MWCC NO. 98 03143-G-2281

RANDALL W. RICE CLAIMANT

vs.

BURLINGTON MOTOR CARRIERS, INC. EMPLOYER
AND
THE TRAVELERS INSURANCE COMPANY CARRIER

REPRESENTING CLAIMANT:
Hon. Joe M. Davis, Attorney at Law, New Albany, Mississippi

REPRESENTING DEFENDANT:
Hon. Franklin Williams, Attorney at Law, Oxford, Mississippi
 

The Commission heard the above styled cause on June 12, 2000 in the offices of the Mississippi Workers' Compensation Commission in Jackson, Mississippi on the "Claimant's Petition for 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 February 29, 2000.

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

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

ATTEST:
Brenda H. Goolsby, Secretary
___________________________
 

MWCC NO. 98 03143-G-2281

RANDALL W. RICE                                                                                                                              CLAIMANT

vs.

BURLINGTON MOTORS CARRIERS, INC.                                                                                   EMPLOYER
AND
THE TRAVELERS INSURANCE COMPANY                                                                                      CARRIER

APPEARING FOR CLAIMANT:
Mr. Joe M. Davis, Attorney at Law, New Albany, Mississippi

APPEARING FOR EMPLOYER-CARRIER:
Mr. Franklin Williams, Attorney at Law, Oxford, Mississippi
 

Claimant alleged that on May 19, 1997, he injured his lower back while working for the Employer. The Employer-Carrier admitted compensability and paid medical expenses and temporary disability benefits. The hearing was held at the Mississippi Workers' Compensation Commission in Jackson, Mississippi, on October 11, 1999.
 

1. A work-related accident occurred on May 19, 1997, injuring Claimant's lower back.

2. Claimant's average weekly wage on the date of the work accident was $480.00.

3. Claimant reached maximum medical improvement on January 13, 1998.

4. There is no remaining issue to be decided concerning temporary disability benefits.
 

1. Whether the Mississippi Workers' Compensation Commission has jurisdiction to hear this matter.

2. Whether a superseding, intervening event occurred in the form of a subsequent, aggravating injury not related to the work accident.

3. The existence and extent of permanent disability attributable to the work accident. The Employer-Carrier raised the issue of apportionment for a pre-existing condition.

4. The reasonableness and necessity of Dr. Martin's medical treatment, including whether Dr. Martin was in the appropriate chain of referral required by Miss. Code Ann. §71-3-15(l) (Rev. 1995).

5. Whether Claimant is entitled to recover penalties and interest on disability payments not timely made.
 

Claimant is 43 years old and has an 8th grade education. He has worked in a grocery store, a painting shop, a river boat, and various furniture factories. His work history consisted solely of manual labor work with no specialized training until April 1997, when he attended a truck driving school, American Training School, in Nashville, Tennessee.

Claimant testified that he has lived in Pontotoc, Mississippi, with his brother and mother for over 12 years. He was residing at 204 Clark Street, Pontotoc, Mississippi, when he left for the Tennessee training school. He said he helped his mother and brother with household expenses when he lived with them. He considers Pontotoc, Mississippi, to be his residence, and he currently resides there with his brother. Immediately prior to working for Employer, Claimant said he worked at a
frame shop in Pontotoc, Mississippi.

Claimant testified that while he was attending the school in Tennessee, he agreed with the Employer to work with them if he successfully completed school. He completed the training school in April 1997 and returned home to Pontotoc, Mississippi, for five days. He said he then traveled to Indiana at the Employer's expense, for a driving test, physical examination, training, and orientation. After receiving his training at the Employer's Indiana location, Claimant stated he left from Indiana with a trainer for the Employer.

While driving with the trainer, Claimant said they were dispatched from both Indiana and Atlanta, Georgia, where the Employer had a terminal. Claimant testified that he and the trainer had driven to Atlanta and Pennsylvania twice before he had his work accident, Claimant said he was to be based out of Atlanta, Georgia, once he finished his training. He testified that the Employer agreed to route Claimant t6 Pontotoc, Mississippi, between jobs and to allow him to keep the truck in Pontotoc. Claimant recalled being specifically told by the Employer that he did not have to move to Atlanta.

