Sheree Cleveland v. Advance Auto Parts and Indemnity Insurance Company of North America;

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2018-WC-01659-COA
SHEREE CLEVELAND APPELLANT
v.
ADVANCE AUTO PARTS AND INDEMNITY APPELLEES
INSURANCE COMPANY OF NORTH AMERICA
DATE OF JUDGMENT: 11/06/2018
TRIBUNAL FROM WHICH MISSISSIPPI WORKERS’ COMPENSATION
APPEALED: COMMISSION
ATTORNEYS FOR APPELLANT: DAVID N. GILLIS
JAMES E. LEVER
ATTORNEYS FOR APPELLEES: DANIEL PAUL CULPEPPER
MATTHEW RYAN ANTHONY
NATURE OF THE CASE: CIVIL - WORKERS’ COMPENSATION
DISPOSITION: REVERSED AND REMANDED - 12/10/2019
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC.
McDONALD, J., FOR THE COURT:
¶1. This appeal arises from a workers’ compensation dispute. Sheree Cleveland filed
post-settlement motions for relief1 before the Mississippi Workers’ Compensation
Commission (the Commission) against Advance Auto Parts and Indemnity Insurance
Company of North America (collectively Employer/Carrier) in an effort to get the
Employer/Carrier to pay two of Cleveland’s outstanding medical bills. These bills were
1
These were combined in a “Motion for Certification of the Facts to the Circuit Court
for Punishment for Contempt, Motion for Reasonable Expenses, Including Attorney’s Fees,
and Motion for Levy of Civil Penalty.”
incurred, and all parties were aware that they existed prior to the order approving a “Final
Compromise and Settlement” (settlement agreement) and the filing of the Form B-31.
Cleveland sought payment from the Employer/Carrier twice within the next year, but
Cleveland filed her post-settlement motions with the Commission after the one-year period
outlined in Mississippi Code Annotated section 71-3-53 (Rev. 2011). In response to the post-
settlement motions, the Employer/Carrier filed a response, arguing that the Commission did
not have authority to rule because it lacked jurisdiction.
¶2. The administrative judge (AJ) heard the motions on April 16, 2018, and granted
Cleveland relief, but after an appeal by the Employer/Carrier, the Commission vacated the
AJ’s order on statute-of-limitations grounds.
¶3. On Cleveland’s appeal to this Court, we find that the Commission erred, and we
reverse its decision for two reasons. First, the Employer/Carrier is estopped from asserting
the statute-of-limitations defense because it knew of and previously agreed to pay
Cleveland’s outstanding bills and because it represented to the AJ that it was processing one
bill and had paid the other bill. Second, although the Form B-31 was properly filed,
Cleveland’s contact with the Employer/Carrier sufficiently tolled any statutory limitations
period that may be applicable. We remand for the reinstatement and enforcement of the AJ’s
order.
FACTS AND PROCEDURAL HISTORY
¶4. On November 25, 2014, Cleveland sustained an injury to her lower back while
unloading freight during her employment with Advance Auto Parts in Hazlehurst,
2
Mississippi. The following day, Cleveland sought medical attention and was prescribed
medication and physical therapy. During this time, she accrued a bill at Allreds’ Pharmacy.
On February 3, 2015, Cleveland filed a petition to controvert with the Mississippi Workers’
Compensation Commission regarding her injury.
¶5. Cleveland returned to work and sustained a second injury to her lower back on March
23, 2015. Cleveland sought medical attention following this second injury. Subsequently,
she underwent additional physical therapy in April and May 2015.
¶6. On October 19, 2015, Cleveland filed a petition to controvert regarding the second
injury. At Cleveland’s request, the claims were consolidated by the Commission. Advance
Auto Parts’ insurance carrier, Indemnity Insurance Company of North America, was granted
leave to intervene.
