J.F. Crowe Well Servicing Contractor v. Fielder, 39663

• Decision Date: 16 May 1955
• Docket Number: No. 39663,39663
• Citation: 80 So.2d 29,224 Miss. 353
• Parties: J. F. CROWE WELL SERVICING CONTRACTOR and Western Casualty and Surety Company v. Curtis L. FIELDER.
• Court: Mississippi Supreme Court

Page 29

80 So.2d 29

224 Miss. 353

J. F. CROWE WELL SERVICING CONTRACTOR and Western Casualty and Surety Company v.Curtis L. FIELDER.

No. 39663.

Supreme Court of Mississippi.

May 16, 1955.

Vardaman S. Dunn, Jackson, for appellants.

Wall & Allen, Brookhaven, for appellee.

LEE, Justice.

On the claim of Curtis L. Fielder against J. F. Crowe Well Servicing Contractor for benefits under the State Workmen's Compensation Act, the attorney-referee (1) fixed August 1, 1951, as the date on which the claimant reached the maximum benefit from medical treatment, (2) found that he had a medical disability of 70% and an earning capacity of 30%, and (3) ordered payment of $25 weekly during the continuance of his partial disability, but not to exceed 450 weeks, as provided by Section 8(c)(21) of the Mississippi Workmen's Compensation Act, as amended.The award, on review by the Commission, was affirmed by a majority vote.On the employer's appeal to the circuit court, the order was affirmed, but modified so as to limit the period to 450 weeks, or $8,600, whichever shall be the lesser.From that judgment, the employer and his insurer prosecuted a direct, and the claimant, a cross-appeal.

The question, on direct appeal, is when, under the State Workmen's Compensation Act, does temporary total disability end.

Fielder was employed by J. F. Crowe Well Servicing Contractor as a roustabout.His weekly wage varied between $80 and $106.On February 13, 1949, as he was performing the duties of his employment, a piece of iron pipe fell out of a set of poles, struck him on the head, and caused twelve or fifteen fractures of the skull.He was hospitalized immediately; and several days later, on February 21, Dr. Charles L. Neill, a prominent Neurological Surgeon, operated to relieve the pressure of collected fluid from the surface of the brain and to assist nature in mending the damage.The claimant remained in the Baptist Hospital for about ten days.

About October 17, 1949, on the advice of his doctor, Fielder went back to work for the same employer.However, because of dizziness and severe headaches, he was unable to do the work in which he had been engaged.Continuing to follow medical advice, he worked at several light jobs, finally ending up as a night watchman, which work required very little physical effort.The doctor saw him from time to time.Following the operation, Dr. Neill prescribed anti-convulsive medication, which Fielder took.Finally in March 1951, it was necessary for the doctor to perform another operation, by which he cut into the skull and removed a collection of bloody fluid.This necessitated hospitalization for about twelve days.

Dr. Neill testified that brain injuries are unpredictable.They are slow in healing and require about two years of care, study and treatment.He explained that, if he had not been treating Fielder or giving him anti-convulsive medication, his patient might have suffered a series of convulsions and incurred a 100% disability.He explained that he had written the insurance company on July 12, 1950, and advised that, as a result of his prior June examination, the 'patient has attained maximum benefit from medical treatment' and rated his disability at '50-60 per cent'.But later, as the result of collaboration with another doctor, he was concerned about Fielder's condition, continued to prescribe anti-convulsive medication, and finally performed the second operation.The doctor testified that Fielder had been under his treatment from the inception of his injuries to August 1, 1951, and that his injury had not healed and he had not reached maximum recovery until August 1, 1951.He estimated the disability, at that time, at 70%.

The proof showed that Fielder earned $686.80 in 1949; $934.50 in 1950; $1,151.50 in 1951; and $1,316.00 in 1952.

Section 8(b), Chap. 354, Laws of 1948, Section 6998.09(b), Code of 1942 Annotated, the applicable part of the Act is as follows: 'Temporary total disability: In case of disability total in character but temporary in quality, sixty-six and two-thirds per centum (66 2/3%) of the average weekly wages, subject to the maximum limitations as to weekly benefits as set up in this act, shall be paid to the employee during the continuance of such disability not to exceed four hundred fifty (450) weeks or the maximum of eight thousand six hundred dollars ($8,600.00), whichever shall be the lesser in amount.'

The above section deals with temporary total disability.The benefits there provided for are paid during the continuance of a disability, total in character but temporary in quality.In other words, such benefits are to be paid during the healing period and until such time as the claimant shall reach the maximum benefit from medical care and treatment.This period may run 450 weeks, but the amount to be paid cannot exceed $8,600.

In 58 Am.Jur., Workmen's Compensation, Sec. 283, p. 779, it is said: 'Temporary as distinguished from permanent disability has been defined as 'a condition that exists until the injured workmen is as far restored as the permanent character of the injuries will permit."

When the claimant returned to work about October 17, 1949, he did so under the advice of the doctor, who was obviously seeking to ascertain to what extent the patient was responding to treatment.Of course the doctor did not then think that the claimant had reached the maximum benefit of medical care and treatment.As a result of an examination in June 1950, the doctor concluded that the claimant had reached such maximum benefit; but persistent symptoms and reactions and consultation with another doctor caused him to change his mind about the matter and, upon further examination, he concluded that another serious operation was necessary.

Under the clear proof in this case, the triers of fact were fully...