MWCC NO. 97-13666-G-3889

JIMMY L. SOUTHWARD                                                                                                                   CLAIMANT

vs.

TISHOMINGO COUNTY ELECTRIC POWER ASSOCIATION                                                   EMPLOYER
AND
FEDERATED RURAL ELECTRIC INSURANCE CORPORATION                                                 CARRIER

REPRESENTING CLAIMANT:
Michael G. Soper, Esquire, Tupelo, MS

REPRESENTING EMPLOYER:
J. Keith Pearson, Esquire, Oxford, MS
John S. Gonzalez, Esquire, Gulfport, MS
 

This matter was heard by the Commission on March 13, 2000 pursuant to the Petition for Review filed by the Employer and Carrier. The Employer and Carrier have appealed an Order issued December 1, 1999 by the Administrative Judge which directed the Employer and Carrier to resume the payment of temporary total disability benefits until such time as an additional hearing could be held and further evidence presented to determine whether the Claimant has reached maximum medical improvement. In the end, we affirm the Judge's conclusion that temporary benefits should be reinstated.
 

Jimmy Southward sustained an admittedly compensable injury on September 24, 1997 in the form of an electrical shock. He was at the time working as a lineman for the Employer. On or about December 5, 1997 he returned to work as a lineman and continued in that capacity until approximately July 17, 1998. It was at this time that Southward came under the care of Dr. Clyde Sheehan for certain psychological problems allegedly related to his physical injury and ceased work altogether.

The Employer/Carrier paid for and provided this medical service to the Claimant and commenced the payment of temporary total disability benefits based on Dr. Sheehan's opinion that Mr. Southward was indeed temporarily and totally disabled. On August 10, 1999, however, Mr. Southward submitted to a second opinion evaluation by Dr. Mark Webb, a psychiatrist practicing medicine in Jackson, MS. Based on Dr. Webb's report, which concluded that Mr. Southward was not disabled because of a psychiatric condition, the Employer/Carrier suspended the payment of any further temporary total disability benefits and notified the Claimant and the Commission accordingly.

On September 27, 1999 the Claimant filed a Motion to Reinstate Temporary Total Benefits which was argued before the Administrative Judge on October 26, 1999. Following this hearing, the Judge issued an Order on December 1, 1999 which found that the Employer/Carrier improperly and prematurely determined that Mr. Southward had reached maximum medical improvement when the evidence to that point was insufficient to support such a finding. Consequently, the Administrative Judge ordered the Employer/Carrier to resume the payment of temporary total disability benefits to Mr. Southward until an additional hearing could be held and further evidence presented to determine whether Mr. Southward was still temporarily and totally disabled, or whether he had in fact reached his maximum medical improvement.
 

The question presented to us by the parties is whether the Employer/Carrier had the authority to unilateraly suspend the payment of temporary disability benefits to the Claimant based on the expert medical opinion of Dr. Webb that the Claimant was no longer disabled; or, whether the Employer/Carrier should have been required to first obtain an order from the Administrative Judge authorizing it to suspend or terminate the payment of temporary disability benefits.
 

The Claimant argues that the Employer/Carrier should have been required to first file a motion or request with the Administrative Judge seeking permission to terminate benefits. Mr. Southward contends there is no statutory or other legal authority which allows an Employer/Carrier to unilaterally suspend the payment of disability benefits, and that a suspension in payment such as occurred in this case may only be allowed after permission has been granted by the Administrative Judge or Commission.

Mr. Southward bases his argument on the proposition that the actions of the Employer/Carrier in this case constituted a unilateral finding by the Employer/Carrier that the Claimant had reached maximum medical recovery; and, according to Mr. Southward, this "is a flagrant attempt by the insurance company to vest itself with the power of a Judge" because only the Administrative Judge has the statutory authority to determine the date of maximum medical improvement. In support, Mr. Southward cites Miss. Code Ann. §71-3-7(b) (Rev. 1995) which states:

The employer or carrier does not have the power to determine the date of maximum medical recovery or percentage of apportionment. This must be done by the [Administrative Judge], subject to review by the commission as the ultimate finder of fact.