¶7. The Employer/Carrier had received notice of Cleveland’s Allreds’ Pharmacy bill on
April 14, 2015, when she responded to the Employer/Carrier’s first set of requests for
production of documents for the first injury.2 On March 14, 2016, Cleveland filed a
pre-hearing statement with the Commission and attached an itemization of her medical
expenses including both the pharmacy and physical therapy bills. The Employer/Carrier
never denied the legitimacy of these bills, and the parties settled.
¶8. On August 17, 2016, Cleveland and the Employer/Carrier filed a “Petition for
Approval of Final Compromise Settlement” with the Commission. On the same day, the
Commission entered an order, finding that Cleveland and the Employer/Carrier “ha[d]
2
Cleveland included an itemization of the medical expenses that she had incurred at
the time of the first injury.
3
negotiated a compromise settlement of all claims arising out of the Claimant’s alleged
injuries for which compensation is being made herein and that the parties have reached a full
and final statement of all claims . . . .” The Commission further found that the
Employer/Carrier
has paid for or will pay for the necessary and reasonable medical expenses
incurred by Claimant related to [her] injuries for which claim is being made
herein which [were] incurred before the date of the Petition for Approval of
Final Compromise Settlement and [provided that] those expenses are covered
charges as contemplated by Miss. Code Ann. § 71-3-15 (1972) and Mississippi
Workers’ Compensation Commission General Rule 9.
(Emphasis added). The Employer/Carrier filed the Form B-31 with the Commission on
September 12, 2016.
¶9. Within the one-year deadline imposed by Mississippi Code Annotated section 71-3-
53, Cleveland’s attorney contacted the Employer/Carrier’s attorney and requested payment
of Cleveland’s outstanding bills on two occasions. On November 30, 2016, Cleveland’s
attorney sent an email to the Employer/Carrier’s attorney requesting that the
Employer/Carrier pay the Allreds’ Pharmacy bill in the amount of $1,099.09. The
Employer/Carrier did not respond to this email. Cleveland’s attorney then sent a letter to the
Employer/Carrier’s attorney, enclosing copies of the outstanding Medicomp physical therapy
and Allreds’ Pharmacy bills on July 13, 2017.3 The letter stated as follows:
Enclosed please find copies of the following unpaid medical and
pharmaceutical bills concerning the captioned matters:
1) Billing statements (4 pages) from Copiah Wellness & Rehab/
3
Cleveland incurred both bills, and the Employer/Carrier had notice of both bills,
before the settlement agreement was approved.
4
Medicomp Physical therapy for service dates April 30, 2015; and, May
5, 7 & 11, 2015.
2) Billing Log printed (7/12/2017 from Medicomp Physical Therapy (1
page)) showing the balances due after adjustments and indicating that
no payments have been made.
3) Itemized billing statement from Allreds[’] Pharmacy (2 pages)
showing a balance due of $1,099.99.
As you know, the workers’ compensation carrier is responsible for the
payment of Sheree Cleveland’s medical expenses pursuant to the settlement
agreement reached in the captioned causes and pursuant to the order rendered
in these causes.
By email dated 11/30/2016, I forwarded notice to you concerning the
non-payment of the pharmacy bill, but I never received a response from you.
Request is hereby made that these medical expenses be paid immediately. I
further request that you contact me upon receipt of this letter and advise the
reason for non-payment of these bills and provide assurance that these bills
will be paid at this time.
The Employer/Carrier did not respond to the letter.
¶10. On March 30, 2018, Cleveland filed her post-settlement motions with the
Commission, seeking payment of these outstanding bills and requesting attorney’s fees. On
April 16, 2018, the AJ held a hearing on Cleveland’s post-settlement motions. At the
hearing, the Employer/Carrier represented to the AJ that its adjuster was processing the
outstanding Medicomp physical-therapy bill and the Allreds’ Pharmacy bill. In addition, on
April 23, 2018, the Employer/Carrier’s attorney sent an email to the AJ and stated in relevant
part:
As you requested, I wanted to provide you with an update on the status of the
medical bills that we discussed last Monday. . . .
