dissenting.
I respectfully dissent.
The precise and fundamental question in this case is one of fact. It is: Had Mrs. King recovered from the injury received by her on August 30, 1955? This ques*842tion was resolved against Mrs. Bang by the attorney-referee and the commission. There was ample evidence to sustain this finding. We are confronted with the often quoted rule that where the commission makes a finding of fact which is supported hy substantial evidence this Court will not reverse such finding.
Mrs. King was an employee of appellee, Westinghouse Electric Corporation, on April 2, 1954, when she entered the hospital suffering with “inflammation of the pelvic female structures. ’ ’ On April 14 she underwent an operation for the removal “of a large abscess which had developed in one of the ovarian structures. There was evidence of peritenonitis. ” She was discharged on April 23, 1954. An examination on May 4 was made by her physician and he told her to return to work “if she felt like it.” She worked until August 30, 1955, on which date her work required that she lift sheets of metal that weighed about 28 pounds. According to her own statement, “that is the first time they had ever put me on that particular job before.” She said she had never operated with that material before. On that day, August 30, 1955, Mrs. King felt a burning sensation in her stomach and quit work. She was hospitalized the next day and was discharged September 3, 1955. About September 15, 1955, she started working as a secretary making $40 per week. The commission held her average wage at Westinghouse was $42.53 per week. It appears that she had not worked regularly the past year, for the payroll record showed that her actual paid wages for the previous year with Westinghouse averaged $30.78 per week.
The attorney-referee and the commission found that Mrs. King sustained a compensable injury and was disabled for two weeks. There is no contention made that she did not sustain a compensable injury on August 30, 1955, that disabled her for two weeks, and statements made by her physicians to the effect that such disability was due to her work aggravating her preexisting pelvic *843condition should not be taken as meaning that the doctors were of the opinion that her disability thereafter to return to a job requiring heavy lifting was the result of the injury. With reference to the quotation in the majority opinion from the letter signed by Drs. Clark and Birchett that the injuries “were the result of the class of work she was doing while working at the West-ing house Electric Corporation” clearly and definitely referred to the injuries found by these doctors following the lifting of the material on August 30, 1955. But that statement has no bearing on the question whether subsequent examinations showed that Mrs. King had recovered from the injuries sustained on August 30. In the letter referred to, the doctors were referring to the original compensable injury of August 30, 1955. The crucial question here involved — whether there were any residuals from that injury — was not mentioned in the statement, directly or by inference. This is not only manifest from a reading of the letter, but in November following when the hearing' was held, Dr. Clark, who dictated the letter and signed it with Dr. Birchett, testified that he had examined Mrs. King on several occasions after she left the hospital in September, and he was asked this question: “Do you feel qualified then to have an opinion as to her present condition?” His answer was “No, sir.” Dr. Clark testified that Dr. Birchett made the last examination, that Dr. Birchett would be in a better position to pass on whether Mrs. King had recovered from the injury. Dr. Clark would not say one way or the other as to whether Mrs. King was in as good a condition as she was after the operation (in 1954), but he did testify that from what he knew about the situation, Mrs. King could return to work that did not require lifting. (The injury on August 30 was the pulling loose of adhesions left from her female operation, and the lifting that resulted in the injury had never been required of her prior to August 30).
*844Thus we put aside the statement of the doctors contained in the letter that appears on the file, for the reason above stated. Although the clear inference justifiably to he drawn from Dr. Clark’s testimony is that Mrs. King was able to return to her regular work at Westinghouse, that is, the job she had done before August 30, the date of her injury, which did not require the lifting that resulted in her injury, nevertheless, we will say for the purpose of this discussion that the testimony of Dr. Clark is laid aside. Certainly, it cannot he said to be favorable to Mrs. King, for he stated in plain words he did not have an opinion as to her present (November 1955) condition.
Making these concessions to Mrs. King’s position, there is nothing left upon which to base an award for permanent disability except the testimony of Dr. Bir-chett, a gynecologist, who operated on Mrs. King in 1954 and who treated her after her injury on August 30, 1955, and examined her as late as November 18,1955, prior to the hearing on November 22, 1955.
Dr. Birchett, after an examination to determine the cause of pain following her injury on August 30, 1955, was of the opinion that there were adhesions following the 1954 operation, and that these adhesions had been torn from the strain of lifting. Of course, as already stated, the resulting disability was caused by aggravation of a preexisting weakness or condition and was clearly compensable. The commission properly so held. She was discharged on September 8, 1955, and Dr. Bir-chett said “her inflammation had subsided.” Dr. Bir-chett again saw Mrs. King on November 18, 1955, and examined her and of her condition at that time he said, “I didn’t find at that time any residual reaction.” Dr. Birchett was asked if Mrs. King could do heavy industrial work, and he answered, “Well, from the history she gave me that she picked up something that weighed twenty-five to twenty-eight pounds, I assumed it wouldn’t *845be wise for her to go back to that type of work and that was my recommendation to her. ’ ’ Further, Dr. Birchett said, ‘ ‘ She is probably as well today as she will ever be, which I consider satisfactory,” and, “I don’t see why she couldn’t stand on her feet all day long. But she couldn’t do anything that would require an undue strain on her stomach.” Dr. Birchett again, in reference to whether she had recovered from the strain of August 30, stated:
“Q. As I understand your testimony with reference to that was that you did not find any evidences and there was no residuals from this injury which she received on August 30?
