MISSISSIPPI WORKERS' COMPENSATION CLAIM HANDLING GUIDELINES
- 1 DEFINITIONS
- 2 EXCLUSIVE REMEDY
- 3 JURISDICTION AND LIMITATIONS OF ACTIONS
- 4 COMPENSABILITY
5 EXCLUSIONS AND DEFENSES
5.1 Course of Employment
- 5.1.1 Engaged in the Furtherance of Employer’s Business
- 5.1.2 Not in Furtherance of Employer’s Business
- 5.1.3 Traveling Employees
- 5.1.4 Commuting
- 5.1.5 Premises and Parking Lot Cases
- 5.2 Intentionally Self-Inflicted Injury or Death
- 5.3 Employee’s Violation of the Law, Intoxication, and Illegal Use of Drugs
- 5.4 Employee’s Violation of Positive Orders of Employer
- 5.5 Personal Animosity
- 5.6 Hostile Attacks
- 5.1 Course of Employment
- 6.1 Calculation of Average Weekly Wage
- 6.2 Total Disability
- 6.3 Partial Disability
- 6.4 Amputation or Loss of Use
- 6.5 Disfigurement/Scarring
- 6.6 Loss of Sight
- 6.7 Loss of Hearing
- 6.8 Penalties
- 6.9 Interest
- 6.10 Costs
- 6.11 Counsel Fees
- 6.12 Child and Spousal Support Liens
- 6.13 Death Benefits
- 6.14 Medical Benefits
- 6.15 Refusal of Medical Treatment
- 7 SUBROGATION OR CREDIT
- 8 ATTORNEYS
- 9 CLAIMS PROFESSIONALS
- 10 LITIGATION AND APPEAL
- 11 SETTLEMENT
- 12 INSURANCE
The term “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. Miss. Code Ann. Sec. 71-3-3.
The Act requires coverage if an employer “has in service five or more workmen or operatives regularly in the same business or establishment under any contract of hire, express or implied.” Miss. Code Ann. Sec. 71-3-5. Certain categories of employers are exempt from the coverage requirements of the Act, regardless of the number of workers they employ, including nonprofit, charitable, religious, and fraternal corporations or associations.
A provision in the nature of an exemption/exclusion for certain “owner/operator truckers” was included in the 2006 amendments to the MWCA, Miss. Code Ann. Sec. 71-3-5, but the application and interpretation of such is vague and controversial. Currently there is only one reported case upholding the exemption, Graham v. Schneider National Carriers, Inc., MWCC No. 0904018-K-2787, 2010 Ms. Wrk. Comp. LEXIS 2138. The 2006 amendment states that if an owner/operator provides proof of coverage through “a self-insured plan 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” unless the owner/operator has elected in writing to be covered by the carrier’s insurance. On its face, the amendment appears to state that another form of insurance can substitute for workers’ compensation but this insurance typically provides narrower benefits. The occupational accident insurance provisions are set out in a contract giving no assurance that the policy fulfills the statutory benefits for work injuries under workers’ compensation law concerning disability and medical benefits and, therefore, the statutory exemption/exclusion may arguably be deemed not applicable. Some policies contain a disclaimer: “This coverage is not workers’ compensation coverage.” However, the statutory exemption/exclusion does not specifically state or require that the substitute occupational accident policy provide the same or similar benefits as a workers’ compensation policy, but only requires the policy to provide a minimum of $1,000,000.00 of coverage.
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 a subcontractor unless the subcontractor has provided coverage. The contractor, as the statutory employer, would then be afforded the same immunity from suit as direct employers Miss. Code Ann. Sec. 71-3-7(6). Application of statutory employment requires a prime/general contractor(s) and subcontractor(s) relationship.
An “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 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. Miss. Code Ann. Sec. 71-3-3. Also excluded are domestic servants, farmers, and farm laborers, however, the exemption does not apply to the commercial processing of agricultural products. Also excluded is any purchaser of timber products if the timber purchaser is not liable for unemployment tax on the person harvesting and delivering the timber. Miss. Code. Ann. Sec. 71-3-5.
Undocumented workers, not citizens of the United States or without the proper legal documentation permitting them to be in the United States, can be employees under the MWCA. There are no special provisions in the Act regarding “aliens” other than to state that if they are injured and return to their home country, any permanent disability benefits due can be paid lump sum, rather than bi-weekly. Miss. Code Ann. Sec. 71-3-27.
If the worker is an employee of, or a borrowed employee for, the employer, then that employer has protection under the statutory immunity of the MWCA, Miss. Code Ann. Sec. 71-3-9. In the case of a borrowed employee, for the borrowing employer to have protection under the MWCA, the presumption that employment continues with the loaning employer must be overcome by the borrowing employer. To overcome the presumption, there must be a clear demonstration that the borrowing employer has been substituted for the loaning employer, which should include a showing that a contract was made between the borrowing employer and the employee, proof that the work being done was essentially that of the borrowing employer, and proof that the borrowing employer assumed the right to control the details of the work, Clark v. Luther McGill, Inc. 240 Miss. 509, 127 So. 2d 858 (1961). The presumption can be difficult to overcome since control by the borrowing employer may be lacking if the employee was responding to the loaning employer’s request that they assist the borrowing employer. A borrowed employee relationship might be found in a situation where the employee agrees to control by another employer for a temporary period of time, Quick Change Oil & Lube, Inc., v. Rogers, 663 so. 2d 585, 589 (Miss. 1995).
The borrowed employee doctrine is closely related to the dual employment doctrine. The dual employment doctrine typically applies where the employer has sent their employee out with the intent that another employer have control. The right to control is the most important factor to consider when deciding whether the borrowed employee or dual employment doctrine applies. When an employee is engaged in the service of two (2) employers in relation to the same act (dual employment), both employers are exempt from common law liability, although only one of them has actually provided workmens’ compensation insurance.
An “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. Miss. Code Ann. Sec. 71-3-3.
The two tests to determine independent contractor status are the “control test” and the “relative nature of work test”. The tests are fact specific and require examination of the true relationship of the parties under the employer’s right to control the employee, method of payment, furnishing of the employee’s equipment and the right to fire the employee, Brown v. L.A. Penn & Son, 227 So. 2d 470 (Miss. 1969). Other factors, including the character of the claimant’s work or business and its relation to the employer’s business and whether the claimant’s work is sufficient to amount to the hiring of continuing services as distinguished from contracting for the completion of a particular job, are also considered. There are occasions where the facts established lead to a finding of a defacto employer-employee relationship instead of independent contractor status despite contractual terms in an agreement or contract between the employer and independent contractor.
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. Miss. Code Ann. Sec 71-3-9.
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. Miss. Code Ann. Sec. 71-3-9. The failure to “secure payment of compensation” occurs if the employer has failed to have a workers’ compensation policy in effect or has failed to qualify as a self-insurer under the Act.
Another exception occurs in claims for which the MWCA does not provide a remedy, such as false imprisonment. In the case of Miller v. McRae’s, 444 So. 2d 368 (Miss.1984), an employee was “falsely imprisoned” by a co-worker while in the course and scope of employment and questioned about a missing amount of money. The employee filed a tort suit against her employer stating that she suffered humiliation, loss of reputation and physical illness as a result of the false imprisonment. The Mississippi Supreme Court held that the exclusive remedy provisions of the MWCA did not bar the claim since no “injury” as defined in the Act provided a remedy to the employee.
Where an employer intentionally injures an employee is yet another area where the exclusive remedy provision does not apply. The Mississippi Supreme Court, in the case of Franklin Furniture v. Tedford, 18 So. 3d 215 (Miss. 2009), held that where acts committed by the employer are “substantially certain” to cause injury or the employer has actual intent to injure, such actions are outside the exclusivity of the Act.
It should also be noted that another exception to the exclusive remedy doctrine is a claim by the employee against his employer, carrier, and third party administrator based on “bad faith” claims handling. The employee may bring an action in tort in either State or Federal Court for the willful or intentional denial of a claim, in whole or in part, without reasonable grounds, where the denial reflects an intent to injure the employee.
