Johnston v. Hattiesburg Clinic, P.A., 53445

• Decision Date: 17 November 1982
• Docket Number: No. 53445,53445
• Citation: 423 So.2d 114
• Parties: Annie Ruth JOHNSTON, Deceased, Dependents of v. HATTIESBURG CLINIC, P.A. and St. Paul Fire & Marine Insurance Company.
• Court: Mississippi Supreme Court

Page 114

423 So.2d 114

Annie Ruth JOHNSTON, Deceased, Dependents of v. HATTIESBURG CLINIC, P.A. and St. Paul Fire & Marine

Insurance Company.

No. 53445.

Supreme Court of Mississippi.

Nov. 17, 1982.

McMahan & McMahan, Michael B. McMahan, Hattiesburg, for appellants.

Aultman & Aultman, Lawrence C. Gunn, Jr., Hattiesburg, for appellees.

Before PATTERSON, C.J., and BOWLING and PRATHER, JJ.

BOWLING, Justice, for the Court:

The appeal of this workmen's compensation case comes from the Circuit Court of Forrest County. The dependents of Annie Ruth Johnston, deceased, appeal from an adverse order of the lower court affirming the decision of the Workmen's Compensation Commission denying death benefits. Mrs. Johnston died from a heart attack, the onset of which occurred while she was engaged in her employment with the appellee, Hattiesburg Clinic. Appellants assign the following alleged errors:

I. THE CIRCUIT COURT OF FORREST COUNTY ERRED IN DISMISSING THE PETITION FOR APPEAL FILED ON DECEMBER 30, 1980.

II. THE COURT ERRED IN ITS FINAL JUDGMENT OF SEPTEMBER 15, 1981.

III. THE FACTUAL FINDINGS OF THE MAJORITY MEMBERS OF THE COMMISSION ARE NOT SUPPORTED BY SUBSTANTIAL EVIDENCE.

IV. A REBUTTABLE PRESUMPTION OF CAUSAL CONNECTION BETWEEN EMPLOYMENT AND DEATH SHOULD HAVE BEEN APPLIED TO THIS CASE, AND THE DEFENDANTS FAILED TO OFFER SUFFICIENT EVIDENCE TO REBUT THE PRESUMPTION OF CAUSAL CONNECTION.

It is necessary first to dispose of the alleged error of the circuit court in dismissing appellants' petition for appeal from the commission's order to the circuit court.

The order of the Workmen's Compensation Commission was entered on September 19, 1980. On October 3, 1980, appellants filed a motion requesting a review of the evidence by the commission. On November 6, 1980, the commission entered its order overruling the motion for review. Appellants' notice of appeal to the circuit court was filed on November 13, 1980. Appellees contended successfully before the circuit court that the October 3 motion to review did not serve to toll the thirty-day appeal requirement from the commission to the circuit court. [MCA Sec. 71-3-51 (1972) ].

The question appears to be of first impression before this Court. We first note the provisions of MCA Sec. 71-3-53, which provide that:

Upon its own initiative or upon the application of any party in interest on the ground of a change in conditions or because of a mistake in a determination of fact, the commission may, at any time prior to one (1) year after date of the last payment of compensation, whether or not a compensation order has been issued, or at any time prior to one (1) year after the rejection of a claim, review a compensation case, issue a new compensation order which may terminate, continue, reinstate, increase, or decrease such compensation, or award compensation.... (Emphasis added).

In looking at the appeal statute and the above quoted section on "continuing jurisdiction of the commission," it appears that the motion of appellants, when filed within the thirty-day appeal period, would toll the thirty-day requirement until an order disposing of the motion is entered by the commission. Going further, there are several other considerations. We have held that a rule of statutory construction is that "where the language of a statute is doubtful and the necessity for construction arises, the court may consider whether the legislature could have intended a construction that would be highly injurious, rather than one beneficial and harmless." See McCaffrey Food Market, Inc. v. Miss. Milk Commission, 227 So.2d 459 (Miss.1969).

Another appeal requirement in workmen's compensation cases is that the losing party before an administrative judge is required to file his notice of review before the full commission within twenty days from the date of the order of the administrative judge. [MCA Sec. 71-3-47 (1972) ]. In the case of Day Detectives, Inc. v. Savell, 291 So.2d 716 (Miss.1974), the losing party before the administrative judge filed a similar motion as was filed here within the twenty-day statutory period. We held that the filing of that motion tolled the twenty-day statutory appeal time from the administrative judge's order to the full commission.