The Employer/Carrier, on the other hand, asserts that it has not attempted to make any final determination as to maximum medical improvement or any other issue of fact in this case. Instead, the Employer/Carrier contends that it merely raised a good faith defense to the continuing payment of temporary total disability benefits, pending a final determination of the issue by the Judge or Commission. The Employer/Carrier does not view its assertion of and reliance upon a potential defense as an attempt to usurp the power of a Judge or the Commission to make final determinations of fact. According to the Employer/Carrier, the Workers' Compensation Law clearly contemplates the unilateral suspension or termination of benefits; and this same Law mandates the Commission's intervention in such cases, if requested, and imposes penalties against the Employer/Carrier if their decision to suspend benefits is subsequently determined to have been in error. Miss. Code Ann. §71-3-37(5), (8) (Rev. 1995).
 

Addressing ourselves first to Mr. Southward's contention that the actions of the Employer/Carrier in this case amount to a unilateral finding that he has reached maximum medical improvement and, therefore, constitute an unlawful attempt to usurp the power and authority of a Judge to make such determinations, we feel he misses the mark somewhat. The Employer/Carrier obtained a credible medical opinion from Dr. Mark Webb to the effect that Mr. Southward was no longer temporarily and totally disabled from any work connected injury or illness. In reliance upon this opinion which the Employer/Carrier believed to be a valid defense to the continued payment of temporary disability benefits, the Employer/Carrier, upon proper notice to the Claimant and the Commission, suspended the payment of any further temporary disability benefits.

This action by the Employer/Carrier is nothing more than an assertion by it that it believes the Claimant is no longer entitled to temporary disability benefits and may in fact have reached maximum medical improvement. The Administrative Judge ultimately determined that Mr. Southward was not in fact at maximum medical improvement, at least insofar as she could tell from the evidence, and further, that he was entitled to continue receiving temporary disability benefits. Nothing the Employer/Carrier did was an attempt to deny the Judge the right and power and authority to make this finding upon request from the Claimant for the reinstatement of his benefits. For this reason, Mr. Southward's reliance on Miss. Code Ann. §71-3-7(b) which reserves unto the Administrative Judge the authority to determine the date of maximum medical improvement is misplaced.

We believe Mr. Southward's reliance on this particular provision of the Law is misplaced as well- because this provision is clearly part of a larger scheme designed to apply uniquely to claims of apportionment. Sections 71-3-7(a) - (d) of the Law represent a set of rules or guidelines to be followed by the parties and by the Commission in claims where apportionment is an issue. These provisions, first mandated in Cockrell Banana Co. v. Harris, 212 So.2d 581, 587 (Miss. 1968) and subsequently adopted by the Legislature, were designed exclusively for use in apportionment claims. See also Delta Millwork, Inc. v. Terry, 216 So.2d 542, 543 (Miss. 1968) ("the Legislature at the 1968 session incorporated into a statute the Cockrell Banana limitations on apportionment.") There is nothing in this unique apportionment scheme which suggests the different provisions may also be applied in isolation in an attempt to thwart the otherwise lawful right of an employer/carrier to assert good faith defenses to the payment of claims.

Turning to the larger question of whether the Employer/Carrier had the right in general to unilaterally suspend the payment of benefits, or whether it should have first obtained permission from the Commission to do so, we again believe Mr. Southward's arguments are off the mark. The Workers' Compensation Law, it seems to us, clearly vests in the Employer/Carrier the right to unilaterally suspend benefits whenever in its judgment such a course of action is warranted.

Section 71-3-37(l) of the Law instructs that compensation "shall be paid periodically, promptly, in the usual manner, and directly to the person entitled thereto, without an award except where liability to pay compensation is controverted by the employer." (emphasis added). Obviously, therefore, compensation does not have to be paid "periodically, promptly, in the usual manner" if the employer or carrier controverts, or disputes the right of a claimant to receive or continue receiving compensation.

Section 71-3-37(3) of the Law requires that, "[u]pon making the first payment and upon the suspension of payment for any cause, the employer or carrier "shall immediately notify the commission in accordance with a form prescribed by the commission that the payment of compensation has begun or has been suspended, as the case may be. However, "[n]o suspension in payments of compensation shall be made for refusing to submit to medical or surgical treatment until the reasonableness of such request or refusal has been determined by the commission, and a written order suspending payment issued."

Obviously, therefore, the employer or carrier may suspend the payment of compensation benefits at any time for any cause it deems appropriate and need only notify the Commission of this occurrence using designated Commission forms,¹ except in cases where suspension or termination of benefits is sought on the basis of the claimant's allegedly unreasonable refusal to submit to medical treatment. Only in this latter instance is the employer/carrier required to obtain prior approval from the Commission in order to effectuate a suspension of benefits. Had the Legislature intended that prior approval be obtained from the Commission any time the employer/carrier intended to suspend or terminate the payment of compensation, it could have and would have simply said so.

