Stuart's, Inc. v. Brown

Decision Date19 April 1989
Docket NumberNo. 58140,58140
Citation543 So.2d 649
PartiesSTUART'S, INC. and Insurance Company of North America v. Nellie W. BROWN.
CourtMississippi Supreme Court

ROBERTSON, Justice, for the Court:


The issue of consequence in this workers' compensation appeal is apportionment. No one questions that Nellie W. Brown suffered a work-connected injury, nor that she is permanently, totally disabled. Employer and carrier argue that Brown's disability in substantial part is related to pre-injury back trouble and a post-injury car wreck, notwithstanding the Mississippi Workers' Compensation Commission's finding of ultimate fact that Brown's total, permanent disability was "solely as a result of the job-related injury of September 24, 1981."

On direct appeal this Court affirmed. The case is back on petition for rehearing, augmented by the briefs of eight Amici Curiae. 1 We modify the original opinion, but in the end affirm once more.


On September 24, 1981, the sixty-year-old Nellie Brown was employed by Stuart's, Inc., as manager of a retail clothing store located in the Tupelo Mall in Tupelo, Mississippi. On that date, and while on the job, Brown attempted to prevent a shoplifting and was beaten so severely that she was rendered unconscious. Brown suffered knee and head injuries, a sprained back, and, most significantly, developed a psychiatric injury diagnosed as severe depressive neurosis. She has not been able to work since that date.

Today's is not Brown's first workers' compensation claim. In 1976 Brown injured her lower back while lifting boxes of inventory. She underwent two surgical procedures known as laminectomies, and on each occasion she was found temporarily, totally disabled. After both surgeries, however, Brown returned to work. The point for the moment is that from March of 1977 leading up to September 24, 1981, Brown was working full time for Stuart's, Inc. 2

On December 29, 1983, Brown filed with the Mississippi Workers' Compensation Commission her motion to controvert. On December 3, 1985, a hearing was held before the Administrative Judge, who on March 18, 1986, entered an order finding Brown permanently and totally disabled. On October 28, 1986, the Commission affirmed. Employer and carrier appealed to the Circuit Court of Lee County, which on January 8, 1987, affirmed the Commission's order. Employer and carrier finally appealed to this Court, arguing that the benefits awarded Brown should have been reduced, as in their view, Brown's other injuries have contributed to her permanent disability.



For reasons no doubt good and sufficient, our legislature has decreed that the worker will bear that part of the burden of her loss of wage earning capacity as may be attributable to experiences or matters other than a work connected injury. Thus, it is true that a preexisting disability requires reduction of compensation otherwise payable, a reduction by the amount which the preexisting disability contributes to the whole disability found after the injury at issue. See Miss.Code Ann. Sec. 71-3-7 (1972). 3 See also Reichhold Chemical Inc. v. Sprankle, 503 So.2d 799, 803 (Miss.1987); Road Maintenance Supply, Inc. v. Dependents of Maxwell, 493 So.2d 318, 323 (Miss.1986); and Delta Drilling Co. v. Cannette, 489 So.2d 1378, 1381 (Miss.1986).

In many states these non-compensable-because-apportioned losses are compensated through a "second injury fund." 2 Larson, The Law of Workers Compensation Sec. 59.20 (1987) (hereinafter "Larson"). Our act provides for such a fund, though its availability and utility are quite restricted and wholly unavailable in a case such as today's. Miss.Code Ann. Sec. 71-3-73 (Supp.1988).

Citing the apportionment rule, employer and carrier make much of the fact that there is medical testimony that Brown experienced a fifteen percent permanent, partial medical or functional disability as a result of her prior back problems and surgery. We are thus presented the question whether the "contributing" preexisting disability which will entitle an employer and carrier to apportionment must have been occupationally disabling before the injury complained of, or only medically or functionally disabling.


We begin with the premise that it is a statute we are expounding. We do not inquire what the legislature meant; we ask only what the statute means. Mississippi Insurance Guaranty Ass'n v. Vaughn, 529 So.2d 540, 542 (Miss.1988) (quoting Holmes, Collected Legal Papers, 207 (1920)). Our initial source of meaning lies in the words and phrases employed by the legislature. Beyond this, we seek meaning in the principles and policies embedded in the legislative expression. Given the text, we ask what purpose could best justify the promulgation of this act? We seek that statement of purpose which may best justify the statute today, given the world we live in. These latter sources of meaning become particularly important where, as here, tension and ambiguity may be found among the words of the act. Our task in the end requires that we give to the work of the legislature the most coherent and principled reading available. See McIntire v. Moore, 512 So.2d 687, 689 (Miss.1987); Warren County v. Culkin, 497 So.2d 433, 436 (Miss.1986).

