Opinion
No. 38969.
November 23, 1953.
1. Workmen's Compensation — evidence — contributing cause of disability.
Evidence was sufficient to show that back injury sustained by employee in course of employment lighted up and accelerated pre-existing dormant arthritic condition and was contributing cause of disability.
2. Workmen's Compensation — injury — in course of employment — accelerating — pre-existing dormant arthritic condition — compensable.
Where back injury in course of employment lighted up and accelerated pre-existing dormant arthritic condition and was contributing cause of disability, such disability was compensable.
3. Appeals — Workmen's Compensation — appellate court — considers only record made in trial court.
Appellate courts must consider appeals on records as made before trial courts, hence, motion of Workmen's Compensation insurance carrier to include as part of the record in appeal then pending, a report of a doctor who had performed an operation on injured employee after the hearing before the Commission, was properly overruled.
4. Workmen's Compensation — disability payments — not shown by record — remanded to Commission to determine.
Where it was timely suggested that injured employee had died after entry of order of Commission directing reinstatement of disability payments and that cause had been revived in name of his Administratrix, but record did not and could not show continuance of disability after date of such order until death, Supreme Court would remand cause so that Commission might determine such question and act accordingly.
Headnotes as approved by Lee, J.
APPEAL from the circuit court of Prentiss County; RAYMOND T. JARVIS, J.
Ely B. Mitchell, Corinth, for appellants.
I. The burden in this case was upon Joseph L. Spencer to establish every essential element or requisite of his claim by clear and convincing evidence. American Rolling Mill Co. v. Stevens, 290 Ky. 16, 160 S.W.2d 355, 145 A.L.R. 1256; Boyer Chemical Co. v. Industrial Comm., 366 Ill. 635, 10 N.E.2d 389, 113 A.L.R. 264; Callihan v. Montgomery, 272 Pa. 56, 115 A. 889; Chaudier v. Stearns Culver Lumber Co., 296 Mich. 433, 173 N.W. 198, 5 A.L.R. 1673; Clark v. Lehigh Valley Coal Co., 264 Pa. 529, 107 A. 858; Corski's Case, 227 Mass. 456, 116 N.E. 811; John H. Green's Case, 73 A.L.R. 476; Hamilton v. Heubner, 146 Neb. 320, 19 N.W.2d 552, 163 A.L.R. 1; Kraft v. West Hotel Co., 31 A.L.R. 1245; Lane v. Horn H. Baking Co., 261 Pa. 329, 13 A.L.R. 963, 17 N.C.C.A. 998; Laraio v. Penn. R. Co., 277 Pa. 383, 121 A. 325; Liquid Carbonic Co. v. Industrial Comm., 352 Ill. 405, 186 N.E. 140, 87 A.L.R. 770; McCarthy v. Gen. Elect. Co., 60 A.L.R. 1288; Pace v. Appanoose County, 184 Iowa 498, 17 N.C.C.A. 682; Sanderson's Case, 224 Mass. 558, 113 N.E. 355; Sullivan v. Suffolk Peanut Co., 171 Va. 439, 199 S.E. 504, 120 A.L.R. 677; Texas Indemnity Ins. Co. v. McCurry, 41 S.W.2d 215, 78 A.L.R. 760; Von Ette's Case, 223 Mass. 56, 111 N.E. 696, L.R.A. 1916D, 641; Zelanzy v. Seneca Coal Mining Co., 275 Pa. 397, 119 A. 487; 58 Am. Jur., Secs. 434, 436, 438, pp. 856, 857, 859.
II. Award of John A. Craig, Examiner, the holding of the Workmen's Compensation as a whole, and the opinion of Judge Raymond Jarvis are contrary to the facts in the case.
III. The award of John A. Craig, Examiner, the holding of the Workmen's Compensation Commission as a whole, and the opinion of Judge Raymond Jarvis are contrary to the law in the case.
Orma R. Smith, Corinth, for appellee.
