Dalton Ray Stewart v. Dynamic Environmental Services, LLC

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2017-WC-00467-COA

DALTON RAY STEWART APPELLANT

v.

DYNAMIC ENVIRONMENTAL SERVICES, APPELLEES
LLC AND HDI-GERLING AMERICA
INSURANCE COMPANY

DATE OF JUDGMENT: 03/20/2017
TRIBUNAL FROM WHICH MISSISSIPPI WORKERS’
APPEALED: COMPENSATION COMMISSION
ATTORNEYS FOR APPELLANT: DAVID N. GILLIS
WAYNE E. FERRELL JR.
ATTORNEYS FOR APPELLEES: JILL RENEE MILLER
MICHAEL MADISON TAYLOR JR.
NATURE OF THE CASE: CIVIL - WORKERS’ COMPENSATION
DISPOSITION: AFFIRMED - 01/23/2018
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

BEFORE LEE, C.J., GREENLEE AND WESTBROOKS, JJ.

WESTBROOKS, J., FOR THE COURT:

¶1. Dalton Ray Stewart filed a motion to controvert with the Mississippi Workers’

Compensation Commission (Commission) seeking disability benefits after he suffered an

injury in an accident while employed by Dynamic Environmental Services LLC (Dynamic).

Following discovery, Dynamic and HDI-Gerling America Insurance Company (HDI) filed

a motion to dismiss Stewart’s claim for lack of jurisdiction. The administrative judge found

that the Commission lacked jurisdiction and dismissed Stewart’s claim. Stewart appealed

the order to the full Commission. The Commission dismissed Stewart’s petition to
controvert based on lack of jurisdiction in Mississippi. Stewart timely appeals.

FACTS AND PROCEDURAL HISTORY

¶2. In 2012, Stewart was employed as a truck driver with Dynamic at its location in

Pearsall, Texas. He left briefly and reapplied for employment as a truck driver in 2014. At

all times pertinent to this case, Dynamic’s headquarters were located in Texas. At the time,

Stewart was living in Mississippi.

¶3. It is undisputed that Stewart contacted Chad Fullilove, an employee with Dynamic,

via Facebook, regarding employment. Further, Stewart filled out the appropriate

preemployment paperwork and submitted to a drug test in Pleasanton, Texas. While

completing the preemployment process, Stewart stayed in Dynamic’s on-site housing in

Charlotte, Texas. Sam Moak, the safety director with Dynamic, presented a sworn affidavit

stating that the trucks were kept at Dynamic’s facility in Texas.

¶4. During the ninety-day probationary period, Stewart was involved in a single-vehicle

rollover accident in Raegan County, Texas, on November 4, 2014. He received medical

treatment at a hospital in Midland, Texas. In 2015, Stewart filed a claim for benefits under

the Texas workers’ compensation administrative process and began receiving benefits.

However, Dr. Dropadi Kewairamani, the treating physician in Texas, declared that Stewart

reached maximum medical improvement (MMI) only eight days after the accident.

¶5. Subsequently, Stewart returned to Mississippi and sought medical treatment. Stewart

asserts that he was diagnosed with post-mild traumatic brain injury, depression, memory

loss, vertigo, postconcussion syndrome, low-back pain, irritable-bowel syndrome, and a

2
sleep disorder.

¶6. Stewart maintains that he was treated by another Mississippi physician and diagnosed

with traumatic brain injury and depression, and that he had not reached MMI. As a result,

Stewart filed a motion to controvert with the Commission. The claim was based on

Stewart’s injuries sustained while driving for Dynamic on November 4, 2014.

¶7. Dynamic and HDI filed a motion to dismiss Stewart’s claim for lack of jurisdiction

within Mississippi. After a hearing, the administrative judge issued an order dismissing the

claim for lack of jurisdiction, and Stewart appealed the dismissal to the full Commission.

The Commission affirmed the order of the administrative judge and dismissed Stewart’s

claim. Stewart appeals.

STANDARD OF REVIEW

¶8. This Court has held that “the standard of review in a workers’ compensation appeal

is limited to whether the Commission’s decision is supported by substantial evidence.”

Hamilton v. Southwire Co., 191 So. 3d 1275, 1282 (¶23) (Miss. Ct. App. 2016). Moreover,

“[t]he Commission is the trier and finder of facts in a compensation claim, the findings of

the [administrative judge] to the contrary notwithstanding.” Id. Accordingly, “[appellate]

court[s] will reverse an order of the Commission only where such order is clearly erroneous

and contrary to the overwhelming weight of the evidence.” Id.

DISCUSSION

I. Whether Stewart was hired in Mississippi.

¶9. Stewart asserts that he was hired in Mississippi, and that the Commission’s ruling was

3
not supported by substantial evidence, was arbitrary and capricious, was based upon findings

of fact contrary to the great weight of the evidence, and violated his statutory right to receive

compensation under Mississippi law. We disagree.

¶10. Stewart maintains that the Commission erroneously relied on its previous rulings in

Phelps v. Builders Transport Inc., No. 98-07722-G-3058, 2000 WL 1930224 (Miss.

Workers’ Comp. Comm’n Dec. 13, 2000), and Stewart v. Advertising Network Solutions,

No. 12 09091-M-1844, 2014 WL 266102 (Miss. Workers’ Comp. Comm’n Jan. 10, 2014).

¶11. In Stewart, the full Commission ruled that “a telephone call placed by [the c]laimant

while in Mississippi and followed by a written employment contract in another state does

not result in the [c]laimant being hired in Mississippi for purposes of Mississippi Code

Annotated section 71-3-109 [(Rev. 2011)].” Stewart, 2014 WL 266102, at *2.