As for the Medicomp bills that were provided, those were processed per the
5
Fee Schedule by Genex and payment was issued on April 18, 2018. . . .
As for the [Allreds’] [P]harmacy bills, I am working to confirm the delay in
payment from the adjuster. That being said, I know that a Tax ID was needed
from the pharmacy to complete the processing of their charge. I am attempting
to determine where in the process that was after I left for the conference. I
know that I currently have the Tax ID and as of today, I have provided it to my
client. It is my understanding that my client had previously requested that
information, but I have not been able to confirm whether they were successful.
I will have a follow-up email for you tomorrow as soon as I have specific
information about the pharmacy bill and the processing of it. . . .
¶11. Since the Employer/Carrier paid one outstanding bill4 and represented that it was
processing the other, the AJ needed only to decide the issue of attorney’s fees.5 On June 5,
2018, the AJ issued an order stating in pertinent part:
At the hearing, the Employer/Carrier explained that the adjuster was
processing the bills. Therefore, Claimant agreed to hold the motion in
abeyance except for the request for attorney fees. After considering arguments
of counsel, Claimant’s motion, the Employer/Carrier’s response, and the parts
of the Commission file which comprise the record pursuant to MWCC
Procedural Rule 2.10, I find that Claimant’s request for attorney fees should
be granted. Claimant’s attorney is hereby ordered to provide a statement of his
fees and expenses with regard to the work associated with the motion to the
undersigned within thirty (30) days of the date of this order. The
Employer/Carrier will then have 15 days to respond to the amount of the fees.
The AJ held the issue of the payment of outstanding medical bills in abeyance and found that
Cleveland was entitled to attorney’s fees.
¶12. On June 25, 2018, the Employer/Carrier filed a petition with the Commission for a
review of the AJ’s findings. The Employer/Carrier argued that the AJ “erred when she failed
4
The email stated that the Employer/Carrier paid the Medicomp physical-therapy bill.
5
That issue is not before this Court at this time.
6
to deny the Claimant’s motion due to a lack of jurisdiction . . . .” It claimed that the statute-
of-limitations period had run on Cleveland’s request for benefits.
¶13. In an order dated November 6, 2018, the Commission found that Cleveland “made no
application for additional benefits to the Commission within the Commission’s one-year
continuing jurisdiction of this claim,” and, therefore, the Commission reversed the AJ’s order
for lack of jurisdiction.
¶14. On November 19, 2018, Cleveland timely filed her appeal to this Court on the basis
that the order is “not supported by substantial evidence, is arbitrary and capricious, is not
supported by the great and overwhelming weight of the evidence and is not supported by
law.” For the reasons set forth below, we reverse and remand.
STANDARD OF REVIEW
¶15. Our standard of review “in actions arising under Workers’ Compensation Law . . . is
limited to a determination of whether the [Commission] erred as a matter of law or made
factual findings of fact contrary to the overwhelming weight of the evidence.” Clements v.
Welling Truck Serv. Inc., 739 So. 2d 476, 478 (¶7) (Miss. Ct. App. 1999) (citing Fought v.
Stuart C. Irby Co., 523 So. 2d 314, 317 (Miss. 1988)). “Reversal is proper 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.” Weatherspoon v. Croft Metals Inc., 853 So. 2d 776,
778 (¶6) (Miss. 2003). Our supreme court has also stated the Commission will only be
reversed “for an error of law or an unsupportable finding of fact.” Ga. Pac. Corp. v. Taplin,
586 So. 2d 823, 826 (Miss. 1991) (internal citations omitted). When the Commission’s
7
decision is supported by substantial evidence, then it must be upheld. Vance v. Twin River
Homes Inc., 641 So. 2d 1176, 1180 (Miss. 1994). This remains true even though we might
have reached a different conclusion were we the trier of fact. Id.DISCUSSION
¶16. Mississippi Code Annotated section 71-3-53 creates a one-year limitations period for
a claimant who seeks additional benefits related to her claim:
Upon its own initiative or upon the application of any party in interest on the
ground of a change in conditions or because of a mistake in a determination of
fact, the commission may, at any time prior to one (1) year after date of the last
payment of compensation, whether or not a compensation order has been
issued, or at any time prior to one (1) year after the rejection of a claim, review
a compensation case, issue a new compensation order which may terminate,
continue, reinstate, increase, or decrease such compensation, or award
compensation. . . .
