BRIEF OF APPELLANT MATTHEW LADNER

Transcription

1 IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI CASE No WC MATTHEW LADNER (Claimant) APPELLANT VERSUS ZACHRY CONSTRUCTION (Employer) and ZURICH AMERICAN INSURANCE COMPANY (Carrier) APPELLEES APPEAL FROM THE HARRISON COUNTY CIRCUIT COURT BRIEF OF APPELLANT MATTHEW LADNER (Oral Argument Requested) JAMES K. WETZEL, ESQUIRE (MS Bar GARNER J. WETZEL, ESQUIRE (MS Bar JAMES K. WETZEL, P.A th Avenue Post Office Box I Gulfport, MS (228) (of c); (228) (fax) ATTORNEYS FOR APPELLANT (Claimant) Jkwetzel@cableone.net

2 IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI CASE No WC MATTHEW LADNER (Claimant) APPELLANT VERSUS ZACHRY CONSTRUCTION (Employer) and ZURICH AMERICAN INSURANCE COMPANY (Carrier) APPELLEES CERTIFICATE OF INTERESTED PERSONS The undersigned counsel of record certifies that the following listed persons have an interest in the outcome of this case. These representations are made in order that the judges of this Court may evaluate possible disqualifications or recusal. Matthew Ladner (Claimant) James K. Wetzel and Garner J. Wetzel with the law firm of James K. Wetzel & Associates Zachry Construction (Employer) and Zurich American Insurance Company (Carrier) Walter J. Eades with the law firm of Dukes, Dukes, Keating & Faneca Honorable Melba Dixon Mississippi Workers' Compensation Commission Appellant Counsel for Appellant Appellees Counsel for Appellees Administrative Law Judge Honorable Lawrence P. Bourgeois, Jr. Harrison County, First Judicial District, Mississippi Circuit Court Judge?}..../ /' (~L--:2-/ C..,c'. JAMES",K: WETZEL,! / G~R J. WETZ)lt, Coun~( for t" Matthew La9rier, Appepant, I l..,/ / /' / '-.,/ ~.. fi /

3 TABLE OF CONTENTS CERTIFICATE OF INTERESTED PERSONS.... TABLE OF CONTENTS TABLE OF AUTHORITIES STATEMENT OF THE ISSUE ii iii I STATEMENT OF THE CASE... 2 SUMMARY OF THE ARGUMENT FACTS OF THE CASE... 5 STANDARD OF REVIEW ARGUMENT... 9 CONCLUSION CERTIFICATE OF SERVICE ii

4 TABLE OF AUTHORITIES CASES: Bechtel Construction Co. v. Bartlett, 371 So.2d 398, 401 (Miss. 1979) Brown v. F. W Woolworth Co., 348 So.2d 236 (1977) Central Electric Power Assn. v. Hi 110 So. 2d 351, 356 (Miss. 1959)... 15,17,18,21 Delta Drilling Co. v. Cannette, 489 So. 2d 1378 (Miss. 1986)... 8 Fortune Furniture Mfg. Co. v. Sullivan, 279 So.2d 644 (Miss. 1973) Gray v. Poloron Product of Miss., 347 So.2d 363 (Miss. 1977)... 18,19 Harpole Bros. Constr. Co. v. Parker, 253 So.2d 820 (Miss Miller Transporters Inc. v. Guthrie, 554 So.2d 917,918 (Miss. 1989) National Labor Relations Board v. Federal Pacific Electric Co., 441 F.2d 765,771 (C.A ) Parchman v. Amwood Products, Inc., 988 So.2d 346 (Miss. 2008)... 9, 10,21 citing George S. Taylor Construction Co. v. Harlow, 269 So. 2d 337, 338 (Miss. 1972) Russell v. Sohio Southern Pipelines, Inc., 112 So.2d 357,360 (Miss iii

5 CASES CONT'D: Shivers v. Biloxi-Gul.fPort Daily Herald, 110 So.2d 359 (Miss. 1959)... 13,20 South Central Bell v. Adem, 474 So.2d 584, 589 (Miss. 1985) Stuart's v. Brown, 543 So.2d 649 (Miss. 1989) Tanner v. American Hardware Corp., 119 So.2d 380 (Miss. 1960) STATUES: Miss. Code Ann (1972)... 16, 17, 18 OTHER: Dunn, Mississippi Workers Compensation, 45 (3,d Ed. 1982)... 9 Dunn, Mississippi Workers' Compensation, 271 (3,d Ed. 1982) Dunn, Mississippi Workers Compensation, 271, p. 334, 337 (3rd Ed. 1982)... 19,20 Dunn, Mississippi Workers Compensation, 289, p. 379 (3,d Ed. 1982) Dunn, Mississippi Workers Compensation, 318.l (3,d Ed. 1982) iv

