Howard Tillman v. KLLM Transport and KLLM Transport Services, LLC

Jackson, MS – Workers' Compensation lawyer represented Plaintiff appealing a decision by the Mississippi Workers' Compensation Commission.

In April 2014, Tillman, a truck driver, suffered an injury to his lower back during his

employment with KLLM Transport (KLLM). Tillman was treated for a lumbar strain, and

an MRI revealed he had a degenerative disc disease resulting in severe spinal stenosis.

¶3. On August 4, 2014, Tillman filed a petition to controvert with the Commission. On

August 7, 2014, Dr. David Collipp diagnosed Tillman with lumbar spinal stenosis but found

that it was unrelated to his work injury. Dr. Collipp placed Tillman at maximum medical

improvement, releasing him with no impairment from his work injury. Tillman, however,

continued to have back pain and in June 2015 filed the first of several motions to compel

further medical treatment.

¶4. On November 14, 2015, Tillman's pre-hearing statement was due, but he failed to file

it. In February 2016, the AJ issued an order giving Tillman twenty days to complete the

statement or show cause why he should not be sanctioned $1,000 for unreasonable delay

under Mississippi Code Annotated section 71-3-59 (Rev. 2021). When Tillman failed to

perform either action, the AJ entered an order assessing the sanction.

¶5. When another month passed without Tillman's filing his pre-hearing statement or

prosecuting his claim, on April 22, 2016, the AJ dismissed Tillman's claim. The order stated

the dismissal would become final unless a written request for its review was filed within

twenty days as provided under Mississippi Code Annotated section 71-3-47 (Rev. 2021).

Further, the order specifically explained the dismissal triggered the one-year statute of

limitation, which begins "after rejection of a claim” under section 71-3-53. Subsequently,

Tillman never filed a motion to review or reinstate the claim.

¶6. As both indemnity and medical benefits had been paid by the workers' compensation

carrier KLLM Transport Services LLC, in June 2016, the Commission sent a request to the

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employer/carrier to file a Form B-31 (notice of final payment).1 Tillman also filed a motion

to compel the carrier to file a Form B-31. KLLM responded that a Form B-31 was not

needed because Tillman failed to file a pre-hearing statement, and the claim was now barred

by the one-year statute of limitation under section 71-3-53.

¶7. In July 2020, the AJ found after a hearing that the Commission no longer had

jurisdiction because the claim was time-barred under section 71-3-53 as of April 22, 2017.

Tillman then appealed to the full Commission, which affirmed the AJ's decision.

STANDARD OF REVIEW

¶8. The standard of review in workers' compensation cases "is limited to a determination

of whether the [Commission] erred as a matter of law or made factual findings contrary to

the overwhelming weight of the evidence.” Clements v. Welling Truck Serv. Inc., 739 So.

2d 476, 478 (¶7) (Miss. Ct. App. 1999) (citing Fought v. Stuart C. Irby Co., 523 So. 2d 314,

317 (Miss. 1988)). An appellate court reviews the Commission's application of law

de novo. Univ. of Miss. Med. Ctr. v. Smith, 909 So. 2d 1209, 1218 (¶30) (Miss. Ct. App.

2005) (citing ABC Mfg. v. Doyle, 749 So. 2d 43, 45 (¶10) (Miss. 1999)). The reviewing

court will not reverse the Commission's application of law unless it is clearly erroneous.

Westmoreland v. Landmark Furniture Inc., 752 So. 2d 444, 448 (¶8) (Miss. Ct. App. 1999).

ANALYSIS

¶9. Tillman argues that the Commission's dismissal of his claim was contrary to law

1 A Form B-31is a Report of Payment and Settlement Receipt and "constitutes notice

to [a] claimant that he is receiving his final payment of compensation . . . and that the

employer and insurance carrier consider the case closed.” Armstrong Tire & Rubber Co. v.

Franks, 242 Miss. 792, 797, 137 So. 2d 141, 143 (1962).

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because Mississippi Code Annotated section 71-3-37(7) (Rev. 2021)

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requires that within

thirty days after the final payment of compensation is made, the employer/carrier is to file

a Form B-31, which was not done in this case. Due to the failure to file a Form B-31,

Tillman maintains that his claim remains open; thus, the Commission's decision should be

reversed and remanded.

¶10. The April 22, 2016 AJ's order of dismissal provided it would be final unless Tillman

filed a written request to review it within twenty days under section 71-3-47. Further, the

order noted, "A final order of dismissal for failure to properly file a pre-hearing statement

is 'the rejection of a claim' sufficient to trigger the one-year statute of limitations set forth

in [section 71-3-53].”

