Miles Meek v. Cheyenne Steel, Inc. and American Interstate Insurance Company

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2021-WC-01219-COA

MILES MEEK APPELLANT

v.

CHEYENNE STEEL, INC. AND AMERICAN APPELLEES
INTERSTATE INSURANCE COMPANY

DATE OF JUDGMENT: 10/18/2021
TRIBUNAL FROM WHICH MISSISSIPPI WORKERS’ COMPENSATION
APPEALED: COMMISSION
ATTORNEY FOR APPELLANT: CHRISTOPHER HEDERI NEYLAND
ATTORNEY FOR APPELLEES: MATTHEW JASON SUMRALL
NATURE OF THE CASE: CIVIL - WORKERS’ COMPENSATION
DISPOSITION: AFFIRMED - 10/11/2022
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

BEFORE CARLTON, P.J., WESTBROOKS AND SMITH, JJ.

WESTBROOKS, J., FOR THE COURT:

¶1. Miles Meek appeals the Mississippi Workers’ Compensation Commission’s

determination that he did not suffer a compensable injury. Finding the Commission’s order

is supported by substantial evidence, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2. Meek sustained an admitted injury during the course and scope of his employment on

December 13, 2018. Meek began his employment with Cheyenne Steel, Inc. on August 21,

2017, as a steel connector/iron worker. He constructed steel buildings by welding beams and

columns together. He also “ran decking” where he welded together pieces of steel to form

a floor and then poured concrete over the decking. He was responsible for “rigging” his own
supplies (where his work tools/supplies were sent up the structure by cranes). Meek climbed

structures with the use of ladders or lifts. The lifts required sitting on beams (like riding a

horse) while welding pieces of steel. He used safety equipment provided by the employer

which included safety harnesses that weighed approximately fifty-five to eighty-five pounds

(connecting him to beams or other structures), safety glasses, gloves, boots, et cetera. For

maneuvering heavy materials/supplies such as steel beams and joists, he used a forklift (also

known as a man lift).

¶3. On the day of his injury, Meek walked on a beam to run decking. For safety purposes,

he was tied to a column at foot level. He tripped and fell twenty feet from the beam, striking

a man-lift on the way down. An ambulance took him to the University of Alabama at

Birmingham Hospital (UAB). Meek complained of injuries to his right hip and shoulder,

scrotum, penis, arm, and left wrist. While at UAB, Meek was given a preliminary drug

screen that tested positive for marijuana. Dr. Donnis Harrison treated Meek’s shoulder.

Meek saw Dr. Daniel Wittersheim and Dr. Matthew Lewis for the injury to his hip. Dr.

Richard Lyell treated the injuries to his groin area. Meek also saw Dr. Charles Winters for

issues with his back. Based on Meek’s average weekly wage of $884.96, Cheyenne began

paying temporary total-disability benefits and permanent partial-disability benefits. Meek

reached maximum medical improvement (MMI) on October 7, 2019, with regard to his hip,

and Dr. Wittersheim assigned a zero-percent impairment rating. This was later changed to

a two-percent impairment rating based on the results of a functional capacity examination.

Dr. Harrison then assigned a six-percent permanent partial-impairment rating but released

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Meek with light-duty restrictions and a twenty-five-pound lifting restriction pertaining to his

shoulder on October 21, 2019. After Meek returned to work, he said Cheyenne did not

accommodate his restrictions. Jason Hillier, co-owner and vice-president of Cheyenne,

testified that the corporation attempted to accommodate Meek’s restrictions, but because he

was “difficult” and said he could not perform the work, it terminated him in September or

October 2020.

¶4. Meek filed a petition to controvert on August 6, 2019. The nature and extent of the

injuries and the disability alleged were disputed, and Cheyenne pled intoxication as an

affirmative defense. A hearing on the merits was held on October 12, 2020, before an

administrative judge (the AJ). The parties stipulated to the date of the accident, the amount

of temporary total-disability and permanent partial-disability benefits that Cheyenne already

paid, the dates of MMI for Meek’s shoulder and hip, and the impairment ratings assigned to

each.

