March 17, 2015
THOMAS E. CHAPMAN AND BRENDA CHAPMAN, APPELLANTS
COCA-COLA BOTTLING CO., CONSOLIDATED, AMERICAN CASUALTY COMPANY OF READING, PA. AND CNA CLAIMPLUS, INC., APPELLEES
OF JUDGMENT: 10/07/2013.
[Copyrighted Material Omitted]
FROM WHICH APPEALED: JASPER COUNTY CIRCUIT COURT. TRIAL
JUDGE: HON. RICHARD W. MCKENZIE. TRIAL COURT DISPOSITION:
GRANTED SUMMARY JUDGMENT IN FAVOR OF APPELLEES.
APPELLANTS: JOHN HINTON DOWNEY, THOMAS L. TULLOS.
APPELLEES: H. BENJAMIN MULLEN, H. WESLEY WILLIAMS III,
BRITTNEY PINKHAM THOMPSON, JOHN A. BANAHAN.
P.J., FOR THE COURT. ISHEE, ROBERTS AND CARLTON, JJ., CONCUR.
BARNES, J., CONCURS IN PART AND IN THE RESULT WITHOUT
SEPARATE WRITTEN OPINION. IRVING, P.J., DISSENTS WITH
SEPARATE WRITTEN OPINION, JOINED BY LEE, C.J., AND JAMES, J.;
MAXWELL, J., JOINS IN PART. FAIR, J., NOT PARTICIPATING.
Thomas and Brenda Chapman appeal the grant of summary
judgment to Coca-Cola Bottling Company (Coke), American
Casualty Company (American Casualty), and CNA ClaimPlus
(CNA). We affirm.
AND PROCEDURAL HISTORY
On June 4, 2001, Thomas, while working as a route salesman
for Coke, injured his back when building a display at a store
in Bay Springs, Mississippi. Thomas called the Coke plant
manager, Willie Meador, who instructed him to go to
Occupational and Rehabilitative Associates LLC (ORA), for
evaluation and treatment.
At ORA, Thomas saw Dr. Rob Coleman, who prescribed
epidural-steroid injections and continued him on muscle
relaxers, which Thomas took due to a prior injury. Thomas
previously injured his lower back while working at Coke in
1991. Thomas was also in a vehicle rollover accident in 2000.
Dr. Coleman further recommended that Thomas undergo physical
therapy at Southeastern Regional Medical Center. When Thomas
returned to work, he was placed on light duty. However,
despite being placed on light duty, he was unable to perform
his assignments without help from other employees, and he
eventually left Coke.
After administering some treatment, Dr. Coleman referred
Thomas to Dr. David Lee, a neurosurgeon at the Southern
Neurological Institute in Hattiesburg, Mississippi. Thomas
first visited Dr. Lee on July 14, 2001. Subsequently, Dr. Lee
performed decompression back surgery on Thomas on August 28,
2001. Dr. Lee found that Thomas reached maximum medical
improvement on March 15, 2002.
After Thomas's June 4, 2001 incident, Tammy Saul, an
administrator at Coke, submitted an " Employer's
First Report of Injury or Occupation Disease" (B3) form
on June 6, 2001. Based on Coke's B3 form, CNA, as
American Casualty's claims adjuster, opened an active
investigation file. Coke initially approved some of
Thomas's medical expenses. However, Thomas's doctors
at ORA determined that Thomas's injuries resulted from a
preexisting condition and not the June 4, 2001 incident.
In a letter dated June 26, 2001, ORA reported to Coke:
The doctors of our clinic have all reviewed the chart of Mr.
Thomas Chapman and are all in agreement that Mr.
Chapman's condition is not work-related but it is
aggravated by work. We have reviewed the MRI done by our
clinic and reviewed the MRI that was done previously. We feel
that all of his injuries are from previous accidents and no
new injury was noted. We also agree that Mr. Chapman needs to
continue to be off work as the condition is not caused by
work but aggravated by work.
report was signed by Dr. Ronnie Ali, head of ORA at the time.
On June 29, 2001, Margaret Redferrin, an adjustor for CNA,
spoke with Meador regarding Coke's information on the
incident. Meador told Redferrin that Thomas's doctors
indicated the injuries resulted from the 2000 vehicle
accident and not the June 4, 2001 incident.
On August 24, 2001, Redferrin spoke to Meador again, and
Meador confirmed the previous determination that Thomas's
injuries stemmed from the 2000 vehicle accident. After
speaking with Meador and
reviewing Thomas's medical records received by CNA at the
time, Redferrin closed Thomas's file on September 17,
2001, after finding no workers' compensation claim
On July 31, 2002, Thomas filed a petition to controvert with
the Mississippi Workers' Compensation Commission. After
notice of the petition to controvert, Redferrin reopened
Thomas's file on August 13, 2002.
On December 16, 2005, the administrative judge held a hearing
on the issues of whether Thomas sustained a work-related
injury to his back on June 4, 2001, the existence of
temporary disability, and the reasonableness and necessity of
medical treatments. Both sides presented medical testimony at
The judge ruled that the injury was compensable and awarded
past-due compensation for temporary total disability from
June 6, 2001, through March 15, 2002. American Casualty, CNA,
and Coke appealed the ruling to the Commission. The
Commission heard the case on July 31, 2006, and affirmed the
ruling by an order dated August 23, 2006.
On May 30, 2007, the parties agreed to, and the Commission
approved, a settlement between the parties.
On April 21, 2008, Thomas and Brenda filed a complaint in
circuit court against Coke, CNA, American Casualty, and ORA.
The Chapmans claimed that Coke, CNA, and American Casualty
acted in bad faith by wrongfully denying benefits that arose
from Thomas's underlying compensable workers'
compensation claim and refusing to pay Thomas's
workers' compensation claim. The Chapmans also claimed
that CNA wrongfully denied and delayed payments of medical
bills as part of the agreed settlement. Further, the Chapmans
asserted Coke, CNA, and American Casualty all conspired with
ORA to provide a " sham" report in order to prevent
workers' compensation payments.
ORA filed a motion for summary judgment, which the circuit
court granted on April 30, 2013. The circuit court granted
the motion in light of ORA's uncontested status as a
dissolved corporation without assets. See Miss. Code
Ann. § 79-4-14.21 (Rev. 2013). No appeal was taken from
After the completion of discovery, American Casualty and CNA
filed a motion for summary judgment. Coke joined the motion.