6 STATEMENT OF THE ISSUE I. THE CIRCUIT COURT ERRED AS A MATTER OF LAW AND FACT IN AFFIRMING THE MISSISSIPPI WORKERS' COMPENSATION COMMISSION'S DECISION OF JANUARY 19, 2011, REVERSING THE ADMINISTRATIVE LAW JUDGE AS SAME IS ARBITRARY AND CAPRICIOUS AND NOT SUPPPORTED BY SUBSTANTIAL EVIDENCE AND CONTRARY TO LAW AND SHOULD BE REVERSED AND REMANDED. 1

7 STATEMENT OF THE CASE This is an appeal by Matthew Ladner, hereinafter referred to as "Ladner," who was a Claimant in a workers' compensation claim filed against his employer, Zachry Construction, and its carrier, Zurich American Insurance Company, hereinafter referred to as "Employer/Carrier." In the present workers' compensation claim, Claimant, Matthew Ladner, filed a Petition to Controvert on August 24, 2009, alleging that on December, , he received a work related ~ury to his back and legs. The Employer/Carrier admitted the injury and denied the compensability of the injury and did not pay any workers' compensation benefits because they alleged the statute oflimitations had expired on the matter. A hearing was held at the Harrison County Courthouse in Gulfport, Mississippi, on March 31, 2010, and the primary issue submitted to the administrative law judge for resolution was as follows: "1. Whether the Claimant's claim is barred by the two-year statute of limitations. 2. If the Claimant's claim is found not to be time barred, whether the Claimant is entitled to reasonable and necessary medical treatment by a physician of his choice." The full order of the administrative law judge which comprises fifteen (15) pages, was handed down on July 13, The administrative law judge concluded that the Claimant was "paid his wages in lieu of compensation thereby suspending the statute of limitations." (R.E.5). Feeling aggrieved, the Employer/Carrier appealed the order of the administrative law judge to the Full Commission. The order from the Full Commission dated January 19,2011, reversed the order of the administrative law judge. (R.E.6). The Claimant, feeling aggrieved, filed his appeal to the Circuit Court. (R.E.7). The Circuit Court of Harrison County affirmed the Commission's order. (R.E.S). Claimant, 2

8 Matthew Ladner, is appealing the Circuit Court's order dated February 23, 2012, affrrrning the decision of the Full Commission to this Honorable Supreme Court on the basis that the Full Workers' Compensation Commission and the Harrison County Circuit Court erred on issues of law and fact. Ladner, through his counsel hereinafter, will show that the decision of the Workers' Compensation Commission and the Circuit Court erred as a matter of law and is "clearly erroneous" and "adverse to the overwhelming weight of the evidence." The Commission's order fails to carry out the beneficent intent and purpose of the workers' compensation law. Therefore this Honorable Court should reverse the orders of the Full Commission and the Circuit Court. Further, Ladner would submit to this Honorable Court that the Commission's order is clearly erroneous although there may be some scant evidence in support. Based on the entire evidence, this reviewing Court will be left with the definite and firm conviction that a mistake has been made by the Full Workers' Compensation Commission and the Circuit Court in its findings of fact and in its application of the law. 3

9 SUMMARY OF THE ARGUMENT The Full Commission and the Circuit Court erred as a matter of law and acted arbitrarily and capriciously because the statute of limitations was tolled due to the payment of regular wages/salary by the Employer to Ladner. Specifically, Ladner was paid his regular salary from the date of injury to the date of maximum medical improvement without "earning" his wages. Ladner submits that payment of regular wages under these circumstances constitutes a "payment in lieu of indemnity benefits," prescribed by the Workers' Compensation Act, and is sufficient to suspend the two-year statute of limitations (the same as the payment of statutory workers' compensation temporary disability benefits). Ladner would submit to this Honorable Court that it will have to determine whether or not the Mississippi Workers' Compensation Commission, as the ultimate fact finder in workers' compensation hearings, will be allowed to totally disregard Ladner's testimony of his typical day on the job, while disabled from work. The Commission's decision failed to carry out the beneficent intent and purpose of the Workers' Compensation Law. Ladner was lulled by the Employer into thinking he did not need to file a worker's compensation claim because they continued to pay him his regular wages while he was injured and spending his time in a safety trailer. Ladner showed up for work where he sat and laid in a safety trailer watching television the super majority of his time "on the job." The other five percent of the time that he was not in the trailer, he sometimes engaged in hole watching, occasionally performed filing duties, and acted as a standby attendant during safety audits on occasion. The Commission arbitrarily and capriciously ignored the uncontradicted testimony of the Claimant himself Ladner was not and did not "earn" wages at the time he was showing up to his employment and sitting in the safety trailer. 4