This case is unusual because Cleveland is not requesting additional benefits on her previously
filed claims; she is merely requesting the Commission enforce its prior orders and make her
Employer/Carrier pay the bills it had already agreed to pay. Assuming, however, that
Cleveland was obligated to seek relief within one year of the filing of the Form B-31, we
conclude that the Employer/Carrier is estopped from asserting the statute-of-limitations
defense because it knew of and previously agreed to pay Cleveland’s outstanding bills,
leading Cleveland to believe they would be paid, and because the Employer/Carrier
represented to the AJ that it was processing one bill and had paid the other bill. Furthermore,
we hold that Cleveland’s contact and notice to the Employer/Carrier of the outstanding bills
tolled any statutory limitations period that may be applicable.
8
I. The Employer/Carrier is estopped from asserting the statute-of-
limitations as a defense.
¶17. An employer can be estopped from raising a statute-of-limitations defense if an
employee can show he was misled into believing that his employer would pay his medical
expenses. This principle was articulated in Baker v. IGA Super Valu Food Store, 990 So. 2d
254, 257 (¶4) (Miss. Ct. App. 2008). In that workers’ compensation case, the claimant failed
to file his petition to controvert within two years of his injury, and the AJ dismissed the claim
on the ground of that statute-of-limitations.6 Id. at (¶3). Baker argued that the employer
should be estopped from asserting the statute-of-limitations as a defense because the
employer voluntarily paid his medical bills without question or controversy, and Baker
reasonably relied on such payment. Id. at 260 (¶22). This Court held that “[a]n employer
may be estopped from asserting the statute-of-limitations as a bar to a claim for benefits
where the evidence shows that the employer intended to mislead the claimant, and the
employee reasonably relied on such statements or actions.”7 Id. at 261 (¶23). This principle
6
Mississippi Code Annotated section 71-3-35(1) (Rev. 2011), which addresses the
right to compensation, provides in pertinent part as follows:
[I]f no payment of compensation (other than medical treatment or burial
expense) is made and no application for benefits filed with the commission
within two years from the date of the injury or death, the right to
compensation therefore shall be barred.
7
The dissenting portion of the separate opinion cites the elements of equitable
estoppel found in Chance v. Chance, 191 So. 3d 1293, 1299 (¶21) (Miss. Ct. App. 2016),
a domestic relations case. There is no dispute that the elements required to establish
equitable estoppel (i.e., “inequitable behavior”) are “(1) belief and reliance on some
representation ; . . . (2) change of position as a result of the representation; and (3) detriment
or prejudice caused by the change of position.” Id. at 1297 (¶13). Here, Cleveland has
sufficiently proved these elements. The Employer/Carrier represented to Cleveland in the
9
was reiterated in McKinney v. University of Mississippi Medical Center, 110 So. 3d 332, 334
(¶10) (Miss. Ct. App. 2013). To support his argument for estoppel, the employee must
provide evidence of “inequitable behavior” by the employer. Id. Although Baker and
McKinney did not prevail because they could not show inequitable behavior, both cases still
constitute precedent for situations where a claimant such as Cleveland can. Id. at 334 (¶11);
Baker, 990 So. 2d at 261 (¶25).
