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QUITMAN KNITTING MILL and THE AETNA CASUALTY & SURETY COMPANY v. SHERRY SMITH

FEBRUARY 22, 1989

QUITMAN KNITTING MILL and THE AETNA CASUALTY & SURETY COMPANY
v.
SHERRY SMITH



BEFORE DAN LEE, P.J., ROBERTSON and ZUCCARO, JJ.

ZUCCARO, JUSTICE, FOR THE COURT:

This is an appeal from a judgment in a worker's compensation case from the Circuit Court of Clarke County, affirming the decision of the Mississippi Worker's Compensation Commission. The claimant, Sherry Smith, was employed by Quitman Knitting Mill as a seamstress. The Aetna Casualty & Surety Company was Quitman's insurance carrier.

The claim arose out of an incident on May 27, 1977. Sherry Smith purchased a cold tablet called "Chex-it" from her employer and within 30 minutes she became ill and had severe trembling episodes which have recurred to the time of the hearing.

 Defendant's motion to controvert was filed January 10, 1979. After the initial hearings the Administrative Judge found on November 15, 1982, that the incident did not occur within the course and scope of employment and causal relationship was not proven by a preponderance of the evidence. The full commission reversed on August 24, 1983, finding that claimant suffered an accidental injury when the "Chex-it" tablet exacerbated claimant's pre-existing congenital condition, contributing to the onset of essential tremors. The commission remanded for determination of the date of claimant's maximum medical recovery, the existence and extent of permanent impairment, and the degree of contribution of the pre-existing condition.

 From this order the employer and carrier appealed to the Circuit Court. By agreed order, the appeal was dismissed and remanded to the commission on January 30, 1984.

 Additional hearings resulted in the Administrative Judge's determination that fifty percent of the essential tremor condition was the result of Ms. Smith's reaction to the "Chex-it" tablet provided by employer and taken by Smith on May 27, 1977. At a hearing on January 20, 1986, the Administrative Judge found that the condition was permanent.

 On appeal to the full commission, the Administrative Judge's findings were affirmed on July 23, 1986. The circuit court also affirmed.

 The employer and carrier appeal these findings raising the following issues:

 Issue 1. Was the Commission manifestly wrong in finding that claimant's condition arose out of and in the course of employment?

 Issue 2. Was the Commission manifestly wrong in finding that the claimant sustained any temporary total disability?

 Issue 3. Did the Claimant fail to prove that the medical bills submitted were incurred as a result of her essential tremors?

 Issue 4. Was proration of the claimant's disability manifestly wrong?

 FACTS

 On May 27, 1977, Sherry Smith, was employed by Quitman Knitting Mill as a seamstress. She had previously been employed by Quitman Mill from September 1973 to November 1975. On May 23, 1977, Ms. Smith applied, and was tested for employment. She was given a pre-employment physical by Dr. Walter Gunn, who found her fit to work. Ms. Smith began working on May 24, under the direct supervision of Ms. Dorothy Dykes and Ms. Grace Long.

 At the time of her re-employment and physical examination, Ms. Smith was taking a diet pill known as Ionamin. She took one on Friday, May 27, before departing for work. She was taking birth control pills. She was also taking a pill for a kidney infection and had previously had three penicillin tablets daily for the infection.

 Ms. Smith arrived at Quitman Mill at approximately 7:00

 a.m., suffering from a bad cold and within a short time her symptoms got worse. Ms. Dorothy Dykes advised her that the employer kept and sold "Chex-it" cold tablets. Notice of availability of these tablets was given to employees by a company memorandum dated November 7, 1973, signed by Sara Coker, personnel manager of the Quitman Knitting Mill. Ms. Smith purchased a "Chex-it" tablet from Quitman and returned to her machine. Approximately 30 minutes later Ms. Smith became dizzy and went to the rest room. She started shaking uncontrollably, whereupon she was taken to the first-aid room and from there to Dr. Walter Gunn's office. Dr. Gunn observed that she was having intermittent hand and head jerking sensations. Dr. Gunn injected Ms. Smith with one cc. of an antihistamine and he sent her home. Friday night Ms. Smith was treated at Wayne General Hospital in Waynesboro by Dr. James Dabbs. An injection prescribed by Dr. Dabbs at that time afforded Ms. Smith relief until the following evening.

 On May 29, Ms. Smith was again admitted to Wayne General Hospital. After releasing her on June 3, 1977, Dr. Dabbs referred her to Dr. Curtis Graf, a neurologist in Mobile, Alabama. Dr. Graf treated Ms. Smith from June 1977 until January, 1978.

 Dr. Graf testified he examined Ms. Smith on June 9, 1977, and admitted her to Mobile Infirmary Hospital on June 15, 1977. He recorded a history consistent with her testimony concerning the onset of her symptoms. He also recorded a history of Ms. Smith's mother and maternal grandfather having similar tremors. Dr. Graf testified that Ms. Smith's inherited type tremor will continue throughout the remainder of her life and probably would have developed eventually without the precipitating event of May 27, 1977. In Dr. Graf's opinion the "Chex-it" cold medication, which contained phenylpropanolamine, in combination with the Ionamin, influenced Ms. Smith's underlying problem and, thus, "certainly had a bearing on the manifestation of this tremor, at that time." Dr. Graf noted that Ms. Smith had taken Ionamin for several months with no adverse effect and testified the Ionamin alone was not the precipitating factor in the manifestation of her tremor on May 27, 1977.

 Ms. Smith sought re-employment at Quitman Knitting Mill in June, 1977, but was informed her employment had been terminated. She worked as a sweeper for Erwin Mills-Burlington Sportswear for one month in 1978, but was fired when her condition was discovered because her supervisors considered the trembling to be a "work hazard."

 Dr. Robert Currier, neurologist, testified on direct

 examination for Quitman that the "Chex-it" tablet might well have played a part in the manifestation of Ms. Smith's tremors but was not the cause of her permanent condition.

 I.

 DID THE ONSET OF CLAIMANT'S CONDITION ARISE OUT OF AND IN THE COURSE OF EMPLOYMENT?

 The appellant/employer contends that claimant's essential tremors are congenital and that claimant was programmed through her genes to develop permanent essential tremors. In addition, the proof that the "Chex-it" cold tablet triggered the onset of this condition is characterized by appellant as inadequate. Employer also contends that the sale of the cold tablet gave no benefit to the employer, citing cases from other jurisdictions which held that such injuries were not compensable.

 Appellee cites Collums v. Caledonia Manufacturing Company, 237 Miss. 607, 115 So. 2d 672, 673 (1959), and Big "2" Engine Rebuilder v. Freeman, 379 So. 2d 888 (Miss. 1980) for the proposition that injuries arising from personal comfort activities which are reasonable incidents of employment are compensable.

 In Collums, the employee purchased a soft drink from a vending machine kept on the employer's premises for the convenience and refreshment of its personnel. On noticing what was later identified as a mouse in the drink the employee became ill. The Worker's Compensation Commission found the employee temporarily and totally disabled for approximately ten days. In affirming the Commission's decision, the Collums court stated that an activity need not be strictly necessary if it is reasonably incidental to the employment.

 What is reasonably incidental depends both on the practices permitted in the particular plant, which here included the maintenance of the box of cola with ice furnished by the employer, and on ...


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