        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                               NO. 2018-WC-01167-COA

BAPTIST MEMORIAL HOSPITAL-NORTH                                         APPELLANTS
MISSISSIPPI INC. AND BAPTIST MEMORIAL
HEALTH CARE CORPORATION

v.

DEPENDENTS OF ANGELA SLATE                                                  APPELLEE

DATE OF JUDGMENT:                         07/18/2018
TRIBUNAL FROM WHICH                       MISSISSIPPI WORKERS’ COMPENSATION
APPEALED:                                 COMMISSION
ATTORNEY FOR APPELLANTS:                  MARJORIE T. MATLOCK
ATTORNEYS FOR APPELLEE:                   J. KEITH PEARSON
                                          SARAH LYNN DICKEY
NATURE OF THE CASE:                       CIVIL - WORKERS’ COMPENSATION
DISPOSITION:                              AFFIRMED - 10/01/2019
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE J. WILSON, P.J., McDONALD AND McCARTY, JJ.

       McCARTY, J., FOR THE COURT:

¶1.    After an employee was found dead at work, her family sought workers’ compensation

benefits. Her employer sought to rebut the presumption that her death was compensable.

The Mississippi Workers’ Compensation Commission determined that the employer had not

met its burden and awarded death benefits to the decedent’s family. We affirm because these

findings were supported by substantial evidence.

                       FACTS AND PROCEDURAL HISTORY

¶2.    At the time of her death in 2016, Angela Slate was a material-management technician

at Baptist Memorial Hospital. She had worked at Baptist since 2006. Her morning job duties
consisted of filling requisitions and delivering supplies to the various hospital departments.

Her afternoon duties consisted of processing patient charges and handling paper work. Her

job required lifting and some pushing and pulling of supplies. Her boss, Gayle Watts,

testified that Slate was not required to lift anything over thirty pounds. However, on cross-

examination, Watts admitted that Slate’s job description was described as “medium” or “high

energy level,” meaning that Slate was required to lift and carry up to fifty pounds up to thirty-

five percent of the day and push or pull between 150-200 pounds for sixty-seven to one-

hundred percent of the day. Watts stated that Slate had been angry after being denied a

promotion several months before her death. Because Watts did not see Slate that day, she

could not testify as to Slate’s work activities.

¶3.    Eddie Slate, Slate’s husband, testified that he had been married to Slate for over

twenty-six years and they had four children. Eddie said his wife had been stressed at work

due to increased turnover, which resulted in Slate training the new employees. After Slate

was denied the promotion, Eddie stated that she became moody and tired and began to look

for another job within the department.

¶4.    Another co-worker, Nicholas Griffin, saw Slate return to her office after lunch on the

day that she died. Griffin stated that he walked past Slate’s office possibly two times and

glimpsed Slate at her desk. In his testimony, he agreed that it was fair to say he probably saw

his co-worker for only around a total of six seconds in that patch of time. Around 2:30 p.m.,

Griffin walked past Slate’s office again and thought she was sleeping. He and another

employee approached Slate but noticed that she was dead. Emergency personnel attempted



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to revive Slate without success. The death certificate listed Slate’s cause of death as acute

myocardial infarction. The parties agree that no autopsy was conducted.

¶5.    Neither Watts nor Griffin had any knowledge of what Slate was doing between 1:30

p.m. and 2:30 p.m. on the day of her death. Watts could not remember seeing Slate at all that

particular day, and Griffin only saw Slate when he walked past her office. There was no

direct evidence as to what had actually happened on the day in question.

¶6.    Dr. James Stone, a clinical cardiac electrophysiologist, was retained as an expert by

Baptist to testify about Slate’s death. In his deposition, Dr. Stone conceded outright that he

could not state with a reasonable degree of medical certainty the exact cause of Slate’s death

because no autopsy was conducted.1 However, he believed that Slate’s sudden death could

only be attributed to a limited number of causes. Dr. Stone stated that the number one cause

of sudden death is heart attack. Other potential causes included primary cardiac arrhythmia,

genetic abnormalities, congenital abnormalities, pulmonary embolism, or stroke. Dr. Stone

testified that “you cannot pinpoint one exact cause because there’s no autopsy done. But

there are a finite number of medical causes for an event like this. And so if you look at the

finite number of causes, you would have to say that one of these was almost certainly the

cause of death.” Dr. Stone further stated that Slate “had no warning signs, no decrease in her

ability to do her activity level, . . . nothing in her job description could have led to her heart

attack.”

¶7.    On cross-examination, Dr. Stone admitted that he did not know what Slate was doing

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        Dr. Stone indicated that he reviewed Slate’s medical records, but no medical
records were submitted to the Commission at any point in the process.

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prior to her death. He also agreed that he could not rule out the possibility that Slate “could

have fallen and struck her head.” Likewise, when asked if “she could have been carrying a

100-pound box around for a while and that precipitate her getting short of breath,” the doctor

admitted “I have no idea what she was doing in that period of time.”

