Chapter 1. Employer and Employee

§ 71-1-1. Occupational health and safety program.

The state board of health is authorized to establish an occupational health and safety program and is empowered:

To employ such qualified personnel as staff to carry out the duties and responsibilities set forth herein;

To develop and make available upon request to all employers of the state, including public employers, information, consultation and assistance related to safety and health laws, regulations, measures and standards; to participate and assist with training and educational programs, directed toward employee safety and disease prevention;

To employ such personnel and procure such equipment as necessary to provide on-site consultive services related to assistance, information, education or training of employers and employees toward compliance with safety and health standards and toward the establishment of safety and health programs to prevent work-connected disabilities;

To collect, compile and report statistics related to work-connected disabilities in Mississippi; such statistical work shall be performed in cooperation with other statistic-gathering agencies with the federal and state governments. Such statistical reports as may be available shall be made known to employers and employees.

To receive such federal or state grants and appropriations as available to further the education, training and assistance to the employers and employees of Mississippi in preventing work-connected disabilities.

Nothing in this section shall be construed as authorizing the state board of health to administer or enforce in any way the Federal Occupational Safety and Health Act, known as OSHA.

HISTORY: Codes, Hemingway’s 1917, § 4499; 1930, § 4637; 1942, § 6977; Laws, 1914, ch. 163; Laws, 1974, ch. 515, § 1, eff from and after July 1, 1974.

Cross References —

Oath and bond of state officers, see §§25-1-9 et seq.

The power of the state board of health to establish programs concerning occupational safety and health, see §41-3-15.

Federal Aspects—

The Federal Occupational Safety and Health Act (OSHA) appears generally as 26 USCS §§ 651 et seq.

JUDICIAL DECISIONS

1. In general.

In a products liability/negligence suit, the court reserved judgment on whether expert testimony as to whether Occupational Safety and Health Administration standards had been violated should be admitted under Fed. R. Evid. 702 with regard to whether a ladder that provided access to an industrial machine was defectively designed; under Miss. Code Ann. §71-1-1(f), OSHA regulations did not have compulsory force on the issue of defective design. Walker v. George Koch Sons, Inc., 2009 U.S. Dist. LEXIS 25860 (S.D. Miss. Mar. 27, 2009).

Evidence of regulations promulgated under Occupational Safety and Health Act (OSHA) is not admissible to show negligence. Sumrall v. Mississippi Power Co., 693 So. 2d 359, 1997 Miss. LEXIS 82 (Miss. 1997).

Trial court did not abuse its discretion in refusing to allow evidence of Occupational Safety and Health Act (OSHA) violations to impeach witness after trial court had in general refused to allow evidence of OSHA regulations, in negligence action brought by employee of contractor retained by electric utility to install new fly ash pond discharge structure for coal-burning facility against utility, arising from injuries allegedly suffered while working in trench; there was little doubt that true intent of counsel for employee was not to impeach witness’ credibility but, rather, to present evidence of OSHA violations which he could not introduce otherwise. Sumrall v. Mississippi Power Co., 693 So. 2d 359, 1997 Miss. LEXIS 82 (Miss. 1997).

The state board of health cannot arbitrarily remove the state factory inspector, but can do so only for good cause following charges, notice, and an opportunity to be heard. State ex rel. Attorney Gen. v. McDowell, 111 Miss. 596, 71 So. 867, 1916 Miss. LEXIS 344 (Miss. 1916).

The term of office of the state factory inspector is four years. State ex rel. Attorney Gen. v. McDowell, 111 Miss. 596, 71 So. 867, 1916 Miss. LEXIS 344 (Miss. 1916).

RESEARCH REFERENCES

ALR.

Propriety of state or local government health officer’s warrantless search-post–Camara cases. 53 A.L.R.4th 1168.

Employer’s liability to employee for failure to provide work environment free from tobacco smoke. 63 A.L.R.4th 1021.

Liability for retaliation against at-will employee for public complaints or efforts relating to health or safety. 75 A.L.R.4th 13.

What constitutes “repeated” or “willful” violation for purposes of state occupational safety and health acts. 17 A.L.R.6th 715.

Technological Feasibility as Factor Affecting Validity of, or Obligation of Compliance with, Standards Established Under Occupational Safety and Health Act (29 U.S.C. § 651 et seq.). 72 A.L.R. Fed. 2d 461.

When is “greater hazard” defense available to employer cited for violation of Occupational Safety and Health Act (29 USCS §§ 651 et seq). 47 A.L.R. Fed. 348.

Validity, construction, and application of OSHA general industry standards for scaffolding (29 CFR § 1910.28). 47 A.L.R. Fed. 809.

Construction and application of provision of 29 USCS § 658(a) that OSHA citation “shall describe with particularity the nature of the violation.” 48 A.L.R. Fed. 466.

What is “recognized hazard” within meaning of general duty clause of Occupational Safety and Health Act (29 USCS § 654(a)(1)). 50 A.L.R. Fed. 741.

Propriety of conducting OSHA plant discovery inspection by nonfederally employed expert. 50 A.L.R. Fed. 906.

What are “extraordinary circumstances” of 29 USCS § 660(a) which permit judicial review of matters not raised before Occupational Safety and Health Review Commission. 52 A.L.R. Fed. 867.

Inspectors’ authority to conduct physical examination of employees, or to have access to employees’ medical and personnel records pursuant to § 8 of the Occupational Safety and Health Act of 1970 (29 USCS § 657(a), (b)). 56 A.L.R. Fed. 262.

Employee misconduct as defense to citation, issued pursuant to provisions of Occupational Safety and Health Act (29 USCS §§ 651 et seq.), arising out of alleged violation of standards resulting in death or personal injury of employee. 59 A.L.R. Fed. 395.

Propriety of challenging validity of OSHA standard at time of judicial review of enforcement proceeding under § 11(a) of Occupational Safety and Health Act (29 USCS § 660(a)). 61 A.L.R. Fed. 422.

Economic feasibility as factor affecting validity of, or obligation of compliance with, standards established under Occupational Safety and Health Act (29 USCS §§ 651 et seq). 68 A.L.R. Fed. 732.

Pre-emptive effect of Occupational Safety and Health Act of 1970 (29 USCS §§ 651-678) and standards issued thereunder. 88 A.L.R. Fed. 833.

What constitutes “willful” violation for purposes of §§ 17(a) or (e) of Occupational Safety and Health Act of 1970 (29 U.S.C.S. § 666(a) or § 666(e)). 161 A.L.R. Fed. 561.

Am. Jur.

61 Am. Jur. 2d, Plant and Job Safety – OSHA and State Laws §§ 54-57, 59-62, 64, 65.

17 Am. Jur. Pl & Pr Forms (Rev), Master and Servant, Forms 211 et seq. (liability of employer for injuries to employee).

CJS.

51 C.J.S., Labor Relations § 3.

Practice References.

John M. Hament and Roger S. Kaplan, Occupational Safety and Health Act (OSHA) (Matthew Bender).

Jeffrey L. Hirsch, Occupational Safety and Health Handbook: An Employer ’s Guide to OSHA Laws, Regulations, and Practices (LexisNexis).

Labor and Employment Law (Matthew Bender).

§§ 71-1-3 through 71-1-9. Repealed.

Repealed by Laws, 1974, ch. 515, § 2, eff from and after July 1, 1974.

§71-1-3. [Codes, Hemingway’s 1917, § 4501; 1930, § 4638; 1942, § 6978; Laws, 1914, ch. 163]

§71-1-5. [Codes, Hemingway’s 1917, § 4502; 1930, § 4639; 1942, § 6979; Laws, 1914, ch. 163]

§71-1-7. [Codes, Hemingway’s 1917, § 4503; 1930, § 4640; 1942, § 6980; Law, 1914, ch. 163]

§71-1-9. [Codes, Hemingway’s 1917, § 4504; 1930, § 4641; 1942, § 6981; Law, 1914, ch. 163]

Editor’s Notes —

Former §71-1-3 concerned the duties of a factory inspector.

Former §71-1-5 related to the annual reports of a factory inspector.

Former §71-1-7 provided for penalties for failure to aid to the state factory inspector.

Former §71-1-9 related to the duties of the state factory inspector to register certain factories.

§ 71-1-11. Repealed.

Repealed by Laws, 1972, ch. 374, § 1, eff from and after July 1, 1972.

[Codes, Hemingway’s 1917, § 4505; 1930, § 4642; 1942, § 6982; Laws, 1914, ch. 7; Laws, 1926, ch. 189; Laws, 1934, ch. 292]

Editor’s Notes —

Former §71-1-11 related to fees for registering establishments with the state factory inspector.

§§ 71-1-13 and 71-1-15. Repealed.

Repealed by Laws, 1974, ch. 515, § 2, eff from and after July 1, 1974.

§71-1-13. [Codes, Hemingway’s 1917, § 4506; 1930, § 4643; 1942, § 6983; Laws, 1916, ch. 95; Laws, 1926, ch. 189]

§71-1-15. [Codes, Hemingway’s 1917, § 4507; 1930, § 4644; 1942, § 6984; Laws, 1916, ch. 95; Laws, 1926, ch. 189]

Editor’s Notes —

Former §71-1-13 concerned the duties of the state factory inspector to furnish forms for reports.

Former §71-1-15 provided for penalties for an establishment’s failure to file reports.

§ 71-1-17. Children under fourteen not to work in mills or factories.

No boy or girl under the age of fourteen (14) years shall be employed or permitted to work in any mill, cannery, workshop, factory, or manufacturing establishment within this state.

HISTORY: Codes, Hemingway’s 1917, § 4515; 1930, § 4645; 1942, § 6985; Laws, 1914, ch. 164; Laws, 1924, ch. 314.

Cross References —

Crime of enticing children for employment, see §97-5-7.

JUDICIAL DECISIONS

1. In general.

In a claim for double workman’s compensation benefits arising out of the death of a 16-year old boy who was employed by a corporation which cultivated the soil to produce grain which it used to feed cattle which it later sold, the corporation was not a manufacturing establishment within the meaning of §71-1-17 where the harvested grain was not converted from a raw product into a substantially different substance or material; since the decedent’s work activity of entering a grain silo to level shelled corn was incidental to the corporation’s farming activities, the decedent’s employment was agricultural in nature and the double compensation benefits provided by §71-3-107 were not recoverable. Stafford v. U. S. Cattle Corp., 389 So. 2d 923, 1980 Miss. LEXIS 2116 (Miss. 1980).

Employment of minor in violation of law describing age limit is negligence per se, rendering employer liable for injury proximately resulting. Hartwell Handle Co. v. Jack, 149 Miss. 465, 115 So. 586, 1928 Miss. LEXIS 51 (Miss. 1928).

RESEARCH REFERENCES

Am. Jur.

48A Am. Jur. 2d, Labor and Labor Relations §§ 2814 et seq.

CJS.

51 C.J.S., Labor Relations § 4.

§ 71-1-19. Child labor in accord with school attendance.

It shall be unlawful for any person, firm, or corporation to employ, detain, or permit to work in any mill, cannery, workshop, factory, or manufacturing establishment in this state any child under the age of fourteen (14) years, or any child over the age of fourteen (14) years and under the age of sixteen (16) years, unless such child has complied with, or is complying with, the compulsory school attendance law. Such employer shall require such child to present the affidavit of the parent or guardian, or person standing in parental relation to such child, and the certificate of the superintendent or principal of the school of the district in which such child or children reside or in which they last attended school, stating the place and date of the birth of such child, the last school attendance of such child, the grade of study pursued, the name of the school, and the name of the teacher in charge. The employer shall preserve such affidavit and keep a complete register of all such affidavits, showing all the facts contained herein.

HISTORY: Codes, Hemingway’s 1917, § 4517; 1930, § 4647; 1942, § 6987; Laws, 1914, ch. 164; Laws, 1924, ch. 314; Laws, 1930, ch. 46.

Cross References —

Crime of enticing children for employment, see §97-5-3.

JUDICIAL DECISIONS

1. In general.

2. Construction of prohibited work.

3. Effect of failure to acquire affidavit.

1. In general.

This section [Code 1942, § 6987] must be interpreted by reasoning on principle and according to usual and ordinary sense of words used. Graham v. Goodwin, 170 Miss. 896, 156 So. 513, 1934 Miss. LEXIS 183 (Miss. 1934).

2. Construction of prohibited work.

Employment as master and servant is not necessary under prohibition of this section [Code 1942, § 6987], it being sufficient that child is knowingly permitted or directed to work as if an employee and that permission or direction is by foreman who has supervision of that work. Graham v. Goodwin, 170 Miss. 896, 156 So. 513, 1934 Miss. LEXIS 183 (Miss. 1934).

With respect to what constitutes work in a mill or manufacturing establishment, use of same language in this section [Code 1942, § 6987] as in Hours of Labor Statute (Code 1942, § 6986) in same chapter of code is persuasive of legislative intent that same construction should be put on this section [Code 1942, § 6987] as on other statute, else different phraseology would have been inserted. Graham v. Goodwin, 170 Miss. 896, 156 So. 513, 1934 Miss. LEXIS 183 (Miss. 1934).

Work in rolling billets down ramp of stave mill where worker was in no way affected by machinery or manufacturing or operating part of mill held not within statute prohibiting child labor “in the mill or manufacturing establishment” so as to entitle boy under sixteen years of age to recover for injuries sustained in such work. Graham v. Goodwin, 170 Miss. 896, 156 So. 513, 1934 Miss. LEXIS 183 (Miss. 1934).

3. Effect of failure to acquire affidavit.

Employee 15 years old made prima facie case of negligence contributing to injury by showing employment by defendant without affidavit required. Anderson Mfg. Co. v. Wade, 151 Miss. 820, 119 So. 313, 1928 Miss. LEXIS 385 (Miss. 1928).

If negligence of employee 15 years old contributed to injury his damages should be reduced proportionately, though employed without affidavit. Anderson Mfg. Co. v. Wade, 151 Miss. 820, 119 So. 313, 1928 Miss. LEXIS 385 (Miss. 1928).

If 15 year old boy was employed without affidavit through his fraud and injury was caused solely by his negligence, employer was not liable. Anderson Mfg. Co. v. Wade, 151 Miss. 820, 119 So. 313, 1928 Miss. LEXIS 385 (Miss. 1928).

RESEARCH REFERENCES

ALR.

Lawn mowing by minors as violation of child labor statutes. 56 A.L.R.3d 1166.

Am. Jur.

48A Am. Jur. 2d, Labor and Labor Relations §§ 2814 et seq.

CJS.

51 C.J.S., Labor Relations § 4.

§ 71-1-21. Regulating hours of labor.

No boy or girl over fourteen (14) years of age and under sixteen (16) years shall be permitted to work in any mill, cannery, workshop, factory, or manufacturing establishment more than eight (8) hours in one (1) day, or more than forty-four (44) hours in any one (1) week, or be employed in or detained in any such establishment between the hours of 7 p.m. and 6 a.m.

HISTORY: Codes, Hemingway’s 1917, §§ 4516, 4523; 1930, § 4646; 1942, § 6986; Laws, 1912, ch. 157; Laws, 1914, chs. 164, 169; Laws, 1916, ch. 239; Laws, 1924, ch. 314; Laws, 1981, ch. 439, § 1, eff from and after passage (approved March 30, 1981).

JUDICIAL DECISIONS

1. In general.

2. Establishments subject to regulation.

3. Persons protected.

1. In general.

In an action by an employee between the ages of 16 and 17 years to recover for injuries received while working with machinery, the circuit court properly upheld the denial of double compensation under §71-3-107 for alleged violation by the employer of the working hours limit set forth in §71-1-21, but erred in refusing to remand the case to the administrative judge for consideration of the employee’s underlying claim. Abel v. Garan, Inc., 385 So. 2d 618, 1980 Miss. LEXIS 2029 (Miss. 1980).

With respect to what constitutes work in a mill or manufacturing establishment, use of same language in Child Labor Statute (Code 1942, § 6987) as in Hours of Labor Statute in same chapter of code is persuasive of legislative intent that the same construction should be put on Child Labor Statute as on other statute, else different phraseology would have been inserted. Graham v. Goodwin, 170 Miss. 896, 156 So. 513, 1934 Miss. LEXIS 183 (Miss. 1934).

Under Laws 1912, ch. 157 [Code 1942, § 6986] working employees in a manufacturing establishment for more than ten hours in any one day constitutes only one offense. Buckeye Cotton Oil Co. v. State, 103 Miss. 767, 60 So. 775, 1912 Miss. LEXIS 230 (Miss. 1912).

Whether an employee works more than ten hours a day depends upon the fact whether during the hours he is not actually working, he is confined to precincts of the establishment, charged with some responsibility for operation of the machinery. Buckeye Cotton Oil Co. v. State, 103 Miss. 767, 60 So. 775, 1912 Miss. LEXIS 230 (Miss. 1912).

Laws 1912, ch. 157 [Code 1942, § 6986] is a valid exercise of police power. State v. J. J. Newman Lumber Co., 102 Miss. 802, 59 So. 923, 1912 Miss. LEXIS 125 (Miss. 1912).

Regulations of lawful trade or business are within the exercise of the police power unless they are so unreasonable as to unnecessarily and arbitrarily interfere with or destroy property and personal rights of citizens. State v. J. J. Newman Lumber Co., 102 Miss. 802, 59 So. 923, 1912 Miss. LEXIS 125 (Miss. 1912).

Under Art. 4 § 33 Const. 1890, the legislature may enact laws regulating and providing for the safety, health, morals and general welfare of the public. State v. J. J. Newman Lumber Co., 102 Miss. 802, 59 So. 923, 1912 Miss. LEXIS 125 (Miss. 1912).

2. Establishments subject to regulation.

A cotton gin is a manufacturing establishment, and the hours of labor of gin employees are regulated by this section [Code 1942, § 6986]. Lopanic v. Berkeley Cooperative Gin Co., 191 So. 2d 108, 1966 Miss. LEXIS 1200 (Miss. 1966).

Fact that a mill is operated only about five months in each year does not render Laws 1912, ch. 157 [Code 1942, § 6986] inapplicable. Buckeye Cotton Oil Co. v. State, 103 Miss. 767, 60 So. 775, 1912 Miss. LEXIS 230 (Miss. 1912).

Corporation held to be engaged in “manufacturing.” Buckeye Cotton Oil Co. v. State, 103 Miss. 767, 60 So. 775, 1912 Miss. LEXIS 230 (Miss. 1912).

3. Persons protected.

A 17-year-old boy employed in a cotton gin, who, on the date that he sustained injuries in the scope and course of his employment, had worked 12 hours a day for 6 days, approximately 72 hours of work, had been employed in violation of the provisions of this section [Code 1942, § 6986], and he was entitled to double compensation benefits for his injuries under the provisions of Code 1942, § 6998-54. Lopanic v. Berkeley Cooperative Gin Co., 191 So. 2d 108, 1966 Miss. LEXIS 1200 (Miss. 1966).

Laws 1916, ch. 239 [Code 1942, § 6986] applies only to employees working with or around machinery, and does not apply to an employee unloading from cars lumber which other employees were taking to the planing machines. Handy v. Mercantile Lumber Co., 121 Miss. 489, 83 So. 674, 1920 Miss. LEXIS 95 (Miss. 1920).

Laws 1912, ch. 157 [Code 1942, § 6986] applies only to such employees of a manufacturing establishment who compose the organized force and work with machinery, whose work supplements that of the machinery and must be performed at the same time in order to keep the machinery in operation. Buckeye Cotton Oil Co. v. State, 103 Miss. 767, 60 So. 775, 1912 Miss. LEXIS 230 (Miss. 1912).

Statement that an employee had general supervision of the operation of the mill held insufficient to show whether or not he was within the protection of Laws 1912, ch. 157 [Code 1942, § 6986]. Buckeye Cotton Oil Co. v. State, 103 Miss. 767, 60 So. 775, 1912 Miss. LEXIS 230 (Miss. 1912).

RESEARCH REFERENCES

ALR.

Lawn mowing by minors as violation of child labor statutes. 56 A.L.R.3d 1166.

Who is employed in “professional capacity,” within exemption, under 29 USCS § 213(a)(1), from minimum wage and maximum hours provisions of Fair Labor Standards Act. 77 A.L.R. Fed. 681.

Am. Jur.

48A Am. Jur. 2d, Labor and Labor Relations §§ 2814 et seq.

CJS.

51B C.J.S., Labor Relations, §§ 1307, 1311, 1314.

Practice References.

Bender’s Labor and Employment Bulletin (Matthew Bender).

Employee Rights Litigation: Pleading and Practice (Matthew Bender).

Labor and Employment Law (Matthew Bender).

National Labor Relations Act: Law and Practice (Matthew Bender).

Laurie E. Leader, Wages and Hours: Law and Practice (Matthew Bender).

Shawe and Rosenthal, Employment Law Deskbook (Matthew Bender).

§ 71-1-23. Sheriff to enforce law.

It shall be the special duty of the sheriff of the county in which the mill, cannery, workshop, factory, or manufacturing establishment employing child labor is located to visit, at least once each month, such mill, cannery, workshop, factory, or manufacturing establishment to see to the enforcement of this chapter.

HISTORY: Codes, Hemingway’s 1917, § 4518; 1930, § 4648; 1942, § 6988; Laws, 1914, ch. 164; Laws, 1924, ch. 314.

Cross References —

Duty of sheriff with offenders, see §19-25-67.

§ 71-1-25. County health officer to inspect.

It shall be the duty of the county health officer to visit, without notice of his intention to do so, all mills, canneries, workshops, factories, or manufacturing establishments employing child labor within his county at least twice each year, or oftener if requested by the sheriff, and to promptly report to the sheriff any unsanitary condition of the premises, any child or children afflicted with infectious, contagious, or communicable diseases, or whose physical condition renders such child or children incapacitated to perform the work required of them. The sheriff shall promptly remove such child or children from such mill, cannery, workshop, factory, or manufacturing establishment, and order the premises put in sanitary condition. The judgment of the county health officer as to the physical condition of the children and the sanitary condition of the premises shall be final and conclusive.

HISTORY: Codes, Hemingway’s 1917, § 4519; 1930, § 4649; 1942, § 6989; Laws, 1914, ch. 164; Laws, 1924, ch. 314.

Cross References —

Appointment of county health officer, see §41-3-37.

RESEARCH REFERENCES

Am. Jur.

61 Am. Jur. 2d, Plant and Job Safety – OSHA and State Laws §§ §§ 54-57, 59-62, 64, 65.

CJS.

51 C.J.S., Labor Relations § 3.

§ 71-1-27. Misdemeanor to fail or refuse to obey order of officer.

Any officer, manager, or superintendent of any mill, cannery, workshop, factory, or manufacturing establishment in which child labor is employed who shall fail or refuse to give true and correct information demanded of him by any officer hereinbefore directed to inspect such mill, cannery, workshop, factory, or manufacturing establishment, or who shall fail or refuse to obey any lawful order of the sheriff or health officer of the county in which said mill, cannery, workshop, factory, or manufacturing establishment is located for carrying out the purpose of this chapter, shall be guilty of a misdemeanor and, upon conviction, shall be fined not less than Ten Dollars ($10.00) nor more than One Hundred Dollars ($100.00).

HISTORY: Codes, Hemingway’s 1917, § 4521; 1930, § 4650; 1942, § 6990; Laws, 1914, ch. 164; Laws, 1924, ch. 314.

Cross References —

Imposition of standard state assessment in addition to all court imposed fines or other penalties for any misdemeanor violation, see §99-19-73.

§ 71-1-29. Misdemeanor to violate child labor laws.

Any person, firm, or corporation, or the superintendent or any officer of the mill, cannery, workshop, factory, or manufacturing establishment employing any child, or permitting any child to be employed by or to work in, or to be detained in any mill, cannery, workshop, factory, or manufacturing establishment in this state contrary to law shall be guilty of a misdemeanor and, upon conviction, shall be fined not less than Fifty Dollars ($50.00) nor more than One Hundred Dollars ($100.00), or may be sentenced to the county jail for not less than ten (10) days nor more than sixty (60) days, or both such fine and imprisonment.

HISTORY: Codes, Hemingway’s 1917, § 4522; 1930, § 4651; 1942, § 6991; Laws, 1914, ch. 164; Laws, 1924, ch. 314.

Cross References —

Imposition of standard state assessment in addition to all court imposed fines or other penalties for any misdemeanor violation, see §99-19-73.

RESEARCH REFERENCES

Am. Jur.

48A Am. Jur. 2d, Labor and Labor Relations §§ 2814 et seq.

§ 71-1-31. Certain canneries excepted.

The provisions of Sections 71-1-17 through 71-1-29 shall not apply to fruit or vegetable canneries.

HISTORY: Code, 1930, § 4652; 1942, § 6992; Laws, 1924, ch. 314.

§ 71-1-33. Repealed.

Repealed by Laws, 1981, ch. 310, § 1, eff from and after passage (approved March 2, 1981).

[Codes, Hemingway’s 1917, § 4527; 1930, § 4653; 1942, § 6993; Laws, 1914, ch. 165]

Editor’s Notes —

Former §71-1-33 made provisions for work hours for females.

§ 71-1-35. Pay of employees twice a month.

  1. Every corporation, company, association, partnership and individual person engaged in manufacturing of any kind in this state employing as many as fifty (50) or more employees and employing public labor, and every public service corporation doing business in this state shall be required to make full payment to employees for services performed as often as once every two (2) weeks or twice during each calendar month, or on the second and fourth Saturday, respectively, of each month. Such payment or settlement shall include all amounts due for labor or services performed up to not more than ten (10) days previous to the time of payment, except that public service corporations shall not be required to make payment for labor or services performed up to more than fifteen (15) days prior to the time of payment.
  2. For the purposes of this section, the term “employee” shall not include any individual employed in a bona fide executive, administrative or professional capacity.

HISTORY: Codes, Hemingway’s 1917, § 4530; 1930, § 4654; 1942, § 6994; Laws, 1916, ch. 241; Laws, 1991, ch. 407, § 1, eff from and after July 1, 1991.

Cross References —

Lien for wages due, see §§85-7-1 et seq.

RESEARCH REFERENCES

ALR.

Validity of minimum wage statutes relating to private employment. 39 A.L.R.2d 740.

Promise by employer to pay bonus as creating valid and enforceable contract. 43 A.L.R.3d 503.

Who is employed in “professional capacity,” within exemption, under 29 USCS § 213(a)(1), from minimum wage and maximum hours provisions of Fair Labor Standards Act. 77 A.L.R. Fed. 681.

Am. Jur.

48A Am. Jur. 2d, Labor and Labor Relations §§ 2814 et seq.

7B Am. Jur. Legal Forms 2d, Employment Contracts § 99:126 (compensation of employee; time of payment of salary-semimonthly).

22 Am. Jur. Proof of Facts 2d 643, Employee’s Right to Compensation for Extra Services Requested by Employer.

CJS.

51B C.J.S., Labor Relations § 1299.

Practice References.

Bender’s Labor and Employment Bulletin (Matthew Bender).

Employee Rights Litigation: Pleading and Practice (Matthew Bender).

Labor and Employment Law (Matthew Bender).

National Labor Relations Act: Law and Practice (Matthew Bender).

Laurie E. Leader, Wages and Hours: Law and Practice (Matthew Bender).

Shawe and Rosenthal, Employment Law Deskbook (Matthew Bender).

§ 71-1-37. Discounting trade checks prohibited.

Every person, company, association, partnership, manufacturing company, or railroad company now existing or hereafter organized in this state engaged in employing labor for manufacturing purposes, or any railroad within this state shall be prohibited from discounting any trade check, coupons, or other written instrument issued for the payment of such labor. It shall be unlawful for any person, partnership, corporation, or trade establishment purchasing said trade checks, coupons, or other instruments issued for the payment of such labor to discount the same. Any person, partnership, corporation, or trade establishment purchasing the same at a discount, or any company, corporation, railroad, or other person issuing said checks, coupons, or other written instruments who shall discount the same in settlement with the employees shall be guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than Ten Dollars ($10.00) and not more than Fifty Dollars ($50.00) for each offense.

HISTORY: Codes, Hemingway’s 1917, § 4532; 1930, § 4656; 1942, § 6996; Laws, 1914, ch 138.

Cross References —

Imposition of standard state assessment in addition to all court imposed fines or other penalties for any misdemeanor violation, see §99-19-73.

RESEARCH REFERENCES

Am. Jur.

48A Am. Jur. 2d, Labor and Labor Relations §§ 2814 et seq.

CJS.

51B C.J.S., Labor Relations § 1302.

§ 71-1-39. Trade checks must be paid in cash.

All persons, firms, or corporations engaged in manufacturing and issuing trade checks, coupons, or other instruments of writing in payment for labor shall, on or after the regular pay day, cash said check or checks so issued at their face value less any amount that may be due by the party to whom issued. Any such person, firm, or corporation so engaged in manufacturing and failing to settle such claim as herein required shall be liable to pay to the holder thereof twenty-five per cent. (25%) on the face of said check as damages in the event any suit or action shall be brought to enforce the payment thereof. This section shall only apply when the amount claimed is One Hundred Dollars ($100.00) or less.

HISTORY: Codes, Hemingway’s 1917, § 4533; 1930, § 4657; 1942, § 6997; Laws, 1914, ch. 138.

JUDICIAL DECISIONS

1. In general.

Trade checks providing on their face that they were not transferable did not violate Code 1906, § 4001, providing that all promissory notes, and other writings for the payment of money, or other thing, may be assigned by indorsement whether the same be payable to order or assigns. Moody v. Finkbine Lumber Co., 122 Miss. 407, 84 So. 385, 1920 Miss. LEXIS 443 (Miss. 1920).

RESEARCH REFERENCES

Am. Jur.

48A Am. Jur. 2d, Labor and Labor Relations §§ 3818 et seq.

CJS.

51B C.J.S., Labor Relations §§ 1302, 1303 et seq.

§ 71-1-41. Employee trust plan.

A trust of real or personal property, or real and personal property combined, created either heretofore or hereafter by an employer as part of a pension plan, disability or death benefit plan, or profit-sharing plan for the exclusive benefit of some or all of his or its employees, to which contributions are made by such employer or employees, or both, for the purpose of distributing to such employees the earnings and the principal of such trust, shall not be deemed to be invalid as violating any existing laws against perpetuities, restraints on alienation, suspension of the power of alienation, or the accumulation of income; but such a trust may continue for such time as may be necessary to accomplish the purpose for which it may be created.

No trust of real or personal property, or real and personal property combined, created either heretofore or hereafter under a retirement plan for which provision has been made under the laws of the United States of America exempting such trust from federal income tax shall be deemed to be invalid as violating any existing laws against perpetuities, restraints on alienation, suspension of the power of alienation of title to property, or the accumulation of income; but such a trust may continue for such time as may be necessary to accomplish the purposes for which it may be created, may be permitted to accumulate the income arising from the property held therein until such time as such income shall become distributable to the beneficiary or beneficiaries under the terms of the trust, may according to its terms be made irrevocable, and the interests of its beneficiary or beneficiaries therein may be made nontransferable by assignment or otherwise.

HISTORY: Codes, 1942, § 6995.5; Laws, 1954, ch. 205.

Cross References —

Public employees’ retirement and disability benefits, see §§25-11-101 et seq.

Federal Aspects—

Employee Retirement Income Security Act, see 29 USCS §§ 1001 et seq.

RESEARCH REFERENCES

ALR.

Construction and operation of private pension plan for distribution of pension funds upon termination of plan. 55 A.L.R.3d 767.

What constitutes order made pursuant to state domestic relations law for purposes of qualified domestic relations order exception to antialienation provision of Employee Retirement Income Security Act of 1974 (29 USCS § 1056(d)). 79 A.L.R.4th 1081.

§ 71-1-43. Income or principal of employee trust plan not to be encumbered.

The income or principal payable to a beneficiary or beneficiaries under any trust created by an employer as part of a pension plan, disability or death benefit plan, profit-sharing plan, or under any trust created under a retirement plan for which provision has been made under the laws of the United States of America exempting such trust from federal income tax shall not be pledged, assigned, transferred, sold, or in any manner whatsoever accelerated, anticipated, or encumbered by the beneficiary or beneficiaries. Nor shall any income or principal be in any manner subject or liable in the hands of the trustee for the debts, contracts, or engagements of the beneficiary or beneficiaries, or be subject to any assignment or other involuntary alienation or disposition whatsoever. Nor shall any income or principal be subject to the levy of any execution, writ of attachment, or garnishment thereon.

HISTORY: Codes, 1942, § 6995.3; Laws, 1954, ch. 206.

Cross References —

Remedy by attachment, see §§11-33-1,11-33-23.

Suggestion of exemption from garnishment, see §11-35-33.

Levy of execution and attachment, see §§13-3-123 et seq.

Property exempt from taxation, see §§27-31-1 et seq.

Descent of exempt property, see §§91-1-19 et seq.

Federal Aspects—

Employee Retirement Income Security Act, see 29 USCS §§ 1001 et seq.

JUDICIAL DECISIONS

1. In general.

Bankruptcy debtor’s exemption claims in his simplified employee pension-individual retirement accounts (SEP-IRA) extended only to amounts reasonably necessary for support of debtor as well as of any dependents. In re Henderson, 167 B.R. 67, 1993 Bankr. LEXIS 2177 (Bankr. N.D. Miss. 1993).

RESEARCH REFERENCES

ALR.

Private pension plan: construction of provision authorizing employer to terminate or modify plan. 46 A.L.R.3d 464.

Right of trustee of land having interest therein to purchase on his own behalf in association with foreclosure by third-party lienor, in absence of express trust provision. 30 A.L.R.4th 732.

What constitutes order made pursuant to state domestic relations law for purposes of qualified domestic relations order exception to antialienation provision of Employee Retirement Income Security Act of 1974 (29 USCS § 1056(d)). 79 A.L.R.4th 1081.

§ 71-1-45. Assignment or pledge of wages.

No assignment or pledge of wages, in any form, made or executed directly or collaterally in the payment of, or as security for, the purchase of or contract to purchase any goods, wares, or merchandise shall be valid against or binding upon any employer, or the wages of any employee in the hands of, or owing, or to become owing to such employee, unless the assignee or pledgee thereof shall, prior to the delivery of the goods, wares, or merchandise so purchased or prior to consummation of any contract to purchase the same, serve upon the employer of such assignor, or pledgor, a duly executed copy of such assignment, or pledge, or contract to purchase and obtain such employer’s acceptance of notice thereof and agreement in writing to be bound by the terms of such assignment or pledge.

HISTORY: Codes, 1942, § 275; Laws, 1940, ch. 291.

RESEARCH REFERENCES

ALR.

Law governing assignment of wages or salary. 1 A.L.R.3d 927.

Garnishee’s duty to give debtor notice of garnishment prior to delivery of money without judgment against the garnishee on the debt. 36 A.L.R.4th 824.

Validity and enforceability of provision that employer shall be liable for stipulated damages on breach of employment contract. 40 A.L.R.4th 285.

Am. Jur.

6 Am. Jur. 2d, Assignments §§ 64 et seq., 81.

2B Am. Jur. Legal Forms 2d, Assignments §§ 25:11 et seq. (wages); §§ 25:211 et seq. (consent to assignment).

§ 71-1-47. Denial or abridgment of work.

It is hereby declared to be the public policy of Mississippi that the right of a person or persons to work shall not be denied or abridged on account of membership or non-membership in any labor union or labor organization:

Any agreement or combination between any employer and any labor union or labor organization whereby any person not a member of such union or organization shall be denied the right to work for an employer, or whereby such membership is made a condition of employment or continuation of employment by such employer, or whereby any such union or organization acquires an employment monopoly in any enterprise, is hereby declared to be an illegal combination or conspiracy and against public policy.

No person shall be required by an employer to become or remain a member of any labor union or labor organization as a condition of employment or continuation of employment by such employer.

No person shall be required by an employer to abstain or refrain from membership in any labor union or labor organization as a condition of employment or continuation of employment.

No employer shall require any person, as a condition of employment or continuation of employment, to pay any dues, fees, or other charges of any kind to any labor union or labor organization.

Any person who may be denied employment or be deprived of continuation of his employment in violation of any paragraph of this section shall be entitled to recover from such employer and from any other person, firm, corporation, or association acting in concert with him, by appropriate action in the courts of this state, such actual damages as he may have sustained by reason of such denial or deprivation of employment.

The provisions of this section shall not apply to any lawful contract now in force, but they shall apply to all contracts hereafter entered into and to any renewal or extension of an existing contract hereafter occurring.

The provisions of this section shall not apply to any employer or employee under the jurisdiction of the Federal Railway Labor Act.

HISTORY: Codes, 1942, § 6984.5; Laws, 1954, ch. 249, §§ 1, 2.

Federal Aspects—

Railway Labor Act, see 45 USCS §§ 151 et seq.

JUDICIAL DECISIONS

1. In general.

2. Federal preemption.

1. In general.

Although an allegation that an applicant for employment must agree to permit the employer to deduct a designated amount from his paycheck, which is then sent to the union, could constitute a violation of this section, the court did not have jurisdiction over the subject matter where plaintiff failed to allege a jurisdictional basis for the court to hear such a claim. MacKenzie v. International Union of Operating Engineers, 472 F. Supp. 1025, 1979 U.S. Dist. LEXIS 11966 (N.D. Miss. 1979).

2. Federal preemption.

National Labor Relations Act does not allow Mississippi to prohibit unions from requiring non-union members to pay a hiring hall fee; Mississippi’s right to work law is therefore preempted by federal law to the extent that it prohibits non-union members from being required to pay hiring hall fees. Simms v. Local 1752, Int'l Longshoremen Ass'n, 838 F.3d 613, 2016 U.S. App. LEXIS 17679 (5th Cir. Miss. 2016).

RESEARCH REFERENCES

ALR.

Validity and construction of “right to work” laws. 92 A.L.R.2d 598.

Liability, under statute, of labor union or its membership for torts committed in connection with primary labor activities-state cases. 85 A.L.R.4th 979.

What interrogation by employer’s owner or executive officer during union organizing campaign constitutes unfair labor practice. 92 A.L.R. Fed. 461.

Employer’s statements, during union organizational campaign, to effect that plant or business will close or relocate if union is successful as unfair labor practice under 29 USCS § 158(a)(1), (c). 93 A.L.R. Fed. 335.

What interrogation by plant manager or superintendent during union organizing campaign constitutes unfair labor practice. 93 A.L.R. Fed. 580.

What interrogation by department manager, supervisor, or foreman during union organizing campaign constitutes unfair labor practice. 94 A.L.R. Fed. 140.

Pre-emption, by § 301(a) of Labor-Management Relations Act of 1947 (29 USCS § 185(a)), of employee’s state-law action for infliction of emotional distress. 101 A.L.R. Fed. 395.

“Mass discharge” of employees as evidence of unfair labor practice under §§ 8(a)(1) and (3) of National Labor Relations Act (29 USCS § 158(a)(1), (3)). 137 A.L.R. Fed. 445.

Am. Jur.

48 Am. Jur. 2d, Labor and Labor Relations § 1068.

10A Am. Jur. Legal Forms 2d, Labor and Labor Relations §§ 159:12 et seq. (organization of employees).

10A Am. Jur. Legal Forms 2d, Labor and Labor Relations §§ 159:49 et seq. (collective bargaining agreements).

35 Am. Jur. Proof of Facts 2d 209, Harassment or Termination of Employee Due to Religious Beliefs or Practices.

CJS.

51 C.J.S., Labor Relations § 10.

Lawyers’ Edition.

Union activities violating the federal antitrust laws–federal cases. 20 L. Ed. 2d 1528.

Law Reviews.

Unionization of the Legal Profession. 50 Miss. L. J. 451.

Practice References.

Bender’s Labor and Employment Bulletin (Matthew Bender).

Employee Rights Litigation: Pleading and Practice (Matthew Bender).

Labor and Employment Law (Matthew Bender).

National Labor Relations Act: Law and Practice (Matthew Bender).

Shawe and Rosenthal, Employment Law Deskbook (Matthew Bender).

§ 71-1-49. Certain persons prohibited from labor management functions.

  1. No person who is an alien, or who is or has been a member of the Communist Party, or who has been convicted of or served any part of a prison term resulting from his conviction of robbery, bribery, extortion, embezzlement, grand larceny, burglary, arson, violation of narcotics laws, murder, rape, assault with intent to kill, or conspiracy to commit any such crimes, shall serve:
    1. as an officer, director, trustee, member of any executive board or similar governing body, business agent, manager, organizer, or other employee (other than as an employee performing exclusively clerical or custodial duties) of any labor organization, or as a manager, or any person occupying a bargaining position with industry, or
    2. as a labor relations consultant either of a labor organization or of an employer or both, or as an officer, director, agent, or employee (other than as an employee performing exclusively clerical or custodial duties) of any group or association of employers dealing with any labor organization, during or for five (5) years after the termination of his membership in the Communist Party, or for five (5) years after such conviction, or after the end of such imprisonment. No labor organization, group or association of employers, or officer thereof shall knowingly permit any person to assume or hold any office or paid position in violation of this section.
  2. Any person who willfully violates this section shall be guilty of a misdemeanor and, upon conviction thereof, be fined not more than One Thousand Dollars ($1,000.00) or imprisoned for not more than one (1) year, or both.
  3. For the purposes of this section, any person shall be deemed to have been “convicted” and under the disability of “conviction” from the date of the judgment of the trial court or the date of the final sustaining of such judgment on appeal, whichever is the later event, regardless of whether such conviction occurred before or after July 1, 1960.

HISTORY: Codes, 1942, § 6984.7; Laws, 1960, ch. 251, §§ 1-5.

Cross References —

Imposition of standard state assessment in addition to all court imposed fines or other penalties for any misdemeanor violation, see §99-19-73.

RESEARCH REFERENCES

Am. Jur.

48 Am. Jur. 2d, Labor and Labor Relations §§ 1159 et seq.

CJS.

51 C.J.S., Labor Relations §§ 55, 119.

§ 71-1-51. Repealed.

Repealed by Laws, 1974, ch. 500, § 21, eff from and after passage (approved April 2, 1974).

[Codes, 1942, § 6998; Laws, 1934, ch. 295]

Editor’s Notes —

Former §71-1-51 concerned inspection of steam boilers.

§ 71-1-53. Penalty for violation of this chapter.

Any corporation or person or manager of any company or partnership who violates any of the provisions of this chapter for which a penalty is not otherwise provided shall be guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than Twenty-five Dollars ($25.00) nor more than Two Hundred Fifty Dollars ($250.00) for each offense; and each day’s violation shall constitute a separate offense.

HISTORY: Codes, Hemingway’s 1917, § 4531; 1930, § 4655; 1942, § 6995; Laws, 1914, ch. 167.

Cross References —

Imposition of standard state assessment in addition to all court imposed fines or other penalties for any misdemeanor violation, see §99-19-73.

§ 71-1-55. Discrimination against breast-feeding mother who uses lawful break time to express milk prohibited.

No employer shall prohibit an employee from expressing breast milk during any meal period or other break period provided by the employer.

HISTORY: Laws, 2006, ch. 520, § 12, eff from and after passage (approved Apr. 3, 2006.).

Chapter 3. Workers’ Compensation

General Provisions

§ 71-3-1. Citation; purpose; construction.

  1. This chapter shall be known and cited as “Workers’ Compensation Law,” and shall be administered by the Workers’ Compensation Commission, hereinafter referred to as the “commission,” cooperating with other state and federal authorities for the prevention of injuries and occupational diseases to workers and, in event of injury or occupational disease, their rehabilitation or restoration to health and vocational opportunity; and this chapter shall be fairly and impartially construed and applied according to the law and the evidence in the record, and, notwithstanding any common law or case law to the contrary, this chapter shall not be presumed to favor one party over another and shall not be liberally construed in order to fulfill any beneficent purposes.
  2. Wherever used in this chapter, or in any other statute or rule or regulation affecting the former Workmen’s Compensation Law and any of its functions or duties:
    1. The words “workmen’s compensation” shall mean “workers’ compensation”; and
    2. The word “commission” shall mean the Workers’ Compensation Commission.
  3. The primary purposes of the Workers’ Compensation Law are to pay timely temporary and permanent disability benefits to every worker who legitimately suffers a work-related injury or occupational disease arising out of and in the course of his employment, to pay reasonable and necessary medical expenses resulting from the work-related injury or occupational disease, and to encourage the return to work of the worker.

HISTORY: Codes, 1942, § 6998-01; Laws, 1948, ch. 354, § 1; Laws, 1960, ch. 275; Laws, 1968, ch. 559, § 1; reenacted without change, Laws, 1982, ch. 473, § 1; Laws, 1984, ch. 408; reenacted without change, Laws, 1990, ch. 405, § 1; Laws, 2012, ch. 522, § 1, eff from and after July 1, 2012.

Editor’s Notes —

Laws of 2012, ch. 522, §§ 10 and 11, provide:

“SECTION 10. The Workers’ Compensation Commission shall promulgate a written statement specifying the changes made to the Workers’ Compensation Law by this act to every employer in this state subject to the Workers’ Compensation Law. Within ten (10) days of receipt of this written statement from the Commission, every employer shall post the Commission’s statement in a conspicuous place or places in and about his place or places of business and adjacent to the Notice of Coverage as required by Section 71-3-81.

“SECTION 11. This act shall take effect and be in force from and after July 1, 2012, and shall apply to injuries occurring on or after July 1, 2012.”

Amendment Notes —

The 2012 amendment rewrote (1) and added (3).

JUDICIAL DECISIONS

1. In general.

2. Validity of statute.

3. Construction.

4. —Causal connection.

5. —Status of employee.

6. —Out-of-state claims.

7. —Exclusiveness of remedy.

8. —Conflicting evidence.

9. Relationship with other laws or claims.

10. Course of employment.

12. Temporary total disability.

1. In general.

Workers’ Compensation Act contemplates three-party agreement among employer, employee, and compensation insurance carrier. Although employer is considered to be insured party, Act views employee as intended beneficiary of insurance contract. Thus, when employer-insured contracts with insurer for benefit of its employee-third party beneficiary, insurer owes same duty to designate a third party as it owes to insured, entity which actually makes contract. McFadden v. Liberty Mut. Ins. Co., 803 F. Supp. 1178, 1992 U.S. Dist. LEXIS 15913 (N.D. Miss. 1992), aff'd, 988 F.2d 1210, 1993 U.S. App. LEXIS 6486 (5th Cir. Miss. 1993).

An employee’s injury did not arise out of and in the course of his employment as a sack boy at a grocery store where the injury occurred when a firecracker which the employee had been given by another worker exploded in his hand, and the store had a policy of no foul play, which included fireworks, so that the employee’s conduct was against the rules of the business; the accident and injury were the result of the employee’s own misuse of and involvement with an object which was prohibited and outside the scope of the employee’s employment, and therefore the injury sustained was not compensable. Mathis v. Nelson's Foodland, Inc., 606 So. 2d 101, 1992 Miss. LEXIS 49 (Miss. 1992).

Decisions of the Mississippi Workers’ Compensation Commission on issues of fact will not be overturned if they are supported by substantial evidence. The Commission is the trier of facts as well as the judge of the credibility of the witnesses. Doubtful cases should be resolved in favor of compensation so as to fulfill the beneficial purposes of the statute. Miller Transporters, Inc. v. Guthrie, 554 So. 2d 917, 1989 Miss. LEXIS 495 (Miss. 1989).

The Workers’ Compensation Commission has no authority to grant declaratory judgments, render advisory opinions, or try equitable issues, or other issues, outside the statutes. Bullock v. Roadway Express, Inc., 548 So. 2d 1306, 1989 Miss. LEXIS 421 (Miss. 1989).

In doubtful cases, the doubt would be resolved in favor of compensation so that the purpose of the Workmen’s Compensation Act may be carried out. Barham v. Klumb Forest Products Center, Inc., 453 So. 2d 1300, 1984 Miss. LEXIS 1843 (Miss. 1984).

It was never the intent of the legislature by enacting the workmen’s compensation law to impair the lawful right to contract. Granite State Ins. Co. v. Marshall, 275 So. 2d 386, 1973 Miss. LEXIS 1363 (Miss. 1973).

The Mississippi Workmen’s Compensation Commission is vested with full and complete jurisdiction to hear and determine claims for benefits under the Workmen's Compensation Law. Everitt v. Lovitt, 192 So. 2d 422, 1966 Miss. LEXIS 1257 (Miss. 1966).

The purpose of the Workmen’s Compensation Law is to facilitate the payment of compensation without delay and without unnecessary cost. H. C. Moody & Sons v. Dedeaux, 223 Miss. 832, 79 So. 2d 225, 1955 Miss. LEXIS 445 (Miss. 1955).

One of the primary purposes of the Workmen’s Compensation Law is to relieve society of the burden of supporting in orphanages or public almshouses helpless children, who have been left without means of support because of the death of wage earners who have lost their lives in industrial accidents, and the benefits of the Law are not limited to children begotten in lawful wedlock. Stanley v. McLendon, 220 Miss. 192, 70 So. 2d 323, 1954 Miss. LEXIS 425 (Miss. 1954).

2. Validity of statute.

The Workmen’s Compensation Law does not violate the constitutional provision that the circuit court shall have original jurisdiction in all matters civil and criminal in the state, not vested by the constitution in some other court. Hartfield v. Standard Oil Co., 220 Miss. 569, 71 So. 2d 449, 1954 Miss. LEXIS 473 (Miss. 1954).

The Workmen’s Compensation Law does not violate the constitutional provision that judges of the civil courts of the state shall, before they proceed to execute the duties of the respective offices, take specified oath or affirmation. Allen v. R. G. Le Tourneau, Inc., 220 Miss. 520, 71 So. 2d 447, 1954 Miss. LEXIS 465 (Miss. 1954).

The Workmen’s Compensation Law does not violate the due process provisions of the state constitution in that it abrogates right of action for personal injuries recognized by the common law, or right of action for personal injury and wrongful death created by statutes; or because it subjects the employer to liability for compensation to his injured employee without regard to any neglect or default on the part of the employer or any other person for whom he is responsible; or because the employee’s rights are interfered with, in that he is prevented from having compensation for injuries arising from the employer’s fault commence with the damages actually sustained, and is limited to the measure of the compensation prescribed by the Law; or because both the employer and the employee are deprived of their liberty to acquire property by being prevented from making such agreement as they may choose to make respecting terms of employment. Walters v. Blackledge, 220 Miss. 485, 71 So. 2d 433, 1954 Miss. LEXIS 464 (Miss. 1954).

The Workmen’s Compensation Law is not invalid because it undertakes to put all laborers or employees in one class, or because it undertakes to compensate persons of widely differing rights, or persons of widely differing ages, or persons of widely differing responsibilities as to their families under one standard of compensation. Walters v. Blackledge, 220 Miss. 485, 71 So. 2d 433, 1954 Miss. LEXIS 464 (Miss. 1954).

The Workmen’s Compensation Law is not unconstitutional because it makes no discrimination between employees who have been guilty of negligence and employees who have exercised due care or because it denies the injured employee the right to have damages assessed by a jury according to the conventional methods of the common law. Walters v. Blackledge, 220 Miss. 485, 71 So. 2d 433, 1954 Miss. LEXIS 464 (Miss. 1954).

The Workmen’s Compensation Law does not impair right of employer and employee to contract. Walters v. Blackledge, 220 Miss. 485, 71 So. 2d 433, 1954 Miss. LEXIS 464 (Miss. 1954).

The Workmen’s Compensation Law does not violate constitutional provision that the right of trial by jury shall remain inviolate inasmuch as that provision guarantees a jury trial only in those cases where a jury was necessary according to the principles of common law. Walters v. Blackledge, 220 Miss. 485, 71 So. 2d 433, 1954 Miss. LEXIS 464 (Miss. 1954).

The Workmen’s Compensation Law does not violate constitutional provision providing that all courts shall be open and that every person, for an injury done him in his lands, goods, person or reputation, shall have the remedy by due process of law, and that right and justice shall be administered without sale, denial or delay. Walters v. Blackledge, 220 Miss. 485, 71 So. 2d 433, 1954 Miss. LEXIS 464 (Miss. 1954).

Workmen’s Compensation Law which allows payments of compensation to acknowledged illegitimate child dependent upon deceased’s labor, and to bigamous wife upon death of the putative husband is not repugnant to the Constitution nor any public policy in regard to bigamy. Pathfinder Coach Div. of Superior Coach Corp. v. Cottrell, 216 Miss. 358, 62 So. 2d 383, 1953 Miss. LEXIS 646 (Miss. 1953).

3. Construction.

Circuit court properly reversed an order of Mississippi’s Workers’ Compensation Commission because an employer was obligated to furnish surgical intervention that a competent treating physician deemed necessary and reasonable, even though another treating physician disagreed with the recommendation. Hardaway Co. v. Bradley, 881 So. 2d 241, 2003 Miss. App. LEXIS 967 (Miss. Ct. App. 2003), rev'd, 887 So. 2d 793, 2004 Miss. LEXIS 1377 (Miss. 2004).

Provisions of the Workers’ Compensation Act are to be construed liberally, and doubtful cases are to be resolved in favor of compensation so that beneficent purposes of Act may be achieved. Holbrook by & Through Holbrook v. Albright Mobile Homes, 703 So. 2d 842, 1997 Miss. LEXIS 636 (Miss. 1997).

Workers’ Compensation claims, and laws that govern them, are to be construed broadly and liberally in favor of claimant. Mississippi Transp. Comm'n v. Dewease, 691 So. 2d 1007, 1997 Miss. LEXIS 142 (Miss. 1997).

The workers’ compensation law is construed liberally and doubtful cases are to be resolved in favor of compensation so that the beneficent purposes of the act may be achieved. Robinson v. Packard Electric Div., General Motors Corp., 523 So. 2d 329, 1988 Miss. LEXIS 199 (Miss. 1988).

To totally bar an injured employee of an independent contractor performing work on the premises of another from recovering on a third-party claim against that landowner for injuries sustained as a result of negligence on the part of one of such landowner’s employees who was not a loaned servant of the independent contractor would totally undermine the purpose, letter and spirit of the Mississippi Workman's Compensation Act. Ramsey v. Georgia-Pacific Corp., 511 F. Supp. 393, 1981 U.S. Dist. LEXIS 9498 (S.D. Miss. 1981), aff'd, 671 F.2d 1376, 1982 U.S. App. LEXIS 21589 (5th Cir. Miss. 1982).

A route salesman who stopped to assist an apparently disabled motorist and who was rendered permanently and totally disabled when the motorist struck him with a gun was entitled to workmen’s compensation, despite the employer’s contention that his injuries did not arise out of and in the course of his employment within the meaning of §71-3-3(b); an employer may reasonably foresee that his traveling employee will stop to aid a distressed motorist when implored to do so, and since the present claimant’s injury resulted from a humanitarian act which was literally thrown into his path because of his employment, the employee was entitled to compensation. The singular purpose pervading the Workmen’s Compensation Act is to promote the welfare of laborers within the state, and it should be construed fairly to further its humanitarian aims. Big "2" Engine Rebuilders v. Freeman, 379 So. 2d 888, 1980 Miss. LEXIS 1834 (Miss. 1980).

The 1960 amendment to this section [Code 1942, § 6998-01] which added the statement that the Workmen’s Compensation Law should be “fairly construed” is not indicative of any ascertainable or judicially determinable legislative intent, and did not abrogate the rule of liberal construction. L. B. Priester & Son, Inc. v. Bynum, 244 Miss. 185, 137 So. 2d 907, 1962 Miss. LEXIS 438 (Miss. 1962).

The 1960 amendment to this section [Code 1942, § 6998-01] stating that “this act shall be fairly construed according to the law and the evidence” did not cause any substantive change in its interpretation and application, since the same purpose manifestly and necessarily existed when the original statute was enacted in 1948. L. B. Priester & Son, Inc. v. Bynum, 244 Miss. 185, 137 So. 2d 907, 1962 Miss. LEXIS 438 (Miss. 1962).

The Workmen’s Compensation Law must receive a common-sense and a liberal construction in the light of the legislative purpose. Ross v. Ross, 240 Miss. 84, 126 So. 2d 512, 1961 Miss. LEXIS 434 (Miss. 1961).

The amendment of 1960 substituting a fair interpretation for the previous liberal interpretation of the Workmen’s Compensation Law is not applicable to cases of injuries sustained prior thereto. Mississippi Highway Patrol v. Dependents of Neal, 239 Miss. 505, 124 So. 2d 120, 125 So. 2d 544, 1960 Miss. LEXIS 315 (Miss. 1960).

There should be accorded to the Workmen’s Compensation Law a broad, liberal construction that doubtful cases should be resolved in favor of compensation and that the humane purposes for which these acts seek to serve leave no room for narrow technical constructions. Central Electric Power Asso. v. Hicks, 236 Miss. 378, 110 So. 2d 351, 112 So. 2d 230, 1959 Miss. LEXIS 330 (Miss. 1959).

The Workmen’s Compensation Law is to be liberally construed. Employers Liability Ins. Co. v. Haltom, 235 Miss. 74, 108 So. 2d 29, 1959 Miss. LEXIS 404 (Miss. 1959).

Under the Workmen’s Compensation Law a minor employee may maintain a suit for compensation benefits and may receive payments, in the absence of statutory provisions to the contrary. H. C. Moody & Sons v. Dedeaux, 223 Miss. 832, 79 So. 2d 225, 1955 Miss. LEXIS 445 (Miss. 1955).

Although evasions of coverage under the Workmen’s Compensation Law should not be permitted, the courts must balance the terms of this legislation against the rights of persons to create a legitimate contractual relationship of vendor and vendee. Nelson v. Slay, 216 Miss. 640, 63 So. 2d 46, 1953 Miss. LEXIS 679 (Miss. 1953).

A denial of an award, however harsh it may be construed by an employee, points up the purpose of the Workmen’s Compensation Law to grant compensation under liberal interpretation, and at the same time to require, in the interest of the carrier of the employer, compliance with the prerequisite conditions. Ingalls Shipbuilding Corp. v. Byrd, 215 Miss. 234, 60 So. 2d 645, 1952 Miss. LEXIS 558 (Miss. 1952).

The Workmen’s Compensation Law should be given a liberal interpretation in order to effect its salutary purposes but sight must not be lost of the fact that it is the duty of the court to construe the Law as it is written. Brookhaven Steam Laundry v. Watts, 214 Miss. 569, 55 So. 2d 381, 1951 Miss. LEXIS 521 (Miss. 1951).

4. —Causal connection.

Mississippi Workers’ Compensation Commission’s decision that a worker suffered an accidental injury, pursuant to Miss. Code Ann. §71-3-3(b), within the course and scope of the worker’s employment, pursuant to Miss. Code Ann. §71-3-1(3), was not contrary to the overwhelming weight of the evidence because, although no one saw the worker pick a tire up and injure the worker’s back, the worker informed the worker’s supervisor immediately following the injury, and the supervisor testified that the worker emerged from beneath a van, stood up, and stated that the worker’s back was bothering the worker. The only contradictory evidence presented was by the store manager, who claimed that the worker never said that the worker hurt the worker’s back; however, the manager did admit that the worker complained of the worker’s back hurting, and the administrative judge found that the testimony of the worker was definitely more credible than that of the store manager. Performance Tire & Wheel, Inc. v. Rhoads, 113 So.3d 1262, 2013 Miss. App. LEXIS 195 (Miss. Ct. App. 2013).

The Workers’ Compensation Commission’s denial of benefits to an asthmatic employee would be reversed, even though a physician testified that there was not a “strong work-related causal connection between [the employee’s] pneumonia and emphysema,” where medical testimony established a causal connection between the exacerbation of her pre-existing respiratory problems and the inhalation of irritants in her work environment, and the employee’s uncontroverted testimony of the onset pain in her side and back along with shortness of breath while she was performing her job duties established that her injury arose out of and in the course of her employment. Hedge v. Leggett & Platt, 641 So. 2d 9, 1994 Miss. LEXIS 362 (Miss. 1994).

A circuit court judgment affirming the Workers’ Compensation Commission’s denial of benefits to a deceased employee’s children was not supported by substantial evidence and would be reversed where the onset of the employee’s death occurred at her place of employment and the employer failed to rebut the presumption that the employee’s work activities did not cause or contribute to the condition from which she died; the unrebutted “found dead” legal presumption prevailed, satisfying the causal connection between the employee’s work duties and the condition which resulted in her death. Nettles v. Gulf City Fisheries, 629 So. 2d 554, 1993 Miss. LEXIS 545 (Miss. 1993).

A groundskeeper’s aid was not acting within the scope of his employment when he drowned in a swimming pool, and therefore his parents were not barred by the exclusive remedy provisions of the Mississippi Workers’ Compensation Act from bringing a wrongful death action on his behalf, where the employee was not required by his job duties to be in the vicinity of the swimming pool, he was supposed to be hoeing grass from a sidewalk outside the fence surrounding the pool at the time he entered the pool area, and the employer had specifically instructed the employee to stay away from the pool because he could not swim. Estate of Brown by Brown v. Pearl River Valley Opportunity, 627 So. 2d 308, 1993 Miss. LEXIS 421 (Miss. 1993).

A claimant failed to make the requisite showing that her mental condition was causally connected to her employment where 2 doctors testified that the claimant had suffered from psychological disorders prior to the incident alleged to have caused her mental injury, the Workers’ Compensation Commission found the testimony of another doctor, who diagnosed the claimant as having severe post-traumatic stress disorder and major depression with some psychotic symptoms, to be unconvincing, and the incident alleged to have caused the claimant’s mental injury-a private meeting with her supervisor during which the supervisor threatened to fire her-was not an “untoward event.” Bates v. Countrybrook Living Center, 609 So. 2d 1247, 1992 Miss. LEXIS 589 (Miss. 1992).

The evidence was sufficient to support the Workers’ Compensation Commission’s finding that a claimant’s hypertension was work-related, thus obliging the claimant’s former employer to pay for medical expenses incurred by the claimant for periodic checkups for his hypertensive condition as ordered by his treating physician, where the claimant began to experience tension, anxiety and stomach problems, which the physician diagnosed as hypertension, during the time the claimant worked for the employer, and the physician concluded that the claimant’s job caused him to experience significant stress which aggravated his hypertensive condition so as to require him to take a medical leave of absence. Berry v. Universal Mfg. Co., 597 So. 2d 623, 1992 Miss. LEXIS 151 (Miss. 1992).

The evidence was sufficient to support the Workers’ Compensation Commission’s finding that an employee’s mental disability was caused by a deliberate course of conduct by his employer and that there was nothing in his psychological background to suggest a pre-existing personality disorder, so that the stresses to which the employee was subjected were “more than the ordinary incidents of employment” and were “untoward events or unusual occurrences” culminating in his subsequent disability, where a psychiatrist who treated the employee for over 2 years testified that the employee was psychologically disabled and that his work played a significant part in causing it, and testimony from the employee, the employee’s wife, and fellow employees established a protracted pattern by the employer to put pressure and stress upon the employee. Borden, Inc. v. Eskridge, 604 So. 2d 1071, 1991 Miss. LEXIS 795 (Miss. 1991).

A doctor’s inability to pinpoint the exact physical cause of an employee’s disability did not alone defeat the employee’s claim for compensation, given the beneficent purpose of the Workers’ Compensation Act, where there was uncontradicted testimony that the employee was injured while performing his job and that he was totally and permanently disabled. Trest v. B.C. Rogers Processors, Inc., 592 So. 2d 110, 1991 Miss. LEXIS 981 (Miss. 1991).

The evidence was sufficient to support a finding by the Workers’ Compensation Commission that noise at an employee’s work site was a contributing, precipitating, or aggravating factor in the production of Meniere’s Syndrome, even though the etiology of Meniere’s Syndrome is largely unknown, where there was substantial evidence that exposure to high intensity noise for a period of years at the work site contributed to, aggravated or accelerated the employee’s condition, and this evidence was not controverted by any direct medical evidence. Georgia-Pacific Corp. v. Gregory, 589 So. 2d 1250, 1991 Miss. LEXIS 763 (Miss. 1991).

The injury arises out of and in the course the employment if the employment aggravates, accelerates, or contributes to the disability as opposed to being the sole or principal cause. Fought v. Stuart C. Irby Co., 523 So. 2d 314, 1988 Miss. LEXIS 86 (Miss. 1988).

As general rule employer is not liable for acts of employees going to and returning from work; employer is not liable for act of employee while employee is driving home from work where employee was not being paid hourly wage at time of accident and was not on special mission and was not engaged in furtherance of employer’s work even though employee was compensated $6 per day for travel expenses. Smith v. Anderson-Tulley Co., 608 F. Supp. 1143, 1985 U.S. Dist. LEXIS 19919 (S.D. Miss. 1985), aff'd, 846 F.2d 751, 1988 U.S. App. LEXIS 5962 (5th Cir. Miss. 1988).

Mere fact that employee obtains worker’s compensation benefits from accident is insufficient to show that employee was acting within scope of employment at time of accident, thereby subjecting employer to vicarious liability. Smith v. Anderson-Tulley Co., 608 F. Supp. 1143, 1985 U.S. Dist. LEXIS 19919 (S.D. Miss. 1985), aff'd, 846 F.2d 751, 1988 U.S. App. LEXIS 5962 (5th Cir. Miss. 1988).

When an employee is found dead at a place where his duties required him to be or where he might properly have been in performing his duties during the hours of his work, there is a presumption of causal connection between the injury or death and the employment. Leake County Cooperative v. Dependents of Barrett, 226 So. 2d 608, 1969 Miss. LEXIS 1306, 1969 Miss. LEXIS 1307 (Miss. 1969).

In view of the 1960 amendment imposing on the court the duty of fairly construing the Workmen’s Compensation Law according to the law and evidence, reversal was required where the workmen’s compensation commission’s and circuit court’s order denying compensation and medical benefits on the ground that there was no causal connection between the decedent’s employment duties and the rupture of the aneurysm causing his death was not supported by substantial evidence. Dependent of Payton v. Armstrong Tire & Rubber Co., 250 Miss. 407, 165 So. 2d 336, 1964 Miss. LEXIS 471 (Miss. 1964).

The test of recovery under Workmen’s Compensation Law is not a causal relation between the nature of employment of the injured person and the accident, nor is it necessary that the employee be engaged at the time of the injury in activity of benefit to his employer, and all that is required is that the obligations or conditions of employment create a zone of special danger out of which the injury arose. Brookhaven Steam Laundry v. Watts, 214 Miss. 569, 55 So. 2d 381, 1951 Miss. LEXIS 521 (Miss. 1951).

5. —Status of employee.

An employer’s workers’ compensation carrier would be liable for the injuries of an employee who was injured while changing a neighboring business’ outdoor advertising sign where the employer had a policy of goodwill toward its business neighbors, which included changing the sign for the neighboring business, and the employees were expected to help foster the goodwill policy; since the employee acted in conformity with his employer’s dictates, he acted in the course and scope of his employment, and was not a loaned servant to the neighboring business. Quick Change Oil & Lube v. Rogers, 663 So. 2d 585, 1995 Miss. LEXIS 582 (Miss. 1995).

A defendant who has successfully defended an action for personal injuries resulting from a beating the plaintiff received from defendant’s foreman, on the ground that the relationship of employer-employee existed between defendant and plaintiff, cannot thereafter challenge the applicability of the Workmen’s Compensation Law to the plaintiff’s claim; provided claim for benefits is timely filed within the time extended by Code 1942, § 6998-18(c) beginning with the date of the order dismissing plaintiff’s appeal. Seal v. Industrial Electric, Inc., 395 F.2d 214, 1968 U.S. App. LEXIS 6987 (5th Cir. Miss. 1968).

Liability under Workmen’s Compensation Law is not to be adjudged by the common law principles wherein negligence or wrongful act is a controlling factor, but yet the status of the employee as such at the time of the injury may be revealed from decisions which have supplied helpful analogies. Barry v. Sanders Co., 211 Miss. 656, 52 So. 2d 493, 1951 Miss. LEXIS 396 (Miss. 1951).

6. —Out-of-state claims.

An award of workmen’s compensation in another state will not bar a claim in Mississippi unless the act under which the award is made provides that it shall be exclusive, where the prior award is credited on the second award. Harrison Co. v. Norton, 244 Miss. 752, 146 So. 2d 327, 1962 Miss. LEXIS 504 (Miss. 1962).

7. —Exclusiveness of remedy.

Given the considerable amount of testimony offered by the employees and the management personnel regarding the employer’s refusal to install an appropriate ventilation system on the glue line despite its knowledge of the harmful effects of the neurotoxin contained in the adhesive the intentional tort exception under Miss. Code Ann. §71-3-9 to the Mississippi Workers’ Compensation Act. Miss. Code Ann. §§71-3-1 et seq., clearly applied. Franklin Corp. v. Tedford, 18 So.3d 215, 2009 Miss. LEXIS 426 (Miss. 2009).

In a Title VII racial discrimination case in which an employee’s claim for negligent infliction of emotional distress was not barred by the three-year limitation period in Miss. Code Ann. §15-1-49, the claim nonetheless failed since a claim for negligent infliction of emotional distress did not arise from acts of intentional discrimination. Furthermore, any state tort claim grounded in negligence asserted by the employee would be barred by the exclusive remedy provision of the Mississippi Workers' Compensation Law. Fortenberry v. Gulf Coast Cmty. Action Agency, Inc., 2007 U.S. Dist. LEXIS 89831 (S.D. Miss. Dec. 5, 2007).

Company hired to complete specific drilling project for worker’s employer was independent contractor and, thus, was not immune from negligence suit under exclusive remedy provision of workers’ compensation law as company was sufficiently outside of employer’s right to control to assume responsibility for torts of employees. Luther McGill, Inc. v. Bradley, 674 So. 2d 11, 1996 Miss. LEXIS 210 (Miss. 1996).

The existence of a contract for indemnity changes the applicability of the exclusivity provision of the Workers’ Compensation Act; the enforcement of an indemnity clause which was freely entered into does not impugn the beneficent purposes of the Act because the employee will still be compensated. Heritage Cablevision v. New Albany Elec. Power Sys., 646 So. 2d 1305, 1994 Miss. LEXIS 599 (Miss. 1994).

A pipeline operator which contracted with an injured welder’s employer for the construction of a pipeline was not immune from tort liability on the ground of the “statutory employer” defense; since the pipeline operator was not a “contractor,” and because the employer had secured compensation for the welder’s benefit, the Workers’ Compensation Act imposed no duty on the pipeline operator and, accordingly, the pipeline operator enjoyed no benefits under the Act. The pipeline operator could not gain tort immunity by assuming compensation obligations which in fact and in law it did not have. Magee v. Transcontinental Gas Pipe Line Corp., 551 So. 2d 182, 1989 Miss. LEXIS 365 (Miss. 1989).

Exception to exclusivity of Workers Compensation Act remedy has been held to exist in actions by injured employees against carriers for independent intentional torts, but in those cases alleged tortious conduct occurred independent of and subsequent to workplace injury. Stevens v. FMC Corp., 515 So. 2d 928, 1987 Miss. LEXIS 2883 (Miss. 1987).

Negligence action by employee of drilling company who was injured when part of drilling rig fell on him, against company which transported rig to drilling site, is precluded by exclusive remedy provision of Mississippi Workers’ Compensation Act (§§71-3-1 et seq.), since transport company employees were “loaned servants” of drilling company, and since any negligence attributable to transport company employees occurred while they were under supervision of drilling company. Taylor v. Kay Lease Service, Inc., 761 F.2d 1107, 1985 U.S. App. LEXIS 30089 (5th Cir. Miss. 1985).

An employee did not have the common law right to sue a fellow employee who allegedly shot him where, on the occasion at issue, both were acting within the scope of and in the furtherance of their duties as employees and were therefore covered by the state workmen’s compensation law. Kipnis v. Antoine, 472 F. Supp. 215, 1979 U.S. Dist. LEXIS 13402 (N.D. Miss. 1979).

Where the employer secured the payment of compensation to his employees by qualifying as a self-insurer, the remedy of an employee arises only under the Workmen’s Compensation Law, and that statutory remedy being exclusive, no action at law is available to the employee. Taylor v. Crosby Forest Products Co., 198 So. 2d 809, 1967 Miss. LEXIS 1271 (Miss. 1967).

In an action for damages brought by an employee against his employer resulting from a beating perpetrated by his foreman, the employer who alleged that the exclusive remedy was under the workmen’s compensation statutes was required to assert as an affirmative defense that the assault upon the employee was one which arose out of the scope and course of his employment. Seal v. Industrial Electric, Inc., 362 F.2d 788, 1966 U.S. App. LEXIS 5710 (5th Cir. Miss. 1966).

8. —Conflicting evidence.

Where there was conflicting medical evidence regarding a claimant’s lumbar condition and her need for lumbar spine injury, an appellate court could not say that the Workers’ Compensation Commission’s decision to deny benefits was arbitrary and capricious. Washington v. Woodland Vill. Nursing Home, 25 So.3d 341, 2009 Miss. App. LEXIS 108 (Miss. Ct. App. 2009), cert. denied, 24 So.3d 1038, 2010 Miss. LEXIS 2 (Miss. 2010).

A finding that a claimant was not entitled to permanent disability benefits because his disability, which arose from slippage in the spine, was attributable entirely to preexisting spondylolisthesis was not supported by substantial evidence where there was conflicting medical testimony from 2 treating physicians as to the cause of the claimant’s permanent disability and neither physician could determine how and when the slippage actually occurred, since close questions of compensability should be resolved in favor of the claimant, and the Workers’ Compensation Act should be liberally construed to carry out its remedial purpose. McNeese v. Cooper Tire & Rubber Co., 627 So. 2d 321, 1993 Miss. LEXIS 444 (Miss. 1993).

Employee’s injury was compensable under the Workers’ Compensation Act because the Act was to be construed liberally in favor of claimants and because there was no doubt that a doctor’s expert medical opinion supported the Workers’ Compensation Commission’s decision regarding the employee’s injury; while there was a conflict in expert medical opinion, the appellate court was not permitted to resolve conflicts in the evidence based on its mandated presumption that the commission resolved all such conflicts. Union Camp Corp. v. Hall, 955 So. 2d 363, 2006 Miss. App. LEXIS 696 (Miss. Ct. App. 2006), cert. dismissed, 956 So. 2d 228, 2007 Miss. LEXIS 215 (Miss. 2007).

There was substantial evidence in a physician’s testimony to support the Workers’ Compensation Commission’s determination as to the date a claimant reached maximum medical recovery, and therefore the circuit court erred in finding a different date based on the opinion of another physician. Jordan v. Hercules, Inc., 600 So. 2d 179, 1992 Miss. LEXIS 224 (Miss. 1992), but see Dulaney v. National Pizza Co., 733 So. 2d 301, 1998 Miss. App. LEXIS 990 (Miss. Ct. App. 1998).

Where the medical evidence in a heart case is conflicting, the court will affirm the commission whether the award is for or against the claimant. Kersh v. Greenville Sheet Metal Works, 192 So. 2d 266, 1966 Miss. LEXIS 1239 (Miss. 1966).

9. Relationship with other laws or claims.

For exhaustion of remedies purposes, a final order was not entered until an administrative law judge made a full resolution of a final decision because the parties in a worker’s compensation dispute had reserved the issue of temporary and permanent disability for a hearing on the merits. Bullock v. AIU Ins. Co., 2008 Miss. LEXIS 221 (Miss. May 8, 2008), op. withdrawn, sub. op., 995 So. 2d 717, 2008 Miss. LEXIS 595 (Miss. 2008).

Claim decided adversely to asbestosis claimant under the Longshoremen’s and Harbor Workers’ Compensation Act was res judicata on claim under Mississippi Workers’ Compensation, as every factual issue under the Mississippi Act, including the issue of notice to the employer, was litigated and decided adversely to claimant in the Longshoremen’s Act proceedings. Ingalls Shipbuilding Div., Litton Systems, Inc. v. Parson, 495 So. 2d 461, 1986 Miss. LEXIS 2663 (Miss. 1986).

Employee’s receipt of benefits under Federal Employee’s Compensation Act (5 USCS §§ 8101 et seq.) bars action against co-employee since Federal Government and its agencies are not excluded from coverage of provisions of Mississippi Worker's Compensation Act. Wilkins v. Swift, 616 F. Supp. 123, 1985 U.S. Dist. LEXIS 20962 (N.D. Miss. 1985).

In an action by an employee for actual and punitive damages against an employer on the ground that the employee had been discharged when he refused to drop a workman’s compensation claim against the employer, the trial court properly sustained the employer’s demurrer where there is no provision in the Mississippi Workman’s Compensation Law for relief in cases of retaliatory discharge and where such an exception to the common law rule that a contract of employment for an indefinite term may be terminated at the will of either party rests solely within the power of the Legislature and should not be undertaken by the judiciary. Kelly v. Mississippi Valley Gas Co., 397 So. 2d 874, 1981 Miss. LEXIS 1913 (Miss. 1981).

The filing of a claim under the Mississippi Workmen’s Compensation Act tolls the Longshoreman’s and Harbor Workers’ Compensation Act one-year statute of limitations. Ingalls Shipbuilding Div., Litton Systems, Inc. v. Hollinhead, 571 F.2d 272, 1978 U.S. App. LEXIS 11684 (5th Cir. 1978).

10. Course of employment.

Employer did not show the found-dead presumption presuming a worker found dead at the worker’s place of employment died in the course of the employment was no longer the law because (1) the presumption had not been statutorily eliminated, and (2) the presumption remained codified within the definition of what constitutes an injury. Baptist Mem. Hospital-North Miss. Inc. v. Slate, — So.3d —, 2019 Miss. App. LEXIS 483 (Miss. Ct. App. Oct. 1, 2019).

Employee was not entitled to workers’ compensation benefits for injuries arising out of an accident that occurred during her lunch hour while the employee was crossing a public street because the employee was not a traveling employee, the personal comfort doctrine was not applicable, and the threshold doctrine was not applicable. The employee’s injuries did not take place during the course of her employment. Bouldin v. Miss. Dep't of Health, 1 So.3d 890, 2008 Miss. App. LEXIS 437 (Miss. Ct. App. 2008), cert. denied, 999 So. 2d 1280, 2009 Miss. LEXIS 11 (Miss. 2009).

Mississippi Supreme Court’s line of cases, following Mutual Implement & Hardware Insurance Co. v. Pittman, 59 So. 2d 547 , beginning shortly after enactment of the Mississippi Workers’ Compensation Act (MWCA), Miss. Code Ann. §71-3-1 et seq., in 1942, implicitly relied on a presumption that willful assaults by co-workers were accidental. In Pittman, the court held such attacks to be risks incident to employment of many persons and therefore compensable under the MWCA, and in Pittman and later cases, the Mississippi court focused on whether an assault arose “out of and in the course of employment” rather than focusing on the intent of the assailant. Tanks v. Lockheed Martin Corp, 417 F.3d 456, 2005 U.S. App. LEXIS 14539 (5th Cir. Miss. 2005).

12. Temporary total disability.

Temporary total disability award for six weeks and permanent partial disability award for 50 weeks and a finding that an employee reached maximum medical improvement on April 2, 1998, under Miss. Code Ann. §71-3-1, based upon the testimony of a hand specialist and his release of the claimant the next day to return to work, even though he continued to treat the claimant, was proper. Allegrezza v. Greenville Mfg. Co., 122 So.3d 755, 2012 Miss. App. LEXIS 594 (Miss. Ct. App. 2012), aff'd, 122 So.3d 719, 2013 Miss. LEXIS 474 (Miss. 2013).

Mississippi Workers’ Compensation Commission properly found that a claimant was not permanently and totally disabled due to a back injury as the plant had been closed for years before the hearing, and a physical therapist testified that with proper safety techniques, the claimant could perform all aspects of the job assigned to her by the employer. Allegrezza v. Greenville Mfg. Co., 122 So.3d 755, 2012 Miss. App. LEXIS 594 (Miss. Ct. App. 2012), aff'd, 122 So.3d 719, 2013 Miss. LEXIS 474 (Miss. 2013).

OPINIONS OF THE ATTORNEY GENERAL

Under Miss. Code Ann. §21-19-25, a municipality may require proof of general liability insurance and workers’ compensation coverage when required by Miss. Code Ann. §71-3-1 et seq., as conditions for the issuance of a municipal building permit. Hedglin, March 23, 2007, A.G. Op. #07-00133, 2007 Miss. AG LEXIS 119.

RESEARCH REFERENCES

ALR.

Constitutional or statutory provision referring to “employees” as including public officers. 5 A.L.R.2d 415.

Application for, or award, denial, or acceptance of, compensation under state workmen’s compensation act as precluding action under Federal Employers’ Liability Act by one engaged in interstate commerce within that act. 6 A.L.R.2d 581.

Homeowners’ or personal liability insurance as providing coverage for liability under workmen’s compensation laws. 41 A.L.R.3d 1306.

Workmen’s compensation provision as precluding employee’s action against employer for fraud, false imprisonment, defamation, or the like. 46 A.L.R.3d 1279.

Workmen’s compensation: injury sustained while attending employer-sponsored social affair as arising out of and in the course of employment. 47 A.L.R.3d 566.

Mental disorders as compensable under workmen’s compensation acts. 97 A.L.R.3d 161.

Workers’ compensation immunity as extending to one owning controlling interest in employer corporation. 30 A.L.R.4th 948.

Recovery for discharge from employment in retaliation for filing workers’ compensation claim. 32 A.L.R.4th 1221.

Workers’ compensation: injuries incurred during labor activity. 61 A.L.R.4th 196.

Workers’ compensation: value of home services provided by victim’s relative. 65 A.L.R.4th 142.

“Dual Capacity Doctrine” as basis for employee’s recovery for medical malpractice from company medical personnel. 73 A.L.R.4th 115.

Validity, construction, and effect of statutory exemptions of proceeds of workers’ compensation awards. 48 A.L.R.5th 473.

Workers’ compensation as precluding employee’s suit against employer for sexual harassment in the workplace. 51 A.L.R.5th 163.

Right to workers’ compensation for emotional distress or like injury suffered as result of sudden stimuli involving nonpersonnel action. 83 A.L.R.5th 103.

Am. Jur.

82 Am. Jur. 2d, Workers’ Compensation § 2.

24 Am. Jur. Proof of Facts 2d 439, “Casual Worker” Under Workers’ Compensation Act.

48 Am. Jur. Proof of Facts 2d 1, Worker’s Compensation – Employer’s Intentional Misconduct.

50 Am. Jur. Proof of Facts 2d 187, Discharge from Employment in Retaliation for Filing Worker’s Compensation Claim.

CJS.

99 C.J.S., Workers’ Compensation § 11-19.

Law Reviews.

1979 Mississippi Supreme Court Review: Administrative Law. 50 Miss. L. J. 699.

1981 Mississippi Supreme Court Review: Administrative Law. 52 Miss. L. J. 377, June 1982.

1984 Mississippi Supreme Court Review: Administrative Law. 55 Miss. L. J. 25.

Practice References.

Larson’s Workers’ Compensation, Desk Edition (Matthew Bender).

Larson’s Workers’ Compensation Law (Matthew Bender).

Mississippi Workers’ Compensation Laws and Rules Annotated, 2010 Edition with CD-Rom (Michie).

§ 71-3-3. Definitions.

Unless the context otherwise requires, the definitions which follow govern the construction and meaning of the terms used in this chapter:

“Person” includes an individual, firm, voluntary association or a corporation.

“Injury” means accidental injury or accidental death arising out of and in the course of employment without regard to fault which results from an untoward event or events, if contributed to or aggravated or accelerated by the employment in a significant manner. Untoward event includes events causing unexpected results. An untoward event or events shall not be presumed to have arisen out of and in the course of employment, except in the case of an employee found dead in the course of employment. This definition includes injuries to artificial members, and also includes an injury caused by the willful act of a third person directed against an employee because of his employment while so employed and working on the job, and disability or death due to exposure to ionizing radiation from any process in employment involving the use of or direct contact with radium or radioactive substances with the use of or direct exposure to roentgen (X-rays) or ionizing radiation. In radiation cases only, the date of disablement shall be treated as the date of the accident. Occupational diseases, or the aggravation thereof, are excluded from the term “injury,” provided that, except as otherwise specified, all provisions of this chapter apply equally to occupational diseases as well as injury.

“Death,” when mentioned as a basis for the right to compensation, means only death resulting from such an injury.

“Employee” means any person, including a minor whether lawfully or unlawfully employed, in the service of an employer under any contract of hire or apprenticeship, written or oral, express or implied, provided that there shall be excluded therefrom all independent contractors and especially any individual performing service in, and at the time of, the sale of newspapers or magazines to ultimate consumers under an arrangement under which the newspapers or magazines are to be sold by the individual at a fixed price, the individual’s compensation being based on the retention of the excess of such price over the amount at which the newspapers or magazines are charged to the individual, whether or not the individual is guaranteed a minimum amount of compensation for such service or is entitled to be credited with the unsold newspapers or magazines returned. A student of an educational institution who, as a part of such educational institution’s curriculum, is receiving practical training at any facility, who is under the active and direct supervision of the personnel of the facility and/or an instructor of the educational institution, and who is not receiving wages as a consequence of participation in such practical training shall not be considered an employee of such facility on account of participation in such practical training.

“Employer,” except when otherwise expressly stated, includes a person, partnership, association, corporation and the legal representatives of a deceased employer, or the receiver or trustee of a person, partnership, association or corporation.

“Carrier” means any person authorized in accordance with the provisions of this chapter to insure under this chapter and includes self-insurers.

“Self-insurer” is an employer who has been authorized under the provisions of this chapter to carry his own liability on his covered employees without insuring in a stock or mutual carrier.

“Commission” means the Workers’ Compensation Commission.

“Disability” means incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or other employment, which incapacity and the extent thereof must be supported by medical findings.

“Compensation” means the money allowance payable to an injured worker or his dependents as provided in this chapter, and includes funeral benefits provided therein.

“Wages” includes the money rate at which the service rendered is recompensed under the contract of hiring in force at the time of injury, and also the reasonable value of board, rent, housing, lodging or similar advantage received from the employer and gratuities received in the course of employment from others than the employer. The term “wages” shall not include practical training received by students of an educational institution as a part of such educational institution’s curriculum.

“Child” shall include a posthumous child, a child legally adopted prior to the injury of the employee, a child in relation to whom the deceased employee stood in the place of a parent for at least one (1) year prior to the time of injury and a stepchild or acknowledged illegitimate child dependent upon the deceased, but does not include married children unless wholly dependent on him. “Grandchild” means a child as above defined of a child as above defined. “Brother” and “sister” include stepbrothers and stepsisters, half brothers and half sisters, and brothers and sisters by adoption, but does not include married brothers nor married sisters unless wholly dependent on the employee. “Child,” “grandchild,” “brother” and “sister” include only persons who are under eighteen (l8) years of age, and also persons who, though eighteen (l8) years of age or over, are wholly dependent upon the deceased employee and incapable of self-support by reason of mental or physical disability, and also a child eighteen (18) years of age or older, until his twenty-third birthday, who is dependent upon the deceased and is pursuing a full-time education.

“Parent” includes stepparents and parents by adoption, parents-in-law or any person who for more than three (3) years prior to the death of the deceased employee stood in the place of a parent to him, or her, if dependent on the injured employee.

The term “surviving spouse” includes the decedent’s legal wife or husband, living with him or her or dependent for support upon him or her at the time of death or living apart for justifiable cause or by reason of desertion at such time, provided, however, such separation had not existed for more than three (3) years without an award for separate maintenance or alimony or the filing of a suit for separate maintenance or alimony in the proper court in this state. The term “surviving spouse” shall likewise include one not a legal wife or husband but who had entered into a ceremonial marriage with the decedent at least one (1) year prior to death and who, on the date of the decedent’s death, stood in the relationship of a wife or husband, provided there was no living legal spouse who had protected her or his rights for support by affirmative action as hereinabove required. The term “surviving spouse” as contemplated in this chapter shall not apply to any person who has, since his or her separation from decedent, entered into a ceremonial marriage or lived in open adultery with another.

The term “adoption” or “adopted” means legal adoption prior to the time of the injury.

The singular includes the plural and the masculine includes the feminine and neuter.

It is expressly provided, agreed and understood in determining beneficiaries under this section that a surviving spouse suffering a mental or physical handicap and children under the age of eighteen (18) years are presumed to be dependent.

“Independent contractor” means any individual, firm or corporation who contracts to do a piece of work according to his own methods without being subject to the control of his employer except as to the results of the work, and who has the right to employ and direct the outcome of the workers independent of the employer and free from any superior authority in the employer to say how the specified work shall be done or what the laborers shall do as the work progresses, one who undertakes to produce a given result without being in any way controlled as to the methods by which he attains the result.

“Average weekly wage for the state” means an amount determined by the commission as of October 1 of each year based upon wage and employment statistics reported to the commission by the Mississippi Employment Security Commission. Such amount shall be based upon data for the preceding twelve-month period and shall be effective from and after January 1 of the following year.

HISTORY: Codes, 1942, § 6998-02; Laws, 1948, ch. 354, § 2; Laws, 1950, ch. 412, § 1; Laws, 1956, ch. 344; Laws, 1960, ch. 276; Laws, 1962, ch. 473; Laws, 1968, ch. 559, § 2; Laws, 1980, ch. 475, § 1; reenacted, Laws, 1982, ch. 473, § 2; Laws, 1984, ch. 499, § 1; Laws, 1988, ch. 446, § 1; reenacted without change, Laws, 1990, ch. 405, § 2; Laws, 1991, ch. 495, § 1, eff from and after July 1, 1991.

Editor's Notes —

Laws of 1988, ch. 446, § 6, provides as follows:

“SECTION 6. This act shall take effect and be in force from and after July 1, 1988; provided, however, the increase in benefits allowed under this act shall apply only to claims arising on or after July 1, 1988”.

Section 71-5-101 provides that wherever the term “Employment Security Commission” appears in any law it shall mean the “Mississippi Department of Employment Services.”

Cross References —

Application of chapter where there is no employer-employee relationship as defined in this section, see §71-3-5.

Application of this section to the definition of “compensation”, see §71-3-157.

JUDICIAL DECISIONS

1. In general.

2. Compensation.

3. Death.

4. Dependents, generally.

5. —Brothers and sisters.

6. —Children, generally.

7. — —Adopted children.

8. — —Grandchildren.

9. — —Illegitimate children.

10. — —Step children.

11. —Parents.

12. —Surviving spouse, generally.

13. — —Common-law spouse.

14. — —Separation.

15. — —Divorce.

16. Dependency, presumption of.

17. Disability.

18. Employee, generally.

19.— Burden of proof.

20.— Factors.

21.— Independent contractor.

22.— Particular persons.

23. Injury, generally.

24. — Caused by co-employees.

25.— Caused by third persons.

26.— Other particular causes of injuries.

27.— Mental injuries.

28. —Occupational diseases.

29. —Other particular injuries.

30.— Proof of injuries.

31. Going and coming rule.

1. In general.

Substantial evidence supported the finding of the Mississippi Worker’s Compensation Commission that the employee, a 61-year-old heavy equipment operator, was permanently and totally disabled due to spinal stenosis and related complications. While the medical evidence was in dispute as to whether he had suffered a total or partial permanent injury, it was a dispute to be resolved by the Commission; the Commission chose to credit a primary treating physician’s assessment that the employee could not hold any type job, and that assessment was corroborated by the employee’s testimony as well as the employer’s statement to the Mississippi Public Employees Retirement System that the employee was totally disabled. Pike County Bd. of Supervisors v. Varnado, 912 So. 2d 477, 2005 Miss. App. LEXIS 233 (Miss. Ct. App.), cert. denied, 921 So. 2d 344, 2005 Miss. LEXIS 668 (Miss. 2005).

The 1960 amendment to this statute has no bearing upon the right to compensation for an injury sustained prior to its enactment. International Paper Co. v. Wilson, 243 Miss. 659, 139 So. 2d 644, 1962 Miss. LEXIS 391 (Miss. 1962).

2. Compensation.

Where claimant suffered a single injury in 1981 and the injury gradually worsened and progressed to a permanent injury which manifested itself as a total disability in July 1993, the rate of compensation should be based on Johnson’s salary and/or wages for July 1993. J. H. Moon & Sons, Inc. v. Johnson, 753 So. 2d 445, 1999 Miss. LEXIS 383 (Miss. 1999).

Both the 10 percent penalty imposed for failure to pay an installment of compensation payable without an award within 14 days after it becomes due, and the 20 percent penalty for failure to pay an installment payable under the terms of an award within 14 days after it becomes due, could be imposed upon the same installments of compensation, so that when an employer failed to pay a judgment within 14 days after the award became final, the 20 percent penalty applied to the judgment, which consisted of vested installments together with interest and the 10 percent penalty, as well as to installments due after the award. Delchamps, Inc. v. Baygents, 578 So. 2d 620, 1991 Miss. LEXIS 189 (Miss. 1991).

Compensation may be allowed for disabling pain in the absence of positive medical testimony as to any physical cause whatever. When the patient complains of pain, the doctor usually takes the fact of pain for granted and the absence of physical findings to account for the pain will not necessarily bar compensation. In such cases, evidence of an accident followed by disabling pain and the absence of evidence as to the cause of the pain from objective medical findings may be sufficient as a basis for compensation, in the absence of circumstances tending to show malingering or indicating that the claimant’s testimony as to pain is inherently improbable, incredible, unreasonable or untrustworthy. However, there is a great potential for abuse in claims which are based predominantly upon pain reported by the patient, particularly in circumstances where the patient’s testimony or statement to the physician is the sole evidence of its continued presence. In these cases, it would be prudent to obtain additional medical evidence to either support or dispute the claim. Morris v. Lansdell's Frame Co., 547 So. 2d 782, 1989 Miss. LEXIS 336 (Miss. 1989).

In work-connected injury cases where the evidence establishes (a) successive injuries experienced by the employee where following the first injury the employee engages in full-time employment for a substantial period of time prior to the second injury; or (b) a preexisting (symptomatic or asymptomatic) condition which causes the employee to experience no pre-injury occupational disability, apportionment may not be ordered. On the other hand, in cases where (a) there is evidence of a medically cognizable, identifiable, symptomatic condition which antedated the injury; and (b) the employee experienced some absence of normal (for him or her) wage earning capacity, then apportionment must be ordered. Stuart's, Inc. v. Brown, 543 So. 2d 649, 1989 Miss. LEXIS 220 (Miss. 1989).

The onset of an employee’s essential tremors arose out of and in the course of employment where a cold tablet purchased from her employer exacerbated her pre-existing congenital condition and contributed to the onset of her essential tremor; the employer gained the benefits of lessening absenteeism due to illness by distributing the medication and, by memoranda, the employer suggested to its employees that they avail themselves of the medication provided at the employer’s first-aid station. Quitman Knitting Mill v. Smith, 540 So. 2d 623, 1989 Miss. LEXIS 140 (Miss. 1989).

Compensation, as defined in subsection (10) of Code 1942, § 6998-02 [now subsection (j) of Code 1972, §73-3-3 [Repealed] ], includes money allowances paid to an injured worker or his dependents, and funeral benefits provided in the act, but does not include legal fees incurred by the insurer. Kidwell v. Gulf, M. & O. R. Co., 251 Miss. 152, 168 So. 2d 735, 1964 Miss. LEXIS 335 (Miss. 1964).

Payment of medical expenses is a part of and is equivalent to the payment of compensation. Graeber Bros., Inc. v. Taylor, 237 Miss. 691, 115 So. 2d 735, 1960 Miss. LEXIS 502 (Miss. 1960).

3. Death.

Mississippi Workers’ Compensation Commission improperly applied the relevant law to the question of whether the death of a truck driver, who was shot and killed by a bar patron after both left a bar where the truck driver had been drinking for 11 hours, was “because of” his employment under Miss. Code Ann. §71-3-3(b); his death was not a result of his employment and it was not compensable. Total Transp., Inc. v. Shores, 968 So. 2d 400, 2007 Miss. LEXIS 525 (Miss. 2007).

A circuit court judgment affirming the Workers’ Compensation Commission’s denial of benefits to a deceased employee’s children was not supported by substantial evidence and would be reversed where the onset of the employee’s death occurred at her place of employment and the employer failed to rebut the presumption that the employee’s work activities did not cause or contribute to the condition from which she died; the unrebutted “found dead” legal presumption prevailed, satisfying the causal connection between the employee’s work duties and the condition which resulted in her death. Nettles v. Gulf City Fisheries, 629 So. 2d 554, 1993 Miss. LEXIS 545 (Miss. 1993).

The Workers’ Compensation Commission’s apportionment of an award of death benefits by 2/3 on the basis of pre-existing health conditions was supported by substantial evidence where the worker, who died of a heart attack arising out of and in the course of his employment, had smoked 3 packs of cigarettes daily since his teenage years and consumed approximately “1/2 bottle of alcohol” daily for an unspecified number of years, and his family had a history of heart-related problems. Hardin's Bakeries v. Harrell, 566 So. 2d 1261, 1990 Miss. LEXIS 540 (Miss. 1990).

Since a claim for disability is separate and distinct from a claim for death benefits, the 1960 amendment to subsection (9) of Code 1942, § 6998-02 [now subsection (i) of Code 1972, §71-3-3], requiring that incapacity and the extent thereof be supported by medical findings, did not eliminate the presumption of causal connection between the employment and death occurring while the employee is engaged in the duties of his employment, particularly since the 1960 amendment did not affect subsection (3) of Code 1942, § 6998-02 [now subsection (c) of Code 1972, §71-3-3]. L. B. Priester & Son, Inc. v. Bynum, 244 Miss. 185, 137 So. 2d 907, 1962 Miss. LEXIS 438 (Miss. 1962).

4. Dependents, generally.

The term “dependent” must be liberally interpreted, and includes those partially dependent as well as those wholly dependent, and one is dependent if he relies upon the employee, in whole or in part, for his support. Mid-State Paving Co. v. Farthing, 233 Miss. 333, 101 So. 2d 850, 1958 Miss. LEXIS 386 (Miss. 1958).

In order to be a dependent, the claimant must show that he had reasonable grounds to anticipate future support from the deceased employee. Mid-State Paving Co. v. Farthing, 233 Miss. 333, 101 So. 2d 850, 1958 Miss. LEXIS 386 (Miss. 1958).

The provision of the Workmen’s Compensation Law to the effect that questions of dependency shall be determined at the time of the injury has reference to the dependency which generates the original right to an award, and does not control the question of determination of a right to continue receiving an award. Franklin v. Jackson, 231 Miss. 497, 95 So. 2d 794, 1957 Miss. LEXIS 534 (Miss. 1957).

