Consumer Discount Store v. Warren

PATTERSON, Justice:

This is an appeal from an order of the Circuit Court of Leflore County which affirmed an award to the claimant, Earl N. Warren, .against Consumer Discount Store, employer, and Transamerica Insurance Company, carrier, in a workmen’s compensation case.

Heretofore this Court upheld an order of the Circuit Court which affirmed an award for the claimant’s temporary partial disability and temporary total disability and reversed it as to the award for permanent partial disability. The reversal w.as accompanied by a remand for “the purpose of taking additional testimony, if any, as may be required to reevaluate the permanent partial disability award made by the commission. * * * ” It established that there was insufficient evidence to affirm an award for permanent partial disability.

This appeal is from the trial imposed by the remand. The hearing before the attorney-referee consisted of the reintroduction of the former record with no additional testimony with regard to the reevaluation of the permanent partial disability though an additional award was made by the attorney-referee. This order was affirmed by the commission and by the circuit court. We reverse and dismiss the .appellee’s claim.

The first order of the circuit court which reversed the finding of the commission and which was affirmed by this Court, became the law of the case. It established that there was insufficient evidence to affirm the former award. We think it clear that the circuit court would have affirmed the award, as would this Court, if in the opinion of either there w.as sufficient evidence to sustain the same.

The case before us is nothing more than relitigation of the identical facts upon which an adjudication has been heretofore made. The former opinion established the law of the case and was controlling upon a retrial following remand, .and in the absence of additional testimony it is our opinion that the claimant has not established a permanent partial disability for which an award could be made. Colson v. Sims, Miss., 198 So.2d 225 (1967); State Highway Commission v. Coahoma County, 203 Miss. 629, 37 So.2d 287 (1948); and Middleton v. Davis, 105 Miss. 152, 62 So. 164 (1913).

Reversed and judgment here for the defendants.

GILLESPIE, P. J., and INZER, SMITH and ROBERTSON, JJ., concur.