After driving a few days for the Employer with the trainer, Claimant said he was unloading a truck and moving a loaded trailer from a dock in Pennsylvania when he felt a severe pain in his lower back radiating down his legs. Claimant stated the incident occurred on May 19, 1997, at 6:30 or 7:00 in the morning. After feeling the pain, Claimant said he reported the injury to his trainer and rested in the truck sleeper while the trainer finished the work. He continued to feel pain, so the trainer took him to an emergency room in Kentucky. He was eventually routed back to Pontotoc, Mississippi, by the Employer. He then began receiving medical treatment from Dr. Walter Eckman.

Claimant testified that he was in Dr. Eckman's rehabilitation program when the Carrier's case worker contacted him and asked if he wanted to see another physician. Claimant agreed to see Dr. Crenshaw, who later referred Claimant to Dr. Wood for an opinion on surgery. Dr. Wood performed surgery on Claimant's back in September 1997.

Claimant said he still experienced pain after his surgery, so he asked Dr. Wood about seeing a chiropractor. Claimant stated Dr. Wood agreed, so Claimant began treatment with Dr. Martin, a chiropractor, while still being monitored by Dr. Wood. Claimant said he last saw Dr. Wood in January 1998, when he was released as being at maximum medical improvement.

After reaching maximum medical improvement, Claimant said he telephoned the Employer's safety manager in Atlanta, Georgia, who told Claimant that they could not re-hire him due to his medical restrictions. Later, in November 1998, Claimant completed applications at two furniture factories, but did not get any job offers. About 5-6 months after surgery, Claimant said he worked for one hour driving a bob-truck for a frame shop. Claimant stated that his back and leg pain was too severe to continue working. Claimant has not worked since then.

Claimant testified that he also talked with the Employer's rehabilitation expert in March 1998. Claimant was familiar with the jobs on the job survey list and described them in detail. He felt that he could not do those jobs since the positions required twisting, bending, and lifting. He had worked in those types of jobs before the work accident. Claimant agreed that those positions were available in his area, but he felt he could not handle the work required in those positions. He admitted that he did not apply at the places listed by the Employer's vocational rehabilitation expert.

Claimant testified that he currently has pain in his lower back radiating down his right leg. He stated that he takes over-the-counter pain medication since he does not have money to buy prescriptions. He said he drives very little and that he is mostly driven around by his brother, with whom he also lives. Although Claimant received a Tennessee commercial driver's license after completing school, he said he changed it to Mississippi in 1998 as he Was instructed to by the school.

Before the work accident, Claimant admitted that he strained a muscle in his back in 1996 and was treated by Dr. Eckman a couple of times. He said he performed the prescribed exercises and went back to work. He also had a previous knee injury, which he disclosed on his employment application. Claimant stated he passed the physical examination for the Employer.

Claimant testified he had a motor vehicle accident in October 1997, about a month after his surgery, and injured his knees, abdomen and neck. Claimant asserted that he did not injure his back during the accident. He saw Dr. Wood just a few days afterward. He said he also immediately told the Employer's case worker about the motor vehicle accident.

Exhibit 7 contained Claimant's personnel information from the Employer. Those documents contained a copy of Claimant's Tennessee commercial driver's license with an address listed as 4150 Valley Grove Drive, Hermitage, Tennessee 37067. However, the Driver Data Sheet, the Medical Examiner's Certificate, the Employer's Application form, and the Physical Examination form all have Claimant's address listed as 204 Clark Street, Pontotoc, Mississippi 38863. The Physical Examination form listed the date of May 12, 1997, as the date of examination by the physician. The Driver Data Sheet and the Application forms were signed by Claimant and dated May 12, 1997.

There is a Driver Information report from Mississippi listing Claimant's address as 204 Clark Street, Pontotoc, Mississippi 38863, but there is a notation "Previous State: TN." On the Driver Application, Claimant listed his "Residence Address" as the Clark Street address in Pontotoc, Mississippi. His work history listed on the application consisted only of jobs in Mississippi beginning in 1986.

