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C. L. HARRIS v. CHICAGO MILL & LUMBER COMPANY

DECEMBER 07, 1983

C. L. HARRIS
v.
CHICAGO MILL & LUMBER COMPANY



BEFORE BROOM, ROY NOBLE LEE, and DAN LEE

ROY NOBLE LEE, JUSTICE, FOR THE COURT:

The Mississippi Workmen's Compensation Commission entered an order awarding temporary total and minimum permanent partial benefits to claimant, C. L. Harris. *fn1 The order reversed the administrative judge, who denied compensation for permanent partial disability. The employer, Chicago Mill & Lumber Company, appealed to the Circuit Court of Washington County, Honorable B. B. Wilkes, presiding, which reversed the order of the Commission as to the allowance of permanent partial disability. The claimant has appealed to this Court.

The only question presented on this appeal is whether or not there is sufficient medical evidence to establish a permanent disability under the Mississippi Workmen's Compensation Act.

 The claimant was twenty-four (24) years of age and worked as an edger operator for Chicago Mill & Lumber Company. In March of 1979, he and a co-worker were carrying a saw blade, which had been folded and strapped to facilitate handling, and were moving the blade upstairs. The strap broke, shifting the weight to Harris and injuring his back. Harris complained to his foreman and was assigned to another job in the mill, which involved lighter work. On May 11, 1979, the foreman ordered claimant to either return to his former duties or take a reduction in pay for the lighter work. Claimant refused both, and his employment was terminated.

 The employer began paying workmen's compensation as of May 11, 1979, together with medical expenses, and paid the compensation until August 20, 1979, when claimant was finally released from medical treatment to work without restrictions. In September, 1979, claimant began work with another company and, since that time, has worked a minimum of 40 hours a week at a wage of $3.45 an hour. His last medical visit was in December, 1979, and he has seen no doctor since that time.

 Claimant testified that he is unable to do heavy lifting without pain and that he is assisted in any lifting required of him in his present work. Co-workers testified that they helped Harris with heavy work at the plant.

 The employer concedes that claimant was injured on the job in March of 1979, sustaining a sprained back; and that he was entitled to temporary disability benefits from May 11, 1979, until August 20, 1979, for which he has been paid.

 Chapter 276, Laws of 1960, amended Section 6998-02, Mississippi Code of 1942, now Mississippi Code Annotated 71-3-3 (1972). The preamble to Chapter 276, Laws of 1960, states:

 AN ACT to amend Section 6998, Mississippi Code of 1942, so as to clarify the definition of "disability" ; and for related purposes.

 The amended section follows:

 (i) "Disability" means incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or other employment, which incapacity and the extent thereof must be supported by medical findings. (Emphasis added) Miss. Code Ann. 71-3-3 (Supp. 1983).

 The burden of proof rests upon the claimant to establish by competent evidence all the elements of his claim together with the extent and degree of his claimed disability. American Potash & Chemical Corporation, 228 So.2d 867 (Miss. 1969); Narkeeta, Inc. v. McCoy, 247 Miss. 65, 153 So.2d 798 (1963).

 Claimant cites Malone & Hyde of Tupelo, Inc. v. Kent, 250 Miss. 879, 168 So.2d 526 (1964), which is distinguished from the case sub judice (involving a sprained

 back). In Malone, a ruptured disc was diagnosed and whether or not there were medical findings to support the disability as permanent in any degree, such as is the issue in the present case, was not involved.

 Here, Dr. J. B. Yeldell, a family practitioner, testified for claimant. He first saw and examined claimant on June 12, 1979, and last saw him on December 15, 1979. He diagnosed claimant's complaint as myositis, an inflammation of the back muscles. On October 23, 1979, he examined claimant for soreness in the back and changed his diagnosis to chronic sprained back muscles.

 Dr. Yeldell did not express an opinion that claimant had a permanent injury to his back as a result of the sprain in March, 1979. His testimony thereasto follows:

 Q. Do you have an opinion, based upon reasonable medical certainty, as to whether or not this condition which ...


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