           IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                                 NO. 2018-WC-00398-COA

ARTHUR MINOR                                                                   APPELLANT

v.

RGT MANAGEMENT INC. AND WAUSAU                                                 APPELLEES
UNDERWRITERS INSURANCE COMPANY

DATE OF JUDGMENT:                            03/07/2018
TRIBUNAL FROM WHICH                          MISSISSIPPI WORKERS’ COMPENSATION
APPEALED:                                    COMMISSION
ATTORNEYS FOR APPELLANT:                     ROGEN K. CHHABRA
                                             CAROLINE SCOTT HOMMELL
ATTORNEY FOR APPELLEES:                      GINGER MOORE ROBEY
NATURE OF THE CASE:                          CIVIL - WORKERS’ COMPENSATION
DISPOSITION:                                 REVERSED AND RENDERED - 11/20/2018
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE IRVING, P.J., CARLTON AND FAIR, JJ.

       CARLTON, J., FOR THE COURT:

¶1.    Arthur Minor, a claimant in a workers’ compensation action, appeals from an order

of the Mississippi Workers’ Compensation Commission imposing $500 in sanctions upon

his attorneys for delaying pursuit of his claim without reasonable grounds under Mississippi

Code Annotated section 71-3-59(2) (Rev. 2011).1 We reverse and render the Commission’s

$500 sanction against Minor’s attorneys.


       1
          Mississippi Code Annotated section 71-3-59 (Rev. 2011) provides, in relevant part,
that “[i]f the full commission determines that proceedings in respect to a claim have been
. . . delayed . . . without reasonable ground, the full commission . . . may levy a civil penalty
not to exceed Ten Thousand Dollars ($10,000.00) against such party, or attorney advising
or assisting such party, or both, payable to the commission.”
             STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶2.    Arthur Minor suffered compensable injuries during the course of his employment with

RGT Management Inc. as a shift manager/cook for Taco Bell. A workers’ compensation

claim on Minor’s behalf was filed against RGT (Employer) and Wausau Underwriters

Insurance Company (Carrier) by his first lawyer in March 2013. That lawyer’s motion to

withdraw from representation of Minor was granted by the Administrative Judge (AJ) on

September 3, 2015. The order provided, in relevant part, as follows:

       Claimant is allowed thirty (30) days from the date of this Order in which to
       obtain representation by another attorney or continue prosecution of this claim
       without legal representation. Failure to do so may result in the dismissal of
       this claim.

¶3.    The same AJ dismissed Minor’s workers’ compensation claim by order dated

November 2, 2015, based upon the AJ’s determination that Minor had failed to prosecute his

claim. The AJ found that her September 3, 2015 order had “granted Mr. Minor thirty (30)

days to obtain counsel or announce his intent to pursue this claim without legal

representation” and that Minor had failed to comply with that provision. The order further

provided that “[t]o request reinstatement of this claim, Claimant must timely file a motion

to reinstate with the Commission.”

¶4.    The AJ’s November 2, 2015 order was not appealed, and thus it became a final order

in twenty days, pursuant to Mississippi Code Annotated section 71-3-47 (Rev. 2011).2 Minor

engaged new counsel (his current counsel), and a motion to reinstate Minor’s claim was filed

       2
        Mississippi Code Annotated section 71-3-47 (Rev. 2011) provides that a decision
by a “duly designated representative of the commission [i.e., an AJ] . . . shall be final unless
within twenty (20) days a request or petition for review by the full commission is filed.”

                                               2
on his behalf on December 4, 2015.

¶5.    Over a year later, on February 15, 2017, the Commission issued a notice of hearing

on Minor’s motion, setting a hearing for March 20, 2017. The Employer/Carrier filed a

response to Minor’s motion to reinstate his claim on March 10, 2017, seeking dismissal of

Minor’s claim. The Employer/Carrier argued that the Commission no longer had jurisdiction

over Minor’s claim because no action had been taken on Minor’s motion to reinstate since

it was filed in December 2015.

¶6.    The AJ denied Minor’s motion to reinstate by an order dated April 27, 2017, finding

that under Mississippi Code Annotated section 71-3-53 (Rev. 2011)3 and the applicable case

law, the Commission no longer had jurisdiction to consider the motion because Minor had

done nothing after his motion to reinstate was filed on December 4, 2015.