Exhibit 8 contains the workers' compensation forms for Indiana filed by the Employer concerning Claimant's work accident. An Indiana "Agreement to Compensation" form was signed by Claimant and filed with the Indiana Worker's Compensation Board on June 24, 1997.

Mr. C. Lamar Crocker, rehabilitation expert, evaluated Claimant on March 26, 1999. Crocker opined that Claimant sustained a 90-100% loss to the labor market. He found Claimant to be severely impaired and totally disabled from the active labor force. Crocker stated Claimant was "unable to sustain substantial gainful employment."

Mr. David Stewart, rehabilitation expert, evaluated Claimant on March 29, 1999. Stewart opined that Claimant could work in the Medium to Heavy range. After performing a labor market survey, Stewart stated Claimant "should have nearly twenty years of productive employment before him." He felt the regional economy was good and offered to assist Claimant in obtaining new employment.

Dr. Walter Eckman evaluated Claimant on June 19, 1996, for "low back, sacroiliac and bilateral leg pain, right worse than left." Dr. Eckman noted Claimant's history of getting hurt at work in mid-March 1996 after lifting wood at Precision Frames. After reviewing an MRI, Dr. Eckman decided Claimant had a mild disc protrusion at the L4-5 and L5-S1 levels. Dr. Eckman did not recommend surgery, and he referred Claimant to therapy.

Dr. Thomas A Shands of the Internal Medicine Clinic of New Albany treated Claimant one time on March 23, 1998. Dr. Shands wrote that Claimant had a "history of low back problems" with a back surgery, a motor vehicle accident with "trauma to his back," and an incident where Claimant reached for a glass of water which caused his back pain to increase. Dr. Shands prescribed medication for Claimant.

Dr. Greg Wood II of the Campbell Clinic treated Claimant from June 1997 until January 1998 for low back and right leg pain. Dr. Wood diagnosed Claimant with a disc rupture at L4-5 and L5-S1 with radiculopathy. Dr. Wood, performed lumbar disc surgery in September 1997. On October 27, 1997, Dr. Wood noted Claimant's motor vehicle accident which reportedly caused pain in the left knee, shoulder and left buttock. Claimant reported that he was wearing his back brace when the accident occurred.

Dr. Wood sent Claimant to physical therapy after the surgery. He continued to treat Claimant and noted Claimant's complaints of continued back pain. Dr. Wood placed Claimant at maximum medical improvement on January 18, 199 8, with a 10% permanent medical impairment rating. Dr. Wood felt Claimant's prognosis for returning to modified work was good, but for having complete pain relief was questionable.
 

Since this case involves a work accident which occurred in another state, the "extraterritorial" provisions of the Mississippi Workers' Compensation Act must apply. Miss. Code Ann. §71-3-109(l) (Rev. 1995) states as follows:

If an employee who has been hired or is regularly employed in this state receives personal injury by accident arising out of and in the course of his employment while temporarily employed outside of this state, he or his dependents in case of his death shall be entitled to compensation according to the law of this state.

In Burnham, the Supreme Court discussed the Mandle v. Kelly case.² That case involved a claimant who was injured in Mississippi, but who was not a resident nor had an employment contract been entered into in the state. The Burnham Court stated, "[I]f we could, in [the Mandle] case, permit the Mississippi compensation law to operate, how much more can we in the case of a native Mississippian permit the same act to operate in the interest of humanity to give aid to this helpless Mississippian."³ The Court went on to hold, "It is not essential that the accident happened in Mississippi in order to allow the Mississippi Workmen's Compensation Act to operate."⁴ The Supreme Court was concerned about the

countless numbers of persons who are employed by ... persons from other states who operate trucks within and without the state of Mississippi, and who are absent from the state of Mississippi for a considerable period of time, but who ultimately return to the state of Mississippi, bringing the truck with them to their homes, and who consider themselves Mississippians and who are considered by their employers as being Mississippians and therefore within the purview of the Mississippi Workmen's Compensation Act."⁵