10 FACTS OF THE CASE The Claimant filed a Petition to Controvert on August , alleging that he sustained a work-related injury to his back and legs on December 27, The Employer/Carrier filed an answer on October 16, 2009, admitting the injury. On or about December 14, 2009, the Claimant filed a Motion for Medical Treatment and Payment of Compensation Benefits. On or about January 6, 2010, the Employer/Carrier filed a Motion to Dismiss alleging that the Claimant's claim was barred by the two-year statute of limitations. The administrative law judge held a hearing on the statute oflimitations issue on March 31, At the time this matter was heard before the administrative law judge, it was established that Ladner was a 43-year old male, and a lifelong resident of the Mississippi Gulf Coast. (Tr. p. 5-6). Ladner testified that he began working for Zachry Construction Co., the Employer herein, in (Tr. p.8). Ladner worked as a scaffold builder, but also performed tasks such as jet riding, which required him to put on a large suit and drain chemicals. (Tr. p.8). Ladner testified that he was tearing down scaffolding on December 27,2006, when he felt something pop in his back and he immediately fell to the ground. (Tr. p.12). When Ladner was able to get up he reported his work accident to his supervisor. (Tr. p.12). Ladner was taken to see the safety director and was taken to the safety/first aid trailer for the remainder of the day. (Tr. p.12-b). Ladner missed a few days of work following the injury and upon his return to work, his symptoms got progressively worse and he informed his safety director, Frank Young, that he needed to see a doctor. (Tr. p.12, 16). Ladner testified that after two or three weeks of being in the safety trailer watching television until he could see a doctor. Ladner "finally" saw a company doctor on or about January 31, (Tr. p.16). Ladner was treated by Dr. Kevin Cooper in Pascagoula, Mississippi, who referred Ladner to Dr. Lee Kesterson, neurosurgeon. 5

11 Dr. Kesterson treated Ladner until he reached maximum medical improvement on May 20, (Tr. p.17, 20-21). Ladner testified that from the date of the injury on or about December 27, 2006, until he reached maximum medical improvement on May 20, 2008, he basically sat or lay in the safety trailer. (Tr. p.18, 23, 33). Upon his return to work, Ladner testified he continued to sit and or lay in the trailer not working. (Tr. p.l8). He said he would occasionally do filing, but such tasks would take only thirty to forty minutes of his otherwise eight hour day. (Tr. p. 8). Ladner testified that after Dr. Kesterson released him May 20, The Employer attempted to return Ladner to his pre-injury job of building scaffolds. (Tr. p.22-23). Ladner returned to his job as well as he could within his medical restrictions. (Tr. p.23). He remained on modified duty until he was laid off in December (Tr. p.25). Throughout the entire time of his injury he continued to receive his same hourly wage/salary. (Tr. p.17). With this evidence before the administrative law judge, the judge found by a preponderance of the evidence as follows: That the claimant's claim is not barred by the two-year statute of limitations. The evidence shows that the claimant sustained an admittedly compensable work-related injury on or about December The employer and carrier provided medical treatment to the claimant by the company physician, Dr. Kevin Cooper. Subsequently, he referred the claimant to Dr. Lee Kesterson, a neurosurgeon. He treated the claimant and placed him at maximum medical improvement with a 5% permanent impairment rating on May 20, 2008, as stipulated by the parties... The claimant testified that while he was under the care of Drs. Cooper and Kesterson, he spent approximately 95% of his time in the safety trailer, doing little or no work. Claimant said he spent the vast majority of his time either sitting or lying down watching television. However, he continued to receive his usual wage/salary. The employer and carrier admitted that the claimant continued to receive his usual wage/salary, but stated he earned the wage/salary paid to him. They contend that the claimant did not spend 95% of his time in the safety trailer, but was permitted to go to the trailer ifhe felt he needed to do so. 6

12 I am persuaded by a preponderance of the evidence presented that the claimant, prior to reaching maximum medical improvement for his work-related injury, did not perform the duties to earn the usual wage/salary paid to him by the employer. I, therefore, find that the claimant was paid his regular salary in lieu of compensation, until he reached maximum medical improvement on or about May 20, 2008, thereby suspending the two-year limitation period. Since the claimant filed his Petition to Controvert on August 24, 2009, his claim is not barred by the two-year statute oflimitations. Order of the Administrative Law Judge, pp (July 13, 2010). (R.E.5). The administrative law judge made these findings based on the testimony she observed and evaluated at the hearing. As stated, the administrative law judge was persuaded by a preponderance of the evidence, that the Claimant's claim was not barred by the two-year statute of limitations because prior to reaching maximum medical improvement for his work-related injury, Ladner did not perform the duties to earn the usual wage/salary paid to him by the Employer. The administrative law judge found that Ladner was paid his regular salary "in lieu of compensation," thereby suspending the two-year limitation period and the claim was not time barred. The Full Commission reversed the administrative law judge's order. The Commission held that the Claimant earned his wages, and Ladner was not paid wages in lieu of compensation by the Employer for this injury. The Commission found Claimant's post injury work activities were not so little work that he really did not earn his wage, thereby barring the claim based on the two year statute of limitation. The Circuit Court judge affirmed the order of the Full Commission. Ladner appeals the decisions of the Full Commission and the Circuit Court. \ 7

