Smith v. Picker Service Co.

Citation240 So.2d 454
Decision Date26 October 1970
Docket NumberNo. 45911,45911
PartiesJohn A. SMITH v. PICKER SERVICE COMPANY and Michigan Mutual Liability Insurance Company.
CourtUnited States State Supreme Court of Mississippi

Daniel, Coker, Horton & Bell, William Larry Latham, Jackson, for appellant.

Satterfield, Shell, Williams & Buford, K. Hayes Callicutt, Jackson, for appellees.

INZER, Justice:

This is a workmen's compensation case which involves the question of whether there was substantial evidence to support the finding of the Workmen's Compensation Commission that claimant-appellant John A. Smith had not suffered a loss of wage earning capacity as a result of a compensatory injury that arose out of and in the course of his employment with appellee, Picker Service Company.

Claimant was employed as a cotton picker mechanic and on September 20, 1962, he suffered an accidental injury to his back while performing duties growing out of and in the course of his employment with Picker Service Company. The attorney referee found that this injury resulted in a ruptured or herniated disc in his lower back and that claimant had sustained a permanent partial disability of ten to fifteen percent to the body as a whole. The attorney referee found that claimant had suffered a loss of wage earning capacity in the amount of $10 per week.

Upon review by the full commission, a majority of the commission found that appellant did, in fact, suffer such an injury as found by the attorney referee but he did not suffer any loss of wage earning capacity because after only a short period of time he returned to work in the same capacity and has subsequently maintained a history of steady employment at substantially increased earnings. An order was entered denying the claim for permanent partial disability benefits, and upon appeal to the Circuit Court of Humphreys County, the order of the commission was affirmed, hence this appeal.

The only assignment of error which merits any discussion is the contention that the circuit court was in error in affirming the order of the commission for the reason that the proof in this case shows that the post-injury earnings are unreliable as a basis for computing appellant's post-injury earning capacity; and, therefore, the presumption that there was no loss of wage earning capacity had been rebutted.

The proof in this case shows that at the time of the injury appellant's average weekly wage for the preceeding fifty-two weeks was $56.29. After his return to work he continued to work for Picker Service Company in the same capacity until April, 1965. At that time Picker Service Company was purchased by Tractor Supply Company and from this time until the date of the hearing in November, 1967, claimant worked for Tractor Service in the same capacity, but at a different location. His average weekly wages increased each year and for the fifty-two weeks prior to the hearing, his average weekly wage was $125.52.

The pertinent statute involved is Section 6998-09(c), Mississippi Code 1942 Annotated (Supp.1966). In Russell v. Southeastern Utilities Service Co., 230 Miss. 272, 92 So.2d 544 (1957), construing the statute we said:

The statutory test is calculated by comparing actual earnings before the injury with earning capacity after the injury. The two items are not the same. Karr v. Armstrong Tire & Rubber Co., 216 Miss. 132, 61 So.2d 789 (1953). The Commission was warranted in finding that appellant's average weekly wages for one year prior to his injury were $90. Code Section 6998-16. Earning capacity is a more theoretical concept. The test is one of capacity. The trier of fact, the Commission, must make the best possible estimate of future impairment of earnings, on the strength of both actual post-injury earnings and any other evidence of probative value on the issue of earning capacity. This is essentially a question of fact for the Commission.

2 Larson, Workmen's Compensation Law (1952), Section 57.21, states the recognized approach to this problem, as follows: 'It is uniformly held, therefore, without regard to statutory variations in the phrasing of...

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9 cases
  • General Elec. Co. v. McKinnon, 56697
    • United States
    • United States State Supreme Court of Mississippi
    • May 6, 1987
    ...we are required to affirm the commission's judgment. Marshall Durbin, Inc. v. Hall, 490 So.2d 877, 879 (Miss.1986); Smith v. Picker Service Co., 240 So.2d 454 (Miss.1970). B. The employer and carrier further argue that there was neither substantial evidence to support the finding that McKin......
  • Weathersby v. Miss. Baptist Health Sys., Inc.
    • United States
    • Court of Appeals of Mississippi
    • June 28, 2016
    ...is the trier of the facts and it was a question of fact whether [Weathersby] rebutted the presumption.” Smith v. Picker Serv. Co., 240 So.2d 454, 456 (Miss.1970). Because the Commission's determination that Weathersby suffered no loss of wage-earning capacity is supported by substantial evi......
  • Nixon v. Howard Indus., Inc.
    • United States
    • Court of Appeals of Mississippi
    • June 19, 2018
    ...a back injury where worker moved from job with lifting to fork-lift operator at same wages as before his injury); Smith v. Picker Serv. Co. , 240 So.2d 454, 456 (Miss. 1970) (discussing a back injury and post-injury increased wages where claimant failed to overcome presumption that he had n......
  • Lovett v. Delta Reg'l Med. Ctr., 2013-WC-00410-COA
    • United States
    • Court of Appeals of Mississippi
    • April 29, 2014
    ...capacity after the injury."). See also Lanterman v. Roadway Exp. Inc., 608 So. 2d 1340, 1347 (Miss. 1992); Smith v. Picker Serv. Co., 240 So. 2d 454, 456 (Miss. 1970); Mosby v. Farm Fresh Catfish Co., 19 So. 3d 789, 793-94 (¶¶9-10) (Miss. Ct. App....
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