Just a few years later, the Supreme Court addressed the jurisdiction issue again in L. & A. Construction Company v. McCharen.⁷ In that case, the Supreme Court stated, "The question involved is a question of jurisdiction of our Workmen's Compensation Commission and the answer depends upon the facts of the employment and work of the claimant."⁸ The Court declined to apply the Mississippi Act, noting that the employee was not hired in this state, was not regularly employed in this state, and did not receive his injury in Mississippi. The Court held, "Either hiring or regular employment in this state is essential to recovery . . ."⁹ In making its decision, the Court cited the Restatement and opinions from other states. The Court distinguished the Mandle case by pointing out that the injury in that case occurred in Mississippi.¹⁰ It also distinguished Burnham by explaining that the employee in that case was temporarily absent from the state only for the period of time it took to complete his work assignments as a truck driver.¹¹

In the common law context, the Supreme Court again addressed the question of jurisdiction in White v. Malone Properties, Inc.¹² This was a common law action filed by a Mississippi resident who was employed by a Mississippi corporation. White and his wife were living and working in the state of Louisiana; White was hired to work exclusively in Louisiana; White was injured in Louisiana; and White was medically treated in Louisiana. The Supreme Court found that Louisiana had the "most substantial relationship" to the action so the Louisiana act applied exclusively.¹³

V. Dunn's Mississippi Workmen's Compensation indicates that Mississippi has no jurisdiction if the "hiring is done outside of Mississippi for work performed in a foreign state in which the injury occurs, and this is so although the employer is a Mississippi corporation and the employee resides here."¹⁴

Arthur Larson has also addressed the complex issue of jurisdiction, listing six grounds upon which applicability of a state workers' compensation act was asserted:

(1) Place where the injury occurred;
(2) Place of making the contract;
(3) Place where the employment relation exists or is carried out;
(4) Place where the industry is localized;
(5) Place where the employee resides; or
(6) Place whose statute the parties expressly adopted by contact.¹⁵

In discussing the issue of place of contract, Larson queries, "Does the mere formal execution of the contract within the local state make its statute apply, even if the contract contemplates that substantially all of the work will be done elsewhere?"¹⁷ Larson discusses Mississippi under the place-of-contract states. In determining where contracts are made, Larson points to two theories - the agency theory and the place of acceptance theory. According to Larson, the agency theory focuses on the actual practice of the parties, saying that if an employer pays the employee's travel expenses, this is "strong supporting evidence that the contract has already been made."¹⁸

Larson explains the place-of-acceptance theory of contract as turning on the question of the Claimant's understanding at the time he sets out for the second state as being "true acceptance" or merely an "expectation of hope."¹⁹ Larson states that generally if the employer said to the claimant that if he came to the state he would be given a job or notification that work was available then true acceptance has not been made and therefore, no contract has been made. However, Larson specifically cites to the kinds of employment - like trucking, flying, selling, and construction work, where an employee travels without spending any sustained periods of time in the local state - that nevertheless keep a "status rooted in the local state by the original creation of the employment relation there."²⁰

Larson also discusses using the place where the employee resides as a ground for establishing jurisdiction. He noted that the first reported decision in which jurisdiction was constitutionally justified on the ground of residence alone was in Maine. In the Maine case, Larson observed, "The court correctly stressed that the test is not whether Maine's interest is greater than that of any other state, but only whether Maine has a valid interest."²¹ Larson later explains,

The place where the employee or the employee's dependents reside also has an interest of specific relevance to compensation law; for if the employee is left uncompensated or under-compensated, it is the local community that will have to bear the expense of direct assistance and relief.²²

Nevertheless, jurisdiction may still be denied if the employee does not have sufficient contacts with the state to assert a claim pursuant to that state's workers' compensation laws. As discussed in American Jurisprudence:

The following factors should be considered by the court in determining whether 'sufficient' contacts exist for this purpose: (1) where the injury occurred; (2) where the employment contract was entered into; (3) where the employer's principal place of business is located or where the employee's supervisor is located; (4) the work to be performed in the state and its relation to the employment as a whole; and (5) whether the work is to be performed solely in another state or exclusively in interstate commerce.²⁴

I base the following findings on a preponderance of the evidence, including medical proof as required by the Act:

1. Claimant was an employee of Burlington Motor Carriers, Inc. when he had a work-related accident on May 19, 1997, injuring his lower back.