13 STANDARD OF REVIEW Where a decision of the Workers' Compensation Commission is clearly erroneous and adverse to the overwhelming weight of the evidence, so that the Commission's order fails to carry out the beneficent intent and purpose of the Workers' Compensation law, the Court must reverse the order of the Commission. Harpole Bros. Constr. Co. v. Parker, 253 So.2d 820 (Miss. 1971). A decision is clearly erroneous when, although there may be some evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been made by the Commission in its findings of fact and in its application of the law. Id. See also Delta Drilling Co. v. Cannette, 489 So. 2d 1378 (Miss. 1986). 8

14 ARGUMENT The Mississippi Workers' Compensation Commission prejudicially erred on an issue of law by reversing the Administrative Law Judge's ruling based on the two-year statute of limitations period. Ladner, the Claimant, was lulled into not filing a workers' compensation claim during the permissible time because his employer, Zachry Construction, paid him wages in lieu of compensation from December 27, 2006 through the date of maximum medical improvement May 20, Ladner has asserted that the statute of limitations does not apply because payment of compensation was made. Specifically, Ladner claims that Zachry Construction Co. continued to pay his regular salary in lieu of compensation from December 27,2006 through May 20,2008, the date of maximum medical improvement. Therefore, Ladner submits to this Honorable Court that the Commission committed manifest legal error by barring his compensation claim. Because he was paid salary/wages in lieu of compensation benefits, the two-year statute of limitations was suspended just as if statutory workers' compensation benefits had been paid. In the seminal case of Parchman v. Amwood Products, Inc., 988 So.2d 346 (Miss. 2008), this Honorable Supreme Court stated: Unless there exists an agreement "that the wage is a gratuity in addition to worker's compensation," when a claimant "is paid his usual salary and does no work for a given period or does so little work that he does not earn his wage," the continued payment of the claimant's salary "will be considered as having been in lieu of compensation." Id. at 349, quoting Dunn, Mississippi Workers Compensation, 45 (3rd Ed. 1982) (emphasis added). The Court further stated: When an employer elects to continue the payment of wages of an injured employee and the payment is not in return for work done or services 9

15 rendered but is either expressly or impliedly in lieu of compensation, the payments may be considered as payments of compensation to the same extent and with like affect as payments otherwise made by an insurance carrier under and in compliance with the Act. [d. at 349, quoting Dunn, Mississippi Workers Compensation, 318.l (3 rd Ed. 1982) (emphasis added); see also Brown v. F. W Woolworth Co., 348 So.2d 236 (1977). Most importantly, this Honorable Court recognized that there is seldom evidence of the employer's intention behind the payment; thus, such intention must have been inferred from circumstance by the payment. Parchman, 988 So.2d at 349, citing George S. Taylor Construction Co. v. Harlow, 269 So. 2d 337, 338 (Miss. 1972). Regarding his employment following the injury of December 27, 2006, Ladner testified before the Administrative Law Judge as follows: Q. I think the first time you saw the doctor was January 31 51, '077 A. Yeah. Q. Did you spend approximately three weeks in a trailer? A. Approximately two, three weeks, yes. Q. Did you do any kind of work in the trailer during the first three weeks? A. No. Q. Did you continue to receive your full salary, hourly salary, for those three weeks? A. Yes. Q. Okay. Sitting in the trailer doing nothing. A. Yes. Q. From January 31 st till February the 16 th, during that period of time, what type of work, if any, were you doing out at - for Zachry at Dupont? A. Sitting in a trailer. Q. They didn't have you back out there doing any kind of work outside the trailer? A. No. Q. While you were sitting in the trailer, did they have any kind of particular work for you during that period of time? A. Sometimes they would bring papers for me to file or permits and JSAs and stuff like that. 10

