BEFORE THE MISSISSIPPI WORKERS' COMPENSATION COMMISSION ***
V MWCC NO. 16,903**
BRIEF OF APPELLEE/CLAIMANT
Oral Argument Requested
Attorney for Appellee/Claimant
TABLE OF CONTENTSTABLE OF CONTENTS
TABLE OF AUTHORITIES
STATEMENT OF ISSUES
STATEMENT OF THE CASE
A. COURSE OF PROCEEDINGS
B. STANDARD OF REVIEW
C. STATEMENT OF FACTS
ARGUMENT I. SUBSTANTIAL EVIDENCE EXISTS TO SUPPORT THE
MISSISSIPPI WORKER'S COMPENSATION COMMISSION'S
FINDING THAT THE CLAIMANT REACHED MAXIMUM MEDICAL
IMPROVEMENT ON JUNE 1, 1991, AND THE COMMISSION'S
ORDER SHOULD BE AFFIRMED
II. SUBSTANTIAL EVIDENCE EXISTS TO SUPPORT THE
MISSISSIPPI WORKER'S COMPENSATION COMMISSION'S FINDING THAT THE CLAIMANT SUSTAINED A
PERMANENT PARTIAL DISABILITY AND LOSS OF WAGE
EARNING CAPACITY AS A RESULT OF HER WORK-
RELATED INJURY AND THE COMMISSION'S ORDER
SHOULD BE AFFIRMED
CONCLUSIONS
CERTIFICATE OF SERVICE
TABLE OF AUTHORITIES
Babcock & Wilcox Co. V. McClain, 149 So.2d 523 (Miss. 1963)
Bolton V. Catalytic Construction Company, 309 So.2d 167
(Miss. 1975)
Cowan V. Pearl River Tung Co., 67 So.2d 356 (Miss. 1953)
Dewberry V. Caner, 218 So.2d 27 (Miss. 1969)
Dixie Contractors. Inc. V. Ashmore, 349 So.2d 532 (Miss. 1977)
Dixie Pine Products Co. V. Dependents of Bryant, 89 So.2d 589
(Miss. 1952)
Ed Bush Sandwich Shop V. Strauss, 138 So.2d 741 (Miss. 1962)
Federated Mutual Implement & Hardware Insurance Company V.
Spencer, 67 So.2d 878 (Miss. 1953
Freeman V. Mississippi Power and Light, 92 So.2d 658 (Miss. 1957)
Georgia Pacific Corporation V. Veal, 484 So.2d 1025 (Miss. 1986)
Goasa & Son V. Goasa, 208 So.2d 575 (Miss. 1968)
Ingall Shipbuilding Corporation V. Byrd, 60 So.2d 645 (Miss. 1952)
King & Heath Construction Co. V. Hester, 360 So.2d 692 (Miss. 1978)
Knox Glass Inc. V. Evans, 197 So.2d 784 (Miss. 1967)
Marshall Durbin. Inc. v. Hall, 490 So.2d 877 (Miss. 1986)
Miss. Federated Cooperatives v. Jefferson, 79 So.2d 723 (Miss. 1955)
Miss-Lou Equipment Co. v. McGrew, 153 So.2d 801 (Miss. 1963)
New Orleans Furniture Manufacturing Co. v. Manin, 190 So.2d 863
(Miss. 1966)
Odom's Dispensing Opticians v. Smith, 259 So.2d 486 (Miss. 1972)
Olen Buasre Trucking Co. v. Chandler, 475 So.2d 437 (Miss. 1985)
Rathbone. Hair & Ridgeway Box Co. v. Green, 115 So.2d 674 (Miss. 1959)
South Central Bell Telephone Company v. Aden, 474 So.2d
584 (Miss. 1985)
Staple Cotton Services Association v. Russell, 399 So.2d 224
(Miss. 1981)
Tate v. Dr. Pepper Bottling Company, 70 So.2d 602 (Miss. 1954)
United Funeral Homes. Inc. v. Culliver, 128 So.2d 579 (Miss. 1961)
Universal Manufacturing Company v. Barlow, 260 So.2d 827
(Miss. 1972)
W.G. Avery Body Company v. Hall, 79 So.2d 453 (Miss. 1955)
Dunn's Mississippi Workmen's Compensation, 2d Ed. Sec 94 (1967)
Dunn, Mississippi Workmen's Compensation, 3d Ed. Sec 289 (1982)
Footnote 37 of Dunn, Mississippi Workmen's Compensation, 3d Ed.,Sec 163 (1982)
Vol.1, Larson's Workmen's Compensation Law, Section 12.20
STATEMENT OF THE ISSUES1. Substantial evidence exists to support the Mississippi
Worker's Compensation Commission's finding that the Claimant
reached maximum medical improvement on June 1, 1991, and the
Commission's Order should be affirmed.