¶11. The dismissal of a claim is not final until twenty days after the entry of the order of

dismissal under section 71-3-47. During the twenty-day period, the claimant may request

a review of the dismissal. Once the order becomes final, the Commission has continuing

jurisdiction under section 71-3-53, which provides in pertinent part:

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

2 Section 71-3-37(7) provides that the employer shall provide the Commission with

notice of the last payment of compensation:

Within thirty (30) days after the final payment of compensation has been

made, the employer shall send to the commission a notice in accordance with

a form prescribed by the commission, stating that such final payment has been

made, the total amount of compensation paid, the name of the employee and

of any other person to whom compensation has been paid, the date of the

injury or death, and the date to which compensation has been paid. . . . No

case shall be closed nor any penalty be assessed without notice to all parties

interested and without giving to all such parties an opportunity to be heard.

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of fact, the commission may, at any time prior to one (1) year after date of the

last payment of compensation, whether or not a compensation order has been

issued, or 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.

(Emphasis added). In other words, "a claim may be reviewed within one year of the filing

of a Form B-31, or within one year after the rejection of the claim.” Garcia v. Super Sagless

Corp., 975 So. 2d 267, 269 (¶9) (Miss. Ct. App. 2007). Further, as the AJ correctly noted,

"a dismissal of a workers' compensation claim for failure to file a required pre-hearing

statement should be treated as a rejection of a claimand should begin the limitations period.”

Id. (citing Edwards v. Wal-Mart, 930 So. 2d 1273, 1276-77 (¶¶17-19) (Miss. Ct. App.

2006)). "After the one-year period, any further review of the claim is barred by the statute

of limitations.” Cook v. Home Depot, 81 So. 3d 1126, 1128 (¶9) (Miss. Ct. App. 2011).

¶12. Here, Tillman took no action to reinstate his claim even though he had several

opportunities to do so. First, he could have requested a review of the dismissal in the twenty

days after the order of dismissal, but he did not. Second, once the order became final, he

could have sought review of the claim under section 71-3-53 for one year (until April 2017),

but he did not. Thereafter, review of his claim was barred, as the Commission no longer had

jurisdiction.

¶13. Additionally, Tillman's argument that his claim is not time-barred because the

employer/carrier failed to file a Form B-31 has been previously rejected by this Court and

the Commission. In Gaillard, this Court discussed the interpretation of section 71-3-53

when a Form B-31 was filed over a year after a claim was finally dismissed for a claimant's

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failure to file a pre-hearing statement. Gaillard v. N. Benton Cnty. Health Care, 180 So. 3d

842, 843 (¶¶3, 5) (Miss. Ct. App. 2015). There, the issue on appeal was whether the statute

permitted a motion to reopen the claim under the circumstances. Id. at 844 (¶8). This Court

cited as instructive the Commission's decision in Russell v. City of Vicksburg, MWCC No.

98-04704-G-8395, 2003 WL 21633994, at *3-4 (Miss. Workers' Comp. Comm'n June 17,

2003 order), stating:

In Russell, the Commission specifically held that the dismissal of the claim

triggers the one-year statute of limitations even if the employer does not file

a Form B-31, signifying final payment of compensation, until sometime after

the order of dismissal. The Commission explained that 'the date of notice of

the last payment is not the operative date' where there is a prior order of

dismissal. Rather, dismissal of the claim triggers the statute.

Gaillard, 180 So. 3d at 844-45 (¶9).

¶14. Similarly, in Garcia this Court affirmed an order of dismissal for failure to file a prehearing statement. Garcia, 975 So. 2d at 268 (¶¶1, 3). The claimant filed a motion to

reinstate his claim more than a year after his claim was dismissed, arguing his claim was still

open because the employer failed to file a Form B-31. Id. at 268-69 (¶¶5, 6). Our Court

rejected this argument because section 71-3-53 clearly states the statute of limitation is

triggered by either the filing of the Form B-31 or the rejection of the claim. Id. at 269 (¶9).

Because more than one year had passed since Garcia's claim was dismissed, his motion to

reinstate was untimely. Id. at 269-70. These cases illustrate that if a claim is rejected under

section 71-3-53, it is time-barred regardless of whether the Form B-31 was filed late, as in

Gaillard and Russell, or not at all, as in Garcia.

¶15. Here, the AJ and theCommission specifically found Tillman's claimtime-barred due

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to "the rejection of the claim” and not the filing of the Form B-31. Therefore, the

employer/carrier's failure to file a Form B-31 had no bearing on the dismissal. Accordingly,

the Commission did not err in finding Tillman's claim time-barred under section 71-3-53

and that it no longer had jurisdiction over Tillman's claim

AFFIRMED.