
    Johnson v. Pearl River Sand and Gravel Co., et. al.
    No. 42007
    November 13, 1961
    134 So. 2d 434
    
      Henry E. Pope, Columbia, for appellant.
    
      
      Daniel, Coker & Horton, Jackson, for appellee.
   McGehee, C. J.

This is an appeal from the judgment of the Circuit Court of Marion County which affirmed a decision of the Workmen’s Compensation Commission.

It was stipulated by and between the parties that the claimant, C. L. Johnson, sustained an accidental injury on June 26, 1956, and that the injury arose out of and in the course of his employment with the Pearl River Sand and Gravel Company; that at the time of the accident he was earning an average weekly wage of $50; and compensation for temporary total • disability and then for permanent partial disability was paid to him by the employer or its insurance carrier, The Travelers Insurance Company, first for a period of 92 weeks and later for a. period of 66 additional weeks, or the total sum of $3,953.57.

There is no contention involved on this appeal as to the payment of benefits of $25 per week, but the sole issue on this appeal is whether or not the rating of the extent of his disability by Dr. Thomas H. Blake, an orthopedic surgeon of Jackson, Mississippi, in the amount of 33-1/3 per cent for the loss of the use of his arm, was supported by substantial evidence before tbe Commission. Tbe injury was sustained while tbe claimant was clearing tbe gravel out of a dump truck and another dump truck backed against him so as to injure bis right arm. Doctor Blake testified at length as to tbe extent of bis injury, and bis was tbe only medical testimony offered in tbe case. He rated tbe disability for tbe loss of tbe use of tbe claimant’s entire arm at from 25 per cent to 33-1/3 per cent and tbe Commission allowed tbe maximum amount at which tbe disability was rated. Tbe attorney referee bad allowed 50 per cent. Tbe issue is not as to whether tbe attorney referee’s finding was supported by substantial evidence but tbe test is as to whether or not tbe finding of tbe Workmen’s Compensation Commission in allowing for tbe per centage of disability as rated by Doctor Blake is supported by substantial evidence.

Doctor Blake discharged tbe claimant on April 3, 1958, but on another examination made on November 23, 1959, tbe doctor testified that be found tbe function of tbe band and wrist appeared to be satisfactory except that there was no rotation in tbe forearm. Tbe injury seemed to be mainly to one finger and according to tbe testimony of Doctor Blake tbe maximum disability for tbe loss of tbe use of bis entire arm amounted to only from 25 per cent to 33-1/3 per cent.

Under tbe cases of Cole v. Superior Coach Corp., 234 Miss. 287, 106 So. 2d 71; Rathborne, Hair and Ridgeway Box Co. v. Green, 237 Miss. 588, 115 So. 2d 674; Williams Brothers Co. v. McIntosh, 226 Miss. 553, 84 So. 2d 692; Dowdle and Pearson, Inc. v. Hargrove, 222 Miss. 64, 75 So. 2d 277; American Surety Co. v. Cooper, 222 Miss. 429, 76 So. 2d 254; Barry v. Sanders Co., et al., 211 Miss. 656, 52 So. 2d 493; Dillon v. Gasoline Plant Construction Corp., 222 Miss. 10, 75 So. 2d 80; California Eastern Airways v. Neal, 228 Miss. 370, 87 So. 2d 895; Estate of Oatis v. Williamson and Williamson Lumber Co. and T. H. Mastin and Co., 92 So. 2d 557, 230 Miss. 270; United Funeral Homes, Inc., d/b/a Memory Chapel Funeral Home, et al v. Alfred Culliver, 128 So. 2d 579; Jackson Oil Products Co. v. Curtis, 129 So. 2d 403; I. B. S. Manufacturing Co. v. Cook, 130 So. 2d 557; and Cudahy Packing Co. v. Ward, 130 So. 2d 858, the decision of the Workmen’s Compensation Commission is supported by substantial evidence in the medical testimony of Doctor Blake and the judgment appealed from should, therefore, be affirmed.

If the Commission had decided the issue in favor of the testimony of the claimant instead of in favor of the testimony of Doctor Blake, we would still affirm the judgment of the Commission as the trier of the facts. Some of the cases cited by counsel for the claimant tend to support his contention on the appeal, but in most of those cases the decision by the Commission was in favor of the claimant, instead of against him as in the instant case.

Affirmed.

Kyle, Ethridge, Gillespie, and Jones, JJ., concur.  