LEGGETT & PLATT AND FIDELITY AND GUARANTY INSURANCE COMPANY, APPELLANTS
VICTOR BRINKLEY, APPELLEE
DATE OF JUDGMENT: 12/12/2013.
APPEALED: COMMISSION. TRIBUNAL FROM WHICH MISSISSIPPI WORKERS' COMPENSATION. TRIBUNAL DISPOSITION: REVERSED THE DECISION OF THE ADMINISTRATIVE JUDGE AND REMANDED THE MATTER FOR FURTHER PROCEEDINGS.
FOR APPELLANTS: PHILLIP PERKINS EMBRY COURTNEY ELIZABETH MCALEXANDER.
FOR APPELLEE: NED MCDONALD III.
BEFORE IRVING, P.J., BARNES AND CARLTON, JJ. LEE, C.J., IRVING, P.J., ISHEE, ROBERTS, MAXWELL AND FAIR, JJ., CONCUR. BARNES, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. JAMES, J., CONCURS IN PART WITHOUT SEPARATE WRITTEN OPINION. GRIFFIS, P.J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.
NATURE OF THE CASE: CIVIL - WORKERS' COMPENSATION
¶1. Leggett and Platt (Leggett), and its insurance carrier, Fidelity and Guaranty Insurance Company (Fidelity), appeal the order of the Mississippi Workers' Compensation Commission (Commission) finding that Victor Brinkley timely filed his petition to controvert. Finding that the Commission erred in its determination that Brinkley filed his petition to controvert within the one-year statute of limitations, we reverse and render the full Commission's order.
¶2. Victor Brinkley sustained a compensable right-thumb injury on January 15, 2011, while operating a riveting machine during the course and scope of his employment at Leggett. That same day, Brinkley received treatment for his injury at the North Mississippi Medical Center, where doctors diagnosed him with a distal right thumb, rivet injury. Dr. Alan Pritchard, a plastic surgeon, treated Brinkley and performed an amputation revision of the right thumb at the interphalangeal joint level. Dr. Pritchard discharged Brinkley on January 15, 2011, the same day as his injury. Following discharge, Brinkley continued to receive treatment from Dr. Pritchard.
¶3. On May 23, 2011, Dr. Pritchard released Brinkley at maximum medical improvement (MMI), and he assigned an eleven percent impairment rating to the right upper extremity with no work restrictions. Leggett, Brinkley's employer, and Fidelity, Leggett's insurance carrier, paid Brinkley $8,806.60 in permanent partial disability benefits, representing a payout of the eleven percent impairment to the upper extremity. Leggett and Fidelity authorized no medical treatment for Brinkley since Brinkley's last evaluation by Dr. Pritchard on May 23, 2011.
¶4. On October 20, 2011, Fidelity sent a Form B-31, Notice of Final Payment, to Brinkley for execution. When Brinkley failed to return the signed Form B-31, Fidelity sent another letter via certified mail on November 2, 2011, requesting execution of the enclosed Form B-31. When Brinkley failed to return the second B-31, Fidelity filed an unsigned Form B-31 on November 23, 2011, with the Commission. Following receipt of the stamped-filed copy from the Commission, Fidelity sent a letter dated December 1, 2011, to Brinkley via certified mail, return receipt requested, providing him with the stamped-filed Form B-31 and referring Brinkley to the section on the Form B-31 regarding the one-year statute of limitations. The certified-mail documentation confirms that the post office left notice of delivery on December 5, 2011.
¶5. On December 12, 2011, Fidelity sent the Commission a copy of the December 1, 2011 letter that it sent Brinkley via certified mail. Then, on January 27, 2012, Fidelity received a signed Form B-31 from Brinkley, and the date on the Form B-31 reflected that Brinkley signed the form on January 25, 2012. Fidelity sent the Form B-31 signed by Brinkley on January 25, 2012, to the Commission on January 27, 2012. Following its receipt of this stamped-filed Form B-31 from the Commission, Fidelity sent a copy to Brinkley via certified mail, return receipt requested, on February 2, 2012. The post office attempted delivery on February 6, 2012, and again on February 9, 2012.
¶6. On January 30, 2013, Brinkley filed his petition to controvert alleging a right-thumb injury sustained on January 15, 2011, while operating a riveting machine in the course and scope of his employment. Thereafter, Leggett and Fidelity filed their answer admitting liability for the subject claim, but averring that the one-year statute of limitations set forth in Mississippi Code Annotated section 71-3-53 (Rev. 2011) barred the claim. In addition, Leggett and Fidelity filed their motion to dismiss the claim, arguing that the one-year statute of limitations barred the claim.
¶7. The parties attended a hearing on July 12, 2013, and presented their arguments related to the motion to dismiss before an administrative judge (AJ). On July 15, 2013, the AJ granted the motion to dismiss, and entered an order dismissing the claim on July 31, 2013. On August 9, 2013, Brinkley filed his petition for review of the AJ's decision before the full Commission.
¶8. On November 4, 2013, the full Commission heard oral arguments from both parties. The full Commission then entered an order reversing the AJ's decision to dismiss the claim and remanded the matter to the AJ for further proceedings consistent with the order. The full Commission stated that the limitations period under Mississippi Code Annotated section 71-3-53 begins upon the proper filing of the Form B-31. The full Commission found that in the present case, Brinkley failed to receive actual notice of Leggett and Fidelity's November 23, 2011 filing of the unsigned Form B-31, since the postal-service tracking notification stated that on December 5, 2011, the post office attempted delivery of the notice of the filing but without success. The Commission found that actual notice of final payment was not shown until January 27, 2012, when Leggett and Fidelity received in the mail a Form B-31 containing Brinkley's ...