MISSISSIPPI WORKERS' COMPENSATION COMMISSION

MWCC NO. 94 07281-F-9942

HERBERT C. HAWKINS                                                                                                                   CLAIMANT

vs.

BROCK & BLEVINS                                                                                                                          EMPLOYER
AND
NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA                                CARRIER

REPRESENTING CLAIMANT:
Hon. Mark D. Lumpkin, Attorney at Law, Biloxi, Mississippi

REPRESENTING DEFENDANT:
Hon. William D. Blakeslee, Attorney at Law, Gulfport, Mississippi
 

FULL COMMISSION ORDER

The Commission heard the above styled cause on August 14, 2000 in the offices of the Mississippi Workers' Compensation Commission in Jackson, Mississippi on the "Claimant's Petition for Commission Review".

Having heard the arguments offered on behalf of the parties and having thoroughly studied the record and the applicable law, the Commission affirms the "Order of the Administrative Judge" dated June 14, 2000.

SO ORDERED, this the 15th day of August, 2000.

MISSISSIPPI WORKERS' COMPENSATION COMMISSION
BY: Barrett Smith
Barney Schoby
Beverly Bolton
COMMISSIONERS

ATTEST:
Joann McDonald, Secretary
___________________________
 

MISSISSIPPI WORKERS' COMPENSATION COMMISSION

MWCC NO. 940728 1 -F-9942-C-00

HERBERT C. HAWKINS                                                                                                                    CLAIMANT

vs.

BROCK & BLEVINS                                                                                                                           EMPLOYER
AND
NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA                                 CARRIER
 

ORDER

This cause having come on for hearing before the undersigned Administrative Judge on May 9, 2000, on the motion of the employer and the carrier to hold this claim in abeyance, and the Administrative Judge, having considered this motion, the arguments of the attorneys for the parties, the documentary information provided by the attorneys for the parties and the applicable law, finds as follows:
 

1.

The claimant, Herbert C. Hawkins, sustained an admitted work-related injury with the employer on March 29, 1994. The employer and the carrier paid certain workers' compensation benefits to the claimant following this accident.
 

2.

The claimant filed a third-party civil suit against Mississippi Power Company, Bagby Elevator Company, Montgomery Kone, Inc. f/k/a Montgomery Elevator Company, and others, claiming damages arising out of the same March 29, 1994, injury which forms the basis of the present workers' compensation claim.
 

3.

By Order entered on November 9, 1999, the Circuit Court of Harrison County, First Judicial District, approved a settlement of the third-party claim. The Order entered by the Circuit Court was approved by the attorneys for all parties involved in that litigation, including the attorney for the claimant and the attorney for the employer and the carrier in the present workers' compensation claim. The Order entered by the Circuit Court finds the employer and the carrier contractually waived any right to "reimbursement" from settlement proceeds in the civil case paid on behalf of Mississippi Power Company. The Order entered by the Circuit Court also states as follows:

4.

The employer and the carrier in the present workers' compensation claim have filed a motion to hold the workers' compensation claim in abeyance until such time as their additional liability to the claimant under the Mississippi Workers' Compensation Act is equal to the credit resulting from the net proceeds of the third-party settlement received by the claimant. The claimant contends the employer and the carrier are not entitled to any credit from the net proceeds of the settlement paid to the claimant by Mississippi Power Company because of contractual obligations underlying the civil litigation.
 

5.

The undersigned Administrative Judge is of the opinion that the Order entered by the Circuit Court provides the employer and the carrier credit as against future liability for workers' compensation benefits to the extent of the net proceeds received by the claimant from the third party settlement. It is the opinion of the undersigned Administrative Judge that the language of the Order entered by the Circuit Court, approved by the attorneys for the claimant and the employer and the carrier, is clear and unambiguous regarding this credit to which the employer and the carrier in the present workers' compensation claim are entitled. It is the opinion of the undersigned Administrative Judge that the Circuit Court has already ruled on the issue presented through the motion submitted by the employer and the carrier in the present workers' compensation claim and the Order of the Circuit Court has become final and not subject to appeal. The undersigned Administrative Judge is bound by the findings of the Order of the Circuit Court entered on November 9, 1999. It is, therefore,

ORDERED AND ADJUDGED that the motion of the employer and the carrier to hold the present workers' compensation claim in abeyance is well taken and is hereby granted. It is, further,

ORDERED AND ADJUDGED that the liability of the employer and the carrier for workers' compensation benefits to the claimant is suspended until such time as the claimant is able to establish that the suspended workers' compensation benefits, which the employer and the carrier would have paid except for such suspension, is equal to the amount of the net proceeds of the third-party recovery received by the claimant.

SO ORDERED this, the 14th day of June, 2000.

LYDIA QUARLES
ADMINISTRATIVE JUDGE

ATTEST:
Brenda H. Goolsby, Secretary