IN THE COURT OF APPEALS
OF THE
STATE OF MISSISSIPPI
NO. 97-CC-01170 COA
J. H. MOON & SONS, INC. AND WESTERN CASUALTY AND SURETY CO. APPELLANTS
v.
BILLY D. JOHNSON APPELLEE
DATE OF JUDGMENT: 08/27/97
TRIAL JUDGE: HON. JOHN B. TONEY
COURT FROM WHICH APPEALED: MADISON COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANTS: BETTY B. ARINDER
ATTORNEYS FOR APPELLEE: CHAD J. HAMMONS
ROBERT L. WELLS
NATURE OF THE CASE: CIVIL - WORKERS' COMPENSATION
TRIAL COURT DISPOSITION: REVERSED THE MISSISSIPPI WORKERS'
COMPENSATION COMMISSION'S AWARD AND
GRANTED COMPENSATION BASED UPON
PLAINTIFF'S AVERAGE WEEKLY WAGE IN 1993
DISPOSITION: AFFIRMED - 01/26/99
MOTION FOR REHEARING FILED: 2/9/99
CERTIORARI FILED: 5/4/99
MANDATE ISSUED:
EN BANC
THOMAS, P.J., FOR THE COURT:
¶1. J.H. Moon and Sons, Inc. and Western Casualty and Surety Company appeal the decision of the
Circuit Court of Madison County reversing the Mississippi Workers' Compensation Commission's award
of compensation based on claimant's average weekly wage in 1981, the date of claimant's work related
accident. The Circuit Court of Madison County awarded the claimant, Billy D. Johnson, compensation
benefits based upon his average weekly wage rate in 1993, the date of his permanent disability. From this
ruling, Moon and Sons assigns the following issues for review:
I. THE FULL COMMISSION'S FINDING THAT THE DATE OF THE ORIGINAL INJURY
IS THAT WHICH SHOULD BE USED IN CALCULATING THE CLAIMANT'S
COMPENSATION BENEFITS WAS SUPPORTED BY SUBSTANTIAL EVIDENCE;
THEREFORE, THE REVERSAL BY THE CIRCUIT COURT OF MADISON COUNTY, WAS
ERRONEOUS.
II. THE FINDINGS BY THE CIRCUIT COURT OF MADISON COUNTY ESTABLISHED A
NEW DATE OF INJURY AND LIBERTY MUTUAL INSURANCE COMPANY, THE
CARRIER, ON THIS DATE IN 1993 SHOULD BE RESPONSIBLE.
Finding no error, we affirm.
FACTS
¶2. Billy D. Johnson began employment with J.H. Moon and Sons in 1959 as a carpenter and was
eventually promoted to construction superintendent. Moon and Sons primarily engages in the construction
of bridges and highway overpasses. In December 1981, Johnson, while working in the scope and course of
his employment, was involved in an automobile accident. As a result of the accident, Johnson experienced
considerable pain and numbness in his neck, shoulders, arms, and hands. In January of 1982, Johnson
sought treatment from Dr. Lucien Hodges of Jackson, Mississippi and later underwent cervical disc fusion
surgery that same month. Johnson returned to work, but continued to experience pain in his neck and arms.
¶3. As a result of the continuing pain and discomfort, Johnson traveled to the Tulane Medical Center in
New Orleans, Louisiana in May of 1983 and consulted with Dr. Raoul Rodriguez. After an examination,
Dr. Rodriguez determined that Johnson's pain and discomfort was caused by the compression of the
median nerve due to non-union of the vertebrae in the fusion performed by Dr. Hodges in January of 1982.
Dr. Rodriguez further noted that the symptoms experienced by Johnson were indicative of compression of
the median nerve in the carpal tunnel, carpal tunnel syndrome. Dr. Rodriguez continued to treat Johnson
between 1983 and 1985.
¶4. In December of 1985, Dr. Rodriguez concluded that additional surgery was necessary to correct the
non-union of the vertebrae in the cervical spine. The removal of a fragment of disc material and re-fusion of
Johnson's vertebrae was performed in January of 1986. Although the surgery performed by Dr. Rodriguez
helped to diminish Johnson's pain, Johnson continued to experience numbness in his right arm and hand.
¶5. On June 4, 1987, Judge Joseph Edmund Winston held that Johnson's injuries constituted a
compensable injury arising from the December 1981 accident and ordered J.H. Moon and Sons, Inc. and
Western Casualty to pay all of Johnson's medical expenses. However, the order did not result in a finding
of permanent disability.
