                     IN THE SUPREME COURT OF MISSISSIPPI

                                NO. 1999-CT-01857-SCT

LIBERTY MUTUAL INSURANCE COMPANY

v.

JAMES McKNEELY

                              ON WRIT OF CERTIORARI

DATE OF JUDGMENT:                         8/31/1999
TRIAL JUDGE:                              HON. FRANK G. VOLLOR
COURT FROM WHICH APPEALED:                WARREN COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                   LAWRENCE D. WADE
ATTORNEY FOR APPELLEE:                    PAUL KELLY LOYACONO
NATURE OF THE CASE:                       CIVIL - INSURANCE
DISPOSITION:                              REVERSED AND RENDERED - 11/20/2003
MOTION FOR REHEARING FILED:
MANDATE ISSUED:



       EN BANC.

       PITTMAN, CHIEF JUSTICE, FOR THE COURT:


¶1.    James McKneely injured his back while working in Warren County in March of 1994.

Anderson Tully, his employer, and Liberty Mutual Insurance Company, its workers’

compensation insurer, paid temporary total disability benefits for approximately six months.

After receiving a report from McKneely's treating physician who stated that McKneely had

reached maximum medical recovery and that in the doctor's opinion, the conditions McKneely

was still suffering from were not causally related to his workplace injury, Liberty Mutual
terminated the workers’ compensation benefits. McKneely eventually prevailed in his workers

compensation claim and was awarded temporary total disability benefits through 1998.

¶2.      McKneely filed a bad faith lawsuit against Liberty Mutual in 1996. He alleged that

there was no arguable basis for Liberty Mutual's decision to terminate benefits and to continue

to deny payment until ordered to do so by the Mississippi Workers’ Compensation

Commission. The case was tried without a jury by the Warren County Circuit Court. The trial

court found for McKneely and awarded $150,000 in actual damages and $200,000 in punitive

damages.

¶3.      Liberty Mutual's appeal was assigned to the Court of Appeals which affirmed by a vote

of 7-3. Liberty Mut. Ins. Co. v. McKneely, No. 1999-CA-01857-COA (Miss. Ct. App. Apr.

17, 2001). Liberty Mutual filed a petition for writ of certiorari which was granted by this

Court.

                     FACTUAL AND PROCEDURAL BACKGROUND

¶4.      In May of 1994, James McKneely hurt his back while lifting and moving stacks of

lumber at an Anderson Tully facility in Warren County. Except for a short period when he

attempted to return to work, McKneely was temporarily and totally disabled from May until

December of 1994. On December 20, 1994, Liberty Mutual and Anderson Tully determined

that workers’ compensation benefits were no longer due, and workers’ compensation payments

to McKneely were terminated the following month. The employer and the insurer based that

decision primarily on the report of Dr. Wallace Weatherly, an orthopedic surgeon and

McKneely's primary physician. Dr. Weatherly had treated McKneely for several months and

had ordered extensive tests including x-rays and an MRI which showed no musculoskeletal

                                               2
injury. In November of 1994, Dr. Weatherly sent a report to the insurer in which he stated in

relevant part:

       Mr. McKneely's current diagnosis, as far as I am concerned, is neck pain of
       unknown etiology. Mr. McKneely has been labeled with the diagnosis of
       fibromyalgia by Dr. Hensarling.

       Mr. McKneely is to follow up with Dr. Hensarling, as I have referred him to Dr.
       Hensarling.

       I do not feel that Mr. McKneely's current problem is related to his injury
       which was sustained after pulling heavy lumber. I, in no way, see a
       relationship between fibromyalgia and pulling of lumber.

       Mr. McKneely will be treated by Dr. Hensarling but I suspect he will need some
       sort of work hardening program. He will need some psychiatric counseling to
       see if there is something going on that might be psychosomatic, as I cannot find
       anything organic wrong with him at this time.

       As far as I am concerned, Mr. McKneely has reached maximum medical
       improved [sic] as far as any obvious organic musculoskeletal problem, but
       the inorganic problems may exist. Dr. Hensarling is to complete that workup
       so I will leave this statement for him to answer.

(emphasis added).