¶7.    Minor appealed the AJ’s order, requesting review before the full Commission. He

argued that the filing of his motion to reinstate was sufficient to satisfy the one-year time

frame set forth in section 71-3-53 because the Commission’s procedural rules did not require

that the motion be set for oral argument. Minor asserted that because his motion could be

decided without a hearing, he was not required to do anything further once his motion to



       3
        Mississippi Code Annotated section 71-3-53 (Rev. 2011) provides, in relevant part,
as follows:

       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 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.

                                             3
reinstate was filed.

¶8.    Minor also filed a motion to introduce additional evidence. In that motion he sought

to introduce two exhibits: (A) an affidavit of Caroline Hommell, his counsel, detailing

efforts made to check on the status of the case and set a hearing; and (B) an email from a

Commission employee responding to the status inquiry. In proposed exhibit A (the Hommell

affidavit), Ms. Hommell attested that the motion to reinstate was filed on November 30,

2015;4 that on April 25, 2016, an employee in her law office contacted an employee at the

Commission, Ms. Shirley Williams, to check on the status of the case and to see if anything

needed to be done; that Ms. Williams responded the next day with an email stating: “This file

is closed! You must set your motion to reinstate filed in December” (this email is proposed

exhibit B); and that in August 2016 an employee in Ms. Hommell’s law office left a message

for the AJ’s assistant to obtain hearing dates, but her message was not returned.

¶9.    By an order dated October 24, 2017, the Commission reversed the AJ’s decision and

reinstated Minor’s claim, finding that the filing of Minor’s motion to reinstate satisfied the

time requirements of section 71-3-53.5 The Commission, however, also imposed a $500

sanction against Minor’s counsel based upon his counsel’s inaction following the filing of

the motion to reinstate. The Commission recognized that Minor’s counsel had addressed the


       4
           The motion to reinstate was actually stamped filed as of December 4, 2015.
       5
         The Commission also found that the AJ’s April 27, 2017 order contained a mistake
of fact because the AJ dismissed Minor’s claim based upon her determination that Minor did
not comply with her September 3, 2015 order allowing Minor’s original counsel to withdraw
when Minor did not notify the Commission of his intent to pursue his claim. The
Commission found that there was no such requirement in the AJ’s September 3, 2015 order,
so it reversed the AJ’s April 27, 2017 order for this additional reason.

                                              4
delay issue by filing a motion to introduce additional evidence, and the Commission granted

that motion. Nevertheless, the Commission found:

       [B]ased upon the Commission's review of the entire record in this claim, we
       find that Claimant’s current counsel filed the Motion to Reinstate, but their
       subsequent inaction delayed this claim without reasonable ground. Such delay
       warrants the imposition of a $500 sanction against current counsel for
       Claimant. Miss. Code Ann. § 71-3-59.

¶10.   Minor filed a Motion for Reconsideration or, Alternatively, to Sever Sanctions into

Separate Cause of Action on November 7, 2017, requesting that the Commission “reconsider

the sanctions altogether and set them aside, or . . . sever the sanctions issue into a separate

cause of action that can be appealed independently without prejudicing and even further

delaying Claimant’s right to move forward on the claim.”

¶11.   The Commission denied this motion on February 15, 2018, holding that “[h]aving

studied the record and the applicable law, the Commission finds no evidence warranting a

change in the Commission Order previously entered on October 24, 2017. Accordingly, the

Claimant’s Motion to Reconsider or Alternatively to Sever Sanctions into Separate Cause of

Action is denied.”

¶12.   The parties subsequently reached a compromise settlement agreement on Minor’s

workers’ compensation claim. The Commission approved the settlement by order dated

March 7, 2018. That order contained a paragraph preserving Minor and his counsel’s ability

to pursue an appeal with respect to the sanctions issue, as follows:

       The parties recognize that there is an outstanding order for sanctions against
       claimant’s counsel, and that such issue is currently pending before the
       Commission. The employer and carrier have no interest in the outcome of that
       issue and have no position or objection to claimant continuing to appeal, if so

                                              5
       desired. Claimant and his counsel through this settlement, do not waive any
       rights to continue pursuing the reconsideration and/or appeal of the sanctions.