¶6. On November 25, 1987, after conducting an electromyogram, Dr. Rodriguez concluded that the earlier
diagnosis of carpal tunnel syndrome was correct. Due to the continuing presence of pain Johnson continued
to see Dr. Rodriguez, which resulted in approximately 15 follow-up office visits between August 1987 and
April 1990. In April 1990, Judge Neil W. White held that the carpal tunnel syndrome experienced by
Johnson was related to the December 1981 accident. Johnson was awarded both prior and future medical
expenses related to his cervical spine injury.
¶7. Johnson had continued to work for Moon and Sons between the December 1981 accident and July 15,
1993. On this date Dr. Rodriguez concluded that Johnson was totally disabled and unable to return to
work. Johnson received temporary total disability benefits from January 25, 1982 to March 7, 1982 at a
rate of $112 per week and received wages in lieu of compensation from January 30, 1986 to July 7, 1986.
Johnson sustained no additional injuries which aggravated or lightened the injury he sustained in the 1981
accident or that caused or contributed to his current state of disability. All resulting pain and discomfort,
including the diagnosis of carpel tunnel syndrome were traced to the original accident in December 1981.
¶8. On May 6, 1996, Administrative Judge Deneise Lott ordered that Johnson was entitled to permanent
total disability benefits at the rate of $112 per week for 450 weeks beginning December 2, 1981, the date
of the injury, with proper credit for compensation and for wages paid in lieu of compensation. Judge Lott
concluded that Liberty Mutual Insurance Company, the workers' compensation carrier as of July 15, 1993,
was not liable for any benefits to be paid, and that Western Casualty was solely responsible for payment of
Johnson's benefits.
¶9. Johnson filed a motion to reconsider on May 23, 1996. This motion was denied on June 26, 1996 by
Judge Lott. The claimant appealed the order to the Full Commission.
¶10. On October 31, 1996, the Mississippi Workers' Compensation Full Commission affirmed the order of
Judge Lott and the findings made therein. From that order, Johnson appealed to the circuit court. On
August 27, 1997, Circuit Court Judge John B. Toney reversed the Full Commission and awarded Johnson
compensation based upon his average weekly wage in 1993. From this order Moon and Sons appeal.
STANDARD OF REVIEW
¶11. Our standard of review in worker's compensation cases is well settled. We are limited to a
determination of whether the Commission's findings of fact and order are supported by substantial evidence.
Marshall Durbin Companies v. Warren, 633 So. 2d 1006, 1009 (Miss. 1994). Reversal is only
warranted when an order of the Workers' Compensation Commission is clearly erroneous and contrary to
the overwhelming weight of the evidence. Hedge v. Leggett & Platt, Inc., 641 So. 2d 9, 12 (Miss. 1994).
¶12. "By the same token, when the decision of the Commission is before the circuit court on intermediate
appeal, that circuit court may not tamper with the findings of fact, where the findings are supported by a
sufficient weight of the evidence." Natchez Equipment Co. v. Gibbs, 623 So. 2d 270, 274 (Miss. 1993).
Error is committed by the circuit court if it simply supplants its judgment for that of the Commission. Id.
¶13. We are mindful of what the court said Delta CMI v. Speck, 586 So. 2d 768, 772-73 (Miss. 1991):
Under settled precedent, courts may not hear evidence in compensation cases. Rather, their scope of
review is limited to a determination of whether or not the decision of the commission is supported by
the substantial evidence. If so, the decision of the commission should be upheld. The circuit courts act
as intermediate courts of appeal. The Supreme Court, as the circuit courts, acts as a court of review
and is prohibited from hearing evidence or otherwise evaluating evidence and determining facts; . . .
"[W]hile appeals to the Supreme Court are technically from the decision of the Circuit Court, the
decision of the commission is that which is actually under review for all practical purposes."
As stated, the substantial evidence rule serves as the basis for appellate review of the commission's
order. Indeed, the substantial evidence rule in workers' compensation cases is well established in our
law. Substantial evidence, though not easily defined, means something more than a "mere scintilla" of
evidence, and that it does not rise to the level of "a preponderance of the evidence." It may be said
that it "means such relevant evidence as reasonable minds might accept as adequate to support a
conclusion. Substantial evidence means evidence which is substantial, that is, affording a substantial
basis of fact from which the fact in issue can be reasonably inferred."
Id. (citations omitted).