16 (rr. p 17-18). Q. During that 10-hour day of employment. how much of that time would have been occupied by doing that when they didn't bring that to you? A. 20, 30 minutes. Q. And the rest of the time, you're sitting there watching TV? A. Yes. (rr. p.22-23). (rr. p.33-34). Q. Now you were under Dr. Kesterson's care, and the Judge is going to go through the records. I'm not going to burden her with all of that, but you fmally got released, I believe, from Dr. Kesterson would have been May the 20 th 2008? A. Yes, sir. Q. And at that particular time, he put a number of restrictions on your activities. I'm not going to go through those because the Judge can look at those herself, but I want to ask you this question: From the date of your injury, December 26 th 2006 to May 20 th 2008, did you sit in that trailer that whole period of time? A. Off about the first - one week after my injury, I tried to work. And then after that. I sat in the safety trailer. Q. SO you sat in that trailer all the way up to May the 20 th 2008? A. Right. Q. Watching TV? A. Right Q. The period of time you spent in the safety trailer from right after you got hurt till you go released by Dr. Kesterson you've testified to earlier on those 10 hour days, four days a week. would 95 percent of that time be spent watching TV? A. Yes. Q. SO less than five percent of the time that you sat in the trailer was actually doing any form of constructive work in the trailer? A. Yes. Q. And after you saw Dr. Cooper, did he take you out the trailer? A. No. Occasionally, he would get me to do a hole watch and sometimes I wouldn't do it because I was taking Lortab and I didn't feel safe to go out there to do that stuff. Q. Would the hole watch take place an hour out of a 10 hour a day basis? A. No, sometimes it would last a day. Q. How often would that occur within that eight month period that you were under Dr. Cooper's care and Dr. Kesterson's care? A. Very few. 11

17 Q. Less than five? A. Five. Q. Five or ten, most? A. Yes. Q. With little or nothing to do? A. Nothing. (Cross-examination by Mr. Eades): (Tr. p.59-60). Q. Several times Mr. Wetzel asked you who placed you in the safety trailer. Did Mr. Young ever come to you and say, go sit in the safety trailer and don't come out? A. He never said come out, but he would tell me I could sit in there. Q. Told you could sit in there if you felt like you wanted to? A. Yes. I was hurt real bad when it first happened. I couldn't do nothing. It was either sit there or go home. Here, Ladner has testified that he sat, laid on a gurney, stood, and walked around the safety trailer doing nothing and watching television for the weeks and months following the injury until his employer took him to the doctor. (Tr. p.16-17). Ladner was continually paid his regular wage during this time. Ladner explained that he occasionally would spend twenty to thirty minutes filling out paper work. (Tr. p.18). Ladner further testified to receiving medication and treatment on his back at the trailer every day while on light duty under Dr. Cooper's care. Ladner testified that from the date of injury of December 26, 2006 to May 20, 2008, he sat or lay in the safety trailer while on the job except for the first week immediately after the accident. (Tr. p.23). It is important for this Honorable Court to appreciate that aside from an occasional hole watch duty, safety audit, and rarely acting as a "stand by" attendant, Ladner did not earn his wages. The above testimony was never disputed or contradicted by any of the Employer/Carrier's witnesses. The Full Commission acted arbitrarily in ignoring the overwhelming evidence. The Commission overturned the administrative law judge and denied 12

18 Ladner benefits based on the testimony of two witnesses who did not contradict any of Ladner's testimony. The first employee witness, Ian Devlin, safety supervisor, testified that he "would see him around the scaffold, sometimes handing scaffold materials and things like that" but "couldn't say it would be on a daily basis." (Tr. p.38). Devlin further testified that he wasn't in the trailer ten hours a day so he wouldn't know how long Ladner was in the trailer a day. (Tr. p. 44). The second witness, Frank Young, safety director, stated that he did not know what Ladner was doing one hundred percent of the time. (Tr. p.48). The Claimant's supervisor or superintendent were never called to testify as to what work Ladner participated in during the 14- month period of which Ladner was injured. While Ladner is ever mindful that the Commission is the sole judge of the weight and sufficiency of the evidence, on the other hand, the Commission is burdened with the responsibility not to arbitrarily reject evidence contrary to the rules governing judicial actions. As stated in Dunn, 271, Mississippi Workers' Compensation: Evidence which is not contradicted by positive testimony or circumstances, and which is not inherently improbable, and credible or unreasonable, cannot, as a matter of law, be arbitrarily or capriciously discredited, disregarded or rejected, even though the witness is a party or interested; and unless uncontradicted evidence is shown to be untrustworthy, it is to be taken as conclusive and binding on the triers of fact. If unimpeached testimony supported by all of the circumstances in the case and if there are no substantial grounds within the record upon which cogent and logical emphasis may be drawn to the contrary, the Commission may not base its decision upon speculation that the witness may have been mistaken or untruthful and something else might possibly be true. Tanner v. American Hardware Corp., 119 So.2d 380 (Miss. 1960); Shivers v. Biloxi-GulfPort Daily Herald, 110 So.2d 359 (Miss. 1959). Also, importantly for this Honorable Court to consider, the administrative law judge, who heard the live testimony of the Claimant and two employee witnesses, believed and found for 13

