Malone & Hyde of Tupelo, Inc. v. Kent, 43211

• Decision Date: 09 November 1964
• Docket Number: No. 43211,43211
• Citation: 168 So.2d 526,250 Miss. 879
• Court: Mississippi Supreme Court
• Parties: MALONE & HYDE OF TUPELO, INC., et al. v. Ruble KENT.

Page 526

168 So.2d 526

250 Miss. 879

MALONE & HYDE OF TUPELO, INC., et al. v.Ruble KENT.

No. 43211.

Supreme Court of Mississippi.

Nov. 9, 1964.

Mitchell, McNutt & Bush, Tupelo, for appellant.

W. P. Mitchell, Tupelo, for appellees.

ETHRIDGE, Justice.

In this workmen's compensation case, Ruble Kent, appellee, received an injury to his back while working at his job for Malone & Hyde of Tupelo, Inc., appellant.The question is the extent of Kent's permanent partial disability, which determines the amount of his workmen's compensation benefits.The commission found that he sustained a loss of wage-earning capacity of eighteen dollars per week, or approximately twenty-seven and one-half percent.This order was approved by the Circuit Court of Lee County, and we think it was amply supported by the evidence.

Kent was thirty-four years of age, with a sixth grade education and no special job training.He was qualified for manual labor only.He worked about three years for appellant, at first loading trucks, and for six months as an order selector, which involved lifting sacks and boxes, placing them on a cart, and delivering them to a ramp for transfer to a truck.The accidental injury to his back occurred while he was picking up a sixty pound bag of sugar.The employer referred him to Dr. Malcolm Moore, who found muscle spasm in the lower part of the back, and some limitation in motion.X rays reflected a narrowing of the disc space between two spinal intervals.He concluded that Kent sustained a ruptured disc. Kent declined surgery, and continued to have considerable pain in his back.On several occasions he attempted to return to work, but because of the pain was unable to do so.He had not been able to obtain jobs at other establishments at which he applied.

Moore estimated Kent's functional disability as ten percent, and 'about fifteen percent as far as manual labor is concerned,' being the loss of wage-earning capacity from the accident.Claimant testified about his continuing pain, inability to work, and failure to obtain a job at other places to which he had applied.An orthopedic surgeon said he examined Kent on two occasions, could not find enough evidence to justify a conclusion of a herniated disc or nerve root compression, although he conceded Kent's symptoms indicated them, and that he'could have' had a ruptured disc.

The commission concluded that, as the consequence of the back injury, Kent 'suffered a loss of wage-earning capacity in the amount of eighteen dollars per week,' or about twenty-seven and one-half percent.Miss.Code Ann. Sec. 6998-09(c)(25)(Supp. 1962).

I. Taitel & Son v. Twiner, 247 Miss. 785, 157 So.2d 44(1963), under similar circumstances, held that the commission could consider the 'two ingredients of actual physical injury and de...