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Ladner v. Zachry Construction

Supreme Court of Mississippi, En Banc

January 30, 2014

Matthew LADNER
v.
ZACHRY CONSTRUCTION and Zurich American Insurance Company.

Page 1086

Garner Wetzel, James Kenneth Wetzel, Gulfport, attorney for appellant.

Walter J. Eades, Gulfport, attorney for appellees.

ON WRIT OF CERTIORARI

PIERCE, Justice.

¶ 1. The Workers' Compensation Commission (Commission) dismissed Matthew Ladner's petition to controvert and motion for payment of benefits because it found the statute of limitations had expired. The Harrison County Circuit Court and a majority of the Court of Appeals affirmed the Commission's decision. Ladner petitioned for writ of certiorari, which we granted. We reverse the Commission's decision, as well as the judgments of the circuit court and the Court of Appeals, based on our finding that there is insufficient evidence to support it.

FACTUAL BACKGROUND

¶ 2. Ladner began working for Zachry Construction in 2001, a company which does subcontracting (maintenance) work for the Dupont/DeLisle facility in Pass Christian, Mississippi. Ladner's duties primarily consisted of erecting and dismantling scaffolding and " jet riding," which involved draining chemicals at the facility and required Ladner to wear a protective suit. Ladner testified that on December 27, 2006, while dismantling scaffolding, he felt something " pop" in his back, and he immediately fell to the ground. Ladner reported the accident to his supervisor, Gary Freek. Ladner was taken to see the company's safety director, Frank Young, and was then taken to the safety/first-aid trailer, where he remained for the rest of the day. Ladner thereafter missed a few days of work. Upon returning to work, Ladner's symptoms worsened. He informed Young that he needed to see a doctor. Ladner testified that, after two or three weeks of sitting in the safety trailer during work hours, he eventually saw Dr. Kevin Cooper on January 31, 2007. Dr. Cooper later referred Ladner to Dr. Lee Kesterton, a neurosurgeon. Dr. Kesterton treated Ladner until Ladner reached maximum medical improvement (MMI) on May 20, 2008. Ladner, along with a number of other employees, was laid off from Zachry Construction in December 2008. Ladner filed a petition to controvert with the Commission on August 24, 2009, alleging that he had suffered a work-related injury to his back and legs on December 27, 2006. Zachry Construction admitted the injury; but, the company asserted

Page 1087

that Ladner had filed his petition to controvert after expiration of the two-year statute of limitations prescribed by Mississippi Code Section 71-3-35(1) (Rev.2011).

¶ 3. A hearing was conducted in front of an administrative judge (AJ) in March 2010. At the hearing, Ladner testified that he had continued to work during his treatment and was paid his regular wages from the date of the injury until he reached MMI. Ladner stated that he did not perform his regular job responsibilities during that period; instead, he " basically sat or lay" in the safety trailer during work hours. Ladner acknowledged on cross-examination that he occasionally did light-duty work assignments such as filing paperwork, " hole watch" duty, and " standby attendant" during safety audits, but he maintained that ninety-five percent of the time, he sat in the safety trailer watching television until he reached MMI.

¶ 4. Zachry Construction presented two witness in its case, Young and Ian Devlin, safety supervisor for Zachry Construction at the Dupont/DeLisle facility. Young testified that Ladner reported to him on December 27 that he had injured his back, for which he was treated with aspirin and topical pain reliever. Young said Ladner never indicated to him that he needed to see a doctor. According to Young, they eventually offered to take Ladner to Dr. Cooper, a company doctor, for a medical examination. Dr. Cooper released Ladner to light duty or regular duty without restrictions. Young said he knew that Dr. Cooper had referred Ladner to Dr. Kesterton. Young could not say what type of work Ladner did " 100 percent of the time" after being released by Dr. Cooper and while he was under the care of Dr. Kesterton; but he knew that Ladner had performed duties such as " standby attendant, filing, scaffold-yard hole watch, and bag-house hole watch." Young said Ladner was not the only employee who had performed such duties; " iron workers, scaffold builders, pipe fitters, all crafts could do that sort of thing." When Young was asked about Ladner's testimony that he spent ninety-five percent of the time in the safety trailer; Young stated: " I don't think that's accurate[,] ... because [I] saw [Ladner] out in the work force."

¶ 5. On cross-examination, Young maintained that Ladner did not stay in the safety trailer all day every work day. But Young acknowledged that he had seen Ladner in the trailer, and he had no knowledge as to how much time Ladner had spent in the trailer. Young further acknowledged that he never spoke to any of Ladner's supervisors to confirm whether Ladner was in the trailer for most of the work days while under Dr. Kesterton's care. And Young did not know if anyone at the company would know how much time Ladner spent in the trailer or out in the field, working.

¶ 6. Devlin testified that he conducted the investigation into Ladner's injury, and it was he who took Ladner to Dr. Cooper. When asked about Ladner's testimony that he spent most of each work day in the safety trailer for approximately eight months, Devlin said he did not know whether that was an accurate statement or not.

¶ 7. The AJ concluded in a written order that Ladner had received wages in lieu of compensation, thereby tolling the statute of limitations. Zachry Construction appealed the order to the Commission. The Commission reversed the AJ's order, based on its finding that Ladner's post-injury work activities were not " so little" that he did not " earn" his wages. The Commission determined that, since Ladner had earned his ...


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