IN THE SUPREME COURT OF MISSISSIPPI APPELLEE'S SUPPLEMENTAL BRIEF IN RESPONSE TO PLAINTIFF'S REPLY BRIEF

Transcription

1 IN THE SUPREME COURT OF MISSISSIPPI JADONNA PEARSON VERSUS LIGHTHOUSE POINT CASINO APPELLANT NO.2009-WC-00908COA APPELLEE APPELLEE'S SUPPLEMENTAL BRIEF IN RESPONSE TO PLAINTIFF'S REPLY BRIEF Mark W. Verret (MS Brett M. Bollinger (MS Allen & Gooch 3900 N. Causeway Blvd. One Lakeway, Suite 1450 Metairie, LA Telephone: (504) Fax: (504) Attorneys for Defendant! Appellee Lighthouse Point Casino and Federal Insurance Company

2 IN THE SUPREME COURT OF MISSISSIPPI JADONNA PEARSON VERSUS LIGHTHOUSE POINT CASINO APPELLANT NO.2009-WC-00908COA APPELLEE ON APPEAL FROM CIRCUIT COURT OF WASHINGTON COUNTY, MISSISSIPPI, MISSISSIPPI WORKERS' COMPENSATION COMMISSION APPELLEE'S SUPPLEMENTAL BRIEF IN RESPONSE TO PLAINTIFF'S REPLY BRIEF Mark W. Verret (MS Brett M. Bollinger Allen & Gooch 3900 N. Causeway Blvd. One Lakeway, Suite 1450 Metairie, LA Telephone: (504) Fax: (504) , Attorneys for Defendant! Appellee Lighthouse Point Casino and Federal Insurance Company

3 TABLE OF CONTENTS Table of Contents Table of Authorities Argument and Authorities Conclusion Certificate of Service

4 TABLE OF AUTHORITIES Baker v. IGA Super Valu Food Store, 990 So.2d 254 (Miss. App. Ct. 4122/2008) Speed Mechanical, Inc. v. Taylor, 342 So.2d 317 (Miss. 1977) Statutes Miss. Rule App. Pro , 3 Miss. Code Ann

5 ARGUMENT AND AUTHORITIES 1.) On September IS, 2009, Claimant/Appellant submitted a Reply Brief in support of the Appeal from the Circuit Court of Washington County, Mississippi. In response to this Reply Brief, appellees submit this Supplemental Brief pursuant to the Motion for Leave of Court filed contemporaneously herewith under Rille 28 (c) of the Mississippi Rules of Appellate Procedure. 2.) This Supplemental Brief is necessary to clarify misleading statements of fact and law made in the claimant/appellant's Reply Brief. 3.) In Claimant-Appellant's Reply Breif, she cites Baker v. IGA Super Valu Food Store, 990 So.2d 254 (Miss. App. Ct. 4/22/2008) in support of the argument that the amount of time that passed between the payment of medical benefits and the filing of the Petition to Controvert is irrelevant. However, appellees previously illustrated the difference in time in order to demonstrate that there are factual distinctions between Baker and the present matter. Again, in Baker, the employer paid the work related medical benefits until January 9, It was only two months later that the claimant filed the Petition to Controvert, on March 25, This issue was raised by the appelles in order to demonstrate to the Court that factual distinctions exist between the facts of Baker and the present matter. 4) Second, claimant/appellant attempts to use appellees' comments on Baker to somehow demonstrate to this Court that the appellees have conceded that they owe the claimant past medical expenses. This position is unsupported by the facts and the law. Appellees noted the language in Baker previously to show that the Petition to Controvert in that case was barred by the applicable statute of limitations. In so doing, appellees noted I

6 that the employer in Baker was only ordered to pay any outstanding medical expenses that were incurred prior to January 9, This distinction is important because in Baker, the employer had agreed to pay these medical expenses and, in fact, the employer was paying the expenses prior to January 9, As a result, the Court ordered the employer to pay any of the bills that they already agreed to pay, that were still outstanding. Id. at ) Claimant/Appellant's attempt to tie the employer's obligation to pay previously incurred medical expenses that the employer agreed to pay, as was the case in Baker, to the appellees in the present matter is unsupported by the facts and the law. In the present matter, Appellees paid for the authorized medical treatment received by claimant ending on November 15, However, the employer did not authorize the subsequent medical treatment obtained by the claimant/appellant. Therefore, the appellees did not agree to pay the medical expenses previously incurred related to this treatment. This is the key distinction from the employer in Baker, who agreed to pay the medical expenses incurred prior to January 9, ) Appellees reaffirm and renew their contention that the Administrative Law Judge's Order, Workers' Compensation Commission's, and Circuit Court's decision to affirm said Order is based on well established Mississippi jurisprudence. See Speed Mechanical, Inc. v. Taylor, 342 So.2d 317 (Miss. 1977). The appelless previously addressed this issue in their Appeal Brief. 7.) Accordingly, the Administrative Law Judge, Workers' Compensation Commission, and Circuit Court correctly followed the precedent of the Supreme Court of Mississippi's ruling in Speed, supra, by ordering Claimant's Petition to Controvert was barred by the applicable "two-year statute" or Miss. Code Ann due to claimant's 2

7 admission that her Petition to Controvert was filed more than two years from the date of her allegedly compensable work related injury. 8.) For the reasons set forth above, and in the appellees' original Appeal Brief, the holding of the Administrative Law Judge, the Full Commission Order issued by the Mississippi Workers' Compensation Commission, and the Circuit Court of Washington County, Mississippi should be affirmed, dismissing claimant-appellant's Petition to Controvert as untimely under the provisions of Miss. Code Ann CONCLUSION Appellees file this Supplemental Brief pursuant to the contemporaneously filed Motion for Leave of Court, under the guidance of Rule 28 ( c) of the Mississippi Rules of Appellate Procedure, in order to clarify misleading statements made by the claimant/appellant in the Reply Brief submitted to this Court on September 15,2009. For the reasons contained herein, and the reasons previously set forth by the appellees in their original Appeal Brief, the holding of the Administrative Law Judge, the Full Commission Order issued by the Mississippi Workers' Compensation Commission, and the Circuit Court of Washington County, Mississippi should be affirmed, dismissing claimant-appellant's Petition to Controvert as untimely under the provisions of Miss. Code Ann [Signature Block on Following Page] 3

8 Dated this the 24th day of September, By: ~~~~~iimiiiiiiii"" W. (MS Brett M. Bollinger (MS Allen & Gooch 3900 N. Causeway Blvd. One Lakeway, Suite 1450 Metairie, LA Telephone: (504) Fax: (504) Attorneys for Defendant/Appellee Lighthouse Point Casino and Federal Insurance Company 4

9 CERTIFICATE OF SERVICE I, Mark W. Verret, attorney for Appellees, do hereby certijy that I have this date caused to be mailed, by United States Mail, postage prepaid, a true and correct copy of the foregoing to: David N. Gillis Attorney at Law 405 Tombigee St. Jackson, MS Honorable Ashley Hines 4th Circuit Court District Judge P.O. Box 1315 Greenville MS Dated this the 24th day of September,