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LEE EARL PATIE v. RANDLE REED TRUCKING.

APRIL 10, 1985

LEE EARL PATIE
v.
RANDLE REED TRUCKING., ET AL.



Michael H. Steele , Kosciusko, for appellate.

Grace Watts Mitts, Meridian, appellee.

[THIS CASE NOT DESIGNATED FOR PUBLICATION]

Reversed and rendered; Order of Commission Reinstated

 BEFORE PATTERSON, HAWKINS AND PRATHER

 HAWKINS, JUSTICE, FOR THE COURT:

 In this case involving an injury to three toes of Lee Earl Patie's foot (the little one was amputated), the Mississippi Workmen's Compensation Commission, acting

 within the discretionary authority granted it under Miss. Code Ann. 71-3-17(21) and (23) (1972), awarded him forty percent (40%) permanent partial disability for loss of use to the entire foot. Upon appeal to the circuit court of Noxubee County the circuit judge confined the award to that authorized under Miss. Code Ann. 71-3-17(11), and awarded Patie fifty percent (50%) permanent partial disability for loss of use of three toes.

 The only issue on this appeal is whether the commission had the discretionary authority to make its award. This case is controlled by Flake v. Randle Reed Trucking Co., 458 So.2d 223 (Miss. 1984). The Commission did have such discretionary authority and the circuit judge erred in changing the Commission's award.

 Counsel for both the claimant and the employer and carrier became aware of our decision in Flake pending this appeal (the same counsel, in fact, are in both cases). Defense counsel offered to settle and pay this claim based upon our decision in Flake, but claimant's counsel insisted upon taking up this Court's time. *fn1 Defense counsel likewise offered to waive oral argument, which claimant's counsel also declined to waive. The claimant's counsel has shown scant concern for the backlog of cases, the long line of litigants waiting for their cases to be decided, and this is Court's meager reserve of time.

 The judgment of the circuit court is reversed and rendered, the order of the Commission reinstated, and this case is remanded to the Commission for further proceedings consistent herewith. The Commission is vested with full authority, however, to determine the date the defense offered to settle, and whether or not interest on this claim will be charged against the employer and carrier beyond that date.

 REVERSED AND RENDERED; ORDER OF COMMISSION REINSTATED.

 PATTERSON, C.J., WALKER, P.J., ROY NOBLE LEE, P.J., DAN LEE, PRATHER, ROBERTSON, SULLIVAN AND ANDERSON, JJ., CONCUR.   & ...

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