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STUART'S INC. AND INSURANCE COMPANY OF NORTH AMERICA v. NELLIE W. BROWN

DECEMBER 07, 1988

STUART'S INC. AND INSURANCE COMPANY OF NORTH AMERICA
v.
NELLIE W. BROWN



BEFORE ROY NOBLE LEE, C.J.; ROBERTSON AND ANDERSON, JJ.

ROBERTSON, JUSTICE, FOR THE COURT:

The issue of consequence in this workers' compensation appeal is apportionment. No one questions that Nellie W. Brown suffered a work-connected injury, nor that she is permanently, totally disabled. Employer and carrier argue that Brown's disability in substantial part is related to preexisting back trouble and a 1982 car wreck, notwithstanding the Mississippi Workers' Compensation Commission's finding of ultimate fact that Brown's total, permanent disability was

" solely as a result of the job-related injury of September 24, 1981. "

 But this is getting ahead of the story. On September 24, 1981, Brown was employed by Stuart's, Inc., a retail clothing store located in the Tupelo Mall in Tupelo, Mississippi. On that date, and while on the job, Brown attempted to prevent a shoplifting and was beaten so severely that she was rendered unconscious. Brown suffered knee and head injuries, a sprained back, and, most significantly, developed a psychiatric injury diagnosed as severe depressive neurosis. She has not worked since that date.

 Today's is not Nellie Brown's first workers' compensation claim. In 1976 and again in 1977, Brown injured her lower back while lifting boxes of inventory. She underwent two surgical procedures known as laminectomies, and on each occasion she was found temporarily, totally disabled. After both surgeries, however, Brown returned to work. The point for the moment is that from March of 1977 leading up to September 24, 1981, Brown was working full time for Stuart's, Inc.

 It is certainly true that a preexisting disability requires reduction of compensation otherwise payable, a reduction by the amount which the preexisting disability contributes to the whole disability found after the injury at issue. See Miss. Code Ann. 71-3-7 (1972). See Reichhold Chemical Inc. v. Sprankle, 503 So.2d 799, 803 (Miss.1987); Road Maintenance Supply Inc. v. Dependents of Maxwell, 493 So.2d 318, 323 (Miss.1986); Delta Drilling Co. v. Cannette, 489 So.2d 1378, 1381 (Miss.1986). Citing this rule, employer and carrier make much of the fact that there is medical testimony that Brown experienced a fifteen percent permanent, partial disability as a result of her prior back problems and surgery. But this is of no moment, for there is not one word of evidence in the record that in the months prior to September 24, 1981, Brown was experiencing any occupational disability.

 Marshall Durbin. Inc. v. Hall, 490 So.2d 877 (Miss.1986) is important. We there said

 Employer and carrier again run aground upon their persistent ignoring of the distinction between occupational and medical [or physical] disabilities. . . . [Claimant] on April 12, 1982, was gainfully employed. He was experiencing no occupational disability on that date as the result of any such condition, nor had he prior thereto. The

 apportionment section of the Act may not be employed to deprive an injured worker of benefits to which he is by law entitled where the sole evidence supporting the claim of apportionment is that the injured worker had a preexisting, asymptomatic degenerative condition.

 490 So.2d at 881.

 Our Workers' Compensation Act is concerned with occupational or industrial impairment. Physical and psychiatric disabilities have relevance within our compensation law only insofar as they relate to and cause occupational disability. The point seems so a matter of common sense, but we often confront employers and carriers who do not understand it.

 True, Brown's prior back trouble was not" a preexisting, asymptomatic condition "of the sort present in Marshall Durbin Inc. v. Hall. But this is not the point. The principle underlying Hall is that not all preexisting conditions generate a duty to apportion, only those which have produced in the claimant a preexisting occupational disability. Following her back troubles, Nellie Brown returned to full time with Stuart's in March of 1977 and she worked without significant interruption until September 1981. This is more than a sufficient predicate for a finding of fact that Brown experienced no preexisting occupational disability.

 Much the same can be said of the 1982 car wreck. Accepting that Brown was injured in this wreck, that in no way undercuts the conclusion that her permanent occupational disability resulted from the September 1981 shoplifting incident and assault.

 In the end, employer and carrier's appeal runs aground upon our limited scope of review. In Fought v. Stuart C. Irby Co., 523 So.2d 314 (Miss.1988), we ...


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