Sanders v. B. E. Walker Const. Co., 43163

• Citation: 169 So.2d 803,251 Miss. 352
• Decision Date: 14 December 1964
• Docket Number: No. 43163,43163
• Parties: Ollie SANDERS v. B. E. WALKER CONSTRUCTION COMPANY et al.
• Court: Mississippi Supreme Court

Page 803

169 So.2d 803

251 Miss. 352

Ollie SANDERS v. B. E. WALKER CONSTRUCTION COMPANY et al.

No. 43163.

Supreme Court of Mississippi.

Dec. 14, 1964.

Melvin B. Bishop, Daniel, Coker & Horton, Jackson, for appellant.

Satterfield, Shell, Williams & Buford, Cary E. Bufkin, Jackson, for appellees.

LEE, Chief Justice.

Ollie H. Sanders, claimant, was a 58 year old white male, of little education, with an average weekly wage of $84.29. He had been for three years, and was still, employed by B. E. Walker Construction Company. On May 24, 1961, he was engaged about the work, first operating a 'cherry picker', and then a front end loader to fill in the ditch. He described this as rough work. The machine, because of inadequate brakes, ran into the ditch, causing the steering wheel to spin, thus injuring his hand and arm. In about an hour, he began to have pains in his chest, and told his boss that he had to go to the doctor. When he went by his home, on the way, he lost consciousness, and did not come to himself until he was in the hospital. He remained there under treatment of Dr. A. L. Gore for nineteen days; and was then carried home, staying in bed for three weeks. He had never had any trouble like that in the past.

No weekly benefits were paid to him, and on June 7, 1961, he filed with the workmen's compensation commission his notice and claim. Thereafter, on July 31, 1961, the employer and its insurer filed their denial of liability, but asserted that, if mistaken in their refusal to assume payment of the weekly benefits, they were entitled to a proration because of pre-existing causes.

A hearing was conducted October 10, 1961 by the attorney-referee. The claimant testified substantially as set out above. Dr. Gore testified that, upon his examination, he found a coronary occlusion. It was his opinion that the strenuous work, which Sanders was doing that morning, had precipitated the occlusion, which caused the heart attack, and that he definitely sustained an infarct. It would require nine to twelve months before the patient could return to the kind of work, which he had been doing, but that, in approximately three months, he ought to be able to do light work. Dr. J. Manning Hudson, an internist, was his consultant. The doctor, as family physician, had never had any complaint from claimant as to any heart condition. The heart was weakened from atherosclerosis as he now knows. He expects improvement in nine to twelve months. But he could not fix the percentage of contribution from the pre-existing condition. There was some disability at that time from both conditions, both pre-existing and the injury. He will not again be able to do that kind of work.

There was a further hearing on December 1, 1961, when Dr. William H. Rosenblatt testified. He said that there was a causal relationship between the work that Sanders was doing at the time and his acute heart attack. He attributed fifty percent to each, the pre-existing and the job work. This was about two months after Dr. Gore had testified. He did not think there was a permanent disability as a result of the heart attack. He recommended a desk job of some kind for him.

Mrs. Sanders testified that her husband has done nothing since he got out of the hospital and was still under treatment of Dr. Gore.

At this juncture, on motion of the defendants, the case was recessed for rehearing, with notice to be given to all. But no further evidence was offered.

On January 2, 1962, the attorney-referee entered an order finding (1) that the defendants should pay the medical services and supplies; (2) that the claimant had not reached maximum medical recovery; and (3) that the claimant's pre-existing disease contributed fifty percent to the claimant's disability. He therefore ordered that the employer and insurer pay temporary total disability at the rate of $17.50, beginning May 24, 1961, and during the continuance of such disability, subject to the maximum limitations of the act; that they pay all of the medical services and supplies incurred or to be incurred, in accordance with section 7 of the workmen's compensation act (Mississippi Code Annotated section 6998-08 (1952)); and that they pay the penalties provided by section 13(e) and section 28(d) of the act (Mississippi Code Annotated sections 6998-19 and 6998-34 (1952), as amended.

The foregoing order of the attorney-referee was affirmed by the commission on March 9, 1962.

