Leathers v. Gardner, 1317

• Citation: 425 So.2d 1336
• Decision Date: 03 November 1982
• Docket Number: No. 1317,1317
• Parties: Charles Dane LEATHERS v. Thomas J. GARDNER, III, et al. Misc.
• Court: United States State Supreme Court of Mississippi

Page 1336

425 So.2d 1336

Charles Dane LEATHERS v. Thomas J. GARDNER, III, et al.

Misc. No. 1317.

Supreme Court of Mississippi.

Nov. 3, 1982.

William S. Lawson, Tupelo, for appellant.

Alex A. Alston, Jr., Thomas, Price, Alston, Jones & Davis, Jackson, for appellees.

Curtis E. Coker, Daniel, Coker, Horton & Bell, Jackson, Jack F. Dunbar, Holcomb, Dunbar, Connell, Merkel, Tollison & Khayat, Oxford, Claude F. Clayton, Jr., Mitchell, Eskridge, Voge, Clayton & Beasley, Tupelo, for intervenor Womack.

ON PETITION FOR REHEARING

En Banc.

HAWKINS, Justice, for the Court:

Upon the petition of Charles Dane Leathers for a writ of mandamus, this Court, on July 28, 1982, ordered the circuit clerk of Lee County to enroll a Mississippi Workmen's Compensation Commission order dated December 11, 1980, in the judgment roll of Lee County. Our Order was pursuant to an opinion by this Court.

The circuit clerk, Mrs. Fay Estes, joined by Honorable Thomas J. Gardner III, circuit judge, defendants to the petition for mandamus, have petitioned us for a rehearing, joined therein by Tupelo Coffee Company and Aetna Casualty & Surety Company, the original defendants in a workmen's compensation case in which Leathers is the claimant.

We sustain the petition for rehearing, our original opinion is withdrawn, and the order thereunder is set aside.

Charles Dane Leathers filed a motion to controvert before the Mississippi Workmen's Compensation Commission on February 16, 1978, naming as defendants his employer Tupelo Coffee Company and its insurance carrier Aetna Casualty & Surety Company. ¹ A hearing was held in Tupelo before an administrative judge of the commission on September 19, 1978, and six months later on March 19, 1979, the administrative judge rendered his order. This order encompassed the evaluation of the testimony of three witnesses: the claimant and his two treating physicians. The transcript consists of approximately 70 pages, of which the deposition of Dr. Ford taken September 13, 1978, consisted of approximately 25 pages.

On March 23, 1979, the employer-carrier filed a petition for review before the full commission. For our present purposes the next pertinent development was the entry by the commission of a Full Commission Order on July 18, 1979.

The order found as a fact:

1. Leathers had sustained a compensable injury October 7, 1976, temporarily totally disabling him until February 15, 1977, following which he had no loss of wage earning capacity.

2. Leathers sustained a compensable back injury on September 13, 1977. As to this injury, which is the only injury of any importance in this case, the commission disagreed with the administrative judge's determination of the date of maximum medical recovery, and his award of permanent disability benefits, the commission finding instead, "... that a date of maximum medical recovery has not been authoritatively established by any of the expert medical witnesses and that as such, any award of permanent disability benefits is unwarranted."

The order found as a fact that Dr. Buchanan, one of Leathers' primary treating physicians, testified that Leathers should be able to return to his employment January 25, 1978, with certain lifting restrictions, and to his normal activities without restrictions following a six month period of light duty. ²

The commission found that Dr. Buchanan's testimony established the date of Leathers' initial recovery and the end of the period of his total disability. It also found that Leathers was temporarily and partially disabled, but that neither Dr. Buchanan nor Dr. Ford had expressed an opinion as to any degree of permanent impairment resulting from his injury.

The commission found that no date of maximum medical recovery had been assigned by either treating physician, nor had there been any determination of the degree, if any, of permanent disability, and lacking such, any award of permanent disability benefits was unwarranted. The commission concluded that Leathers remained in a state of temporary and partial disability following January 24, 1978.

For the period following January 24, 1978, Leathers' compensation rate for temporary partial disability was determined to be 66 2/3% of the difference between his average weekly wages at the time of his injury and his wage earning capacity thereafter in the same employment or otherwise.

