Opinion
No. 40468.
April 15, 1957.
1. Workmen's compensation — Commission not attorney-referee is trier of facts.
In workmen's compensation proceeding, Commission is trier of fact and not attorney-referee.
2. Workmen's compensation — injury to coccyx and fractured rib — compensable — 20 per cent permanent partial disability — supported by evidence.
In action by employee against employer for injuries arising out of and in course of her employment by reason of a fall in which she sustained injury to her coccyx and fractured a rib, evidence supported award by Commission of 20 per centum permanent partial disability. Sec. 6998-09(c) (21), Code 1942.
3. Workmen's compensation — claim for compensable injury filed within two year period — not barred by limitations.
Right of employee to compensation for injuries sustained during course of employment was not barred when employee filed claim for compensation within two years from date of injury. Sec. 6998-18, Code 1942.
Headnotes as approved by Ethridge, J.
APPEAL from the Circuit Court of Jackson County; LESLIE B. GRANT, Judge.
Carl A. McGehee, Pascagoula for appellant.
I. The Court erred in failing to reverse the order of the Workmen's Compensation Commission for the reason that the order of the Workmen's Compensation Commission was erroneous in the following particulars.
A. The Commission erred in reversing the order of the Attorney-Referee, dated February 24, 1956, on the ground that the order of the Attorney-Referee was based on substantial evidence. Railway Express Co. v. Hollingsworth, 221 Miss. 688, 72 So.2d 754; Malley v. Over the Top, Inc., 229 Miss. 347, 90 So.2d 678; Ingalls Shipbuilding Corp. v. Dickerson, 230 Miss. 110, 90 So.2d 354; Cowart v. Pearl River Tung Co., 218 Miss. 472, 67 So.2d 356; Guess v. Southeastern Utilities Service Co., 226 Miss. 637, 85 So.2d 173; Pearson v. Dixie Elec. Power Assn., 219 Miss. 884, 70 So.2d 6; Brookhaven Steam Laundry v. Watts, 214 Miss. 569, 55 So.2d 381, 59 So.2d 294; Chap. 354 Secs. 18, 37, Laws 1948; Black's Law Dictionary (3rd ed.), p. 1555, word "review."
B. The Commission erred in reversing the said order of the Attorney-Referee on the grounds that no notice or claim or demand for compensation or medical treatment was made until some eighteen months and two years after the alleged injury of the claimant, and that the award of compensation was based on an unreasonable probability. Persons v. Stokes, 222 Miss. 479, 76 So.2d 517; J. B. Mfg. Co. v. Cochran, 216 Miss. 336, 62 So.2d 378; T.H. Mastin Co. v. Mangum, 215 Miss. 454, 61 So.2d 298; Lucedale Veneer Co. v. Rogers, 211 Miss. 613, 53 So.2d 69; Chap. 354 Secs. 8(f), 12, Laws 1948.
C. The Commission erred in reversing the said order of the Attorney-Referee on the grounds that it appears from the fact of the order itself that the Commission reversed the findings made by the person who heard the witnesses and observed their demeanor on the sole ground that there was evidence in the record in favor of the claimant, and such an order by the Commission is arbitrary, capricious, unwarranted, and prejudicial to the defendants.
Mitchell Simmerman, Pascagoula, for appellee.
I. This Court is without authority to disturb or set aside either the order of the Commission or the judgment of the Circuit Court below, since the order of the Commission was based upon uncontradicted and undisputed evidence. Ingalls Shipbuilding Corp. v. Dickerson, 230 Miss. 110, 92 So.2d 354; Railway Express Agency, Inc. v. Hollingsworth, 221 Miss. 688, 75 So.2d 639; Malley v. Over the Top, 229 Miss. 347, 90 So.2d 678.
On September 28, 1953, appellee Ethel Lee Holbrooks was working for appellant, Pascagoula Crab Company, which is the firm name for the sole owner J.P. Lowe. She was engaged in processing crabs, and part of her duties required her to take containers of garbage out of the plant. While doing so, she slipped and fell violently on the floor, sustaining an injury to her coccyx, designated as traumatic coccyodynia, and a fractured rib. She notified the floor supervisor that she had been injured.
Appellant-employer, although employing more than eight people, did not carry workmen's compensation insurance. Code 1942, Sections 6998-03, 6998-05, 6998-42. No disability benefits were paid appellee, who was ignorant of the fact that she was entitled to them. Although continuing to suffer considerable pain and discomfort, appellee continued working until January 1954. On March 21, 1955, Dr. Reuben P. Morris examined her and found a fractured rib, and in October 1955 he ascertained the damage to the coccyx. On October 19, 1955, Dr. William C. Hannon, a specialist in orthopedics, of Mobile, examined appellee and confirmed the two injuries. He estimated her permanent partial disability at twenty percent. Both of the doctors were of the opinion that the injuries were of traumatic origin. Appellee testified that she received them from the fall at appellant's plant, although at the time she did not realize that they were of this degree. There is no dispute in the record that appellee received these injuries from the fall at appellant's plant.
The injuries have continued to be most painful, and at the time of the hearing in October 1955, appellee was not able to perform manual labor, for which she was qualified, but only worked some around the house. Before the fall she was in good health. On September 21, 1955, appellee filed her first claim for compensation benefits. This was about seven days less than two years after her injury. The attorney-referee held that there was insufficient evidence upon which to base an award. The Workmen's Compensation Commission reversed this decision, and awarded appellee permanent partial disability benefits based upon a twenty percent total disability, under the "other cases" provisions of Code Section 6998-09 (c) (21). The circuit court affirmed the Commission's order.
(Hn 1) Appellant again raises the old question, which has long been settled adversely to it, of whether the attorney-referee or the Commission is the trier of facts. Appellant says that the attorney-referee's order should be affirmed. However, it is well-established that the Commission is the trier of facts in workmen's compensation cases, and not the attorney-referee. Ingalls Shipbuilding Corporation v. Dickerson, 92 So.2d 354 (Miss. 1957).
(Hn 2) The award of compensation by the Commission is amply supported by the evidence. In fact, it is uncontradicted that appellee's injuries arose out of and in the course of her employment.
(Hn 3) Code Section 6998-18 provides: "Regardless of whether notice was received, if no payment of compensation (other than medical treatment or burial expense) is made, and no application for benefits filed with the commission within two years from the date of the injury or death, the right to compensation therefor shall be barred." Appellee was injured on September 28, 1953. She filed her claim for compensation on September 21, 1955, less than the two-year limitation period in this statute.
Affirmed.
Roberds, P.J., and Hall, Holmes and Gillespie, JJ., concur.