The University of Southern Mississippi v. Dawn P. Gillis
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2002-WC-02038-COA
THE UNIVERSITY OF SOUTHERN MISSISSIPPI
AND MISSISSIPPI INSTITUTIONS OF HIGHER
LEARNING, SELF-INSURED
v.
DAWN P. GILLIS
DATE OF TRIAL COURT JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANTS:
ATTORNEY FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
CERTIORARI FILED:
MANDATE ISSUED:
APPELLANTS
APPELLEE
11/18/2002
HON. RICHARD W. MCKENZIE
FORREST COUNTY CIRCUIT COURT
JOSEPH T. WILKINS
ORVIS A. SHIYOU
CIVIL - WORKERS’ COMPENSATION
THE DECISION OF THE WORKERS'
COMPENSATION COMMISSION REVERSED
REVERSED AND RENDERED - 12/16/2003
BEFORE SOUTHWICK, P.J., MYERS AND CHANDLER, JJ.
CHANDLER, J., FOR THE COURT:
¶1.
This is a workers’ compensation case that comes before the Court on appeal from the Circuit
Court of Forrest County. The claimant/appellee, Dawn Gillis, worked for the University of Southern
Mississippi in the capacity of a counselor and teacher. Gillis suffers from lupus, Meniere’s disorder and
allergic rhinitis. She contends that she was forced to quit her job because her medical conditions were
aggravated by the work environment at USM. Gillis appealed the decision of the Workers’ Compensation
Commission affirming the administrative law judge’s finding to deny compensation benefits. On November
14, 2001, the circuit court affirmed the order of the Commission but later reversed this order and entered
a second order on July 2, 2002. In a third order, the circuit court vacated the two conflicting orders. On
November 18, 2002, the circuit court entered a fourth and final order reversing the Full Commission’s
decision that denied benefits to Gillis. The University of Southern Mississippi and Mississippi Institutions
of Higher Learning (hereinafter USM) timely filed their appeal from this fourth and final order. USM in its
appeal, cites the following two issues:
1.
2.
¶2.
CAN THE CIRCUIT COURT OF FOREST COUNTY, MISSISSIPPI, ACTING IN
ITS APPELLATE POWERS, RETAIN INFINITE JURISDICTION ON A MATTER
IN WHICH A FINAL ORDER HAS BEEN ISSUED AND NO APPEAL HAS BEEN
TAKEN BY THE AGGRIEVED PARTY WITHIN THE THIRTY DAY LIMITATION
AFTER THE ISSUANCE OF THE FINAL ORDER PURSUANT TO MISSISSIPPI
RULE OF APPELLATE PROCEDURE 4(A)?
THE COMMISSION IS THE FINDER OF FACTS AND IF SUPPORTED BY
SUBSTANTIAL EVIDENCE, THE COMMISSION ORDER SHOULD BE UPHELD
AND THIS COURT SHOULD REVERSE THE LOWER COURT AND REINSTATE
THE UNANIMOUS COMMISSION ORDER BECAUSE THE CLAIM OF DAWN
GILLIS IS TIME BARRED BY THE TWO-YEAR STATUTE OF LIMITATIONS.
We reverse the trial court’s holding and reinstate its initial order of November 14, 2001, affirming
the Workers’ Compensation Commission.
FACTS
¶3.
Gillis was employed at USM in the capacity of a counselor and teacher. Her duties included
teaching classes, counseling students and administering college entrance exams. Gillis was approximately
forty-seven years of age at the onset of her work related injury. Gillis suffers from lupus, allergic rhinitis,
and Meniere’s disorder. Gillis contends she was forced to leave her job at USM due to work related
stress and because cigarette smoke in the work place aggravated her medical conditions. USM adopted
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a policy on May 22, 1989, which prohibited smoking in indoor locations where smokers and non-smokers
occupy the same area. Yet, Gillis contends the policy was ignored by many in her department.
¶4.
In September of 1993, Gillis took a medical leave from her employment with USM. She applied
for and was granted total disability benefits from the Social Security Administration and the Public
Employees' Retirement System. Gillis’ primary attending physicians are Dr. Robert McCary and Dr. Kurt
Bruckmeier.
¶5.
On December 27, 1991, Gillis sought treatment from Dr. Kurt Bruckmeier for her lupus. Gillis
informed Dr. Bruckmeier that the disease was having an effect on her job performance in April 1992. She
complained of feeling lightheaded and reported that her condition seemed to worsen with bad weather and
stress. On June 10, 1993, Gillis informed Dr. Bruckmeier that stress from her job was causing skin lesions
to break out on her body from the lupus.
¶6.
On April 13, 1993, Gillis made an appointment to see Dr. Robert McCary because she was
having problems keeping her balance. Dr. McCary diagnosed Gillis with Meniere’s disorder due to the
ringing and popping in her ears. Meniere’s disorder occurs when there is increased pressure of the fluids
of the inner ear due to a secondary lack of absorption.
