Everitt v. Lovitt, 44139

• Decision Date: 28 November 1966
• Docket Number: No. 44139,44139
• Citation: 192 So.2d 422
• Parties: R. D. EVERITT, Russell Fox and Brad Dye, Jr., Commissioners, Mississippi Workmen's Compensation Commission v. Clifton F. LOVITT.
• Court: Mississippi Supreme Court

Page 422

192 So.2d 422

R. D. EVERITT, Russell Fox and Brad Dye, Jr., Commissioners, Mississippi Workmen's Compensation Commission v. Clifton F. LOVITT.

No. 44139.

Supreme Court of Mississippi.

Nov. 28, 1966.

Joe T. Patterson, Atty. Gen., by Martin R. McLendon, Asst. Atty. Gen., Jackson, for appellants.

Pyles & Tucker, Jackson, for appellee.

Dan McCullen and Butler, Snow, O'Mara, Stevens & Cannada, Jackson, amici curiae.

BRADY, Justice.

With reference to the Mississippi Workmen's Compensation law, this case is one of first impression. The record does not involve an appeal from the Mississippi Workmen's Compensation Commission but involves a writ of prohibition issued by the Circuit Court of Hinds County, Mississippi, prohibiting the Commission from requiring a compensation claimant to undergo medical examination in connection with his claim for benefits.

This appeal is from an original action instituted by the appellee in the Circuit Court of the First Circuit Court District of Hinds County, Mississippi, to prohibit the Commission from exercising one of its administrative functions during the course of the hearing of appellee's compensation claim. The pertinent facts essential to the determination of the issues involved are as follows:

On August 20, 1963, appellee was employed as a pipe fitter for Fluor Corporation at Pascagoula, Mississippi, and on said date American Motorists Insurance Company was employer's compensation carrier. While welding on that date, the appellee sustained a knee injury which was handled as a medical claim inasmuch as the claimant did not miss five days from work.

Subsequently, on October 10, 1963, appellee applied for benefits, not only for his knee injury but also for a back injury which he allegedly sustained on August 20, 1963. An initial hearing was held on February 10, 1964, and the employer and carrier voluntarily assumed liability for temporary total disability and paid temporary total benefits to the appellee to November 3, 1964. Thereafter, on June 30, 1965, the hearing was resumed before the Commission for the purpose of determining the extent of appellee's disability and its relation, if any, to the injury of August 20, 1963.

On July 30, 1965, Dr. Anthony J. Santangelo, the only witness who was called, testified over appellant's objection that appellee was suffering from a psychiatric or emotional problem. The employer and carrier had had no prior notice of any claim for an alleged mental or nervous condition. Appellee's application for benefits claimed only knee and spinal injuries.

The employer and carrier moved for an order to require appellee to be examined by Dr. Richard W. Naef, a neuropsychiatrist of Jackson, Mississippi. This motion was strenuously resisted by appellee's attorney, but the motion was sustained by the attorney referee on July 30, 1965. The ruling of the attorney referee was in the following language:

I overrule the objection and sustain the motion. I agree with you. I don't think they have the right to request that he be seen by Dr. Naef but I have the power to make a broad investigation of the claimant's situation and I'm going to authorize an examination by Dr. Naef.

Appellee's attorney insisted that if the employer and carrier wanted the testimony of Dr. Naef it could be procured by hypothetical questions, but that the employer and carrier did not have a right to require a physical examination of the appellee.

The record further discloses that on October 10, 1963, after having returned to his home in Jackson and after having worked for other employers, appellee filed for compensation benefits against Fluor Corporation and American Motorists Insurance Company for the injury of August 20, 1963, contending for the first time that he had a back injury in addition to the knee injury. Simultaneously with the filing of Form B-5, 11, appellee's attorneys requested medical benefits from the employer and carrier. In reply to the request for medical treatment the carrier on October 11, 1963, notified appellee's attorneys that it was selecting Dr. George D. Purvis, an orthopedic surgeon of Jackson, Mississippi, as appellee's treating physician. It appears that Dr. Purvis was out of twon at that time and appellee could not have reached him, but the record further discloses that appellee never went to Dr. Purvis for examination or treatment and never intended to do so.