The employer and its insurer prosecuted an appeal to the circuit court and claimant there filed a cross-assignment of errors, particularly, the apportionment of temporary total disability payments, and motion to correct the order of the commission accordingly.

On January 2, 1964, the circuit court affirmed the judgment of the commission, and this appeal is prosecuted.

These same questions now recur on the briefs and arguments presented here.

When Mississippi adopted its workmen's compensation law by chapter 354, Laws of 1948, Mississippi Code Annotated section 6998 et seq. (1953 and Supp.1962), it was the last state in the union to do so. As appeals began to come to this Court, it was necessary that the Judges should devote much consideration to the study of this law. The statutes, in all of the other states, together with their court decisions, construing the terms of the various acts were available. It was found that in the change over from the law of torts, based on negligence, to this form of remedy, based entirely on disability resulting from accident, arising out of and in the course of the employment, some of the states placed strict constructions on the statutes. But it was evident that the great majority of the courts, all over the county, at the date of our statutory enactment, recognized that these laws should be liberally construed in order to carry out the humane purposes of the acts. Besides, section 1, chapter 354, Laws of 1948, section 6998-01 Mississippi Code Annotated (1953), as originally enacted, provided as follows: 'This act shall be known and cited as the 'workmen's compensation law,' and shall be administered by the workmen's compensation commission, hereinafter referred to as the commission, cooperating with other state and federal authorities for the prevention of injuries to workers and in event of injury their rehabilitation or restoration to health and vocational opportunity.' (Emphasis supplied.) The amendment thereto by chapter 275 Laws of 1960, by the addition of the words 'and this act shall be fairly construed according to the law and the evidence', in no way minimized the solemn declaration, supra.

Our first decision, in the case of Lucedale Veneer Company v. Rogers, 211 Miss. 613, 48 So.2d 148, 53 So.2d 69 (1950), said that '[t]he construction must be sensible as well as liberal.'

The Court came to the conclusion that it was the purpose of the legislature by its enactment at least to assure the attainment of the following aims:

(1) To provide a quick remedy for the settlement of claims, arising out of industrial accidents;

(2) To insure prompt hospitalization and medical services for those workers who might be fatally injured or sustain temporary or permanent disabilities as a result, and arising out, of accidental injuries, as those workers were engaged in the course of their duties to their employers;

(3) To provide, in case of death, payment of funeral expenses, and weekly benefits to the dependents of the deceased worker, based on a percentage of his average weekly wages, but subject to both maximum and minimum amounts. If death should not occur, like weekly payments in rehabilitation and restoration to health and vocational opportunity (section 6998-01, supra), should be made to the disabled worker during the continuance of the total disability. Under Mississippi Code Annotated section 6998-09 (1953 and Supp.1962) subsections (a) and (b) (1953), being provisions for disability, no difference whatever is made in the basis for the weekly benefits as between permanent total disability and temporary total disability, so long as the latter condition exists. To this end, the legislature gave assurance that, as long as the injured worker was in the hospital, or otherwise totally disabled, subsistence should be provided for him, thus including his dependents, to insure his rehabilitation and restoration. Of course, as long as he might be in the hospital, he would get food and lodging; but his dependents, being at home, would also have to live, since the breadwinner would have no earnings as long as he was unable to engage in any kind of gainful employment. It had to be kept in mind that the great majority of workers have dependents, who must, at least, have a bare subsistence in order to live; and

(4) To provide that, when the results to the worker could be determined, that is if the disability should result as partial only, the worker would then be partially restored and be able to return to some kind of work and contribute something toward the support of himself and dependents. At that time, the weekly benefits for permanent partial disability would be determined and conform to the schedule, set out in the act. If the disability proved to be total and permanent, the payments, as applied from the beginning, would continue for the statutory period, and in the prescribed amounts.

So construing the act, this Court, in its many decisions, has attempted to follow these clear purposes of the legislature and has exacted of the employer that he commence the weekly payments within fourteen days following the onset of the accidental disability. If the disability was total, these weekly payments were required to be made until such time as the commission might determine that the worker had reached maximum medical recovery. In other words, the results following the injury, that is, the extent and residuals from the injury could not be determined by honest doctors or anyone else until there was an end...