CHARLOTTE MILLS, WIDOW OF RUBEN MILLS, DECEASED                                            CLAIMANT

vs.

HERCULES, INC.                                                                                                                                EMPLOYER
(SELF-INSURED)

REPRESENTING CLAIMANT:
Scott O. Nelson, Esquire, Pascagoula, MS

REPRESENTING EMPLOYER:
Louie F. Ruffin, Esquire, Hattiesburg, MS
Ben E. Sheely, Esquire, Gulfport, MS
 

This matter was heard by the Commission on October 2, 2000 pursuant to the Claimant's Petition for Review. The Claimant is asking that we review, and ultimately reverse, an Order holding her claim in abeyance which was entered by the Administrative Judge on August 4, 2000.
 

On February 18, 2000 Charlotte Mills filed a claim for benefits under the Mississippi Workers' Compensation Law contending that her husband's death arose out of and in the course of his employment with Hercules, Inc. In particular, it is claimed that Mr. Mills was exposed to asbestos containing materials during his employment with Hercules and, as a direct result thereof, developed asbestos related illnesses which caused his death. Hercules promptly denied this claim and has not paid any benefits to Mrs. Mills pursuant to the Mississippi Workers' Compensation Law.

On June 1, 2000 Hercules filed a Motion to Dismiss and Grant Credit Against Future Awards and Settlements in Third Party Actions or in the Alternative to Place in Abeyance. In support of this Motion the Employer asserted that Mrs. Mills, as representative of the deceased, is a plaintiff in a third party product liability action pending in Jackson County Circuit Court which concerns the death of Mr. Mills. Because of Mrs. Mills' pursuit of a product liability claim against certain asbestos manufacturers and/or distributors related to the death of her husband, Hercules argued then, as now, that the pending workers' compensation claim should be dismissed, or in the alternative, held in abeyance pursuant to Miss. Code Ann. §71-3-51 (Rev. 2000) which bars the Commission from hearing any controversy or making any award in a compensation claim "while the same matter is pending either before a federal court or in any court in this state." Hercules also asked that it be given full credit for any sums paid to Mrs. Mills out of her third party claim, with said credit to be applied against any workers' compensation benefits Hercules may pay or owe.

By way of response to the motion of Hercules, Mrs. Mills explained that Ruben Mills, prior to his death, filed a personal injury lawsuit in the Circuit Court of Jackson County, Mississippi against numerous asbestos manufacturers and distributors. As a result of this lawsuit, Mr. Mills received $36,556.59 in settlement proceeds prior to his death. Mrs. Mills continues to prosecute the claim initiated by Mr. Mills against the remaining, non-settling defendants, but no proceeds have been paid by any of these third party defendants since his death by way of judgment, settlement or otherwise.

Mrs. Mills acknowledges that any sums paid by the third party defendants are subject to being credited against the workers' compensation obligations of Hercules, and to this end, she has furnished Hercules with a listing of all third party defendants who have already settled along with the total payments made by each. Mrs. Mills argues, however, that it is both premature and inconsistent for Hercules to demand credit for any third party payments, and at the same time demand that her workers' compensation claim be held in abeyance pending the outcome of the third party claim, when Hercules has yet to pay any workers' compensation benefits and has not been ordered to pay any workers' compensation benefits as the result of her husband's death.

Hercules also questions whether Mrs. Mills should be able to proceed with her workers' compensation claim because Mr. Mills previously filed a claim against his former employer, Ingalls Shipbuilding, for benefits under the federal Longshoremen and Harbor Workers' Compensation Act. This claim apparently alleged that Mr. Mills was injured as the result of his exposure to asbestos containing materials while employed by Ingalls. Hercules also notes that, following the death of Mr. Mills, Mrs. Mills filed a claim for death benefits under the Longshoremen and Harbor Workers' Compensation Act against her husband's former employer, Ingalls Shipbuilding. This claim alleges that Mr. Mills died of asbestosis and mesothelioma caused by his exposure to asbestos aboard various ships and in various areas of Ingalls Shipbuilding during his employment there.

Finally, Hercules argues that the Order holding this workers' compensation claim in abeyance which was entered by the Administrative Judge on August 4, 2000 is an interlocutory order entered after a limited motion hearing held pursuant to MWCC Procedural Rule 22 and, therefore, is not reviewable by the Commission at the present time.
 

