South Mississippi Elec. Power Ass'n v. Graham

• Decision Date: 02 October 1991
• Docket Number: No. 89-CC-0769,89-CC-0769
• Parties: SOUTH MISSISSIPPI ELECTRIC POWER ASSOCIATION and Aetna Casualty and Surety Company v. Willard M. GRAHAM, Jr.
• Court: Mississippi Supreme Court

Page 291

587 So.2d 291

SOUTH MISSISSIPPI ELECTRIC POWER ASSOCIATION and Aetna

Casualty and Surety Company v. Willard M. GRAHAM, Jr.

No. 89-CC-0769.

Supreme Court of Mississippi.

Oct. 2, 1991.

Sheila Jones, James M. Anderson, Markow Walker Reeves & Anderson, Jackson, for appellant.

James K. Dukes, Hattiesburg, for appellees.

Before ROY NOBLE LEE, C.J., and BANKS and McRAE, JJ.

ROY NOBLE LEE, Chief Justice, for the Court:

South Mississippi Electric Power Association and Aetna Casualty and Surety Company have appealed from an order of the Lamar County Circuit Court, which overruled a decision of the Workers' Compensation Commission denying Willard M. Graham, Jr. compensation benefits. The lower court awarded Graham compensation benefits for a permanent partial disability.

FACTS

Willard M. Graham, Jr. was employed with South Mississippi Electric Power Association as a master maintenance mechanic. He was required to perform pipe fitting, welding and general boiler and tube repair and maintenance.

On November 11, 1980, Graham was struck on the head by a clinker ¹ while aloft in a spider climber while making repairs in the boiler area ² of the Power Association. As a result of his injury, Graham experienced severe pain in his neck, back and shoulders and was taken by helicopter to the Forrest General Hospital where x-rays were performed. Hospitalization was not necessary. Graham returned to work on November 12, 1980, and was placed on light duty employment for approximately one week before resuming his full duties.

On February 23, 1982, Graham, while making repairs in the boiler area, was struck again on the head by a clinker causing him to fall approximately fifteen (15) feet from the spider climber to the ground below. Graham was taken to the hospital and returned to work the next day. Thereupon, Graham was assigned to light duties for approximately two (2) weeks before resuming his regular duties.

Graham's employment with the Power Association was terminated on March 17, 1982, as a consequence of Graham's refusal to work on the spider climber in the boiler area. He was reinstated shortly thereafter, when he returned to working on the spider climber in the boiler area.

Graham performed his regular duties, including working on the spider climber in the boiler area, for the Power Association until January 27, 1983. On January 27, 1983, Graham and a co-employee were involved in a physical altercation which began in the Power Association's parking lot and continued to the access road between their homes and the parking lot. The co-employee inflicted physical blows on Graham. As a consequence of the January 27 altercation, both Graham and the co-employee were discharged by the Power Association.

On June 24, 1983, Graham filed a motion to controvert with the Mississippi Workers' Thereafter, Graham filed an appeal from the administrative judge's order with the Mississippi Workers' Compensation Full Commission. The Full Commission affirmed the administrative judge's order on June 26, 1984.

Compensation Commission seeking compensation for his injuries received on November 11, 1980, February 23, 1982, and January 27, 1983. Hearings were conducted before Administrative Judge Thomas Webb on September 22, 1983 and December 8, 1983. The administrative judge, by order dated January 12, 1984, denied Graham benefits for the November 11, 1980 injury as a consequence of Graham's failure to file a claim against the Power Association within the applicable statute of limitation, as set forth in Miss.Code Ann. Sec. 71-3-35(1) (1972) (two year bar). The administrative judge also denied Graham benefits for the February 23, 1982 and January 27, 1983 injuries, finding that Graham failed to prove by a preponderance of the evidence that he had sustained any permanent partial medical disability as a result of the two work-related injuries or that he had incurred any loss of wage-earning capacity as a result of the injuries.

Following the Full Commission's denial of relief, Graham appealed the Commission order to the Lamar County Circuit Court. That court, on January 10, 1985, reversed the order of the Commission and remanded the cause to it "to allow for further medical evidence to be presented, at the election of the employee even if only in a hypothetical form, at the expense of the employer/carrier under Code Section 71-3-15 and for the Commission's findings to be conditioned on that additional medical evidence, if any."