¶5. Meek argued that Cheyenne should have been barred from pleading intoxication as

an affirmative defense because the drug-test results submitted did not contain sufficient data

to raise the presumption that Meek’s marijuana use was the proximate cause of his injury.

In response, Cheyenne stated that it did not receive the drug-test results from UAB until the

Summer of 2020 in response to a subpoena. Additionally, a positive test result and Meek’s

admitting to using marijuana in the past, combined, support the presumption of an

intoxication defense. Meek also stated that he did not know he had tested positive for

marijuana at UAB. He admitted to marijuana use but said he did not use marijuana during

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the workweek or while on a job. Meek could not recall the last time he used marijuana prior

to his accident, but he said it “could have been at a festival in a vehicle with someone who

used cannabis and made [him] have that positive.” He further explained that marijuana stays

in your system for forty days. Meek disputes telling Dr. Winters that he used marijuana to

help with his pain. No expert was called to testify in Meek’s behalf to rebut the results of the

drug screen.

¶6. On February 5, 2021, the AJ found that Meek had failed to rebut the presumption of

intoxication and denied and dismissed his claim. Meek filed a petition for review by the full

Commission (MWCC), and on June 20, 2021, the MWCC remanded the case to the AJ with

instructions for the AJ to issue findings of fact and conclusions of law addressing whether

(1) the claim was admitted because Cheyenne had paid benefits, and, if so, whether Meek

had sustained industrial loss of use and permanent disability; and (2) the injury fell under the

presumption of intoxication and, if so, whether Meek rebutted the presumption.

¶7. But the AJ did not issue findings of fact or conclusions of law regarding the issue of

intoxication. Instead, on July 15, 2021, the AJ determined that because Cheyenne admitted

that the injury occurred and paid benefits, the only issues to be decided were industrial loss

of use and permanent disability. The AJ found that Meek did not prove the existence of

permanent disability exceeding the two-percent impairment rating to his right hip. The right

shoulder was not addressed. Meek appealed from the order, and Cheyenne cross-appealed.

On October 18, 2021, the MWCC reversed the ALJ’s order, stating that (1) Cheyenne had

properly pled intoxication as an affirmative defense; (2) Meek had presented no evidence that

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misled him or caused him to make any decisions to his detriment; and (3) the payment of

benefits did not prohibit Cheyenne from asserting an intoxication defense. The MWCC

found that Meek’s intoxication was the proximate cause of the injury and dismissed his

claim. Meek appeals the MWCC’s finding, arguing that (1) the MWCC’s decision is

inconsistent with its prior decisions; (2) the MWCC erred in its application of the Mississippi

Code as it pertains to drug testing; (3) the MWCC should have held that Cheyenne was

barred from raising intoxication as a defense because the employer had paid benefits; and (4)

the MWCC erred by not finding that he suffered a 100% loss of industrial use of his right

shoulder and hip.

STANDARD OF REVIEW

¶8. “The standard of review in workers’ compensation cases is limited and deferential.”

Total Transp. Inc. of Miss. v. Shores, 968 So. 2d 400, 403 (¶15) (Miss. 2007). “The

Commission sits as the finder of fact, and it is the ultimate judge of the credibility of the

witnesses.” Miss. Loggers Self Insured Fund Inc. v. Andy Kaiser Logging, 992 So. 2d 649,

654 (¶15) (Miss. Ct. App. 2008). We will reverse “only when a Commission order is not

based on substantial evidence, is arbitrary or capricious, or is based on an erroneous

application of the law.” Smith v. Johnston Tombigbee Furniture Mfg. Co., 43 So. 3d 1159,

1164 (¶15) (Miss. Ct. App. 2010). We review the Commission’s application of the law de

novo. Lifestyle Furnishings v. Tollison, 985 So. 2d 352, 358 (¶16) (Miss. Ct. App. 2008).