Taking Hercules' latter claim first, we are asked to hold that an order entered by an Administrative Judge following a hearing on a motion, as provided for in our Procedural Rule 22, is not an appealable or reviewable order. The basis of this argument made by Hercules is our own Procedural Rule 10 which provides in part that "[i]n all cases where either party desires a review before the Full Commission from the decision rendered at the evidentiary hearing, the party desiring the review shall within twenty (20) days of the date of said decision file with the Secretary of the Commission a written request or petition for review before the Full Commission." (emphasis added). Hercules argues that since the Order in this case was not a "decision rendered at the evidentiary hearing" because no "evidentiary hearing" was held, then it is not reviewable. Unfortunately for Hercules, however, the ultimate authority for review of administrative judge decisions lies within Miss. Code Ann. §71-3-47 (Rev. 2000), and Procedural Rule 10 may not be interpreted or applied in a manner which conflicts with this statute. Section 71-3-47 states in part as follows:

The commission shall have full power and authority to determine all questions relating to the payment of claims for compensation. The commission shall make or cause to be made such investigation as it deems necessary and, upon application of either party or upon its own initiative, shall order a hearing, shall make or deny an award, and shall file the same in its office.

Informal conferences and hearings in contested cases may be conducted by a duly designated representative of the commission. Upon the conclusion of any such hearing, the commission's representative shall make or deny an award, and file the decision in the office of the commission. Immediately after such filing, a notice of decision shall be sent to all interested parties. This decision shall be final unless within twenty (20) days a request or petition for review by the full commission is filed.

As for that part of Procedural Rule 10 relied upon by Hercules, it repeats the twenty (20) day time limit for requesting Full Commission review as provided by §71-3-47, but it addresses itself specifically to administrative judge decisions rendered at the "evidentiary hearing." This, however, is not an attempt to take away by Commission rule what the Legislature has given by statute, but instead is an adjunct to §71-3-47. It could not be otherwise.¹

It is common knowledge that our judges decide many important issues following abbreviated motion hearings as provided for in Procedural Rule 22. This is generally to everyone's advantage because to delay such matters until after the completion of a more involved evidentiary hearing would constitute an unacceptable waste of time and resources. To accept Hercules' argument that such decisions are somehow unreviewable is not only unwise, but also plainly in conflict with the Law itself. We question whether Hercules would deny itself the right to seek Commission review of the decision in this case based on an overly technical reading of Procedural Rule 10 had the Administrative Judge found in favor of Mrs. Mills and allowed her claim to proceed forthwith.

Along these same lines, Hercules argues that the Order entered by the Judge in this case is not a dispositive Order, and therefore not appealable." What Hercules means is that the Judge's Order in this case is interlocutory, and for that reason, not appealable. In support they cite Blankenship v. Delta Pride Catfish, Inc., 676 So.2d 914 (Miss. 1996).

Of course, Blankenship dealt with the question of whether courts may entertain appeals of anything other than final orders of the Commission, and not whether the Commission may review orders of its administrative judges which are themselves not final. In that case the Court noted that " [b]y statute, only final orders of the Workers' Compensation Commission are appealable," citing Miss. Code Ann. §71-3-51 (Rev. 2000). This, of course, is a statement addressing the jurisdiction of the Court to entertain appeals from non-final orders of the Commission and in no way applies to appeals as between administrative judges and the Commission which are governed by an entirely different statute.

The concept of interlocutory appeals as it applies to workers' compensation claims is one of the most commonly misunderstood concepts in workers' compensation practice. It must be understood first and foremost that all administrative judge decisions which are reviewed by the Commission pursuant to the provisions of Miss. Code Ann. §71-3-47 (Rev. 2000) and Procedural Rule 10 are by statutory declaration, non-final. Section 71-3-47 states that any decision rendered by an administrative judge "shall be final unless within twenty (20) days a request or petition for review by the full commission is filed." Thus, the timely filing of a petition for review following an administrative judge's decision serves to keep that decision from becoming final; and hence, all administrative judge decisions which come under review by the Commission are by nature interlocutory, though not always in the sense Hercules argues the term. The rules discussed in Blankenship simply have no force in this context.