2. Substantial evidence exists to support the Mississippi
Worker's Compensation Commission's finding that the Claimant
sustained a permanent panial disability and loss of wage
earning capacity as a result of her work-related injury and the
Commission's Order should be affirmed.
STATEMENT OF THE CASE
A. COURSE OF PROCEEDINGS:The panies stipulated that the Claimant, **, was injured in
an industrial accident on July 10, 1990, whereby she fractured
several ribs. (R.3). Subsequently, the Claimant suffered back
problems, including compression fractures, and was diagnosed as
having multiple myeloma. The Employer filed a Notice of
Controversion on February 13, 1991. On March 28, 1991, Claimant
filed her Petition to Controvert to which the Employer and Carrier
responded on April 18,1991.
A Hearing was held at the Mississippi Worker's Compensation
Commission in Jackson, Mississippi, on May 26, 1992, before the
Honorable **, Administrative Judge of the Commission. The
primary issue before Judge ** was the determination of what
percentage, if any, of the Claimant's current total permanent
disability was caused by her industrial accident of July 10,
1990. (R.3). The Claimant testified at the Hearing. Dr. ** and
Dr. ** testified by deposition.
Judge ** issued an Order on July 16, 1992, which he
subsequently amended July 28, 1992, finding (1) that the
Claimant was involved in an industrial accident on July 10,
1990, whereby she sustained fractured ribs and a back injury;
(2) that the Claimant reached maximum medical recovery from the
injuries sustained in that industrial accident on June 1, 1991;
and (3)
that the Claimant has been permanently totally occupationally
disabled since the date of her injury. Judge ** further found
that the Claimant was able to perform the duties of her
employment prior to and at the time of her industrial accident,
despite her pre-existing condition; that she would be able to
return to her employment with a permanent partial disability,
except for her pre-existing myeloma and chronic obstructive lung
disease; and that the Claimant's pre-existing conditions
contribute seventy-five percent (75%) to her permanent
disability and, therefore, benefits due the Claimant should be
apportioned by that amount. Further, the Employer and the
Carrier were ordered to pay for all treatment of Claimant's
myeloma which was necessary in order to properly treat her back
and rib problems. Judge **'s Order contains a recitation of the
specific Conclusions of Law and Findings of Fact upon which he
based his Order.
Judge **'s July 28, 1992, Order was appealed to the full
Mississippi Worker's Compensation Commission for review. A
Hearing was held February 1, 1993 and the Mississippi Worker's
Compensation Commission issued an Order on February 2, 1993,
affirming the Administrative Order dated July 16, 1992.
Subsequently, the Commission issued an Amended Order on February
26, 1993, affirming the Amended Order of the Administrative
Judge dated July 28,1992.
B. STANDARD OF REVIEW:
Under the substantial evidence rule, if the decision of the
Commission is supported by substantial evidence, the decision
must be affirmed by the Court on appeal.
