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Hardy v. Xanitos, Inc.

Court of Appeals of Mississippi

November 5, 2019

TRACIE L. HARDY APPELLANT
v.
XANITOS, INC. AND NORTH RIVER INSURANCE COMPANY APPELLEES

          DATE OF JUDGMENT: 12/06/2018

          MISSISSIPPI WORKERS' COMPENSATION APPEALED: COMMISSION

          ATTORNEY FOR APPELLANT: TRACIE L. HARDY (PRO SE)

          ATTORNEY FOR APPELLEES: COURTNEY TITUS DAVIS

          BEFORE BARNES, C.J., McCARTY AND C. WILSON, JJ.

          C. WILSON, J.

         ¶1. 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.

         FACTS AND PROCEDURAL HISTORY

         ¶2. 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.

         ¶3. The AJ's denial of Hardy's claim became final November 20, 2018.[1] 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.

         ¶4. 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, [2] 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.

         ANALYSIS

         ¶5. 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)).

         ¶6. 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 ...


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