¶18. There is ample evidence in this record to show the Employer/Carrier’s “inequitable
behavior.” The Employer/Carrier had notice of both the Allreds’ Pharmacy bill and the
physical therapy bills before the Form B-31was filed. The Employer/Carrier never disputed
the bills, leading Cleveland to believe they would be paid. The Employer/Carrier
exemplified “inequitable behavior” when it failed to pay Cleveland’s medical bills that it had
agreed to pay pursuant to the settlement agreement. Further, it ignored Cleveland’s email
and letter, which were sent within the one-year statute-of-limitations period, reminding them
to pay the outstanding bills.8 Further, the Employer/Carrier willfully represented to the AJ
settlement documents that it “has paid or will pay” all her outstanding medical bills.
Cleveland reasonably relied on this representation by sending them reminders of their
agreement instead of immediately taking formal legal action. This change in her position
while relying on the Employer/Carrier’s representation ultimately acted to her detriment.
8
The dissenting portion of the separate opinion cites Turnage v. Lally’s Swimming
Pool Company, 247 Miss. 713, 159 So. 2d 84 (1963), which is inapplicable to the facts
before us. In Turnage, the carrier paid all of Turnage’s hospital and accrued medical
expenses that he incurred prior to the filing of the Form B-31. Turnage, 247 Miss. at 84,
159 So. 2d at 716. But Turnage sought payment for additional medical treatment thereafter.
Id. Here, the Employer/Carrier had unequivocally agreed to pay Cleveland’s medical bills
that were incurred prior to the filing of the Form B-31 but had failed to do so. Cleveland
was simply seeking enforcement of the payment of a bill that the Commission had approved
and the Employer/Carrier had agreed to pay.
10
that it had paid one of the outstanding bills and that it was processing the other. Instead of
doing so, the Employer/Carrier appealed the AJ’s decision. We cannot condone any
misrepresentations made to a judicial officer. Because of the foregoing, the
Employer/Carrier is estopped from asserting the statute-of-limitations defense.
II. Cleveland’s contacts with the Employer/Carrier during the one
year following the filing of the B-31 notice tolls any applicable
statutory limitations period.
¶19. In this case, the Form B-31 notice indicating that the parties had reached a settlement
on the payment of any compensation due was filed on September 12, 2016.9 But the proper
filing of the Form B-31 starts the one-year statute-of-limitations period, which can be tolled.
The dissenting portion of the separate opinion points out that the Employer/Carrier’s payment
of the Medicomp medical bill after the one-year limitations period had passed did not toll the
limitations period. But this Court does not hold that it did. We hold that the correspondence
that was sent to the Employer/Carrier, which had agreed before the B-31 was filed to pay
outstanding medical bills, was sufficient to toll the limitations period.
¶20. Section 71-3-53 provides that “the commission may, at any time prior to one (1) year
after date of the last payment of compensation . . . or . . . after the rejection of a claim, review
9
Cleveland contends that the Form B-31 was not properly filed because at the time
of its filing, the Employer/Carrier still had not paid medical bills that it agreed to pay in the
settlement agreement. We disagree with this contention. A review of the record supports
a finding that the Form B-31 was properly filed in accordance with section 71-3-53 and
Mississippi Workers’ Compensation Commission Procedural Rule 2.17 (the 2018
replacement of Procedural Rule 17). The form contained Cleveland’s signature, showing
that Cleveland had been put on notice of the one year as it related to future claims. As noted
earlier, it is questionable whether this one-year statute-of-limitation applies in this case
because the claims in dispute are not future claims, but a claim for bills that the
Employer/Carrier already agreed to pay as a part of the settlement agreement.
11
a compensation case, issue a new compensation order which may terminate, continue,
reinstate, increase, or decrease such compensation, or award compensation.” The one-year
limitations period imposed by section 71-3-53 “operates elsewhere in conjunction with § 71-
3-37(7), the Mississippi Workers’ Compensation Commission’s Procedural Rule 17[10], and
the Commission’s form B-31.” Taylor v. Salvation Army-Pascagoula Corps., 744 So. 2d
825, 827 (¶6) (Miss. Ct. App. 1999). In other words, in order to determine if the one-year
statute-of-limitations period has run, we must look at the statute, the procedural rule, and the
B-31 form together.