The circuit court granted summary judgment in favor CNA,
American Casualty, and Coke, and issued a final order on
November 6, 2013. It is from this decision that the Chapmans
" We review the grant or denial of a motion for summary
judgment de novo, viewing the evidence in the light most
favorable to the party against whom the motion has been
made." Karpinsky v. Am. Nat'l Ins. Co., 109
So.3d 84, 88 (¶ 9) (Miss. 2013).
Under a de novo review,
summary judgment is appropriate if the evidence before the
Court--admissions in the pleadings, answers to
interrogatories, depositions, affidavits, etc.--shows there
is no genuine issue of material fact, and the moving party is
entitled to [a] judgment as a matter of law. This Court does
not try issues on a [Mississippi] Rule [of Civil Procedure]
56 motion, but only determines whether there are issues to be
tried. In reaching this determination, the Court examines
affidavits and other evidence to determine whether a triable
issue exists, rather than the purpose of resolving that
Harper v. Cal-Maine Foods Inc., 43 So.3d 401, 403
(¶ 4) (Miss. 2010) (citations omitted).
Whether the circuit court erred in granting summary judgment
to American Casualty and CNA.
" [S]ummary judgment 'is appropriate when the
non-moving party has failed to make a showing sufficient to
establish the existence of an element essential to the
party's case, and on which that party will bear the
burden of proof at trial.'" Buckel v.
Chaney, 47 So.3d 148, 153 (¶ 10) (Miss. 2010)
(quoting Watson Quality Ford Inc. v. Casanova, 999
So.2d 830, 832 (¶ 7) (Miss. 2008)). Therefore, the
Chapmans had the burden to provide sufficient evidence to
show the existence of bad faith on the part of American
Casualty and CNA.
For a claimant to maintain a bad-faith claim against an
insurer, he " must show that the insurer lacked an
arguable or legitimate basis for denying the claim, or that
the insurer committed a wil[l]ful or malicious wrong, or
acted with gross and reckless disregard for the insured's
rights." Liberty Mut. Ins. Co. v. McKneely, 862
So.2d 530, 533 (¶ 9) (Miss. 2003) (citing State Farm
Ins. Co. v. Grimes, 722 So.2d 637, 641 (Miss. 1998)).
However, the " fact that an insurer's decision to
deny benefits may ultimately turn out to be incorrect does
not in and of itself warrant an award of punitive damages if
the decision was reached in good faith." Id.
" Where an insurance carrier denies or delays payment of
a valid claim, punitive damages will not lie if the carrier
has a reasonable cause for such denial or delay."
Id. (citation omitted).
In order to sustain a bad-faith claim, the burden falls on
the claimant to prove that the insurer either lacked a
legitimate or arguable basis for denying his claim or that it
committed a willful or malicious wrong or acted with gross
and reckless disregard for his rights. Id.
Thomas argues that American Casualty had no arguable basis
for denying his claim and maliciously denied then delayed his
workers' compensation payments. American Casualty
counters that it retained an arguable basis for delaying his
workers' compensation claims, which Thomas affirmed in
After the June 4, 2001 accident, American Casualty, through
CNA, received information that linked Thomas's medical
treatments to a preexisting condition. Between June 4, 2001,
and September 17, 2001, all information obtained by CNA
indicated that Thomas had a preexisting condition, which did
not require any payments under workers' compensation.
CNA's adjuster Redferrin spoke with Coke's Meador on
at least two occasions about Thomas's injury. These
conversations indicated Coke believed Thomas's injury
resulted from the 2000 vehicle accident, that medical
insurance covered Thomas's medical bills relating to the
June 4 incident, and no workers' compensation claim
American Casualty also did not act in a wrong or malicious
manner by denying Thomas's claim. Prior to the petition
to controvert, American Casualty found Thomas's injury
resulted from the 2000 vehicle accident, or at least found
the source of his injury in dispute. Once Thomas filed a
petition to controvert, the petition, by its very nature,
placed the claim in further dispute until the Commission
resolved the claim.
The claim remained in dispute until August 23, 2006, when the
Commission affirmed the AJ's order, which ruled
in favor of Thomas. The parties did not reach a final
agreement on the amount of compensation until the Commission
approved a settlement on May 30, 2007. Therefore, American
Casualty correctly asserts an arguable claim existed from at
least June 4, 2001, to August 23, 2006, when the Commission
ruled, if not until May 30, 2007 when the parties finally
Thomas admitted as much in his deposition on March 18, 2013:
Question: All right. And so according to this document that
you signed on your oath, there was a legitimate dispute
between you and Coke and the insurance company for the
workers' (sic) comp?
Thomas: Uh-huh, that's right.
Question: Okay. That was true in May of 2007, right?
Thomas: That's what the date is, yes.
In the settlement petition to the Commission referred to in
Thomas's deposition, he attested that a legitimate or
arguable basis for denying his claim existed. In the
petition, Thomas stated:
Petitioner would further show the Commission that there
is a bona fide, legitimate dispute between Petitioner and his
Attorney, on the one hand, and Employer [Coke] and Carrier
[American Casualty], on the other hand as to the
nature and extent of disability, loss of wage earning
capacity, and/or industrial loss, if any, of Petitioner, as
to medical expenses, hospital expenses, and other expenses,
extent of injuries, disability, loss of wage earning
capacity, and/or industrial loss of Petitioner which is
related to his employment with Employer, and as to the
medical and disability status of Petitioner, but that
notwithstanding these disputes and acting through and on the
advice of his Attorney, Petitioner has agreed to settle any
and all workers' compensation claims against Employer and
Carrier based on the following payments for indemnity and
medical as follows: . . . .
(Emphasis added). Further, the Petition stated:
Petitioner would further show to the Commission that he has
consulted with his Attorney as to all matters pertinent to
this claim and that his Attorney has explained to him and
Petitioner is aware of the hearing procedures afforded in
such cases and the possibility that he might receive an award
of a greater amount or lesser amount than agreed herein or an
award of other relief and benefits if this matter were
adjudicated. Petitioner would further show to the Commission
that his Attorney has explained and he understands and is
aware of the prospects of recovery and the possibility of
medical, hospital, and other expenses respecting this claim,
and the possibility of additional benefits and additional
forms of relief against Employer and Carrier, and that these
expenses and benefits, as well as all other expenses and
benefits respecting this claim, will not be the
responsibility of Employer and Carrier and/or either of them,
and the possibility of additional expenses and benefits and
additional forms of relief against Employer and Carrier will
hereby be precluded, if this settlement be approved,
even should the condition of Petitioner become changed
(Emphasis added). The Petition also stated:
Petitioner would further show the Commission that based on
the facts as contended by Petitioner and considering the
disputed nature of such facts and disputed medical condition
respecting the claim herein, Petitioner and his Attorney
feel it would be to Petitioner's best interest that he be
authorized and empowered to make such settlement . . . .
this acknowledgment and the status of the claim, the Chapmans
cannot dispute the existence of an arguable claim prior to at
least May 30, 2007.