I. The burden of proof. T.H. Mastin Co. v. Mangum, 215 Miss. 454, 61 So.2d 298.
II. The award is not contrary to the facts.
(1) Coverage of employment. Sec. 6998-40, Code 1942.
(2) The accident. Hardin's Bakeries v. Ranager, 217 Miss. 463, 64 So.2d 705; Ingalls Shipbuilding Corp. v. Byrd, 215 Miss. 234, 60 So.2d 645; Lucedale Veneer Co. v. Rogers, 211 Miss. 613, 53 So.2d 69; Sones v. Southern Lbr. Co., 215 Miss. 148, 60 So.2d 582; Sec. 6998-28, Code 1942; Vol. 1, Larson's Workmen's Comp. Law, Sec. 38.00 p. 516.
(3) The injury. Hardin's Bakeries v. Ranager, supra; Ingalls Shipbuilding Corp. v. Byrd, supra; LaDew v. LaBorde, 216 Miss. 598, 63 So.2d 56, 63 So.2d 825; Vol. 1, Larson's Workmen's Comp. Law, Sec. 38.30 p. 526; Vol. 42A, Words and Phrases (Per. Ed.) pp. 3, 4.
III. The award was not contrary to law. Graham v. Graham, 214 Miss. 99, 58 So.2d 85; Secs. 6998-26, 6998-27, Code 1942.
IV. Matters not of record are not to be considered.
V. The Commission's order that payments be reinstated. Sec. 6998-19(c), Code 1942.
VI. Judgment should be rendered here if order of lower court is affirmed. LaDew v. LaBorde, supra; M.T. Reed Const. Co. v. Martin, 215 Miss. 472, 63 So.2d 528.
VII. Appellants' assignments of error 4, 5, and 6. Pathfinder Coach Division v. Cottrell, 216 Miss. 358, 62 So.2d 383; Sec. 7 (f) Chap. 412, Laws 1950; Vol. 1, Larson's Workmen's Comp. Law, Sec. 5.20 p. 36.
The evidence in this case fully warranted the finding by the attorney referee, which was affirmed by both the Commission and the circuit court, that the claimant, Joseph L. Spencer, sustained an injury to his back at a time when he was engaged in performing the duties of his employment with Prentiss Truck and Tractor Company, namely, in attempting to crank a tractor.
(Hn 1) The medical evidence was sufficient to show that the injury lighted up and accelerated a pre-existing dormant arthritic condition, and was a contributing cause of the disability. (Hn 2) Under such circumstances, the disability is compensable. Ingalls Shipbuilding Corp. v. Byrd, 215 Miss. 234, 60 So.2d 645; Cowart v. Pearl River Tung Co., (Miss.) 67 So.2d 356; Vol. 1 Larson's Workmen's Compensation Law, Sec. 12.20, page 170.
(Hn 3) Appellate courts must consider appeals on the records as made before the trial courts. Graham v. Graham, 214 Miss. 99, 58 So.2d 85. Hence, the motion of the appellants to include, as a part of the record in the appeal then pending before the circuit court, a report of the doctor, who performed an operation on the claimant after the hearing before the Commission, was properly overruled. Vol. 5-A, Section 6998-26, Code 1942 Recompiled. The circuit court, in that instance, was an appellate court. The insurance company, according to the finding of the hearing officer, had paid weekly benefits of $25.00 through September 12, 1951, and then discontinued such payments. The order of December 3, 1951, directed the reinstatement of such payments and their continuance in accordance with the provisions of the Workmen's Compensation Act. That action is affirmed, and damages in the amount of 5% and lawful interest on such accrued payments between those dates are allowed here.
(Hn 4) It was timely suggested that the appellee died on April 12, 1953, and the cause was revived in the name of Mrs. Mattie Spencer, Administratrix. Since the record does not, and could not, show the continuance of disability after December 3, 1951, until death, the cause is remanded so that the Commission may determine that question and act accordingly.
Affirmed and remanded.
Roberds, P.J., and Hall, Kyle and Holmes, JJ., concur.