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MEDS, Inc. v. Mississippi Dept. of Employment Security

Court of Appeals of Mississippi

January 14, 2014

MEDS, INC. d/b/a APPS Para Medical Services, Appellant

Page 149

Jennifer Graham Hall, Jackson, attorney for appellant.

Albert B. White, Madison, Leanne Franklin Brady, attorneys for appellee.



¶ 1. MEDS Inc., doing business as APPS Para Medical Services (APPS), appeals the Hinds County Circuit Court's decision to affirm the determination of the Mississippi Department of Employment Security Board of Review (Board of Review) that Anita Murphy's employment relationship constituted that of an employee of APPS. The record also shows the administrative law judge (ALJ) and Board of Review found that not only Murphy, but also those similarly situated, constituted employees of APPS. Upon review, we find that the Board of Review's decision is arbitrary due to an erroneous application of the law to the facts and is not supported by substantial evidence. We therefore reverse the Board of Review's determination that Murphy constituted an employee of APPS, and, in applying the law to the undisputed facts of this case, we render a judgment finding that Murphy's employment status constituted that of an independent contractor.


¶ 2. On July 24, 2008, Murphy filed a claim for unemployment benefits with the Mississippi Department of Employment Security (MDES) after being released from employment with The Hattiesburg Clinic. In her claim for benefits, Murphy listed APPS, a paramedical company that provides medical testing for individuals seeking insurance coverage, as her most recent employer. Murphy is a certified phlebotomist,[1] and her services were contracted

Page 150

for by APPS's predecessor, Physicians Inc. The record reflects that APPS works with various insurance companies that offer life-insurance products. Several life-insurance companies require that certain medical tests be performed in order to issue life-insurance contracts. APPS contracts with nurses, doctors, and technicians to provide these medical tests for the various insurance companies.

¶ 3. After MDES found no wages recorded for Murphy, field representative Eldridge Rose conducted an investigation for MDES. After concluding the investigation, the chief of the Tax Department, Veronica England, issued the Tax Department's decision finding that APPS constituted an " employer," as defined by Mississippi Code Annotated section 71-5-11 (Supp.2013). MDES accordingly determined that Murphy's wages should be reported and taxes paid. APPS appealed the Tax Department's decision.

¶ 4. On February 20, 2009, the ALJ conducted a telephonic hearing. During the hearing, both parties presented evidence, and the ALJ heard testimony from Murphy; Charlene Mitchell, regional director of APPS; and Noreen Prouty, status specialist with MDES. On November 17, 2009, the ALJ affirmed the Tax Department's determination and held that " an employer-employee relationship did exist between [APPS] and [Murphy] as defined in section 71-5-11(I)(14)." APPS again appealed.

¶ 5. On February 16, 2010, the Board of Review summarily affirmed the ALJ's decision. APPS appealed to the Hinds County Circuit Court, which summarily affirmed the decision of the Board of Review. This appeal followed.


¶ 6. Our standard for reviewing the decision of an administrative agency is limited. Miss. Emp't Sec. Comm'n v. PDN Inc., 586 So.2d 838, 840 (Miss.1991). This Court will not disturb the Board of Review's decision unless it: (1) is not supported by substantial evidence, (2) is arbitrary or capricious, (3) falls beyond the scope of authority granted to the agency, or (4) violates a constitutional right. EMC Enter. Inc. v. Miss. Dep't of Emp't Sec., 11 So.3d 146, 150 (¶ 9) (Miss.Ct.App.2009); see also URCCC 5.03 (scope of appeals from administrative agencies).

¶ 7. Regarding factual issues and findings of fact, Mississippi Code Annotated section 71-5-531 (Rev.2011) establishes that " the findings of the Board of Review as to the facts, if supported by evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of the court shall be confined to questions of law." With respect to disputes of material facts, we recognize that " a rebuttable presumption exists in favor of the administrative agency, and the challenging party has the burden of proving otherwise." Miss. Dep't of Emp't Sec. v. Harbin, 11 So.3d 137, 139 (¶ 5) (Miss.Ct.App.2009) (quoting Miss. Dep't of Emp't Sec. v. Good Samaritan Pers. Servs., 996 So.2d 809, 812 (¶ 6) (Miss.Ct.App.2008)). This case, however, presents no dispute of material fact; rather, it presents a question as to the application of the law to the undisputed facts.

¶ 8. We review questions of law de novo. See Donald v. Amoco Prod. Co., 735 So.2d 161, 165 (¶ 7) (Miss.1999). Also, in Senior Partners Inc. v. Mississippi Employment Security Commission, 959 So.2d 44, 47 (¶ 7) (Miss.Ct.App.2006), this Court acknowledged that all employers under the Employment Security Act " are compelled to make contributions to the Employment Security Trust Fund ... based upon a

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percentage of all wages." These contributions operate as a mandatory excise tax, and upon review of such, " every doubt as to their application must be resolved in favor of the taxpayer and strictly against the taxing power." Id.; see Mozingo v. Miss. Emp't ...

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