The Supreme Court clarified this test in Freeman v
Mississippi Power and Light, as follows:
The test that we have sought to apply has been not as
to whether the claim is supported by substantial
evidence, but rather whether or not the finding of
the trier of facts. either in allowing or denying the
claim is supported by substantial evidence.
Freeman v. Mississippi Power and Light Co., 92 So.2d
658, 659 (Miss. 1957). (emphasis supplied)
C. STATEMENT OF FACTS: The Claimant, **, earned her associate degree in nursing at
age fifty-three. (R.5,6). She was employed originally at Hinds
General Hospital both as a staff nurse and as charge nurse on
the post surgery floor. She subsequently took private duty cases
at Upjohn, and was Director of Nurses for Community Hospital
until her voluntary retirement at age sixty-two. (R.6). Two
years later, ** solicited her services in the implementation of
a new program, never previously tried in Mississippi. (R.7). **
accepted their offer of employment, and, on the day of the
industrial accident, she was sixty-seven years old, (R.4), and
was employed as head nurse on Building 73 at the **. (R.5,7).
Prior to her employment with **, ** took a medical
examination during which she candidly disclosed that she had a
previous heart condition at age thirty-eight, and that she had
occasional fluid accumulations as a result thereof (R.8,9).
However, she testified that there were no problems with her
~hean or fluid accumulation which caused her to miss work, from
age thirty-eight until the time of her industrial accident. The
Claimant's testimony clearly shows that her temporary retirement
was voluntary (R. 16), and that there were no physical
limitations or health problems during her brief retirement
period. (R. 13-16). **'s testimony further clearly shows that
she was able to work, and that no restrictions were placed on
her physical activities by either her doctors or by her employers.
(R.8-10, 17).At the time that the industrial accident occurred, **'s age
sixty-eight, was doing her job at **. (R.19). She had lost no
time due to illness, and
C. STATEMENT OF FACTS:
The Claimant, **, earned her associate degree in nursing at
age fifty-three. (R.5,6). She was employed originally at Hinds
General Hospital both as a staff nurse and as charge nurse on
the post surgery floor. She subsequently took private duty cases at
Upjohn, and was Director of Nurses for Community Hospital until
her voluntary retirement at age sixty-two. (R.6). Two years
later, ** solicited her services in the implementation of a new
program, never previously tried in Mississippi. (R.7). **
accepted their offer of employment, and, on the day of the
industrial accident, she was sixty-seven years old, (R.4), and
was employed as head nurse on Building 73 at the **. (R.5,7).
Prior to her employment with **, ** took a medical
examination during which she candidly disclosed that she had a
previous heart condition at age thirty-eight, and that she had
occasional fluid accumulations as a result thereof (R.8,9).
However, she testified that there were no problems with her
heart or fluid accumulation which caused her to miss work, from
age thirty-eight until the time of her industrial accident. The
Claimant's testimony clearly shows that her temporary retirement
was voluntary (R. 16), and that there were no physical
limitations or health problems during her brief retirement
period. (R. 13-16). **'s testimony further clearly shows that
she was able to work, and that no restrictions were placed on
her physical activities by either her doctors or by her
employers.(R.8-10, 17).
At the time that the industrial accident occurred, **, age
sixty-eight, was doing her job at **. (R. 19). She had lost no
time due to illness, and was, in fact, an exemplary employee who
had been selected Nurse of the Month, only weeks prior to the
industrial accident. (R. 18).
On July 10, 1990, in the course of her employment, a
disturbed patient charged ** hitting her in the chest with both
fists and knocking her against the steel door. (R. 19). The
parties stipulated that the Claimant sustained an injury in that
industrial accident whereby she fractured several ribs. (R.3).
(Appellant's Brief 12).
As a result of those injuries arising out of and in the
scope of her employment, ** has been in continuous pain and
unable to work. (R.22). On July 23, 1990, she first visited Dr.