¶5.    The insurer attempted to follow up with Dr. James Hensarling. A nurse investigator

working for the insurer requested a status report from Dr. Hensarling. He instructed her to

review his correspondence with Dr. Weatherly. In a letter to Dr. Weatherly dated October 24,

1994, Dr. Hensarling had stated that "I feel this patient has a florid case of fibromyalgia."

Significantly, Dr. Hensarling's letter to Dr. Weatherly does not relate McKneely's condition

to any workplace injury. Fibromyalgia is a musculoskeletal syndrome that causes pain in the

connective tissues, muscles, joints, and ligaments, as well as an assortment of other symptoms

such as sleep disorders, fatigue, and depression.



                                              3
¶6.    The insurer terminated McKneely's payments in January of 1995. It based the decision

primarily on Dr. Weatherly's letter which it received in December.             Eventually, the

Administrative Judge and the Workers’ Compensation Commission awarded temporary total

benefits to McKneely. McKneely then filed a bad faith lawsuit against both Liberty Mutual and

Anderson Tully. A bench trial was held in Warren County Circuit Court. Judge Vollor awarded

McKneely $150,0000 in actual damages and $200,000 in punitive damages. The Mississippi

Court of Appeals affirmed that decision, and the case is now before this Court on Liberty

Mutual's petition for writ of certiorari.

                                            ANALYSIS

¶7.    Liberty Mutual asserts that the decision of the Court of Appeals is contrary to prior

decisions of this Court which deal with bad faith failure to pay insurance claims and that the

Court of Appeals decision misstates the evidence in several respects. Liberty Mutual claims

that the judge, as the trier of fact, erred in finding that it acted in bad faith in terminating

McKneely's temporary disability payments. It maintains that the trial judge should have ruled

for Tully and Liberty Mutual. It argues that the decision to terminate payments was supported

by the available medical evidence and based on the advice of its attorney.

¶8.    On appeal, the factual findings of a circuit judge sitting without a jury are treated like

a chancellor's findings and are given deferential review. Those findings are safe on appeal if

they are supported by substantial, credible, and reasonable evidence. Maldonado v. Kelly, 768

So.2d 906, 908 (Miss. 2000); City of Jackson v. Perry, 764 So.2d 373, 376 (Miss. 2000);

Puckett v. Stuckey, 633 So.2d 978, 982 (Miss. 1993). Those findings of fact will not be set

aside on appeal unless manifestly wrong. Cotton v. McConnell, 435 So.2d 683, 685 (Miss.

                                               4
1983). In reviewing a trial judge's decision not to direct a verdict for the appellant, this Court

considers the evidence produced at trial in the light most favorable to the appellee, giving the

appellee the benefit of all favorable inferences that may be reasonably drawn from the

evidence. Miss. Power & Light Co. v. Cook, 832 So.2d 474, 478 (Miss. 2002); General

Motors Acceptance Corp. v. Baymon, 732 So.2d 262, 268 (Miss. 1999).

¶9.    Liberty Mutual claims that the trial judge erred in finding that the insurer had no

arguable basis for terminating benefits. In order to prevail in a bad faith claim against an

insurer, the plaintiff must show that the insurer lacked an arguable or legitimate basis for

denying the claim, or that the insurer committed a wilful or malicious wrong, or acted with

gross and reckless disregard for the insured's rights. State Farm Mut. Auto. Ins. Co. v.

Grimes, 722 So.2d 637, 641 (Miss. 1998) (citing Life & Cas. Ins. Co. of Tennessee v.

Bristow, 529 So.2d 620, 622 (Miss. 1988)); Sessoms v. Allstate Ins. Co., 634 So.2d 516, 519

(Miss. 1994); Mut. Life Ins. Co. v. Estate of Wesson, 517 So.2d 521, 527 (Miss. 1987). The

fact that an insurer's decision to deny benefits may ultimately turn out to be incorrect does not

in and of itself warrant an award of punitive damages if the decision was reached in good faith.

Grimes, 722 So.2d at 641. Where an insurance carrier denies or delays payment of a valid

claim, punitive damages will not lie if the carrier has a reasonable cause for such denial or

delay. Estate of Wesson, 517 So.2d at 528.