The word “dependent” as used in the Workmen’s Compensation Law means a person who is dependent upon the employee, in whole or in part, for his support and relies on the same. Deemer Lumber Co. v. Hamilton, 211 Miss. 673, 52 So. 2d 634, 1951 Miss. LEXIS 398 (Miss. 1951).

The use of the words “wholly dependent” and “dependent” shows the legislative intent to make “dependent” mean something different from “wholly dependent.” Deemer Lumber Co. v. Hamilton, 211 Miss. 673, 52 So. 2d 634, 1951 Miss. LEXIS 398 (Miss. 1951).

5. —Brothers and sisters.

Evidence that a deceased workman regularly provided groceries to his family and on several occasions clothing, mostly for his minor brothers, and that each month he did three or four days of extra work, paying all the money for this to the father of the deceased, that the father of the deceased was unable to work and received $58 per month in welfare payments, supported the commission’s finding that the minor brothers had been partially dependent upon the deceased for their support and were entitled to workmen’s compensation benefits after the deceased was killed in the course of his employment. United States Fidelity & Guaranty Co. v. Fortner, 234 So. 2d 636, 1970 Miss. LEXIS 1419 (Miss. 1970).

In the absence of proof that the deceased employee’s brother, who was over 18 years of age at the time of employee’s death, was wholly dependent upon employee and was incapable of self-support by reason of mental or physical disability, the award to him of compensation was erroneous. W. R. Fairchild Constr. Co. v. West, 202 So. 2d 643, 1967 Miss. LEXIS 1341 (Miss. 1967).

Evidence that deceased employee had furnished money and supplies for the support of his two minor brothers and of his father who was in poor health and had not been gainfully employed during the two years next prior to his death sustained the commission’s finding that the father and the minor brothers were totally dependent upon the deceased at the time of his death. Truck Trailer Sales & Service Co. v. Moore, 244 Miss. 317, 141 So. 2d 541, 1962 Miss. LEXIS 451 (Miss. 1962).

A brother who by reason of low intelligence and the loss of an arm is incapable of holding a job, and who received from the deceased employee regular monthly sums without which he would have been destitute, may properly be found to have been entirely dependent upon him, though he earned a little money by sweeping a church, and received occasional small gifts of money from another brother, who also paid a hospital bill. Ross v. Ross, 240 Miss. 84, 126 So. 2d 512, 1961 Miss. LEXIS 434 (Miss. 1961).

6. —Children, generally.

Workers’ Compensation Commission’s decision that the child was not a dependent of the decedent and thus not entitled to an award of death benefits was supported by substantial evidence; because of the child’s age (26-years old) and marital status (married), an award of death benefits to her would not be proper unless she was wholly dependent on the decedent, and given the myriad income sources available to and used by the child, the appellate court could hardly view the receipt of such income as sporadic or insubstantial. Descendants of Gilmer v. Nolen Sistrunk Trucking, Inc., 892 So. 2d 825, 2004 Miss. App. LEXIS 867 (Miss. Ct. App. 2004), cert. denied, 893 So. 2d 1061, 2005 Miss. LEXIS 80 (Miss. 2005).

In interpreting meaning of word “children” under Federal Employers Liability Act, provisions of Mississippi Workers’ Compensation Act do not apply; even if Workers’ Compensation Act provisions did apply, it would not help child where there was no proof that she was dependent on deceased at time of his death, or that claim on decedent for support had ever been made, because section specifically states that acknowledged illegitimate child, dependent on decedent, may recover. Ivy v. Illinois C. G. R. Co., 510 So. 2d 520, 1987 Miss. LEXIS 2619 (Miss. 1987).

Grandchild to whom deceased stood in place of parent for at least one year prior to injury elevated to child status, where uncontroverted evidence showed that decedent had stood in place of granddaughter’s father all of her life, and she called him “ U.S. Rubber Reclaiming Co. v. Dependents of Stampley, 508 So. 2d 673, 1987 Miss. LEXIS 2599 (Miss. 1987).

Under Miss Code 1972 §§71-3-3 &71-3-25, which define a “child” and “grandchild” and prescribe different workmen’s compensation benefits for each, two minor natural grandchildren, with whom the Commission found that decedent stood in loco parentis for at least one year prior to the time of his injury and death, would be elevated to the status of children for workmen’s compensation benefit purposes. Longleaf Forest Products, Inc. v. Hopkins, 349 So. 2d 523, 1977 Miss. LEXIS 2150 (Miss. 1977).

A child who from the time of her adoption never resided with her natural father but remained in the care, custody, and control, and under the supervision of the mother and adoptive father, cannot be considered as a dependent of the natural father for purposes of the Workmen's Compensation Law. W. R. Fairchild Constr. Co. v. Owens, 224 So. 2d 571, 1969 Miss. LEXIS 1295 (Miss. 1969).

Dependency at time of parent’s injury does not entitle minor daughter to death benefit where she married prior to the parent’s death. Futorian-Stratford Furniture Co. v. Dependents of Oswalt, 249 Miss. 35, 162 So. 2d 645, 1964 Miss. LEXIS 373 (Miss. 1964).

A married daughter, living apart from her husband and with deceased at the time of his death, who was over the age of 18 years, was not wholly dependent upon the deceased, and not incapable of self support by reasons of mental or physical disability, was precluded from the allowance of any benefits for the death of her father. Thrash v. Jackson Auto Sales, Inc., 232 Miss. 845, 100 So. 2d 574, 1958 Miss. LEXIS 338 (Miss. 1958).

Since one of the primary purposes of the Workmen’s Compensation Law is to relieve society of the burden of supporting helpless children in orphanages and public almshouses, it would be inconsistent to allow children over the ages of 18 years, who are physically and mentally able to support themselves, to receive compensation and to plead the award to the detriment of younger children who, because of age, are unable to support themselves. Franklin v. Jackson, 231 Miss. 497, 95 So. 2d 794, 1957 Miss. LEXIS 534 (Miss. 1957).

Even though a child qualifies as a dependent as of the time of injury because he is then under 18 years of age, he ceases to be a child within the meaning of the Workmen’s Compensation Law when he reaches the age of 18 years unless he is incapable of self-support by reason of mental or physical disability. Franklin v. Jackson, 231 Miss. 497, 95 So. 2d 794, 1957 Miss. LEXIS 534 (Miss. 1957).

Where it appeared that the 34-year-old feeble-minded daughter of a deceased employee was not wholly dependent upon her father for support at the time of and shortly prior to his death and had been supported primarily during most of her life by someone else, the daughter’s claim was not compensable. Aultman v. Crosby Chemicals, Inc., 222 Miss. 98, 75 So. 2d 458, 1954 Miss. LEXIS 626 (Miss. 1954).

Where a daughter of deceased employee, who was under 18 at the time of his death, married a month after his death and was supported by her husband afterwards, the compensation to the daughter would not be terminated as of the date of her marriage. Anderson-Tully Co. v. Wilson, 221 Miss. 656, 74 So. 2d 735, 1954 Miss. LEXIS 573 (Miss. 1954).

7. — —Adopted children.

A child who from the time of her adoption never resided with her natural father but remained in the care, custody, and control, and under the supervision of the mother and adoptive father, cannot be considered as a dependent of the natural father for purposes of the Workmen's Compensation Law. W. R. Fairchild Constr. Co. v. Owens, 224 So. 2d 571, 1969 Miss. LEXIS 1295 (Miss. 1969).

8. — —Grandchildren.

Grant of summary judgment in favor of the grandparents was proper where they were not vicariously liable and did not negligently supervise their grandchild when he was driving the grandfather’s vehicle with a learner’s permit and struck another driver because the mission of the trip was not for the mutual benefit of both the occupants; therefore, it could not be held that the grandparents had a master/servant relationship with their grandchild created by a joint venture. Warren v. Glascoe, 852 So. 2d 634, 2003 Miss. App. LEXIS 68 (Miss. Ct. App. 2003), aff'd, 880 So. 2d 1034, 2004 Miss. LEXIS 784 (Miss. 2004).

Grandchild to whom deceased stood in place of parent for at least one year prior to injury elevated to child status, where uncontroverted evidence showed that decedent had stood in place of granddaughter’s father all of her life, and she called him “ U.S. Rubber Reclaiming Co. v. Dependents of Stampley, 508 So. 2d 673, 1987 Miss. LEXIS 2599 (Miss. 1987).

Under Miss Code 1972 §§71-3-3 &71-3-25, which define a “child” and “grandchild” and prescribe different workmen’s compensation benefits for each, two minor natural grandchildren, with whom the Commission found that decedent stood in loco parentis for at least one year prior to the time of his injury and death, would be elevated to the status of children for workmen’s compensation benefit purposes. Longleaf Forest Products, Inc. v. Hopkins, 349 So. 2d 523, 1977 Miss. LEXIS 2150 (Miss. 1977).

9. — —Illegitimate children.

In interpreting meaning of word “children” under Federal Employers Liability Act, provisions of Mississippi Workers’ Compensation Act do not apply; even if Workers’ Compensation Act provisions did apply, it would not help child where there was no proof that she was dependent on deceased at time of his death, or that claim on decedent for support had ever been made, because section specifically states that acknowledged illegitimate child, dependent on decedent, may recover. Ivy v. Illinois C. G. R. Co., 510 So. 2d 520, 1987 Miss. LEXIS 2619 (Miss. 1987).

One of the primary purposes of the Workmen’s Compensation Law is to relieve society of the burden of supporting in orphanages or public almshouses helpless children, who have been left without means of support because of the death of wage earners who have lost their lives in industrial accidents, and the benefits of the law are not limited to children begotten in lawful wedlock. Stanley v. McLendon, 220 Miss. 192, 70 So. 2d 323, 1954 Miss. LEXIS 425 (Miss. 1954).

An illegitimate child of deceased employee is entitled to benefits if dependent upon the deceased. Fernwood Industries, Inc. v. Mitchell, 219 Miss. 331, 68 So. 2d 830, 1953 Miss. LEXIS 392 (Miss. 1953).

Where the evidence showed the contributions by deceased worker to the support and maintenance of his illegitimate son under eighteen years of age during the last four years consisted of three pairs of pants, a shirt, and now and then a nickel, dime or quarter, and the claimant was living in the home of his mother and stepfather and they were furnishing him all clothing, sustenance, and school expense, their illegitimate son was not a dependent of the employee and was not entitled to the death benefits. Fernwood Industries, Inc. v. Mitchell, 219 Miss. 331, 68 So. 2d 830, 1953 Miss. LEXIS 392 (Miss. 1953).

The statutory presumption that children are presumed to be dependent does not apply to illegitimate children and the fact of dependency must be shown. Fernwood Industries, Inc. v. Mitchell, 219 Miss. 331, 68 So. 2d 830, 1953 Miss. LEXIS 392 (Miss. 1953).

A deceased employee’s alleged illegitimate child was not entitled to death benefits unless she could show by competent evidence that she was an acknowledged illegitimate child dependent upon the deceased. Stanford v. Stanford, 219 Miss. 236, 68 So. 2d 275, 1953 Miss. LEXIS 385 (Miss. 1953).

Where deceased continued to support his two acknowledged, illegitimate children after their mother had married another, the children were entitled to be recognized as dependent children of deceased. Watkins v. Taylor, 216 Miss. 822, 63 So. 2d 225, 1953 Miss. LEXIS 701 (Miss. 1953).

Workmen’s Compensation Law which allows payments of compensation to acknowledged illegitimate child dependent upon deceased’s labor, and to bigamous wife upon death of the putative husband is not repugnant to the Constitution nor any public policy in regard to bigamy. Pathfinder Coach Div. of Superior Coach Corp. v. Cottrell, 216 Miss. 358, 62 So. 2d 383, 1953 Miss. LEXIS 646 (Miss. 1953).

10. — —Step children.

Children of a mistress, if supported by a workman, are dependents entitled to compensation for his death, although their parents are living. Dependents of Boen v. Foster, 241 Miss. 520, 130 So. 2d 877, 1961 Miss. LEXIS 369 (Miss. 1961).

A finding that the second wife of a deceased employee, as well as her children by a former marriage, were entitled to share in the death benefits resulting from the employee’s death, was affirmed, where there was evidence showing that the stepchildren were dependent upon the decedent for support, and that the wife and children were not living apart from the decedent without justifiable excuse. Bolton v. Easterling, 232 Miss. 236, 98 So. 2d 658, 1957 Miss. LEXIS 463 (Miss. 1957).

Where a mother of an illegitimate child married someone other than the father, and the child was supported by the husband, the child was the husband’s stepchild. Pigford Bros. Constr. Co. v. Evans, 225 Miss. 411, 83 So. 2d 622, 1955 Miss. LEXIS 598 (Miss. 1955).

11. —Parents.

Mother of decedent was not entitled to bring wrongful death action where decedent was killed when he was struck by car while working on highway project; contention that wrongful death statute controlled over Workers’ Compensation provision which provided that it would be exclusive remedy was rejected; argument that because mother was not dependent on decedent, exclusive remedy provision in death benefit cases did not apply was also rejected, because act intended to provide exclusive remedy growing out of employer-employee relationship, and different result would subject employer in many instances to double liability. Estate of Morris v. W. E. Blain & Sons, Inc., 511 So. 2d 945, 1987 Miss. LEXIS 2698 (Miss. 1987).

A mother who was at least partially dependent upon her son was entitled to benefits under the Workmen’s Compensation Law, when the son was killed in the course of his employment where the record showed that, although the son’s support had been irregular, he had contributed to his mother’s support since he was 13 years of age, omitting the time he was incarcerated for manslaughter. Magnolia Constr. Co. v. Dependent of Stovall, 250 Miss. 761, 168 So. 2d 297, 1964 Miss. LEXIS 499 (Miss. 1964).

Evidence that deceased employee had furnished money and supplies for the support of his two minor brothers and of his father who was in poor health and had not been gainfully employed during the two years next prior to his death sustained the commission’s finding that the father and the minor brothers were totally dependent upon the deceased at the time of his death. Truck Trailer Sales & Service Co. v. Moore, 244 Miss. 317, 141 So. 2d 541, 1962 Miss. LEXIS 451 (Miss. 1962).

Evidence that deceased employee had made cash contributions to his parents on numerous, although irregular, occasions, had done the heavy manual work on their farm, and other than at times when he was working on construction projects, he had lived with his parents, except during a brief interval of an unsuccessful marriage, sustained the finding that the parents were partially dependent upon the employee, had reasonable grounds to anticipate continuing future support from him, and, thus, were dependents. Mid-State Paving Co. v. Farthing, 233 Miss. 333, 101 So. 2d 850, 1958 Miss. LEXIS 386 (Miss. 1958).

12. —Surviving spouse, generally.

Husband is dependent of wife, for purposes of worker’s compensation, where at time of wife’s death, husband is totally disabled and his own worker’s compensation claim for permanent disability benefits is subject to motion to controvert by employer. Ingalls Shipbuilding Div., Litton Systems, Inc. v. Dependents of Sloane, 480 So. 2d 1117, 1985 Miss. LEXIS 2377 (Miss. 1985).

A widow, to qualify as a dependent for the purposes of the Workmen’s Compensation Law must have entered into a ceremonial marriage pursuant to a license, in compliance with the provisions of Code 1942, §§ 465 and 465.5. South Cent. Heating & Plumbing Co. v. Dependents of Campbell, 219 So. 2d 140, 1969 Miss. LEXIS 1413 (Miss. 1969).

The presumption of dependency of a widow, created by this provision, is conclusive. Watson v. National Burial Asso., 234 Miss. 749, 107 So. 2d 739, 1958 Miss. LEXIS 547 (Miss. 1958).

Although sexual relationship in a marriage is usual, it is not essential to establish the requirement under the Workmen’s Compensation Law that the husband and wife are living with each other, where other conditions and circumstances of marriage relationship exists. Stewart Co. v. Christmas, 224 Miss. 29, 79 So. 2d 526, 1955 Miss. LEXIS 457 (Miss. 1955).

Words “surviving wife” mean a widow who is entitled to compensation under the provisions of law. Watkins v. Taylor, 216 Miss. 822, 63 So. 2d 225, 1953 Miss. LEXIS 701 (Miss. 1953).

The Constitution does not announce a paramount public policy prohibiting legislation which would allow a bigamous wife to recover benefits under the Workmen's Compensation Law. Pathfinder Coach Div. of Superior Coach Corp. v. Cottrell, 216 Miss. 358, 62 So. 2d 383, 1953 Miss. LEXIS 646 (Miss. 1953).

Under subsection (18) of Code 1942, § 6998-02 [now subsection (n) of Code 1972, §71-3-3], a widow is presumed to be dependent, but this is a rebuttable presumption. Thomas v. Contractor's Material Co., 213 Miss. 672, 57 So. 2d 494, 1952 Miss. LEXIS 409 (Miss. 1952).

13. — —Common-law spouse.

Where the deceased employee has been married in a ceremonial marriage to a woman who admitted at the time of her marriage that she had two undivorced husbands from two prior ceremonial marriages but there was no evidence that these prior marriages had been legal or were dissolved before marriage to the deceased employee, such woman was the surviving common-law wife of the employee for the purpose of determining to whom the workmen’s compensation award should be made. Anderson-Tully Co. v. Wilson, 221 Miss. 656, 74 So. 2d 735, 1954 Miss. LEXIS 573 (Miss. 1954).

14. — —Separation.

A woman separated but not divorced from her husband who was awarded separate maintenance by a court of a sister state within three years of the separation was a widow within the meaning of this section even though she had not filed a separate maintenance suit in this state. Walton v. McLendon, 342 So. 2d 732, 1977 Miss. LEXIS 2323 (Miss. 1977).

A widow is not entitled to compensation for her husband’s death where, without justification, she has lived apart from him for more than three years, and in open adultery. Jackson Oil Products Co. v. Curtis, 241 Miss. 188, 129 So. 2d 403, 1961 Miss. LEXIS 330 (Miss. 1961).

A woman who, for justifiable cause, has separated from her husband is, where the separation has been for less than three years, entitled to compensation for his death, although she has been supporting herself without his aid. Watson v. National Burial Asso., 234 Miss. 749, 107 So. 2d 739, 1958 Miss. LEXIS 547 (Miss. 1958).

A woman deserted by her husband, who contracted a ceremonial marriage with another without herself having obtained, or knowing whether her husband had obtained, a divorce, and lived with such other as his wife, will be regarded as his widow within the Workmen’s Compensation Law, where there is no showing as to whether her lawful husband was living or undivorced. Jackson v. Bailey, 234 Miss. 697, 107 So. 2d 593, 1958 Miss. LEXIS 540 (Miss. 1958).

Where one of two alleged widows claiming compensation had been ceremoniously married to the employee while she had an undivorced husband, and then separated from him, and thereafter the employee lived with another woman as husband and wife, the former was not a widow within the provision of the statute even though after the separation the husband brought her gifts. United Timber & Lumber Co. v. Alleged Dependents of Hill, 226 Miss. 540, 84 So. 2d 921, 1956 Miss. LEXIS 432 (Miss. 1956).

The principal test of whether husband and wife are living with each other is whether they are living as husband and wife with voluntary recognition of the relationship, and with no design or agreement to live apart free from the reciprocal marital rights and duties. Stewart Co. v. Christmas, 224 Miss. 29, 79 So. 2d 526, 1955 Miss. LEXIS 457 (Miss. 1955).

Where an employee, who was killed while working in the course of his employment, worked at public work and lived at different places, visited his family from one to three times a week, and contributed the major portion of his earnings to their support, and his wife’s health was bad, the deceased and the widow were living together within the meaning of Workmen’s Compensation Law and the widow was entitled to compensation. Stewart Co. v. Christmas, 224 Miss. 29, 79 So. 2d 526, 1955 Miss. LEXIS 457 (Miss. 1955).

The term widow or widower as contemplated in the Workmen’s Compensation Law shall not apply to any person who has since his or her separation from decedent entered into a ceremonial marriage or lived in open adultery with another. Watkins v. Taylor, 216 Miss. 822, 63 So. 2d 225, 1953 Miss. LEXIS 701 (Miss. 1953).

Where a wife left her husband and lived with another man, she was estopped from recovery of workmen’s compensation for the death of her husband. Thomas v. Contractor's Material Co., 213 Miss. 672, 57 So. 2d 494, 1952 Miss. LEXIS 409 (Miss. 1952).

It is not sufficient for the widow to show that she left the deceased for justifiable cause. Thomas v. Contractor's Material Co., 213 Miss. 672, 57 So. 2d 494, 1952 Miss. LEXIS 409 (Miss. 1952).

Where a man and woman lived together for three years and a child was born, but they did not hold themselves out as husband and wife, and both later separated and each of them contracted a ceremonial marriage, this was insufficient evidence to substantiate a common-law marriage and the man’s subsequent ceremonial marriage was valid, and the widow was entitled to compensation upon the death of her husband. United States Fidelity & Guaranty Co. v. Smith, 211 Miss. 573, 52 So. 2d 351, 1951 Miss. LEXIS 389 (Miss. 1951).

15. — —Divorce.

A reconciliation during the pendency of a divorce suit entitles the wife to claim compensation as widow. Dependents of Boen v. Foster, 241 Miss. 520, 130 So. 2d 877, 1961 Miss. LEXIS 369 (Miss. 1961).

16. Dependency, presumption of.

The conclusive presumption that the natural child of a deceased employee was his dependent was terminated as of the date of the child’s adoption, and from that date she was and is conclusively presumed to be a dependent of her adopted father for workmen’s compensation purposes. W. R. Fairchild Constr. Co. v. Owens, 224 So. 2d 571, 1969 Miss. LEXIS 1295 (Miss. 1969).

The presumption of dependency of a widow, created by this provision, is conclusive. Watson v. National Burial Asso., 234 Miss. 749, 107 So. 2d 739, 1958 Miss. LEXIS 547 (Miss. 1958).

The provision that children under 18 are presumed to be dependent creates a rule of substantive law to the effect that a child under 18 years of age is conclusively presumed to be dependent. Anderson-Tully Co. v. Wilson, 221 Miss. 656, 74 So. 2d 735, 1954 Miss. LEXIS 573 (Miss. 1954).

The statutory presumption that children are presumed to be dependent does not apply to illegitimate children and the fact of dependency must be shown. Fernwood Industries, Inc. v. Mitchell, 219 Miss. 331, 68 So. 2d 830, 1953 Miss. LEXIS 392 (Miss. 1953).

Under subsection (18) of Code 1942, § 6998-02 [now subsection (n) of Code 1972, §71-3-3], a widow is presumed to be dependent, but this is a rebuttable presumption. Thomas v. Contractor's Material Co., 213 Miss. 672, 57 So. 2d 494, 1952 Miss. LEXIS 409 (Miss. 1952).

17. Disability.

Claimant for workers’ compensation benefits was not entitled to permanent partial disability benefits because the claimant did not suffer a loss of wage-earning capacity as the claimant admitted that the claimant returned to work at the same plant, in the same division, and in the same job but making a higher wage. Pruitt v. Howard Indus., 232 So.3d 822, 2017 Miss. App. LEXIS 672 (Miss. Ct. App. 2017).

Employer failed to rebut the testimony, the employee’s work restrictions, or any medical evidence to overcome the employee’s prima facie case of permanent-partial disability from the time of his layoff in 2008 to the present; as the employee proved a work-related injury, a loss of wage-earning capacity resulting in permanent-partial disability, and that the injury related to his disability, the order denying his claim for benefits was reversed. Ladner v. Zachry Constr., 225 So.3d 580, 2016 Miss. App. LEXIS 473 (Miss. Ct. App. 2016), op. withdrawn, sub. op., — So.3d —, 2017 Miss. App. LEXIS 528 (Miss. Ct. App. 2017).

Mississippi Workers’ Compensation Commission did not err in finding that an employee failed to prove she suffered a permanent disability because the presumption of no loss of wage-earning capacity applied since her post-injury wages were the same as her pre-injury wages; the employee failed to rebut the presumption because she presented no evidence of an increase in wage levels since her injury, that she was working additional hours, or that she was being paid out of her employer’s sympathy. Weathersby v. Miss. Baptist Health Sys., 195 So.3d 877, 2016 Miss. App. LEXIS 421 (Miss. Ct. App. 2016).

Workers’ compensation benefits claimant was permanently and totally disabled because an employer refused to rehire the claimant within his restrictions, and the employer did not offer the claimant work in the time period between the restrictions and the date of his termination for allegedly falsifying his original employment application; moreover, the claimant made a valid, but unsuccessful, job search within his restrictions of both sedentary and light work. The claimant’s age, education, permanent work restrictions, geographical location, past work experience, inability to return to past employment, loss of access to the job market, and his lack of computer, clerical, or sales experience were all considered. Howard Indus. v. Satcher, 183 So.3d 907, 2016 Miss. App. LEXIS 1 (Miss. Ct. App. 2016).

ALJ’s finding that the claimant was disabled was supported by evidence she was unable to find employment and earn the same wages as before the injury. Hudspeth Reg'l Ctr. v. Mitchell, 202 So.3d 617, 2015 Miss. App. LEXIS 511 (Miss. Ct. App. 2015), rev'd, 202 So.3d 609, 2016 Miss. LEXIS 438 (Miss. 2016).

Workers’ Compensation Commission erred in denying a former employee benefits for a permanent and total disability. The testimony from the employee’s vocational specialist indicated that the employee had a 100% loss in the labor market, and the testimony of the opposing vocational expert showed that the employee should, at the very least, have been assess a loss of wage-earning capacity. Logan v. Klaussner Furniture Corp., 127 So.3d 1138, 2013 Miss. App. LEXIS 319 (Miss. Ct. App. 2013), cert. denied, 2014 Miss. LEXIS 11 (Miss. Jan. 9, 2014).

Where both of a workers’ compensation claimant’s doctors testified that the claimant’s injuries were consistent with the injury that the claimant described wherein a patient fell onto the claimant’s shoulder and the claimant’s back popped, the claimant’s resulting disability, defined under Miss. Code Ann. §71-3-3(i), was compensable because it was work-related under Miss. Code Ann. §71-3-7. Lang v. Miss. Baptist Med. Ctr., 53 So.3d 814, 2010 Miss. App. LEXIS 588 (Miss. Ct. App. 2010).

Award of permanent disability benefits was affirmed because substantial evidence supported an administrative judge’s finding that an employee sustained a 75 percent loss of wage-earning capacity due to a work-related injury to the employees’ back, which rendered the employee disabled under Miss. Code Ann. §71-3-3(i). Furthermore, a doctor told the employee to limit the employee’s bending, lifting, stooping, and climbing, and the employee made a credible search for work after the employee reached maximum medical improvement, but potential employers rebuffed the employee. Harrison County Bd. of Supervisors v. Black, 127 So.3d 272, 2013 Miss. App. LEXIS 148 (Miss. Ct. App.), cert. denied, 127 So.3d 1115, 2013 Miss. LEXIS 663 (Miss. 2013).

Evidence supported the workers’ compensation commission’s finding that an employee had sustained a fifty percent loss of wage-earning capacity and the award of temporary total disability benefits as the record showed that, while the employee presented to the employer for re-hire after his original injury, his post-injury condition progressively worsened, ultimately resulting in his retirement; however, as acknowledged by the commission, the employee failed to seek alternative work positions from the employer before retiring, even though he had the capacity to perform alternative duties. Durbin v. Brown, 178 So.3d 789, 2013 Miss. App. LEXIS 166 (Miss. Ct. App. 2013).

Mississippi Workers’ Compensation Commission’s finding that there was no loss of wage-earning capacity was supported by substantial evidence because the evidence showed that the claimant could have returned to the claimant’s previous job had there been a job available, and that the claimant could have found employment earning the same amount of pre-injury income. Whiddon v. Southern Concrete Pumping, LLC, 114 So.3d 18, 2013 Miss. App. LEXIS 208 (Miss. Ct. App. 2013).

Denial of permanent partial disability benefits to the employee in a workers’ compensation action was improper because his post-injury income would have been higher but for a climbing restriction and therefore, the Workers’ Compensation Commission erred by finding that the injury had no impact on his wage-earning potential, Miss. Code Ann. §71-3-3(i). Gregg v. Natchez Trace Elec. Power Ass'n, 64 So.3d 473, 2011 Miss. LEXIS 280 (Miss. 2011).

Where a workers’ compensation claimant was released to work with a 10 percent disability rating and a climbing restriction, as his post-injury earnings exceeded his pre-injury earnings, the record indicated that his employer accommodated him as a matter of policy, not generosity, and as his testimony failed to show that he could not earn overtime pay or perform his job duties with his climbing restriction, he failed to present sufficient evidence to rebut the presumption of no loss of wage-earning capacity. Gregg v. Natchez Trace Elec. Power Ass'n, 64 So.3d 489, 2010 Miss. App. LEXIS 289 (Miss. Ct. App. 2010), rev'd, 64 So.3d 473, 2011 Miss. LEXIS 280 (Miss. 2011).

Substantial evidence supported the ruling of the Mississippi Workers’ Compensation Commission to affirm an administrative law judge’s (ALJ) decision awarding an employee permanent partial disability benefits of $ 15 per week for 450 weeks because the employee made it clear during his testimony that he chose to stay at home and not seek employment, and the ALJ determined that the employee’s decision did not alleviate his duty to seek employment; the ALJ ultimately found that the employee had not satisfied his burden of seeking alternative employment and found that the evidence did support some loss of wage-earning capacity. Lopez v. Zachry Constr. Corp., 22 So.3d 1235, 2009 Miss. App. LEXIS 767 (Miss. Ct. App. 2009).

In a workers’ compensation action, a finding that the employee sustained a 15 percent loss of use to each of his knees was proper under Miss. Code Ann. ‘ 71-3-3(i) because, although he had some limitations, there was no conclusion that he was completely unable to work. There was no merit to the employee’s claim that the administrative law judge erred when she declined to find that the employee suffered a total occupational loss of use of his legs. Smith v. Masonite Corp., 48 So.3d 565, 2010 Miss. App. LEXIS 168 (Miss. Ct. App.), cert. denied, 49 So.3d 1139, 2010 Miss. LEXIS 626 (Miss. 2010).

Modification of the disability award in a workers’ compensation action down to a 30 percent permanent partial disability award was appropriate under Miss. Code Ann. §§71-3-3(i) and71-3-17(a) because the employee failed to prove that he suffered permanent total disability. The employee was released by two doctors without work restrictions and he failed to reapply or make an otherwise diligent effort to return to work with the employer after reaching maximum medical improvement; further, one doctor was unable to explain the employee’s subjective complaints about pain in his leg and another doctor was likewise also unable to explain the employee’s complaints of decreased sensation in the leg. Smith v. Johnston Tombigbee Furniture Mfg. Co., 43 So.3d 1159, 2010 Miss. App. LEXIS 144 (Miss. Ct. App.), cert. denied, 49 So.3d 106, 2010 Miss. LEXIS 470 (Miss. 2010).

Modification of the disability award in a workers’ compensation action down to a 30 percent permanent partial disability award was appropriate under Miss. Code Ann. §§71-3-3(i) and71-3-17(a) because the employee failed to prove that he suffered permanent total disability. The employee was released by two doctors without work restrictions and he failed to reapply or make an otherwise diligent effort to return to work with the employer after reaching maximum medical improvement; further, one doctor was unable to explain the employee’s subjective complaints about pain in his leg and another doctor was likewise also unable to explain the employee’s complaints of decreased sensation in the leg. Smith v. Johnston Tombigbee Furniture Mfg. Co., 43 So.3d 1159, 2010 Miss. App. LEXIS 144 (Miss. Ct. App.), cert. denied, 49 So.3d 106, 2010 Miss. LEXIS 470 (Miss. 2010).

In a workers’ compensation action, simply because the employee did not return to the employer to seek employment was of no consequence. The record reflected that the employee looked for employment elsewhere, which was in accordance with Miss. Code Ann. §71-3-3(i). Johnson v. Sanderson Farms, Inc., 17 So.3d 1119, 2009 Miss. App. LEXIS 551 (Miss. Ct. App. 2009).

Workers’ compensation benefits claimant was entitled to permanent total disability benefits under Miss. Code Ann. §71-3-17(a) where she provided documentation that she had made 194 attempts to find another job, and there was no substantial evidence showing that the claimant’s efforts were a sham, less than reasonable, or without proper diligence. Lott v. Hudspeth Ctr., 26 So.3d 1057, 2008 Miss. App. LEXIS 597 (Miss. Ct. App. 2008), rev'd, 26 So.3d 1044, 2010 Miss. LEXIS 11 (Miss. 2010).

Award of permanent total disability to the claimant was appropriate under Miss. Code Ann. §71-3-3(I) because he met his burden of proof showing that he had a work-related disability. The medical proof and the claimant’s testimony were to the effect that as a result of the injury, he suffered severe permanent physical limitations. Ameristar Casino-Vicksburg v. Rawls, 2 So.3d 675, 2008 Miss. App. LEXIS 479 (Miss. Ct. App. 2008).

Finding that the employee sustained a 70 percent loss of wage-earning as a result of a work-related injury while employed with the employer was appropriate pursuant to Miss. Code Ann. §71-3-3(i) because the law did not require that the employee move to another part of the state or another state with regard to the duty to make reasonable effort to secure other comparable gainful employment. Therefore, the employee was not required to move to Florida in order to satisfy her duty to seek other employment. Goolsby Trucking Co. v. Alexander, 982 So. 2d 1013, 2008 Miss. App. LEXIS 314 (Miss. Ct. App. 2008).

Mississippi Workers’ Compensation Commission correctly determined that an employee had not established a prima facie case under Jordan because the employee reported back to work before she reached maximum medical improvement; thus, even assuming the evidence otherwise supported the application of the Jordan presumption, the employee did not establish a prima facie case of total disability under Jordan. Lifestyle Furnishings v. Tollison, 985 So. 2d 352, 2008 Miss. App. LEXIS 182 (Miss. Ct. App. 2008).

Mississippi Workers’ Compensation Commission found that although a claimant could not resume work in her pre-injury employment, she had not made sufficient efforts to obtain other employment to meet the definition of “disability” under Miss. Code Ann. §71-3-3(I) because her search for other employment was not reasonable, and the Commission only awarded permanent partial disability benefits under Miss. Code Ann. §71-3-17(c). The Commission’s decision was supported by substantial evidence, it was the Commission’s to make, and in reversing the Commission’s decision and awarding the claimant permanent, total disability under Miss. Code Ann. §71-3-17(a), the circuit court improperly invaded the Commission’s decision-making authority. Lifestyle Furnishings v. Tollison, 985 So. 2d 352, 2008 Miss. App. LEXIS 182 (Miss. Ct. App. 2008).

There was substantial evidence on which the workers’ compensation commission could have found that a claimant did not prove that she was disabled where, inter alia, while it did appear that she attempted, on one occasion, to contact her employer and return to her job in July of 1996, she did not assert that she sought any other employment, rather, she simply argued that she was unable to even attempt to go to work. That argument was contrary to her arguments before the unemployment appeals referee, wherein she claimed to have been able to return to light duty work and it was also contrary to the testimony of all three testifying physicians. Digrazia v. Park Place Entm't, 914 So. 2d 1232, 2005 Miss. App. LEXIS 849 (Miss. Ct. App. 2005).

In an action in which an employer appealed from a judgment of the Harrison County Circuit Court, which affirmed the Mississippi Workers’ Compensation Commission decision that the employee’s worker’s compensation claim was compensable, the judgment was affirmed where: (1) substantial evidence existed from which the Commission could have determined that the employee’s employment caused his injury; (2) the list provided by the employee in mid-January of 2004 enumerated six attempts to locate employment between September 3, 2003, and October 6, 2003; and (3) the Commission was not clearly erroneous for finding that the employee’s job search was diligent, despite his refusal to work with the vocational expert. Imperial Palace Casino v. Wilson, 960 So. 2d 549, 2006 Miss. App. LEXIS 928 (Miss. Ct. App. 2006), cert. denied, 959 So. 2d 1051, 2007 Miss. LEXIS 402 (Miss. 2007).

As medical testimony established that an employee suffered from bilateral carpal tunnel syndrome and a vocational expert testified about the difficulty the employee would have in finding other work, the employee met his burden of proving a disability under Miss. Code Ann. §71-3-3. Binswanger Mirror v. Wright, 947 So. 2d 346, 2006 Miss. App. LEXIS 652 (Miss. Ct. App. 2006).

Finding that the employee in a workers’ compensation case was permanently and totally disabled was appropriate because he had met his burden set forth in Miss. Code Ann. §71-3-3(I). He had attempted to perform lighter-duty work after his surgery but could not perform any of the tasks assigned to him. Mueller Copper Tube Co. v. Upton, 930 So. 2d 428, 2005 Miss. App. LEXIS 801 (Miss. Ct. App. 2005), cert. denied, 933 So. 2d 303, 2006 Miss. LEXIS 495 (Miss. 2006).

Workers’ Compensation Commission erred in applying the no loss of wage presumption because the claimant’s disability or inability to earn his pre-injury wages as provided in Miss. Code Ann. §71-3-3 (i) had not fully manifested itself when he returned to work after surgery. Undisputed testimony and medical evidence showed that the claimant was permanently totally disabled and that the Commission erred in disregarding the evidence that showed the claimant’s condition worsened after the surgery and left him unable to work at his pre-injury job and pay as a carpenter. Univ. of Miss. Med. Ctr. v. Smith, 909 So. 2d 1209, 2005 Miss. App. LEXIS 93 (Miss. Ct. App. 2005).

Workers’ Compensation Commission erred in applying the no loss of wage presumption because the claimant’s disability or inability to earn his pre-injury wages as provided in Miss. Code Ann. §71-3-3 (i) had not fully manifested itself when he returned to work after surgery. Undisputed testimony and medical evidence showed that the claimant was permanently totally disabled and that the Commission erred in disregarding the evidence that showed the claimant’s condition worsened after the surgery and left unable to work at his pre-injury job and pay as a carpenter. Univ. of Miss. Med. Ctr. v. Smith, 909 So. 2d 1209, 2005 Miss. App. LEXIS 93 (Miss. Ct. App. 2005).

Trial court properly denied an employee’s claim for permanent disability benefits in a case where the employee’s post-injury unemployment arose due to her unwillingness to carry out tasks she was physically capable of performing, rather than from a permanent diminished physical ability to perform in the workplace arising out of her work-related neck injury. Wagner v. Hancock Med. Ctr., 825 So. 2d 703, 2002 Miss. App. LEXIS 485 (Miss. Ct. App. 2002).

The Worker’s Compensation Commission erred as a matter of law when it refused to consider the extent of the claimant’s efforts to find other suitable employment for which he might be suited in his post-injury condition when assessing the extent of his permanent partial disability. Entergy Mississippi, Inc. v. Robinson, 777 So. 2d 53, 2000 Miss. App. LEXIS 580 (Miss. Ct. App. 2000).

The claimant did not sustain a disability within the meaning of the statute and, therefore, was not entitled to permanent disability benefits, notwithstanding that she sustained an 8-10 percent permanent impairment, where her post-injury income exceeded her pre-injury income. Winters v. Choctaw Maid Farms, 782 So. 2d 155, 2000 Miss. App. LEXIS 218 (Miss. Ct. App. 2000).

The fact that the claimant voluntarily retired from her position together with the fact that she did not try to find another job for seven months after leaving her employer supported the determination that she did not make reasonable efforts to obtain gainful employment and, therefore, was not disabled. Ford v. Emhart, Inc., 755 So. 2d 1263, 2000 Miss. App. LEXIS 54 (Miss. Ct. App. 2000).

Workers’ compensation claimant who has reached maximum medical recovery can establish prima facie showing of total disability if claimant reports back to work, and employer refuses to reinstate or rehire claimant, and burden then shifts to employer to prove that claimant suffered only partial disability or that claimant suffered no loss of wage earning capacity. Hale v. Ruleville Health Care Ctr., 687 So. 2d 1221, 1997 Miss. LEXIS 34 (Miss. 1997).

Workers’ compensation claimant made out prima facie case for permanent total disability by showing that, after reaching maximum medical improvement, she sought but was unable to find employment. Hale v. Ruleville Health Care Ctr., 687 So. 2d 1221, 1997 Miss. LEXIS 34 (Miss. 1997).

Employer rebutted workers’ compensation claimant’s prima facie case for permanent total disability by showing that employee’s efforts at securing employment did not involve reasonable diligence. Hale v. Ruleville Health Care Ctr., 687 So. 2d 1221, 1997 Miss. LEXIS 34 (Miss. 1997).

A finding by the Workers’ Compensation Commission that an injured manual laborer who was restricted by his doctor to lifting less than 40 pounds suffered only minimal industrial incapacity was not supported by substantial evidence where the decision was based largely on an alleged policy of the employer requiring workers to seek assistance when lifting more than 40 pounds, but the record contained no evidence of such a policy. DeLaughter v. South Cent. Tractor Parts, 642 So. 2d 375, 1994 Miss. LEXIS 367 (Miss. 1994).

A finding by the Workers’ Compensation Commission that a lumberyard worker had sustained only a 50 percent loss of wage-earning capacity, and therefore suffered only partial rather than total permanent disability, would be reversed where the evidence indicated that he had difficulty performing “make-work” tasks at his employer’s lumberyard after he returned to work and that his efforts to find other employment were unsuccessful, and the Commission’s finding was based on the conclusion that the employee should have been able to secure “some type of gainful employment” merely because he had a high school education. Barnes v. Jones Lumber Co., 637 So. 2d 867, 1994 Miss. LEXIS 282 (Miss. 1994).

A claimant was not entitled to permanent total disability benefits, even though his neurosurgeon and his chiropractor found him to be totally disabled, where the claimant continued to work full time for his employer and therefore showed no loss of wage earning capacity as a result of his injuries. Lanterman v. Roadway Express, Inc., 608 So. 2d 1340, 1992 Miss. LEXIS 564 (Miss. 1992).

Despite a claimant’s increase in earnings, his earning capacity and his employability in the market place had been reduced due to Meniere’s Syndrome where the presumption of earning capacity commensurate with post-injury earnings was rebutted by the following factors: (1) Meniere’s Syndrome is a whole body disability; (2) it is lifelong in nature; (3) it affects the activities of daily living, both occupationally and socially; (4) the claimant’s daily bouts with vertigo would put him at a disadvantage in an industrial setting where there were machines in operation; (5) one of the claimant’s biggest fears was losing his balance and falling into one of the machines he was operating; and (6) there had been an increase in general wage levels for all employees in the claimant’s class since 1984. Georgia-Pacific Corp. v. Gregory, 589 So. 2d 1250, 1991 Miss. LEXIS 763 (Miss. 1991).

A claimant may continue to be temporarily disabled, even though he or she has received maximum recovery from conservative care, if his or her condition can be improved by surgery. McGowan v. Orleans Furniture, Inc., 586 So. 2d 163, 1991 Miss. LEXIS 596 (Miss. 1991).

The evidence was sufficient to support a finding that a claimant suffered only a 5 percent permanent partial occupational disability by reason of a work-connected injury to his left hand, where the claimant failed to offer evidence that he had unsuccessfully attempted to perform his usual duties, and he failed to offer evidence that he was refused employment based upon the disability to his hand in that he made no search for work outside his prior employment, stating that his car had been repossessed and he was without transportation. Walker Mfg. Co. v. Cantrell, 577 So. 2d 1243, 1991 Miss. LEXIS 190 (Miss. 1991).

A claimant who suffered a 25 percent permanent impairment to the body was not entitled to an award of permanent partial disability benefits since she did not establish a loss of wage earning capacity attributable to the compensable injury, where the evidence showed that she experienced an overall increase of post-injury wages and she offered no proof to rebut the presumption of no loss of wage earning capacity by showing that the post-injury earnings were not reliable in determining wage earning capacity. International Paper Co. v. Kelley, 562 So. 2d 1298, 1990 Miss. LEXIS 274 (Miss. 1990).

An employee’s job-related contact dermatitis caused by exposure to sulfur dioxide constituted a permanent loss of wage earning capacity, such that the employee was entitled to permanent partial disability benefits, where the employee’s sensitivity was permanent in nature so that he could not be exposed to sulfur dioxide in the future, and he made reasonable though unsuccessful efforts to find other comparably gainful employment. Piper Industries, Inc. v. Herod, 560 So. 2d 732, 1990 Miss. LEXIS 196 (Miss. 1990).

Generally, “medical” disability is the equivalent of functional disability and relates to actual physical impairment. “Industrial” disability is the functional or medical disability as it affects the claimant’s ability to perform the duties of employment. Robinson v. Packard Electric Div., General Motors Corp., 523 So. 2d 329, 1988 Miss. LEXIS 199 (Miss. 1988).

Since the disability contemplated by the Worker’s Compensation Act is an occupational disability, an injured employee is entitled to compensation to the extent that he has been incapacitated to earn wages, and the fact that such employee retains substantial functional abilities in no way undercuts the conclusion that he or she may be totally occupationally disabled. Marshall Durbin, Inc. v. Hall, 490 So. 2d 877, 1986 Miss. LEXIS 2493 (Miss. 1986).

A claimant who developed a work-related respiratory ailment made out a prima facie case of disability which was unrebutted by his employer where, after the claimant had presented evidence of his physical impairment, age, education, work experience, and unsuccessful efforts to secure employment, the employer failed to present any evidence from such sources as employment agencies clearly showing the local accessibility of substantial gainful employment suited to the claimant’s medical condition. Pontotoc Wire Products Co. v. Ferguson, 384 So. 2d 601, 1980 Miss. LEXIS 2009 (Miss. 1980).

In determining whether a claimant for worker’s compensation is unable to earn wages in former or other employment so as to fall within the statutory definition of the term “disabled,” the claimant has the burden of proof to make out a prima facie case for disability, after which the burden of proof shifts to the employer to rebut or refute the claimant’s evidence. Thompson v. Wells-Lamont Corp., 362 So. 2d 638, 1978 Miss. LEXIS 2137 (Miss. 1978).

The legislative intent, as expressed in subsection (9) of Code 1942, § 6998-02 [now subsection (i) of Code 1972, §71-3-3] means that a claimant must, after his disability subsides, seek employment in another or different trade to earn his wages. B.J. Collins v. Miss. Employment Sec. Comm., 190 So. 2d 894, 1966 Miss. LEXIS 1419 (Miss. 1966).

The 1960 amendment of this section [Code 1942, § 6998-02] does not operate to make medical findings the exclusive basis for establishing extent of disability. I. Taitel & Son v. Twiner, 247 Miss. 785, 157 So. 2d 44, 1963 Miss. LEXIS 356 (Miss. 1963).

Since a claim for disability is separate and distinct from a claim for death benefits, the 1960 amendment to subsection (9) of Code 1942, § 6998-02 [now subsection (i) of Code 1972, §71-3-3], requiring that incapacity and the extent thereof be supported by medical findings, did not eliminate the presumption of causal connection between the employment and death occurring while the employee is engaged in the duties of his employment, particularly since the 1960 amendment did not affect subsection (3) of Code 1942, § 6998-02 [now subsection (c) of Code 1972, §71-3-3]. L. B. Priester & Son, Inc. v. Bynum, 244 Miss. 185, 137 So. 2d 907, 1962 Miss. LEXIS 438 (Miss. 1962).

18. Employee, generally.

Mississippi Workers’ Compensation Commission erred by declaring that a claimant’s permanent total disability benefits related back to the date of injury, as he was not “disabled” on that date because he was able to continue to work thereafter. Eaton Corp. v. Brown, 130 So.3d 1131, 2013 Miss. App. LEXIS 344 (Miss. Ct. App. 2013), cert. denied, 131 So.3d 578, 2014 Miss. LEXIS 80 (Miss. 2014).

Finding in favor of the employee in a workers’ compensation action was appropriate because a contract of hire existed and the employee met the statutory definition of “employee” for workers’ compensation purposes under Miss. Code Ann. §71-3-3(d) (Rev. 2000). Hugh Dancy Co. v. Mooneyham, 68 So.3d 76, 2011 Miss. App. LEXIS 74 (Miss. Ct. App.), cert. denied, 69 So.3d 9, 2011 Miss. LEXIS 401 (Miss. 2011).

Workers’ compensation death benefits were improperly awarded to a trucking company employee’s wife because the fact that the employee remained at a truck stop bar for eleven hours drinking, and was then shot by a patron, was not reasonably incident to employment; the employee was not on a temporary personal errand. Total Transp., Inc. v. Shores, 968 So. 2d 456, 2006 Miss. App. LEXIS 874 (Miss. Ct. App. 2006), aff'd, 968 So. 2d 400, 2007 Miss. LEXIS 525 (Miss. 2007).

In order to establish the liability of the insurance carrier, it is essential that a contract of hire or apprenticeship, written or oral, expressed or implied, as required in subsection (4) of Code 1942, § 6998-02 [now subsection (d) of Code 1972, §71-3-3] be proved. Sullivan v. Heirs of Sullivan, 192 So. 2d 277, 1966 Miss. LEXIS 1244 (Miss. 1966).

Whether the relation between the mover of oil well drilling equipment and a member of a driller’s crew who was injured while lending a hand to the mover in placing equipment was that of master and servant, so as to preclude an action for negligence, held to be for trier of the fact. Clark v. Luther McGill, Inc., 240 Miss. 509, 127 So. 2d 858, 1961 Miss. LEXIS 481 (Miss. 1961).

In cases involving the question whether a person was an employee or an independent contractor, under workmen’s compensation statutes the courts have applied the ordinary common-law tests, such as are applied in the actions of tort. Carr v. Crabtree, 212 Miss. 656, 55 So. 2d 408, 1951 Miss. LEXIS 495 (Miss. 1951).

19. — Burden of proof.

Denial of a workers’ compensation claim was appropriate because, considering the inconsistencies in the claimant’s testimony, the inconsistencies in the claimant’s reported medical history, the extended period of time between the claimant’s alleged injury and the claimant’s report of a work-related injury, and the conflicting medical testimony, the claimant failed to carry the claimant’s burden of proof as to causation. Price v. MTD Prods. & Safety Nat'l Cas. Corp., 242 So.3d 900, 2017 Miss. App. LEXIS 552 (Miss. Ct. App. 2017), cert. denied, 246 So.3d 68, 2018 Miss. LEXIS 227 (Miss. 2018).

Denial of workers’ compensation benefits to an employee was inappropriate because the employee met his burden of proof showing that he had an injury, or an exacerbation of a preexisting injury, when he moved a desk at the behest of his supervisor. Any doubtful claims were to be resolved in favor of compensation. Short v. Wilson Meat House, LLC, 37 So.3d 50, 2009 Miss. App. LEXIS 333 (Miss. Ct. App. 2009), rev'd, 36 So.3d 1247, 2010 Miss. LEXIS 310 (Miss. 2010).

Workers’ compensation benefits claimant met the burden of showing a causal connection between a work injury and her disability based on the testimony of a doctor, despite the fact that his opinion was based upon the subjective medical history given by the claimant; this implicitly determined that the claimant was credible and moreover her complaints were referenced by two other doctors. AirTran, Inc. v. Byrd, 953 So. 2d 296, 2007 Miss. App. LEXIS 198 (Miss. Ct. App.), rev'd, 987 So. 2d 905, 2007 Miss. LEXIS 569 (Miss. 2007).

When a claimant, having reached maximum medical recovery, reports back to his or her employer for work, and the employer refuses to reinstate or rehire the claimant, then it is prima facie that the claimant has met his or her burden of showing total disability; the burden then shifts to the employer to prove a partial disability or that the claimant has suffered no loss of wage earning capacity. Jordan v. Hercules, Inc., 600 So. 2d 179, 1992 Miss. LEXIS 224 (Miss. 1992), but see Dulaney v. National Pizza Co., 733 So. 2d 301, 1998 Miss. App. LEXIS 990 (Miss. Ct. App. 1998).

District Court did not err in allowing testimony that in prior death-claim suit against company, decedent’s estate had argued decedent was not employee under Mississippi Workmen’s Compensation Act. Estate’s characterization of decedent as non-employee was sufficiently probative of whether he was employee that it was within discretion of District Court to allow testimony into evidence. Fishel v. American Sec. Life Ins. Co., 835 F.2d 613, 1988 U.S. App. LEXIS 366 (5th Cir. Miss. 1988).

20. — Factors.

Circuit court properly granted a company summary judgment in a worker’s action alleging it was liable for its employee’s negligence because his exclusive remedy was under the Workers’ Compensation Law; the nature of the work was that of an employee covered by the Law because the work did not involve any particular skill or training, and the worker was not in the business of offering similar services to other entities as part of his own independent business. Fortner v. Specialty Contr., LLC, 217 So.3d 736, 2017 Miss. App. LEXIS 54 (Miss. Ct. App. 2017).

Worker’s exclusive remedy was under the Workers’ Compensation Law because pursuant to the “control test,” the worker was a company’s employee not an independent contractor; the company had the right to control the work and it exercised that right, the worker was paid a regular daily wage rather than a fixed fee for some project or job, and the company provided all necessary tools and could have fired him at any time. Fortner v. Specialty Contr., LLC, 217 So.3d 736, 2017 Miss. App. LEXIS 54 (Miss. Ct. App. 2017).

Mississippi Workers’ Compensation Commission did not err in granting a job applicant benefits for an injury he sustained while performing a pre-employment job-function test because there was substantial evidence he was an employee at the time of his injury under an implied contract for hire; the evidence was sufficient to show there was mutual consent for hire and sufficient consideration for a contract for hire, and the employer controlled the applicant’s actions in performing the test. Averitt Express, Inc. v. Collins, 172 So.3d 1252, 2015 Miss. App. LEXIS 384 (Miss. Ct. App. 2015).

Mississippi Workers' Compensation Commission properly ordered an employer to pay a worker benefits because the substantial evidence supported a finding that it employed the worker as an employee, rather than an independent contractor; the Commission found that the factor of the right of control weighed in favor of treating the worker as an employee because the employer required him to work every day,and he exclusively worked for the employer. Southeastern Auto Brokers v. Graves, 210 So.3d 1012, 2015 Miss. App. LEXIS 205 (Miss. Ct. App. 2015).

The claimant was not an employee of the defendant company where (1) the company did not exercise or have the right to control the manner of the claimant’s work, (2) the company did not control the method of payment to the claimant, (3) the company did not furnish equipment to the claimant, and (4) the company did not have the right to hire or fire the claimant. Shelby v. Peavey Elecs. Corp., 724 So. 2d 504, 1998 Miss. App. LEXIS 1073 (Miss. Ct. App. 1998).

Verdict of jury that decedent was not employee was not against great weight of evidence, where he had his own offices, employed his own secretary, had numerous other clients, was not on company’s payroll, received no salary, and billed company for his services. Fishel v. American Sec. Life Ins. Co., 835 F.2d 613, 1988 U.S. App. LEXIS 366 (5th Cir. Miss. 1988).

Where manager of lumber company contracted with company to purchase a bi-product formerly waste, and the manager employed the decedent as a truck driver to transport this bi-product, the lumber company was not liable for the death of the truck driver performing his duties for the manager, where there was no evidence that the lumber company controlled the manager in his operation or retained the right of control other than having the right to maintain free access to the lumberyard without interference by the manager’s trucks. Granite State Ins. Co. v. Marshall, 275 So. 2d 386, 1973 Miss. LEXIS 1363 (Miss. 1973).

The right of control rather than the actual exercise of control is a primary test of whether a person is an independent contractor or employee, and in a case where there is direct evidence of the right to control, the express or implied exercise of that right, the method of payment, the furnishing of equipment by financing its purchase, and the right to fire; a person so situated and engaged in cutting and hauling pulpwood for a timber dealer was not truly independent, performing an independent business service, but devoted all or most of his time to the dealer’s business, was not an independent contractor but an employee of the dealer. Brown v. L. A. Penn & Son, 227 So. 2d 470, 1969 Miss. LEXIS 1358 (Miss. 1969).

In determining the existence of an employer and employee relationship the right to control the employee is one of the dominant factors, but the ultimate right to control is not to be confused with immediate control, for it is the reserved right of control rather than its actual exercise that furnishes a true test of the relationship. Burnham Van Service, Inc. v. Dependents of Moore, 250 Miss. 165, 164 So. 2d 733, 1964 Miss. LEXIS 453 (Miss. 1964).

The workmen’s compensation commission’s finding that the deceased truck driver was an employee of the truck lessee was warranted by evidence showing that it was the truck lessee who exercised all the control necessary to see that its objectives were carried out in detail, and that the person who paid the truck driver’s salary and had the right of discharge, exercised little or no control over the truck driver whatsoever. Burnham Van Service, Inc. v. Dependents of Moore, 250 Miss. 165, 164 So. 2d 733, 1964 Miss. LEXIS 453 (Miss. 1964).

The test of whether or not a person is an employee is not the exercise of, but the right to exercise control. Havens v. Natchez Times Publishing Co., 238 Miss. 121, 117 So. 2d 706, 1960 Miss. LEXIS 386 (Miss. 1960), but see, Webster v. Mississippi Publishers Corp., 1989 Miss. LEXIS 519 (Miss. Dec. 20, 1989), op. withdrawn, sub. op., 571 So. 2d 946, 1990 Miss. LEXIS 699 (Miss. 1990).

21. — Independent contractor.

Claimant for unemployment benefits was not an employee of a paramedical company, pursuant to Miss. Code Ann. §71-5-11, because (1) the written agreement between the parties did not constitute an enforceable contract, much less an enforceable employment contract; and (2) the claimant, who was a phlebotomist or paramedical examiner that performed medical-testing services on applicants for insurance policies pursuant to optional work orders, was an independent contractor, under Miss. Code Ann. §71-3-3(r). MEDS, Inc. v. Miss. Dep't of Empl. Sec., 130 So.3d 148, 2014 Miss. App. LEXIS 13 (Miss. Ct. App. 2014).

Record failed to support the conclusion of the Mississippi Department of Employment Security that a worker constituted an employee under Miss. Code Ann. §71-5-11(J)(14) because the worker constituted an independent contractor; the worker set his own hours and received a commission, not an hourly wage, and the employer failed to exercise control, nor did it possess a right of control, over the details of the actual sales work at issue. College Network v. Miss. Dep't of Empl. Sec., 114 So.3d 740, 2013 Miss. App. LEXIS 179 (Miss. Ct. App. 2013).

Denial of workers’ compensation benefits to the employee was inappropriate because the finding that she was an independent contractor as set forth in Miss. Code Ann. §71-3-3(r) was in error; the employer controlled the details of the employee’s work by exercising total control over the newspaper racks at issue and she was thus deemed to have been an employee, not an independent contractor. Davis v. The Clarion-Ledger, 938 So. 2d 905, 2006 Miss. App. LEXIS 722 (Miss. Ct. App. 2006).

Company hired to complete specific drilling project for worker’s employer was independent contractor and, thus, was not immune from negligence suit under exclusive remedy provision of workers’ compensation law as company was sufficiently outside of employer’s right to control to assume responsibility for torts of employees. Luther McGill, Inc. v. Bradley, 674 So. 2d 11, 1996 Miss. LEXIS 210 (Miss. 1996).

Subcontractor is not employee of prime contractor, but is instead independent contractor that also happens to be subcontractor; subcontractor is in much better position than mere employee to distribute cost of potential tort liability, as it may include in its subcontract bid price increase which reflects possible tort liability, and to provide immunity would be to totally insulate potential wrongdoer without imposing any obligation, thus tacitly encouraging subcontractors to use less than due care. Estate of Morris v. W. E. Blain & Sons, Inc., 511 So. 2d 945, 1987 Miss. LEXIS 2698 (Miss. 1987).

A construction firm contracted by a corporation to produce and install a finished product in accordance with its own methods, without being subject to corporation control, and with corporation required to furnish construction firm with a crane and an operator at its own cost, is an independent contractor rather than an employee. Ramsey v. Georgia-Pacific Corp., 511 F. Supp. 393, 1981 U.S. Dist. LEXIS 9498 (S.D. Miss. 1981), aff'd, 671 F.2d 1376, 1982 U.S. App. LEXIS 21589 (5th Cir. Miss. 1982).

In an action for compensation benefits by an employee of a logging company which performed services for the plaintiff corporation, the trial court properly held that the logging company was an employee of the plaintiff and that the employee of the logging company was entitled to compensation benefits from the plaintiff where the evidence established that the work done by the logging company was an integral part of the business of the plaintiff and that the plaintiff had complete control of the operations of the logging company. Georgia-Pacific Corp. v. Crosby, 393 So. 2d 1348, 1981 Miss. LEXIS 1923 (Miss. 1981).

Where timber dealer employed several methods of acquiring pulpwood, and no doubt some of the people performing work for it were its employees, nevertheless the relationship between the dealer and workmen’s compensation claimant was that of vendor and vendee, since the claimant furnished his own truck, did his own cutting from his father’s farm, and the dealer had no connection with the acquisition of the stumpage, and the claimant had not engaged in the pulpwood business prior to the cutting and sale of the loads, one of which he was injured on. Saxton v. L. A. Penn & Sons, Inc., 284 So. 2d 521, 1973 Miss. LEXIS 1263 (Miss. 1973).

A claimant who, together with others engaged in similar activities, cut and hauled pulpwood for a timber dealer under circumstances which constituted him and the other haulers an integral part of the regular business of the dealer was not furnishing an independent business or professional service, was actually under the dealer’s direction and control and, consequently, could not be said to be an independent contractor. Brown v. L. A. Penn & Son, 227 So. 2d 470, 1969 Miss. LEXIS 1358 (Miss. 1969).

22. — Particular persons.

County’s workers’ compensation insurance did not cover medical expenses incurred when a county inmate was injured while working in a county work program because the inmate was not working for the county under a contract of hire, and thus, he was not an employee under the Mississippi Workers’ Compensation Act, Miss. Code Ann. §71-3-3. Vuncannon v. United States, 711 F.3d 536, 2013 U.S. App. LEXIS 5284 (5th Cir. Miss. 2013).

An employer’s workers’ compensation carrier would be liable for the injuries of an employee who was injured while changing a neighboring business’ outdoor advertising sign where the employer had a policy of goodwill toward its business neighbors, which included changing the sign for the neighboring business, and the employees were expected to help foster the goodwill policy; since the employee acted in conformity with his employer’s dictates, he acted in the course and scope of his employment, and was not a loaned servant to the neighboring business. Quick Change Oil & Lube v. Rogers, 663 So. 2d 585, 1995 Miss. LEXIS 582 (Miss. 1995).

A student nurse who was injured while engaged in clinical training by a hospital was an apprenticeship employee of the hospital within the meaning of the Workers’ Compensation Act, where the student nurse rendered services to the hospital with the primary purpose of learning the “business” of the hospital necessary to acquire her license as an LPN, the hospital received payment from the public for the services rendered by the student nurse, and the student nurse received a “similar advantage,” i.e. training, from the hospital which qualified as a “wage” under the statutory definition. Walls v. North Mississippi Medical Center, 568 So. 2d 712, 1990 Miss. LEXIS 577 (Miss. 1990).

An independent oil and gas lease broker, who hired an employee to secure leases on behalf of an oil company, was not a subcontractor where the oil company purchased the leases on its own behalf; thus, the oil company was not liable to the employee for worker’s compensation benefits. Amoco Production Co. v. Murphy, 528 So. 2d 1123, 1988 Miss. LEXIS 283 (Miss. 1988).

Subcontractor is not employee of prime contractor, but is instead independent contractor that also happens to be subcontractor; subcontractor is in much better position than mere employee to distribute cost of potential tort liability, as it may include in its subcontract bid price increase which reflects possible tort liability, and to provide immunity would be to totally insulate potential wrongdoer without imposing any obligation, thus tacitly encouraging subcontractors to use less than due care. Estate of Morris v. W. E. Blain & Sons, Inc., 511 So. 2d 945, 1987 Miss. LEXIS 2698 (Miss. 1987).

Store manager’s husband, a store employee working in a service and maintenance capacity, who initiated a criminal embezzlement charge against the store cashier was an employee and not a third person within §71-3-3(b), and the store cashier’s malicious prosecution action predicated on husband’s action was not precluded by the Worker's Compensation Act. Royal Oil Co. v. Wells, 500 So. 2d 439, 1986 Miss. LEXIS 2565 (Miss. 1986).

A timber dealer who engaged claimant to cut and haul pulpwood from lands in substantially all of which the dealer had previously acquired the timber rights, who deducted from sums due claimant his gasoline, grocery, clothing and truck finance charges, and settled with claimant weekly for balances due for pulpwood cut and hauled by him, was in fact claimant’s employer, and liable for compensation payments due claimant for injuries sustained in the course of his work. Brown v. L. A. Penn & Son, 227 So. 2d 470, 1969 Miss. LEXIS 1358 (Miss. 1969).

Immunity from tort liability does not exist in the case of injury to a loaned employee with whom no contract of hire has been made. Index Drilling Co. v. Williams, 242 Miss. 775, 137 So. 2d 525, 1962 Miss. LEXIS 593 (Miss. 1962).

That a workmen’s compensation insurance policy extends to executives does not render the insurer liable for compensation awarded to officers serving without pecuniary remuneration affording a basis for paying premiums. Le-Co Gin Co. v. Stratton, 241 Miss. 623, 131 So. 2d 450, 1961 Miss. LEXIS 381 (Miss. 1961).

One engaged to deliver newspapers to subscribers on a motor carrier route, who is required to canvass for additional subscribers, to deliver papers promptly, to sell at established rates, and, in event of relinquishing the route, to endeavor to find a successor, held, under the statute prior to an amendment in 1956, excluding such individuals from the benefit of Workmen’s Compensation Law, to be an employee rather than an independent contractor and therefore entitled to compensation for injuries sustained in a highway collision while delivering papers. Havens v. Natchez Times Publishing Co., 238 Miss. 121, 117 So. 2d 706, 1960 Miss. LEXIS 386 (Miss. 1960), but see, Webster v. Mississippi Publishers Corp., 1989 Miss. LEXIS 519 (Miss. Dec. 20, 1989), op. withdrawn, sub. op., 571 So. 2d 946, 1990 Miss. LEXIS 699 (Miss. 1990).

Magazine solicitors whose compensation for orders obtained is retained out of the subscription price are not employees in view of subsection (4) of Code 1942, § 6998-02 [now subsection (d) of Code 1972, §73-3-3 [Repealed] ]. Statham v. Blaine, 234 Miss. 649, 107 So. 2d 93, 1959 Miss. LEXIS 575 (Miss. 1959).

A workman may be an independent contractor as to certain work and yet be an employee, or servant, as to other work for the same employer. Mills v. Jones' Estate, 213 Miss. 680, 56 So. 2d 488, 1952 Miss. LEXIS 410 (Miss.), modified, 213 Miss. 680, 57 So. 2d 496, 1952 Miss. LEXIS 411 (Miss. 1952), overruled, Railway Express Agency, Inc. v. Hollingsworth, 221 Miss. 688, 74 So. 2d 754, 1954 Miss. LEXIS 579 (Miss. 1954), overruled in part, Railway Express Agency, Inc. v. Hollingsworth, 221 Miss. 688, 75 So. 2d 639, 1954 Miss. LEXIS 580, 1954 Miss. LEXIS 581 (Miss. 1954).

23. Injury, generally.

Where the employee sustained a back injury when she slipped and fell against the back of the toilet at work, the administrative law judge correctly determined that the employee was engaged in a personal-comfort activity that was reasonably incident to her employment for purposes of Miss. Code Ann. §71-3-3(b). The Mississippi Workers’ Compensation Commission’s denial of workers’ compensation benefits based on a finding that the employee had a degenerative condition was not supported by substantial evidence, because a doctor testified that the employee’s pre-existing problems did not cause the disc rupture; the Court of Appeals of Mississippi held that the employee was entitled to receive benefits. White v. Miss. Dep't of Corr., 28 So.3d 619, 2009 Miss. App. LEXIS 469 (Miss. Ct. App. 2009), cert. denied, 27 So.3d 404, 2010 Miss. LEXIS 101 (Miss. 2010).

Mississippi Workers’ Compensation Commission (Commission) properly found that there was no presumption of a casual connection between the husband’s work and his death, Miss. Code Ann. §71-3-3(b), and the wife failed to prove that her husband’s death was work-related; substantial evidence supported the Commission’s decision. Curl v. Quality Aluminum Prods., 996 So. 2d 181, 2008 Miss. App. LEXIS 736 (Miss. Ct. App. 2008).

Compensability is resolved by determining whether the injury is an accidental one under the definition of Miss. Code Ann. §71-3-3(b), which includes injuries caused by a willful act committed by someone who is a stranger to the employment relationship. Thus, injuries resulting from willful or intentional acts by fellow employees are not “accidental” and are not claims subject to the exclusive remedy provision of the Workers' Compensation Act. Goodman v. Coast Materials Co., 858 So. 2d 923, 2003 Miss. App. LEXIS 1027 (Miss. Ct. App. 2003).

Trial court improperly dismissed an employee’s common law tort action, which sought to recover for injuries from a work-related fistfight with the owner of the employer; there is still a recognized right to bring a civil suit against an employer for some intentional torts committed by co-employees. Goodman v. Coast Materials Co., 858 So. 2d 923, 2003 Miss. App. LEXIS 1027 (Miss. Ct. App. 2003).

Trial court erred in dismissing saleswoman’s complaint that alleged a management-level employee willfully and intentionally injured her by pulling on her arm in order to take the saleswoman to an office for disciplinary action as the saleswoman’s allegations took her complaint out of the province of the Worker’s Compensation Act which recognized claims for workers injured in the scope and course of employment through negligent or grossly negligent acts. Blailock v. O'Bannon, 795 So. 2d 533, 2001 Miss. LEXIS 245 (Miss. 2001).

Claim denied where claimant’s testimony was contradicted about whether the first claimed incident even occurred, and whether he was actually injured due to the second incident. In addition, there was testimony that claimant had a limp from the first day on the job, which defeated the “injury arising out of and in the course of employment” element as well. Edwards v. Marshall Durbin Farms, Inc., 754 So. 2d 556, 2000 Miss. App. LEXIS 3 (Miss. Ct. App. 2000).

The additional requirement in the restated definition of “injury” in §71-3-3(b) that the injury result from “an untoward event or events” merely codifies existing law as follows: (1) an unexpected event is by external definition an untoward event and harm resulting from it is covered as an injury; (2) an unexpected result (harm to a worker) of usual work activity is an untoward event and the resulting harm is covered as an injury; (3) if the harm to the worker includes physical results, there is an “accidental injury” if either the event resulting in harm or the harm itself is unexpected; and (4) when an injury with physical results develops gradually from the work and cannot be traced to a single event or to a precise time, the injury meets the requirement of accidental injury if it is causally connected to the work activities or environment and the events are “within a reasonably definite and not too remote period of time.” KLLM, Inc. v. Fowler, 589 So. 2d 670, 1991 Miss. LEXIS 768 (Miss. 1991).

The addition of the phrase “in a significant manner” to §71-3-3(b) states what was already implicit in the workers’ compensation law. Requiring the work and injury to be causally connected in a significant manner is nothing more than a requirement that the work connection be supported by substantial evidence as minimally causative of the injury. KLLM, Inc. v. Fowler, 589 So. 2d 670, 1991 Miss. LEXIS 768 (Miss. 1991).

In §71-3-3, the words “arising out of and in the course of” present an inquiry whether the risk which has given rise to the injury is reasonably incident to the employment, not whether the work was the proximate cause of the injury. Fought v. Stuart C. Irby Co., 523 So. 2d 314, 1988 Miss. LEXIS 86 (Miss. 1988).

The disability contemplated by the Worker’s Compensation Act is an occupational disability, not a medical disability. Marshall Durbin, Inc. v. Hall, 490 So. 2d 877, 1986 Miss. LEXIS 2493 (Miss. 1986).

Disability is determined by the extent of actual physical injury and the de facto wage loss. I. Taitel & Son v. Twiner, 247 Miss. 785, 157 So. 2d 44, 1963 Miss. LEXIS 356 (Miss. 1963).

Pain alone, which does not produce incapacity to work, is not compensable. Rivers Constr. Co. v. Dubose, 241 Miss. 527, 130 So. 2d 865, 1961 Miss. LEXIS 371 (Miss. 1961).

For an injury to be compensable under the Workmen’s Compensation Law it is not necessary that an accidental injury, as defined in the law, resulted suddenly, nor that it resulted from the application of external force. Tate v. Dr. Pepper Bottling Co., 220 Miss. 311, 70 So. 2d 602, 1954 Miss. LEXIS 442 (Miss. 1954).

24. — Caused by co-employees.

Finding that the employee’s injury did not arise out of his employment was proper where an injury from a third party assault that occurred due to a purely personal vendetta or disagreement did not arise out of the employment pursuant to Miss. Code Ann. §71-3-7 and Miss. Code Ann. §71-3-3(b). In the case, the assault arose solely from the employee’s personal disagreement with a co-employee concerning a $10 loan. Sanderson Farms, Inc. v. Jackson, 911 So. 2d 985, 2005 Miss. App. LEXIS 700 (Miss. Ct. App. 2005).

Deceased employee’s heirs’ characterization of an employer’s actions and inaction in their attempt to avoid the exclusivity bar of Miss. Code Ann. §71-3-3(b) could not transform conduct that might well have been grossly negligent or reckless into the kind of “intent to injure” needed to avoid the bar. McCall v. Lockheed Martin Corp., 2005 U.S. Dist. LEXIS 42962 (S.D. Miss. Aug. 26, 2005).

In finding that the exclusivity bar under Mississippi’s Workers Compensation Act did not apply to a wrongful death action of an employee, arising from a co-worker’s shooting rampage, the court relied on the conclusion reached in prior Mississippi cases that injuries resulting from the willful or intentional acts by fellow employees were not accidental, as defined in Miss. Code Ann. §71-3-3(b), which followed from the fact that the statutory definition included injuries causes by a willful act committed by someone who was a stranger to the employment relations. Tanks v. Lockheed-Martin Corp., 332 F. Supp. 2d 953, 2004 U.S. Dist. LEXIS 17123 (S.D. Miss. 2004), rev'd, 417 F.3d 456, 2005 U.S. App. LEXIS 14539 (5th Cir. Miss. 2005).

Employee who was assaulted in her apartment parking lot by her co-worker and roommate was not entitled to compensation because she was not injured by a willful act directed against her because of her employment and while so employed and working on the job. Hawkins v. Treasure Bay Hotel & Casino, 813 So. 2d 757, 2001 Miss. App. LEXIS 462 (Miss. Ct. App. 2001).

Under §§71-3-9 and71-3-3(b), an employee’s claim for damages resulting from false imprisonment by her employer was not barred by the exclusivity of the remedies available under the Workmen’s Compensation Act, since the Act governs only injuries compensable under it, since injuries sustained as the result of a false imprisonment are not the result of accident, but rather arise from a willful act, which injuries are compensable under the Act only if caused by the willful act of a third person, and since the term “third person” refers either to a stranger to the employer-employee relationship, or to a fellow employee acting outside the course and scope of his employment; thus, a declaration alleging that an employee was falsely imprisoned by the head of her employer’s security department, and questioned concerning an amount of money missing from her department, was improperly dismissed. Miller v. McRae's, Inc., 444 So. 2d 368, 1984 Miss. LEXIS 1577 (Miss. 1984).

25. — Caused by third persons.

Finding that workers’ compensation benefits were wrongfully denied to the employee was appropriate because the case was doubtful as to whether the existence of any real or imagined relationship between the former coworker and the employee was the sole cause of the employee’s injuries; doubtful claims were to be resolved in favor of compensation. Int'l Staff Mgmt. & Legion Ins. Co. v. Stephenson, 46 So.3d 367, 2010 Miss. App. LEXIS 128 (Miss. Ct. App.), cert. denied, 49 So.3d 636, 2010 Miss. LEXIS 564 (Miss. 2010).

In a workers’ compensation death benefits case, the decedent employee’s wife was improperly awarded benefits because the extended escapade the employee (a trucker) went on at a truck stop bar exposed him to risks that could not reasonably be viewed as being associated with the trucking business or arising out of or in the course of his employment when he was shot by a fellow bar patron. Total Transp., Inc. v. Shores, 968 So. 2d 456, 2006 Miss. App. LEXIS 874 (Miss. Ct. App. 2006), aff'd, 968 So. 2d 400, 2007 Miss. LEXIS 525 (Miss. 2007).

Under §§71-3-9 and71-3-3(b), an employee’s claim for damages resulting from false imprisonment by her employer was not barred by the exclusivity of the remedies available under the Workmen’s Compensation Act, since the Act governs only injuries compensable under it, since injuries sustained as the result of a false imprisonment are not the result of accident, but rather arise from a willful act, which injuries are compensable under the Act only if caused by the willful act of a third person, and since the term “third person” refers either to a stranger to the employer-employee relationship, or to a fellow employee acting outside the course and scope of his employment; thus, a declaration alleging that an employee was falsely imprisoned by the head of her employer’s security department, and questioned concerning an amount of money missing from her department, was improperly dismissed. Miller v. McRae's, Inc., 444 So. 2d 368, 1984 Miss. LEXIS 1577 (Miss. 1984).

A convenience store clerk, who was raped in the course of a store robbery, was injured as a consequence of conditions brought about by risks of the work environment, and thus her exclusive remedy was under Miss Code §71-3-9. Williams v. Munford, Inc., 683 F.2d 938, 1982 U.S. App. LEXIS 16296 (5th Cir. Miss. 1982).

In a workmen’s compensation case arising out of the murder of a taxicab driver who had been dispatched to pick up a fare between one and two hours before his body was discovered by the police about a block away from his cab, the victim’s dependents were properly awarded benefits where they had presented facts from which the Workmen’s Compensation Commission could reasonably infer that the driver had been engaged in his employer’s business at the time of the attack, and that his employment had exposed him to the hazard of robbery or assault. Johnson v. Roundtree, 406 So. 2d 810, 1981 Miss. LEXIS 2298 (Miss. 1981).

The dependent of a deceased employee of a service station was properly granted workmen’s compensation benefits where the deceased employee had been shot and killed by the husband of the deceased employee’s supervisor, who was also a supervisor at the service station, and where the evidence supported the conclusion that the deceased employee had thought that he was involved in a work-related activity when he was called over to the husband’s automobile, despite the fact that the confrontation arose because of the employee’s relationship with the wife. Kerr-McGee Corp. v. Hutto, 401 So. 2d 1277, 1981 Miss. LEXIS 2069 (Miss. 1981).

A route salesman who stopped to assist an apparently disabled motorist and who was rendered permanently and totally disabled when the motorist struck him with a gun was entitled to workmen’s compensation, despite the employer’s contention that his injuries did not arise out of and in the course of his employment; an employer may reasonably foresee that his traveling employee will stop to aid a distressed motorist when implored to do so, and since the present claimant’s injury resulted from a humanitarian act which was literally thrown into his path because of his employment, the employee was entitled to compensation. The singular purpose pervading the Workmen’s Compensation Act is to promote the welfare of laborers within the state (§71-3-1), and it should be construed fairly to further its humanitarian aims. Big "2" Engine Rebuilders v. Freeman, 379 So. 2d 888, 1980 Miss. LEXIS 1834 (Miss. 1980).

Evidence that the employee was murdered by a jilted suitor and that the only connection between her employment and the cause of her death was that she was on duty at the time she was shot and was merely informing the slayer of the rules of the telephone company prohibiting visitors in the operating room at the telephone exchange, and immediately after shooting the employee the slayer turned a pistol upon himself and committed suicide, failed to establish that the employee was killed because of her employment, since the act of the slayer in committing suicide negatived the idea that he killed the employee because of her employment, and thus the employee was not within the protection of the Estate of West v. Southern Bell Tel. & Tel. Co., 228 Miss. 890, 90 So. 2d 1, 1956 Miss. LEXIS 578 (Miss. 1956).

26. — Other particular causes of injuries.

Mississippi Workers’ Compensation Commission did not err in reversing the administrative judge’s determination that the claimant was acting in the scope of his employment when he rode toward his house after lunch to switch from his motorcycle to his jeep before returning to his office because he was on a personal errand to exchange vehicles unconnected to a business purpose for his employer; he had a fixed place of employment; while aspects of his work included travel to service locations, and he was entitled to reimbursement for that travel, his position was not comparable to that of a truck driver or traveling salesman; and travel to lunch and his personal errand home to exchange vehicles were outside the scope of his employment. Bennett v. Miss. State Dep't of Health, 211 So.3d 773, 2016 Miss. App. LEXIS 474 (Miss. Ct. App. 2016).

Substantial evidence supported the Workers’ Compensation Commission’s award of benefits because the evidence showed (1) travel was a large part of the employee’s work, and (2) the employee was returning home from such travel engaged in to perform work for an employer when the employee was injured in an accident. Choctaw Resort Dev. Enter. v. Applequist, 161 So.3d 1134, 2015 Miss. App. LEXIS 214 (Miss. Ct. App. 2015).

Employee was not entitled to workers’ compensation benefits for injuries arising out of an accident that occurred during her lunch hour while the employee was crossing a public street because the employee was not a traveling employee, the personal comfort doctrine was not applicable, and the threshold doctrine was not applicable. The employee’s injuries did not take place during the course of her employment. Bouldin v. Miss. Dep't of Health, 1 So.3d 890, 2008 Miss. App. LEXIS 437 (Miss. Ct. App. 2008), cert. denied, 999 So. 2d 1280, 2009 Miss. LEXIS 11 (Miss. 2009).

Substantial evidence supported the determination that the claimant’s asthma was work-related where two physicians testified that the claimant’s asthma was aggravated by work exposure to chemicals. International Paper Co. v. Greene, 773 So. 2d 399, 2000 Miss. App. LEXIS 557 (Miss. Ct. App. 2000).

The claimant suffered injury as defined in subsection (b) of this section when he had a heart attack while on the job because job related stress adversely affected, contributed to, and aggravated the claimant’s medical condition as he routinely disposed of his duties. City of Laurel v. Blackledge, 1999 Miss. App. LEXIS 333 (Miss. Ct. App. June 22, 1999), op. withdrawn, sub. op., 755 So. 2d 573, 2000 Miss. App. LEXIS 88 (Miss. Ct. App. 2000).

An employee’s injury did not arise out of and in the course of his employment as a sack boy at a grocery store where the injury occurred when a firecracker which the employee had been given by another worker exploded in his hand, and the store had a policy of no foul play, which included fireworks, so that the employee’s conduct was against the rules of the business; the accident and injury were the result of the employee’s own misuse of and involvement with an object which was prohibited and outside the scope of the employee’s employment, and therefore the injury sustained was not compensable. Mathis v. Nelson's Foodland, Inc., 606 So. 2d 101, 1992 Miss. LEXIS 49 (Miss. 1992).

The evidence was sufficient to support a finding by the Workers’ Compensation Commission that noise at an employee’s work site was a contributing, precipitating, or aggravating factor in the production of Meniere’s Syndrome, even though the etiology of Meniere’s Syndrome is largely unknown, where there was substantial evidence that exposure to high intensity noise for a period of years at the work site contributed to, aggravated or accelerated the employee’s condition, and this evidence was not controverted by any direct medical evidence. Georgia-Pacific Corp. v. Gregory, 589 So. 2d 1250, 1991 Miss. LEXIS 763 (Miss. 1991).

Injuries sustained by employee in airplane crash arose out of and in course of employment where employer ordered employee into plane so that employee could be taken to work location. National Aviation Underwriters v. Caldwell, 689 F. Supp. 639, 1988 U.S. Dist. LEXIS 8258 (N.D. Miss. 1988).

27. — Mental injuries.

Denial of workers’ compensation benefits for an alleged disabling mental disability was appropriate because the employee failed to present any medical evidence establishing a causal connection between her employment and the alleged injury while the employer’s expert testified that his evaluation of the employee indicated that the employee did not suffer any work-related injury. Lacy v. Jackson State Univ., 120 So.3d 1044, 2013 Miss. App. LEXIS 549 (Miss. Ct. App. 2013).

Although a clear and convincing evidence standard was inapplicable to a worker’s claim of mental injury allegedly resulting from physical injury, the claim was properly denied because there was substantial evidence to support a finding that the worker failed to prove a causal connection between the mental and physical injuries even by “clear evidence.” Daniels v. Peco Foods of Miss., Inc., 980 So. 2d 360, 2008 Miss. App. LEXIS 244 (Miss. Ct. App. 2008).

Workers’ compensation claimant could not receive compensation for his nervous breakdown where there was conflicting medical testimony as to whether his condition was work-related under Miss. Code. Ann. §71-3-3 (b), and claimant’s testimony of longer workdays and higher pressure during period preceding his breakdown was uncorroborated. McElveen v. Croft Metals, Inc., 915 So. 2d 14, 2005 Miss. App. LEXIS 479 (Miss. Ct. App. 2005).

Appellate court held that an agency determination that a worker who claimed that she was totally disabled from performing her job as a retail store manager as a result of headaches and depression allegedly caused by extremely stressful working conditions over a number of years had not shown a compensable mental illness for the purposes of workers’ compensation was not clearly erroneous; worker failed to show that her condition was the result of working conditions that were different from those experienced by other workers or were caused or aggravated by a work-related physical injury. Kirk v. K-Mart Corp., 838 So. 2d 1007, 2003 Miss. App. LEXIS 101 (Miss. Ct. App. 2003).

Employee’s claim for disability benefits for a mental injury was properly denied as insufficient evidence was presented to prove a causal connection between the employee’s work and her mental injuries, namely, her long history of battling depression. Page v. Zurich Am. Ins. Co., 825 So. 2d 721, 2002 Miss. App. LEXIS 498 (Miss. Ct. App. 2002).

A claimant failed to make the requisite showing that her mental condition was causally connected to her employment where 2 doctors testified that the claimant had suffered from psychological disorders prior to the incident alleged to have caused her mental injury, the Workers’ Compensation Commission found the testimony of another doctor, who diagnosed the claimant as having severe post-traumatic stress disorder and major depression with some psychotic symptoms, to be unconvincing, and the incident alleged to have caused the claimant’s mental injury-a private meeting with her supervisor during which the supervisor threatened to fire her-was not an “untoward event.” Bates v. Countrybrook Living Center, 609 So. 2d 1247, 1992 Miss. LEXIS 589 (Miss. 1992).

The evidence was sufficient to support the Workers’ Compensation Commission’s finding that an employee’s mental disability was caused by a deliberate course of conduct by his employer and that there was nothing in his psychological background to suggest a pre-existing personality disorder, so that the stresses to which the employee was subjected were “more than the ordinary incidents of employment” and were “untoward events or unusual occurrences” culminating in his subsequent disability, where a psychiatrist who treated the employee for over 2 years testified that the employee was psychologically disabled and that his work played a significant part in causing it, and testimony from the employee, the employee’s wife, and fellow employees established a protracted pattern by the employer to put pressure and stress upon the employee. Borden, Inc. v. Eskridge, 604 So. 2d 1071, 1991 Miss. LEXIS 795 (Miss. 1991).

In order to be compensable, a mental injury, unaccompanied by physical trauma, must have been caused by something more than the ordinary incidents of employment. Fought v. Stuart C. Irby Co., 523 So. 2d 314, 1988 Miss. LEXIS 86 (Miss. 1988).

Worker’s injury resulting from hysterical conversion reaction when employer, through agent, deliberately creates heightened expectation of advancement in particular worker and then triggers reaction by doing something worker could reasonably perceive as betrayal is compensable. Brown & Root Constr. Co. v. Duckworth, 475 So. 2d 813, 1985 Miss. LEXIS 2237 (Miss. 1985).

Mental injury of worker unaccompanied by physical trauma is not directly linked to untoward event, unusual occurrence, accident or injury incident to employment, as required for worker to be entitled to worker’s compensation benefits, where worker claims that mental injury results from termination of worker due to business conditions eliminating need for worker’s employment; if worker were entitled to benefits at all, it would only be to apportioned benefits if worker has long history of mental and emotional disorders prior to termination. Smith & Sanders, Inc. v. Peery, 473 So. 2d 423, 1985 Miss. LEXIS 2159 (Miss. 1985).

Incapacity for work due to mental condition not resulting from work-connected injury is not compensable. International Paper Co. v. Wilson, 243 Miss. 659, 139 So. 2d 644, 1962 Miss. LEXIS 391 (Miss. 1962).

28. —Occupational diseases.

Physicians’ testimony that smoking would not have caused the fibrotic scarring to the lungs that the employee suffered, was not wholly conclusive, but was supported by substantial evidence, as was evidence of the employee’s decreased earning capacity, because the employee required the assistance of a co employee for more strenuous tasks; thus, the employee’s award of benefits for permanent disability and loss of wage-earning capacity was proper. Cooper Tire & Rubber Co. v. Harris, 837 So. 2d 789, 2003 Miss. App. LEXIS 79 (Miss. Ct. App. 2003), amended, 2003 Miss. App. LEXIS 301 (Miss. Ct. App. Apr. 8, 2003).

Disability resulting from an occupational disease is not compensable under the Workmen's Compensation Law. Heckford v. International Paper Co., 242 Miss. 337, 135 So. 2d 415, 1961 Miss. LEXIS 564 (Miss. 1961).

Arteriosclerosis is not an occupational disease. Capital Broadcasting Co. v. Wilkerson, 240 Miss. 64, 126 So. 2d 242, 1961 Miss. LEXIS 430 (Miss. 1961).

29. —Other particular injuries.

Denial of the employee’s claim for medical and disability benefits was appropriate under Miss. Code Ann. §71-3-3(b) because the employee’s medical experts were unable to ascertain to a reasonable degree of medical probability that the employee’s lung and heart problems were the result of his having been exposed to the cleaner. Further, the employee provided inconsistent accounts with regard to the incident itself. Langford v. Southland Trucking, LLC, 30 So.3d 1266, 2010 Miss. App. LEXIS 142 (Miss. Ct. App. 2010).

Where the employees’ injuries arose out of and in the course of employment, under Miss. Code Ann. §71-3-3(b), their claims of battery and intentional infliction of emotional distress against the employer were not precluded by the Mississippi Workers’ Compensation Act, Miss. Code Ann. §71-3-9, as a matter of law. Franklin Corp. v. Tedford, 2009 Miss. LEXIS 169 (Miss. Apr. 16, 2009).

In a case where an employee fell over dead from a heart attack while waiting to get trained on a new machine, several benefit claimants were not entitled to recover workers’ compensation benefits under Miss. Code Ann. §71-3-3(b) because there was no causal connection shown; the employee did not have any unusual assignments or work conditions, and the medical evidence established that the death was not work-related. Harbin v. Outokumpu Heatcraft USA, LLC, 958 So. 2d 1260, 2007 Miss. App. LEXIS 395 (Miss. Ct. App. 2007).

Where several doctors opined that an employee’s repetitive act of reaching for a time clock 300 to 400 times per day aggravated a pre-existing condition, temporary total disability benefits were properly awarded due to Miss. Code Ann. §71-3-3(b). Casino Magic v. Nelson, 958 So. 2d 224, 2007 Miss. App. LEXIS 41 (Miss. Ct. App. 2007).

Evidence was sufficient to establish that the claimant had a permanent medical impairment attributable to his coronary condition and that the claimant’s coronary artery disease and the associated blockage were related to the stress of his employment as a firefighter because the claimant’s physician noted that the job the claimant worked was stressful and stated that the stress of his job had a real contributing factor and that the claimant continued to be unable to work and should be considered totally and permanently disabled. City of Laurel v. Blackledge, 755 So. 2d 573, 2000 Miss. App. LEXIS 88 (Miss. Ct. App. 2000).

There was substantial evidence supporting a finding by the Workers’ Compensation Commission that a claimant’s impairment was a whole body injury rather than a schedule numbered injury only, where a physician identified the claimant’s malady as Meniere’s Syndrome, and he testified that Meniere’s Syndrome is “an inner ear dysfunction that appears to be lifelong in nature” and that it affected the entire body in that, in addition to a loss of hearing, it involved a balance dysfunction affecting the claimant’s activities of daily living, both occupationally and socially. Georgia-Pacific Corp. v. Gregory, 589 So. 2d 1250, 1991 Miss. LEXIS 763 (Miss. 1991).

An injury sustained by an employee when he fell during work, as a result of alcohol withdrawal syndrome, and struck the employer’s concrete floor, constituted an “injury” as defined in §71-3-3; any injury sustained by an employee resulting from a fall upon a work premise floor is a confrontation with a condition of employment which contributed to the employee’s injury and “arises out of and in the course of employment” as a matter of law. Smith v. Container General Corp., 559 So. 2d 1019, 1990 Miss. LEXIS 192 (Miss. 1990).

Lordosis and obesity held not such physical handicap as to require apportionment of compensation to employee who twisted knee in turning to pick up bundle. I. Taitel & Son v. Twiner, 247 Miss. 785, 157 So. 2d 44, 1963 Miss. LEXIS 356 (Miss. 1963).

30. — Proof of injuries.

Mississippi Workers’ Compensation Commission erred in overturning an administrative law judge’s ruling that an employer owed an employee disability payments because the employee proved a work-related injury, he suffered a loss of wage-earning capacity resulting in permanent-partial disability, and the injury related to his disability; the employer failed to rebut the employee’s prima facie case of disability. Ladner v. Zachry Constr., — So.3d —, 2017 Miss. App. LEXIS 528 (Miss. Ct. App. Sept. 5, 2017).

Workers’ Compensation Commission properly affirmed the denial of benefits to an employee because the employee did not seek medical treatment for a month after developing knee pain, told a nurse at the hospital that he had injured his knee while running and denied any work-related injury, and the medical testimony was insufficient to establish a work-related injury. Johnson v. Sysco Food Servs., 122 So.3d 159, 2013 Miss. App. LEXIS 628 (Miss. Ct. App. 2013).

Mississippi Workers’ Compensation Commission’s decision that a worker suffered an accidental injury, pursuant to Miss. Code Ann. §71-3-3(b), within the course and scope of the worker’s employment, pursuant to Miss. Code Ann. §71-3-1(3), was not contrary to the overwhelming weight of the evidence because, although no one saw the worker pick a tire up and injure the worker’s back, the worker informed the worker’s supervisor immediately following the injury, and the supervisor testified that the worker emerged from beneath a van, stood up, and stated that the worker’s back was bothering the worker. The only contradictory evidence presented was by the store manager, who claimed that the worker never said that the worker hurt the worker’s back; however, the manager did admit that the worker complained of the worker’s back hurting, and the administrative judge found that the testimony of the worker was definitely more credible than that of the store manager. Performance Tire & Wheel, Inc. v. Rhoads, 113 So.3d 1262, 2013 Miss. App. LEXIS 195 (Miss. Ct. App. 2013).

Court of appeals erred in finding that an employee made a prima facie showing of permanent total disability and in awarding her compensation because the substantial evidence supported a finding that the employee did not have a permanent, total disability, and there was substantial evidence that the lack of employment was not due to the employee’s injury; the employee’s termination notice stated that she was being terminated due to her probationary status rather than as a consequence of her injury, and the Mississippi Workers’ Compensation Commission’s conclusion that the employee was unable to find employment due to the depressed economic conditions in the area where she lived and not to the injury itself was based on substantial evidence presented by the employee’s expert. he employee was terminated from her position with the group home shortly after her accident. Lott v. Hudspeth Ctr., 26 So.3d 1044, 2010 Miss. LEXIS 11 (Miss. 2010).

Where there was conflicting medical evidence regarding a claimant’s lumbar condition and her need for lumbar spine injury, an appellate court could not say that the Workers’ Compensation Commission’s decision to deny benefits was arbitrary and capricious. Washington v. Woodland Vill. Nursing Home, 25 So.3d 341, 2009 Miss. App. LEXIS 108 (Miss. Ct. App. 2009), cert. denied, 24 So.3d 1038, 2010 Miss. LEXIS 2 (Miss. 2010).

Substantial evidence supported the Mississippi Workers’ Compensation Commission’s decision that the employee sustained a permanent medical and occupational disability as a result of her lower back injury under Miss. Code Ann. §71-3-3(i) because the second functional capacity evaluation concluded that the employee was not able to return to her regular duties and that she was only able to lift at the sedentary range. Whirlpool Corp. v. Wilson, 952 So. 2d 267, 2006 Miss. App. LEXIS 844 (Miss. Ct. App. 2006).

In a workers’ compensation case, a claimant’s treating physician stated in his deposition that the claimant’s cerebral hemorrhage was caused by poorly controlled hypertension and could not be related to the stress of his employment to a reasonable degree of medical probability; there was nothing in the record to suggest that the opinion of the treating physician was not credible evidence upon which the Mississippi Workers’ Compensation Commission was entitled to rely. Also, the Commission acted within its discretion in discounting another doctor’s testimony since that doctor had not examined the claimant or even spoken with him, and had failed to review all of the pertinent medical records; therefore, the Commission’s decision denying the claimant workers’ compensation benefits was neither arbitrary nor capricious as the treating physician’s testimony provided substantial support for the Commission’s finding that the claimant had failed to show that his intracerebral hemorrhage was caused or contributed to by the stress he experienced in his employment as a deputy sheriff. Mabry v. Tunica County Sheriff's Dep't, 911 So. 2d 1038, 2005 Miss. App. LEXIS 667 (Miss. Ct. App. 2005).

Employee proved that she had a loss of wage-earning capacity under Miss. Code Ann. §71-3-3(i) because she testified that her supervisors required her to return to full duty on the assembly line or leave and that after she resigned she contacted 11 different businesses seeking employment without success and that she registered with the Mississippi Employment Security Commission (now Department of Employment Security). Whirlpool Corp. v. Wilson, 952 So. 2d 267, 2006 Miss. App. LEXIS 844 (Miss. Ct. App. 2006).

Employee’s injury was compensable under Miss. Code Ann. §71-3-3(b) because there was no doubt that a doctor’s expert medical opinion supported the Workers’ Compensation Commission’s decision regarding the employee’s injury; while there was a conflict in expert medical opinion, the appellate court was not permitted to resolve conflicts in the evidence based on its mandated presumption that the commission resolved all such conflicts. Union Camp Corp. v. Hall, 955 So. 2d 363, 2006 Miss. App. LEXIS 696 (Miss. Ct. App. 2006), cert. dismissed, 956 So. 2d 228, 2007 Miss. LEXIS 215 (Miss. 2007).

Appellate court affirmed a determination that a claimant was not entitled to partial permanent disability benefits under Miss. Code Ann. Miss. Code Ann. §71-3-3(i) as the claimant failed to establish that he had sought similar work as a tire builder and that the employer had refused to rehire or reinstate him. Havard v. Titan Tire Corp., 919 So. 2d 995, 2005 Miss. App. LEXIS 429 (Miss. Ct. App. 2005).

