I. Taitel & Son v. Twiner
| Decision Date | 28 October 1963 |
| Docket Number | No. 42770,42770 |
| Court | Mississippi Supreme Court |
| Parties | I. TAITEL & SON et al. v. Mrs. Iva Lou TWINER. |
Dan McCullen, Butler, Snow, O'Mara, Stevens & Cannada, Jackson, for appellants.
Jacobs, Griffith & Hatcher, Cleveland, for appellee.
Mrs. Iva Lou Twiner, appellee, worked as a seamstress and 'bundle boy' in a garment plant. On July 27, 1960 she received an injury which arose out of and in the course of her employment by I. Taitel & Son, appellant. After a lengthy hearing, the attorney referee awarded her temporary total disability benefits from date of injury through December 1, 1961, and thereafter permanent partial disability. The Workmen's Compensation Commission, the trier of facts, amended the attorney referee's order, and found that claimant had been permanently and totally disabled since the date of her accident. It therefore awarded her permanent total disability benefits from the date of the accident. The Circuit Court of Sunflower County affirmed the commission's order. We have concluded that there was substantial evidence supporting the order, and affirm the commission and circuit court.
Section 8 of the Workmen's Compensation Act (Miss.Code 1942, Rec., Sec. 6998-09) provides compensation for different types of disability. Section 8(c)(25) states:
'Other cases: In all other cases in this class of disability, the compensation shall be sixty-six and two-thirds per centum (66 2/3%) of the difference between his average weekly wages, subject to the maximum limitations as to weekly benefits as set up in this act, and his wage-earning capacity thereafter in the same employment or otherwise, payable during the continuance of such partial disability, but subject to reconsideration of the degree of such impairment by the commission on its own motion or upon application of any party in interest, and such payments shall in no case be made for a longer period than four hundred fifty (450) weeks.'
In 1960 the Legislature amended Section 2(9), the 'definitions' section of the statute, by adding the last clause. Miss.Laws 1960, ch. 276; Code Sec. 6998-02. It provides:
"Disability' means incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or other employment, which incapacity and the extent thereof must be supported by medical findings.'
Prior to her injury Mrs. Twiner was in good health. Her regular job as a seamstress was to operate an electrically powered commercial sewing machine, sewing pockets onto boys' and men's jackets. For temporary intervals she served as a 'bundle boy', carrying boundles of garments, which she stacked on a table. As she turned to pick up a bundle which weighed 40-50 pounds, she twisted a knee, and pain began in her right leg. She went to her personal physician and was then referred to two Memphis doctors: Dr. Fred P. Sage, an orthopedic surgeon, and Dr. James C. H. Simmons, a neurosurgeon. After giving Mrs. Twiner regular treatments without effect, Dr. Simmons operated on her on January 18, 1961 and removed a herniated disc. The commission was warranted in finding that claimant has been permanently and totally disabled since the date of her accident and in excluding any cause other than the work-injury; and in holding that she is not able to perform any work in a gainful occupation. Morgan v. J. H. Campbell Constr. Co., 229 Miss. 289, 90 So.2d 663 (1956).
Appellants argue there is no substantial evidence to support the finding of total and permanent disability. This is based principally on statements of Dr. Simmons that Mrs. Twiner 'had 15% permanent partial impairment to her body as a whole as a result of her disc trouble'; and by Dr. Sage that she had a permanent disability of 'approximately 20% of the value of the body as a whole.' These particular conclusions must be related to the terms of the statute and other relevant testimony, about which later reference will be made. The thrust of appellants' argument involves the effect of the 1960 amendment to Section 2(9). It defines disability as incapacity because of injury to earn wages received at time of injury 'in the same or other employment, which incapacity and the extent thereof must be supported by medical findings.' Appellants say this amendment reflects a legislative intent to measure disability exclusively by medical evidence and functional loss 'rather than by industrial loss.' So they contend any evaluation by the commission greater than 20% of permanent partial disability is not 'supported' by medical findings, under section 2(9).
The purpose of the 1960 amendment was not to require medical findings to be the exclusive basis for establishing disability. Such a mandate would be utterly inconsistent with the remainder of section 2(9), which establishes a standard of incapacity to earn wages in the same or other employment ; and with the statutory basis of this particular award, section 8(c)(25), which measures compensation by loss of 'wage earning capacity thereafter in the same employment or otherwise.'
The 1960 amendment to section 2(9)...
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UNIVERSITY OF MISS. MEDICAL CENTER v. Smith
...The concept of disability comprises a physical injury coupled with a loss of wage earning capacity. I. Taitel & Son v. Twiner, 247 Miss. 785, 792, 157 So.2d 44, 46 (Miss.1963). Disability is determined by comparing the employee's pre-injury wages with the employee's post-injury capacity to ......
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Robinson v. Packard Elec. Div., General Motors Corp.
...877 (Miss.1986); Piggly-Wiggly, supra; Futorian-Stratford Furniture Co. v. Davis, 185 So.2d 665 (Miss.1966); I. Taitel & Son v. Twiner, 247 Miss. 785, 157 So.2d 44 (1963). Similarly, a claimant who has suffered a functional/medical disability of 15% may have no industrial disability at all ......
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...capacity. Univ. of Miss. Med. Ctr. v. Smith, 909 So.2d 1209, 1218 (¶ 31) (Miss. Ct.App.2005) (citing I. Taitel & Son v. Twiner, 247 Miss. 785, 792, 157 So.2d 44, 46 (Miss.1963)). In order to meet the definition of disability, the claimant must not be able to obtain work in similar or other ......
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...said that the concept of disability comprises a physical injury coupled with a loss of wage-earning capacity. I. Taitel & Son v. Twiner, 247 Miss. 785, 792, 157 So.2d 44, 46 (1963). Further, disability is determined by comparing the employee's pre-injury wages with the employee's post-injur......