Bickham v. Department of Mental Health

• Decision Date: 18 December 1991
• Docket Number: 89-CC-0516,INC,CRAIG-WILKINSO,Nos. 89-CC-1022,s. 89-CC-1022
• Parties: Ivory L. BICKHAM v. DEPARTMENT OF MENTAL HEALTH and Commercial Union Insurance Company.and Maryland Casualty Company v. Charles C. SPANN.
• Court: Mississippi Supreme Court

Page 96

592 So.2d 96

Ivory L. BICKHAM v. DEPARTMENT OF MENTAL HEALTH and Commercial Union Insurance Company.

CRAIG-WILKINSON, INC. and Maryland Casualty Company v. Charles C. SPANN.

Nos. 89-CC-1022, 89-CC-0516.

Supreme Court of Mississippi.

Dec. 18, 1991.

James W. Craig, Jackson, for appellant in No. 89-CC-1022.

Kenneth G. Perry, Shell Buford Bufkin Callicutt & Perry, Jackson, for appellee in No. 89-CC-1022.

Donald V. Burch, John S. Gonzalez, Daniel Coker Horton & Bell, Jackson, for appellant in No. 89-CC-0516.

Roger K. Doolittle, Thomas J. Lowe, Jr., for appellee in No. 89-CC-0516.

En Banc.

HAWKINS, Presiding Justice, for the Court:

We consolidate these appeals because they are being dismissed for lack of jurisdiction and the causes remanded to the Mississippi Workers' Compensation Commission.

In Bickham v. Department of Mental Health and Commercial Union Insurance Company, the circuit court of Rankin County granted an appeal from an interlocutory order of the Commission referring an old claim sought to be reopened to the administrative law judge for determining whether the claimant had experienced a change of conditions such that she should be allowed to reopen her claim.

In Craig-Wilkinson, Inc. and Maryland Casualty Company v. Charles C. Spann, the Commission reopened a claim upon which a Section 9(i) settlement had been made, Miss.Code Ann. Sec. 71-3-29 (1972), as authorized under Miss.Code Ann. Sec. 71-3-53 (1972), Section 21 of the Act, and referred the matter to the administrative law judge for a hearing to determine whether there had been a change in the claimant's condition authorizing reopening the claim, and other proceedings "to determine whether the claim is compensable as well as all other relevant issues." The circuit court of the First Judicial District of Hinds County granted an appeal from this order.

Clearly in both cases, the orders were not final, but interlocutory.

There is no statute authorizing an appeal from anything other than a final order of the Commission. The only right of appeal from the Commission is that given by Miss.Code Ann. Sec. 71-3-51, which authorizes an appeal to the circuit court from "the final award of the commission."

Relying upon this Court's decisions, Dunn wrote: "To be appealable, the order of the commission must be a final order." Dunn, Mississippi Workers' Compensation, Sec. 285 (3rd ed.1982). Southern Natural Resources, Inc. v. Polk, 388 So.2d 494 (Miss.1980); St. Regis Paper Co. v. Lee, 249 Miss. 537, 163 So.2d 250 (1964).

A right of appeal is statutory. Jones v. Barnes, 463 U.S. 745, 751, 103 S.Ct. 3308, 3312-13, 77 L.Ed.2d 987, 993 (1983); Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956); St. Louis, I. M. & S. Ry v. Taylor, 210 U.S. 281, 28 S.Ct. 616, 52 L.Ed. 1061 (1908); McKane v. Durston, 153 U.S. 684, 14 S.Ct. 913, 38 L.Ed. 867 (1894); Ex Parte Yerger, 75 U.S. 85, 8 Wall. 85, 19 L.Ed. 332 (1868); The "Francis Wright," 105 U.S. 381, 15 Otto. 381, 26 L.Ed. 1100 (1882); Sheldon v. Sill, 49 U.S. (8 How.) 441, 12 L.Ed. 1147 (1850); Wiscart v. D'Auchy, 3 U.S. (3 Dall.) 321, 1 L.Ed. 619 (1796); City of Mound Bayou v. Johnson, 562 So.2d 1212, 1221 (Miss.1990) (Hawkins, P.J., dissenting); Fleming v. State, 553 So.2d 505, 506 (Miss.1989); Barrett v. State, 491 So.2d 833, 833 (Miss.1986); Sanford v. Board of Sup'rs, Covington County, 421 So.2d 488, 490-91 (Miss.1982); Alt v. City of Biloxi, 397 So.2d 897, 901-902 (Miss.1981); Bennett v. State, 293 So.2d 1, 3 (Miss.1974); State v. Ridinger, 279 So.2d 618, 620 (Miss.1973); Gaughf v. City of Jackson, 243 Miss. 50, 53, 137 So.2d 190, 190 (1962); Bradley v. Holmes, 242 Miss. 247, A250, 134 So.2d 494, 495-96 (1961); McMahon v. Milam Mfg. Co., 237 Miss. 676, 679, 115 So.2d 328, 330 (1959); Wells v. State, 201 Miss. 249, 251, 29 So.2d 119 (1947); State v. Warren, 197 Miss. 13, 16, 19 So.2d 491, 491 (1944); Keeton v. State, 197 Miss. 11, 12, 19 So.2d 477, 477 (1944); J.R. Watkins Co. v. Guess, 196 Miss. 438, 443, 17 So.2d 795, 796 (1944); Craig v. Barber Bros. Contracting Co., 190 Miss. 182, 187, 199 So. 270, 272 (1940); Worley v. Pappas, 161 Miss. 330, 332, 135 So. 348, 349 (1931); Shapleigh Hardware Co. v. Brumfield, 159 Miss. 175, 179, 130 So. 98, 98-99 (1930); McClanahan v. O'Donnell, 148 Miss. 478, 490, 114 So. 336, 338 (1927); State v. Poplarville Sawmill Co., 119 Miss. 432, 441, 81 So. 124, 127 (1919); Bridges v. Board of Supervisors of Clay County, 57 Miss. 252, 254 (1879); Dismukes v. Stokes, 41 Miss. 430, 432-33 (1867); Steele v. Shirley, 9 S. & M. (17 Miss.) 382 (1848). A circuit court has no authority to judicially create a right of appeal from an administrative agency in the absence of clear statutory authority therefor.

