Harpole Bros. Const. Co. v. Parker

• Decision Date: 25 October 1971
• Docket Number: No. 46332,46332
• Citation: 253 So.2d 820
• Court: Mississippi Supreme Court
• Parties: HARPOLE BROTHERS CONSTRUCTION CO. and U.S.F. & G. Company v. Willis PARKER.

Page 820

253 So.2d 820

HARPOLE BROTHERS CONSTRUCTION CO. and U.S.F. & G. Company v. Willis PARKER.

No. 46332.

Supreme Court of Mississippi.

Oct. 25, 1971.

Satterfield, Shell, Williams & Buford, Kenneth G. Perry. Jackson, for appellants.

Greaves & Terry, Gulfport, for appellee.

INZER, Justice:

This is a Workmen's Compensation case. It is unusual in that claimant has not been paid any compensation, although he suffered an on-the-job traumatic injury to his back and a severe laceration to his leg and foot, resulting in his being unable to perform physical labor since his injury. It is also unusual in that the claim was filed on March 30, 1967, and was not finally determined by the Workmen's Compensation Commission until June 28, 1970.

The proof in this case is undisputed that Willis Parker, a 58 year old make, prior to his injury on or about October 25, 1965, was a strong able-bodied man. He had only about an eighth grade education and had performed physical labor all of his life. He had never had any trouble with his back until he suffered an on-the-job injury while working for appellant, Harpole Brothers Construction Company. The proof is also undisputed that claimant and a fellow employee were operating chain saws cutting timber to clear right-of-way for power lines. Claimant was injured when a limb from a falling tree struck him in the back, knocking him to the ground. His fellow employee was also injured in the same accident. Although his employer was notified of the accident he did not offer to send appellant to a doctor. After the accident, claimant was unable to work for several days. When he was able to be up and around his employer insisted he would have to return to work. He requested lighter work but was told he was employed to operate a power saw. Claimant tried to operate the saw, but it became entangled in some vines causing him to lose control of it, resulting in a severe laceration to his leg and foot. After this accident, appellee was offered medical care for the first time. He was carried to the hospital in Holly Springs where he was seen by Dr. Anthony B. Jones. When Dr. Jones saw the severity of the injury, he cleaned the wound and transferred claimant to Memphis, where he was treated by a surgeon who sutured the wound. Later he was carried back to Memphis where part of the stitches were removed. After his leg injury, appellee told his employer his back was hurting and that he needed medical care. The employer refused to furnish the medical care. Claimant did not know and was not in any way advised that his employer was subject to the Workmen's Compensation Act. The employer never reported claimant's injuries to the Workmen's Compensation Commission.

At the time of the injury appellant was living at a truck stop at New City. After the injury he stayed there for several weeks. When his funds were exhausted, he was forced to leave. He hitchniked to Canton where he stayed several days with his nephew. He went to a doctor there who removed the remainder of the stitches from his leg. Since that time he has lived with relatives and friends. All of the witnesses, who testified in this case, testified that since claimant was injured he has been unable to perform physical labor because of the condition of his back.

In 1967 appellee learned that his fellow employee who was injured in the same accident was drawing compensation as a result of his injury. He then employed an attorney and his claim for compensation was filed on March 30, 1967. The employer-carrier answered his application and denied that appellee was injured and denied the employer-employee relationship existed at the time of the alleged injury. It was also denied that the parties were subject to the Workmen's Compensation Act at the time of the injury or that the employer had any notice of the injury. Later the answer was amended to admit the employer was insured under the Workmen's Compensation Act on the date of the injury and to plead a pre-existing condition and to request apportionment.

The first hearing on the claim was had on February 12, 1968, and thereafter several hearings were had, the last being on September 5, 1969. The attorney referee's opinion was not rendered until April 15, 1970, and the order of the commission denying the claim was not entered until June 28, 1970.

The attorney referee found that at the time of his injury, appellant was performing services growing out of and in the course of his employment and that timely notice was received by his employer. The attorney referee denied the claim for compensation in toto. The basis for the denial was that in the opinion of the attorney referee the claimant had failed to establish his disability was causally related to the accident.

Upon review by the full commission, the order of the attorney referee was affirmed. An appeal was had to the circuit court, and that court entered an order reversing the order of the commission denying compensation and remanded the cause to the commission for the determination of the period of temporary total disability and for the determination of a pro-rata percent that the pre-existing condition contributed to claimant's permanent disability. The circuit judge was of the opinion after reviewing the record in this case that the order of the commission was against the overwhelming weight of the evidence and was arbitrary, capricious, and totally against the intent and purpose of the Workmen's Compensation Act.

The employer-carrier has appealed from the order of the circuit court. It is their contention the commission is the finder of the facts and where the testimony is in direct conflict upon the issue of causal connection a determination of the issue by the commission is final, and it was error for the circuit court to overthrow the finding of the commission.

Dr. Kendall Gregory, whose specialty is diagnosis and internal medicine, examined claimant on October 15, 1968. He performed a complete physical and neurological examination. He testified he found definite signs of osteoarthritis, particularly of the third and fourth lumbar vertebrae. He stated the first and second lumbar vertebrae were almost entirely free of osteoarthritic changes. He found a large spur was present on the fourth lumbar vertebrae, with a smaller spur on the third lumbar vertebrae. He also found there was a loss of disc space between the fifth lumbar vertebrae and the first sacral vertebrae. He stated the significance of the absence of any sign of osteoarthritis in the upper lumbar vertebrae or spurring in the upper lumbar vertebrae is that the injury complained of caused the traumatic arthritis. He said further indications were the finding of traumatic arthritis was consistent with a history of injury to the back, as well as not...