¶14. In addition, "[w]e are reminded that workers' compensation law is to be liberally and broadly
construed, resolving doubtful cases in favor of compensation so that the beneficent purposes of the act may
be accomplished." Marshall Durbin Companies v. Warren, 633 So. 2d 1006, 1010 (Miss.1994). See
also Miller Transporters, Inc. v. Guthrie, 554 So. 2d 917, 919 (Miss. 1989); Reichhold Chemical, Inc.
v. Sprankle, 503 So. 2d 799, 802 (Miss. 1987); Barham v. Klumb Forest Products Center, Inc., 453
So. 2d 1300, 1304 (Miss. 1984). We exercise a de novo review on matters of law. Spann v. Wal-Mart
Stores, Inc., 700 So. 2d 308 (¶12) (Miss. 1997).
ANALYSIS
I.
THE FULL COMMISSION'S FINDING THAT THE DATE OF THE ORIGINAL INJURY IS
THAT WHICH SHOULD BE USED IN CALCULATING THE CLAIMANT'S
COMPENSATION BENEFITS WAS SUPPORTED BY SUBSTANTIAL EVIDENCE;
THEREFORE, THE REVERSAL BY THE CIRCUIT COURT OF MADISON COUNTY, WAS
ERRONEOUS
¶15. Moon and Sons assigns as error the Madison County Circuit Court's reversal of the Mississippi's
Workers' Compensation Commission's ruling awarding compensation based upon Johnson's average
weekly wage in 1981, the date of his accident. The circuit court reversed the Commission's ruling and
awarded compensation to Johnson based upon his average weekly wage in 1993, the date Johnson was
declared permanently disabled. Appellants argue that an award based upon the date Johnson was declared
permanently disabled is contrary to the law regarding workers' compensation as established by the
Mississippi Legislature and cite to Miss. Code Ann. § 71-3-31 (Rev. 1995) in support of their contention.
¶16. Appellants maintain that the express language of Miss. Code Ann. § 71-3-31 controls the resolution
of this matter. Appellants cite in pertinent part:
The basis for compensation under this chapter shall be the average weekly wages earned by the
employee at the time of 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 weeks immediately preceding the date of injury divided by fifty two.
Miss. Code Ann. § 71-3-31 (emphasis added).
¶17. It is undisputed that in 1981, Johnson was involved in an automobile accident, while in the scope and
course of his employment. Further, that as a result of the 1981 accident Johnson sustained injuries which,
over time, progressively increased to the point that in 1993 Johnson was no longer able to preform his
duties with his employer. In January 1982 Johnson underwent surgery to his cervical spine in an attempted
fusion of his vertebrae. Johnson returned to work, but continued to experience pain as a result of the injuries
sustained in the 1981 accident. A second surgery to his cervical spine was performed in January 1986, in
which a second fusion of his vertebra was completed. Again, Johnson returned to work, but still continued
to experience pain. As a result of the progressive nature of Johnson's injury, he was diagnosed as having
carpel tunnel syndrome in 1987. Johnson received intermittent compensation during these periods.
¶18. The question before us today is whether Johnson's injury as a result of a 1981 accident is to be
compensated at his average weekly wage in 1981, the time of his accident, or his average weekly wage in
1993, the date he was declared permanently disabled. We hold the latter and begin our analysis by
determining the nature of Johnson's injury.
¶19. We begin our discussion with a review of Dunn's treatise on workmen's compensation which reads in
pertinent part:
An accidental injury need not be one which results suddenly from the immediate application of
external force. The onset of disability may be gradual and progressive and the ultimate disability may
result from the cumulative impact of activities occurring in employment and operating upon the
employee's body or his physical weakness or infirmities. . . . The accrual of the disability must relate
to a time which is reasonably definite and not remote. . . . A certain fixed and definite event first is
required from which time can be calculated. Once a starting point is found for measuring time, a
measure which is "reasonably definite and not remote," within the requirement of the rule, is not
susceptible of precise definition but must be determined on the facts of each particular case. . . .
When the aggravation causes the pre-existing disease to become progressively worse to the point that
the employee quits work because of ultimate inability to continue for health reasons, the accidental
injury will be deemed to have occurred at the time when the employee quits his job.
DUNN, MISSISSIPPI WORKER'S COMPENSATION § 150, at 177-78 (3d ed. 1990).
