Windie Kopitskie v. H&K Drywall

• Court: Court of Appeals of Mississippi
• Decided: June 25, 2019
• Docket: 2018-WC-00792-COA
• Status: Published

Opinion

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2018-WC-00792-COA

WINDIE KOPITSKIE APPELLANT

v.

H&K DRYWALL AND AMFED NATIONAL APPELLEES INSURANCE COMPANY

DATE OF JUDGMENT: 05/08/2018 TRIBUNAL FROM WHICH MISSISSIPPI WORKERS’ COMPENSATION APPEALED: COMMISSION ATTORNEY FOR APPELLANT: JOSEPH RODNEY FRANKS ATTORNEY FOR APPELLEES: JARED HAMILTON HAWKINS NATURE OF THE CASE: CIVIL - WORKERS’ COMPENSATION DISPOSITION: APPEAL DISMISSED - 06/25/2019 MOTION FOR REHEARING FILED: MANDATE ISSUED:

BEFORE WILSON, P.J., WESTBROOKS AND McDONALD, JJ.

WESTBROOKS, J., FOR THE COURT:

¶1. Windie Kopitskie alleged she sustained a work-related injury on June 4, 2015, and

filed a petition to controvert with the Mississippi Workers’ Compensation Commission. The

Commission ultimately dismissed Koptiskie’s claim without prejudice and remanded the case

back to the Administrative Judge (AJ) to dispose of all remaining issues. Kopitiskie appeals.

We find that we lack jurisdiction to address the merits of this appeal and dismiss.

FACTS AND PROCEDURAL HISTORY

¶2. Kopitskie filed a workers’ compensation claim alleging a work-related back injury

that occurred on or about June 4, 2015. In May 2017, Kopitskie filed a petition to controvert

with the Mississippi Workers’ Compensation Commission (Commission). ¶3. Kopitskie maintains that she propounded request for admissions to H&K Drywall and

Amfed National Insurance Company on or around June 2017 and moved to have those

deemed admitted in August 2017. In October 2017, Kopitskie propounded a second set of

request for admissions with a mailed copy of the first set of request for admissions via

certified mail; however, all documents were “returned to sender.” H&K and Amfed allege

that they never received the notices of requests.

¶4. In November 2017, H&K Drywall and Amfed responded to all requests for

admissions. Kopitskie then moved to strike those responses and filed a supplemental motion

to deem the requests for admissions admitted.

¶5. Following a telephonic hearing on April 4, 2018, the AJ denied Kopitskie’s motion

to strike H&K & Amfed’s responses to her first and second set of requests. Kopitskie then

sought review before the full Commission. The Commission issued an order dismissing

Koptiskie’s petition for review, and the Commission explained that the order was

interlocutory in nature because it failed to dispose of all the issues pending before the AJ.

Aggrieved, Kopitskie appeals.

STANDARD OF REVIEW

¶6. The Mississippi Supreme Court has held that “[w]e have a very limited scope of

review under the substantial evidence and/or arbitrary and capricious standard.” Raytheon

Aerospace Support Servs. v. Miller, 861 So. 2d 330, 335 (¶9) (Miss. 2003). “The substantial

evidence test is used.” Weatherspoon v. Croft Metals Inc., 853 So. 2d 776, 778 (¶6) (Miss.

2 2003). “Th[e] [reviewing court] will overturn the Workers’ Compensation Commission

decision only for an error of law or an unsupported finding of fact.” Id. (quoting Georgia

Pac. Corp. v. Taplin, 586 So. 2d 823, 826 (Miss.1991)). “Reversal is proper only when a

Commission order is not based on substantial evidence, is arbitrary or capricious, or is based

on an erroneous application of the law.” Total Transp. Inc. of Miss. v. Shores, 968 So. 2d

400, 404 (¶15) (Miss. 2007) (quoting Smith v. Jackson Constr. Co., 607 So. 2d 1119, 1124

(Miss.1992)).

DISCUSSION

¶7. Kopitskie maintains that the AJ erred in denying her motion to deem the request for

admissions admitted, her supplemental motion to deem the request for admissions admitted,

and her motion to strike H&K and Amfed’s responses to her first and second set of requests

for admissions.

¶8. In an order dated May 8, 2018, the Commission dismissed Kopitskie’s petition for

review without prejudice and remanded to the AJ for such further proceedings necessary to

dispose of all the remaining issues. Furthermore, the Commission informed Kopitskie that

the order was interlocutory in nature. This Court has held that “[i]nterlocutory orders by the

Workers’ Compensation Commission are not appealable.” Superior Mfg. Grp. Inc. v.

Crabtree, 62 So. 3d 992, 995 (¶11) (Miss. Ct. App. 2011) (quoting Cunningham Enters. Inc.

v. Vowell, 937 So. 2d 32, 34 (¶3) (Miss. Ct. App. 2006)). “Further, an appeal may not be

taken unless the Commission’s order is final.” Id. (quoting Flexible Flyer Inc. v. Harris, 755

3 So. 2d 50, 51 (¶7) (Miss. Ct. App.1999)).

¶9. Accordingly, because no final order has been issued, we must dismiss this appeal for

lack of jurisdiction.

¶10. APPEAL DISMISSED.

BARNES, C.J., CARLTON AND J. WILSON, P.JJ., GREENLEE, TINDELL, McDONALD, LAWRENCE, McCARTY AND C. WILSON, JJ., CONCUR.