**, complaining of having pain in her chest and in her back. (**
Deposition, p.5). On August 24, a bone scan revealed fractures
of the 5th, 6th, 7th and 8th ribs at the trauma site. (**
Deposition, p.7.12). The severe pain in her chest and back area
continued to increase. On November 7,1990, "because of her
worsening symptoms," (** Deposition, p. 12), the Claimant was
hospitalized and, subsequently, diagnosed as suffering from a
compression fracture in her back and from multiple myeloma.
Treating physicians during this hospital stay included Dr. **,
Dr. **, and Dr. **. (** Deposition, p.13).
Dr. ** testified to the effect of trauma on a patient with
multiple myeloma explaining that if a patient has multiple
myeloma, those lesions in the bones or other areas weaken the
bones and pre-disposes them to fractures with much less trauma.
He further testified that if those lesions were caused by
myeloma, then in order to treat the fractured ribs it was
necessary to treat the underlying condition of myeloma.
(**Deposition, p.13).
Dr. ** testified that, in his medical opinion, the injury
which ** sustained precipitated problems which at least partially
contributed to her disability. (** Deposition, p. 8, 13, 14, 18,
23, 25). He further testified that the underlying aggravated
condition subsided, and she reached maximum medical recovery on
June 1, 1991. (** Deposition, p.7, 9, 10). The parties
stipulated that as of the date of Medical Maximum Recovery, **
was permanently totally disabled and unable to work. Dr. **, in
his professional opinion, assigned twenty percent (20%) of that
permanent occupational disability as the cause and the result of
her industrial accident. (** Deposition, p.8, 22, 23). ARGUMENT1. Substantial evidence exists to support the Mississippi
Worker's Compensation Commission's finding that Claimant reached
maximum medical improvement on June 1, 1991, and the
Commission's Order should be affirmed.
There is clearly substantial evidence in the record to
substantiate the finding that the Claimant reached maximum
medical improvement on June 1, 1991.
The employer and the carrier submit that the treating
physician, Dr. **, is arguably more qualified to offer an expert
opinion than is Dr. **. However, in January of 1991, the date
Dr. **gives as the date of maximum medical improvement (**
Deposition, p. 14), he indicated that Dr. ** was "the primary
physician under whose care she was in (during) that January '91
hospitalization." (** Deposition, p.25). Dr. ** acknowledges
that he had previously referred the Claimant on to specialist in
November of 1990.
Dr. **, the Claimant's primary physician in January of
1991,
made the following responses to the same question in his deposition:
Q. All right. When, in your opinion, did Mrs. Humphrey reach a
state of maximum medical recovery wherein the effects of the
trauma had reached a state of maximum medical cure?
A. That's a good question. I'll tell you why -- what I'm
thinking about, and then maybe we can work toward the answer,
but she had -- her pain had stabilized. Her protein -- the
abnormal protein level had come down by about June of 1991. She
was getting around on a walker. (emphasis supplied) At that
point with her protein levels being normal, I thought she had
improved about as much as she, you know, was going to; however,
when I saw her a couple of weeks ago, she actually had gotten
some stronger. Her pain is a bit better. As far as the healing
of the ribs themselves, I believe that had pretty much healed as
much as it was going to by May of 1991.
Q. Okay. In the course of treatment that you administered up
to May of 1991, was it necessary for you to treat the underlying
condition, the myeloma, in order to treat the results produced
by the July 1990 trauma?
A. Yes. I believe that the ribs would not have healed as well
without the myeloma being brought under control because that
contributed to some of the rib damage.
Q. Did you have the myeloma under control by your June 1,
1991, maximum medical date that you gave earlier?
A. I believe so. Yes. The -- let me see and make sure that
that -- January of '92--
(Deponent examines documents)
A. Yes. By that summer, at least, her protein level had gotten
as low as it has been; and it has stayed around 1,000 since that time.
