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EMERSON ELECTRIC CO. v. BESSIE MAE McLARTY

APRIL 23, 1986

EMERSON ELECTRIC CO.
v.
BESSIE MAE McLARTY



BEFORE PATTERSON, DAN LEE AND ROBERTSON

DAN LEE, JUSTICE, FOR THE COURT:

Bessie Mae McLarty was awarded apportioned Workers' Compensation benefits by an administrative judge on January 26, 1982. On petition for review before the full Workers' Compensation Commission, the order of the administrative judge was affirmed. Appeal was made to the Circuit Court of Lafayette County where the circuit court judge affirmed the decision of the full commission.

Appeal is now perfected to this Court and the following assigned as error:

 (1) The lower court erred in failing to recognize and apply the defense of estoppel by fraud or misrepresentation in the procurement of employment, thereby barring (sic) Workmen's Compensation benefits; and,

 (2) The lower court erred in upholding the award of the Mississippi Workmen's Compensation Commission for additional temporary total, medical and permanent partial disability benefits from and after March 1, 1978.

 I.

 In 1969, Bessie Mae McLarty accidentally injured her back while employed by the Sam Shainberg Co. in Memphis, Tennessee. As a result, in 1970, McLarty underwent surgery in Tupelo, Mississippi, during which it was necessary that a disc be removed from her back. On her Workmen's Compensation Claim arising from that accident, McLarty was determined to have sustained a 15 to 20% disability to her body as a whole. McLarty returned to Shainberg's where she worked until 1972, at which time she and her family moved to the vicinity of Batesville and Oxford, Mississippi.

 On October 24, 1972, McLarty sought employment with the appellee, Emerson Electric Company. In response to questions on her employment application form, McLarty indicated that her only serious illness or injury in the ten years preceding had been a complete hysterectomy performed May 18, 1971. Despite the fact that it had occurred only two

 years earlier, McLarty failed to mention her back injury of 1969 and the resultant 1970 disc surgery.

 Emerson hired McLarty and her employment progressed without relevant incident for approximately five years until December 8, 1977. On that date, McLarty sustained an injury to her back while working on an Emerson assembly line. Approximately two weeks later, surgery was performed and another disc removed from McLarty's back. Emerson Electric accepted responsibility for McLarty's injury and paid all medical benefits and temporary total benefits accruing to her from January 8, 1977, through March 1, 1978.

 McLarty received a medical release and returned to work at Emerson on March 1, 1978. She continued to work through April 5, 1978.

 On April 6, 1978, McLarty was involved in an automobile accident, during which she sustained injuries to her shoulder and neck. She was unable to return to work until July 5, 1978.

 Although her back continued to cause her pain, McLarty returned to work for Emerson on July 5, 1978. She continued to work until July 20, 1978, when the pain increased to the point that she was forced to leave the job.

 McLarty filed a motion to controvert on July 21, 1978, seeking temporary and permanent compensation payments. Emerson answered, admitting the injury but contesting permanent benefits. Subsequently, Emerson amended its answer to include the defense of fraud in the procurement of employment.

 The order of the administrative judge was entered on January 26, 1982. Relying on 71-3-7 Miss. Code Ann. (1972), the administrative judge denied Emerson's defense of fraud, stating that it was not one of the two statutory defenses to workers' compensation claims. The administrative judge also held that Emerson Electric had not sustained its burden of showing fraud by clear and convincing evidence. In his order, the administrative judge awarded Bessie Mae McLarty apportioned benefits amounting to 450 weeks of compensation at the rate of $25.00 per week (the minimum) for permanent partial disability benefits.

 The decision of the administrative judge was appealed to the full Workers' Compensation Commission. After hearing testimony and argument, the Commission affirmed the order of the administrative judge on August 17, 1982. On the issue ...


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