The big picture is important. When a worker is injured on the job and (only when she) suffers an attendant occupational disability, a substantial economic loss has occurred. The quantum of such a loss may be measured and calculated in dollars and cents. The question our law confronts is where that loss will fall, how it must be allocated among the affected persons. Because this is a workers' compensation case, we give no thought to notions of fault and personal culpability as we pursue this allocation process. See Miss.Code Ann. Sec. 71-3-7 (1972); Road Maintenance Supply, Inc. v. Dependents of Maxwell, 493 So.2d 318, 322 (Miss.1986); Kahne v. Robinson, 232 Miss. 670, 683, 100 So.2d 132, 136 (1958).

In a case such as today's, we must not ignore that there has been one apportionment already. This first apportionment--which may be found in every workers' compensation case--is a function of statutory limits on compensation, Miss.Code Ann. Secs. 71-3-13 through -25 (Supp.1988). Because of these, we know that a major portion of the worker's quantifiable pecuniary loss (plus all of the non-pecuniary losses) will fall upon her shoulders and those of her family. 4 Payment of benefits in the maximum amount allowed under the law in the ordinary case of permanent, total disability compensates the worker and her family for substantially less than half their actual pecuniary losses. 5 The question for decision is who will bear the remainder of the pecuniary loss resulting from the worker's occupational disability: (a) the employer, who has at least the option of spreading such losses through insurance and treating compensation insurance as a cost of doing business, a cost to be passed on to the consumers of the employer's goods or services, or (b) the worker and her dependents, who have far more limited (and economically less realistic) options. Road Maintenance, 493 So.2d at 322; McCluskey v. Thompson, 363 So.2d 256, 259 (Miss.1978).

It is in the above context that we have often held that (1) close questions of compensability should be resolved in favor of the worker, e.g., Big "2" Engine Rebuilders v. Freeman, 379 So.2d 888, 889 (Miss.1980), and (2) the act should be liberally construed to carry out its beneficent remedial purpose, Pontotoc Wire Products Co. v. Ferguson, 384 So.2d 601, 603 (Miss.1980). These points of administrative policy have been further influenced by the fact that the employer enjoys legislative protections from other remedies by the worker. Miss.Code Ann. Sec. 71-3-9 (Supp.1972); Road Maintenance, 493 So.2d at 322-23. It is also in this context that we seek meaning in our apportionment statute.


The foundation question is, what is meant by disability? "Incapacity ... to earn wages," our statutes answer. Miss.Code Ann. Sec. 71-3-3(i) (Supp.1988). 6 The familiar short-hand expression of the definition is "loss of wage earning capacity." Robinson v. Packard Electric Division, General Motors Corp., 523 So.2d 329, 331 (Miss.1988); General Electric Co. v. McKinnon, 507 So.2d 363, 365, 368 (Miss.1987); Piggly Wiggly v. Houston, 464 So.2d 510, 512 (Miss.1985); Compere's Nursing Home v. Biddy, 243 So.2d 412, 413 (Miss.1971). Loss of wage earning capacity is no abstract notion but one to be measured by the flesh and blood realities of the life circumstances of a particular worker. Pontotoc Wire Products Co. v. Ferguson, 384 So.2d 601, 603 (Miss.1980). An employer takes an employee as he finds her. Insurance Department of Mississippi v. Dinsmore, 233 Miss. 569, 579, 102 So.2d 691, 694 (1958).

Against this backdrop, it is less than surprising that our cases have long accepted that occupational or industrial disability, on the one hand, and medical disability, on the other, are hardly synonymous. See Robinson, 523 So.2d at 331 and cases there cited; Bolton v. Catalytic Construction Co., 7 309 So.2d 167, 172 (Miss.1975). Our recent cases have recognized this distinction in the context of employer demands for apportionment. Marshall Durbin, Inc. v. Hall, 490 So.2d 877, 880 (Miss.1986); South Central Bell Telephone Co. v. Aden, 474 So.2d 584, 595 (Miss.1985).

Appellants and supporting Amici argue that no language in the statute prescribes that the apportionment-requiring, preexisting condition be one that has occupationally disabled the worker. This begs the question, as the statutory language similarly fails to decree that such condition be of a medical or functional nature. No help appears in the provision that before apportionment may be ordered the...

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