¶20. This reasoning has been applied to workers' compensation cases involving an aggravation of a
worker's preexisting nonwork related injury. Miller Transportation, Inc. v. Guthrie, 554 So. 2d 917
(Miss. 1989). In June of 1982, Guthrie injured his back while cutting grass at his home, a nonwork-related
injury. Guthrie subsequently underwent corrective back surgery and was off work for two months. Upon
returning to work, Guthrie's back continued to cause him pain and his condition gradually worsened to the
point that in April of 1985 he had to quit work. The court held that the repeated trauma of work as a truck
driver aggravated his preexisting condition and forced him to quit. Guthrie was awarded benefits and found
to have sustained a compensable injury on April 11, 1985, the last day he worked. Id. at 918-19.
¶21. Similar holdings by the Mississippi Supreme Court enforce this rationale. The Mississippi Supreme
Court has acknowledged, as correctly stated in the circuit court's opinion, that gradual and latent injuries
which progress to the point of disability are compensable as of the date the employee is forced to leave his
job.
¶22. In Jenkins v. Olgetree Farm Supply, 291 So. 2d 560 (Miss. 1974), the Mississippi Supreme Court
held that an employee who had a prior history of asthma at the time he was employed and who later
suffered an aggravation of his condition due to the constant inhalation of caustic spray or dust from lime or
fertilizer suffered an accidental injury. The court held that the injury occurred within a reasonable definite
and not too remote period of time. The court went on to concluded that "it can be said that Jenkins'
accidental injury occurred at the time he quit his job, after being advised to do so by his doctors." Id. at
565.
¶23. In Pepsi Cola Bottling Co. of Tupelo, Inc v. Long, 362 So. 2d 182 (Miss. 1978), latent injuries
were held to be compensable as of the date the employee is forced to quit work for medical reasons. Long
suffered a neck injury in March of 1972, while in the scope and course of his employment. The extent of
Long's injury failed to surface until two years after the accident. In deciding the appropriate date to
determine Long's compensation, the court ruled that "in latent injury cases the 'date of injury' utilized in
determining the average weekly wage means the date of the resultant disabling injury and not the date of the
accident. . . ." Id. at 186. The court went on to state that "[t]he measure of the earning power of an
employee and his correlative loss relates, in our opinion, more to his earnings at the time the loss occurred
when he was unable to work rather than at the earlier time of the accident when he was able to continue
work, thereby receiving his earnings." Id.
¶24. It is undisputed that Johnson suffered a work related accident while in the scope of his employment.
Johnson underwent two spinal surgeries to correct damage done as a result of his accident in 1981.
Johnson returned to work after the first surgery and continued to work up until 1993, a period of over
eleven years. Between the 1981 accident and the ultimate end of his employment in 1993, Johnson received
promotions and salary increases for his service to his employer. During this time Johnson's condition
gradually and progressively deteriorated to the point that in 1993 he was declared permanently disabled and
unable to continue working for his employer.
¶25. After a careful review of the record, we conclude that substantial evidence did not exist to justify the
Commission's award of benefits calculated on Johnson's average weekly wage in 1981, the date of the
accident. The correct date with which to measure his average weekly wage is the date of permanent
disability, July 15, 1993.
II.
THE FINDINGS BY THE CIRCUIT COURT OF MADISON COUNTY ESTABLISHED A
NEW DATE OF INJURY AND LIBERTY MUTUAL INSURANCE COMPANY, THE
CARRIER, ON THIS DATE IN 1993 SHOULD BE RESPONSIBLE
¶26. Moon and Sons argues that the circuit court's ruling created a new date of injury and that as a result,
Western Casualty, the original carrier, should not be liable for Johnson's compensation. Moon and Sons
argues that by directing the compensation in this case to be paid based on the average weekly wage on July
15, 1993, Liberty Mutual Insurance Company, the successive carrier at that time for Moon and Sons,
should be the responsible carrier and not Western Casualty.
¶27. We note that the circuit court failed to address the issue of successive carriers and which of the two
carriers should bear liability for the compensation of Johnson. However, since our standard of review is de
novo and the issue was raised in the original appeal and ruled upon by the full commission, we will address
the issue. We also note that neither party, in briefing their arguments to this Court, provided the relevant
case law concerning this issue.
¶28. It is undisputed that Johnson is clearly entitled to compensation for the injury he received in the
December 1981 accident and for the resulting progression of the injury which ultimately lead to carpel
tunnel syndrome. The medical testimony clearly supports a finding that the resulting pain and numbness
experienced by Johnson after the December 1981 accident was a progressive injury, latent in nature, and
the sole result of the December 1981 accident.
