Morgan v. J.H. Campbell Const. Co., 40289

• Decision Date: 19 November 1956
• Docket Number: No. 40289,40289
• Citation: Morgan v. J.H. Campbell Const. Co., 90 So.2d 663, 229 Miss. 289 (Miss. 1956)
• Parties: Bob MORGAN v. J. H. COMPBELL CONSTRUCTION CO. and United States Fidelity & Guaranty Company.
• Court: Mississippi Supreme Court

Page 663

90 So.2d 663

229 Miss. 289

Bob MORGAN v.J. H. COMPBELL CONSTRUCTION CO. and United States Fidelity &amp Guaranty Company.

No. 40289.

Supreme Court of Mississippi.

Nov. 19, 1956.

Wright, Overstreet & Kuykendall, Jackson, for appellant.

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

HALL, Justice.

On August 14, 1952, Bob Morgan while in the employment of J. H. Campbell Construction Company suffered a heart attack which was diagnosed as an acute myocardial infarction.The employer and its insurance carrier refused to pay compensation and subsequently a claim was filed and was heard by the attorney-referee, who found that the disability arose out of and in the course of the employment and awarded compensation for temporary total disability under Section 8, subsection (b), of the Mississippi Workmen's Compensation Act.Code 1942, Sec. 6998.09(b).The date of this order and finding is March 14, 1953.Thereafter the carrier paid compensation in the amount of $25 per week from the date of injury to June 29, 1954.

The claimant was under the treatment of Dr. T. E. Wilson who on April 16, 1953, certified that the claimant's condition was improved but he stated that claimant was still unable to participate in any gainful occupation.He expressed the belief however that after sixty days, a re-examination would reveal his condition to be such that he might be able to go to work at that time.The claimant continued under Dr. Wilson's treatment and on May 17, 1954, Dr. Wilson certified that the claimant has been permanently and totally disabled since the date of his attack.

On August 18, 1954, the attorneys for the employer and the carrier filed a motion with the compensation commission to determine and adjudge that the claimant is now and has been permanently and totally disabled since the date of his heart attack on August 14, 1952, and that they are obligated only to pay compensation for permanent total disability not to exceed the sum of $8,600 in accordance with Section 8(a) of the Mississippi Workmen's Compensation Act.This motion was controverted and on December 16, 1954, the attorney-referee found that the claimant has been totally and permanently disabled since the date of his heart attack and directed payment of compensation from August 14, 1952, for permanent total disability at the rate of $25 per week for a period not to exceed 450 weeks or the maximum of $8,600, whichever shall be the lesser in amount, as provided in the Act, less the amount already paid.

The claimant appealed this decision of the attorney-referee to the full commission, which on September 22, 1955, entered an order that the attorney-referee was in error and that his order should be amended, and it accordingly ordered the employer and the insurance carrier to pay to the claimant compensation from August 14, 1952, for a period of time up until May 17, 1954, and that such compensation shall be designated as compensation for temporary total disability.The commission further ordered that thereafter and beginning on May 18, 1954, compensation shall be paid to the claimant at the rate of $25 per week for a period not to exceed 450 weeks, or the maximum of $8,600, whichever shall be the lesser in amount, and that such payments after May 17, 1954, shall be designated as payment for permanent and total disability.

On the hearing no testimony was offered but there was a stipulation by agreement of counsel which embodied the material findings of the original order of the attorney-referee.Dr. Wilson's letter was also stipulated as being his evidence in the case and it was further stipulated that this letter was obtained by a representative of the carrier; that the said Dr. Wilson was the personal attending physician of the claimant from and after the date of the award for temporary total disability up until the present time, and, as such, conducted all the ways and means of the treatment of the claimant, which was all done with the knowledge and approval of the employer-carrier; that up until the date of said letter of May 17, 1954, neither the claimant nor the employer-carrier, nor their counsel, had any official knowledge of a determination that the disability of the claimant was permanent and total.It was further stipulated that the exact time that Dr. Wilson determined the permanent and total character of the claimant's disability may not have been the exact date of said letter but that it was on or about that time and this in spite of the fact that he said in his letter that it was permanent from the date of the original injury, and it was stipulated that during the said period of time that the claimant was treated by Dr. Wilson, the doctor was endeavoring to treat him in such a way that he could recover from his disability, either wholly or partially, which, according to his letter he failed to do.

From the order of the commission the employer and carrier appealed to the circuit court, which court reversed the order of the commission and directed the payment of compensation benefits from August 14, 1952, for permanent and total disability at the rate of $25 per week for a period not to exceed 450 weeks or the maximum of $8,600, whichever shall be the lesser in amount, deducting, of course, the benefits already paid to the claimant.From that order of the circuit courtthe claimant appeals here.

The claimant contends that he is entitled to benefits for temporary total disability up to the time of Dr. Wilson's letter of May 17, 1954, and that from and after that date he is entitled to permanent total disability benefits over and above and in addition to what has already been paid him for temporary total disability.We do not think that the claimant's position is well taken.Section 8 of the Compensation Act, which is found in Section 6998-09 of the Mississippi Code of 1942, provides in part as follows:

'Compensation for disability shall be paid to the employee as follows:

'(a) Permanent total disability: In case of total disability adjudged to be permanent, 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 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.Loss of both hands, or both arms, or both feet, or both legs, or both eyes, or of any two thereof, shall constitute permanent total disability.In all other cases permanent total disability shall be determined in accordance with the facts.

'(b) 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.

'(c) Permanent partial disability: In case of disability partial in character but permanent in quality, the compensation shall be 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, which shall be paid following compensation for temporary total disability paid in accordance with subdivision (b) of this section, * * *.'

It will be noted that subsection (c) provides that permanent partial disability shall be paid following compensation for temporary total disability paid in accordance with subdivision (b) of the Section.It nowhere provides that permanent total disability shall be paid in addition to payments for temporary total disability.While we are committed to a liberal interpretation of the Act, we are not authorized to rewrite the Act or to add to its terms.

Appellant relies on the case of J. F. Crowe Well Servicing Contractor v. Fielder, Miss., 80 So.2d 29, not yet reported in the State Reports.In that casewe held that where compensation has been paid for temporary total disability and the claimant has reached the maximum...