‘1 A. That is correct. ’ ’
I do not know how the doctor could have said in plainer words that Mrs. King did not have any disability from the strain of August 30.
Then Dr. Birchett continued to explain why he advised against Mrs. King doing heavy lifting, and said: “If she would indulge in any heavy lifting, she might have a recurrence.” A recurrence of what? It could not have meant but one thing — that those adhesions left from her operation in 1954 might be torn again. This is made crystal clear by the next question to Dr. Birchett and his answer.
“Q. She has a condition as a result of this operation that you think she should favor?
“A. That is right.”
The only statement made by Dr. Birchett that would be favorable to Mrs. King on the crucial issue was his answer to certain questions put by the attorney-referee as follows:
“Q. Am I correct that in your opinion any disability Mrs. King may have at this time is caused by a combination of the accident superimposed upon the operation?
*846“A. You mean the aftermath of her operation and the accident—
“Q. Have combined?
“A. They are.”
Bnt the triers of fact should not be told by this Court to take this one statement out of the whole context and find claimant permanently disabled. The doctors probably understood that the disability referred to was that following the injury on August 30. This is especially likely since he had so clearly stated that there were no residuals from the strain of August 30. He later testified that he did not think Mrs. King had any permanent disability in the sense of permanent being as long as she lived. But he said she had recovered, and further said her condition was very satisfactory on November 18, 1955.
It is my considered opinion that for the triers of fact to find any permanent disability they would have to ignore the overall effect of the medical testimony and place a finding on one isolated statement.
On this evidence the triers of fact found a compen-sable injury and awarded temporary total disability for two weeks. It specifically found that there was no residual of the injury of August 30 and no permanent partial disability as a result of the said injury.
I do not understand how it can be said that the attorney-referee, the commission and the circuit court went off on the theory that because Mrs. King went to Avork for another employer two weeks after her injury she was not entitled to permanent disability benefits. It certainly cannot be because this fact was mentioned. It was a circumstance to be considered, although not conclusive. But it seems clear what the order denying permanent disability was based on. It was based on the finding of fact that Mrs. King had no residual from the August 30 injury, words taken out of the mouth of her own physician and witness.
*847Emphasis seems to he placed on the fact that Mrs. King’s physicians advised her not to go back to the work she was doing when she strained herself lifting. Now, let ns look at that proposition. She had the 1954 operation that left her with a weakness from adhesions. She went back to work and worked over a year. The first time she tried a job that required her to lift 28 pound sheets of metal she tore the adhesions. She was hospitalized a week, went to work for another employer in two weeks, and from the last examination before the hearing, the physician said he found no residual from the August 30 injury. But he advised her not to return to the lifting work that she was doing when she strained the adhesions. He did not tell her she could not go back to the work she had been doing from the time of her recovery from the operation in 1954 until she tried to lift the heavy material on August 30, 1955. She could work all day if she did no lifting. In other words, Mrs. King tried a new job, by her own statement, on August 30. The strain of that aggravated the condition left from her operation. She recovered from the results of that aggravation. Now it cannot be the law that she can recover permanent disability benefits because her doctor advised her not to go back to the job she tried on August 30 because to do so might again aggravate her adhesions.
The legislature of the State of Mississippi vested in the Workmen’s Compensation Commission the job of administering the act so long as it stays within the act and the law as laid down by this Court. I think the majority have not given consideration in this case to the rule that where the finding of the commission is based on substantial evidence, it is conclusive on appeal.
Kyle, J., joins in this dissent.*848ON MOTION FOE ALLOWANCE OF ATTORNEY’S FEES
Hall, J.In our decision of this case on January 21, 1957, we held that the appellant was entitled to recover compensation, and that the same should be the difference between her actual earnings before the injury and her earning capacity after the injury; we further said that we are unable to determine from the record before us how much weekly compensation she was entitled to recover and the judgment of the attorney-referee and the Commission and the circuit court were reversed and the cause remanded to the circuit court and then to the commission for an adjudication on this matter.
The attorney for appellant has filed a motion for the allowance of attorney’s fees, hut in the motion he requests that we determine whether or not the minimum compensation benefits of $10.00 per week is applicable.
Counsel for the appellees have filed an answer to the motion and they agree that they have no objection to the allowance of attorney’s fees but they do object to a determination at this stage of the proceeding as to whether appellant’s future compensation shall be at the rate of $10.00 per week. In the original opinion which is reported in 92 So. 2d 209, not yet reported in the State Reports, we pointed out that we were unable to determine from the record the amount to which the appellant is entitled and we decline to do so at this time. However, the motion will be sustained to the extent that the attorney for appellant will be allowed a fee of 33 1/3 percent of the benefits which may be awarded to appellant, this being in accordance with the written contract between the appellant and her attorney, which contract is filed as an exhibit to the motion.
Motion sustained in part.
McGehee, C. J., and Lee, Kyle and Holmes, JJ., concur.