The commission then directed Leathers to furnish the employer-carrier during the continuance of this period of temporary partial disability a bi-weekly statement of his earnings so as to enable the employer-carrier to accurately determine the rate of compensation owed under Mississippi Code Annotated section 71-3-17 (1972).

Paragraph 2 of the adjudicatory portion of the order to the employer-carrier reads as follows:

2. Temporary partial disability benefits commencing January 24, 1978, and continuing until such time as maximum medical recovery is obtained, at the rate of 66 2/3 percent of the difference between claimant's average weekly wage at the time of injury and his wage earning capacity thereafter in the same employment It is thus apparent that the commission left open for later determination by it of the degree of and duration of Leathers' temporary partial disability. ⁴

or otherwise. The employer-carrier is to be given proper credit for any payment of compensation heretofore paid in connection therewith. There shall be added to each payment of compensation not timely made the equivalent of 10 percent thereof, as specified in Section 13(e) of the Act, being Mississippi Code Annotated (1972), Section 71-3-37. ³

The employer-carrier appealed the commission order, which the circuit court of Lee County affirmed in a judgment rendered August 30, 1979. Paragraph 2 of the adjudicatory portion of this judgment reads as follows:

2. Temporary partial disability benefits commencing January 24, 1978, and continuing until such time as maximum medical recovery is obtained, at the rate of 66 2/3 percent of the difference between the claimant's average weekly wage at the time of injury and his wage earning capacity thereafter in the same employment or otherwise. The employer-carrier is to be given proper credit for any payment of compensation heretofore paid in connection therewith. There shall be added to each payment of compensation not timely made the equivalent of 10 percent thereof, as specified in Section 13(c) of the Act, being Mississippi Code Annotated (1972), Section 71-3-37.

The employer-carrier appealed the circuit court judgment to this Court. We affirmed this judgment on May 28, 1980, without an opinion, and on July 9, 1980, again without an opinion, we denied the petition for rehearing of the employer-carrier.

On July 28, 1980, the employer-carrier filed with the commission a motion to determine the accrued benefits and the date of Leathers' maximum recovery. The motion recited the developments of the case including the appeals to and affirmance by this Court. The motion then alleged that Leathers had not provided the employer-carrier with any bi-weekly statements of his earnings as directed by the commission order of July 18, 1979, and that there had been no determination of the date that Leathers reached maximum medical improvement as well as no determination of his wage earning capacity since January 24, 1979 [sic].

The motion attached a copy of a letter, dated December 17, 1979, from Dr. Buchanan to counsel for the employer-carrier which reads as follows:

By restricting this patient (Leathers) January 24, 1978, he was not at maximum rehabilitation and did not attain that until June 1978 release to normal activity. By restricting his activities, he obviously was not back to full rehabilitation potential and we thought that by June he should be but certainly not by the January, 1978 date.

The motion further recited that the employer-carrier were unable to determine Leathers' wage earning capacity subsequent to January 24, 1978, through the date that he reached maximum medical improvement, without which determination the employer-carrier could not calculate the amount of benefits due through the date of the commission order.

The motion in conclusion requested a hearing to determine Leathers' loss of wage earning capacity during the period of temporary partial disability; the date Leathers reached maximum medical improvement; and the amount due Leathers under the commission's order of July 18, 1979.

On August 27, 1980, a hearing on this motion was held by an administrative judge of the commission. At this hearing Leathers and his wife testified, and a deposition of Dr. Buchanan, taken August 22, 1980, was offered by both parties.

On October 17, 1980, the administrative judge rendered an order finding among other things that Leathers, "... remains in a state of total disability and is still suffering a 100% loss of wage earning capacity as a result of the injury which he sustained on September 13, 1977." We specifically refrain from rendering any declaratory opinion because Leathers' claim is again on appeal before us, but we are constrained to state that the administrative judge's findings appear at variance to the opinion of Dr. Buchanan, the only medical witness who testified.

The employer-carrier, on November 3, 1980, filed a petition for review before the full commission of the administrative judge's decision.

A full commission order was rendered December 11, 1980. We again refrain from a declaratory opinion on the findings in the full commission order for the reason stated. It appears, however, that the commission was of the opinion that the primary (if indeed not the only) reason that the employer-carrier gave for not paying benefits ordered by this Court was, "... they had not been provided a bi-weekly statement of complainant's earnings from January 24, 1978, to date of claimant's maximum medical recovery." The commission responded in its order that the employer-carrier could...