¶21. The Form B-31 includes the specific language that “[i]f you incur . . . additional
expenses, due to your injury, you should immediately contact your employer, the insurance
carrier, or the Mississippi Workmen’s Compensation Commission for further
guidance.” (Emphasis added). The Form B-31 lists three entities in the disjunctive to inform
a claimant whom he or she should contact. By including that specific language, the form
leads a claimant to believe that contacting any of these entities would be sufficient to toll the
one-year period. Therefore, the form is clearly ambiguous.11
¶22. Moreover, the Commission itself has indicated that contacting the employer could toll
the limitations period. In a previous case before the Commission, the Employer/Carrier
10
Again, Rule 17 was replaced by Rule 2.17 on January 1, 2018.
11
Further, Cleveland did not incur an “additional expense.” Cleveland was simply
seeking payment of medical bills that they previously agreed upon, which the Commission
approved, and the Employer/Carrier represented to the AJ that it would pay. For an
Employer/Carrier to delay payment until after the one-year statute-of-limitations from the
filing of the Form B-31 to avoid its obligations is behavior that should not be condoned.
12
argued that the claimant’s claim was barred by the one-year limitations period provided in
section 71-3-53. Smith v. Express Jet Airlines and N. H. Ins. Co., 2013 WL 1090000, No.
1106052-M-1580-C (M.W.C.C. March 7, 2013). The Commission denied the claim on the
following basis:
The claimant took no action that would toll the one year allowed for reopening
a claim under the Mississippi Workers Compensation Law. Specifically, the
claimant failed to file an application for additional benefits with the
Commission, and she made no contacts with the employer/carrier in an
effort to seek benefits.
Id. (emphasis added). The Commission’s own language in the Smith order leads a claimant
to believe that if he or she contacts the Employer/Carrier, then the Commission will reach
a different result.
¶23. Here, the Employer/Carrier received notice of the unpaid medical bills twice before
the Form B-31 was filed. The Employer/Carrier was notified when Cleveland responded to
the Employer/Carrier’s first set of requests for production of documents and again when
Cleveland filed a pre-hearing statement with the Commission and attached an itemization of
her medical expenses. The Employer/Carrier settled with Cleveland and agreed to pay the
medical bill that is in dispute.
¶24. After the filing of the Form B-31, the record shows, and the Employer/Carrier
acknowledged in its brief, that Cleveland contacted the Employer/Carrier on two occasions
within one year. First, on November 30, 2016, two months after the Form B-31 was filed,
Cleveland’s attorney sent an email to the Employer/Carrier’s attorney requesting payment on
an outstanding bill from Allreds’ Pharmacy. Second, Cleveland’s attorney then sent a letter
13
to the Employer/Carrier on July 13, 2017, again requesting payment for the Allreds’
Pharmacy and the Medicomp physical therapy bills. Based upon the agreement between the
parties that the bills would be paid, the ambiguity of the Form B-31, and the fact that the
Commission encourages contacting the employer based upon the Smith order, we find that
Cleveland’s actions sufficiently tolled the one-year statute-of-limitations period.
CONCLUSION
¶25. For the foregoing reasons, the Commission erred in holding that it lacked jurisdiction
to consider Cleveland’s motion. We reverse the Commission’s decision and remand this case
for further proceedings consistent with this opinion.
¶26. REVERSED AND REMANDED.
GREENLEE, WESTBROOKS, LAWRENCE AND McCARTY, JJ., CONCUR.
TINDELL, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN
OPINION. BARNES, C.J., CONCURS IN PART AND DISSENTS IN PART WITH
SEPARATE WRITTEN OPINION, JOINED BY CARLTON AND J. WILSON, P.JJ.,
AND C. WILSON, J.