¶29. The central question in resolving this issue is whether Johnson's awarded compensation should be paid
by the appellant-carrier, Western Casualty and Surety Company, or the succeeding carrier, Liberty Mutual
Insurance Company. We turn to Potts v. Lowery, 242 Miss. 300, 134 So. 2d 474 (Miss. 1961).
¶30. In Potts the Mississippi Supreme Court held the liability for benefits awarded rested on the insurer
whose policy was in force at the time of the claimant's original injury, rather than on the succeeding carrier,
where the disability for which the award was made, together with attendant benefits, resulted from original
compensable injury, and were not due to aggravation of a pre-existing condition. H.C. Lowery was
employed with Potts Motor Company as a mechanic. On May 24, 1957, Lowery slipped and fell upon a
motor while repairing an automobile in the course of his employment at Potts Motor Co. Lowery completed
his day's work despite experiencing a "popping" sound in his neck when the accident occurred. Two days
later, Lowery entered the hospital complaining of pain and discomfort in his neck. Lowery was diagnosed
as having a protruding intervertebral disc that required traction. Lowery was permitted to returned to work
after receiving treatment for his injury.
¶31. Between the May 24, 1957 accident and January 5, 1959, Lowery experienced intermittent periods
of pain and discomfort resulting from the May 1957 accident. He continued to work except for several
periods of hospitalization and treatment. It was held that Lowery's continued suffering of pain and
discomfort was a result of the original compensable injury on May 24, 1957 and not the result of an
aggravation of a pre-existing condition. Therefore, the appellant-carrier was held liable for Lowery's
compensation despite a change in carriers on April 20, 1958.
¶32. Additional holdings in Singer Co. v. Smith, 362 So. 2d 590 (Miss. 1978) and Mid-South Insulation
Co. v. Buckley, 396 So. 2d 7 (Miss. 1981) support holding the original employer-carrier liable rather than
the succeeding employer-carrier. Both Singer and Mid-South involved successive insurance carriers with
claimants whose compensable injuries resulted from the exposure or inhalation of harmful lung irritants,
abiruana dust and asbestos.
¶33. In Singer, Lester Smith was a woodworking machine operator at a furniture plant and was exposed to
abiruana dust, a by product of foreign wood named abiruana. Between Smith's first exposure to the
abiruana wood in September 1972 and his first diagnosis of chronic obstruction pulmonary disease on April
12, 1973, the plant changed ownership and insurance carriers. In deciding the issue of which employer-
carrier was liable for Smith's compensation, the court concluded that the original employer-carrier,
Magnavox-Travelers Ins. Co., was liable for Smith's compensable injury where the "disease and resulting
disability had manifested itself prior to the change of ownership of the factory and the degree of the injury
did not change." Singer, 362 So. 2d at 593.
¶34. In addition, the Singer court rejected Magnavox's argument that the carrier's compensation liability
should attach as of the date the disease was diagnosed. The court stated "[i]n many cases a person can be
totally and helplessly disabled before a correct diagnosis can be obtained. Such a rule would totally defeat
the purpose of the workmen's compensation statutes." Id.
¶35. In Mid-South, the widow of Casey Buckley sought death benefits under Mississippi Workmen's
Compensation Act after Buckley died from lung cancer precipitated and caused by the inhalation of
asbestos while employed with Mid-South Insulation Company. Buckley began employment with Mid-
South in 1957 and worked until August 1967 when his health condition required him to cease employment
with Mid-South. During his employment he was exposed to asbestos everyday. By the early 1960's
Buckley had begun to experience lung and breathing difficulties; however, the cause of his ailments was
unknown. It was not until June 1975 that Buckley's lung and breathing difficulties progressed to the point
that his medical doctors concluded that an open chest operation was necessary to make a diagnosis of his
disease. After surgery, Buckley was diagnosed with asbestos scarring on the pleural surface of the lungs.
Buckley failed to improve and died shortly thereafter.
¶36. The court concluded that where a claimant's disability and disease manifested itself early in the 1960's,
but the cause of the disability and disease manifestation was not diagnosed until after the claimant ended his
employment, the employer's carrier during the period of exposure is liable for claimant's compensation
benefits despite the presence of a successive carrier at the time when the claimant was forced to end his
employment. Mid-South, 396 So. 2d at 10-11.
¶37. Finally, we return to Dunn's treatise on workmen's compensation on the question of carrier liability :
As to the question of the existence of liability, it is well settled that the first or originating employer is
exclusively liable when the recurrence of disability is solely attributable to the original injury, but that
the subsequent employer or carrier is exclusively liable where the second disability has no casual
relation whatever with the original injury.