Dr. McCary recommended a series of allergy
tests. The test results showed a positive allergic reaction to tobacco smoke. Dr. McCary opined that a
smoke-filled work environment decreased Gillis’ ability to deal with her disease processes. Dr. McCary
wrote letters to USM regarding the adverse medical effects the smoke-filled work environment was having
on Gillis’ health.
¶7.
On June 9, 1993, Joanne Stevens, dean of student services at USM, sent a letter to employees
at the USM counseling center concerning their non-compliance with the university’s smoking policy.
Stevens noted that until January 1, 1994, the counseling center would be a smoke free environment. After
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that time, smoking would be allowed in the counseling center provided each person would open the
windows and close the doors when smoking in a room. Also, a draft protection device was to be placed
between the offices of Gillis and the dean when anyone chose to smoke in his office. Gillis contends that
the policy was not enforced after its inception and that she suffered as a consequence of it.
¶8.
On September 14, 1993, Gillis resigned from her employment at USM. She filed her petition to
controvert on September 7, 1995. A hearing was held and the administrative law judge rendered an
opinion on December 18, 1998, denying her benefits. Gillis appealed the decision to the Full Commission
on January 7, 1999. The order of the administrative law judge was affirmed on May 13, 1999. Feeling
aggrieved, Gillis appealed to the Circuit Court of Forrest County which affirmed the findings of the Full
Commission on November 14, 2001, and entered the order on the docket that same day.
¶9.
Gillis did not appeal from the November 14, 2001 order. Gillis’ counsel argues that he frequently
asked the circuit court whether it had made a decision in the case. Counsel alleges the circuit judge showed
him a file on the floor beside the bench, which led him to believe no action had been taken to resolve the
matter. Upon additional inquiry, the circuit court advised Gillis’ counsel to prepare an order reversing the
Full Commission. The order reversing the Full Commission was entered on July 2, 2002.
The circuit
court vacated its conflicting orders on October 14, 2002, and issued a fourth order, dated November 18,
2002, reversing the decision of the administrative law judge and Full Commission. It is from the issuance
of the final orders that USM appeals.
1.
CAN THE CIRCUIT COURT OF FOREST COUNTY, MISSISSIPPI, ACTING IN ITS
APPELLATE POWERS, RETAIN INFINITE JURISDICTION ON A MATTER IN WHICH
A FINAL ORDER HAS BEEN ISSUED AND NO APPEAL HAS BEEN TAKEN BY THE
AGGRIEVED PARTY WITHIN THE THIRTY DAY LIMITATION AFTER THE ISSUANCE
OF THE FINAL ORDER PURSUANT TO MISSISSIPPI RULE OF APPELLATE
PROCEDURE 4(A)?
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¶10.
USM argues the circuit court lost jurisdiction over the matter when Gillis failed to timely appeal
the November 14, 2001 ruling which denied compensation benefits. Gillis argues Mississippi Rule of
Appellate Procedure 4(h) provides her relief because she had no notice of the entry of the November 14,
2001 order by the clerk of the court as required by Mississippi Rule of Civil Procedure 77. We address
USM’s contention that the November 18, 2002 order is void for want of jurisdiction by the circuit court.
¶11.
The circuit court shall have such appellate jurisdiction as prescribed by law. Miss. Code Ann.
§ 9-7-81 (Supp. 2003). The circuit court sits as an intermediate court of appeals in a workers’
compensation case. Delta CMI v. Speck, 586 So.2d 768, 772 (Miss.1991). Mississippi Rule of
Appellate Procedure 4(a) provides:
[I]n a civil or criminal case in which an appeal or cross-appeal is permitted by law as
of right from a trial court to the Supreme Court, the notice of appeal required by Rule
3 shall be filed with the clerk of the trial court within 30 days after the date of entry of
the judgment or order appealed from. If a notice of appeal is mistakenly filed in the
Supreme Court, the clerk of the Supreme Court shall note on it the date on which it
was received and transmit it to the clerk of the trial court and it shall be deemed filed
in the trial court on the date so noted.
¶12.
A judgment becomes effective the date it is entered on the general docket of the clerk of court.
M.R.C.P. 58. An appeal may be taken to the supreme court from any final judgment of a circuit or
chancery court in a civil case. Miss. Code Ann. § 11-51-3 (Supp. 2003). Mississippi Rule of Appellate
Procedure 4(h) provides:
The trial court, if it finds (a) that a party entitled to notice of the entry of a judgment or
order did not receive such notice from the clerk or any party within 21 days of its entry
and (b) that no party would be prejudiced, may, upon motion filed within 180 days of
entry of the judgment or order or within 7 days of receipt of such notice, whichever is
earlier, reopen the time for appeal for a period of 14 days from the date of entry of the
order reopening the time for appeal.
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¶13.
The comment to Rule 4(h) states the “reopening may be ordered only upon a motion filed within
180 days of the entry of a judgment or order or within 7 days of receipt of notice of such entry, whichever
is earlier. This provision establishes an outer time limit of 180 days for a party who fails to receive timely
notice of entry of a judgment or order.” M.R.A.P. 4(h).
¶14.