19 Ladner. While Ladner recognizes the established rule of review that when the decision of the administrative judge is vacated by the Full Commission, the factual judicial review relates to the decision of the Commission as distinguished from that of its hearing officer. Dunn states: Yet this is not to say that the decision of the administrative law judge must be completely disregarded on consideration of the question whether the administrative decision is supported by substantial evidence. On the contrary, it has been recognized that evidence supporting the administrative conclusion may be viewed as less substantial when an impartial, experienced administrative judge, who has observed the witnesses and lived with the case, has drawn conclusions different from the Commission's than when he has reached the same conclusions. See National Labor Relations Board v. Federal Pacific Electric Co., 441 F.2d 765, 771 (C.A ). The fmdings of the administrative judge are to be considered along with the inherent probability of the testimony to determine its substantiality and in a close case may even tip the scales in favor of a reversal of the commission's contrary decision. Dunn, Mississippi Workers Compensation, 289, p. 379 (3fd Ed. 1982) (emphasis added). The administrative law judge in this case found in favor of Ladner and found his testimony to be credible. In the case at bar, the Full Commission and Circuit Court completely and arbitrarily ignored the Claimant's own undisputed testimony that he spent upwards of 95% of his time in a safety trailer watching television, doing little or no work. (Tr. p.33-34). The Commission denied Ladner benefits because he may have completed a few mindless tasks outside of the safety trailer such as hole watch and standby attendant. This is a dangerous precedent to set for future claimants. This provides a hypothetical employer an incentive to keep an injured employee on the payroll for the statutory period, while offering small insignificant tasks instead of his normal job tasks or modified job duties. After the statutory period to file a worker's compensation claim has elapsed, the employer may then terminate the employee without any fear 14

20 of future medical liability or having to pay workers' compensation benefits. This Honorable Court would surely agree that this is not the purpose of the Act. This Honorable Court has stated in numerous cases, "doubtful cases should be resolved in favor of compensation, so as to fulfill the beneficial purposes of the statute." Miller Transporters Inc. v. Guthrie, 554 So.2d 917, 918 (Miss. 1989). The Commission arbitrarily and capriciously ignored this principle. Further this Honorable Supreme Court has stated to its lower Circuit courts, "When the Circuit courts are reviewing awards or denials of compensation benefits, the Court should give broad and liberal construction to the statute without over emphasis on technicalities and on form over substance. Further. the liberal interpretation of the Act should be afforded to the Claimant." Central Electric Power Association v. Hicks, 110 So.2d 351 (Miss. 1959). In the case at bar, the facts are essentially undisputed and established. Ladner has testified that he spent 95% of his time in the safety trailer and occasionally performed hole watch. The Employer/Carrier presented two witnesses, neither of which could specifically testify as to the amount of time Ladner spent in the trailer, nor could they dispute Ladner's testimony. This Honorable Court should note that the Employer/Carrier paid Ladner regular wages that he did not earn. Ladner did little to no work which could support the contention that he "earned" his wages. The record reflects Claimant's own uncontradicted testimony is evidence that Ladner did not continue to "earn" his full wages. Ladner submits that this Honorable Court should be left appalled by the Commission's notion that Ladner continued to "earn" his wages. The testimony of Ladner was replete and uncontradicted that from and after two weeks of the date of his injury on December 26, 2006, while under the care of Dr. Lee Kesterson and Dr. Kevin Cooper, he spent 95% of his time 15

21 sitting in a safety trailer provided by the safety director, doing little or no work whatsoever. Ladner testified that while he was under the care of Drs. Cooper and Kesterson, he spent the super majority of his time sitting or lying on a gurney in the safety trailer watching television, and continued to receive his usual wage/salary. The Commission arbitrarily and capriciously ignored the overwhelming weight of the evidence and held that Ladner earned his wages based on the vague testimony of two Employer/Carrier witnesses, and arbitrarily totally disregarded the testimony of Ladner, the Claimant. The Commission failed to apply the broad and liberal protections as required by the Workers' Compensation Act. The Commission is setting a very dangerous precedent in allowing employers to lull injured employees into ignoring legal rights by paying regular wages until the two-year statute tolls. This was not the legislative intent of the Act. Therefore, this Honorable Court should find that Employer's continued payment of Ladner's salary until May 20, 2008, constituted payments made in lieu of workers' compensation benefits, and that these payments, in the place of the workers' compensation benefits, tolled the two-year statute oflimitations. Accordingly, Ladner's petition to controvert, filed on August 24, 2009, was not barred by the statute of limitations and this Honorable Court should reverse the decision of the Full Commission. The Mississippi Worker's Compensation Act provides for a review of the decision of the Full Commission by the Circuit Court of the county in which the injury occurred. The Workers' Compensation Act, in particular Miss. Code Ann (1972) provides, "The Circuit Court and Supreme Court shall review all questions of law and fact." The general rule or standard of review to be applied in this case, as in other Workers' Compensation cases, is whether or not the decision of the Mississippi Workers' Compensation Commission on disputed issues of fact 16