DISCUSSION

I. Whether the MWCC erred in holding that Cheyenne was not
estopped from raising intoxication as an affirmative defense after

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the employer had paid benefits.

¶9. Meek asserts that Cheyenne knew of the positive drug-test result as early as January

19, 2019, yet Cheyenne continued to pay him benefits after that time. As a result, Meek

argues that Cheyenne should have been estopped from asserting intoxication as an

affirmative defense in response to his petition to controvert. The MWCC held otherwise, and

we affirm.

¶10. The incident report dated January 19, 2019, and completed by Jason Phillips for

Cheyenne indicates that a drug screen was performed. However, no additional details are

given. Phillips testified that UAB did not provide him with notice of the test results, and

Cheyenne did not file a petition to controvert. No evidence indicates that Cheyenne intended

to do so. As such, Cheyenne paid the benefits to Meek as statutorily required. Although

Mississippi Code Annotated section 71-3-37 (Rev. 2021) obligates an employer to begin

payment of benefits within fourteen days of an accident, unless the employer intends to

controvert the right to compensation, the statute also states that an employer’s failure to file

“shall not prevent the employer [from] raising any defense where claim is subsequently filed

by the employee . . . .” Miss. Code Ann. § 71-3-37(2) & (4); see White v. R.C. Owen Co., 232

Miss. 268, 275-76, 98 So. 2d 650, 652-53 (1957).

¶11. Rule 8(c) of the Mississippi Rules of Civil Procedure discusses when affirmative

defenses should be raised. We note that as in other civil cases, in workers’ compensation

cases the law does not require affirmative defenses to be raised until after an employer

responds to a petition to controvert. Rule 2.4 of the Mississippi Workers’ Compensation

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Commission states in relevant part:

Averments contained in claimant’s Petition to Controvert to which a
responsive answer is required are admitted unless denied in the Answer. All
affirmative defenses such as intoxication of the injured employee, willful
intent to injure himself or another, statute of limitations, lack of notice, etc.,
must be pleaded. Unless so pleaded, they shall be deemed waived.

This is exactly what happened. In keeping with Mississippi Code Annotated section 71-3-

37(4) and MWCC Rule 2.4, Cheyenne first set out affirmative defenses in its answer to the

petition to controvert filed by Meek. Cheyenne also testified that it was unaware of the

results of the drug test until Cheyenne subpoenaed records to prepare for the hearing on the

petition to controvert. According to the law, Cheyenne had no choice but to make the

compensation payments prior to Meek filing his petition to controvert. Cheyenne also

attempted to accommodate Meek when he returned to work. It is equally possible that if

Meek had not filed the petition to controvert, then the positive drug test would not have come

to light; or if Cheyenne filed a petition to controvert instead of paying the benefits, then the

drug test would have come to light. It is also possible that Meek could have been paid less

or nothing at all. In any event, Cheyenne acted appropriately. The principle of estoppel does

not bar its affirmative defense in this instance, and the decision of the MWCC is affirmed in

this regard.

II. Whether the MWCC erred in its application of the Mississippi
Code as it pertains to drug testing in this instance.

¶12. Meek argues that the MWCC erred because it looked only to Title 71, Chapter 3 of

the Mississippi Code pertaining to workers’ compensation. Specifically, he maintains that

the MWCC failed to apply the provisions found in Title 71, Chapter 7: “Drug and Alcohol

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Testing of Employees.” Mississippi Code Annotated section 71-7-3(1) (Rev. 2021) states

“[f]or the purposes of this chapter, the election of a public or private employer to conduct

drug and alcohol testing is voluntary. If an employer elects voluntarily to follow this chapter,

the employer must follow all the terms of this chapter without exception.” However, section

71-7-27(2) (Rev. 2021) provides that “[a]ny private employer who does not make such an

election or who rescinds an election previously made will be deemed to not be conducting

an employee drug and alcohol testing policy or program pursuant to the provisions of this

chapter, and in that event the rights and obligations of the employer and its employees and

job applicants will not in any way be subject to or affected by the provisions of this chapter

. . . .”

