Karr v. Armstrong Tire & Rubber Co.

• Decision Date: 05 January 1953
• Docket Number: No. 38581,38581
• Citation: 216 Miss. 132,61 So. 2d 789
• Parties: KARR v. ARMSTRONG TIRE & RUBBER CO. et al.
• Court: Mississippi Supreme Court

Page 789

61 So.2d 789

216 Miss. 132

KARR v. ARMSTRONG TIRE & RUBBER CO. et al.

No. 38581.

Supreme Court of Mississippi.

Jan. 5, 1953.

Berger & Callon, W. A. Geisenberger, Natchez, for appellant.

Butler, Snow & O'Mara, Jackson, for appellees.

ROBERDS, Presiding Justice.

This is a claim under Section 8(c) and (21) of the Mississippi Workmen's Compensation Act, Chapter 354 General Laws of Mississippi 1948, amended by Chapter 412, Laws of Mississippi 1950.

It arises under these circumstances: On April 27, 1950, Karr, the appellant, was, and for a number of years prior thereto had been, an employee of appellee, Armstrong Tire & Rubber Company. On said date he was a welder's helper. He and one Welch were endeavoring to repair a hydraulic pump. They were cutting an oil pipe connected to the pump, using for that purpose an electric torch. Oil escaped from the pipe and came in contact with the torch, igniting oil-soaked rags and other debris on the floor near the escaping oil. The two workmen proceeded to put out the fire, using fire extinguishers, one or more of which contained carbon tetrachloride. The contact of that substance with the fire produced a heavy, smoky, gaseous mixture in the room, which covered Karr and which he inhaled, causing painful irritation of his chest, face and throat. He filed his claim for his wages for four weeks, during which time he was unable to work, and, in addition, for reduced wage-earning capacity resulting from permanent partial loss of use of his voice. The Attorney-Referee, at a hearing held May 7, 1951, allowed compensation for the four weeks he was absent from his work, but disallowed the remainder of the claim. The Commission and the circuit court affirmed the finding and holding of the Attorney-Referee. Karr appealed from that part of the order disallowing the partial permanent disability claim. No appeal was taken by the employer and carrier from allowance of the four weeks wages; therefore, the only question before us is the correctness, upon this record, of the refusal to allow Karr compensation grounded on loss of the use of his voice.

The Attorney-Referee found that the gaseous substance inhaled by Karr was a contributing factor to the loss of his voice. He also found and adjudged '* * * that the disability exhibited by the claimant at the time of the hearing was a percentage equal to eighty percent (80%) inability of the use of the voice, and that the claimant could talk audibly in only a very hoarse whisper which caused apparent effort on his part, and which he stated was very tiring to him.' There is ample testimony to support the stated findings. However, the Attorney-Referee then concluded that the claim, except as to the four weeks actual loss of time, was not compensable, without specifically stating the reason for such conclusion. His order recites that he '* * * finds and adjudges that the permanent disability, if any, suffered by the claimant in this cause is such that (it) is not embraced within that class of disability under the Workmen's Compensation Act of 1948, as amended, that entitles the claimant to recover compensation'. That, it is seen, is a conclusion. The fact upon which the conclusion rests is not stated. However, as all parties seem to proceed on the assumption that the nature of the disability was that of permanent partial disability covered specifically by Section 8(c)(21) of the Workmen's Compensation Act, the conclusion of the Attorney-Referee that the claim was not compensable must have been grounded upon his belief the applicant had suffered no impairment of wage-earning capacity. But we do not think the facts were sufficiently developed on that phase of the case, and apparently the Attorney-Referee did not give weight to all of the factors entering into that question. It would seem on the face of it that one who had suffered an impairment of eighty percent of his normal voice must of necessity have undergone some impairment of his wage-earning powers. However, we, of course, do not adjudicate that to be a fact in this case. As bearing upon that question the Attorney-Referee had the evidence of claimant. The pertinent part of it is as follows:

'Q. The type of work that you were doing doesn't require you to use your voice power, does it? A. Not too much. You can't work without saying something sometime.

'Q. Mr. Karr, how do you talk now? Does it require any effort on your part, any unusual exertion to endeavor to increase your voice? Are you conscious that it tires you to talk? A. It doesn't tire me to talk like I'm talking now, but in my line of work if I want to tell any one anything I have to talk like this (Raising his voice) and it'll tire me.

'Q. You can talk in what is a very low, hardly audible voice without it tiring you, but if you raise your voice necessary to be heard in ordinary conversation at an ordinary distance from other people it tires you, is that correct? A. Yes, sir.'

The Attorney-Referee also had before him the fact that when the injury occurred claimant was earning $45.12 per week working 6 days and at the time of the hearing he was making $60.40 a week working five days at the same employment for the same employer. And that, of course, is strong evidence he had suffered no loss in earning capacity. That comparative actual wage pay, we take it from the arguments, was the test applied at the hearing to...