22 would be affinned where there is substantial and reasonable evidence in the record to support the Commission's finding of fact. Central Electric Power Association. v. Hicks, 110 So. 2d 351 (Miss. 1959). According to this Honorable Court, judicial review of findings of the Mississippi Workers' Compensation Commission extends to a detennination of whether the Commission's decision is clearly erroneous. The standard for that test is provided by this Honorable Court in Central Electric Power Association v. Hicks, is as follows: ld at The finding is clearly erroneous when, although there is slight evidence to support it, the reviewing on the entire evidence, and the record, is left with a definite and finn conviction that a mistake has been made by the Commission in its finding of fact and its application of the Act... In reviewing awards of denials of compensation benefits, the court shall examine the record to detennine whether the salutary policies and humane purposes of the Compensation Act are being carried in particular cases; and further, whether the Act is receiving the broad and liberal constrnction which the statnte requires, without over emphasis on technicalities and on fonn against substance. In the above cited case, this Honorable Supreme Court held that substantial evidence means "evidence which is substantial, i.e., supporting a substantial set of facts from which the fact and issue can be reasonably inferred." ld. at 357. The Mississippi Workers' Compensation Act prescribes a review of the Commission's decision on the whole record, and not merely on the evidence tending to support the fmdings. Miss. Code Ann (1972). This statutory section constitutes a clear statement of legislative intent that the courts: In reviewing the awards or denials of compensation benefits. the court shall examine the record to determine whether the salutary policies and humane purposes of the Compensation Act are being carried out in controverted cases; and further, whether the Act is receiving the broad and 17

23 Id. at 356 (emphasis added). liberal construction which the statute requires, without over emphasis on technicalities and on form against substance. When reviewing workers' compensation cases on appeal, this Honorable Court has noted that the function of this Court is to determine whether there is substantial, credible evidence which supports the factual determination made by the Commission. South Central Bell v. Adem, 474 So.2d 584, 589 (Miss. 1985). The review provided by that statute should be sufficiently flexible to permit a court to check any fundamentally erroneous exercise of administrative power. As stated by this Supreme Court, there must be an application of the pertinent statute in an adjusted, reasonable marmer. Russell v. Sohio Southern Pipelines, Inc., 112 So.2d 357, 360 (Miss. 1959). As stated more recently by this Honorable Court, the substantial evidence rule does not require a Circuit Court judge to act as a "rubber stamp" every time a workers' compensation case is appealed to the Circuit Court. Although Circuit Court judges, as well as the Mississippi Supreme Court Justices, must and do give weight to the findings of the Workers' Compensation Commission, provides for review by the Circuit Court. Bechtel Construction Co. v. Bartlett, 371 So.2d 398, 401 (Miss. 1979). In that case, this Honorable Court interpreted the use of the word "shall" in the statutory section as implying the intent of the lawmakers or legislature to specifically and mandatorily require Circuit judges to act in meaningful, but responsible, fashion in acting upon appeals of this sort. In reviewing a case, this Honorable Court has stated time and again, and just as in Gray v. Poloron Product of Miss., 347 So.2d 363 (Miss. 1977), has detailed the following rule with regard to the Workers' Compensation Act: 18

24 In reviewing a case the court is required to look at all the evidence on both sides '" the Workers' Compensation Act is given broad and liberal construction. Doubtful cases should be resolved in favor of compensation in order to serve the humane purposes of the Act. [d. at 365 (emphasis added). In the case at bar, the Workers' Compensation Commission and the Circuit Court completely disregarded the requirements of the statute, ignored the legislative intent, and ignored the requirements of prior case law. It is equally as important for this Honorable Court to consider the vital rule of Workers' Compensation Law. This Court in Stuart's v. Brown, 543 So.2d 649 (Miss. 1989), stated: [d. at 652 (emphasis added). It is in the above context that we have often held (1) that close questions of compensability should be resolved in favor of the worker... and (2) the Act should be liberallv construed to carrv out its beneficent remedial purpose... The Commission failed to consider or apply the purpose and intent of the Workers' Compensation Act, which is protecting the worker or employee. In this case, the Employer manipulated the employee. Ladner was lulled into not filing a claim because he was receiving his regular wages. Further, the Commission reversed the findings of the administrative law judge without comment as to the sufficiency of the evidence to support such fmdings or to make any other type of findings relative to how the decision was incorrect as a matter of law or whether or not the evidence preponderated in the favor of the defendant. The Commission has given no specific reasons why the Claimant's testimony was disregarded. Dunn states: Uncontradicted or undisputed evidence should ordinarily be taken as true by the triers of the facts. More precisely, evidence which is not contradicted by positive testimony or circumstances, and which is not inherently improbable, incredible, or unreason able, cannot, as a matter 19