¶8.    The Administrative Judge found that Baptist failed to carry its burden of rebutting the

found-dead presumption, and in turn awarded Slate’s family death benefits. The Commission

affirmed that decision. Baptist seeks reversal from this Court on two points; arguing that

it did rebut the found-dead presumption, or in the alternative, that the found-dead

presumption must be abandoned.

                                STANDARD OF REVIEW

¶9.    When the findings of the Commission are supported by substantial evidence, they are

binding on this Court. Mitchell Buick, Pontiac & Equip. Co. v. Cash, 592 So. 2d 978, 980

(Miss. 1991). “Under Mississippi law, the Workers’ Compensation Commission is the

ultimate finder of facts in compensation cases, and as such, its findings are subject to normal,

deferential standards upon review.” Natchez Equip. Co. Inc. v. Gibbs, 623 So. 2d 270, 273

(Miss. 1993). “We are bound even though the evidence would convince the [C]ourt

otherwise if it were instead the ultimate fact[-]finder. We will overturn [the] Commission’s

decision only when there is an error of law or an unsupportable finding of fact.” Montana’s

Sea Kettle Rest. v. Jones, 766 So. 2d 100, 102 (¶7) (Miss. Ct. App. 2000) (internal quotation

marks and citation omitted).       When the Commission adopts the AJ’s findings and

conclusions, we review the AJ’s findings and conclusions as those of the Commission.



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Moore’s Feed Store Inc. v. Hurd, 100 So. 3d 1011, 1017 (¶22) (Miss. Ct. App. 2012).

                                       DISCUSSION

       I.      Baptist failed to overcome the found-dead presumption.

¶10.   In its first issue, Baptist argues that it produced substantial credible evidence to

overcome the found-dead presumption. Before its codification by the Legislature, the

Mississippi Supreme Court described the “found-dead” presumption:

       The rule is firmly established in this state when an employee is found dead at
       a place where [her] duties require [her] to be or where [she] might properly be
       in the performance of [her] duties during work hours in the absence of
       evidence that [she] was not engaged in [her] employer’s business, there is a
       presumption that the accident arose out of and in the course of [her]
       employment.

Washington v. Greenville Mfg. & Mach. Works, 223 So. 2d 642, 645 (Miss. 1969). The law

now defines an injury for purposes of workers’ compensation: “An untoward event or events

shall not be presumed to have arisen out of and in the course of employment, except in the

case of an employee found dead in the course of employment.” Miss. Code Ann. § 71-3-3(b)

(Rev. 2011).

¶11.   To rebut the presumption, an employer or carrier must show two things: it must first

explain the cause of death of the employee, and further “the work activities of the decedent

must also be fully developed to show that such activities did not cause or contribute” to the

death. Nettles v. Gulf City Fisheries Inc., 629 So. 2d 554, 557 (Miss. 1993). In this fashion

a “carrier may well escape liability upon proof that the worker’s death was wholly unrelated

to his work activities.”    Id. This is the employer’s burden alone: “It is up to the

employer/carrier to rebut the presumption, and it is not the burden of the claimant to support


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the presumption.” Miss. Baptist Med. Ctr. v. Dependents of Mullett, 856 So. 2d 612, 617 (¶8)

(Miss. Ct. App. 2003). The burden is significant, since “[o]nly when there is adduced

substantial credible evidence inconsistent with the presumption does it evaporate.” Nettles,

629 So. 2d at 557. Credible evidence does not mean “guesswork, speculation[,] and

conjecture” about what happened. Rd. Maint. Supply Inc. v. Dependents of Maxwell, 493 So.

2d 318, 322 (Miss. 1986).

¶12.   Baptist argues it produced substantial, credible evidence about Slate’s work activities

leading up to the time of her death, as well as Dr. Stone’s opinion as to the cause of her

death, and the expert’s opinion that Slate’s work activities could not have caused or

contributed to her death. However, there was no autopsy performed in this case, which might

have explained the cause of death for purposes of the rebutting the presumption. The AJ

found that the testimony of Dr. Stone could not explain the death, finding that Dr. Stone’s

opinion that Slate’s job did not contribute to her death was “without any substantial basis.”

The retained expert admitted that he had never treated or even met the decedent. This is

exactly the type of “guesswork” which cannot overcome the burden in found-dead cases.

¶13.   Further, the AJ ruled that Dr. Stone “assumed there was nothing unusual concerning

[Slate’s] job duties or responsibilities and there was nothing about the day she died or during

the week that was out of the ordinary that caused her emotional stress or duress.” Dr. Stone’s

opinion was based upon the assumption that nothing unusual occurred the day of Slate’s

death. However, there was no direct evidence of what happened to Slate that day, as the

expert repeatedly admitted. Likewise, neither Watts nor Griffin had personal knowledge of



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her activities, and only Griffin saw her briefly that day for what he conceded was likely six

seconds. Both simply assumed Slate’s day was normal.