Section 71-3-37(5) of the Law provides that the failure to make timely payment of benefits without an award shall subject the employer/carrier to a penalty equal to ten percent (10 %) of each such installment not timely paid, unless the employer/carrier disputes the right to compensation within the first fourteen (14) days after it has knowledge of the injury, or unless the failure to make timely payment is due to conditions over which the employer/carrier had no control. This penalty provision has been interpreted by the Court as being "designed to deter the unwarranted and unjustified discontinuance of compensation payments upon which the injured worker depends for his support and that of his family." Cumbest Mfg. Co. v. Pinkney, 225 Miss. 318, 83 So.2d 74, 78 (1955). In fact, the 10% penalty for nonpayment is applicable even if the employer/carrier disputes its liability to pay in good faith.

The penalty applies also to instances when compensation is voluntarily commenced and later stopped or suspended without authority from the commission. Here again, the employer [carrier] assumes the risk of error. The employer [carrier] must continue to pay or must controvert [in a timely manner] or must secure a suspension order from the commission or suffer the penalty of error, if it later be determined that the suspension was actually unjustified.

In Cumbest an adjuster unilaterally suspended the payment of compensation benefits to the claimant.. The Court found the adjuster's action wholly unwarranted and unjustified in fact; but, importantly, the Court did not find this adjuster to have acted completely without authority. Instead, the Court's decision clearly implies an authority for employers or carriers to unilaterally suspend the payment of benefits, subject to their being held liable for the ten percent (10%) penalty in §71-3-37(5) if the suspension is later found to have been unwarranted or unjustified. See also Weyerhaeuser Co. v. Ratliff, 197 So. 2d 231, 234 (Miss. 1967); Guess v. Southeastern Utils. Serv. Co., 226 Miss. 637, _, 85 So.2d 173, 175 (1956).

Finally, section 71-3-37(8) of the Law provides that the Commission "(a) may upon its own initiative at any time in a case in which payments are being made without an award, and (b) shall in any case where right to compensation is controverted or where payments of compensation have been stopped or suspended, upon receipt of notice from any person entitled to compensation or from the employer that the right to compensation is controverted or that payments of compensation have been stopped or suspended, make such investigations, cause such medical examinations to be made, hold such hearings, and take such further actions as it considers will properly protect the rights of all parties." (emphasis added).

Nothing therein suggests or implies that an employer or carrier must first obtain a suspension order from the Commission before compensation payments can be stopped. To the contrary, this section of the Law clearly recognizes that an employer or carrier may take such action unilaterally, and in that event, the Commission is obliged to intervene if requested and take whatever action it deems appropriate to best protect the rights of all parties.
 

When all of these sections are considered as whole, it should be clear that the Workers' Compensation Law does not prohibit an employer/carrier from unilaterally controverting the right of a claimant to receive workers' compensation benefits or from unilaterally suspending the payment of compensation benefits when, in the employer/carrier's opinion, such action is warranted. Of course, to deter the unwarranted suspension of payments or the unwarranted and untimely controversion of the right to payments, the Law mandates that the employer/carrier pay a ten percent (10%) penalty in addition to the compensation payments due if its actions are subsequently determined by the Commission or the courts to have been unwarranted. For particularly egregious actions, the employer/carrier also faces potential tort liability.

As in this case, a claimant such as Mr. Southward who has suffered the suspension or cessation of compensation benefits may request relief from the Commission or one of its Administrative Judges as the case may be. In such event, the Commission or Judge is obliged to intervene and take whatever action is deemed necessary to properly protect the rights of all parties. In this particular case, the Administrative Judge determined that there was insufficient evidence upon which to conclude that Mr. Southward was no longer temporarily and totally disabled. She ordered the Employer/Carrier to reinstate the payment of temporary total disability benefits until such time as another hearing could be held and additional evidence presented to determine whether Mr. Southward has in fact reached maximum medical improvement.

In our view, the issues in this claim were resolved in exactly the manner contemplated by the Law. The Employer/Carrier took action it felt was appropriate and justified under the circumstances, the Claimant responded with a request for relief to the Administrative Judge, and after hearing the arguments and reviewing the evidence, the Judge took action which she felt was consistent with the Law and necessary to properly protect the rights of all the parties involved.³ The only correction we deem necessary to her Order is the assessment of the ten percent (10%) penalty on all installments not timely paid by the Employer/Carrier since the action taken by it to suspend Mr. Southward's compensation, while not without legal authority, nonetheless was without sufficient evidentiary support to convince the finder of fact and assumed the risk of error.

