Wilcher v. D. D. Ballard Const. Co.

• Decision Date: 06 June 1966
• Docket Number: No. 43975,43975
• Citation: 187 So.2d 308
• Parties: Kenneth WILCHER, Claimant-Appellant, v. D. D. BALLARD CONSTRUCTION COMPANY and United States Fidelity & Guaranty Company, Defendants-Appellees.
• Court: Mississippi Supreme Court

Page 308

187 So.2d 308

Kenneth WILCHER, Claimant-Appellant, v. D. D. BALLARD CONSTRUCTION COMPANY and United States Fidelity & Guaranty Company Defendants-Appellees.

No. 43975.

Supreme Court of Mississippi.

June 6, 1966.

Fountain D. Dawson, Greenville, Ungar & Dulitz, New Orleans, La., for appellant.

Butler, Snow, O'Mara, Stevens & Cannada, Dan McCullen, Jackson, for appellees.

PATTERNSON, Justice.

This is an appeal from the Circuit Court of the First Judicial District of Hinds County, which affirmed an order of the Workmen's Compensation Commission, which found a 10% permanent partial physical disability to the claimant attributable to an industrial accident of June 1, 1962. The Commission established the time of maximum medical recovery as April 7, 1963, and found a loss in wage-earning capacity of $6.46 per week. This order reversed the finding of the attorney-referee who found the loss of wage-earning capacity to be $15 per week.

From this award the claimant appeals, assigning as error the following:

(1) The Commission and Circuit Court erred in reducing compensation benefits awarded to the claimant by the attorney-referee.

(2) The award made by the Commission, and affirmed by the Circuit Court, is contrary to law and the overwhelming weight of the evidence and is not supported by substantial evidence.

The defendants cross-appeal and assign as error the following:

(1) The Commission and court below erred as a matter of law in making an award to the claimant for permanent partial benefits based solely on a medical or functional impairment inasmuch as the Commission and court below found as a matter of fact that claimant's post-injury earning capacity is actually in excess of his average weekly wage at the time of the injury, and that claimant wholly failed to rebut the presumption that his post-injury earnings constitute his actual earning capacity, and

(2) That the Commission and court below erred in failing to terminate claimant's temporary total benefits in February 1963, at which time claimant was dismissed to resume work and actually resumed work, and both the Commission and court below erred in failing to give the employer and carrier credit for the amount of temporary total benefits paid thereafter on any permanent partial benefits due the claimant.

Claimant sustained an alleged injury to his low back on June 1, 1962, while employed as a mechanic and truck driver for Ballard Construction Company. The injury, which was thought to be a ruptured disc, required surgery, which disclosed the impairment to be adhesions rather than a ruptured disc. Claimant was paid temporary total compensation benefits from the date of the accident through April 7, 1963, and additionally, all medical expenses were defrayed.

The Commission found:

It appears that claimant's post-injury earnings as a truck driver and a bulldozer operator for W & S Construction Company have greatly exceeded the average weekly wage earned by claimant at the time he sustained his accidental injury while employed by D. D. Ballard Construction Company. Claimant wholly failed to rebut the presumption that claimant's post-injury earnings constitute his actual earning capacity. It appears from the record as a whole that claimant's post-injury earning capacity is actually in excess of his average weekly wage at the time of injury, but it does appear from the record that claimant has sustained a permanent partial disability based on functional impairment of not more than ten per cent (10%) to the body as a whole.

The Commission is cognizant of the fact that medical disability and wage earning capacity are two different things, that a man may have a medical disability of twenty per cent (20%) and wage earning loss of say fifty percent (50%), but in this case it appears that the actual wage loss of this claimant is nil; in fact, from the record it would appear he has earned more weekly wages than he did prior to the injury, notwithstanding the fact that he does have a medical disability or functional disability of ten per cent (10%).

From the testimony and evidence offered in this cause, the Commission finds and adjudicates the following facts, to-wit:

That the claimant attained maximum medical recovery on April 7, 1963, from the accidental injury suffered by him on June 1, 1962;

That on June 1, 1962, claimant had an average weekly wage of $64.66;

That as a consequence of the aforesaid accidental injury, the claimant was permanently partially disabled in the amount of ten per cent (...