Richey v. City of Tupelo

• Decision Date: 23 August 1978
• Docket Number: No. 50505,50505
• Citation: 361 So.2d 995
• Parties: Sidney M. RICHEY v. CITY OF TUPELO and United States Fidelity & Guaranty Company.
• Court: Mississippi Supreme Court

Page 995

361 So.2d 995

Sidney M. RICHEY v. CITY OF TUPELO and United States Fidelity & Guaranty Company.

No. 50505.

Supreme Court of Mississippi.

Aug. 23, 1978.

Rehearing Denied Sept. 13, 1978.

Parker, Averill, Funderburk & Butts, Paul S. Funderburk, Roy O. Parker, Tupelo, for appellant.

Bramlett, Mounce & Soper, Paul Kent Bramlett, Tupelo, for appellees.

Before SMITH, P. J., and BROOM and LEE, JJ.

LEE, Justice, for the Court:

This is an appeal by Sidney M. Richey from a judgment of the Lee County Circuit Court affirming an order of the Workmen's Compensation Commission finding that he had sustained a fifty percent (50%) permanent partial disability to his right upper extremity and directing the City of Tupelo, employer, and United States Fidelity & Guaranty Company, carrier, to pay compensation for a period of one hundred (100) weeks at the rate of fifty-six dollars ($56.00) per week. The only question involved is the extent of claimant's disability. He contends:

(1) That his injury was to the shoulder, a non-scheduled member and his resultant disability should have been related to the body as a whole.

(2) The Workmen's Compensation Commission and the Lower Court erred in limiting his disability to a fifty percent (50%) loss of use of his right arm.

Appellant was employed as a fireman by the Tupelo Fire Department. On October 20, 1973, while engaged in putting out a fire, he fell and injured his right shoulder. Three (3) days later, he was examined by Dr. Lee Milford, an orthopedic surgeon. At that time, he was complaining of pain in the right shoulder and was unable to move it. Richey had normal forward and backward motion, extension and rotation of his arm, but was unable to move the elbow away from his body in the motion called "abduction." He could not hold it in that position when the arm was forced there. Dr. Milford diagnosed claimant's condition as a tear of the shoulder cuff, or rotating muscles of the shoulder. The doctor recommended and performed surgery. In his opinion, appellant reached maximum medical improvement on October 21, 1974, he could not do any climbing, heavy lifting or use heavy equipment with his right arm, and he suffered a thirty percent (30%) disability to the shoulder, which, reduced by fifty percent (50%), would result in a fifteen percent (15%) disability of the body as a whole. Dr. Milford suggested that appellant try to find some work he could do which did not involve climbing and heavy use of his right arm.

Dr. Robert P. Christopher, a specialist in the field of physical medicine and rehabilitation, serving as a full professor and Chief of the Division of Physical Medicine and Rehabilitation, University of Tennessee, examined appellant for medical evaluation on August 5, 1975. He found that appellant had severe limitation of external rotation, flexion, abduction and motion in his right arm, and that the prognosis for further improvement was very limited. In his opinion, appellant had a thirty-seven percent (37%) permanent impairment of the right shoulder which converts to twenty-two percent (22%) disability of the body as a whole. Even though appellant complained of an injury to his low back, neither Dr. Christopher nor Dr. Milford related his back condition to the injury of October 20, 1973.

Dr. William M. Jenkins, Ph.D. and an Associate Professor and Coordinator of the Undergraduate and Graduate Programs in Rehabilitation Counseling at Memphis State University, testified in substance that claimant was not in a state of employment readiness and that there were no jobs he could then perform, as a result of the injury.

Richey testified that, as a fireman, he had to operate a pump, drive a truck, be a hold man and oil man, climb ladders, put up ladders, and do anything else that was required to be done. This work also involved heavy lifting. Prior to working in the fire department, he drove a tractor and truck for the City Street Department two years. On his off days at the fire department, he operated farm equipment. He can no longer do simple things like mowing the yard and putting in lightbulbs; he is righthanded and cannot do anything unless he can do it with his left hand and arm; he cannot write lefthanded; he drives his car some, but it has power steering and he drives it mostly with his left hand and arm; because of his education, he is extremely limited in the jobs other than that of a common laborer; and he cannot do any type work requiring the use of his right arm.

The administrative judge found that appellant was temporarily totally disabled from October 20, 1973, to October 20, 1974, and that he sustained a permanent partial disability in the amount of fifty percent (50%) to his right upper extremity which entitled him to compensation for a period of one hundred (100) weeks at fifty-six dollars ($56.00) per week. The Commission affirmed the order of the administrative judge, Richey appealed, and the Circuit Court affirmed the Commission's order.

I.

Was appellant's injury to a non-scheduled member (shoulder) and should his disability have been related to the body as a whole?

Mississippi Code Annotated Section 71-3-17 (1972) provides the following:

"(c) Permanent partial disability: In case of disability partial in character but permanent in quality, the compensation shall be sixty-six and two-thirds percent (662/3%) of the average weekly wages, subject to the maximum limitations as to weekly benefits as set up in this chapter, which shall be paid following compensation for temporary total disability paid in accordance with subsection (b) of this section, and shall be paid to the employee as follows:

Member lost Number weeks Compensation

(1) Arm 200 "

The evidence is uncontradicted that appellant's injury of October 20, 1973, affected only the right arm and right shoulder and no other part of his body. The shoulder injury does not extend into his cervical, lumbar or thoracic area, but only into his arm. Dr. Lee Milford, the surgeon who operated on claimant, stated as to whether this is a shoulder injury as opposed to an arm injury:

"(W)e...