Thomas also failed to show American Casualty committed a
willful or malicious wrong or acted with gross and reckless
disregard for his rights. Based on Coke's representations
and CNA's investigations, American Casualty reasonably
believed no workers' compensation claim existed. "
The insurer's only obligation is to perform a prompt and
adequate investigation of the claim and to deal with the
claimant in good faith." McKneely, 862 So.2d at
535 (¶ 15).
American Casualty, through CNA, conducted a reasonable
investigation almost immediately after receiving the
Coke's B3 form on the incident. American Casualty acted
in good faith by speaking with Coke and reviewing pertinent
documents. American Casualty did not receive further notice
of a potential claim until Thomas's petition to
controvert, and the investigation resumed. Therefore,
American Casualty did not act in bad faith in its
investigation of Thomas's workers' compensation
The Chapmans also failed to show American Casualty conspired
with ORA to wrongfully deny Thomas's claim. " Under
Mississippi law, 'a conspiracy is a combination of
persons for the purpose of accomplishing an unlawful purpose
or a lawful purpose unlawfully.'" Gallagher
Bassett Servs. Inc. v. Jeffcoat, 887 So.2d 777, 786
(¶ 37) (Miss. 2004) (quoting Levens v.
Campbell, 733 So.2d 753, 761 (Miss. 1999)). It is an
essential element that an agreement exists between the
No evidence indicates American Casualty communicated with
ORA, much less conspired with ORA. Moreover, the circuit
court granted, and the Chapmans did not contest, summary
judgment to ORA. Without any substantive evidence showing
American Casualty executed an agreement with ORA, the
Chapmans cannot maintain a claim for civil conspiracy.
The Chapmans could not provide any evidence that American
Casualty committed any act rising to bad faith or civil
conspiracy. Because Brenda's claims are entirely
derivative of the bad-faith and civil-conspiracy claims, we
determine her claims failed to defeat summary judgment as
well. Based on this insufficiency, the Chapmans failed to
show a genuine dispute of material fact existed to overcome
The Chapmans bear a different burden in proving CNA, as
American Casualty's claims adjuster, acted in bad faith.
" The adjuster does not owe the insured a fiduciary duty
nor a duty to act in good faith." Bass v. Cal. Life
Ins. Co., 581 So.2d 1087, 1090 (Miss. 1991). Rather,
[a]n adjuster has a duty to investigate all relevant
information and must make a realistic evaluation of a claim.
However, an adjuster is not liable for simple negligence in
adjusting a claim. He can only incur independent liability
when his conduct constitutes gross negligence, malice, or
reckless disregard for the rights of the insured.
Id. (internal citations omitted).
CNA conducted an adequate investigation of the claim in 2001,
and reasonably concluded no workers' compensation claim
existed until receiving notice of Thomas's petition to
controvert. CNA remained in contact with Coke from
the receipt of the B3 form until the first closure of
Thomas's file. CNA also reviewed all materials provided
by Coke with regard to the claim.
In addition, CNA promptly reopened Thomas's file upon
receiving notice of Thomas's petition to controvert. CNA
continued investigating throughout the proceedings, and
reasonably delayed any payments until the Commission
determined the compensability of Thomas's claim. Thus,
any denial of compensation was neither grossly negligent,
malicious, nor reckless until the dispute was resolved in
favor of Thomas.
The Chapmans do not submit sufficient evidence that any
action by CNA amounted to negligence, much less gross
negligence. Without anything more than mere assertions, the
Chapmans failed to meet their burden. For similar reasons to
American Casualty, the Chapmans' civil-conspiracy claim
and Brenda's claims fail. Therefore, we find the circuit
court did not err in granting summary judgment to CNA.
Whether the circuit court erred in granting summary judgment
To prove an employer act in bad faith by denying a
workers' compensation claim, a claimant must prove the
same elements for bad faith by an insurer. See
Southern Farm Bureau Cas. Ins. Co. v. Holland, 469
So.2d 55, 59 (Miss. 1984) (allowing bad-faith-refusal claim
against insurer as an independent tort outside workers'
compensation remedies); Luckett v. Miss. Wood Inc.,
481 So.2d 288, 290 (Miss. 1985) (extending application of
bad-faith-refusal claim to an employer).
Coke and American Casualty contracted for workers'
compensation coverage. As part of that coverage, American
Casualty bore the responsibility to fully investigate each
workers' compensation claim and determine the
compensability of a claim. Though the contract required Coke
to pay up to $250,000 of a claim, American Casualty had to
pay the initial claim, with Coke reimbursing American
Casualty up to that amount. Due to this contractual
relationship, the Chapmans could not prove Coke acted in bad
faith if American Casualty and CNA did not.
Even outside of the contract, Coke did not act in bad faith
because an arguable claim existed. Coke contested
Thomas's injury as a preexisting condition, with the
dispute continuing through contravention. Coke also fulfilled
its duty in promptly reporting Thomas's incident to
American Casualty, which then delegated the claim to CNA as
its claims adjuster. Further, Coke fully cooperated with CNA
in its investigation.
The dissent relies on Mississippi Power & Light Co. v.
Cook, 832 So.2d 474 (Miss. 2002). Thomas does not cite
Cook. Similar to this case, in Cook, the
claimant's claim was filed, settled, and approved by the
Commission. Id. at 478 (¶ 4). However, unlike
this case, the court noted that " in the settlement Cook
reserved the right to bring a bad[-]faith claim against MP&
L." Id. Here, Thomas settled his claim but did
not reserve the right to bring a bad faith claim. I am of the
opinion that Cook offers no guidance here.
The Chapmans offer no substantive evidence to show Coke's
actions amounted to bad faith in its investigation or in its
dispute of the claim. The Chapmans also provide no support
beyond mere allegations of Coke conspiring with ORA to
deprive benefits. Because of this lack of evidence, the
Chapmans failed in their burden to overcome summary judgment.