The circuit court’s judgment denying Gillis compensation benefits was entered on the court’s docket
on November 14, 2001. Gillis had thirty days to appeal the circuit court’s order to the Mississippi
Supreme Court. Counsel for Gillis claims the circuit court led him to believe no action had been taken to
resolve the matter. Gillis also alleges that she did not receive notice from the clerk of the court that the
order had been entered on the docket.
¶15.
Gillis failed to file an appeal within thirty days of the circuit court’s order as required by Mississippi
Rule of Appellate Procedure 4(a). The last date that Gillis could request an out-of-time appeal under Rule
4(h) was 180 days after the November 14, 2001 order was entered on the general docket. Accordingly,
Gillis' time to file a motion for an out-of-time appeal expired May 16, 2003. The record is void of any
motion by Gillis. Neither this Court nor the circuit court has the power to suspend the time limit that is set
forth in Rule 4(h). Therefore, we find that the circuit court was without jurisdiction when it issued all orders
subsequent to the first order.
2.
THE COMMISSION IS THE FINDER OF FACTS AND IF SUPPORTED BY
SUBSTANTIAL EVIDENCE, THE COMMISSION ORDER SHOULD BE UPHELD AND
THIS COURT SHOULD REVERSE THE LOWER COURT AND REINSTATE THE
UNANIMOUS COMMISSION ORDER BECAUSE THE CLAIM OF DAWN GILLIS IS
TIME BARRED BY THE TWO-YEAR STATUTE OF LIMITATIONS.
¶16.
This Court applies the same standard of review as the circuit court. State Tax Comm'n v.
Vicksburg Terminal, Inc., 592 So.2d 959, 961 (Miss.1991). If supported by substantial evidence, the
Court will affirm the findings and order of the Commission. Vance v. Twin River Homes, Inc., 641 So.2d
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1176, 1180 (Miss.1994). 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."
Mitchell Buick, Pontiac & Equip. Co. v. Cash, 592 So.2d 978, 980 (Miss.1991). If the Commission's
findings are supported by substantial evidence, appellate courts are bound by the Commission's findings,
even if the evidence would persuade this Court to find otherwise, if it were the fact finder. Hedge v.
Leggett & Platt, Inc., 641 So.2d 9, 12 (Miss.1994).
¶17.
When the circuit court reviews findings and conclusions of the Mississippi Workers' Compensation
Commission, it sits as an intermediate court of appeals. Walker Mfg. Co. v. Cantrell, 577 So.2d 1243,
1247 (Miss.1991). As such the circuit court reviews all questions of law and fact. Roberts v. Junior Food
Mart, 308 So.2d 232, 235 (Miss.1975). See also Miss.Code Ann. § 71-3-51 (Rev. 2000). "[W]hen the
decision of the Commission is before the circuit court on intermediate appeal, that circuit court may not
tamper with the findings of fact, where the findings are supported by a sufficient weight of the evidence."
Natchez Equip. Co. v. Gibbs, 623 So.2d 270, 274 (Miss.1993).
¶18.
Assuming arguendo, the circuit court retained jurisdiction over the matter, we find there was
substantial evidence to support the decision of the Full Commission denying benefits to Gillis. The Full
Commission based its decision to deny compensation on Gillis’ failure to file a claim within two years.
Mississippi Code Annotated Section 71-3-35(1) (Supp. 2003) states in relevant part:
Regardless of whether notice was received, if no payment of compensation (other than
medical treatment or burial expense) is made and no application for benefits filed with
the commission within two years from the date of the injury or death, the right to
compensation therefor shall be barred.
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Gillis directs the Court’s attention to the holding in Quaker Oats Co. v. Miller, 370 So.2d 1363, 1366
(Miss. 1979), to support her position that she is not barred by the two year statute of limitations. In Miller
the court stated:
The time period for notice or claim does not begin to run until the claimant, as a
reasonable man, should recognize the nature, seriousness and probable compensable
character of his injury or disease.
¶19.
The administrative law judge addressed the statute of limitations issue and found that Gillis was time
barred. He determined that Gillis knew as a reasonable person that her medical conditions evolved and
became apparent between 1990 and 1992. The administrative law judge specifically found that Gillis knew
her lupus condition and Meniere’s disease were aggravated by her work at USM during the years 1990-92
and no later than June 1993. Gillis related the medical problems to her physicians, which was evidenced
in a letter to Joanne Stevens, dean of student services at USM as well as the testimony of Dr. McCary and
Dr. Bruckmeier. Yet, Gillis did not file her petition to controvert until September 7, 1995.
¶20.
The administrative law judge and Full Commission cited the two year statute of limitations as a bar
to Gillis' receipt of compensation benefits. These decisions were based on substantial evidence in the
record. The Court reverses the November 18, 2002 order and reinstates the November 14, 2001 order
of the circuit court which affirmed the decision of the Full Commission.
¶21. THE JUDGMENT OF THE CIRCUIT COURT OF FORREST COUNTY IS
REVERSED AND RENDERED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
APPELLEE.
McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE,
IRVING, MYERS AND GRIFFIS, JJ., CONCUR.
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