Wells-Lamont Corp. v. Watkins

• Decision Date: 08 April 1963
• Docket Number: WELLS-LAMONT,No. 42634,42634
• Parties: CORPORATION and Liberty Mutual Insurance Company v. Mrs. Fannie Elvie (V.) WATKINS.
• Court: Mississippi Supreme Court

Page 600

151 So.2d 600

247 Miss. 379

WELLS-LAMONT CORPORATION and Liberty Mutual Insurance

Company v. Mrs. Fannie Elvie (V.) WATKINS.

No. 42634.

Supreme Court of Mississippi.

April 8, 1963.

Daniel, Coker & Horton, Fred J. Lotterhos, Jr., Jackson, for appellant.

Laurel G. Weir, Philadelphia, for appellee.

RODGERS, Justice.

This is a workmen's compensation case. The attorney-referee dismissed the claim of appellee, Mrs. Fannie 'V.' Watkins against the employer, Wells-Lamont Corporation, in which she sought compensation benefits for disability growing out of an alleged accident. The employee filed a motion addressed to the attorney-referee and the Workmen's Compensation Commission requesting an order setting aside the order of the attorneyreferee so that she could introduce Dr. George D. Purvis, the surgeon who operated on her, for the purpose of showing that the accident she had sustained caused her present disability, and requested that the Commission direct an examination of claimant by a 'disinterested physician'. The Commission entered an order overruling the motion to reopen upon the ground that 'the statute provides for only one way whereby the Commission can alter or change an attorney-referee's order and it is by motion for review * * *'. After the order of the Commission was entered, the employer and carrier filed a response in which they admitted that they had given notice that they would use Dr. Purvis, but after claimant rested her case, it was not necessary for defendants to call Dr. Purvis.

The claimant filed a petition for review before the full Workmen's Compensation Commission, setting out that defendants had requested a recess hearing to take the testimony of Dr. George Purvis in Jackson, Mississippi. The claimant filed another motion asking that she be permitted to introduce Dr. P. H. Rhymes, and that his testimony would show 'the injuries sustained on said occasion had permanently disabled her for lifetime.' On June 1, 1962, the Commission entered an order sustaining the order of the attorney-referee.

The claimant appealed to the Circuit Court of Neshoba County, and the circuit court entered a judgment reversing the order of the Workmen's Compensation Commission. The court held that it was error for the attorney-referee and the Commission to have sustained a motion filed by the employer and carrier to dismiss the case, and it stated that it was duty of the Commission to fully develop the issues involved between the parties and to admit additional testimony.

The employer and insurance carrier have appealed to this Court and alleged that the circuit court erred in its interpretation of the Mississippi Workmen's Compensation Law in finding that the Commission abused its discretion in sustaining the order of the attorney-referee to dismiss the claim of Mrs. Fannie 'V.' Watkins, and in refusing to hear additional testimony supporting her claim.

The testimony in the record reveals that Mrs. Fannie 'V.' Watkins had worked for Wells-Lamont Corporation for a little over five years and that she had been able to work during that time, although she admitted she had previously had trouble with her back. She testified that in the afternoon of April 3, 1961, while working for the appellant-employer she pulled a case of gloves in a stooped position across the floor and hit a rough place or something and jerked her back. She testified she reported such occurrence to the acting 'floor lady.' The testimony further reveals that the complainant went to Dr. Moore the next day, and the following day she entered the hospital on his advice, where she remained eleven days. She was later required to go back to the hospital two additional times before she was finally sent by Dr. Moore to Dr. Purvis in Jackson, Mississippi. She underwent an operation in which a bone was removed from her hip and put in the lower part of her back. She testified that she has been unable to do any work since her injury.

Dr. Moore had diagnosed her trouble as 'myositis', an inflammatory disease of the muscle, later, however, Dr. Moore had felt that claimant 'possibly had a ruptured disc' and had sent her to Dr. George Purvis, an orthopedic surgeon. Dr. Moore testified about the operation and stated that she had been totally disabled since April 4, 1961, and that her disability was caused by back condition. He further stated that she was in such extreme pain at the time she came to him that she was relying on narcotics for relief. In answer to the question of whether the disability she suffered could have been aggravated or accelerated as the result of a sprain or strain, he said 'There is a possibility that it could have been aggravated by an injury.' In answer to a hypothetical question, stating the testimony with reference to the injury, he stated 'Well, my only answer to that is that it is a possibility.'

The motion of the employer and insurance carrier filed with the attorney-referee to dismiss was based upon the theory that the claim of Mrs. Fannie 'V.' Watkins was not supported by medical testimony, leading to a medical conclusion, based upon a reasonable probability that the present disability of claimant was caused by an accident, or that said accident aggravated, contributed to, or accelerated a previous disability so as to prevent the employee from performing her duty as a worker.

I.

We are in full accord with the authorities cited by appellant to the effect that the burden of proof is upon claimant to establish her claim, and in so doing claimant must show that her present disability (inability to earn wages) resulted from an injury she received while employed by the employer, or she must at least show that such injury was a substantial cause of her disability. Moreover, in cases where claimant's inability to perform her duty as an employee is based upon a combination of the injury and a prior disability, the claimant must show that the accident arose out of, and in the course of, employment, and must show that her disability was aggravated, accelerated or contributed to by the injury which caused her present inability to earn wages. Franks v. Goyer Co., 234 Miss. 833, 108 So.2d 217; Ingalls Shipbuilding Corp. v. Howell, 221 Miss. 824, 74 So.2d 863; Potts v. Lowery, 242 Miss. 300, 134 So.2d 474; Smith v. St. Catherine Gravel Co., 220 Miss. 462, 71 So.2d 221; 100 C.J.S. Workmen's Compensation Sec. 516, p. 472.

In the instant case, the proof stands uncontradicted that Mrs. Watkins was injured on April 3, 1961, and that she was in such pain as to require narcotics; that prior to the injury she had been able to work, and immediately thereafter it became necessary for her to go to the hospital on three occasions, and finally had to undergo an operation. Dr. Moore testified she is now totally disabled to earn wages.

Appellant contends that Dr. Moore's testimony was insufficient to show a causal connection between the accident and claimant's disability, and that Sec. 6998-02(9), Miss.Code 1942, requires that claimant's incapacity and the extent thereof must be supported by medical findings. Appellant points out that a mere 'possibility' that an alleged injury might have hastened, aggravated, lighted up, or worsened the claimant's condition is insufficient to establish the claim under our Workmen's Compensation Law. Citing Welborn v. Joe N. Miles & Sons Lbr. Co., 231 Miss. 827, 97...