¶13.   On March 8, 2018, Minor filed his notice of appeal “from the Full Commission

Order” and also filed a detailed “Statement of Issue[s] on Appeal” on March 15, 2018,

itemizing the reasons why the $500 sanction should not be imposed upon Minor’s counsel.6

¶14.   The sole issue Minor raises on appeal is “whether the $500 sanction awarded by the

Commission against [his] counsel pursuant to [section] 71-3-59(2) [was] appropriate even

though his counsel filed a timely motion to reinstate and had no obligation under the rules

to set the case for oral argument.” The Employer confirmed in its appellee’s brief that it




       6
         The $500 sanction at issue in this case was against Minor’s counsel. Minor,
however, is the only named appellant; his lawyers are not named. Although no jurisdictional
challenge has been made, we must address issues of jurisdiction on our own motion.
Hamilton v. Southwire Co., 191 So. 3d 1275, 1279 (¶15) (Miss. Ct. App. 2016). Under
applicable precedent, the failure to include Minor’s lawyers as appellants does not bar us
from addressing this appeal on the merits. See Johnson v. Boydston, 605 So. 2d 727, 731
(Miss. 1992), as supplemented on denial of reh’g (Sept. 10, 1992) (The Mississippi Supreme
Court found that a notice of appeal failing to list a consortium plaintiff as an appellant was
sufficient to preserve the appeal on his behalf where there was no surprise or prejudice to
the appellee.); Vicksburg Ref. Inc. v. Energy Res. Ltd. 1977-A, 512 So. 2d 901, 902 (Miss.
1987) (Vicksburg Refining appealed from an order of the trial court imposing sanctions
upon its attorney for abuse of court processes; the Mississippi Supreme Court addressed the
appeal on the merits although Vicksburg Refining’s counsel was not an appellant.).

        We also find that Minor’s appeal from the October 24, 2017 full-Commission order
is timely. The filing of Minor’s motion to reconsider or, alternatively, to sever the sanctions
issue on November 7, 2017, tolled the thirty-day time period for appealing a full-
Commission order under Mississippi Code Annotated section 71-3-51 (Rev. 2011). See Day
Detectives Inc. v. Savell, 291 So. 2d 716, 720-21 (Miss. 1974). The Commission denied
Minor’s motion to reconsider on February 15, 2018, and Minor filed his notice of appeal
within thirty days, on March 8, 2018.

                                              6
takes no position as to whether the sanction is appropriate.7

                                        DISCUSSION

       I.      Standard of Review

¶15.   “In workers’ compensation cases, this Court’s review is limited to determining

whether the Commission’s decision was supported by substantial evidence, was arbitrary and

capricious, was beyond the scope or power of the agency to make, or violated a party’s

constitutional or statutory rights.” Wright v. Turan-Foley Motors Inc., No.

2016-WC-01264-COA, 2018 WL 506696, at *5 (¶26) (Miss. Ct. App. Jan. 23, 2018).

“Substantial evidence, though not easily defined, means something more than a mere scintilla

of evidence, and that it does not rise to the level of a preponderance of the evidence. It may

be said that it means such relevant evidence as reasonable minds might accept as adequate

to support a conclusion.” Blackwell v. Howard Indus. Inc., 243 So. 3d 774, 778 (¶6) (Miss.

Ct. App. 2018).

       II.     Imposition of Sanctions

¶16.   The Commission in this case reversed the AJ’s dismissal of Minor’s claim, finding



       7
         The Employer, however, filed an appellee’s brief in order to correct a statement
made in Minor’s principal brief that the Employer and Carrier contributed to the delay in the
proceedings because they were procedurally required to file a response to Minor’s motion
to reinstate within fifteen days of service of that motion, which they did not do. The
Employer pointed out that Commission Procedural Rule 22(c), in effect in 2015 when Minor
filed his motion to reinstate, did not require that any response be filed, as follows: “a
response [to a motion] is not required, but a party desiring to file a response shall do so
within fifteen (15) days after the date of service of the motion. . . .” In his reply brief, Minor
acknowledged that the Employer was correct, and that he had mistakenly cited to the new
Commission Procedural Rule 2.22(c), effective January 18, 2018, which requires that a
response be filed within fifteen days.

                                                7
that the filing of Minor’s motion to reinstate on December 4, 2015, which was within one

year of the AJ’s order of dismissal, satisfied section 71-3-53’s one-year time requirement,

and tolled the running of that statute. Nevertheless, the Commission also imposed a $500

sanction against Minor’s counsel, finding that, based upon its review of the entire record,

their subsequent inaction after filing the motion to reinstate Minor’s claim “delayed

[Minor’s] claim without reasonable ground,” thus warranting a $500 sanction against them

pursuant to section 71-3-59(2). As noted, that statute provides, in relevant part, as follows:

       If the full commission determines that proceedings in respect to a claim have
       been instituted, continued or delayed, . . . without reasonable ground, the full
       commission . . . may levy a civil penalty not to exceed Ten Thousand Dollars
       ($10,000.00) against such party, or attorney advising or assisting such party,
       or both, payable to the commission.