[¶43] For these reasons, we affirm the
grant of summary judgment in favor of American Casualty, CNA,
THE JUDGMENT OF THE JASPER COUNTY CIRCUIT COURT IS AFFIRMED.
ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.
ROBERTS AND CARLTON, JJ., CONCUR. BARNES, J., CONCURS IN PART
AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. IRVING,
P.J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY LEE,
C.J., AND JAMES, J.; MAXWELL, J., JOINS IN PART. FAIR, J.,
I cannot agree that the circuit court did not err in granting
summary judgment in favor of the appellees, because it
appears rather clear to me that a proper and thorough
examination of the facts presented shows the existence of a
genuine issue of material fact with respect to whether the
appellees had an arguable basis for denying Thomas's
claim. Therefore, I dissent. To put into prospective why it
is clear to me that summary judgment was improperly granted,
I must cite extensively the facts, which show--contrary to
the majority's view--that the appellees did not conduct
any significant investigation until after Thomas filed his
petition to controvert, which was over a year after his
On June 4, 2001, Thomas was building a display at the Jitney
Jungle store in Bay Springs while working as a route salesman
for Coke. As he attempted to pick up soft drinks to place in
the display, he heard his back " pop," and he
collapsed. Several individuals witnessed the incident,
including the manager on duty at the Jitney Jungle. Thomas
called Coke's plant manager, Willie Meador, and Willie
instructed him to go to ORA for evaluation and treatment.
Thomas followed Willie's instructions and went to ORA,
where he saw Dr. Coleman. Dr. Coleman prescribed
epidural-steroid injections and physical therapy at
Southeastern Regional Medical Center, and continued Thomas on
muscle relaxers that Thomas was taking due to a prior injury.
Dr. Coleman eventually referred Thomas to Dr. Lee, and Thomas
first visited Dr. Lee on July 14, 2001.
Prior to the June 4, 2001 incident, according to the record,
Thomas injured his lower back in 1991, while working in the
scope of his employment with Coke. He had been taking daily
prescription medication, Flexiril, for his back pain since
the 1991 incident. Thomas was also in a rollover accident in
August 2000 while on vacation and, according to his
affidavit, missed a day of work. After the June 4, 2001
Jitney Jungle incident, Thomas returned to work and was
placed on light duty. However, despite being placed on light
duty, he was unable to perform his assignments without help
from other employees.
Tammy Saul, an administrator at Coke, submitted an "
Employer's First Report of Injury or Occupation
Disease" form on June 6, 2001. On June 11, 2001, Saul
told the Southeastern Medical Center that Thomas's
physical therapy was covered under workers'
compensation. A few days later, Lloyd Boleware, a Coke
supervisor, approved payment of the steroid injections
under Coke's workers' compensation insurance. On June
24, 2001, Coke noted in Thomas's file that his employment
status had changed, effective June 19, 2001, to a new status
of " Workers' Compensation." 
In a letter dated June 26, 2001, ORA reported to Coke:
The doctors of our clinic have all reviewed the chart of Mr.
Thomas Chapman and are all in agreement that Mr.
Chapman's condition is not work-related but it
is aggravated by work. We have reviewed the MRI done
by our clinic and reviewed the MRI that was done previously.
We feel that all of his injuries are from previous
accidents and no new injury was noted. We also agree
that Mr. Chapman needs to continue to be off work as the
condition is not caused by work but aggravated by
(Emphasis added). The report was signed by Dr. Ali.
On June 29, 2001, Redferrin entered notes into Thomas's
electronic claim file, which stated:
Discussed claim with Willie at Coca-Cola in
Laurel, Mississippi . . . . Willie advised [Thomas] rolled a
van about 3 times (totaled the van)[.] [Thomas] is off 3
weeks. The doctor has indicated his condition is not work
related but aggravated a pre-existing condition.
[Thomas] is currently drawing short term disability thru
Coca[-]Cola. Willie will fax the report to me.
(Emphasis added). On August 1, the record reflects that the
following note was entered in Thomas's file:
[T]ransferred this claim to Adjuster Redferrin for
investigation. Make all contacts to determine compensability
for all factors. Description of this claim is [that the
injured worker] bent over to pick up an object and felt pop
in back. When did [injured worker] have the auto accident? It
appears that we have 2 different incidents. Was the [injured
worker] in a company van? Determine what is caused from this
on the job injury and what is from the van accident? Which is
he losing time from? Document plan of action to move to
resolution. Review to verify coding.
September 17, 2001, according to Redferrin's notes, she
closed Thomas's file.
In the meantime, beginning on July 14, 2001, Dr. Lee treated
Thomas at the Southern Neurological Institute. After
conservative treatment failed, Dr. Lee performed
decompression back surgery on Thomas, and on March 15, 2002,
Dr. Lee found that Thomas had reached maximum medical
improvement. Coke did not pay for the services rendered by
Between June 11, 2001, which apparently was the date that
American Casualty and CNA were notified of Thomas's
injury, and August 2002, American Casualty and CNA did not
conduct any serious investigation of Thomas's
injury--they did not even interview Thomas. And even after
July 31, 2002, the date Thomas filed a petition to controvert
with the Mississippi Workers' Compensation Commission
(Commission), the appellees did not do any serious
investigation and continued to deny that Thomas was entitled
to benefits. I
should note that Coke initially accepted that Thomas's
injury was work related, but changed that position after
receiving ORA's report on June 26, 2001.
On December 16, 2005, issues of whether Thomas sustained a
work-related injury to his back on June 4, 2001, the
existence of temporary disability, and the reasonableness and
necessity of medical treatments were brought before an
administrative judge (AJ). Both sides presented medical
testimony at the hearing. The AJ ruled that the injury was
compensable and awarded past-due compensation for temporary
total disability from June 6, 2001, through March 15, 2002.
The defendants appealed the ruling to the full Commission,
which heard the case on July 31, 2006, and affirmed the
AJ's ruling in toto.
A hearing date was set for January 2007 to determine the
compensation for permanent disability, but was postponed. In
May 2007, the parties agreed to, and the Commission approved,
the 9(i) settlement between the parties for $111,000 for
Thomas's claim for permanent loss of wage-earning
capacity plus payment of all outstanding medical bills,
including bills from Dr. Lee at the Southern Neurological
Institute, and from the University Medical Center.