Granted, the Commission has previously held that it retained the right to delay review of certain administrative judge orders which did not address all of the issues presented in the claim If it found that the circumstances of the claim did not justify or compel immediate intervention on our part. And to this end, the Commission held that it would make its decision in such matters by references to principles similar to those found in Miss.R.App.P. 5. Lisa Darnell Hill v. Larson's Big Star Grocery and Commercial Union Insurance Co., 92-04374-E-6856 (April 6, 1994). We also recognized, however, that an administrative judge's order need not be final in the sense Hercules uses that term in order to be appealable pursuant to §71-3-47.
 

Next, Hercules argues that further consideration of Mrs. Mills' claim for death benefits pursuant to the Mississippi Workers' Compensation Act must be halted because Miss. Code Ann. §71-3-51 (Rev. 2000) prohibits the Commission from hearing any controversy or making any award "while the same matter is pending either before a federal court or in any court in this state. " It is the position of Hercules that the third party claim being maintained by Mrs. Mills constitutes It the same matter" within the meaning of §71-3-51, as does the claim for death benefits which she has filed against Ingalls Shipbuilding under the federal Longshoremen and Harbor Workers' Compensation Act.

Taking the third party claim first, we think the position taken by Hercules is just plain wrong. A claim sounding in tort which is brought by an injured party against certain third party defendants is hardly "the same matter" as a claim for workers' compensation benefits also brought by that injured worker against his or her employer. These claims may arise out of a common nucleus of facts, but that is where the similarity ends. Not only are the claims directed against entirely separate parties, but they are also based on entirely separate theories of recovery. Furthermore, the simultaneous pursuit of these two different claims is expressly permitted by the Law itself.

Miss. Code Ann. §71-3-71 (Rev. 2000) states in part as follows:

The acceptance of compensation benefits from or the making of a claim for compensation against an employer or insurer for the injury or death of an employee shall not affect the right of the employee or his dependents to sue any other party at law for such injury or death, but the employer or his insurer shall be entitled to reasonable notice and opportunity to join in any such action or may intervene therein. If such employer or insurer join in such action, they shall be entitled to repayment of the amount paid by them as compensation and medical expenses from the net proceeds of such action (after deducting the reasonable costs of collection) as hereinafter provided. (emphasis added).

The commencement of an action by an employee or his dependents (or legal representative) against a third party for damages by reason of the injury or the adjustment of any such claim, shall not affect the right of the injured employee or his dependents (or legal representative) to recover compensation, but any amount recovered by the injured employee or his dependents (or legal representative) from a third party shall be applied as follows: reasonable costs of collection as approved and allowed by the court in which such action is pending, or by the commission of this state in case of settlement without suit, shall be deducted; the remainder, or so much thereof as is necessary, shall be used to discharge the legal liability of the employer or insurer; and any excess shall belong to the injured employee or his dependents. The employee or his dependents bringing suit against the third party must notify the employer or carrier within fifteen days of the filing of such suit. (emphasis added).

As for the claim for death benefits which Mrs. Mills has filed against Ingalls Shipbuilding pursuant to the federal Longshoremen and Harbor Workers' Compensation Act, we again find these claims do not constitute the "same matter" within the meaning of §71-3-51. One is a claim against Hercules for benefits under the Mississippi Workers' Compensation Law while the other is a claim against an entirely different employer under an entirely separate federal compensation law. Admittedly, both claims seek similar benefits for the same occurrence, but we find nothing in the Workers' Compensation Law or elsewhere which prohibits Mrs. Mills from pursuing all available remedies for the death of her husband until the responsibility for and compensability of his death has been finally determined. We can find no good reason in Law or in practice which would justify us in holding her state workers' compensation claim in abeyance until these related claims and suits have been resolved.

In a somewhat analogous context, the Mississippi Supreme Court held that the dependents of Rufus Head were entitled to simultaneously pursue a claim for workers' compensation benefits as well as a common law tort claim against Mr. Head's employer when the employer is denying liability both in tort and under the Workers' Compensation Law.² Sawyer v. Head, Dependents of, 510 So.2d 472, 476 (Miss. 1987). "There is nothing wrong with pursuing both remedies when benefits under the Workers' [Compensation] Act are denied to be due as well as liability in tort is denied. However, the claimant may not collect on the tort claim against his employer or co-employee if the evidence shows that he is entitled to workers' compensation benefits arising out of the same occurrence. " Id.

