Opinion
No. 41928.
September 25, 1961.
1. Workmen's compensation — procedure before Commission.
After compensation claimant rested, reserving right of rebuttal and defendants introduced medical testimony, claimant was entitled to adduce medical testimony in rebuttal, and refusal to consider such was reversible error. Secs. 6998-01 et seq., 6998-28, Code 1942.
Headnote as approved by McGehee, C.J.
APPEAL from the Circuit Court of George County; LESLIE B. GRANT, J.
W.S. Murphy, Lucedale, for appellant.
I. Where the greater weight or preponderance of credible evidence and reasonable probabilities are in favor of claimant, will an award disallowing compensation and dismissing claimant's cause based on possibilities, conjecture and assumed facts not supported by substantial evidence, or the record, be permitted to stand? Lucedale Veneer Co. v. Rogers, 211 Miss. 613, 53 So.2d 69; Reyer v. Pearl River Tung Co., 219 Miss. 211, 68 So.2d 442; T.H. Mastin Co. v. Mangum, 215 Miss. 454, 61 So.2d 298; Webster Construction Co. v. Bates, 227 Miss. 207, 85 So.2d 795; Williams v. Vicksburg Wholesale Poultry Co., 233 Miss. 384, 102 So.2d 378; 100 C.J.S., Sec. 648(b) pp. 959, 960.
II. Does the testimony of any single witness or all of the witnesses who testified in this cause, if believed in whole or in part, constitute sufficient evidence to support an award denying claimant additional compensation and medical benefits as provided by the Mississippi Workmen's Compensation Act, Columbus Greenville R. Co. v. Coleman, 172 Miss. 514, 160 So. 277; J. B. Manufacturing Co. v. Cochran, 216 Miss. 336, 62 So.2d 378; Masonite Corp. v. Hill, 170 Miss. 158, 154 So. 295; Reyer v. Pearl River Tung Co., supra; 1 Larson's Workmen's Compensation Law, Sec. 13.00 p. 183; 6 Schneider's Workmen's Compensation Text, Sec. 1543(f) p. 53.
III. The attorney-referee erred in his opinion of April 6, 1960, in sustaining defendant's motion denying claimant right to have rebuttal testimony of Dr. Frederick H. DeVane considered in evidence in this cause. American H. T. Co. v. Lynn, 167 Miss. 93, 148 So. 351; Brown v. State, 173 Miss. 542, 158 So. 339; Cotton v. Cotton, 203 Miss. 316, 33 So.2d 61; Curry v. Lucas, 181 Miss. 720, 180 So. 397; Ingalls Shipbuilding Corp. v. King, 229 Miss. 871, 92 So.2d 196; Lee v. State, 201 Miss. 423, 29 So.2d 211; Messingill v. State, 216 Miss. 278, 62 So.2d 330; Reddick v. State, 72 Miss. 1008, 16 So. 490; Roney v. State, 167 Miss. 827, 150 So. 774; Wigley v. Wigley (Miss.), 58 So.2d 59; Winterton v. Illinois Cent. R. Co., 73 Miss. 831, 20 So. 157; Sec. 6998-28, Code 1942; 100 C.J.S., Sec. 595 p. 843. White, Buntin Martin, Gulfport, for appellees.
I. No error was committed in the action of the lower tribunals in failing to consider the testimony of Dr. LeVane. Curry v. Lucas, 181 Miss. 720, 180 So. 397; Druey v. Ingalls Shipbuilding Corp., 237 Miss. 277, 114 So.2d 772; Ingalls Shipbuilding Corp. v. King, 229 Miss. 871, 92 So.2d 196.
II. The order of the Commission is not against the overwhelming weight of the credible evidence but, in fact, is supported by substantial testimony. Cudahy Packing Co. v. Ward, 241 Miss. 595, 130 So.2d 858; Freeman v. Mississippi P. L. Co., 230 Miss. 396, 92 So.2d 658; Malone v. Ingalls Shipbuilding Corp., 240 Miss. 319, 127 So.2d 403; Rathbone, Hair Ridgeway Box Co. v. Green, 237 Miss. 588, 115 So.2d 674; Tanner v. American Hardware Corp., 238 Miss. 612, 119 So.2d 380.
This is a case under the Mississippi Workmen's Compensation Law of 1948, as amended. The claimant was allowed temporary total disability benefits from January 18, 1959, until March 16, 1959. The case was heard by the attorney-referee on conflicting medical testimony as to whether or not the claimant was entitled to permanent total disability benefits. When the claimant first concluded his testimony, the record shows: "By Mr. Murphy: `We rest, reserving the right of rebuttal.'" The testimony was given by several medical witnesses, including Dr. Frederick H. De Vane of Mobile, Alabama, who was introduced as a witness and testified on behalf of the claimant in rebuttal.
The attorney-referee in his opinion stated, among other things, that: "The record clearly shows that the claimant through his Attorney of record rested his case at the close of the hearing in Lucedale on November 9, 1959. The Defendants through their attorney of record objected to said motion to reopen, (for the introduction of the testimony of Dr. De Vane) and it was the opinion of the Attorney Referee that Defendants' motion should be, and the same was sustained. (Meaning the motion that the request to reopen the case be rejected.) Although, the said Dr. Frederick H. De Vane was permitted to take the stand and testify under rule 6 of the Mississippi Workmen's Compensation Act, his testimony being of record, the same was not and is not being considered as testimony in this case by the Attorney Referee."
Section 6998-28, Miss. Code 1942, Recompiled, is designed to relax the former rules of procedure in these cases, and also provides that the hearing officer "may make such investigation or inquiry or conduct such hearing in such manner as best to ascertain the rights of the parties."
(Hn 1) We are of the opinion that the testimony of Dr. De Vane should have been considered by the attorney-referee and the Commission in rebuttal of the testimony of Dr. Earl introduced by defendants, and we have concluded that the cause should therefore be reversed and remanded in order that such part of the testimony of this witness in rebuttal may be considered as part of the testimony in the case.
Reversed and remanded.
Arrington, Ethridge, McElroy and Rodgers, JJ., concur.