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Rea v. Foamex

Court of Appeals of Mississippi

August 27, 2013

DANNY REA, APPELLANT
v.
FOAMEX AND AMERICAN HOME ASSURANCE COMPANY, APPELLEES

COURT FROM WHICH APPEALED: CHICKASAW COUNTY CIRCUIT COURT. DATE OF JUDGMENT: 03/14/2012. TRIAL JUDGE: HON. JOHN ANDREW GREGORY. TRIAL COURT AFFIRMED THE DISMISSAL OF THE MISSISSIPPI WORKERS' COMPENSATION COMMISSION DISPOSITION.

DISPOSITION: AFFIRMED.

FOR APPELLANT: CARTER DOBBS JR.

FOR APPELLEES: SANDRA TAYLOR DOTY, DAVID E. STOVALL, SHARON MONCURE-MANGUM.

BEFORE IRVING, P.J., CARLTON AND JAMES, JJ. LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS, CARLTON, MAXWELL AND FAIR, JJ., CONCUR.

OPINION

Page 856

NATURE OF THE CASE: CIVIL - WORKERS' COMPENSATION

JAMES, J.

¶1. Danny Rea appeals the Chickasaw County Circuit Court's affirmance of the Mississippi Worker's Compensation Commission's decision, which declined to reopen Rea's workers' compensation claim after it was dismissed for failure to prosecute. He raises one issue on appeal: whether the Commission erred in failing to reopen his claim under Mississippi Code Annotated section 71-3-53 (Rev. 2011) because of a mistake in a determination of fact. Upon review, we find no error and affirm.

FACTS AND PROCEDURAL HISTORY

¶2. Rea was employed as a truck driver and unloader at Foamex. On March 22, 2002, Rea filed a petition to controvert with the Commission, alleging that he suffered a compensable injury on March 7, 2002. On April 10, 2002, Foamex and its insurance carrier, American Home Assurance Company (" American" ), filed their answer.

¶3. On April 10, 2002, Foamex and American filed a motion for leave to suspend benefits after Rea was terminated for allegedly threatening violence against others at work. On April 18, 2002, Rea filed

Page 857

his response, which denied any violence, and a motion to authorize medical treatment.

¶4. Almost one year later, on March 20, 2003, Foamex and American filed a notice of independent medical examination. On July 15, 2003, Foamex and American filed a second motion for leave to suspend benefits. On September 12, 2003, the administrative judge (AJ) entered an order granting the motion for leave to suspend benefits.

¶5. On November 10, 2003, the AJ entered an order dismissing Rea's claim for his failure to file a completed prehearing statement, but the AJ expressly stated that Rea could file a motion to reinstate his claim if he completed a prehearing statement. On May 14, 2004, Rea filed a motion to reinstate his claim, and he attached a prehearing statement. Thus, on May 19, 2004, the AJ entered an order reinstating Rea's claim.

¶6. On June 3, 2004, Foamex and American filed their prehearing statement. On June 18, 2004, a notice of hearing was entered, setting the hearing on the merits for September 29, 2004, but that hearing was cancelled by order dated September 16, 2004. On September 16, 2004, another notice of hearing was entered, setting the hearing on the ...


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