On April 21, 2008, Thomas and Brenda filed, in the circuit
court, their original complaint against the appellees. In the
complaint, Thomas and Brenda alleged that Coke, American
Casualty, CNA, and ORA had engaged in a conspiracy to deny
Thomas workers' compensation benefits, and had refused
payment in bad faith.
In May 2008, the defendants removed the case to the United
States District Court for the Southern District of
Mississippi. The case remained in the federal district court
until August 31, 2011, when it was finally remanded to the
After completing discovery, American Casualty and CNA moved
for summary judgment, and Coke joined the motion. On
September 20, 2013, the circuit court, without stating its
reasons, granted summary judgment in favor of all defendants,
leading to this appeal.
As I read the majority opinion, it finds that summary
judgment was properly granted because (1) between June 4,
2001, and September 17, 2001, all information obtained by CNA
indicated that Thomas had a preexisting condition, which did
not require any payments under workers' compensation; (2)
prior to the petition to controvert, American Casualty found
Thomas's injury resulted from the 2000 vehicle rollover
accident, or at least found the source of his injury in
dispute; (3) the claim remained in dispute until July 31,
2006, when the Commission ruled in favor of Thomas, and (4)
the language attested to by Thomas in the 9(i) lump-sum
petition is an acknowledgment by Thomas of the existence of
an arguable claim from the date of the injury until May 30,
With respect, I must say that the majority totally misses the
mark. As to the majority's first point, I must say that
the appellees had only two pieces of information--neither of
which was the result of any investigation conducted by the
appellees. The two pieces of information were ORA's
report and Coke's assertion that Thomas injury was caused
by the 2000 rollover accident, an assertion that enjoys
no evidentiary support in the record--either medical or
The majority's second point--that " prior to the
petition to controvert, American Casualty found Thomas's
injury resulted from the 2000 vehicle accident, or at least
found the source of his injury in dispute" --fares no
better than its first point. Again, with respect, I must say
this statement is simply false. What is true is that American
Casualty simply accepted as true--without any
investigation--Coke's false assertion that Thomas's
injuries resulted from the 2000 rollover accident.
I am not sure what value the majority attaches to its third
point--that the claim remained in dispute until May 30, 2007,
when the Commission ruled in favor of Thomas. However, I
reiterate that the Commission did not rule in favor of Thomas
until July 31, 2006, which was more than five years after
Thomas's injury and four years after Thomas filed his
petition to controvert. Surely the majority is not asserting
that a ruling in favor of Thomas somehow proves that the
appellees had an arguable basis for denying the claim. But
whatever significance the majority places on the span of
time, it certainly does not explain any justification for not
conducting any investigation during the thirteen months
following Thomas's injury.
Finally, with respect to the majority's last
finding--that the language in the 9(i) lump-sum-settlement
petition is an acknowledgment by Thomas that an arguable
claim existed until at least May 30, 2007--is just an
erroneous finding with no undergirding in the record. It
appears clear to me that the majority, in making this
finding, conflates two different and distinct things: (1) a
bona fide, legitimate dispute as to the nature and extent of
Thomas's permanent disability for the sole purpose of
settling the extent of permanent disability and amount of
compensation due, (2) the existence of an arguable basis for
denying or refusing to pay the claim altogether. The two are
not the same. The dispute with Coke--which is at the center
of Thomas's bad-faith lawsuit--is not about the nature,
extent, or severity of an admittedly work-related injury, but
about whether Coke had an arguable basis for denying that
Thomas had suffered a work-related injury at all. Therefore,
that Thomas attested in the settlement petition to the
existence of a bona fide, legitimate dispute between him and
Coke as to the nature and extent of his permanent disability,
loss of wage-earning capacity, and expenses is of no moment
with respect to the ultimate issue--whether Coke had an
arguable basis for denying Thomas's claim. Moreover, the
lump-sum-settlement petition was aimed at settling the
underlying workers' compensation claim, not a bad-faith
claim that had not yet been brought. While the language in
the settlement petition precludes Thomas from seeking
additional worker's compensation benefits, there is
nothing precluding Thomas from initiating a separate lawsuit
for bad-faith refusal to timely pay the benefits, which is a
separate tort claim. Miss. Power & Light Co. v.
Cook, 832 So.2d 474, 479 (¶ 8) (Miss. 2002).
Additionally, there are two other problems with the
majority's reliance on the lump-sum-settlement petition.
First, Coke did not pay the benefits that Thomas was entitled
to until it was forced to do so. Thomas was injured on June
4, 2001. The Commission ruled in Thomas's favor on July
31, 2006, affirming in toto the decision of the AJ who
earlier, in the face of strong opposition from Coke, had
ruled in Thomas's favor. Therefore, for more than five
years, Coke refused to pay benefits that were lawfully due
Thomas and conducted no investigation for more than a year.
Second, the 9(i) lump-sum-settlement
agreement was executed in May 2007, in settlement of
Thomas's claim for permanent disability. So, even if Coke
had possessed an arguable basis for denying benefits, it did
not have one at the time the agreement was signed by Thomas,
because the Commission had already determined that Thomas was
entitled to benefits, had awarded him temporary total
benefits, and had set a hearing date for a determination of
the amount of permanent benefits. Thus, when Thomas signed
the settlement petition containing the subject language, he
could not have been attesting that Coke possessed an arguable
basis for denying benefits, as that was not an issue to be
determined in the workers' compensation proceeding. I now
turn to a discussion of why I think the evidence shows the
existence of a genuine issue of material fact with respect to
whether the appellees had an arguable basis for denying
there a genuine issue of material fact as to American
Casualty and CNA's claim of an arguable basis for denying
CNA and American Casualty rely upon the ORA report and the
statement made by Willie to suggest they had a legitimate and
arguable reason for denying Thomas's claim after
initially finding it compensable. I do not find the ORA
report definitive. First, I note that the ORA report states
that " no new injury was noted[.]" This assessment
of the June 4, 2001 incident is in direct conflict with what
transpired at the Jitney Jungle, as it is undisputed that
Thomas heard a " pop" and collapsed, an event
witnessed by several people. Thomas was replaced by another
employee to finish the job at the Jitney Jungle. Thomas saw
Dr. Coleman shortly after the incident, and, according to
Thomas, Dr. Coleman confirmed that Thomas had suffered a back
injury on June 4, 2001. Thomas was unable to resume his
normal work after the incident.