BARNES, C.J., CONCURRING IN PART AND DISSENTING IN PART:
¶27. While I concur with the majority’s finding that the Form B-31 was properly filed, I
respectfully dissent from its holding that the one-year statute of limitations was tolled and
that the “Employer/Carrier” was estopped from raising a statute-of-limitations defense.
¶28. I find Cleveland’s argument—that the filing of the B-31 did not trigger the running
of the one-year limitations period because the Employer/Carrier knew it was obliged to pay
those medical expenses incurred before the settlement order—unpersuasive. The treatise
Cleveland cites, Bradley & Thompson, Mississippi Workers’ Compensation Law § 7:23
14
(2019), provides:
The proper filing of the B-31 triggers the running of the one-year period of
[section] 71-3-53. Failure to file the B-31 at all, failure to file a new B-31
when needed, and failure to file the B-31 properly all have resulted in claims
not being barred even though filed more than one year after a “last payment.”
....
1. Good faith belief that obligation has ended. When a B-31 is filed with the
commission, it is like other representations filed by the employer or claimant
in that it must be made in good faith and with an honest, substantiated belief
that it is true. In this case, the employer must have such a basis for its
representation that its obligation is at an end. In Hale v. General Box
Manufacturing Co., [228 Miss. 394, 401, 87 So. 2d 679, 680 (1956),] when the
employer filed a B-31 on January 20, 1954, at a time when it “did not consider
the payment made in December 1952 as a final payment,” the B-31 did not set
the one-year period in motion. The reason for such a requirement is obvious.
Nothing less than the claimant’s statutory rights are on the line, not to mention
the right to due process of law. . . .
2. If a B-31 is filed at a time the employer-carrier knows or should know of a
continuing need for medical services, for example, that B-31 should not be
effective to trigger the running of the one year. In Hale, the court disregarded
it.
However, the facts in Hale are distinguishable from the present case. In Hale, the insurance
carrier filed an unsigned Form B-31 with the Commission and did not inform the claimant
that was the final payment; only that his payments had been suspended. Hale, 228 Miss. at
401, 87 So. 2d at 680. Here, Cleveland signed the B-31 form, acknowledging receipt of the
final payment of compensation. The form explicitly stated that the Employer had determined
there were no more payments to be made; so Cleveland was aware that this was the final
payment. “The Commission Rule 2.17 (2018 replacement of Procedural Rule 17) says that
if the worker signs the completed B-31, its filing is effective upon its delivery to the
15
commission. The one-year period begins at that time.” Bradley & Thompson, Mississippi
Workers’ Compensation Law § 7:23 (2019). Therefore, Cleveland had until September 13,
2017, to notify the Commission of any additional medical benefits to be paid.12
¶29. The majority finds that Cleveland’s actions in contacting the Employer/Carrier on two
occasions within the one year “sufficiently tolled the one-year statute-of-limitations period.”
Supra ¶24. The only case cited by the majority to support its holding—that a claimant may
toll the statute of limitations by sending an email or letter to the employer within a year after
the Form B-31 has been filed—is Smith v. Express Jet Airlines and New Hampshire
Insurance Co., 2013 WL 1090000, No. 11 06052-M-1580-C (M.W.C.C. March 7, 2013).
In Smith, the carrier sent a Form B-31 to the claimant, who never responded or signed the
form; so two months later, the carrier filed the form with the Commission. Id. at *1. More
than one year later, after the statute of limitations had run, she filed a petition to controvert.
Id. The Commission found her claim barred, holding:
The claimant took no action that would toll the one year allowed for reopening
a claim under the Mississippi Workers’ Compensation Law. Specifically, the
claimant failed to file an application for additional benefits with the
Commission, and she made no contacts with the employer/carrier in an effort
to seek benefits.