Medical testimony from the employee’s treating physicians supported the permanence of his disability as follows: (1) one physician testified that he had suffered a 20 percent permanent medical impairment to his entire body due to his neck injury’ (2) a second physician restricted him to medium duty based on clinical examinations, diagnostic tests, and his complaints of pain; (3) three years after the accident, the employee was further restricted to light duty; and (4) a third physician concluded that he would “never be able to return to duty without severe spasm.” The record was clear that he was unable to return to his work as a diesel mechanic due to his injury, and that he had also incurred a 50 percent reduction in his earning capacity given his pain, his age, and his occupational history. Bryan Foods, Inc. v. White, 913 So. 2d 1003, 2005 Miss. App. LEXIS 266 (Miss. Ct. App.), cert. denied, 921 So. 2d 344, 2005 Miss. LEXIS 710 (Miss. 2005).

Trial court did not err in compensating an employee for a cervical injury; the injury was compensable under Miss. Code Ann. §71-3-3(b) because it was work-related, there was substantial evidence of the injury, and the employee’s claim of disability was supported by medical findings as required by Miss. Code Ann. §71-3-3(i). Howard Indus. v. Robinson, 846 So. 2d 245, 2002 Miss. App. LEXIS 574 (Miss. Ct. App. 2002).

The Workers’ Compensation Commission’s denial of benefits to an asthmatic employee would be reversed, even though a physician testified that there was not a “strong work-related causal connection between [the employee’s] pneumonia and emphysema,” where medical testimony established a causal connection between the exacerbation of her pre-existing respiratory problems and the inhalation of irritants in her work environment, and the employee’s uncontroverted testimony of the onset pain in her side and back along with shortness of breath while she was performing her job duties established that her injury arose out of and in the course of her employment. Hedge v. Leggett & Platt, 641 So. 2d 9, 1994 Miss. LEXIS 362 (Miss. 1994).

The circuit court did not err in reversing the Workers’ Compensation Commission’s finding that a claimant with a back injury had reached maximum medical improvement and suffered no permanent disability where there was evidence that the claimant had 2 ruptured discs surgically removed, specialists who initially concluded that the claimant had no ruptured discs did not later examine him after the discovery of the ruptured discs was made, and the employer failed to show that the claimant suffered any disassociated intervening injury which caused the ruptured discs, their surgical removal and the resulting disability. Marshall Durbin Cos. v. Warren, 633 So. 2d 1006, 1994 Miss. LEXIS 33 (Miss. 1994).

A finding that a claimant was not entitled to permanent disability benefits because his disability, which arose from slippage in the spine, was attributable entirely to preexisting spondylolisthesis was not supported by substantial evidence where there was conflicting medical testimony from 2 treating physicians as to the cause of the claimant’s permanent disability and neither physician could determine how and when the slippage actually occurred, since close questions of compensability should be resolved in favor of the claimant, and the Workers’ Compensation Act should be liberally construed to carry out its remedial purpose. McNeese v. Cooper Tire & Rubber Co., 627 So. 2d 321, 1993 Miss. LEXIS 444 (Miss. 1993).

Certainty is not a requisite in deciding a workers’ compensation case, but, rather, the reviewing court considers reasonable medical probabilities. In other words, medical findings sufficient to show a compensable disability are not required to be precise, complete and unequivocal. Georgia-Pacific Corp. v. Gregory, 589 So. 2d 1250, 1991 Miss. LEXIS 763 (Miss. 1991).

The evidence supported a finding that an employee suffered a 100 percent industrial loss of use of his left leg, rather than only a 40 percent loss, even though the employee’s treating physician testified that the employee had a 40 percent permanent partial impairment of his left leg, where the physician also testified that the employee would be limited in activities such as standing for long periods, climbing ladders and stairs, and carrying heavy loads but that he could work in sedentary types of positions where he could sit to do the work, the employee was a 43-year-old man who dropped out of school during the 10th grade, from that time until the time of his injury he worked in construction, did carpentry work, and delivered furniture, at the time of the injury he was employed at a furniture company where he did not perform any one particular job but was moved around from job to job as needed, some of the jobs that he performed at the company included working in the sanding department, cutting out chest-of-drawer tops, and working in the mill, the employee testified that after his injury he could not do carpentry work and could not do any jobs which required him to stand but he could sand edges and use a table saw, and he testified that he continued to have problems with his leg every day, including swelling and pain. McGowan v. Orleans Furniture, Inc., 586 So. 2d 163, 1991 Miss. LEXIS 596 (Miss. 1991).

Claimant has burden of proving that he sustained an accidental injury arising out of and in the course and scope of his employment, and that the injury caused the disability for which he is claiming benefits. Sonford Products Corp. v. Freels, 495 So. 2d 468, 1986 Miss. LEXIS 2658 (Miss. 1986), overruled, Bickham v. Department of Mental Health, 592 So. 2d 96, 1991 Miss. LEXIS 978 (Miss. 1991).

The Workers’ Compensation Commission’s findings that a truck driver sustained a compensable injury and that the repeated trauma of his work aggravated a pre-existing non-work-related condition were supported by substantial evidence where the worker’s treating physician and the physician for the employer who conducted a physical examination required by the Department of Transportation had released the worker to return to work following treatment for a non-work-related back injury and the treating physician testified that the worker had a “chronically sore joint in the back that was apparently being aggravated by the nature of his work as a long-distance truck driver.” Miller Transporters, Inc. v. Guthrie, 554 So. 2d 917, 1989 Miss. LEXIS 495 (Miss. 1989).

Worker’s Compensation Commission’s finding that claimant had suffered a work-related injury, and was occupationally disabled as a result thereof, was sustained by medical and lay evidence. Delta Drilling Co. v. Cannette, 489 So. 2d 1378, 1986 Miss. LEXIS 2472 (Miss. 1986).

Disability determination must be supported by medical evidence. Delta Drilling Co. v. Cannette, 489 So. 2d 1378, 1986 Miss. LEXIS 2472 (Miss. 1986).

Though disability and extent thereof must be supported by medical findings, compensation may be allowed for disabling pain in absence of positive medical testimony and objective medical findings as to any physical cause. Penrod Drilling Co. v. Etheridge, 487 So. 2d 1330, 1986 Miss. LEXIS 2455 (Miss. 1986).

Testimony of claimant’s physician giving opinion to reasonable medical certainty that claimant has experienced injury resulting in claimant being 100 percent disabled is sufficient to support finding of disability, notwithstanding contradictory testimony by employer’s physician, where claimant’s physician has examined and treated claimant on 9 or 10 occasions and employer’s physician has examined claimant on only one occasion, some 10 months after most recent examination by claimant’s physician. South Cent. Bell Tel. Co. v. Aden, 474 So. 2d 584, 1985 Miss. LEXIS 2197 (Miss. 1985).

Medical testimony that a claimant’s duties as a meat cutter, which required him to spend 65 per cent of his time lifting and carrying heavy food products, probably aggravated a non-work originating disease contracted by the claimant, warranted a determination that the disease constituted an accidental injury within the meaning of the Workmen’s Compensation Law and supported an award of benefits. Kroger Co. v. Orr, 230 So. 2d 798, 1970 Miss. LEXIS 1564 (Miss. 1970).

Finding of disability as the result of a fall held supported by substantial evidence. Forest Constructors, Inc. v. Tadlock, 248 Miss. 460, 160 So. 2d 214, 1964 Miss. LEXIS 275 (Miss. 1964).

Evidence of lay witnesses as to extent of disability held to support award, notwithstanding medical evidence of less disability. McManus v. Southern United Ice Co., 243 Miss. 576, 138 So. 2d 899, 1962 Miss. LEXIS 378 (Miss. 1962).

That workmen’s compensation claimant had represented to disability insurer that his injury was not covered by workmen’s compensation, while not conclusive, is a circumstance to be considered. Parker v. United Gas Corp., 240 Miss. 351, 127 So. 2d 438, 1961 Miss. LEXIS 468 (Miss. 1961).

In order to have a compensable claim, it was not necessary for the claimants to show that the deceased had a pre-existing heart condition or other physical infirmity which could have been aggravated by the work of the deceased. Pennington v. Smith, 232 Miss. 775, 100 So. 2d 569, 1958 Miss. LEXIS 328 (Miss. 1958).

31. Going and coming rule.

Under an exception to the coming-and-going rule, the Mississippi Workers’ Compensation Commission did not err in reversing the administrative judge’s determination that the claimant was acting in the scope of his employment when he rode toward his house after lunch to switch from his motorcycle to his jeep before returning to his office because, while fulfilling certain work orders required the use of an enclosed vehicle to transport equipment, the claimant made a personal decision to transfer vehicles, and the trip home was not necessary to facilitate his scheduled work assignments; and the claimant himself testified that his original plan was to drive straight from lunch to his office. Bennett v. Miss. State Dep't of Health, 211 So.3d 773, 2016 Miss. App. LEXIS 474 (Miss. Ct. App. 2016).

Under an exception to the coming-and-going rule, the Mississippi Workers’ Compensation Commission did not err in reversing the administrative judge’s determination that the claimant was acting in the scope of his employment when he rode toward his house after lunch to switch from his motorcycle to his jeep before returning to his office because, while the claimant was eligible for reimbursement for mileage incurred driving from his office to a work site, or from a work site to his office, he conceded that he would not be entitled to seek reimbursement for driving to lunch or for mileage on a personal errand between service calls. Bennett v. Miss. State Dep't of Health, 211 So.3d 773, 2016 Miss. App. LEXIS 474 (Miss. Ct. App. 2016).

Where an employee, a truck driver, was struck by a drunk driver while driving home in a personal vehicle to take a shower between deliveries, although the employee was not a traveling employee at the time of the accident, the employee met an exception to the “going and coming” rule by performing an employment duty while at home because, inter alia, (1) the employee followed the direction of the employer and attempted to save the company money by taking a shower at home, and (2) while the employee was on a delivery route, the employee was normally paid for the time the employee took a shower and reimbursed for the costs of the showers. Lane v. Hartson-Kennedy Cabinet Top Co., 981 So. 2d 1063, 2008 Miss. App. LEXIS 284 (Miss. Ct. App. 2008).

§71-3-5.Application.

The following shall constitute employers subject to the provisions of this chapter:

Every person, firm and private corporation, including any public service corporation but excluding, however, all nonprofit charitable, fraternal, cultural, or religious corporations or associations, that have in service five (5) or more workmen or operatives regularly in the same business or in or about the same establishment under any contract of hire, express or implied.

Any state agency, state institution, state department, or subdivision thereof, including counties, municipalities and school districts, or the singular thereof, not heretofore included under the Workers’ Compensation Law, may elect, by proper action of its officers or department head, to come within its provisions and, in such case, shall notify the commission of such action by filing notice of compensation insurance with the commission. Payment for compensation insurance policies so taken may be made from any appropriation or funds available to such agency, department or subdivision thereof, or from the general fund of any county or municipality.

From and after July 1, 1990, all offices, departments, agencies, bureaus, commissions, boards, institutions, hospitals, colleges, universities, airport authorities or other instrumentalities of the “state” as such term is defined in Section 11-46-1, Mississippi Code of 1972, shall come under the provisions of the Workers’ Compensation Law. Payment for compensation insurance policies so taken may be made from any appropriation or funds available to such office, department, agency, bureau, commission, board, institution, hospital, college, university, airport authority or other instrumentality of the state.

From and after October 1, 1990, counties and municipalities shall come under the provisions of the Workers’ Compensation Law. Payment for compensation insurance policies so taken may be made from any funds available to such counties and municipalities.

From and after October 1, 1993, all “political subdivisions,” as such term is defined in Section 11-46-1, Mississippi Code of 1972, except counties and municipalities shall come under the provisions of the Workers’ Compensation Law. Payment for compensation insurance policies so taken may be made from any funds available to such political subdivisions.

From and after July 1, 1988, the “state” as such term is defined in Section 11-46-1, Mississippi Code of 1972, may elect to become a self-insurer under the provisions elsewhere set out by law, by notifying the commission of its intent to become a self-insurer. The cost of being such a self-insurer, as provided otherwise by law, may be paid from funds available to the offices, departments, agencies, bureaus, commissions, boards, institutions, hospitals, colleges, universities, airport authorities or other instrumentalities of the state.

The Mississippi Transportation Commission, the Department of Public Safety and the Mississippi Industries for the Blind may elect to become self-insurers under the provisions elsewhere set out by law by notifying the commission of their intention of becoming such a self-insurer. The cost of being such a self-insurer, as provided elsewhere by law, may be paid from funds available to the Mississippi Transportation Commission, the Department of Public Safety or the Mississippi Industries for the Blind.

The Mississippi State Senate and the Mississippi House of Representatives may elect to become self-insurers under provisions elsewhere set out by law by notifying the commission of their intention of becoming such self-insurers. The cost of being such self-insurers, as provided elsewhere by law, may be paid from funds available to the Mississippi State Senate and the Mississippi House of Representatives. The Mississippi State Senate and the Mississippi House of Representatives are authorized and empowered to provide workers’ compensation benefits for employees after January 1, 1970.

Any municipality of the State of Mississippi having forty thousand (40,000) population or more desiring to do so may elect to become a self-insurer under provisions elsewhere set out by law by notifying the commission of its intention of becoming such an insurer. The cost of being such a self-insurer, as provided elsewhere by law, may be provided from any funds available to such municipality.

The commission may, under such rules and regulations as it prescribes, permit two (2) or more “political subdivisions,” as such term is defined in Section 11-46-1, Mississippi Code of 1972, to pool their liabilities to participate in a group workers’ compensation self-insurance program. The governing authorities of any political subdivision may authorize the organization and operation of, or the participation in such a group self-insurance program with other political subdivisions, provided such program is approved by the commission. The cost of participating in a group self-insurance program may be provided from any funds available to a political subdivision.

Domestic servants, farmers and farm labor are not included under the provisions of this chapter, but this exemption does not apply to the processing of agricultural products when carried on commercially. Any purchaser of timber products shall not be liable for workers’ compensation for any person who harvests and delivers timber to such purchaser if such purchaser is not liable for unemployment tax on the person harvesting and delivering the timber as provided by United States Code Annotated, Title 26, Section 3306, as amended. Provided, however, nothing in this section shall be construed to exempt an employer who would otherwise be covered under this section from providing workers’ compensation coverage on those employees for whom he is liable for unemployment tax.

Employers exempted by this section may assume, with respect to any employee or classification of employees, the liability for compensation imposed upon employers by this chapter with respect to employees within the coverage of this chapter. The purchase and acceptance by such employer of valid workers’ compensation insurance applicable to such employee or classification of employees shall constitute, as to such employer, an assumption by him of such liability under this chapter without any further act on his part notwithstanding any other provisions of this chapter, but only with respect to such employee or such classification of employees as are within the coverage of the state fund. Such assumption of liability shall take effect and continue from the effective date of such workers’ compensation insurance and as long only as such coverage shall remain in force, in which case the employer shall be subject with respect to such employee or classification of employees to no other liability than the compensation as provided for in this chapter.

An owner/operator, and his drivers, must provide a certificate of insurance of workers’ compensation coverage to the motor carrier or proof of coverage under a self-insured plan or an occupational accident policy. Any such occupational accident policy shall provide a minimum of One Million Dollars ($1,000,000.00) of coverage. Should the owner/operator fail to provide written proof of coverage to the motor carrier, then the owner/operator, and his drivers, shall be covered under the motor carrier’s workers’ compensation insurance program and the motor carrier is authorized to collect payment of the premium from the owner/operator. In the event that coverage is obtained by the owner/operator under a workers’ compensation policy or through a self-insured or occupational accident policy, then the owner/operator, and his drivers, shall not be entitled to benefits under the motor carrier’s workers’ compensation insurance program unless the owner/operator has elected in writing to be covered under the carrier’s workers’ compensation program or policy or if the owner/operator is covered by the carrier’s plan because he failed to obtain coverage. Coverage under the motor carrier’s workers’ compensation insurance program does not terminate the independent contractor status of the owner/operator under the written contract or lease agreement. Nothing shall prohibit or prevent an owner/operator from having or securing an occupational accident policy in addition to any workers’ compensation coverage authorized by this section. Other than the amendments to this section by Chapter 523, Laws of 2006, the provisions of this section shall not be construed to have any effect on any other provision of law, judicial decision or any applicable common law.

This chapter shall not apply to transportation and maritime employments for which a rule of liability is provided by the laws of the United States.

This chapter shall not be applicable to a mere direct buyer-seller or vendor-vendee relationship where there is no employer-employee relationship as defined by Section 71-3-3, and any insurance carrier is hereby prohibited from charging a premium for any person who is a seller or vendor rather than an employee.

Any employer may elect, by proper and written action of its own governing authority, to be exempt from the provisions of the Workers’ Compensation Law as to its sole proprietor, its partner in a partnership or to its employee who is the owner of fifteen percent (15%) or more of its stock in a corporation, if such sole proprietor, partner or employee also voluntarily agrees thereto in writing. Any sole proprietor, partner or employee owning fifteen percent (15%) or more of the stock of his/her corporate employer who becomes exempt from coverage under the Workers’ Compensation Law shall be excluded from the total number of workers or operatives toward reaching the mandatory coverage threshold level of five (5).

HISTORY: Codes, 1942, § 6998-03; Laws, 1948, ch. 354, § 3; Laws, 1950, ch. 412, § 2; Laws, 1960, ch. 438; Laws, 1963, 1st Ex. Sess. ch. 36; Laws, 1964, ch. 443; Laws, 1968, ch. 478, § 1; Laws, 1970, ch. 454, § 1; ch. 455, § 1; Laws, 1972, ch. 522, § 1; Laws, 1981, ch. 416, § 1; reenacted, Laws, 1982, ch. 473, § 3; Laws, 1983, ch. 422, § 7; Laws, 1987, ch. 483, § 13; Laws, 1988, ch. 442, § 10; Laws, 1988, ch. 479, § 6; Laws, 1989, ch. 537, § 9; reenacted without change, Laws, 1990, ch. 405, § 3; reenacted and amended, Laws, 1990, ch. 518, § 10; Laws, 1991, ch. 618, § 45; Laws, 1992, ch. 491 § 47; Laws, 1992, ch. 577 § 1; Laws, 1992 Special Session, ch. 3, § 4; Laws, 2006, ch. 523, § 1, eff from and after passage (approved Apr. 3, 2006.).

Amendment Notes —

The 2006 amendment added the paragraph beginning “An owner/operator, and his drivers, must provide a certificate of insurance of workers’ compensation coverage” and ending “any other provision of law, judicial decision or any applicable common law.”

Cross References —

Offset of workers’ compensation against disability retirement benefits of public employees, see §25-11-113.

Election of National Guard to come within provisions of Workers’ Compensation Law, see §33-1-29.

Workers’ compensation coverage for civilian defense personnel, see §§33-15-15,33-15-21.

Mississippi Industries for the Blind, see §§43-3-101 et seq.

Department of Public Safety generally, see §45-1-1 et seq.

Workers’ compensation coverage for patrolmen and other public safety department personnel, see §45-1-15.

Workers’ compensation coverage for guards and other state penitentiary personnel, see §47-5-43.

Workers’ compensation coverage for port commission employees, see §59-7-205.

Exclusion of workers’ compensation coverage from motor vehicle liability policy, see §63-15-43.

Mississippi Transportation Commission, see §65-1-3.

Establishment of special workers’ compensation account for payment of compensation, see §71-3-38.

Exception of workers’ compensation coverage from health and accident insurance laws, see §83-9-17.

Workers’ compensation coverage for condominium owners, see §89-9-17.

JUDICIAL DECISIONS

1. In general.

2. Standard of proof.

3. Number of employees.

4. Exemptions.

5. —Farmers and farm labor.

6.— Maritime employment.

7. —Governmental entities and agencies.

8. —Other exclusions.

9. Liability for coverage.

10. Review.

1. In general.

Workers’ Compensation Act applied to an employer because it had at least five employees at the time of a workers’ injury; there was no evidence that any of the employer’s officers had elected to opt out of coverage in writing, and thus, they acted as employees and counted as employees for coverage purposes. Southeastern Auto Brokers v. Graves, 210 So.3d 1012, 2015 Miss. App. LEXIS 205 (Miss. Ct. App. 2015).

Self-insured employer was bound by statement in employee handbook provided to every employee that employees would be covered for what would in effect be compensable injury under Workers' Compensation Act. Southwest Miss. Regional Medical Ctr. v. Lawrence, 684 So. 2d 1257, 1996 Miss. LEXIS 642 (Miss. 1996).

Employee proved by preponderance of evidence that his employer did not carry workers’ compensation, as required for every employer with five or more employees. James M. Burns Lumber Co. v. Dilworth, 676 So. 2d 892, 1996 Miss. LEXIS 297 (Miss. 1996).

Where an employee was in the course and scope of his employment with both Mississippi and Louisiana employers at the time of his death, a settlement from the Louisiana employers in Louisiana workmen’s compensation proceedings did not bar a claim for death benefits against the Mississippi employer-carrier in Mississippi, but the Mississippi employer-carrier was entitled to credit for the amount paid by the Louisiana employers. Dependents of Roberts v. Holiday Parks, Inc., 260 So. 2d 476, 1972 Miss. LEXIS 1571 (Miss. 1972).

The Mississippi Workmen’s Compensation Law was adopted in the exercise of the state’s police power to provide for the welfare of its citizens and others performing labor within its borders, and the state has a legitimate interest in imposing a rule of compensation liability where the injury occurs in that state. Nowlin v. Lee, 203 So. 2d 493, 1967 Miss. LEXIS 1379 (Miss. 1967).

The relation of employer and employee is not invalidated because the contract under which the employer is proceeding may be an improvident one. Virden Lumber Co. v. Price, 223 Miss. 336, 78 So. 2d 157, 1955 Miss. LEXIS 385 (Miss. 1955).

The requirement that the employer must secure payment of compensation means that he must have in effect an insurance policy complying with the Workmen’s Compensation Law, or must qualify as self-insurer. McCoy v. Cornish, 220 Miss. 577, 71 So. 2d 304, 1954 Miss. LEXIS 474 (Miss. 1954).

2. Standard of proof.

In a case where it was decided that two owners should have procured workers’ compensation insurance for a logging business, the preponderance of the evidence standard was properly used in making this determination under Miss. Code Ann. §71-3-5, rather than the clear and convincing proof standard in Miss. Code Ann. §71-3-83. White v. Jordan, 11 So.3d 755, 2008 Miss. App. LEXIS 679 (Miss. Ct. App. 2008), cert. denied, 12 So.3d 531, 2009 Miss. LEXIS 289 (Miss. 2009), cert. denied, 2009 Miss. LEXIS 297 (Miss. June 25, 2009).

3. Number of employees.

Where decedent was killed while hauling logs for a subcontractor, the subcontractor, a trucking company, was qualified as an employer because it had five or more workmen or operatives under any contract of hire; therefore, the subcontractor had an obligation to secure compensation for its employees, which it did by having the contracting deduct premiums from the contractor’s payments to the subcontractor. Lamar v. Thomas Fowler Trucking, Inc., 956 So. 2d 878, 2007 Miss. LEXIS 279 (Miss. 2007).

In the absence of any statutory provision for omission of out-of-state employees of the same employer in the count for the purpose of determining the minimum number of employees, out-of-state employees should be counted for the purpose of making such a determination. Nowlin v. Lee, 203 So. 2d 493, 1967 Miss. LEXIS 1379 (Miss. 1967).

Where the employer was engaged in the business of developing real estate in both Tennessee and Mississippi and his employees in Tennessee and Mississippi were all employees of the same establishment and were paid out of the same bank account, it was proper to add the number of his Tennessee employees to those working for him in Mississippi to determine whether he had the statutory minimum of eight employees. Nowlin v. Lee, 203 So. 2d 493, 1967 Miss. LEXIS 1379 (Miss. 1967).

Under evidence showing that, among other things, the work performed by three commissioned salesmen, who drove their own automobiles, constituted an integral part of the business of a partnership selling sewing machines, the partnership controlled the maximum price of the machines, could accept or reject any deferred payment contracts, required the salesmen to service the machines sold, could fire any of the salesmen at will, and the salesmen turned over to the partnership all funds collected, the attorney-referee and the commission did not err in finding that the commission salesmen were employees and not independent contractors, so that the partnership, which employed five additional persons, was an employer subject to the provisions of the Workmen’s Compensation Law. Kahne v. Robinson, 232 Miss. 670, 100 So. 2d 132, 100 So. 2d 585, 1958 Miss. LEXIS 315, 1958 Miss. LEXIS 316 (Miss. 1958).

If by the character of the work the employer has once regularly employed eight or more persons, he remains under the Workmen’s Compensation Law even when the number employed temporarily falls below the minimum, and it is not necessary that the minimum number of workers shall be employed on the same job or at the same place. Mosley v. Jones, 224 Miss. 725, 80 So. 2d 819, 1955 Miss. LEXIS 535 (Miss. 1955).

The Workmen’s Compensation Law does not deny equal protection of the laws because it excludes employees of persons, firms, and corporations having in service less than eight workmen. Walters v. Blackledge, 220 Miss. 485, 71 So. 2d 433, 1954 Miss. LEXIS 464 (Miss. 1954).

The question whether the number of men employed is such as to bring the employer within the Workmen’s Compensation Law is to be determined by the character of the work in which the men are employed, however brief or long, and not by the character of the employment whether regular, casual, occasional, periodical, or otherwise, so long as they were hired to do the work in common or unusual business of the employer. Jackson v. Fly, 215 Miss. 303, 60 So. 2d 782, 63 So. 2d 536, 1953 Miss. LEXIS 363 (Miss. 1953).

4. Exemptions.

If exemptions are to be surrendered, the intention of the exemptionist to do so must be reasonably clear and certain. Eaton v. Joe N. Miles & Sons, 238 Miss. 605, 119 So. 2d 359, 1960 Miss. LEXIS 444 (Miss. 1960).

5. —Farmers and farm labor.

Employer was in the business of processing oyster meat, rather than farming, and, therefore, an employee was not exempted from the act where the employer removed oysters from their shells, washed them, and packed them. Bradford Seafood Co. v. Alexander, 785 So. 2d 321, 2001 Miss. App. LEXIS 209 (Miss. Ct. App. 2001).

A claimant who did not engage in agricultural pursuits of any nature whatsoever and whose sole activity was that of clearing land, using a bulldozer for this purpose and performing mechanical work on the machine, was not a “farm laborer” within the exemption provided by this section [Code 1942, § 6998-03]. Nowlin v. Lee, 203 So. 2d 493, 1967 Miss. LEXIS 1379 (Miss. 1967).

A partnership did not lose its right to exemption by merely taking out workmen’s compensation insurance to cover their farm laborers at time of purchase of the farm, where there was no compliance with the statutory requirement as to the posting of notices on the premises, and notification was not given to the workmen’s compensation commission of their election to come under the Workmen’s Compensation Law, and the claimant was not led to believe that he would receive workmen’s compensation benefit if injured in the course of his employment. Eaton v. Joe N. Miles & Sons, 238 Miss. 605, 119 So. 2d 359, 1960 Miss. LEXIS 444 (Miss. 1960).

A claimant who was injured while combining seed on employer’s farm was doing farm labor at the time of his injury and was not engaged in commercial processing of agricultural products. Eaton v. Joe N. Miles & Sons, 238 Miss. 605, 119 So. 2d 359, 1960 Miss. LEXIS 444 (Miss. 1960).

Death of a sharecropper and farm laborer resulting from his being thrown from and run over by the landowner’s tractor and trailer while hauling his own cotton from the field to the landowner’s gin arose out of and in the course of his farming activities, so that his widow and dependent could not recover death benefits under the Workmen's Compensation Law. Wilkins v. Wood, 229 Miss. 553, 91 So. 2d 560, 1956 Miss. LEXIS 639 (Miss. 1956).

6. — Maritime employment.

Workers’ Compensation Commission properly dismissed an employee’s claim for benefits because the Workers’ Compensation Act excluded transportation and maritime employments for which a rule of liability was provided by the law of the United States, the employee was engaged in maritime employment at that time of his injury, and he had accepted benefits under the Longshore and Harbor Workers' Compensation Act. Kimbrough v. Fowler's Pressure Washing, LLC, 170 So.3d 609, 2015 Miss. App. LEXIS 116 (Miss. Ct. App.), cert. denied, 168 So.3d 962, 2015 Miss. LEXIS 401 (Miss. 2015).

In an action against a general contractor and a subcontractor arising from the death of an iron worker while constructing a casino on a barge on a navigable waterway, the general contractor was not entitled to immunity as the decedent’s statutory employer because the decedent was covered by the federal Longshore and Harbor Workers’ Compensation Act at the time of his death. Accu-Fab & Constr., Inc. v. Ladner by & Through Ladner, 970 So. 2d 1276, 2000 Miss. App. LEXIS 111 (Miss. Ct. App. 2000), aff'd, 778 So. 2d 766, 2001 Miss. LEXIS 38 (Miss. 2001).

The general contractor and a subcontractor involved in the construction of a barge casino located on a navigable waterway were not entitled to statutory immunity under Workers’ Compensation Act with regard to injuries sustained by an employee of another subcontractor; that employee was covered under the Longshore and Harbor Workers’ Compensation Act at the time of his injury. Accu-Fab & Constr., Inc. v. Ladner by & Through Ladner, 1999 Miss. App. LEXIS 452 (Miss. Ct. App. June 29, 1999), op. withdrawn, sub. op., 970 So. 2d 1276, 2000 Miss. App. LEXIS 111 (Miss. Ct. App. 2000).

The state compensation law does not apply to a pilot on board a tug-boat operating in interstate commerce upon navigable waters of the United States while tied up to await the unloading of its barges. Valley Towing Co. v. Allen, 236 Miss. 51, 109 So. 2d 538, 1959 Miss. LEXIS 293 (Miss. 1959).

The state compensation law is not applicable to injuries sustained by persons employed under maritime contracts, where the particular employment is of a maritime nature and where the injury occurs on waters within admiralty jurisdiction, except in case of matters of local concern the regulation of which by the state will work no material prejudice to the characteristic features of maritime law or interfere with its proper harmony or uniformity in its international or interstate relations. Valley Towing Co. v. Allen, 236 Miss. 51, 109 So. 2d 538, 1959 Miss. LEXIS 293 (Miss. 1959).

7. —Governmental entities and agencies.

Statute exempting state employees from mandatory workmen’s compensation coverage, Miss Code §71-3-5, did not violate equal protection rights of school employee who was injured in truck accident because statute had rational basis; schools and school systems had limited financial resources whereas private industries could incorporate cost factor of insurance into product. Adams v. Petal Municipal Separate School Systems, 487 So. 2d 1329, 1986 Miss. LEXIS 2451 (Miss. 1986).

The exemption of school districts from mandatory worker’s compensation coverage has rational basis, and does not impinge upon the equal protection rights of injured school district employees. Adams v. Petal Municipal Separate School Systems, 487 So. 2d 1329, 1986 Miss. LEXIS 2451 (Miss. 1986).

Community hospital and nursing home is agency of state excluded from statutory requirement that workmen’s compensation coverage be obtained for employees, without regard to whether it is performing proprietary, as opposed to governmental, function. Parrott v. Winston County Community Hospital & Nursing Home, 464 So. 2d 1159, 1985 Miss. LEXIS 1945 (Miss. 1985).

8. —Other exclusions.

Lumber company was properly dismissed as a party in a workers’ compensation case because there was no evidence offered of the existence of an employer-employee relationship between the lumber company or any of the employees of a logging business; moreover, there was no evidence that the lumber company paid the employees of the logging business or that lumber company exercised any control over the employees of the logging business. As such, the lumber company was exempt from the requirements of the workers’ compensation laws under Miss. Code Ann. §71-3-5. White v. Jordan, 11 So.3d 755, 2008 Miss. App. LEXIS 679 (Miss. Ct. App. 2008), cert. denied, 12 So.3d 531, 2009 Miss. LEXIS 289 (Miss. 2009), cert. denied, 2009 Miss. LEXIS 297 (Miss. June 25, 2009).

A painters’ and decorators’ association was held excluded by this provision. Davis v. Painting & Decorating Contractors, 240 Miss. 394, 126 So. 2d 876, 1961 Miss. LEXIS 474 (Miss. 1961).

9. Liability for coverage.

Workers’ Compensation Commission properly found that a decedent’s fatal stroke was a compensable injury and that the accounting firm was obligated to provide workers’ compensation benefits to the decedent’s beneficiaries because the firm was required to obtain workers’ compensation insurance and provide workers’ compensation benefits to its employees where it had more than five employees, nothing in the record indicated that the firm provided any written notice that it was electing to exempt the decedent from coverage, and there was no evidence in the record that the decedent’s stress, stroke, and death were caused by anything other than his professional life. Harper v. Banks, Finley, White & Co. of Miss., P.C., 167 So.3d 1155, 2015 Miss. LEXIS 350 (Miss. 2015).

In a case where two owners of a logging business should have procured workers’ compensation insurance for a logging business, it was irrelevant to the responsibility of the owners and the business that two injured employees had received benefits from an insurance policy that did not cover workers’ compensation claims. White v. Jordan, 11 So.3d 755, 2008 Miss. App. LEXIS 679 (Miss. Ct. App. 2008), cert. denied, 12 So.3d 531, 2009 Miss. LEXIS 289 (Miss. 2009), cert. denied, 2009 Miss. LEXIS 297 (Miss. June 25, 2009).

Miss. Code Ann. §71-3-5 does not set any timetable for procuring workers’ compensation insurance, it merely gives the coverage criteria; however, given the beneficent purpose of the Mississippi Workers’ Compensation Act, it should be readily apparent to any business owner that workers’ compensation insurance is necessary as soon as the business meets the statutory definition of a covered employer. Therefore, two business owners were not held to a higher standard than other businesses when it was determined that they should have procured workers’ compensation insurance before an accident occurred. White v. Jordan, 11 So.3d 755, 2008 Miss. App. LEXIS 679 (Miss. Ct. App. 2008), cert. denied, 12 So.3d 531, 2009 Miss. LEXIS 289 (Miss. 2009), cert. denied, 2009 Miss. LEXIS 297 (Miss. June 25, 2009).

Where the evidence showed that two employees had worked for a spouse’s logging business previously and they had worked with a second business for a few weeks before an accident, the employees were regularly employed by a second business and brought it within the definition of a covered employer under Miss. Code Ann. §71-3-5. White v. Jordan, 11 So.3d 755, 2008 Miss. App. LEXIS 679 (Miss. Ct. App. 2008), cert. denied, 12 So.3d 531, 2009 Miss. LEXIS 289 (Miss. 2009), cert. denied, 2009 Miss. LEXIS 297 (Miss. June 25, 2009).

The owner of two pulpwood business corporations who contracted with a construction firm to build his residence, terminated that contract, and subsequently contracted for the services of more than five of the firm’s workmen to finish the house, came within the purview of the Workmen’s Compensation Law; a workman who was injured during construction was therefore entitled to recover from an insurance policy issued to the owner of the house personally to cover his pulpwood corporations under the Workmen’s Compensation Law. Colonial Life & Acci. Ins. Co. v. Bookout, 346 So. 2d 898, 1976 Miss. LEXIS 1499 (Miss. 1976).

Injuries sustained by one serving city in various capacities, who also acted as city marshal, while returning from investigating a bomb scare, held to have been while performing duties of an undercovered elected office. Floyd v. Drew, 241 Miss. 217, 129 So. 2d 340, 1961 Miss. LEXIS 334 (Miss. 1961).

Employee of seller of logs to mill-owner is not entitled to compensation from mill-owner for broken leg sustained while delivering them at the mill. Taylor v. Beasley, 237 Miss. 291, 114 So. 2d 775, 1959 Miss. LEXIS 467 (Miss. 1959).

Where a newspaper employer, furnishing newspapers to newsboy, had the power to fire the newsboy at will and to fix the price of the newspaper to the carrier and to the customer, and had control of the entire route over which the carrier was permitted to work, their relationship was one of employer and employee making the carrier boy eligible for workmen’s compensation. Laurel Daily Leader, Inc. v. James, 224 Miss. 654, 80 So. 2d 770, 1955 Miss. LEXIS 530 (Miss. 1955), but see Webster v. Mississippi Publishers Corp., 1989 Miss. LEXIS 519 (Miss. Dec. 20, 1989), op. withdrawn, sub. op., 571 So. 2d 946, 1990 Miss. LEXIS 699 (Miss. 1990).

Prior to the 1956 amendment, where the claimant was a working partner of a firm and had not obtained compensation coverage by compliance with the provisions of the Workmen’s Compensation Law, his injury was not compensable. American Surety Co. v. Cooper, 222 Miss. 429, 76 So. 2d 254, 1954 Miss. LEXIS 662 (Miss. 1954).

Where an employee was carrying workmen’s compensation for his employees and reported accident to his insurance carrier, the injured employee was precluded from an action based upon alleged common-law negligence, even though the injured employee was not named in the workmen’s compensation policy. Nowell v. Harris, 219 Miss. 363, 68 So. 2d 464, 1953 Miss. LEXIS 397 (Miss. 1953).

Where a subcontractor had in service eight or more workmen regularly in his business and has failed to secure the payment of compensation for his employees, the primary contractor is not liable for the benefits for injuries sustained by employee on a job other than that of the primary contractor. Jackson v. Fly, 215 Miss. 303, 60 So. 2d 782, 63 So. 2d 536, 1953 Miss. LEXIS 363 (Miss. 1953).

10. Review.

Standard of review in workers’ compensation cases is limited and substantial evidence test is used. Inman v. Coca-Cola/Dr. Pepper Bottling Co., 678 So. 2d 992, 1996 Miss. LEXIS 420 (Miss. 1996).

Workers’ Compensation Commission is trier and finder of facts in compensation claim; Supreme Court will reverse Commission’s order only if it finds that order clearly erroneous and contrary to overwhelming weight of evidence. Inman v. Coca-Cola/Dr. Pepper Bottling Co., 678 So. 2d 992, 1996 Miss. LEXIS 420 (Miss. 1996).

In reversing the Commission’s fact-finding, reviewing courts are advised to provided detailed, written support for their conclusions. R.C. Petroleum, Inc. v. Hernandez, 555 So. 2d 1017, 1990 Miss. LEXIS 10 (Miss. 1990).

An error in fixing the amount allowed for disability cannot be asserted for the first time on suggestion of error. Rigdon v. General Box Co., 249 Miss. 239, 162 So. 2d 863, 1964 Miss. LEXIS 390 (Miss. 1964).

OPINIONS OF THE ATTORNEY GENERAL

There is no authority for a school district to apply for self-insured status on its own, but a school district may organize and participate in a self-insurance program approved by the commission in cooperation with another political subdivision. Arledge, Oct. 6, 2000, A.G. Op. #2000-0558.

A school district has the authority to participate in the Mississippi Municipal Workers’ Compensation Group, a liability pool created for participation by various political subdivisions, as long as it was created pursuant to this section. Seal, Aug. 29, 2003, A.G. Op. 03-0415.

RESEARCH REFERENCES

ALR.

Workers’ compensation: attorney’s fee or other expenses of litigation incurred by employee in action against third party tortfeasor as charge against employer’s distributive share. 74 A.L.R.3d 854.

Workers’ compensation: effect of allegation that injury was caused by, or occurred during course of, worker’s illegal conduct. 73 A.L.R.4th 270.

Applicability under 29 CFR 1918.2 of Safety and Health Regulations for Longshoring to actions against ship owners pursuant to 33 USCS § 905(b) of the Longshoremen’s and Harbor Workers’ Compensation Act amendment of 1972. 56 A.L.R. Fed. 812.

Construction and Application of Longshore and Harbor Workers’ Compensation Act (LHWCA) – Supreme Court Cases. 72 A.L.R. Fed. 2d 1.

Am. Jur.

82 Am. Jur. 2d, Workers’ Compensation §§ 83 et seq.

17 Am. Jur. Pl & Pr Forms (Rev), Master and Servant, Forms 211 et seq. (liability of employer for injuries to employee).

26 Am. Jur. Trials 645, Workmen’s Compensation–Employment Party Injury Litigation.

CJS.

99 C.J.S., Workers’ Compensation §§ 114 et seq.

Law Reviews.

Steiner, The Americans with Disabilities Act of 1990 and workers’ compensation: the employees’ perspective. 62 Miss. L. J. 631 (Spring, 1993).

Practice References.

Bender’s Labor and Employment Bulletin. (Matthew Bender).

Labor and Employment Law (Matthew Bender).

Larson’s Workers’ Compensation Desk Edition (Matthew Bender).

Larson’s Workers’ Compensation Law (Matthew Bender).

Mississippi Workers’ Compensation Laws and Rules Annotated, 2010 Edition with CD-Rom (Michie).

§ 71-3-7. Liability for payment of compensation.

  1. Compensation shall be payable for disability or death of an employee from injury or occupational disease arising out of and in the course of employment, without regard to fault as to the cause of the injury or occupational disease. An occupational disease shall be deemed to arise out of and in the course of employment when there is evidence that there is a direct causal connection between the work performed and the occupational disease. In all claims in which no benefits, including disability, death and medical benefits, have been paid, the claimant shall file medical records in support of his claim for benefits when filing a petition to controvert. If the claimant is unable to file the medical records in support of his claim for benefits at the time of filing the petition to controvert because of a limitation of time established by Section 71-3-35 or Section 71-3-53, the claimant shall file medical records in support of his claim within sixty (60) days after filing the petition to controvert.
  2. Where a preexisting physical handicap, disease, or lesion is shown by medical findings to be a material contributing factor in the results following injury, the compensation which, but for this subsection, would be payable shall be reduced by that proportion which such preexisting physical handicap, disease, or lesion contributed to the production of the results following the injury. The preexisting condition does not have to be occupationally disabling for this apportionment to apply.
  3. The following provisions shall apply to subsections (1) and (2) of this section:
    1. Apportionment shall not be applied until the claimant has reached maximum medical recovery.
    2. The employer or carrier does not have the power to determine the date of maximum medical recovery or percentage of apportionment. This must be done by the attorney-referee, subject to review by the commission as the ultimate finder of fact.
    3. After the date the claimant reaches maximum medical recovery, weekly compensation benefits and maximum recovery shall be reduced by that proportion which the preexisting physical handicap, disease, or lesion contributes to the results following injury.
    4. If maximum medical recovery has occurred before the hearing and order of the attorney-referee, credit for excess payments shall be allowed in future payments. Such allowances and method of accomplishment of the same shall be determined by the attorney-referee, subject to review by the commission. However, no actual repayment of such excess shall be made to the employer or carrier.
  4. No compensation shall be payable if the use of drugs illegally, or the use of a valid prescription medication(s) taken contrary to the prescriber’s instructions and/or contrary to label warnings, or intoxication due to the use of alcohol of the employee was the proximate cause of the injury, or if it was the willful intention of the employee to injure or kill himself or another.
  5. Every employer to whom this chapter applies shall be liable for and shall secure the payment to his employees of the compensation payable under its provisions.
  6. In the case of an employer who is a subcontractor, the contractor shall be liable for and shall secure the payment of such compensation to employees of the subcontractor, unless the subcontractor has secured such payment.

HISTORY: Codes, 1942, § 6998-04; Laws, 1948, ch. 354, § 4; Laws, 1950, ch. 412, § 3; Laws, 1958, ch. 454, § 1; Laws, 1960, ch. 277; Laws, 1968, ch. 559, § 3; reenacted without change, Laws, 1982, ch. 473, § 4; reenacted without change, Laws, 1990, ch. 405, § 4; Laws, 2012, ch. 522, § 2, eff from and after July 1, 2012.

Editor’s Notes —

Laws of 2012, ch. 522, §§ 10 and 11, provide:

“SECTION 10. The Workers’ Compensation Commission shall promulgate a written statement specifying the changes made to the Workers’ Compensation Law by this act to every employer in this state subject to the Workers’ Compensation Law. Within ten (10) days of receipt of this written statement from the Commission, every employer shall post the Commission’s statement in a conspicuous place or places in and about his place or places of business and adjacent to the Notice of Coverage as required by Section 71-3-81.

“SECTION 11. This act shall take effect and be in force from and after July 1, 2012, and shall apply to injuries occurring on or after July 1, 2012.”

Amendment Notes —

The 2012 amendment inserted subsection (1) through (6) designators; added the last two sentences in (1); added the last sentence in (2); added the introductory paragraph in (3); rewrote (4); and made a minor stylistic change.

Cross References —

Admissibility of employer-administered drug or alcohol test results to determine intoxication of employee at time of allegedly compensable injury, see §71-3-121.

JUDICIAL DECISIONS

1. In general.

2. Liability for payment.

3. — Bad faith denial of benefits.

4. Insurance carriers.

5. Salary, sick pay or vacation pay as affecting payment.

6. Pain.

7. Injury arising out of and during course of employment, generally.

8. —Injury compensable, generally.

9. —Injury not compensable, generally.

10. —Going to or returning from work.

11. — —Injury compensable.

12. — —Injury not compensable.

13. — —Presumptions in death cases.

14. — —Particular death cases.

15. —Proof of claim.

16. — —Benefits granted.

17. — — Benefits denied.

18. Accidental injury or death.

19. —Entitled to benefits.

20. —Not entitled to benefits.

21. Causal relation.

22. —Causal connection established.

23. — —Causal connection not established.

24. —Heart cases.

25. — —Benefits awarded.

26. — —Benefits denied.

27. —Cerebral or vascular accidents.

28. —Mental or nervous disease.

29. —Other disabilities.

30. Pre-existing disease or infirmity.

31. —Aggravation, acceleration, or contribution to pre-existing condition.

32. —As bar to compensation.

33. —Not bar to compensation.

34. —Apportionment.

35. — —Required.

36. — — Not required.

37. Deviation from employment or duties.

38. Injury from assault or other intentional acts.

39. Horseplay.

40. Forbidden acts.

41. Intoxication.

42. Imported danger.

43. Liability of contractors and subcontractors.

44. Independent contractors, generally.

45. —Entitled to benefits.

46. —Not entitled to benefits.

47. Review.

48. Immunity.

49. Wage-earning potential.

1. In general.

A post-injury termination for misconduct, even if the misconduct contributed to the injury, does not end the right to benefits. Tyson Foods v. Hilliard, 772 So. 2d 1103, 2000 Miss. App. LEXIS 582 (Miss. Ct. App. 2000).

The Workers’ Compensation Commission, within legal limits, is the sole judge of the weight and sufficiency of the evidence. Evidence which is not contradicted by positive testimony or circumstances, and which is not inherently improbable, incredible, or unreasonable, cannot, as a matter of law, be arbitrarily or capriciously discredited, disregarded or rejected, even though the witness is a party or is interested; unless uncontradicted evidence is shown to be untrustworthy, it is to be taken as conclusive and binding on the triers of fact. Morris v. Lansdell's Frame Co., 547 So. 2d 782, 1989 Miss. LEXIS 336 (Miss. 1989).

If maximum medical recovery has occurred before the attorney-referee’s hearing and order, credit for any excess payments by the employer and carrier shall be allowed in future payments; and such allowances and the method for crediting excess payments against future payments shall be determined by the attorney-referee, subject to review. Cockrell Banana Co. v. Harris, 212 So. 2d 581, 1968 Miss. LEXIS 1290 (Miss. 1968).

Until maximum medical recovery has been reached the claimant is entitled to full temporary total disability payments unless such disability was total and permanent on the date of injury. Cockrell Banana Co. v. Harris, 212 So. 2d 581, 1968 Miss. LEXIS 1290 (Miss. 1968).

A claim for disability under the compensation law is not a suit to recover damages growing out of an industrial injury, but is compensation for loss of earnings as a result of an industrial injury, or the loss to the dependents of a worker because of his death. Thyer Mfg. Co. v. Mooney, 252 Miss. 629, 173 So. 2d 652, 1965 Miss. LEXIS 1134 (Miss. 1965).

This section [Code 1942, § 6998-04] is constitutional. Southeastern Constr. Co. v. Dependent of Dodson, 247 Miss. 1, 153 So. 2d 276, 1963 Miss. LEXIS 277 (Miss. 1963).

The propriety and fairness of this section [Code 1942, § 6998-04] is not a judicial question. Southeastern Constr. Co. v. Dependent of Dodson, 247 Miss. 1, 153 So. 2d 276, 1963 Miss. LEXIS 277 (Miss. 1963).

A workmen’s compensation policy covered the employees of insured and the fact that a worker was not named in the policy is immaterial. Nowell v. Harris, 219 Miss. 363, 68 So. 2d 464, 1953 Miss. LEXIS 397 (Miss. 1953).

In an action against shipper by rail for personal injuries sustained because of alleged improper manner in loading a flatcar, by an employee of consignee, neither the consignee nor its insurance carrier, who were alleged to be paying the employee workmen’s compensation benefits and who received notice of the action, were necessary parties to the action. American Creosote Works v. Harp, 215 Miss. 5, 60 So. 2d 514, 1952 Miss. LEXIS 531 (Miss. 1952).

2. Liability for payment.

There is no support in the Mississippi Workers’ Compensation Act, or in the case law, for the proposition that an employer which itself is free of any wrongdoing can be held liable on an alter-ego theory for its workers’ compensation carrier’s bad faith failure to pay benefits; the law, in fact, is to the contrary. Toney v. Lowery Woodyards, 278 F. Supp. 2d 786, 2003 U.S. Dist. LEXIS 14180 (S.D. Miss. 2003).

An employers’ liability under the Workmen’s Compensation Law is not affected by his failure to obtain insurance. Dependents of Dawson v. Delta Western Exploration Co., 245 Miss. 335, 147 So. 2d 485, 1962 Miss. LEXIS 556 (Miss. 1962).

Liability for compensation is on the insurer at the time of injury rather than the insurer at the time of resulting disability. Potts v. Lowery, 242 Miss. 300, 134 So. 2d 474, 1961 Miss. LEXIS 559 (Miss. 1961).

The act of the employer’s manager in telling claimant that she was under the compensation law and furnishing her with blank forms of claim, does not obligate the employer to pay compensation to one whose claim is not compensable. Ray v. Wells-Lamont Glove Factory, 236 Miss. 154, 109 So. 2d 544, 1959 Miss. LEXIS 304 (Miss. 1959).

3. — Bad faith denial of benefits.

Employee’s claim that her former employer acted in bad faith in denying workers’ compensation benefits under Miss. Code Ann. §71-3-7, which benefits the employee later received via a settlement, failed because the employer had arguable reasons for its decision where an investigation into whether the employee’s alleged sexual relationship with her manager ever occurred or was the cause of the employee’s mental health problems was inconclusive. Hood v. Sears Roebuck & Co., 532 F. Supp. 2d 795, 2005 U.S. Dist. LEXIS 46216 (S.D. Miss. 2005), aff'd, 247 Fed. Appx. 531, 2007 U.S. App. LEXIS 21978 (5th Cir. Miss. 2007).

4. Insurance carriers.

An employer and its carrier were not entitled to credit for excess payments with regard to payment, pursuant to company policy, of regular salary as sick pay for 90 working days. Pet, Inc., Dairy Div. v. Roberson, 329 So. 2d 516, 1976 Miss. LEXIS 1826 (Miss. 1976).

The Workmen’s Compensation Law does not provide for contribution between insurance carriers, and the apportionment provisions of this section [Code 1942, § 6998-04] refer only to the amount of compensation to which the injured employee will be entitled, not to how the payments of the compensation will be apportioned among those liable. Thyer Mfg. Co. v. Mooney, 252 Miss. 629, 173 So. 2d 652, 1965 Miss. LEXIS 1134 (Miss. 1965).

5. Salary, sick pay or vacation pay as affecting payment.

Although a claimant is not entitled to compensation when he or she receives his or her regular salary in lieu of compensation, sick pay, vacation pay, donations or gratuities are not salary in lieu of compensation; thus, a claimant should have been awarded benefits during the time he was on vacation and receiving vacation pay where he was totally disabled at the time he took his vacation leave. Lanterman v. Roadway Express, Inc., 608 So. 2d 1340, 1992 Miss. LEXIS 564 (Miss. 1992).

6. Pain.

Compensation may be allowed for disabling pain in the absence of positive medical testimony as to any physical cause whatever. When the patient complains of pain, the doctor usually takes the fact of pain for granted and the absence of physical findings to account for the pain will not necessarily bar compensation. In such cases, evidence of an accident followed by disabling pain and the absence of evidence as to the cause of the pain from objective medical findings may be sufficient as a basis for compensation, in the absence of circumstances tending to show malingering or indicating that the claimant’s testimony as to pain is inherently improbable, incredible, unreasonable or untrustworthy. However, there is a great potential for abuse in claims which are based predominantly upon pain reported by the patient, particularly in circumstances where the patient’s testimony or statement to the physician is the sole evidence of its continued presence. In these cases, it would be prudent to obtain additional medical evidence to either support or dispute the claim. Morris v. Lansdell's Frame Co., 547 So. 2d 782, 1989 Miss. LEXIS 336 (Miss. 1989).

7. Injury arising out of and during course of employment, generally.

Where both of a workers’ compensation claimant’s doctors testified that the claimant’s injuries were consistent with the injury that the claimant described wherein a patient fell onto the claimant’s shoulder and the claimant’s back popped, the claimant’s resulting disability, defined under Miss. Code Ann. §71-3-3(i), was compensable because it was work-related under Miss. Code Ann. §71-3-7. Lang v. Miss. Baptist Med. Ctr., 53 So.3d 814, 2010 Miss. App. LEXIS 588 (Miss. Ct. App. 2010).

Where the employees’ injuries arose out of and in the course of employment, under Miss. Code Ann. §71-3-3(b), their claims of battery and intentional infliction of emotional distress against the employer were not precluded by the Mississippi Workers’ Compensation Act, Miss. Code Ann. §71-3-9, as a matter of law. Franklin Corp. v. Tedford, 2009 Miss. LEXIS 169 (Miss. Apr. 16, 2009).

An injury occurs in the course of the employment when it takes place within the period of employment, at a place where the employee reasonably may be in the performance of his duties, and while he is fulfilling those duties or engaged in doing something incidental thereto, or where he is engaged in the furtherance of the employer’s business. Jefferson v. T. L. James & Co., 420 F.2d 322, 1969 U.S. App. LEXIS 9766 (5th Cir. Miss. 1969).

Where the parties stipulated that a claimant’s wrist injury was work-related, the Mississippi Workers’ Compensation Commission erred in affirming an administrative law judge’s (ALJ’s) ruling that her injury at L-4 was not work-related, because that issue had not been before the ALJ and would ripen for adjudication only if and when she decided to undergo back surgery. Barber Seafood, Inc. v. Smith, 911 So. 2d 454, 2005 Miss. LEXIS 470 (Miss. 2005).

The injury arises out of and in the course the employment if the employment aggravates, accelerates, or contributes to the disability as opposed to being the sole or principal cause. Fought v. Stuart C. Irby Co., 523 So. 2d 314, 1988 Miss. LEXIS 86 (Miss. 1988).

Disability attendant on the general stress or normal human wear and tear of the workplace is not compensable under workers’ compensation; however, benefits may be available where an employee experiences a series of identifiable and extraordinarily stressful work-connected incidents. Fought v. Stuart C. Irby Co., 523 So. 2d 314, 1988 Miss. LEXIS 86 (Miss. 1988).

The phrase “in the course of employment” as used in Code 1942 § 6998-04, does not mean that the worker must have died on the job or on the premises of the employer. Mississippi Research & Development Center v. Dependents of Shults, 287 So. 2d 273, 1973 Miss. LEXIS 1331 (Miss. 1973).

In an action on a claim for workmen’s compensation benefits, it was for the commission, based on the medical and lay testimony, to determine not only whether the bulge or herniated disc and the resultant disability arose out of and in the course of the claimant’s employment, but also to determine, if allowable, when compensability should begin. Central Electric & Machinery Co. v. Shelton, 220 So. 2d 320, 1969 Miss. LEXIS 1454 (Miss. 1969).

The signing of an application for group insurance benefits is a factor to be considered in determining whether an injury was work connected or arose out of a pre-existing condition, but it is not per se a bar to a claim under the Workmen’s Compensation Law where the facts are in dispute. Central Electric & Machinery Co. v. Shelton, 220 So. 2d 320, 1969 Miss. LEXIS 1454 (Miss. 1969).

In a case in which it was contended that an employee who was injured as a consequence of a tornado was not entitled to compensation for the reason that his injuries resulted from an “act of God,” the court announced as a general rule that it would recognize an employee’s right to compensation for injury as “arising out of” his employment when the employee is injured at the place he is required to be engaged in the employer’s business, and not that of his own, and where the employer’s business required the employee to be at the place of the accident at the time it occurred. Wiggins v. Knox Glass, Inc., 219 So. 2d 154, 1969 Miss. LEXIS 1417 (Miss. 1969).

Disability resulting from an occupational disease is not compensable under the Workmen's Compensation Law. Heckford v. International Paper Co., 242 Miss. 337, 135 So. 2d 415, 1961 Miss. LEXIS 564 (Miss. 1961).

When an employee is on duty for 24 hours or is a resident employee, the entire period of his presence is within the course of his employment. M. & W. Constr. Co. v. Dependents of Bugg, 241 Miss. 133, 129 So. 2d 631, 1961 Miss. LEXIS 324 (Miss. 1961).

An activity is related to the employment if it carries out the employer’s purposes or advances his interests, directly or indirectly. M. & W. Constr. Co. v. Dependents of Bugg, 241 Miss. 133, 129 So. 2d 631, 1961 Miss. LEXIS 324 (Miss. 1961).

An injury arises out of the employment where there is a causal connection between it and the job. Earnest v. Interstate Life & Acci. Ins. Co., 238 Miss. 648, 119 So. 2d 782, 1960 Miss. LEXIS 450 (Miss. 1960).

No unusual exertion on the part of an employee is necessary to make a claim compensable where it is clear that there is a causal connection between his work and injury or death. Russell v. Sohio Southern Pipe Lines, Inc., 236 Miss. 722, 112 So. 2d 357, 1959 Miss. LEXIS 369 (Miss. 1959).

Injury does not have to develop instantaneously, but may accrue gradually over a reasonably definite and not remote time. Insurance Dep't of Mississippi v. Dinsmore, 233 Miss. 569, 104 So. 2d 296, 1958 Miss. LEXIS 420 (Miss. 1958).

8. —Injury compensable, generally.

An employer’s workers’ compensation carrier would be liable for the injuries of an employee who was injured while changing a neighboring business’ outdoor advertising sign where the employer had a policy of goodwill toward its business neighbors, which included changing the sign for the neighboring business, and the employees were expected to help foster the goodwill policy; since the employee acted in conformity with his employer’s dictates, he acted in the course and scope of his employment, and was not a loaned servant to the neighboring business. Quick Change Oil & Lube v. Rogers, 663 So. 2d 585, 1995 Miss. LEXIS 582 (Miss. 1995).

The onset of an employee’s essential tremors arose out of and in the course of employment where a cold tablet purchased from her employer exacerbated her pre-existing congenital condition and contributed to the onset of her essential tremor; the employer gained the benefits of lessening absenteeism due to illness by distributing the medication and, by memoranda, the employer suggested to its employees that they avail themselves of the medication provided at the employer’s first-aid station. Quitman Knitting Mill v. Smith, 540 So. 2d 623, 1989 Miss. LEXIS 140 (Miss. 1989).

Exposure to falls upon a concrete floor is a sufficient risk attendant upon employment so that the death of a worker, caused by an idiopathic fall and striking of his head on the concrete floor of employer’s premises, arose out of and within the course and scope of his employment, and the death was compensable. Chapman, Dependents of v. Hanson Scale Co., 495 So. 2d 1357, 1986 Miss. LEXIS 2710 (Miss. 1986).

Where an employee, who was the president and general manager of a subsidiary corporate employer, who performed work for several subsidiaries and the master corporation, and who had flown the president of the master corporation to Texas and then flown on to Louisiana on business for his employer and other subsidiary corporations, the evidence was sufficient, upon a claim for death benefits by the employee’s dependents, that the employee was performing services within the course and scope of his employment with his subsidiary corporate employer at the time of his death in a plane crash while he was returning to Texas from Louisiana to pick up the president of the master corporation. Dependents of Roberts v. Holiday Parks, Inc., 260 So. 2d 476, 1972 Miss. LEXIS 1571 (Miss. 1972).

9. —Injury not compensable, generally.

A groundskeeper’s aid was not acting within the scope of his employment when he drowned in a swimming pool, and therefore his parents were not barred by the exclusive remedy provisions of the Mississippi Workers’ Compensation Act from bringing a wrongful death action on his behalf, where the employee was not required by his job duties to be in the vicinity of the swimming pool, he was supposed to be hoeing grass from a sidewalk outside the fence surrounding the pool at the time he entered the pool area, and the employer had specifically instructed the employee to stay away from the pool because he could not swim. Estate of Brown by Brown v. Pearl River Valley Opportunity, 627 So. 2d 308, 1993 Miss. LEXIS 421 (Miss. 1993).

An employee’s injury did not arise out of and in the course of his employment as a sack boy at a grocery store where the injury occurred when a firecracker which the employee had been given by another worker exploded in his hand, and the store had a policy of no foul play, which included fireworks, so that the employee’s conduct was against the rules of the business; the accident and injury were the result of the employee’s own misuse of and involvement with an object which was prohibited and outside the scope of the employee’s employment, and therefore the injury sustained was not compensable. Mathis v. Nelson's Foodland, Inc., 606 So. 2d 101, 1992 Miss. LEXIS 49 (Miss. 1992).

A back injury sustained by a secretary-receptionist when, against the express objections of her employer, she helped a fellow employee move a table through the employer’s place of business and down some stairs, was not an injury or disease arising out of and in the course of employment within the meaning of Code 1942, § 6998-04. Odom's Dispensing Opticians v. Smith, 259 So. 2d 486, 1972 Miss. LEXIS 1532 (Miss. 1972).

A claimant who was injured in an automobile accident while going to clean a well for a church with a mud pump he had borrowed from his employer was, under the evidence, engaged in a personal mission and not acting for his employer. McLain & Barnes Hardware Co. v. Wilson, 245 So. 2d 578, 1971 Miss. LEXIS 1369 (Miss. 1971).

10. —Going to or returning from work.

The general rule is that the hazards encountered by employees while going to or returning from their regular place of work and off their employer’s premises are not an incident to employment and accidents arising therefrom are not compensable, and an employee who claims an exception to this general rule has the burden of proving he comes within one of the exceptions. Aetna Finance Co. v. Bourgoin, 252 Miss. 852, 174 So. 2d 495, 1965 Miss. LEXIS 1154 (Miss. 1965).

Generally, injuries received in going to or returning from work are not “in the course of employment”. Scott Builders, Inc. v. Dependent of Layton, 244 Miss. 641, 145 So. 2d 165, 1962 Miss. LEXIS 490 (Miss. 1962).

11. — —Injury compensable.

Worker’s travel had a substantial work connection, as he was traveling to his regularly scheduled shift at a plant, and there was substantial evidence supporting the finding that the worker’s employer-sponsored travel was an exception to the going and coming rule and was thereby compensable; the worker was driving a company vehicle provided by the company, he was authorized to drive the vehicle to and from his various work sites, and there was no contention that he abandoned his work duties or deviated from his work destination for an unauthorized personal mission. Linde Gas v. Edmonds, 167 So.3d 1258, 2014 Miss. App. LEXIS 547 (Miss. Ct. App. 2014), cert. denied, 168 So.3d 962, 2015 Miss. LEXIS 355 (Miss. 2015).

Injuries suffered while walking across a street to report for work were compensable under the special hazards exception to the “going and coming” rule since a benefits claimant was required to park in an employee lot and cross a street in the dark where there were no lights or traffic signals, and the fact that another lot existed did not bar recovery; moreover, the premises exception also applied, even though the employer did not own the parking lot, since the street was in such proximity to the premises to be, in effect, a part of such. Jesco, Inc. v. Cain, 954 So. 2d 537, 2007 Miss. App. LEXIS 257 (Miss. Ct. App. 2007).

An employee’s injuries suffered in an automobile accident on her way home from work arose out of her employment, and were therefore compensable, where she was paid in part for her automobile and gasoline expenses to and from work by clocking in 45 minutes before she arrived at the office and clocking out 45 minutes after leaving the office. Matheson v. Favre, 586 So. 2d 833, 1991 Miss. LEXIS 676 (Miss. 1991).

Death of radio news reporter in automobile accident while reporter is going to station after having prepared news story at home arises out of and in scope of employment with station. Wilson v. Service Broadcasters, Inc. (WDAM), 483 So. 2d 1339, 1986 Miss. LEXIS 2387 (Miss. 1986).

Worker’s death resulting from being struck, by car while attempting to walk across heavily trafficked road to meet employee with whom worker commutes arises out of and during course of employment where worker has no practical alternate route to leave place of employment. Ingalls Shipbuilding Div., Litton Systems, Inc. v. Dependents of Sloane, 480 So. 2d 1117, 1985 Miss. LEXIS 2377 (Miss. 1985).

Where claimant and his fellow employees on their way home from the site of their employment stopped and purchased a fifth of whisky which they began drinking, and later when they stopped by the roadside to relieve themselves the claimant stepped in a hole and broke his leg, the injury occurred within the scope and course of his employment, for the employer remunerated the employees for their transportation between the job site and their homes. Reading & Bates, Inc. v. Whittington, 208 So. 2d 437, 1968 Miss. LEXIS 1408 (Miss. 1968).

A claimant required to possess and use an automobile in the course of his employment who understood, as an order, the request of his employer’s manager that he pick the manager up at his home and drive him to work, received a compensable injury as a consequence of an accident that occurred while he was so engaged. Aetna Finance Co. v. Bourgoin, 252 Miss. 852, 174 So. 2d 495, 1965 Miss. LEXIS 1154 (Miss. 1965).

Injury in automobile accident while being transported to place of work by employer’s manager, held to arise out of and in course of employment. J. H. Tabb & Co. v. McAlister, 243 Miss. 271, 138 So. 2d 285, 1962 Miss. LEXIS 343 (Miss. 1962).

Where an employer paid to his night watchman, who lived six or seven miles from the place of employment, an additional $3 per week for payment of transportation, an injury, causing death, sustained by the employee in driving in his automobile from place of employment to his home was compensable. Pace v. Laurel Auto Parts, Inc., 238 Miss. 421, 118 So. 2d 871, 1960 Miss. LEXIS 422 (Miss. 1960).

Death of one, shot for some unknown reason by a fellow employee whom, in the discharge of his duty, he was transporting to place of work, held one arising out of and in the course of employment. Watson v. National Burial Asso., 234 Miss. 749, 107 So. 2d 739, 1958 Miss. LEXIS 547 (Miss. 1958).

Death of employee struck by lightning when waiting near a truck in which he was being taken to a place of work, while inquiries were being made as to the route, held to arise out of and in the course of employment. Jackson v. Bailey, 234 Miss. 697, 107 So. 2d 593, 1958 Miss. LEXIS 540 (Miss. 1958).

Where it appeared that a corporation’s secretary-salesman was fatally injured in an automobile accident while on the way home after calling on a number of the corporation’s customers, the death of the secretary-salesman arose out of and in the course of his employment. M. E. Badon Refrigeration Co. v. Badon, 231 Miss. 113, 95 So. 2d 114, 1957 Miss. LEXIS 495 (Miss. 1957).

12. — —Injury not compensable.

Workers’ compensation benefits were not awarded to a benefits claimant because he did not fall into any exceptions to the going and coming rule; a car accident happened over a mile from an employer’s gates, the land surrounding the road was owned by the federal government, there was no history of accidents necessitating a warning sign to those using the roadway, the road was not heavily traveled, and the claimant was not required to cross a dangerous intersection. Moreover, expert testimony presented by the claimant on the issue of whether the road was hazardous was not credible due to discrepancies. Ladner v. Grand Bear Golf Course/Grand Casino of Miss., 973 So. 2d 1008, 2008 Miss. App. LEXIS 29 (Miss. Ct. App. 2008).

The arrival of an employee at the place where he was to be picked up by his employer’s truck and driven to a construction site thirty minutes before he was to begin work was unnecessary, and the injury he sustained immediately after his arrival did not arise in the course of employment, and the Mississippi Workmen’s Compensation Law did not apply. Jefferson v. T. L. James & Co., 420 F.2d 322, 1969 U.S. App. LEXIS 9766 (5th Cir. Miss. 1969).

A claimant injured in an automobile accident while returning from work to his home as the guest passenger of a fellow employee was not entitled to compensation where the employer did not order the complainant to ride with his fellow-employee, nor was claimant paid any mileage to go to and from the job site. Perkinson v. Laurel Hot Mix, Inc., 252 Miss. 879, 174 So. 2d 391, 1965 Miss. LEXIS 1156 (Miss. 1965).

Fatal accident to an employee while driving employer’s vehicle on returning from a midweek trip home held not to have arisen out of employment where the trip was for his personal pleasure and not under any agreement with the employer, whose policy was against such use of the employer’s vehicles. Phillips Contracting Co. v. Dependents of Adair, 245 Miss. 365, 148 So. 2d 189, 1963 Miss. LEXIS 523 (Miss. 1963).

Injuries sustained by district manager for an insurance company did not rise out of or in the course of his employment where sustained while manager was on a trip to obtain his own car and to return it to the place where he was stationed, and the fact that the manager looked over some insurance policies, collected a premium, and discussed a permanent plan of insurance with a customer did not change the result. National Bankers Life Ins. Co. v. Jones, 244 Miss. 581, 145 So. 2d 173, 1962 Miss. LEXIS 480 (Miss. 1962).

Injuries sustained by a plant manager in an automobile accident while returning to his home in another city are not connected with his employment where he was expected to remain in town, and received an allowance toward his expenses in doing so. Edward Hyman Co. v. Rutter, 241 Miss. 301, 130 So. 2d 574, 1961 Miss. LEXIS 346 (Miss. 1961).

13. — —Presumptions in death cases.

The Workers’ Compensation Commission’s denial of benefits to an asthmatic employee would be reversed, even though a physician testified that there was not a “strong work-related causal connection between [the employee’s] pneumonia and emphysema,” where medical testimony established a causal connection between the exacerbation of her pre-existing respiratory problems and the inhalation of irritants in her work environment, and the employee’s uncontroverted testimony of the onset pain in her side and back along with shortness of breath while she was performing her job duties established that her injury arose out of and in the course of her employment. Hedge v. Leggett & Platt, 641 So. 2d 9, 1994 Miss. LEXIS 362 (Miss. 1994).

When a worker is found dead at a place where the duties of employment require him to be, a rebuttable presumption arises that the worker’s death was in whole or in part the result of an accident arising out of and in the course of his employment. Road Maintenance Supply, Inc. v. Dependents of Maxwell, 493 So. 2d 318, 1986 Miss. LEXIS 2537 (Miss. 1986).

When an employee has died while about his employment, a presumption rises that his death was causally related to his work activities, and before such presumption can be overcome, the employer must explain fully the cause of death and the work activities of the employee to show that there was no causal relation. McCarley v. Iuka Shirt Co., 258 So. 2d 421, 1972 Miss. LEXIS 1499 (Miss. 1972).

Where an employee is found dead at a place where his duties required him to be, there is a presumption that his death was a result of an accident arising out of and in the course of his employment, which presumption imposes on the employer not only the burden of overcoming it by evidence in explanation of the cause of death, but the further burden of developing the work activities of the employee to show that such activities did not contribute to the cause of death. City of Okolona v. Dependent of Harlow, 244 So. 2d 25, 1971 Miss. LEXIS 1322 (Miss. 1971).

In the absence of evidence to the contrary, an employee found dead of a heart attack at his employer’s place of business is entitled to the presumption that the heart attack resulting in death was causally connected to his work activities, and the employer is under the burden of overcoming this presumption. Washington v. Greenville Mfg. & Machine Works, 223 So. 2d 642, 1969 Miss. LEXIS 1285 (Miss. 1969).

Where an employee is killed by a third party not connected with the employer or employee in any way, the burden of proof rests squarely upon the claimants to show that the death was causally connected with the employment, and the mere fact that the employee is at his place of employment when he meets his death is not sufficient. Dewberry v. Carter, 218 So. 2d 27, 1969 Miss. LEXIS 1591 (Miss. 1969).

The inference of causal connection between employment and death cannot only be indulged when the decedent is “found dead” at his place of employment but also when an employee “falls dead” in the presence of other employees. Mississippi State University v. Dependents of Hattaway, 191 So. 2d 418, 1966 Miss. LEXIS 1215 (Miss. 1966).

Death at place of employment during work hours gives rise to a rebuttable presumption that it resulted from injury arising out of and in the course of employment. L. B. Priester & Son, Inc. v. Dependents of Bynum, 247 Miss. 664, 157 So. 2d 399, 1963 Miss. LEXIS 340 (Miss. 1963).

When it is shown that an employee was found dead in a place where his duties required him to be, or where he might properly have been in performance of his duties during the hours of his work, in the absence of evidence that he was not engaged in his master’s business, there is a presumption that the accident arose out of and in the course of employment within the meaning of the compensation law. Majure v. William H. Alsup & Associates, 216 Miss. 607, 63 So. 2d 113, 1953 Miss. LEXIS 676 (Miss. 1953); Winters Hardwood Dimension Co. v. Dependents of Harris, 236 Miss. 757, 112 So. 2d 227, 1959 Miss. LEXIS 373 (Miss. 1959); Dependents of Ingram v. Hyster Sales & Service, Inc., 231 So. 2d 500, 1970 Miss. LEXIS 1596 (Miss. 1970).

14. — —Particular death cases.

A circuit court judgment affirming the Workers’ Compensation Commission’s denial of benefits to a deceased employee’s children was not supported by substantial evidence and would be reversed where the onset of the employee’s death occurred at her place of employment and the employer failed to rebut the presumption that the employee’s work activities did not cause or contribute to the condition from which she died; the unrebutted “found dead” legal presumption prevailed, satisfying the causal connection between the employee’s work duties and the condition which resulted in her death. Nettles v. Gulf City Fisheries, 629 So. 2d 554, 1993 Miss. LEXIS 545 (Miss. 1993).

Presumption that accident arose out of and in course of employment arises when employee is found dead or falls dead at place where his duties require him to be or where he might properly be in performance of duties, and testimony by employee’s physician regarding possibility that employee suffered attack of acute malignant arrhythmia was not sufficient to meet burden of proof required to rebut presumption. U.S. Rubber Reclaiming Co. v. Dependents of Stampley, 508 So. 2d 673, 1987 Miss. LEXIS 2599 (Miss. 1987).

Where decedent was found unconscious, slumped over his desk over a set of plans he had been working on, a presumption arose that the deceased died as a result of an accidental injury in the course of his employment, and further that there was a causal connection between such employment and the employee’s death. Alexander v. Campbell Constr. Co., 288 So. 2d 4, 1974 Miss. LEXIS 1834 (Miss. 1974).

Where the testimony of the physician who had treated the decedent both during his final and fatal heart attack, suffered while working, and during an attack suffered at home some six months before the final attack, was, though somewhat ambiguous, definite enough to constitute an unrebutted medical opinion, it was sufficient to establish that the decedent’s work activities contributed to the fatal illness. Futorian Mfg. Co. v. Dependents of Easley, 244 So. 2d 413, 1971 Miss. LEXIS 1335 (Miss. 1971).

Where an employee, who had no fixed hours of work, but was on 24-hour call for service on machines sold by his employer, was found lying dead on the ground in front of the truck furnished him by his employer, and the hood of the truck was raised and there was evidence that there had been a fire under the hood involving wiring, such evidence together with the presumption applicable in such cases, sufficiently established that the employee’s fatal heart attack was an injury arising out of and in the course of his employment during an emergency when he was attempting to preserve his employer’s property. Dependents of Ingram v. Hyster Sales & Service, Inc., 231 So. 2d 500, 1970 Miss. LEXIS 1596 (Miss. 1970).

The death of an employee who was shot and killed in a public road near the place of his employment for personal reasons in no wise connected with his job is not compensable. Dewberry v. Carter, 218 So. 2d 27, 1969 Miss. LEXIS 1591 (Miss. 1969).

The compensation commission is an administrative agency, not a court of law, and there is no method provided by law by which this agency may adjust equities between insurance carriers. Thyer Mfg. Co. v. Mooney, 252 Miss. 629, 173 So. 2d 652, 1965 Miss. LEXIS 1134 (Miss. 1965).

An award may properly be made for the death of a mechanic on 24-hour duty, found dead on his employer’s premises, beneath a truck owned by him which he used in his employer’s business, in the absence of any showing that he was at the time acting for himself. M. & W. Constr. Co. v. Dependents of Bugg, 241 Miss. 133, 129 So. 2d 631, 1961 Miss. LEXIS 324 (Miss. 1961).

Death, from heart attack, of a rubbish collector found lying unconscious in a bin the contents of which he had been shoveling into a truck, held to have arisen out of and in the course of his employment. Shannon v. Hazlehurst, 237 Miss. 828, 116 So. 2d 546, 1959 Miss. LEXIS 538 (Miss. 1959).

Compensation should have been awarded for the death of a member of an electric power company’s maintenance crew, who had hypertensive cardiovascular disease and who, after a day’s work of heavy physical labor during which he experienced pains in the cardiac region, went directly to his physician’s office and within an hour dies of a heart attack. Central Electric Power Asso. v. Hicks, 236 Miss. 378, 110 So. 2d 351, 112 So. 2d 230, 1959 Miss. LEXIS 330 (Miss. 1959).

A traveling salesman, killed when his car was wrecked on a highway which he would traverse while on his employer’s business, is presumed to have been in the course of his employment, although his death was late at night, at a time beyond his regular working hours, and his equipment was in his room at a tourist court. Bryan Bros. Packing Co. v. Dependents of Murrah, 234 Miss. 494, 106 So. 2d 675, 1958 Miss. LEXIS 523 (Miss. 1958).

Evidence that an employee was murdered by a jilted suitor and that the only connection between her employment and the cause of her death was that she was on duty at the time she was shot and was merely informing the slayer of the rules of the telephone company, which prohibited visitors in the operating room of the telephone exchange, and that the slayer immediately after shooting the employee turned a pistol upon himself and committed suicide, failed to establish that the employee was killed because of her employment, and therefore she was not under the protection of the Estate of West v. Southern Bell Tel. & Tel. Co., 228 Miss. 890, 90 So. 2d 1, 1956 Miss. LEXIS 578 (Miss. 1956).

15. —Proof of claim.

Denial of workers’ compensation benefits to an employee was inappropriate because the employee met his burden of proof showing that he had an injury, or an exacerbation of a preexisting injury, when he moved a desk at the behest of his supervisor. Any doubtful claims were to be resolved in favor of compensation. Short v. Wilson Meat House, LLC, 37 So.3d 50, 2009 Miss. App. LEXIS 333 (Miss. Ct. App. 2009), rev'd, 36 So.3d 1247, 2010 Miss. LEXIS 310 (Miss. 2010).

In order to establish industrial disability, the burden is upon the claimant to prove medical impairment and that the medical impairment resulted in a loss of wage-earning capacity. Robinson v. Packard Electric Div., General Motors Corp., 523 So. 2d 329, 1988 Miss. LEXIS 199 (Miss. 1988).

When a claimant seeks compensation benefits for disability resulting from a mental or psychological injury, the claimant has the burden of proving by clear and convincing evidence the connection between the employment and the injury. Fought v. Stuart C. Irby Co., 523 So. 2d 314, 1988 Miss. LEXIS 86 (Miss. 1988).

Fact that claimant for disability benefits does not report injury until 4 days after it occurs neither proves that disability must have been caused by something other than injury in course of employment nor bars claim as untimely, notwithstanding employer’s policy requiring that workers report injuries immediately. South Cent. Bell Tel. Co. v. Aden, 474 So. 2d 584, 1985 Miss. LEXIS 2197 (Miss. 1985).

The burden of proving his claim beyond speculation and conjecture is on the claimant, and he must prove that his injury is one which arises out of, and is sustained in, the course of employment. Flintkote Co. v. Jackson, 192 So. 2d 395, 1966 Miss. LEXIS 1251 (Miss. 1966); Johnson v. Gulfport Laundry & Cleaning Co., 249 Miss. 11, 162 So. 2d 859, 1964 Miss. LEXIS 370 (Miss. 1964).

Claimant has the burden of establishing every essential element of the claim, and it is not sufficient to leave anything to surmise or conjecture. Narkeeta, Inc. v. McCoy, 247 Miss. 65, 153 So. 2d 798, 1963 Miss. LEXIS 282 (Miss. 1963).

The burden is on claimant to show that disability resulted from, or was substantially caused by, an injury received while employed. Wells-Lamont Corp. v. Watkins, 247 Miss. 379, 151 So. 2d 600, 1963 Miss. LEXIS 311 (Miss. 1963).

The presumption that injury sustained by an employee arose out of his employment is rebuttable. Connell v. Armstrong Tire & Rubber Co., 242 Miss. 280, 134 So. 2d 435, 1961 Miss. LEXIS 556 (Miss. 1961).

Where accident arising out of and in the course of the employment is shown, the burden is on the employer to prove that disability is due to some cause for which he is not responsible. Hale v. General Box Mfg. Co., 235 Miss. 301, 108 So. 2d 844, 1959 Miss. LEXIS 430 (Miss. 1959).

Where an employee was found to have tuberculosis on a date some six weeks after he had left the employment of his former employer and started working for an independent contractor, medical evidence, including testimony as to the rapid progress of tuberculosis in members of the negro race, as well as the difficulty of determining when the employee first contracted the disease, presented a question of fact for the workmen’s compensation board as to whether the employee had the disease at the time he left the former employer’s service, and its determination that he did not, being supported by substantial evidence, would be affirmed. Lawson v. Traxler Gravel Co., 229 Miss. 159, 90 So. 2d 204, 1956 Miss. LEXIS 596 (Miss. 1956).

16. — —Benefits granted.

Testimony of claimant’s physician giving opinion to reasonable medical certainty that claimant has experienced injury resulting in claimant being 100 percent disabled is sufficient to support finding of disability, notwithstanding contradictory testimony by employer’s physician, where claimant’s physician has examined and treated claimant on 9 or 10 occasions and employer’s physician has examined claimant on only one occasion, some 10 months after most recent examination by claimant’s physician. South Cent. Bell Tel. Co. v. Aden, 474 So. 2d 584, 1985 Miss. LEXIS 2197 (Miss. 1985).

In an action on a claim for workmen’s compensation benefits, evidence that the claimant, while at work, slipped and sustained pain to his back, which necessitated his taking some days from work, and that upon his return, he again hurt his back picking up a heavy object, sustained the commission’s findings that a bulge or herniated disc and resultant disability arose out of and in the course of the claimant’s employment, notwithstanding other evidence that the claimant prior to these injuries was found to have a degree of degenerative arthritis of some duration, and medical testimony suggesting that at least part of the disability was attributable to the pre-existing degenerative condition. Central Electric & Machinery Co. v. Shelton, 220 So. 2d 320, 1969 Miss. LEXIS 1454 (Miss. 1969).

A decedent who, immediately after his employment, was given a check by his employer as an advance against future wages and the permission to use employer’s truck to go get it cashed and who died in a one car accident while on his way to get the money was not, at the time, within the scope and course of his employment. Sam Jones Casing Crews v. Dependents of Skipper, 199 So. 2d 436, 1967 Miss. LEXIS 1296 (Miss. 1967).

Sickness occasioned by finding part of a mouse in a bottle of soft drink purchased by an employee during a midmorning break from a vending machine on the employer’s premises for the convenience of the personnel, is compensable as being in the course of the employment. Collums v. Caledonia Mfg. Co., 237 Miss. 607, 115 So. 2d 672, 1959 Miss. LEXIS 510 (Miss. 1959).

Evidence did not warrant commission’s finding that loss of sight of one eye was unrelated to employment of one who, in handling chemical mixture, splashed some into eye. Mississippi Valley Aircraft Service v. Brown, 236 Miss. 511, 111 So. 2d 28, 1959 Miss. LEXIS 343 (Miss. 1959).

Uncontradicted testimony of an employee that he suffered a heart attack while at work involving physical exertion requires an award of compensation. Shivers v. Biloxi-Gulfport Daily Herald, 236 Miss. 303, 110 So. 2d 359, 1959 Miss. LEXIS 320 (Miss. 1959).

That one suffering a heart attack while at work remained at home for some time before going to a hospital does not negative injury on the job. Shivers v. Biloxi-Gulfport Daily Herald, 236 Miss. 303, 110 So. 2d 359, 1959 Miss. LEXIS 320 (Miss. 1959).

Commission’s award of compensation benefits to an employee who sustained leg injuries while in the course of his employment was affirmed, notwithstanding conflicting evidence as to whether the injury aggravated the employee’s varicose veins, or whether the pre-existing condition interfered with the healing of the injury. Jackson Ready-Mix Concrete v. Young, 230 Miss. 644, 93 So. 2d 645, 1957 Miss. LEXIS 405 (Miss. 1957).

Where a partnership which had a gin in use only six or seven months, in order to obtain a competent gin operator, hired a worker on a year-round basis and assigned other duties in addition to operating and repairing the gin, the injury suffered by the worker under the contract of employment and under direction of one of the partners arose out of and in the course of his employment. National Surety Corp. v. Kemp, 217 Miss. 537, 65 So. 2d 840, 1953 Miss. LEXIS 463 (Miss. 1953).

Where a housewife had for five years and with the knowledge of compensation carrier and her employer performed all her services as bookkeeper during evenings in her living room while seated at couch and working at a small table and where one night she put on her night clothes, for the purpose of being ready for bed after finishing bookkeeping work, the injury she received when her husband’s shotgun discharged while she was removing it from the couch just before beginning her work, was one arising out of and in the course of employment. Joe Ready's Shell Station & Cafe v. Ready, 218 Miss. 80, 65 So. 2d 268, 1953 Miss. LEXIS 518, 1953 Miss. LEXIS 519 (Miss. 1953).

Where claimant was hired by partners on a yearly basis under a contract requiring him to take full charge of gin during ginning season and where he was customarily directed by partners during off season to do various jobs on farm buildings of the partners, the claimant was within the scope of his employment when erecting a political sign at direction of partner who was running for office of sheriff, and injuries sustained while erecting the sign arose out of and in course of the employment within meaning of the compensation law. National Surety Corp. v. Kemp, 217 Miss. 537, 65 So. 2d 840, 1953 Miss. LEXIS 463 (Miss. 1953).

Where a contractor hired a person to paint service stations and had the person transport doors, this created the relationship of employer and employee and when the painter was injured in an accident while transporting the doors the injury was compensable as arising out of and in the course of employment. Mills v. Jones' Estate, 213 Miss. 680, 56 So. 2d 488, 1952 Miss. LEXIS 410 (Miss.), modified, 213 Miss. 680, 57 So. 2d 496, 1952 Miss. LEXIS 411 (Miss. 1952), overruled in part, Railway Express Agency, Inc. v. Hollingsworth, 221 Miss. 688, 75 So. 2d 639, 1954 Miss. LEXIS 580, 1954 Miss. LEXIS 581 (Miss. 1954), overruled, Railway Express Agency, Inc. v. Hollingsworth, 221 Miss. 688, 74 So. 2d 754, 1954 Miss. LEXIS 579 (Miss. 1954).

17. — — Benefits denied.

Worker’s compensation claimant failed to prove that she had suffered a compensable injury because the claimant, although the claimant alleged that the claimant injured the claimant’s back when a coworker kicked the claimant in the back at work, failed to prove by a preponderance of the evidence that the claimant suffered a compensable injury as the claimant’s testimony was contradicted by the testimony of the person who allegedly kicked the claimant and the medical evidence did not corroborate the claimant’s allegation of a traumatic low-back injury. Ross v. Jay's Truck Stop, 172 So.3d 775, 2013 Miss. App. LEXIS 240 (Miss. Ct. App. 2013).

The evidence was insufficient to support a finding by the Workers’ Compensation Commission that a claimant’s back injury was work related where no doctor testified that the claimant received this injury on the job, no fellow worker corroborated the claimant’s assertion that his injury occurred while on the job, and the claimant never reported any work related injury to his employer. Bechtel Corp. v. Phillips, 591 So. 2d 814, 1991 Miss. LEXIS 838 (Miss. 1991).

A determination that the death of an employee did not occur during the course of his employment so as to entitle his dependents to death benefits would be affirmed, where the employee died while on a fishing trip sponsored and financed by his employer who did nothing to cause employees to believe that they would lose anything by not attending, where no customers were entertained nor pep talks given on the trip, where no one was penalized in any way for not going or gained any advantage by going, and where there was nothing to indicate even indirect compulsion requiring the employee to go on the outing, the fact that the employer testified that one of the purposes was to promote better relationship between the company and his employees not being such a substantial benefit as to require a finding that the employee was within the course of his employment. Dependents of Staten v. Ewing Gas Co., 243 So. 2d 561, 1971 Miss. LEXIS 1519 (Miss. 1971).

Workmen’s compensation benefits were denied a hand sander who allegedly injured his back when turning a heavy desk on a conveyor belt where two of the claimant’s co-workers testified that he made no complaint to either of them at the time about being injured and, although he left work and went home, claimant did not go to a doctor for several days following the accident. Hamilton Mfg. Co. v. Kern, 242 So. 2d 441, 1970 Miss. LEXIS 1380 (Miss. 1970).

The evidence, including evidence that the claimant worked a full day on the day on which she claimed she was injured on the job, which was on a Friday, and worked all day on the following Tuesday, having seen the doctor on Monday whom she did not tell at the time that she had injured her back on the job, and testimony that the claimant had told three witnesses prior to the date of the claimed injury that she had fallen at home and hurt her back, was sufficient to support the commission’s order denying workmen’s compensation benefits. Cofer v. Garan, Inc., 235 So. 2d 251, 1970 Miss. LEXIS 1435 (Miss. 1970).

Claimant, employed as an insurance salesman and agent by the state agency for several companies, who maintained an office in his home, and fell, suffering injuries, when he arose from a chair to answer an expected business telephone call, was held not to have been injured in the course of his employment. Shoffner v. Vestal & Vernon Agency, 217 So. 2d 627, 1969 Miss. LEXIS 1573 (Miss. 1969).

An employee who, following his use of abusive language to a cafe waitress, was arrested for disturbing the peace and subsequently shot and killed by the arresting officer was not acting within the scope and course of his employment at the time of his death. Dennis Bros. Constr. Co. v. Dependents of Duett, 196 So. 2d 88, 1967 Miss. LEXIS 1476 (Miss. 1967).

A claimant who had a pre-existing ruptured disc and, as a consequence of his coughing or sneezing while driving a truck for his employer, suffered an additional back injury, was not entitled to compensation, for the cough or sneeze which caused the injury was completely unrelated to his employment as a truck driver. Malone & Hyde of Tupelo, Inc. v. Hall, 183 So. 2d 626, 1966 Miss. LEXIS 1429 (Miss. 1966).

Injuries to attorney who fell in shower in hotel where he was staying in order to investigate a case, held not to have arisen out of and in the course of his employment. Breland & Whitten v. Breland, 243 Miss. 620, 139 So. 2d 365, 1962 Miss. LEXIS 385 (Miss. 1962).

An insurance salesman who, while waiting to transport a customer to a doctor for medical examination, was injured when a shotgun, which he had taken from his car, accidentally discharged, did not receive an injury arising out of his employment. Earnest v. Interstate Life & Acci. Ins. Co., 238 Miss. 648, 119 So. 2d 782, 1960 Miss. LEXIS 450 (Miss. 1960).

Where an employee of a construction company was severely burned when tent he was occupying caught fire, and where he was not required to use the tent and no charge or reduction in wages was made on account of the tents which were donated to such employees as cared to avail themselves of them and at the time of injury the employee was off duty and free to go where he wished and he was not performing any service or complying with any order of the employer, the injury did not arise out of and in the course of employment. Thornton v. La.-Miss. Pipeline Const. Co., 214 Miss. 314, 58 So. 2d 795, 1952 Miss. LEXIS 472 (Miss. 1952).

18. Accidental injury or death.

That death resulted from an injury arising out of and in course of employment may be established by circumstantial evidence. L. B. Priester & Son, Inc. v. Dependents of Bynum, 247 Miss. 664, 157 So. 2d 399, 1963 Miss. LEXIS 340 (Miss. 1963).

Whether death was the result of an injury arising out of and in the course of employment is ordinarily a question of fact. L. B. Priester & Son, Inc. v. Dependents of Bynum, 247 Miss. 664, 157 So. 2d 399, 1963 Miss. LEXIS 340 (Miss. 1963).

Where the claim is based on a mental or nervous condition, an accident must be established by evidence bringing it in the realm of probability, and a causal connection proved by clear evidence. International Paper Co. v. Wilson, 243 Miss. 659, 139 So. 2d 644, 1962 Miss. LEXIS 391 (Miss. 1962).

A presumption of accident arising out of and in the course of employment arises where one is found dead or dying at a place where his duties required him to be, or where he might properly have been in the performance of his duties during hours of work, in the absence of evidence that he was not engaged in his employer’s business. Shannon v. Hazlehurst, 237 Miss. 828, 116 So. 2d 546, 1959 Miss. LEXIS 538 (Miss. 1959).

The exertion which caused the accident need not have been of an unusual character. Shannon v. Hazlehurst, 237 Miss. 828, 116 So. 2d 546, 1959 Miss. LEXIS 538 (Miss. 1959).

An accidental injury need not result suddenly or from the immediate application of external force, but may accrue gradually over a reasonably definite and not a remote time. Shivers v. Biloxi-Gulfport Daily Herald, 236 Miss. 303, 110 So. 2d 359, 1959 Miss. LEXIS 320 (Miss. 1959).

The word “accident” has a generally accepted meaning as something happening without design and being unforeseen and unexpected to the person to whom it happens. L. B. Priester & Son v. McGee, 234 Miss. 471, 106 So. 2d 394, 1958 Miss. LEXIS 520 (Miss. 1958).

Whether or not an injury is accidental must be determined from the viewpoint of the employee. L. B. Priester & Son v. McGee, 234 Miss. 471, 106 So. 2d 394, 1958 Miss. LEXIS 520 (Miss. 1958).

19. —Entitled to benefits.

Where record showed that claimant was injured, in that his prior asthmatic condition was aggravated and accelerated because of the dust and chemicals he was forced to breathe while engaged in his employment, it was clear that the claimant’s disability could be characterized as an accidental injury arising out of and in the course of his employment. Boyd v. State, 291 So. 2d 560, 1974 Miss. LEXIS 1729 (Miss. 1974).

Where claimant’s condition grew progressively worse from 1963 to 1969, when he quit his job on the advice of two doctors, the injury may have been gradual, but it was clear that the working conditions aggravated his asthma and emphysema. Boyd v. State, 291 So. 2d 560, 1974 Miss. LEXIS 1729 (Miss. 1974).

The commission’s findings that a registered nurse slipped and fell in the hospital corridor, striking her head, and that this was an accidental injury arising out of her employment, was warranted by the evidence, despite other evidence that the nurse had had epileptic seizures, although none for at least five years, and testimony of hospital employees that while walking past the office the claimant grabbed her throat and fell in a rigid position. Doctors Hospital of Jackson, Inc. v. Becker, 235 So. 2d 702, 1970 Miss. LEXIS 1460 (Miss. 1970).

A claimant who fainted while lifting a three-pound spool of thread above her head to place it on a knitting machine and, as a consequence, fell to the floor, sustained a back injury distinguishable from an injury resulting from an indiopathic level-floor fall, and was one for which she was entitled to compensation. Cooper's, Inc. of Mississippi v. Long, 224 So. 2d 866, 1969 Miss. LEXIS 1301 (Miss. 1969).

Where the evidence showed that the claimant had received an electrical shock in the course of her employment and the medical evidence revealed that she had been disabled since her accident, that her headaches, neck spasms, vomiting, and anxiety reaction were related to the electrical shock, and that an acute duodenal ulcer developed as a result of her taking medication for the relief of the symptoms caused by her shock, she was entitled to recover compensation for the conditions which bore a causal relationship to the original accident. Burnley Shirt Corp. v. Simmons, 204 So. 2d 451, 1967 Miss. LEXIS 1195 (Miss. 1967).

Claimant who sustained a severe strain in the course of her employment, resulting in a cystocele, a rectocele, and a prolapsed uterus, making her wholly unfit for the work which she had previously been doing, had sustained permanent partial disability entitling her to compensation benefits for 450 weeks. Mississippi Nursing Home v. Sessums, 253 Miss. 797, 180 So. 2d 157, 1965 Miss. LEXIS 1052 (Miss. 1965).

A claimant employed in a packing house, who incurred on his job numerous cuts and scratches while handling the waste products from slaughtered animals and as a consequence contracted brucelosis or undulant fever, had sustained a compensable accidental injury. Mid-South Packers, Inc. v. Hanson, 253 Miss. 703, 178 So. 2d 689, 1965 Miss. LEXIS 1035 (Miss. 1965).

An award is permissible in the case of one who, while engaged in heavy manual labor on a hot day and whose health had previously been good, collapsed at his place of work and died of what may have been a heat stroke, though at first diagnosed as a coronary occlusion. Winters Hardwood Dimension Co. v. Dependents of Harris, 236 Miss. 757, 112 So. 2d 227, 1959 Miss. LEXIS 373 (Miss. 1959).

That employee having a heart disease had been told by his employer not to do any heavy lifting, inadvertently over-exerted himself on the job, does not deprive the occurrence of an accidental character. Shivers v. Biloxi-Gulfport Daily Herald, 236 Miss. 303, 110 So. 2d 359, 1959 Miss. LEXIS 320 (Miss. 1959).

A heart attack suffered by a construction worker who had had one four years before but who had no reason to expect a recurrence, while working with a companion on a scaffold with chisel and hammer to cut metal overhead, held an accidental injury for which compensation is allowable. L. B. Priester & Son v. McGee, 234 Miss. 471, 106 So. 2d 394, 1958 Miss. LEXIS 520 (Miss. 1958).

An employee who, although having had one heart attack, had been able to satisfactorily work more or less constantly for two and a half years could not be said to have such intention or expectation of a second heart attack on the particular date of his injury as to strip the occurrence of its accidental character. L. B. Priester & Son v. McGee, 234 Miss. 471, 106 So. 2d 394, 1958 Miss. LEXIS 520 (Miss. 1958).

