North Mississippi Medical Center v. Henton, 48107
| Decision Date | 07 July 1975 |
| Docket Number | No. 48107,48107 |
| Citation | 317 So.2d 373 |
| Parties | NORTH MISSISSIPPI MEDICAL CENTER, and United States Fidelity & Guaranty Co. v. Vivian Venell HENTON. |
| Court | Mississippi Supreme Court |
Scribner, Brewer & Soper, Tupelo, for appellants.
William S. Lawson, Tupelo, for appellee.
Before PATTERSON, SMITH and BROOM, JJ.
The Medical Center, employer, and its carrier, United States Fidelity & Guaranty Company, appeal from a judgment of the Lee County Circuit Court. The judgment reversed an order of the Mississippi Workmen's Compensation Commission and reinstated the attorney referee's order, dated April 24, 1973, awarding Workmen's Compensation benefits to Vivian Venell Henton. We reverse.
The chief issue is: Was there sufficient evidence of a change in conditions to warrant the reopening of the case and the issuance of a new compensation award?
Appellee, claimant, Vivian Venell Henton, filed an application for Workmen's Compensation benefits against the appellants on August 20, 1971. In her application she claimed that on December 21, 1970, she was employed by North Mississippi Medical Center, and while working as a nurses' aide (transferring a patient from a bed to a stretcher) suffered a ruptured disc. Responding to the claimant's application, appellants denied that the claimant sustained any permanent disability, and averred that the claimant's disability, if any, was due, solely, to a preexisting condition or, in the alternative, that the preexisting condition was a material contributing factor to the disability alleged.
A hearing was held and medical testimony was received that the appellee (claimant) had sustained back injuries and had a fifteen percent permanent partial disability. According to the order of the attorney referee, dated April 26, 1972, appellants were ordered to pay appellee temporary total disability compensation for the period of January 13, 1971, to March 28, 1971. No award for permanent disability was allowed because no loss of wage earning capacity was shown 'as a result of her said injury,' although permanent, partial disability was, according to the attorney referee's finding, established by the medical evidence. Upon appellee's petition, the commission reviewed and affirmed the order of the attorney referee, and no appeal was taken from the final order of the commission.
On February 1, 1973, the appellee (claimant) filed a petition with the Workmen's Compensation Commission to reopen on the ground of change in conditions, pursuant to Mississippi Code Annotated section 71-3-53 (1972), often referred to as section 21 of the Mississippi Workmen's Compensation Act. In her petition to reopen, she alleged that at the previous hearing testimony was received that her job at the North Mississippi Medical Center was open to her, and that after the hearing her application for resumption of her employment with the Medical Center was refused. She also alleged that she is unable to obtain any employment commensurate with her work experience, education, and training, because of her history of back surgery. The appellants' answer to the petition generally denied the allegations of the petition, and stated that there had not been any material change of conditions since the date of the Workmen's Compensation order.
At a hearing on the petition to reopen, several lay witnesses (including appellee) testified in appellee's behalf regarding the type of work required to be performed by a nurses' aide. It was shown that the appellee had called regarding job applications at various places of potential employment, and she was told that her position at the Medical Center was no longer open to her for immediate employment.
An order requiring the payment of compensation for permanent partial disability was issued by the attorney referee. The appellants petitioned the commission for review of the attorney referee's order and the appellee cross-appealed alleging that the attorney referee erred in not awarding her total disability benefits. The commission overruled the attorney referee, and held that there was no error in the determination of fact in the attorney referee's original order, dated April 26, 1972. It further held that there had not been any change in conditions subsequent to the attorney referee's order. The appellee (claimant) appealed the order of the Workmen's Compensation Commission to the circuit court, which reversed the Workmen's Compensation Commission and reinstated the order of the attorney referee, dated April 24, 1973.
Appellants contend that there was not sufficient proof of a change in conditions to warrant the circuit court's reversal of the commission's findings denying the appellee's claim to benefits in her petition to reopen. The commission's order held that a change of conditions must be supported by an actual physical change in the condition of the injured employee, and that the term was not intended to include 'merely a change in the...
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Myles v. Rockwell Intern.
...to Rule B-9. The Circuit Court affirmed without comment. The administrative judge based his final opinion on North Mississippi Medical Center v. Henton, 317 So.2d 373 (Miss.1975). In that case, which interestingly enough also originated in Lee County, Justice Broom wrote for this Court. The......
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Davis v. Scotch Plywood Co. of Mississippi, 56366
...be re-opened when the claimant can establish by a preponderance of the evidence that his condition has changed. North Miss. Medical Center v. Henton, 317 So.2d 373 (Miss.1975). Davis filed his motion to re-open based on the results of a thermogram which corroborated the findings of Dr. Cook......
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Aetna Cas. & Sur. Co. v. Espinosa
... ... No. 54497 ... Supreme Court of Mississippi ... Jan. 23, 1985 ... Rehearing Denied May 29, ... 1, 1979, which awarded the claimant medical, temporary total, and temporary partial ... as well as North Mississippi Medical Center v. Henton, 317 So.2d ... ...
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Smith v. Compfirst/L.C. Indus.
...physical conditions due to the original injury which affects an employee's earning capacity or ability to work." N. Miss. Med. Ctr. v. Henton, 317 So.2d 373, 375 (Miss.1975) (citations omitted). But it can also mean "[a] change in the claimant's ability to get or to hold employment or to ma......