TRACIE L. HARDY APPELLANT
XANITOS, INC. AND NORTH RIVER INSURANCE COMPANY APPELLEES
OF JUDGMENT: 12/06/2018
MISSISSIPPI WORKERS' COMPENSATION APPEALED: COMMISSION
ATTORNEY FOR APPELLANT: TRACIE L. HARDY (PRO SE)
ATTORNEY FOR APPELLEES: COURTNEY TITUS DAVIS
BARNES, C.J., McCARTY AND C. WILSON, JJ.
After allegedly suffering a back injury while at work, Tracie
Hardy filed a petition to controvert with the Mississippi
Workers' Compensation Commission (Commission). The
administrative judge (AJ) who initially heard Hardy's
case denied benefits. Hardy appealed to the Commission. But
her appeal was filed outside the time allowed, and the
Commission dismissed her case as untimely without reaching
the merits. Hardy now appeals to this Court. Finding no
error, we affirm.
AND PROCEDURAL HISTORY
Hardy worked as an operations manager for Xanitos Inc. On
April 16, 2018, Hardy filed a petition to controvert,
alleging that she injured her back on March 6, 2018, while
working in the course and scope of her employment. An AJ held
a hearing on Hardy's claim on October 9, 2018.
Thereafter, on November 1, 2018, after reviewing the evidence
in the record and writing a detailed opinion, the AJ denied
Hardy's claim for compensation, finding that Hardy failed
to establish the existence of a work-related injury.
The AJ's denial of Hardy's claim became final
November 20, 2018. Although Hardy was represented by counsel
at her initial hearing, Hardy filed a request for review by
the Commission pro se, on November 28, 2018. In her request
for review, Hardy stated, "I was notified of the
decision on [November 26, 2018, ] by my former attorney . . .
after I inquired about the process. My understanding is I
have until Friday, November 30, 2018, to retain an appeal
[counsel] per my former attorney." Hardy did not support
her request for review with any evidence to explain or
substantiate her reasons for failing to abide by the
statutory timeline for appeal. On December 6, 2018, the
Commission dismissed Hardy's request for review as
untimely without reaching the merits of her claim. Hardy
noticed her appeal to this Court on December 21, 2018.
On appeal, Hardy largely sidesteps the Commission's order
dismissing her untimely request for review of the AJ's
opinion. In her reply brief, Hardy states that her failure to
request timely review of the AJ's denial of her claim was
due to her former attorney's late receipt of the AJ's
order and counsel's incorrect advice that Hardy had
thirty days to appeal. For support, she cites two documents:
(1) a "cease and desist" letter Hardy sent her
attorney dated December 21, 2018,  in which Hardy demanded that
her attorney withdraw from representation and complained that
the law firm was "still logging in the
[Commission's] system checking the status of
[Hardy's] case"; and (2) a notice of attorney's
lien filed with the Commission by her former attorney on
January 8, 2019. The Commission did not have either of these
documents in its record when it dismissed Hardy's request
for review (or, for that matter, before Hardy filed her
notice of appeal to this Court). As to the merits of her
claim, Hardy asserts that the AJ erred in finding that she
had not suffered a compensable injury and that the AJ's
ruling was contrary to applicable law and not supported by
substantial evidence. After reviewing the record, we find no
error and affirm.
This Court's standard of review in workers'
compensation cases is one of substantial deference.
Roberson v. LFI Fort Pierce Inc., 3 So.3d 788, 789
(¶4) (Miss. Ct. App. 2008). "This Court will
reverse an order of the Workers' Compensation Commission
only where such order is clearly erroneous and contrary to
the overwhelming weight of the evidence." Ford v.
KLLM Inc., 909 So.2d 1194, 1195 (¶3) (Miss. Ct.
App. 2005) (citing Mitchell Buick, Pontiac & Equip.
Co. v. Cash, 592 So.2d 978, 980 (Miss. 1991)).
Mississippi Code Annotated section 71-3-47 states that the
decision of an AJ "shall be final unless within twenty
(20) days a request or petition for review by the full
commission is filed." Consistent with this statute, the
Commission's Procedural Rule 2.10 and Mississippi case
law clearly establish that a claimant must file a request or
petition for review within twenty days of an AJ's
decision. See Ford, 909 So.2d at 1196 (¶ 4);
see also Staples v. Blue Cross and ...