¶17.   On appeal, Minor asserts that once his counsel timely filed a motion to reinstate his

claim in December 2015, there is no proof in the record that his lawyers’ subsequent inaction

delayed his claim “without reasonable ground” under section 71-3-59(2) because the

Commission’s procedural rules did not require them to do anything beyond filing the motion

to reinstate.8

¶18.   A review of section 71-3-53 provides that if a party files an application for

reinstatement based on a mistake in a determination of fact, then the Commission may issue

a new compensation order. The statute, however, does not require the claimant to request

a hearing on the motion.

¶19.   We now turn to the applicable Commission procedural rules to determine if any duty



       8
           See Miss. Code Ann. § 71-3-53.

                                              8
existed to require Minor to request a hearing once the motion was timely filed. Minor’s

motion to reinstate was filed December 4, 2015. The rule governing motion practice in effect

at that time was Commission Procedural Rule 22 (2001). This rule is substantively the same

as Commission Procedural Rule 2.22 (2018), which is the rule Minor references in his

appellant’s brief. To be accurate, we will refer to Procedural Rule 22.

¶20.   Procedural Rule 22 does not require that the motion be set for oral argument. It

provides that “[i]f a party desires oral argument on a motion, the party shall notice the motion

for motion day or, at the discretion of the [AJ], other agreed time and place, before the

assigned [AJ].” (Emphasis added).9 Because Minor’s counsel was not obligated to do

anything further under the Commission’s procedural rules once Minor’s motion to reinstate

was timely filed in December 2015, we find that imposing the $500 sanction for

unreasonable delay under section 71-3-59(2) was inappropriate.

¶21.   Our decision in Wright v. Turan-Foley Motors Inc. is instructive. In that case, we

reversed the Commission’s imposition of $5,000 in sanctions against claimant’s counsel

under section 71-3-59(2). Wright, 2018 WL 506696, at *10 (¶47). The Commission

sanctioned claimant’s counsel based on its determination that counsel’s subpoena and

discovery questioning of an expert witness was “oppressive in nature and without reasonable

ground.” Id. at *4 (¶23). Finding the sanction inappropriate, this Court observed that there

were “no rules or reported cases [that] clearly prohibited the conduct for which the



       9
         Nor do we find that the requirement under Procedural Rule 22 that “[a] proposed
order must accompany each nondispositive motion,” applies to the motion to reinstate filed
in this case, as it is not a “nondispositive” motion.

                                               9
Commission imposed sanctions,” and, thus, “[u]nder these circumstances, counsel’s efforts

to represent his client by exploring the issue of financial bias had at least a ‘colorable’ basis

in the law.”10 Id. at *10 (47). The same is true here. No rule or reported case prohibited

counsel’s conduct—indeed, no statute, rule, order, or case affirmatively required Minor’s

counsel to take any further action after the motion to reinstate was filed.11 For this reason,

we find that the sanctions were unwarranted in this case.

¶22.   Under the controlling statute, section 71-3-53; Procedural Rule 22; and applicable

case law, we find no breach of any affirmative duty on the part of Minor’s counsel in not

requesting a hearing on the motion to reinstate Minor’s claim. As such, we find that the

Commission erred by imposing the $500 sanction against Minor’s counsel pursuant to

section 71-3-59(2). Wright, 2018 WL 506696, at *10 (¶¶46-47). The sanction imposed on

Minor’s counsel is reversed and rendered.

¶23.   REVERSED AND RENDERED.

    LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, FAIR, WILSON,
GREENLEE AND TINDELL, JJ., CONCUR. WESTBROOKS, J., CONCURS IN
PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.




       10
          The Court’s use of the phrase “colorable basis in law” was in reference to use of
that phrase in an analogous context where the Mississippi Supreme Court was addressing
the impositions of sanctions under Mississippi Rule of Civil Procedure 11 for alleged
frivolous pleadings. Estate of McLemore v. McLemore, 63 So. 3d 468, 490 (¶68) (Miss.
2011). The supreme court held that “pleadings found to be justiciable, viable, or colorable
are not for the purpose of harassment or delay; thus, sanctions are inappropriate.” Id.
       11
        See Miss. Code Ann. § 71-3-53; see also Dapsco Inc. v. Upchurch’s Dependent,
243 Miss. 427, 435, 138 So. 2d 287, 290 (1962).

                                               10