JURISDICTION AND LIMITATIONS OF ACTIONS
The general rule is that coverage exists if the injury occurs in Mississippi, the employee is regularly employed in Mississippi, or the employee was hired in Mississippi. Miss. Code Ann. Sec. 71-3-109. The commission has exclusive jurisdiction over those cases. Miss. Code Ann. Sec. 71-3-47. However, excepted are transportation and maritime employment injuries for which a rule of liability is provided by the laws of the United States, i.e. LHWCA, Jones Act, and FELA.
If an employee who has been hired or is regularly employed in this state receives personal injury by accident arising our of and in the course of his employment while temporarily outside of this state, he or his dependents in case of his death shall be entitled to compensation according to the law of this state. This provision shall apply only to those injuries received by the employee within six (6) months after leaving this state unless, prior to the expiration of such six (6) months’ period, the employer has filed with the MWCC notice that he has elected to extend such coverage a greater period of time. These provisions will not apply to an employee whose departure from this state is by permanent assignment or transfer. Miss. Code Ann. Sec. 71-3-109.
Additionally, an employee who has been hired or is regularly employed outside this state, and his employer, shall be exempted from the provisions of this chapter while such employee is temporarily working within this state if their employer furnishes insurance to cover the employee while in this state and, also, provided the extra-territorial provisions of this chapter are recognized in such other state. Miss. Code Ann. Sec. 71-3-109.
There are two statutes of limitation and they are mutually exclusive. The first is the case where no compensation (other than medical treatment or burial expense) is paid and no application for benefits (Petition to Controvert) is filed with the Commission within two years from the date of injury or death, the right to compensation therefor shall be barred. This applies to both medical and indemnity. Miss. Code Ann. Sec. 71-3-35. With the two year statute, the question is when the statute begins to run. The statute is very specific that the limitation period begins from the date of injury rather than the date of accident.
The one year statute of limitation is actually a limitation upon the claimant from reopening a claim. Where the employer has voluntarily paid compensation and medical benefits until a certain point (claimant returns to work or reaches MMI) and the claimant does not file a Petition to Controvert, the employer and carrier must then give the claimant notice upon the last payment of compensation that the one year statute shall commence. Employer and carrier then file the properly executed MWCC Form No. B-31 which starts the statute running that gives claimant one year to pursue his claim either by requesting and the obtaining of additional medical treatment or disability benefits, or by filing a Petition to Controvert. Paying additional benefits tolls the running of the statute and a new B-31 has to be filed to start the year running again. On the other hand, if the form is properly filed and the claimant seeks additional medical or otherwise makes a claim for benefits more than one year after the date of filing, then his claim is completely barred even though the additional medical is directly related to the accident. If the claimant ignores or refuses to sign the B-31, then the procedure to commence the running of the one year statute is more complicated and requires a few more steps in which event counsel should be contacted to assist.
The second situation where the one year statute often arises involves the reopening of a controverted claim. At anytime prior to one year after the date of the last payment of compensation whether by order or otherwise, the Commission may hear a case upon motion of the claimant to reopen upon a change in condition or because of a mistake in determination of fact.
Since the two year limitation period runs from the date of injury, rather than the date of accident, an injury latent in nature that cannot reasonably be discovered by the claimant at the time of onset can be problematic. The Supreme Court has held that the two year statute limitation period does not begin to run until, by reasonable care and diligence, it is discovered and apparent that a compensable injury has been sustained, Tabor Motor Co. v. Garrard, 233 So. 2d 811 (Miss. 1970); 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 (Miss. 1974).
Notice of Injury
Miss. Code Ann. Sec. 71-3-35(1) provides that 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. Notice received by any supervisor, if there is no designated representative, is also sufficient. Absence of notice will not bar recovery if the employer had knowledge of the injury and was not prejudiced by the failure to report. There is no reported case upholding the thirty (30) day actual notice to employer requirement. Regardless of notice, 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 years from the date of injury or death, the right to compensation therefor shall be barred. Miss. Code Ann. Sec. 71-3-35 (1).
Statute of Limitations
See Section C (Time Limitation), hereinabove.
Special Rules for Death Claims
When there is a difference between the date of injury and the date of death, the two year statute begins running at the time of death. Ingalls Shipbuilding Corp. v. Dependents of Harris, 187 So. 2d 886 (Miss. 1966).
Occupational Disease Death Claims
No different than traumatic injury death claims.
Occupational Disease Claims
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 disease as well as injury. Miss. Code Ann. Sec. 71-3-3(b). The definition also refers to accidental injury resulting from “an untoward event or events”, implying that an injury need not occur from one particular event. Therefore, occupational diseases can be compensable provided that there is medical proof of a causal connection to the work activities or environment and said precipitating events are within a definite and not too remote time period. KLLM, Inc. v. Fowler, 589 So. 2d 670 (Miss. 1991). The reasonable time period was satisfied when a worker’s exposure to dust and fumes over a six year period aggravated a respiratory ailment resulting in disability, Jenkins v.Ogletree Farm Supply, 291 So. 2d 560 (Miss. 1974) and when two years of working with a torch caused a loss of eyesight, Ingalls Shipbuilding Corp. v. King, 229 Miss. 871, 92 So. 2d 196 (1957).
Miss. Code Ann. Sec. 71-3-7 provides that compensation shall be payable for disability or death of an employee from injury or occupational disease arising out of and in the course and scope of employment.
Extension of Limitation Period
As discussed herein above, the discovery rule can extend the limitation period. There are also two savings clauses in the two year statute which delay the beginning of the two year period. One protects minors without legal guardians as well as the mentally incompetent. The second savings clause recognizes that an admiralty suit or action at law may be pursued unsuccessfully because of a successful defense that workers’ compensation provides the exclusive remedy. Additionally, if a workers’ compensation case is filed in another jurisdiction, or a tort case is filed, the statute of limitations is tolled during the time of the case and starts running again at the time the case is concluded. Regarding the one year statute, an improperly filed B-31 will result in the statute not commencing.
Miss. Code Ann. Sec 71-3-7 provides:
(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 (two (2) years) or Section 71-3-53 (one (1) year), the claimant shall file medical records in support of his claim within sixty (60) days after filing the petition to controvert.
(2) Where a pre-existing 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) or this section:
(a) Apportionment shall not be applied until the claimant has reached maximum medical recovery.
(b) 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 administrative judge, subject to review by the commission as the ultimate finder of fact (based upon expert medical evidence as well as all pertinent factual evidence).
(c) After the date 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 contributed to the results following injury.
(d) If maximum medical recovery has occurred before the hearing and order of the administrative judge, credit for excess payments shall be allowed in future payments. Such allowances and method of accomplishment of the same shall be determined by the administrative judge, 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.
For injuries on or after July 1, 2012, the law is to be impartially construed so as to favor neither the claimant nor employer/carrier, and the workers’ compensation laws are not to be liberally construed in order to fulfill and beneficent purposes. 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 employment, to pay reasonable and necessary medical expenses resulting from such injury or occupational disease, and to encourage the worker to return to work. Miss. Code Ann. Sec. 71-3-1(1) and 71-3-1(3).
“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. Miss. Code Ann. Sec. 71-3-3.
Types of Injuries
Accident Not Required
An injury “arising out of employment” refers to the causal origin of injury and focuses on whether it is connected to the employment. Simply put, it means that the injury would not have occurred but for the fact that the employment placed the employee in a position where he was injured. The “in the course of employment” requirement for compensability generally refers to the time, place, and circumstances of the accident. Reasonably incidental activities to employment have been held to include personal pursuits such as smoking and going to the telephone. In Wiggins v. Knox Glass, Inc., 219 So. 2d 154 (Miss. 1969), the Court ruled that an injury from an act of nature arises out of and in the course of employment (tornado caused injury at work). In general, if the employee is doing his job at the time and place where he is supposed to be doing that job, then he meets the requirement. There is no requirement that the injury occur during work hours or on the premises if there is a significant contributing work factor. In the case of Walker Mfg. Co. V. Pickens, 206 So. 2d 639 (Miss. 1968), the employee manifested symptoms of a brain hemorrhage one evening at work although the substantial hemorrhage did not occur until the employee was at home the next morning. Mississippi courts have also approved compensation in stroke, aneurysm, hernia, allergy, asthma, and idiopathic fall cases.