¶10.   In arguing that it had an arguable basis for stopping workers’ compensation payments,

Liberty Mutual relies primarily on the diagnosis of Dr. Weatherly, an orthopedist who was

McKneely's primary treating physician. Dr. Weatherly had treated McKneely since the injury



                                                5
in March of 1994.       McKneely had undergone extensive tests which revealed no

musculoskeletal injury, and he had been seen by a neurologist who found no neurological

problem. Dr. Weatherly stated by letter dated November 20, 1994, that McKneely had reached

maximum medical improvement and that "I [Dr. Weatherly] do not feel that Mr. McKneely's

current problem is related to his injury which was sustained after pulling heavy lumber. I, in

no way, see a relationship between fibromyalgia and pulling of lumber."

¶11.   McKneely argued that the letter was ambiguous in that Dr. Weatherly also stated that

McKneely had been diagnosed with fibromyalgia and that he was still being treated by Dr.

Hensarling for that condition. Dr. Weatherly's letter also notes that McKneely might still be

suffering from psychosomatic or inorganic problems although the doctor does not relate those

possible conditions to the workplace injury.

¶12.   McKneely alleged and the trial judge eventually found that Liberty Mutual did not have

an arguable basis for denying his claim. McKneely's primary contention was that the insurer

did not properly investigate the case. When faced with a claim, an insurer is required to

perform a prompt and adequate investigation of the circumstances surrounding the claim.

Bankers Life & Cas. Co. v. Crenshaw, 483 So.2d 254, 276 (Miss. 1985), aff’d on other

grounds, 486 U.S. 71, 108 S.Ct. 1645, 100 L.Ed. 2d 62 (1988). However, the plaintiff's

burden in proving a claim for bad faith refusal goes beyond proving mere negligence in

performing the investigation. The level of negligence in conducting the investigation must be

such that a proper investigation by the insurer "would easily adduce evidence showing its

defenses to be without merit." Murphree v. Federal Ins. Co., 707 So.2d 523, 531 (Miss.

1997) (quoting Szumigala v. Nationwide Mut. Ins. Co., 853 F.2d 274, 280 (5th Cir. 1988)).

                                               6
¶13.   The Court of Appeals found that "McKneely established that 'promptly' and 'adequately'

are two words which were totally ignored by Liberty Mutual." Liberty Mut. Ins. Co. v.

McKneely, ¶ 16. The trial court and the Court of Appeals found that Liberty Mutual's failure

to make further inquiry with Dr. Hensarling or another independent medical expert to establish

that the fibromyalgia was not work related amounted to bad faith.

¶14.   Liberty Mutual maintains that it did in fact adequately investigate this claim and that

there was a sufficient arguable basis for denying continued benefits. We agree. Liberty Mutual

did investigate this claim. It hired Jackie Moore, a registered nurse and rehabilitation

consultant, to investigate the claim and to compile the medical records. In October of 1994,

Moore wrote Dr. Weatherly and Dr. Hensarling and asked each doctor to state in writing

McKneely's current diagnosis and whether McKneely's current problems related to his

workplace injury. Dr. Weatherly responded with the November 30, 1994, letter discussed

above in which he stated that he saw no relationship between fibromyalgia and the workplace

injury and that McKneely had reached maximum medical improvement. Dr. Hensarling did not

directly respond to Moore's inquiry but only referred her to his previous correspondence to

Dr. Weatherly dated October 24, 1994, in which he stated that his diagnosis was that

McKneely had a "florid case of fibromyalgia." Notably, in that letter Dr. Hensarling does not

relate the fibromyalgia to the admitted workplace injury.

¶15.   McKneely argues that it was incumbent upon Liberty Mutual to seek a more definitive

diagnosis from Dr. Hensarling about whether the fibromyalgia was work-related. McKneely

maintains that it would be unfair to require him to hire an expert to investigate the claim. In

essence, the trial court and the Court of Appeals have placed the burden on the employer and

                                              7
the carrier to disprove any possibility that the claimant continued to suffer from a workplace

disability. The insurer's only obligation is to perform a prompt and adequate investigation of

the claim and to deal with the claimant in good faith. The claimant carries the burden of

proving the compensability of his injury by a preponderance of the evidence. Moeller v. Am.