Id. at *2 (emphasis added). I cannot see that this dicta is sufficient authority to reopen the
12
Also, the claimant in Hale filed a letter with the Commission less than one month
after the unsigned Form B-31 was filed, asserting that no compensation had been paid for
over a year. Hale, 228 Miss. at 400, 87 So. 2d at 679-80. This letter was within the one-
year statute of limitations. Here, although Cleveland notified the Employer/Carrier of the
outstanding medical expenses after signing the form, she did not file anything (e.g., a letter
or a petition) with the Commission until six months after the one-year statute of limitations
had expired.
16
statute of limitations in the instant case, especially since Cleveland signed the Form B-31
whereas the claimant in Smith did not.
¶30. Under Mississippi law, a Form B-31 “constitutes notice to [a] claimant that he is
receiving his final payment of compensation . . . and that the employer and insurance carrier
consider the case closed.” Armstrong Tire & Rubber Co. v. Franks, 242 Miss. 792, 797, 137
So. 2d 141, 143 (Miss. 1962). Thus, the one-year limitations period established by section
71-3-53 is measured by the claimant’s execution and the employer’s filing of a Form B-31.
In Hancock v Mississippi Forestry Commission, 878 So. 2d 1058, 1059 (¶3) (Miss. Ct. App.
2004), an employer filed a completed Form B-31 in 1995 with the Commission, which the
injured employee had signed. In 2002, the employee attempted to obtain additional benefits
related to his original injury, filing a petition with the Commission. Id. at (¶5). The AJ
found the claim procedurally barred by the statute of limitations. Id. at (¶1). On appeal, we
affirmed:
This Court has held that in order to prevent a claim from becoming
time-barred, the injured worker may request and enforce payment of medical
benefits within the one year period. Barr v. Conoco Chems., Inc., 412 So. 2d
1193, 1196 (Miss. 1982). There is no evidence of Hancock’s attempting to
re-open his claim between November of 1995 and May of 2002 when he filed
a petition to controvert. . . . Whether or not Hancock knew the implications of
the B-31 form he signed, he is still bound by the statute of limitations it
creates.
Id. at 1060-61 (¶9) (emphasis added). When Cleveland signed the B-31 form in 2016,
acknowledging final payment, she was aware of outstanding bills. Yet, she made no attempt
to re-open her claim with the Commission until six months after the one-year statute of
limitations had run. As in Hancock, Cleveland was “still bound by the statute of limitations”
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created by the Form B-31 she had signed.
¶31. The majority also finds that the Employer/Carrier should be estopped from asserting
the statute-of-limitations defense due to its “inequitable behavior.” Cleveland did not raise
this issue on appeal, and I find no evidence of “inequitable behavior” in this instance to
warrant estoppel, nor any change in position by Cleveland in reliance on any alleged
representation by the Employer/Carrier. See Chance v. Chance, 191 So. 3d 1293, 1299 (¶21)
(Miss. Ct. App. 2016) (Equitable estoppel “requires proof of a (1) belief and reliance on
some representation; (2) change of position as a result of the representation; and (3)
detriment or prejudice caused by the change of position.”). Although the Employer/Carrier
did pay Cleveland medical benefits in April 2018 and indicate to the AJ that it was working
with the adjuster to process those payments, these actions cannot constitute estoppel as they
occurred after the statute of limitations had run. The Mississippi Supreme Court has held:
Once the claim has been barred by the passage of time, it will not be revived
and a new period will not be set in motion by the furnishing of an isolated bit
of medical service years after the injury. The objective of the statute being to
protect the claimant who reasonably refrains from making claim because of the
receipt of benefits voluntarily supplied, no claimant can allege that his failure
to make timely application was excused by something that happened after the
claim was already barred.
Turnage v. Lally’s Swimming Pool Co., 247 Miss. 713, 717, 159 So. 2d 84, 85 (1963).
¶32. Accordingly, I would affirm the Commission’s decision.
CARLTON AND J. WILSON, P.JJ., AND C. WILSON, J., JOIN THIS
OPINION.
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