The MWCA does not specifically address injury or death which occurs as a result of infectious diseases. Infectious diseases, such as hepatitis, staph infection, etc., will be compensable if the employment risk analysis results in a finding that the work exposed the employee to a risk that is reasonably incidental to the employment or rationally connected to the employment.
There are two tests of causal connection in heart attack cases, medical and legal. To meet the medical test of causal connection credible medical evidence must show that the work at least aggravated, accelerated or contributed to the heart attack. The second tests requires evidence that the physical exertion and/or emotional stress imposed on an employee by his work exceeds the ordinary wear and tear of life. In Mississippi Dept. of Public Safety v. Pickens, 859 So. 2d 1057 (Miss. Ct. App. 2003), the commission and administrative judge found that Pickens’ job caused stress “over and above the ordinary wear and tear of life”. It is not a requirement that the heart attack occur during the actual period of work stress. There may be an apportionment or proportionate reduction of permanent disability benefits if an employee’s pre-existing condition contributed to the disability.
A mental injury which results from a compensable physical trauma is compensable (physical/mental). In the case of a mental injury which results from a mental (non-physical) trauma (mental/mental) the employee must show that there is a work-related mental trauma resulting from something more than the ordinary incidents of employment, i.e., an untoward event or series of events outside the general stress, wear and tear of the workplace. The danger of fraud concerning these particular mental/mental injury cases demands establishment of the injury and resulting disability by clear and convincing evidence. Compensable mental-mental injury was awarded in Brown & Root Construction v. Duckworth, 475 So. 2d 813 (Miss. 1985), promised promotion did not occur resulting in psychological symptoms resembling a stroke; Mid-Delta Home Health, Inc. v. Robertson, 749 So. 2d 379 (Miss. App. 1999), award due to emotional disorder arising from being overworked and harassed; Kemper National Insurance Co. v. Coleman, 812 So. 2d 1119 (Miss. App. 2002), adjuster treated for depression as a result of being harassed by his supervisor and passed over for promotion.
Where a mental injury causes a physical injury (mental/physical) or a physical injury causes a mental injury which creates another physical injury (physical/mental/physical), the resulting physical injury could be compensable. Berry v. Universal Mfg. Co., 597 So. 2d 623 (Miss. 1992), job stress contributed to hypertension; Weyerhauser Co. v. Ratcliff, 197 So. 2d 231 (Miss. 1967), a worker lacerated three fingers which resulted in stress and anxiety over the finger injuries which, in turn, aggravated a chronic ulcer requiring surgery.
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. Miss. Code Ann. Sec. 71-3-7. While occupational diseases are not injuries, the provisions of the MWCA apply equally to both. Georgia Pacific Corp. v. Gregory, 589 So. 2d 1250 (Miss. 1991), Meniere’s Syndrome not referenced specifically as either occupational disease or injury; Sperry-Vickers, Inc. v. Honea, 394 So. 2d 1380 (Miss. 1981), pulmonary fibrosis lung disease referred to as “occupational disease or accidental injury”.
EXCLUSIONS AND DEFENSES
Course of Employment
Generally, benefits are paid for disabilities resulting from accidental injuries or occupational disease “arising out of” and “in the course of employment” without regard to fault. In the course of employment generally refers to time, place, and circumstances of the accident. An injury resulting from a combination of the risk of employment and an employee’s personal condition arises out of and in the course of employment if the work aggravates, accelerates, or contributes to the injury. As the court has noted, “A familiar concept in workers’ compensation law is that the employer takes the worker as the worker is found - with all the strengths and weaknesses the worker brings to the job”, Chapman, Dependents of v. Hanson Scale Co., 495 So. 2d 1357 (Miss. 1986), seizure caused worker to fall and hit his head on the floor.
Engaged in the Furtherance of Employer’s Business
An injury resulting from the worker’s seeking to satisfy a personal need, if reasonably incidental to employment, is compensable. This “personal comfort” rule includes such activities as eating, smoking, going to the bathroom, getting a breath of fresh air, coffee breaks, etc.
An injury that occurs during a recreational or social event is compensable if the employer required the employee to participate. Other determinative factors are whether the employer derives a business benefit from the event or if the event would improve skills of the employees.
Horseplay is recognized as an incident of employment and resulting injuries for the nonaggressive victim of horseplay, even if that person starts the horseplay, are often compensable. The rationale behind the compensability is that joking and harmless pranks are natural and the ordinary outcropping of industrial contact and are, therefore, incident to the business and grow out of it. Mutual Implement & Hardware Ins. Co. v. Pittman, 214 Miss. 823, 59 So. 2d 547 (1952). It is the employment that brings the participants together and when the risk of injury is an employment risk, the injury is causally connected to the work. It should be noted, however, that if the employee made a substantial deviation from the course of employment by engaging in horseplay that the injury will not arise out of the course of employment.
Not in Furtherance of Employer’s Business
To be compensable the injury has to arise out of a risk incidental to the employment and not one associated with personal risk. Personal risk can occur when an inherently dangerous object (gun or explosive) unrelated to the employment is brought to the workplace by the employee. This “imported danger” doctrine was adopted by the court in the case of Earnest v. Interstate Life & Acc. Ins. Co., 238 Miss. 648, 119 So. 2d 782 (1960), insurance salesman accidently shot himself in the foot with shotgun that he carried on his sales route.
Injury during abandonment of employment will not be considered a compensable injury. If an employee leaves his place of employment on a strictly personal mission that is not incidental to the employment and incurs an injury, that injury is not considered a work related injury. Persons v. Stokes, 222 Miss. 479, 76 So. 2d 517 (1954), abandoned work mission for squirrel hunting.
Typically injuries of traveling employees are covered unless the employee has deviated from the employment on a personal mission. When travel is an inherent part of the work, the general rule is a traveling employee is in the course and scope of employment from the time he leaves home on a business trip until he returns. Eating meals and bathroom breaks are considered part of the travel. Reading v. Bates, Inc. v. Whittington, 208 So. 2d 437 (Miss. 1968), roughneck traveling home stopped to relieve himself and stepped in a hole and fell; Financial Institute Ins. Service v. Hoy, 770 So. 2d 994 (Miss. Ct. App. 2000), traveling salesperson tripped on wet carpet in hotel bathroom.
An injury that occurs during abandonment of the employer’s business is not compensable, whether the employee is a traveling employee or has a fixed place of employment. However, if a traveling employee deviates from the employer’s business on a personal mission, completes their personal mission, and then continues on their business travels, they return to the course and scope of their employment. Houston ex rel. Houston v. Minisystems, Inc., 806 So. 2d 292 (Miss. Ct. App. 2001).
A trip may have concurrent purposes. If an injury occurs on a trip that has as it purpose both a business and a personal aspect, that injury is compensable if the trip would have taken place even if the personal part of the trip was cancelled.
Generally, when an employee has a fixed place of work and reasonably fixed hours and is injured while traveling to or from work, the injury does not arise out of the course of employment. This is known as the “coming and going” rule. There are important exceptions to the general rule which have been enumerated by the court:
(1) where the employer furnishes the means of transportation, or remunerates the employee; or
(2) where the employee performs some duty in connection with his employment at home; or
(3) where the employee is injured by some hazard or danger which is inherent in the conditions along the route necessarily used by the employee; or
(4) where the employer furnishes a hazardous route; or
(5) where the injury results from a hazardous parking lot furnished by the employer; or
(6) where the place of injury, although owned by one other than the employer, is in such close proximity to the premises owned by the employer as to be, in effect, a part of such premises; or
(7) when the employee is on a special mission or errand for his employer, or where the employee is accommodating his employer in an emergency situation.