2. The work accident occurred in Pennsylvania.

3. Claimant's average weekly wage on the date of the work accident was $480, as stipulated.

4. Claimant reached maximum medical improvement on January 13, 1998, as stipulated.

5. Claimant is currently a resident of Mississippi and also was a resident of this state during all relevant periods of time. While Claimant obtained a Tennessee commercial driver's license during training, Claimant testified that he intended to change the license to Mississippi, which he later accomplished.

6. The place of employment contract was Indiana. Although Claimant was initially contacted by the Employer in Tennessee, the evidence indicates that Claimant completed the application paperwork, the training and the physical examination in Indiana. More importantly, there is no evidence of any contact between the Employer and Claimant in Mississippi.

7. There is no evidence that any work activity occurred in Mississippi. Although Claimant testified that he was to return to Mississippi between work assignments and keep the truck in Mississippi, the work accident occurred before any such event took place.
 

The foremost decision is whether or not the Mississippi Workers' Compensation Commission has jurisdiction over this matter. In deciding this issue, I must first look to the statute. Miss. Code Ann. §71-3-109(l) (Rev. 1995) requires that the claimant be hired or be regularly employed in this state for the extra-territorial provisions to apply. While the Supreme Court seems to suggest that an important factor in deciding the jurisdiction question is the residency of the claimant in this state, the Court has not yet held residency alone is the determinative factor. Moreover, the Supreme Court in the McCharen case specifically held that the hiring or regular employment in this state is "essential to recovery."

The evidence shows that neither the hiring nor regular employment occurred in Mississippi in the case subjudice. In fact, the sole contact with this state is Claimant's residency and some medical treatment. While an argument could certainly be made that this state has a valid interest in providing and caring for its citizens, the Mississippi Workers' Compensation Act does not allow such equitable relief.

Based upon the above findings of fact, I am compelled to find that §71-3-109(1) does not apply in this instance. Therefore, the Mississippi Workers' Compensation Commission does not have jurisdiction over this case, and Claimant's claim for compensation must be denied.
 

IT IS THEREFORE ORDERED AND ADJUDGED that Claimant's claim for compensation benefits is hereby denied.

SO ORDERED AND ADJUDGED this 29th day of February, 2000.

TAMMY GREEN HARTHCOCK
ADMINISTRATIVE JUDGE

ATTEST:
Brenda H. Goolsby, Secretary
___________________________

1. Bumham Van Service, Inc. v. Dependents of Moore 164 Sold 733 (Miss. 1964).

2. Mandle y. Kelly, 90 So.2d 645 (Miss. 1956).

3. Bumham at 742.

4. Bumham at 742.

5. Burnham at 742.

6. Mandle at 649.

7. L. & A. Construction Company v. McCharen 198 Sold 240 (Miss. 1967).

8. McCharen at 24 1.

9. McCharen at 243.

10. McCharen at 244.

11. McCharen at 244.

12. White v. Malone Properties, Inc. 494 So.2d 576 (Miss. 1986).

13. White at 578.

14. Vardaman S. Dunn, Mississippi Workmen's Compensation §356 (3d Ed. 1982) (citing L. & A. Construction v. McCharen 198 Sold 240 (Miss. 1967)).

15. 9 Larson, Workmen's Compensation Law §86.10 (1995).

16. 9 Larson at § 86. 10 (citing the Restatement).

17. 9 Larson at §87.32.

18. 9 Larson at §87.34(b) (footnotes omitted).

19. 9 Larson at §87.32(c).

20. 9 Larson at §87.42(b).

21. 9 Larson at §86.33.

22. 9 Larson at §86.34.

23. 9 Larson at §87.23 (citation omitted) (footnote omitted).

24. 82 Am. Jur. 2d Workers' Compensation §33 (1992) (citations omitted).

25. 82 Am. Jur. 2d Workers' Compensation §87 (1992) (citations omitted).