Q. Had the results of the injury either been cured or had they
subsided to the point where they needed no further medical care
by June 1, 1991? (emphasis supplied)
A. Of the injury per se it had subsided to that. (**
Deposition, p.6-7)The Claimant respectfully submits that substantial evidence
exists to support the Mississippi Worker's Compensation
Commission's finding that Claimant reached maximum medical
improvement on June 1, 1991, and the Commission's Order should
be affirmed.
2. Substantial evidence exists to support the Mississippi
Worker's Compensation Commission's finding that Claimant
sustained a permanent partial disability and loss of wage
earning capacity as a result of her work-related injury and the
Commission's Order should be affirmed.
It is settled law that the substantial evidence rule is the
basis for the Court's review of Workman's Compensation
Commission rulings. The test, under the mandatory substantial
evidence rule, is not whether the claim is supported by
evidence; the test is whether or not the finding of the trier of
facts is supported by substantial evidence. Dunn, Mississippi
Workmen's Compensation, 3d Ed., 289 pp.376-379 (1982); Freeman
v. Mississippi Power and Light Co.,92 So.2d 658, (Miss. 1957);
Babcock & Wilcox Co. v. McClain, 149 So.2d 523, 524) (Miss.
1963); Knox Glass Inc. V. Evans, 197 So.2d 784, 787 (Miss.
1967). The Court is not justified in reversing the Commission
merely because there is substantial evidence on each side of the
issue. United Funeral Homes. Inc. v. Culliver, 128 So.2d 579,
581 (Miss. 1961); Miss-Lou Equipment Co. v McGrew, 153 So.2d
801, 803 (Miss. 1963). The Court may not dictate to the
Commission as to which witness to believe and which witness to
disbelieve. Dewberry v. Carter, 218 So.2d 27, 30 (Miss. 1969);
Odom's Dispensing Opticians v. Smith, 259 So.2d 486, 487 (Miss.
1972). It is not the province of the appellate courts to pass on
the weight of the evidence nor is it the province of the
appellate courts to determine where the preponderance lies.
Universal Manufacturing Company v. Barlow, 260 So.2d 827, 831
(Miss. 1972). The "preponderance" test is for the Commission
and is not the test for appeal. The substantial evidence rule
must be applied. Goasa & Son v. Goasa, 208 So.2d 575, 689 (Miss.
1968). In Ed Bush Sandwich Shop v. Strauss, 138 So.2d 741, 742
(Miss. 1962), the Supreme Court stated that the test is as to
whether or not the finding of the Commission in allowing for a
percentage of disability is supported by substantial evidence
(more than a scintilla).The record, including the live testimony of the Claimant,
**, and the depositions of Dr. ** and Dr. ** clearly provides
substantial evidence to support the findings of the Commission.
The Order of the Commission should be affirmed.
In Dixie Pine Products Co. v. Dependents of Bryant, 89
So.2d 589, 591 (Miss. 1952) the Supreme Court stated as follows:
It has been repeatedly held that if the employment
aggravates or accelerates a pre-existing disease or infirmity,
or combines with the disease or infirmity to produce the death
or disability, then such death or disability is compensable.
Vol.1, Larson's Workmen's Compensation Law, Section 12.20,
p.170; Ingalls Shipbuilding Corporation v. Byrd, 215 Miss. 234,
60 So.2d 645; Cowan v. Pearl River Tung Co., 218 Miss. 472, 67
So.2d 356;
Federated Mutual Implement & Hardware Insurance Company v.
Spencer, 219 Miss. 68, 67 So.2d 878; Tate v. Dr. Pepper Bottling
Company, 220 Miss. 311, 70 So.2d 602; W. G. Avery Body Company
v. Hall, Miss., 79 So.2d 453; Miss. Federated Cooperatives v.
Jefferson, Miss., 79 So.2d 723.
The record clearly substantiates that ** had several
pre-existing conditions. The Claimant candidly disclosed her
pre-existing heart problem (cardiovascular disease) and fluid
accumulation (chronic obstructive lung disease) prior to her
employment with **. (R.8,9). Although it is apparent that the
Claimant had no knowledge of her myeloma, in his deposition, Dr.