Miller Transporters, Inc. v. Seay’s Dependents, 350 So. 2d 689 (Miss. 1977); King v. Norrell Services, Inc., 820 So. 2d 692 (Miss. Ct. App. 2000).
No Fixed Place of Work Exception
For an employee having fixed hours and a place of work going to and coming from work is covered only on the employer’s premises. The question is occasionally encountered whether an employee should be classed as one having fixed hours and place of work or should be treated under the rules for a traveling employee.
An employee employed by a temporary agency and injured on her way home from work claimed that she had no fixed place of work because she might be sent to a different work location every day and that the “coming and going” rule did not apply in her case. The court found that she did not fit into any of the exceptions to the rule since her travel was not an integral part of her job, she was not paid for the travel, and the travel took place outside of her working hours. King v. Norrell Services, Inc., 820 so. 2d 692 (Miss. Ct. App. 2000).
Transportation Included in Employment Exception
If the employer provides the vehicle or makes a payment in respect to the travel time, injuries during travel are covered as long as the trip has some work connection. Sam Jones Casing Crews v. Skipper’s Dependents, 199 So. 2d 436 (Miss. 1967), newly hired employee used company truck to cash check given to him as loan and was considered on personal check-cashing mission.
Special Missions, Assignments, or Circumstances Exception
In the case of Aetna Finance Company, et al v. Burgoin, 252 Miss. 852, 174 So. 2d 495, (Miss. 1965) the court held that because an employee was required to have a car (and because he had been reimbursed for transporting other employees in the past), his involvement in an accident while transporting his manager to work (on ice and snow) was within the course and scope. The court found that the evidence in this case established the following exceptional circumstances:
(1)Claimant was required to have an auto and use it in employer’s business and proof showed that he used his auto on business missions and was paid for mileage
(2)in the past few months prior to the accident, employer had paid mileage for transporting officers during business hours and there was an inference that claimant would have collected mileage for transporting his manager to/from work had this accident not occurred
(3)proof justified that claimant understood his manager’s request as an order which he was reasonably required to obey in connection with his employment
(4)claimant owned the only auto which was in working order during snow/ice at that particular time.
When conditions of employment increase the risk of injury, the claim is compensable although the primary cause of the injury has no causal connection with the work. Pigford Bros. Construction Co. v. Evans, 225 Miss. 411, 83 So. 2d 622 (1955); Jackson v. Bailey, 234 Miss. 697, 107 So. 2d 593 (1958).
United Contracting Company, Inc. V. Galatas, 195 So. 2d 78, (Miss. 1967). A salaried employee was injured in an automobile accident while riding in his auto which was being driven by his employer to transport company office and other equipment to the next job site. The court concluded that the evidence established that the employee’s injury arose out of and in the course of employment. The evidence reflected that he had no regular place of employment as he was employed as a superintendent and he worked at places where his employer could secure contracts.
When an employee regularly performs work at home with the approval of the employer and is injured at home while engaged in the employer’s business, the home is recognized as part of the employment premises, making the injury compensable. An employee injured while traveling from the business premises to home or vice versa, will be considered to be on a personal trip if doing the work at home is for the convenience of the employee. Working at home must provide a benefit to the employer, or at least be mutually convenient for employer and employee.
In Larson, The Law of Workmen's Compensation §§ 18.32, 18.33 (1985), Professor Larson addresses these situations:
When reliance is placed upon the status of the home as a place of employment generally, instead of or in addition to the existence of a specific work assignment at the end of the particular homeward trip, three principal indicia may be looked for: the quantity and regularity of work performed at home; the continuing presence of work equipment at home; and special circumstances of the particular employment that make it necessary and not merely personally convenient to work at home.
If work is done at home for the employee's convenience, the going and coming trip is not a business trip within the dual purpose rule, since serving the employee's own convenience in selecting an off-premises place in which to do the work is a personal and not a business purpose.
Wilson v. Service Broadcasters, Inc., 483 So. 2d 1339 (Miss. 1986).
Premises and Parking Lot Cases
Premises and parking lot cases are included under the general rule that if the injury arose as a result of a risk created by the employment conditions, the employer is liable under the MWCA.
Employee parking lots are part of the work site premises, Green v. Glen Oaks Nursing Ctr., 722 So. 2d 147 (Miss. Ct. App. 1998). This is true whether the employer owns the parking lot or has use of it by license. In the case of Adams v. Lemuria, Inc., 738 So. 2d 295, (Miss. Ct. App. 1999) an employee was kidnapped by an unknown assailant when she arrived at work and exited her car after parking in the parking lot that was licensed to her employer through his lease with the shopping center in which he was a tenant. Her assailant forced her back into her car at gunpoint and drove out of the parking lot. The employee’s injuries occurred when she escaped from the moving vehicle, after it had left the premises. The court held even if the parking lot was not owned by the employer, if the use was provided for by a license between the employer-tenant and the shopping center, there was liability. Because the abduction was reasonable incidental to the employment, the injuries were compensable.
In Jesco, Inc. v. Cain, 954 So. 2d 537 (Miss. Ct. App. 2007) an employee was struck by a car as he was crossing the street between his employer’s parking lot and the building in which he worked. His injuries were compensable. The court applied the “special hazards” exception to the “going and coming” rule. The exception applies when there is (1) the presence of a special hazard at the particular off-premises point, and there is (2) a close association of the access route with the premises, so far as going and coming are concerned. The existence of an impractical alternate route will not bar recovery.
Intentionally Self-Inflicted Injury or Death
No compensation is payable if the proximate cause of the injury is the willful intent of the claimant to injure himself or another. Suicide can be compensable if shown to be an effect of psychological consequences of a compensable injury to the extent that the claimant became incapable of knowing the consequences of his or her actions. In Prentiss Truck & Tractor Co. v. Spencer, 228 Miss. 66, 87 So. 2d 272 (1956) the court determined the suicide was compensable because employee was suffering from depressive insanity and did not have the mental capacity to determine the consequences, that his mental condition was brought about by the injury received while working for his employer, and that his reasoning facilities were so far impaired that his act of self destruction was not voluntary and willful. Benefits have likewise been paid to an employee who overdosed on medication prescribed for a compensable injury after consumption of alcohol, Kelly Bros. Contractors, Inc. v. Windham, 410 So. 2d 1322 (Miss. 1982).
Employee’s Violation of the Law, Intoxication, and Illegal Use of Drugs
Once an employer has implemented a written policy for drug and alcohol testing in accordance with Miss. Code Ann. Sec. 71-7-1, an employer who has probable cause to suspect that a worker’s injury was occasioned primarily by the worker’s intoxication or the use of controlled substances to the extent that the worker’s normal faculties were impaired, the employer may require that the worker be tested for the presence of alcohol or controlled substances. The results of the test shall be admissible on the issue of causation in determining the application of the intoxication defense.
For injuries on or after July 1, 2012, in the event that an employee sustains an injury at work or asserts a work-related injury, the employer shall have the right to administer drug and alcohol testing or require that the employee submit himself to drug and alcohol testing. If the employee has a positive test indicating the presence, at the time of injury, of any drug illegally used or the use of a valid prescription medication(s) taken contrary to the prescriber’s instructions and/or contrary to label warnings, or is legally intoxicated by alcohol, it shall be presumed that the proximate cause of the injury was the use of an illegal drug, improper use of a valid prescription, or intoxication due to the use of alcohol. The results of the tests, employer administered or otherwise, shall be considered admissible evidence solely on the issue of causation. No cause of action for defamation of character, libel, slander or damage to reputation arise in favor of any person against an employer under the provisions of this section. Miss. Code Ann. Sec. 71-3-121.
Employee’s Violation of Positive Orders of Employer
There is no provision in the MWCA regarding an employee’s violation of a company rule, safety or otherwise. If an employee is injured in an activity prohibited by the company rules, the injury is compensable unless the activity is totally outside the employment. Sanderson Farms, Inc. v. Deering, 909 So. 2d 1169 (Miss. Ct. App. 2005).
