Cockrell Banana Co. v. Harris

• Decision Date: 08 July 1968
• Docket Number: No. 44938,44938
• Citation: 212 So.2d 581
• Court: Mississippi Supreme Court
• Parties: COCKRELL BANANA COMPANY and U.S.F. & G. Company. v. Roy HARRIS.

Page 581

212 So.2d 581

COCKRELL BANANA COMPANY and U.S.F. & G. Company. v.Roy HARRIS.

No. 44938.

Supreme Court of Mississippi.

July 8, 1968.

Smallwood, Darden & Sumners, New Albany, for appellants.

Mitchell & Rogers, Tupelo, for appellee.

BRADY, Justice:

This is a workmen's compensation case which has been appealed from the Circuit Court of Lee County.The judgment of the circuit court affirmed the order of the Workmen's Compensation Commission.

On March 4, 1963, the appellee suffered a compensable back injury, and he was paid temporary total disability benefits until October 3, 1963, when payments were discontinued because the carrier was unable to obtain medical reports.Claimant began working as a motel manager about the time his benefits were discontinued.

On November 16, 1963, appellee's doctor furnished the required medical information by filing form B-27 (Final Medical Report).The appellee was given a physical disability rating of fifteen percent which was classified as permanent.In December 1963, following receipt of the report, appellee was offered fifteen percent of two-thirds of his weekly wage, which amounted to $13.75.Appellee refused this offer and neither party requested the claim be controverted.

On September 29, 1964, the appellants filed an unsigned form B-61 (Final Report and Settlement Receipt).On January 18, 1966, the appellants filed another B-31 and sent the appellee a copy by registered mail.Also in January 1966, the appellants refused to pay for an office visit appellee made to his doctor on January 26.

On August 8, 1966, appellee filed a claim under the Workmen's Compensation laws.Following hearings the attorney-referee entered an order on April 11, 1967, stating that appellee had sustained a fifteen percent permanent partial disability of which fifty percent was due to a pre-existing condition.The attorney-referee further found that more than one year had elapsed from the filing of the B-51 and the filing of the claim, and the claim was therefore barred by the one-year statute of limitations.

An appeal was taken to Workmen's Compensation Commission.The Commission reversed the attorney-referee and held the claim was not barred by the statute of limitations because the appellee had no notice of the filing of the B-31 until January 18, 1966.The Commission further found that appellee was temporarily and totally disabled from March 4, 1963, to December 31, 1963; that appellee suffered a fifteen percent permanent partial disability, of which fifty percent was due to a pre-existing condition; and that he had a wage earning loss of $61.03.

The Commission ordered appellants to pay (1) temporary total benefits at the rate of $35 per week from March 4, 1963, to December 31, 1963; (2) permanent partial disability benefits at the rate of $35 per week from December 31, 1963, to April 11, 1967(date of attorney-referee's order); and (3) thereafter $17.50 per week for an aggregate of 450 weeks, the total not to exceed $14,500.The circuit court affirmed the order of the Commission.

A dilemma is frequently created when the legislature enacts statutes and creates commissions which have the duty of providing maintenance and care for certain citizens of the state, such as the Workmen's Compensation Commission, but does not decisively state its collective intent.Such a condition is common to all states when the legislative intent is clouded.Experience and common sense assert that no legislature reasonably could have anticipated, answered and settled all of the numerous questions and issues which such a complicated and portentous act would entail.Nevertheless, when the intent is obscure or doubtful this Court is confronted with the choice of one of two alternatives: First, either decline to attempt to ascertain the dubious legislative intent and thereby prevent the operation of the statute, or, second, to resolve as best it can from the act and from comparable statutes in this and other states what the intent of the legislature must be.

In Mississippi Code 1942 Annotated section 6998-04, we have a classical example of the failure of the legislature to state explicitly when it wanted apportionment to begin or how apportionment was to be applied to the results following injury.In our attempt to reasonably interpret the legislative intent under the second alternative, as will be shown hereafter, we have, by our decisions, created some confusion and permitted unequal application of the apportionment statute, thereby creating a lack of uniformity in awarding benefits to claimants.It is our intention to resolve, if possible, any confusion and eliminate any injustices which may have been occasioned by our interpretation of the application of the apportionment statutes of the Workmen's Compensation Act.

