Bill Williams Feed Service v. Mangum

• Decision Date: 14 March 1966
• Docket Number: No. 43827,43827
• Citation: 183 So.2d 917
• Parties: BILL WILLIAMS FEED SERVICE and Western Casualty & Surety Company v. James W. MANGUM.
• Court: Mississippi Supreme Court

Page 917

183 So.2d 917

BILL WILLIAMS FEED SERVICE and Western Casualty & Surety Company v. James W. MANGUM.

No. 43827.

Supreme Court of Mississippi March 14, 1966.

Cox, Dunn & Clark, Wm. H. Cox, Jr., Jackson, for appellants.

George B. Brubbs, Mendenhall, for appellee.

GILLESPIE, Presiding Justice:

This case involves the application of the 1960 amendment to Mississippi Code Annotated section 6998-04 (Supp.1964), which requires the Workmen's Compensation Commission to reduce compensation that would otherwise be paid by that proportion which a pre-existing handicap, disease or lesion contributes to the production of the results following injury. The medical evidence conclusively showed that claimant's pre-existing handicap and diseases contributed to the results following injury to claimant's leg, and the judgment of the circuit court affirming the order of the commission, awarding compensation for total loss of use of leg without applying the apportionment statute, is reversed.

Claimant was employed by Bill Williams Feed Service and operated a feed mill mounted on a truck. Five days a week he operated the feed mill over scheduled routes doing custom grinding and mixing of livestock feed. In addition to operating the truck, his duties included climbing a steel ladder to reach an upper part of the mill, carrying sacks of feed weighing from fifty to one hundred pounds, and other duties. He was an active man and engaged in hunting, fishing and other outdoor activity. He also managed a small farm and owned and operated a feed store. He employed a manager to run the feed store.

At the time of his injury claimant was about fifty-seven years old. He had no previous disability. His height was six feet one inch, and he weighed 265 pounds.

He sustained the injury involved in this case when he was climbing the steel ladder to check the mising operation of the feed mill. The ladder was wet and when claimant stepped on the second step, his right foot slipped and the weight of his body caught on the side of his right leg and knee. Claimant testified that '* * * it stung, that was all, it was very, very slight, about like a wasp sting.' He testified further that he never gave it a thought and kept right on working the rest of the day. By that evening, which was Friday, the place was sore, but he declined to see a doctor because he did not think it would amount to anything. By Sunday he could not walk, and on Monday he went to see Dr. Charles Allen. Claimant was hospitalized several times and underwent a 'vein stripping' operation for thrombo-phlebitis. He experienced a great deal of pain and had a severe reaction to a drug injected in the vein as a part of the treatment. The injury occurred on July 20, 1963. He was treated by Dr. Allen in the hospital from July 22 through July 26, 1963. Claimant was then referred to Dr. Rush Netterville and was hospitalized from September 17 through September 25, 1963, during which time the vein surgery was performed by Dr. Netterville. He was again hospitalized from October 16 through October 21, 1963, for treatment of severe reaction to drugs injected in the veins of his leg. Claimant received no treatment after February 17, 1964, until the hearing, which was concluded in December 1964.

Since he was discharged by the physicians, claimant has operated his feed store where he stays a greater majority of the time, but requires the services of an employee designated as the operator. Claimant is unable to lift feed, but confines his activities to weighing and writing tickets. He walks with the aid of a cane and has a chair or stood located at each place where he works so that he can sit. He also manages his small farm. He is unable to operate the portable feed truck because of the difficulty in walking and inability to lift sacks of feed and ingredients.

Dr. Charles Allen, under whose general care claimant received all his treatment except the operation, which was performed by Dr. Netterville, testified that claimant had a fifty per cent permanent partial disability of the lower right extremity, or leg. He further stated that claimant's pre-existing conditions and diseases were as follows: obesity, arthritis, varicose veins and spurs in each knee joint, all of which contributed to claimant's permanent disability. Dr. Allen testified in detail why and how these pre-existing factors contributed to claimant's permanent partial disability. He stated that his knee, a source of a considerable part of his disability, would have become symptomatic in a course of time, and that in more than ninety-five per cent of cases of phlebitis the patient had pre-existing varicose veins. He also stated that immobility from the surgery and treatment of the phlebitis caused the pre-existing condition of his knee to become a disabling factor. He stated the disability of fifty per cent loss of use of the leg was based on 'four or five' factors, meaning the injury, obesity, arthritis, spurs and varicose veins. He stated that one-fifth of claimant's functional disability to his leg was a direct sequela of the treatment, illness, the vein operation, and the reaction from injections, and the other four-fifths was a result of the aggravation of the existing disease processes.

Dr. W. B. Thompson, orthopedic surgeon, examined claimant on April 23, 1964, for the purpose of evaluating his disability. He was of the opinion claimant sustained a five per cent desability from the injury, not taking into account any disability caused by pre-existing conditions.

Dr. Rush Netterville was of the opinion that claimant had a five per cent disability to the right leg as a result of the varicose veins,...