Compensable injury to an employee “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.” Miss. Code Ann. Sec. 71-3-3(b). When an employee is injured at their place of employment by the intentional act of a third party, it must be determined if the risk of injury arose out of the employment or from the employee’s personal, non-employment activities.
The injury does not arise from a risk connected with the employment if an employee is assaulted by a third party involving a personal matter. Dewberry v. Carter, 218 so. 2d 27 (Miss. 1969), personal reason for shooting night duty worker; Ellis v. Rose Oil Co. of Dixie, 190 So. 2d 450 (Miss. 1966), worker killed by vengeful husband. The same holds true if an employee is assaulted by a co-employee and the assault resulted from a personal vendetta. Sanderson Farms, Inc. v. Jackson, 911 So. 2d 985 (Miss. Ct. App. 2005), skull fracture over argument involving personal loan; Hawkins v. Treasure Bay Hotel & Casino, 813 So. 2d 757 (Miss. Ct. App. 2001), off-premises stabbing over personal items.
An injury has been found compensable if the assault is by a co-employee or third party and the activity causing the injury was reasonably incidental to the employment or at a place the employment reasonably placed the worker. Kerr-McGee Corp. V. Hutto, 401 So. 2d 1277 (Miss. 1981), on premises at a location the work placed the worker when assaulted by his employer; Green v. Glen Oaks Nursing Center, 722 So. 2d 147 (Miss. Ct. App. 1998), assault in work parking lot shortly before work shift.
The MWCA does not specifically address injury or death which occurs as a result of military or terrorist activities. However, compensability could possibly be found under the positional risk doctrine where there is no requirement that the employment created the risk or hazard that caused the injury, but proof only that
(1) an act of nature or other neutral force caused the injury; and
(2) the employee was at a place with some reasonably employment connection.
Calculation of Average Weekly Wage
In calculating the average weekly wage (AWW), the statute provides three mutually exclusive methods:
(1) where the employee has worked 52 weeks, and missed less than seven unpaid days during that time, total earnings are divided by 52 to determine AWW. If the employee missed more than seven unpaid days, convert the lost time into work weeks, subtract that number from 52, and then divide total earnings by the new number, or
(2) where the employee worked less than 52 weeks prior to injury, divide the total earnings by the number of weeks worked, unless
(3) the employee worked such a short time that computing the AWW by weeks worked is impractical and would not be fair and just to both parties. In this case the AWW used will be of a similarly situated employee.
If an employee has two different jobs, simultaneously, with the same employer at the time of injury, then the wages earned in both will be considered in calculating the AWW. Lost wages due to the injury from a job held at the same time, but not with the same employer, will not be included in calculating AWW.
Benefits are limited by the state AWW which is determined annually by the Mississippi Workers’ Compensation Commission. The maximum compensation rate will be 66-2/3% of the state AWW. The commission enters an order each year setting out the weekly maximum compensation rate for injuries occurring during the calendar year. For 2013 the weekly maximum compensation rate is $449.12. Therefore, if an employee injured in 2013 has an AWW of $800.00 he will not be paid 66-2/3% of that amount ($533.32) as it would exceed the state weekly maximum of $449.12. He will only be entitled to $449.12 per week. The maximum and minimum ($25.00) rate will remain the same throughout the life of the claim. The overall 2013 lifetime maximum payment is $202,104.00.
Total DisabilityThere are two categories of total disability:
(1) temporary total and
(2) permanent total.
Temporary Total Disability (TTD) benefits are generally payable when the employee is completely unable to work due to the injury but the disability is not expected to be permanent and are typically paid until the employee reaches MMI. Miss. Code Ann. Sec. 71-3-17(b). TTD benefits shall be 66-2/3% of the AWW of the injured employee, not to exceed 66-2/3% of the average weekly wage for the state, per week. Said benefits are not to exceed 450 weeks in duration. If there is a conflict in medical opinions of whether or not the employee has reached MMI, and benefits have been terminated by the carrier, then the employee may demand a hearing before the Commission upon five days notice to the carrier for a determination of whether or not, in fact, the employee has reached MMI. Temporary disability benefits can be suspended if the employee fails to obtain medical treatment or attend medical appointments but can only be done pursuant to an order from the ALJ and/or MWCC. There is no minimum payment for temporary total disability.
In the case of Permanent Total Disability (PTD) the compensation shall be 66-2/3% of the AWW of the injured employee, not to exceed 66-2/3% of the average weekly wage for the state per week, nor shall it be less than $25.00 per week, and shall be paid to the employee not to exceed 450 weeks or an amount greater than the multiple of 450 weeks times 66-2/3% of the average weekly wage for the state. Loss of both hands, both arms, both legs, both eyes, or of any two thereof shall constitute permanent total disability. In all other cases permanent total disability shall be determined in accordance with the facts. Miss. Code Ann. Sec. 71-3-17.
There are two categories of partial disability:
(1) temporary partial and
(2) permanent partial.
Temporary Partial Disability (TPD) benefits are payable when the employee experiences a decrease in earning capacity before MMI and typically occurs when the employee returns to work with temporary work restrictions and, due to the injury, is unable to earn the same wages earned prior to the injury. Miss. Code Ann. Sec. 71-3-21. The benefit paid is 66-2/3% of the difference between the injured employee’s AWW before the injury and his wage earning capacity after the injury in the same or other employment, subject to the same maximums as TTD benefits. A typical scenario that arises is when the employee has been released to return to light duty work and refuses to return, even though the employer is willing and able to accommodate the restrictions. Arguably, TPD benefits are not owed because the employee is under a duty to make a reasonable effort to return to work. On th other hand, if the employer is unable or unwilling to provide light duty within the assigned restrictions, then employee’s benefits would continue at the same rate paid for TTD.
Permanent Partial Disability (PPD) benefits are payable after the employee reaches MMI and is left with a disability that is less than total but permanent. Miss. Code Ann. Sec. 71-3-17(c). Compensation is 66-2/3% of the AWW of the employee, subject to the maximums as to weekly benefits and shall be paid following compensation for TTD and begins on the date when the employee reaches MMI, which refers to the time when the employee’s physical improvement from the work-related injury has stabilized and no further improvement is medically anticipated. Permanent benefits also fall into two categories, scheduled members and “body as a whole”. Compensation for loss of a member is set out by statute, Miss Code Ann. Sec. 71-3-17(c)(1-23). “Body as a whole” injuries are not set out by statute but typically include back, neck, head and psychological injuries and are valued by loss of wage earning capacity.
Impairment RatingThe permanent impairment rating should be obtained from the employees treating physician and calculated by the AMA Guide to the Evaluation of Permanent Impairment. Once an impairment rating is established, that percent is used to calculate the number of weeks allowed for loss of a scheduled member and benefits are paid for that number of weeks. (For example, number of weeks compensation for loss of a leg is 175 weeks under the schedule. If the impairment rating is 20% then compensation at a minimum would be paid for 35 weeks (175 x 20% = 35). If a partial impairment of a scheduled member causes the employee to be unable to perform substantial acts which are required in their usual occupation, benefits may not be limited to the proportion of the medical/anatomical impairment rating of the scheduled member and the employee is often entitled to more than just the permanent impairment rating. In considering the evidence establishing the impact of the impairment (including but not limited to significant medical treatment, limitations in range of motion, permanent restrictions, pain, education, work history, age of employee, and transferable work skills) it is the extent of the loss of use that is taken into consideration in determining whether there is total or partial loss of use of the member. Courts have referred to this greater loss of use as “industrial loss of use” and in such a case the ALJ will often award 2 to 3 times the rating but can make a determination that there is up to 100% industrial loss of use. The ALJ weighs the evidence and there is no formula for the percent loss of use as long as it is fair and supported by the evidence.
Vocational rehabilitation is not mandatory in Mississippi. 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. Miss. Code Ann. Sec. 71-3-19.