** verified this medical history and also stated that, ". . . in
the natural history of the myeloma it probably was present in
July." (** Deposition, p.3). He subsequently agreed that it was
more likely than not that she had a pre-existing cancerous
condition that existed prior to July 10, 1990. (** Deposition, p.4).These pre-existing conditions did not interfere with the
Claimant's ability to work prior to the July 10, 1990,
industrial accident. (** deposition, p.4-5). **'s testimony
clearly establishes that no limitations were placed upon her
physical activities by either her doctors or by her employers,
(R. 17), that she had no lost time from the job due to these
pre-existing conditions, (R. 18), and that she was able to fully
perform her normal duties until the time of the accident. (R.
18). In fact, she was an exemplary employee who had just been
named Nurse of the Month. (R. 18).
The employer and carrier admit that the Claimant sustained
an injury arising out of her employment whereby she fractured
some ribs in an industrial accident on July 10, 1990, and
further admit that she is presently totally occupationally
disabled. (R.3).
The rule in this State is that when a pre-existing disease
or infirmity of an employee is aggravated, lighted up, or
accelerated by a work-connected injury, or if the injury
combines with the disease or infirmity to produce disability,
the resulting disability is compensable. Bolton v. Catalytic
Construction Company, 309 So.2d 167 (Miss. 1975), quoting
Rathbone. Hair & Ridgeway Box Co. v. Green, 115 So.2d 674 (Miss. 1959).
There is substantial evidence in the record to warrant this
Court's affirmation of the Commission's finding that **'s
pre-existing conditions contributed seventy-five percent (75%)
to her permanent disability and that her industrial accident
contributed twenty-five percent (25%). The medical testimony
clearly provides substantial evidence that the trauma suffered
by ** at the time she was slammed into a steel door thereby
fracturing four (4) ribs, and the medically prescribed bed rest
thereafter acted to light up, precipitate, accelerate or combine
with a pre-existing condition which resulted in a compensable disability.
In his deposition, Dr. ** stated that in his medical
opinion that the traumatic incident "highlighted the disease."
(** Deposition at 5). In his deposition, Dr. **'s testimony
clearly establishes that no limitations were placed upon her
physical activities by either her doctors or by her employers,
(R. 17), that she had no lost time from the job due to these
pre-existing conditions, (R. 18), and that she was able to fully
perform her normal duties until the time of the accident.
(R.18). In fact, she was an exemplary employee who had just been
named Nurse of the Month. (R.18).
The employer and carrier admit that the Claimant sustained
an injury arising out of her employment whereby she fractured
some ribs in an industrial accident on July 10, 1990, and
further admit that she is presently totally occupationally
disabled. (R.3).
The rule in this State is that when a pre-existing disease
or infirmity of an employee is aggravated, lighted up, or
accelerated by a work-connected injury, or if the injury
combines with the disease or infirmity to produce disability,
the resulting disability is compensable. Bolton v. Catalytic
Construction Company, 309 So.2d 167 (Miss. 1975), quoting
Rathbone. Hair & Ridgeway Box Co. v. Green, 115 So.2d 674 (Miss. 1959).
There is substantial evidence in the record to warrant this
Court's affirmation of the Commission's finding that **'s
pre-existing conditions contributed seventy-five percent (75%)
to her permanent disability and that her industrial accident
contributed twenty-five percent (25%). The medical testimony
clearly provides substantial evidence that the trauma suffered
by ** at the time she was slammed into a steel door thereby
fracturing four (4) ribs, and the medically prescribed bed rest
thereafter acted to light up, precipitate, accelerate or combine
with a pre-existing condition which resulted in a compensable disability.
In his deposition, Dr. ** stated that in his medical
opinion that the traumatic incident "highlighted the disease."
