179 p. 605.
This is a workmen's compensation case. The attorney-referee rendered a written opinion awarding claimant, Gullam Columbus Scott, compensation benefits from November 1, 1959, through December 21, 1959, for an alleged injury occurring on October 31, 1959, but denied further benefits, including medical expenses incurred after the latter date. The Workmen's Compensation Commission (hereinafter called Commission) affirmed the award of the attorney-referee. One of the Commissioners, however, wrote a dissenting opinion. The case was then appealed to the Circuit Court of Lincoln County, Mississippi, in which an order was entered by the Circuit Judge affirming the order of the Commission. The case comes to this Court on appeal from the order of the latter court.
Appellant alleges, and appellee admits, there is only one question submitted to this Court for determination in this case, namely: Whether or not there was substantial evidence to support the order of the Workmen's Compensation Commission. It is therefore necessary to give a brief synopsis of the facts and medical evidence. Claimant, Gullam C. Scott, was an uneducated, white male, thirty years of age, a common laborer engaged in oil drilling. He worked in a position known as "roughneck" or "roustabout." His work was unusually strenuous and hazardous and required stamina and dexterity. While he was thus employed, he received an injury to his back in January 1959, which will hereafter be referred to as "initial injury." Dr. Jack H. Phillips, an orthopedist, had performed surgery on claimant's back in May 1959. After the doctor released claimant, the claim of benefits for the initial injury was compromised and settled.
The claimant went to work at a filling station in October 1959, and he testified that he was able to do hard work before his second injury and his employer agreed. Claimant then went to work for appellee, Brookhaven Well Service, doing work of a "roustabout." On October 31, 1959, he had his second injury which is the basis of this action. He worked about six or seven hours the first day of his employment, and as he came around the "rod house" at a time when "a pipeline was coming across", he stumbled and fell. He was in extreme pain and was carried by ambulance to the King's Daughters Hospital in Brookhaven.
He was first treated by Dr. R.C. Massengill, who testified that he examined the patient and X-rayed his back and hip. He also testified that claimant was disabled to some extent, and stated he "could have ruptured another disc either above or below where he had one removed, * * *" and the second injury "may have aggravated" his old condition.
Claimant was referred to Dr. William C. Warner, who examined him and testified: "I simply considered it a low back sprain. It was my impression that his back was somewhat weaker than prior to the first injury and that he definitely had some disability, but the second injury was more of a sprain. * * * this man is definitely a candidate for this sort of trouble * * * susceptible to be hurt." He again examined the claimant on January 21, 1960, and said "My impression was that he had recovered", and his trouble had cleared up by December 21, 1959. He recommended further surgery, otherwise "he probably would not improve further", but with a "spinal fusion operation" he would reach his maximum medical recovery.
On the application of appellee an order was entered by the attorney-referee requiring claimant to submit to a physical examination by Dr. Jack H. Phillips, the doctor who performed the initial surgery upon his back, and appellee agreed to pay the necessary expense incident thereto. Dr. Phillips examined appellant and operated a second time upon his back and made a "direct visual" examination of the scar tissue between the joints of the vertebrae. After having made such "sight" or "visual" examination, he testified that the fourth lumbar vertebrae was abnormally mobile or movable, which indicated instability at this level due to the prior disc surgery and injury. He stated that such instability was the result of the surgery for the initial injury. He testified that after the fusion of the fourth lumbar to the sacrum "I feel that his condition will be the same as it was prior to the aggravation or increase in his symptoms in October", the date of his second injury. Finally, Dr. Phillips was asked about the condition of appellant after he had received surgery, as follows: "* * * but as of right today, is your testimony that the major cause of his disability, as of today, is caused by the first operation, and that a contributing cause is caused by this injury of October 28, (sic) 1959. Is that your testimony?" He answered "Yes, sir."
(Hn 1) We are of the opinion that the testimony introduced in the record (a part of which is mentioned above) is sufficient evidence to support the finding of the Commission insofar as it determined that claimant's previous permanent disability was attributable to his initial injury, and that the second injury contributed to, and aggravated, his back condition so as to entitle appellant to temporary total disability, established by the order of the Commission. (Hn 2) On the other hand, we are of the opinion that there is no substantial testimony to support the order of the Commission limiting appellant's temporary total disability to the period of November 1st through December 21, 1959, because this period of time was based upon the testimony of Dr. Warner given before appellant underwent surgery upon his spine a second time. The testimony of Dr. Phillips given after the second operation established that appellant was totally disabled at the date of the hearing, and that his condition then was caused by the second injury, in that his second injury aggravated the condition of his permanent spine disability. The second injury reinjured the nerve tissues, and this disability had persisted since the date of the second injury in October 1959.
We have heretofore pointed out that when a pre-existing disease or infirmity of a workman is aggravated, lighted up or accelerated by work-connected injury, or if the second injury combines with the prior disease or infirmity and the combination produces disability, the resulting disability is compensable. See Rathborne, Hair Ridgeway Box Company v. Green, 237 Miss. 588, 115 So.2d 674.
(Hn 3) This Court will sustain the finding of fact by the Workmen's Compensation Commission, as a general rule, but when there is no substantial evidence on which to base its finding, the judgment will be reversed. (Hn 4) Moreover, where the judgment is clearly erroneous and prejudicial in a question of law or fact, the circuit court should enter such judgment as the Commission should have entered. Section 6998-26, Miss. Code 1942.
(Hn 5) This Court has the duty to check any fundamentally erroneous exercise of administrative power, so as to require the application of the Workmen's Compensation law in a just and reasonable manner. See Central Electric Power Association v. Hicks, 236 Miss. 378, 110 So.2d 351.
(Hn 6) The evidence in the instant case does not reveal when the temporary total disability of appellant ceased, and, for that reason, it is necessary to reverse this case so that the Commission may determine the period of time for which appellant is entitled to benefits for temporary total disability, and permanent damage because of the second injury, if any. Moreover, appellant is entitled to medical benefits during this period when he was disabled because of the second injury.
The order of the Commission allowing temporary total disability to appellant will be affirmed, but the period of temporary disability fixed by the Commission, from November 1, 1959, through December 21, 1959, is clearly erroneous, is prejudicial, and is hereby set aside. The judgment of the Circuit Court is reversed and the case remanded to the Workmen's Compensation Commission so that it may determine the period during which appellant was temporarily totally disabled, and permanent damage because of the second injury, if any, and the resulting medical benefits due him.
Affirmed in part, reversed in part, and remanded.
Lee, P.J., and Ethridge and McElroy, JJ., concur. Gillespie, J. concurs in the result here reached.