The judgments of the circuit courts, emanating from appeals from interlocutory orders of the Commission, are nullities. McMahan, et al., Trustees, Etc., v. Adult Membership Bds. of Phi Kappa, Dusty and Debs Clubs, 244 Miss. 692, 146 So.2d 359 (1962).

The circuit courts never having acquired jurisdiction, it follows this Court has no jurisdiction to hear these appeals. McMahan, supra; Ainsworth v. Blakeney, 227 Miss. 544, 86 So.2d 501 (1956); McCoy v. McRae, 204 Miss. 309, 37 So.2d 353 (1948); J.R. Watkins Co. v. Guess, 196 Miss. 438, 17 So.2d 795 (1944); Mississippi State Highway Dept. v. Haines, 162 Miss. 216, 139 So. 168 (1932); Welch v. Bryant, 157 Miss. 559, 128 So. 734 (1930); Johnson v. Marshall, 48 So. 182 (Miss.1909); Ball, Brown & Co. v. Sledge, 82 Miss. 747, 35 So. 214 (1903).

This Court erred in Sonford Products Corp. v. Freels, 495 So.2d 468, 471 (Miss.1986), in which we held that a circuit court could under certain circumstances grant an interlocutory appeal, and its holding to this effect is overruled.

The extended time in which it takes to finally determine and conclude workers' compensation cases has long been a serious concern of the judiciary, especially this Court. Counsel for litigants and circuit judges should eschew any attempt to appeal a decision of the Commission which is not final.

APPEALS DISMISSED; CAUSES REMANDED TO THE MISSISSIPPI WORKERS' COMPENSATION COMMISSION TO PROCEED UNDER ITS ORDERS.

ROY NOBLE LEE, C.J., DAN M. LEE, P.J., and BANKS and McRAE, JJ., concur.

ROBERTSON, J., dissents with separate opinion joined by PRATHER, SULLIVAN and PITTMAN, JJ.

ROBERTSON, Justice, dissenting:

I.

The Mississippi Workers' Compensation Act was enacted in 1948, and, in the forty-three years since that time, we have routinely allowed piecemeal appeals. We have done this because such appeals have been authorized by the Act. They inhere in the legal and procedural structure the Legislature created. The realities of the phenomena the Act regulates render such appeals a practical necessity.

In Sonford Products Corp. v. Freels, 495 So.2d 468, 471 (Miss.1986), we scuttled the sophistry and settled on the conventional legal label--"interlocutory appeal"--and matters continued apace without inconvenience beyond our competence to correct, so much so that no party in either of these cases (or in any other workers' compensation appeal I can recall, pre- or post-Sonford Products ) has suggested we abandon our forty-three-year-old recently renamed appellate process. I am at a loss to understand what impels today's majority ex cathedra and sua sponte to pursue such a course.

II.

A.

These consolidated appeals concern two claimants' petitions to the Mississippi Workers' Compensation Commission that they be allowed to "reopen" their claims. The law allows the Commission to entertain such applications, albeit on limited grounds, and, thereafter, should the facts and circumstances and law require, to

issue a new compensation order which may terminate, continue, reinstate, increase, or decrease such compensation, or award compensation.

Miss.Code Ann. Sec. 71-3-53 (Supp.1991). What the statute makes apparent is that separate and independent predicate questions must be faced and finally decided before the matter of entering a new order is reached. The Commission, upon its own initiative or upon the application of a party, must find that there has been "a change in conditions" or that there has been "a mistake in a determination of fact." I see no reason why interlocutory appeals should not be allowed from an order on these predicate matters on the same limited terms and conditions so routinely employed heretofore elsewhere within the compensation process. The majority certainly offers no such reason.

To be sure, reopening of claims under Section 71-3-53 has been relatively rare, at least in this Court's experience. A sensitive review of the statutorily authorized and settled practice of piecemeal appeals in analogous features of the compensation process make clear why the present appeals lie within our jurisdiction. Consider a typical compensation claim ab initio. A worker is injured. The employer and carrier move to controvert. Questions may arise whether the "employer" has five or more employees, Miss.Code Ann. Sec. 71-3-5 (1972), whether he is an "employer" or an independent contractor, Miss.Code Ann. Sec. 71-3-3(r) (1972), whether the injury is one "arising out of and in the course of employment," Miss.Code Ann. Sec. 71-3-3(b) (1972), whatever. If the Commission rules against the claimant on any of these issues, of course the claimant may appeal to the Circuit Court, Miss.Code Ann. Sec. 71-3-51 (1972), and ultimately to this Court. The converse is similarly so. If the Commission rules for the claimant on issues such as these, employer and carrier may appeal immediately, even though there has been no final award. Such orders are inherently interlocutory, in that they make no final award and invariably remand to the administrative judge, inter alia, to await maximum medical recovery and assess permanent disability, if any. The Act implicitly accepts this interlocutory process when it provides such appeals shall not act as supersedeas unless ...