Under conflicting evidence, an award of compensation to claimant for injuries to his teeth, without any award for injuries to his coccyx sacrum and rectum, was affirmed. Fondren v. Fortenberry Drilling Co., 233 Miss. 210, 101 So. 2d 654, 1958 Miss. LEXIS 373 (Miss. 1958).

Where an employee in a bakery suffered a disability caused by allergy resulting from his contact with a baker’s pad or mitten which he was required to use in handling hot pans of bread as they came from the oven, this disability resulted from accidental injury within purview of Workmen’s Compensation Law rather than from an occupational disease. Hardin's Bakeries, Inc. v. Ranager, 217 Miss. 463, 65 So. 2d 461, 1953 Miss. LEXIS 453 (Miss. 1953).

Where an employee suffered a heart attack shortly after he and two other men lifted an end of iron pipe, weighing approximately a thousand pounds, and this resulted in a coronary occlusion, this heart attack was accidental and compensable. La Dew v. La Borde, 216 Miss. 598, 63 So. 2d 56, 1953 Miss. LEXIS 674 (Miss. 1953).

20. —Not entitled to benefits.

Substantial evidence supported the Mississippi Workers’ Compensation Commission’s finding that an employee was unable to show that limitations on her ability to perform manual labor had any impact on her ability to perform the duties of her employment or resulted in a loss of wage-earning capacity because the employee had a history of employment in sedentary, clerical positions, supporting a reasonable inference that a restriction to light-duty work would not be a hindrance to her. Weathersby v. Miss. Baptist Health Sys., 195 So.3d 877, 2016 Miss. App. LEXIS 421 (Miss. Ct. App. 2016).

Mississippi Workers’ Compensation Commission did not err in finding that an employee failed to prove she suffered a permanent disability because the presumption of no loss of wage-earning capacity applied since her post-injury wages were the same as her pre-injury wages; the employee failed to rebut the presumption because she presented no evidence of an increase in wage levels since her injury, that she was working additional hours, or that she was being paid out of her employer’s sympathy. Weathersby v. Miss. Baptist Health Sys., 195 So.3d 877, 2016 Miss. App. LEXIS 421 (Miss. Ct. App. 2016).

Although conflicting, lay and medical evidence supported finding of commission that claimant’s anxiety neurosis did not result from accidental injury. Mississippi Products, Inc. v. Skipworth, 238 Miss. 312, 118 So. 2d 345, 1960 Miss. LEXIS 407 (Miss. 1960).

Death of truck driver drowned when truck went into a river is not compensable where there is no proof of what his duties were or where he was required to perform them. Erwin v. Hayes, 236 Miss. 123, 109 So. 2d 156, 1959 Miss. LEXIS 301 (Miss. 1959).

In a proceeding for death benefits, evidence sustained the workmen’s compensation commission’s finding that the deceased, at the date of his injury, was not an employee of the company against whom the claim was asserted, and that the persons for whom deceased was working were not employees of the company. Estate of Oatis v. Williamson & Williamson Lumber Co., 230 Miss. 270, 92 So. 2d 557, 1957 Miss. LEXIS 367 (Miss. 1957).

Under evidence tending to establish that claimant’s injuries were sustained while in the employment of a former employer rather than the employer against whom proceedings for workmen’s compensation benefits was instituted, and that the work done while in the employment of the latter did not aggravate his injury, finding of the workmen’s compensation commission that claimant failed to show that he had sustained an accidental injury was supported by substantial evidence. Anderson v. Ingalls Shipbuilding Corp., 229 Miss. 670, 91 So. 2d 756, 1957 Miss. LEXIS 313 (Miss. 1957).

21. Causal relation.

Despite the fact that an administrative law judge held an employee to the correct burden of proof with regard to her claim for workers’ compensation benefits based on depression and anxiety secondary to an accident, the record lacked substantial evidence to support a finding that the employee was entitled to benefits because the medical record did not indicate that her condition was the result of the accident. Hosp. Housekeeping Sys. v. Townsend, 993 So. 2d 418, 2008 Miss. App. LEXIS 405 (Miss. Ct. App. 2008).

An injured construction worker was a statutory employee of the general contractor where the worker was the son of the carpentry subcontractor, the subcontractor did not have a workers’ compensation insurance policy in effect at the time of the injury, and the general contractor had been advised of the subcontractor’s lack of insurance prior to the date of the injury. Vance v. Twin River Homes, 641 So. 2d 1176, 1994 Miss. LEXIS 373 (Miss. 1994).

The mere presence of an employee on the premises where his work is to be performed is not enough to establish the required causal connection between the employee’s injury and the conditions under which his work is to be performed. Jefferson v. T. L. James & Co., 420 F.2d 322, 1969 U.S. App. LEXIS 9766 (5th Cir. Miss. 1969).

An employee’s usual routine upon reaching the place of business where he worked is irrelevant, and an expert medical witness, in response to a hypothetical question, should not take into consideration “an invariable practice” unless it was proved that the employee followed that routine on the occasion when his death resulted. Washington v. Greenville Mfg. & Machine Works, 223 So. 2d 642, 1969 Miss. LEXIS 1285 (Miss. 1969).

It is doubtful that a presumption of causal connection arises at all unless the claimant dies, because, if he lives, it is within his power, and it is his duty, to meet the burden of showing that his injury arose out of and in the course of his employment. Kersh v. Greenville Sheet Metal Works, 192 So. 2d 266, 1966 Miss. LEXIS 1239 (Miss. 1966).

While the burden of proof is on the claimant, there is created a rebuttable presumption of work connection in the case of an unexplained death while on the job. L. B. Priester & Son, Inc. v. Bynum, 244 Miss. 185, 137 So. 2d 907, 1962 Miss. LEXIS 438 (Miss. 1962).

Since a claim for disability is separate and distinct from a claim for death benefits, the 1960 amendment to subsection (9) of Code 1942, § 6998-02 [now subsection (i) of Code 1972, §71-3-3], requiring that incapacity and the extent thereof be supported by medical findings, did not eliminate the presumption of causal connection between the employment and death occurring while the employee is engaged in the duties of his employment, particularly since the 1960 amendment did not affect subsection (3) of Code 1942, § 6998-02 [now subsection (c) of Code 1972, §71-3-3]. L. B. Priester & Son, Inc. v. Bynum, 244 Miss. 185, 137 So. 2d 907, 1962 Miss. LEXIS 438 (Miss. 1962).

An injury arises out of the employment when there is a causal connection between it and the job. M. & W. Constr. Co. v. Dependents of Bugg, 241 Miss. 133, 129 So. 2d 631, 1961 Miss. LEXIS 324 (Miss. 1961).

In all but simple cases medical causation must be established by expert testimony. Cole v. Superior Coach Corp., 234 Miss. 287, 106 So. 2d 71, 1958 Miss. LEXIS 488 (Miss. 1958).

Burden of proof is on claimant to prove causal connection between employment and injury. Sullivan v. C. & S. Poultry Co., 234 Miss. 126, 105 So. 2d 558, 1958 Miss. LEXIS 473 (Miss. 1958).

It is not necessary to show that the exertion which occurred in precipitating the harm was not in itself unusual or beyond the routine of the employment, but, provided the causal relationship to the employment is shown, aggravating, precipitating, or combining with the disease or infirmity to produce death, the exertion may be usual and customary, and still satisfy the requirement that injury be accidental and arise out of the employment. Poole v. R. F. Learned & Son, 234 Miss. 362, 103 So. 2d 396, 1958 Miss. LEXIS 503 (Miss.), modified, Poole v. R. F. Learned & Sons, 234 Miss. 362, 105 So. 2d 162, 1958 Miss. LEXIS 504 (Miss. 1958).

The work of an employee need only be a contributing cause, not the sole cause of the injury, in order that the injury may be deemed to arise out of and in the course of his employment. Prince v. Nicholson, 229 Miss. 718, 91 So. 2d 734, 1957 Miss. LEXIS 318 (Miss. 1957).

It is not necessary to show that the exertion which occurred in precipitating the harm was in itself unusual or beyond the routine of the employment, provided the causal relation is shown; the exertion may be usual and customary and still satisfy the requirements that the injury be accidental and arise out of employment. W. G. Avery Body Co. v. Hall, 224 Miss. 51, 79 So. 2d 453, 1955 Miss. LEXIS 459 (Miss. 1955).

An injury arises out of employment when, but only when, there is a causal connection between such injury and the conditions under which the work is required to be performed; it is not sufficient that the employee is at the place of his employment at the time of the accident and doing his usual work. Brookhaven Steam Laundry v. Watts, 214 Miss. 569, 55 So. 2d 381, 1951 Miss. LEXIS 521 (Miss. 1951).

22. —Causal connection established.

Finding that workers’ compensation benefits were wrongfully denied to the employee was appropriate because the case was doubtful as to whether the existence of any real or imagined relationship between the former coworker and the employee was the sole cause of the employee’s injuries; doubtful claims were to be resolved in favor of compensation. Int'l Staff Mgmt. & Legion Ins. Co. v. Stephenson, 46 So.3d 367, 2010 Miss. App. LEXIS 128 (Miss. Ct. App.), cert. denied, 49 So.3d 636, 2010 Miss. LEXIS 564 (Miss. 2010).

The Workers’ Compensation Commission’s finding that the claimant’s exposure to chemicals in his employment did not result in an injury was not based on substantial evidence since (1) there was no doubt that the claimant suffered an injury, (2) the connections between the claimant’s work environment and his health were simply too numerous to be purely coincidental, and (3) although the claimant was better, his future employment was limited in general and he was permanently restricted from working around such chemicals as found at his employment. Sharpe v. Choctaw Elecs. Enters., 767 So. 2d 1002, 2000 Miss. LEXIS 208 (Miss. 2000).

A doctor’s inability to pinpoint the exact physical cause of an employee’s disability did not alone defeat the employee’s claim for compensation, given the beneficent purpose of the Workers’ Compensation Act, where there was uncontradicted testimony that the employee was injured while performing his job and that he was totally and permanently disabled. Trest v. B.C. Rogers Processors, Inc., 592 So. 2d 110, 1991 Miss. LEXIS 981 (Miss. 1991).

The evidence established that the employee’s death, caused by an overdose of medication combined with alcohol consumption, resulted from a mental disturbance which resulted from his job-related injury; there was insufficient evidence to conclude that the employee’s death had been the result of an independent intervening cause. Kelly Bros. Contractors, Inc. v. Windham, 410 So. 2d 1322, 1982 Miss. LEXIS 1886 (Miss. 1982).

Where record showed that claimant was injured, in that his prior asthmatic condition was aggravated and accelerated because of the dust and chemicals he was forced to breathe while engaged in his employment, it was clear that the claimant’s disability could be characterized as an accidental injury arising out of and in the course of his employment. Boyd v. State, 291 So. 2d 560, 1974 Miss. LEXIS 1729 (Miss. 1974).

Where it was found as a matter of law that a deceased employee’s death from a heart attack was causally related to the duties of his employment, such finding contained the implicit finding that the duties of employment substantially contributed to his death and an order awarding nominal compensation to the decedent’s dependents of one percent or $125, would be reversed, since a mere nominal sum may not be awarded when there is liability for death benefits. Dependents of Barrett v. Leake County Cooperative (A. A. L.), 249 So. 2d 387, 1971 Miss. LEXIS 1161 (Miss. 1971).

The overwhelming weight of the evidence reflected that a stroke suffered by a 40-year-old driver of a large tractor-trailer truck, whose job involved responsibility and sustained concentration over many hours, as well as substantial physical effort and mental strain, was causally related to the stress and strain of his job, which aggravated his pre-existing condition of a congenital aneurism. Dean Truck Line, Inc. v. Wilkes, 248 So. 2d 462, 1971 Miss. LEXIS 1474 (Miss. 1971).

23. — —Causal connection not established.

Benefits denied where the testimony of four doctors was inconclusive as to a causal link between claimant’s respiratory injuries and his working conditions at employer electronics company. Sharpe v. Choctaw Elecs. Enters., 753 So. 2d 1127, 1999 Miss. App. LEXIS 704 (Miss. Ct. App. 1999), rev'd, 767 So. 2d 1002, 2000 Miss. LEXIS 208 (Miss. 2000).

A finding by the Workers’ Compensation Commission that an injured manual laborer who was restricted by his doctor to lifting less than 40 pounds suffered only minimal industrial incapacity was not supported by substantial evidence where the decision was based largely on an alleged policy of the employer requiring workers to seek assistance when lifting more than 40 pounds, but the record contained no evidence of such a policy. DeLaughter v. South Cent. Tractor Parts, 642 So. 2d 375, 1994 Miss. LEXIS 367 (Miss. 1994).

The circuit court did not err in reversing the Workers’ Compensation Commission’s finding that a claimant with a back injury had reached maximum medical improvement and suffered no permanent disability where there was evidence that the claimant had 2 ruptured discs surgically removed, specialists who initially concluded that the claimant had no ruptured discs did not later examine him after the discovery of the ruptured discs was made, and the employer failed to show that the claimant suffered any disassociated intervening injury which caused the ruptured discs, their surgical removal and the resulting disability. Marshall Durbin Cos. v. Warren, 633 So. 2d 1006, 1994 Miss. LEXIS 33 (Miss. 1994).

The evidence supported a finding that the decedent was under no physical or mental strain when he suffered a heart attack, while engaged in using a screwdriver to adjust the buttonhole chute on a sewing machine, and further supported the conclusion that there was no causal connection between employment and death. McCarley v. Iuka Shirt Co., 258 So. 2d 421, 1972 Miss. LEXIS 1499 (Miss. 1972).

24. —Heart cases.

Where one is subjected to extraordinary mental and physical stress and strain brought about by one’s employment, his resulting heart attack does not become noncompensable, just because it is constant and occurs over a period of several months. Mississippi Research & Development Center v. Dependents of Shults, 287 So. 2d 273, 1973 Miss. LEXIS 1331 (Miss. 1973).

The presumption that a heart attack while at work is work-connected is not conclusive, but may be rebutted by proof of circumstances. Mississippi Highway Patrol v. Dependents of Neal, 239 Miss. 505, 124 So. 2d 120, 125 So. 2d 544, 1960 Miss. LEXIS 315 (Miss. 1960); Meridian Mattress Factory, Inc. v. Morris, 239 Miss. 792, 125 So. 2d 533, 1960 Miss. LEXIS 355 (Miss. 1960).

A causal connection between the employment and the injury or death may be found when the outset of a heart attack occurs while the employee is about his work. Russell v. Sohio Southern Pipe Lines, Inc., 236 Miss. 722, 112 So. 2d 357, 1959 Miss. LEXIS 369 (Miss. 1959).

A conflict in medical testimony as to whether an accidental burn suffered by the claimant while engaged in his duties together with the resultant anticipated treatment thereof was causally related to, and precipitated, the claimant’s heart attack only made an issue of fact to be decided by the attorney-referee and the commission. Harper Foundry & Machine Co. v. Harper, 232 Miss. 873, 100 So. 2d 779, 1958 Miss. LEXIS 342 (Miss. 1958).

It was for the determination of the referee and workmen’s compensation commission as to whether or not wielding a paint brush for 9 or 10 hours a day with 1 hour out for lunch would constitute an unusual exertion or strain so as to bring about or contribute to the employee’s death from coronary thrombosis about 4 hours after he had left the job and thus constitute a compensable injury under the Workmen's Compensation Law. Dillon v. Gasoline Plant Constr. Corp., 222 Miss. 10, 75 So. 2d 80, 1954 Miss. LEXIS 610 (Miss. 1954).

25. — —Benefits awarded.

Where a 60-year old employee suffered several fractures to his hip in addition to compression of his L-4 vertebra and could no longer withstand the duties of longhaul trucking, ample evidence existed to support the Mississippi Workers’ Compensation Commission’s finding that he suffered a loss of wage earning capacity of $ 400 per week. The undisputed testimony demonstrated that he earned half of his regular salary as a long-haul truck driver while driving short hauls or working in the loading and packing divisions, and that he had sought light duty work from both his employer and his union, but that none was offered; thus, an award of permanent partial disability benefits was proper. Alumax Extrusions, Inc. v. Hankins, 902 So. 2d 586, 2004 Miss. App. LEXIS 957 (Miss. Ct. App. 2004).

Benefits were properly awarded where there was no credible medical opinion testimony to the effect that employee’s death, even assuming it to have been the result of a heart attack, was not caused at least in part by his work activities. Road Maintenance Supply, Inc. v. Dependents of Maxwell, 493 So. 2d 318, 1986 Miss. LEXIS 2537 (Miss. 1986).

A causal connection existed between the death of an employee who suffered a fatal heart attack while driving a truck along a highway and his employment where the evidence established that his heart was seriously impaired by a childhood attack of rheumatic fever, that he had nearly died from another heart attack which had occurred approximately a month prior to his death, and his physician testified that any activity on the part of the decedent could very likely have contributed to his death. Leake County Cooperative v. Dependents of Barrett, 226 So. 2d 608, 1969 Miss. LEXIS 1306, 1969 Miss. LEXIS 1307 (Miss. 1969).

Where decedent, secretary-manager of a state association of insurance agents, shown to be a perfectionist, easily upset, high-strung and nervous, under constant physical and emotional stress, was found dead in bed in his hotel room as the result of a heart attack following a day spent participating in a convention which he attended as a part of his duties, there was sufficient and substantial evidence to sustain a conclusion that his death was causally connected with his work and was brought on by his physical and emotional stress and strain in the performance of his duties; and his dependents were entitled to compensation, subject to apportionment on account of a pre-existing infirmity. Miss. Ass'n of Ins. Agents, Inc. v. Dependents of Seay, 218 So. 2d 413, 1969 Miss. LEXIS 1597 (Miss. 1969).

Where he had the duty of closing the shop, and sometimes worked overtime, there was a presumption of causal connection between the employment and the death of a shop foreman who was found dead from a heart attack a few minutes later than the normal Saturday shop closing time, and this presumption was not eliminated by the 1960 amendment to subsection (9) of Code 1942, § 6998-02 [now subsection (i) of Code 1972, §71-3-3] requiring that incapacity and the extent thereof must be supported by medical findings. L. B. Priester & Son, Inc. v. Bynum, 244 Miss. 185, 137 So. 2d 907, 1962 Miss. LEXIS 438 (Miss. 1962).

Award of compensation for death of a garment factory employee from heart failure may be found connected with work where there is medical testimony that anything the employee might do would have aggravated her condition. I. B. S. Mfg. Co. v. Dependents of Cook, 241 Miss. 256, 130 So. 2d 557, 1961 Miss. LEXIS 341 (Miss. 1961).

A coronary thrombosis with which a bookkeeper was seized while at work may be found to have been connected therewith where there was evidence that he had occasion to go up a flight of 19 steps during the morning, had worked until 8 o’clock on the evening before, and that absence of his superiors on the day in question may have increased his duties. Meridian Mattress Factory, Inc. v. Morris, 239 Miss. 792, 125 So. 2d 533, 1960 Miss. LEXIS 355 (Miss. 1960).

Where the testimony of heart specialist testifying on behalf of claimants and the employer and its insurance carrier clearly showed that regular work such as deceased was doing as the sole attendant of a busy filling station would aggravate the deceased’s heart condition, the conclusion of the workmen’s compensation commission that complainants had failed to prove that the death of the deceased arose out of and in the course of his employment was against the weight of the evidence. Lewis v. Trackside Gasoline Station & Pacific Indem. Co., 233 Miss. 663, 103 So. 2d 868, 1958 Miss. LEXIS 429 (Miss. 1958).

Where it appeared that a mechanic, who had a pre-existing heart ailment, suffered a fatal attack while driving to a nearby farm to repair a cotton picker as directed by the shop foreman, testimony of lay witnesses and a medical expert, who appeared to be of the opinion that the heart attack which the deceased suffered was probably precipitated by the work that he was performing, was sufficient to justify an award to claimants, although another medical expert had testified that in his opinion there was no causal relationship between the deceased’s employment during the day and his death. Goodnite v. Farm Equipment Co., 234 Miss. 342, 103 So. 2d 391, 1958 Miss. LEXIS 563 (Miss. 1958).

Medical testimony supported the finding that an accidental burn suffered by the claimant while engaged in his duties together with the resultant and anticipated treatment thereof was causally related to, and precipitated, the claimant’s heart attack. Harper Foundry & Machine Co. v. Harper, 232 Miss. 873, 100 So. 2d 779, 1958 Miss. LEXIS 342 (Miss. 1958).

Under the evidence, including medical testimony, the attorney-referee and the commission properly found that the activities of the deceased as a butcher or market man in the meat department of the employer’s store caused the deceased’s fatal heart attack, and it was not necessary that the claimants show that the deceased had had a pre-existing heart condition or other physical infirmity which could have been aggravated by the work of the deceased. Pennington v. Smith, 232 Miss. 775, 100 So. 2d 569, 1958 Miss. LEXIS 328 (Miss. 1958).

The commission’s finding that manual labor performed by a worker in the course of his employment with a lumber company was a precipitating cause of the worker’s death due to coronary thrombosis was sustained by evidence, consisting substantially of the response of a medical specialist in cardiology and internal medicine to hypothetical questions. Lee v. Haltom Lumber Co., 230 Miss. 655, 93 So. 2d 641, 1957 Miss. LEXIS 407 (Miss. 1957).

Where the weight of the evidence established that claimant’s heart attacks came upon him while he was in the performance of the duties of his employment, which caused physical strain and exertion, and it was undisputed that he was presently disabled from the performance of the work in which he was engaged at the time he suffered the attacks, the workmen’s compensation commission’s finding, under conflicting medical testimony, that there was a causal connection between the claimant’s heart attacks and his work was affirmed. Ingalls Shipbuilding Corp. v. Dickerson, 230 Miss. 110, 92 So. 2d 354, 1957 Miss. LEXIS 350 (Miss. 1957).

26. — —Benefits denied.

Where a deceased workman, retained by a shellfish processing company to do odd jobs, was observed doing no more than moving about and sitting down on the day of his death before he suffered an apparent myocardial infarction, and there was no evidence to show that he “over-extended” himself, and in fact medical opinion testimony was to the contrary, there was sufficient evidence to rebut the presumption of causal connection with employment, and the commission was justified in its conclusion that the death was not compensable. Hungerford v. Southern Shell Fish Co., 230 So. 2d 59, 1969 Miss. LEXIS 1260 (Miss. 1969).

Where it was not shown that employee had devoted any part of his time on the date of death to the duties of his employment, the evidence was insufficient to show that death at home in bed from myocardial infarction arose out of his employment as office manager. Dependents of Moon v. Erwin Mills, Inc., 244 Miss. 573, 145 So. 2d 465, 1962 Miss. LEXIS 478 (Miss. 1962).

Evidence held to warrant conclusion that death from coronary occlusion was not service-connected. Itawamba Mfg. Co. v. Dependents of Christian, 244 Miss. 587, 145 So. 2d 161, 1962 Miss. LEXIS 481 (Miss. 1962).

Where it was not shown that an employee’s exertion in and about the duties of his employment contributed to or precipitated the heart attack which resulted in his death, the commission was not in error in denying a claim for compensation. Rushing v. Water Valley Coca Cola Bottling Co., 232 Miss. 338, 98 So. 2d 870, 1957 Miss. LEXIS 481 (Miss. 1957).

Commission’s order denying compensation payments for the decedent’s death caused by heart attack, which was predicated upon the ground that death was not causally related to the activities of his employment, was affirmed, where there was abundant medical evidence in support thereof. Halbert v. Lamar Advertising Agency, 231 Miss. 437, 95 So. 2d 535, 1957 Miss. LEXIS 528 (Miss. 1957).

In a workmen’s compensation proceeding for death benefits, evidence sustained the commission’s finding that the death of an employee caused by a heart condition was not attributable to the work of the employee’s employment, and, thus, not compensable. Freeman v. Mississippi Power & Light Co., 230 Miss. 396, 92 So. 2d 658, 1957 Miss. LEXIS 382 (Miss. 1957).

27. —Cerebral or vascular accidents.

Substantial evidence supported the commission’s finding that there was a causal connection between the employee’s stooping and lifting a box weighing 60 to 70 pounds and the cerebral hemorrhage which he suffered the following day. Walker Mfg. Co. v. Pickens, 206 So. 2d 639, 1968 Miss. LEXIS 1583 (Miss. 1968).

In view of medical testimony, the finding of the workmen’s compensation commission and the circuit court that there was no causal connection or relationship between the decedent’s employment duties and the rupture of the aneurysm causing his death was not supported by substantial evidence. Dependent of Payton v. Armstrong Tire & Rubber Co., 250 Miss. 407, 165 So. 2d 336, 1964 Miss. LEXIS 471 (Miss. 1964).

Evidence held to warrant findings that death, in hotel room of traveling salesman who suffered from hypertension, chronic bronchitis and high blood pressure, was not connected with his employment. Moore v. Hederman Bros., 240 Miss. 358, 127 So. 2d 647, 1961 Miss. LEXIS 469 (Miss. 1961).

A finding that the death of a shipyard worker who became ill while operating a pneumatic chipper was not connected with his employment is warranted where medical evidence was that he died of a rupture of a probable congenital intracranial aneurysm. Druey v. Ingalls Shipbuilding Corp., 237 Miss. 277, 114 So. 2d 772, 1959 Miss. LEXIS 465 (Miss. 1959).

Claimant, a 60-year-old female office worker whose duties were both executive and clerical, shown by the evidence to be a perfectionist, irritable and high tempered, suffering from extreme hypertension and with a history of two previous strokes, who suffered a cerebral thrombosis while at work, was entitled to compensation on the basis that the work she performed in the course of her employment, and the manner in which she performed it, aggravated her hypertension and was one of the factors which contributed to the attack which caused her disability. Insurance Dep't of Mississippi v. Dinsmore, 233 Miss. 569, 104 So. 2d 296, 1958 Miss. LEXIS 420 (Miss. 1958).

Where the truck driver accidentally lacerated his leg on June 26, 1954, causing considerable bleeding, which continued to some extent even after medical attention, and following his release by the doctor to return to work, on July 5, 1954, the employee reported to work on July 9, 1954, while suffering from dizzy spells, and died on July 16th, 1954, as result of bleeding to death from a massive gastrointestinal hemorrhage and malignant hypertension, the attorney-referee’s finding that death was not related to the injury of June 26th, the workmen’s compensation commission’s order affirming the finding, as well as the circuit court’s affirming order, was not supported by substantial evidence and would be reversed. Williams v. Vicksburg Wholesale Poultry Co., 233 Miss. 384, 102 So. 2d 378, 1958 Miss. LEXIS 395 (Miss. 1958).

Contention that there was no causal connection between claimant’s work and his stroke, but that it was brought on by horseplay in which the claimant was aggressor, was not sustained by evidence that the claimant grabbed at the leg or pants leg of his coworker to keep from falling when the attack came on him, and the uncontradicted testimony of two doctors was to the effect that such act on the part of the claimant was not sufficiently strenuous to bring on or precipitate the claimant’s attack. Prince v. Nicholson, 229 Miss. 718, 91 So. 2d 734, 1957 Miss. LEXIS 318 (Miss. 1957).

In a workman’s compensation proceeding for a death benefit, evidence on the issue of whether exertion which was caused by employee’s stooping and bending to pick tung nuts from the ground had contributed to employee’s high blood pressure so as to precipitate a cerebral hemorrhage, did not justify a denial of claim for compensation. Cowart v. Pearl River Tung Co., 218 Miss. 472, 67 So. 2d 356, 1953 Miss. LEXIS 563 (Miss. 1953), limited, Dillon v. Gasoline Plant Constr. Corp., 222 Miss. 10, 75 So. 2d 80, 1954 Miss. LEXIS 610 (Miss. 1954).

Where exertion contributes to, aggravates or accelerates high blood pressure so as to precipitate accident complained of, the claim is compensable. Cowart v. Pearl River Tung Co., 218 Miss. 472, 67 So. 2d 356, 1953 Miss. LEXIS 563 (Miss. 1953), limited, Dillon v. Gasoline Plant Constr. Corp., 222 Miss. 10, 75 So. 2d 80, 1954 Miss. LEXIS 610 (Miss. 1954).

28. —Mental or nervous disease.

A claimant failed to make the requisite showing that her mental condition was causally connected to her employment where 2 doctors testified that the claimant had suffered from psychological disorders prior to the incident alleged to have caused her mental injury, the Workers’ Compensation Commission found the testimony of another doctor, who diagnosed the claimant as having severe post-traumatic stress disorder and major depression with some psychotic symptoms, to be unconvincing, and the incident alleged to have caused the claimant’s mental injury-a private meeting with her supervisor during which the supervisor threatened to fire her-was not an “untoward event.” Bates v. Countrybrook Living Center, 609 So. 2d 1247, 1992 Miss. LEXIS 589 (Miss. 1992).

The evidence was sufficient to support the Workers’ Compensation Commission’s finding that an employee’s mental disability was caused by a deliberate course of conduct by his employer and that there was nothing in his psychological background to suggest a pre-existing personality disorder, so that the stresses to which the employee was subjected were “more than the ordinary incidents of employment” and were “untoward events or unusual occurrences” culminating in his subsequent disability, where a psychiatrist who treated the employee for over 2 years testified that the employee was psychologically disabled and that his work played a significant part in causing it, and testimony from the employee, the employee’s wife, and fellow employees established a protracted pattern by the employer to put pressure and stress upon the employee. Borden, Inc. v. Eskridge, 604 So. 2d 1071, 1991 Miss. LEXIS 795 (Miss. 1991).

In order to be compensable, a mental injury, unaccompanied by physical trauma, must have been caused by something more than the ordinary incidents of employment. Fought v. Stuart C. Irby Co., 523 So. 2d 314, 1988 Miss. LEXIS 86 (Miss. 1988).

Mental injury of worker unaccompanied by physical trauma is not directly linked to untoward event, unusual occurrence, accident or injury incident to employment, as required for worker to be entitled to worker’s compensation benefits, where worker claims that mental injury results from termination of worker due to business conditions eliminating need for worker’s employment; if worker were entitled to benefits at all, it would only be to apportioned benefits if worker has long history of mental and emotional disorders prior to termination. Smith & Sanders, Inc. v. Peery, 473 So. 2d 423, 1985 Miss. LEXIS 2159 (Miss. 1985).

A claimant who was suffering from psychophysiological muscle spasms following physical injuries to his back and leg sustained as a result of a vehicular collision which occurred in the course of his employment was entitled to receive temporary total disability benefits where the evidence showed that the accident triggered his disability. Phillips v. Skinner, 219 So. 2d 167, 1969 Miss. LEXIS 1420 (Miss. 1969).

Pain without organic cause that is no longer due to the effects of claimant’s back injury from which he has fully recovered is not due to the effects of the injury but is due to claimant’s disturbed mental state which arises from other unconnected factors and is not compensable. Merchants Co. v. Moore, 197 So. 2d 791, 1967 Miss. LEXIS 1536 (Miss. 1967).

A claimant asserting that a mental or nervous disease has resulted from an industrial accident must show the causal connection between the accident and the psychoneurosis by clear evidence, and where the evidence showed that the claimant truck driver had, as a consequence of a highway collision, suffered an emotional trauma which made it impossible thereafter to engage in that occupation, he was entitled to compensation benefits. Miller Transporters, Ltd. v. Reeves, 195 So. 2d 95, 1967 Miss. LEXIS 1440 (Miss. 1967).

That the claimant had what was described as an epileptic seizure while driving an automobile in the course of his employment, resulting in an accident in which he was injured, does not affect his right to compensation, for although the seizure was personal to him the injury arose from the risks of travel. Aetna Finance Co. v. Bourgoin, 252 Miss. 852, 174 So. 2d 495, 1965 Miss. LEXIS 1154 (Miss. 1965).

Where the claimant suffered from a depressive reaction brought about as the result of losing his job rather than as the result of an industrial accident he was not entitled to recover compensation, for the rule is that in order for a claim for compensation to be based on a mental or nervous disease an industrial accident must be established to bring it within the realm of probability, and causal connection with the accident must be proved by clear evidence. Powers v. Armstrong Tire & Rubber Co., 252 Miss. 717, 173 So. 2d 670, 1965 Miss. LEXIS 1142 (Miss. 1965).

Incapacity to work because of emotional disturbance not shown to be connected with employment is not compensable. Johnson v. Gulfport Laundry & Cleaning Co., 249 Miss. 11, 162 So. 2d 859, 1964 Miss. LEXIS 370 (Miss. 1964).

29. —Other disabilities.

The evidence was sufficient to support the Workers’ Compensation Commission’s finding that a claimant’s hypertension was work-related, thus obliging the claimant’s former employer to pay for medical expenses incurred by the claimant for periodic checkups for his hypertensive condition as ordered by his treating physician, where the claimant began to experience tension, anxiety and stomach problems, which the physician diagnosed as hypertension, during the time the claimant worked for the employer, and the physician concluded that the claimant’s job caused him to experience significant stress which aggravated his hypertensive condition so as to require him to take a medical leave of absence. Berry v. Universal Mfg. Co., 597 So. 2d 623, 1992 Miss. LEXIS 151 (Miss. 1992).

The evidence was sufficient to support a finding by the Workers’ Compensation Commission that noise at an employee’s work site was a contributing, precipitating, or aggravating factor in the production of Meniere’s Syndrome, even though the etiology of Meniere’s Syndrome is largely unknown, where there was substantial evidence that exposure to high intensity noise for a period of years at the work site contributed to, aggravated or accelerated the employee’s condition, and this evidence was not controverted by any direct medical evidence. Georgia-Pacific Corp. v. Gregory, 589 So. 2d 1250, 1991 Miss. LEXIS 763 (Miss. 1991).

Where it was shown that the claimant suffered from a mild case of asthma when he began working in 1963, but could ably perform his labor, that he complained of breathing difficulties in 1964, that in 1965 he was treated for emphysema, that he was hospitalized in 1968 for emphysema, and that in 1969, his condition had progressed to the stage where he was advised by doctors to quit his job, it was apparent that such dates would supply the necessary evidence for proving that claimant’s gradual injury occurred within a reasonably definite and not too remote period of time. Boyd v. State, 291 So. 2d 560, 1974 Miss. LEXIS 1729 (Miss. 1974).

The fact that a claimant’s chest pain began when she lifted a ten-pound sack of potatoes while working at a market, and medical testimony that the pain she experienced was consistent with a herniated thoracic disc, as indicated in X-ray reports, together constituted sufficient medical evidence of a causal connection between the claimant’s injury and her subsequent disability, despite other testimony suggesting that a rupture of the disc would not have occurred from the lifting of such a weight unless there was a pre-existing disease. Better Living Markets, Inc. v. Smith, 241 So. 2d 152, 1970 Miss. LEXIS 1325 (Miss. 1970).

In the absence of the establishment of a causal relationship between claimant’s fall from a ladder and an ulcerative colitis condition which subsequently developed, his claim for total and permanent disability was denied. Contract Trucking Co. v. May, 254 Miss. 925, 183 So. 2d 488, 1966 Miss. LEXIS 1588 (Miss. 1966).

Evidence held sufficient to warrant finding of causal relation between injury and death. Futorian-Stratford Furniture Co. v. Dependents of Oswalt, 249 Miss. 35, 162 So. 2d 645, 1964 Miss. LEXIS 373 (Miss. 1964).

Evidence of medical experts held to warrant commission in finding that inability of claimant to work was attributable solely to a condition not related to his injury. Bates v. Merchants Co., 249 Miss. 174, 161 So. 2d 652, 1964 Miss. LEXIS 384 (Miss. 1964).

Evidence held to show that knee disability was connected with injury to shin. Kennedy v. Williams-McWilliams Industries, Inc., 247 Miss. 595, 156 So. 2d 806, 1963 Miss. LEXIS 329 (Miss. 1963).

Evidence, including medical testimony, established that the fact that claimant’s body became wet with sodium hypochlorite solution had no causal connection in bringing about the cataract condition of his eyes. Sullivan v. C. & S. Poultry Co., 234 Miss. 126, 105 So. 2d 558, 1958 Miss. LEXIS 473 (Miss. 1958).

Evidence, including medical testimony, sustained findings that the paralysis suffered by claimant was the result of falling while performing his duties, rather than resulting from a brain hemorrhage wholly disconnected from his work. Nicholas Co. v. Dodson, 232 Miss. 569, 99 So. 2d 666, 1958 Miss. LEXIS 304 (Miss. 1958).

Where a claimant, who had received an injury in an accident arising out of and within the scope of his employment, did not lose as much as a week’s time from his work, and did not file for compensation benefits within two years of the date of injury, and there was only a mere possibility of a causal connection between the accident and claimant’s condition, a denial of compensation benefits was affirmed. Welborn v. Joe N. Miles & Sons Lumber Co., 231 Miss. 827, 97 So. 2d 734, 1957 Miss. LEXIS 568 (Miss. 1957).

Evidence sustained findings by the workmen’s compensation commission and lower court that the claimant’s congenital spondylolisthesis condition was not the result of claimant’s lifting heavy objects or performing manual labor for his employer. Thompson v. Armstrong Cork Co., 230 Miss. 730, 93 So. 2d 831, 1957 Miss. LEXIS 415 (Miss. 1957).

Evidence was sufficient to sustain the workmen’s compensation commission’s finding that claimant’s cataracts were either caused by the absorption of radiant energy and infra-red rays, or that the cataracts were aggravated by such absorption so as to accelerate the onset of his disability due to blindness. Ingalls Shipbuilding Corp. v. Dickerson, 230 Miss. 110, 92 So. 2d 354, 1957 Miss. LEXIS 350 (Miss. 1957).

Workmen’s compensation commission’s finding that there was no causal connection between claimant’s disability and an injury which occurred in the course of her employment was supported by substantial evidence, including medical testimony fairly demonstrating that neither the injury nor the operation was the probable cause of the disabling pain, and further showing that the probable cause thereof was a pre-existing disease. Malley v. Over The Top, Inc., 229 Miss. 347, 90 So. 2d 678, 1956 Miss. LEXIS 614 (Miss. 1956).

In a workman’s compensation proceeding where a referee made an erroneous statement that in his opinion an employee whom he awarded compensation for contact dermatitis caused by her work as dishwasher, was given a new kind of soap or washing powder to use, was not ground for reversal of an award, inasmuch as whether the soap which the claimant was required to use was a new kind of soap or not was immaterial. Christopher v. City Grill, 218 Miss. 638, 67 So. 2d 694, 1953 Miss. LEXIS 582 (Miss. 1953).

30. Pre-existing disease or infirmity.

Apportionment of recovery was not appropriate, where the ultimate cause of the decedent’s fatal heart attack remained unknown. Miss. Baptist Med. Ctr. v. Dependents of Mullett, 856 So. 2d 612, 2003 Miss. App. LEXIS 593 (Miss. Ct. App. 2003).

Evidence, though conflicting, was sufficient to support Workers’ Compensation Commission’s finding that claimant engulfed in ammonia gas at work suffered compensable injury, but Commission erred in finding that he suffered permanent and total disability, where evidence revealed that pre-existing condition, emphysema, contributed to lung ailment. Reichhold Chemical, Inc. v. Sprankle, 503 So. 2d 799, 1987 Miss. LEXIS 2363 (Miss. 1987).

A claimant who has once been adjudged totally and permanently disabled and who has received benefits therefor, but who thereafter resumes gainful employment and becomes injured while so engaged, is not precluded from receiving benefits for loss of wage earning capacity arising out of the later injury; however, a claimant may not pyramid benefits and receive in excess of the maximum weekly benefit provided by statute during any one period. Observa--Dome Laboratories, Inc. v. Ivy, 302 So. 2d 862, 1974 Miss. LEXIS 1433 (Miss. 1974).

Although claimant’s prior asthmatic condition may have played a part in his ultimate disability, it is well settled that where a claimant’s employment contributes to his condition, the injury is compensable. Boyd v. State, 291 So. 2d 560, 1974 Miss. LEXIS 1729 (Miss. 1974).

The burden is upon the employer to prove that there was a preexisting disease or lesion which was a contributing factor in causing the injury or death. Mississippi Research & Development Center v. Dependents of Shults, 287 So. 2d 273, 1973 Miss. LEXIS 1331 (Miss. 1973); Stuart Mfg. Co. v. Walker, 313 So. 2d 574, 1975 Miss. LEXIS 1676 (Miss. 1975).

The signing of an application for group insurance benefits, is a factor to be considered in determining whether an injury was work connected or arose out of a pre-existing condition, but it is not per se a bar to a claim under the Workmen’s Compensation Law where the facts are in dispute. Central Electric & Machinery Co. v. Shelton, 220 So. 2d 320, 1969 Miss. LEXIS 1454 (Miss. 1969).

A finding by the commission that a pre-existing condition of arthritis and bursitis was a material contributing factor in a claimant’s permanent partial disability of his right arm resulting as a consequence of a fall from a ladder was supported by ample evidence. Walters Bros. Builders v. Loomis, 187 So. 2d 586, 1966 Miss. LEXIS 1353 (Miss. 1966).

Where widow-claimant has asserted and proved as an integral and indispensable part of her claim that the employee’s death as a consequence of a ruptured vascular aneurysm aorta was, in part, the consequence of a pre-existing condition, it was not necessary that the employer-carrier plead or prove as an affirmative defense the existence of such pre-existing condition. Armstrong Tire & Rubber Co. v. Payton, 186 So. 2d 217, 1966 Miss. LEXIS 1298 (Miss. 1966).

31. —Aggravation, acceleration, or contribution to pre-existing condition.

Award of permanent total disability benefits to the employee for 450 weeks was proper in part because no medical evidence was presented that the employee’s heart problems were a material contributing factor to her permanent restrictions as to lifting, standing, or sitting. Adolphe Lafont USA, Inc. v. Ayers, 958 So. 2d 833, 2007 Miss. App. LEXIS 417 (Miss. Ct. App. 2007).

A finding by the Workers’ Compensation Commission that an employee’s pre-existing heart condition was aggravated by exposure to chemicals in the workplace rendering him totally and permanently disabled was not clearly erroneous where the employee was exposed to numerous amounts of volatile chemicals under poor ventilation conditions for a period of 29 years and the testimony before the Commission revealed that the chemicals would enter the lungs and bloodstream and could have had an adverse effect upon the employee’s heart. Mitchell Buick, Pontiac & Equipment Co. v. Cash, 592 So. 2d 978, 1991 Miss. LEXIS 980 (Miss. 1991).

The Workers’ Compensation Commission’s findings that a truck driver sustained a compensable injury and that the repeated trauma of his work aggravated a pre-existing non-work-related condition were supported by substantial evidence where the worker’s treating physician and the physician for the employer who conducted a physical examination required by the Department of Transportation had released the worker to return to work following treatment for a non-work-related back injury and the treating physician testified that the worker had a “chronically sore joint in the back that was apparently being aggravated by the nature of his work as a long-distance truck driver.” Miller Transporters, Inc. v. Guthrie, 554 So. 2d 917, 1989 Miss. LEXIS 495 (Miss. 1989).

Where medical testimony left no room for doubt that trauma resulting when a metal door slipped from the claimant’s hands and struck him on his jaw, aggravated the malignant condition of the claimant’s cancerous tumor involving a salivary gland, a proper claim for workmen’s compensation was established. Tiller v. Southern U. S. F., Inc., 246 So. 2d 530, 1971 Miss. LEXIS 1405 (Miss. 1971).

Where the claimant had a pre-existing condition of pyelitis and prostatitis and sustained an “on the job” aggravation and, after treatment, his condition reverted to the same as it was prior to the injury, though pre-aggravated, the employer and carrier were not responsible for any compensation or medical benefits. Miller Transporters, Ltd. v. Dean, 254 Miss. 1, 179 So. 2d 552, 1965 Miss. LEXIS 916 (Miss. 1965).

A claimant suffering from cystic emphysema who, as a consequence of inhaling plastic dust and chemical fumes in the course of his employment, suffered a spontaneous pneumothorax was entitled to receive temporary total disability payments for the period that his lung remained collapsed, for his condition had been aggravated by his employment. Presto Mfg. Co. v. Chandler, 252 Miss. 36, 172 So. 2d 431, 1965 Miss. LEXIS 1072 (Miss. 1965).

When a pre-existing disease or infirmity of workmen is aggravated by a work-connected injury, or if the second injury combines with a prior disease or infirmity and the combination produces disability, the resulting disability is compensable. Scott v. Brookhaven Well Service, 246 Miss. 456, 150 So. 2d 508, 1963 Miss. LEXIS 464 (Miss. 1963); M. T. Reed Constr. Co. v. Garrett, 249 Miss. 892, 164 So. 2d 476, 1964 Miss. LEXIS 444 (Miss. 1964).

Where the work of the employee aggravates a pre-existing disease or condition the resulting injury is compensable. I. B. S. Mfg. Co. v. Dependents of Cook, 241 Miss. 256, 130 So. 2d 557, 1961 Miss. LEXIS 341 (Miss. 1961).

Death during working hours from a cerebral hemorrhage is compensable where the activities and duties of the employment aggravated, accelerated, or combined with pre-existing disease to produce death. Mississippi Highway Patrol v. Dependents of Neal, 239 Miss. 505, 124 So. 2d 120, 125 So. 2d 544, 1960 Miss. LEXIS 315 (Miss. 1960).

When a pre-existing disease or infirmity of an employee is aggravated, lighted up or accelerated by a work-connected injury, or if the injury combines with the disease to produce disability, the resulting disability is compensable; but when the effect of the injury has subsided, subsequent disability attributable solely to the disease or infirmity is not compensable. Rathborne, Hair & Ridgeway Box Co. v. Green, 237 Miss. 588, 115 So. 2d 674, 1959 Miss. LEXIS 508 (Miss. 1959).

Work need not be sole cause of injury, which is compensable if it aggravated, accelerated or combined with a disease or infirmity to produce disability or death. Insurance Dep't of Mississippi v. Dinsmore, 233 Miss. 569, 104 So. 2d 296, 1958 Miss. LEXIS 420 (Miss. 1958); Central Electric Power Asso. v. Hicks, 236 Miss. 378, 110 So. 2d 351, 112 So. 2d 230, 1959 Miss. LEXIS 330 (Miss. 1959); Shivers v. Biloxi-Gulfport Daily Herald, 236 Miss. 303, 110 So. 2d 359, 1959 Miss. LEXIS 320 (Miss. 1959).

A pre-existing disease or infirmity of an employee does not disqualify a claim if the employment aggravated, accelerated or combined with the disease or infirmity to produce a death or disability for which compensation is sought, and it is not necessary to show that the exertion which concurred in precipitating the harm was in itself unusual or beyond the routine of the employment, provided that relation is shown. Lewis v. Trackside Gasoline Station & Pacific Indem. Co., 233 Miss. 663, 103 So. 2d 868, 1958 Miss. LEXIS 429 (Miss. 1958).

Where it was manifest from a composite reading of the medical testimony, together with the fact of the employee’s recent heart attack and the employment exertions of the deceased as a log scaler, that the deceased’s employment and work on the day of his death, when he had scaled three truckloads of logs, aggravated, precipitated and contributed to his death, compensation was awarded. Poole v. R. F. Learned & Son, 234 Miss. 362, 103 So. 2d 396, 1958 Miss. LEXIS 503 (Miss.), modified, Poole v. R. F. Learned & Sons, 234 Miss. 362, 105 So. 2d 162, 1958 Miss. LEXIS 504 (Miss. 1958).

Where there was medical evidence showing that mental and emotional strain of state employee’s duties, which were both clerical and executive, aggravated the employee’s pre-existing hypertension and that such aggravation was a factor contributing to the employee’s disability, the disability was compensable. Insurance Dep't of Mississippi v. Dinsmore, 233 Miss. 569, 104 So. 2d 296, 1958 Miss. LEXIS 420 (Miss. 1958).

If the work of the deceased either aggravates a pre-existing condition or precipitates a heart attack, the claim is compensable. Pennington v. Smith, 232 Miss. 775, 100 So. 2d 569, 1958 Miss. LEXIS 328 (Miss. 1958).

Where it is shown that an employee has died from a heart attack, in order to make out a prima facie case for compensation, the claimants must show, in addition to the heart ailment, that the work aggravated, accelerated or precipitated the heart attack, and that the two conditions together caused the death of the deceased. Rushing v. Water Valley Coca Cola Bottling Co., 232 Miss. 338, 98 So. 2d 870, 1957 Miss. LEXIS 481 (Miss. 1957).

Where it was shown that claimant’s condition, following an operation for a pre-existing disease, was aggravated by the strain caused by her industrial employment, and that as a result she was unable to do the work which she formerly did, claimant was entitled to recover for permanent partial disability. King v. Westinghouse Electric Corp., 229 Miss. 830, 92 So. 2d 209, 1957 Miss. LEXIS 584 (Miss. 1957).

While generally a pre-existing disease or infirmity does not disqualify a claim under the “arising out of employment” requirements of the Workmen’s Compensation Law, if the employment aggravated, accelerated, or combined with the disease or infirmity to produce the death or disability for which compensation is sought, in hernia cases effect must be given to Code 1942, § 6998-12. Fagan v. Wells-Lamont, Inc., 228 Miss. 660, 89 So. 2d 632, 1956 Miss. LEXIS 560 (Miss. 1956).

Medical testimony, as well as other enumerated circumstances, constituted substantial evidence that the trauma to the deceased employee’s back, caused by an injury arising in the course of his employment, lighted up, aggravated, accelerated or combined with a pre-existing cancerous condition to produce his death. Dixie Pine Products Co. v. Dependents of Bryant, 228 Miss. 595, 89 So. 2d 589, 1956 Miss. LEXIS 551 (Miss. 1956).

Where a pre-existing disease or infirmity is aggravated, accelerated, or contributed to and precipitated by the work in which the employee is engaged, the claim is compensable under the Workmen’s Compensation Law upon the theory that in such event the injury or death occurred during the course of, or arising out of, the employment. Southern Engineering & Electric Co. v. Chester, 226 Miss. 136, 83 So. 2d 811, 1955 Miss. LEXIS 617 (Miss. 1955).

As bearing on the question whether pre-existing heart disease causing death was aggravated by employee’s work or emotional strain involved in painting, failure of referee to permit proof of medical or family history of the employee as it related to heart disease was not error where claimant failed to dictate for record particular facts which would enable court on appeal to determine whether such facts would have a bearing on the question at issue. Dillon v. Gasoline Plant Constr. Corp., 222 Miss. 10, 75 So. 2d 80, 1954 Miss. LEXIS 610 (Miss. 1954).

A pre-existing disease or infirmity of the employee does not disqualify a claim under the “arising out of employment” requirement if the employment aggravated, accelerated, or combined with the disease or infirmity to produce the death or disability for which compensation is sought. East v. Pigford Bros. Constr. Co., 219 Miss. 121, 68 So. 2d 294, 70 So. 2d 880 (1953); Tate v. Dr. Pepper Bottling Co., 220 Miss. 311, 70 So. 2d 602, 1954 Miss. LEXIS 442 (Miss. 1954); Dixie Pine Products Co. v. Dependents of Bryant, 228 Miss. 595, 89 So. 2d 589, 1956 Miss. LEXIS 551 (Miss. 1956); King v. Westinghouse Elec. Corp., 229 Miss. 830, 92 So. 2d 209, 93 So. 2d 183 (1957).

In compensation case involving injury to operator of electric chisel in shipbuilding process, where partial paralysis resulted when pre-existing malformation of blood vessels in back was aggravated by pressure of back against metal bar, augmented by recoil of automatic chisel, the injury was accidental within the contemplation of the Workmen's Compensation Law. Ingalls Shipbuilding Corp. v. Byrd, 215 Miss. 234, 60 So. 2d 645, 1952 Miss. LEXIS 558 (Miss. 1952).

32. —As bar to compensation.

Evidence that a workman’s death occurred several hundred miles from his place of employment and 19 months after a back injury sustained by him in the course of his employment, and testimony of an expert witness that the workman did not die as a result of a heart condition, sustained a finding of the commission that the back injury with its resulting surgery did not aggravate, accelerate, or contribute to the pre-existing heart condition which brought about the workman’s death. Southern Brick & Tile Co. v. Clark, 247 So. 2d 692, 1971 Miss. LEXIS 1443 (Miss. 1971).

Plaintiff who had a pre-existing ruptured disk and suffered injury in his lower back while driving a truck for his employer and the injury resulted when he coughed or sneezed, he was not entitled to compensation, for the cough or sneeze which caused the injury was completely unrelated to his employment and the accident, therefore, did not arise out of his employment. Malone & Hyde of Tupelo, Inc. v. Hall, 183 So. 2d 626, 1966 Miss. LEXIS 1429 (Miss. 1966).

Where the evidence revealed that the claimant’s pre-existing atherosclerosis was the predisposing cause of his massive cerebral hemorrhage, and that if it had been a result of his exertion on the job the stroke would have occurred almost immediately rather than some 12 hours later as it did, compensation was properly denied. Ingalls Shipbuilding Corp. v. McNeal, 251 Miss. 573, 170 So. 2d 562, 1965 Miss. LEXIS 884 (Miss. 1965).

In view of Code 1942, § 6998-12, claimant’s failure to prove that there had been no descent or protrusion of her incisional hernia prior to the accident for which compensation was claimed barred recovery benefits for the aggravation of a pre-existing hernia. Fagan v. Wells-Lamont, Inc., 228 Miss. 660, 89 So. 2d 632, 1956 Miss. LEXIS 560 (Miss. 1956).

33. —Not bar to compensation.

A claimant, who, in seeking employment failed to divulge that she had suffered a back injury in 1969 resulting in disc surgery, was not estopped from receiving benefits for a 1977 back injury, in absence of evidence showing a causal relationship of the 1969 injury to the 1977 injury. Emerson Electric Co. v. McLarty, 487 So. 2d 228, 1986 Miss. LEXIS 2442 (Miss. 1986).

That a claimant, suffering from contact dermatitis, worked for his employer under three successive workmen’s compensation insurers and gradually became worse over the years did not entitle the third insurer to contribution on the ground of a pre-existing condition. Thyer Mfg. Co. v. Mooney, 252 Miss. 629, 173 So. 2d 652, 1965 Miss. LEXIS 1134 (Miss. 1965).

Compensation held properly allowed for permanent partial disability resulting from the lighting up of a prior latent condition by an accidental injury. Rigdon v. General Box Co., 249 Miss. 239, 162 So. 2d 863, 1964 Miss. LEXIS 390 (Miss. 1964).

Compensation was awarded for death of a porter at a motel, where there was evidence that his condition was aggravated by his employment. El Patio Motor Court, Inc. v. Dependents of Long, 242 Miss. 294, 134 So. 2d 437, 1961 Miss. LEXIS 558 (Miss. 1961), limited, Leake County Cooperative v. Dependents of Barrett, 226 So. 2d 608, 1969 Miss. LEXIS 1306, 1969 Miss. LEXIS 1307 (Miss. 1969).

Compensation should have been awarded for the death of a member of an electric power company’s maintenance crew, who had hypertensive cardiovascular disease and who, after a day’s work of heavy physical labor during which he experienced pains in the cardiac region, went directly to his physician’s office and within an hour died of a heart attack. Central Electric Power Asso. v. Hicks, 236 Miss. 378, 110 So. 2d 351, 112 So. 2d 230, 1959 Miss. LEXIS 330 (Miss. 1959).

Where, as a result of strain of carpenter’s helper in cranking motor as an incident of his work, there was a protrusion of pre-existing hemorrhoids, this was an accidental injury for which compensation was payable notwithstanding the fact that the pre-existing infirmity of the employee combined with the strain of employment brought about the disabling condition. East v. Pigford Bros. Constr. Co., 219 Miss. 121, 68 So. 2d 294, 70 So. 2d 880 (1953).

Where a claimant had a pre-existing and apparently cogenital pilonidal cyst in the lower part of backbone, and this was brought to light and aggravated by constant riding which the claimant was required to do in carrying out his duties as a route salesman, the injury was compensable. Tate v. Dr. Pepper Bottling Co., 220 Miss. 311, 70 So. 2d 602, 1954 Miss. LEXIS 442 (Miss. 1954).

34. —Apportionment.

Apportionment of recovery was not appropriate, where the ultimate cause of the decedent’s fatal heart attack remained unknown. Miss. Baptist Med. Ctr. v. Dependents of Mullett, 856 So. 2d 612, 2003 Miss. App. LEXIS 593 (Miss. Ct. App. 2003).

In a case involving an employer’s bad faith failure to pay worker’s compensation benefits, it was harmless error to allow an employee to cross-examine a witness about the apportionment statute, Miss. Code Ann. §71-3-7(b), where the witness did not have the authority to determine when a claimant had reached maximum medical recovery. Miss. Power & Light Co. v. Cook, 832 So. 2d 474, 2002 Miss. LEXIS 399 (Miss. 2002).

Mental injury of worker unaccompanied by physical trauma is not directly linked to untoward event, unusual occurrence, accident or injury incident to employment, as required for worker to be entitled to worker’s compensation benefits, where worker claims that mental injury results from termination of worker due to business conditions eliminating need for worker’s employment; if worker were entitled to benefits at all, it would only be to apportioned benefits if worker has long history of mental and emotional disorders prior to termination. Smith & Sanders, Inc. v. Peery, 473 So. 2d 423, 1985 Miss. LEXIS 2159 (Miss. 1985).

The minimum payment of $25 per week provided in §71-3-13 may not be reduced by the apportionment provided in §71-3-7 except in partial dependency cases. Thus, a partially disabled employee was entitled to weekly payments of $25 rather than $12.50, even though her permanent partial disability was due 50 percent to her work-related injury and 50 percent to a preexisting condition. Cross Mfg., Inc. v. Lowery, 394 So. 2d 887, 1981 Miss. LEXIS 1940 (Miss. 1981).

The issue of whether this section was applicable to a claimant who injured his back in the course of his employment as an insurance adjuster, but who had also suffered from serious lower back problems in the past, could not be resolved where there had not yet been a determination as to the date of claimant’s maximum medical recovery. Azwell v. Franklin Associates, 374 So. 2d 766 (Miss. 1979).

Where there is some evidence to support it, apportionment is mandatory, regardless of whether or not it was pled. Boyd v. State, 291 So. 2d 560, 1974 Miss. LEXIS 1729 (Miss. 1974).

It is not necessary that a pre-existing infirmity produce industrial disability prior to an aggravating or supplemental injury, or that it be such as normally would result in disability in time because of the normal progress of the disease, nor is it necessary that the prior infirmity itself have been directly aggravated; the test of the applicability of the apportionment statute is whether the prior infirmity contributed to the employee’s disability. International Paper Co. v. Tiffee, 246 So. 2d 535, 1971 Miss. LEXIS 1411 (Miss. 1971).

Normal degenerative actions accompanying age cannot be classed as “disease” within the meaning of the apportionment provisions of the Workmen's Compensation Law. Weaver Pants Co. v. Duncan, 231 So. 2d 489, 1970 Miss. LEXIS 1590 (Miss. 1970).

In an action on a claim for workmen’s compensation benefits, evidence that the claimant, while at work, slipped and sustained pain to his back, which necessitated his taking some days from work, and that upon his return, he again hurt his back picking up a heavy object, sustained the commission’s findings that a bulge or herniated disc and a resultant disability arose out of and in the course of the claimant’s employment, notwithstanding other evidence that the claimant prior to these injuries was found to have a degree of degenerative arthritis of some duration, and medical testimony suggesting that at least part of the disability was attributable to the pre-existing degenerative condition. Central Electric & Machinery Co. v. Shelton, 220 So. 2d 320, 1969 Miss. LEXIS 1454 (Miss. 1969).

The 1968 amendment incorporated in this section [Code 1942, § 6998-04] the limitations on apportionment established in Cockrell Banana Co. v. Harris (Miss. 1968) 212 So. 2d 581. Delta Millwork, Inc. v. Terry, 216 So. 2d 542, 1968 Miss. LEXIS 1244 (Miss. 1968).

Apportionment of death benefits should begin from the date of the employee’s death, applicable to both weekly and maximum compensation. Mississippi Stationery Co. v. Segal, 214 So. 2d 820, 1968 Miss. LEXIS 1335 (Miss. 1968).

Apportionment of a disability claim should be applied to weekly and maximum benefits when the claimant has reached maximum medical recovery. Mississippi Stationery Co. v. Segal, 214 So. 2d 820, 1968 Miss. LEXIS 1335 (Miss. 1968).

To give the apportionment statute the meaning intended by the legislature, maximum benefits, as well as weekly, are to be subjected to apportionment. Cockrell Banana Co. v. Harris, 212 So. 2d 581, 1968 Miss. LEXIS 1290 (Miss. 1968).

Apportionment of disability payments should start as of the time the claimant has reached maximum medical recovery. Cockrell Banana Co. v. Harris, 212 So. 2d 581, 1968 Miss. LEXIS 1290 (Miss. 1968).

The date of maximum recovery and the determination of apportionment are questions to be decided by the attorney-referee, subject to review by the full commission; and these are not matters to be determined by the employer or carrier. Cockrell Banana Co. v. Harris, 212 So. 2d 581, 1968 Miss. LEXIS 1290 (Miss. 1968).

After the date the employee reaches maximum medical recovery, weekly compensation benefits in the language of the statute shall be reduced by that proportion which the pre-existing physical handicap, disease, or lesion contributes to the results following injury. Cockrell Banana Co. v. Harris, 212 So. 2d 581, 1968 Miss. LEXIS 1290 (Miss. 1968).

Apportionment of the maximum death benefit is implicit in apportionment of weekly benefits. B. & D. Theatres, Inc. v. Davis, 190 So. 2d 845, 1966 Miss. LEXIS 1400 (Miss. 1966), overruled, Cockrell Banana Co. v. Harris, 212 So. 2d 581, 1968 Miss. LEXIS 1290 (Miss. 1968).

The percentage of contribution of a prior condition to an injury is not ordinarily susceptible of exact proof, and the estimate of the commission that a motion picture projectionist, who suffered a coronary occlusion on the job and died of the resulting myocardial infarction, had a pre-existing atherosclerosis constituting a 25 percent contribution to the condition which caused his death will not be overturned on appeal in the absence of evidence reflecting that the commission abused its discretion. B. & D. Theatres, Inc. v. Davis, 190 So. 2d 845, 1966 Miss. LEXIS 1400 (Miss. 1966), overruled, Cockrell Banana Co. v. Harris, 212 So. 2d 581, 1968 Miss. LEXIS 1290 (Miss. 1968).

When the effect of a claimant’s work-connected injury has subsided, and the injury no longer combines with a pre-existing disease or infirmity to produce disability, any subsequent disability attributable solely to the pre-existing disease or infirmity is not compensable. Lee v. Lumberton Mfg. Co., 198 So. 2d 823, 1967 Miss. LEXIS 1279 (Miss. 1967); M. T. Reed Constr. Co. v. Garrett, 249 Miss. 892, 164 So. 2d 476, 1964 Miss. LEXIS 444 (Miss. 1964).

Generally it is necessary for the employer to plead and prove the existence of a pre-existing disease or infirmity in order to be able to claim the benefits of an apportionment. Mississippi Tank Co. v. Dependents of Walker, 187 So. 2d 590, 1966 Miss. LEXIS 1354 (Miss. 1966).

The burden of proof is upon the employer to prove by a preponderance of the evidence all of the factors required by the apportionment statute, and these factors are the existence of a pre-existing handicap, disease or lesion, which is a material contributing factor to the results following injury, and these factors must be shown by medical findings. Bill Williams Feed Service v. Mangum, 183 So. 2d 917, 1966 Miss. LEXIS 1453 (Miss. 1966).

The basic purpose of the apportionment provision is to encourage employers to employ handicapped persons with pre-existing disease or lesion, whom a prospective employer would be reluctant to employ in the absence of the apportionment provision. Thyer Mfg. Co. v. Mooney, 252 Miss. 629, 173 So. 2d 652, 1965 Miss. LEXIS 1134 (Miss. 1965).

The reduction in compensation benefits due to the results following injury by a pre-existing handicap, disease or lesion, refers to benefits which the insured employee will not receive at all, not to benefits which will be paid by someone else. Thyer Mfg. Co. v. Mooney, 252 Miss. 629, 173 So. 2d 652, 1965 Miss. LEXIS 1134 (Miss. 1965).

Compensation is required to be reduced by the proportion which a pre-existing physical handicap, disease or lesion contributes to the production of the results following the injury. Dillingham Mfg. Co. v. Upton, 252 Miss. 281, 172 So. 2d 766, 1965 Miss. LEXIS 1100 (Miss. 1965), overruled, Cockrell Banana Co. v. Harris, 212 So. 2d 581, 1968 Miss. LEXIS 1290 (Miss. 1968), but see Cockrell Banana Co. v. Harris, 212 So. 2d 581, 1968 Miss. LEXIS 1290 (Miss. 1968).

Apportionment on account of a pre-existing injury cannot be made where without basis in pleading and proof. Mississippi Federated Cooperatives v. Roberts, 248 Miss. 732, 160 So. 2d 922, 1964 Miss. LEXIS 298 (Miss. 1964).

Before an award may be reduced by reason of a pre-existing physical condition, it must be shown by medical findings not only that there was a pre-existing handicap, disease or lesion but also that such condition contributed to the results following the injury. L. B. Priester & Son, Inc. v. Dependents of Bynum, 247 Miss. 664, 157 So. 2d 399, 1963 Miss. LEXIS 340 (Miss. 1963).

Employer has burden of showing that disability is in part due to pre-existing physical condition. I. Taitel & Son v. Twiner, 247 Miss. 785, 157 So. 2d 44, 1963 Miss. LEXIS 356 (Miss. 1963).

The commission’s conclusion as to the degree to which pre-existing disease contributed to the injury will not be set aside by the courts unless not supported by substantial evidence or manifestly wrong. Southeastern Constr. Co. v. Dependent of Dodson, 247 Miss. 1, 153 So. 2d 276, 1963 Miss. LEXIS 277 (Miss. 1963).

The extent to which a demonstrated physical condition contributed to an employee’s death is in the sound discretion of the workmen’s compensation commission. Southeastern Constr. Co. v. Dependent of Dodson, 247 Miss. 1, 153 So. 2d 276, 1963 Miss. LEXIS 277 (Miss. 1963).

The provision for a proportionate reduction of compensation for disability to which a pre-existing condition has contributed should be construed in a fair manner, equitably and justly. Cuevas v. Sutter Well Works, 245 Miss. 478, 150 So. 2d 524, 1963 Miss. LEXIS 529 (Miss. 1963).

A reduction of compensation under this section [Code 1942, § 6998-04] must be supported by substantial evidence. Cuevas v. Sutter Well Works, 245 Miss. 478, 150 So. 2d 524, 1963 Miss. LEXIS 529 (Miss. 1963).

Under this provision the burden is on the employer and his insurer to establish by a preponderance of evidence a pre-existing condition shown by medical findings to be a material contributing factor in the results following injury, and the proportion of such contribution. Cuevas v. Sutter Well Works, 245 Miss. 478, 150 So. 2d 524, 1963 Miss. LEXIS 529 (Miss. 1963).

35. — —Required.

Mississippi Workers’ Compensation Commission did not err when it apportioned an employee’s right extremity award, under Miss. Code Ann. §71-3-7, because the employee’s prior injuries prevented her from working in her previous capacity, the employee did not have a latent prior condition, the employee had prior injuries for which she was compensated, and the Commission could have found that those prior injuries were a material contributing factor to her subsequent injuries. Johnson Elec. Auto., Inc. v. Colebrook, 995 So. 2d 791, 2008 Miss. App. LEXIS 287 (Miss. Ct. App.), cert. denied, 999 So. 2d 374, 2008 Miss. LEXIS 664 (Miss. 2008).

The Workers’ Compensation Commission properly apportioned an employee’s disabilities between 2 injuries where there was no evidence of a causal connection between the 2 injuries. Cawthon v. Alcan Aluminum Corp., 599 So. 2d 925, 1991 Miss. LEXIS 713 (Miss. 1991).

Apportionment of an award of compensation based on the claimant’s pre-existing heart condition was proper, even though his pre-existing heart condition caused no pre-injury occupational disability, since the heart attack which left the plaintiff permanently and totally disabled was materially contributed to by his pre-existing obstructive pulmonary disease and his hypertension. Mitchell Buick, Pontiac & Equipment Co. v. Cash, 592 So. 2d 978, 1991 Miss. LEXIS 980 (Miss. 1991).

The Workers’ Compensation Commission’s apportionment of an award of death benefits by 2/3 on the basis of pre-existing health conditions was supported by substantial evidence where the worker, who died of a heart attack arising out of and in the course of his employment, had smoked 3 packs of cigarettes daily since his teenage years and consumed approximately “1/2 bottle of alcohol” daily for an unspecified number of years, and his family had a history of heart-related problems. Hardin's Bakeries v. Harrell, 566 So. 2d 1261, 1990 Miss. LEXIS 540 (Miss. 1990).

In work-connected injury cases where the evidence establishes (a) successive injuries experienced by the employee where following the first injury the employee engages in full-time employment for a substantial period of time prior to the second injury; or (b) a preexisting (symptomatic or asymptomatic) condition which causes the employee to experience no pre-injury occupational disability, apportionment may not be ordered. On the other hand, in cases where (a) there is evidence of a medically cognizable, identifiable, symptomatic condition which antedated the injury; and (b) the employee experienced some absence of normal (for him or her) wage earning capacity, then apportionment must be ordered. Stuart's, Inc. v. Brown, 543 So. 2d 649, 1989 Miss. LEXIS 220 (Miss. 1989).

Apportionment was proper where claimant’s pre-existing infirmity of spondylolisthesis was supported by medical findings. General Electric Co. v. McKinnon, 507 So. 2d 363, 1987 Miss. LEXIS 2504 (Miss. 1987).

Apportionment was required where deceased worker’s pre-existing epileptic condition was a factor contributing to his death. Chapman, Dependents of v. Hanson Scale Co., 495 So. 2d 1357, 1986 Miss. LEXIS 2710 (Miss. 1986).

Apportionment should have been ordered under record containing medical evidence that deceased employee had a preexisting heart condition and overwhelming evidence that this preexisting condition was a factor contributing to the employee’s death. Road Maintenance Supply, Inc. v. Dependents of Maxwell, 493 So. 2d 318, 1986 Miss. LEXIS 2537 (Miss. 1986).

Apportionment was required where, prior to the work related injury, claimant had experienced 4 hernias which contributed to his permanent, total disability. Delta Drilling Co. v. Cannette, 489 So. 2d 1378, 1986 Miss. LEXIS 2472 (Miss. 1986).

Where it was undisputed that deceased had a history of hypertensive vascular disease dating from about 1962, apportionment of benefits should be ordered. Alexander v. Campbell Constr. Co., 288 So. 2d 4, 1974 Miss. LEXIS 1834 (Miss. 1974).

Where employee died of a job-related heart attack, but a post-mortem examination revealed signs of coronary atherosclerosis which played a part in his death, a reduction of the award by apportionment was required. Mississippi Research & Development Center v. Dependents of Shults, 287 So. 2d 273, 1973 Miss. LEXIS 1331 (Miss. 1973).

Where a claimant had no functional disability before he sustained a transient myocardial ischemia while carrying a water pump and hose weighing about 300 pounds with another worker in the course of his employment, but was permanently disabled, as a result of that injury, from performing the type of work in which he had engaged before the injury, the testimony of the examining physician that the claimant had some degree of pre-existing arteriosclerosis was insufficient to substantiate the commission’s finding that the claimant’s disability was entirely due to his pre-existing arteriosclerosis, and the claimant was entitled to permanent disability benefits apportioned in accordance with the degree to which his pre-existing infirmity contributed to his disability. Youngblood v. Ralph M. Parsons Co., 260 So. 2d 188, 1972 Miss. LEXIS 1552 (Miss. 1972).

Where a claimant, who suffered a head injury in the course of his employment, which resulted in disabling epileptic seizures, had previously suffered from other conditions including a chronic urinary tract infection and a chronic peptic ulcer, apportionment was required, aside from any aggravation of the convulsions by the infection, where the prior conditions actively contributed to the claimant’s disability before the injury, causing many absences from work, and continued to operate as a source of disability after the accident. International Paper Co. v. Tiffee, 246 So. 2d 535, 1971 Miss. LEXIS 1411 (Miss. 1971).

Where the claimants’ decedent had suffered a major heart attack six months before his final and fatal heart attack which was found to have been precipitated by his job activities, there was sufficient evidence in the record to support a finding that a pre-existing condition contributed to the death, and to require apportionment if benefits were awarded, even though the defendants, who pleaded a pre-existing disease and requested apportionment, offered no proof on this issue. Futorian Mfg. Co. v. Dependents of Easley, 244 So. 2d 413, 1971 Miss. LEXIS 1335 (Miss. 1971).

Where a claimant’s physician testified on cross-examination that the lifting of a ten-pound sack of potatoes was insufficient to cause a herniated thoracic disc unless there was a pre-existing disease which had weakened the spine, and where an x-ray report of the claimant’s spine indicated that there was a degenerative disease of the lower spine, the cause was to be remanded to the commission for a determination as to the duration of temporary disability and the remaining permanent disability with compensation properly apportioned. Better Living Markets, Inc. v. Smith, 241 So. 2d 152, 1970 Miss. LEXIS 1325 (Miss. 1970).

Where claimant’s first injury contributed to or was responsible for two-thirds of the end result of her second injury, employer’s compensation carrier at time of occurrence of second injury was liable for only one third of weekly benefit award after apportionment. Arender v. National Sales, Inc., 193 So. 2d 579, 1966 Miss. LEXIS 1289, 1967 Miss. LEXIS 1552 (Miss. 1966).

Where, following a traverse fracture of the upper one third of the right femur received in the course of his employment, claimant’s leg was amputated, and the evidence established that the amputation was necessitated in part by claimant’s pre-existing osteomyelitis, apportionment of his compensation award was proper. Communications Equipment Co. v. Burke, 186 So. 2d 765, 1966 Miss. LEXIS 1330 (Miss. 1966).

Where there is competent evidence properly before the commission in the form of medical findings of a pre-existing physical handicap, disease or lesion, and proof is undisputed that this was a material contributing factor in the results, it is mandatory under this section [Code 1942, § 6998-04] that the compensation be reduced. Armstrong Tire & Rubber Co. v. Payton, 186 So. 2d 217, 1966 Miss. LEXIS 1298 (Miss. 1966).

Evidence held sufficient to warrant commission in apportioning 25% of death benefit to a pre-existing heart disease, though medical witnesses could not fix exact amount attributable to disease. Southeastern Constr. Co. v. Dependent of Dodson, 247 Miss. 1, 153 So. 2d 276, 1963 Miss. LEXIS 277 (Miss. 1963).

Reduction of amount awardable to widow for death of husband largely attributable to a pre-existing condition, sustained. Federal Compress & Warehouse Co. v. Dependent of Clark, 246 Miss. 868, 152 So. 2d 921, 1963 Miss. LEXIS 515 (Miss. 1963).

36. — — Not required.

Mississippi Workers’ Compensation Commission’s decision not to apportion disability benefits as a result of a claimant’s preexisting conditions was based on substantial evidence. There was nothing in the record to show that the claimant’s diabetes hindered the claimant from performing the claimant’s job duties as a deputy sheriff, and there was very little evidence describing the claimant’s heart condition, and no mention of how, if at all, it affected the claimant’s ability to perform the claimant’s job duties. Leflore County Bd. of Supervisors v. Golden, 169 So.3d 882, 2014 Miss. App. LEXIS 86 (Miss. Ct. App. 2014).

No proof existed showing that the employee’s pre-existing high blood pressure or his enlarged heart caused him any loss of wage earning capacity prior to the date of a syncope episode, and until that time he was able to perform the functions of his employment without limitation; under these circumstances, apportionment of the employee’s benefits was inappropriate. Hinds County Bd. of Supervisors v. Johnson, 977 So. 2d 1193, 2007 Miss. App. LEXIS 578 (Miss. Ct. App. 2007), cert. denied, 977 So. 2d 1144, 2008 Miss. LEXIS 133 (Miss. 2008).

While two physicians did state that claimant’s knee injuries sustained at work were exacerbated and perpetuated by claimant’s morbid obesity, and while only preexisting occupational disabilities generated a duty to apportion, in claimant’s case, neither party raised the issue of apportionment, nor was there any evidence presented to prove that claimant had a preexisting disability that caused claimant to be occupationally disabled prior to claimant’s injury at work; thus, the commission’s ruling that claimant had failed to prove that claimant was entitled to permanent disability benefits beyond the 3 percent impairment ratings assigned to each knee was not clearly erroneous or contrary to the overwhelming weight of the evidence. McMillian v. Delphi Packard Elec. Sys., 921 So. 2d 345, 2004 Miss. App. LEXIS 211 (Miss. Ct. App. 2004), cert. denied, 926 So. 2d 922, 2006 Miss. LEXIS 162 (Miss. 2006).

Substantial evidence supported an award of permanent partial disability benefits to a claimant resulting from the industrial loss of use of the claimant’s upper extremities due to a work-related injury while employed by the employer; the claimant suffered no prior occupational disability that would have required apportionment of the award. Peco Foods of Miss., Inc. v. Keyes, 820 So. 2d 775, 2002 Miss. App. LEXIS 373 (Miss. Ct. App. 2002).

Apportionment was not required in a heart injury case involving a firefighter who worked for a city for over 20 years, but who became unable to work or procure any employment that would not put his life in danger; although the claimant may have been at risk because of family history for pre-existing medical infirmities, those difficulties were not occupational disabilities, and the stress of his job ignited what had been a dormant condition. City of Laurel v. Blackledge, 1999 Miss. App. LEXIS 333 (Miss. Ct. App. June 22, 1999), op. withdrawn, sub. op., 755 So. 2d 573, 2000 Miss. App. LEXIS 88 (Miss. Ct. App. 2000).

Apportionment is not proper based on evidence that factors other than those related to the job activity immediately in question contributed to the disabling condition where there is no showing of previous occupational disability. Delta CMI v. Speck, 586 So. 2d 768, 1991 Miss. LEXIS 584 (Miss. 1991).

There is no basis upon which to award apportionment where cause of employee’s death remained unknown, despite testimony regarding possibility employee had suffered attack of acute malignant arrhythmia. U.S. Rubber Reclaiming Co. v. Dependents of Stampley, 508 So. 2d 673, 1987 Miss. LEXIS 2599 (Miss. 1987).

Apportionment was not required upon a showing that up to the time of injury, employee, who had a pre-existing spondylosis, was gainfully employed, and was experiencing no occupational disability as a result of his pre-existing condition. Marshall Durbin, Inc. v. Hall, 490 So. 2d 877, 1986 Miss. LEXIS 2493 (Miss. 1986).

Compensation is not apportionable until the date of maximum medical recovery, regardless of whether an injury is permanent and total or of lower quality and character; thus, a 10% penalty was correctly applied to the unapportioned amounts payable prior to the date of maximum medical recovery. M. D. Hayles Lumber, Inc. v. Hamilton, 366 So. 2d 1075, 1978 Miss. LEXIS 2440 (Miss. 1978).

Where the nature of the alleged preexisting disease was more closely akin to the normal degenerative conditions of the body which accompany age rather than a material contributing factor to the claimant’s condition following injury, the employer was not entitled to apportionment. Huffman v. State, 324 So. 2d 759, 1976 Miss. LEXIS 1973 (Miss. 1976).

The record of a prior adjudication of total and permanent disability of a claimant by the workmen’s compensation commission is not sufficient evidence, standing alone, upon which benefits for a subsequent injury may be apportioned and reduced; it was incumbent upon the employer-carrier to not only prove by a preponderance of the evidence that the claimant continued to have his preexisting physical handicap or disease, but additionally, the burden was upon them to prove by medical findings that such preexisting physical handicap or disease was a material contributing factor to his disability following the subsequent injury. Observa--Dome Laboratories, Inc. v. Ivy, 302 So. 2d 862, 1974 Miss. LEXIS 1433 (Miss. 1974).

Where the fifth lumbar disc was normal and sound, having only the amount of degeneration usual to one of the employee’s age, the commission properly found that the employee had no pre-existing condition requiring apportionment. Weaver Pants Co. v. Duncan, 231 So. 2d 489, 1970 Miss. LEXIS 1590 (Miss. 1970).

Where the principal physical characteristic of the claimant prior to suffering a back injury on the job was obesity, apportionment of his claim was improperly allowed. Empire Home Builders v. Guthrie, 187 So. 2d 17, 1966 Miss. LEXIS 1336 (Miss. 1966).

In the absence of substantial evidence on the part of the employer and insurer that the claimant’s pre-existing pulmonary emphysema was a contributing factor to his disability resulting from asthmatic attacks occasioned by exposure in the course of his employment to certain quick-drying enamel used in painting automobiles, it was proper that no apportionment of benefits was made. Crump v. Fields, 251 Miss. 864, 171 So. 2d 857, 1965 Miss. LEXIS 912 (Miss. 1965).

Evidence held insufficient to support a proportionate reduction of compensation. Cuevas v. Sutter Well Works, 245 Miss. 478, 150 So. 2d 524, 1963 Miss. LEXIS 529 (Miss. 1963).

37. Deviation from employment or duties.

Worker made a voluntary decision to leave his area of employment and climb 25 feet up a tree, where he was not present and ready to further his employer’s business, and falling out of a tree was not a risk incident to his employment as a pipefitter; the worker’s tree climbing was a complete and serious deviation from his employment and therefore not within the scope and course of his employment, and thus his injury sustained after falling out of the tree was not compensable. Haney v. Fabricated Pipe, Inc., 203 So.3d 725, 2016 Miss. App. LEXIS 722 (Miss. Ct. App. 2016).

While in the course of his return from an employer-compensated trip to a motel national convention, a motel manager took a side trip for the two-fold purpose of visiting a grandchild and checking a business sign erected on a site upon which the manager’s employer proposed to build a motel, the death of the manager in an automobile accident during the course of the side trip was compensable. E & M Motel Management, Inc. v. Knight, 231 So. 2d 179, 1970 Miss. LEXIS 1575 (Miss. 1970).

The fact that the employer paid all travel expenses for a business trip, while not necessarily controlling, is of some significance in determining whether the death of an employee while on such trip is compensable. E & M Motel Management, Inc. v. Knight, 231 So. 2d 179, 1970 Miss. LEXIS 1575 (Miss. 1970).

A salesman who was furnished an automobile by his employer as an integral part of his contract of employment, was authorized to keep it at his residence, and was directed to have it serviced once a week at a particular filling station, left the car to be serviced and then deviating temporarily from the course of his employment joined fellow employees at a bar where they drank whisky, but subsequently returned to the filling station and picked up the car and while driving the most direct route to his home was involved in an unexplained automobile accident from which he subsequently died, was injured within the scope and course of his employment. Murphy v. Jac-See Packing Co., 208 So. 2d 773, 1968 Miss. LEXIS 1428 (Miss. 1968).

A claimant who, while on duty as a pumper in an oil field, departed from his place of employment and drove his automobile several miles away to pick up two quail hunters, one of whom happened to be his immediate superior not on duty at the time, and was severely injured in an accident while returning to his place of employment, was not injured within the scope of his employment. Bivens v. Marshall R. Young Drilling Co., 251 Miss. 261, 169 So. 2d 446, 1964 Miss. LEXIS 347 (Miss. 1964).

Fatal accident to an employee while driving employer’s vehicle on returning from a midweek trip to his home did not arise out of the employment where the trip was for the employee’s personal pleasure and not under any agreement with the employer, whose policy was against such use of the employer’s vehicles. Phillips Contracting Co. v. Dependents of Adair, 245 Miss. 365, 148 So. 2d 189, 1963 Miss. LEXIS 523 (Miss. 1963).

Injuries sustained by a district manager for an insurance company did not arise out of or in the course of his employment where sustained while the manager was on a trip to obtain his own car and to return it to the place where he was stationed, and the fact that the manager looked over some insurance policies, collected a premium, and discussed a permanent plan of insurance with a customer did not change the result. National Bankers Life Ins. Co. v. Jones, 244 Miss. 581, 145 So. 2d 173, 1962 Miss. LEXIS 480 (Miss. 1962).

Injury to a chemist from an explosion of material while being tested by him for a third person on his employer’s premises does not arise out of and in the course of his employment. Connell v. Armstrong Tire & Rubber Co., 242 Miss. 280, 134 So. 2d 435, 1961 Miss. LEXIS 556 (Miss. 1961).

Where an insurance salesman, after walking a short distance in the direction of a potential customer, returned to his car to obtain a gun to shoot crows, an injury sustained by the salesman when the gun accidentally discharged occurred at a time when the salesman was on a personal mission of his own. Earnest v. Interstate Life & Acci. Ins. Co., 238 Miss. 648, 119 So. 2d 782, 1960 Miss. LEXIS 450 (Miss. 1960).

When an employer’s motor vehicle is being driven by an employee, it is presumed to be on the employer’s business, and the burden is on the employer to prove that it was being driven on a route which the employee’s duties did not require him to take. Wilson Furniture Co. v. Wilson, 237 Miss. 512, 115 So. 2d 141, 1959 Miss. LEXIS 498 (Miss. 1959).

Under uncontradicted proof that an automobile salesman had left his home in the evening on what was initially a business mission, and had temporarily deviated therefrom later in the evening while engaging in social activities, but he had resumed his business while on his way home at the time he was killed in an automobile accident, the salesman’s death arose out of and in the course of his employment, and was compensable. Thrash v. Jackson Auto Sales, Inc., 232 Miss. 845, 100 So. 2d 574, 1958 Miss. LEXIS 338 (Miss. 1958).

If a servant while engaged about his master’s business deviates therefrom to engage in some personal errands or mission, the master’s responsibility may be temporarily suspended, but it is re-established when the servant resumes his duties. Thrash v. Jackson Auto Sales, Inc., 232 Miss. 845, 100 So. 2d 574, 1958 Miss. LEXIS 338 (Miss. 1958).

Where an employee has been permitted to stay at home, a benefit personal to him, yet while there he also performs a service for his employer, the existence of the two purposes does not defeat claims for workmen’s compensation. Allen's Dairy Prods. Co. v. Whittington's Dependents, 230 Miss. 285, 92 So. 2d 842, 1957 Miss. LEXIS 370 (Miss. 1957).

Although the employee had earlier deviated from his employment, where, at the time of receiving fatal injury in a highway accident, he was on his way home where he was required to make out certain reports for his employer, his death arose out of and in the course of his employment. Allen's Dairy Prods. Co. v. Whittington's Dependents, 230 Miss. 285, 92 So. 2d 842, 1957 Miss. LEXIS 370 (Miss. 1957).

Death of an employee, who, while engaged in transporting a pump across a river for his employer, dived out of the boat in order to cool off and was drowned, did not arise out of and in the course of his employment. Collier v. Texas Constr. Co., 228 Miss. 824, 89 So. 2d 855, 1956 Miss. LEXIS 570 (Miss. 1956).

Where an employee went on a personal trip out of town in his own automobile and during the return trip was killed, the injury and death was not a result of an accident arising out of and in the course of employment, even though on the return trip the employee carried records of employer. Dependents of Durr v. Schlumberger Oil Well Surveying Corp., 227 Miss. 606, 86 So. 2d 507, 1956 Miss. LEXIS 732 (Miss. 1956).

Where an assistant foreman, who had a regular working day of 8 hours but was subject to call during the whole 24 hours, lived near the employer’s office and on the day of the accident put in 8 hours at work and later at home was washing grease from his hands with casing head gas which was set off by a lighted heater, burning the employee so seriously that he died, the injury did not arise out of and in the course of employment. Ferguson v. Suhio Petroleum Co., 225 Miss. 24, 82 So. 2d 575, 1955 Miss. LEXIS 554 (Miss. 1955).

Where an employee, who had torn the bottom of his trousers while unloading soft drinks, was sent home to change his trousers, and was struck by an automobile while riding a borrowed bicycle, the claimant was not injured in the course of his employment and was not entitled to compensation. Dr. Pepper Bottling Co. v. Chandler, 224 Miss. 256, 79 So. 2d 825, 1955 Miss. LEXIS 488 (Miss. 1955).

Where an employee was searching for employer’s cows with two other employees who were not then on pay, halted his search so a fellow employee could shoot a squirrel, and as a result the employee suffered an eye injury when a pellet ricocheted, there was no causal connection between the injury and the employment, and no compensation would be awarded even though the employer allowed squirrel shooting on the job. Persons v. Stokes, 222 Miss. 479, 76 So. 2d 517, 1954 Miss. LEXIS 668 (Miss. 1954).

38. Injury from assault or other intentional acts.

Although Miss. Code Ann. §71-3-7(4) provides that workers’ compensation benefits may be denied to an injured employee if there is evidence that the employee willfully intended to injure himself, the Supreme Court concluded that there was no credible evidence to suggest that a city employee willfully acted with the intent to injure himself and that the city failed to meet its burden of proving otherwise. City of Jackson v. Brown, 235 So.3d 190, 2017 Miss. App. LEXIS 382 (Miss. Ct. App. 2017), cert. denied, — So.3d —, 2018 Miss. LEXIS 40 (Miss. 2018).

There was substantial evidence to support the Workers’ Compensation Commission’s conclusion that the worker’s actions did not constitute a willful intent to cause injury to himself, given that the company cited no authority that would have equated the worker’s actions to willful intent, and there was no evidence establishing that his lack of sleep or consumption of pain medication would have caused the accident or shown a willful intent to injure himself. Linde Gas v. Edmonds, 167 So.3d 1258, 2014 Miss. App. LEXIS 547 (Miss. Ct. App. 2014), cert. denied, 168 So.3d 962, 2015 Miss. LEXIS 355 (Miss. 2015).

Substantial evidence supported a decision that the claimant acted in such a way as to intentionally injure himself, thus disqualifying himself from benefits, as it showed that the claimant had one hand on the primary electrical line and one on the neutral line at the time of the incident, and given the large distance between the lines, a finding that he intentionally placed his hands on the lines being fully aware of the consequences was warranted. Smith v. Tippah Elec. Power Ass'n, 138 So.3d 934, 2013 Miss. App. LEXIS 298 (Miss. Ct. App. 2013), rev'd, 138 So.3d 900, 2014 Miss. LEXIS 176 (Miss. 2014).

Finding that the employee’s injury did not arise out of his employment was proper where an injury from a third party assault that occurred due to a purely personal vendetta or disagreement did not arise out of the employment pursuant to Miss. Code Ann. §71-3-7 and Miss. Code Ann. §71-3-3(b). In the case, the assault arose solely from the employee’s personal disagreement with a co-employee concerning a $10 loan. Sanderson Farms, Inc. v. Jackson, 911 So. 2d 985, 2005 Miss. App. LEXIS 700 (Miss. Ct. App. 2005).

Employee who was assaulted in her apartment parking lot by her co-worker and roommate was not entitled to compensation injuries arising out of and in the course of her employment. Hawkins v. Treasure Bay Hotel & Casino, 813 So. 2d 757, 2001 Miss. App. LEXIS 462 (Miss. Ct. App. 2001).

Where the claimant was kidnapped by an unknown assailant when she arrived at work and parked in a parking lot without security guards, her injury was work-related and, therefore, compensable because the employer maintained a revocable license to use the parking lot where the abduction occurred. Adams v. Lemuria, Inc., 738 So. 2d 295, 1999 Miss. App. LEXIS 100 (Miss. Ct. App. 1999).

Injuries sustained by the claimant were work-related where she was assaulted and robbed by an unknown assailant while following her employer’s instructions to (1) arrive at work late at night and (2) to park in a secluded parking lot without security guards nearby to protect her as she got out of her vehicle. Green v. Glen Oaks Nursing Ctr., 722 So. 2d 147, 1998 Miss. App. LEXIS 505 (Miss. Ct. App. 1998).

The dependent of a deceased employee of a service station was properly granted workmen’s compensation benefits where the deceased employee had been shot and killed by the husband of the deceased employee’s supervisor, who was also a supervisor at the service station, and where the evidence supported the conclusion that the deceased employee had thought that he was involved in a work-related activity when he was called over to the husband’s automobile, despite the fact that the confrontation arose because of the employee’s relationship with the wife. Kerr-McGee Corp. v. Hutto, 401 So. 2d 1277, 1981 Miss. LEXIS 2069 (Miss. 1981).

The only exceptions provided by this section [Code 1942, § 6998-04] to an employer’s liability for payment of compensation is where the intoxication of the employee was the proximate cause of the injury, or if the injury resulted from the wilful intention of the employee to injure or kill himself or another. Kemp v. Atlas Fertilizer & Chemical Co., 197 So. 2d 485, 1967 Miss. LEXIS 1530 (Miss. 1967).

The death of an employee in the course of his employment who was shot and killed by the irate husband of a woman with whom he was having an affair did not arise out of the scope of his employment but resulted from an “act, actions, and activities” foreign thereto, and consequently was not compensable. Ellis v. Rose Oil Co., 190 So. 2d 450, 1966 Miss. LEXIS 1390 (Miss. 1966).

An assault by a third person is work-connected if it grows out of a quarrel whose subject matter is related to the work. John Hancock Trucking Co. v. Walker, 243 Miss. 487, 138 So. 2d 478, 1962 Miss. LEXIS 366 (Miss. 1962).

Death of one shot for some unknown reason by a fellow employee, whom in the discharge of his duty he was transporting to place of work, was one arising out of and in the course of employment. Watson v. National Burial Asso., 234 Miss. 749, 107 So. 2d 739, 1958 Miss. LEXIS 547 (Miss. 1958).

Where there is a wilful intention on part of the employee to injury himself, compensation is not payable under the workmen’s compensation laws. L. B. Priester & Son v. McGee, 234 Miss. 471, 106 So. 2d 394, 1958 Miss. LEXIS 520 (Miss. 1958).

Evidence that employee was murdered by jilted suitor and that the only connection between her employment and cause of her death was that she was on duty at the time she was shot and was merely informing the slayer of the rules of the telephone company prohibiting visitors in operating room of the telephone exchange, and that the slayer immediately after shooting the employee turned a pistol upon himself and committed suicide, failed to establish that the employee was killed because of her employment, and therefore she was not under the protection of the Estate of West v. Southern Bell Tel. & Tel. Co., 228 Miss. 890, 90 So. 2d 1, 1956 Miss. LEXIS 578 (Miss. 1956).

Under the statute, if the injury or death has been caused by the wilful act of a third person it must be shown that such wilful act was directed against the employee because of his employment while so employed and working on the job, and there must be shown some causal connection between the injury and employment other than the mere fact that the employment brought the employee to the place where he was injured, and the employment must have been connected with the injury in some more direct manner than merely furnishing an opportunity for the employee to be assaulted. Brookhaven Steam Laundry v. Watts, 214 Miss. 569, 55 So. 2d 381, 1951 Miss. LEXIS 521 (Miss. 1951).

When an assault is unconnected with the employment, or is for reasons personal to the assailant and the one assaulted, or is not because the relation of employer and employee exists, and the employment is not the cause, though it may be the occasion of the wrongful act and may give a convenient opportunity for its execution, it is ordinarily held that the injury did not arise out of employment. Brookhaven Steam Laundry v. Watts, 214 Miss. 569, 55 So. 2d 381, 1951 Miss. LEXIS 521 (Miss. 1951).

The issue whether the claimant was assaulted because of his employment, while so employed and working on a job, was one of fact and for decision of the commission. Barry v. Sanders Co., 211 Miss. 656, 52 So. 2d 493, 1951 Miss. LEXIS 396 (Miss. 1951).

39. Horseplay.

Where employees were engaged in horseplay and afterward an employee was struck on the head with a shovel by fellow employee, under the Workmen’s Compensation Law the assaulted employee is entitled to compensation for injury resulting, where the employment and nature of the work brought employee and fellow employee in close contact with each other and one of the hazards of such contact was that an assault might be committed by the other. Mutual Implement & Hardware Ins. Co. v. Pittman, 214 Miss. 823, 59 So. 2d 547, 1952 Miss. LEXIS 523 (Miss. 1952).

40. Forbidden acts.

Where the employee’s act of lifting a sewing machine into a customer’s car was within the sphere of his employment, the fact that he had been expressly forbidden to lift machines was not fatal to his claim for compensation for injuries resulting from the act. Kahne v. Robinson, 232 Miss. 670, 100 So. 2d 132, 100 So. 2d 585, 1958 Miss. LEXIS 315, 1958 Miss. LEXIS 316 (Miss. 1958).

41. Intoxication.

Mississippi Workers’ Compensation Commission did not err by denying a claimant workers’ compensation benefits, pursuant to Miss. Code Ann. §71-3-7, because substantial evidence supported the Commission’s factual finding that the claimant’s intoxication at the time of his fall from the top of a wall at work was the proximate cause of his accident and injury. Payton v. Rod Cooke Constr. Co., 126 So.3d 911, 2013 Miss. App. LEXIS 71 (Miss. Ct. App.), cert. denied, 127 So.3d 1115, 2013 Miss. LEXIS 633 (Miss. 2013).

Employee admitted during testimony that the machine should have been turned off when working on it, and he admitted that he knew how to turn off the machine. He clearly was injured because he failed to properly operate the machine and his level of intoxication (a blood alcohol level of .129 percent about two hours after the accident),was significant; his intoxication was so significant, a pharmacologist opined that his injury was proximately caused by his intoxication, and therefore, pursuant to Miss. Code Ann. §71-3-7, he was not entitled to benefits. Sanderson Farms, Inc. v. Deering, 909 So. 2d 1169, 2005 Miss. App. LEXIS 77 (Miss. Ct. App. 2005).

Worker’s claim that a drug screen taken shortly after the injury occurred when he fell off a tree that he was trying to trim with a chain saw after the tree had been pushed over by a backhoe, which showed the presence of cannabinoids or marijuana in the worker’s body at a concentration level of 111 nanograms per milliliter, was the result of passive exposure to marijuana smoke or use in the distant past was rebutted by expert testimony that such a concentration level was inconsistent with such claims; worker’s claim for workers’ compensation benefits was properly denied. Edwards v. World Wide Pers. Servs., 843 So. 2d 730, 2002 Miss. App. LEXIS 449 (Miss. Ct. App. 2002).

Intoxication or impairment by other substances, legal or illegal, is not an issue in whether benefits for an injury arising on the job are payable; although the discovery of such conduct before it causes injury may appropriately result in the termination or other discipline of the employee, these considerations cannot result in the denial of disability benefits once an otherwise compensable injury has occurred. Tyson Foods v. Hilliard, 772 So. 2d 1103, 2000 Miss. App. LEXIS 582 (Miss. Ct. App. 2000).

