Hall of Mississippi, Inc. v. Green
| Citation | 467 So.2d 935 |
| Decision Date | 17 April 1985 |
| Docket Number | No. 54647,54647 |
| Parties | HALL OF MISSISSIPPI, INC. v. Walter GREEN. |
| Court | United States State Supreme Court of Mississippi |
Wendell H. Trapp, Jr., Smith, Ross & Trapp, Corinth, for appellant.
Phil R. Hinton, Wilson & Hinton, Corinth, for appellee.
Before ROY NOBLE LEE, P.J., and SULLIVAN and ANDERSON, JJ.
This is a workmen's compensation appeal from the Circuit Court of Alcorn County. Appellee, a 35-year-old male, worked for his family automobile dealership for approximately twelve years. In February 1981 he left the dealership and secured a job with appellant through the Mississippi Employment Commission as a temporary material handler. After four days in this position, appellee injured his back while lifting boxes. He worked the five hours remaining in his shift and sought medical treatment, both in Corinth and Memphis. He was treated conservatively and released, but advised not to return to his job immediately. In June, some four months later, while watching television on a Sunday afternoon, appellee coughed and immediately noticed pain in his back. As a result of this, he again sought treatment in Memphis, where surgery was performed for a ruptured disc. He returned for subsequent visits and was finally released in October 1981.
Appellee resumed his employment at his family car dealership where he earned $200 per week, is provided with two cars at no expense, along with gas and health insurance. At the trial below, appellant admitted the initial injury but alleged that appellee's condition was a result of a later non-work related injury (presumably the cough). Appellant also denies that appellee suffered any loss of wage earning capacity.
The administrative judge ruled that appellee suffered a work related injury, rendering a 15% permanent partial disability to the body as a whole, resulting in a loss of wage earning capacity of 50%. He further ruled that all appellee's earnings with Green Motor Company since his injury were not wages within the meaning of the Mississippi Workers' Compensation Act. Appellant petitioned for a review by the full commission and appellee petitioned for a review and increase of award; the full commission sustained the findings of the administrative judge and on appeal was affirmed by the circuit court.
Appellant has assigned the following errors:
I. THE TRIAL COURT ERRED IN FINDING APPELLEE'S RUPTURED DISC PROXIMATELY RESULTED FROM AN ON-THE-JOB INJURY.
II. THE TRIAL COURT ERRED IN AWARDING APPELLEE PERMANENT PARTIAL DISABILITY BENEFITS.
III. THE TRIAL COURT ERRED IN FINDING APPELLEE SUFFERED A LOSS OF WAGE EARNING CAPACITY.
POINT I.
It is uncontroverted that appellee received an on-the-job injury on February 11, 1981. Appellants contend this injury did not cause the ruptured disc and subsequent surgery. On review the medical testimony establishes that there was a causal relationship between appellee's on-the-job injury and his subsequent ruptured disc. Dr. DeSaussure, the surgeon who operated on the appellee stated the following:
Q. And assume that his injury in February of 1981 began the chain of events--
A. Yes, sir.
Q. --which resulted in him being operated on for a ruptured disc. is that correct?
A. Yes, sir.
Q. The two are connected in some way?
A. Oh, I don't know that. I said I'd give him the benefit of the doubt.
Q. And are you saying that you will give him the benefit of the doubt, today?
A. As far as I'm concerned, yes.
Q. Then of the two possibilities, one that it was the cough alone or the other being that it's related to the initial injury; in your expert opinion, to a reasonable degree of medical certainty, which is--
A. There's no way of telling.
Q. Then the cough is not more probable than the other? There's no way of distinguishing at this point.
A. That's my opinion; yes, sir.
Dr. Boyd who also examined the appellee, testified as follows:
Q. Have you been able to form an opinion as to whether the initial injury of Mr. Green was related or not related to the eventual rupture and the surgery?
A. In my opinion it probably was.
Q. You have reached an opinion?
A. That is my opinion.
Q. And in your expert opinion to a reasonable degree of medical certainty can you say that it probably was related?
A. In my opinion it was.
We also note that Dr. DeSaussure, in a letter dated September 11, 1981, made the following statement:
It is possible that Mr. Green weakened the annulus fibrosis which holds the disc in its normal position when he injured his back in February of 1981, but he got along fairly well until he sneezed at which time the annulus fibrosis was ruptured accounting for the extruded disc.
We find that there was substantial evidence before the commission to justify a finding of causal relationship between appellee's on-the-job injury and his subsequent ruptured disc surgery and disability. Therefore, appellant's first assignment of error is without merit.
POINT II.
It is the contention of the appellant that as a matter of law, appellee is not entitled to any permanent partial disability benefits because he has not met the requirements of the act.
Disability means incapacity because of injury, to earn wages which the employee was receiving at the time of the injury in the same or other employment, which incapacity and the extent thereof must be supported by medical findings. Miss. Workmen's Compensation Act, Sec. 2(9); MCA Sec. 71-3-3(i) (1972). (Emphasis added).
Appellants argue that the above section requires that an employee demonstrate an "incapacity" to earn wages which incapacity and the extent thereof must be supported by medical findings. Unless one is able to do so, one has failed as a matter of law to demonstrate entitlement to disability benefits. The medical testimony in this case was that after surgery the appellee should have been able to perform any duties that he did before surgery. Both physicians, however, indicated that the appellee had suffered an anatomical disability of 15% to the body as a whole as a result of the injury and subsequent surgery. Both physicians did, however, testify that the appellee was more likely to have future back problems than one without a similar injury and surgery. Dr. Boyd also testified that it was his opinion that if appellant had returned to the same work he had done previously with the appellant, it would further increase his chances of difficulties with his back. Also, Dr. Boyd made it clear that his disability rating dealt only with the functioning of the body and did not relate to limitations that the appellee might place upon himself because of pain or discomfort.
In contrast to this medical testimony, the appellee and his corroborating witnesses testified that he was unable to perform any task involving physical exertion and that he was plagued by pain. Mr. Jimmy Caldwell, with the Alcorn County Employment office, testified that because of appellee's education and work experience, and prior back problems, it would be difficult for him to find employment in that area.
Before we address the question of whether or not appellee presented sufficient corroborating testimony to allow the trier of fact to find him disabled, we must dispose of appellant's contention that disability can only be proven by medical testimony. Simply put, we hold that disability need not be proved by medical testimony as long as there is medical testimony which will support a finding of disability. In the instant case supportive medical testimony consists of the testifying physician's finding that appellee suffered a 15% permanent anatomical disability.
Appellant's reliance on Harris v. Chicago Mill & Lbr. Co., 441 So.2d 557 (Miss.1983), is misplaced. There the claimant suffered a ruptured disc and there was no medical testimony to establish an anatomical disability. Our holding here is in harmony with our previous holding in I. Taitel & Son v. Twiner, 247 Miss. 785, 157 So.2d 44 (1...
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