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PIGGLY WIGGLY D/B/A DIXIELAND FOODS, ET AL v. ELSIE M. HOUSTON

FEBRUARY 20, 1985

PIGGLY WIGGLY D/B/A DIXIELAND FOODS, ET AL
v.
ELSIE M. HOUSTON



BEFORE ROY NOBLE LEE, DAN LEE AND PRATHER

DAN LEE, JUSTICE, FOR THE COURT:

This is an appeal from the Circuit Court of Jones County wherein the circuit judge affirmed an order of the full Workmen's Compensation Commission which found as a fact that Mrs. Elsie M. Houston suffered 100% industrial disability of her right leg. The order of the full Commission had reversed a finding by the Administrative Law Judge that the claimant only had a 40% disability of her right leg. At issue on this appeal is whether the circuit court was correct in affirming the findings of the full Workmen's Compensation Commission. We conclude that the circuit court was correct.

Mrs. Houston testified that on August 15, 1980, she was employed in the Piggly Wiggly delicatessen. She had been working there since July, 1978. As part of Mrs. Houston's job, she was required to go to the back of the store and load grocery carts full of boxes or cans of food and bring them to the front of the store where the delicatessen was located. These boxes weighed between five to thirty pounds. Mrs. Houston stated that her job required

 her to stand all day. She used her leg to steady herself when lifting heavy boxes. Her job required that she squat, stoop, and get down on her knees.

 On the day of her injury, Mrs. Houston was going to the back of the store to pick up some delicatessen supplies when she slipped on a lettuce leaf in the produce section. Mrs. Houston was taken to the emergency room at Community Hospital where she saw Dr. Turnbull. She was diagnosed as having a fractured patella (kneecap). Surgery was performed later that day.

 Mrs. Houston was required to stay in the hospital for a week. After being released, she saw Dr. Attix for the swelling of her knee, leg and ankle. He advised that she should have her kneecap removed. He then referred her back to Dr. Turnbull. Mrs. Houston stated that since that time she felt her knee had changed for the worse. She complained that her ankle is always swollen and that her leg and knee swell severely.

 Mrs. Houston also complained of pain in her hip when walking. She stated that she had never had this type of pain prior to her injury. She also denied that she had experienced any problem with her ankles, knees or legs prior to the injury. Mrs. Houston complained that her injuries have left her unable to walk, bend or stoop.

 Mrs. Houston never had any training for a "sit down job." For the last twenty years of Mrs. Houston's employment history, she has had jobs involving lifting. After her injury she looked for work at three different department stores and a restaurant but was unable to find a job. She stated that she realized that had she gotten one of those jobs she would have been required to stand and lift but that her need to work overwhelmed the pain. She testified that she did not feel up to a job but that she would have given it a try had she been given the opportunity. This was in spite of her assertion that since the injury, if she tried to lift something she was "just about to hit the floor."

 The parties stipulated that Mrs. Houston's physician, Dr. Turnbull, would testify that she suffered a 20% permanent partial disability of her right leg as a result of an articular fracture of her patella. The parties further stipulated that on September 22, 1981, Mrs. Houston reached maximum medical recovery.

 Based on her testimony and the stipulation of the

 parties, the administrative law judge found that Mrs. Houston had suffered a total of 40% disability. By a vote of two to one, the Workmen's Compensation Commission reversed the administrative law judge and found that Mrs. Houston was suffering a 100% industrial disability of her right leg. The circuit court affirmed the findings of the Workmen's Compensation Commission.

 The standard of review when this Court considers findings of fact of the Workmen's Compensation Commission is that of substantial evidence. In other words, if there is substantial evidence to support the findings of the Workmen's Compensation Commission this Court will not disturb those findings on appeal. Johnson v. Ferguson, 435 So.2d 1191 (Miss. 1983); Goasa & Son v. Goasa, 208 So.2d 575 (Miss. 1968).

 The crux of the dispute in the instant case lies in the difference between the finding of the administrative law judge and that of the Workmen's Compensation Commission. Piggly Wiggly argues that because the parties stipulated that Dr. Turnbull's testimony would be that Mrs. Houston was suffering only a 20% physical disability, the Commission's finding that she was 100% disabled was not supported by substantial evidence. This argument fails to consider the opinions of this Court which have held that the loss of wage earning capacity is to be determined from the evidence as a whole and is not limited strictly to the percentage of physical or medical disability. See Universal Manufacturing Co. v. Barlow, 260 So.2d 827 (Miss. 1972); Futorian Stratford Furniture Co. v. Davis, 185 So.2d 665 (Miss. 1966); M. T. Reed Construction Co. v. Martin, 215 Miss. 472, 61 So.2d 300 (1952). In those cases this Court has continued to recognize a distinction between functional disability and industrial disability. This distinction is at the core of the issues involved in this case. Noted Workmen's Compensation authority Vardaman Dunn had this to say about the distinction between functional and industrial disability:

 The question in these cases is the degree of loss of use of the member for wage earning purposes, and this issue is for determination from the evidence as a whole, including medical estimates related either to the functional or industrial loss and the testimony of the claimant and other lay witnesses as to the effect of the injury upon the employee's ...


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