The burden is on the employer to show that the employee’s intoxication was the proximate cause of his injury, and in the absence of such proof evidence that the employee had been drinking is not sufficient to enable the employer to avoid liability to pay compensation. Murphy v. Jac-See Packing Co., 208 So. 2d 773, 1968 Miss. LEXIS 1428 (Miss. 1968).

Claimant, who admittedly had previously taken one or two drinks of whisky, stepped in a hole and broke his leg when he stopped by the roadside to relieve himself was entitled to compensation upon the determination of the commission, from conflicting evidence, that intoxication was not the proximate cause of his injury. Reading & Bates, Inc. v. Whittington, 208 So. 2d 437, 1968 Miss. LEXIS 1408 (Miss. 1968).

This section [Code 1942, § 6998-04] places the burden upon the employer to prove that claimant was intoxicated at the time of the accident and that his intoxication was the proximate cause of his injury. Reading & Bates, Inc. v. Whittington, 208 So. 2d 437, 1968 Miss. LEXIS 1408 (Miss. 1968).

The only exceptions provided by this section [Code 1942, § 6998-04] to an employer’s liability for payment of compensation is where the intoxication of the employee was the proximate cause of the injury, or if the injury resulted from the wilful intention of the employee to injure or kill himself or another. Kemp v. Atlas Fertilizer & Chemical Co., 197 So. 2d 485, 1967 Miss. LEXIS 1530 (Miss. 1967).

Evidence was insufficient to show that intoxication was the cause of the death of a truck driver who was stuck by logs falling off another truck after he had parked his truck pursuant to instructions in that regard, and after he had been told that he was laid off for the rest of the day for being intoxicated. Smith Bros. v. Dependents of Cleveland, 240 Miss. 100, 126 So. 2d 519, 1961 Miss. LEXIS 435 (Miss. 1961).

Intoxication is an affirmative defense with the burden of proof upon the employer pleading it. United States Fidelity & Guaranty Co. v. Collins, 231 Miss. 319, 95 So. 2d 456, 1957 Miss. LEXIS 516, 1957 Miss. LEXIS 517 (Miss. 1957).

Where the evidence was conflicting upon the issue of whether the injured employee was intoxicated at the time of the accident, and if so, whether his intoxication was a proximate cause of his injuries, finding of the attorney-referee and commission in favor of the employee was affirmed. United States Fidelity & Guaranty Co. v. Collins, 231 Miss. 319, 95 So. 2d 456, 1957 Miss. LEXIS 516, 1957 Miss. LEXIS 517 (Miss. 1957).

42. Imported danger.

Where an employee was in his car just outside his employer’s premises waiting for a company sponsored Christmas dinner to begin, when he died from a gunshot wound to his chest from his own pistol found lying on the seat, which pistol he was accustomed to keep in the car, and there was no showing that the death had been caused by another party, the presumption of causal connection between the employment and the death was not applicable, since the death did not arise out of his employment, and since moreover, the source of the injury was within the doctrine of “imported danger” in that it was a hazard brought on to the employment premises by the decedent himself, and compensation was not recoverable by the decedent’s dependents. Space Steel Corp. v. Jones, Dependents Of., 248 So. 2d 807, 1971 Miss. LEXIS 1494 (Miss. 1971).

The term “imported danger” is a convenient label for a class of cases in which the source of the injury is a hazard brought onto the employment premises by the claimant himself. Earnest v. Interstate Life & Acci. Ins. Co., 238 Miss. 648, 119 So. 2d 782, 1960 Miss. LEXIS 450 (Miss. 1960).

Where admittedly a shotgun carried by an insurance salesman had no connection with his work and was for his own personal pleasure, the shotgun represented an “imported danger,” and the injury sustained by the salesman when the shotgun accidentally discharged was not compensable. Earnest v. Interstate Life & Acci. Ins. Co., 238 Miss. 648, 119 So. 2d 782, 1960 Miss. LEXIS 450 (Miss. 1960).

43. Liability of contractors and subcontractors.

Trial court erred in granting a general contractor a partial summary judgment in its action against its insurer for breach of contract, declaratory judgment, and defamation because the contractor was statutorily required to secure workers’ compensation coverage for the employees of its uninsured subcontractors where the contractor chose to use subcontractors who employed fewer than five employees and who did not secure workers’ compensation coverage, and the number of employees of the subcontractor was not a factor in determining general-contractor liability under the Workers’ Compensation Act. Builders & Contrs. Ass’n of Miss. v. Laser Line Constr. Co., LLC, — So.3d —, 2017Miss. LEXIS 270 (Miss. June 29, 2017).

Employer was a contractor, not a subcontractor, of the three timber owners, as neither of the three companies had already contracted for the performance of the work done by the employer; neither company was the employee’s statutory employer under Miss. Code Ann. §71-3-7 and had no statutory responsibility to insure the employee; assuming the Mississippi Workers’ Compensation Commission (Commission) was empowered under Miss. Code Ann. §71-3-37(13) to determine whether another company was contractually bound, the Commission was entitled to accept the testimony that the company never agreed to provide workers’ compensation coverage for the employer, but instead, required the employer to have its own workers’ compensation insurance. Miss. Loggers Self Insured Fund, Inc. v. Andy Kaiser Logging, 992 So. 2d 649, 2008 Miss. App. LEXIS 286 (Miss. Ct. App.), cert. denied, 997 So. 2d 924, 2008 Miss. LEXIS 537 (Miss. 2008).

Daughter of decedent, who was killed while hauling logs for a subcontractor, was not entitled to bring a worker’s compensation claim, pursuant to Miss. Code Ann. §71-3-9 because workers’ compensation payments were the exclusive remedy, and subcontractor had secured payment of compensation in compliance with Miss. Code Ann. §71-3-7. Lamar v. Thomas Fowler Trucking, Inc., 956 So. 2d 878, 2007 Miss. LEXIS 279 (Miss. 2007).

As an employee’s complaint against an employer and general contractor sounded in negligence, and Mississippi had the “most significant relationship” with the action, Mississippi, not Alabama, law applied. Therefore, the contractor was immune from suit under Miss. Code Ann. §71-3-7 because the employer had workers’ compensation coverage for him. Powe v. Roy Anderson Constr. Co., 910 So. 2d 1197, 2005 Miss. App. LEXIS 603 (Miss. Ct. App. 2005), cert. denied, 942 So. 2d 164, 2006 Miss. LEXIS 640 (Miss. 2006).

Where the decedent’s employer agreed under the subcontract with the contractor to provide workers’ compensation coverage to the employees, and the employer did so, the contractor was entitled to summary judgment pursuant to Miss. R. Civ. P. 56 in the decedent’s heirs’ wrongful death action; construing Miss. Code Ann. §71-3-7, relating to a contractor’s obligation to provide workers’ compensation coverage, and Miss. Code Ann. §71-3-9, the workers’ compensation exclusivity provision, together, it was determined that where the employer provided compensation coverage to its employees pursuant to the contract with the contractor, the contractor qualified as a statutory employer and was immune from tort liability claims by the heirs. Thornton v. W. E. Blain & Sons, Inc., 878 So. 2d 1082, 2004 Miss. App. LEXIS 715 (Miss. Ct. App. 2004).

Where a widow whose husband died while working for a general contractor sued the contractor based on its alleged failure to properly repair damaged bolts, the trial court properly granted summary judgment to the contractor as its conduct was at most gross negligence or reckless indifference, which, as a matter of law, did not defeat the exclusivity provision of the workers’ compensation statutes. Bevis v. Linkous Constr. Co., 856 So. 2d 535, 2003 Miss. App. LEXIS 445, 2003 Miss. App. LEXIS 773 (Miss. Ct. App. 2003).

A subcontractor or general contractor is entitled to immunity where a sub-subcontractor failed to secure coverage for the benefit of an injured employee. Castillo v. M.E.K. Constr., Inc., 741 So. 2d 332, 1999 Miss. App. LEXIS 274 (Miss. Ct. App. 1999).

A construction company was the general contractor and the deceased’s statutory employer where the company was established for the very function of operating as a general contractor and the president of the company was the general contractor. Castillo v. M.E.K. Constr., Inc., 741 So. 2d 332, 1999 Miss. App. LEXIS 274 (Miss. Ct. App. 1999).

Prime contractor was statutory employer of sub-subcontractor’s employee, and thus, was immune from liability under Workers’ Compensation Act’s exclusivity of remedy provision in negligence action brought by injured employee, where sub-subcontractor provided compensation coverage to its employees pursuant to its contract with prime contractor. Bradshaw v. Rudder, 227 Miss. 143, 85 So. 2d 778, 1956 Miss. LEXIS 665 (Miss. 1956).

Sub-subcontractor satisfied definition of “subcontractor” under workers’ compensation statute, where it contracted with subcontractor to complete portions of steel work on building, and subcontractor had previously contracted with general contractor to do structural steel work on building; sub- subcontractor entered into express contract with subcontractor for performance of act which subcontractor had already contracted to complete. Crowe v. Brasfield & Gorrie Gen. Contr., 688 So. 2d 752, 1996 Miss. LEXIS 691 (Miss. 1996).

Cable lineman supervisor was entitled to worker’s compensation benefits, although he was subcontractor and not employee, where owner of company for which subcontractor was performing job knew subcontract was being performed by 6 workmen and had agreed to provide workers’ compensation coverage for them, even though owner did not know that subcontractor himself was one of crew members. Champion Cable Constr. Co. v. Monts, 511 So. 2d 924, 1987 Miss. LEXIS 2682 (Miss. 1987).

In tort action brought by employee of casing crew injured while working at oil well drilling site, oil drilling contractor was general contractor in drilling well, casing company was subcontractor for setting casing, and thus statutory obligation imposed upon general contractor to provide workers’ compensation coverage rendered him immune from third party tort liability, notwithstanding his one-fourth interest in oil, gas, and minerals sought by drilling well. Brown v. Williams, 504 So. 2d 1188, 1987 Miss. LEXIS 2322 (Miss. 1987).

Requirement that contractor assure worker’s compensation coverage for employees of subcontractor does not entitle contractor to defense under exclusiveness of liability statute (§71-3-9) where subcontractor has in fact obtained coverage. Nash v. Damson Oil Corp., 480 So. 2d 1095, 1985 Miss. LEXIS 2305 (Miss. 1985).

A general contractor would be immune from a common law negligence action brought by its subcontractor’s employee, where the general contractor was the statutory employer of the employee inasmuch as the general contractor “secured” compensation insurance for the benefit of the subcontractor’s employee within the meaning of §71-3-7 by requiring the subcontractor to secure a policy of workmen’s compensation insurance on its employees. Doubleday v. Boyd Constr. Co., 418 So. 2d 823, 1982 Miss. LEXIS 2130 (Miss. 1982).

Under evidence showing that in engaging a subcontractor to perform certain work, the contractor retained control of the conduct of the subcontractor with respect to the work to be done, and the order, method, and plan of that work, the subcontractor was not an independent contractor, but was an employee of the contractor, and the deceased employee of the subcontractor, and the workmen’s compensation commission did not err in awarding benefits to the dependents of the deceased employee. Louis A. Gily & Sons v. Dependents of Shankle, 246 Miss. 384, 149 So. 2d 480, 1963 Miss. LEXIS 452 (Miss. 1963).

One having a right to cut and remove timber from another’s land, who engages another to cut it, is not liable as a prime contractor for compensation to an injured employee of such other. Rodgers v. Phillips Lumber Co., 241 Miss. 590, 130 So. 2d 856, 1961 Miss. LEXIS 376 (Miss. 1961).

In view of the common law rule, which was not changed by the Workmen’s Compensation Law, that partners are jointly and severally liable for partnership obligations, and the provisions of Code 1942, § 6998-39, a carrier which had written a compensation policy for one of the partners in the partnership, was liable for compensation benefits to the partnership employee. United States Fidelity & Guaranty Co. v. Collins, 231 Miss. 319, 95 So. 2d 456, 1957 Miss. LEXIS 516, 1957 Miss. LEXIS 517 (Miss. 1957).

Since a compensation policy secured in his own behalf by one of the members of a partnership doing subcontracting work covered the compensation rights of injured partnership employee, the secondary liability of the prime contractor and its carrier did not take effect as a direct obligation upon the ground that the partnership failed to secure coverage of its employees. United States Fidelity & Guaranty Co. v. Collins, 231 Miss. 319, 95 So. 2d 456, 1957 Miss. LEXIS 516, 1957 Miss. LEXIS 517 (Miss. 1957).

Immunity to common-law suits as provided in Code 1942, §§ 6998-05 and 6998-36 is extended to statutory employers who come within the provisions of this section [Code 1942, § 6998-04], holding a general contractor to be the statutory employer of a subcontractor’s employee so that latter’s exclusive remedy was under the Workmen's Compensation Law. Mosley v. Jones, 224 Miss. 725, 80 So. 2d 819, 1955 Miss. LEXIS 535 (Miss. 1955).

The purpose of legislature was to prevent the general contractor from escaping liability by employing subcontractors who were not financially responsible and leaving the employees unprotected. Mills v. Barrett, 213 Miss. 171, 56 So. 2d 485, 1952 Miss. LEXIS 346 (Miss. 1952).

The statutory language is plain, clear, and unambiguous and has the effect of making the employees of a subcontractor, where the subcontractor does not carry insurance for the protection of his employees, the employees of the principal or general contractor within the meaning of the Workmen's Compensation Law. Mills v. Barrett, 213 Miss. 171, 56 So. 2d 485, 1952 Miss. LEXIS 346 (Miss. 1952).

Where an employee of subcontractor was injured March 1950 the liability was governed by the 1948 Workmen’s Compensation Law which provided that the contractor shall secure payment of compensation to all employees of subcontractor which are not under compensation, and was not governed by the 1950 amendment which provided that the number of employees of the subcontractor and not the contractor shall be the factor determining liability. Mills v. Barrett, 213 Miss. 171, 56 So. 2d 485, 1952 Miss. LEXIS 346 (Miss. 1952).

44. Independent contractors, generally.

Claimant has burden of proving that he sustained an accidental injury arising out of and in the course and scope of his employment, and that the injury caused the disability for which he is claiming benefits. Sonford Products Corp. v. Freels, 495 So. 2d 468, 1986 Miss. LEXIS 2658 (Miss. 1986), overruled, Bickham v. Department of Mental Health, 592 So. 2d 96, 1991 Miss. LEXIS 978 (Miss. 1991).

The two tests to be considered in analyzing an employee-independent contractor question are the control test and the relative nature of the work test, the latter of which pertains to the character of the claimant’s work or business and its relation to the employer’s business. Boyd v. Crosby Lumber & Mfg. Co., 250 Miss. 433, 166 So. 2d 106, 1964 Miss. LEXIS 474 (Miss. 1964).

The fact that a truck driver, injured while hauling gravel, owned and furnished his own truck for hauling the gravel was not a determinative factor in determining whether the truck driver was an employee or independent contractor. Wade v. Traxler Gravel Co., 232 Miss. 592, 100 So. 2d 103, 1958 Miss. LEXIS 308 (Miss. 1958).

The fact that a truck driver, injured while hauling gravel, was paid a unit price per yard for the gravel he hauled, instead of an hourly wage, was not proof in itself that the truck driver was an independent contractor. Wade v. Traxler Gravel Co., 232 Miss. 592, 100 So. 2d 103, 1958 Miss. LEXIS 308 (Miss. 1958).

Tests to determine whether relationship of master and servant or independent contractor exists are as follows: Whether the principal master has the power to terminate the contract at will; whether he has the power to fix the price and payment for work or vitally controls the manner and time of payment; whether he furnishes the means and appliances for the work; whether he has control of the premises; whether he furnishes the materials upon which the work is done and receives the output thereof, the contractor dealing with no other person in respect to the output; whether he has the right to prescribe and furnish the details of the kind and character of the work to be done; whether he has the right to supervise and inspect the work during the course of employment; whether he has the right to direct the details of the manner in which the work is to be done; and whether he has the right to employ and discharge the subemployees and to fix their compensation, and is obliged to pay the wages of the said employees. Employers Ins. Co. v. Dean, 227 Miss. 501, 86 So. 2d 307, 1956 Miss. LEXIS 719 (Miss. 1956).

45. —Entitled to benefits.

Cable lineman supervisor was entitled to worker’s compensation benefits, although he was subcontractor and not employee, where owner of company for which subcontractor was performing job knew subcontract was being performed by 6 workmen and had agreed to provide workers’ compensation coverage for them, even though owner did not know that subcontractor himself was one of crew members. Champion Cable Constr. Co. v. Monts, 511 So. 2d 924, 1987 Miss. LEXIS 2682 (Miss. 1987).

Where the duration and continuity of a plumber’s work for an operative builder made his activities an integral part of the builder’s production process, he was an employee and not an independent contractor. Empire Home Builders v. Guthrie, 187 So. 2d 17, 1966 Miss. LEXIS 1336 (Miss. 1966).

Where a truck hauler of logs had worked exclusively for 12 years for one logging company and it was recognized that the hauler could quit at any time or that the company had the right to fire him, the hauler was not an independent contractor, but his work was so meshed into an integral part of the business of the company that the hauler and his injured employee were both employees of the company so as to entitle the employee to compensation. Brown v. E. L. Bruce Co., 253 Miss. 1, 175 So. 2d 151, 1965 Miss. LEXIS 970 (Miss. 1965).

A taxicab driver, allegedly operating on a “franchise” basis, who was required to operate the same kind of car with the same mechanical equipment furnished by the cab company, to wear the same kind of uniform, to receive his calls for passengers from the same central point, to buy gas and oil from the company, and was subject to the same rules of conduct as all of its other drivers, was participating in the business of the company as an integral part of it and was an employee. White Top & Safeway Cab Co. v. Wright, 251 Miss. 830, 171 So. 2d 510, 1965 Miss. LEXIS 908 (Miss. 1965).

The finding of the workmen’s compensation commission that a log hauler and an injured claimant employed by him were employees of a mill operator was warranted where, notwithstanding that the contract between the mill operator and the hauler provided that the former should have no control over the hauling, the evidence, including evidence of the method of payment and the right to terminate the relationship, showed the mill operator had control over the hauler, and it further appeared that the injured claimant’s work for the mill operators and the hauler was an integral part of the mill operator’s production process, and the hauler was not performing an independent business service and was not engaged in a business of his own. Boyd v. Crosby Lumber & Mfg. Co., 250 Miss. 433, 166 So. 2d 106, 1964 Miss. LEXIS 474 (Miss. 1964).

In view of evidence as to the degree of control exercised by truck lessee over the activities of the employee truck driver, and the fact that the employee truck driver performed work which carried out an integral part of the truck lessee’s business, the relationship was one of employment rather than that of independent contractor. Burnham Van Service, Inc. v. Dependents of Moore, 250 Miss. 165, 164 So. 2d 733, 1964 Miss. LEXIS 453 (Miss. 1964).

Evidence, including a showing that the foreman, who had charge of harvesting pecans on certain lands of employer, hired, transported and directed claimant and other pickers, claimant’s employment could be terminated at any time by the employer, so that the employer, through his foreman, exercised control over every phase of claimant’s work, established that claimant was an employee rather than an independent contractor. Selph v. Stricker, 238 Miss. 597, 119 So. 2d 351, 1960 Miss. LEXIS 443 (Miss. 1960).

One hauling in his own truck, at his own expense, on a unit basis, gravel to be used in surfacing, held an employee of the contractor doing the surfacing, and not an independent contractor. Bush v. Dependents of Byrd, 234 Miss. 782, 108 So. 2d 211, 1959 Miss. LEXIS 555 (Miss. 1959).

Under evidence showing that, among other things, the work performed by three commissioned salesmen, who drove their own automobiles, constituted an integral part of the business of a partnership selling sewing machines, the partnership controlled the maximum price of the machines, could accept or reject any deferred payment contracts, required the salesmen to service the machines sold, could fire any of the salesmen at will, and the salesmen turned over to the partnership all funds collected, the attorney-referee and the commission did not err in finding that the commission salesmen were employees and not independent contractors, so that the partnership, which employed five additional persons, was an employer subject to the provisions of the Workmen’s Compensation Law. Kahne v. Robinson, 232 Miss. 670, 100 So. 2d 132, 100 So. 2d 585, 1958 Miss. LEXIS 315, 1958 Miss. LEXIS 316 (Miss. 1958).

In a proceeding for workman’s compensation benefits for injury sustained while hauling gravel by a truck driver, who owned and furnished his own truck, evidence that the truck driver was hired to haul gravel at so much per cubic yard and according to the length of the haul, did not contract to do a set piece of work, his employment was not to last for a specified period, and that the gravel company controlled the loading of the truck driver’s truck, and through ownership and operation of the loading machinery controlled, in a measure, the number of hours per day the driver could haul, determined the kind and quality of gravel that the driver should haul, the distance which the driver was to travel, and the amount of pay which the driver was to receive for delivering gravel to the purchaser, and could terminate the driver’s services at any time, showed an employer-employee relationship and not that of an independent contractor. Wade v. Traxler Gravel Co., 232 Miss. 592, 100 So. 2d 103, 1958 Miss. LEXIS 308 (Miss. 1958).

A compensation carrier which had issued a policy to a corporation insuring, by virtue of a separate clause, salesmen at a time when the corporation had only two salesmen, both of whom were also stockholders and officers, and had admittedly received premiums based upon the wages of the secretary-salesman, was estopped to deny that the secretary-salesman, whose death arose out of and in the course of his employment while doing nonsupervisory work, was not covered by the Workmen's Compensation Law. M. E. Badon Refrigeration Co. v. Badon, 231 Miss. 113, 95 So. 2d 114, 1957 Miss. LEXIS 495 (Miss. 1957).

46. —Not entitled to benefits.

Restrictions imposed by the seller of standing timber on its removal do not make the buyer a contractor for its removal so as to render him liable for compensation to a workman of one employed by him. Nickerson v. Patridge, 241 Miss. 40, 128 So. 2d 751, 1961 Miss. LEXIS 316 (Miss. 1961).

Operators of sawmills and their employees who cut and saw standing timber owned by a planing mill and deliver it there for a stated sum per thousand feet, are not employees of the planing mill, which merely designated the timber to be cut, within the Employers Liability Ins. Co. v. Haltom, 235 Miss. 74, 108 So. 2d 29, 1959 Miss. LEXIS 404 (Miss. 1959).

Denial of compensation upon the ground that claimants’ decedent was an independent contractor at the time he was killed on lumber company’s premises while unloading logs from a truck was supported by substantial evidence. Ainsworth v. Long-Bell Lumber Co., 233 Miss. 38, 101 So. 2d 100, 1958 Miss. LEXIS 354 (Miss. 1958).

Where claimant was a painter who was engaged in separate business and held himself out to the public as performing an independent service in that he furnished his own tools and equipment, employed his own helpers and paid them their wages, directed the manner of the work, and contracted for a definite completed job, and that he represented the will of his employer only as the result of his work, the claimant was an independent contractor and was not entitled to compensation for injuries sustained. Tranum v. Mitchell Engineering Co., 223 Miss. 221, 78 So. 2d 111, 1955 Miss. LEXIS 373 (Miss. 1955).

In a suit for workmen’s compensation benefits, where deceased was hired to splice a cable on oil well drilling rig and he was not subject to supervision or control of drilling company, and he began to work when it suited him, finished his job and presented his bill, the deceased was an independent contractor and not within coverage under Workmen's Compensation Law. Kughn v. Rex Drilling Co., 217 Miss. 434, 64 So. 2d 582, 1953 Miss. LEXIS 448 (Miss. 1953).

Where deceased, who was a production superintendent of oil well drilling company, after completing his daily round of inspection, drove automobile furnished for the use of the performance of his duties to site of another drilling company and, as an independent contractor, spliced a cable, at which time he became ill and died from cerebral hemorrhage, his death did not arise out of or in course of his employment and his widow was not entitled to benefits under Workmen's Compensation Law. Kughn v. Rex Drilling Co., 217 Miss. 434, 64 So. 2d 582, 1953 Miss. LEXIS 448 (Miss. 1953).

Where two brothers made an agreement for cutting and hauling of timber and employed their own labor in the performance of the contract, regulated their own time for going to work and quitting, used their own trucks and own axes and saws, determined for themselves the number of workmen that they would employ and fixed the wages of their employees, the brothers were independent contractors and the death of one of the brothers during the logging operation was not subject to compensation under the Workmen's Compensation Law. Carr v. Crabtree, 212 Miss. 656, 55 So. 2d 408, 1951 Miss. LEXIS 495 (Miss. 1951).

47. Review.

Although the employer claimed that apportioning 50 percent of the employee’s benefits to it was improper because stress could not be held to be 50 percent responsible for the employee’s heart attack, and that the employee’s retirement benefits had to be included in the computation of the employee’s average weekly wage, the employer failed to cite any authority in support of its arguments; therefore, the issues were procedurally barred as an assignment of error that was unsupported by any legal authority and need not be considered by the appellate court. Miss. Dep't of Pub. Safety v. Pickens, 859 So. 2d 1057, 2003 Miss. App. LEXIS 1092 (Miss. Ct. App. 2003).

Standard of review in workers’ compensation cases is limited and substantial evidence test is used. Inman v. Coca-Cola/Dr. Pepper Bottling Co., 678 So. 2d 992, 1996 Miss. LEXIS 420 (Miss. 1996).

Workers’ Compensation Commission is trier and finder of facts in compensation claim; Supreme Court will reverse Commission’s order only if it finds that order clearly erroneous and contrary to overwhelming weight of evidence. Inman v. Coca-Cola/Dr. Pepper Bottling Co., 678 So. 2d 992, 1996 Miss. LEXIS 420 (Miss. 1996).

Where Workers’ Compensation Commission, on review of a decision of its hearing officer, enters order remanding case to administrative judge for further proceedings or testimony, the order is interlocutory only and is not appealable. Blankenship v. Delta Pride Catfish, 676 So. 2d 914, 1996 Miss. LEXIS 319 (Miss. 1996).

Order is interlocutory, and not appealable, when substantial rights of the parties involved in action remain undetermined and when cause is retained for further action. Blankenship v. Delta Pride Catfish, 676 So. 2d 914, 1996 Miss. LEXIS 319 (Miss. 1996).

Workers’ Compensation Commission’s order was final for purposes of appeal because it determined all matters among the parties and nothing had been retained by Commission or remanded to administrative law judge for further consideration. Blankenship v. Delta Pride Catfish, 676 So. 2d 914, 1996 Miss. LEXIS 319 (Miss. 1996).

A finding that a claimant was not entitled to permanent disability benefits because his disability, which arose from slippage in the spine, was attributable entirely to preexisting spondylolisthesis was not supported by substantial evidence where there was conflicting medical testimony from 2 treating physicians as to the cause of the claimant’s permanent disability and neither physician could determine how and when the slippage actually occurred, since close questions of compensability should be resolved in favor of the claimant, and the Workers’ Compensation Act should be liberally construed to carry out its remedial purpose. McNeese v. Cooper Tire & Rubber Co., 627 So. 2d 321, 1993 Miss. LEXIS 444 (Miss. 1993).

There was substantial evidence in a physician’s testimony to support the Workers’ Compensation Commission’s determination as to the date a claimant reached maximum medical recovery, and therefore the circuit court erred in finding a different date based on the opinion of another physician. Jordan v. Hercules, Inc., 600 So. 2d 179, 1992 Miss. LEXIS 224 (Miss. 1992), but see Dulaney v. National Pizza Co., 733 So. 2d 301, 1998 Miss. App. LEXIS 990 (Miss. Ct. App. 1998).

While the Administrative Judge is generally, within the Workers’ Compensation Commission, the individual who conducts the hearing and hears the live testimony, the Commission itself is, in law, the finder of the facts, and on judicial review, the Commission’s findings and decisions are subject to the normal deferential standards, notwithstanding the Administrative Judge’s actions. Walker Mfg. Co. v. Cantrell, 577 So. 2d 1243, 1991 Miss. LEXIS 190 (Miss. 1991).

In reversing the Commission’s fact-finding, reviewing courts are advised to provided detailed, written support for their conclusions. R.C. Petroleum, Inc. v. Hernandez, 555 So. 2d 1017, 1990 Miss. LEXIS 10 (Miss. 1990).

Decisions of the Mississippi Workers’ Compensation Commission on issues of fact will not be overturned if they are supported by substantial evidence. The Commission is the trier of facts as well as the judge of the credibility of the witnesses. Doubtful cases should be resolved in favor of compensation so as to fulfill the beneficial purposes of the statute. Miller Transporters, Inc. v. Guthrie, 554 So. 2d 917, 1989 Miss. LEXIS 495 (Miss. 1989).

Because in Mississippi right to compensation benefits is committed to both trier of fact in bad faith tort action and administrative factfinder under Workers’ Compensation Act, and resolution of bad faith claim is totally dependent on validity of underlying compensation claim, exhaustion of administrative remedies on underlying compensation issue is required where plaintiff has initiated administrative proceedings prior to filing bad faith tort action, however, decision is limited to those situations were injured claimant institutes administrative proceedings and subsequently files bad faith claim prior to final conclusion of administrative process, and if administrative process is terminated at some point then no exhaustion of administrative remedies requirement exists. Kitchens v. Liberty Mut. Ins. Co., 659 F. Supp. 467, 1987 U.S. Dist. LEXIS 13850 (S.D. Miss. 1987).

Determination of the degree of contribution of the preexisting disease or injury is a question of fact for the Workmen’s Compensation Commission which should not be disturbed unless the finding lacks substantial support in the evidence or is manifestly wrong. Stuart Mfg. Co. v. Walker, 313 So. 2d 574, 1975 Miss. LEXIS 1676 (Miss. 1975).

An adverse decision on the merits of the claim by the employee while he was alive bars a dependency claim under the doctrine of res judicata, for the questions have already been fully litigated, and all parties were involved and necessarily so in the manner in which the injury was received. Proctor v. Ingalls Shipbuilding Corp., 254 Miss. 907, 183 So. 2d 483, 1966 Miss. LEXIS 1586 (Miss. 1966).

The time within which an award affirmed by the supreme court must be paid in order to avoid the statutory penalty runs from the time a suggestion of error was overruled, and not from the subsequent issue of the court’s mandate. Decker v. Bryan Bros. Packing Co., 249 Miss. 6, 162 So. 2d 648, 1964 Miss. LEXIS 369 (Miss. 1964).

Where the attorney-referee and commission had adjudicated liability for compensation benefits as to the insured member of a partnership and his insurance carrier, the failure to adjudicate the liability of the uninsured partner, who was also liable for payment of the compensation, gave the insurance carrier an appealable interest in the correctness of the commission’s order; hence, the order of the commission was modified so as to adjudicate the liability for payment and compensation against the uninsured partner in addition to the insured partner’s carrier. United States Fidelity & Guaranty Co. v. Collins, 231 Miss. 319, 95 So. 2d 456, 1957 Miss. LEXIS 516, 1957 Miss. LEXIS 517 (Miss. 1957).

48. Immunity.

Owner of a petroleum refinery plant was not immune from a negligence action filed by a contractor’s employee, and thus, it was subject to the employee’s tort claim as “any other party,” because it was not statutory employer of the employee; the owner had no duty as an employer or contractor to secure workers’ compensation insurance, and its act of voluntarily purchasing coverage did not change its status. Thomas v. Chevron U.S.A., Inc., 212 So.3d 58, 2017 Miss. LEXIS 27 (Miss. 2017).

Decedent’s employer was not entitled to immunity from suit under Miss. Code Ann. §71-3-7 because it did not indirectly secure workers compensation coverage for its employees by reimbursing a timber company, for whom the employer was a subcontractor, for the workers compensation coverage it obtained for the employer’s employees. The court rejected the employer’s argument that it was entitled to “down-the-line” immunity because it assumed that it was the legislative intent not to create this immunity. Lamar v. Thomas Fowler Trucking, Inc., 956 So. 2d 911, 2006 Miss. App. LEXIS 249 (Miss. Ct. App. 2006), aff'd, 956 So. 2d 878, 2007 Miss. LEXIS 279 (Miss. 2007).

49. Wage-earning potential.

Administrative law judge (ALJ) and the Workers’ Compensation Commission both failed to recognize that the claimant’s return to work created a rebuttable presumption that the claimant suffered no loss of earning capacity. The ALJ committed legal error by failing to recognize this presumption, and the Commission and the appellate court failed to correct the error. Hudspeth Reg'l Ctr. v. Mitchell, 202 So.3d 609, 2016 Miss. LEXIS 438 (Miss. 2016).

Mississippi Workers’ Compensation Commission’s finding that there was no loss of wage-earning capacity was supported by substantial evidence because the evidence showed that the claimant could have returned to the claimant’s previous job had there been a job available, and that the claimant could have found employment earning the same amount of pre-injury income. Whiddon v. Southern Concrete Pumping, LLC, 114 So.3d 18, 2013 Miss. App. LEXIS 208 (Miss. Ct. App. 2013).

Denial of permanent partial disability benefits to the employee in a workers’ compensation action was improper because his post-injury income would have been higher but for a climbing restriction and therefore, the Workers’ Compensation Commission erred by finding that the injury had no impact on his wage-earning potential. Gregg v. Natchez Trace Elec. Power Ass'n, 64 So.3d 473, 2011 Miss. LEXIS 280 (Miss. 2011).

OPINIONS OF THE ATTORNEY GENERAL

County jail inmates working on city property are not “employees” within meaning of Section 71-3-7 so as to render city liable for worker’s compensation coverage of such individuals. Navarro, July 29, 1992, A.G. Op. #92-0555.

Workers’ compensation would cover the expenses for employees who become ill as a result of smallpox vaccination, and the fact that the vaccine is not licensed when administered would not affect the coverage. Thompson, Sept. 18, 2002, A.G. Op. #02-0549.

RESEARCH REFERENCES

ALR.

Workmen’s compensation: Injury while crossing or walking along railroad or street railway tracks, going to or from work, as arising out of and in the course of employment. 50 A.L.R.2d 363.

Suicide as compensable under Workmen’s Compensation Act. 15 A.L.R.3d 616.

Insured’s receipt of or right to workmen’s compensation benefits as affecting recovery under accident, hospital, or medical expense policy. 40 A.L.R.3d 1012.

Workmen’s compensation: injury or death due to storms. 42 A.L.R.3d 385.

Liability of one causing physical injuries as a result of which injured party attempts or commits suicide. 77 A.L.R.3d 311.

Workers’ compensation: sexual assaults as compensable. 52 A.L.R.4th 731.

Right to jury trial in action for retaliatory discharge from employment. 52 A.L.R.4th 1141.

Workers’ compensation: incarceration as terminating benefits. 54 A.L.R.4th 241.

Workers’ compensation: injuries incurred while traveling to or from work with employer’s receipts. 63 A.L.R.4th 253.

Workers’ compensation: effect of allegation that injury was caused by, or occurred during course of, worker’s illegal conduct. 73 A.L.R.4th 270.

Workers’ compensation: compensability of injuries incurred traveling to or from medical treatment of earlier compensable injury. 83 A.L.R.4th 110.

Worker’s compensation: coverage of injury occurring in parking lot provided by employer, while employee was going to or coming from work. 4 A.L.R.5th 443.

Worker’s compensation: coverage of injury occurring between workplace and parking lot provided by employer, while employee is going to or coming from work. 4 A.L.R.5th 585.

Workers’ compensation: compensability of injury during tryout, employment test, or similar activity designed to determine employability. 8 A.L.R.5th 798.

Right to workers’ compensation for injuries suffered after termination of employment. 10 A.L.R.5th 245.

Workers’ compensation: coverage of employer’s injury or death from exposure to the elements–modern cases. 20 A.L.R.5th 346.

Presumption or inference that accidental death of employee engaged in occupation of manufacturing or processing arose out of and in course of employment. 47 A.L.R.5th 801.

Workers’ compensation as precluding employee’s suit against employer for sexual harassment in the workplace. 51 A.L.R.5th 163.

Right to Workers’ Compensation For Emotional Distress or Like Injury Suffered by Claimant as Result of Sudden Stimuli Involving Nonpersonnel Action – Compensability Under Particular Circumstances. 84 A.L.R.5th 249.

Right to workers’ compensation for emotional distress or like injury suffered by claimant as a result of sudden emotional stimuli involving personnel action. 82 A.L.R.5th 149.

Right to workers’ compensation for emotional distress or like injury suffered by claimant as result of nonsudden stimuli – Requisites of, and factors affecting, compensability. 106 A.L.R.5th 111.

Right to workers’ compensation for physical injury or illness suffered by claimant as result of sudden mental stimuli – Compensability under particular circumstances. 107 A.L.R.5th 441.

Right to workers’ compensation for emotional distress or like injury suffered by claimant as result of nonsudden stimuli – Compensability under particular circumstances. 108 A.L.R.5th 1.

Right to workers’ compensation for physical injury or illness suffered by claimant as result of sudden mental stimuli – Right to compensation under particular statutory provisions and requisites of, and factors affecting, compensability. 109 A.L.R.5th 161.

Right to workers’ compensation for physical injury or illness suffered by claimant as result of nonsudden mental stimuli – Compensability of particular physical injuries or illnesses. 112 A.L.R.5th 509.

Compensability under occupational disease statutes of emotional distress or like injury suffered by claimant as result of nonsudden stimuli. 113 A.L.R.5th 115.

Right to workers’ compensation for physical injury or illness suffered by claimant as result of nonsudden mental stimuli – Requisites of, and factors affecting, compensability. 13 A.L.R.6th 209.

Right to workers’ compensation for injury suffered by worker en route to or from worker’s home where home is claimed as “work situs.” 15 A.L.R.6th 633.

Construction and Application of State Workers’ Compensation Laws to Claim for Hearing Loss – Resulting from Single Traumatic Accident or Event. 90 A.L.R.6th 425.

Am. Jur.

82 Am. Jur. 2d, Workers’ Compensation §§ 192 et seq.

82 Am. Jur. 2d, Workers’ Compensation §§ 413 et seq.

28 Am. Jur. Proof of Facts 213, Employee’s Injury or Death from Tornado or Other Violent Windstorm.

30 Am. Jur. Proof of Facts 183, Employee’s Injury or Death from Natural Phenomena – Lightning.

10 Am. Jur. Proof of Facts 2d 505, Accident Occurring in Course of Employment-“Dual Purpose” Doctrine.

10 Am. Jur. Proof of Facts 3d 669, Worker’s Compensation–Compensable Coronary Episode (Heart Attack).

10 Am. Jur. Proof of Facts 3d 757, Peripheral and Cranial Nerve Injury Due to Trauma.

11 Am. Jur. Proof of Facts 3d 1, Dental Injuries.

CJS.

99 C.J.S., Workers’ Compensation §§ 288, 289 et seq.

Law Reviews.

1981 Mississippi Supreme Court Review: Administrative Law. 52 Miss. L. J. 377, June 1982.

1982 Mississippi Supreme Court Review: Administrative Law: Workmen’s Compensation. 53 Miss. L. J. 113, March 1983.

1985 Mississippi Supreme Court Review-Administrative Law. 55 Miss. L. J. 735, December 1985.

1987 Mississippi Supreme Court Review, Workers’ compensation. 57 Miss. L. J. 429, August, 1987.

1989 Mississippi Supreme Court Review: Workers’ Compensation. 59 Miss. L. J. 789, Winter, 1989.

Sands, Recent Decision: Workers’ Compensation–Statutory Immunity–General Contractors and Subcontractors Immune From Common Law Suits Brought by Insured Subsubcontractor’s Employees. 67 Miss. L. J. 359, Fall, 1997.

Practice References.

Bender’s Labor and Employment Bulletin (Matthew Bender).

Labor and Employment Law (Matthew Bender).

Larson’s Workers’ Compensation Desk Edition (Matthew Bender).

Larson’s Workers’ Compensation Law (Matthew Bender).

Mississippi Workers’ Compensation Laws and Rules Annotated, 2010 Edition with CD-ROM (Michie).

§ 71-3-9. Exclusiveness of liability.

[Effective until July 1, 2021, this section will read:]

The liability of an employer to pay compensation shall be exclusive and in place of all other liability of such employer to the employee, his legal representative, husband or wife, parents, dependents, next-of-kin, and anyone otherwise entitled to recover damages at common law or otherwise from such employer on account of such injury or death, except that if an employer fails to secure payment of compensation as required by this chapter, an injured employee, or his legal representative in case death results from the injury, may elect to claim compensation under this chapter, or to maintain an action at law for damages on account of such injury or death. In such action the defendant may not plead as a defense that the injury was caused by the negligence of a fellow servant, nor that the employee assumed the risk of his employment, nor that the injury was due to the contributory negligence of the employee.

HISTORY: Codes, 1942, § 6998-05; Laws, 1948, ch. 354, § 5; reenacted without change, Laws, 1982, ch. 473, § 5; reenacted without change, Laws, 1990, ch. 405, § 5, eff from and after July 1, 1990.

Amendment Notes —

The 2019 amendment, effective July 1, 2021, added the exception at the beginning of (1); and added (2).

Cross References —

Application of this section to actions by and against electric utilities arising out of injuries resulting from contact with high voltage overhead lines, see §45-15-13.

Mississippi First Responders Health and Safety Act, see §25-15-401 et seq.

JUDICIAL DECISIONS

1. In general.

2. Election to sue.

3. Employer-employee relationship.

4. Action against compensation carrier.

5. Action for wrongful death.

6. Third-party action.

7. Willful acts of employer or co-employee.

8. Negligent infliction of emotional distress.

8.5. Intentional infliction of emotional distress.

9. Immunity extended to co-workers.

1. In general.

Language in the uninsured motorist statute, Miss. Code Ann. §83-11-101, as well as the insured’s UM policy, required that the insured be legally entitled to recover from the owner or operator of the uninsured vehicle; since that insured could not bring a legal action against the co-employee at the time of the accident under Miss. Code Ann. §71-3-9, he was not entitled to recover UM benefits from his insurer. Steen v. Metro. Prop. & Cas. Ins. Co., 858 So. 2d 186, 2003 Miss. App. LEXIS 991 (Miss. Ct. App. 2003).

Employee’s claim against his employer for bad faith failure to pay worker’s compensation benefits was not barred by the exclusivity provision in Miss. Code Ann. §71-3-9 after a settlement of the claim had been approved by the Mississippi Workers' Compensation Commission. Miss. Power & Light Co. v. Cook, 832 So. 2d 474, 2002 Miss. LEXIS 399 (Miss. 2002).

Movie production company was not liable to its purported employees as the actress suing for benefits after she settled with the movie production company on her workers’ compensation claim did not show the purported employees were not her co-employees who enjoyed, pursuant to Miss. Code Ann. §71-3-9, the same immunity the movie production company received once it settled its workers’ compensation claim with her. Wingerter v. Bhd. Prods., Inc., 822 So. 2d 300, 2002 Miss. App. LEXIS 8 (Miss. Ct. App. 2002).

Material issue of fact existed as to whether physician was employee of hospital, precluding summary judgment based on exclusivity of Workers’ Compensation Act in third party action by hospital against corporation that provided physician, arising out of malpractice claim against physician and hospital brought by patient who was claimed to be hospital employee. Russell v. Orr, 700 So. 2d 619, 1997 Miss. LEXIS 508 (Miss. 1997).

Material issue of fact existed as to whether patient was employee of hospital, precluding summary judgment for physician and hospital on patient’s malpractice claim based on exclusivity of Workers' Compensation Act. Russell v. Orr, 700 So. 2d 619, 1997 Miss. LEXIS 508 (Miss. 1997).

Even if physician and patient were employees of hospital, material issue of fact existed as to whether patient sought treatment as member of general public or in course of her employment, precluding summary judgment for physician and hospital on patient’s malpractice claim based on co-employee status or exclusivity feature of Workers' Compensation Act. Russell v. Orr, 700 So. 2d 619, 1997 Miss. LEXIS 508 (Miss. 1997).

Prime contractor was statutory employer of sub-subcontractor’s employee, and thus, was immune from liability under Workers’ Compensation Act’s exclusivity of remedy provision in negligence action brought by injured employee, where sub-subcontractor provided compensation coverage to its employees pursuant to its contract with prime contractor. Bradshaw v. Rudder, 227 Miss. 143, 85 So. 2d 778, 1956 Miss. LEXIS 665 (Miss. 1956).

Employees covered for workers’ compensation by a temporary employment agency were barred by the exclusive remedy provisions of the Workers’ Compensation Act from recovering against the entity for which the services were actually performed. Northern Elec. Co. v. Phillips, 660 So. 2d 1278, 1995 Miss. LEXIS 374 (Miss. 1995).

The existence of a contract for indemnity changes the applicability of the exclusivity provision of the Workers’ Compensation Act; the enforcement of an indemnity clause which was freely entered into does not impugn the beneficent purposes of the Act because the employee will still be compensated. Heritage Cablevision v. New Albany Elec. Power Sys., 646 So. 2d 1305, 1994 Miss. LEXIS 599 (Miss. 1994).

It was not necessary to join Mississippi city as “phantom party” defendant in suit by city employee alleging injury as result of corporation’s release of certain substances into city sewer system, so that jury could fully apportion fault under §85-5-7 even though plaintiff could not sue city directly and corporation could not seek contribution from city, as result of mandate of §71-3-9. Statute did not contain clear command that alleged joint-tortfeasors be joined in such a way. White v. Esmark Apparel, 788 F. Supp. 907, 1992 U.S. Dist. LEXIS 5771 (N.D. Miss. 1992), aff'd, in part, 44 F.3d 1005, 1995 U.S. App. LEXIS 772 (5th Cir. Miss. 1995).

Exclusivity provisions of Workers’ Compensation Act preclude consortium claim by wife of injured claimant in actions falling within scope of Act. Stevens v. FMC Corp., 515 So. 2d 928, 1987 Miss. LEXIS 2883 (Miss. 1987).

Intent of legislature was that any common-law recovery or settlement was to be credited toward employer’s or insurer’s liability; liability cannot be imposed on employer under both common-law and Workers’ Compensation Act, as entitlement to one excludes other; decedent was either injured while acting in course and scope of employment thereby making employer liable under Worker’s Compensation Act, or was injured while not acting in course of employment thereby possibly rendering employer liable under common-law negligence liability; therefore, sums paid in settlement of common-law action against employer and co-employees are to be credited against employer’s obligation under Worker's Compensation Act. Sawyer v. Head, 510 So. 2d 472, 1987 Miss. LEXIS 2427 (Miss. 1987).

An electrician who was employed by two companies simultaneously was not entitled to a judgment in an action for personal injuries against one of the companies where he had obtained settlement of a workman’s compensation claim against the second company. Ray v. Babcock & Wilcox Co., 388 So. 2d 166, 1980 Miss. LEXIS 2101 (Miss. 1980).

The signing of an application for group insurance benefits is a factor to be considered in determining whether an injury was work connected or arose out of a pre-existing condition, but it is not per se a bar to a claim under the Workmen’s Compensation Law where the facts are in dispute. Central Electric & Machinery Co. v. Shelton, 220 So. 2d 320, 1969 Miss. LEXIS 1454 (Miss. 1969).

The requirement that an employer must secure payment of compensation means that he must have in effect an insurance policy complying with the Workmen’s Compensation Law, or that he must qualify as a self-insurer. Taylor v. Crosby Forest Products Co., 198 So. 2d 809, 1967 Miss. LEXIS 1271 (Miss. 1967).

Where the employer secured the payment of compensation to his employees by qualifying as a self-insurer, the remedy of an employee arises only under the Workmen’s Compensation Law, and that statutory remedy being exclusive, no action at law is available to the employee. Taylor v. Crosby Forest Products Co., 198 So. 2d 809, 1967 Miss. LEXIS 1271 (Miss. 1967).

A claim for disability under the compensation law is not a suit to recover damages growing out of an industrial injury, but is compensation for loss of earnings as a result of an industrial injury, or the loss to the dependents of a worker because of his death. Thyer Mfg. Co. v. Mooney, 252 Miss. 629, 173 So. 2d 652, 1965 Miss. LEXIS 1134 (Miss. 1965).

An employer’s liability under the Workmen’s Compensation Law is not affected by his failure to obtain insurance. Dependents of Dawson v. Delta Western Exploration Co., 245 Miss. 335, 147 So. 2d 485, 1962 Miss. LEXIS 556 (Miss. 1962).

This section [Code 1942, § 6998-05] deprives the employee of his common-law right of action against the employer for compensatory damages. L. B. Priester & Son, Inc. v. Bynum, 244 Miss. 185, 137 So. 2d 907, 1962 Miss. LEXIS 438 (Miss. 1962).

An employer’s purchase of a $5,000 policy on the life of an employee did not release him from liability to the widow and dependents of the employee for benefits they were entitled to under the Workmen’s Compensation Law following the death of the employee in the course of employment. Riddell v. Estate of Cagle, 227 Miss. 305, 85 So. 2d 926, 1956 Miss. LEXIS 689 (Miss. 1956).

Immunity to common-law suits is extended to statutory employers who come within the provisions of Code 1942, § 6998-04. Mosley v. Jones, 224 Miss. 725, 80 So. 2d 819, 1955 Miss. LEXIS 535 (Miss. 1955).

2. Election to sue.

Because the court of appeals decided as a matter of law that the employee was acting in the course and scope of his employment when he was injured, that his injuries were not the result of an intentional tort, and that his injuries were compensable under the Mississippi Workers’ Compensation Act, the exclusivity provision of the act barred his tort claims against the employer, and the trial court erred when it denied the employer’s motion for summary judgment. Hurdle v. Holloway, 848 So. 2d 183, 2003 Miss. LEXIS 293 (Miss. 2003).

Wrongful death action was remanded because there was an arguably reasonable basis that a sub-subcontractor who did not have workers’ compensation insurance, but whose employees were covered by a statutory employer, was not entitled to the protection of the Workers’ Compensation Act’s exclusivity provision, Miss. Code Ann. §71-3-9, and thus was not fraudulently joined. Culpepper v. Double R, Inc., 269 F. Supp. 2d 739, 2003 U.S. Dist. LEXIS 11513 (S.D. Miss. 2003).

Remand was denied because claims against resident managers for personal injuries from exposure to vinyl chloride were actually negligence claims barred by the exclusivity provision of the Mississippi Workers’ Compensation Act, Miss. Code Ann. §71-3-9, and thus the managers were fraudulently joined. Frye v. Airco, Inc., 269 F. Supp. 2d 743, 2003 U.S. Dist. LEXIS 11530 (S.D. Miss. 2003).

Two elements were necessary for an injured employee to avoid the Mississippi workers’ compensation exclusive liability provision: (1) the injury must have been caused by the willful act of another employee acting in the course of employment and in furtherance of the employee’s business, and (2) the injury had to be one that was not compensable under the Workers’ Compensation Act; where the elements were met, then it was appropriate to pursue a claim outside of the confines of the statute. Lewallen v. Slawson, 822 So. 2d 236, 2002 Miss. LEXIS 92 (Miss. 2002).

Claimant may not collect on tort claim against employer or co-employee if evidence shows he is entitled to worker’s compensation benefits arising out of same occurrence, although there is nothing wrong with pursuing both remedies when benefits under both are denied. Sawyer v. Head, 510 So. 2d 472, 1987 Miss. LEXIS 2427 (Miss. 1987).

The Workmen’s Compensation Law affords the exclusive remedy as between employers and employees, except that a claimant, if the employer does not secure compensation, may elect to claim benefits under the Law or sue at law, and if the latter course is pursued the negligence of a fellow servant, the assumption of risk, and contributory negligence cannot be interposed as defenses. Riddell v. Estate of Cagle, 227 Miss. 305, 85 So. 2d 926, 1956 Miss. LEXIS 689 (Miss. 1956).

The Workmen’s Compensation Law does not make good faith of an employer in attempting to secure compensation insurance the test in determining whether an employee can sue at common law. McCoy v. Cornish, 220 Miss. 577, 71 So. 2d 304, 1954 Miss. LEXIS 474 (Miss. 1954).

When accident happened to an employee, the employer had no compensation insurance and did not apply to the commission for a policy under the assigned risk plan, the employee had a right to bring a common-law action for damages in view of the fact that the employer failed to comply with the Workmen's Compensation Law. McCoy v. Cornish, 220 Miss. 577, 71 So. 2d 304, 1954 Miss. LEXIS 474 (Miss. 1954).

3. Employer-employee relationship.

Company did not waive its exclusive remedy defense because the issue had been at the forefront of the litigation throughout; the company’s third-party complaint made clear that the worker’s status as an employee or independent contractor was a central issue and its affirmative defense in the case, and the company never abandoned the issue in any sense or actively seek to litigate the underlying merits of the worker’s claim. Fortner v. Specialty Contr., LLC, 217 So.3d 736, 2017 Miss. App. LEXIS 54 (Miss. Ct. App. 2017).

Doctrines of quasi-estoppel and equitable estoppel did not bar a company from denying that a worker was an independent contractor because the worker failed to articulate how he relied to his detriment on any representation by the company to show that it took inconsistent positions and that the company benefitted from any inconsistent position; the company’s failure to file a timely notice of the worker’s injury did not estop it from raising the exclusive remedy provision as a defense. Fortner v. Specialty Contr., LLC, 217 So.3d 736, 2017 Miss. App. LEXIS 54 (Miss. Ct. App. 2017).

Circuit court properly granted a company summary judgment in a worker’s action alleging it was liable for its employee’s negligence because his exclusive remedy was under the Workers’ Compensation Law; the nature of the work was that of an employee covered by the Law because the work did not involve any particular skill or training, and the worker was not in the business of offering similar services to other entities as part of his own independent business. Fortner v. Specialty Contr., LLC, 217 So.3d 736, 2017 Miss. App. LEXIS 54 (Miss. Ct. App. 2017).

Coverage under the Workers’ Compensation Law is not limited to employees who work directly with the owner of the business. Fortner v. Specialty Contr., LLC, 217 So.3d 736, 2017 Miss. App. LEXIS 54 (Miss. Ct. App. 2017).

Worker’s exclusive remedy was under the Workers’ Compensation Law because pursuant to the “control test,” the worker was a company’s employee not an independent contractor; the company had the right to control the work and it exercised that right, the worker was paid a regular daily wage rather than a fixed fee for some project or job, and the company provided all necessary tools and could have fired him at any time. Fortner v. Specialty Contr., LLC, 217 So.3d 736, 2017 Miss. App. LEXIS 54 (Miss. Ct. App. 2017).

Owner of a petroleum refinery plant was not immune from a negligence action filed by a contractor’s employee, and thus, it was subject to the employee’s tort claim as “any other party,” because it was not statutory employer of the employee; the owner had no duty as an employer or contractor to secure workers’ compensation insurance, and its act of voluntarily purchasing coverage did not change its status. Thomas v. Chevron U.S.A., Inc., 212 So.3d 58, 2017 Miss. LEXIS 27 (Miss. 2017).

Because the subcontractor could not be considered an “employee” of the department store company, it was not entitled to tort immunity under the exclusivity provision of the Workers’ Compensation Act, Miss. Code Ann. §71-3-9. The subcontractor was in a much better position than a mere employee to distribute the cost of potential tort liability within the enterprise, as the subcontractor could include in its contract bid a price increase which reflected possible tort liability which would be passed on to the company as a cost of doing business. Durr v. MBS Constr. Corp., 665 F. Supp. 2d 700, 2009 U.S. Dist. LEXIS 84398 (S.D. Miss. 2009).

Because defendant office owner lacked the control over plaintiff worker required to show an employment relationship and merely had a customer relationship with the worker’s employer cleaning service, the dual employment and borrowed servant doctrines did not apply and the owner had no immunity under Miss. Code Ann. §71-3-9 as to the worker’s injury. Mims v. Renal Care Group, Inc., 395 F. Supp. 2d 458, 2005 U.S. Dist. LEXIS 36725 (S.D. Miss.), vacated, 399 F. Supp. 2d 740, 2005 U.S. Dist. LEXIS 41099 (S.D. Miss. 2005).

Trial court’s judgment was reversed and rendered to remove the jury’s allocation of contributory negligence as the employer conceded on appeal that the individual was an employee, and contributory negligence was not available as a defense under Miss. Code Ann. §71-3-9 as the employer had not maintained workers’ compensation insurance. Renfroe v. Berryhill, 910 So. 2d 624, 2005 Miss. App. LEXIS 154 (Miss. Ct. App. 2005).

Where the decedent’s employer agreed under the subcontract with the contractor to provide workers’ compensation coverage to the employees, and the employer did so, the contractor was entitled to summary judgment pursuant to Miss. R. Civ. P. 56 in the decedent’s heirs’ wrongful death action; construing Miss. Code Ann. §71-3-7, relating to a contractor’s obligation to provide workers’ compensation coverage, and Miss. Code Ann. §71-3-9, the workers’ compensation exclusivity provision, together, it was determined that where the employer provided compensation coverage to its employees pursuant to the contract with the contractor, the contractor qualified as a statutory employer and was immune from tort liability claims by the heirs. Thornton v. W. E. Blain & Sons, Inc., 878 So. 2d 1082, 2004 Miss. App. LEXIS 715 (Miss. Ct. App. 2004).

Prime contractor was statutory employer of sub-subcontractor’s employee, and thus, was immune from liability under Workers’ Compensation Act’s exclusivity of remedy provision in negligence action brought by injured employee, where sub-subcontractor provided compensation coverage to its employees pursuant to its contract with prime contractor. Bradshaw v. Rudder, 227 Miss. 143, 85 So. 2d 778, 1956 Miss. LEXIS 665 (Miss. 1956).

The defendant was the plaintiff’s statutory employer for purposes of the exclusivity provision of the Workers’ Compensation Act (§71-3-9) where (1) the plaintiff was originally employed by a temporary employment agency, which placed her in the job with the defendant, (2) the defendant controlled the performance of the work, the plaintiff acquiesced in the situation, and the plaintiff’s original employer temporarily terminated its relationship with the plaintiff while she worked for the defendant, (3) the defendant furnished the premises and materials necessary for the plaintiff’s work, (4) the defendant had a right to discharge the plaintiff, and (5) the plaintiff was paid by her original employer, which passed the costs on to the defendant. Honey v. United Parcel Serv., 879 F. Supp. 615, 1995 U.S. Dist. LEXIS 3307 (S.D. Miss. 1995).

Representatives of deceased employee were not barred by exclusiveness of remedies provision in Miss Code §71-3-9 from maintaining action against wholly-owned subsidiary of decedent’s employer for negligence, where parties presented no evidence suggesting that subsidiary’s corporate identity should be disregarded because of fraud or injustice and facts did not present proper question of piercing corporate veil because subsidiary was being sued for its own acts of alleged negligence, and not acts of parent company. Porter v. Beloit Corp., 667 F. Supp. 367, 1987 U.S. Dist. LEXIS 7776 (S.D. Miss. 1987).

Injured employee may not circumvent Workers’ Compensation Act on basis of dual capacity doctrine; employer is not liable in tort to injured employee when employer assumes identity separate and apart from role as employer; employer who designs, manufactures or distributes product used by its employees cannot be held liable to injured employee on theory of products liability. Rader v. U.S. Rubber Reclaiming Co., 617 F. Supp. 1045, 1985 U.S. Dist. LEXIS 15521 (S.D. Miss. 1985).

General contractor and subcontractor were entitled to immunity under exclusive remedy provision of workers’ compensation statute in negligence action brought against them by employee of sub-subcontractor, where sub-subcontractor had workers’ compensation insurance for its injured employees. Crowe v. Brasfield & Gorrie Gen. Contr., 688 So. 2d 752, 1996 Miss. LEXIS 691 (Miss. 1996).

A pipeline operator which contracted with an injured welder’s employer for the construction of a pipeline was not immune from tort liability on the ground of the “statutory employer” defense; since the pipeline operator was not a “contractor,” and because the employer had secured compensation for the welder’s benefit, the Workers’ Compensation Act imposed no duty on the pipeline operator and, accordingly, the pipeline operator enjoyed no benefits under the Act. The pipeline operator could not gain tort immunity by assuming compensation obligations which in fact and in law it did not have. Magee v. Transcontinental Gas Pipe Line Corp., 551 So. 2d 182, 1989 Miss. LEXIS 365 (Miss. 1989).

Negligence action by employee of drilling company who was injured when part of drilling rig fell on him, against company which transported rig to drilling site, is precluded by exclusive remedy provision of Mississippi Workers’ Compensation Act (§§71-3-1 et seq.), since transport company employees were “loaned servants” of drilling company, and since any negligence attributable to transport company employees occurred while they were under supervision of drilling company. Taylor v. Kay Lease Service, Inc., 761 F.2d 1107, 1985 U.S. App. LEXIS 30089 (5th Cir. Miss. 1985).

A convenience store clerk, who was raped in the course of a store robbery, was injured as a consequence of conditions brought about by risks of the work environment, and thus her exclusive remedy was under Miss Code §71-3-9. Williams v. Munford, Inc., 683 F.2d 938, 1982 U.S. App. LEXIS 16296 (5th Cir. Miss. 1982).

Notwithstanding substantial doubt as to the assertion of the defendant driver that the plaintiff passengers were in his employ at the time of the collision, evidence, including receipt by the plaintiff of substantial compensation benefits, warranted a jury submission on their employment status, which was critical to a determination whether the rights of the plaintiffs were limited by the Workmen’s Compensation Law and whether an employer-employee relationship was an absolute bar to their Mississippi damage suit. Dicks v. Cleaver, 433 F.2d 248, 1970 U.S. App. LEXIS 7334 (5th Cir. Miss. 1970).

A defendant who has successfully defended an action for personal injuries, resulting from a beating the plaintiff received from defendant’s foreman, on the ground that the relationship of employer-employee existed between defendant and plaintiff, cannot thereafter challenge the applicability of the Workmen’s Compensation Law to the plaintiff’s claim; provided claim for benefits is timely filed within the time extended by Code 1942, § 6998-18(c) beginning with the date of the order dismissing plaintiff’s appeal. Seal v. Industrial Electric, Inc., 395 F.2d 214, 1968 U.S. App. LEXIS 6987 (5th Cir. Miss. 1968).

The exclusive remedy of the plaintiff truck driver for injuries sustained as a consequence of a collision with a truck owned by the defendant gravel pit owner was under the Workmen’s Compensation Law, where the plaintiff was employed by a truck owner who had contracted to haul sand and gravel for the gravel pit owner under an oral agreement terminable at will by either party and under which the pit owner determined the time, place, method of loading, the destination of trucks, and the method of furnishing evidence of delivery, and the pit owner and the truck owner both carried workmen’s compensation insurance; for an employer-employee relationship existed between the pit owner and the injured truck driver. Stubbs v. Green Bros. Gravel Co., 206 So. 2d 323, 1968 Miss. LEXIS 1562 (Miss. 1968).

The immunity from tort liability conferred by this section [Code 1942, § 6998-05] does not extend to a corporation owned by the owners of the employer corporation and engaged in related activities. Index Drilling Co. v. Williams, 242 Miss. 775, 137 So. 2d 525, 1962 Miss. LEXIS 593 (Miss. 1962).

Immunity from tort liability does not exist in the case of injury to a loaned employee with whom no contract of hire has been made. Index Drilling Co. v. Williams, 242 Miss. 775, 137 So. 2d 525, 1962 Miss. LEXIS 593 (Miss. 1962).

Whether the relation between the mover of oil well drilling equipment and a member of the driller’s crew who was injured while lending a hand to the mover in placing equipment was that of master and servant, so as to preclude an action for negligence, held to be for trier of the fact. Clark v. Luther McGill, Inc., 240 Miss. 509, 127 So. 2d 858, 1961 Miss. LEXIS 481 (Miss. 1961).

A solicitor of magazine subscriptions was not precluded by this section [Code 1942, § 6998-05] from bringing an action against her employer for the alleged assault and battery committed upon her by another alleged employee, since under subsection (4) of Code 1942, § 6998-02 [now subsection (d) of Code 1972, §71-3-3], the solicitor was not an employee. Richards v. Blaine, 234 Miss. 519, 107 So. 2d 101, 1958 Miss. LEXIS 526 (Miss. 1958); Statham v. Blaine, 234 Miss. 649, 107 So. 2d 93, 1959 Miss. LEXIS 575 (Miss. 1959).

4. Action against compensation carrier.

Where an employee asserted an action against a worker’s compensation insurer because of the insurer’s intentional bad-faith refusal to pay worker’s compensation when due, Mississippi law applied because, inter alia, an insurer’s intentional bad-faith refusal to pay worker’s compensation timely is an independent tort committed by the insurer outside of the scope of the worker’s employment and it is legally distinct from and independent of any claims arising under the Mississippi Workers’ Compensation Act, and Mississippi had the most significant relationship to the intentional tort suit. Williams v. Liberty Mut. Ins. Co., 741 F.3d 617, 2014 U.S. App. LEXIS 1726 (5th Cir. Miss. 2014).

The statute does not bar a claim by an employee against the employer’s insurance carrier for the bad faith refusal to pay workers’ compensation benefits. Liberty Mut. Ins. Co. v. McKneely, 2001 Miss. App. LEXIS 157 (Miss. Ct. App. Apr. 17, 2001), rev'd, 862 So. 2d 530, 2003 Miss. LEXIS 691 (Miss. 2003).

Under Mississippi law, proof of intentional tort is required to circumvent exclusive remedies available under Workers’ Compensation Law; allegations sounding in negligence are inadequate. Rogers v. Hartford Accident & Indem. Co., 133 F.3d 309, 1998 U.S. App. LEXIS 442 (5th Cir. Miss. 1998).

Physician who settled with plaintiff during trial of medical malpractice action should not have been mentioned at all in judgment with respect to remaining defendants, though that physician was included in special interrogatories submitted to jury for purposes of determining damages and apportioning fault among defendants, where physician had been dismissed from action via agreed order of dismissal with prejudice. Krieser v. Baptist Mem. Hospital-North Miss., 984 F. Supp. 463, 1997 U.S. Dist. LEXIS 20585 (N.D. Miss. 1997), aff'd, in part, modified, 166 F.3d 736, 1999 U.S. App. LEXIS 1642 (5th Cir. Miss. 1999).

Under Mississippi law, nonsettling defendant, which was found 50% liable for patient’s death in medical malpractice action, was responsible for $100,000 of $200,000 verdict and was not entitled to credit for $650,000 settlement which plaintiff had reached during trial with another defendant; crediting nonsettling defendant with settlement would undermine intention of jury to hold nonsettling defendant accountable and would violate public policy. Krieser v. Baptist Mem. Hospital-North Miss., 984 F. Supp. 463, 1997 U.S. Dist. LEXIS 20585 (N.D. Miss. 1997), aff'd, in part, modified, 166 F.3d 736, 1999 U.S. App. LEXIS 1642 (5th Cir. Miss. 1999).

Exception to exclusivity of Workers Compensation Act remedy has been held to exist in actions by injured employees against carriers for independent intentional torts, but in those cases alleged tortious conduct occurred independent of and subsequent to workplace injury. Stevens v. FMC Corp., 515 So. 2d 928, 1987 Miss. LEXIS 2883 (Miss. 1987).

An employee’s action, charging bad faith, malice and an intentional tort in failing to pay compensation for injuries adjudicated to be compensable, could be maintained against a worker’s compensation carrier and its agent, notwithstanding the provisions of §71-3-9. Leathers v. Aetna Casualty & Surety Co., 500 So. 2d 451, 1986 Miss. LEXIS 2886 (Miss. 1986).

The exclusive remedy provision of the Mississippi Worker’s Compensation Act does not preclude a claimant’s action against an insurance carrier based on the carrier’s independent and alleged tortious breach of contract. McCain v. Northwestern Nat'l Ins. Co., 484 So. 2d 1001, 1986 Miss. LEXIS 2388 (Miss. 1986).

Exclusivity provision of Workers’ Compensation Act (§71-3-9) does not bar action by injured worker against carrier, predicated upon carrier’s intentional refusal to pay workers’ compensation medical and weekly compensation benefits notwithstanding admitted residual permanent disability. Southern Farm Bureau Casualty Ins. Co. v. Holland, 469 So. 2d 55, 1984 Miss. LEXIS 2054 (Miss. 1984).

5. Action for wrongful death.

Employer waived an exclusivity defense in a wrongful death suit because (1) exclusivity was an affirmative defense, as the defense would have terminated the litigation, and, (2) while the employer raised the defense in an answer, the employer did not raise the defense again until moving for summary judgment after actively participating in the litigation for more than 26 months, and the record suggested no extreme and unusual circumstances justifying the delay in bringing the defense to the court’s attention and requesting a hearing. Hanco Corp. v. Goldman, 178 So.3d 709, 2015 Miss. LEXIS 467 (Miss. 2015).

Record sufficiently evinced that a convenience store owner had secured payment of compensation to its statutory employees as required by the Mississippi Workers’ Compensation Act, and was thus immune from the decedent’s daughter’s wrongful death claim, where the daughter did not dispute that the owner had effective workers’ compensation insurance for its employees at the relevant time, the owner had provided notice to the insurance carrier of the death, but the decedent’s beneficiaries claimed that he was not an employee. Washington v. Tem's Junior, Inc., 981 So. 2d 1047, 2008 Miss. App. LEXIS 267 (Miss. Ct. App. 2008).

Daughter of decedent, who was killed while hauling logs for a subcontractor, was not entitled to bring a workers’ compensation claim, pursuant to Miss. Code Ann. §71-3-9 because workers’ compensation payments were the exclusive remedy, and subcontractor had secured payment of compensation in compliance with Miss. Code Ann. §71-3-7. Lamar v. Thomas Fowler Trucking, Inc., 956 So. 2d 878, 2007 Miss. LEXIS 279 (Miss. 2007).

Decedent’s employer was not entitled to immunity from suit under Miss. Code Ann. §71-3-7 because it did not indirectly secure workers compensation coverage for its employees by reimbursing a timber company, for whom the employer was a subcontractor, for the workers compensation coverage it obtained for the employer’s employees. The court rejected the employer’s argument that it was entitled to “down-the-line” immunity because it assumed that it was the legislative intent not to create this immunity. Lamar v. Thomas Fowler Trucking, Inc., 956 So. 2d 911, 2006 Miss. App. LEXIS 249 (Miss. Ct. App. 2006), aff'd, 956 So. 2d 878, 2007 Miss. LEXIS 279 (Miss. 2007).

Employer was properly granted summary judgment in the decedent’s daughter’s wrongful death action because the daughter had already elected her remedy at the time she filed her lawsuit under Miss. Code Ann. §71-3-9 by accepting and failing to return the workers compensation benefits paid by the timber company, for whom the employer was a subcontractor. Lamar v. Thomas Fowler Trucking, Inc., 956 So. 2d 911, 2006 Miss. App. LEXIS 249 (Miss. Ct. App. 2006), aff'd, 956 So. 2d 878, 2007 Miss. LEXIS 279 (Miss. 2007).

Assertion by the administrator of an employee’s estate that an employer’s failure to act for the employee’s protection, in the face of information about a co-worker who went on a shooting rampage was an intentional tort so that the exclusivity bar of Mississippi’s Workers’ Compensation Act was inapplicable found no support in the law; a mere willful and malicious act was insufficient to give rise to the intentional tort exception because there needed to be a finding of an “actual intent to injure” and reckless or grossly negligent conduct was not enough to remove a claim from the exclusivity of the Act. Tanks v. Lockheed-Martin Corp., 332 F. Supp. 2d 953, 2004 U.S. Dist. LEXIS 17123 (S.D. Miss. 2004), rev'd, 417 F.3d 456, 2005 U.S. App. LEXIS 14539 (5th Cir. Miss. 2005).

A groundskeeper’s aid was not acting within the scope of his employment when he drowned in a swimming pool, and therefore his parents were not barred by the exclusive remedy provisions of the Mississippi Workers’ Compensation Act from bringing a wrongful death action on his behalf, where the employee was not required by his job duties to be in the vicinity of the swimming pool, he was supposed to be hoeing grass from a sidewalk outside the fence surrounding the pool at the time he entered the pool area, and the employer had specifically instructed the employee to stay away from the pool because he could not swim. Estate of Brown by Brown v. Pearl River Valley Opportunity, 627 So. 2d 308, 1993 Miss. LEXIS 421 (Miss. 1993).

Mother of decedent was not entitled to bring wrongful death action where decedent was killed when he was struck by car while working on highway project; contention that wrongful death statute controlled over Workers’ Compensation provision which provided that it would be exclusive remedy was rejected; argument that because mother was not dependent on decedent, exclusive remedy provision in death benefit cases did not apply was also rejected, because act intended to provide exclusive remedy growing out of employer-employee relationship, and different result would subject employer in many instances to double liability. Estate of Morris v. W. E. Blain & Sons, Inc., 511 So. 2d 945, 1987 Miss. LEXIS 2698 (Miss. 1987).

Under §71-3-15, neither an employer nor its carrier was liable for the full amount of an insured’s medical bill incurred after his arrival in Illinois, where it was not shown that he requested his employer to furnish further medical care, that the employer refused or neglected further medical treatment, or that there was any emergency or any interest of justice established which would excuse the failure to forward to the employer a medical report within 20 days after the first treatment by the Chicago physician. Strickland v. M.H. McMath Gin, Inc., 457 So. 2d 925, 1984 Miss. LEXIS 1929 (Miss. 1984).

The survivors of a deceased worker who died by suffocation in a soybean bin while in the course of his employment were barred by the Workmen’s Compensation Act from maintaining a wrongful death action against the employer’s general manager, whose alleged negligence had contributed to the employee’s death; an officer or agent of a corporation who is acting within the scope of his authority for and on behalf of the corporation comes within the purview of the act and is entitled to the immunity it provides. Thus, the survivors’ exclusive remedy was workmen’s compensation. Brown v. Estess, 374 So. 2d 241, 1979 Miss. LEXIS 2342 (Miss. 1979).

A wrongful death action was properly dismissed as against certain of decedent’s fellow employees where the decedent was covered by the Workmen’s Compensation Act; as to decedent’s employer and its insurer, the trial court erred in not granting their demurrers and motions to dismiss where the employer, under §71-3-9, was not subject to suit and where the declaration, which only sought to have the insurer assert any claim it might have, did not state a cause of action against the insurer; the trial court also erred in setting a thirty day time limit within which the employer and its insurer were required to exercise their option to intervene in the suit as party plaintiffs based on their having paid benefits to decedent’s widow. McCluskey v. Thompson, 363 So. 2d 256, 1978 Miss. LEXIS 2183 (Miss. 1978).

Where an employee, paid by a pipeline contractor, was also an employee of the pipeline owner and of the company in charge of the engineering and construction of a project as the agent for the owner at the time of the employee’s accidental death, the Workmen’s Compensation Law provided the exclusive remedy for his heirs and dependents, who could not then maintain a wrongful death action in tort against the owner or the engineering company. Biggart v. Texas Eastern Transmission Corp., 235 So. 2d 443, 1970 Miss. LEXIS 1444 (Miss. 1970).

Where the administratrix had made an election to sue for the death of her decedent under Code 1942, § 1453, the mere reference to the Workmen’s Compensation Law did not serve to convert the case to one based upon tort and the Law, so that the next of kin and beneficiaries would become necessary and indispensable parties, and the federal court was not deprived of jurisdiction based upon diversity of citizenship on the theory that such beneficiaries and indispensable parties were citizens of the same state as the defendant. Hordge v. Yeates, 157 F. Supp. 411, 1957 U.S. Dist. LEXIS 2520 (D. Miss. 1957).

Where an amendment to the statute provided that if employer fails to secure the payment of workmen’s compensation, the employee or the legal representative has the choice between claiming compensation or suing at law for damages and in that event, neither negligence of fellow servant, assumption of risk, nor contributory negligence can be pleaded, this amendment did not repeal the Workmen’s Compensation Law and reinstate the right to maintain an action for wrongful death of an employee as in existence prior to the original enactment of the statute. Allen v. R. G. Le Tourneau, Inc., 220 Miss. 520, 71 So. 2d 447, 1954 Miss. LEXIS 465 (Miss. 1954).

6. Third-party action.

As under Miss. Code Ann. §71-3-9, the insured was not “legally entitled to recover” any damages from his employer or the co-employee who injured him in an auto accident, and he was not entitled under Miss. Code Ann. §83-11-101(1) to recover uninsured motorist benefits from his private insurer for this accident. Wachtler v. State Farm Mut. Auto. Ins. Co., 835 So. 2d 23, 2003 Miss. LEXIS 14 (Miss. 2003).

Where a subcontractor has fewer than the number of employees required by Miss. Code §71-3-9 to be liable for workmen’s compensation payments to the employee, the general contractor will be liable for workmen’s compensation payments but has immunity from tort suit brought by an employee of the exempt subcontractor. Nations v. Sun Oil Co., 695 F.2d 933, 1983 U.S. App. LEXIS 31214 (5th Cir. Miss.), cert. denied, 464 U.S. 893, 104 S. Ct. 239, 78 L. Ed. 2d 229, 1983 U.S. LEXIS 1812 (U.S. 1983).

Defendant in action by city employee for injuries sustained in car accident while employee was on duty cannot maintain third-party action against city for contribution under former Miss Code Anno §85-5-5, as employee may not recover in tort against his employer due to exclusivity provisions of §71-3-9. McClellan v. Poole, 692 F. Supp. 687, 1988 U.S. Dist. LEXIS 9011 (S.D. Miss. 1988).

The existence of an express indemnity agreement between a cable television company which employed the claimant and a telephone company whose telephone pole broke causing the claimant to fall to the ground and become seriously injured while in the course of his employment, took the telephone company’s action for indemnification against the employer outside the prohibition of Miss Code §71-3-9. Lorenzen v. South Cent. Bell Tel. Co., 546 F. Supp. 694, 1982 U.S. Dist. LEXIS 15636 (S.D. Miss. 1982), aff'd, 701 F.2d 408, 1983 U.S. App. LEXIS 29323 (5th Cir. Miss. 1983).

Exclusive remedy provisions of Workers’ Compensation Act preclude action by wife of injured employee for loss of consortium. West v. Plastifax, Inc., 505 So. 2d 1026, 1987 Miss. LEXIS 2497 (Miss. 1987).

Requirement that contractor assure worker’s compensation coverage for employees of subcontractor does not entitle contractor to defense under exclusiveness of liability statute (§71-3-9) where subcontractor has in fact obtained coverage. Nash v. Damson Oil Corp., 480 So. 2d 1095, 1985 Miss. LEXIS 2305 (Miss. 1985).

Third party oil well owner which has been held liable to an employee of oil well contractor may not receive indemnity from the employer-contractor on a tort theory. Smith Petroleum Service, Inc. v. Monsanto Chemical Co., 420 F.2d 1103, 1970 U.S. App. LEXIS 11327 (5th Cir. Miss. 1970).

The employee of an agent, operating a car rental business on behalf of his principal, is also the employee of the principal and could not, after receiving compensation benefits, maintain a third-party action against the principal. Robertson v. Stroup, 254 Miss. 118, 180 So. 2d 617, 1965 Miss. LEXIS 934 (Miss. 1965).

7. Willful acts of employer or co-employee.

Plaintiffs’ claim that their former employer battered them when it failed to remediate toxic mold, which they later inhaled, and by spraying the mold with a substance that injured them, was barred by workers’ compensation exclusivity because 1) they did not assert that the employer acted with actual intent to batter and injure them; and 2) the employer could not allow the mold to exist with the intent of injuring them while at the same time attempting to destroy the mold. Bowden v. Young, 120 So.3d 971, 2013 Miss. LEXIS 459 (Miss. 2013).

Given the considerable amount of testimony offered by the employees and the management personnel regarding the employer’s refusal to install an appropriate ventilation system on the glue line despite its knowledge of the harmful effects of the neurotoxin contained in the adhesive the intentional tort exception under Miss. Code Ann. §71-3-9 to the Mississippi Workers’ Compensation Act. Miss. Code Ann. §71-3-1 et seq., clearly applied. Franklin Corp. v. Tedford, 18 So.3d 215, 2009 Miss. LEXIS 426 (Miss. 2009).

In a widow’s bad-faith action against a workers’ compensation insurance carrier, the carrier’s conduct was the equivalent of an unreasonably delayed investigation that had no legitimate or arguable reason. Thus, the jury could have found that the carrier’s habitually delayed “investigation” involving intentional choices to pass along duties was in reckless disregard of the consequences that the widow faced based on the carrier’s failure to resolve her lump-sum order. AmFed Cos., LLC v. Jordan, 34 So.3d 1177, 2009 Miss. App. LEXIS 557 (Miss. Ct. App. 2009).

Where the employees’ injuries arose out of and in the course of employment, under Miss. Code Ann. §71-3-3(b), their claims of battery and intentional infliction of emotional distress against the employer were not precluded by the Mississippi Workers’ Compensation Act, Miss. Code Ann. §71-3-9, as a matter of law. Franklin Corp. v. Tedford, 2009 Miss. LEXIS 169 (Miss. Apr. 16, 2009).

Employee’s claim that her former employer acted in bad faith in denying workers’ compensation benefits under Miss. Code Ann. §71-3-7, which benefits the employee later received via a settlement, failed because the employer had arguable reasons for its decision where an investigation into whether the employee’s alleged sexual relationship with her manager ever occurred or was cause of the employee’s mental health problems was inconclusive; that the employer stated in an earlier suit filed by the employee that her negligence claims were barred under the exclusive remedy provisions of Miss. Code Ann. §71-3-9 did not mean that the employer acted in bad faith by advancing inconsistent positions, as the employer never conceded that the employee had a viable workers’ compensation claim. Hood v. Sears Roebuck & Co., 532 F. Supp. 2d 795, 2005 U.S. Dist. LEXIS 46216 (S.D. Miss. 2005), aff'd, 247 Fed. Appx. 531, 2007 U.S. App. LEXIS 21978 (5th Cir. Miss. 2007).

As an employee’s complaint against his employer sounded in negligence, and Mississippi had the “most significant relationship” with the action, Mississippi, not Alabama, law applied. Therefore, the employer was immune from suit under Miss. Code Ann. §71-3-9, as there was no evidence that the employee’s injury was caused by its willful actions or that the injury was not compensable under the Mississippi Workers' Compensation Act. Powe v. Roy Anderson Constr. Co., 910 So. 2d 1197, 2005 Miss. App. LEXIS 603 (Miss. Ct. App. 2005), cert. denied, 942 So. 2d 164, 2006 Miss. LEXIS 640 (Miss. 2006).

Employer’s motion for summary judgment was denied because the court could find no argument under the present state of the law for dismissing a wrongful death action, arising out of a co-worker’s shooting rampage, based on the exclusivity bar provision under Miss. Code Ann. §71-3-9 of Mississippi’s Workers’ Compensation Act; there was nothing to suggest that, at the time of the shootings at the plant, the assailant was acting in the course and scope of his employment and in furtherance of his employer’s business, or that his actions, which were certainly outside the course and scope of his employment, were directed against his victims because of their employment, and thus, the injury was not compensable under the Act, and the exclusivity bar did not apply. Tanks v. Lockheed-Martin Corp., 332 F. Supp. 2d 953, 2004 U.S. Dist. LEXIS 17123 (S.D. Miss. 2004), rev'd, 417 F.3d 456, 2005 U.S. App. LEXIS 14539 (5th Cir. Miss. 2005).

Where a widow whose husband died while working for a general contractor sued the contractor based on its alleged failure to properly repair damaged bolts, the trial court properly granted summary judgment to the contractor as its conduct was at most gross negligence or reckless indifference, which, as a matter of law, did not defeat the exclusivity provision of the workers’ compensation statutes. Bevis v. Linkous Constr. Co., 856 So. 2d 535, 2003 Miss. App. LEXIS 445, 2003 Miss. App. LEXIS 773 (Miss. Ct. App. 2003).

Although the employee had received workers’ compensation medical benefits, this did not preclude compensation for damages that were not compensable under the Workers’ Compensation Act because they were alleged to have been caused by wilful and intentional acts; the damages stemming from the assault and battery were not compensable because they stemmed from a wilful and intentional act, not a negligent or grossly negligent act. Davis v. Pioneer Inc., 834 So. 2d 739, 2003 Miss. App. LEXIS 2 (Miss. Ct. App. 2003).

Nothing in workers’ compensation act made recovery for intentional torts and compensation benefits mutually exclusive and, to the contrary, it was never the intention of the act to bar an employee from pursuing a common law remedy for an injury that was the result of a willful and malicious act of a co-employee. Davis v. Pioneer Inc., 2002 Miss. App. LEXIS 407 (Miss. Ct. App. July 16, 2002), op. withdrawn, sub. op., 2003 Miss. App. LEXIS 61 (Miss. Ct. App. Jan. 14, 2003).

Where employee is injured in course of employment and seeks treatment from co-employee which aggravates injury, but employee can demonstrate that separate treatment was sought in plaintiff’s capacity as member of general public, then any common law cause of action which arises as result of that treatment will not be excluded by exclusivity provisions of Workers' Compensation Act. Russell v. Orr, 700 So. 2d 619, 1997 Miss. LEXIS 508 (Miss. 1997).

Where employee is injured in course of employment and seeks treatment from co-employee which aggravates injury, question of fact arises as to whether sufficient nexus exists between plaintiff’s status as employee and treatment sought for injury that would bring claim under Workers’ Compensation Act exclusivity provisions. Russell v. Orr, 700 So. 2d 619, 1997 Miss. LEXIS 508 (Miss. 1997).

A mere willful and malicious act is insufficient to give rise to the intentional tort exception under the Workers’ Compensation Act; thus, a workers’ compensation claim would not be removed as an “intentional tort” from the exclusivity of the Act where the employer’s conduct was merely “reckless, negligent, or grossly negligent,” and there was no evidence that the employer acted “with actual intent to injure.” Peaster v. David New Drilling Co., 642 So. 2d 344, 1994 Miss. LEXIS 242 (Miss. 1994).

In order for an injured employee to avoid the Mississippi workers’ compensation exclusive liability provision, the injury must have been caused by the wilful act of another employee acting in the course of employment and in the furtherance of the employee’s business, and the injury must be one that is not compensable under the act. Griffin v. Futorian Corp., 533 So. 2d 461, 1988 Miss. LEXIS 520 (Miss. 1988).

Claimant’s exclusive remedy was benefits for accidental injury arising out of and in scope of employment under Mississippi Workers’ Compensation Act; claimant was therefore barred from pursuing common-law tort remedy, where claimant had not presented credible evidence in support of claim of intentional tort by contending that employer intentionally directed its employees to misuse products in complete disregard to warning labels affixed thereto; employer pointed out that claimant stated that employer “negligently” failed to provide him with safe tools and thus his injuries proximately resulted from employer’s “negligence.” Stevens v. FMC Corp., 515 So. 2d 928, 1987 Miss. LEXIS 2883 (Miss. 1987).

Store manager’s husband, a store employee working in a service and maintenance capacity, who initiated a criminal embezzlement charge against the store cashier was an employee and not a third person within §71-3-3(b), and the store cashier’s malicious prosecution action predicated on husband’s action was not precluded by the Worker's Compensation Act. Royal Oil Co. v. Wells, 500 So. 2d 439, 1986 Miss. LEXIS 2565 (Miss. 1986).

Malicious prosecution is an intentional tort, and an action for malicious prosecution is within those rights of action an employee may maintain against his or her employer consistent with the Worker's Compensation Act. Royal Oil Co. v. Wells, 500 So. 2d 439, 1986 Miss. LEXIS 2565 (Miss. 1986).

Exception to exclusivity principle exists where injury is caused by willful act of another employee acting in furtherance of employment and in furtherance of employer’s business and injury is one which is not compensable under Workers’ Compensation Act; derrick hand who suffered injury in fall from drilling rig is limited to workers’ compensation remedy since fall is type of injury contemplated by statute, even though employee alleged that safety belts were not available. Mullins v. Biglane Operating Co., 778 F.2d 277, 1985 U.S. App. LEXIS 25427 (5th Cir. Miss. 1985).

Exclusivity provision of §71-3-9 does not bar court action by employee against employer based upon employer’s intentional, bad faith refusal to comply with duty to pay compensation. Luckett v. Mississippi Wood, Inc., 481 So. 2d 288, 1985 Miss. LEXIS 2425 (Miss. 1985).

Under §§71-3-9 and71-3-3(b), an employee’s claim for damages resulting from false imprisonment by her employer was not barred by the exclusivity of the remedies available under the Workmen’s Compensation Act, since the Act governs only injuries compensable under it, since injuries sustained as the result of a false imprisonment are not the result of accident, but rather arise from a willful act, which injuries are compensable under the Act only if caused by the willful act of a third person, and since the term “third person” refers either to a stranger to the employer-employee relationship, or to a fellow employee acting outside the course and scope of his employment; thus, a declaration alleging that an employee was falsely imprisoned by the head of her employer’s security department, and questioned concerning an amount of money missing from her department, was improperly dismissed. Miller v. McRae's, Inc., 444 So. 2d 368, 1984 Miss. LEXIS 1577 (Miss. 1984).

8. Negligent infliction of emotional distress.

Employee could not assert a negligent infliction of emotional distress claim against an employer for firing the employee because workers’ compensation was the employee’s exclusive remedy. Petty v. Baptist Mem. Health Care Corp., 190 So.3d 17, 2015 Miss. App. LEXIS 639 (Miss. Ct. App. 2015), cert. dismissed, — So.3d —, 2016 Miss. LEXIS 175 (Miss. 2016).

Because a former nurse, who was an at-will employee at a hospital, claimed that the hospital was liable to the nurse for negligent infliction of emotional distress arising from the hospital’s termination of the nurse, the nurse could not maintain an action against the hospital for negligent infliction of emotional distress. Petty v. Baptist Mem. Health Care Corp. Baptist Mem, — So.3d —, 2015 Miss. App. LEXIS 122 (Miss. Ct. App. Mar. 10, 2015), sub. op., 190 So.3d 17, 2015 Miss. App. LEXIS 639 (Miss. Ct. App. 2015).

Mississippi Workers’ Compensation statutes provided an exclusive remedy for negligence claims by employees against their employers. Miss. Code Ann. §71-3-1. Therefore, the employee’s negligent infliction of emotional distress claim was barred by Mississippi Workers’ Compensation law. Claiborne v. Miss. Bd. of Pharm., 2011 U.S. Dist. LEXIS 93849 (S.D. Miss. Aug. 22, 2011).

Fast-food worker’s state law claims for negligence per se and negligent infliction of emotional distress, alleged in conjunction with federal race discrimination and retaliatory discharge claims under Title VII, were barred by the exclusivity provision of the Mississippi Workers’ Compensation statute. Means v. B & G Food Enters., 2006 U.S. Dist. LEXIS 65835 (S.D. Miss. Sept. 13, 2006).

A claim for the negligent infliction of emotional distress against an employer is barred by this section. Disney v. Horton, 2000 U.S. Dist. LEXIS 5359 (N.D. Miss. Apr. 13, 2000).

8.5. Intentional infliction of emotional distress.

Plaintiffs’ intentional infliction of emotional distress claim against their former employer was barred by workers’ compensation exclusivity, because the employer’s initial denial that there was toxic mold in the building did not rise to the level of outrageous and extreme conduct, especially in view of its later actions to remediate the mold. Bowden v. Young, 120 So.3d 971, 2013 Miss. LEXIS 459 (Miss. 2013).

9. Immunity extended to co-workers.

Trial court erred in denying defendants’ motion for a change of venue in the injured motorist’s action because the motorist’s co-worker was fraudulently joined as a defendant to obtain venue in Smith County. The motorist’s exclusive remedy against the co-worker was for workers’ compensation benefits as provided under Miss. Code Ann. §71-3-9, which extended immunity to co-workers as well as employers. Christian v. McDonald, 907 So. 2d 286, 2005 Miss. LEXIS 115 (Miss. 2005).

OPINIONS OF THE ATTORNEY GENERAL

Miss. Code Section 71-3-9 provides that liability of employer to pay compensation “shall be exclusive and in place of all other liability of such employer to the employee”; compensation referred to is workers’ compensation benefits which are generally two-thirds of employee’s average wage and payment for medical services and supplies. Michael, Mar. 19, 1993, A.G. Op. #93-0145.

Employee may elect to receive sick pay which is earned based upon past service at same time he is receiving workers’ compensation benefits. Trosclair, Feb. 24, 1994, A.G. Op. #94-0062.

The Board of Trustees of the Pearl River County Library System may terminate an employee who is receiving worker’s compensation benefits, and payment of a regular salary to an employee who is off work due to a job-related injury after their sick leave and personal leave have been exhausted constitutes an unauthorized donation. Tufaro, July 18, 1997, A.G. Op. #97-0415.

RESEARCH REFERENCES

ALR.

Tort liability of worker’s compensation insurer for wrongful delay or refusal to make payments due. 8 A.L.R.4th 902.

Employer’s tort liability to worker for concealing workplace hazard or nature or extent of injury. 9 A.L.R.4th 778.

Workmen’s Compensation Act as furnishing exclusive remedy for employee injured by product manufactured, sold, or distributed by employer. 9 A.L.R.4th 873.

Liability of employer with regard to inherently dangerous work for injuries to employees of independent contractor. 34 A.L.R.4th 914.

Workers’ compensation: liability of successive employers for disease or condition allegedly attributable to successive employments. 34 A.L.R.4th 958.

Third-party tortfeasor’s right to have damages recovered by employee reduced by amount of employee’s workers’ compensation benefits. 43 A.L.R.4th 849.

Workers’ compensation law as precluding employee’s suit against employer for third person’s criminal attack. 49 A.L.R.4th 926.

Workers’ compensation act as precluding tort action for injury to or death of employee’s unborn child. 55 A.L.R.4th 792.

Willful, wanton, or reckless conduct of coemployee as ground of liability despite bar of workers’ compensation law. 57 A.L.R.4th 888.

“Dual Capacity Doctrine” as basis for employee’s recovery for medical malpractice from company medical personnel. 73 A.L.R.4th 115.

Workers’ compensation: effect of allegation that injury was caused by, or occurred during course of, worker’s illegal conduct. 73 A.L.R.4th 270.

Workers’ compensation: third-party tort liability of corporate officer to injured workers. 76 A.L.R.4th 365.

Workers’ compensation statute as barring illegally employed minor’s tort action. 77 A.L.R.4th 844.

Breach of assumed duty to inspect property as ground for liability to third party. 13 A.L.R.5th 289.

Presumption or inference that accidental death of employee engaged in occupation of manufacturing or processing arose out of and in course of employment. 47 A.L.R.5th 801.

Workers’ compensation as precluding employee’s suit against employer for sexual harassment in the workplace. 51 A.L.R.5th 163.

Violation of employment rule as barring claim for workers’ compensation. 61 A.L.R.5th 375.

Contractual waiver of exclusivity of workers’ compensation remedy. 117 A.L.R.5th 441.

Postaccident conduct by employer, employer’s insurer, or employer’s employees in relation to workers’ compensation claim as waiving, or estopping employer from asserting, exclusivity otherwise afforded by workers’ compensation statute. 120 A.L.R.5th 513.

Federal Employees’ Compensation Act (5 USCS §§ 8101 et seq.) as affecting recovery under Federal Tort Claims Act. 43 A.L.R. Fed. 424.

Right of injured employee entitled to compensation under Longshoremen’s and Harbor Workers’ Compensation Act (33 USCS §§ 901 et seq.) to recover from employer’s insurance carrier for its negligence. 43 A.L.R. Fed. 695.

Am. Jur.

82 Am. Jur. 2d, Workers’ Compensation §§ 40, 41.

25 Am. Jur. Pl & Pr Forms (Rev), Workmen’s Compensation, Forms 85, 91.

CJS.

99 C.J.S., Workmen’s Compensation §§ 158-1591, 1593-1596 et seq.

Law Reviews.

1978 Mississippi Supreme Court Review: Administrative Law. 50 Miss. L. J. 11.

1979 Mississippi Supreme Court Review: Administrative Law. 50 Miss. L. J. 699.

1981 Mississippi Supreme Court Review: Administrative Law. 52 Miss. L. J. 377, June 1982.

1984 Mississippi Supreme Court Review: Administrative Law. 55 Miss. L. J. 25.

Comment, Insurance Bad Faith in Mississippi, 55 Miss. L. J. 485, September 1985.

1985 Mississippi Supreme Court Review – Administrative Law. 55 Miss. L. J. 735.

Caught in the Crossfire: Employers’ Liability for Workplace Violence, 70 Miss. L.J. 505 (2000).

Practice References.

Bender’s Labor and Employment Bulletin (Matthew Bender).

Labor and Employment Law (Matthew Bender).

Larson’s Workers’ Compensation Desk Edition (Matthew Bender).

Larson’s Workers’ Compensation Law (Matthew Bender).

Mississippi Workers’ Compensation Laws and Rules Annotated, 2010 Edition with CD-ROM (Michie).

§ 71-3-9. Exclusiveness of liability.

[Effective from and after July 1, 2021, this section will read:]

  1. Except as provided under subsection (2) of this section, the liability of an employer to pay compensation shall be exclusive and in place of all other liability of such employer to the employee, his legal representative, husband or wife, parents, dependents, next of kin, and anyone otherwise entitled to recover damages at common law or otherwise from such employer on account of such injury or death, except that if an employer fails to secure payment of compensation as required by this chapter, an injured employee, or his legal representative in case death results from the injury, may elect to claim compensation under this chapter, or to maintain an action at law for damages on account of such injury or death. In such action the defendant may not plead as a defense that the injury was caused by the negligence of a fellow servant, nor that the employee assumed the risk of his employment, nor that the injury was due to the contributory negligence of the employee.
  2. An employer shall not be liable under this chapter to a first responder, as defined in Section 25-15-403, if such first responder elects to receive benefits under the “Mississippi First Responders Health and Safety Act.”

HISTORY: Codes, 1942, § 6998-05; Laws, 1948, ch. 354, § 5; reenacted without change, Laws, 1982, ch. 473, § 5; reenacted without change, Laws, 1990, ch. 405, § 5, eff from and after July 1, 1990; Laws, 2019, ch. 467, § 6, eff from and after July 1, 2021., eff from and after July 1, 2021.

§ 71-3-11. Waiting period.

No compensation except medical benefits shall be allowed for the first five (5) days of the disability. In case the injury results in disability of fourteen (14) days or more, the compensation shall be allowed from the date of disability.

HISTORY: Codes, 1942, § 6998-06; Laws, 1948, ch. 354, § 6a; Laws, 1950, ch. 412, § 4; Laws, 1958, ch. 454, § 2; reenacted without change, Laws, 1982, ch. 473, § 6; reenacted without change, Laws, 1990, ch. 405, § 6, eff from and after July 1, 1990.