(** Deposition at 5). In his deposition, Dr.** also testified
as follows:
Q. Can you within a reasonable medical certainty or probability
address that portion of the disability caused by the injury and
the consequences of the injury?
A. That is a difficult question. I have arrived at, if one has
to pick a percentage, of about 20 percent. She had significant
cardiac and pulmonary disease that was a large portion of her
disability; a portion of the injury would have been there. But
the fact that she had been active and it was - - having been - -
sustained an injury which made her bedridden, which made her
prone to other things, I felt like that precipitated problems
which contributed to her disability, at least partially. (**
Deposition, p.8)
Q. Let me stop you right there, Doctor. You don't relate that
to the trauma to the ribs at all, do you, that hospitalization
(referring to claimant's admission to CCU due to chronic
obstructive lung disease and heart disease).
A. I -- to me, what related to it is that when she was
debilitated and laying in bed, her -- she developed the problems
related to her lungs that apparently when she was active, she
didn't have as much problem. So it -- one illness seemed to sort
of precipitate the other. (** Deposition, page 13)
A. -- she dated most of her pains from the onset of the
problem in July. (** Deposition, page 14)
Q. The fact that Mrs. Humphrey can't return to any gainful
employment, if she cannot is due to the multiple myeloma, the
COPD and the other health problems she has. Is that true?
A. Right, I think the majority of it is. (emphasis supplied)
(** Deposition, page 18)
Q. Okay, would you agree, then, that any loss of wage earning
she might have, if any, would be related to this multiple
myeloma and to the COPD and not to the fractured ribs?
A. Predominantly, I guess, you know.(** Deposition, page 18).
(emphasis supplied)
Q. In arriving at the 20 percent that you assigned to her, was
that based upon your examination, studies, findings that you
made and treatment you rendered to her?
A. Yes. (**Deposition, page 23)
Q. Yeah, the contribution was that it put her in the hospital
in the first place so these other conditions could be detected.
Isn't that true?
A. Well, yeah; but also once you become debilitated, it's
easier for your other medical problems to cause additional
problems. - - - (** Deposition, page 25)The Claimant's disability must arise out of employment as a
proximate result but it is a sufficient basis for compensation
that work is a contributing cause. It need not be the sole or
primary cause of the resulting disability. Dixie Pine Products
Co. v Dependents of Bryant, 89 So.2d 589, 591. See also
numerous cases listed in Footnote 37 of Dunn, Mississippi
Workmen's Compensation, 3d Ed., Sec. 163 at p. 195 (1982).
The causal connection is viewed from the standpoint of the
injured employee. Although the pre-existing disease or infirmity
may require an apportionment of benefits, this does not
disqualify the claim in its entirety. It has been repeatedly held
that where a workman has some pre-existing infirmity which is
dormant or inactive so that he is able to pursue the normal
requirements of his employment, but because of an injury
resulting from his employment, his dormant infirmity is lighted
up or activated so that the injury and the infirmity combine
together to cause him to become totally or partially disabled,
his disability is compensable. See Universal Manufacturing
Company v. Barlow, 260 So.2d 827, 830 (Miss. 1972). Also see
numerous cases cited by Dunn's Mississippi Workmen's
Compensation, 2d Ed. 94, p.124 (967).
The Claimant is entitled to disability benefits and medical
treatment until such time as she reaches maximum medical
recovery. 260 So.2d at 831. The Supreme Court in New Orleans
Furniture Manufacturing Co. v. Martin, 190 So.2d 863, 864
(Miss. 1966) held that the allowance of medical expenses for the
treatment of a medical condition is proper if the treatment of
that medical condition is required in the process of recovery
from the Claimant's injury. The evidence in the record
substantially supported the Commission's finding that the
treatment of the underlying condition of myeloma was necessary
to treat the fractured ribs, (** Deposition, p.22). Dr. **'s
testimony also substantiated tile Commission's finding. On pages
6-7 of his deposition, Dr. ** testified as follows:
Q. Okay. In the course of treatment that you administered up
to May of 1991, was it necessary for you to treat the underlying
condition, the myeloma, in order to treat the results produced
by the July 1990 trauma?