Return to Work with Loss of Earnings
If an employee returns to work earning less than his pre-injury wages, benefits are payable at 66-2/3% of the difference between the pre-injury AWW and post injury earning capacity, subject to the maximums.
Earning Power Assessment
In determining loss of wage earning capacity there are a number of factors to be considered in addition to the actual wages received prior to the injury. A determination must be made regarding the wage that would have been paid in the labor market under normal employment conditions considering employee’s age, training, education and other factors. “Any factor or condition which causes actual post injury wages to become a less reliable indicator of earning capacity must be considered.” General Elec. Co .v. McKinnon, 507 so. 2d 363 (Miss. 1987). An increased wage due to a rise in wage levels are not part of wage earning capacity. Employer’s continued payment of the same salary to a worker with a permanent impairment was considered “sympathy wages”, not paid for actual work and, therefore, not indicative of wage earning capacity, Harper Foundry & Mach. Co. v. Harper, 232 Miss 873, 100 So. 2d 779 (1958).
Employer Job Offer
When the employee, having reached maximum medical improvement, reports back to his employer for work, and the employer refuses to reinstate or rehire him, then the employee has met his burden of showing total disability. The burden then shifts to the employer to prove a partial disability or that the employee has suffered no loss of wage earning capacity, Jordan v. Hercules, Inc., 600 So. 2d 179 (Miss. 1992). If the employee does return to work then there is no presumption of permanent total, but the employee can argue that he is a sheltered employee, that the job is only temporary, or other similar factors that could result in benefits being awarded.
Assessment of the earning power of an employee, post injury, can be calculated by a vocational expert by evaluating the employee’s physical (including restrictions), vocational, and mental capabilities to determine their employment potential. If the employee cannot return to work with their former employer, a vocational expert can conduct an assessment to determine other types of work they are able to perform based on their education, training, job duties of their prior employment and transferrable skills as well as perform a labor market search and provide job listings and wage information in the local area.
Amputation or Loss of Use
Compensation for permanent loss or loss of use of a scheduled member is paid as follows:
|Member lost||# of Weeks Compensation|
|Toe other than Great Toe||10|
|Breast, female, one||50|
|Breast, female, both||150|
Compensation for permanent total loss of use shall be the same as for loss. Partial loss or partial loss of use may be for proportionate loss or loss of use of the member. Loss of two major scheduled members automatically triggers 450 weeks of benefits. Miss. Code Ann. Sec. 71-3-17 (c)(1-16). Under Mississippi law, you can take a scheduled member injury out of the schedule if the claimant is determined to be permanently and totally disabled.
There is a Second Injury Fund that provides if an employee who has previously lost, or lost the use of, one (1) hand, one (1) arm, one (1) foot, one (1) leg, or one (1) eye, becomes permanently and totally incapacitated through the loss, or loss of use, of another member or organ, the employer shall be liable only for the compensation payable for such second injury. In addition to such compensation and after the completion of the payment therefor, the employee shall be paid the remainder of the compensation that would be due for permanent total incapacity, out of a special fund known as the “Second Injury Fund”, created for such purpose. Miss. Code Ann. Sec. 71-3-73.
A hernia is also considered a scheduled injury. In all cases for hernia the hernia or rupture must be the result of sudden effort, severe strain, or the application of force to the abdominal wall, accompanied by severe pain. Physical distress must be noticed immediately by the employee and reported to his employer within a reasonable time and must be to the degree to require the attendance of a physician or surgeon within five (5) days after the injury. If the medical provided includes surgical repair of the hernia or rupture, compensation is payable under the provisions of Miss. Code Ann. Sec. 17(b) (temporary total disability), not to exceed a period of twenty-six (26) weeks. In case the employee refuses to permit surgery, the employer shall supply all necessary medical treatment to enable said employee to resume work, and shall pay compensation under Miss. Code Ann. Sec 17(c), not to exceed a period of thirteen (13) weeks. If death occurs within one (1) year, either from the hernia or rupture or from the operation thereof, compensation shall be paid as provided in other death cases.
The commission, in its discretion, is authorized to award proper and equitable compensation for serious facial or head disfigurements not to exceed Five Thousand Dollars ($5,000.00). No such award shall be made until a lapse of one (1) year from the date of the injury resulting in such disfigurement. Miss. Code Ann. Sec. 71-3-17 (c)(24).
Loss of Sight
Loss of an eye is covered as a scheduled member with compensation paid for 100 weeks. Compensation for loss of binocular vision or for eighty percent (80%) or more of the vision of an eye shall be the same as the loss of the eye. Miss. Code Ann. Sec. 71-3-17(c)(20).
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. Miss. Code Ann. Sec. 71-3-17(c)(17).
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. Any installment of compensation payable without an award, if not paid within fourteen (14) days of the due date is subject to a 10% penalty. 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%). Miss. Code Ann. Sec. 71-3-17(5) and (6).
The Commission can determine that interest might also be payable on late compensation payments at the legal rate established by the state.
The commission shall regulate, by rules published and available to the parties, the summoning, attendance, use, and compensation of witnesses, and determine the qualifications of specialists and their scale of fees as expert witnesses. Unless otherwise provided by the commission, witnesses summoned in a proceeding before the commission or whose depositions are taken shall receive the same fees and mileage as witnesses in civil cases. Miss. Code Ann. Sec. 71-3-57.
If the court having jurisdiction of proceedings in respect of any claim or compensation order determined that the proceedings have been instituted or continued without reasonable ground, the costs of such proceedings shall be assessed against the party who has so instituted or continued such proceedings. If the full commission determines that proceedings in respect to a claim have been instituted, continued or delayed, including by way of appeal to the commission, without reasonable ground, the full commission shall require the party who has so instituted, continued or delayed such proceedings or the attorney advising such party, or both, to pay the reasonable expenses, including attorney fees, caused by such institution, continuance or delay to the opposing party. In addition to requiring the payment of reasonable expenses, including attorney fees, to the opposing party the commission may levy a civil penalty not to exceed ten thousand dollars ($10,000.00) against such party, or attorney advising or assisting such party, or both, payable to the commission. Miss Code Ann. Sec. 71-3-59.
No claim for legal services or any other services rendered in respect of a claim or award for compensation shall be valid unless approved by the commission. Any person who receives any fee, other consideration, or any gratuity on account of services so rendered, unless such is approved by the commission or such court, or who makes it a business to solicit employment for an lawyer or himself in respect of any such claim or award for compensation, shall be guilty of a misdemeanor and, upon conviction, shall for each offense be punished by fine or not more than one thousand dollars ($1,000.00) or by imprisonment not to exceed one year, or by both. Miss Code Ann. Sec. 71-3-63.
In no instance shall the amount received by an attorney for claimant for an appearance before the commission exceed twenty-five percent (25%) of the total award of compensation. Legal services rendered where no motion to controvert has been filed by either employer or employee shall be considered consultation, and that factor shall be taken into consideration in awarding a fee. Attorneys may not recover attorney fees based upon benefits voluntarily paid to an injured employee for temporary or permanent disability. Any settlement negotiated by an attorney shall not be considered a voluntary payment. Miss. Code Ann. Sec. 71-3-63(3).
Child and Spousal Support Liens
Child and spousal support lien are enforceable against compensation benefits. A lien for unpaid and delinquent child or spousal support obtained in a court of appropriate jurisdiction by the Mississippi Department of Human Services, Division of Child Support Enforcement, will attach to benefits. Notice of the lien must be filed with the Executive Director of the Mississippi Workers’ Compensation Commission who will then place the employer/carrier on notice of the lien. Once that notice is received, the lien attaches to the compensation benefits payable to the employee. Miss. Code Ann. Sec. 71-3-129. Typically, MDHS, includes in their correspondence to the Commission, an income withholding order that specifies the monthly payments as well as weekly and bi-weekly breakdowns. The employer/carrier has the responsibility for withholding the lien amount from employee compensation benefits and paying that amount direct to MDHS.
