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Virginia S. Gautier, Wise Carter Child & Caraway, PA
All settlements of workers’ compensation claims in Mississippi must be submitted to the Mississippi Workers’ Compensation Commission for approval. Typically, if the claimant is represented by counsel and both the employer/carrier and the claimant mutually agreed to the terms of the settlement, the Commission will approve the settlement, absent unusual circumstances. However, in the recent case of Himeliz v. Hog Slat, Inc. and Ace American Ins. Co., 322 So. 3d 956 (Miss. Ct. App. 2021), the Commission refused to approve a settlement reached by the represented claimant with the employer/carrier on the grounds that the settlement amount was insufficient to adequately compensate the claimant for his future medical care and was not in the claimant’s best interest.
In Himeliz, the claimant, legally working in the United States on a work visa, “sustained a compensable injury that rendered him a quadriplegic during the course and scope of his employment.” The injuries resulted in Himeliz’s permanent and total disability, as well as the need for lifetime medical treatment. He was paid the maximum amount of disability benefits, via a lump sum, to which he was entitled under Mississippi law, but the medical claim remained open. Thereafter, through a mediation between the parties, Himeliz and his employer reached a structured settlement to close out his future medical. Through a joint petition, the parties sought approval of the settlement from the Mississippi Workers’ Compensation Commission as required by the procedural rules of the Commission. When submitted to the Commission, Commissioner Beth Aldridge reviewed the proposed settlement and would not approve it. The Commission expressed concerns that (1) the life care plan “provided only ‘the best case scenario for [Himeliz]’”; (2) Himeliz’s family would actually be available to provide care for him at all times for the remainder of his life; and (3) the life care plan did not provide for an interpreter for claimant’s life expectancy.
Following denial of the settlement, counsel for the claimant then sought a review by the full Commission (consisting of three Commissioners), but learned from the Commission’s staff attorney that neither Mississippi statute nor the Commission’s rules allowed for a request for review of a denied settlement by the full Commission. As a result, “[t]he parties filed a joint emergency petition for review of proposed settlement” which was denied since there were no procedures allowing for such review under Mississippi law. The claimant then filed an appeal with the Mississippi Court of Appeals on the grounds that he was not afforded a hearing before the full Commission upon the denial and that Commissioner Aldridge’s denial of the settlement was not based upon the substantial evidence, resulting in error.
Upon appeal, Himeliz argued that his settlement should have been approved as he was represented by counsel and determined competent by an independent doctor. In considering Himeliz’s arguments, the Mississippi Court of Appeals reviewed the rules of the Commission, as well as the statute governing workers’ compensation settlements, noting that
In every case of compromise settlement, the proposed settlement will be explored
and medical reports will be examined to determine if the amount of the proposed
settlement appears fair and reasonable. The Commission or Administrative Judge
shall not approve the settlement if it is:
a. not accurately reported,
b. not completely understood by the claimant, or
c. not in the best interest of the claimant.
The Commission or Administrative Judge will approve the settlement if:
a. the underlying facts, terms, and amount of the settlement are accurately
b. claimant understands the settlement's import and effect, and
c. the settlement is in claimant’s best interest.
See Rule 2.15 of the Rules of the Mississippi Workers’ Compensation Commission. The Court of Appeals noted that neither Rule 2.15 of the Commission’s rules nor Miss. Code Ann.§ 71-3-29 required a hearing for a settlement presented to the Commission when the claimant is represented. The Court further noted that Himeliz cited no legal authority for requiring a hearing to review a settlement. Finding that the “denial of the settlement was based on substantial evidence” and that the Court is required to give the Commission deference upon judicial review due to the Commission’s experience in administrative matters, the Court of Appeals upheld the Commission’s denial of approval of the settlement.
The Himilez case has made clear that even if both the represented claimant and the employer/carrier agree to the terms of the settlement of the workers’ compensation claim, the Mississippi Workers’ Compensation Commission may deny approval of the settlement if the settlement does not appear to be in the best interest of the injured worker. Of particular interest was the Court of Appeal’s statement that Himeliz set forth in his Petition to the Commission that the settlement was in his best interest, yet he did not list specific facts to support his assertion. This statement by the Court is instructive in that settlements presented in the future by the parties in cases with significant injuries such as those sustained by Himeliz, should include facts to support the claimant’s averment that the settlement is in his or her best interest. To help reduce the likelihood that a settlement will be denied by the Commission, the parties should further consider language barriers faced by the claimant and provide a realistic assessment of future medical costs, taking into account all facts known at the time of settlement.