A. Yes. I believe that the ribs would not have healed as well
without the myeloma being brought under control because that
contributed to some of the rib damage.The evidence substantially supported the Commission's
finding that the chronic obstructive lung disease was
precipitated by the trauma and by the subsequent enforced bed
rest, and that treatment of the chronic obstructive lung disease
was required for the process of recovery. (** Deposition, p.13).
** on July 10, 1990, was gainfully employed. She was
experiencing no occupational disability on that date as the
result of any pre-existing condition, nor had she prior thereto.
The argument that there is no testimony in the record to
substantiate the fact that the Claimant's loss of wage earning
capacity is attributable to the rib fractures does not alter the
undisputed fact that, functionally, Claimant performed her job
effectively and with no discomfort prior to her injury on July
10, 1990. She earned wages and engaged in the strenuous
exertions required by her nursing job, all without any
discomfort or apparent disability. She was fully able to perform
her normal duties until the time of the accident and was
disabled to do sothereafter.
The Supreme Court in Dixie Contractors. Inc. v Ashmore, 349
So.2d 532, 534 (Miss.1977) dictates that the whole of the
doctor's testimony be examined to determine the real substance
of his statements concerning causal connection. The totality of
Dr. **'s testimony indicates that he intended to convey that
there was a causal connection between the trauma resulting from
**'s industrial accident and her pre-existing diseases which
contributed at least twenty percent (20%) to her permanent
partial disability.
Judge ** included in his opinion a specific Findings of
Facts and Conclusion of Law. His discussion of the issues on
page 30 of the record clearly shows that he applied the proper
legal test.
The function of the Court is to determine whether there is
substantial credible evidence which would support the factual
determination made by the Commission. If there should be
substantial credible evidence to support the finding, the Court
is without authority to disturb that which the Commission has
found, even through that evidence would not be sufficient to
convince the Court were they the factfinders. Marshall Durbin.
Inc. v. Hall, 490 So.2d 877 (Miss. 1986), quoting Georgia
Pacific Corporation v. Veal, 484 So.2d 1025, 1027 (Miss. 1986);
Olen Burrge Trucking Co. v. Chandler, 475 So.2d 437, 439 (Miss.
1985); South Central Bell Telephone Company v. Aden, 474 So.2d
584, 589-90 (Miss. 1985); Staple Cotton Services Association v.
Russell, 399 So.2d 224, 228-29 (Miss. 1981); King & Heath
Construction Co. v. Hester, 360 So.2d 692, 694 (Miss. 1978).The Claimant respectfully submits that substantial evidence
exists to support the Mississippi Worker's Compensation
Commission's finding that Claimant sustained a permanent
partial disability and loss of wage earning capacity as a result
of her work-related injury and the Commission's Order should be affirmed. CONCLUSION
The Claimant respectfully submits that substantial evidence
exists to support the Mississippi Worker's Compensation
Commission's finding that Claimant sustained a permanent partial
disability and loss of wage earning capacity as a result of her
work-related injury and to support the finding that Claimant
reached maximum medical improvement on June 1, 1991, and the
Commission's Order should be affirmed.
**, Claimant, respectfully requests that she be awarded the
following relief:
1. Commission Amended Order on February 26, 1993,
affirming the Amended Order of the Administrative Judge dated
July 28, 1992.
2. An award unto Claimant, **, of all costs and attorneys
fees which she incurred as a result of this appeal.
RESPECTFULLY SUBMITTED, this the ___ day _____
** BY:
CERTIFICATE OF SERVICEI, the undersigned attorney, do hereby certify that I have
this day caused to be mailed, United States Mail, postage
pre-paid, a true and correct copy of the above and foregoing
Brief of Appellee/Claimant to:
This the _____ of May, 20__.
