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

APRIL 19, 1989

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



ON PETITION FOR REHEARING

EN BANC

ROBERTSON, JUSTICE, FOR THE COURT:

I.

 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 pre-injury back trouble and a post-injury 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. "

 On direct appeal this Court affirmed. The case is back

 on petition for rehearing, augmented by the briefs of eight Amici Curiae. *fn1 We modify the original opinion, but in the end affirm once more.

 II.

 On September 24, 1981, the sixty-year-old Nellie Brown was employed by Stuart's, Inc., as manager of 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 been able to work since that date.

 Today's is not Brown's first workers' compensation claim. In 1976 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. *fn2

 On December 29, 1983, Brown filed with the Mississippi Workers' Compensation Commission her motion to controvert. On December 3, 1985, a hearing was held before the Administrative Judge, who on March 18, 1986, entered an order finding Brown permanently and totally disabled. On October 28, 1986, the Commission affirmed. Employer and carrier appealed to the Circuit Court of Lee County, which on January 8, 1987, affirmed the Commission's order. Employer and carrier finally appealed to this Court, arguing that the benefits awarded Brown should have been reduced, as in their view, Brown's other injuries have contributed to her permanent disability.

 III.

 A.

 For reasons no doubt good and sufficient, our legislature has decreed that the worker will bear that part of the burden of her loss of wage earning capacity as may be attributable to experiences or matters other than a work connected injury. Thus, it is 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.

 (5) Brown returned to her duties at the store and was able to discharge fully all of her duties.

 (6) In September, 1981, while at the store she received a severe beating resulting in various injuries, including head and back trauma.

 (7) The constant head and back pain which Brown experiences as a result of her physical injuries causes extreme depression for which Brown is being treated.

 (8) The Commission found Brown to be 100% permanently disabled as a result of her depression and declined to apportion her recovery because of the 1976 back injury.

 Code Ann. 71-3-7 (1972). *fn3 See also 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); and Delta Drilling Co. v. Cannette, 489 So. 2d 1378, 1381 (Miss. 1986).

 In many states these non-compensable-because-apportioned losses are compensated through a" second injury fund. "2 Larson, The Law of Workers Compensation 59.20 (1987) (hereinafter" Larson ") Our act provides for such a fund, though its availability and utility are quite restricted and wholly ...


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