F&F Construction v. Gary Holloway
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2007-WC-00155-COA
F&F CONSTRUCTION, A MEMBER OF THE BCAM
SELF-INSURERS’ FUND
APPELLANT
v.
GARY HOLLOWAY
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
APPELLEE
12/13/2006
HON. STEPHEN B. SIMPSON
HARRISON COUNTY CIRCUIT COURT
MICHAEL D. YOUNG
JAMES KENNETH WETZEL
CIVIL - WORKERS’ COMPENSATION
AFFIRMED THE DECISION OF THE
MISSISSIPPI WORKERS’ COMPENSATION
COMMISSION TO AWARD COMPENSATION
AFFIRMED: 01/29/2008
BEFORE MYERS, P.J., GRIFFIS AND CARLTON, JJ.
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 workrelated 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 listing 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
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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 workrelated.
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).
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¶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)).
ANALYSIS
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 prima 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
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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.
....
His story is credible.
¶13.
Crucial to our decision in this case is the requirement that “[t]his Court will overturn a
[C]ommission decision only for an error of law . . . or an unsupportable finding of fact.” Atlas
Roll-Lite Door Corp. v. Ener, 741 So. 2d 343, 346-47 (¶10) (Miss. Ct. App. 1999) (quoting Georgia
Pacific Corp. v. Taplin, 586 So. 2d 823, 826 (Miss. 1991)). Here, there is no error of law so we
must determine whether the administrative law judge’s findings are unsupported.
¶14.
This Court considered a similar claim in Walden Lumber Yard v. Miller, 742 So. 2d 785
(Miss. Ct. App. 1999). In Walden Lumber Yard, there was also conflicting testimony about the exact
date of the injury. The employer argued that its records proved that the claimant did not work on
the date he claimed to have been injured. Id. at 787 (¶4). There, the administrative judge found that
the claimant was an honest, hard-working individual whose lack of formal education contributed to
his confusion as to the date of injury. Id. at 787 (¶5). Upon a review of the record, we held that
substantial evidence existed to uphold the Commission’s award of compensation because the
administrative law judge considered the testimony and evidence of both the claimant and the
employer in making its decision. Id. at 789 (¶8). We held that “[t]he Commission is the ultimate
finder of fact and has the discretion to weigh all the evidence presented. The Commission exercised
its discretion in its order based on what we believe to be substantial evidence, and the circuit court
appropriately affirmed. This Court is also obligated to affirm.” Id.
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¶15.
After a review of the record in this case, we find that substantial evidence existed to support
the administrative law judge’s decision to award compensation. The administrative law judge heard
testimony from both Holloway and the Employer regarding the actual date of injury. Holloway’s
education level and work experience were also taken into account. The Commission is the ultimate
fact finder in this case and great deference is given to its decision.
¶16.
The dissent relies on the proposition that most of the evidence contained in the record
established the date of injury as September 17, 2004, and because Holloway did not report to work
that day, he has not met his burden of proving that his injury was work-related. However, when
reviewing decisions by the Commission, this Court “will not determine where the preponderance
lies when the evidence is conflicting.” Lanterman v. Roadway Express, Inc., 608 So. 2d 1340, 1345
(Miss. 1992) (quoting Metal Trims Indus., Inc. v. Stovall, 562 So. 2d 1293, 1206-07 (Miss.1990)).
The Commission, as the ultimate fact-finder, found Holloway’s testimony to be credible. It
concluded that his educational level contributed to the confusion of dates and found Holloway to
be a dependable, faithful employee, as well as a credible witness.
¶17.
Because we find that substantial evidence existed to support the Commission’s decision, we
hold that the circuit court correctly affirmed its ruling.
¶18. THE JUDGMENT OF THE CIRCUIT COURT OF HARRISON COUNTY IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.
KING, C.J., LEE AND MYERS, P.JJ., BARNES, ISHEE AND ROBERTS, JJ.,
CONCUR. CARLTON, J., DISSENTS WITH SEPARATE OPINION JOINED BY IRVING
AND CHANDLER, JJ.
CARLTON, J., DISSENTING:
¶19.
Because the record does not contain sufficient evidence to support the Commission’s
decision, I respectfully dissent. I find that Holloway failed to meet his burden of proof and that the
Commission’s decision was based on pure conjecture.
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¶20.
A worker’s compensation claimant bears the burden to prove “every essential element of the
claim, and it is not sufficient to leave the matter to surmise, conjecture, or speculation.” Toldson
v. Anderson-Tully Co., 724 So. 2d 399, 402 (¶11) (Miss. 1998) (citations omitted). “The claimant
generally bears the burden of proof to show an injury arising out of employment, and a causal
connection between the injury and the claimed disability.” Penrod Drilling Co. v. Etheridge, 487
So. 2d 1330, 1332 (Miss. 1986). I find that Holloway’s own testimony and other evidence in the
record undermined his claim for compensation such that the Commission was left to speculate as
to whether Holloway’s injury arose out of his employment.
¶21.
In his petition to controvert, Holloway alleged that he suffered a work-related injury on
Friday, September 17, 2004. However, payroll records reveal that Holloway did not work from
September 15, 2004 to September 19, 2004, due to Hurricane Ivan striking the Mississippi Gulf
Coast on September 16, 2004. Prompted by the discovered factual impossibility surrounding his
claim, Holloway filed an amended petition to controvert asserting that his injury occurred on
September 10, 2004. Holloway further claimed that he was injured while laying pipe at the airport
job site. However, payroll records show that he did not work at the airport on either September 10,
2004, or September 17, 2004. Moreover, the records reveal that Holloway did not work at the
airport job site on any day between September 10, 2004 and September 17, 2004.
¶22.
Additionally, Holloway presented to the Memorial Hospital in Gulfport, Mississippi at 7:58
a.m. on Friday September 17, 2004. Later, on October 6, 2004, Holloway came under the care of
Dr. Eugene McNally and, specifically reported that he sustained an injury on September 17, 2004.
On October 8, 2004, Holloway gave a recorded statement to AmFed Insurance Company with his
attorney present. Holloway again claimed that he was injured on September 17, 2004, while
working at the airport site. Holloway also stated that he went to the hospital on the same day that
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he was injured. On October 12, 2004, Holloway gave a written statement that the accident occurred
on September 17, 2004, at the airport site.
¶23.
It is apparent from the record that the Commission did not base its decision on substantial
evidence. The record is littered with Holloway’s declarations that he was injured on September 17,
2004. However, the record clearly shows that he did not work on September 17, 2004. Aside from
Holloway’s assertion to the contrary, all of the evidence in the record contradicts his claim that he
suffered a work-related injury. For these reasons, I contend that Holloway failed to meet his burden
of proof. Accordingly, I would reverse the Commission’s grant of benefits to Holloway.
IRVING AND CHANDLER, JJ., JOIN THIS SEPARATE OPINION.
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