Guar. & Liab. Ins. Co., 707 So.2d 1062, 1073 (Miss. 1996); Lanterman v. Roadway Exp.,

Inc., 608 So.2d 1340, 1347 (Miss. 1992). Furthermore, in psychological injury cases

(McKneely apparently thinks Liberty Mutual should have inferred the possibility of a

psychological problem from Dr. Weatherly's comment's about psychosomatic injuries), the

claimant's burden is higher. The claimant in those situations must produce credible evidence

proving the claim by clear and convincing evidence. Fought v. Stuart C. Irby Co., 523 So.2d

314, 317 (Miss. 1988). McKneely relies on Dr. Weatherly's statement that there could be

inorganic or psychosomatic problems which Dr. Weatherly felt he was unable to address. It

was McKneely's obligation to show the existence of any psychosomatic injuries and that the

injury, whether psychological or not, was caused by his workplace accident. We note that it

would not have been unduly burdensome for McKneely to ask Dr. Hensarling, his own

physician, to provide a clear statement to the insurer indicating the doctor's opinion that the

fibromyalgia was related to the workplace injury. McKneely made no effort to do that. The

result was that the only doctor who had analyzed the relationship between the fibromyalgia and

the back injury found that there was no causation.

¶16.   The defendants are not required to disprove all possible allegations made by a claimant.

They are simply required to perform a prompt and adequate investigation and make a

reasonable, good faith decision based on that investigation. We find that, under the

                                              8
circumstances here, Liberty Mutual's investigation was adequate and that there was an arguable

basis for discontinuing benefits.

¶17.   Additionally, Liberty Mutual argued at trial that the causation of fibromyalgia was

disputed by medical experts and that at that time there were no known cases in which the

Mississippi Workers’ Compensation Commission had ordered compensation in a fibromyalgia

case. Medical studies apparently still have not shown that fibromyalgia is caused by trauma

such as the injury suffered by McKneely. See Gene Stephens Connolly, Hidden Illness,

Chronic Pain: the Problems of Treatment and Recognition of Fibromyalgia in the Medical

Community, 5 DePaul J. Health Care L. 111 (Summer 2002). Liberty Mutual questioned

whether it was medically possible for the back injury to have caused McKneely's fibromyalgia.

In Black v. Food Lion, Inc., 171 F.3d 308 (5th Cir. 1999), the Fifth Circuit discussed several

scientific studies which had found that there was insufficient evidence that trauma causes

fibromyalgia. That court held that "neither [the plaintiff's doctor] nor medical science knows

the exact process that results in fibromyalgia or the factors that trigger the process. Absent

these critical scientific predicates, for which there is no proof in the record, no scientifically

reliable conclusion on causation can be drawn." Id. at 314. The absence of any consensus

among the medical authorities, at least at the time of the denial of the claim, that fibromyalgia

could be caused by a traumatic event weighs against a finding of bad faith. We note that the

question before the Court is not whether McKneely's fibromyalgia was caused by his injury.

That question was decided by the Commission and was not appealed. The question is whether

Liberty Mutual had a good faith arguable basis for denying McKneely's claim for benefits. We




                                                9
find that the medical questions surrounding the causation of fibromyalgia provided another

arguable basis for the denial of further payment of this claim.

¶18.   Finally, Liberty Mutual argued below that its reliance on the advice of its attorneys

negated any possible finding of bad faith. During the workers’ compensation proceedings,

Liberty Mutual's lawyers reviewed the correspondence from Dr. Weatherly and determined that

continued benefits were not warranted. The attorney also claimed that he knew of no other

cases in which the Mississippi Workers’ Compensation Commission had awarded

compensation in a fibromyalgia case. Liberty Mutual claims that it was entitled to rely in good

faith on the attorney's advice. Generally, a client's reliance upon advice of his attorney

prevents a finding of bad faith and the imposition of punitive damages. Murphree, 707 So.2d

at 533 (citing Henderson v. United States Fid. & Guar. Co., 695 F.2d 109, 113 (5th Cir.