If an employee dies as a result of a work injury, benefits payable are established under the statute. Death benefits shall in no case be paid for a longer period than 450 weeks or for a greater amount than the multiple of 450 weeks times 66-2/3% of the AWW for the state. An immediate lump sum payment of $250.00 ( $1,000.00 for injuries on or after July 1, 2012) is owed to a surviving spouse in addition to other compensation benefits. Reasonable funeral expenses, not to exceed $2,500.00 ($5,000.00 if death occurred on or after July 1, 2012) are owed even if the expenses were paid by other insurance or another source. Miss. Code Ann. Sec. 71-3-25. Additionally, a payment of $300.00 for a decedent with dependents, $500.00 if there are no dependents, should be paid to the Mississippi Workers’ Compensation Commission Second Injury Fund. All questions of dependency shall be determined as of the time of the injury and 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. Miss. Code Ann. Sec. 71-3-25(g).
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 of 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. http://law.justia.com/codes/mississippi/2013/title-71/chapter-3/general-provisions/section-71-3-3/index.htmlMiss. Code Ann Sec. 71-3-3(n).
The term “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. The definition includes persons who are under eighteen (18) and also persons who, though eighteen 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 or older, until his 23rd birthday, who is dependent upon the deceased and pursuing a full-time education. Miss. Code Ann. Sec. 71-3-3(l) “Grandchild” means a child as above defined of a “child” as above defined. In the case of a minor child or grandchild, the chancery court must approve a guardian to receive the death benefits and a minor settlement hearing must be held.
Parents and Siblings
“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. “Brothers” and “sisters” include step brothers and stepsisters, half brothers and half sisters, and brothers and sisters by adoption, but does not include married brothers and sisters unless wholly dependent on the employee. Miss. Code Ann. Sec. 71-3-3(l). Grandparents who were dependent on the deceased employee are also possible beneficiaries. Miss. Code Ann. Sec. 71-3-25(e).
Amounts of Benefits
If there is a surviving spouse and no child of the deceased, such spouse will receive thirty-five percent (35%) of the AWW of the deceased during widowhood or dependent widowhood and, if there is a surviving child or children, the additional amount of ten percent (10%) for each child. The total amount for weekly death benefits cannot exceed 66-2/3% of decedent’s AWW or the statutory maximum. A surviving spouse is entitled to benefits only during widowhood and if a lump sum payment is made it must take into account the probability of the death or remarriage of the surviving spouse. In the case of death or remarriage of the surviving spouse, any surviving child’s compensation will increase to fifteen percent (15%), in no case to exceed in total 66-2/3% of the AWW, subject to the maximum limits.
If there is a surviving child or children but no surviving spouse, each child will receive twenty-five percent (25%) of the AWW, in no case to exceed in total 66-2/3% of the AWW, subject to the maximum limits.
If there is no surviving spouse or children, or if the total amount payable is less than 66-2/3% of the AWW, subject to the maximum limits, 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 person, and for the support of each parent or grandparent of the deceased, if dependent at the time of injury, fifteen percent (15%) of such wages, but in no case to exceed in total 66-2/3% of the AWW, subject to the maximum limits.
The employer shall furnish such medical, surgical, and other attendance or treatment, nurse or hospital service, medicine, crutches, artificial members, and other apparatus for such period as the nature of the injury or the progress of recovery shall require. Miss. Code Ann. Sec. 71-3-15(1).
Case law specifies that if there is evidence that a wheelchair van is reasonably necessary, it may well qualify as “other apparatus” for which medical benefits shall be paid, Georgia Pacific v. Milton James, 733 So. 2d 875, (Miss. Ct. App. 1999). The commission has routinely ordered the modification of living quarters to accommodate disabilities from work related injuries. Since the statute requires treatment by a competent physician, the court has held this to mean treatment by those engaged in any healing disciplines dealing with the prevention, cure and alleviation of diseases. Such treatment does include chiropractic treatment, but if a chiropractor is chosen as the treating physician, the Mississippi Workers’ Compensation Medical Fee Schedule limits the chiropractic treatment to fifteen visits or thirty days, whichever comes first, (Miss. Workers’ Compensation Medical Fee Schedule, Physical Med., II.A.2) unless additional treatment is authorized by the employer/carrier.
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 and such other specialists to whom he is referred by his chosen physician to administer medical treatment. 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, for injuries on or after July 1, 2012, if the employee is treated for his alleged injury or occupational disease by a physician for six (6) months or longer, or if the employee has surgery for the injury or occupational disease performed by a physician, then that physician shall be deemed the employee’s selection. Except in an emergency situation, 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 those services.
Selection of appropriate providers for diagnostic testing and/or analysis, including but not limited to MRI, CAT scans, physical and occupational therapy, chronic pain management, EMG/NCV and FCE shall be at the direction of the treating physician.
Neither the 10% nor the 20% penalty that may apply to late payment of compensation benefits is applicable to medical benefits.
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, the necessity for the services, 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 fee schedule and guidelines can be obtained from the MWCC for a fee.
Travel expenses to and from medical treatment are the responsibility of the employer/carrier and the rate is consistent with the mileage rate for state employees.
No ex-parte communication is allowed with employee’s treating physician once the case becomes controverted.
The employer/carrier has the right to an employer’s medical evaluation (EME) of the employee by a physician of their choosing to address the need for medical treatment, extent of disability and other issues. Miss. Code Ann Sec. 71-3-15(1); Commission General Rule 9. Whenever in the opinion of the commission a physician has not correctly estimated the degree of permanent disability or the extent of 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 for an independent medical exam (IME). Miss. Code Ann. Sec. 71-3-15(2); Commission General Rule 9. The commission may also order an IME to resolve a question of causation or other issue which requires a medical opinion.
Refusal of Medical Treatment
When an injured employee refuses recommended surgery or other medical treatment, the MWCA provides that benefits may be suspended if the refusal was unreasonable. Miss. Code Ann. Sec. 71-3-15(1).
SUBROGATION OR CREDIT
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, subject to subrogation in favor of the accident or health insurance company. Reimbursement to the accident or health insurance company by the carrier or employer shall constitute payment of medical expenses under MWCA. Miss Code Ann. Sec. 71-3-15(7).
Under Mississippi law, an employee or his dependents in a death claim, can pursue a claim for workers’ compensation benefits and a claim against a third party. Miss. Code Sec. 71-3-71. Upon filing of the third party suit by the employee, the employer/carrier is authorized to intervene and may collect reimbursement for compensation and medical paid on the claim out of the proceeds after costs of collection, including employee’s attorney fees, are paid. The employer/carrier that has paid benefits also has an independent right to maintain a civil action against a third party and is authorized to file the complaint against the third party in the name of the employer/carrier, the injured employee or his beneficiaries, or all. Miss. Code Ann. Sec. 71-3-15(4), 71-3-71.
Miss. Code Ann. Sec. 71-3-71 clearly states that the employer or carrier’s right to reimbursement is conditioned upon the employer or carrier’s joinder or intervention in the third party action.
In Liberty Mut. Ins. Co. v. Shoemake,111 So. 3d 1207, 2013 Miss. LEXIS 190 (Miss. 2013) the court held that Liberty Mutual waived its right to judicial enforcement of its statutory subrogation claim by failing to join or intervene. An employer or carrier who knows of a suit against a third party and fails to join in or intervene waives their statutory right to repayment.
In no instance shall the amount recovered by an attorney on behalf of an employee exceed twenty-five percent (25%) of the total award of compensation. An attorney may not recover a fee based on benefits voluntarily paid to an injured employee for temporary or permanent disability.
If medical treatment is paid by a health insurance carrier for a work related injury, that health insurance carrier may put the workers compensation employer/carrier on notice of their lien. Reimbursement to the health insurance company by the carrier or employer shall constitute payment of medical expenses under MWCA. Miss Code Ann. Sec. 71-3-15(7).
Credits for excess disability benefits paid shall be allowed in future permanent disability payments. No actual repayment of such excess shall be made to the employer or carrier. Miss Code Ann. Sec. 71-3-7(3)(d).