25 of law, be arbitrarily or capriciously discredited, disregarded or rejected, even though the witness is a party or interested: and unless uncontradicted evidence is shown to be untrustworthy, it is to be taken as conclusive and binding on the triers of facts. See, Shivers v. Biloxi Gulfport Daily Herald, 110 So.2d 380 (Miss. 1960). The mere fact that he [Ladner] has an interest in the outcome of the claim is not alone and without more of a sufficient basis for rejecting his testimony. See, Fortune Furniture Mfg. Co. v. Sullivan, 279 So.2d 644 (Miss. 1973). This is especially so when the Commission fails to assign specific reasons in its fmdings for disbelieving the claimant as a witness in his own behalf... Dunn, Mississippi Workers Compensation, 271, p. 334, 337 (3 rd Ed. 1982) (emphasis added). The Commission has given no specifics to its fmdings other than citing a few excerpts of adverse witnesses. The Commission has not given sufficient basis why Ladner's testimony was rejected. Ladner would submit to this Honorable Court that the Mississippi Workers' Compensation Commission erred as a matter of law in failing to set out any findings of fact and conclusions of law relative to reversing the order and fmdings of the administrative law judge. Ladner would also submit that the Mississippi Workers' Compensation Commission erred as a matter of law and fact in reversing the order of the administrative law judge as a whole which is not supported by substantial evidence or no evidence whatsoever, is "manifestly wrong." Ladner submits to this Honorable Court that after reviewing the entire testimony in this matter, the Court will be left with a firm and definite conviction that a mistake has been made by the Commission. The Commission overturned the administrative law judge and denied the Claimant benefits based on the fact that Ladner occasionally performed safety audits as a standby attendant, occasionally performed "hole watch," and sometimes performed paper filing. The Commission arbitrarily relied on the testimony of a safety director who did not work with Ladner. The Commission found that the wages were paid "in return for work done or services rendered," and thus reversed the administrative law judge's finding that Claimant was paid 20

26 wages in lieu of compensation. The Commission found that Claimant's post injury "work activities" were not "so little work that he really [did] not earn his wage" under the Parchman v. Amwood standard. The Mississippi Workers' Compensation Commission owes to the injured workers in this state a duty to set out competent facts to support its finding and decisions. The Mississippi Workers' Compensation Commission in reversing the 15-page order of the administrative law judge without comment has not responded to its legitimate and delegated administrative responsibility that has been imposed upon it by the Mississippi Legislature. The Commission has violated Ladner's statutory right. As this Honorable Court in Hicks stated, "the legal effect of the evidence and the conclusion drawn by the Commission from the facts, as distinguished from its fmdings of evidentiary facts, is a question of law reviewable by the courts, especially where the facts are undisputed or overwhelmingly established, the question depends then upon application of established legal principles to such facts." Central Electric Power Association v. Hicks, 110 So.2d 351, 356 (Miss. 1959). The statute of limitations is to be suspended when an injured employee is paid regular wages in lieu of workers' compensation benefits. The Commission erroneously ignored the whole evidence and based its findings on a few occasional tasks that Ladner was able to complete while on the job. Statute of limitations has never been favored by this Court when interpreting the Workers' Compensation law of this State. 21

27 CONCLUSION This Honorable Court should find that the Employer's continued payment of Ladner's salary/wages, constituted a payment of salary in lieu of worker' compensation benefits. Accordingly, this Honorable Court should find that Ladner's Petition to Controvert, filed on August 24, 2009, was not barred by the statute of limitations. Therefore, this Honorable Court should reverse the order of the Full Commission and Circuit Court. Respectfully submitted, this the 5 day of July, MATTHEW LADNER, Claimant! Appellant ~L/ BY: ~.f ~/ /1AMESJ{. WETZEl, Esquire /' GARNER 1. WETZEL, Esquire l' Attorneys for Matthew Ladner 22

28 CERTIFICATE OF SERVICE I, undersigned counsel, do hereby certify that I have this day forward, via U. S. Mail, postage prepaid, a true and correct copy of the above and foregoing pleading to: Walter J. Eades, Esquire, with the law finn of Dukes, Dukes, Keating & Faneca, at their usual mailing address of P. O. Drawer W, Gulfport, MS 39502; to the Honorable Melba Dixon, Administrative Law Judge with the Mississippi Workers' Compensation Commission, P. O. Box 5300, Jackson, MS ; and to the Honorable Lawrence P. Bourgeois, Jr., Circuit Court Judge, Harrison County, First Judicial District, P. O. Drawer 1461, Gulfport, Mississippi JAMES K. WETZEL as & ASSOCIATES James K. Wetzel (MS Garner J. Wetzel (MS Post Office Box I Gulfport, MS (228) (of c) (228) ( fax) ATTORNEYS FOR CLAIMANT/APPELLANT jkwetzel@cableone.net 23