JUDICIAL DECISIONS

1. In general.

2. Miscellaneous.

1. In general.

In an action on a claim for workmen’s compensation benefits, it was for the commission, based on the medical and lay testimony, to determine not only whether the bulge or herniated disc and the resultant disability arose out of and in the course of the claimant’s employment, but also to determine, if allowable, when compensability should begin. Central Electric & Machinery Co. v. Shelton, 220 So. 2d 320, 1969 Miss. LEXIS 1454 (Miss. 1969).

2. Miscellaneous.

Award of disability benefits to the employee was improper because the employee’s claim was barred by the two-year statute of limitations set forth in Miss. Code Ann. §71-3-35(1); it was possible for the employer to dispute compensability yet provide medical treatment without waiving the statute of limitations. Even if it could have been inferred that the employer’s intent behind payments to the employee was in lieu of compensation, those four days did not satisfy the five-day waiting period that was required in Miss. Code Ann. §71-3-11. Lindsay Logging, Inc. v. Watson, 44 So.3d 388, 2010 Miss. App. LEXIS 120 (Miss. Ct. App.), cert. denied, 49 So.3d 106, 2010 Miss. LEXIS 495 (Miss. 2010).

Even if it could have been inferred that the employer’s intent behind payments to the employee was in lieu of compensation, the fact that employer paid claimant for four of his eleven total days of absence over a twenty-five month period did not satisfy the five-day waiting period that was required in Miss. Code Ann. §71-3-11. Lindsay Logging, Inc. v. Watson, 44 So.3d 388, 2010 Miss. App. LEXIS 120 (Miss. Ct. App.), cert. denied, 49 So.3d 106, 2010 Miss. LEXIS 495 (Miss. 2010).

Employer and its carrier were not equitably estopped from asserting a statute of limitations defense for a workers’ compensation claim because under Miss. Code Ann. §§71-3-67(1) and71-3-11, the employer was not required to file a first notice of injury in that it had no reason to conclude that the claimant suffered a compensable injury in that the claimant had attributed his back pain to a prior back injury that was not work-related. Bynum v. Anderson Tully Lumber Co., 996 So. 2d 814, 2008 Miss. App. LEXIS 702 (Miss. Ct. App. 2008).

RESEARCH REFERENCES

Am. Jur.

82 Am. Jur. 2d, Workers’ Compensation § 405.

CJS.

99 C.J.S., Workmen’s Compensation §§ 561, 562, 564-566.

§ 71-3-13. Maximum and minimum recovery.

  1. Compensation for disability or in death cases shall not exceed sixty-six and two-thirds percent (66-2/3%) of the average weekly wage for the state per week, nor shall it be less than Twenty-five Dollars ($25.00) per week except in partial dependency cases and in partial disability cases.
  2. Maximum recovery: The total recovery of compensation hereunder, exclusive of medical payments under Section 71-3-15, arising from the injury to an employee or the death of an employee, or any combination of such injury or death, shall not exceed the multiple of four hundred fifty (450) weeks times sixty-six and two-thirds percent (66-2/3%) of the average weekly wage for the state.

HISTORY: Codes, 1942, § 6998-07; Laws, 1948, ch. 354, § 6b; Laws, 1950, ch. 412, § 4; Laws, 1958, ch. 454, § 2; Laws, 1960, ch. 279; Laws, 1968, ch. 559, § 4; Laws, 1972, ch. 522, § 2; Laws, 1976, ch. 459, § 1; Laws, 1979, ch. 442, § 1; Laws, 1981, ch. 341, § 1; reenacted, Laws, 1982, ch. 473, § 7; Laws, 1984, ch. 402, § 1; Laws, 1988, ch. 446, § 2; reenacted without change, Laws, 1990, ch. 405, § 7; Laws, 1992, ch. 577, § 2, eff from and after passage (approved May 15, 1992).

Editor’s Notes —

Laws of 1988, ch. 446, § 6, provides as follows:

“SECTION 6. This act shall take effect and be in force from and after July 1, 1988; provided, however, the increase in benefits allowed under this act shall apply only to claims arising on or after July 1, 1988”.

Cross References —

Compensation for disability, see §71-3-17.

Determination of wages, see §71-3-31.

JUDICIAL DECISIONS

1. In general.

2. Partial disability cases.

3. Partial dependency cases.

1. In general.

The increased benefits allowed under the 1972 amendment to this section apply only to claims arising on or after July 1, 1972, and the circuit court erred in ordering payments of $56 per week to a claimant whose injury occurred prior to that date. Stuart Mfg. Co. v. Walker, 313 So. 2d 574, 1975 Miss. LEXIS 1676 (Miss. 1975).

The interpretation to be placed on the language used in this section [Code 1942, § 6998-07] is that the total amount of weekly benefits to be paid by the employer in totally dependent cases, regardless of the number of dependents, shall not be less than $10 per week. Truck Trailer Sales & Service Co. v. Moore, 244 Miss. 317, 141 So. 2d 541, 1962 Miss. LEXIS 451 (Miss. 1962).

Where a claimant began work 4 weeks preceding the date of injury and had worked 3 days the 1st week, 2 days during the 2d week, and 3 days during each of the next 2 weeks and her total earnings amounted to $51.28, she should have been awarded compensation in the amount of $10 per week rather than an award based on an average weekly wage of $25. Pepper v. Barrett, 225 Miss. 30, 82 So. 2d 580, 1955 Miss. LEXIS 555 (Miss. 1955).

2. Partial disability cases.

Employee’s permanent-partial disability compensation period for two injuries that arose from a workplace accident was properly limited to 450 weeks in order to avoid the pyramiding of benefits, as the 450-week award for his body-as-a-whole injury would have still been running when the 200-week award for his shoulder injury would have started to run. Tucker v. Bellsouth Telcoms., Inc., 130 So.3d 96, 2013 Miss. App. LEXIS 357 (Miss. Ct. App. 2013), cert. denied, 131 So.3d 577, 2014 Miss. LEXIS 48 (Miss. 2014), cert. denied, 131 So.3d 577, 2014 Miss. LEXIS 39 (Miss. 2014).

The minimum payment of $25 per week provided in §71-3-13 may not be reduced by the apportionment provided in §71-3-7 except in partial dependency cases. Thus, a partially disabled employee was entitled to weekly payments of $25 rather than $12.50, even though her permanent partial disability was due 50 percent to her work-related injury and 50 percent to a preexisting condition. Cross Mfg., Inc. v. Lowery, 394 So. 2d 887, 1981 Miss. LEXIS 1940 (Miss. 1981).

This section [Code 1942, § 6998-07] applies to an award for permanent partial disability. Wiygul Motor Co. v. Pate, 237 Miss. 325, 115 So. 2d 51, 1959 Miss. LEXIS 392 (Miss. 1959).

Order of attorney-referee and the commission finding that claimant’s loss of wage earning capacity was $6 per week, and awarding claimant compensation for permanent partial disability at rate of $4 per week, was reversed and judgment entered in supreme court amending the findings so as to show the claimant’s loss of earning capacity at $17.50 per week, and awarding compensation to the claimant for permanent partial disability at the rate of 66 and 2/3 per cent of that amount. Hale v. General Box Mfg. Co., 235 Miss. 301, 108 So. 2d 844, 1959 Miss. LEXIS 430 (Miss. 1959).

3. Partial dependency cases.

The 1950 amendment to this section [Code 1942, § 6998-07] providing for a minimum weekly compensation of $10.00 “except in partial dependency cases,” permits the payment to a dependent under Code 1942, § 6998-13 of an amount less than the minimum, (a) where his statutory compensation is less than that amount, and (b) where such dependent is partially and not wholly dependent on the deceased employee; if he is wholly dependent, then the $10.00 applies. Bradshaw v. Rudder, 227 Miss. 143, 85 So. 2d 778, 1956 Miss. LEXIS 665 (Miss. 1956).

RESEARCH REFERENCES

ALR.

Workers’ compensation: bonus as factor in determining amount of compensation. 84 A.L.R.4th 1055.

Am. Jur.

82 Am. Jur. 2d, Workers’ Compensation §§ 338, 384.

7 Am. Jur. Proof of Facts 3d 143, Workers’ Compensation for Attendant Care Services by Family Members.

CJS.

99 C.J.S., Workers’ Compensation §§ 561, 562, 564-566, 598, 601.

§ 71-3-15. Medical services and supplies.

  1. The employer shall furnish such medical, surgical, and other attendance or treatment, nurse and hospital service, medicine, crutches, artificial members, and other apparatus for such period as the nature of the injury or the process of recovery may require. The injured employee shall have the right to accept the services furnished by the employer or, in his discretion, to select one (1) competent physician of his choosing and such other specialists to whom he is referred by his chosen physician to administer medical treatment. Referrals by the chosen physician shall be limited to one (1) physician within a specialty or subspecialty area. Except in an emergency requiring immediate medical attention, any additional selection of physicians by the injured employee or further referrals must be approved by the employer, if self-insured, or the carrier prior to obtaining the services of the physician at the expense of the employer or carrier. If denied, the injured employee may apply to the commission for approval of the additional selection or referral, and if the commission determines that such request is reasonable, the employee may be authorized to obtain such treatment at the expense of the employer or carrier. Approval by the employer or carrier does not require approval by the commission. A physician to whom the employee is referred by his employer shall not constitute the employee’s selection, unless the employee, in writing, accepts the employer’s referral as his own selection. However, if the employee is treated for his alleged work-related injury or occupational disease by a physician for six (6) months or longer, or if the employee has surgery for the alleged work-related injury or occupational disease performed by a physician, then that physician shall be deemed the employee’s selection. Should the employer desire, he may have the employee examined by a physician other than of the employee’s choosing for the purpose of evaluating temporary or permanent disability or medical treatment being rendered under such reasonable terms and conditions as may be prescribed by the commission. If at any time during such period the employee unreasonably refuses to submit to medical or surgical treatment, the commission shall, by order, suspend the payment of further compensation during such time as such refusal continues, and no compensation shall be paid at any time during the period of such suspension; provided, that no claim for medical or surgical treatment shall be valid and enforceable, as against such employer, unless within twenty (20) days following the first treatment the physician or provider giving such treatment shall furnish to the employer, if self-insured, or its carrier, a preliminary report of such injury and treatment, on a form or in a format approved by the commission. Subsequent reports of such injury and treatment must be submitted at least every thirty (30) days thereafter until such time as a final report shall have been made. Reports which are required to be filed hereunder shall be furnished by the medical provider to the employer or carrier, and it shall be the responsibility of the employer or carrier receiving such reports to promptly furnish copies to the commission. The commission may, in its discretion, excuse the failure to furnish such reports within the time prescribed herein if it finds good cause to do so, and may, upon request of any party in interest, order or direct the employer or carrier to pay the reasonable value of medical services rendered to the employee.
  2. Whenever in the opinion of the commission a physician has not correctly estimated the degree of permanent disability or the extent of the temporary disability of an injured employee, the commission shall have the power to cause such employee to be examined by a physician selected by the commission, and to obtain from such physician a report containing his estimate of such disabilities. The commission shall have the power in its discretion to charge the cost of such examination to the employer, if he is a self-insurer, or to the insurance company which is carrying the risk.
  3. In carrying out this section, the commission shall establish an appropriate medical provider fee schedule, medical cost containment system and utilization review which incorporates one or more medical review panels to determine the reasonableness of charges and the necessity for the services, and limitations on fees to be charged by medical providers for testimony and copying or completion of records and reports and other provisions which, at the discretion of the commission, are necessary to encompass a complete medical cost containment program. The commission may contract with a private organization or organizations to establish and implement such a medical cost containment system and fee schedule with the cost for administering such a system to be paid out of the administrative expense fund as provided in this chapter. All fees and other charges for such treatment or service shall be limited to such charges as prevail in the same community for similar treatment and shall be subject to regulation by the commission. No medical bill shall be paid to any doctor until all forms and reports required by the commission have been filed. Any employee receiving treatment or service under the provisions of this chapter may not be held responsible for any charge for such treatment or service, and no doctor, hospital or other recognized medical provider shall attempt to bill, charge or otherwise collect from the employee any amount greater than or in excess of the amount paid by the employer, if self-insured, or its workers’ compensation carrier. Any dispute over the amount charged for service rendered under the provisions of this chapter, or over the amount of reimbursement for services rendered under the provisions of this chapter, shall be limited to and resolved between the provider and the employer or carrier in accordance with the fee dispute resolution procedures adopted by the commission.
  4. The liability of an employer for medical treatment as herein provided shall not be affected by the fact that his employee was injured through the fault or negligence of a third party, not in the same employ, provided the injured employee was engaged in the scope of his employment when injured. The employer shall, however, have a cause of action against such third party to recover any amounts paid by him for such medical treatment.
  5. An injured worker who believes that his best interest has been prejudiced by the findings of the physician designated by the employer or carrier shall have the privilege of a medical examination by a physician of his own choosing, at the expense of the carrier or employer. Such examination may be had at any time after injury and prior to the closing of the case, provided that the charge shall not exceed One Hundred Dollars ($100.00) and shall be paid by the carrier or employer where the previous medical findings are upset, but paid by the employee if previous medical findings are confirmed.
  6. Medical and surgical treatment as provided in this section shall not be deemed to be privileged insofar as carrying out the provisions of this chapter is concerned. All findings pertaining to a second opinion medical examination, at the instance of the employer shall be reported as herein required within fourteen (14) days of the examination, except that copies thereof shall also be furnished by the employer or carrier to the employee. All findings pertaining to an independent medical examination by order of the commission shall be reported as provided in the order for such examination.
  7. Any medical benefits paid by reason of any accident or health insurance policy or plan paid for by the employer, which were for expenses of medical treatment under this section, are, upon notice to the carrier prior to payment by it, subject to subrogation in favor of the accident or health insurance company to the extent of its payment for medical treatment under this section. Reimbursement to the accident or health insurance company by the carrier or employer, to the extent of such reimbursement, shall constitute payment by the employer or carrier of medical expenses under this section. Under no circumstances, shall any subrogation be had by any insurance company against any compensation benefits paid under this chapter.

HISTORY: Codes, 1942, § 6998-08; Laws, 1948, ch. 354, § 7; Laws, 1950, ch. 412, § 5; reenacted and amended, Laws, 1982, ch. 473, § 8; reenacted without change, Laws, 1990, ch. 405, § 8; Laws, 1992, ch. 577, § 3; Laws, 1995, ch. 582, § 2; Laws, 2012, ch. 522, § 3, eff from and after July 1, 2012.

Editor’s Notes —

Laws of 2012, ch. 522, §§ 10 and 11, provide:

“SECTION 10. The Workers’ Compensation Commission shall promulgate a written statement specifying the changes made to the Workers’ Compensation Law by this act to every employer in this state subject to the Workers’ Compensation Law. Within ten (10) days of receipt of this written statement from the Commission, every employer shall post the Commission’s statement in a conspicuous place or places in and about his place or places of business and adjacent to the Notice of Coverage as required by Section 71-3-81.

“SECTION 11. This act shall take effect and be in force from and after July 1, 2012, and shall apply to injuries occurring on or after July 1, 2012.”

Amendment Notes —

The 2012 amendment added the ninth sentence beginning with “However, if the employee is treated for his alleged” and ending “employee’s selection” in (1).

Cross References —

Exclusion of medical payments under this section from computation of maximum recovery under this chapter, see §71-3-13.

Study by Medical Advisory Board of possible use of medical fee schedule, see §71-3-115.

JUDICIAL DECISIONS

1. In general.

2. Liability for services.

3. —Employer required to provide.

4. —Employer not required to provide.

5. —Failure to supply.

6. —Failure to request.

7. Refusal to submit to examination or treatment.

8. Patient-physician communication privilege.

9. Limitation periods.

10. Choice of physicians.

11. Medical records.

1. In general.

Workers’ Compensation Commission did not err in failing to exclude a doctor’s deposition based on the four-factor test applicable to determine whether excluding evidence for a transgression in discovery was an appropriate sanction because the doctor was a nonparty witness selected to perform an an employer’s medical examination; after the employee served a subpoena on the doctor, he filed his own motion to quash the subpoena and relied on the advice of his counsel to refuse to answer questions. Wright v. Turan-Foley Motors, Inc., 269 So.3d 160, 2018 Miss. App. LEXIS 35 (Miss. Ct. App. 2018).

Denial of workers’ compensation benefits to the employee was proper because, as a result of discrepancies in a doctor’s testimony and records in the case, the doctor’s testimony and opinions were not credible and were unusable in the determination of disability; the Workers’ Compensation Commission was not required to always comply with a treating physician’s opinion. Richardson v. Johnson Elec. Auto., Inc., 962 So. 2d 146, 2007 Miss. App. LEXIS 508 (Miss. Ct. App. 2007).

Statute required that disputes over what was reasonable and necessary had to be resolved through the Workers’ Compensation Commission’s procedures. Walls v. Franklin Corp., 797 So. 2d 973, 2001 Miss. LEXIS 264 (Miss. 2001).

The claimant did not follow the requirements of this section in obtaining treatment where he was not referred to the treating physician by his designated physician. Fleming Enters., Inc. v. Henderson, 741 So. 2d 309, 1999 Miss. App. LEXIS 163 (Miss. Ct. App. 1999).

Albeit without express statutory provision, Mississippi law undoubtedly affords medical providers means through Mississippi Workers’ Compensation Commission to recoup fees for treating work-related injuries of employees entitled to workers’ compensation insurance benefits. McFadden v. Liberty Mut. Ins. Co., 803 F. Supp. 1178, 1992 U.S. Dist. LEXIS 15913 (N.D. Miss. 1992), aff'd, 988 F.2d 1210, 1993 U.S. App. LEXIS 6486 (5th Cir. Miss. 1993).

Workers’ compensation carrier has right to de-authorize chiropractic treatments previously approved by it or by its insured, employer, if it provides for alternative treatment. Norville v. Commercial Union Ins. Co., 690 F. Supp. 558, 1988 U.S. Dist. LEXIS 8508 (S.D. Miss. 1988), aff'd, 866 F.2d 1419, 1989 U.S. App. LEXIS 1445 (5th Cir. Miss. 1989).

An emergency, in contemplation of the provisions of this section [Code 1942, § 6998-08], must allow of no reasonable alternative consistent with the preservation of life or irreparable injury from delay. Ingalls Shipbuilding Corp. v. Holcomb, 217 So. 2d 18, 1968 Miss. LEXIS 1254 (Miss. 1968).

There can be no apportionment of medical benefits under this section [Code 1942, § 6998-08]. Arender v. National Sales, Inc., 193 So. 2d 579, 1966 Miss. LEXIS 1289, 1967 Miss. LEXIS 1552 (Miss. 1966).

Doctor’s failure to comply with statute precludes allowance for medical benefits. Crow v. Guy Scoggins General Oilfield Contracting Co., 248 Miss. 1, 158 So. 2d 1, 1963 Miss. LEXIS 368 (Miss. 1963).

Nonpayment of medical expenses does not subject the employer to the twenty per cent penalty prescribed by Code 1942, § 6998-19(f) for nonpayment of any installment of an award; but statutory damages under Code 1942, § 1971 may be allowed. J. H. Moon & Sons v. Hood, 244 Miss. 564, 144 So. 2d 782, 1962 Miss. LEXIS 477 (Miss. 1962).

The right to medical expenses continues after expiration of the maximum benefit period or the payment of the maximum amounts of weekly benefits. J. H. Moon & Sons v. Hood, 244 Miss. 564, 144 So. 2d 782, 1962 Miss. LEXIS 477 (Miss. 1962).

Payments for medical expenses under this section [Code 1942, § 6998-08] are not included in the maximum sums established for specific types of disabilities or death. Graeber Bros., Inc. v. Taylor, 237 Miss. 691, 115 So. 2d 735, 1960 Miss. LEXIS 502 (Miss. 1960).

Where medical findings of a doctor were upset by the testimony of a second doctor, in a workmen’s compensation proceeding, the medical bill of the second doctor should have been allowed. Webster Constr. Co. v. Bates, 227 Miss. 207, 85 So. 2d 795, 1956 Miss. LEXIS 676 (Miss. 1956).

2. Liability for services.

Employee could pursue a kidney condition as part of the employee’s original compensable lung injury because (1) the condition flowed from the injury’s treatment, (2) Miss. Code Ann. §71-3-15 obliged the employee’s employer to provide treatment, and (3) the employer knew a causal link between the treatment and condition was possible. Bellsouth Telecomms., Inc. v. Harris, 174 So.3d 909, 2015 Miss. App. LEXIS 272 (Miss. Ct. App. 2015).

In a workers’ compensation case, the employer was not responsible for payment for any medical services or supplies rendered to the claimant by referral doctors because they were not authorized to treat the claimant by the employer; thus, the administrative law judge properly denied payment for the claimant’s medical services rendered by those two doctors. Twine v. City of Gulfport, 833 So. 2d 596, 2002 Miss. App. LEXIS 864 (Miss. Ct. App. 2002).

Employer was not liable for medical services provided to a workers’ compensation claimant when those services were provided after the claimant went to the provider without the employer’s authorization, even though the employer had previously authorized treatment by the same provider, which the claimant initially declined, because too much time had intervened between the authorized referral and the actual treatment for the reasons for the initial referral to be applicable. Wesson v. Fred's Inc., 811 So. 2d 464, 2002 Miss. App. LEXIS 131 (Miss. Ct. App. 2002).

A specially equipped van qualified as an “other apparatus” under subsection (1) where the claimant was rendered a quadriplegic in a work related accident, had an extremely difficult time riding or getting in and out of a car, had received rehabilitation training as a handicapped driver and had been certified to drive an automobile, but had an unreliable car with about 180,000 miles and had to rent a car or rely on a courier to get to his doctor’s appointments. Georgia-Pacific Corp. v. James, 733 So. 2d 875, 1999 Miss. App. LEXIS 22 (Miss. Ct. App. 1999).

Chiropractic services as such are not excluded under the Mississippi Workers’ Compensation Act. If the treatment was necessary and the charges were reasonable, a claimant cannot be denied medical benefits solely because the service was rendered by a licensed chiropractor. White v. Hattiesburg Cable Co., 590 So. 2d 867, 1991 Miss. LEXIS 760 (Miss. 1991).

Worker’s compensation claimant is entitled to award of medical expenses to extent that expenses have not been paid or payment procured by employer. South Cent. Bell Tel. Co. v. Aden, 474 So. 2d 584, 1985 Miss. LEXIS 2197 (Miss. 1985).

In a workman’s compensation action the claimant made the requisite request from defendants for nursing services where there was uncontradicted evidence that claimant’s injuries and the services performed by his wife were described to a representative of his employer’s workman’s compensation carrier and that claimant also requested payments for services his wife performed in connection with his accident. City of Kosciusko v. Graham, 419 So. 2d 1005, 1982 Miss. LEXIS 2137 (Miss. 1982).

In a damage action commenced by an employee, alleging that he had lost the use of his thumb because his employer had been negligent in placing an unqualified person in the first aid station and in not providing proper medical care and attention after he cut his thumb while working in the scope of his employment, the trial judge properly sustained the employer’s affirmative defense that workmen’s compensation was the employee’s sole and exclusive remedy; the dual capacity doctrine would not be applied, absent legislative enactment. Trotter v. Litton Systems, Inc., 370 So. 2d 244, 1979 Miss. LEXIS 2010 (Miss. 1979).

Where compensable injury is aggravated by treatment, without the injured person’s fault, resulting injury or death is also compensable. McBride v. Wetmore & Parman, Inc., 241 Miss. 743, 133 So. 2d 261, 1961 Miss. LEXIS 395 (Miss. 1961).

3. —Employer required to provide.

Although an employer contended that a claimant’s treatment should have ended when the claimant refused doctors’ orders regarding physical therapy, the Mississippi Workers’ Compensation Commission did not err in concluding that future epidural injections, stellate ganglion blocks, and spinal stimulators might be considered in the future under such circumstances as outlined by the Commission. Blackwell v. Howard Indus., 243 So.3d 774, 2018 Miss. App. LEXIS 43 (Miss. Ct. App. 2018).

Substantial evidence supported the Mississippi Workers’ Compensation Commission’s (Commission) decision requiring an employer to provide medical treatment for an employee’s kidney condition resulting from treatment of the employee’s original compensable lung injury because (1) the Commission properly denied the employer’s untimely attempt to supplement the record with a contrary medical opinion, (2) supporting medical evidence did not have to find a link between the condition and the injury’s treatment to a reasonable medical certainty, and (3) that evidence supported the decision. Bellsouth Telecomms., Inc. v. Harris, 174 So.3d 909, 2015 Miss. App. LEXIS 272 (Miss. Ct. App. 2015).

Finding in favor of the employee in his workers’ compensation action was proper pursuant to Miss. Code Ann. §§71-3-17(c)(25),71-3-37(5), and71-3-15, where the employee offered medical proof the injury manifested its symptoms in an area other than the initial impact; further, the computation of disability benefits was one cent less than the amount awarded by the administrative judge and the appellate court did not find that a one-cent rounding error difference was arbitrary or capricious, Miss. Code Ann. §71-3-17(25). Cives Steel Co. Port of Rosedale v. Williams, 905 So. 2d 661, 2004 Miss. App. LEXIS 505 (Miss. Ct. App. 2004), vacated, 903 So. 2d 678, 2005 Miss. LEXIS 129 (Miss. 2005).

Employer was bound to provide, pursuant to Miss. Code Ann. §71-3-15, reasonable medical care for the employee’s recovery because there was sufficient evidence to support a finding that the employee had suffered both a lower back and a cervical injury while employed, and both injuries were compensable. Howard Indus. v. Robinson, 846 So. 2d 245, 2002 Miss. App. LEXIS 574 (Miss. Ct. App. 2002).

Injured employee’s wife was entitled to payments for the nursing services she provided for the employee, as the evidence showed that her services, such as bathing the employee, assisting in exercises, and dispensing medication, were a necessary part of the employee’s life. Port Gibson Oil Works v. Estate of Hughes, 823 So. 2d 613, 2002 Miss. App. LEXIS 443 (Miss. Ct. App. 2002).

Employer was obligated under Workers’ Compensation Law to allow claimant to have laprascopic back surgery, where his primary treating physician recommended such surgery, but second physician who saw claimant on limited basis stated that there was only a 50% chance that surgery would allow claimant to return to heavy work, and third physician who saw claimant only once stated that surgery was unnecessary or would not be beneficial to claimant’s recovery. Spann v. Wal-Mart Stores, 700 So. 2d 308, 1997 Miss. LEXIS 446 (Miss. 1997).

Nursing care provided by relative to injured workers’ compensation claimant is compensable as medical benefit. Mississippi Transp. Comm'n v. Dewease, 691 So. 2d 1007, 1997 Miss. LEXIS 142 (Miss. 1997).

Workers’ compensation claimant’s failure to present evidence regarding extent of care required before claimant was admitted to nursing home necessitated remand to determine how many hours a day of actual nursing care was needed, nature of services wife performed, and wage rate during relevant period, for purposes of calculating reimbursement for nursing services provided to claimant by his wife. Mississippi Transp. Comm'n v. Dewease, 691 So. 2d 1007, 1997 Miss. LEXIS 142 (Miss. 1997).

If there is evidence that wheelchair van is reasonably necessary for workers’ compensation claimant, it may qualify as “other apparatus” for which medical benefits shall be paid. Mississippi Transp. Comm'n v. Dewease, 691 So. 2d 1007, 1997 Miss. LEXIS 142 (Miss. 1997).

Workers’ compensation claimant could not recover cost of specially-equipped wheelchair vans, absent evidence that vans were necessary either while claimant lived at home or after he moved to nursing home. Mississippi Transp. Comm'n v. Dewease, 691 So. 2d 1007, 1997 Miss. LEXIS 142 (Miss. 1997).

Workers’ compensation claimant’s treating physician lacks standing to bring independent tort claim against compensation carrier for bad-faith refusal to pay, inasmuch as such physician is merely unintended third-party creditor beneficiary of insurance contract, and his status thus is merely derivative. McFadden v. Liberty Mut. Ins. Co., 803 F. Supp. 1178, 1992 U.S. Dist. LEXIS 15913 (N.D. Miss. 1992), aff'd, 988 F.2d 1210, 1993 U.S. App. LEXIS 6486 (5th Cir. Miss. 1993).

Under §71-3-15, an employer was required to pay an injured employee’s medical expenses, even though they already had been paid under a health and accident insurance policy bought and paid for by the employee/claimant, which was not intended to be in lieu of compensation under the Workmen’s Compensation Act, and which was a contract between the claimant and her insurer to which her employer had no privity and from which he could not be allowed to derive a benefit. Bowen v. Magic Mart of Corinth, 441 So. 2d 548, 1983 Miss. LEXIS 3026 (Miss. 1983).

The circuit court properly ordered that claimant’s wife be paid at the rate of $2.25 an hour for four hours nursing daily from the time of her request for such payment until the time of award where evidence supported the findings as to hours of nursing needed and the proper rate of pay; with respect to the claim for a similar recovery for the period after injury and prior to the request for payment, the cause was remanded to the workmen’s compensation commission for a hearing in which, inter alia, the employer and carrier would be allowed to defend and in which there could be evidence as to how many hours per day of nursing services would have been required. Graham v. Kosciusko, 339 So. 2d 60, 1976 Miss. LEXIS 1665 (Miss. 1976).

Where the employees of two corporations were working together under the supervision of an employee of the first, and where the employee of the second corporation, after sustaining a minor injury was en route to a doctor, being driven by an employee of the first corporation under the direction of the supervisor, and en route was involved in an accident, the corporations were not exonerated from liability on the ground that there was no obligation to furnish medical service, since Code 1942, § 6998-08 places a duty upon an employer to furnish medical services to an injured employee, and if necessary to transport the employee to a doctor. Glenn's All American Sportswear, Inc. v. Thompson, 257 So. 2d 866, 1972 Miss. LEXIS 1477 (Miss. 1972).

Where an injured employee was told by her employer to go to whatever doctor she had to go to and do whatever she had to do to get better, there was an uncontradicted and express authorization on the part of the employer for the employee to select a doctor of her choice, and where the employee went to her family physician who referred her to an orthopedic surgeon, the statutory limitation on the expenses to be borne by the employer where the employee selects his own physician did not apply, and the employer was liable for all of the medical bills including the expenses of two additional doctors selected by the employee. American Partition Co. v. Thornton, 231 So. 2d 190, 1970 Miss. LEXIS 1578 (Miss. 1970).

Where the proof was that plaintiff’s gastric ulcer was precipitated into activity by a back injury he sustained on the job, and the evidence conclusively showed that treatment of the ulcer was required for the process of recovery, the allowance of the medical expenses for its treatment was proper. Frazier v. State, 190 So. 2d 863, 1966 Miss. LEXIS 1406 (Miss. 1966).

Where medical testimony indicated that the use of certain drugs by a claimant who had suffered a mild myocardial infarction were necessary in order to prevent a second heart attack, the commission’s order requiring the employer and insurer to bear the cost of furnishing the drugs was affirmed. Southern Auto Co. v. Bergin, 187 So. 2d 879, 1966 Miss. LEXIS 1368 (Miss. 1966).

One into whose eye a spectacle lens has been shattered by a flying object is entitled to immediate examination by a doctor, and to replacement of the broken lens. Teague v. Graning Hardwood Mfg. Co., 238 Miss. 48, 117 So. 2d 342, 1960 Miss. LEXIS 375 (Miss. 1960).

Where reputable doctors determined that the process of claimant’s recovery from an injury resulting from an accident arising within the course of his employment required the extraction of his lower teeth, the employer was properly required to provide for the claimant a lower set of false teeth to replace those extracted. B. C. Rogers & Sons v. Reeves, 232 Miss. 309, 98 So. 2d 875, 1957 Miss. LEXIS 477 (Miss. 1957).

4. —Employer not required to provide.

Substantial evidence supported the Mississippi Workers’ Compensation Commission’s denial of an employee’s treatment request because (1) an expert said the treatment was not needed or causally related to the employee’s work injury, as the employee did not have complex regional sympathetic dystrophy and the employee’s pain complaints were due to non-work-related psychological issues, (2) the employee’s medical records did not address the complaints’ relation to the employee’s compensable injury, and (3) this did not deny the employee’s right to select a physician. Hamilton v. Southwire Co., 191 So.3d 1275, 2016 Miss. App. LEXIS 264 (Miss. Ct. App. 2016).

Employee was not entitled to certiorari relief because an administrative law judge (ALJ) correctly found that the employee’s treatment by three doctors fell outside the appropriate statutory chain of referral, the record did not support the employee’s assertion that the ALJ and the Mississippi Workers’ Compensation Commission disregarded the medical testimony of her unauthorized physicians, and the Commission’s findings were supported by substantial evidence. Allegrezza v. Greenville Mfg. Co., 122 So.3d 719, 2013 Miss. LEXIS 474 (Miss. 2013).

Referrals to additional neurosurgeons required prior approval from either the employer or the Workers’ Compensation Commission under Miss. Code Ann. §71-3-15(1). Because the employee did not show any evidence that she was denied approval or sought assistance from the Commission, the employer was not responsible for the medical expenses of two doctors. Wal-Mart Stores, Inc. v. Patrick, 5 So.3d 1119, 2008 Miss. App. LEXIS 394 (Miss. Ct. App. 2008), cert. denied, 11 So.3d 1250, 2009 Miss. LEXIS 182 (Miss. 2009).

Appellate court held an employer was not obligated to pay for a claimant’s continuing treatment as it had been determined that the claimant had reached maximum medical improvement with regard to his closed head injury, and his continued treatment was necessary due to a preexisting bipolar disorder. Havard v. Titan Tire Corp., 919 So. 2d 995, 2005 Miss. App. LEXIS 429 (Miss. Ct. App. 2005).

Physicians’ testimony that smoking would not have caused the fibrotic scarring to the lungs that the employee suffered, was not wholly conclusive, but was supported by substantial evidence, as was evidence of the employee’s decreased earning capacity, because the employee required the assistance of a co-employee for more strenuous tasks; thus, the employee’s award of benefits for permanent disability and loss of wage-earning capacity was proper. Cooper Tire & Rubber Co. v. Harris, 837 So. 2d 789, 2003 Miss. App. LEXIS 79 (Miss. Ct. App. 2003), amended, 2003 Miss. App. LEXIS 301 (Miss. Ct. App. Apr. 8, 2003).

Where injured employee failed to get his employer’s approval to get subsequent treatment from other doctors, after the doctor provided by his employer found the employee had reached maximum medical recovery, and the first doctor the employee went to agreed the employee had reached maximum medical recovery, there was no error in finding the subsequent treatment was not reasonable. Congleton v. Shellfish Culture, Inc., 807 So. 2d 492, 2002 Miss. App. LEXIS 80 (Miss. Ct. App. 2002).

The employer was not required to pay for services rendered by a particular physician where (1) approximately 10 months after the claimant’s injury, the physician examined him for neck pain, and (2) prior to this examination, the claimant had not complained principally of neck pain which resulted from his work injury; based on these facts as well as a comparison of the results of MRI tests, the commission properly found that the claimant did not sustain a compensable neck injury and properly denied payment of the physician’s bills. Bowen v. City of Holly Springs, 755 So. 2d 1103, 1999 Miss. App. LEXIS 257 (Miss. Ct. App. 1999).

The Workers’ Compensation Commission properly found that treatments consisting of a series of epidural blocks, trigger point injections, electrical stimulation, traction, and physical therapy were neither reasonable nor necessary where the claimant testified that she only obtained temporary benefit from the treatments and the commission was unable to find any measurable improvement as a result. Baugh v. Central Miss. Planning & Dev. Dist., 740 So. 2d 342, 1999 Miss. App. LEXIS 154 (Miss. Ct. App. 1999).

One whose pre-existing injury was aggravated by his employment is not entitled to the provision of surgical treatment where other treatment has restored him to his pre-accident condition. Lloyd Ford Co. v. Price, 240 Miss. 250, 126 So. 2d 529, 1961 Miss. LEXIS 456 (Miss. 1961).

5. —Failure to supply.

The statute requiring the employer to furnish medical services is mandatory in form, and the employer is not relieved of his duty to furnish such medical services by the mere offer of the foreman to carry the claimant to town to see a doctor immediately after an injury and the claimant’s failure to accept that offer. Pepper v. Barrett, 225 Miss. 30, 82 So. 2d 580, 1955 Miss. LEXIS 555 (Miss. 1955).

Where claimant, who suffered a heart attack while working as a helper on an oil well servicing crew, went to his personal physician after the employer had failed to supply medical help, the claimant was entitled to medical benefits. Thornbrough Well Servicing Co. v. Brown, 223 Miss. 322, 78 So. 2d 159, 1955 Miss. LEXIS 383 (Miss. 1955).

6. —Failure to request.

Preapproval of the neurosurgeon’s treatment was not required, because there was only one referral from the treating physician. Miller v. Johnson Controls, 138 So.3d 248, 2014 Miss. App. LEXIS 247 (Miss. Ct. App. 2014).

Mississippi Workers’ Compensation Commission’s refusal to consider the treatments of the claimant by three doctors and the denial of the claimant’s motion to amend her petition to claim psychological overlay were proper as the claimant failed to seek permission from the employer or its carrier before receiving treatment from those doctors as required by Miss. Code Ann. §71-3-15(1); no evidence of psychiatric complaints existed before the claimant’s release to return to work under the rehabilitation specialist’s restrictions. Allegrezza v. Greenville Mfg. Co., 122 So.3d 755, 2012 Miss. App. LEXIS 594 (Miss. Ct. App. 2012), aff'd, 122 So.3d 719, 2013 Miss. LEXIS 474 (Miss. 2013).

Workers’ compensation claimant’s obtaining of medical treatment by a doctor outside of the chain-of-referral merely because it was more convenient to his home did not constitute an emergency where there was no serious effort by the claimant to obtain approval for the medical treatment. Mosby v. Farm Fresh Catfish Co., 19 So.3d 789, 2009 Miss. App. LEXIS 669 (Miss. Ct. App. 2009).

An employee who had gone to his own private family physician and had not requested that his employer send him to a company doctor after he became ill was nonetheless entitled to recover his medical expenses where the employee had not become aware of the seriousness of his disease or its relation to his employment until he had been released from the hospital and where the employee and his doctors had used reasonable care and diligence to determine the true nature of the disease. Sperry-Vickers, Inc. v. Honea, 394 So. 2d 1380, 1981 Miss. LEXIS 1968 (Miss. 1981).

In a proceeding by a paraplegic for compensation for the assistance rendered by his wife over and above that called for by her ordinary duties (§71-3-1 et seq), the claimant’s compliance with the request requirement of this section was evidenced by the insurer’s letter denying the requested compensation and by the administrative law judge’s responses to interrogatories concerning the paraplegic’s preservation of his rights at the time of the hearing on a petition requesting modification of his home. Sanders v. State, 379 So. 2d 538, 1980 Miss. LEXIS 1914 (Miss. 1980).

The refusal of a claimant suffering from a ruptured disc in the lower part of his spine to undergo an operation for the condition on the ground that he was afraid of the operation was not unreasonable. Triangle Distributors v. Russell, 268 So. 2d 911, 1972 Miss. LEXIS 1214 (Miss. 1972).

When an employer furnished medical treatment for a claimant’s injury, but the claimant became dissatisfied with that treatment and consulted a doctor of his own choosing without advising his employer of his decision to do so, and the claimant made no demand upon the employer to provide for an operation found to be necessary by the new physician, the employer, although liable for the cost of the claimant’s examination by the new physician not to exceed $100, was not liable for the cost of the operation. Williamson v. Delta Millworks, Inc., 262 So. 2d 183, 1972 Miss. LEXIS 1311 (Miss. 1972).

A claimant, allegedly injured on the job two weeks previously, who returned to his home in another town while on his way to work, from a desire to have his family physician attend him, rather than because of an emergency, could not recover all of his subsequent medical expenses from his employer, in the absence of evidence that the employer knew of claimant’s actual condition and therefore had an opportunity to provide necessary treatment. Ingalls Shipbuilding Corp. v. Holcomb, 217 So. 2d 18, 1968 Miss. LEXIS 1254 (Miss. 1968).

This section [Code 1942, § 6998-08] limits the liability of the employer for the bills of physicians called by the injured employee without having requested further service from the employer. Smith v. Crown Rigs, Inc., 245 Miss. 311, 148 So. 2d 195, 1963 Miss. LEXIS 521 (Miss. 1963).

Where neither employee nor employer was aware of seriousness of employee’s injuries, and employee made no request that employer furnish medical services, but undertook to provide medical help for himself, an award might not thereafter be made against employer for accrued medical and hospital bills. Ingalls Shipbuilding Corp. v. Byrd, 215 Miss. 234, 60 So. 2d 645, 1952 Miss. LEXIS 558 (Miss. 1952).

7. Refusal to submit to examination or treatment.

Substantial evidence supported the Mississippi Workers’ Compensation Commission’s decision to deny a claimant total disability benefits because various physicians who saw the claimant determined that the claimant’s failure to participate steadfastly in recommended physical therapy impacted the claimant’s condition. Blackwell v. Howard Indus., 243 So.3d 774, 2018 Miss. App. LEXIS 43 (Miss. Ct. App. 2018).

Substantial evidence supported the Workers’ Compensation Commission’s decision finding that the claimant was entitled to permanent partial disability benefits commensurate with an impairment rating of only 10 percent where there was testimony that the claimant’s failure to follow through with her physical therapy may well have been the reason for her loss of motion range. Posey v. United Methodist Senior Servs., 773 So. 2d 976, 2000 Miss. App. LEXIS 562 (Miss. Ct. App. 2000).

Workmen’s Compensation Commission did not err in requiring claimant to submit to medical examination after, and not prior to, making the award in favor of the claimant. Roberts v. Junior Food Mart, 308 So. 2d 232, 1975 Miss. LEXIS 1855 (Miss. 1975).

The commission’s authority to order a claimant to submit to a medical examination by a physician of its choice is clear. Everitt v. Lovitt, 192 So. 2d 422, 1966 Miss. LEXIS 1257 (Miss. 1966).

Whether an injured employee’s refusal to submit to proper medical treatment is unreasonable is ordinarily a question of fact for the determination of the Workmen's Compensation Commission. Walker v. International Paper Co., 230 Miss. 95, 92 So. 2d 445, 1957 Miss. LEXIS 349 (Miss. 1957).

The burden of proving that an operation tendered to an insured workman is simple, safe, and will probably affect a cure or substantial improvement for the employee was upon the employer. Walker v. International Paper Co., 230 Miss. 95, 92 So. 2d 445, 1957 Miss. LEXIS 349 (Miss. 1957).

While an injured workman will be denied compensation for incapacity which may be removed or modified by an operation of a simple character, not involving serious suffering or danger, where the operation is of a serious character, involves serious suffering or danger, or is doubtful of success, an injured employee’s refusal to submit to such an operation is not unreasonable, and the right to compensation is not precluded by such refusal. Walker v. International Paper Co., 230 Miss. 95, 92 So. 2d 445, 1957 Miss. LEXIS 349 (Miss. 1957).

Since the workmen’s compensation commission’s order, holding that a claimant’s refusal to submit to surgery for a herniated disc was not unreasonable and was supported by substantial evidence, the commission’s order awarding claimant compensation was reinstated and affirmed. Walker v. International Paper Co., 230 Miss. 95, 92 So. 2d 445, 1957 Miss. LEXIS 349 (Miss. 1957).

8. Patient-physician communication privilege.

Code 1942, § 6998-08 does not prohibit the invocation of the patient-physician communication privilege in proceedings before the Mississippi workmen’s compensation commission. Cooper's, Inc. of Mississippi v. Long, 224 So. 2d 866, 1969 Miss. LEXIS 1301 (Miss. 1969).

Although the patient-physician communication privilege rule of evidence is not abolished by the Workmen’s Compensation Law except insofar as it is specifically provided under Code 1942, § 6998-08, there is, however, under Code 1942, § 6998-28 a grant of authority to the workmen’s compensation commission to relax, in its discretion, the traditional common law and statutory rules of evidence in order to obtain a full development of the facts concerning each claim; and, in the instant case the attorney referee did not abuse his discretion in refusing to relax the patient-physician communication privilege in order to let in testimony concerning the claimant’s alleged pre-existing injury. Cooper's, Inc. of Mississippi v. Long, 224 So. 2d 866, 1969 Miss. LEXIS 1301 (Miss. 1969).

9. Limitation periods.

A physician’s failure to file his medical reports with either the employer/carrier or the Mississippi Workers’ Compensation Commission did not bar the claimant from asserting that his 1991 leg injury was the cause of his subsequent venous condition; the filing deadline on which the employer/carrier centered its argument was in no sense jurisdictional and the statute goes to compensation of work related injuries and not to establishing the causation. Siemens Energy & Automation, Inc. v. Pickens, 732 So. 2d 276, 1999 Miss. App. LEXIS 268 (Miss. Ct. App. 1999).

An application for additional medical benefits by claimant who had refused to sign the final report and settlement receipt was timely where filed within less than one year after the claimant had received notice that the employer had filed with the workmen’s compensation commission a final report and settlement receipt, properly filled out. International Paper Co. v. Evans, 244 Miss. 49, 140 So. 2d 271, 1962 Miss. LEXIS 422 (Miss. 1962).

The limitation period for making application for an adjudication of claimant’s right to receive medical attention after payment of maximum benefits, does not begin to run while the claimant is receiving such attention. Gibbs v. Bass, 237 Miss. 823, 116 So. 2d 542, 1959 Miss. LEXIS 537 (Miss. 1959).

Payment of medical expense is payment of compensation tolling the statute of limitations. Graeber Bros., Inc. v. Taylor, 237 Miss. 691, 115 So. 2d 735, 1960 Miss. LEXIS 502 (Miss. 1960).

The Workmen’s Compensation Law evidences the legislative intent to put the same period of limitations on the payment of medical benefits as has been put on the payment of compensation. Trehern v. Grafe Auto Co., 232 Miss. 854, 100 So. 2d 786, 1958 Miss. LEXIS 339 (Miss. 1958).

Where a claimant, who had been paid some medical expenses and compensation benefits, together with the carrier, executed a form under which the claim was closed, a claim for additional medical benefits filed nearly four years later was barred by the statute of limitations. Trehern v. Grafe Auto Co., 232 Miss. 854, 100 So. 2d 786, 1958 Miss. LEXIS 339 (Miss. 1958).

10. Choice of physicians.

Lower court erred in overruling an order from the Mississippi Workers’ Compensation Commission that an injured employee did not need surgery because the Commission based its findings on the opinions of two competent doctors and on the findings of medical tests and procedures. Lower court’s application of caselaw was contrary to Miss. Code Ann. §71-3-15(1), which allowed the employer to have the employee examined by a physician other than one of the employee’s choosing. Hardaway Co. v. Bradley, 887 So. 2d 793, 2004 Miss. LEXIS 1377 (Miss. 2004).

Corporation’s argument that insurance carrier and its employee, the adjuster, could not choose which home nursing services provider to pay for was without merit; the language of Miss. Code Ann. §71-3-15 did not provide that the injured employee had the right to choose his nurse or therapist, the record did not reveal that the doctor remained to administer care to the patient, he merely referred the injured employee to a home health care provider. PDN, Inc. v. Loring, 843 So. 2d 685, 2003 Miss. LEXIS 198 (Miss. 2003).

Under the pre-1992 version of the statute, which permitted a claimant “to select a competent physician of his choosing to administer medical treatment,” an initial physician such as the claimant’s family doctor could make a preliminary diagnosis and then refer the claimant to someone more expert regarding that ailment; there was no legislative limit on the number of referrals that successive doctors could make as proper care for a claimant. Dulaney v. National Pizza Co., 733 So. 2d 301, 1998 Miss. App. LEXIS 990 (Miss. Ct. App. 1998).

Once a claimant has fully abandoned an employer’s doctors, the claimant may again exercise discretion to see a personal choice physician. Dulaney v. National Pizza Co., 733 So. 2d 301, 1998 Miss. App. LEXIS 990 (Miss. Ct. App. 1998).

A claimant may change her choice between employer-provided and personally-selected physicians, but at all times a choice has to be made. Dulaney v. National Pizza Co., 733 So. 2d 301, 1998 Miss. App. LEXIS 990 (Miss. Ct. App. 1998).

11. Medical records.

Subsection (6) was interpreted as opening up for consideration by the Workers’ Compensation Commission all medical records generated as a part of the claimant’s treatment for the injuries that formed the basis for his claim; this interpretation was neutral and not prejudicial to either side in a contested claim since it was often the case that the patient history would reflect the claimant’s contention that the injury occurred on the job, rather than an assertion to the contrary, and that contention would be a proper factor in the commission’s inquiry. Nosser v. First Am. Credit Corp., 814 So. 2d 178, 2002 Miss. App. LEXIS 193 (Miss. Ct. App. 2002).

RESEARCH REFERENCES

ALR.

Insured’s receipt of or right to workmen’s compensation benefits as affecting recovery under accident, hospital, or medical expense policy. 40 A.L.R.3d 1012.

Modern status of effect of state workmen’s compensation act on right of third-person tortfeasor to contribution or indemnity from employer of injured or killed workman. 100 A.L.R.3d 350.

Workers’ compensation: recovery for home service provided by spouse. 67 A.L.R.4th 765.

Workers’ compensation: reasonableness of employee’s refusal of medical services tendered by employer. 72 A.L.R.4th 905.

“Dual Capacity Doctrine” as basis for employee’s recovery for medical malpractice from company medical personnel. 73 A.L.R.4th 115.

Workers’ compensation: third-party tort liability of corporate officer to injured workers. 76 A.L.R.4th 365.

Workers’ compensation: compensability of injuries incurred traveling to or from medical treatment of earlier compensable injury. 83 A.L.R.4th 110.

Workers’ compensation as covering cost of penile or similar implants related to sexual or reproductive activity. 89 A.L.R.4th 1057.

Employee’s reimbursement for travel expenses incurred in obtaining treatment or work-related injury. 36 A.L.R.5th 225.

Compensability of specially equipped van or vehicle under workers’ compensation statutes. 63 A.L.R.5th 163.

Am. Jur.

82 Am. Jur. 2d, Workers’ Compensation §§ 392 et seq.

21 Am. Jur. Pl & Pr Forms (Rev), Workmen’s Compensation, Form 172, 173.

25 Am. Jur. Pl & Pr Forms (Rev), Workmen’s Compensation, Forms 171-173.

47 Am. Jur. Proof of Facts 2d 525, Medicolegal Malpractice: Wrongful Claim Review by Physician.

49 Am. Jur. Proof of Facts 2d 331, Medicolegal Malpractice: Wrongful Medical Evaluation.

7 Am. Jur. Proof of Facts 3d 143, Workers’ Compensation for Attendant Care Services by Family Members.

8 Am. Jur. Proof of Facts 3d 145, Use of CAT Scans in Litigation.

CJS.

99 C.J.S., Workers’ Compensation §§ 485, 486, 500 et seq.

Law Reviews.

1979 Mississippi Supreme Court Review: Administrative Law. 50 Miss. L. J. 699.

§ 71-3-17. Compensation for disability.

Compensation for disability shall be paid to the employee as follows:

Permanent total disability: In case of total disability adjudged to be permanent, sixty-six and two-thirds percent (66-2/3%) of the average weekly wages of the injured employee, subject to the maximum limitations as to weekly benefits as set up in this chapter, shall be paid to the employee not to exceed four hundred fifty (450) weeks or an amount greater than the multiple of four hundred fifty (450) weeks times sixty-six and two-thirds percent (66-2/3%) of the average weekly wage for the state. Loss of both hands, or both arms, or both feet, or both legs, or both eyes, or of any two (2) thereof shall constitute permanent total disability. In all other cases, permanent total disability shall be determined in accordance with the facts.

Temporary total disability: In case of disability, total in character but temporary in quality, sixty-six and two-thirds percent (66-2/3%) of the average weekly wages of the injured employee, subject to the maximum limitations as to weekly benefits as set up in this chapter, shall be paid to the employee during the continuance of such disability not to exceed four hundred fifty (450) weeks or an amount greater than the multiple of four hundred fifty (450) weeks times sixty-six and two-thirds percent (66-2/3%) of the average weekly wage for the state. Provided, however, if there arises a conflict in medical opinions of whether or not the claimant has reached maximum medical recovery and the claimant’s benefits have been terminated by the carrier, then the claimant may demand an immediate hearing before the commissioner upon five (5) days’ notice to the carrier for a determination by the commission of whether or not in fact the claimant has reached maximum recovery.

Permanent partial disability: In case of disability partial in character but permanent in quality, the compensation shall be sixty-six and two-thirds percent (66-2/3%) of the average weekly wages of the injured employee, subject to the maximum limitations as to weekly benefits as set up in this chapter, which shall be paid following compensation for temporary total disability paid in accordance with paragraph (b) of this section, and shall be paid to the employee as follows:

Member Lost Number Weeks Compensation (1) Arm 200 (2) Leg 175 (3) Hand 150 (4) Foot 125 (5) Eye 100 (6) Thumb 60 (7) First finger 35 (8) Great toe 30 (9) Second finger 30 (10) Third finger 20 (11) Toe other than great toe 10 (12) Fourth finger 15 (13) Testicle, one 50 (14) Testicle, both 150 (15) Breast, female, one 50 (16) Breast, female, both 150

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Loss of hearing:Compensation for loss of hearing of one (1) ear, forty (40) weeks.Compensation for loss of hearing of both ears, one hundred fifty (150)weeks.

Phalanges: Compensationfor loss of more than one (1) phalange of a digit shall be the sameas for loss of the entire digit. Compensation for loss of the firstphalange shall be one-half (1/2) of the compensation for loss ofthe entire digit.

Amputated armor leg: Compensation for an arm or leg, if amputated at or above wristor ankle, shall be for the loss of the arm or leg.

Binocular visionor percent of vision: Compensation for loss of binocular vision orfor eighty percent (80%) or more of the vision of an eye shall bethe same as for loss of the eye.

Two (2) or moredigits: Compensation for loss of two (2) or more digits, or one (1)or more phalanges of two (2) or more digits, of a hand or foot maybe proportioned to the loss of the use of the hand or foot occasionedthereby, but shall not exceed the compensation for loss of a handor foot.

Total loss ofuse: Compensation for permanent total loss of use of a member shallbe the same as for loss of the member.

Partial lossor partial loss of use: Compensation for permanent partial loss orloss of use of a member may be for proportionate loss or loss of useof the member.

Disfigurement:The commission, in its discretion, is authorized to award proper andequitable compensation for serious facial or head disfigurements notto exceed Five Thousand Dollars ($5,000.00). No such award shall bemade until a lapse of one (1) year from the date of the injury resultingin such disfigurement.

Other cases:In all other cases in this class of disability, the compensation shallbe sixty-six and two-thirds percent (66-2/3%) of the differencebetween his average weekly wages, subject to the maximum limitationsas to weekly benefits as set up in this chapter, and his wage-earningcapacity thereafter in the same employment or otherwise, payable duringthe continuance of such partial disability, but subject to reconsiderationof the degree of such impairment by the commission on its own motionor upon application of any party in interest. Such payments shallin no case be made for a longer period than four hundred fifty (450)weeks.

In any case inwhich there shall be a loss of, or loss of use of, more than one (1)member or parts of more than one (1) member set forth in subparagraphs(1) through (23) of this paragraph (c), not amounting to permanenttotal disability, the award of compensation shall be for the lossof, or loss of use of, each such member or parts thereof, which awardsshall run consecutively, except that where the injury affects onlytwo (2) or more digits of the same hand or foot, subparagraph (21)of this paragraph (c) shall apply.

HISTORY: Codes, 1942, § 6998-09; Laws, 1948, ch. 354, § 8a-c; Laws, 1950, ch. 412, § 6; Laws, 1958, ch. 454, § 3; Laws, 1968, ch. 559, § 5; Laws, 1972, ch. 522, § 3; Laws, 1976, ch. 459, § 2; Laws, 1979, ch. 442, § 2; Laws, 1981, ch. 341, § 2; reenacted, Laws, 1982, ch. 473, § 9; Laws, 1984, ch. 402, § 2; Laws, 1988, ch. 446, § 3; reenacted without change, Laws, 1990, ch. 405, § 9; Laws, 2012, ch. 522, § 4, eff from and after July 1, 2012.

Editor’s Notes —

Laws of 1988, ch. 446, § 6, provides as follows:

“SECTION 6. This act shall take effect and be in force from and after July 1, 1988; provided, however, the increase in benefits allowed under this act shall apply only to claims arising on or after July 1, 1988”.

Laws of 2012, ch. 522, §§ 10 and 11, provide:

“SECTION 10. The Workers’ Compensation Commission shall promulgate a written statement specifying the changes made to the Workers’ Compensation Law by this act to every employer in this state subject to the Workers’ Compensation Law. Within ten (10) days of receipt of this written statement from the Commission, every employer shall post the Commission’s statement in a conspicuous place or places in and about his place or places of business and adjacent to the Notice of Coverage as required by Section 71-3-81.

“SECTION 11. This act shall take effect and be in force from and after July 1, 2012, and shall apply to injuries occurring on or after July 1, 2012.”

Amendment Notes —

The 2012 amendment substituted “Five Thousand Dollars ($5,000.00)” for “Two Thousand Dollars ($2,000.00)” in (c)(24); and made minor stylistic changes throughout.

Cross References —

State employee who is absent and disabled from work due to work-related injury prohibited from receiving more than 100% of his wages through the use of accrued personal and medical leave combined with certain workers’ compensation benefits, see §25-3-95.

Maximum and minimum recovery, see §71-3-13.

Provision of medical services and supplies, see §71-3-15.

Temporary partial disability, see §71-3-21.

Additional compensation, see §§71-3-23 (hernia),71-3-25 (death),71-3-27 (for aliens),71-3-71 (for injuries where third parties are liable),71-3-107 (for minors illegally employed).

Determination of wages, see §71-3-31.

JUDICIAL DECISIONS

1. In general.

2. Multiple injuries.

3. Weekly wage.

4. Wage earning capacity, generally.

5. — Efforts to gain employment.

6. —Burden of proof.

7. —Presumption.

8. —Disability percentage not indicative of reduction in earning capacity.

9. — Particular cases; no loss in earning capacity.

10. — — Loss in earning capacity demonstrated.

11. Amount of recovery.

12. Loss of or injury to scheduled members.

13. Loss of or injury to non-scheduled members.

14. Calculation of disability period limitation.

15. Disability rating.

16. Pre-existing disease or infirmity.

17. —Apportionment.

18. Multiple injuries.

19. Maximum medical improvement.

20. Effect of receipt of disability benefits.

1. In general.

Workers’ Compensation Commission properly determined that an employee was capable of performing the substantial acts of her usual employment and that she was not permanently and totally disabled or entitled to benefits because the employee’s testimony that she was unable to perform the jobs offered to her upon her return to the employer, combined with her contention that she was unemployable, was insufficient to overcome the high burden of showing that the Commission’s decision was unsupported by substantial evidence, and she failed to provide any evidence or testimony that she was, in fact, unable to perform the job presented to her when she returned to the employer for a few hours. Smith v. Howard Indus., Inc., 271 So.3d 774, 2018 Miss. App. LEXIS 647 (Miss. Ct. App. 2018).

Award of permanent partial disability benefits was upheld and the employer’s argument that the claimant did not document a job search for a year and a half after he was terminated and reached maximum medical improvement went to the weight of the evidence, not its sufficiency. Howard Indus. v. Hardaway, 191 So.3d 1257, 2015 Miss. App. LEXIS 465 (Miss. Ct. App. 2015), cert. denied, 202 So.3d 208, 2016 Miss. LEXIS 207 (Miss. 2016).

Employee was not entitled to any benefits in excess of those already paid by the employer because she did not establish any additional loss of industrial use in excess of her medical ratings, and she was currently employed within her restrictions and earning a higher wage than her pre-injury wage. Gaston v. Tyson Foods, Inc., 122 So.3d 797, 2013 Miss. App. LEXIS 603 (Miss. Ct. App. 2013).

Where there was conflicting medical evidence regarding a claimant’s lumbar condition and her need for lumbar spine injury, an appellate court could not say that the Workers’ Compensation Commission’s decision to deny benefits was arbitrary and capricious. Washington v. Woodland Vill. Nursing Home, 25 So.3d 341, 2009 Miss. App. LEXIS 108 (Miss. Ct. App. 2009), cert. denied, 24 So.3d 1038, 2010 Miss. LEXIS 2 (Miss. 2010).

Where an employee suffered a back injury while working, an administrative law judge’s (ALJ) finding that an elective back surgery, related treatment, and psychological care were non-compensable was upheld because, inter alia, (1) the ALJ was not required to defer to “treating” or patient-selected physicians, (2) substantial evidence supported the finding that the employee did not require surgery, and (3) there was evidence that the employee had underlying psychiatric problems stemming from childhood abuse unrelated to the work injury. Manning v. Sunbeam-Oster Household Prods., 979 So. 2d 736, 2008 Miss. App. LEXIS 230 (Miss. Ct. App. 2008).

Mississippi Workers’ Compensation Commission correctly found that the employee was entitled to permanent partial disability benefits where his treating physician testified to a reasonable degree of medical certainty that there were no other caused of the employee’s blindness other than the trauma suffered as a result of the work-related accident. Metalloy Corp. v. Gathings, 990 So. 2d 191, 2007 Miss. App. LEXIS 593 (Miss. Ct. App. 2007).

Denial of appellee’s workers’ compensation claim was not supported by substantial evidence; appellee contemporaneously and consistently reported her injury to three supervisors as well as doctors, she had no history of back trouble, the claim was not contradicted the fact that she used personal insurance to pay for her visits, and medical records corroborated the time, nature, and origin of injury. Waffle House, Inc. v. Allam, 976 So. 2d 919, 2007 Miss. App. LEXIS 466 (Miss. Ct. App. 2007), cert. denied, 977 So. 2d 343, 2008 Miss. LEXIS 75 (Miss. 2008).

Where several doctors opined that an employee’s repetitive act of reaching for a time clock 300 to 400 times per day aggravated a pre-existing condition, temporary total disability benefits were properly awarded due to Miss. Code Ann. §71-3-3(b). Casino Magic v. Nelson, 958 So. 2d 224, 2007 Miss. App. LEXIS 41 (Miss. Ct. App. 2007).

Employer’s claim that the employee was not entitled to benefits in a workers’ compensation action because she did not conduct a job search was inappropriate because a job search was not part of the employee’s burden of proof since loss of use of two major scheduled members automatically gave rise to permanent total disability and 450 weeks of benefits as set forth in Miss. Code Ann. §71-3-17(a)(c)(22). Union Camp Corp. v. Hall, 955 So. 2d 363, 2006 Miss. App. LEXIS 696 (Miss. Ct. App. 2006), cert. dismissed, 956 So. 2d 228, 2007 Miss. LEXIS 215 (Miss. 2007).

Where a claimant’s injury was not scheduled, the court determined on the facts that the claimant was not entitled to partial permanent disability benefits under Miss. Code Ann. §71-3-3(i) as the claimant failed to establish that he had sought similar work as a tire builder and the employer had refused to rehire or reinstate him. Havard v. Titan Tire Corp., 919 So. 2d 995, 2005 Miss. App. LEXIS 429 (Miss. Ct. App. 2005).

Medical testimony from the employee’s treating physicians supported the permanence of his disability as follows: (1) one physician testified that he had suffered a 20 percent permanent medical impairment to his entire body due to his neck injury’ (2) a second physician restricted him to medium duty based on clinical examinations, diagnostic tests, and his complaints of pain; (3) three years after the accident, the employee was further restricted to light duty; and (4) a third physician concluded that he would “never be able to return to duty without severe spasm.” The record was clear that he was unable to return to his work as a diesel mechanic due to his injury, and that he had also incurred a 50 percent reduction in his earning capacity given his pain, his age, and his occupational history. Bryan Foods, Inc. v. White, 913 So. 2d 1003, 2005 Miss. App. LEXIS 266 (Miss. Ct. App.), cert. denied, 921 So. 2d 344, 2005 Miss. LEXIS 710 (Miss. 2005).

Employee was not entitled to permanent disability benefits where the Workers’ Compensation Commission found that the employee’s pre-existing condition, as shown by her 1993 and 1998 post-injury x-ray was aggravated by her May 25, 1998 work injury; however, as illustrated by her videotaped exploits, the temporary effects of that work injury had fully subsided and any subsequent disability was attributable to the preexisting disease or condition. Lee v. Singing River Hosp., 908 So. 2d 159, 2005 Miss. App. LEXIS 303 (Miss. Ct. App. 2005).

Mississippi Workers’ Compensation Commission properly found there was no medical evidence to support a claim for disability, either temporary or total, as a result of the employee’s four slip and falls in October and November of 1997, nor was there any testimony to connect the employee’s alleged injuries to the falls. One of his primary physicians, testified that the employee’s complaints were the same as his complaints in 1995 after an accident the employee had while working for a different employer, and although he had gone to the emergency room after two of the 1997 falls, he did not thereafter seek treatment, and it was not until October of 1998 that he saw his primary physician and complained of an on-the-job injury while working for the employer in the case at bar; the employee admitted that he recovered from his preexisting back injuries sufficiently to enable him to maintain gainful employment, and any subsequent disability the employee claimed was not compensable. Eubanks v. Prof'l Bldg. Servs., 909 So. 2d 1132, 2005 Miss. App. LEXIS 68 (Miss. Ct. App. 2005).

Although the evidence conflicted, there was some evidence to suggest that the claimant had attempted to find subsequent employment, and because there was such evidence, the trial court’s decision to affirm the Mississippi Workers’ Compensation Commission’s ruling in awarding the claimant benefits was not clearly erroneous; despite conflicting evidence regarding the claimant’s notification of her injury and her possible motivations for asserting a claim, the administrative judge concluded that she had sustained a work-related injury and chose to disregard the employer’s assertions to the contrary. Merit Distrib. Servs., Inc. v. Hudson, 883 So. 2d 134, 2004 Miss. App. LEXIS 943 (Miss. Ct. App. 2004).

Disability is determined by actual physical injury and loss of wage earning capacity. Sherwin Williams v. Brown, 877 So. 2d 556, 2004 Miss. App. LEXIS 655 (Miss. Ct. App. 2004).

Workers’ compensation claimant’s failure to pursue the remedy provided by Miss. Code Ann. §71-3-17(b) – i.e., to seek an immediate hearing on the insurer’s termination of benefits – weighed on his claims for emotional and mental distress damages brought in his bad faith claim against the insurer, but did not bar him from pursuing that bad faith claim. Liberty Mut. Ins. Co. v. McKneely, 862 So. 2d 530, 2003 Miss. LEXIS 691 (Miss. 2003).

Although a claimant is not entitled to compensation when he or she receives his or her regular salary in lieu of compensation, sick pay, vacation pay, donations or gratuities are not salary in lieu of compensation; thus, a claimant should have been awarded benefits during the time he was on vacation and receiving vacation pay where he was totally disabled at the time he took his vacation leave. Lanterman v. Roadway Express, Inc., 608 So. 2d 1340, 1992 Miss. LEXIS 564 (Miss. 1992).

Section71-3-17(a) covers all cases of permanent total occupational disability, to the exclusion of §71-3-17(c) which by its title and its terms covers only permanent partial occupational disability (although it may be permanent, total loss of use of a specific member); where an employee suffers an injury covered by the schedule in §71-3-17(c) and where that injury results in a permanent loss of wage earning capacity within §71-3-17(a), the latter section controls exclusively and the employee is not limited to the number of weeks of compensation prescribed in § 71-3-17(c)’s schedule. Smith v. Jackson Constr. Co., 607 So. 2d 1119, 1992 Miss. LEXIS 487 (Miss. 1992).

When an injury occurs which is related to the body as a whole, scheduled member standards do not apply; thus, a claimant’s injury had to be treated as an injury to the body as a whole where the injury involved not only his arm, but also his upper shoulder and back. Jordan v. Hercules, Inc., 600 So. 2d 179, 1992 Miss. LEXIS 224 (Miss. 1992), but see Dulaney v. National Pizza Co., 733 So. 2d 301, 1998 Miss. App. LEXIS 990 (Miss. Ct. App. 1998).

There was substantial evidence supporting a finding by the Workers’ Compensation Commission that a claimant’s impairment was a whole body injury rather than a schedule numbered injury only, where a physician identified the claimant’s malady as Meniere’s Syndrome, and he testified that Meniere’s Syndrome is “an inner ear dysfunction that appears to be lifelong in nature” and that it affected the entire body in that, in addition to a loss of hearing, it involved a balance dysfunction affecting the claimant’s activities of daily living, both occupationally and socially. Georgia-Pacific Corp. v. Gregory, 589 So. 2d 1250, 1991 Miss. LEXIS 763 (Miss. 1991).

Generally, “medical” disability is the equivalent of functional disability and relates to actual physical impairment. “Industrial” disability is the functional or medical disability as it affects the claimant’s ability to perform the duties of employment. Robinson v. Packard Electric Div., General Motors Corp., 523 So. 2d 329, 1988 Miss. LEXIS 199 (Miss. 1988).

If claimant sustains compensable injury and receives medical treatment until discharged as cured, testimony of doctor discharging claimant may not be sufficient to rebut another doctor who examines claimant at later date and finds patient to remain in disability status, especially where claimant testifies to continued disability from injury, and thus employee with lower back injuries sustained at work was entitled to temporary total disability benefits, where testimony by employee and doctor who last saw him neither conflicted with other medical testimony nor was discredited. Davis v. Scotch Plywood Co., 505 So. 2d 1192, 1987 Miss. LEXIS 2409 (Miss. 1987).

Although workers’ compensation claimant is not entitled to compensation benefits during week in which employer pays or causes to be paid to claimant under company benefit plan amount at least as much as worker’s compensation otherwise payable; however, employer is not entitled to credit for amount paid in excess of amount required to be paid as worker’s compensation, to be applied in reducing compensation payments payable after cessation of payments under benefit plan. South Cent. Bell Tel. Co. v. Aden, 474 So. 2d 584, 1985 Miss. LEXIS 2197 (Miss. 1985).

If the claimant is paid his usual wages, although he does no work at all following an injury, it is a reasonable inference that the payment is in lieu of compensation and any further compensation should not be allowed. George S. Taylor Constr. Co. v. Harlow, 269 So. 2d 337, 1972 Miss. LEXIS 1220 (Miss. 1972).

The widow of a workman, who sustained a back injury during the course of his employment and who died before the entire amount of the disability award was paid, could not recover unaccrued installments of disability benefits as part of her deceased husband’s estate. Southern Brick & Tile Co. v. Clark, 247 So. 2d 692, 1971 Miss. LEXIS 1443 (Miss. 1971).

Since a claim for disability is separate and distinct from a claim for death benefits, the 1960 amendment to subsection (9) of Code 1942, § 6998-02 [now subsection (i) of Code 1972, §71-3-3], requiring that incapacity and the extent thereof be supported by medical findings, did not eliminate the presumption of causal connection between the employment and death occurring while the employee is engaged in the duties of his employment, particularly since the 1960 amendment did not affect subsection (3) of Code 1942, § 6998-02 [now subsection (c) of Code 1972, §71-3-3]. L. B. Priester & Son, Inc. v. Bynum, 244 Miss. 185, 137 So. 2d 907, 1962 Miss. LEXIS 438 (Miss. 1962).

One totally disabled from working by a strained back is entitled to compensation although the trouble has not been definitely diagnosed. Wilson v. International Paper Co., 235 Miss. 153, 108 So. 2d 554, 1959 Miss. LEXIS 413 (Miss. 1959).

An award need not use all the terminology of Code 1942, § 6998-09(c)(2) as to the commission’s right of future reconsideration. Marley Constr. Co. v. Westbrook, 234 Miss. 710, 107 So. 2d 104, 1958 Miss. LEXIS 541 (Miss. 1958).

Legislature did not purpose and intend to provide greater benefits for permanent partial disability than for death or permanent total disability, and the court in construing the Workmen’s Compensation Law should give effect to the legislative purpose and policy although such construction may go beyond the letter of the law. J. F. Crowe Well Servicing Contractor v. Fielder, 224 Miss. 353, 80 So. 2d 29, 1955 Miss. LEXIS 499 (Miss. 1955).

2. Multiple injuries.

Claimant may recover for both injury to back and hand arising out of the same accident because statute contains no exclusiveness provision. General Electric Co. v. McKinnon, 507 So. 2d 363, 1987 Miss. LEXIS 2504 (Miss. 1987).

Various parts of the body may be affected as the result of a single trauma. Rivers Constr. Co. v. Dubose, 241 Miss. 527, 130 So. 2d 865, 1961 Miss. LEXIS 371 (Miss. 1961).

3. Weekly wage.

While the Workers’ Compensation Commission did misstate Miss. Code Ann. §71-3-17(25), the Commission used the post-injury weekly wage to aid in the determination of the employee’s loss of earning capacity; therefore, by determining wage-earning capacity and not basing its calculation solely on post-injury wage, the Commission did not commit reversible error on that allegation of error. Nissan N. Am. v. Short, 942 So. 2d 276, 2006 Miss. App. LEXIS 854 (Miss. Ct. App. 2006).

A finding by the Workers’ Compensation Commission that an injured manual laborer who was restricted by his doctor to lifting less than 40 pounds suffered only minimal industrial incapacity was not supported by substantial evidence where the decision was based largely on an alleged policy of the employer requiring workers to seek assistance when lifting more than 40 pounds, but the record contained no evidence of such a policy. DeLaughter v. South Cent. Tractor Parts, 642 So. 2d 375, 1994 Miss. LEXIS 367 (Miss. 1994).

A finding by the Workers’ Compensation Commission that a lumberyard worker had sustained only a 50 percent loss of wage-earning capacity, and therefore suffered only partial rather than total permanent disability, would be reversed where the evidence indicated that he had difficulty performing “make-work” tasks at his employer’s lumberyard after he returned to work and that his efforts to find other employment were unsuccessful, and the Commission’s finding was based on the conclusion that the employee should have been able to secure “some type of gainful employment” merely because he had a high school education. Barnes v. Jones Lumber Co., 637 So. 2d 867, 1994 Miss. LEXIS 282 (Miss. 1994).

Where the deceased employee had been paid a total sum of $202.76 in wages, covering the 6-week period of his employment immediately prior to his death, the correct formula for determining the average weekly wage was to divide the total earnings of $202.76 by 6 weeks. Bradshaw v. Rudder, 227 Miss. 143, 85 So. 2d 778, 1956 Miss. LEXIS 665 (Miss. 1956).

4. Wage earning capacity, generally.

Given that a loss of wage-earning capacity is only pertinent to Miss. Code Ann. §71-3-17(c)(25) with respect to a finding of permanent partial disability, and the worker should have been assessed a loss of wage-earning capacity, if the Workers’ Compensation Commission were to find that the worker’s disability was permanent and partial, then §71-3-17(c)(25) would apply, and for permanent and total disability, §71-3-17(a) would apply, not §71-3-17(c)(2) as applied by the Commission. Logan v. Klaussner Furniture Corp., — So.3d —, 2017 Miss. App. LEXIS 474(Miss. Ct. App. Aug. 15, 2017).

Loss of wage earning capacity is only pertinent when a court has found the disability calculation should be governed by criteria other than the limited scheduled-member criteria of Miss. Code Ann. §71-3-17(c)(1)-(24); §71-3-17(c)(25)’s use is for that type of condition where there is permanent partial disability and a loss of wage-earning capacity. Logan v. Klaussner Furniture Corp., 238 So.3d 1166, 2017 Miss. App. LEXIS 474 (Miss. Ct. App. 2017), rev'd, 238 So.3d 1134, 2018 Miss. LEXIS 126 (Miss. 2018).

Claimant did not suffer a loss of industrial use due to a work-related injury, and, therefore, was not entitled to permanent disability benefits because, although there was no dispute that the claimant suffered from bilateral carpal tunnel syndrome, the claimant was released to regular-duty work with no restrictions and found other, albeit part-time, employment. Parker v. Ashley Furniture Indus., 164 So.3d 1081, 2015 Miss. App. LEXIS 165 (Miss. Ct. App. 2015).

Finding by the administrative judge of permanent partial disability and loss of wage-earning capacity of 25 percent for the claimant’s 1996 back injury was supported by the evidence as this injury did not render the claimant permanently and totally disabled. Instead, the claimant continued to work for the employer for over ten years after suffering the injury. Flowers v. Crown Cork & Seal United States, 168 So.3d 1009, 2013 Miss. App. LEXIS 388 (Miss. Ct. App. 2013), aff'd on other grounds, 167 So.3d 188, 2014 Miss. LEXIS 208 (Miss. 2014).

Trial court did not err in affirming the decision of the Mississippi Workers’ Compensation Commission, which assigned a workers’ compensation claimant seeking permanent total benefits under Miss. Code Ann. §71-3-17 a twenty percent loss of wage-earning capacity because the claimant did not demonstrate that he suffered a permanent total disability since he failed to show a complete loss of wage-earning capacity; the fact that the claimant was terminated from his employment did not entitle him to compensation payments because he admitted he did not contact the employer to keep it informed of his treatment, status, or any restrictions placed upon his employment, and the Commission found that the claimant could have returned to work with the employer in another suitable job, his job-search efforts were less than enthusiastic, and his job-search efforts were wasted since he pursued the same type of employment he had before his injury. Scott v. KLLM, Inc., 37 So.3d 713, 2010 Miss. App. LEXIS 303 (Miss. Ct. App. 2010).

Pursuant to Miss. Code Ann. §71-3-17(c)(25), substantial evidence supported the Mississippi Workers’ Compensation Commission’s (Commission) finding that the employee suffered a loss of wage-earning capacity and its calculation and apportioning of benefits awarded; the Commission properly considered the evidence as a whole, including the employee’s loss of access to the job market, her difficulty securing permanent employment and her continuing pain. Neshoba County Gen. Hosp. v. Howell, 999 So. 2d 1295, 2009 Miss. App. LEXIS 37 (Miss. Ct. App. 2009).

Even though the employee failed to report a work-related injury to his treating physicians, the record showed he did report it to his supervisor and the employer’s nurse, the nurse having told him that there was no way he could have sustained such a neck injury at work. Further, the Mississippi Workers’ Compensation Commission had substantial evidence before it to support its findings based on: (1) the medical records, (2) the opinions of five competent physicians, and (3) the results of various medical tests and procedures. Thus, the Commission’s ruling that the employee could not return to work as a mechanic, and that he had incurred a 50 percent loss in his wage-earning capacity, was proper. Bryan Foods, Inc. v. White, 913 So. 2d 1003, 2005 Miss. App. LEXIS 266 (Miss. Ct. App.), cert. denied, 921 So. 2d 344, 2005 Miss. LEXIS 710 (Miss. 2005).

Circuit Court reversed the prior ruling of a 14 percent loss of wage-earning capacity and found that the employee suffered a 30 percent loss of wage-earning capacity, and the employee appealed yet again to the appellate court. The administrative law judge based his finding of a 14 percent loss of wage-earning capacity on a consideration of the employee’s age, education, work history, and medical impairment, and the employee had been consistently employed since the injury in other positions at rates of pay not substantially different than what he had previously earned; thus, in finding a 30 percent loss of earning capacity, the circuit court applied an incorrect standard of review by reweighing the evidence presented and reversing the order of the Mississippi Workers’ Compensation Commission as to loss of wage-earning capacity. Richards v. Harrah's Entm't, Inc., 881 So. 2d 329, 2004 Miss. App. LEXIS 861 (Miss. Ct. App. 2004).

In determining whether there has been a loss of wage earning capacity, the Mississippi Workers’ Compensation Commission is to evaluate training, education, ability to work, failure to be hired elsewhere, pain, and other medical circumstances. Sherwin Williams v. Brown, 877 So. 2d 556, 2004 Miss. App. LEXIS 655 (Miss. Ct. App. 2004).

Because the court found that it was unclear whether the calculation of loss of wage earning capacity in connection with Miss. Code Ann. §71-3-17(c)(25) was based on evidence, the court remanded for further fact-finding or for the adoption of some other figure that better represented the current evidence. Howard Indus. v. Robinson, 846 So. 2d 245, 2002 Miss. App. LEXIS 574 (Miss. Ct. App. 2002).

Under subsection (c), the award was based solely on the degree of disability to the scheduled member and did not take into account the effect of that disability on the claimant’s actual ability to earn wages in her post-injury condition. Weatherspoon v. Croft Metals, Inc., 881 So. 2d 204, 2002 Miss. App. LEXIS 52 (Miss. Ct. App. 2002), rev'd, 853 So. 2d 776, 2003 Miss. LEXIS 197 (Miss. 2003).

A claimant having only a partial impairment to a scheduled member may, through other considerations, establish that, for purposes of his wage earning capacity, the impairment has rendered him or her totally occupationally disabled; in such event, the claimant is entitled to compensation for complete disability under subsection (a). Alumax Extrusions Inc. v. Wright, 737 So. 2d 416, 1998 Miss. App. LEXIS 1114 (Miss. Ct. App. 1998).

The extent of loss or impairment of earning capacity is a factual question for the commission to be determined on the basis of wage earning capacity in the same employment or otherwise, and an award could not be predicated upon a finding that a claimant had suffered a total and permanent loss of wage earning capacity in that she could no longer do the work of a nurse’s aid, where no showing was made that she had made an effort to obtain other employment. Compere's Nursing Home v. Biddy, 243 So. 2d 412, 1971 Miss. LEXIS 1511 (Miss. 1971).

Loss of wage-earning capacity is determinable by a reasonable exercise of the commission’s discretion. Southeastern Constr. Co. v. Dependent of Dodson, 247 Miss. 1, 153 So. 2d 276, 1963 Miss. LEXIS 277 (Miss. 1963).

While earnings after injury are not necessarily determinative of earning capacity, they are of evidential value. Hale v. General Box Mfg. Co., 235 Miss. 301, 108 So. 2d 844, 1959 Miss. LEXIS 430 (Miss. 1959).

That disability may have been aggravated by the onset of disease, as to the nature of which medical experts are in disagreement, does not affect the right to compensation for loss of earning power resulting from the injury. Hale v. General Box Mfg. Co., 235 Miss. 301, 108 So. 2d 844, 1959 Miss. LEXIS 430 (Miss. 1959).

After physical disability has been shown, it is for the commission to determine the extent of loss of wage-earning capacity. Hale v. General Box Mfg. Co., 235 Miss. 301, 108 So. 2d 844, 1959 Miss. LEXIS 430 (Miss. 1959).

The fact that the employer had continued to pay claimant the same weekly wages that he had been receiving prior to his injury did not mean that the claimant had not sustained a permanent partial disability in his wage earning capacity. Harper Foundry & Machine Co. v. Harper, 232 Miss. 873, 100 So. 2d 779, 1958 Miss. LEXIS 342 (Miss. 1958).

The statute does not test the earning capacity of a claimant by the comparative wages received by him before and after the injury, but benefits are figured on a percentage of the claimant’s average weekly wages at the time of the injury as compared to his wage earning capacity thereafter in the same employment or otherwise. Harper Foundry & Machine Co. v. Harper, 232 Miss. 873, 100 So. 2d 779, 1958 Miss. LEXIS 342 (Miss. 1958).

In determining the loss of wage earning capacity, the statutory test is calculated by comparing actual earnings before the injury with the earning capacity after the injury. Russell v. Southeastern Utilities Service Co., 230 Miss. 272, 92 So. 2d 544, 1957 Miss. LEXIS 368 (Miss. 1957).

In determining the loss of wage earning capacity by a claimant, the workmen’s compensation commission must make the best estimate of future impairment of earnings on the strength of both actual post-injury earnings and any other evidence of probative value on the issue of earning capacity, which is essentially a question of fact for the commission. Russell v. Southeastern Utilities Service Co., 230 Miss. 272, 92 So. 2d 544, 1957 Miss. LEXIS 368 (Miss. 1957).

While earnings equal to preinjury earnings are strong evidence of nonimpairment of earning capacity, this is not conclusive, and may be rebutted by evidence independently showing or explaining away the post-injury earnings as an unreliable basis of estimating wage earning capacity. Russell v. Southeastern Utilities Service Co., 230 Miss. 272, 92 So. 2d 544, 1957 Miss. LEXIS 368 (Miss. 1957).

The degree of a claimant’s disability is calculated by comparing actual earnings before the injury with earning capacity after the injury. King v. Westinghouse Electric Corp., 229 Miss. 830, 92 So. 2d 209, 1957 Miss. LEXIS 584 (Miss. 1957).

Where a referee denied a claim for partial permanent disability because the claimant had higher weekly earnings after injury than before injury and where referee did not hear the evidence relating to increase in wage levels since the accident, or as to whether higher wage resulted from claimant’s enlarged experience or from sympathy of employer, or the result of enlarged experience of the claimant, the matter should be remanded for reconsideration. Karr v. Armstrong Tire & Rubber Co., 216 Miss. 132, 61 So. 2d 789, 1953 Miss. LEXIS 616 (Miss. 1953).

Where a welder’s helper received higher weekly wage after injury than he was receiving at the time of injury, that fact was not in itself determinative of question of whether his partial loss of voice had so impaired his wage earning capacity as to be compensable. Karr v. Armstrong Tire & Rubber Co., 216 Miss. 132, 61 So. 2d 789, 1953 Miss. LEXIS 616 (Miss. 1953).

5. — Efforts to gain employment.

Mississippi Workers’ Compensation Commission found that although a claimant could not resume work in her pre-injury employment, she had not made sufficient efforts to obtain other employment to meet the definition of “disability” under Miss. Code Ann. §71-3-3(I) because her search for other employment was not reasonable, and the Commission only awarded permanent partial disability benefits under Miss. Code Ann. §71-3-17(c). The Commission’s decision was supported by substantial evidence, and it was the Commission’s to make, and in reversing the Commission’s decision and awarding the claimant permanent, total disability under Miss. Code Ann. §71-3-17(a), the circuit court improperly invaded the Commission’s decision-making authority. Lifestyle Furnishings v. Tollison, 985 So. 2d 352, 2008 Miss. App. LEXIS 182 (Miss. Ct. App. 2008).

Employee was properly denied permanent partial disability benefits under Miss. Code Ann. §71-3-17(c)(25) for failure to conduct the required job search effort because even assuming that the employee’s endeavor to perform yard work for a friend constituted a job search, that one attempt at securing alternative employment was insufficient to demonstrate a permanent partial disability. Chestnut v. Dairy Fresh Corp., 966 So. 2d 868, 2007 Miss. App. LEXIS 702 (Miss. Ct. App. 2007).

Reasonableness of a workers’ compensation claimant’s efforts to gain employment includes consideration of job availability and economics in the community, the claimant’s skills and background, and the nature of the disability. Sherwin Williams v. Brown, 877 So. 2d 556, 2004 Miss. App. LEXIS 655 (Miss. Ct. App. 2004).

6. —Burden of proof.

Decision of the Mississippi Workers’ Compensation Commission that a county rebutted the prima facie showing of permanent total disability was not supported by substantial evidence because the record failed to support a finding that an employee suffered only a permanent partial disability or no loss of wage-earning capacity; the medical testimony showed the employee had sustained permanent impairment. Harris v. Stone Cty. Bd. of Supervisors, 270 So.3d 989, 2018 Miss. App. LEXIS 469 (Miss. Ct. App. 2018).

Employee did not suffer a permanent and total occupational disability because he continued to work at a service station earning $200 per week and his reduced earnings were limited in part by a heart attack that was not work related and by his inability to find transportation; the employee’s work injury was to his left foot, and the employee did not demonstrate under Miss. Code Ann. §71-3-17(a) that his injuries, when considered in the context of other relevant circumstances, rendered him totally occupationally disabled from any form of gainful employment. McDowell v. Smith, 856 So. 2d 581, 2003 Miss. App. LEXIS 561 (Miss. Ct. App. 2003), cert. denied, 864 So. 2d 282, 2004 Miss. LEXIS 32 (Miss. 2004).

There was no dispute that the employee suffered some injury to her back while on duty with her employer, and there was no real issue as to whether the employee suffered from medical complaints that required substantial attention from treating physicians; however, the employee was unable to provide convincing evidence showing that her medical complaints were caused by the incident at work. Smith v. Grand Casino-Biloxi, 851 So. 2d 423, 2003 Miss. App. LEXIS 670 (Miss. Ct. App. 2003).

An award of permanent partial disability benefits was proper where the claimant was medically certified to be 15 percent permanently disabled, but was able to perform work at his former job. The fact that a claimant has secured some form of employment does not, by itself, negate the claimant’s case for compensation; if, because of the subject injury, the claimant cannot secure employment at pre-injury pay, then the claimant may be entitled to disability payments. A claimant is not required to prove that he or she had actually been rejected, because of his or her disability, at jobs for which the claimant has stated he or she no longer considers himself or herself a qualified applicant. Thus, it was enough that the Workers’ Compensation Commission, affirmed by the circuit court, found that the claimant did sustain an injury leading to a disability which had diminished his wage-earning capacity, and that he had reasonably attempted to find employment. Georgia Pacific Corp. v. Taplin, 586 So. 2d 823, 1991 Miss. LEXIS 664 (Miss. 1991).

A claimant who suffered a 25 percent permanent impairment to the body was not entitled to an award of permanent partial disability benefits since she did not establish a loss of wage earning capacity attributable to the compensable injury, where the evidence showed that she experienced an overall increase of post-injury wages and she offered no proof to rebut the presumption of no loss of wage earning capacity by showing that the post-injury earnings were not reliable in determining wage earning capacity. International Paper Co. v. Kelley, 562 So. 2d 1298, 1990 Miss. LEXIS 274 (Miss. 1990).

A claimant was improperly awarded permanent partial disability benefits for loss of wage earning capacity, even though her incapacity to return to her job in the pasting department of a luggage company or to engage in similar employment was supported by medical findings, where the claimant did not meet her burden of proving that she had attempted to secure a job in another or different trade after her disability had subsided, and where her physician had testified that she could return to any factory-type work, so long as the environmental conditions were “clean.” Sardis Luggage Co. v. Wilson, 374 So. 2d 826, 1979 Miss. LEXIS 2392 (Miss. 1979).

The burden is upon the claimant not only to show loss of wage earning capacity but also to show the extent thereof, and the claimant who has established his injury and the loss of wage earning capacity but has failed to prove the extent thereof has provided no substantial evidence to support the findings of the commission that he was entitled to temporary total benefits for the full period allowed. American Potash & Chemical Corp. v. Rea, 228 So. 2d 867, 1969 Miss. LEXIS 1405 (Miss. 1969).

7. —Presumption.

Rebuttable presumption of no loss of wage-earning capacity arose because the worker’s post-injury wages were equal to or exceeded her pre-injury wages. Lovett v. Delta Reg'l Med. Ctr., 157 So.3d 90, 2014 Miss. App. LEXIS 235 (Miss. Ct. App. 2014), aff'd, in part, 157 So.3d 88, 2015 Miss. LEXIS 50 (Miss. 2015).

An injury to the back is not of the type scheduled in subsections (c)(1) through (24), so that proof of permanent diminished physical capacity, standing alone, does not entitle a claimant to compensation. Napier v. Franklin Mfg. Co., 797 So. 2d 1032, 2001 Miss. App. LEXIS 154 (Miss. Ct. App. 2001).

Presumption of no loss of wage earning capacity, which arises where claimant’s post-injury earnings equal or exceed pre-injury earnings, was effectively rebutted, where claimant testified that his position was temporary and his pay higher than at time of injury because labor union required that one working in his position receive same pay as absent employee, and that upon return of that person he would be out of job; while statute has been construed by Court to mean that post-injury earnings equal to or in excess of pre-injury earnings are strong evidence of non-impairment of earning capacity, that presumption may be rebutted by evidence on part of claimant that post-injury earnings are unreliable due to: increase in general wage levels since time of accident, claimant’s own greater maturity and training, longer hours worked by claimant, payment of wages disproportionate to capacity out of sympathy to claimant, and temporary and unpredictable character of post-injury earnings, which is not exclusive list of reasons. General Electric Co. v. McKinnon, 507 So. 2d 363, 1987 Miss. LEXIS 2504 (Miss. 1987).

Earnings equal to preinjury earnings create a presumption of earning capacity commensurate with actual post-injury earnings, but such presumption may be rebutted by evidence independently showing incapacity, or by evidence showing that post-injury earnings are not a reliable basis for estimating earning capacity, as for example, evidence of general wage increases since the injury, or evidence as to the temporary or unpredictable character of post-injury earnings. Cox v. International Harvester Co., 221 So. 2d 924, 1969 Miss. LEXIS 1509 (Miss. 1969).

Post-injury earnings equal to or in excess of pre-injury earnings are strong evidence of non-impairment of earning capacity, but the presumption arising therefrom may be rebutted by evidence on part of the claimant that the post-injury earnings are unreliable due to increase in general wage levels, claimant’s own greater maturity and training, longer hours worked by claimant after accident, payment of wages disproportionate to capacity out of sympathy to complainant, and the temporary and unpredictable character of post-injury earnings. Wilcher v. D. D. Ballard Constr. Co., 187 So. 2d 308, 1966 Miss. LEXIS 1345 (Miss. 1966).

8. —Disability percentage not indicative of reduction in earning capacity.

The workmen’s compensation commission was in error in predicating an award of permanent partial disability upon its finding that there had been a 10 percent medical disability to the claimant’s body as a whole, rather than upon a determination of the extent of loss or impairment of the claimant’s wage earning capacity resulting from a compensable injury to her lower back. Compere's Nursing Home v. Biddy, 243 So. 2d 412, 1971 Miss. LEXIS 1511 (Miss. 1971).

Loss of earning power as the result of an injury is not necessarily proportional to the bodily functional disability. Hale v. General Box Mfg. Co., 235 Miss. 301, 108 So. 2d 844, 1959 Miss. LEXIS 430 (Miss. 1959).

Where there was a stipulation that the claimant suffered 25 percent partial permanent disability and that such rating of disability was to constitute basis for decision, this stipulation would not be construed to mean an agreement that 25 percent disability was to be taken as 25 percent disability in claimant’s earning capacity. Elliott v. Ross Carrier Co., 220 Miss. 86, 70 So. 2d 75, 1954 Miss. LEXIS 412 (Miss. 1954).

9. — Particular cases; no loss in earning capacity.

Evidence supported the finding that the worker suffered no loss of wage-earning capacity, after weighing the reasonableness of the worker’s job search; there was testimony that there were 25 jobs for the worker in the area, and she failed to seek her old position or reapply for any other position after her stroke, and the decision to deny permanent disability benefits was supported by the evidence. Lovett v. Delta Reg'l Med. Ctr., 157 So.3d 90, 2014 Miss. App. LEXIS 235 (Miss. Ct. App. 2014), aff'd, in part, 157 So.3d 88, 2015 Miss. LEXIS 50 (Miss. 2015).

Decision that an injured employee was not due additional temporary disability benefits was supported by substantial evidence because she was offered a job by the city within her lifting restrictions, her salary was equal to her prior salary, the employee ultimately failed to return to work, and her attempts to find employment were unsuccessful. Herbert v. City of Horn Lake, 138 So.3d 943, 2013 Miss. App. LEXIS 643 (Miss. Ct. App. 2013).

Mississippi Workers’ Compensation Commission erred by declaring that a claimant’s permanent total disability benefits related back to the date of injury, as he was not “disabled” on that date because he was able to continue to work thereafter. Eaton Corp. v. Brown, 130 So.3d 1131, 2013 Miss. App. LEXIS 344 (Miss. Ct. App. 2013), cert. denied, 131 So.3d 578, 2014 Miss. LEXIS 80 (Miss. 2014).

Court of appeals erred in finding that an employee made a prima facie showing of permanent total disability and in awarding her compensation because the substantial evidence supported a finding that the employee did not have a permanent, total disability, and there was substantial evidence that the lack of employment was not due to the employee’s injury; the employee’s termination notice stated that she was being terminated due to her probationary status rather than as a consequence of her injury, and the Mississippi Workers’ Compensation Commission’s conclusion that the employee was unable to find employment due to the depressed economic conditions in the area where she lived and not to the injury itself was based on substantial evidence presented by the employee’s expert. he employee was terminated from her position with the group home shortly after her accident. Lott v. Hudspeth Ctr., 26 So.3d 1044, 2010 Miss. LEXIS 11 (Miss. 2010).

Workers’ compensation claimant was not entitled to permanent partial disability benefits where he failed to demonstrate that his post-injury earnings were temporary or unpredictable; his wages had steadily increased since his job with the employer, and he had not been unemployed for any significant period of time after his termination. Mosby v. Farm Fresh Catfish Co., 19 So.3d 789, 2009 Miss. App. LEXIS 669 (Miss. Ct. App. 2009).

Employee was properly denied disability benefits for carpal tunnel syndrome because all three doctors who had examined the employee testified that the employee could perform the duties of a rivet-machine operator post-injury; two doctors opined that the employee should have no work restrictions, and the third doctor stated that he had no problem with a three-pound lifting restriction, which was more than the heaviest part the employee would have to lift as a rivet-machine operator. Wooten v. Franklin Corp., 9 So.3d 1182, 2009 Miss. App. LEXIS 207 (Miss. Ct. App. 2009).

Modified award of temporary total disability benefits was appropriate in a case where a benefits claimant injured his arm because the time following surgery was the only time that the injury prevented him from earning wages; but for his unrelated firing, the claimant could have been working. Lankford v. Rent-A-Center, Inc., 961 So. 2d 774, 2007 Miss. App. LEXIS 470 (Miss. Ct. App. 2007).

Employee’s recent jobs, activities and education constituted substantial evidence to support the Workers’ Compensation Commission’s finding of a less than a total loss of use; the employee did not demonstrate a loss of wage-earning capacity, which was a factor in whether or not occupational disability was greater than the medical loss of use would indicate. Meridian Prof'l Baseball Club v. Jensen, 828 So. 2d 740, 2002 Miss. LEXIS 299 (Miss. 2002).

A claimant was not entitled to permanent total disability benefits, even though his neurosurgeon and his chiropractor found him to be totally disabled, where the claimant continued to work full time for his employer and therefore showed no loss of wage earning capacity as a result of his injuries. Lanterman v. Roadway Express, Inc., 608 So. 2d 1340, 1992 Miss. LEXIS 564 (Miss. 1992).

A commission finding that a claimant, who suffered a back injury and was said to have sustained a permanent partial disability of 10 to 15% to the body as a whole, had not sustained an impairment of his earning capacity was sufficiently supported by the claimant’s post-injury history of steady employment at substantially increased earnings for a five-year period. Smith v. Picker Service Co., 240 So. 2d 454, 1970 Miss. LEXIS 1294 (Miss. 1970).