At the outset of the discussion of the question of apportionment, it should be remembered that we are dealing with a case involving injury to the body as a whole rather than one involving the loss of a member.

Mississippi Code 1942 Annotated section 6998-04(Supp.1966) contains the portion relating to apportionment which commands our attention.It states:

Where a pre-existing physical handicap, 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 payable shall be reduced by that proportion which such pre-existing physical handicap, disease or lesion contributed to the production of the results following the injury.

One question raised by this appeal is: Does apportionment of benefits due to a pre-existing condition apply to weekly benefits and the maximum allowable benefits under the statute?In addition, corollary questions are presented by the briefs which we feel must be resolved in order to properly resolve the controversy.Therefore, we now re-examine our decisions on these matters.

In Sanders v. B. E. Walker Construction Company, 251 Miss. 352, 169 So.2d 803(1964), andDillingham Manufacturing Company v. Upton, 252 Miss. 281, 172 So.2d 766(1965), the Court committed itself to the proposition that apportionment did not apply until the date of the attorney-referee's order.See alsoGoasa & Son v. Goasa, 208 So.2d 575(Miss.1968), andB. & D. Theatres, Inc. v. Davis, 190 So.2d 845(Miss.1966).Thus from the date of injury to the date of the attorney-referee's order a claimant would be entitled to the full amount of compensation allowable in his particular situation, irrespective of a pre-existing infirmity.The reason advanced for this rule was that until treatment had been completed and competent medical evidence heard, the attorney-referee would have no basis for determining the percentage of apportionment.

In Sanders, supra, the elapsed time between the injury and the attorney-referee's order was seven months and eight days; in Dillingham, supra, it was one year and twenty-nine days; in Goasa, supra, it was two years, seventeen weeks and five days.As was prophetically stated in the dissenting opinion of Justice Robertson in Goasa & Son v. Goasa, 208 So.2d 575(Miss.1968), in the instant situation the elapsed time has jumped to approximately three years and seven months.

While this State remains largely agricultural, it is apparent to all that the industrial capacity of the state is growing at a rapid rate.The number of workers coming under the terms of the Workmen's Compensation statutes grows daily.The executive and legislative branches of state government are actively promoting industrial growth.As the state grows industrially, there naturally follows an increase in industrial accidents.The time is rapidly approaching when, under our former decisions, as far as time of apportionment is concerned, the important factor could well be not what the attorney-referee decides but when he decides it.

In dealing with another vital problem in the field of workmen's compensation law, this Court has said that permanent partial disability payments do not begin until the claimant has attained maximum medical recovery.Komp Equip. Co. v. Clinton, 236 Miss. 560, 111 So.2d 259(1959), sugg. of error overruled, 112 So.2d 541(1959);Houston Contracting Co. v. Reed,231 Miss. 213, 95 So.2d 231(1957);Laurel Daily Leader, Inc. v. James,224 Miss. 654, 80 So.2d 770(1955).Until maximum medical recovery has been reached the claimant is entitled to full temporary total disability payments unless such disability was total and permanent on the date of injury.Morgan v. J. H. Campbell Constr. Co., 229 Miss. 289, 90 So.2d 663(1956).

We are of the firm opinion that apportionment of disability payments should start as of the time the claimant has reached maximum medical recovery.Any part of previously rendered decisions that are in conflict with the foregoing interpretation are hereby overruled.We are of the opinion that this determination is the most just and equitable manner by which the equal administration of the Workmen's Compensation law can be accomplished.By adopting this position, application of the apportionment statute is no longer made to depend largely on the schedule of a busy attorney-referee, but can be based on competent medical evidence, as the statute contemplates.

Naturally, neither the date of maximum medical recovery nor the determination of the percentage of apportionment are questions for determination by the employer or carrier.These facts must be determined by the attorney-referee whose order is subject to review by the full commission, the ultimate fact finding body.

If maximum medical recovery has occurred before the attorney-referee's hearing and order, credit for any excess payments by the employer and carrier shall be allowed in future payments.Such allowances and the method for crediting excess payments against future payments shall be determined by the attorney-referee subject to a review by the full commission.

In our...