¶14.   In similar cases our courts have found that the presumption should continue to apply.

In one the decedent was found dead at his place of employment. Washington, 223 So. 2d at

643. Based upon the decedent’s history of hypertensive cardiovascular disease and testimony

about his work habits, a doctor concluded that the decedent suffered a heart attack that was

not related to his work activities. Id. at 644. As a result, the Commission denied the

decedent’s family death benefits. Id. at 643. Yet the Supreme Court reversed, finding that

the employer failed to rebut the found-dead presumption by substantial evidence. Id. at 647.

The Court noted that because there was no direct evidence of the decedent’s usual routine,

the doctor’s testimony was “patently conjectural and was not proper opinion testimony.” Id.

at 644. “The doctor had nothing upon which to base his testimony that the decedent’s job

did not in any way contribute to his death even assuming that he died of a heart attack.” Id.

¶15.   Relying heavily on Washington, the Supreme Court reversed the Commission again

in Johnston v. Hattiesburg Clinic, P.A., 423 So. 2d 114, 120 (Miss. 1982). Like Washington

and the present case, the doctor found no causal connection between the decedent’s death and

her employment. Id. at 116. Because there was no direct evidence of the decedent’s work

activities prior to her death, the Court concluded that the doctor’s testimony was based on

an assumption. Id. at 120. As such the Court found that the employer could not rebut the

found-dead presumption by substantial evidence. Id.

¶16.   This case is similar to both Washington and Johnston because Baptist failed to



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produce direct evidence of Slate’s work activities prior to her death. Baptist’s evidence was

based on assumptions. The Commission agreed with the AJ’s findings that Baptist failed to

rebut the found-dead presumption by substantial credible evidence. We find substantial

evidence in this record to support the Commission’s decision.

       II.    The found-dead presumption remains as statutory authority.

¶17.   In its other issue, Baptist argues we should cast aside the presumption of benefits

when an employee is found dead at work in light of a 2012 amendment to the Workers’

Compensation Act. Yet the adoption of Mississippi Code Annotated section 71-3-1(1)

regarding presumptions in the Act did not eliminate, alter, or address the found-dead

presumption in the definitions component of the law. Rather, the found-dead presumption

remains codified within the definition of what constitutes an injury: “An untoward event or

events shall not be presumed to have arisen out of and in the course of employment, except

in the case of an employee found dead in the course of employment.” § 71-3-3(3)(b).2

¶18.   “The most fundamental rule of statutory construction is the plain meaning rule, which

provides that if a statute is not ambiguous, then this Court must apply the statute according

to its terms.” State ex rel. Hood v. Madison Cty. ex rel. Madison Cty. Bd. of Sup’rs, 873 So.

       2
          In fact, when given the choice, our Legislature opted to retain the found-dead
presumption rather than eliminate it. Prior versions of the 2012 bill that ultimately revised
section 71-3-1(1) had eliminated the statutory found-dead presumption in section 71-3-3.
But based on input from other members, the Conference Committee omitted the proposed
change to section 71-3-3. The legislative history of Senate Bill 2576 (2012) and the
presentation of the conference report are available at the following links:
(1) http://billstatus.ls.state.ms.us/2012/pdf/history/SB/SB2576.xml (last visited Sept. 18,
2019);
(2) http://law.mc.edu/legislature/bill_details.php?id=863&session=2012 (last visited Sept.
18, 2019).

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2d 85, 90 (¶19) (Miss. 2004). The presumption remains as codified by the Legislature and

will apply. Indeed, the presumption harmonizes with the 2012 amendment cited by Baptist,

since it prohibits the presumption that any “untoward event” in the workplace is

automatically compensable, unless the untoward event is the extremely rare situation where

“an employee [is] found dead in the course of employment.” § 71-3-3(3)(b).

¶19.   As the Supreme Court has held in context of the public records law, courts “cannot

ignore the applicability of the plain and unambiguous language” of the Legislature. Miss.

State Univ. v. People for the Ethical Treatment of Animals Inc., 992 So. 2d 595, 610 (¶26)

(Miss. 2008). Ultimately, our lawmakers have seen fit to declare a presumption in favor of

employees found dead in the course of their employment; “the wisdom or folly of the

pertinent legislation is strictly within the constitutional power of the Legislature,” and “[a]ny

disagreements with those directives are best aimed toward the Legislature.” Id. There is,

therefore, no conflict between the statutes, and the presumption will be applied as written.

                                       CONCLUSION

¶20.   There was substantial credible evidence to find that Angela Slate died in the course

of her employment at Baptist, and the employer failed to rebut this presumption. Since the

presumption remains codified by the Legislature it will be applied as written.

¶21.   AFFIRMED.

     BARNES, C.J., CARLTON AND J. WILSON, P.JJ., WESTBROOKS,
TINDELL, McDONALD AND LAWRENCE, JJ., CONCUR. GREENLEE AND
C. WILSON, JJ., NOT PARTICIPATING.




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