Day-Brite Lighting Div., Emerson Elec. Co. v. Cummings, DAY-BRITE

• Decision Date: 08 September 1982
• Docket Number: DAY-BRITE,No. 53422,53422
• Citation: 419 So.2d 211
• Parties: LIGHTING DIVISION, EMERSON ELECTRIC COMPANY v. Earline CUMMINGS.
• Court: Mississippi Supreme Court

Page 211

419 So.2d 211

DAY-BRITE LIGHTING DIVISION, EMERSON ELECTRIC COMPANY v. Earline CUMMINGS.

No. 53422.

Supreme Court of Mississippi.

Sept. 8, 1982.

Mitchell, McNutt, Bush, Lagrone & Sams, John S. Hill, Tupelo, for appellant.

Mitchell, Eskridge, Voge, Clayton & Beasley, Claude F. Clayton, Jr., Tupelo, for appellee.

Before SUGG, P. J., and BROOM and BOWLING, JJ.

BROOM, Justice, for the Court:

Jurisdiction of the Workmen's Compensation Commission to review an Order of the Administrative Judge (AJ herein) is the chief issue of this case appealed from the Circuit Court of Lee County, the Honorable Fred Wicker, Circuit Judge, presiding. Claimant Earline Cummings filed two claims against her self-insured employer, Day-Brite Lighting Division, Emerson Electric Company: the first for a back injury which occurred January 30, 1976, and the second for a subsequent back injury which occurred October 6, 1978. After the two causes were consolidated, the AJ conducted a hearing. By order dated August 29, 1980, he made findings of fact and law, and awarded certain temporary benefits to be paid until claimant Cummings' medical condition stabilized and a final determination could be made of the extent of her disability and any resulting loss of wage-earning capacity.

Both parties petitioned for review by the full Workmen's Compensation Commission, pursuant to the terms of Mississippi Code Annotated Sec. 71-3-47 (1972). Before the claim could be heard by the entire commission, both parties filed a joint motion to remand the case back to the administrative judge on the grounds that maximum medical recovery had been attained by claimant, and that such a remand would "promote judicial economy and efficiency and will avoid the necessity for two separate appeals in this case." (emphasis added). On October 14, 1980, the Workmen's Compensation Commission issued an order granting this motion and directing the administrative judge "to hold additional hearings and enter a final order resolving all disputed matters in this case."

After additional hearings, the administrative judge issued a second order on December 12, 1980. In this order the administrative judge indicated that only two issues required resolution: (1) whether the claimant had attained maximum medical recovery and (2) the degree of permanent disability and the amount of any subsequent loss of wage-earning capacity. As to these issues, the administrative judge found that maximum medical recovery had been attained on August 28, 1980, and that the claimant had suffered a 25% permanent partial disability. Neither party filed a petition with the commission for review of this order of the administrative judge by the full commission.

On March 26, 1981, by majority vote, the Workmen's Compensation Commission issued an order stating that the commission had no jurisdiction to review the orders of the administrative judge because neither party filed a timely petition for review pursuant to the requirements of Sec. 71-3-47, supra, (1972).

The commission relied upon Day Detectives, Inc. v. Savell, 291 So.2d 716 (Miss.1974), and Marlboro Shirt Company v. Whittington, 195 So.2d 920 (Miss.1967) as authority for the proposition that the 20-day filing requirement is jurisdictional in nature. However, these cases do not reach the precise issue of the instant case. Further, the commission stated that its order remanding the cause to the administrative judge had divested the commission of jurisdiction and therefore the employer's failure to either reserve jurisdiction in the commission or to petition anew for review by the commission within the 20-day time period resulted in the order of the administrative judge becoming final. From this order, the employer appeals.

Commissioner Hill dissented, taking the position that the purpose of the remand was simply to avoid the necessity of multiple appeals. He stated that inasmuch as the second order did not supersede the first order but was merely in addition to the first order, the employer (appellant) should not be denied its properly perfected right of review of the issues decided in the August 29, 1980, order.

The central issue is whether a petition for review by the full Workmen's Compensation Commission from an award by an administrative judge will allow the commission to retain jurisdiction of the review after a subsequent remand to the administrative judge for additional hearings and findings, or whether a new petition for review must be filed subsequent to the issuance of the order based upon those additional hearings. A proper analysis of this issue revolves around the basic nature of the jurisdiction of the Workmen's Compensation Commission.

The statute setting forth the jurisdiction of the commission is Mississippi Code Annotated Sec. 71-3-47 (1972), which also sets out the authority of the commission to appoint a representative, and provides for review of such a representative's findings upon receipt of a petition for review within twenty days of the filing of the representative's order. Mississippi Code Annotated Sec. 71-3-53 (1972) vests by statute continuing jurisdiction in the commission.

We have previously set forth the role of the attorney-referee (now administrative judge) as a "facility of the Commission." Railway Express Agency v. Hollingsworth, 221 Miss. 688, 74 So.2d 754 (1954). This role of "facility of the Commission" follows directly from the fact that the commission itself, and not the administrative judge, is the factfinder in all workmen's compensation cases. Dunn, Mississippi Workmen's Compensation, Sec. 284 (1967).

As the factfinder in all workmen's compensation cases, the commission has the authority not to accept any or all fact findings of its "facility", the AJ. In United Funeral Homes, Inc. v. Culliver, 240 Miss. 878, 128 So.2d 579 (1961), we made it clear that as long as the commission's decisions were based upon substantial evidence, that decision would be upheld upon appeal in spite of the fact that the administrative judge's decision was also supported by substantial evidence. This role of the commission as the trier of fact was further emphasized in Moon v. Erwin Mills, Inc., 244 Miss. 573, 145 So.2d 465 (1962).

The respective roles of the commission and the AJ derive from the fact that jurisdiction in workmen's compensation cases is vested statutorily in the commission itself. Everitt v. Lovitt, 192 So.2d 422 (Miss.1966). It is in light of this fundamental notion that the holdings of this Court in Marlboro Shirt Company v. Whittington, 195 So.2d 920 (Miss.1967), and Day Detectives, Inc. v. Savell, 291 So.2d 716 (1974), must be viewed. We held in those cases that the requirement for a filing of a petition for review with the commission within 20 days of the issuance of the order by the attorney-referee was jurisdictional in nature.

In its order asserting its lack of...