¶12. In Phelps, the Commission found that although a claimant had been hired in

Alabama, she returned to Mississippi to await instructions for her first assignment. Phelps,

2000 WL 1930224, at *2. As a result, the Commission found that the claimant was

employed in Mississippi, and Mississippi had jurisdiction over her claim. Id. at *5.

¶13. Stewart further asserts he was hired in Mississippi because he informed Dynamic that

he had found other employment. As a result, he maintains that Fullilove actively pursued

his employment after he realized that he had been hired by Macro Companies (Macro) in

Louisiana. Stewart contends that his resignation from his job with Macro before reporting

to Dynamic creates an inference that he was hired in Mississippi. However, Stewart does

not cite any authority supporting this contention. Mississippi caselaw has consistently held

4
that “failure to cite any authority is a procedural bar, and a reviewing court is under no

obligation to consider the assignment.” Bishop v. Miss. Dep’t of Emp’t Sec., 145 So. 3d

1254, 1255 (¶4) (Miss. Ct. App. 2014).

¶14. Therefore, we find no error with the Commission’s reliance on these orders, and this

issue is without merit.

II. Whether Stewart was temporarily working outside of Mississippi.

¶15. Because the accident occurred outside of the state of Mississippi, the only manner in

which the Commission could possibly obtain jurisdiction over Stewart’s claim is found

under Mississippi Code Annotated section 71-3-109(1). This section provides:

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. This provision shall apply only to those injuries received
by the employee within six months after leaving this state unless, prior to the
expiration of such six months’ period, the employer has filed with the
commission of Mississippi notice that he has elected to extend such coverage
a greater period of time.

Id.

¶16. Subsection (2) of the statute states that “the provisions of this section shall not apply

to an employee whose departure from the state is caused by a permanent assignment or

transfer.” Miss. Code Ann. §71-3-109(2).

¶17. The facts establish that Stewart’s departure from Mississippi was caused by a

permanent assignment in Texas. The only contact Stewart had with Mississippi consisted

of telephone and computer communications between him and Fullilove while Stewart was

5
located in Mississippi. Moreover, Stewart initiated contact about the possibility of being

rehired. After back-and-forth communication between Fullilove and Stewart on social

media, Stewart traveled to Texas to present his application for employment and

accompanying preemployment paperwork. Stewart even stayed in Dynamic’s on-site facility

housing until the paperwork had been processed.

¶18. This Court dealt with similar jurisdictional issues in Rice v. Burlington Motor

Carriers Inc., 839 So. 2d 602 (Miss. Ct. App. 2003). In Rice, “[t]he Commission dismissed

Rice’s petition to controvert for lack of jurisdiction.” Id. at 602 (¶1). “[The claimant] was

a resident of Pontotoc County when he enrolled in a truck[-]driver training school located

in Nashville, Tennessee.” Id. at (¶2). During a work trip from Indiana to Pennsylvania, he

suffered a back injury. Id. at 603 (¶2). “The injury occurred in the State of Pennsylvania.”

Id. “After several days of unsatisfactory recuperation, Rice returned to Mississippi where

he underwent extensive medical treatment including back surgery.” Id. Further in Rice,

[The employer] contested the jurisdiction of the Mississippi Workers’
Compensation Commission to award compensation benefits under the facts
of this case, arguing that there was an insufficient nexus between
[Mississippi] and the circumstances of both Rice’s employment and his
work-related injury to permit the Commission to determine Rice’s claim. The
Commission agreed and dismissed Rice’s petition on that basis without
reaching the underlying merits of his claim for benefits.

Id. at (¶3).

¶19. We find that Stewart’s case is analogous to Rice. As a result, Stewart’s argument

lacks merit.

III. Whether the Commission conducted a proper review of the record.

6
¶20. Stewart further asserts that the Commission should have reviewed his claim under the

rules set forth for summary judgment in Mississippi Rule of Civil Procedure 56. However,

we disagree.

¶21. In its order, the Commission stated that the summary-judgment standards pursuant

to Rule 56(c) are not applicable, because the Commission has not adopted the rule. We find

no error in this determination. Therefore, this argument is meritless.

IV. Whether Stewart’s workers’ compensation claim in Texas impacts
Mississippi’s jurisdiction.

¶22. Stewart asserts that he may pursue his claim in both Texas and Mississippi. It is

undisputed that “more than one statute can apply to a single compensable injury, so long as

each state has a relevant interest in the case.” Martin v. L. & A. Contracting Co., 249 Miss.

441, 446, 162 So. 2d 870, 872 (1964). The Martin court further held that “successive

awards can be made in different states, deducting the amount of the first award from the

second.” Id.

¶23. However, Mississippi must first have jurisdiction over the claim. Stewart’s accident

occurred in Texas. Dynamic’s principal place of business is in Texas. Sam Moak, the safety

director for Dynamic, signed an affidavit stating that, once hired, drivers at Dynamic utilized

the company-owned trucks stored in the yard in Charlotte. Stewart’s truck was never kept

in Mississippi. Therefore, this issue is without merit.

V. Whether Dynamic and HDI’s motion was filed to delay Stewart’s
claim and cause hardship and prejudice.

¶24. Stewart asserts that the motion to dismiss was filed to delay litigation of his claim.

7
As a result, Stewart claims to have suffered economic hardship and a lack of medical

treatment. However, the Commission disagreed.

¶25. Stewart offered no substantial evidence to support his assertion that he suffered an

undue delay. Stewart only offered medical information concerning his claim under the

Texas workers’ compensation system. Therefore, we find that there was sufficient evidence

for the Commission to dismiss Stewart’s petition to controvert for lack of jurisdiction.

¶26. AFFIRMED.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, FAIR,
GREENLEE AND TINDELL, JJ., CONCUR. WILSON, J., NOT PARTICIPATING.

8