Where there was medical testimony to the effect that a claimant, who suffered an accidental injury in the nature of a myocardial infarction in the course of his employment, would be able to and should engage in some work but would have to take precautions to work at a more deliberate pace than prior to his injury and should work only the minimum time necessary to make a living, but other proofs showed that the claimant was doing the same type of work as before the accident and was earning more wages, the evidence supported the finding of the commission that the claimant had not suffered a loss of his wage-earning capacity. Cox v. International Harvester Co., 221 So. 2d 924, 1969 Miss. LEXIS 1509 (Miss. 1969).

10. — — Loss in earning capacity demonstrated.

Award of permanent disability benefits was supported by substantial evidence because after reviewing an employee’s age, education, work history, and physical restrictions, it was apparent that the employee had suffered a loss in wage-earning. Omnova Solutions, Inc. v. Lipa, 44 So.3d 1000, 2009 Miss. App. LEXIS 132 (Miss. Ct. App. 2009), rev'd, 44 So.3d 935, 2010 Miss. LEXIS 426 (Miss. 2010).

Workers’ compensation benefits claimant was entitled to permanent total disability benefits under Miss. Code Ann. §71-3-17(a) where she provided documentation that she had made 194 attempts to find another job, and there was no substantial evidence showing that the claimant’s efforts were a sham, less than reasonable, or without proper diligence. Lott v. Hudspeth Ctr., 26 So.3d 1057, 2008 Miss. App. LEXIS 597 (Miss. Ct. App. 2008), rev'd, 26 So.3d 1044, 2010 Miss. LEXIS 11 (Miss. 2010).

Award of permanent total disability benefits to the employee for 450 weeks under Miss. Code Ann. §71-3-17(a) was proper in part because job search efforts undertaken by the employee were reasonable and not a mere sham; substantial evidence existed to support a finding that the employee sustained a total loss of wage earning capacity. Adolphe Lafont USA, Inc. v. Ayers, 958 So. 2d 833, 2007 Miss. App. LEXIS 417 (Miss. Ct. App. 2007).

There was no error in awarding a benefits claimant permanent partial disability under Miss. Code Ann. §71-3-17(c)(25) because the claimant’s age, training, education, and work restrictions were taken into account in setting her wage loss earning capacity; moreover, her refusal to relocate to another state for sedentary work was not unreasonable. AirTran, Inc. v. Byrd, 953 So. 2d 296, 2007 Miss. App. LEXIS 198 (Miss. Ct. App.), rev'd, 987 So. 2d 905, 2007 Miss. LEXIS 569 (Miss. 2007).

Determination that an employee sustained a 50 percent industrial loss of use in her right arm and award of permanent partial disability benefits was affirmed because, inter alia: (1) the Mississippi Workers’ Compensation Commission properly considered a variety of evidence in determining that the employee suffered a loss of wage-earning capacity and a 50 percent industrial loss of use to her right upper extremity; and (2) the Commission’s decision to award the employee benefits for permanent partial disability was supported by substantial evidence, including the treating physician’s restrictions on the employee and the employee’s testimony. Levi Strauss & Co. v. Studaway, 930 So. 2d 481, 2006 Miss. App. LEXIS 427 (Miss. Ct. App. 2006).

Substantial evidence supported the finding of the Mississippi Worker’s Compensation Commission that the employee, a 61-year-old heavy equipment operator, was permanently and totally disabled due to spinal stenosis and related complications and that he had suffered a total loss of wage-earning capacity. While the medical evidence was in dispute as to whether he had suffered a total or partial permanent injury, it was a dispute to be resolved by the Commission; the Commission chose to credit a primary treating physician’s assessment that the employee could not hold any type job, and that assessment was corroborated by the employee’s testimony as well as the employer’s statement to the Mississippi Public Employees Retirement System that the employee was totally disabled. Pike County Bd. of Supervisors v. Varnado, 912 So. 2d 477, 2005 Miss. App. LEXIS 233 (Miss. Ct. App.), cert. denied, 921 So. 2d 344, 2005 Miss. LEXIS 668 (Miss. 2005).

Where a 60-year old employee suffered several fractures to his hip in addition to compression of his L-4 vertebra and could no longer withstand the duties of longhaul trucking, ample evidence existed to support the Mississippi Workers’ Compensation Commission’s finding that he suffered a loss of wage earning capacity of $ 400 per week. The undisputed testimony demonstrated that he earned half of his regular salary as a longhaul truck driver while driving short hauls or working in the loading and packing divisions, and that he had sought light duty work from both his employer and his union, but that none was offered; thus, an award of permanent partial disability benefits was proper. Alumax Extrusions, Inc. v. Hankins, 902 So. 2d 586, 2004 Miss. App. LEXIS 957 (Miss. Ct. App. 2004).

Employee who received medical treatment after suffering pain in his hip while carrying a roll of carpet up a staircase was entitled to permanent, total disability benefits. He suffered a 10 percent permanent partial rating and faced limited employment options; and therefore suffered a loss in earning capacity. Sherwin Williams v. Brown, 877 So. 2d 556, 2004 Miss. App. LEXIS 655 (Miss. Ct. App. 2004).

Workers’ Compensation Commission’s award of compensation for permanent partial disability due to partial loss of scheduled members took no account of the worker’s loss of wage earning capacity, and the employer failed to rebut the presumption of total occupational loss of members by proof of the worker’s ability to earn the same wages she was receiving at the time of her injury. McDonald v. I. C. Isaacs Newton Co., 879 So. 2d 486, 2004 Miss. App. LEXIS 157 (Miss. Ct. App.), cert. denied, 882 So. 2d 234, 2004 Miss. LEXIS 988 (Miss. 2004).

Workers’ compensation claimant successfully rebutted the presumption of no loss of wage earning capacity that arose because claimant was earning more than at the time of claimant’s injury, and although the 55 percent loss of earning capacity figure adopted by the Mississippi Workers’ Compensation Commission was originally an arbitrary figure chosen by claimant’s attorney, the commission’s acceptance of that figure was found to have been knowing and intentional. Greenwood Utils. v. Williams, 801 So. 2d 783, 2001 Miss. App. LEXIS 509 (Miss. Ct. App. 2001).

Evidence was sufficient to support the administrative law judge’s finding that the claimant was entitled to temporary total disability benefits based on his finding that the claimant’s coronary artery disease was job-related; a physician testified that he did not think the claimant should continue to work as the stress on his job made his condition worse, notwithstanding contrary testimony from two other physicians. City of Laurel v. Blackledge, 1999 Miss. App. LEXIS 333 (Miss. Ct. App. June 22, 1999), op. withdrawn, sub. op., 755 So. 2d 573, 2000 Miss. App. LEXIS 88 (Miss. Ct. App. 2000).

Despite a claimant’s increase in earnings, his earning capacity and his employability in the market place had been reduced due to Meniere’s Syndrome where the presumption of earning capacity commensurate with post-injury earnings was rebutted by the following factors: (1) Meniere’s Syndrome is a whole body disability; (2) it is lifelong in nature; (3) it affects the activities of daily living, both occupationally and socially; (4) the claimant’s daily bouts with vertigo would put him at a disadvantage in an industrial setting where there were machines in operation; (5) one of the claimant’s biggest fears was losing his balance and falling into one of the machines he was operating; and (6) there had been an increase in general wage levels for all employees in the claimant’s class since 1984. Georgia-Pacific Corp. v. Gregory, 589 So. 2d 1250, 1991 Miss. LEXIS 763 (Miss. 1991).

Where claimant has a disability which prevented him from performing some of the duties incidental to his occupation as a welder, and diminished his capacity for earning wages in that occupation, compensation could not be denied because, due to the generosity of his employer, he had suffered no loss of pay up to the time of the hearing. O'Neal v. Multi-Purpose Mfg. Co., 243 Miss. 775, 140 So. 2d 860, 1962 Miss. LEXIS 407 (Miss. 1962).

Where it was shown that although a claimant’s post-injury earnings following his maximum possible medical recovery had equalled or slightly exceeded his pre-injury earnings, such earnings had been possible through the action of a sympathetic union rather than to his actual capacity due to work assigned to him, there was substantial evidence to support the commission’s finding that the claimant had suffered a 50 percent loss in wage earning capacity. Russell v. Southeastern Utilities Service Co., 230 Miss. 272, 92 So. 2d 544, 1957 Miss. LEXIS 368 (Miss. 1957).

11. Amount of recovery.

Reduction in the employee’s award of permanent-partial disability benefits was improper because she chose to demonstrate that she could not perform the substantial acts of her usual employment and thus, the fact that she did not seek employment with the employer or any other company was not conclusive of whether she was entitled to permanent-partial disability benefits for the industrial loss of use of her leg, Miss. Code Ann. §71-3-17(c). Further, based on her injury and her restrictions, the employee was unable to perform the substantial acts of her usual employment in food service and as a caretaker. Cole v. Ellisville State Sch., 59 So.3d 612, 2010 Miss. App. LEXIS 566 (Miss. Ct. App. 2010), cert. denied, 58 So.3d 693, 2011 Miss. LEXIS 211 (Miss. 2011).

Finding in favor of the employee in his workers’ compensation action was proper pursuant to Miss. Code Ann. §§71-3-17(c)(25),71-3-37(5), and71-3-15, where the employee offered medical proof that the injury manifested its symptoms in an area other than that of the initial impact; further, the computation of disability benefits totaled one cent less than the amount awarded by the administrative judge and the appellate court did not find a one-cent rounding error difference arbitrary or capricious, Miss. Code Ann. §71-3-17(25). Cives Steel Co. Port of Rosedale v. Williams, 905 So. 2d 661, 2004 Miss. App. LEXIS 505 (Miss. Ct. App. 2004), vacated, 903 So. 2d 678, 2005 Miss. LEXIS 129 (Miss. 2005).

A claimant cannot pyramid both compensation under subsection (a) for total loss of wage earning capacity and compensation under subsection (c) for total loss of an arm. Hollingsworth v. I.C. Isaacs & Co., 725 So. 2d 251, 1998 Miss. App. LEXIS 1019 (Miss. Ct. App. 1998).

The evidence was sufficient to support a finding of July 8, 1988, as the date of an employee’s maximum medical recovery from a leg injury, where the employee’s treating physician had initially indicated that the employee had reached maximum medical recovery on August 27, 1987 when he was originally released to return to work, but the physician subsequently stated that the employee did not reach maximum medical recovery until July 8, 1988 because the employee continued to suffer from swelling and pain following the August release and the physician continued reassessment and treatment in the hope that the employee’s condition would improve. McGowan v. Orleans Furniture, Inc., 586 So. 2d 163, 1991 Miss. LEXIS 596 (Miss. 1991).

Where substantial evidence establishes a causal connection between claimant’s surgery for repair of a hernia and the physical discomforts and disabilities suffered since that time, a claimant is not necessarily limited to the specific award for hernia alone. Knight v. Stachel, 193 So. 2d 593, 1967 Miss. LEXIS 1554 (Miss. 1967).

Temporary total disability extends only during its continuance and until maximum medical recovery. Arender v. National Sales, Inc., 193 So. 2d 579, 1966 Miss. LEXIS 1289, 1967 Miss. LEXIS 1552 (Miss. 1966).

Where the employee, an unskilled laborer, suffered a ruptured disc from picking up a 60 pound bag of sugar, the commission concluded properly that he had suffered a loss of wage earning capacity in the amount of $18 per week or a loss of approximately 271/2 percent. Malone & Hyde of Tupelo, Inc. v. Kent, 250 Miss. 879, 168 So. 2d 526, 1964 Miss. LEXIS 515 (Miss. 1964).

The right to medical expenses continues after expiration of the maximum benefit period or the payment of the maximum amounts of weekly benefits. J. H. Moon & Sons v. Hood, 244 Miss. 564, 144 So. 2d 782, 1962 Miss. LEXIS 477 (Miss. 1962).

The minimum award which may be made for permanent partial disability is that fixed by Code 1942, § 6998-07. Wiygul Motor Co. v. Pate, 237 Miss. 325, 115 So. 2d 51, 1959 Miss. LEXIS 392 (Miss. 1959).

An award of temporary benefits is a continuing one from the date of the commission’s order during the continuance of temporary disability. Komp Equipment Co. v. Clinton, 236 Miss. 560, 112 So. 2d 541, 1959 Miss. LEXIS 351 (Miss. 1959).

Where it was undisputed that claimant became totally and permanently disabled July the 26th, 1955, the date of the injury, the order of the commission should have awarded total permanent disability compensation benefits from that date for 450 weeks, but not to exceed $8,600, whichever was less. Nicholas Co. v. Dodson, 232 Miss. 569, 99 So. 2d 666, 1958 Miss. LEXIS 304 (Miss. 1958).

To warrant payment of compensation as for the loss of an eye, the loss of vision must aggregate 80 percent or more, whether binocular or other vision, so that a claimant, whose loss of visual acuity, combined with the loss of binocular vision in extreme field of vision beyond 35 degrees, resulted in an overall 60 percent loss of an eye, was entitled to compensation for only 60 weeks. White v. R. C. Owen Co., 232 Miss. 268, 98 So. 2d 650, 1957 Miss. LEXIS 468 (Miss. 1957).

Where claimant suffered a heart attack while in the employment and his heart condition was diagnosed as a coronary occlusion resulting in a myocardial infarction causing a 50 percent permanent partial disability, the over-all maximum award should be limited to Mississippi Products, Inc. v. Gordy, 224 Miss. 690, 80 So. 2d 793, 1955 Miss. LEXIS 532 (Miss. 1955).

A carpenter who suffered a broken bone in the leg in the course of employment and had lost the use of the leg, was entitled to 175 weeks which was the maximum period for which recovery was permitted on that account. M. T. Reed Const. Co. v. Martin, 215 Miss. 472, 61 So. 2d 300, 1952 Miss. LEXIS 588 (Miss. 1952), overruled, Smith v. Jackson Constr. Co., 607 So. 2d 1119, 1992 Miss. LEXIS 487 (Miss. 1992).

In computing compensation benefits to a widow the probability of remarriage before the expiration of the 450 weeks during which the widow is entitled to compensation must be taken into account. United States Fidelity & Guaranty Co. v. Smith, 211 Miss. 573, 52 So. 2d 351, 1951 Miss. LEXIS 389 (Miss. 1951).

12. Loss of or injury to scheduled members.

Mississippi Workers’ Compensation Commission’s award of permanent partial disability benefits to the claimant due to the loss of use of his right upper extremity was upheld because the Commission’s finding that the claimant could no longer perform the substantial acts of his usual occupation was supported by substantial evidence, as the claimant testified that every job he had performed over the last eight years required lifting 50 pounds occasionally and according to his medical restrictions he was only capable of occasionally lifting 18.5 pounds. Mueller Indus. v. Waits, — So.3d —, 2019 Miss. App. LEXIS 142 (Miss. Ct. App. Apr. 9, 2019).

The medical and vocational proof rebutted any presumption as to a claimant’s alleged total industrial loss of use to the right upper extremity because the claimant’s post-injury employment with the employer demonstrated that the claimant could perform some of the substantial acts of the claimant’s usual employment, a vocational expert testified about the job opportunities that were available to the claimant, and the claimant did not demonstrate an incapacity post-injury to earn the same wages as the claimant was earning pre-injury. Hathorn v. ESCO Corp., 224 So.3d 543, 2016 Miss. App. LEXIS 739 (Miss. Ct. App. 2016), cert. denied, 223 So.3d 785, 2017 Miss. LEXIS 307 (Miss. 2017).

Mississippi Workers’ Compensation Commission did not err in awarding an employee temporary total disability benefits and permanent partial disability benefits because it considered all the necessary factors before finding that the employee was entitled to an industrial loss, and there was no error of law or unsupported fact; the Commission found that the employee had demonstrated a loss of industrial use in excess of her functional loss. Sanderson Farms, Inc. v. Jessie, 185 So.3d 397, 2015 Miss. App. LEXIS 373 (Miss. Ct. App.), cert. denied, 178 So.3d 729, 2015 Miss. LEXIS 557 (Miss. 2015).

Mississippi Workers’ Compensation Commission did not err in awarding an employee compensation for a fifty percent functional loss for industrial purposes of both upper extremities because substantial evidence supported its decision that the employee demonstrated a loss of industrial use in excess of her functional loss. Sanderson Farms, Inc. v. Jessie, — So.3d —, 2015 Miss. App. LEXIS 97 (Miss. Ct. App. Mar. 3, 2015).

In a workers’ compensation case, since it was uncontradicted that a benefits claimant was assigned a two percent impairment to her lower right extremity, she was entitled to receive permanent partial disability for the two percent impairment to a scheduled member, her right lower extremity, in accordance with this statute. Lovett v. Delta Reg'l Med. Ctr., 157 So.3d 88, 2015 Miss. LEXIS 50 (Miss. 2015).

Trial court erred in upholding a 100 percent industrial loss for an employee’s leg injury because the evidence did not support such a finding under Miss. Code Ann. §71-3-17(c); the employee’s leg only had a 25 percent medical impairment, the employee continued to work in the field of law enforcement, and the employee earned $ 10,000 more a year in a new position than at the time of the injury. City of Laurel v. Guy, 58 So.3d 1223, 2011 Miss. App. LEXIS 181 (Miss. Ct. App. 2011).

Claimant is entitled to benefits based on total loss of use of a scheduled member if it is shown that the person is no longer able to perform the customary acts of that person’s usual employment; the job held at the time of the claimant’s injury was not necessarily the usual employment, but rather, the usual employment was broader in scope than the job held at the time of injury, and included jobs in which the claimant had past experience, jobs requiring similar skills, or other jobs for which the worker was suited, such that there was substantial evidence to rebut a presumption of total occupational loss and deny the claimant’s sympathy wages argument. Walker v. Delta Steel Bldgs., 878 So. 2d 113, 2003 Miss. App. LEXIS 960 (Miss. Ct. App. 2003).

Workers’ compensation award based on diminished wage-earning capacity rather than a scheduled member injury to the arms under Miss. Code Ann. §71-3-17(c) was affirmed because there was substantial evidence supporting the factual conclusion that the symptoms of pain manifested themselves in the neck and shoulder area, the mere fact that the employee’s use of his upper extremities in certain ways acted as a triggering mechanism for the disabling pain he experienced in his neck, shoulders, and upper back did not transform his claim into a scheduled member injury, and there was no proof that the employee’s physical complaints related directly to his arms rather than his neck and shoulders. Arendale v. Balkamp, Inc., 879 So. 2d 448, 2003 Miss. App. LEXIS 892 (Miss. Ct. App. 2003), cert. denied, 878 So. 2d 66, 2004 Miss. LEXIS 887 (Miss. 2004).

Workers’ compensation statutes guaranteed a measure of compensation to an injured worker who suffered a permanent impairment to a scheduled member as the result of a work-related injury, and the claimant’s injury to both hands qualified as a scheduled member under the statute; moreover the measure of compensation guaranteed was in spite of the fact that the claimant appeared to have suffered no loss of wage-earning capacity. Ard v. Marshall Durbin Cos., 2001 Miss. App. LEXIS 540 (Miss. Ct. App. Dec. 18, 2001).

The determination for permanent partial disability benefits for the industrial loss of the use of a scheduled member does not encompass an identification of wage earning capacity, but rather a determination of functional loss of use presented by medical evidence and the impact that the loss of function has on the worker’s ability to perform the normal and customary duties associated with the claimant’s usual employment; thus, evidence regarding a claimant’s post-injury wage earnings is not relevant to such a determination. McCarty Farms, Inc. v. Banks, 773 So. 2d 380, 2000 Miss. App. LEXIS 290 (Miss. Ct. App. 2000).

The measure of compensation to an injured worker who suffers a permanent functional impairment to a scheduled member as the result of a work-related injury and the impact that the loss of function of the particular scheduled member has on the worker’s ability to perform the normal and customary duties associated with her usual employment, called the degree of industrial disability, is a question of fact to be determined from the evidence. Robinette v. Henry I. Siegal Co., 801 So. 2d 739, 2000 Miss. App. LEXIS 14 (Miss. Ct. App. 2000).

Where the claimant injured his foot, which was considered a scheduled member under the statute, his loss of wage earning capacity was irrelevant; therefore, it was immaterial whether he attempted to or failed to find employment after reaching maximum medical improvement. Cook v. President Casino, 740 So. 2d 963, 1999 Miss. App. LEXIS 325 (Miss. Ct. App. 1999).

A claimant seeking compensation for an occupational disability to a scheduled member which exceeds the assigned partial functional impairment and yet falls short of 100% must establish under subsection (c) that the partial impairment has adversely impacted his or her wage earning capacity to an extent greater than the medical percentage of impairment. Alumax Extrusions Inc. v. Wright, 737 So. 2d 416, 1998 Miss. App. LEXIS 1114 (Miss. Ct. App. 1998).

Where a worker’s occupational disability from loss of use of a scheduled member exceeds functional or medical impairment, the law measures the worker’s compensation by the former. Walker Mfg. Co. v. Cantrell, 577 So. 2d 1243, 1991 Miss. LEXIS 190 (Miss. 1991).

Even though a worker suffered injury only to the second and third fingers of his left hand, the Compensation Commission’s finding that the disability rating under §71-3-17 was to the entire hand as opposed to a percentage of disability to the fingers only was not in error under the particular facts of the particular claim. Flake v. Randle Reed Trucking Co., 458 So. 2d 223, 1984 Miss. LEXIS 1954 (Miss. 1984).

Where the great weight of evidence indicated that a worker had sustained an injury to his shoulder with functional loss affecting only the right arm, compensation was properly limited to the schedule which includes the right arm; such an injury would not be related to the body as a whole. Richey v. Tupelo, 361 So. 2d 995, 1978 Miss. LEXIS 2393 (Miss. 1978).

A workman while using a machete who suffered severe cuts to three fingers of his right hand and an aggravation of a pre-existing gastrointestinal trouble was entitled to permanent partial disability and the medical expenses occasioned as the result of the cuts and the treatment of his gastrointestinal troubles. Weyerhaeuser Co. v. Ratliff, 197 So. 2d 231, 1967 Miss. LEXIS 1516 (Miss. 1967).

Where a claimant suffered a permanent partial disability of the right arm as a consequence of falling from a ladder and striking a concrete driveway with his shoulder, and there was no medical finding of fracture or tear and that portion of his disability attributable to the injury consisted only of a mild or subacute tenosymovitis, his injury was correctly related to his loss of use of the arm, a scheduled member rather than to a general physical disability. Walters Bros. Builders v. Loomis, 187 So. 2d 586, 1966 Miss. LEXIS 1353 (Miss. 1966).

An employee who, as a consequence of an injury, underwent an operation in which both the medial and the lateral ligaments of his right knee were removed, which resulted in some atrophy of the leg due largely to wastage of the quadricepts muscle, had not, on the basis of uncontradicted medical evidence, suffered a total loss of use of his right leg. Harris & Johnson Constr. Co. v. Ward, 187 So. 2d 26, 1966 Miss. LEXIS 1338 (Miss. 1966).

Severance of the tendons of two fingers, resulting in only a 50% loss of use of such fingers, does not entitle one to have disability proportioned to the whole hand. Luker v. Greenville Sheet Metal Works, 240 Miss. 378, 127 So. 2d 863, 1961 Miss. LEXIS 473 (Miss. 1961).

Compensation may not be awarded for disfigurement resulting from the loss of an eye, in addition to compensation for such loss. Williams v. Roy Motor Co., 237 Miss. 750, 115 So. 2d 924, 1959 Miss. LEXIS 528 (Miss. 1959).

Although the pupil of one of the claimant’s eyes, which was injured in an industrial accident, was almost twice as large as the other eye, the refusal of the commission to make an award for disfigurement did not constitute an abuse of its discretion, where it appeared that the claimant, as long as he continued to work for the employer, received the same wage as he had received before the injury. White v. R. C. Owen Co., 232 Miss. 268, 98 So. 2d 650, 1957 Miss. LEXIS 468 (Miss. 1957).

Claimant could not recover compensation for permanent partial disability under subsection (c) of this section [Code 1942, § 6998-09] as a result of an injury whereby he lost a testicle where there was no disabling pain. Jones v. Mason & Dulion Co., 229 Miss. 638, 91 So. 2d 715, 1957 Miss. LEXIS 307 (Miss. 1957).

Where workmen’s compensation commission made an award based on evidence that the employee had sustained a total permanent loss of use of his arm, the commission did not award compensation for permanent total disability but only for permanent loss of use of the arm. Modern Laundry, Inc. v. Williams, 224 Miss. 174, 79 So. 2d 829, 1955 Miss. LEXIS 473 (Miss. 1955).

In a workmen’s compensation proceeding the estimates of two doctors as to the extent of the claimant’s loss of use of the left arm were mere estimates of medical disability, and it was for the commission to decide whether the claimant’s loss of use of the arm was a total loss of use or partial loss of use for wage-earning purposes. Modern Laundry, Inc. v. Williams, 224 Miss. 174, 79 So. 2d 829, 1955 Miss. LEXIS 473 (Miss. 1955).

Under the Workmen’s Compensation Law which provides for compensation for loss of an eye, removal of a totally sightless eyeball was covered by the Law and the claimant was entitled to compensation. McKenzie v. Gulf Hills Hotel, Inc., 221 Miss. 723, 74 So. 2d 830, 1954 Miss. LEXIS 585 (Miss. 1954).

An employee who lost the partial use of his right leg as the result of injuries sustained in the course of employment as a pipe fitter was not entitled to an award for 450 weeks but was entitled to compensation only for proportionate part of maximum period of 175 weeks. Nowlin v. Mississippi Chemical Co., 219 Miss. 873, 70 So. 2d 48, 70 So. 2d 49, 1954 Miss. LEXIS 396 (Miss. 1954).

13. Loss of or injury to non-scheduled members.

A claimant whose vocal cords were severed as the consequence of an accident, with the result that he could not thereafter speak above a whisper, was totally and permanently disabled where the use of his voice was essential to his employment. Aetna Finance Co. v. Bourgoin, 252 Miss. 852, 174 So. 2d 495, 1965 Miss. LEXIS 1154 (Miss. 1965).

Evidence held to warrant finding of total and permanent disability resulting from twisting of knee in turning to pick up bundle. I. Taitel & Son v. Twiner, 247 Miss. 785, 157 So. 2d 44, 1963 Miss. LEXIS 356 (Miss. 1963).

Since the claimant, who sustained, in addition to extensive damage to his arms, permanent damage to the muscles in his chest, left shoulder and back, and suffered 20 percent disability to his body as a whole, did not suffer scheduled injuries, his disability must be determined under subsection (c)(21) [now (25) ] of this section [Code 1942, § 6998-09]. Russell v. Southeastern Utilities Service Co., 230 Miss. 272, 92 So. 2d 544, 1957 Miss. LEXIS 368 (Miss. 1957).

14. Calculation of disability period limitation.

Employee was entitled to temporary disability benefits under Miss. Code Ann. §71-3-21 for a certain period of time, and only for those periods within that time when the employee was, because of the injury, unable to work and earn full pay, and the case was remanded to reflect this fact; it was error to have awarded the employee a total amount of temporary benefits under Miss. Code Ann. §71-3-17(b), with a credit to the employer for any compensation earned by the employee during that time, because this was not a total disability, and this calculation did not lead to the proper credit. Howard Indus. v. Robinson, 846 So. 2d 245, 2002 Miss. App. LEXIS 574 (Miss. Ct. App. 2002).

Where the loss of a scheduled member is less than total, claimant is entitled to compensation at a rate of 662/3% of his average weekly wage, subject to the maximum limitations for weekly benefits contained in the Workmen’s Compensation Act, for a period of time determined by multiplying the number of weeks compensation for such member by the percentage loss of that member. Stuart Mfg. Co. v. Walker, 313 So. 2d 574, 1975 Miss. LEXIS 1676 (Miss. 1975).

The number of weeks during which temporary total benefits have been paid are not to be deducted from the maximum period for permanent partial disability benefits. Midland Shirt Co. v. Ray, 249 Miss. 486, 163 So. 2d 251, 1964 Miss. LEXIS 410 (Miss. 1964).

Where the claimant’s disability had been total from the date of the injury, the period of 450 weeks, prescribed as the limitation, should be calculated from the date of the injury. Prince v. Nicholson, 229 Miss. 718, 91 So. 2d 734, 1957 Miss. LEXIS 318 (Miss. 1957).

Where claimant’s heart attack, suffered on August 14, 1952, was first found to have brought about temporary total disability, but on May 17, 1954, it was determined that claimant’s disability was permanent total and had been since the date of his heart attack, claimant, who had in the meanwhile received compensation payments for temporary total disability, was not entitled then to start over again and recover for permanent total disability, was not entitled then to start over again and recover for permanent total disability for the maximum period, but could recover only the maximum compensation for permanent total disability, less the amount already paid to him. Morgan v. J. H. Campbell Constr. Co., 229 Miss. 289, 90 So. 2d 663, 1956 Miss. LEXIS 608 (Miss. 1956).

The formula of compensation for permanent partial disability, resulting from fractures in transverse processes of the lumbar vertebrae, which medical testimony indicated to be from 10 percent to 50 percent, is 662/3% of the difference between the claimant’s average weekly wages and his wage earning capacity thereafter, and not an apportionment of the percentage of permanent partial disability to the number of weeks allowed for total disability and payment of claimant’s regular compensation rate for the number of weeks thus determined, since such an injury comes within the “other cases” classification of this section [Code 1942, § 6998-09] and compensation benefits are limited to the sum of $8,600. Ebasco Services, Inc. v. Harris, 227 Miss. 85, 85 So. 2d 784, 1956 Miss. LEXIS 657 (Miss. 1956).

15. Disability rating.

Court of Appeals erred in reversing a decision by the Workers’ Compensation Commission that awarded the employee permanent-partial disability benefits because the case involved a permanent-partial disability to an employee’s leg, the Commission’s decision was consistent with the law governing benefits for a permanent-partial disability, and was supported by substantial evidence. Logan v. Klaussner Furniture Corp., 238 So.3d 1134, 2018 Miss. LEXIS 126 (Miss. 2018).

Mississippi Workers’ Compensation Commission properly determined that an employee was only entitled to a two-percent industrial loss of use because the employee failed to prove she suffered a disability that amounted to an industrial loss of use greater than the medical impairment percentage she was assigned by her doctor, nothing in the doctor’s findings indicated that the employee’s injury had produced any physical work restrictions sufficient to support a finding that she had an industrial loss of use in excess of her permanent impairment rating, the employee was actually making a higher salary now than she was pre-injury, and the employee had not received any subsequent medical treatment or any prescription medicine related to her injury. Sampson v. MTD Prods., 225 So.3d 541, 2017 Miss. App. LEXIS 186 (Miss. Ct. App. 2017).

The medical and vocational proof rebutted any presumption as to a claimant’s alleged total industrial loss of use to the right upper extremity because the claimant’s post-injury employment with the employer demonstrated that the claimant could perform some of the substantial acts of the claimant’s usual employment, a vocational expert testified about the job opportunities that were available to the claimant, and the claimant did not demonstrate an incapacity post-injury to earn the same wages as the claimant was earning pre-injury. Hathorn v. ESCO Corp., 224 So.3d 543, 2016 Miss. App. LEXIS 739 (Miss. Ct. App. 2016), cert. denied, 223 So.3d 785, 2017 Miss. LEXIS 307 (Miss. 2017).

Workers’ Compensation Commission erred in finding, on remand, that an injured worker incurred a permanent-partial disability with a 60-percent industrial loss of use of her left lower extremity stemming from an admittedly work-related injury because the Commission’s decision did not comport with the appellate court’s findings that the injury was permanent and resulted in a loss of wage-earning capacity. Logan v. Klaussner Furniture Corp., — So.3d —, 2016 Miss. App. LEXIS 742 (Miss. Ct. App. Nov. 15, 2016).

Workers’ Compensation Commission’s downward adjustment of a claimant’s occupational disability, pursuant to Miss. Code Ann. §71-3-17(c), was supported by substantial evidence because even though the claimant did suffer some occupational loss, the claimant had returned to work on a full-time basis performing work for which he was qualified and which required the use of the claimant’s arms to some degree; the claimant sustained a compensable injury as a result of an indirect lightning strike while working on a land-based oil rig. Mixon v. Greywolf Drilling Co., LP, 62 So.3d 414, 2010 Miss. App. LEXIS 671 (Miss. Ct. App. 2010).

Employee was properly awarded permanent partial disability benefits for carpal tunnel syndrome because the employee’s ability to earn post-injury wages, although at a diminished capacity, precluded an award of permanent total disability benefits; the employee did not sufficiently pursue any of the available jobs provided by a vocational expert. Price v. Omnova Solutions, Inc., 17 So.3d 104, 2009 Miss. App. LEXIS 86 (Miss. Ct. App.), cert. denied, 17 So.3d 99, 2009 Miss. LEXIS 425 (Miss. 2009).

Ability to earn post-injury wages, even significantly diminished post-injury wages, defeats a claim of permanent total disability. Hill v. Mel, Inc., 989 So. 2d 969, 2008 Miss. App. LEXIS 224 (Miss. Ct. App. 2008).

Where an employee was injured while working, was terminated, and sought workers’ compensation benefits, it was not error to find that the employee was 20% permanently partially disabled, because, inter alia, (1) the ability to earn post-injury wages, even significantly diminished post-injury wages, defeated a claim of permanent total disability, and (2) the employee found employment meeting the “usual employment” standard based on a bus driver job. Hill v. Mel, Inc., 989 So. 2d 969, 2008 Miss. App. LEXIS 224 (Miss. Ct. App. 2008).

Permanent partial disability benefits were properly awarded to an employee where a preponderance of the evidence reflected that the employee suffered an industrial impairment beyond either set of medical impairment ratings assigned; the employee suffered a 60 percent loss of industrial use of the right upper extremity and a 60 percent loss of industrial use of the left upper extremity. Neill v. Waterway, Inc./Team America, 994 So. 2d 196, 2008 Miss. App. LEXIS 179 (Miss. Ct. App.), cert. denied, 998 So. 2d 1010, 2008 Miss. LEXIS 684 (Miss. 2008).

Mississippi workers’ compensation commission acted properly in determining that the employee’s treating physician’s opinions were not as credible as those of the other physicians; the employee’s injury was subject to disability benefits set forth in Miss. Code Ann. §71-3-17(c)(1), and not the general total body impairment scheme under Miss. Code Ann. §71-3-17(c)(25). Martinez v. Swift Transp., 962 So. 2d 746, 2007 Miss. App. LEXIS 523 (Miss. Ct. App. 2007).

Where the employee injured her right elbow while working on the assembly line, one doctor gave his opinion in favor of total disability; two other doctors opined against total disability. The Mississippi Workers’ Compensation Commission did not err by denying her permanent disability benefits; the Commission found that she suffered only a fifteen percent (15%) disability as to her right upper extremity. Smith v. Durant Elec. Corp., 918 So. 2d 860, 2005 Miss. App. LEXIS 780 (Miss. Ct. App. 2005).

In a workers’ compensation case where the administrative judge awarded the claimant permanent total disability benefits under Miss. Code Ann. §71-3-17, but the Mississippi Workers’ Compensation Commission found in favor of the employer and denied those benefits, the appellate court exceeded its limited scope of review, Miss. Code Ann. §71-3-51, in upholding the circuit court’s ruling which overturned the decision of the Commission that the claimant had not sustained a second work-related injury because the Commission’s ruling that the claimant had not sustained such an injury was clearly supported by substantial evidence including: (1) the testimony of the claimant’s co-workers that the claimant did not report a second injury; (2) the fact that, aside from the claimant’s own treating physician, there was no medical evidence supporting her claim of a second injury; and (3) the fact that the only persons testifying as to the claimant’s alleged second injury were the claimant, her family, and her treating physician. Raytheon Aero. Support Servs. v. Miller, 861 So. 2d 330, 2003 Miss. LEXIS 581 (Miss. 2003).

The claimant should have been assigned a permanent total disability rating and received 450 weeks of benefits where (1) although his second and third fingers were not seriously injured, his little finger was half amputated, his ring finger was shortened at the first joint, and even after several surgeries, he had no feeling or motion in his thumb and could not grip with it, (2) the claimant had constant pain in his left hand, attributable in large part to neuromas in his palm, ring finger, and thumb which caused him pain when he touched anything, and (3) the claimant was rendered permanently incapable of performing the only job he had ever been trained to do, i.e., trim carpenter. Good Earth Dev., Inc. v. Rogers, 800 So. 2d 1164, 2001 Miss. App. LEXIS 169 (Miss. Ct. App. 2001).

A road construction worker was properly determined to suffer from three permanent partial disabilities, rather than permanent total disability, notwithstanding his inability to return to his pre-injury job, where (1) the employer offered to rehire the worker as a flagman, (2) the worker was furnished with a vocational rehabilitation counselor who attempted to work with him to identify and pursue other employment opportunities, but he was uncooperative, missed two scheduled appointments with the counselor, and apparently never pursued any of the job positions identified by the counselor, and (3) there was no evidence that the worker independently pursued any other gainful employment for which he might have been suited, taking into account his diminished physical abilities. McCray v. Key Constructors, Inc., 803 So. 2d 1199, 2000 Miss. App. LEXIS 474 (Miss. Ct. App. 2000).

The decision of the Commission awarding permanent partial disability was upheld where there was substantial evidence in the record to support a determination that claimant failed to demonstrate that her industrial disabilities, as measured by her ability to perform her usual pre-injury employment, exceeded the functional impairment indicated by the expert medical evidence. Robinette v. Henry I. Siegal Co., 801 So. 2d 739, 2000 Miss. App. LEXIS 14 (Miss. Ct. App. 2000).

The claimant was properly found to be permanently and totally disabled, rather than permanently and partially disabled, where (1) although she returned to work after she injured her wrist, she worked in constant pain, and (2) all attempts to find work or prospects of employment for the claimant were unsuccessful. Sunbeam/Oster Co. v. Bolden, 722 So. 2d 713, 1998 Miss. App. LEXIS 811 (Miss. Ct. App. 1998).

When a claimant, having reached maximum medical recovery, reports back to his or her employer for work, and the employer refuses to reinstate or rehire the claimant, then it is prima facie that the claimant has met his or her burden of showing total disability; the burden then shifts to the employer to prove a partial disability or that the claimant has suffered no loss of wage earning capacity. Jordan v. Hercules, Inc., 600 So. 2d 179, 1992 Miss. LEXIS 224 (Miss. 1992), but see Dulaney v. National Pizza Co., 733 So. 2d 301, 1998 Miss. App. LEXIS 990 (Miss. Ct. App. 1998).

The evidence supported a finding that an employee suffered a 100 percent industrial loss of use of his left leg, rather than only a 40 percent loss, even though the employee’s treating physician testified that the employee had a 40 percent permanent partial impairment of his left leg, where the physician also testified that the employee would be limited in activities such as standing for long periods, climbing ladders and stairs, and carrying heavy loads but that he could work in sedentary types of positions where he could sit to do the work, the employee was a 43-year-old man who dropped out of school during the 10th grade, from that time until the time of his injury he worked in construction, did carpentry work, and delivered furniture, at the time of the injury he was employed at a furniture company where he did not perform any one particular job but was moved around from job to job as needed, some of the jobs that he performed at the company included working in the sanding department, cutting out chest-of-drawer tops, and working in the mill, the employee testified that after his injury he could not do carpentry work and could not do any jobs which required him to stand but he could sand edges and use a table saw, and he testified that he continued to have problems with his leg every day, including swelling and pain. McGowan v. Orleans Furniture, Inc., 586 So. 2d 163, 1991 Miss. LEXIS 596 (Miss. 1991).

A claimant may continue to be temporarily disabled, even though he or she has received maximum recovery from conservative care, if his or her condition can be improved by surgery. McGowan v. Orleans Furniture, Inc., 586 So. 2d 163, 1991 Miss. LEXIS 596 (Miss. 1991).

The evidence was sufficient to support a finding that a claimant suffered only a 5 percent permanent partial occupational disability by reason of a work-connected injury to his left hand, where the claimant failed to offer evidence that he had unsuccessfully attempted to perform his usual duties, and he failed to offer evidence that he was refused employment based upon the disability to his hand in that he made no search for work outside his prior employment, stating that his car had been repossessed and he was without transportation. Walker Mfg. Co. v. Cantrell, 577 So. 2d 1243, 1991 Miss. LEXIS 190 (Miss. 1991).

An employee’s job-related contact dermatitis caused by exposure to sulfur dioxide constituted a permanent loss of wage earning capacity, such that the employee was entitled to permanent partial disability benefits, where the employee’s sensitivity was permanent in nature so that he could not be exposed to sulfur dioxide in the future, and he made reasonable though unsuccessful efforts to find other comparably gainful employment. Piper Industries, Inc. v. Herod, 560 So. 2d 732, 1990 Miss. LEXIS 196 (Miss. 1990).

An employee was entitled to an award of total temporary disability payments for essential tremors even though the condition was a permanent partial disability from its onset since, until the tremors were controllable or predictable, the condition was totally disabling. Quitman Knitting Mill v. Smith, 540 So. 2d 623, 1989 Miss. LEXIS 140 (Miss. 1989).

An employee who was injured when some crates fell from a truck, striking her on the legs and back and knocking her unconscious, sustained an accident back injury which totally disabled her when she attempted to work at the advice of the company doctor for more than a year after the accident, and she was entitled to temporary total disability benefits and to a further determination as to the permanence of her injury, a finding that she had sustained no permanent injury being premature and unsupported by substantial evidence. Jordan v. Arkansas Valley Industries, Inc., 241 So. 2d 143, 1970 Miss. LEXIS 1321 (Miss. 1970).

The burden of proof is upon the claimant to establish the degree of his disability, and the degree of disability, whether permanent or temporary, involves (1) actual physical injury and (2) loss of wage earning capacity. American Potash & Chemical Corp. v. Rea, 228 So. 2d 867, 1969 Miss. LEXIS 1405 (Miss. 1969).

A claimant whose employment-induced contact dermatitis prevented him from following in the future his occupation as a cement finisher was entitled only to an award of temporary total disability where, under the provisions of Code 1942, § 6998-02(9) [now subsection (i) of Code 1972, §71-3-3], he must, after his disability subsides, seek employment in another or different trade to earn his wages, and there was no evidence that he had done so. B.J. Collins v. Miss. Employment Sec. Comm., 190 So. 2d 894, 1966 Miss. LEXIS 1419 (Miss. 1966).

Where claimant’s entire disability relates back to the beginning of his rating of temporary total disability, and it becomes permanent at a later time, claimant is not entitled to recover both for temporary total disability up to the date on which it was discovered to be permanent and also to recover for permanent total disability after the discovery of such total disability, and he is limited to recovering only the maximum allowable for permanent total disability beginning with the date of the injury. Dillingham Mfg. Co. v. Upton, 252 Miss. 281, 172 So. 2d 766, 1965 Miss. LEXIS 1100 (Miss. 1965), overruled, Cockrell Banana Co. v. Harris, 212 So. 2d 581, 1968 Miss. LEXIS 1290 (Miss. 1968), but see Cockrell Banana Co. v. Harris, 212 So. 2d 581, 1968 Miss. LEXIS 1290 (Miss. 1968).

Construction employee held entitled to more than 50% disability, and to compensation for total loss of the use of a leg where, though a fracture healed, he was unable to do former heavy work. Tyler v. Oden Constr. Co., 241 Miss. 270, 130 So. 2d 552, 1961 Miss. LEXIS 342 (Miss. 1961).

Where award has been made for temporary total disability and disability proves to be permanent, the award may be amended to award compensation for total permanent disability in an amount from which compensation paid is to be deducted. Mullins & Parker v. Rucker, 237 Miss. 330, 115 So. 2d 535, 1959 Miss. LEXIS 474 (Miss. 1959).

An award to a person contracting disabling dermatitis from handling creosote-coated pipe should be for temporary total disability benefits during its continuance. Komp Equipment Co. v. Clinton, 236 Miss. 560, 112 So. 2d 541, 1959 Miss. LEXIS 351 (Miss. 1959).

Adjudicated permanent disability is presumed to continue until the commission, upon appropriate hearings, determines otherwise. Jackson Ready-Mix Concrete v. Young, 236 Miss. 550, 111 So. 2d 255, 1959 Miss. LEXIS 349 (Miss. 1959).

Temporary disability is not conclusively presumed to continue until the appellate court’s affirmance of an award therefor, so as to require payments of compensation for the period of pendency of the appeal. Jackson Ready-Mix Concrete v. Young, 236 Miss. 550, 111 So. 2d 255, 1959 Miss. LEXIS 349 (Miss. 1959).

An award of 60% loss of use of a left hand by one who lost nearly all of his first, second and third fingers, held supported by substantial evidence. Pearl River Hampers, Inc. v. Castilow, 234 Miss. 768, 108 So. 2d 200, 1959 Miss. LEXIS 553 (Miss. 1959).

Where the finding of the attorney-referee and the commission that claimant was partially and permanently disabled to the extent of 15 percent to the body as a whole, and that such disability resulted in a loss of 17 percent wage-earning capacity, was supported by substantial evidence, circuit court’s judgment of reversal was reversed by the supreme court, and the case remanded to the commission. Grubbs v. Revell Furniture Co., 234 Miss. 319, 106 So. 2d 390, 1958 Miss. LEXIS 494 (Miss. 1958).

Under a medical showing that the claimant was suffering from an injury to his spine and was unable to perform his work and would remain in that condition until he underwent surgery, the claimant was totally disabled within the meaning of subsection (b) of this section [Code 1942, § 6998-09] and was entitled to temporary total disability benefits until he recovered from the operation and obtained maximum recovery, at which time his benefit for permanent partial disability under subsection (c) could be evaluated. Houston Contracting Co. v. Reed, 231 Miss. 213, 95 So. 2d 231, 1957 Miss. LEXIS 507 (Miss. 1957).

Where both the claimant and a doctor, who had last examined him on October 6, 1955, testified at a hearing beginning on September, 1955 and concluding in November, 1955, that the claimant was suffering from a temporary total disability resulting from injury received in his employment, the circuit court properly reversed the workmen’s compensation board’s order denying claimant compensation benefits after June 5, 1955, which was based upon the opinion of a doctor who had last examined claimant on May 5, 1955, that claimant would be able to return to work within another month. Masonite Corp. v. Fields, 229 Miss. 524, 91 So. 2d 282, 1956 Miss. LEXIS 635 (Miss. 1956).

In a workmen’s compensation case where a roustabout sustained several skull fractures when a piece of iron pipe fell out of a set of poles and struck him on the head, his temporary total disability did not terminate when he returned to work under the advice of a doctor who was obviously seeking to ascertain to what extent the patient was responding to treatment. J. F. Crowe Well Servicing Contractor v. Fielder, 224 Miss. 353, 80 So. 2d 29, 1955 Miss. LEXIS 499 (Miss. 1955).

16. Pre-existing disease or infirmity.

Administrative judge’s finding that the claimant’s 2007 foot injury was work-related was supported by substantial evidence showing that the prolonged standing required by the claimant’s job aggravated the claimant’s foot condition. Flowers v. Crown Cork & Seal United States, 168 So.3d 1009, 2013 Miss. App. LEXIS 388 (Miss. Ct. App. 2013), aff'd on other grounds, 167 So.3d 188, 2014 Miss. LEXIS 208 (Miss. 2014).

While employee had a pre-existing back injury, no doctor ever excluded the work-related fall as a causal factor to the employee’s disability, no one disputed that he was totally and permanently disabled, and one doctor testified that the employee’s condition was consistent with an individual who had recently suffered a fall; thus, award of workers’ compensation benefits was supported by substantial evidence. Frito-Lay, Inc. v. Leatherwood, 908 So. 2d 175, 2005 Miss. App. LEXIS 481 (Miss. Ct. App. 2005).

Trial court erred in reversing Workers’ Compensation Commission’s award of permanent total disability; there was substantial evidence to support the Commission’s finding that the claimant’s employment was a substantial contributing cause of her disability; and, the trial court erred when it reweighed the evidence rather than looking to see if there was substantial evidence to support the Commission’s decision. Spencer v. Tyson Foods, Inc., 869 So. 2d 1069, 2004 Miss. App. LEXIS 287 (Miss. Ct. App. 2004).

Last injurious exposure rule was applicable where substantial evidence showed claimant’s injury resulted from 31 spent years working for the former employer, and any aggravation suffered with the subsequent employer, did not independently contribute to claimant’s final disability, as the undisputed facts showed claimant’s foot bothered claimant so severely while employed with the former employer, that claimant underwent two surgeries, and had incurred several periods of disability while with the former employer. Craft v. Millcreek Rehab. Ctr., 854 So. 2d 508, 2003 Miss. App. LEXIS 842 (Miss. Ct. App. 2003).

Where one enjoys the functional ability to perform his work in spite of an existing congenital defect and suffers an injury which aggravates the said defect, thereafter causing a loss of his functional ability, then as long as the functional loss continues the injured party is eligible for compensation; when an injury causes loss of functional ability, it is compensable, even though such loss was due to aggravation of a preexisting congenital defect. Bolton v. Catalytic Constr. Co., 309 So. 2d 167, 1975 Miss. LEXIS 1867 (Miss. 1975).

A claimant who has once been adjudged totally and permanently disabled and who has received benefits therefor, but who thereafter resumes gainful employment and becomes injured while so engaged, is not precluded from receiving benefits for loss of wage earning capacity arising out of the later injury; however, a claimant may not pyramid benefits and receive in excess of the maximum weekly benefit provided by statute during any one period. Observa--Dome Laboratories, Inc. v. Ivy, 302 So. 2d 862, 1974 Miss. LEXIS 1433 (Miss. 1974).

A workman while using a machete who suffered severe cuts to three fingers of his right hand and an aggravation of a pre-existing gastrointestinal trouble was entitled to permanent partial disability and the medical expenses occasioned as the result of the cuts and the treatment of his gastrointestinal troubles. Weyerhaeuser Co. v. Ratliff, 197 So. 2d 231, 1967 Miss. LEXIS 1516 (Miss. 1967).

A claimant suffering from cystic emphysema who, as a consequence of inhaling plastic dust and chemical fumes in the course of his employment, suffered a spontaneous pneumothorax was entitled to receive temporary total disability payments for the period that his lung remained collapsed, for his condition had been aggravated by his employment. Presto Mfg. Co. v. Chandler, 252 Miss. 36, 172 So. 2d 431, 1965 Miss. LEXIS 1072 (Miss. 1965).

Where the employee suffered from a pre-existing heart disease for which he was receiving veteran’s compensation, and his disability arose from an attack of acute coronary insufficiency, or angina pectoris, it was a temporary condition caused by the pre-existing disease, any subsequent disability was the consequence of that disease, and the disability resulting from the attack was not a permanent one compensable under this section [Code 1942, § 6998-09]. Todd v. Potts Gin Co., 251 Miss. 340, 169 So. 2d 442, 1964 Miss. LEXIS 355 (Miss. 1964).

Compensation for an injury which aggravates a pre-existing condition ceases where the effects of the injury have subsided, though the pre-existing condition continues. Lloyd Ford Co. v. Price, 240 Miss. 250, 126 So. 2d 529, 1961 Miss. LEXIS 456 (Miss. 1961); Malone v. Ingalls Shipbuilding Corp., 240 Miss. 319, 127 So. 2d 403, 1961 Miss. LEXIS 464 (Miss. 1961).

Recurrences of dermatitis attributable to and connected with the original occurrence are compensable by the employer for whom claimant was working when the infection first begun. Komp Equipment Co. v. Clinton, 236 Miss. 560, 112 So. 2d 541, 1959 Miss. LEXIS 351 (Miss. 1959).

Where an employee’s injury aggravated a pre-existing disease or infirmity, such injury is compensable, and the amount of the award is not scaled down because the disability resulting from the injury complained of might be due in part to the pre-existing disease or infirmity. Kahne v. Robinson, 232 Miss. 670, 100 So. 2d 132, 100 So. 2d 585, 1958 Miss. LEXIS 315, 1958 Miss. LEXIS 316 (Miss. 1958).

Since the questions of whether the worker’s leg injury, sustained in the course of his employment, aggravated his pre-existing varicose vein condition, or whether the worker’s pre-existing condition aggravated the leg injury, were for the commission, an award to the worker for temporary total disability would be affirmed where the court was unable to say that the commission’s decision was not supported by the evidence. Jackson Ready-Mix Concrete v. Young, 230 Miss. 644, 93 So. 2d 645, 1957 Miss. LEXIS 405 (Miss. 1957).

Where it was shown that claimant’s condition, following an operation for a pre-existing disease, was aggravated by the strain caused by her industrial employment and that, as a result, she was unable to do the work which she formerly did, claimant was entitled to recover for permanent partial disability. King v. Westinghouse Electric Corp., 229 Miss. 830, 92 So. 2d 209, 1957 Miss. LEXIS 584 (Miss. 1957).

17. —Apportionment.

The Workers’ Compensation Commission properly apportioned an employee’s disabilities between 2 injuries where there was no evidence of a causal connection between the 2 injuries. Cawthon v. Alcan Aluminum Corp., 599 So. 2d 925, 1991 Miss. LEXIS 713 (Miss. 1991).

Apportionment of an award of compensation based on the claimant’s pre-existing heart condition was proper, even though his pre-existing heart condition caused no pre-injury occupational disability, since the heart attack which left the plaintiff permanently and totally disabled was materially contributed to by his pre-existing obstructive pulmonary disease and his hypertension. Mitchell Buick, Pontiac & Equipment Co. v. Cash, 592 So. 2d 978, 1991 Miss. LEXIS 980 (Miss. 1991).

Commission finding of fact on apportionment of disability between injury on job and pre-existing condition will be reversed on appeal where finding has been made in broad conclusory language for which reviewing court finds no substantial evidence in record. South Cent. Bell Tel. Co. v. Aden, 474 So. 2d 584, 1985 Miss. LEXIS 2197 (Miss. 1985).

The trial court was in error in awarding a nurse’s aid total and permanent disability on the ground that she was disabled from doing the work of a nurse’s aid and from doing work of a like character as a result of compensable injury to her lower back, without apportionment on account of a pre-existing condition or injury to her lower back. Compere's Nursing Home v. Biddy, 243 So. 2d 412, 1971 Miss. LEXIS 1511 (Miss. 1971).

Where there is a previous injury or disability, permanent partial disability benefits must be apportioned from the date of the claimant’s maximum medical recovery. Central Electric & Machinery Co. v. Shelton, 220 So. 2d 320, 1969 Miss. LEXIS 1454 (Miss. 1969).

Where the commission found that the reactivation of claimant’s pre-existing tuberculosis, culminating in hemorrhaging, was an incident growing out of and in the course of his employment, that the pre-existing condition and claimant’s work activities combined to cause claimant to become permanently and totally disabled and to prevent him from returning to the same or similar employment, he was entitled to a 50 percent apportionment of benefits. Jackson Ready-Mix Concrete v. Meadows, 198 So. 2d 576, 1967 Miss. LEXIS 1266 (Miss. 1967).

Where the amputation of claimant’s leg was necessitated in part by his pre-existing osteomyelitis, he was not entitled to receive the stated compensation provided by this section [Code 1942, § 6998-09], but his award was required to be apportioned as provided in Code 1942, § Communications Equipment Co. v. Burke, 186 So. 2d 765, 1966 Miss. LEXIS 1330 (Miss. 1966).

18. Multiple injuries.

Where multiple injuries are sustained by the employee in a single accident, affecting directly two members of the same extremity, if the injuries result in some disability to the greater member other than that occasioned by disability to the lesser member, the disability rating should be for loss of use of the greater member. Armstrong Cork Co. v. Sheppard, 222 Miss. 359, 76 So. 2d 225, 1954 Miss. LEXIS 652 (Miss. 1954).

Where there were multiple injuries to the employee’s foot and lower part of the leg above the ankle, attorney-referee and commission were amply justified in holding that the basis of the award of compensation to the claimant should be proportionate to the loss of use of the leg as a whole, and in refusing to attempt to separate the injury to the leg above the ankle from the injuries to the foot for the purpose of evaluating the appellee’s claim for compensation. Armstrong Cork Co. v. Sheppard, 222 Miss. 359, 76 So. 2d 225, 1954 Miss. LEXIS 652 (Miss. 1954).

19. Maximum medical improvement.

Mississippi Workers’ Compensation Commission erred in terminating the award of temporary total disability benefits for the claimant’s foot condition as there was no finding by either podiatrist or the Commission that the claimant had reached maximum medical improvement for his injury. Flowers v. Crown Cork & Seal United States, 168 So.3d 1009, 2013 Miss. App. LEXIS 388 (Miss. Ct. App. 2013), aff'd on other grounds, 167 So.3d 188, 2014 Miss. LEXIS 208 (Miss. 2014).

Mississippi Workers’ Compensation Commission erroneously denied permanent disability benefits for the claimant’s 2007 foot injury as consideration of such benefits was premature given that the record showed that the claimant had not reached maximum medical improvement when he attempted to return to work. Flowers v. Crown Cork & Seal United States, 168 So.3d 1009, 2013 Miss. App. LEXIS 388 (Miss. Ct. App. 2013), aff'd on other grounds, 167 So.3d 188, 2014 Miss. LEXIS 208 (Miss. 2014).

Modification of the disability award in a workers’ compensation action down to a 30 percent permanent partial disability award was appropriate under Miss. Code Ann. §§71-3-3(i) and71-3-17(a) because the employee failed to prove that he suffered permanent total disability. The employee was released by two doctors without work restrictions and he failed to reapply or make an otherwise diligent effort to return to work with the employer after reaching maximum medical improvement; further, one doctor was unable to explain the employee’s subjective complaints about pain in his leg and another doctor was likewise also unable to explain the employee’s complaints of decreased sensation in the leg. Smith v. Johnston Tombigbee Furniture Mfg. Co., 43 So.3d 1159, 2010 Miss. App. LEXIS 144 (Miss. Ct. App.), cert. denied, 49 So.3d 106, 2010 Miss. LEXIS 470 (Miss. 2010).

Modification of the disability award in a workers’ compensation action down to a 30 percent permanent partial disability award was appropriate under Miss. Code Ann. §§71-3-3(i) and71-3-17(a) because the employee failed to prove that he suffered permanent total disability. The employee was released by two doctors without work restrictions and he failed to reapply or make an otherwise diligent effort to return to work with the employer after reaching maximum medical improvement; further, one doctor was unable to explain the employee’s subjective complaints about pain in his leg and another doctor was likewise also unable to explain the employee’s complaints of decreased sensation in the leg. Smith v. Johnston Tombigbee Furniture Mfg. Co., 43 So.3d 1159, 2010 Miss. App. LEXIS 144 (Miss. Ct. App.), cert. denied, 49 So.3d 106, 2010 Miss. LEXIS 470 (Miss. 2010).

Workers’ compensation benefits for a permanent disability were denied because a claimant did not show that he suffered any disability or loss of wage-earning capacity due to a lower back injury where he had reached maximum medical improvement; all of the physicians cleared the claimant for work, none of them found physical problems, the claimant subsequently worked other jobs with similar duties, there were no complaints about his work performance, and he stated that his back was not a problem. Leslie v. SAIA Motor Freight, 970 So. 2d 218, 2007 Miss. App. LEXIS 812 (Miss. Ct. App. 2007).

Mississippi Workers’ Compensation Commission did not abuse its discretion in finding that surgery for a claimant’s L5-S1 condition was not medically reasonable or necessary, and that she had reached maximum medical improvement, as doctors testified that the need for surgery depended on her subjective experience of, and tolerance for, pain, and the credibility of her testimony in that regard was for the administrative law judge and Commission to determine. Barber Seafood, Inc. v. Smith, 911 So. 2d 454, 2005 Miss. LEXIS 470 (Miss. 2005).

20. Effect of receipt of disability benefits.

Although a claimant received short-term disability benefits, he was not equitably estopped from receiving workers’ compensation benefits for his 2007 foot injury as the employer had not provided the court with any authority that the payment of short-term disability benefits required the denial of workers’ compensation benefits. Flowers v. Crown Cork & Seal United States, 168 So.3d 1009, 2013 Miss. App. LEXIS 388 (Miss. Ct. App. 2013), aff'd on other grounds, 167 So.3d 188, 2014 Miss. LEXIS 208 (Miss. 2014).

RESEARCH REFERENCES

ALR.

Excessiveness or adequacy of damages awarded for injuries to head or brain, or for mental or nervous disorders. 14 A.L.R.4th 328.

Excessiveness of adequacy of damages awarded for injuries to, or condition induced in, circulatory, digestive, and glandular systems. 14 A.L.R.4th 539.

Workers’ compensation: bonus as factor in determining amount of compensation. 84 A.L.R.4th 1055.

What amounts to failure or refusal to submit to medical treatment sufficient to bar recovery of workers’ compensation. 3 A.L.R.5th 907.

Excessiveness or adequacy of damages awarded for injuries to head or brain. 50 A.L.R.5th 1.

Excessiveness or adequacy of damages awarded for injuries to nerves or nervous system. 51 A.L.R.5th 467.

Excessiveness or adequacy of damages awarded for injuries causing mental or psychological damages. 52 A.L.R.5th 1.

Right to workers’ compensation for physical injury or illness suffered by claimant as result of nonsudden mental stimuli-Right to compensation under particular statutory provisions. 122 A.L.R.5th 653.

Construction and Application of State Workers’ Compensation Laws to Claim for Hearing Loss – Resulting from Single Traumatic Accident or Event. 90 A.L.R.6th 425.

Am. Jur.

26 Am. Jur. Trials 645, Workmen’s Compensation–Employment Party Injury Litigation.

33 Am. Jur. Trials 467, Pathologist as Expert Witness: Malpractice Considerations.

36 Am. Jur. Trials 573, Worker’s Compensation: Compensability of Multiple Sclerosis.

37 Am. Jur. Trials 115, Contractor’s Liability for Mishandling Toxic Substance.

15 Am. Jur. Proof of Facts 2d 711, Physician’s Failure to Obtain Informed Consent to Innovative Practice or Medical Research.

17 Am. Jur. Proof of Facts 2d 575, Physician’s Use of Excessive Radiation.

19 Am. Jur. Proof of Facts 2d 485, Malpractice Liability in Genetic Counseling.

22 Am. Jur. Proof of Facts 2d 135, Carbon Monoxide Brain Damage.

25 Am. Jur. Proof of Facts 2d 1, Workers’ Compensation: Disability Resulting from Mental Stress.

26 Am. Jur. Proof of Facts 2d 421, “Total Disability” of Insured Attorney.

27 Am. Jur. Proof of Facts 2d 361, Anosmia.

30 Am. Jur. Proof of Facts 2d 95, Brain Injuries Due to Trauma.

30 Am. Jur. Proof of Facts 2d 341, Aphasia.

30 Am. Jur. Proof of Facts 2d 511, Traumatic Cause or Aggravation of Condition Affecting Mobility of Joints.

31 Am. Jur. Proof of Facts 2d 265, Rupture of Blood Vessel Due to Trauma.

31 Am. Jur. Proof of Facts 2d 611, Cardiovascular Shock.

32 Am. Jur. Proof of Facts 2d 217, Aplastic Anemia.

32 Am. Jur. Proof of Facts 2d 559, Peptic Ulcer.

36 Am. Jur. Proof of Facts 2d 335, Hip Injuries.

37 Am. Jur. Proof of Facts 2d 223, Neck Injuries.

38 Am. Jur. Proof of Facts 2d 285, Lumbar Spine Injuries.

40 Am. Jur. Proof of Facts 2d 263, Hearing Loss Due to Trauma.

42 Am. Jur. Proof of Facts 2d 481, Workers’ Compensation: Injury Occurring During Social, Recreational, or Athletic Activity.

44 Am. Jur. Proof of Facts 2d 1, Burn Injuries.

45 Am. Jur. Proof of Facts 2d 1, Asbestosis.

45 Am. Jur. Proof of Facts 2d 137, Qualification of Chiropractor as Expert Witness.

45 Am. Jur. Proof of Facts 2d 249, Intentional Infliction of Emotional Stress by Employer.

46 Am. Jur. Proof of Facts 2d 145, Lead Poisoning.

46 Am. Jur. Proof of Facts 2d 221, Forensic Audiology: Workers’ Compensation for Noise-Induced Hearing Loss.

46 Am. Jur. Proof of Facts 2d 275, Foundation for Admission of Thermogram.

48 Am. Jur. Proof of Facts 2d 401, Beryllium Poisoning.

48 Am. Jur. Proof of Facts 2d 431, Arsenic Poisoning.

50 Am. Jur. Proof of Facts 2d 1, Providing Significant Disability from Mild Head Injuries.

1 Am. Jur. Proof of Facts 3d 123, Temporomandibular Joint Injuries.

1 Am. Jur. Proof of Facts 3d 197, Recovery for Severe Burn Injuries.

1 Am. Jur. Proof of Facts 3d 291, Toxic Liver Injury.

2 Am. Jur. Proof of Facts 3d 1, Facial Injuries.

2 Am. Jur. Proof of Facts 3d 657, Pelvic Injuries.

4 Am. Jur. Proof of Facts 3d 73, Admissibility and Reliability of Electrocardiogram.

7 Am. Jur. Proof of Facts 3d 143, Workers’ Compensation for Attendant Care Services by Family Members.

8 Am. Jur. Proof of Facts 3d 1, Carpal Tunnel Syndrome.

8 Am. Jur. Proof of Facts 3d 145, Use of CAT Scans in Litigation.

CJS.

99 C.J.S., Workers’ Compensation §§ 516 et seq.

Practice References.

Bender’s Labor and Employment Bulletin (Matthew Bender).

Labor and Employment Law (Matthew Bender).

Larson’s Workers’ Compensation Desk Edition (Matthew Bender).

Larson’s Workers’ Compensation Law (Matthew Bender).

Mississippi Workers’ Compensation Laws and Rules Annotated, 2010 Edition with CD-ROM (Michie).

§ 71-3-19. Maintenance while undergoing vocational rehabilitation.

An employee who as a result of injury is or may be expected to be totally or partially incapacitated for a remunerative occupation and who, under the direction of the commission is being rendered fit to engage in a remunerative occupation may, in the discretion of the commission under regulations adopted by it, receive additional compensation necessary for his maintenance, but such additional compensation shall not exceed Twenty-five Dollars ($25.00) a week for not more than fifty-two (52) weeks.

HISTORY: Codes, 1942, § 6998-10; Laws, 1948, ch. 354, § 8d; Laws, 1950, ch. 412, § 6; Laws, 1958, ch. 454, § 3; reenacted without change, Laws, 1982, 1980 ch 473, § 10; reenacted without change, Laws, 1990, ch. 405, § 10; Laws, 2012, ch. 522, § 5, eff from and after July 1, 2012.

Editor’s Notes —

Laws of 2012, ch. 522, §§ 10 and 11, provide:

“SECTION 10. The Workers’ Compensation Commission shall promulgate a written statement specifying the changes made to the Workers’ Compensation Law by this act to every employer in this state subject to the Workers’ Compensation Law. Within ten (10) days of receipt of this written statement from the Commission, every employer shall post the Commission’s statement in a conspicuous place or places in and about his place or places of business and adjacent to the Notice of Coverage as required by Section 71-3-81.

“SECTION 11. This act shall take effect and be in force from and after July 1, 2012, and shall apply to injuries occurring on or after July 1, 2012.”

Amendment Notes —

The 2012 amendment substituted “Twenty-five Dollars ($25.00)” for “Ten Dollars ($10.00).”

Cross References —

Vocational Rehabilitation Law of Mississippi, see §§37-33-11 et seq.

RESEARCH REFERENCES

ALR.

Workers’ compensation; vocational rehabilitation statutes. 67 A.L.R.4th 612.

Law Reviews.

Steiner, The Americans with Disabilities Act of 1990 and workers’ compensation: the employees’ perspective. 62 Miss. L. J. 631 (Spring, 1993).

§ 71-3-21. Temporary partial disability.

In case of temporary partial disability resulting in decrease of earning capacity, there shall be paid to the injured employee sixty-six and two-thirds percent (66-2/3%) of the difference between the injured employee’s average weekly wages before the injury and his wage-earning capacity after the injury in the same or other employment, subject to the maximum limitations as to weekly benefits as set up in this chapter, payable during the continuance of such disability but in no case exceeding four hundred fifty (450) weeks or an amount greater than the multiple of four hundred fifty (450) weeks times sixty-six and two-thirds percent (66-2/3%) of the average weekly wage for the state.

HISTORY: Codes, 1942, § 6998-11; Laws, 1948, ch. 354, § 8e; Laws, 1950, ch. 412, § 6; Laws, 1958, ch. 454, § 3; Laws, 1968, ch. 559, § 6; Laws, 1972, ch. 522, § 4; Laws, 1976, ch. 459, § 3; Laws, 1979, ch. 442, § 3; Laws, 1981, ch. 341, § 3; reenacted, Laws, 1982, ch. 473, § 11; Laws, 1984, ch. 402, § 3; Laws, 1988, ch. 446, § 4; reenacted without change, Laws, 1990, ch. 405, § 11, eff from and after July 1, 1990.

Editor’s Notes —

Laws of 1988, ch. 446, § 6, provides as follows:

“SECTION 6. This act shall take effect and be in force from and after July 1, 1988; provided, however, the increase in benefits allowed under this act shall apply only to claims arising on or after July 1, 1988”.

Cross References —

Temporary total disability, see §71-3-17.

Determination of wages, see §71-3-31.

JUDICIAL DECISIONS

1. In general.

Circuit court erred in dismissing the claims with prejudice where nothing in a previous Mississippi Workers’ Compensation Commission decision or prior precedents foreclosed a claim for bad faith denial of temporary partial disability benefits, even if it may have been difficult to prove bad faith. Hardaway v. Howard Indus., 211 So.3d 718, 2016 Miss. App. LEXIS 331 (Miss. Ct. App. 2016).

Circuit court properly dismissed the employees’ bad faith lawsuits against their employer and a workers’ compensation administrator where the employees had filed the lawsuits prior to obtaining a final judgment that they were entitled to the workers’ compensation benefits allegedly denied in bad faith. Hardaway v. Howard Indus., 211 So.3d 718, 2016 Miss. App. LEXIS 331 (Miss. Ct. App. 2016).

Workers’ Compensation Commission did not err in determining that the claimant was entitled to temporary partial disability benefits based on a difference between his pre-injury and actual post-injury wages despite the employer’s evidence of fluctuations in overtime hours. Howard Indus. v. Hardaway, 191 So.3d 1257, 2015 Miss. App. LEXIS 465 (Miss. Ct. App. 2015), cert. denied, 202 So.3d 208, 2016 Miss. LEXIS 207 (Miss. 2016).

Employee was entitled to temporary disability benefits under Miss. Code Ann. §71-3-21 for a certain period of time, and only for those periods within that time when the employee was, because of the injury, unable to work and earn full pay, and the case was remanded to reflect this fact; it was error to have awarded the employee a total amount of temporary benefits under Miss. Code Ann. §71-3-17(b), with a credit to the employer for any compensation earned by the employee during that time, because this was not a total disability, and this calculation did not lead to the proper credit. Howard Indus. v. Robinson, 846 So. 2d 245, 2002 Miss. App. LEXIS 574 (Miss. Ct. App. 2002).

The claimant was not entitled to temporary partial disability benefits for the period during which he received more compensation for his employment in a new position than in his previous jobs. City of Laurel v. Blackledge, 1999 Miss. App. LEXIS 333 (Miss. Ct. App. June 22, 1999), op. withdrawn, sub. op., 755 So. 2d 573, 2000 Miss. App. LEXIS 88 (Miss. Ct. App. 2000).

Against the argument that having once found permanent partial disability, the commission should not thereafter make findings of temporary disability since such would prolong permanent payments on a subsequent finding of a new temporary disability, the commission properly awarded temporary disability after having found permanent partial disability where the evidence supported the award and the order allowed credit for benefits paid. Weaver Pants Co. v. Duncan, 231 So. 2d 489, 1970 Miss. LEXIS 1590 (Miss. 1970).

To require a hearing each two weeks to determine whether temporary disability continues would not be reasonable. Komp Equipment Co. v. Clinton, 236 Miss. 560, 112 So. 2d 541, 1959 Miss. LEXIS 351 (Miss. 1959).

The commission, in determining the period for which compensation for temporary disability should be allowed, following supreme court’s affirmance of an award made by an attorney-referee, should require payment from the making of the award to the date of its approval by the commission. Jackson Ready-Mix Concrete v. Young, 236 Miss. 550, 111 So. 2d 255, 1959 Miss. LEXIS 349 (Miss. 1959).

Temporary disability is not conclusively presumed to continue until the appellate court’s affirmance of an award therefor, so as to require payments of compensation for the period of pendency of the appeal. Jackson Ready-Mix Concrete v. Young, 236 Miss. 550, 111 So. 2d 255, 1959 Miss. LEXIS 349 (Miss. 1959).

RESEARCH REFERENCES

ALR.

Workers’ compensation: bonus as factor in determining amount of compensation. 84 A.L.R.4th 1055.

Am. Jur.

36 Am. Jur. Trials 573, Worker’s Compensation: Compensability of Multiple Sclerosis.

CJS.

99 C.J.S., Workers’ Compensation §§ 545-549, 551-555, 582 et seq.

§ 71-3-23. Hernia.

In all cases of claim for hernia, it shall be shown by a preponderance of the evidence:

That the descent or protrusion of the hernia or rupture immediately followed as the result of sudden effort, severe strain, or the application of force to the abdominal wall;

That there was severe pain in the region of the hernia or rupture;

That there has been no descent or protrusion of the hernia or rupture prior to the accident for which compensation is claimed;

That the physical distress resulting from the descent or protrusion of the hernia or rupture was noticed immediately by claimant, and communicated to his employer within a reasonable time; and

That the physical distress following the descent or protrusion of the hernia or rupture was such as to require the attendance of a licensed physician or surgeon within five (5) days after the injury for which compensation is claimed. Postoperative hernias shall be considered as original hernias.

In every case of hernia or rupture as above defined, it shall be the duty of the employer forthwith to provide the necessary and proper medical, surgical, and hospital care and attention to effectuate a cure by radical operation of said hernia or rupture, and to pay compensation under the provisions of paragraph (b) of Section 71-3-17, not exceeding, however, a period of twenty-six (26) weeks.

In case the employee shall refuse to permit such operation, it shall be the duty of the employer to provide all necessary first aid, medical and hospital care and services, to supply the proper and necessary truss or other mechanical appliance to enable said employee to resume work, and shall further pay compensation under the provisions of paragraph (b) of Section 71-3-17, not exceeding, however, the period of thirteen (13) weeks.

In case death results within a period of one (1) year, either from the hernia or rupture or from the radical operation thereof, compensation shall be paid the dependents as provided in other death cases under this chapter.

HISTORY: Codes, 1942, § 6998-12; Laws, 1948, ch. 354, § 8f; Laws, 1950, ch. 412, § 6; Laws, 1958, ch. 454, § 3; Laws, 1960, ch. 280; reenacted without change, Laws, 1982, ch. 473, § 12; reenacted without change, Laws, 1990, ch. 405, § 12, eff from and after July 1, 1990.

Cross References —

Compensation for death, see §71-3-25.

Determination of wages, see §71-3-31.

JUDICIAL DECISIONS

1. In general.

2. Existence of pain.

3. Previous descent or protrusion.

4. Attendance of physician.

5. Death.

6. Amount of recovery.

1. In general.

This section [Code 1942, § 6998-12] applies only if the hernia results from an accidental injury that arose out of and in the course of the employee’s employment, but where an employee sustains internal injuries while on the job which require surgical entering into the abdomen which results in a postoperative hernia, this section has no application. Con-Plex, Inc. v. Clack, 207 So. 2d 83, 1968 Miss. LEXIS 1593 (Miss. 1968).

The required preponderance may be produced by circumstantial evidence. Williams v. Alwyne Jordan Curing Plant, 244 Miss. 685, 145 So. 2d 686, 1962 Miss. LEXIS 496 (Miss. 1962).

This section [Code 1942, § 6998-12] applies in the case of a hernia caused by the workman’s accidental contact with a moving wheel. Rogers v. Vicksburg Hardwood Co., 240 Miss. 780, 129 So. 2d 124, 1961 Miss. LEXIS 510 (Miss. 1961).

This section [Code 1942, § 6998-12] includes diaphragmatic hernias. Commans v. Ingalls Shipbuilding Corp., 240 Miss. 373, 128 So. 2d 114, 1961 Miss. LEXIS 472 (Miss. 1961).

In a workmen’s compensation case, where judgment of circuit court and the award of commission merely adjudicated that the claimant should have all the benefits of the Workmen’s Compensation Law as related to hernia without awarding any definite fixed sum of money, on appeal the supreme court, upon affirmance of judgment, could not allow damages. J. & B. Mfg. Co. v. Cochran, 216 Miss. 336, 62 So. 2d 378, 1953 Miss. LEXIS 642 (Miss. 1953).

Under this section [Code 1942, § 6998-12], when, as a result of sudden effort or severe strain, or both, there is a severe strain in the hernial region, and the employee is rendered unable to work, if the pain is sufficient to require the services of a doctor within forty-eight hours, and if the occurrence is communicated to his employer within that time, the hernia is compensable. Lucedale Veneer Co. v. Rogers, 211 Miss. 613, 48 So. 2d 148, 1950 Miss. LEXIS 356 (Miss. 1950).

2. Existence of pain.

Description by an employee that the sensation was like a bee sting, and the pain became worse in the afternoon and severe that night conclusively established existence of pain, required in cases of claim for hernia in that there was severe pain in the hernial region. Lucedale Veneer Co. v. Rogers, 211 Miss. 613, 48 So. 2d 148, 1950 Miss. LEXIS 356 (Miss. 1950).

3. Previous descent or protrusion.

Where the record showed that there had been a previous descent or protrusion of hernia before the accident in question, appellants failed to bring their claim within the requirements of this section [Code 1942, § Dependents of Flood v. NCO Open Mess, etc., 238 Miss. 207, 118 So. 2d 294, 1960 Miss. LEXIS 397 (Miss. 1960).

Where the evidence not only failed to prove that there had been no descent or protrusion of the hernia prior to the accident for which compensation was claimed, but, in fact, clearly showed to the contrary, the action of the commission in denying compensation to the claimant would be affirmed. Ray v. Wells-Lamont Glove Factory, 236 Miss. 154, 109 So. 2d 544, 1959 Miss. LEXIS 304 (Miss. 1959).

While generally a pre-existing disease or infirmity does not disqualify a claim under the “arising out of employment” requirements of the Workmen’s Compensation Law if the employment aggravated, accelerated, or combined with the disease or infirmity to produce the death or disability for which compensation is sought, in hernia cases effect must be given to this section [Code 1942, § 6998-12]. Fagan v. Wells-Lamont, Inc., 228 Miss. 660, 89 So. 2d 632, 1956 Miss. LEXIS 560 (Miss. 1956).

In view of this section [Code 1942, § 6998-12] claimant’s failure to prove that there had been no descent or protrusion of her incisional hernia prior to the accident for which compensation was claimed barred recovery benefits for the aggravation of a pre-existing hernia. Fagan v. Wells-Lamont, Inc., 228 Miss. 660, 89 So. 2d 632, 1956 Miss. LEXIS 560 (Miss. 1956).

The provision of this section [Code 1942, § 6998-12] that a claimant must prove by a preponderance of the evidence that there has been no descent or protrusion of a hernia prior to the accident for which compensation is claimed is a statutory prerequisite to recovery for hernia claims. Dependents of Flood v. NCO Open Mess, etc., 238 Miss. 207, 118 So. 2d 294, 1960 Miss. LEXIS 397 (Miss. 1960); Ryan Supply Co. v. Brett, 222 Miss. 30, 75 So. 2d 75, 1954 Miss. LEXIS 613 (Miss. 1954).

4. Attendance of physician.

A claimant for workmen’s compensation benefits who suffered a hernia while carrying heavy pipe and immediately went to see the company’s nurse, who advised him that she would send him to a doctor if it happened again, satisfied the statutory requirement that physical distress following the sudden protrusion of a hernia must require the attendance of a doctor within five days after the injury; the fact that he did not actually see a doctor within five days did not defeat the claim. Bechtel Constr. Co. v. Bartlett, 371 So. 2d 398, 1979 Miss. LEXIS 2065 (Miss. 1979).

Where claimant was injured on June 10, 1964, did not see a doctor until 55 days later on August 4, 1964, did not quit work until 57 days after his injury, and was operated on for an inguinal hernia on August 7, 1964, the evidence was insufficient to establish that he “required” the attendance of a physician or surgeon within 5 days following his injury. Biloxi Motor Co. v. Barry, 192 So. 2d 403, 1966 Miss. LEXIS 1254 (Miss. 1966).

In the provision in this section [Code 1942, § 6998-12] which requires attendance of physician within five days after injury for which compensation is claimed, the word “require” means to want, to need, to call for, and this section does not require that injured employee in a hernia case be denied compensation because he was not actually attended by a licensed physician within the five-day period. Lindsey v. Ingalls Shipbuilding Corp., 219 Miss. 437, 68 So. 2d 872, 1954 Miss. LEXIS 351 (Miss. 1954).

Where a workman employed as a ship fitter sustained an injury on Monday while he was engaged in helping to remove some heavy brackets from bulkhead just before quitting time and then he went home and remained in bed, suffering severe pain until the following Monday when he reported to the company hospital and was told that he had hernia, the employee was entitled to compensation for hernia even though he had not been attended by a physician until one week after the injury. Lindsey v. Ingalls Shipbuilding Corp., 219 Miss. 437, 68 So. 2d 872, 1954 Miss. LEXIS 351 (Miss. 1954).

Where hernia suffered by compensation claimant did not require attendance of physician until eight or nine days thereafter, claimant was precluded from recovering compensation therefor by paragraph 4 of Code 1942, § 6998-12 [now subsection (e) of Code 1972, §73-3-23]. Meador v. Dollar Store, 217 Miss. 447, 64 So. 2d 574, 1953 Miss. LEXIS 449 (Miss. 1953).

5. Death.

No distinction is made between disability and death claims in hernia cases. Dependents of Flood v. NCO Open Mess, etc., 238 Miss. 207, 118 So. 2d 294, 1960 Miss. LEXIS 397 (Miss. 1960).

The final sentence of this section [Code 1942, § 6998-12] is not construable as meaning that death claims resulting from hernia or operations therefor are not restricted by the five precedent requirements set out in the section. Dependents of Flood v. NCO Open Mess, etc., 238 Miss. 207, 118 So. 2d 294, 1960 Miss. LEXIS 397 (Miss. 1960).

6. Amount of recovery.

Where substantial evidence establishes a causal connection between claimant’s surgery for repair of a hernia and the physical discomforts and disabilities suffered since that time, a claimant is not necessarily limited to the specific award for hernia alone. Knight v. Stachel, 193 So. 2d 593, 1967 Miss. LEXIS 1554 (Miss. 1967).

Compensation is not limited to that provided for hernia where repair surgery induced a coronary occlusion. McBride v. Wetmore & Parman, Inc., 241 Miss. 743, 133 So. 2d 261, 1961 Miss. LEXIS 395 (Miss. 1961).

One claiming compensation in addition to the statutory allowance for a hernia has the burden of showing that the injury caused additional disability resulting in a greater and more prolonged incapacity than the hernia. Rivers Constr. Co. v. Dubose, 241 Miss. 527, 130 So. 2d 865, 1961 Miss. LEXIS 371 (Miss. 1961).

That a hernia injury affects a nerve in the vicinity, causing severe pain, is not ground for additional compensation. Rivers Constr. Co. v. Dubose, 241 Miss. 527, 130 So. 2d 865, 1961 Miss. LEXIS 371 (Miss. 1961).

RESEARCH REFERENCES

ALR.

Workers’ compensation: reasonableness of employee’s refusal of medical services tendered by employer. 72 A.L.R.4th 905.

Am. Jur.

82 Am. Jur. 2d, Workers’ Compensation § 279.

25 Am. Jur. Pl & Pr Forms (Rev), Workmen’s Compensation, Forms 54, 116.

5 Am. Jur. Proof of Facts 699, Hernia.

7 Am. Jur. Proof of Facts 3d 143, Workers’ Compensation for Attendant Care Services by Family Members.

CJS.

99 C.J.S., Workers’ Compensation §§ 344, 345.

§ 71-3-25. Compensation for death.

If the injury causes death, the compensation shall be known as a death benefit and shall be payable in the amount and to or for the benefit of the persons following:

An immediate lump-sum payment of One Thousand Dollars ($1,000.00) to the surviving spouse, in addition to other compensation benefits.

Reasonable funeral expenses not exceeding Five Thousand Dollars ($5,000.00) exclusive of other burial insurance or benefits.

If there be a surviving spouse and no child of the deceased, to such surviving spouse thirty-five percent (35%) of the average wages of the deceased during widowhood or dependent widowhood and, if there be a surviving child or children of the deceased, the additional amount of ten percent (10%) of such wages for each such child. In case of the death or remarriage of such surviving spouse, any surviving child of the deceased employee shall have his compensation increased to fifteen percent (15%) of such wages, provided that the total amount payable shall in no case exceed sixty-six and two-thirds percent (66-2/3%) of such wages, subject to the maximum limitations as to weekly benefits as set up in this chapter. The commission may, in its discretion, require the appointment of a guardian for the purpose of receiving the compensation of a minor dependent. In the absence of such a requirement, the appointment of a guardian for such purposes shall not be necessary, provided that if no legal guardian be appointed, payment to the natural guardian shall be sufficient.

If there be a surviving child or children of the deceased but no surviving spouse, then for the support of each such child twenty-five percent (25%) of the wages of the deceased, provided that the aggregate shall in no case exceed sixty-six and two-thirds percent (66-2/3%) of such wages, subject to the maximum limitations as to weekly benefits as set up in this chapter.

If there be no surviving spouse or child, or if the amount payable to a surviving spouse and to children shall be less in the aggregate than sixty-six and two-thirds percent (66-2/3%) of the average wages of the deceased, subject to the maximum limitations as to weekly benefits as set up in this chapter, then for the support of grandchildren or brothers and sisters, if dependent upon the deceased at the time of the injury, fifteen percent (15%) of such wages for the support of each such person; and for the support of each parent or grandparent of the deceased, if dependent upon him at the time of injury, fifteen percent (15%) of such wages during such dependency. But in no case shall the aggregate amount payable under this subsection exceed the difference between sixty-six and two-thirds percent (66-2/3%) of such wages and the amount payable as hereinbefore provided to surviving spouse and for the support of surviving child or children, subject to the maximum limitations as to weekly benefits as set up in this chapter.

The total weekly compensation payments to any or all beneficiaries in death cases shall not exceed the weekly benefits as set up in this chapter and shall in no case be paid for a longer period than four hundred fifty (450) weeks or for a greater amount than the multiple of four hundred fifty (450) weeks times sixty-six and two-thirds percent (66-2/3%) of the average weekly wage for the state.

All questions of dependency shall be determined as of the time of the injury. A surviving spouse, child or children shall be presumed to be wholly dependent. All other dependents shall be considered on the basis of total or partial dependence as the facts may warrant.

HISTORY: Codes, 1942, § 6998-13; Laws, 1948, ch. 354, § 9; Laws, 1950, ch. 412, § 7; Laws, 1958, ch. 454, § 4; Laws, 1968, ch. 559, § 7; Laws, 1972, ch. 522, § 5; Laws, 1976, ch. 459, § 4; Laws, 1979, ch. 442, § 4; Laws, 1981, ch. 341, § 4; reenacted by Laws, 1982, ch. 473, § 13; Laws, 1984, ch. 402, § 4; Laws, 1984, ch. 499, § 2; Laws, 1988, ch. 446, § 5; reenacted without change, Laws, 1990, ch. 405, § 13; Laws, 2012, ch. 522, § 6, eff from and after July 1, 2012.

Editor’s Notes —

Laws of 1988, ch. 446, § 6, provides as follows:

“SECTION 6. This act shall take effect and be in force from and after July 1, 1988; provided, however, the increase in benefits allowed under this act shall apply only to claims arising on or after July 1, 1988.

“For claims arising prior to July 1, 1988, the following provisions of Section 71-3-25 (as it appeared prior to the amendment in 1988 and reenactment in 1990) shall apply:

“If the injury causes death, the compensation shall be known as a death benefit and shall be payable in the amount and to or for the benefit of the persons following:

“(a) An immediate lump sum payment of two hundred fifty dollars ($250.00) to the surviving spouse, in addition to other compensation benefits.

“(b) Reasonable funeral expenses not exceeding two thousand dollars ($2,000.00) exclusive of other burial insurance or benefits.

“(c) If there be a surviving spouse and no child of the deceased, to such surviving spouse thirty-five percent (35%) of the average wages of the deceased during widowhood or dependent widowhood and, if there be a surviving child or children of the deceased, the additional amount of ten percent (10%) of such wages for each such child. In case of the death or remarriage of such surviving spouse, any surviving child of the deceased employee shall have his compensation increased to fifteen percent (15%) of such wages, provided that the total amount payable shall in no case exceed sixty-six and two-thirds percent (66-2/3%) of such wages, subject to the maximum limitations as to weekly benefits as set up in this chapter. The commission may, in its discretion, require the appointment of a guardian for the purpose of receiving the compensation of a minor dependent. In the absence of such a requirement, the appointment of a guardian for such purposes shall not be necessary, provided that if no legal guardian be appointed, payment to the natural guardian shall be sufficient.

“(d) If there be a surviving child or children of the deceased but no surviving spouse, then for the support of each such child twenty-five percent (25%) of the wages of the deceased, provided that the aggregate shall in no case exceed sixty-six and two-thirds percent (66-2/3%) of such wages, subject to the maximum limitations as to weekly benefits as set up in this chapter.

“(e) If there be no surviving spouse or child, or if the amount payable to a surviving spouse and to children shall be less in the aggregate than sixty-six and two-thirds percent (66-2/3%) of the average wages of the deceased, subject to the maximum limitations as to weekly benefits as set up in this chapter, then for the support of grandchildren or brothers and sisters, if dependent upon the deceased at the time of the injury, fifteen percent (15%) of such wages for the support of each such person; and for the support of each parent or grandparent of the deceased, if dependent upon him at the time of injury, fifteen percent (15%) of such wages during such dependency. But in no case shall the aggregate amount payable under this subsection exceed the difference between sixty-six and two-thirds percent (66-2/3%) of such wages and the amount payable as hereinbefore provided to surviving spouse and for the support of surviving child or children, subject to the maximum limitations as to weekly benefits as set up in this chapter.

“(f) The total weekly compensation payments to any or all beneficiaries in death cases shall not exceed the weekly benefits as set up in this chapter and shall in no case be paid for a longer period than four hundred fifty (450) weeks or a greater amount than fifty-six thousand seven hundred dollars ($56,700.00) until June 30, 1985; as to claims arising on and after July 1, 1985, such payments shall not exceed fifty-nine thousand eight hundred fifty dollars ($59,850.00); and as to claims arising on and after July 1, 1986, such payments shall not exceed sixty-three thousand dollars ($63,000.00).

“(g) All questions of dependency shall be determined as of the time of the injury. A surviving spouse, child or children shall be presumed to be wholly dependent. All other dependents shall be considered on the basis of total or partial dependence as the facts may warrant.”

Laws of 2012, ch. 522, §§ 10 and 11, provide:

“SECTION 10. The Workers’ Compensation Commission shall promulgate a written statement specifying the changes made to the Workers’ Compensation Law by this act to every employer in this state subject to the Workers’ Compensation Law. Within ten (10) days of receipt of this written statement from the Commission, every employer shall post the Commission’s statement in a conspicuous place or places in and about his place or places of business and adjacent to the Notice of Coverage as required by Section 71-3-81.

“SECTION 11. This act shall take effect and be in force from and after July 1, 2012, and shall apply to injuries occurring on or after July 1, 2012.”

Amendment Notes —

The 2012 amendment substituted “One Thousand Dollars ($1,000.00)” for “Two Hundred Fifty Dollars ($250.00)” in (a); and substituted “Five Thousand Dollars ($5,000.00)” for “Two Thousand Dollars ($2,000.00)” in (b).

Cross References —

Minimum and maximum compensation, see §71-3-13.

Determination of wages, see §71-3-31.

JUDICIAL DECISIONS

1. In general.

2. Dependents, generally.

3. —Spouses.

4. —Children, stepchildren and grandchildren.

5. —Illegitimate children.

6. —Parents.

7. —Siblings.

8. —Partial dependents.

9. Effect of prior denial of compensation benefits.

10. Credit for other payments to deceased or dependents.

11. Application of recovery from third party wrongdoer.

12. Review.

13. Denial inappropriate.

14. Denial appropriate.

1. In general.

Since a claim for disability is separate and distinct from a claim for death benefits, the 1960 amendment to subsection (9) of Code 1942, § 6998-02 [now subsection (i) of Code 1972, §71-3-3], requiring that incapacity and the extent thereof be supported by medical findings, did not eliminate the presumption of causal connection between the employment and death occurring while the employee is engaged in the duties of his employment, particularly since the 1960 amendment did not affect subsection (3) of Code 1942, § 6998-02 [now subsection (c) of Code 1972, §71-3-3]. L. B. Priester & Son, Inc. v. Bynum, 244 Miss. 185, 137 So. 2d 907, 1962 Miss. LEXIS 438 (Miss. 1962).

Legislature did not purpose and intend to provide greater benefits for permanent partial disability than for death or permanent total disability, and the court in construing the Workmen’s Compensation Law should give effect to the legislative purpose and policy although such construction may go beyond the letter of the law. J. F. Crowe Well Servicing Contractor v. Fielder, 224 Miss. 353, 80 So. 2d 29, 1955 Miss. LEXIS 499 (Miss. 1955).

2. Dependents, generally.

Purposes and objectives of Workers’ Compensation Act has rational basis and furthers valid state purpose, even though it precludes recovery by certain parties, such as non-dependants. Dependents of Nosser v. Natchez Jitney Jungle, Inc., 511 So. 2d 141, 1987 Miss. LEXIS 2673 (Miss. 1987).

Where a lump sum settlement has been effected in compromise of a doubtful and disputed claim, the proceeds should be distributed among the widow and minor children of the deceased employee following the purpose of subdivision (c) of this section [Code 1942, § 6998-13]. Griffing v. Marquette Cement Mfg. Co., 253 Miss. 338, 175 So. 2d 180, 1965 Miss. LEXIS 991 (Miss. 1965).

Where, in absence of an apportionment under Code 1942, § 6998-04 by reason of pre-existing disease, claimant would receive the statutory maximum, such maximum is the proper basis of apportionment. Southeastern Constr. Co. v. Dependent of Dodson, 247 Miss. 1, 153 So. 2d 276, 1963 Miss. LEXIS 277 (Miss. 1963).

In order to be a dependent, the claimant must show that he had reasonable grounds to anticipate future support from the deceased employee. Mid-State Paving Co. v. Farthing, 233 Miss. 333, 101 So. 2d 850, 1958 Miss. LEXIS 386 (Miss. 1958).

The provision of the Workmen’s Compensation Law to the effect that questions of dependency shall be determined at the time of the injury has reference to the dependency which generates the original right to an award, and does not control the question of determination of a right to continue receiving an award. Franklin v. Jackson, 231 Miss. 497, 95 So. 2d 794, 1957 Miss. LEXIS 534 (Miss. 1957).

3. —Spouses.

Provisions of former §71-3-25 differentiating between widow and widower in award of death benefits are unconstitutional. Wilson v. Service Broadcasters, Inc. (WDAM), 483 So. 2d 1339, 1986 Miss. LEXIS 2387 (Miss. 1986).

The provision giving a surviving wife a percentage of decedent’s average wages is qualified by the provision of subsection (f) of Code 1942, § 6998-13; fixing the permissible maximum of payments. Southeastern Constr. Co. v. Dependent of Dodson, 247 Miss. 1, 153 So. 2d 276, 1963 Miss. LEXIS 277 (Miss. 1963).

Unless disability of minority has been removed by court decree, a guardian should be appointed to receive compensation for a minor widow. Dapsco, Inc. v. Dependent of Upchurch, 243 Miss. 427, 138 So. 2d 287, 1962 Miss. LEXIS 359 (Miss. 1962).

Lump sum settlement of compensation to widow set aside where widow had become ineligible to receive benefits by remarrying before payment, and had knowingly made a false statement as to necessity for lump sum payment. Dapsco, Inc. v. Dependent of Upchurch, 243 Miss. 427, 138 So. 2d 287, 1962 Miss. LEXIS 359 (Miss. 1962).

A finding that the second wife of a deceased employee, as well as her children by a former marriage, were entitled to share in the death benefits resulting from the employee’s death, was affirmed where there was evidence showing that the stepchildren were dependent upon the decedent for support, and that the wife and children were not living apart from the decedent without justifiable excuse. Bolton v. Easterling, 232 Miss. 236, 98 So. 2d 658, 1957 Miss. LEXIS 463 (Miss. 1957).

The term widow or widower as contemplated in the Workmen’s Compensation Law shall not apply to any person who has, since his or her separation from decedent, entered into a ceremonial marriage or lived in open adultery with another. Watkins v. Taylor, 216 Miss. 822, 63 So. 2d 225, 1953 Miss. LEXIS 701 (Miss. 1953).

The words “surviving wife” as used in the Workmen’s Compensation Law mean widow entitled to compensation, and where the wife of deceased has entered into marriage with another long prior to death of deceased, and lived with another man and was supported by him, each illegitimate child of deceased was entitled to compensation. Watkins v. Taylor, 216 Miss. 822, 63 So. 2d 225, 1953 Miss. LEXIS 701 (Miss. 1953).

Where a man and woman lived together for three years and a child was born, but they did not hold themselves out as husband and wife, and both later separated and each of them contracted a ceremonial marriage, this was insufficient evidence to substantiate a common law marriage and the man’s ceremonial marriage was valid, and the widow was entitled to compensation upon the death of her husband. United States Fidelity & Guaranty Co. v. Smith, 211 Miss. 573, 52 So. 2d 351, 1951 Miss. LEXIS 389 (Miss. 1951).

In computing compensation benefits to a widow, the probability of remarriage before the expiration of the 450 weeks during which the widow is entitled to compensation must be taken into account. United States Fidelity & Guaranty Co. v. Smith, 211 Miss. 573, 52 So. 2d 351, 1951 Miss. LEXIS 389 (Miss. 1951).