It further appears that the motion filed herein after a final judgment by the commission is similar to the filing of a motion for a new trial in a court of record. We have held many times that the filing of such a motion tolled the time for appeal. Garrett v. Miss. State Highway Commission, 227 So.2d 856 (1969); Gulf, Mo. O.R. Co. v. Forbes, 228 Miss. 134, 87 So.2d 488 (1956); Davidson v. Hunsicker, 224 Miss. 203, 79 So.2d 839 (1955); Edwards v. Peresich, 221 Miss. 788, 74 So.2d 844 (1954); and Shaw v. Bula Cannon Shops, Inc., 205 Miss. 458, 38 So.2d 916 (1949).

We are of the opinion that the circuit court was in error in dismissing appellants' petition for appeal. It is clear, however, that the error in this particular case is harmless as the circuit court heard the appeal under the commission's order overruling appellants' motion for review. The entire cause is before the Court on the circuit court's review of that order.

The remaining three assignments of error may be discussed together. We primarily consider the assignment regarding the rebuttable presumption of causal connection between the employment of the deceased and her death and whether or not appellee overcame this presumption. First, we need to look at the practically undisputed facts.

Mrs. Johnston had been employed by the appellee, Hattiesburg Clinic, for twenty-six years. During this period of time, the clinic grew from a relatively small three physician clinic to a large metropolitan clinic of well over 130 employees and physicians. The testimony of the deceased's husband and daughter dependents, other knowledgeable persons, and former employees, was that in recent weeks and months prior to her death, Mrs. Johnston had been under an extremely heavy work load. She was the assistant administrator of the clinic. The employment of the administrator had been terminated and Mrs. Johnston had assumed increasingly numerous tasks and had developed from a personnel and equipment supervisor to a managerial capacity. It is undisputed that prior to a few weeks before her death, Mrs. Johnston handled her duties adequately and without any adverse effects. Her personal medical records at the clinic for many years revealed a normal, healthy person, without any history of cardiovascular disease or any other serious ailments. She was a very energetic employee.

The testimony is undisputed that prior to her knowledge that the administrator was leaving and her increased duties, Mrs. Johnston reported for work between 8:30 and 9 a.m. and left work about 5:30 p.m. During the last three or four months prior to her death, she had been going to work at 8 a.m. and staying until 6:30 to 7:30 p.m. She would come home extremely tired, irritable, and upset. The clinic administrator testified that Mrs. Johnston's responsibilities during the six month period prior to her death increased pressure on her; that a new building had been completed and Mrs. Johnston's duties included the moving of personnel and adjustments in the new building, which as hereinabove stated, had grown into a very large operation.

All that is known about Mrs. Johnston's activities on the day of the onset of her heart attack also is undisputed. She arrived at work around 8 a.m. Only one person saw her from that time until the onset of her fatal attack that occurred at approximately 9:30 a.m. This person was a Mrs. Nemeth, the switchboard operator. She saw Mrs. Johnston in the clinic lounge and had coffee with her for a few minutes at approximately 9:15 a.m. According to Mrs. Nemeth when Mrs. Johnston left the lounge, she was carrying a box of stationery. Mrs. Johnston was found having the onset of her heart attack, as above stated, while she was on the elevator of the clinic. It was immediately diagnosed that she had suffered an acute myocardial infarction. She was taken to the hospital by ambulance and died approximately six hours later.

Mrs. Johnston was treated at the hospital by Dr. Gable, who had been her physician for many years. Dr. Gable appeared to be the head, or one of the top managing physicians, of the clinic.

At the hearing of the cause, appellants fully developed the facts, as hereinbefore stated in concise form. Neither appellants nor appellee introduced testimony from Dr. Gable. Appellee introduced the testimony of Dr. Cowan, a cardiologist who had been employed to practice with the clinic after the death of Mrs. Johnston. He did not know her and never treated her. Under a hypothetical question setting out the facts of the case, it was his opinion that there was no causal relation between the death of Mrs. Johnston and her employment. His opinion was that Mrs. Johnston's activities could causally relate to the onset of the attack only if she had been engaged in "extreme physical exertion." He, unlike many records before this Court, testified positively that stress, fatigue, pressure, emotion, or anything except "extreme" physical exertion would have nothing whatsoever to do with aggravating any prior heart condition of Mrs. Johnston. He assumed that she had a prior condition. As hereinbefore stated the clinic records, up until her death, showed absolutely no prior condition of this kind. Dr. Gable, who did not testify, had been her personal physician for many years.

It would be helpful to look at portions of the orders of the Workmen's Compensation Commission's majority and dissenting opinions. The commission recognized the presumption of causal connection and stated:

[H]ere the employee's "lips were not sealed" to explain and relate her activities. The cause of death was explained and agreed and the decedent's activities were documented without conflict by her co-workers.... There is no...