F & F Construction v. Holloway

981 So. 2d 329, 2008 Miss. App. LEXIS 60, 2008 WL 223255
CourtCourt of Appeals of Mississippi
DecidedJanuary 29, 2008
DocketNo. 2007-WC-00155-COA
StatusPublished
Cited by6 cases

This text of 981 So. 2d 329 (F & F Construction v. Holloway) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
F & F Construction v. Holloway, 981 So. 2d 329, 2008 Miss. App. LEXIS 60, 2008 WL 223255 (Mich. Ct. App. 2008).

Opinions

GRIFFIS, J.,

for the Court.

¶ 1. F & F Construction (“F & F” or the “Employer”) appeals the decision of the Mississippi Workers’ Compensation Commission to grant benefits to Gary Holloway after he sustained a work-related injury. The administrative law judge found that Holloway’s back injury was work-related and ordered that he receive workers’ compensation benefits. The Employer appealed the order to the Full Commission, and it was affirmed. The Employer then appealed to the Circuit Court of Harrison County, and the Commission’s decision was affirmed. The Employer now appeals and argues that there was no substantial evidence to uphold the Commission’s ruling. We find no error and affirm.

FACTS

¶ 2. Gary Holloway worked for F & F as a pipe layer. During the times relevant to Holloway’s claim for compensation, F & F was laying pipe at three different locations: the Biloxi/Gulfport airport, Hope VI Bayview Homes, and Jefferson Davis Community College. Holloway worked at each job site, depending on which site was the highest priority on a given work day. Occasionally, Holloway would work a few hours at one site and then move to another site that same day.

¶ 3. Holloway claimed that he was injured while laying pipe at the airport job site. He testified that he felt his back pop as he was pulling up a piece of pipe. The exact date of this injury is disputed by the parties. In Holloway’s initial petition to controvert, the date of injury was listed as Friday, September 17, 2004. However, Hurricane Ivan hit the Mississippi coast on Thursday, September 16, 2004; thus, Holloway and most of the other employees did not work on September 17th. Holloway filed an amended petition to controvert [331]*331listing September 10, 2004, as the date of injury.

¶ 4. This discrepancy forms the basis of the Employer’s argument that there was no substantial evidence that Holloway sustained his injury while at work. In his testimony, Holloway was adamant that his injury occurred on a Friday at the airport job site, but he was not sure if it happened on September 10th or September 17th. However, he did not work on Friday, September 17th and the Employer’s certified payroll records show that, on Friday, September 10th, Holloway worked a full day at the Hope VI Bayview Homes job site and not at the airport as he claims.

¶ 5. Holloway’s medical records show that he was treated at the emergency room at Memorial Hospital in Gulfport on Friday, September 17, 2004, at 7:58 a.m. Holloway’s girlfriend delivered the hospital records to the Employer’s business manager in charge of workers’ compensation claims on September 30, 2004. This was the first notice of the injury received by the business manager despite the Employer’s policy that it be notified of any injury within twenty-four hours. This is another point of contention between the parties because Holloway claimed that he immediately notified his supervisor on the same day the injury occurred. However, all of the Employer’s supervisors claimed to have no knowledge of his injury until notified by the business manager after she received Holloway’s medical records on September 30th.

¶ 6. Holloway testified that he has very poor reading skills, and he cannot keep up with dates. Indeed, he gave many conflicting statements about the date of the injury. In one statement, Holloway said that he reported to the emergency room on the same day as the injury, and in another he said that he waited a week before going to the hospital because he thought that the pain might get better without seeing a doctor.

¶ 7. Because of the confusion surrounding the date of the injury, the Employer argues that no substantial evidence exists to support the Commission’s decision that Holloway’s injury was work-related.

STANDARD OF REVIEW

¶ 8. This Court’s scope of review in workers’ compensation cases is limited to a determination of whether the decision of the Commission is supported by substantial evidence. Westmoreland v. Landmark Furniture, Inc., 752 So.2d 444, 447(¶ 7) (Miss.Ct.App.1999). The Commission sits as the ultimate finder of fact; its findings are subject to normal, deferential standards upon review. Natchez Equip. Co. v. Gibbs, 623 So.2d 270, 273 (Miss.1993). We will only reverse the Commission’s rulings when its findings of fact are unsupported by substantial evidence, matters of law are clearly erroneous, or the decision was arbitrary and capricious. Hale v. Ruleville Health Care Ctr., 687 So.2d 1221, 1225 (Miss.1997); Westmoreland, 752 So.2d at 448(¶ 8).

¶ 9. “[A] finding is clearly erroneous when ... the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been made by the Commission in its findings of fact and in its application of the Act.” J.R. Logging v. Halford, 765 So.2d 580, 583(¶13) (Miss.Ct.App.2000). “Where no evidence or only a scintilla of evidence supports a Worker’s Compensation Commission decision, this Court does not hesitate to reverse.” Foamex Prods., Inc. v. Simons, 822 So.2d 1050, 1053(¶ 11) (Miss.Ct.App.2002) (quoting Universal Mfg. Co. v. Barlow, 260 So.2d 827, 831 (Miss.1972)).

[332]*332ANALYSIS

Whether substantial evidence exists to uphold the decision of the Workers’ Compensation Commission to award compensation for Holloway’s injury.

¶ 10. The Employer argues that the Commission’s decision was based on pure conjecture because Holloway cannot prove the injury happened on a specific date or at a specific job site. The Employer argues that it is just as possible that Holloway injured himself preparing for or cleaning up after Hurricane Ivan. Thus, Holloway has not met his burden of proving his case by substantial evidence.

¶ 11. In Hedge v. Leggett & Platt, Inc., 641 So.2d 9, 13 (Miss.1994), the supreme court stated the burden of proof in a workers’ compensation claim as follows:

In a workers’ compensation case, the claimant bears the burden of proving by a “fair preponderance of the evidence” each element of the claim. These elements are: (1) an accidental injury, (2) arising out of and in the course of employment, and (3) a causal connection between the injury and the death or claimed disability.
But, once the claimant makes out a pri-ma facie case of disability, the burden of proof shifts to the employer.

(citations omitted).

¶ 12. The administrative law judge noted that the only issue to be decided at the hearing was whether Holloway sustained a work-related injury on or about September 10, 2004. After reviewing the evidence, the administrative law judge found that Holloway’s injury was in fact work-related. To support this decision, the order stated:

According to his employer and supervisors, Mr. Holloway was a good, dependable, faithful employee, and Mr. Holloway testified that he enjoyed his work as a pipe layer. He is not a very articulate man, however, and he cannot read or write. He also is not good with dates, and this explains the confusion about when he had the work injury.
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His story is credible.

¶ 13. Crucial to our decision in this case is the requirement that “[tjhis Court will overturn a[C]ommission decision only for an error of law ... or an unsupportable finding of fact.”

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Bluebook (online)
981 So. 2d 329, 2008 Miss. App. LEXIS 60, 2008 WL 223255, Counsel Stack Legal Research, https://law.counselstack.com/opinion/f-f-construction-v-holloway-missctapp-2008.