¶13. Based on the record before us, there is no indication that Cheyenne had implemented

a drug testing policy or that it requested the drug test in this instance. UAB apparently made

a unilateral decision to administer the test; as such, the statutes relied on are inapplicable,

here, and the decision of the MWCC is affirmed in this regard.

III. Whether the MWCC’s decision was inconsistent with its decision
in Cartwright v. Southeast Ready Mix Inc.

¶14. Mississippi Code Annotated section 71-3-121(1) (Supp. 2016) states:

In the event that an employee sustains an injury at work or asserts a
work-related injury, the employer shall have the right to administer drug and
alcohol testing or require that the employee submit himself to drug and alcohol
testing. If the employee has a positive test indicating the presence, at the time
of injury, of any drug illegally used . . . it shall be presumed that the proximate
cause of the injury was the use of a drug illegally. . . . The burden of proof will
then be placed upon the employee to prove that the use of drugs illegally . . .
was not a contributing cause of the accident in order to defeat the defense of
the employer provided under [s]ection 71-3-7.

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¶15. Meek contends that the MWCC failed to rely on its own precedent—Order,

Cartwright v. Southeast Ready Mix Inc., No. 1801171-P-7010, 2019 WL 6445683 (Miss.

Workers’ Comp. Comm’n Nov. 19, 2019)—and, had it done so, it would not have held that

his positive drug test gave rise to a finding of presumptive intoxication based on section 71-

3-121(1). We disagree.

¶16. In Cartwright, the employee was injured in a car accident and the EMT who

responded to the scene administered morphine. Upon arrival at the hospital, Cartwright

underwent surgery for a left wrist fracture and received other medications. It was only after

he left the emergency room that a drug test was administered. The MWCC found, in part,

that Cartwright rebutted the presumption of intoxication by submitting records showing that

he was given numerous prescription medications after the accident but before the drug test.

¶17. Meek is correct that the MWCC in Cartwright also found the drug test results to be

insufficient evidence to raise the presumption of intoxication because, among other reasons,

“[t]he drug test results do not note specific levels of positive drugs in Claimant’s system[.]”

However, the presence of a specific level of marijuana is not what triggers the statute.

Section 71-3-121(1) clearly states that if a drug test shows “the presence, at the time of

injury, of any drug illegally used . . . it shall be presumed that the proximate cause of the

injury was the use of a drug illegally.” (Emphasis added). Marijuana, being a Schedule 1

Controlled Substance, was illegal at the time of Meek’s accident and no mechanism existed

by which he could have legally ingested it. We find, therefore, that it was the very presence

of marijuana in his system at the time that violated section 71-3-121(1). We also fail to see

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how the application of Cartwright would have changed the outcome in this instance. The

MWCC decision is affirmed in this regard.

IV. Whether the MWCC erred when it failed to find that Meek
suffered 100% loss of industrial use of his right shoulder and hip.

¶18. The previously discussed issues are dispositive in this case, and we do not need to

address the allegations of error regarding Meek’s impairment rating. See Fason v. Trussell

Enters. Inc., 120 So. 3d 454, 459 (¶11) (Miss. Ct. App. 2013).

CONCLUSION

¶19. Our duty of deference to the MWCC on judicial review is justified by its experience

and expertise in the interpretation and administration of the law of workers’ compensation.

Smith v. Jackson Const. Co., 607 So. 2d 1119, 1124-25 (Miss. 1992). The denial of the

petition to controvert was based on substantial evidence and is upheld.

¶20. AFFIRMED.

BARNES, C.J., CARLTON AND WILSON, P.JJ., GREENLEE, McDONALD,
LAWRENCE, McCARTY, SMITH AND EMFINGER, JJ., CONCUR.

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