The Order on Motion entered by the Administrative Judge on December 1, 1999 is therefore affirmed as to the reinstatement of temporary disability benefits, and hereby amended to include the ten percent (10%) penalty provided for in Miss. Code Ann. §71-3-37(5) (Rev. 1995).. This claim is hereby remanded to the Administrative Judge for further proceedings as may be necessary to finally determine the issues related to maximum medical improvement and the nature and extent of disability attributable to Mr. Southward's injury.

SO ORDERED this the 29th day of March, 2000.

MISSISSIPPI WORKERS' COMPENSATION COMMISSION:
Barney Schoby
Beverly Bolton
COMMISSIONERS

ATTEST:
Brenda H. Goolsby, Secretary
___________________________
 

MWCC No. 97 13666-G-3889

JIMMY L. SOUTHWARD                                                                                                                    CLAIMANT

vs.

TISHOMINGO COUNTY ELECTRIC POWER ASSOCIATION                                                    EMPLOYER
AND
FEDERATED RURAL ELECTRIC INSURANCE CORPORATION                                                  CARRIER

REPRESENTING THE CLAIMANT:
Mr. Michael G. Soper, Attorney at Law, Tupelo, Mississippi

REPRESENTING THE EMPLOYER/CARRIER:
Mr. J. Keith Pearson, Attorney at Law, Oxford, Mississippi
Mr. George E. Read, Attorney at Law, Oxford, Mississippi
 

This cause came before me on Claimant's Motion to Reinstate Temporary Total Benefits at the regularly-scheduled motion day in Tupelo, Mississippi, on October 26, 1999. Claimant seeks reinstatement of temporary disability benefits which were unilaterally suspended by the Employer-Carrier after an employer medical examination. The Employer-Carrier asserts that temporary total benefits should be suspended until a full evidentiary hearing can be made on all issues. The Employer-Carrier admitted the compensability of the work accident.

After hearing arguments of counsel, reviewing the file, and considering the briefs filed by both parties, I find that Miss. Code Ann. Sections 71-3-7(b) and 71-3-37(8)(Rev. 1995) compel me to conclude that a determination of whether Claimant has or has not reached maximum medical improvement cannot be made in this instance until more evidence is presented. This determination cannot be made until an appropriate hearing has been held with the opportunity for both sides to present evidence to support their positions.

By unilaterally suspending temporary total disability benefits without such a hearing and a determination by the Commission, the Employer-Carrier has already decided that Claimant reached maximum medical improvement without fully-developed evidence. Therefore, I find Claimant's temporary total disability benefits must be reinstated until such time that a hearing is held to determine whether or not Claimant has reached maximum medical improvement.

IT IS, THEREFORE, ORDERED AND ADJUDGED that Claimant's Motion to Reinstate Temporary Total Disability Benefits is hereby granted.

SO ORDRED this the 1st day of December, 1999.

TAMMY GREEN HARTHCOCK
ADMINISTRATIVE JUDGE

ATTEST:
Brenda H. Goolsby, Secretary
___________________________

1. The forms designated by the Commission for the purpose of providing this notice are the B-18 (formerly forms B-15, B-16 and B-17) or B-52 form. The instructions which the Commission has included on the reverse side of the B-18 form provide that Part IV of the B-18 form "should be used and filed immediately with the Commission upon suspension of payment of compensation benefits." Procedural Rule 2 of the Commission states that an employer/carrier may controvert the claimant's right to benefits by filing form B-52 with the Commission and the employee; and that "Commission Form B-16 [now Form B-18, Part M, notice to employee of suspension of payment, shall be deemed legally sufficient as notice of controversion in the event the employer or carrier has paid workers' compensation disability benefits." Neither our instructions for Form B-18 nor Procedural Rule 2 requim the employer/carrier to first obtain a suspension order from the Commission.

2. As pointed out by Mr. Southward, potential tort liability based on actions taken by the employer/carrier in bad faith also looms as a significant deterrent to such conduct.

3. We certainly realize that not all claimants will be armed as Mr. Southward was with counsel at their side when faced with a suspension of their benefits, and even those that are will not necessarily be able to secure a hearing before an Administrative Judge or get their request for relief addressed as quickly as Mr. Southward did in this case. These concerns notwithstanding, we are compelled to recognize and apply the Law in the manner that it has been written when, as here, its intentions are clear and unmistakable.