Mississippi does not have any certification programs for attorneys to become certified or specialized in the area of Workers’ Compensation Law. However, the Mississippi Bar does have a workers’ compensation section that bar members may join and is composed primarily of attorneys who practice workers’ compensation law. This section regularly publishes a newsletter and sponsors CLE seminars.
Claims professionals are not required to be licensed in Mississippi to manage or adjust claims if they are employed by an insurance company. If they are employed by a third party administrator, they must obtain a Property and Casualty license from the Mississippi Department of Insurance, which is a general license for casualty claims. There is no separate license pertaining specifically to workers’ compensation claims. Applicant must attend training and pass a test to obtain a license unless the applicant is licensed as an adjuster in another state which the Mississippi Department of Insurance has a reciprocity agreement.
LITIGATION AND APPEAL
Workers’ Compensation Proceedings
Miss. Code Ann. Sec. 71-3-85. The Workers’ Compensation Commission consists of three (3) members appointed by the Governor by and with the consent of the Mississippi State Senate, one for a term of two years, one for a term of four years, and one for a term of six years. Upon the expiration of each term, the governor shall appoint a successor for a term and six years, and, thereafter, the term of office of each commissioner shall be for six years. By reason of his previous vocation or affiliation, one member shall be a person who can be classed as a representative of employers and one shall be classed as a representative of employees. The other member shall be an attorney with at least five years’ active practice in Mississippi prior to appointment. The governor shall designate the chairman of the commission, whose term shall run concurrently with his appointment as a commissioner.
The commission shall have the powers and duties necessary for effecting the purposes of the MWCA, including the powers of a court of record for compelling the attendance of witnesses, examination under oath, and compelling the productions of documents and other paper relevant to the determination of a claim for compensation, and the power to adopt rules and regulations and make or approve the forms relating to notices of injuries, payment of claims and other purposes.
Appointment of Workers’ Compensation Judges
Miss. Code Ann. Sec. 71-3-93. The commission shall appoint, with the consent of the governor, no more than eight (8) administrative judges (ALJs).
Qualifications of ALJ
An administrative judge shall be a member of the Mississippi State Bar and shall have a minimum of three years’ experience in the practice of law. For the purpose of conducting hearings and making decisions upon claims, the judges shall have the authority of a commissioner.
Proceedings are governed by the Rules of Mississippi Workers’ Compensation Commission General Rules and Procedural Rules. These rules provide direction for reporting of injuries and deaths, filing claims, discovery, pre-hearing statements, hearings, evidence, subpoenas and other matters. The General and Procedural Rules can be found on the Mississippi Workers’ Compensation Commission website: www.mwcc.state.ms.us.
The authority of the commission and its duly authorized representatives to investigate and determine claims for compensation shall include the right to enter the premises where an injury occurred, to ascertain its causes and circumstances.
Workers’ Compensation Appeal
An ALJ’s written order on a hearing on the merits of a case will become final unless within twenty-three (23) days of the date of the decision, an appeal is filed to the full Commission. The three commissioners sit in appellate capacity and, therefore, do not hear new evidence but do review the record, consider briefs, and hear oral arguments if requested by the parties and agreed to by the commissioners. By written order the Commission will affirm, reverse, or amend the ALJ’s decision.
Within thirty (30) days of the Commission’s Order, either party can enter an appeal. Prior to July 1, 2011, the appeal was to the Circuit Court of the county where the employee was injured. Effective July 1, 2011, the appeal goes directly to the Mississippi Supreme Court which will either hear the appeal or assign it to the Court of Appeals. The appellate court will not disturb the Commission’s findings if those findings are supported by substantial evidence. Typically an appeal will be assigned to the Court of Appeals and that decision can be reviewed by the Mississippi Supreme Court upon granting certiorari.
There is no requirement for mediation.
The Commission has adopted a policy statement concerning the use of mediation as a tool to help resolve workers’ compensation claims. The Commission believes that the parties should have the freedom to try reasonable, alternative methods of dispute resolution and fully support the use of mediation in workers’ compensation claims. The Commission does not regulate mediation, and does not endorse or recommend any particular mediation procedures or lists of mediators. The Commission’s ultimate authority to review and approve, or not, any settlement agreement reached through mediation is all the control needed by the Commission.
Informal Settlement Conferences
No requirement but often encouraged by the ALJ.
Compromise and Release
The parties may enter into a compromise settlement of a controverted or non-controverted claim, commonly known as a 9(i) settlement. The Commission will approve settlements in which there is a dispute about the extent of disability, reasonable, necessary and causally related medical treatment or whether the injury and resulting disability arose out of the course and scope of employment. The commission also has full authority to adjudicate the disposition of death claims. The settlement must be fair and reasonable and is considered on a case by case basis. Future medical treatment can be settled.
Upon reaching a compromise settlement, a Petition for approval on behalf of the claimant, joined in by the Employer, along with a proposed order, is submitted to the Commission. A claimant may or may not have an attorney represent them in a compromise settlement. The claimant must sign the petition for approval of settlement under oath and their must be medical evidence that the claimant has reached MMI. If the claimant is under a lien for child support or spousal support payments, the commission will not approve a settlement without written agreement from the Mississippi Department of Human Services (MDHS). In most cases, MDHS requires that the employee/carrier make direct payment to the agency out of the settlement proceeds and will sometimes reduce the lien amount once a settlement agreement has been reached with the claimant. If all parties are represented by an attorney, the signed settlement papers and order may be mailed to the Commission or may be presented to the Commission on Tuesdays or Wednesdays. If the claimant is not represented by an attorney, they must come to the Commission offices on Tuesday or Wednesday or at some other designated location on a date set by the commission or an administrative law judge. A legal representative of the employer/carrier must meet with the claimant and the commissioner or judge. Upon review of the settlement papers and medical reports the settlement will be approved and the order signed if the commissioner or judge finds that the proposed settlement appears to be fair and reasonable, that it is understood by the claimant, and is in the best interest of the claimant.
The commission will not accept for filing any release and will not compel a claimant to execute a release. The drafting and execution of the release is between the parties.
Employers may either secure coverage with an insurance carrier authorized to insure such liability in the state or, if exempted from doing so and approved by the commission, provide coverage to their employees as a “self-insured” employer.
General Rule Where Employer is Uninsured
An employer required to secure the payment of compensation under the MWCA and who fails to do so is guilty of a misdemeanor and, upon conviction, shall be subject to a fine of not more than $1,000.00 or by imprisonment for not more than one year, or both. If the employer is a corporation, the president, secretary and treasurer shall also be severally liable regarding such fine and imprisonment and also shall be severally personally liable, jointly with the corporation, for any compensation or other benefit in respect to any injured employee. In addition to said criminal penalties, the commission may assess a civil penalty in an amount to be determined on a case by case basis, but not to exceed $10,000.00. Any civil penalty not voluntarily paid may be collected by civil suit brought by the commission. Miss. Code Ann. Sec. 71-3-83.
Damages by Action at Law Where Employer is Uninsured
If an employer, required to do so, fails to secure payment of compensation under the MWCA, an injured employee, or his legal representative in case death results from the injury, may elect to claim compensation, or to maintain an action at law for damages on account of such injury or death. Employer/defendant, if sued in tort, will not be able to plead as a defense that the injury was caused by the negligence of a co-employee, that the employee assumed the risk, nor that the injury was due to the contributory negligence of the employee. Miss. Code Ann. Sec. 71-3-9.
Uninsured Employers Guaranty Fund
The Mississippi Insurance Guaranty Association (MIGA) provides payment of covered claims under certain insurance policies due to insolvency of the insurer. Workers’ compensation benefits are paid based on the applicable workers’ compensation laws and rules and MIGA law. MIGA represents that it will make every effort to ensure that the bi-weekly benefits continue without interruption pending any unavoidable delays due to the availability of the claims files and necessary information from the insolvent insurance company. Employee’s treating physician will need to contact MIGA for authorization and billing information.