Similarly, then, there should be nothing wrong with Mrs. Mills pursuing a claim against Ingalls Shipbuilding for death benefits under the Longshoremen and Harbor Workers' Compensation Act, and a claim against Hercules for death benefits under the Mississippi Workers' Compensation Law, even though both claims arise from the same occurrence. This does not mean she should be able to collect from both parties for the same occurrence, but at this point she is a potentially a long way from final judgment against either party and we see no reason to further exacerbate the situation by putting her state workers' compensation claim on indefinite hold.

Hercules also misapplies the plain language of §71-3-51 as to the Longshoremen and Harbor Workers' Compensation Act claim filed by Mrs. Mills. Even if we accepted Hercules argument that these two claims constituted the same matter, which we do not, §71-3-51 only prohibits action by the Commission if the same matter is pending in either a "federal court or in any court of this state."³ This statute does not, as Hercules suggests, apply if the same matter is pending in any federal or state "forum. " And we take notice that Mrs. Mills's federal claim has been filed with and is pending before the United States Department of Labor, a federal agency charged with administering the Longshoremen and Harbor Workers' Compensation Act and not, in our estimation, a federal "court" within the meaning of §71-3-51.

Finally, Hercules asserted in its Motion to Dismiss that neither Ruben Mills nor his wife gave them notice of the commencement of a third party claim "within fifteen days of the filing of such suit" as required by §71-3-71. For this reason, Hercules argues that Mrs. Mills should be prohibited from pursuing her workers' compensation claim. However, it has been settled at least since 1959 that the failure to notify the employer or carrier of the filing of a claim against a third party is no bar to the prosecution of a claim for workers' compensation benefits. Bush v. Byrd's Dependents, 234 Miss. 782, 108 So.2d 211, 213 (1959).
 

In light of the above, the Order entered by the Administrative Judge on August 4, 2000 is hereby vacated and held for naught. This claim should be immediately reinstated to the active docket of the Commission and allowed to proceed accordingly.

SO ORDERED this the 16th day of October, 2000.

MISSISSIPPI WORKERS' COMPENSATION COMMISSION
BARRETT SMITH
BEVERLY BOLTON

ATTEST
Joann McDonald, Secretary
___________________________
 

MWCC NO. 00-01965-G-7667-D

CHARLOTTE MILLS, WIDOW OF RUBEN MILLS, DECEASED                                           CLAIMANT

vs.

HERCULES, INC. A SELF-INSURER                                                                                           EMPLOYER
 

CAME ON for Hearing this date, the Employer and Carrier's Motion to Dismiss and Grant Credit Against Future Awards and Settlements in Third-Party Actions or in the Alternative to Place in Abeyance, and the Administrative Judge having considered all matters pertinent to the Employer and Carrier's Motion, and having been fully advised in the premises finds the following. Accordingly, it is hereby,

ORDERED AND ADJUDGED, that the Employer and Carrier's Motion to Dismiss is denied, but the Motion to Hold in Abeyance is well taken and should be granted. It is therefore,

SO ORDERED AND ADJUDGED, that this case shall be held in abeyance until further Order by an Administrative Judge.

SO ORDERED AND ADJUDGED, this the 4th day of August, 2000.

MELBA DIXON
ADMINISTRATIVE JUDGE

ATTEST:
Joann McDonald, Secretary
___________________________

1. This particular provision of Procedural Rule 10 long predates Procedural Rule 22 and the greatly expanded use of motion practice and procedure in workers' compensation claims. We suspect that when this provision was written into Procedural Rule 10 that most administrative judge decisions were rendered only after evidentiary hearings had been held.

2. A common law tort claim was also being pursued against parties other than Mr. Head's employer and this too did not seem to trouble the Court.

3. The most obvious situation to which this provision would apply is when a decision rendered by the Commission has been timely appealed to circuit court, or higher, and while this of same matter" is pending before the Court, the Commission attempts to hear issues arising out of the claim or attempts to make an award of benefits. This type of intervention by the Commission while "the same matter is pending" on appeal to a court is clearly prohibited by §71-3-51. Hence the Legislature's inclusion of this provision in that part of the-Act dealing with court review of compensation claims.