In his nebulously written ORA report, Dr. Ali refers to
" accidents" as the basis for Thomas's
condition. The investigation into Thomas's claim is void
of any attempt to speak with Thomas or review Thomas's
medical reports to identify the " accidents" --one
of which was the on-the-job accident at Coke in 1991.
American Casualty and CNA further rely on Willie's
statement that Thomas's injuries were all related to the
2000 rollover accident. First, Willie is not a physician.
Second, there is no medical evidence to support Willie's
statement diagnosing the cause of Thomas's condition. Nor
can Willie's statement be reconciled with the ORA report,
which refers to prior accidents, one of which
undisputedly was the 1991 work-related accident. Thomas was
finally deposed on March 18, 2003. In his deposition, he
affirmed that he initially injured his back in the 1991
accident, which was work related. However, he explained that
in the 2000 rollover accident, he did not suffer any injury
or aggravation of his 1991 back injury. Despite the findings
in the ORA report that Thomas's condition was related to
prior accidents, there is no medical proof that Thomas
suffered an injury in the 2000 rollover accident. Therefore,
the assessment in the ORA report that Thomas's condition
was related to prior accidents was either made up
out of whole cloth or was the adoption of Coke's
erroneous assertion in that regard.
When properly considered, the ORA report at least supports a
finding or determination that Thomas's June 4, 2001
incident aggravated his 1991 work-related injury. An "
[i]njury or death arises out of and in the course of
employment even when the employment merely aggravates,
accelerates, or contributes to the injury. Thus, a claimant
is entitled to benefits if
the employment acts upon the claimant's pre-existing
condition to produce disability." Beverly Healthcare
v. Hare, 51 So.3d 223, 230-31 (¶ 25) (Miss. Ct.App.
2010) (internal citations omitted).
American Casualty and CNA assert that, based on the facts and
information before them, they had legitimate reasons to deny
Thomas's claim. They argue that had they known about the
referral to Dr. Lee, they would have deposed him. This seems
to be a circular argument. The fact that they did not know of
the referral to Dr. Lee is indicative of their failure to
investigate. Dr. Coleman, the treating physician provided by
Coke, referred Thomas to Dr. Lee. Therefore, CNA and American
Casualty could have easily learned of Dr. Lee's
involvement in the case.
American Casualty and CNA were " required to perform a
prompt and adequate investigation and make a reasonable,
good-faith decision based on that investigation."
Liberty Mut. Ins. Co. v. McKneely, 862 So.2d 530,
534 (¶ 12) (Miss. 2003) (citing Bankers Life & Cas.
Co. v. Crenshaw, 483 So.2d 254, 276 (Miss. 1985)).
" Proper investigation . . . means obtaining all
available medical information relevant to the
policyholder's claim." Lewis v. Equity Nat'l
Life. Ins. Co., 637 So.2d 183, 187 (Miss. 1994).
The fact that Thomas was not urging that his medical bills be
paid by workers' compensation for the year following his
accident did not relieve American Casualty and CNA of their
responsibility to promptly and properly investigate the
claim. CNA and American Casualty were aware Thomas was
claiming that his June 4, 2001 accident at Jitney Jungle was
work related, and they were charged with investigating
Thomas's claim as early as June 2001. Therefore, the fact
that Thomas did not file his petition to controvert until
July 31, 2002, provides no justification for their failure to
investigate the claim for over a year prior to his filing the
petition to controvert.
In order to prevail on a bad-faith claim against American
Casulty, the insurer, Thomas must show " that the
insurer lacked an arguable or legitimate basis for denying
the claim, or that the insurer committed a wil[l]ful or
malicious wrong, or acted with gross and reckless disregard
for the insured's right." McKneely, 862
So.2d at 533 (¶ 9). As to an adjuster, such as CNA, the
Mississippi Supreme Court has explained that
an insurance adjuster, agent, or other similar entity may not
be held independently liable for simple negligence in
connection [with] its work on a claim. Such an entity may be
held independently liable for its work on a claim if and only
if its acts amount to any one of the following familiar types
of conduct: gross negligence, malice, or reckless disregard
for the rights of the insured.
Gallagher Bassett Servs. Inc. v. Jeffcoat, 887 So.2d
777, 784 (¶ 27) (Miss. 2004). " Reckless is defined
as careless, heedless, inattentive; indifferent to
consequences." Turner v. City of Ruleville, 735
So.2d 226, 228-29 (¶ 10) (Miss. 1999) (internal
quotations omitted). " For conduct to be
'reckless' it must be such as to evince disregard of,
or indifference to, consequences." Id. at 229
American Casualty and CNA ceased their investigation in
response to Meador's statement and the ORA report.
However, there can be no dispute that
Meador's statement was false in material particulars, and
the ORA report did not assert that Thomas was not entitled to
any compensation. By obtaining and reviewing Thomas's
complete medical records; interviewing Thomas, and
Thomas's treating physicians, Drs. Coleman and
Lee; and ascertaining the source of Willie's statement
that Thomas's condition was due solely to the rollover
accident, the defendants would have learned that there was no
arguable basis for denying the claim.
When Dr. Lee was finally deposed in June 2004, approximately
three years after Thomas's accident, the following
colloquy occurred between him and Thomas's attorney:
Attorney: Assuming that he has had these degenerative
problems in his back and has been able to go back to work and
had hurt from time to time and has been off work from time to
time - assuming all that to be true, how would you relate
that to the June 4 '01 incident that led up to the
Dr. Lee: Well, once again, certainly from looking at his
history and what he described and what I've been told
that he has said, he had problems with his back dating back
to 1991 with additional injuries in 2000. . . . Apparently,
he was able to do his job and pick up some drinks. At some
point his back went out. Something apparently happened to his
back at the time. He is just more apt to have an injury to
his back because he has a bad back, so to speak.
medical assessment by Dr. Lee was crucial to the
determination of whether Thomas had suffered a work-related
Of particular interest is the fact that CNA knew that despite
the information it had received from Coke--that the June 4,
2001 accident " [was] not a work[ers']
comp[ensation] accident" --it needed to investigate
further based on its policy guidelines. And as far as I can
tell from the record, it failed or refused to do so. That CNA
was aware of the need to further investigate is shown by the
following notation, entered in Thomas's file by CNA on
August 1, 2001:
Norma, Coke charges each location for claims they have which
are compensable. I received an email from the branch in
regard to this claim. The branch has stated that this is not
a work comp accident, but I need to get the details from you.