The Mississippi Workers’ Compensation Commission has published Guidelines for the Prescription of Opiates, which were effective as of June 14, 2017. The Commission directed that all clinicians who prescribe opioids should follow the guidelines, but noted that failure to do so would not warrant denial of a service, except in limited instances identified in the guidelines. Among the contraindications to prescribing opioids beyond three months, the guidelines state that opioids should be discontinued if the medication has not reduced the injured worker’s subjective pain complaints by a minimum of 30 % or if he or she cannot function secondary to the medication’s side effects. The guidelines also instruct that clinicians should conduct random drug screens at least two times a year and note that monthly drug screens, which are not random, are not indicated.
The guidelines include recommendations to help clinicians detect injured workers who may be at risk for addiction and to ensure that injured workers are informed about the risks and benefits of opioids before beginning use. For example, the guidelines state that injured workers should undergo psychosocial evaluation, to include formal psychological testing, if they are placed on opioids for more than three months. The guidelines also instruct that, before beginning opioid therapy for chronic pain, clinicians should establish treatment goals with the injured worker, educate the injured worker about the potential risks and benefits of opioid therapy, and discuss how the opioid therapy will be discontinued when risks outweigh benefits.;
In addition, the guidelines make clear that treatment for addiction will be considered compensable where an opioid abuse disorder is directly related to the use of controlled substances that were prescribed for a workers’ compensation injury. The guidelines note that formal detoxification programs will not be required in all such cases, but would be appropriate where the injured workers would experience withdrawal symptoms.
About the Author
This article was written by Jennifer H. Scott, Esq. of Wise Carter Child & Caraway, P.A., a law firm with offices in Jackson, Hattiesburg, and Gulfport, Mississippi. Wise Carter offers legal solutions for a wide array of corporate, litigation, regulatory, administrative, and governmental matters, including representing employers, self-insured employers, and insurance carriers in workers’ compensation cases and related employment law and liability matters. Scott and her firm are members of The National Workers’ Compensation Defense Network (NWCDN). The NWCDN is a national and Canadian network of reputable law firms organized to provide employers and insurers access to the highest quality representation in workers’ compensation and related employer liability fields. If you have questions about this article or Mississippi workers’ compensation issues in general, please feel free to contact the author at email@example.com or (601) 944-7722.
The policy for settlement of cases involving child support liens is set forth in the Mississippi Workers' Compensation Notice dated June, 2012. The link for the notice is as follows: www.mwcc.state.ms.us/law-clms/Child%20Support%20Web%20Policy.pdf
If you have any questions about this article or about Mississippi's workers’ compensation system, please feel free to contact Virginia S. Gautier, Andrew D. Sweat or Jennifer H. Scott at Wise Carter Child & Caraway, PA. Information about the Wise Carter Child & Caraway PA law firm can be located at www.wisecarter.com.
Mississippi enacted legislation that became effective on July 1, 2012 that amended the Mississippi Workers' Compensation Act. A brief summary of some of the changes to the Act include the following. First, prior to the amendment to the statute, case law required the Mississippi Workers’ Compensation Act to be construed in a light most favorable to the claimant in situations where the Commission did not think the evidence clearly supported one side over the other. Miss. Code Ann. § 71-3-1 now requires the Workers’ Compensation Act to be impartially construed and applied according to the law and the evidence in the record. Second, the Legislature added language to Miss. Code Ann. §71-3-7(1),which assists the employer and carrier in the event the claimant files a Petition to Controvert and the employer had absolutely no knowledge of the injury. Where no benefits of any kind have been paid, the claimant is now required to attach medical records supporting his claim when filing a Petition to Controvert for a date of injury after July 1, 2012. If the Petition is filed near the end of the two year limitation period, the claimant will have an additional 60 days after filing the Petition to file supporting medical records with the Commission. Third, Miss. Code Ann. §71-3-7(2) contains a provision which assists the employer and carrier in seeking apportionment. Previously, apportionment was not available to the employer and carrier unless it could be shown that the pre-existing medical condition had rendered the claimant occupationally disabled in some form. The new statutory language states that the pre-existing condition does not have to be occupationally disabling for apportionment to apply. Additionally, pursuant to Miss. Code Ann. §71-3-15(1), if an employee has surgery for the injury at issue or treats with a physician for six months or longer, that physician is now deemed the employee’s choice of physician.
This article was written by Virginia S. Gautier, Esq. of the law firm of Wise Carter Child & Caraway PA. If you have any questions about this article or about Mississippi's workers’ compensation system, please feel free to contact the author firstname.lastname@example.org. Information about the Wise Carter Child & Caraway PA law firm can be located atwww.wisecarter.com .