On December 31, 1963, the Commission and the employer and carrier's attorneys were notified by appellee's counsel that the appellee of his own accord had gone to Dr. William B. Tumlinson, a general practitioner, on November 24, 1963. Dr. Thomas S. Eddleman, an orthopedic surgeon, was called in for consultation and the latter performed surgery on appellee on November 27, 1963. The operation was for the repair of the cartilage in the left knee. This surgery, it appears, was performed without the knowledge of the employer and carrier and at a time when Dr. George D. Purvis, a competent orthopedic surgeon, had been designated as the treating physician by the carrier pursuant to section 7 of the act. The employer and carrier notified appellee's attorney and the Commission that they rejected Dr. Tumlinson as the treating physician, not only because he was an unauthorized physician, but also because his charges were unreasonable.

Dr. Tumlinson and appellee were notified by carrier's attorney on April 20, 1964, of the rejection of Dr. Tumlinson by the employer and carrier. Despite this notice of rejection, appellee continued under the care of Dr. Tumlinson in violation of section 7 of the act. Notwithstanding the rejection of Dr. Tumlinson as the treating physician and without making any prior request of the employer and carrier for psychiatric treatment, the appellee was referred to Dr. Anthony J. Santangelo, a neuropsychiatrist, on December 3, 1964, by Dr. Tumlinson.

Appellee was again seen by Dr. Santangelo on January 25, 1965. Dr. Santangelo admitted that he had not furnished the employer and carrier medical reports within twenty days following his examination of appellee as required by section 7 of the act. He further admitted that he had not furnished medical reports to carrier's attorney.

The record discloses that neither the employer, the carrier nor their attorneys were furnished medical reports by Dr. Santangelo in compliance with procedural rule 9, nor were said parties notified in writing prior to the July 30, 1965, hearing that Dr. Santangelo would be called as a witness. The record indicates that it was but two days before the hearing that the appellants received any notice whatever that Dr. Santangelo was going to testify.

Appellants objected to Dr. Santangelo's testifying but were overruled by the Commission. Appellants also objected to Dr Santangelo's evaluation of an emotional or a psychiatric problem since the pleadings contended for disability only for the alleged injury to the left knee and an alleged injury to the lumbar spine. This objection likewise was overruled.

Immediately after the conclusion of Dr. Santangelo's testimony, the employer and carrier moved that appellee submit himself to Dr. Richard W. Naef, a neurologist and neuropsychiatrist, for examination. After thorough argument, the motion was sustained by the attorney referee, and on that date an appointment was obtained with Dr. Naef by the employer and carrier. Appellee, his attorney and the physician were notified of the place and date of the examination.

Appellee did not continue with the prosecution of his claim before the Workmen's Compensation Commission nor did he appeal from the attorney referee's order of July 30, 1965, but, in lieu thereof, he instituted an original petition for the writ of prohibition in the Circuit Court of the First Circuit Court District of Hinds County, Mississippi, against the three compensation commissioners, appellants herein. A temporary writ of prohibition was granted by said circuit court without notice on August 4, 1965.

On September 3, 1965, a general demurrer and answer were filed in behalf of appellants. The demurrer was overruled on November 11, 1965, and a final judgment making the temporary writ of prohibition permanent was entered on December 10, 1965. From said final judgment, this appeal is perfected to this Court by the three compensation commissioners.

Two cardinal questions are presented in this cause. The first is: Did the lower court err in issuing the writ of prohibition? At the outset it should be noted that the Mississippi statutes vest full and complete jurisdiction to hear and determine claims for benefits under the workmen's compensation law in the Workmen's Compensation Commission. Miss.Code Ann. § 6998-01 (1952). This is in accord with the general rule of law:

A workmen's compensation board or commission is generally clothed with full and complete jurisdiction to determine in the first instance all questions arising under the compensation law, and to hear and determine all matters relating to the administration and enforcement of the compensation act, and, within the sphere of its special or limited jurisdiction, the jurisdiction of a compensation board or commission is usually original, primary, and exclusive, and no other tribunal can exercise original jurisdiction for the enforcement of the terms and provisions of the act. (100 C.J.S. Workmen's Compensation § 383 at pp. 139-140 (1958).)

It is pointed out in 73 C.J.S. Prohibition § 12a at pp. 66-68 (1951) as follows:

Prohibition ordinarily does not lie to correct or restrict errors or irregularities of a tribunal which is acting within its jurisdiction, although proceeding improperly in the exercise of that jurisdiction. Where the inferior court or tribunal has jurisdiction of the person and subject matter, prohibition does not lie to prevent an erroneous decision or to prevent the enforcement of an erroneous judgment. A writ of prohibition may not be used to control the...