1983)). As the attorney's advice was apparently almost entirely based on Dr. Weatherly's letter

as outlined above, the analysis is similar to the analysis above. We find that Liberty Mutual

was entitled to rely on the attorney's reasonable interpretation of Dr. Weatherly's statement

that McKneely's fibromyalgia was not related to his workplace injury.

¶19.   Liberty Mutual also maintains that McKneely's action for bad faith refusal to pay

insurance benefits should fail because he had an adequate remedy under Miss. Code Ann. § 71-

3-17(b) (Rev. 2000) and that McKneely should have been required to exhaust that procedure.

That section provides:

       if there arises a conflict in medical opinions of whether or not the claimant has
       reached maximum medical recovery and the claimant's benefits have terminated
       by the carrier, then the claimant may demand an immediate hearing before the
       commissioner upon five (5) days' notice to the carrier for a determination by the



                                              10
       commission of whether or not in fact the claimant has reached maximum
       recovery.

At trial, McKneely claimed damages resulting from emotional and mental distress. He

claimed that after his benefits were terminated, he was financially unable to care for himself

and his children and that he was humiliated in having to receive monetary assistance from

friends and family. The employer and carrier argued on appeal that McKneely could have

pursued immediate continuation of his temporary disability benefits but chose not to.

McKneely's attorney in fact filed a petition under the statute for continued benefits after

termination in January of 1995. The hearing was set for February 13, 1995, but apparently was

continued at the request of counsel for the claimant who had another engagement that day. It

was never rescheduled.

¶20.   The dissent to the Court of Appeals opinion in this matter would have found that:

       The trial court based its award of substantial damages on a finding that
       McKneely 'was financially destitute, living on charity and welfare from
       termination on December 20, 1994, until benefits were reinstated on April 9,
       1997.' Remarkably absent from the court's findings was any discussion of the
       fact that, during that entire period, McKneely had a completely adequate
       remedy--which he commenced in early 1995 then inexplicably abandoned--to
       seek to have his temporary total disability payments reinstated, the only
       prerequisite being that he have sufficient proof to persuade the Commission of
       his entitlement to the benefits. That failure to pursue such a readily- available
       remedy for a perceived wrong is inexcusable and a sufficient basis, standing
       alone, to deny this bad faith claim.

Liberty Mut. Ins. Co. v. McKneely, ¶ 41 (McMillin, C.J., dissenting).

¶21.   Workers’ compensation is the employee's exclusive remedy under Miss. Code Ann.

§ 71-3-9 (Rev. 2000). However, there is an exception to exclusivity for situations in which

the employer or the employer's insurer fail to pay benefits in bad faith. Miss. Power & Light



                                              11
Co. v. Cook, 832 So.2d at 479. We have never held that a claimant must exercise his rights

under the emergency hearing provision under Section 71-3-17(b). Here, McKneely was

eventually awarded benefits by the Commission. We find that the failure to seek emergency

benefits weighs on McKneely's claims for emotional and mental distress damages. McKneely

could have sought to mitigate his financial problems by seeking an immediate hearing.

However, we find that the failure to pursue an immediate remedy under the statute does not bar

a subsequent bad faith claim. McKneely had exhausted his workers’ compensation procedure

when he received a favorable decision from the Commission which the insurer and the

employer chose not to appeal.

                                       CONCLUSION

¶22.   Because the findings of the Warren County Circuit Court are clearly erroneous, we

reverse the judgments of both it and the Court of Appeals and render judgment in favor of

Liberty Mutual Insurance Company. In employing an investigative nurse who compiled

McKneely's medical records and sought a definitive diagnosis from his treating physicians,

Liberty Mutual and Anderson Tully performed an adequate investigation of McKneely's claim

for benefits. The investigation revealed that the employer and its insurer had a good faith basis

for discontinuing McKneely's benefits. Prior to the termination of benefits, McKneely's

treating physician had stated his opinion that McKneely's fibromyalgia was not related to the

workplace injury. While the claimant continued to suffer from possible psychosomatic or

organic problems, nothing in the medical records at the time of termination of benefits related

those conditions to the workplace injury. Liberty Mutual was entitled to rely on Dr.