Was the auto accident a Coke accident that aggravated a
pre-existing injury? Is this a compensable work comp
claim ? Any detail you can give me will help. Even if
you have questions at this point as to the validity, I can
give this information back to the branch manager.
Later in the same day when the above notation was entered in
Thomas's file, his case was referred to CNA employee
Redferrin. It appears that Redferrin was directed to "
make all contacts to determine compensability for all
factors." She was advised that the injured worker,
Thomas, " bent over to pick up an object and felt a pop
in his back." Redferrin was directed to ascertain when
the auto rollover accident occurred, as " [i]t appears
that we have 2 different accidents." She also was
directed to " [d]etermine what is caused from this on
the job injury and what is from the van accident[.]" And
finally, she was instructed to determine " [w]hich
[accident Thomas was] losing time from[.]" There is
nothing in the record indicating that Referrin followed up as
the file notation indicates she was instructed to do, for the
next notation in Thomas's file is
the following notation, entered on August 24, 2001, by
Called insured and spoke with Willie Meador[; ] Willie
advised this is not a workers compensation claim as employee
had been in a serious vehicle accident and seriously injured
his back. All medical bills have been made [sic] by his
medical insurance. All doctors involved with the back injury
reviewed all medical records and are all in agreement that
[Willie]'s condition is not work-related but slightly
aggravated by work. They reviewed the MRI report that was
done previously and believe that all of his injuries are from
the previous auto accident and no new injury [was] wsnoted.
The claim was set up as a matter of [r]ecord only. No
payments [are] to be made. Employee had major back problems
before this slight problem[,] and doctors all agree the
problems are due to the auto accident and no work comp
injury. Employee is currently off work due to the auto
accident[,] which is in no way related to this alleged claim.
All doctors advised the complaints are not work related.
(Emphasis added). Clearly, as the above notation indicates,
Redferrin conducted no independent investigation, choosing to
talk only to Willie, Coke's employee, and to accept his
assessment of how the claim should be handled, as she
concluded that " [t]he claim was set up as a matter of
record only." American Casualty and CNA do not attempt
to explain why no follow-up investigation was done to
determine the accuracy of Willie's assertion that
Thomas's injuries were not work related. This failure
alone raises a genuine issue as to whether American Casualty
and CNA can legitimately argue that they had an arguable
basis for denying Thomas's claim, unless they were
contractually prohibited from investigating facts brought to
their attention by Coke, a position that Coke denies.
American Casualty and CNA also rely on Thomas's
deposition wherein Thomas agreed that there was a legitimate
dispute between him, Coke, and the insurance company. Clearly
there was a dispute between Thomas, Coke, American Casualty,
and CNA over the payment of Thomas's workers'
compensation claim stemming from the June 4, 2001 accident.
However, acknowledging the existence of a legitimate dispute
does not equate to acknowledging that an arguable basis
existed for their denying the claim, which is the basis of
Thomas's bad-faith lawsuit. Further, according to the
excerpts of Thomas's deposition that were provided in the
record on appeal, Thomas was never asked if he believed
American Casualty and Coke had an arguable basis for denying
his claim. Moreover, Thomas's deposition was taken after
he had filed his petition to controvert.
In Crenshaw, a case cited by Thomas, but admittedly
not a workers' compensation case, Crenshaw, the insured,
suffered an injury to his right foot. The foot became much
worse, progressively losing circulation and, eventually,
requiring amputation. Crenshaw, 483 So.2d 257. When
Crenshaw submitted a claim to his accidental-injury carrier,
Bankers Life & Casualty Company, Bankers Life failed to
conduct any investigation and, relying on three medical
forms, which did not include all the information Banker's
Life normally required to make a coverage determination,
Bankers Life denied the insured's claim. Id.
Crenshaw then sued. After reviewing the evidence, the trial
court held that Bankers Life had acted in bad faith in
denying the insurance claim, and our supreme court affirmed.
Id. at 277.
[¶77] The Crenshaw court, citing
Peerless Insurance Co. v. Myers, 192 So.2d 437
(Miss. 1966), affirmed that
recovery may be had where the accidental injury aggravates,
renders active, or sets in motion a latent or dormant
pre-existing physical condition or disease, which in turn
contributes to the disability or death for which recovery is
sought, and where the accidental injury is a proximate cause
of the resulting loss.
Crenshaw, 483 So.2d at 270.
Interestingly, in Crenshaw, the court also outlined
the extensive investigative procedure set forth for a claim
inquiry that Bankers Life failed to follow. As Coke argues in
attempting to shift blame to American Casualty and CNA, it is
undisputed that American Casualty and CNA did not follow the
guidelines established in the " Special Handling
there a genuine issue of material fact as to Coke's claim
of an arguable basis for denying Thomas's claim?
Coke argues that CNA conducted its own investigation and made
its own determination to dispute the claim. Coke also submits
that there was a legitimate and arguable basis to dispute
Thomas's claim, and even assuming Willie had requested
that CNA deny the claim, CNA should have independently
determined whether the claim was compensable. On this last
point, I do not disagree with Coke's position, but that
is an argument for why CNA's and American Casualty's
inactions should be scrutinized by a jury for a determination
as to whether they acted in bad faith, not a shield for Coke
in light of its action in providing patently false
information to CNA and American Casualty.
Coke also points to the " Special Handling
Instructions" section in the workers' compensation
policy with American Casualty and CNA, which explains how a
claim involving a back injury should be handled. The "
Special Handling Instructions" state, in pertinent part:
o Communication with the insured for the purpose of obtaining
information and completing claim investigations should be
coordinated with local Coca-Cola representatives.
o 24-hour Contact - Contact the local Coca-Cola contact
representative and claimant within 24 hours of receipt of
claim is mandatory for:
Lost Time Injury Claims
All Back Claims
All Knee Claims
Heart Attack and Hearing Loss
Disability Expected to Exceed 21 Days or As
Required by Coca-Cola Representative
o 48-Hour Contact with Treating Physician - Once it is
determined that the Claimant's disability will exceed the
waiting period, 48 hour contact shall be made with the
treating physician to determine the diagnosis, prognosis,
restrictions and modified duty opportunities. Follow up with
the doctor and rehabilitation nurse will take place every 30
days or earlier. Ongoing disability shall be documented
through monthly reports from the treating physician.
o All bills for the Coke account are to be sent to Corvel for
bill review/repricing. Medical notes should accompany bills.