The Power Association and Aetna Casualty and Surety Company appealed the order of the Lamar County Circuit Court to this Court. On February 18, 1987, this Court in an unpublished opinion affirmed the order of the circuit court holding:

There has been no final order in this case. Because the record before us is incomplete, we are unable to review the case on the merits. Therefore, the order of the circuit court remanding the cause to the full Commission to allow Graham to put on further evidence is affirmed. All questions raised on appeal, including procedural issues, are reserved, and the rights of the parties to raise those questions on appeal on the merits are unaffected by our ruling.

The case was resubmitted to Administrative Judge Webb and psychological evidence was entered by Graham tending to show that as a result of his work-related injuries, Graham suffered from acrophobia, the fear of heights. By order dated December 8, 1987, Administrative Judge Webb again denied Graham compensation benefits, finding that Graham failed to produce evidence that he suffered any degree of permanent partial impairment or any degree of loss of wage earning capacity as a result of the work-related acrophobia.

Graham appealed the order of Administrative Judge Webb, dated December 8, 1987, to the Mississippi Workers' Compensation Full Commission. On September 28, 1988, the Commission affirmed the December 8, 1987, order of the administrative judge.

Graham appealed the Commission order affirming the administrative judge's denial of benefits, to the Lamar County Circuit Court. The Lamar County Circuit Court reversed the Full Commission order and awarded Graham Workers' Compensation benefits.

DISCUSSION

The three issues presented to this Court by the appellants are reformed to state the following:

I. Whether the findings and order of the Mississippi Workers' Compensation Commission are supported by substantial evidence.

II. Whether the lower court erred in remanding the cause to the Commission for the introduction of medical evidence concerning Graham's alleged disability of acrophobia.

I.

Graham's claim for Workers' Compensation benefits was heard by Administrative Judge Webb on September 22, 1983 and December 8, 1983. Judge Webb, in denying Graham compensation benefits, found that Graham "has failed to prove by a preponderance of the credible evidence in this cause that he has sustained any permanent partial medical disability as a result of any of the work-related incidents or that he has incurred any loss of wage earning capacity as a result thereof." This finding and order were approved by the Full Commission of the Mississippi Workers' Compensation Commission and became its order.

In Workers' Compensation cases, the claimant has the burden of proof to establish every essential element of the claim and it is not sufficient to leave the matter to surmise, conjecture or speculation. Narkeeta, Inc. v. McCoy, 153 So.2d 798, 800 (Miss.1963); See Fought v. Stuart C. Irby, 523 So.2d 314, 317, (Miss.1988).

The claimant, as a general proposition, has the burden of proof. He must meet this burden by showing an accidental injury arising out of and in the course of his employment and a causal connection between the injury and the claimed disability. In Dunn's Miss. Workers' Compensation, Sec. 163, p. 124 and at p. 81 of the 1960 Supplement, the author catalogues many cases which uphold the foregoing principle, commencing with T.H. Mastin and Company v. Mangum, 215 Miss. 454, 61 So.2d 298 (1954) and running through Winters Hardwood Dimension Company v. Dependents of Dave Harris, 236 Miss. 757, 112 So.2d 227 (1959). Consequently this question is now settled beyond controversy.

Narkeeta, 153 So.2d at 800 (quoting Potts v. Lowery, 242 Miss. 300, 134 So.2d 474 (1961)).

The Commission's decision was appealed to the Lamar County Circuit Court and that court reversed the Commission order. The findings and order of the Workers' Compensation Commission are binding on this Court, and all other appellate courts, so long as they are supported by substantial evidence. Fought v. Stuart C. Irby Co., 523 So.2d 314, 317 (Miss.1988); Champion Cable Const. Co., Inc. v. Monts, 511 So.2d 924, 927 (Miss.1987); Penrod Drilling Co. v. Etheridge, 487 So.2d 1330, 1332 (Miss.1986); Georgia-Pacific Corp. v. Veal, 484 So.2d 1025, 1027 (Miss.1986); Evans v. Marko Planning, Inc., 447 So.2d 130, 132 (Miss.1984); see also Dunn Mississippi Workers' Compensation Sec. 286, 288 (3d ed. 1982). "This is so, even though the evidence would convince this Court otherwise, were we the fact finder." Fought, 523 So.2d at 317; Georgia-Pacific Corp., 484 So.2d at 1028 (quoting Olen Burrage Trucking Co. v. Chandler, 475 So.2d 437, 439 (Miss.1985)). This Court will reverse an order of the Workers' Compensation Commission only where such order is...