Weatherly's report in deciding to terminate the claimant's benefits.

                                               12
¶23.   REVERSED AND RENDERED.

     SMITH, P.J., WALLER, COBB AND CARLSON, JJ., CONCUR. EASLEY AND
GRAVES, JJ., DISSENT WITHOUT SEPARATE WRITTEN OPINION. McRAE, P.J.,
DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY EASLEY, J. DIAZ, J.,
NOT PARTICIPATING.


       McRAE, PRESIDING JUSTICE, DISSENTING:

¶24.   The majority erroneously finds that the claims against Liberty Mutual for bad faith

denial of workers' compensation benefits are without merit and must fail because that finding

is not supported by the law or evidence. The majority "skirts around" the fact that on appeal the

findings of a circuit court judge, sitting without a jury, will not be overturned unless manifestly

wrong and not supported by substantial, credible evidence. Maldonado v. Kelly, 768 So.2d

906, 908 (Miss. 2000); Cotton v. McConnell, 435 So.2d 683, 685 (Miss. 1983). The circuit

court's findings are not manifestly wrong and are supported by substantial, credible evidence.

The judgment of the Court of Appeals should be affirmed as it accurately states the law and

facts which support a finding that indeed Liberty Mutual did deny workers' compensation

benefits to McKneely in bad faith. For these reasons, I dissent.

¶25.   The majority opines that a bad faith action against a workers' compensation insurer may

not lie unless the claimant proves that the injuries for which he was denied benefits were in

fact work-related injuries.    That determination has already been made in the affirmative,

despite the majority’s attempt to justify the uncertainty that fibromyalgia is caused by a

physical muscle injury. The Workers' Compensation Commission has already determined that

such benefits were owing to McKneely, and its findings were never appealed by Liberty

Mutual. However, the applicable law regarding bad faith actions is not premised on the proof

                                                13
and procedures required for the attainment of workers' compensation benefits, but rather upon

the duty of an "insurance company to promptly and adequately investigate all of the relevant

facts involved in an insured's claim" before denying the requested benefits. Szumigala v.

Nationwide Mut. Ins. Co., 853 F.2d 274, 280 (5th Cir. 1988). See also Bankers Life & Cas.

Co. v. Crenshaw, 483 So.3d 254, 276 (Miss. 1985), aff'd on other grounds, 486 U.S. 71, 108

S.Ct. 1645, 100 L.Ed.2d 62 (1988). As stated by the Court of Appeals, "[i]n order for

McKneely to meet his burden of proving a bad faith claim he must show that the level of

negligence was such that if a proper investigation had been conducted, it would easily reveal

evidence that demonstrated that Liberty Mutual's defenses are without merit." Liberty Mut.

Ins. Co. v. McKneely, No. 1999-CA-01857-COA, ¶ 16 (Miss. Ct. App. Apr. 17, 2001) (citing

Murphree v. Federal Ins. Co., 707 So.2d 523, 531 (Miss. 1997). See also Bankers Life &

Cas., 483 So.3d at 276. The majority applies the wrong standard and simply finds that

McKneely must prove he was eligible for benefits. However, as already stated this was

answered in the affirmative by the Workers' Compensation Commission and never was

appealed by Liberty Mutual. Thus, such benefits were "improperly" denied. The standard

regarding "bad faith" denial of benefits does not address whether the denial was "proper," but

rather whether the insurance company conducted a "prompt" and "adequate" investigation before

denying benefits.

¶26.   Looking to the facts presented, not only was McKneely entitled to the benefits as

already adjudicated by the Workers' Compensation Commission, but Liberty Mutual failed to

conduct any investigation before denying him benefits. It denied benefits after simply looking

at the language of one physician's letter and not even the physician treating McKneely’s

                                             14
fibromyalgia. Liberty Mutual's entire defense centers around "excerpts" from the letter of Dr.

Weatherly to Liberty Mutual regarding the condition and treatment of McKneely. Dr.

Weatherly was not even McKneely's treating physician regarding the fibromyalgia.

