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Hampton v. Color Tile Inc.

August 18, 1998

J. INEZ HAMPTON, APPELLANT
v.
COLOR TILE, INC., AND THE HOME INSURANCE COMPANY, APPELLEES



Before Thomas, P.j., Diaz, And Herring, JJ.

The opinion of the court was delivered by: Per Curiam:

Hampton v. Color Tile, Inc., 97-CC-00371-COA

PER CURIAM AFFIRMANCE MEMORANDUM OPINION THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B

DATE OF JUDGMENT: 2/18/97

TRIAL JUDGE: HON. ELZY JONATHAN SMITH JR.

COURT FROM WHICH APPEALED: BOLIVAR COUNTY CIRCUIT COURT

NATURE OF THE CASE: CIVIL - WORKERS' COMPENSATION

TRIAL COURT DISPOSITION: AFFIRMED THE MISSISSIPPI WORKERS' COMPENSATION COMMISSION'S DISMISSAL OF APPEAL FROM ADMINISTRATIVE LAW JUDGE'S DECISION AS UNTIMELY

DISPOSITION AFFIRMED

Inez Hampton was an employee of Color Tile, Inc. for over thirty years until February 2, 1993 when she was diagnosed with pneumoconiosis (dry laden lung disease) and was medically forced to terminate her employment with Color Tile. She filed a "Petition to Controvert" on January 19, 1994, with the Mississippi Workers' Compensation Commission contesting the carrier's finding that her lung disorder was not work related and seeking compensation for all past, present, and future medical bills. An official hearing was held before an administrative law Judge on July 20, 1995. Finding that Ms. Hampton was not totally and permanently disabled, the administrative law Judge's order awarded temporary total disability benefits on January 19, 1996, for the period of February 23, 1993, and continuing through February 28, 1995. Ms. Hampton filed a "Motion for Reconsideration and/or to Reopen Case to Hear Further Evidence" on January 26, 1996. The motion was denied on March 22, 1996. Ms. Hampton filed an untimely "Petition for Review by Full Commission" on April 15, 1996, a full twenty-four days later. Seeking to fit an untimely twenty-four day filing into the twenty day requirement under Miss. Code Ann. § 71-3-47 (Rev. 1995) and MWCCP Rule 10, Ms. Hampton contests the filing period and relies on a combination of case law and the Mississippi Rules of Civil Procedure in support of her argument. Finding this argument without merit, we affirm. While Ms. Hampton may be correct in arguing that the language of Miss. Code Ann. § 71-3-47 (Rev. 1995) does not specifically address when the twenty day period begins to run, it similarly does not address the extensions of time for filing asserted by Ms. Hampton. The language § of both Miss. Code Ann. 71-3-47 (Rev. 1995) and MWCCP Rule 10 must be applied to Ms. Hampton as clearly as is written without adding or subtracting from the plain language. Under Miss. § Code Ann. 71-3-47 (Rev. 1995), a "decision shall be final unless within twenty days a request or petition for review by the full commission is filed." In addition, MWCCP Rule 10 provides as follows:

In all cases where either party desires a review before the Full Commission from the decision rendered at the evidentiary hearing, the party desiring the review shall within twenty (20) days of the date of the said decision file with the Secretary of the Commission a written request or petition for review before the Full Commission.

§ Based upon the language of Miss. Code Ann. 71-3-47 (Rev. 1995) and MWCCP Rule 10, there can be no dispute that the time limit for filing a petition for review is twenty days. Mississippi case law is equally clear that if the petition for review is not filed within twenty days, further action is barred. Staples v. Blue Cross & Blue Shield , 585 So.2d 747, 748 (Miss. 1991); Day Detectives, Inc., v. Savell , 291 So.2d 716, 720 (Miss. 1974); Marlboro Shirt Co. v. Whittington, 195 So.2d 920, 921 (Miss. 1967).

In the present case, Ms. Hampton argues that Rule 6(e) of the Mississippi Rules of Civil Procedure is applicable to her present dilemma. This argument is not well taken. Rule 10 of the MWCCP clearly states that the twenty day time period begins at the date of decision and not upon receipt by the parties. Ms. Hampton's argument that Williams v. Furniture Land , 637 So.2d 191 (Miss. 1994) is applicable to her present dilemma is also not well taken. In Williams , an appeal was held timely when it was received one day after the twenty day deadline. The Court allowed the extra day because of the Commission's internal handling procedure concerning the mail. The facts in Williams are not similarly reflective of the record in the present case. In addition, any extra day as applied under Williams would not improve Ms. Hampton's plight. The fact remains that Ms. Hampton's appeal window opened on March 23, 1996, and closed on April 11, 1996. Ms. Hampton ...


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