DUNN, MISSISSIPPI WORKER'S COMPENSATION § 188, at 237 (3d ed. 1990) (footnotes omitted).
¶38. It is readily apparent that the gradual and progressive injury, latent in nature, suffered by Johnson and
the ultimate diagnosis of carpel tunnel syndrome were the results of the 1981 accident. The existence of any
subsequent aggravation or re-injury which would constitute a new injury has not been shown. All indications
show a compensable injury with gradual and progressive deterioration characteristics, indicative of a change
in the original condition rather than a new injury, resulting in a subsequent disability stemming from the
original accident in 1981. Absent some connecting event to show a casual relationship between the ultimate
disability and a second disability or new injury after the change in carriers, we conclude that Western
Casualty, the first carrier, is liable for Johnson's compensation benefits based on his average weekly wage
on July 15, 1993, the date he was forced to leave his employment for health reasons.
¶39. THE JUDGMENT OF THE CIRCUIT COURT OF MADISON COUNTY IS AFFIRMED.
COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.
BRIDGES, C.J., DIAZ, KING, AND PAYNE, JJ., CONCUR. SOUTHWICK, J., DISSENTS
WITH SEPARATE WRITTEN OPINION JOINED BY McMILLIN, P.J. AND COLEMAN, J.
IRVING AND LEE, JJ., NOT PARTICIPATING.
SOUTHWICK, J., dissenting
¶40. With respect for the view of the majority, I find that the Workers' Compensation Commission properly
interpreted the controlling statute. Therefore in my view the circuit court's reversal of that decision was
error.
¶41. The issue is simple and also important. Should benefits be awarded based on the 1993 wages when
the worker was held to be permanently disabled, or instead based on 1981 wages when the injury
occurred? The statutory language explicitly addresses the question:
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 . . . .
Miss. Code Ann. § 71-3-31 (Rev. 1995) (emphasis added). The Commission relied upon the plain
meaning of the phrase "time of the injury" and held that the wages earned when the 1981 injury occurred
were the relevant ones.
¶42. The majority rejects this meaning on two grounds. One is by relying upon "latent injury" case law. The
problem with its applicability is that there was nothing latent about the injury. The employer and the claimant
knew from the beginning that this was an industrially disabling injury. This is not a situation in which an event
occurs at work that initially appears benign but later proves to have been the start of an industrially disabling
problem. Pepsi Cola Bottling Co. v. Long, 362 So. 2d 182, 183 (Miss. 1978).
¶43. The second argued analogous case law addresses apportionment between pre-existing non-work
related injuries and a job-related injury. Miller Transportation, Inc. v. Guthrie, 554 So. 2d 917, 919
(Miss. 1989). Such case law is a means to permit compensation for the workplace contribution to what
otherwise is not a job-related injury. Here, the entire injury is job-related. The statutory language simply
does not provide for compensation based on date of most severe effect of injury.
¶44. Other statutory sections emphasize the focus on the date of injury. The two most applicable are these:
"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.
Miss. Code Ann. § 71-3-3(i) (Rev. 1995); and
"Wages" includes the money rate at which the service rendered is recompensed under the contract of
hiring in force at the time of injury. . . .
Miss. Code Ann. § 71-3-3(k) (Rev. 1995).
¶45. This was not a latent injury nor a work-related aggravation of a non-work injury, but a different
category altogether. It is a work-related injury that is known to be industrially-disabling from the beginning,
worsens over time, and eventually develops into a total disability.
¶46. The inequity of the case is that so much time passed and such a change in wage occurred. The
Commission agreed that the claimant's "average weekly wage on the date that he became permanently
disabled is a better measure of his earning power and correlative loss of earning power than his average
weekly wage on the date of injury." I acknowledge the validity of the majority's statements about the
sympathetic reading that we are to give to the statute consistent with its beneficent purposes. With sincere
respect, I find what has occurred here to be a sympathetic rewriting of the plain language of the statute.
¶47. Moreover, there are equity risks and policy choices under both the majority and the Commission's
results. Under the Commission's view the worker receives lower compensation if the disability becomes
total, but under the majority's view the employer may be less willing to maintain an injured worker on the
normal promotion track while the disability is only partial. Regardless of whether the legislature was
contemplating these reasons, the statutory language plainly chooses.
¶48. Until a statutory change is made, I find that the Commission's interpretation is correct. I therefore
dissent.
McMILLIN, P.J. AND COLEMAN, J., JOIN THIS SEPARATE OPINION.