Furthermore, Liberty Mutual fails to account for the full language of the letter which

immediately put Liberty Mutual on notice that further investigation was necessary. Liberty

Mutual merely suggests that "excerpts" contained in the letter support its denial of benefits and

that, therefore, no further investigation or inquiry was necessary.

¶27.   The portions of the letter which obviously put Liberty Mutual on notice that further

inquiry was needed include the following statements:

       Mr McKneely had been labeled with the diagnosis of fibromyalgia by Dr.
       Hensarling. Mr. McKneely is to follow up with Dr. Hensarling as I have
       referred him to Dr. Hensarling. . . . Mr. McKneely will be treated by Dr.
       Hensarling. . . . Dr. Hensarling is to complete the workup so I will leave this
       statement for him to answer.

These statements made by Dr. Weatherly were not considered by Liberty Mutual when making

its decision to terminate benefits. In fact, Liberty Mutual did not even contact Dr. Hensarling

to inquire as to what course of treatment he had prescribed McKneely or what exact diagnosis

he had determined. Liberty Mutual did not contact Dr. Hensarling at all. Clearly, the words

employed in Dr. Weatherly’s letter put Liberty Mutual on notice that further inquiry was

necessary. As found by the Court of Appeals, there can be little doubt that Liberty Mutual did

not investigate “promptly” or “adequately.” Liberty Mut. Ins. Co., ¶ 16.

¶28.   Both the majority and Liberty Mutual misconstrue the burden of proof required to prove

bad faith denial of payment of insurance benefits. Both suggest that Liberty Mutual was not

required to “investigate” to the extent of proving McKneely’s case for him. The problem with

                                               15
this analysis is that it ignores the applicable standard and burden for bad faith claims. The

standard for bad faith claims which requires “prompt and adequate” investigation does not

suggest that Liberty Mutual should prove McKneely’s workers' compensation case for him.

Instead, it requires Liberty Mutual to investigate before denying benefits. This case would be

an entirely different story if before denying benefits Liberty Mutual had contacted Dr.

Hensarling and made inquiry into his diagnosis, the factual and medical reasoning to support

such a diagnosis, and prescribed treatment.

¶29.   Also misleading is Liberty Mutual and the majority’s attempts to characterize the

fibromyalgia diagnosis as “conflicting” and “unsubstantiated” in the medical community.

Regardless of the medical community's views regarding whether fibromyalgia may be

associated with physical work-related injuries, at the time Liberty Mutual denied McKneely

benefits there was no “conflicting” medical testimony or evidence. Indeed, the only evidence

presented was from Dr. Weatherly’s report. Dr. Hensarling’s opinions and diagnosis were not

even requested for review. There was no conflicting evidence at all – only "excerpts" of Dr.

Weatherly’s report were relied upon by Liberty Mutual for its denial of benefits. The fact that

the medical community may disagree about whether fibromyalgia can be caused and related to

physical employment injuries is irrelevant. No such testimony was presented at the time of

Liberty Mutual’s denial of benefits or at trial. In fact, the only medical evidence presented at

trial, besides Dr. Weatherly's and Dr. Hensarling's opinions, was the opinion and diagnosis of

Dr. Meyers who concurred with Dr. Hensarling as to the fibromyalgia diagnosis and treatment.

Thus, the Fifth Circuit's review in Black v. Food Lion, Inc., 171 F.3d 308 (5th Cir. 1999), of

the medical community's split on the diagnosis of fibromyalgia from work-related injuries is

                                              16
not relevant here. That information was not before Liberty Mutual as evidence before its

denial of benefits and was not presented at trial. This Court cannot as an afterthought justify

Liberty Mutual's actions by "digging up" dicta concerning the medical community's conflicting

opinions about fibromyalgia.

¶30.   The circuit court judge, sitting without a jury, weighed the facts presented and applied

the correct law. His findings should not be overturned. Thus, I would affirm the Court of

Appeals' judgment affirming the circuit court’s judgment in favor of McKneely. For the above-

stated reasons, I dissent.

       EASLEY, J., JOINS THIS OPINION.




                                              17