Inpatient/Outpatient hospital bills should have medical
notes, itemization of charges and admission/discharge
summaries attached. Inpatient bills should reflect the IC
o Under no circumstances will the carrier pay a
without prior approval by Jim Woody. Should such a
request [come] from local operations, immediately refer to
Jim Woody. Request from lease agrements, contracts,
certificate of insurance, etc. should be sent to Jim Woody.
o Basic investigation will be completed within seven (7) days
from the date of receipt of the claim and final investigation
on the compensability issue completed within 14 days or
earlier, as determined by state law.
o A preliminary plan of action must be clearly identified and
documented in the file within 14 days from receipt of the
claim and updated every 30 days.
o Recorded statements will be taken from the claimant and
witnesses within 48 hours of receipt of the claim or
acknowledgment of existence of a witness for the following:
According to Coke, the only time where input was required
directly from Coke with respect to payment was with a "
non-compensable claim." Under the special-handling
instructions, one bullet point states that " under no
circumstance will the carrier pay a noncompensable claim
without the approval by Jim Woody. Should such a request
[come] from local operations, immediately refer it to Jim
Woody." According to Coke, even though CNA determined
Thomas's claim to be noncompensable, it never referred
the issue to Jim Woody. Coke argues that since CNA did not
believe the claim needed to be paid, Coke had no duty to do
anything further. Coke lays responsibility with CNA and
American Casualty to pay " promptly when due the
benefits required of [Coke] by the workers' compensation
law" in accordance with Coke's contract with
American Casualty and CNA. As stated, Coke makes a great
argument why American Casualty's and CNA's actions
should be subjected to the crucible of jury deliberation for
a determination as to whether they acted in bad faith. It may
also be an argument for indemnification of any loss Coke may
have suffered were this a case where Coke was suing American
Casualty and CNA for their failure to investigate
Thomas's claim in accordance with the terms and
conditions of the contract between American Casualty, CNA,
and Coke. But that is not the case.
In Mississippi Power & Light Co. v. Cook, 832 So.2d
at 479 (¶ 9), the Mississippi Supreme Court set out the
standard for a claim against an employer for damages for the
refusal to pay compensation in bad faith. For a claimant to
prevail, " there must be a determination as to whether
there was a legitimate or arguable reason to deny the
benefits, and/or that the denial constituted a willful or
malicious wrong in disregard for [the claimant's]
rights." Id. (citations omitted). In
Mississippi Power & Light Co., Cook, an employee of
Mississippi Power and Light Co. (MP& L), received
workers' compensation benefits from MP& L and medical
treatment after an on-the-job injury. Id. at 478
(¶ 4). The doctors who treated Cook found that he had
suffered a fifteen percent permanent impairment to his right
shoulder. However, MP& L cut off Cook's benefits
completely. Id. Eventually, Cook and MP& L reached a
settlement, but Cook reserved the right to bring a bad-faith
claim against MP& L. Id. Thereafter, Cook filed a
complaint against MP& L, asserting,
among other claims, that MP& L terminated his workers'
compensation benefits in bad faith. Id. After a
trial, the jury returned a verdict in favor of Cook, awarding
both actual and punitive damages. Id. MP& L appealed
to the Mississippi Supreme Court, arguing that there was no
evidence " to show that MP& L ha[d] acted out of malice,
with gross neglect or otherwise tortiously."
Id. at 480 (¶ 16). In affirming the jury's
verdict, the Mississippi Supreme Court stated
that " the denial of benefits does not have to be
wi[l]lful or malicious[,] but there may not be an arguable
basis to deny the claims." Id. at 480-81
(¶ 16) (citing Miller v. McRae's Inc., 444
So.2d 368 (Miss. 1984)).
Just as MP& L did in Cook, Coke initially accepted
Thomas's claim as compensable and paid certain medical
expenses, but thereafter terminated the payments. Further,
just as reliance upon a medical report was involved in
Cook in the denial of benefits, reliance upon a
medical report is involved here in Thomas's denial of
benefits. In Cook, the medical report provided that
Cook had a fifteen percent permanent disability to his right
arm. In our case, the ORA report determined
that Thomas's present condition, though not a new injury,
was the result of the aggravation of injuries that occurred
in prior accidents, one of which was work related.
I find the existence of a genuine issue of material fact as
to whether Coke had an arguable basis for refusing to pay
compensation benefits to Thomas. This is so for two reasons.
First, there is clear evidence that Coke had a substantial
pecuniary interest to protect, because, according to the
policy, the Laurel plant would be responsible for payment up
to the first $250,000. Second, ORA's report cannot be
properly read to exclude coverage, even if the determination
by the doctors--that the June 4, 2001 accident did not result
in a new injury--is correct because our law has long been
well settled that an on-the-job injury that aggravates a
preexisting condition is compensable.
For the reasons presented, I dissent. I would reverse the
summary judgment and remand this case for further
C.J., AND JAMES, J., JOIN THIS OPINION. MAXWELL, J., JOINS
THIS OPINION IN PART.
Presumably this is how CNA entered into the
picture, as it is the " adjusting arm" charged with
investigating, administering, and adjusting claims filed
under the American Casualty insurance policy.
The record does not shed further light on
this status change. However, it appears that Thomas was
recategorized from his regular salary to workers'
The record reflects two other important
entries that CNA made in Thomas's file. I quote those two
entries during my discussion of American Casualty and
CNA's argument that they possessed an arguable basis for
denying Thomas's claim. However, neither entry shows that
Redferrin conducted an investigation.
The parties to a claim may enter into a
compromise settlement of a claim whether it is controverted
or noncontroverted. When the parties have entered into
compromise settlement of a claim pending at the Commission,
the parties must submit an agreed petition for approval of
compromise settlement to the Commission.
Neither Thomas nor the appellees
differentiate between American Casualty and CNA in their role
in this bad-faith action.
A claims manager at Coke.
The supreme court affirmed the award of
compensatory damages in toto but affirmed the award of
punitive damages on the condition that Cook accept a
remittitur of $500,000, or a new trial on the issue of
punitive damages was ordered. Cook, 832 So.2d at
487-88 (¶ 43).
I note that there were several claims at
issue in Cook that perhaps explain why MP& L denied
benefits despite a medical report assessing a fifteen percent