4. —Children, stepchildren and grandchildren.

Workers’ Compensation Commission’s decision that the child was not a dependent of the decedent and thus not entitled to an award of death benefits was supported by substantial evidence; because of the child’s age (26-years old) and marital status (married), an award of death benefits to her would not be proper unless she was wholly dependent on the decedent, and given the myriad income sources available to and used by the child, the appellate court could hardly view the receipt of such income as sporadic or insubstantial. Descendants of Gilmer v. Nolen Sistrunk Trucking, Inc., 892 So. 2d 825, 2004 Miss. App. LEXIS 867 (Miss. Ct. App. 2004), cert. denied, 893 So. 2d 1061, 2005 Miss. LEXIS 80 (Miss. 2005).

Workers’ Compensation Commission’s decision that the decedent’s grandchildren were not dependents and thus not entitled to death benefits was supported by substantial evidence, because there was no indication in the record that the grandchildren knew the decedent was providing support to them, much less that they expected his support in the future Descendants of Gilmer v. Nolen Sistrunk Trucking, Inc., 892 So. 2d 825, 2004 Miss. App. LEXIS 867 (Miss. Ct. App. 2004), cert. denied, 893 So. 2d 1061, 2005 Miss. LEXIS 80 (Miss. 2005).

Grandchild to whom deceased stood in place of parent for at least one year prior to injury elevated to child status, where uncontroverted evidence showed that decedent had stood in place of granddaughter’s father all of her life, and she called him “ U.S. Rubber Reclaiming Co. v. Dependents of Stampley, 508 So. 2d 673, 1987 Miss. LEXIS 2599 (Miss. 1987).

Under Miss Code 1972 §§71-3-3 &71-3-25, which define a “child” and “grandchild” and prescribe different workmen’s compensation benefits for each, two minor natural grandchildren, with whom the Commission found that decedent stood in loco parentis for at least one year prior to the time of his injury and death, would be elevated to the status of children for workmen’s compensation benefit purposes. Longleaf Forest Products, Inc. v. Hopkins, 349 So. 2d 523, 1977 Miss. LEXIS 2150 (Miss. 1977).

Daughter unmarried at time of injury is ineligible for death benefits as a dependent where she was married at the time of death. Futorian-Stratford Furniture Co. v. Dependents of Oswalt, 249 Miss. 35, 162 So. 2d 645, 1964 Miss. LEXIS 373 (Miss. 1964).

A married daughter, living apart from her husband and with the deceased at the time of his death, who was over the age of 18 years, not wholly dependent upon the deceased, and not incapable of self-support by reasons of mental or physical disability, was precluded from the allowance of any benefits for the death of her father. Thrash v. Jackson Auto Sales, Inc., 232 Miss. 845, 100 So. 2d 574, 1958 Miss. LEXIS 338 (Miss. 1958).

Where there was evidence showing that the stepchildren were dependent upon decedent for support, and that the wife and stepchildren were not living apart from decedent without justifiable excuse, a finding that the second wife of a deceased employee, as well as her children by a former marriage, were entitled to share in the death benefits was affirmed. Bolton v. Easterling, 232 Miss. 236, 98 So. 2d 658, 1957 Miss. LEXIS 463 (Miss. 1957).

Even though a child qualifies as a dependent as of the time of injury because he is then under 18 years of age, he ceases to be a child within the meaning of the Workmen’s Compensation Law when he reaches the age of 18 years unless he is incapable of self-support by reason of mental or physical disability. Franklin v. Jackson, 231 Miss. 497, 95 So. 2d 794, 1957 Miss. LEXIS 534 (Miss. 1957).

Since one of the primary purposes of the Workmen’s Compensation Law is to relieve society of the burden of supporting helpless children in orphanages and public almshouses, it would be inconsistent with the primary purpose of that law to allow children over the age of 18 years, who are physically and mentally able to support themselves, to receive compensation and deplete the award to the detriment of younger children who, because of age, are unable to support themselves. Franklin v. Jackson, 231 Miss. 497, 95 So. 2d 794, 1957 Miss. LEXIS 534 (Miss. 1957).

The provision that children under 18 are presumed to be dependent creates a rule of substantive law to the effect that a child under 18 years of age is conclusively presumed to be dependent. Anderson-Tully Co. v. Wilson, 221 Miss. 656, 74 So. 2d 735, 1954 Miss. LEXIS 573 (Miss. 1954).

The time of employee’s death is the critical date in determining whether his daughter was dependent upon him under the Workmen’s Compensation Law. Accordingly, where a daughter of deceased employee was under 18 at the time of his death and married a month after his death and was supported by her husband afterwards, the compensation to the daughter would not be terminated as of the date of her marriage. Anderson-Tully Co. v. Wilson, 221 Miss. 656, 74 So. 2d 735, 1954 Miss. LEXIS 573 (Miss. 1954).

5. —Illegitimate children.

Death benefits payable to dependent children under the Workmen’s Compensation Law are not limited to benefits payable to the legitimate minor children of deceased. Stanley v. McLendon, 220 Miss. 192, 70 So. 2d 323, 1954 Miss. LEXIS 425 (Miss. 1954).

Where wife of deceased has entered into marriage with another long prior to death of deceased and lived with another man and was supported by him, each illegitimate child of deceased was entitled to compensation. Watkins v. Taylor, 216 Miss. 822, 63 So. 2d 225, 1953 Miss. LEXIS 701 (Miss. 1953).

6. —Parents.

Mother of decedent was not entitled to bring wrongful death action where decedent was killed when he was struck by car while working on highway project; contention that wrongful death statute controlled over Workers’ Compensation provision which provided that it would be exclusive remedy was rejected; argument that because mother was not dependent on decedent, exclusive remedy provision in death benefit cases did not apply was also rejected, because act intended to provide exclusive remedy growing out of employer-employee relationship, and different result would subject employer in many instances to double liability. Estate of Morris v. W. E. Blain & Sons, Inc., 511 So. 2d 945, 1987 Miss. LEXIS 2698 (Miss. 1987).

Mother, brothers, and sisters were entitled to Worker’s Compensation death benefits as dependents of decedent, although decedent, who was 12 years of age when he died, had only been working for one and one-half days prior to fatal injury, because this was not first job he had held, and both decedent and his brothers and sisters gave money earned to mother for support of family; condition of dependency is fact determination to be made as of time of worker’s death; and, term “dependent” must be liberally interpreted and includes those partially dependent as well as those wholly dependent. Sawyer v. Head, 510 So. 2d 472, 1987 Miss. LEXIS 2427 (Miss. 1987).

The Workman’s Compensation Commission’s finding that the decedent’s parents were partial dependents of the decedent at the time of his death was supported by substantial evidence, despite the fact that the parents enjoyed a substantial income from their employment. Union Camp, Inc. v. Dependents of McCall, 426 So. 2d 796, 1983 Miss. LEXIS 2431 (Miss. 1983).

Where the average weekly wage of the deceased employee was $35.45, and the father and two minor brothers of the deceased employee were totally dependent upon him, the aggregate amount of weekly payments to the three dependents would be $15.96 and, after the father’s death, the aggregate weekly payments to be made to the two minor brothers would be Truck Trailer Sales & Service Co. v. Moore, 244 Miss. 317, 141 So. 2d 541, 1962 Miss. LEXIS 451 (Miss. 1962).

Evidence that deceased employee had made cash contributions to his parents on numerous, although irregular occasions, had done the heavy manual work on their farm, and other than at times when he was working on construction projects, he had lived with his parents, except during a brief interval of an unsuccessful marriage, sustained the finding that the parents were partially dependent upon the employee, had reasonable grounds to anticipate continuing future support from him, and thus were dependents. Mid-State Paving Co. v. Farthing, 233 Miss. 333, 101 So. 2d 850, 1958 Miss. LEXIS 386 (Miss. 1958).

7. —Siblings.

Mother, brothers, and sisters were entitled to Worker’s Compensation death benefits as dependents of decedent, although decedent, who was 12 years of age when he died, had only been working for one and one-half days prior to fatal injury, because this was not first job he had held, and both decedent and his brothers and sisters gave money earned to mother for support of family; condition of dependency is fact determination to be made as of time of worker’s death; and, term “dependent” must be liberally interpreted and includes those partially dependent as well as those wholly dependent. Sawyer v. Head, 510 So. 2d 472, 1987 Miss. LEXIS 2427 (Miss. 1987).

Evidence was insufficient to support finding of dependency of sister of 12- year-old employee killed in course of employment, where at time of accident decedent had been living with father and stepmother while sister lived out of state with other relatives, though decedent gave money earned to his father and father sent money to relatives keeping sister, there was no evidence that decedent knew of disposition of his income, that decedent’s earnings were used for sister’s support, that sister had any reasonable expectation of receiving future money from decedent to be used for her support and maintenance and, under circumstances, expectancy of support by sister would be from her father, not her brother. Sawyer v. Head, 505 So. 2d 1199, 1987 Miss. LEXIS 2412 (Miss. 1987).

Where the average weekly wage of the deceased employee was $35.45 and the father and two minor brothers of the deceased employee were totally dependent upon him, the aggregate amount of weekly payments to the three dependents would be $15.96 and, after the father’s death, the aggregate weekly payments to be made to the two minor brothers would be Truck Trailer Sales & Service Co. v. Moore, 244 Miss. 317, 141 So. 2d 541, 1962 Miss. LEXIS 451 (Miss. 1962).

The commission’s determination as to dependency of a brother will be affirmed if supported by substantial evidence. Ross v. Ross, 240 Miss. 84, 126 So. 2d 512, 1961 Miss. LEXIS 434 (Miss. 1961).

A brother who, by reason of low intelligence and the loss of an arm, is incapable of holding a job and who received from the deceased employee regular monthly sums, without which he would have been destitute, may properly be found to have been entirely dependent upon him, though he earned a little money by sweeping a church and received occasional small gifts of money from another brother, who also paid a hospital bill. Ross v. Ross, 240 Miss. 84, 126 So. 2d 512, 1961 Miss. LEXIS 434 (Miss. 1961).

8. —Partial dependents.

The term “dependent” must be liberally interpreted, and includes those partially dependent as well as those wholly dependent, and one is dependent if he relies upon the employee, in whole or in part, for his support. Mid-State Paving Co. v. Farthing, 233 Miss. 333, 101 So. 2d 850, 1958 Miss. LEXIS 386 (Miss. 1958).

The legislature in drafting the Workmen’s Compensation Law was well aware of the various kinds of compensation statutes, yet it failed to provide for any method of computing a reduced percentage of benefits for partial dependents, and the supreme court will not assume that the legislature intended to do so. Bradshaw v. Rudder, 227 Miss. 143, 85 So. 2d 778, 1956 Miss. LEXIS 665 (Miss. 1956).

The 1950 amendment to Code 1942, § 6998-07, providing for a minimum weekly compensation of $10.00 “except in partial dependency cases,” permits the payment to a dependent under this section [Code 1942, § 6998-13] of an amount less than the minimum, (a) where his statutory compensation is less than that amount, and (b) where such dependent is partially and not wholly dependent on the deceased employee; if he is wholly dependent, then the $10.00 applies. Bradshaw v. Rudder, 227 Miss. 143, 85 So. 2d 778, 1956 Miss. LEXIS 665 (Miss. 1956).

The words in the latter part of this section [Code 1942, § 6998-13], that “all other dependents shall be considered on the basis of total or partial dependency as the facts may warrant,” was intended to mean that such dependents shall be considered for the purpose of determining whether they are dependent on the basis of total or partial dependency as the facts may warrant, and the court should not insert after the verb “considered” the phrase “for the purpose of determining the amount of the award.” and it was held that where surviving parents of deceased 18-year-old son were found to be partially dependent, they were entitled to 15% of his average weekly wage as provided by this section and not a percentage thereof estimated from the percentage of dependency. Bradshaw v. Rudder, 227 Miss. 143, 85 So. 2d 778, 1956 Miss. LEXIS 665 (Miss. 1956).

9. Effect of prior denial of compensation benefits.

An adverse judgment on a decedent’s prior claim for compensation, based upon an alleged heart attack arising out of his employment as a truck operator, was res judicata and a bar to a subsequent claim based upon the same episode of heart attack by the decedent’s widow for compensation for herself and her minor daughter as dependents of the decedent. Knox Glass Co. v. Dependents of Evans, 246 So. 2d 89, 1971 Miss. LEXIS 1389 (Miss. 1971).

An adverse decision on the merits of the claim of the employee while he was alive bars a dependency claim under the doctrine of res judicata, for the questions have already been fully litigated and all parties were involved, and necessarily so, in the manner in which the injury was received. Proctor v. Ingalls Shipbuilding Corp., 254 Miss. 907, 183 So. 2d 483, 1966 Miss. LEXIS 1586 (Miss. 1966).

10. Credit for other payments to deceased or dependents.

An employer who voluntarily procured life insurance on an employee was properly denied his request to have the proceeds of the life insurance credited as advance payment of compensation against workmen’s compensation benefits he was required to pay, where the employer had not procured workmen’s compensation insurance and did not qualify as a self-insurer. Hedgpeth v. Hair, 418 So. 2d 814, 1982 Miss. LEXIS 2121 (Miss. 1982).

11. Application of recovery from third party wrongdoer.

When a recovery is made by a compensation beneficiary from a third-party wrongdoer, the balance of the proceeds remaining after the payment of the collection costs shall be used to discharge all the liability of the employer or insurer, including that to accrue in the future as well as that already paid or accrued, and includes any liability for death benefits that might accrue under the case. Richardson v. United States Fidelity & Guaranty Co., 233 Miss. 375, 102 So. 2d 368, 1958 Miss. LEXIS 394 (Miss. 1958).

12. Review.

The time within which an award affirmed by the supreme court must be paid in order to avoid the statutory penalty runs from the time a suggestion of error was overruled, and not from the subsequent issue of the court’s mandate. Decker v. Bryan Bros. Packing Co., 249 Miss. 6, 162 So. 2d 648, 1964 Miss. LEXIS 369 (Miss. 1964).

Although the original award did not allow an immediate lump sum payment, nor reasonable funeral expenses, nor for compensation payments to the deceased prior to his death, where there had been no appeal by the claimants from the decision by the attorney-referee or the commission, their cross appeals could not be considered by the supreme court upon an appeal by the employer and his compensation carrier. Dixie Pine Products Co. v. Dependents of Bryant, 228 Miss. 595, 89 So. 2d 589, 1956 Miss. LEXIS 551 (Miss. 1956).

The judgment of the lower court will be construed as giving effect to the statute which provides that the total amount payable shall in no case exceed 662/3 per cent of such wages, subject to maximum limitations as to weekly benefits as set up in the Mississippi Federated Cooperatives v. Jefferson, 224 Miss. 150, 79 So. 2d 723, 1955 Miss. LEXIS 471 (Miss. 1955).

13. Denial inappropriate.

Trial court erred when it affirmed the workers’ compensation commission’s denial of workers’ compensation death benefits after an information systems manager was killed in car accident while returning to work from colleague’s house after the plant had been evacuated because, she was fulfilling her duties within the period of her employment and was furthering the business of her employer. At the accident scene, it was discovered that the decedent had been in possession of some computer backup tapes and a laptop computer, and previously her supervisor had instructed the decedent to obtain all of the vital information that she could, including the tapes and the laptop computer, in the event of a plant evacuation. Duke ex rel. Duke v. Parker Hannifin Corp., 925 So. 2d 893, 2005 Miss. App. LEXIS 907 (Miss. Ct. App. 2005).

14. Denial appropriate.

Workers’ Compensation Commission properly denied death and disability benefits to an employee’s mother because while a physical injury occurred when a filing cabinet fell on the employee, there was overwhelming evidence that her mental decompensation was from preexisting psychological issues-not the alleged filing-cabinet injury-and led to her increased dependence on a destructive relationship, substance abuse, and ultimate death from a drug overdose. Hodges v. Heritage Props. (In re Estate of Cleaveland), 150 So.3d 735, 2014 Miss. App. LEXIS 326 (Miss. Ct. App.), cert. denied, 150 So.3d 708, 2014 Miss. LEXIS 564 (Miss. 2014).

RESEARCH REFERENCES

Am. Jur.

82 Am. Jur. 2d, Workers’ Compensation §§ 163 et seq.

25 Am. Jur. Pl and Pr Forms (Rev), Workmen’s Compensation, Forms 1 et seq.

11 Am. Jur. Proof of Facts 2d 423, Dependency of Child Who Has Attained Majority–Workers’ Compensation.

CJS.

99 C.J.S., Workers’ Compensation §§ 245-247 et seq., 598, 601 et seq.

Law Reviews.

1987 Mississippi Supreme Court Review, Workers’ compensation. 57 Miss. L. J. 429, August, 1987.

Practice References.

Bender’s Labor and Employment Bulletin (Matthew Bender).

Labor and Employment Law (Matthew Bender).

Larson’s Workers’ Compensation Desk Edition (Matthew Bender).

Larson’s Workers’ Compensation Law (Matthew Bender).

Mississippi Workers’ Compensation Laws and Rules Annotated, 2010 Edition with CD-ROM (Michie).

§ 71-3-27. Aliens.

Compensation under this chapter to aliens not residents (or about to become nonresidents) of the United States or Canada shall be in the same amount as provided for residents, except that dependents in any foreign country shall be limited to surviving wife and child or children or, if there be no surviving wife or child or children, to surviving father or mother whom the employee has supported, either wholly or in part, for the period of one (1) year prior to the date of the injury, and except that the commission may, at its option or upon the application of the insurance carrier, commute all future installments of compensation to be paid to such aliens by payment of a lump sum equal to the present value of all future payments of compensation computed at four percent (4%) discount compounded annually.

HISTORY: Codes, 1942, §§ 6998-13, 6998-14; Laws, 1948, ch. 354, §§ 9, 9h; Laws, 1950, ch. 412, § 7; Laws, 1958, ch. 454, § 4; Laws, 1968, ch. 559, § 7; reenacted without change, Laws, 1982, ch. 473, § 14; reenacted without change, Laws, 1990, ch. 405, § 14, eff from and after July 1, 1990.

RESEARCH REFERENCES

ALR.

Application of workers’ compensation laws to illegal aliens. 121 A.L.R.5th 523.

Am. Jur.

82 Am. Jur. 2d, Workers’ Compensation § 185.

CJS.

99 C.J.S., Workers’ Compensation § 283.

§ 71-3-29. Compromise, commutation, and lump sum payments.

Rules of the commission shall govern compromise payments where the prescribed schedules are not applicable and which, in its discretion, may be made in cases where it is not possible to determine the exact extent of disability, as for example in certain injuries to the back or head. The commission shall also have full authority to adjudicate the disposition of death claims. Commutation and lump sum settlement payments shall be governed by rules of the commission, and shall not be made except when determined to be in the best interest of the injured worker or his dependents, the commission having final authority in such questions.

HISTORY: Codes, 1942, §§ 6998-13, 6998-15; Laws, 1948, ch. 354, §§ 9, 9i; Laws, 1950, ch. 412, § 7; Laws, 1958, ch. 454, § 4; Laws, 1968, ch. 559, § 7; reenacted without change, Laws, 1982, ch. 473, § 15; reenacted without change, Laws, 1990, ch. 405, § 15, eff from and after July 1, 1990.

Cross References —

Structured settlements, generally, see §§11-57-1 et seq.

Determination of wages, see §71-3-31.

JUDICIAL DECISIONS

1. In general.

In a workmen’s compensation case arising out of a compromise settlement for a lump-sum payment made by an injured worker, the trial court properly reinstated an order of the administrative judge to reopen the cause with further proceedings to determine benefits where the employee, who possessed a fourth-grade education and was unable to read or write except to sign his name, had never been informed of the full extent of his disability, had not been represented by counsel during the settlement negotiations, had not been told the full amount of disability benefits to which he was entitled, and, generally, had been taken unfair advantage of by the carrier. Bailey Lumber Co. v. Mason, 401 So. 2d 696, 1981 Miss. LEXIS 2012 (Miss. 1981).

Workmen’s compensation commission order approving settlement of disputed compensation claim between employee and employer-carrier pursuant to Code 1972, §71-3-29 and authorizing execution of any document required by employer-carrier “to evidence their release, acquittal and discharge herein,” did not impliedly sanction the release of the employee’s third-party rights, and the release so authorized could not validly effect any rights the employee might have against third parties. Hague v. Liberty Mut. Ins. Co., 504 F.2d 364, 1974 U.S. App. LEXIS 6014 (5th Cir. Miss. 1974).

Where a claim is doubtful, disputed, and not readily collectible, and the proposed amount of a compromise settlement is fair and reasonable, and it is for the best interest of the claimants that a settlement with commutation and a lump sum payment be accepted, such a compromise will be authorized by the court. Griffing v. Marquette Cement Mfg. Co., 253 Miss. 338, 175 So. 2d 180, 1965 Miss. LEXIS 991 (Miss. 1965).

A commuted lump-sum payment of voluntary compensation does not preclude reopening the case for a redetermination of the extent of disability. Armstrong Tire & Rubber Co. v. Franks, 242 Miss. 792, 137 So. 2d 141, 1962 Miss. LEXIS 594 (Miss. 1962).

A minor widow is not capable of contracting for a lump-sum settlement. Dapsco, Inc. v. Dependent of Upchurch, 243 Miss. 427, 138 So. 2d 287, 1962 Miss. LEXIS 359 (Miss. 1962).

Lump-sum settlement of compensation to widow set aside where widow had become ineligible to receive benefits by remarrying before payment, and had knowingly made a false statement as to necessity for lump-sum payment. Dapsco, Inc. v. Dependent of Upchurch, 243 Miss. 427, 138 So. 2d 287, 1962 Miss. LEXIS 359 (Miss. 1962).

The commission may properly refuse to set aside a compromise settlement of a claim known by claimant to be a doubtful one, one in which it was not possible to ascertain the extent of disability. Dixon v. Green, 240 Miss. 204, 127 So. 2d 662, 1961 Miss. LEXIS 450 (Miss. 1961).

RESEARCH REFERENCES

ALR.

Validity, construction, and effect of statutory exemptions of proceeds of workers’ compensation awards. 48 A.L.R.5th 473.

Am. Jur.

82 Am. Jur. 2d, Workmen’s Compensation § 613.

25 Am. Jur. Pl and Pr Forms (Rev), Workmen’s Compensation, Forms 1 et seq.

CJS.

99 C.J.S., Workers’ Compensation §§ 624 et seq.

Law Reviews.

1981 Mississippi Supreme Court Review: Administrative Law. 52 Miss. L. J. 377, June 1982.

§ 71-3-31. Determination of wages.

Except as otherwise specifically provided, the basis for compensation under this chapter shall be the average weekly wages earned by the employee at the time of the injury, such wages to be determined from the earnings of the injured employee in the employment in which he was working at the time of the injury during the period of fifty-two (52) weeks immediately preceding the date of the injury divided by fifty-two (52); but if the injured employee lost more than seven (7) days during such period, although not in the same week, then the earnings for the remainder of such fifty-two (52) weeks shall be divided by the number of weeks remaining after the time so lost has been deducted. When the employment prior to the injury extended over a period of less than fifty-two (52) weeks, the method of dividing the earnings during that period by the number of weeks and parts thereof during which the employee earned wages shall be followed, provided that results just and fair to both parties will thereby be obtained. Where, by reason of the shortness of time during which the employee has been in the employment of his employer, it is impracticable to compute the average weekly wages by the above method of computation, regard shall be had to the average weekly amount which, during the first fifty-two (52) weeks prior to the injury or death, was being earned by a person in the same grade, employed at the same or similar work in the community. Wherever allowances of any character are made to an employee in lieu of wages or specified as part of the wage contract, they shall be deemed a part of his earnings.

HISTORY: Codes, 1942, § 6998-16; Laws, 1948, ch. 354, § 10; reenacted without change, Laws, 1982, ch. 473, § 16; reenacted without change, Laws, 1990, ch. 405, § 16, eff from and after July 1, 1990.

Cross References —

Determination of wages for survivors insurance for state employees, see §25-11-5.

Determination of wages for unemployment compensation, see §71-5-11.

JUDICIAL DECISIONS

1. In general.

2. Employed 52 weeks prior to injury.

3. Employed less than 52 weeks prior to injury.

4. Employees in same grade.

1. In general.

Workers’ Compensation Commission erred in computing an employee’s disability benefits because such wages were statutorily required to be based on “actual earnings before injury with the earning capacity after injury,” the parties stipulated that the employee’s average weekly wage was $645.40, which included regular overtime, such that the employee was entitled to $191.33 per week for 450 weeks rather than the $132.40 arrived at by the Commission, which failed to use the employee’s overtime in calculating his pre-injury hourly wage. Nixon v. Howard Indus., 249 So.3d 1088, 2018 Miss. App. LEXIS 298 (Miss. Ct. App. 2018).

Workers’ Compensation Commission did not err in calculating a claimant’s average weekly wage because Miss. Code Ann. §71-3-31 did not literally apply given the claimant’s unique work schedule while employed in the oil field industry; the claimant worked in a two-week block of time, comprised of a seven-days-on, seven-days-off, twelve-hours-a-day work schedule. Mixon v. Greywolf Drilling Co., LP, 62 So.3d 414, 2010 Miss. App. LEXIS 671 (Miss. Ct. App. 2010).

Nothing prevented the inclusion of all wages from the same employer in determining average weekly wage for an injured employer, and whether the other position in which a claimant was not engaged at the moment of injury was one in which the claimant should be considered as being contemporaneously employed needs to be determined as a matter of fact; the combined total of the employee’s wages had to reflect the earnings from the same employer for the 52-week period prior to injury and were subject to Miss. Code Ann. §71-3-31. Piney Woods Country Life Sch. v. Young, 946 So. 2d 805, 2006 Miss. App. LEXIS 569 (Miss. Ct. App. 2006), cert. denied, 947 So. 2d 960, 2007 Miss. LEXIS 58 (Miss. 2007).

The claimant’s injury as a result of a 1981 accident was not to be compensated at his average weekly wage in 1981, the time of his accident, but at his average weekly wage in 1993, the date he was declared permanently disabled where (1) he underwent two spinal surgeries to correct damage done as a result of his accident in 1981, (2) he returned to work after the first surgery and continued to work up until 1993, a period of over 11 years, (3) between the 1981 accident and the ultimate end of his employment in 1993, he received promotions and salary increases for his service to his employer, and (4) during this time, his condition gradually and progressively deteriorated to the point that in 1993 he was declared permanently disabled and unable to continue working for his employer. J. H. Moon & Sons Inc. v. Johnson, 1999 Miss. App. LEXIS 12 (Miss. Ct. App. Jan. 26, 1999), aff'd, 753 So. 2d 445, 1999 Miss. LEXIS 383 (Miss. 1999).

Where claimant suffered a single injury in 1981 and the injury gradually worsened and progressed to a permanent injury which manifested itself as a total disability in July 1993, the rate of compensation should be based on Johnson’s salary and/or wages for July 1993. J. H. Moon & Sons, Inc. v. Johnson, 753 So. 2d 445, 1999 Miss. LEXIS 383 (Miss. 1999).

Worker who originally intends to return to work full time after birth of child but who only returns to work part time due to complications arising from birth should have worker’s compensation benefits computed on basis of pay as part-time employee. Wilson v. Service Broadcasters, Inc. (WDAM), 483 So. 2d 1339, 1986 Miss. LEXIS 2387 (Miss. 1986).

Where there was error in determining a worker’s average weekly wage, the claim would be remanded to correct the inherent error in the amount of disability compensation awarded. Singer Co. v. Smith, 362 So. 2d 590, 1978 Miss. LEXIS 2086 (Miss. 1978).

A claim for worker’s compensation was not barred by the statute of limitations where it was virtually impossible for the claimant to have known at the time of the apparently minor accident, then noncompensable, that it would develop into a compensable injury; being a latent injury case, the average weekly wage was properly determined from the date of the resultant disabling injury and not from the date of the accident. Pepsi Cola Bottling Co. v. Long, 362 So. 2d 182, 1978 Miss. LEXIS 2078 (Miss. 1978).

While the basis of the claimant’s weekly wage was not dogmatically stated, it was sufficient to enable the commission, in conjunction with the provisions of this section [Code 1942, § 6998-16], to justify the determination of a fair and just wage and award of benefits on that basis. White Top & Safeway Cab Co. v. Wright, 251 Miss. 830, 171 So. 2d 510, 1965 Miss. LEXIS 908 (Miss. 1965).

Where the finding of the workmen’s compensation commission was favorable to claimant as to his average weekly wage, and was not manifestly wrong under conflicting evidence, the finding was sustained. Prince v. Nicholson, 229 Miss. 718, 91 So. 2d 734, 1957 Miss. LEXIS 318 (Miss. 1957).

2. Employed 52 weeks prior to injury.

In determining the average weekly wage of an employee, who had been employed on an 8-hour, 5-day-week basis, was not paid when he did not work, and during the 52 weeks immediately prior to his death had lost 66 days, the proper procedure was to divide the 66 days lost by five, the work week, which would equal 13.2 weeks lost in the 52-week period, subtract 13.2 from 52, and divide the total earning for the period by 38.8. Dependents of Harris v. Suggs, 233 Miss. 533, 102 So. 2d 696, 1958 Miss. LEXIS 413 (Miss. 1958).

3. Employed less than 52 weeks prior to injury.

Measure of preinjury earnings of workman’s compensation claimant hired as temporary material handler who is injured after working only 4 days is wage rate for temporary handlers, not rate for permanent handlers where finding that, but for injury, claimant would have been promoted to permanent handler would be speculative. Hall of Mississippi, Inc. v. Green, 467 So. 2d 935, 1985 Miss. LEXIS 2031 (Miss. 1985).

For purposes of computing workmen’s compensation benefits for a volunteer fireman who had suffered a 25 per cent partial disability of his whole body as a result of an injury sustained in the course of fighting a fire, his average weekly wage would be determined by dividing his total wage of $35.00 by nine, the number of weeks or parts thereof that he had worked, and not by combining his wages as a volunteer fireman with those of his regular employment nor by reference to the average weekly wages for a full-time fireman in the surrounding area. Sullivan v. Okolona, 370 So. 2d 921, 1979 Miss. LEXIS 2014 (Miss. 1979).

Where a claimant began to work 4 weeks preceding the date of injury and had worked 3 days the 1st week, 2 days during the 2nd week and 3 days during each of the next 2 weeks, and her total earnings amounted to $51.28, she should have been awarded compensation in amount of $10 per week rather than an award based on an average weekly wage of $25. Pepper v. Barrett, 225 Miss. 30, 82 So. 2d 580, 1955 Miss. LEXIS 555 (Miss. 1955).

4. Employees in same grade.

Where a claimant began work in the middle of a work week, and received his injury on the second day of the next work week, so as to be prevented from working 40 hours during the second work week, it was proper to determine claimant’s compensation upon the basis of the average weekly wage of other employees in the same grade, and doing the same work, as claimant. B. C. Rogers & Sons v. Reeves, 232 Miss. 309, 98 So. 2d 875, 1957 Miss. LEXIS 477 (Miss. 1957).

RESEARCH REFERENCES

Am. Jur.

82 Am. Jur. 2d, Workers’ Compensation §§ 349 et seq.

CJS.

99 C.J.S., Workmen’s Compensation §§ 521-524, 542, 543 et seq.

Law Reviews.

1979 Mississippi Supreme Court Review: Administrative Law. 50 Miss. L. J. 699.

§ 71-3-33. Guardian for minor or incompetent.

The commission may require the appointment by a court of competent jurisdiction, for any person who is mentally incompetent or a minor, of a guardian or other representative to receive compensation payable to such person under this chapter and to exercise the powers granted to or to perform the duties required of such person under this chapter.

HISTORY: Codes, 1942, § 6998-17; Laws, 1948, ch. 354, § 11; reenacted without change, Laws, 1982, ch. 473, § 17; reenacted without change, Laws, 1990, ch. 405, § 17, eff from and after July 1, 1990.

Cross References —

Appointment of guardian by the court, see §§93-13-15 et seq.

JUDICIAL DECISIONS

1. In general.

Unless disability of minority has been removed by court decree, a guardian should be appointed to receive compensation for a minor widow. Dapsco, Inc. v. Dependent of Upchurch, 243 Miss. 427, 138 So. 2d 287, 1962 Miss. LEXIS 359 (Miss. 1962).

RESEARCH REFERENCES

Am. Jur.

82 Am. Jur. 2d, Workers’ Compensation § 498.

CJS.

100 C.J.S., Workmen’s Compensation §§ 814-817.

§ 71-3-35. Limitation.

  1. No claim for compensation shall be maintained unless, within thirty (30) days after the occurrence of the injury, actual notice was received by the employer or by an officer, manager, or designated representative of an employer. If no representative has been designated by posters placed in one or more conspicuous places, then notice received by any superior shall be sufficient. Absence of notice shall not bar recovery if it is found that the employer had knowledge of the injury and was not prejudiced by the employee’s failure to give notice. Regardless of whether notice was received, if no payment of compensation (other than medical treatment or burial expense) is made and no application for benefits filed with the commission within two (2) years from the date of the injury or death, the right to compensation therefor shall be barred.
  2. If a person who is entitled to compensation under this chapter is mentally incompetent or a minor, the limitation for filing application for benefits shall not be applicable so long as such person has no guardian or other authorized representative, but shall be applicable in the case of a person who is mentally incompetent or a minor from the date of appointment of such guardian or other representative, or in the case of a minor, if no guardian is appointed before he becomes of age, from the date he becomes of age.
  3. Where recovery is denied to any person, in a suit brought at law or admiralty to recover damages in respect of injury or death, on the ground that such person was an employee and that the defendant was an employer within the meaning of this chapter and that such employer had secured compensation to such employee under this chapter, the limitation upon filing application for benefits shall begin to run only from the date of termination of such suit.

HISTORY: Codes, 1942, § 6998-18; Laws, 1948, ch. 354, § 12; reenacted without change, Laws, 1982, ch. 473, § 18; reenacted without change, Laws, 1990, ch. 405, § 18, eff from and after July 1, 1990.

Cross References —

Effect of infancy or incompetency upon limitations of actions generally, see §15-1-59.

Provision of medical services and supplies, see §71-3-15.

Provision that the first installment of compensation shall become due on the fourteenth day after the employer has notice, under this section, of the injury or death, see §71-3-37.

JUDICIAL DECISIONS

1. In general.

2. When period commences.

3. Effect of knowledge of superiors and co-workers.

4. Statutory bar, generally.

5. —Medical benefits.

6. —Injury in another state.

7. —Latent injury.

8. —Death.

9. Pleading and practice.

10. Estoppel.

11. Tolling.

1. In general.

Employer’s receipt-of-payment acknowledgment form, which had to be submitted daily by a worker and included a disclaimer that the worker had not sustained any work-related injuries on that day, did not violate public policy requiring a claim of a work-related injury be submitted within thirty days after the injury. Furthermore, the employer presented evidence that payment was not contingent upon the employee signing the receipt-of-payment acknowledgment form. Barnes v. LFI Fort Pierce, Inc., 238 So.3d 7, 2018 Miss. App. LEXIS 52 (Miss. Ct. App. 2018).

Continued payment of an injured employee’s salary constituted payments made in lieu of workers’ compensation benefits, and these payments thus tolled the statute of limitations for workers’ compensation claims, because the employee could not have continued to “earn” his wages while he was absent from work for more than sixteen weeks. Parchman v. Amwood Prods., 988 So. 2d 346, 2008 Miss. LEXIS 303 (Miss. 2008).

Where the claimant received benefits for about three weeks after her accident, the statute of limitations applied, rather than that in subsection (1) of this section. Taylor v. Salvation Army-Pascagoula Corps, 744 So. 2d 825, 1999 Miss. App. LEXIS 260 (Miss. Ct. App. 1999).

Under Mississippi law, carrier which provided workers’ compensation insurance both to claimant’s employer and claimant’s alleged borrowing employer had no legitimate or arguable reason to initially deny benefits, and thus was liable for bad faith denial, notwithstanding its arguments that it had independent legitimate reasons, including dispute over whether each insured was claimant’s employer, not to pay under either policy; such reasons were irrelevant given that statutory requirements were met such that carrier had obligation to promptly pay benefits regardless of which of its insureds was claimant’s employer. Rogers v. Hartford Accident & Indem. Co., 133 F.3d 309, 1998 U.S. App. LEXIS 442 (5th Cir. Miss. 1998).

Claim decided adversely to asbestosis claimant under the Longshoremen’s and Harbor Workers’ Compensation Act was res judicata on claim under Mississippi Workers’ Compensation, as every factual issue under the Mississippi Act, including the issue of notice to the employer, was litigated and decided adversely to claimant in the Longshoremen’s Act proceedings. Ingalls Shipbuilding Div., Litton Systems, Inc. v. Parson, 495 So. 2d 461, 1986 Miss. LEXIS 2663 (Miss. 1986).

Fact that claimant for disability benefits does not report injury until 4 days after it occurs neither proves that disability must have been caused by something other than injury in course of employment nor bars claim as untimely, notwithstanding employer’s policy requiring that workers report injuries immediately. South Cent. Bell Tel. Co. v. Aden, 474 So. 2d 584, 1985 Miss. LEXIS 2197 (Miss. 1985).

In workman’s compensation action the two-year statute of limitations §71-3-35(1) had no application to the action, where compensation benefits were paid to the claimant. City of Kosciusko v. Graham, 419 So. 2d 1005, 1982 Miss. LEXIS 2137 (Miss. 1982).

Unless prejudice results, the failure to give actual notice within 30 days after the occurrence of the accident does not bar a claim. Davis v. Clark-Burt Roofing Co., 238 Miss. 464, 119 So. 2d 926, 1960 Miss. LEXIS 429 (Miss. 1960).

The law looks with disfavor on strained and technical interpretations of statutes regarding notice of injury, and even in cases where no timely notice was given, the tendency is to temper the literal harshness of statutory bars by the recognition of various excuses and permitting waivers and exceptions. Port Gibson Veneer & Box Co. v. Brown, 226 Miss. 127, 83 So. 2d 757, 1955 Miss. LEXIS 616 (Miss. 1955).

2. When period commences.

Employer’s continued payment of an injured employee’s wages although he performed little or no work constituted payment of wages in lieu of workers’ compensation benefits, thereby waiving the requirement of a formal claim and tolling the statute of limitations, Miss. Code Ann. §71-3-35(1). Ladner v. Zachry Constr., 130 So.3d 1085, 2014 Miss. LEXIS 66 (Miss. 2014).

Workers’ compensation claim was time-barred because there was substantial evidence to support the Mississippi Workers’ Compensation Commission’s finding that the statute of limitations began to run when an orthopedic surgeon, on referral from the claimants’ primary-care physician, diagnosed the claimant with carpal tunnel syndrome as the claimant’s injury then became reasonably apparent and was more clearly found to be work related. Brown v. Ill. Tool Works, Inc., 135 So.3d 160, 2013 Miss. App. LEXIS 486 (Miss. Ct. App. 2013), cert. denied, 136 So.3d 437, 2014 Miss. LEXIS 188 (Miss. 2014).

Employee’s workers’ compensation claim was barred because she was aware of the existence and appreciated the extent and nature of her injury as a result of the 1999 fall immediately post-injury; even if she did not fully recognize the nature, seriousness, and probable compensable character of her injury in 1999, she did so at the latest on May 18, 2004, when a doctor diagnosed her with a brain stem contusion. Therefore, her petition to controvert filed on August 2, 2006, was time-barred by the two-year statute of limitations. Murray v. Ingalls Shipbuilding/NGSS, 35 So.3d 561, 2010 Miss. App. LEXIS 249 (Miss. Ct. App. 2010).

Trial court properly upheld the denial of a claim for workers’ compensation benefits because the employee failed to file a workers’ compensation claim within two years of being diagnosed with carpal tunnel syndrome; the employee’s claim was thus barred by the two-year statute of limitations, Miss. Code Ann. §71-3-35(1) Shipp v. Thomas & Betts & Ace Am. Ins. Co., 13 So.3d 332, 2009 Miss. App. LEXIS 43 (Miss. Ct. App.), cert. denied, 14 So.3d 731, 2009 Miss. LEXIS 359 (Miss. 2009).

Employee first sought treatment for allergies she alleged were related to her workplace two years after she testified that her respiratory problems had started; the appellate court noted that it was obvious that the employee suffered for years, and she was hospitalized eight times in three years, but the claim was not filed until more than three years after she knew her illnesses were related to the work place, so it was time-barred. Cooper v. Miss. Dep't of Rehab. Servs., 937 So. 2d 51, 2006 Miss. App. LEXIS 643 (Miss. Ct. App. 2006).

Two-year statute of limitations began to run in October 1995, when employee retired due to his gradually worsening hearing loss, rather than in 1998, when a specialist confirmed that his hearing had deteriorated even further. The employee had reasonably discovered the nature, seriousness, and probable compensable nature of his injury at the time of his retirement, and the record was also clear that he became aware of the cause of his hearing loss as early as 1993; his injury was not a “latent injury, and his claim filed in November 1999, was barred by the two-year limitation period set forth in Miss. Code Ann. §71-3-35. Boykin v. Sanderson Farms, Inc., 910 So. 2d 52, 2005 Miss. App. LEXIS 51 (Miss. Ct. App. 2005).

Because there was no finding as to when an employee knew or should have known that the employee’s carpal tunnel syndrome was a compensable injury, it was unclear whether the claim was barred under Miss. Code Ann. §71-3-35; the matter was remanded for further findings of fact on this issue. Howard Indus. v. Robinson, 846 So. 2d 245, 2002 Miss. App. LEXIS 574 (Miss. Ct. App. 2002).

Worker’s claim for workers’ compensation benefits was barred by the two-year statute of limitation contained in Miss. Code Ann. §71-3-35 where the worker did not lose any work as a result of the injury, did not receive either disability income benefits or nonburial death benefits, and did not file her claim for benefits within two years of the injury. Jordan v. Pace Head Start, 852 So. 2d 28, 2002 Miss. App. LEXIS 256 (Miss. Ct. App. 2002).

Substantial evidence supported the commission’s determination that the claimant invoked her right to disability benefits within two years after she discovered or reasonably should have discovered the work related nature of her carpal tunnel syndrome. Lucas v. Angelica Uniform Group, 733 So. 2d 285, 1998 Miss. App. LEXIS 810 (Miss. Ct. App. 1998).

The Workers’ Compensation statute of limitations begins to run when the claimant is or reasonably should be aware of having sustained a compensable injury, but the statute is deemed not to have begun to run if the claimant’s reasonably diligent efforts to obtain treatment yield no medical confirmation of a compensable injury. Thus, the statute of limitations could not be invoked by an employer, even though the claimant did not file a motion to controvert until over 2 years after the accident, where the claimant clearly knew that he had been injured in an accident, but he did not discover the compensable nature of his injuries until over a year after the accident because his physicians remained unaware of the compensable nature of his injuries until that time. Georgia Pacific Corp. v. Taplin, 586 So. 2d 823, 1991 Miss. LEXIS 664 (Miss. 1991).

The two-year statute of limitations on an employee’s claim for workmen’s compensation benefits began to run when he left his employment on a four-month sick leave in 1973, where he knew or should have known the nature, seriousness and disabling character of hypertension, from which he had suffered for several years, and where his testimony established that he had actual knowledge of his disability and that it had been caused by a work-connected aggravation of hypertension. Quaker Oats Co. v. Miller, 370 So. 2d 1363, 1979 Miss. LEXIS 2049 (Miss. 1979).

Mental competency vel non determines the running or tolling or the worker’s compensation statute. Shippers Express v. Chapman, 364 So. 2d 1097, 1978 Miss. LEXIS 2235 (Miss. 1978).

A defendant who has successfully defended an action for personal injuries resulting from a beating the plaintiff received from defendant’s foreman, on the ground that the relationship of employer-employee existed between defendant and plaintiff, cannot thereafter challenge the applicability of the Workmen’s Compensation Law to the plaintiff’s claim; provided claim for benefits is timely filed within the time extended by Code 1942, § 6998-18(c) beginning with the date of the order dismissing plaintiff’s appeal. Seal v. Industrial Electric, Inc., 395 F.2d 214, 1968 U.S. App. LEXIS 6987 (5th Cir. Miss. 1968).

Notice is not required until there is a disability where the injury is progressive and cannot with reasonable certainty be recognized at first as compensable. Pope Co. v. Wells, 230 Miss. 199, 92 So. 2d 370, 1957 Miss. LEXIS 359 (Miss. 1957).

Where a claimant on October 15, 1954, who, while in the course and scope of his employment, became exposed to cement dust, which aggravated an existing chronic eczema, continued his employment until March 14, 1955, when he was found to be totally disabled, and then immediately gave notice to his employer, the employer was not prejudiced by the failure of the claimant to give an earlier notice. Pope Co. v. Wells, 230 Miss. 199, 92 So. 2d 370, 1957 Miss. LEXIS 359 (Miss. 1957).

3. Effect of knowledge of superiors and co-workers.

Under Mississippi law, when employer has knowledge of workers’ compensation claimant’s injury, formal notice to employer of occurrence of injury is not needed to trigger carrier’s obligation to provide benefits, and this knowledge is imputed to carrier without any formal notification to carrier. Rogers v. Hartford Accident & Indem. Co., 133 F.3d 309, 1998 U.S. App. LEXIS 442 (5th Cir. Miss. 1998).

Where the employer had knowledge of an employee’s bulge or herniated disc, although not necessarily knowledge that the injury was work connected, and the employer did not show that it was prejudiced by the employee’s failure to notify the employer, the employer had adequate notice. Central Electric & Machinery Co. v. Shelton, 220 So. 2d 320, 1969 Miss. LEXIS 1454 (Miss. 1969).

Where employers’ foreman knew of the claimant’s injury on the day that it occurred, there was no evidence that the employer was prejudiced by the late filing of the claim, and the commission found that neither the employee nor his wife knew that his injury was compensable until they consulted an attorney, there was no error in awarding compensation. Walker Mfg. Co. v. Pickens, 206 So. 2d 639, 1968 Miss. LEXIS 1583 (Miss. 1968).

In view of the fact that the claim was filed with the commission within about two months after the date of injury and the evidence supported a finding that, although the claimant did not inform his foreman as to the circumstances attendant upon it, he had given notice to the foreman within several days after the occurrence of his injury, the commission was warranted in concluding that no prejudice had resulted and that an award should be made. Davis v. Clark-Burt Roofing Co., 238 Miss. 464, 119 So. 2d 926, 1960 Miss. LEXIS 429 (Miss. 1960).

Knowledge of accident by superintendent of part of mill in which injured employee worked is sufficient notice to the employer, where no representative has been designated by the employer to whom notice of injury should be given. Teague v. Graning Hardwood Mfg. Co., 238 Miss. 48, 117 So. 2d 342, 1960 Miss. LEXIS 375 (Miss. 1960).

Failure to notify employer of injury does not preclude compensation where employer knew of accident a few minutes after it happened and conducted an investigation. Bush v. Dependents of Byrd, 234 Miss. 782, 108 So. 2d 211, 1959 Miss. LEXIS 555 (Miss. 1959).

Where a record showed that the claimant had notified one of his superiors of his injury, the employer’s contention that the claimant had failed to give notice of his injury as required by this section [Code 1942, § 6998-18] was rejected. Houston Contracting Co. v. Reed, 231 Miss. 213, 95 So. 2d 231, 1957 Miss. LEXIS 507 (Miss. 1957).

Where the claimant, who on September 28th, 1953, sustained injury arising out of the course of her employment, had notified the floor supervisor of her injury, but received no disability payments, the claimant being ignorant of the fact she was entitled thereto, a claim for compensation filed on September 21, 1955, was timely. Pascagoula Crab Co. v. Holbrooks, 230 Miss. 833, 94 So. 2d 233, 1957 Miss. LEXIS 429 (Miss. 1957).

Where it was undisputed that within a few days after both heart attacks suffered by the claimant he was visited in the hospital by his coworkers, including his foreman, and further that he was treated in the first aid station maintained by the employer for the benefit of injured employees and was transported by the employer’s ambulance to the hospital and from the hospital home, the employer had knowledge of the claimant’s injury and of the fact that it was suffered in the course of his employment and related to his work, and was not prejudiced by the claimant’s failure to give notice. Ingalls Shipbuilding Corp. v. Dickerson, 230 Miss. 110, 92 So. 2d 354, 1957 Miss. LEXIS 350 (Miss. 1957).

The fact that there was an existence of a close personal and family relationship between the injured employee and his foreman was not in itself a sufficient circumstance to render nugatory notice received by such foreman. Port Gibson Veneer & Box Co. v. Brown, 226 Miss. 127, 83 So. 2d 757, 1955 Miss. LEXIS 616 (Miss. 1955).

Under this section [Code 1942, § 6998-18] notice to any superior of employee is sufficient notice. Port Gibson Veneer & Box Co. v. Brown, 226 Miss. 127, 83 So. 2d 757, 1955 Miss. LEXIS 616 (Miss. 1955).

Where an employee suffered a heart attack while at work and his foreman drove him to a hospital, and there was no showing whatsoever that the employer was prejudiced by failure of a claimant to give notice in the manner contemplated by the statute, the employer cannot complain that he had received no actual notice of the claim nor could the employer argue that the claim was barred by this section [Code 1942, § 6998-18]. Pearl River Tung Co. v. Estate of John, 225 Miss. 303, 83 So. 2d 95, 1955 Miss. LEXIS 584 (Miss. 1955).

4. Statutory bar, generally.

Because the claimants did not apply for workers’ compensation benefits within two years of their injuries, their claims were time-barred by the statute of limitations, in that the statute of limitations was not tolled and the employer was not estopped from asserting the statute of limitations as a defense. McInturff v. Yellow Ry. Corp., — So.3d —, 2019 Miss. App. LEXIS 169 (Miss. Ct. App. Apr. 23, 2019).

Regardless of the date chosen, the claimant failed to submit her carpal-tunnel and ulnar-neuropathy claims within the two-year statute of limitations set forth in Miss. Code Ann. §71-3-35, barring these claims and any claims arising directly out of them, including herregional-pain-syndrome claim. Further, the claimant was aware of work-related depression over two-years before she filed her claim for depression. Johnson v. City of Jackson, 211 So.3d 767, 2016 Miss. App. LEXIS 447 (Miss. Ct. App. 2016).

Substantial evidence supported the Commission’s finding that an employee’s claim was barred by the two-year statute of limitations contained in the Worker’s Compensation Act, Miss. Code Ann. §71-3-35(1) and that the employee’s salary failed to constitute wages in lieu of compensation; because nothing in the record showed that the employee’s physicians restricted him from working, and the employer insisted that it did not pay the employee his wages in recognition of a compensable disability, but rather in return for work he performed. Ladner v. Zachry Constr. & Zurich Am. Ins. Co., 130 So.3d 1121, 2013 Miss. App. LEXIS 257 (Miss. Ct. App. 2013), rev'd, 130 So.3d 1085, 2014 Miss. LEXIS 66 (Miss. 2014).

Firefighter’s claim for workers’ compensation benefits was not barred by the two-year statute of limitations period because he was not reasonably aware of the compensable nature of his latent asbestos-related respiratory disease at any time prior to the year he in which he filed his claim. City of Jackson v. Sandifer, 125 So.3d 681, 2013 Miss. App. LEXIS 703 (Miss. Ct. App. 2013).

Two-year statute of limitations will not begin to run until by reasonable care and diligence it is discoverable and apparent that a compensable injury has been sustained; the statute is not deemed to have begun running if the claimant’s reasonably diligent efforts to obtain treatment yield no medical confirmation of compensable injury. Mississippi law does not penalize workers when they, with their physicians’ assistance, cannot confirm that their injuries are compensable. Miss. State Univ. v. Panuska, 20 So.3d 717, 2009 Miss. App. LEXIS 188 (Miss. Ct. App. 2009).

Claimant’s application for workers’ compensation benefits was properly dismissed as untimely under Miss. Code Ann. §71-3-35(1) because there was no evidence that the employer paid the claimant wages in lieu of benefits to toll the two-year limitations period and there was no evidence that the employer thought that the claimant had a work-related injury. Bynum v. Anderson Tully Lumber Co., 996 So. 2d 814, 2008 Miss. App. LEXIS 702 (Miss. Ct. App. 2008).

Claimant’s petition to controvert, which was filed in June 2005 for an August 1994 work-related injury to his hips, was time-barred under the two-year statute of limitations, Miss. Code Ann. §71-3-35(1), because the injury was not latent and because the claimant reasonably should have known that he had a compensable injury from the diagnosis of avascular necrosis in 1996. James v. Bowater Newsprint & Travelers Ins. Co., 983 So. 2d 355, 2008 Miss. App. LEXIS 326 (Miss. Ct. App. 2008).

Where an employer voluntarily paid for an employee’s work-related medical expenses for two years, the two-year statute of limitations barred the employee’s petition to controvert because the employee failed to show that the statute of limitations was tolled based on arguments regarding the employer’s voluntary payment of medical benefits, wages in lieu of compensation, a latent or progressive injury, and equitable estoppel. Baker v. IGA Super Valu Food Store, 990 So. 2d 254, 2008 Miss. App. LEXIS 246 (Miss. Ct. App. 2008).

Dismissal of the employee’s petition to controvert was proper under Miss. Code Ann. §71-3-35 because the claim was barred by the statute of limitations since the employee received no benefits of any kind within the two-year period following his injury; he chose to use his wife’s medical insurance to pay for his treatment. Parchman v. Amwood Prods., Inc., 988 So. 2d 380, 2007 Miss. App. LEXIS 31 (Miss. Ct. App. 2007), rev'd, 988 So. 2d 346, 2008 Miss. LEXIS 303 (Miss. 2008).

Record supported the Mississippi Workers’ Compensation Commission’s finding that an employee had filed her claim for workers’ compensation benefits more than two years after she became aware that she was allergic to tobacco smoke and had experienced adverse effects from exposure to tobacco smoke in the workplace; the appellate court reversed the second trial court’s order overturning the Commission’s decision denying the employee’s claim for benefits. Univ. of S. Miss. v. Gillis, 872 So. 2d 60, 2003 Miss. App. LEXIS 1193 (Miss. Ct. App. 2003), cert. denied, 873 So. 2d 1032, 2004 Miss. LEXIS 479 (Miss. 2004).

Differences in the numbers on the two B-31 Forms were mere corrections of the amount actually paid, and no additional benefits were furnished to the claimant after his settlement; the filing of a B-31 Form containing errors as to the amount of the benefits paid was sufficient to begin the running of the statute of limitations and the filing of a corrected form did not interrupt the limitations period, even if it was without notice to the claimant. McCrimon v. Red Arrow Car Wash, 859 So. 2d 395, 2003 Miss. App. LEXIS 908 (Miss. Ct. App. 2003).

The defendant city would not be equitably estopped from asserting the two-year time bar on the basis that city officials allegedly represented to the claimant that the city would file his claim with the Workers’ Compensation Commission on his behalf; reliance on such a statement to sink into inactivity for a period of two years could not be deemed reasonable or justifiable. McCrary v. City of Biloxi, 1999 Miss. App. LEXIS 155 (Miss. Ct. App. Apr. 6, 1999), rev'd, 757 So. 2d 978, 2000 Miss. LEXIS 29 (Miss. 2000).

Employer was estopped from claiming that two-year statute of limitations on workers’ compensation claim was not tolled, where employer failed to timely file statutorily-required notice of fatal termination of injury. Holbrook by & Through Holbrook v. Albright Mobile Homes, 703 So. 2d 842, 1997 Miss. LEXIS 636 (Miss. 1997).

Issues of material fact existed as to whether employer had workers’ compensation coverage, whether employer misled employee’s survivors into believing no coverage existed, and whether survivors relied on any misleading statements, precluding summary judgment as to whether statute of limitations on workers’ compensation claim should be tolled based on alleged misrepresentations by employer. Holbrook by & Through Holbrook v. Albright Mobile Homes, 703 So. 2d 842, 1997 Miss. LEXIS 636 (Miss. 1997).

Even if an employer had misrepresented to a claimant that he had no insurance, the employer and its insurance carrier would not be estopped from pleading the 2-year statute of limitations where the evidence established that the claimant was aware of the falsity of that representation and did not rely on it, and was aware of her rights before the expiration of the limitation period. Layton v. State, 246 So. 2d 534, 1971 Miss. LEXIS 1409 (Miss. 1971).

The fact that a claimant did not process his claim, if he had one, does not suspend the running of the two-year statute of limitations. Taylor v. Crosby Forest Products Co., 198 So. 2d 809, 1967 Miss. LEXIS 1271 (Miss. 1967).

Where there was positive evidence from the only heart specialist who had treated claimant over a 4-year period that he might have been disabled without any work activity at all, and the only episode in the record which could indicate that claimant sustained a work-connected injury occurred more than 2 years prior to the date on which he filed a claim, compensation was properly denied. Knox Glass, Inc. v. Evans, 197 So. 2d 784, 1967 Miss. LEXIS 1534 (Miss. 1967).

Where there is substantial evidence to support the finding that the claimant’s injury occurred more than two years prior to the date on which claim for compensation was filed, and the evidence that the employer knew of the claimant’s condition is vague and inconclusive, the claim is properly barred by limitations. Childs v. Mississippi Industries for Blind, 184 So. 2d 872, 1966 Miss. LEXIS 1494 (Miss. 1966), overruled, Tabor Motor Co. v. Garrard, 233 So. 2d 811, 1970 Miss. LEXIS 1682 (Miss. 1970).

Where claimant, injured on Jan. 15, 1960, signed final settlement report filed on Feb. 18, 1960, and filed claim for same injury on Mar. 20, 1961, and subsequently on Oct. 31, 1962 amended his claim to include injuries occurring on May 1, 1960, question of whether amendment related back to date of filing original claim so as to take it out of 1-year and 2-year limitations periods depended upon whether later injury was a new injury or further disability for previous injury, and this was a question of fact to be determined by commission. Yazoo Mfg. Co. v. Schaffer, 254 Miss. 35, 179 So. 2d 784, 1965 Miss. LEXIS 921 (Miss. 1965).

Claimant was not entitled to compensation where his claim therefor was filed more than two years from the date of injury, and medical testimony supported the finding of the workmen’s compensation commission that the employee’s work activities had not contributed to his condition. Modern Laundry v. Harrell, 246 Miss. 463, 150 So. 2d 409, 1963 Miss. LEXIS 465 (Miss. 1963), overruled, Tabor Motor Co. v. Garrard, 233 So. 2d 811, 1970 Miss. LEXIS 1682 (Miss. 1970).

The right to compensation was barred where the claimant failed to file for benefits until more than two years from the date of injury. Modern Laundry v. Harrell, 246 Miss. 463, 150 So. 2d 409, 1963 Miss. LEXIS 465 (Miss. 1963), overruled, Tabor Motor Co. v. Garrard, 233 So. 2d 811, 1970 Miss. LEXIS 1682 (Miss. 1970).

It is immaterial that a claim for compensation was not filed until after settlement of a suit against a third party tortfeasor, if the application was made within two years of injury. Bush v. Dependents of Byrd, 234 Miss. 782, 108 So. 2d 211, 1959 Miss. LEXIS 555 (Miss. 1959).

5. —Medical benefits.

The two-year statute of limitations in Miss. Code Ann. §71-3-35(1) expressly excepts medical expenses; it is possible, under the statute, for an employer to dispute compensability yet provide medical treatment without waiving the statute of limitations. Lindsay Logging, Inc. v. Watson, 44 So.3d 388, 2010 Miss. App. LEXIS 120 (Miss. Ct. App.), cert. denied, 49 So.3d 106, 2010 Miss. LEXIS 495 (Miss. 2010).

Miss. Code Ann. §71-3-35(1) expressly excludes medical benefits from payments of compensation that could toll the statute. Baker v. IGA Super Valu Food Store, 990 So. 2d 254, 2008 Miss. App. LEXIS 246 (Miss. Ct. App. 2008).

In light of the language “other than medical treatment” in §71-3-35(1), medical payments are within the meaning of “payment or compensation” unless specifically excepted therefrom. Barr v. Conoco Chemicals, Inc., 412 So. 2d 1193, 1982 Miss. LEXIS 1926 (Miss. 1982).

A claim for workman’s compensation medical benefits was barred by this section where the claim was filed more than 2 years after the injury and where the claimant did not receive compensation other than medical treatment within the 2 year period. Speed Mechanical, Inc. v. Taylor, 342 So. 2d 317, 1977 Miss. LEXIS 2310 (Miss. 1977).

In a workmen’s compensation case, the furnishing of medical services and supplies is the payment of compensation for the purpose of tolling any statute of limitations which might apply. Cox v. International Harvester Co., 221 So. 2d 924, 1969 Miss. LEXIS 1509 (Miss. 1969).

Payment of medical expenses is payment of compensation tolling the statute of limitations. Graeber Bros., Inc. v. Taylor, 237 Miss. 691, 115 So. 2d 735, 1960 Miss. LEXIS 502 (Miss. 1960).

The Workmen’s Compensation Law evidences the legislative intent to put the same period of limitations on the payment of medical benefits as has been put on the payment of compensation. Trehern v. Grafe Auto Co., 232 Miss. 854, 100 So. 2d 786, 1958 Miss. LEXIS 339 (Miss. 1958).

Where a claimant had been paid some medical compensation benefits, and, together with the carrier, had executed a form under which the claim was closed, a claim for additional medical benefits filed nearly four years later was barred by the statute of limitations. Trehern v. Grafe Auto Co., 232 Miss. 854, 100 So. 2d 786, 1958 Miss. LEXIS 339 (Miss. 1958).

6. —Injury in another state.

The limitation period for claiming compensation under Mississippi law is tolled while the employee, injured while temporarily working in another state for his Mississippi employer, was receiving compensation under the law of that state. Martin v. L. & A. Contracting Co., 249 Miss. 441, 162 So. 2d 870, 1964 Miss. LEXIS 405 (Miss. 1964).

An employer is estopped from relying on the limitation period for the filing of a claim by his voluntary payment of compensation under the law of the state in which injury occurred, in which benefits were substantially less. Martin v. L. & A. Contracting Co., 249 Miss. 441, 162 So. 2d 870, 1964 Miss. LEXIS 405 (Miss. 1964).

7. —Latent injury.

Motion to dismiss an employee’s petition to controvert with the Mississippi Workers’ Compensation Commission was properly denied because the statute of limitations, Miss. Code Ann. §71-3-35(1), for the employee’s labyrinthine concussion began to run at the time it was diagnosed on September 6, 2000; therefore, the employee acted within the two-year limit by filing the petition to controvert on February 7, 2002. Miss. State Univ. v. Panuska, 20 So.3d 717, 2009 Miss. App. LEXIS 188 (Miss. Ct. App. 2009).

A claim for worker’s compensation was not barred by the statute of limitations where it was virtually impossible for the claimant to have known at the time of the apparently minor accident, then noncompensable, that it would develop into a compensable injury; being a latent injury case, the average weekly wage was properly determined from the date of the resultant disabling injury and not from the date of the accident. Pepsi Cola Bottling Co. v. Long, 362 So. 2d 182, 1978 Miss. LEXIS 2078 (Miss. 1978).

Where claimant knew or had reason to believe that she had sustained a spider bite, but there was nothing in the record to indicate that she, as a reasonable person, should have recognized the nature, seriousness, and probable compensable character of the injury, the statute of limitations did not begin to run until by reasonable care and diligence it was discoverable and apparent that a compensable injury had been sustained. Struthers Wells--Gulfport, Inc. v. Bradford, 304 So. 2d 645, 1974 Miss. LEXIS 1465 (Miss. 1974).

Where latent injuries are involved, the time for filing a compensation claim under the two-year statute commences to run when it becomes reasonably discoverable that the claimant has sustained a compensable injury and disability, or, in other words, the claim period runs from the time a compensable injury becomes reasonably apparent. Tabor Motor Co. v. Garrard, 233 So. 2d 811, 1970 Miss. LEXIS 1682 (Miss. 1970).

Where a garage foreman was burned by a supposed hot welding spark falling into his ear, and none of the several doctors who treated him discovered that the source of his dizziness and other physical problems which followed the injury was a piece of slag which had become embedded in the middle ear, a workmen’s compensation claim filed within two years after the relationship between the disability and the apparently minor accident became known was timely, even though the claim was filed more than two years after the accident. Tabor Motor Co. v. Garrard, 233 So. 2d 811, 1970 Miss. LEXIS 1682 (Miss. 1970).

That claimant did not definitely ascertain the exact result of his injury until after the expiration of two years does not prevent the running of the two-year statute of limitations. Thyer Mfg. Co. v. Keys, 235 Miss. 229, 108 So. 2d 876, 1959 Miss. LEXIS 420 (Miss. 1959), overruled, Tabor Motor Co. v. Garrard, 233 So. 2d 811, 1970 Miss. LEXIS 1682 (Miss. 1970).

8. —Death.

The administrator of a deceased workman’s estate was not an “other representative” within the meaning of the statute providing that limitations would begin to run against minor claimants at the time they acquired a guardian or other authorized representative, since the claims of death beneficiaries are not assets of the estate of a deceased employee, and the guardian or other representative contemplated by the statute must be a fiduciary who not only has the power but the duty to prosecute the minor’s claim for compensation benefits. United States Fidelity & Guaranty Co. v. Fortner, 234 So. 2d 636, 1970 Miss. LEXIS 1419 (Miss. 1970).

The fact that an employee filed no claim for injury within the two-year limitation period established by this section [Code 1942, § 6998-18] will not operate to bar a claim filed by his dependents within two years after the date of his death. Ingalls Shipbuilding Corp. v. Dependents of Harris, 187 So. 2d 886, 1966 Miss. LEXIS 1371 (Miss. 1966).

In the absence of a hearing and order which would have the effect of deciding an employee’s claim on its merits during his lifetime, thereby constituting res judicata as to all parties in interest, the two-year statute against the claim of his dependents begins to run from the date of his death, and not from the date of the injury. Ingalls Shipbuilding Corp. v. Dependents of Harris, 187 So. 2d 886, 1966 Miss. LEXIS 1371 (Miss. 1966).

9. Pleading and practice.

Award of disability benefits to the employee was improper because the employee’s claim was barred by the two-year statute of limitations set forth in Miss. Code Ann. §71-3-35(1); it was possible for the employer to dispute compensability yet provide medical treatment without waiving the statute of limitations. Even if it could have been inferred that the employer’s intent behind payments to the employee was in lieu of compensation, those four days did not satisfy the five-day waiting period that was required in Miss. Code Ann. §71-3-11. Lindsay Logging, Inc. v. Watson, 44 So.3d 388, 2010 Miss. App. LEXIS 120 (Miss. Ct. App.), cert. denied, 49 So.3d 106, 2010 Miss. LEXIS 495 (Miss. 2010).

Award of permanent total disability benefits to the employee for 450 weeks was proper in part because, even if the employee failed to notify her employer directly within 30 days as required pursuant to Miss. Code Ann. §71-3-35(1), she was not barred from recovery since the employer had sufficient notice of the injury and was not prejudiced. Adolphe Lafont USA, Inc. v. Ayers, 958 So. 2d 833, 2007 Miss. App. LEXIS 417 (Miss. Ct. App. 2007).

Trial court did not err in finding the reinstatement of an employee’s workers’ compensation claim to be time barred under the one-year time period in Miss. Code Ann. §71-3-53 and the two-year period in Miss. Code Ann. §71-3-35, where even using the employee’s calculation, the two-year deadline would have expired before she filed her motion for reinstatement. Edwards v. Wal-Mart, 930 So. 2d 1273, 2006 Miss. App. LEXIS 271 (Miss. Ct. App. 2006).

Failure to plead the bar of limitations before the attorney-referee does not preclude the employer from doing so in the first pleading required to be addressed to the commission. Thyer Mfg. Co. v. Keys, 235 Miss. 229, 108 So. 2d 876, 1959 Miss. LEXIS 420 (Miss. 1959), overruled, Tabor Motor Co. v. Garrard, 233 So. 2d 811, 1970 Miss. LEXIS 1682 (Miss. 1970).

10. Estoppel.

Because the claimants did not apply for workers’ compensation benefits within two years of their injuries, their claims were time-barred by the statute of limitations. Moreover, the employer was not estopped from asserting the statute of limitations as a defense in that the employer did not misrepresent the claimants’ rights to benefits, or fail to timely file notice of the claimants’ injury under the reporting statute. McInturff v. Yellow Ry. Corp., — So.3d —, 2019 Miss. App. LEXIS 169 (Miss. Ct. App. Apr. 23, 2019).

Employer and an insurance carrier did not waive the statute of limitations because of their failure immediately to pursue a hearing on the defense and their substantial participation in discovery and litigation for three years, nor did the doctrine of equitable estoppel apply to the case because the claimant was never misled by the employer about workers’ compensation benefits Brown v. Ill. Tool Works, Inc., 135 So.3d 160, 2013 Miss. App. LEXIS 486 (Miss. Ct. App. 2013), cert. denied, 136 So.3d 437, 2014 Miss. LEXIS 188 (Miss. 2014).

Employee was estopped from asserting the statute of limitations, Miss. Code Ann. §71-3-35(1), as a defense because the employer failed to comply with the notice requirements of Miss. Code Ann. §71-3-67(1), and the employee testified that he did not file a claim for workers’ compensation because he was under the impression that the employer had filed it for him. Prentice v. Schindler Elevator Co., 13 So.3d 1258, 2009 Miss. LEXIS 288 (Miss. 2009).

The employer was estopped from asserting the statute of limitation as a bar to a claim for benefits where the administrative judge on contested evidence found an affirmative misrepresentation by the employer intended to mislead the claimant into not filing for benefits Brock v. Hankins Lumber Co., 786 So. 2d 1064, 2000 Miss. App. LEXIS 575 (Miss. Ct. App. 2000).

Although the claimant admitted that he did not file his petition to controvert within the two year time limitation set forth in subsection (1), the employer city was estopped from asserting the statute of limitations where the city failed to file the statutorily required notice of controversy, told the claimant that it would file his claim, and engaged in settlement negotiations for a significant period of time. McCrary v. City of Biloxi, 757 So. 2d 978, 2000 Miss. LEXIS 29 (Miss. 2000).

11. Tolling.

Because the claimants did not apply for workers’ compensation benefits within two years of their injuries, their claims were time-barred by the statute of limitations. Moreover, the statute of limitations was not tolled because the sick and vacation pay which the claimants received were not wages in lieu of compensation. McInturff v. Yellow Ry. Corp., — So.3d —, 2019 Miss. App. LEXIS 169 (Miss. Ct. App. Apr. 23, 2019).

Claimant’s untimely filed workers’ compensation claim was not saved by her employer’s filing of a Form B-52 Notice of Controversion; a Form B-52 was not an application for benefits, and therefore, contrary to the claimant’s assertion, it did not toll the statute of limitations. McKinney v. Univ. of Mississippi Med. Ctr., 110 So.3d 332, 2013 Miss. App. LEXIS 80 (Miss. Ct. App. 2013).

RESEARCH REFERENCES

ALR.

When limitation period begins to run against cause of action or claim for contracting of disease. 11 A.L.R.2d 277.

When time period commences as to claim under workers’ compensation or occupational diseases act for death of worker due to contraction of disease. 100 A.L.R.5th 567.

When Limitations Period Begins to Run as to Claim for Disability Benefits for Contracting of Disease under Workers’ Compensation or Occupational Diseases Act. 86 A.L.R.5th 295.

Am. Jur.

82 Am. Jur. 2d, Workmen’s Compensation §§ 449 et seq., 484.

25 Am. Jur. Pl and Pr Forms (Rev), Workmen’s Compensation, Forms 1 et seq.

CJS.

100 C.J.S., Workmen’s Compensation §§ 824-827 et seq., 837 et seq.

Law Reviews.

1979 Mississippi Supreme Court Review: Administrative Law. 50 Miss. L. J. 699.

Bradley, Time limitations which bar claims in Mississippi workers’ compensation: a re-examination. 62 Miss. L. J. 511.

Higginbotham, Reopening and due process in claims review. 62 Miss. L. J. 609.

§ 71-3-37. Payment of compensation.

  1. Compensation under this chapter shall be paid periodically, promptly, in the usual manner, and directly to the person entitled thereto, without an award except where liability to pay compensation is controverted by the employer.
  2. The first installment of compensation shall become due on the fourteenth (14th) day after the employer has notice, as provided in Section 71-3-35, of the injury or death, on which date all compensation then due shall be paid. Thereafter, compensation shall be paid in installments, every fourteen (14) days, except where the commission determines that payment in installments should be made at some other period.
  3. Upon making the first payment and upon suspension of payment for any cause, the employer shall immediately notify the commission in accordance with a form prescribed by the commission that payment of compensation has begun or has been suspended, as the case may be. No suspension in payments of compensation shall be made for refusing to submit to medical or surgical treatment until the reasonableness of such request or refusal has been determined by the commission, and a written order suspending payment issued.
  4. If the employer controverts the right to compensation he shall file with the commission, on or before the fourteenth (14th) day after he has knowledge of the alleged injury or death, a notice in accordance with a form prescribed by the commission, stating that the right to compensation is controverted, the name of the claimant, the name of the employer, the date of the alleged injury or death, and the grounds upon which the right to compensation is controverted. Failure to file this notice shall not prevent the employer raising any defense where claim is subsequently filed by the employee, nor shall the filing of the notice preclude the employer raising any additional defense.
  5. If any installment of compensation payable without an award is not paid within fourteen (14) days after it becomes due, as provided in subsection (2) of this section, there shall be added to such unpaid installment an amount equal to ten percent (10%) thereof, which shall be paid at the same time as, but in addition to, such installment unless notice is filed under subsection (4) of this section, or unless such nonpayment is excused by the commission after a showing by the employer that owing to conditions over which he had no control such installment could not be paid within the period prescribed for the payment.
  6. If any installment payable under the terms of an award is not paid within fourteen (14) days after it becomes due, there shall be added to such unpaid installment an amount equal to twenty percent (20%) thereof, which shall be paid at the same time as, but in addition to, such compensation unless review of the compensation order making such award is had.
  7. Within thirty (30) days after the final payment of compensation has been made, the employer shall send to the commission a notice in accordance with a form prescribed by the commission, stating that such final payment has been made, the total amount of compensation paid, the name of the employee and of any other person to whom compensation has been paid, the date of the injury or death, and the date to which compensation has been paid. If the employer fails so to notify the commission within such time, the commission may assess against such employer a civil penalty in an amount not exceeding One Hundred Dollars ($100.00). No case shall be closed nor any penalty be assessed without notice to all parties interested and without giving to all such parties an opportunity to be heard.
  8. The commission (a) may upon its own initiative at any time in a case in which payments are being made without an award, and (b) shall in any case where right to compensation is controverted or where payments of compensation have been stopped or suspended, upon receipt of notice from any person entitled to compensation or from the employer that the right to compensation is controverted or that payments of compensation have been stopped or suspended, make such investigations, cause such medical examinations to be made, hold such hearings, and take such further action as it considers will properly protect the rights of all parties.
  9. Whenever the commission deems it advisable, it may require any self-insurer to make a deposit with the State Treasurer to secure prompt and convenient payment of such compensation; and payments therefrom upon any awards shall be made upon order of the commission.
  10. Whenever the commission determines that it is for the best interests of a person entitled to compensation, the liability of the employer for compensation, or any part thereof as determined by the commission, may be discharged by the payment of a lump sum equal to the present value of future compensation payments commuted, computed at four percent (4%) true discount compounded annually. The probability of the death of the injured employee or other person entitled to compensation shall be determined in accordance with validated actuarial tables or factors as the commission finds equitable and consistent with the purposes of the Workers’ Compensation Law, and the probability of the remarriage of the surviving spouse or other person entitled to compensation may be determined in accordance with rules adopted by the commission which shall apply validated actuarial tables or factors as the commission finds equitable and consistent with the purposes of the Workers’ Compensation Law. The probability of the happening of any other contingency affecting the amount or duration of the compensation shall be disregarded. The commission shall be the sole judge as to whether or not a lump-sum payment shall be to the best interest of the injured worker or his dependents.
  11. If the employer has made advance payments of compensation, he shall be entitled to be reimbursed out of any unpaid installment or installments of compensation due.
  12. An injured employee or, in case of death, his dependents or personal representative shall give receipts for payment of compensation to the employer paying the same; and whenever required, such employer shall produce the same for inspection by the commission.
  13. Whenever a dispute arises between two (2) or more parties as to which party is liable for the payment of workers’ compensation benefits to an injured employee and there is no genuine issue of material fact as to the employee’s employment, his average weekly wage, the occurrence of an injury, the extent of the injury, and the fact that the injury arose out of and in the course of the employment, the commission may require the disputing parties involved to pay benefits immediately to the employee and to share equally in the payment of those benefits until it is determined which party is solely liable, at which time the liable party must reimburse all other parties for the benefits they have paid to the employee with interest at the legal rate.

HISTORY: Codes, 1942, § 6998-19; Laws, 1948, ch. 354, § 13; Laws, 1950, ch. 412, § 8; reenacted without change, Laws, 1982, ch. 473, § 19; Laws, 1987, ch. 361, § 4; reenacted without change, Laws, 1990, ch. 405, § 19; Laws, 1992, ch. 577, § 4; Laws, 2007, ch. 349, § 1, eff from and after passage (approved Mar. 15, 2007.).

Amendment Notes —

The 2007 amendment substituted “validated actuarial tables or factors as the commission finds equitable and consistent with the purposes of the Workers’ Compensation Law” for “the American Experience Table of Mortality” in the second sentence in (10).

Cross References —

Structured settlements, generally, see §§11-57-1 et seq.

Establishment of a special worker’s compensation account for payment of compensation, see §71-3-38.

JUDICIAL DECISIONS

1. In general.

2. Employee’s refusal to submit to medical or surgical treatment.

3. Penalties and interest, generally.

4. —Interest.

5. —Penalty without award.

6. —Penalty under award.

7. —Penalty for suspension of payment.

8. —Upon appeal.

9. Notice as to closing of case.

10. Lump sum payments.

1. In general.

Where an employee asserted an action against a worker’s compensation insurer because of the insurer’s intentional bad-faith refusal to pay worker’s compensation when due, Mississippi law applied because, inter alia, an insurer’s intentional bad-faith refusal to pay worker’s compensation timely is an independent tort committed by the insurer outside of the scope of the worker’s employment and it is legally distinct from and independent of any claims arising under the Mississippi Workers’ Compensation Act, and Mississippi had the most significant relationship to the intentional tort suit. Williams v. Liberty Mut. Ins. Co., 741 F.3d 617, 2014 U.S. App. LEXIS 1726 (5th Cir. Miss. 2014).

Employer was a contractor, not a subcontractor, of the three timber owners, as neither of the three companies had already contracted for the performance of the work done by the employer; neither company was the employee’s statutory employer under Miss. Code Ann. §71-3-7 and had no statutory responsibility to insure the employee; assuming the Mississippi Workers’ Compensation Commission (Commission) was empowered under Miss. Code Ann. §71-3-37(13) to determine whether another company was contractually bound, the Commission was entitled to accept the testimony that the company never agreed to provide workers’ compensation coverage for the employer, but instead, required the employer to have its own workers’ compensation insurance. Miss. Loggers Self Insured Fund, Inc. v. Andy Kaiser Logging, 992 So. 2d 649, 2008 Miss. App. LEXIS 286 (Miss. Ct. App.), cert. denied, 997 So. 2d 924, 2008 Miss. LEXIS 537 (Miss. 2008).

In a case for contribution, a fire department correctly argued that the case to apportion the responsibility for workers’ compensation benefits should have been brought, if at all, before the Mississippi Workers’ Compensation Commission pursuant to Miss. Code Ann. §71-3-37(13). Travelers Prop. & Cas. Co. v. City of Greenwood Fire Dep't, 441 F. Supp. 2d 776, 2006 U.S. Dist. LEXIS 53914 (N.D. Miss. 2006).

Employee’s workers’ compensation claim for injuries in 1992 and 1995 was barred as the employee had filed a B-31 form shortly after each injury that allowed the employer to close the claim one year after the form had been filed. Hancock v. Miss. Forestry Comm'n, 878 So. 2d 1058, 2004 Miss. App. LEXIS 694 (Miss. Ct. App. 2004).

Differences in the numbers on the two B-31s Forms were mere corrections of the amount actually paid, and that no additional benefits were furnished to the claimant after his settlement; the filing of a B-31 Form containing errors as to the amount of the benefits paid was sufficient to begin the running of the statute of limitations and the filing of a corrected form did not interrupt the limitations period, even if it was without notice to the claimant. McCrimon v. Red Arrow Car Wash, 859 So. 2d 395, 2003 Miss. App. LEXIS 908 (Miss. Ct. App. 2003).

Under Mississippi law, the duty of workers’ compensation carrier to pay benefits is owed by carrier to injured claimant. Rogers v. Hartford Accident & Indem. Co., 133 F.3d 309, 1998 U.S. App. LEXIS 442 (5th Cir. Miss. 1998).

Under Mississippi law, when workers’ compensation carrier knows of insured’s employee’s injury, and insured does not controvert the injury, carrier has duty to begin paying benefits directly to injured claimant. Rogers v. Hartford Accident & Indem. Co., 133 F.3d 309, 1998 U.S. App. LEXIS 442 (5th Cir. Miss. 1998).

The proper credit due an employer under §71-3-37(11) for wages paid to its employee was the amount of the weekly compensation rate for the number of weeks that the employee continued to work after his injury rather than the total earnings of the employee for the weeks worked. Sturgis v. International Paper Co., 525 So. 2d 813, 1988 Miss. LEXIS 256 (Miss. 1988).

Where there is a previous injury or disability, permanent partial disability benefits must be apportioned from the date of the claimant’s maximum medical recovery. Central Electric & Machinery Co. v. Shelton, 220 So. 2d 320, 1969 Miss. LEXIS 1454 (Miss. 1969).

The commission has full power and authority to determine all questions relating to claims for compensation, including the authority to make such investigations as it deems necessary; it has specific authority to order medical examinations; and comprehensive judicial review of the commission’s action is provided for. Everitt v. Lovitt, 192 So. 2d 422, 1966 Miss. LEXIS 1257 (Miss. 1966).

The actuarial possibility of a woman’s remarriage may be taken into account in determining the value of an executory interest taking effect in case of her remarriage. Hemphill v. Mississippi State Highway Com., 245 Miss. 33, 145 So. 2d 455, 1962 Miss. LEXIS 529 (Miss. 1962).

The allowance and payment of a lump sum does not discharge the continuing obligation to pay medical expenses, nor is such obligation to be considered in fixing such sum. J. H. Moon & Sons v. Hood, 244 Miss. 564, 144 So. 2d 782, 1962 Miss. LEXIS 477 (Miss. 1962).

An instalment of workmen’s compensation which was due, but unpaid, at the time of the death of the beneficiary constitutes assets of his estate. Truck Trailer Sales & Service Co. v. Moore, 244 Miss. 317, 141 So. 2d 541, 1962 Miss. LEXIS 451 (Miss. 1962).

A claim for workmen’s compensation, listed in bankruptcy proceedings as a debt of the employer, may be barred by his discharge, although the claim has not been adjudicated by the commission. Crum v. Dependents of Reed, 241 Miss. 111, 129 So. 2d 375, 1961 Miss. LEXIS 322 (Miss. 1961).

The controversion of a physician’s report by a claimant, upon the ground that he was entitled to compensation for a longer period, did not operate as a controversion for the employer. White v. R. C. Owen Co., 232 Miss. 268, 98 So. 2d 650, 1957 Miss. LEXIS 468 (Miss. 1957).

An employer’s purchase of a $5,000 policy on the life of an employee did not release him from liability to the widow and dependents of the employee for benefits they were entitled to under the Workmen’s Compensation Law following the death of the employee in the course of employment. Riddell v. Estate of Cagle, 227 Miss. 305, 85 So. 2d 926, 1956 Miss. LEXIS 689 (Miss. 1956).

Where an award to the dependent mother of the deceased employee was ordered by the commission in instalments, from which she did not appeal and there was nothing in the commission record to show error in the commission not computing the award for lump sum payment, it was error in the circuit court to hear evidence dehors and to order an award to the mother in lump sum. Stephens v. Moore, 214 Miss. 760, 59 So. 2d 346, 1952 Miss. LEXIS 519 (Miss.), modified, 215 Miss. 3, 60 So. 2d 391, 1952 Miss. LEXIS 530 (Miss. 1952).

This section [Code 1942, § 6998-19] has reference to advance payments of compensation made by the employer to render temporary assistance to an employee or his dependent pending the termination of the claim for compensation, for which advance payments the employer would be entitled to be entirely reimbursed by the employee, since there is no reason why deductions from the payment when allowed shall be borne equally by the attorney and the client, the attorney receiving no benefit from such advance payments. American Sur. Co. v. Boykin, 212 Miss. 310, 54 So. 2d 398, 1951 Miss. LEXIS 453 (Miss. 1951).

Subsection c of § 26, ch. 354, Laws of 1948, as amended by Laws 1950, ch. 412, (Code 1942, § 6998-32), providing that where an award of compensation becomes final and an attorney fee is outstanding, a partial lump sum settlement sufficient to cover the attorney fee approved therein by the commission shall be made immediately from payments to become due, and the deductions allowed by law shall be borne equally by the attorney and client, has no reference to subsection (k) of Code 1942, § 6998-19. American Sur. Co. v. Boykin, 212 Miss. 310, 54 So. 2d 398, 1951 Miss. LEXIS 453 (Miss. 1951).

In computing compensation benefits to a widow, the probability of remarriage before the expiration of the 450 weeks during which the widow is entitled to compensation must be taken into account. United States Fidelity & Guaranty Co. v. Smith, 211 Miss. 573, 52 So. 2d 351, 1951 Miss. LEXIS 389 (Miss. 1951).

Where a man and woman lived together for three years and a child was born, but they did not hold themselves out as husband and wife, and both later separated and each of them contracted a ceremonial marriage, this was insufficient evidence to substantiate a common law marriage and the man’s ceremonial marriage was valid, and the widow was entitled to compensation upon the death of her husband. United States Fidelity & Guaranty Co. v. Smith, 211 Miss. 573, 52 So. 2d 351, 1951 Miss. LEXIS 389 (Miss. 1951).

2. Employee’s refusal to submit to medical or surgical treatment.

A claimant who, having requested and received payment of a lump settlement under subsection (j) of this section [Code 1942, § 6998-19], calculated upon the basis of permanent and total disability resulting as a consequence of an injury involving herniated intervertebral discs, and having, throughout the years which had elapsed since the injury, repeatedly and steadfastly refused to undergo a surgical procedure known as a laminectomy which would, in medical opinion, substantially reduce her disability below the total disability upon the basis of which she had received payment, and which in all probability would enable her to return to work, was not thereafter estopped to demand additional medical payments from the employer-carrier for the surgery she had previously declined, in the absence of a showing of fraud. Lawrin Co. v. Frazier, 213 So. 2d 548, 1968 Miss. LEXIS 1291 (Miss. 1968).

The commission’s authority to order a claimant to submit to a medical examination by a physician of its choice is clear. Everitt v. Lovitt, 192 So. 2d 422, 1966 Miss. LEXIS 1257 (Miss. 1966).

While an injured workman will be denied compensation for incapacity which may be removed or modified by an operation of a simple character, not involving serious suffering or danger, where the operation is of a serious character, involves serious suffering or danger, or is doubtful of success, an injured employee’s refusal to submit to such an operation is not unreasonable, and the right to compensation is not precluded by such refusal. Walker v. International Paper Co., 230 Miss. 95, 92 So. 2d 445, 1957 Miss. LEXIS 349 (Miss. 1957).

The burden of proving that an operation tendered to an insured workman is simple, safe, and will probably effect a cure or substantial improvement for the employee was upon the employer. Walker v. International Paper Co., 230 Miss. 95, 92 So. 2d 445, 1957 Miss. LEXIS 349 (Miss. 1957).

Whether an injured employee’s refusal to submit to proper medical treatment is unreasonable is ordinarily a question of fact for the determination of the workmen’s compensation commission. Walker v. International Paper Co., 230 Miss. 95, 92 So. 2d 445, 1957 Miss. LEXIS 349 (Miss. 1957).

Since the workmen’s compensation commission’s order, holding that a claimant’s refusal to submit to surgery for a herniated disc was not unreasonable, was supported by substantial evidence, the commission’s order awarding claimant compensation was reinstated and affirmed. Walker v. International Paper Co., 230 Miss. 95, 92 So. 2d 445, 1957 Miss. LEXIS 349 (Miss. 1957).

3. Penalties and interest, generally.

It was not necessary to assess a 10 percent penalty against an employer pursuant to Miss. Code Ann. §71-3-37(5) because there were no unpaid workers’ compensation benefits prior to an administrative law judge’s award. Price v. Omnova Solutions, Inc., 17 So.3d 104, 2009 Miss. App. LEXIS 86 (Miss. Ct. App.), cert. denied, 17 So.3d 99, 2009 Miss. LEXIS 425 (Miss. 2009).

Where an administrative law judge for the Mississippi workers’ compensation commission determined that a former employee was entitled to temporary total disability benefits for 64.75 weeks for a hip injury that remained due and owing as of a certain date, and to permanent partial disability benefits for 64.75 weeks beginning on a certain date for injury to the employee’s hip, the court remanded the matter to the commission to determine when the employee became entitled to such payments and when each was made and, based on that, to determine whether the employee was entitled to penalties and interest for late payments pursuant to Miss. Code Ann. §71-3-37(5). Smith v. Rizzo Farms, Inc., 870 So. 2d 1231, 2003 Miss. App. LEXIS 985 (Miss. Ct. App. 2003), cert. denied, 870 So. 2d 666, 2004 Miss. LEXIS 430 (Miss. 2004).

Employer of injured employee could avoid statutory penalties because it began payments to the employee for salary continuation beginning on the date of injury. Kemper Nat'l Ins. Co. v. Coleman, 812 So. 2d 1119, 2002 Miss. App. LEXIS 49 (Miss. Ct. App. 2002).

Rule requiring liberal construction of Workers’ Compensation Act generally does not apply to provisions for imposing penalties, and such provisions are to be strictly construed; presumptions are against one claiming statutory penalty and all questions of doubt are resolved in favor of the one against whom penalty is sought to be imposed. Mississippi Transp. Comm'n v. Dewease, 691 So. 2d 1007, 1997 Miss. LEXIS 142 (Miss. 1997).

Workers’ compensation claimant was not entitled to interest and penalties for past nursing services provided by his wife, where employer provided claimant with myriad services which contributed greatly to comfort and convenience of both claimant and his wife. Mississippi Transp. Comm'n v. Dewease, 691 So. 2d 1007, 1997 Miss. LEXIS 142 (Miss. 1997).

An injured employee’s failure to request compensation did not preclude his employer’s liability for the mandatory penalty for failure to pay compensation under §71-3-37(5) where the employer had notice of the employee’s injury and failed to file a notice of intention to controvert or show that the installment could not have been paid within the period prescribed for the payment because of conditions over which the employer had no control; by not voluntarily paying compensation, the employer assumed the risk of error despite the fact that it had no knowledge of the employee’s status after he was terminated. Smith v. Jackson Constr. Co., 607 So. 2d 1119, 1992 Miss. LEXIS 487 (Miss. 1992).

Both the 10 percent penalty imposed for failure to pay an installment of compensation payable without an award within 14 days after it becomes due, and the 20 percent penalty for failure to pay an installment payable under the terms of an award within 14 days after it becomes due, could be imposed upon the same installments of compensation, so that when an employer failed to pay a judgment within 14 days after the award became final, the 20 percent penalty applied to the judgment, which consisted of vested installments together with interest and the 10 percent penalty, as well as to installments due after the award. Delchamps, Inc. v. Baygents, 578 So. 2d 620, 1991 Miss. LEXIS 189 (Miss. 1991).

The Workers’ Compensation Commission erred in assessing statutory penalties against unpaid medical expenses. International Paper Co. v. Kelley, 562 So. 2d 1298, 1990 Miss. LEXIS 274 (Miss. 1990).

The 10 percent statutory penalty was waived where dependents of deceased workman failed to request imposition thereof to the administrative judge or the full commission. M & J Oil Co. v. Dependents of Wilson, 498 So. 2d 344, 1986 Miss. LEXIS 2773 (Miss. 1986).

Employer is not subject to penalty for weeks in which employer pays or causes to be paid to claimant amount under company benefit plan which is in excess of amount otherwise payable as worker’s compensation; employer is liable for failure to pay compensation after period of compensation under company benefit plan has ended. South Cent. Bell Tel. Co. v. Aden, 474 So. 2d 584, 1985 Miss. LEXIS 2197 (Miss. 1985).

There are only 3 circumstances under which employer may of right claim relief from burdens of penalty assessed by Commission in accordance with §71-3-37: (1) that employer has paid compensation installments within 14 days of due date; (2) in alternative, that employer has filed notice to controvert within 14 days of day notice of injury is received; or (3) that nonpayment is result of conditions over which employer has no control. South Cent. Bell Tel. Co. v. Aden, 474 So. 2d 584, 1985 Miss. LEXIS 2197 (Miss. 1985).

Penalty provisions of Workers’ Compensation Act (§71-3-37), designed to provide measure of compensation where claims are not promptly paid due to negligence of carrier, are inadequate to deter intentional wrongdoing by carrier; injured worker may bring common law tort action against carrier predicated upon carrier’s intentional refusal to pay workers’ compensation medical and weekly compensation benefits notwithstanding admitted residual permanent disability. Southern Farm Bureau Casualty Ins. Co. v. Holland, 469 So. 2d 55, 1984 Miss. LEXIS 2054 (Miss. 1984).

An employee was not entitled to a penalty award for the period from his initial hospitalization to the filing of his claim more than eight months later; however, a penalty award would be assessed against the employer and its carrier from the date the employee had filed a motion to controvert where the employer had not responded to the claim for more than three months after it had been filed. Sperry-Vickers, Inc. v. Honea, 394 So. 2d 1380, 1981 Miss. LEXIS 1968 (Miss. 1981).

Where the record disclosed a contract for attorney’s fees of one-third, and also revealed that the employer and the workmen’s compensation insurance carrier did not file notice to controvert the claim within the time allowed by Code 1942, § 6998-19 a judgment on the claim would be modified to allow the attorney’s fee, statutory interest, and the statutory penalty, to be fixed in the amount found to be due by the commission. Tiller v. Southern U. S. F., Inc., 246 So. 2d 530, 1971 Miss. LEXIS 1405 (Miss. 1971).

The imposition of the penalty provided by this section [Code 1942, § 6998-19] is mandatory where the facts justify its imposition. New & Hughes Drilling Co. v. Smith, 219 So. 2d 657, 1969 Miss. LEXIS 1422 (Miss. 1969).

The failure of a claimant to timely petition the enforcement of the penalty provided by this section [Code 1942, § 6998-19] constitutes a waiver of his right to do so. New & Hughes Drilling Co. v. Smith, 219 So. 2d 657, 1969 Miss. LEXIS 1422 (Miss. 1969).

The penalty should not be exacted from one who, having voluntarily paid compensation in another state and obtained a settlement agreement, has resisted a claim made under the Mississippi statute. Harrison Co. v. Norton, 244 Miss. 752, 146 So. 2d 327, 1962 Miss. LEXIS 504 (Miss. 1962).

This penalty is for nonpayment of weekly installments of compensation, and not of medical expenses. J. H. Moon & Sons v. Hood, 244 Miss. 564, 144 So. 2d 782, 1962 Miss. LEXIS 477 (Miss. 1962).

Motion to dismiss and for statutory damages, penalties and interest would be denied where the appeal was timely taken. Dapsco, Inc. v. Dependent of Upchurch, 243 Miss. 427, 138 So. 2d 287, 1962 Miss. LEXIS 359 (Miss. 1962).

4. —Interest.

Finding in favor of the employee in his workers’ compensation action was proper pursuant to Miss. Code Ann. §§71-3-17(c)(25),71-3-37(5), and71-3-15, where the employee offered medical proof that the injury manifested its symptoms in an area other than that of the initial impact; further, the computation of disability benefits totaled one cent less than the amount awarded by the administrative judge and the appellate court did not find that a one-cent rounding error difference was arbitrary or capricious, Miss. Code Ann. §71-3-17(25). Cives Steel Co. Port of Rosedale v. Williams, 905 So. 2d 661, 2004 Miss. App. LEXIS 505 (Miss. Ct. App. 2004), vacated, 903 So. 2d 678, 2005 Miss. LEXIS 129 (Miss. 2005).

A claimant is entitled to interest on unpaid installments of a referee’s award from their due dates until the commission’s modification of the award. Busby v. Ingalls Shipbuilding Corp., 236 Miss. 870, 113 So. 2d 126, 1959 Miss. LEXIS 384 (Miss. 1959).

Supreme court, on reversing denial of compensation, may require payment of interest on each instalment from its due date until paid. Goodnite v. Farm Equipment Co., 234 Miss. 342, 103 So. 2d 391, 1958 Miss. LEXIS 563 (Miss. 1958).

Claimants were entitled to interest at 6 percent per annum from the respective due dates of workmen’s compensation payments until paid or tendered. Dependents of Harris v. Suggs, 233 Miss. 533, 102 So. 2d 696, 1958 Miss. LEXIS 413 (Miss. 1958).

Where the insurance carrier discontinued compensation payments to the claimant without notice to or authority from the commission, the claimant was entitled to a penalty of 10 percent on unpaid installments which were more than 14 days overdue, together with interest to be paid on each weekly instalment. Cumbest Mfg. Co. v. Pinkney, 225 Miss. 318, 83 So. 2d 74, 1956 Miss. LEXIS 783 (Miss. 1956).

5. —Penalty without award.

Where claimant was injured in January 27, 1965, and notice was given to the employer on the same day, and the claim was not controverted until May 3, 1965, subsequent to the filing of a claim for benefits on April 7, 1965, the claimant would clearly have been entitled to the penalty provided by this section [Code 1942, § 6998-19], had timely request been made therefor. New & Hughes Drilling Co. v. Smith, 219 So. 2d 657, 1969 Miss. LEXIS 1422 (Miss. 1969).

The assessment of the penalty provided by this section [Code 1942, § 6998-19] is mandatory where the facts coincide with those mentioned in subsection (e) of this section. Murphy v. Jac-See Packing Co., 208 So. 2d 773, 1968 Miss. LEXIS 1428 (Miss. 1968).