source: Caselaw Access Project

author: KING, C.J.,

license: Public Domain

text:
    Bernita J. WASHINGTON, Appellant, v. WOODLAND VILLAGE NURSING HOME d/b/a H.T. Cain and Bridgefield Casualty Insurance Company, Appellees.
    No. 2007-WC-02291-COA.
    Court of Appeals of Mississippi.
    Feb. 24, 2009.
    Rehearing Denied Sept. 29, 2009.
    Certiorari Denied Jan. 7, 2010.

      James Kenneth Wetzel, Gulfport, attorney for appellant.
    Karl R. Steinberger, Pascagoula, attorneys for appellee.
   KING, C.J.,

for the Court.

¶ 1. Bernita J. Washington filed a workers’ compensation claim for injuries to her neck and lower back that she alleged resulted from her fall at work on December 14, 2001. Washington’s employer, Woodland Village Nursing Home, and its insurance carrier, Bridgefield Casualty Insurance Company (collectively, Woodland), paid Washington temporary total and temporary partial disability benefits and medical expenses, including the cost of her neck surgery. Subsequently, Washington sought approval from Woodland for lower back surgery and for a second surgical procedure on her neck, for which approval was denied. After a hearing, an administrative law judge determined that: (1) Washington did suffer a work-related neck injury on December 14, 2001; (2) further factual development was required to determine whether Woodland should be responsible for the cost of lumbar surgery; (3) Washington’s neck condition was resolved; (4) Washington had attained maximum medical improvement despite the conflicting testimony regarding her need for further cervical surgery; and (5) Washington had failed to prove any permanent disability.

¶2. The Mississippi Workers’ Compensation Commission affirmed the decision of the administrative law judge. Both Washington and Woodland appealed to the circuit court, which affirmed the decision of the Commission. Washington now appeals, raising the following issues:

I. WHETHER THE ISSUE OF PERMANENT DISABILITY WAS PROPERLY BEFORE THE COMMISSION FOR RESOLUTION.
II. WHETHER THE COMMISSION ERRED AS A MATTER OF LAW AND FACT IN FINDING THAT WASHINGTON WAS NOT IN NEED OF FURTHER CERVICAL SURGERY.
III. WHETHER THE COMMISSION ERRED AS A MATTER OF LAW AND FACT IN FINDING THAT WASHINGTON’S CONTEMPLATED LUMBAR SURGERY “SHOULD BE SCRUTINIZED BY THE EMPLOYER AND CARRIER, AND AT PRESENT, ANY LUMBAR SURGERY IS NOT TO BE CONSIDERED THE RESPONSIBILITY OF THE EMPLOYER AND CARRIER.”
IV.WHETHER THE COMMISSION ERRED AS A MATTER OF LAW AND FACT IN DETERMINING THAT WASHINGTON WAS NOT ENTITLED TO PERMANENT DISABILITY BENEFITS DUE TO THE FACT THAT SHE DID NOT MAKE REASONABLE EFFORTS TO FIND ALTERNATIVE EMPLOYMENT.

Woodland cross-appeals, raising the following issues:

I. WHETHER THE COMMISSION ERRED AS A MATTER OF LAW IN FINDING THAT THE CLAIMANT SUSTAINED A WORK-RELATED INJURY ON DECEMBER 14, 2001.
II. WHETHER THE COMMISSION ERRED AS A MATTER OF LAW AND FACT IN FINDING THAT WASHINGTON WAS NOT IN NEED OF FURTHER CERVICAL SURGERY.

¶ 3. We affirm in part and reverse and remand in part. We find that the issue of permanent disability exceeded the scope of the hearing; therefore, the Commission erred by determining that there was no permanent disability. Accordingly, we reverse the Commission’s determination that Washington was not permanently disabled; the merits of that issue may be determined by the Commission at the appropriate time. In all other respects, we find that the Commission’s decision was supported by substantial evidence and was not arbitrary and capricious.

FACTS

¶ 4. Washington was forty-five years old at the time of the July 20, 2005, hearing before the administrative law judge. Her educational background included high school and two years of college. She had worked as a bank teller, a switchboard operator, a bookkeeper, a cashier, and a certified nursing assistant. Washington worked as a certified nursing assistant at Woodland Village Nursing Home beginning in November 2000. Licensing problems prevented her working during the period of March 2001 to August 2001. Washington’s duties included resident care such as responding to calls, bathing residents, assisting with their personal hygiene, serving food, changing bed linens, and cleaning. According to Washington, on December 14, 2001, while retrieving a wheelchair for a dizzy resident, she slipped and fell on a wet spot, “flipped backwards,” and lost consciousness. Washington thought that she struck her head on a nearby laundry cart as she fell. No one witnessed the accident. However, Washington testified that after she fell, another employee indicated that she was about to put out a wet floor sign before Washington’s fall occurred.

¶ 5. The employer’s first report of injury reflects that Washington hurt her forehead, wrist, thumb, and lower back. Washington went to the emergency room at Hancock Medical Center and saw Dr. Fredo Knight. On December 17, 2001, Washington visited the company doctor, Dr. Charles Kergosian, who treated her for a lumbar sprain, a cervical sprain, and a sprained left wrist. Dr. Kergosian initially took Washington off work, but he released her to return on January 7, 2002. Because Washington had continuing problems, Dr. Kergosian ordered physical therapy. On March 18, 2002, the physical therapist recommended that Washington be discharged, noting that though Washington had missed six appointments, she was much improved.

¶ 6. On March 28, 2002, Washington saw her family physician, Dr. David Roberts. Dr. Roberts ordered a lumbar MRI, which was performed on April 3, 2002, and it showed disc protrusion at the L5-S1 level on the left side encroaching on the nerve root at that level. Dr. Roberts referred Washington to a neurosurgeon, Dr. Terry Smith. Washington saw Dr. Smith on April 20, 2002. She complained of headaches, swelling in the left temple and neck, pain in her left arm, and lower back pain occasionally radiating to both legs. Dr. Smith ordered an MRI of the cervical spine, which showed a disc protrusion on the left at the C4-5 level with neural fora-minal narrowing. Dr. Smith noted that while the MRI results did not explain Washington’s diffuse complaints, it did explain her left neck, shoulder, and arm pain. Dr. Smith recommended epidural injections for the pain. Washington subsequently returned to Dr. Smith and reported that the injections had not helped. Dr. Smith recommended that Washington undergo surgery. When Washington mentioned her lower back problems, Dr. Smith responded that they needed to deal with her neck first. Dr. Smith released her to return to work with restrictions after August 24, 2002. However, Woodland did not permit her to return due to the contemplated surgery.

¶ 7. On December 5, 2002, Dr. Smith performed an anterior cervical corpectomy and fusion at the C4-5 level. On January 18, 2003, Dr. Smith ordered physical therapy for Washington; she made excellent progress in physical therapy. Dr. Smith ordered a functional capacity evaluation (FCE), which was performed on April 5, 2003, and it showed Washington could perform at the light duty level, which fit her job requirements. On April 15, 2003, Dr. Smith found that Washington had reached maximum medical improvement regarding her neck, and he released her to light duty. Based on the FCE, Dr. Smith restricted Washington to lifting a maximum of thirty-five pounds, to carrying a maximum of forty-five pounds, to making frequent position changes, and to a maximum of four hours of work per day for the first two weeks to build up her endurance. Washington returned to work, but one week later, she returned to Dr. Smith complaining of neck and lower back pain. Dr. Smith found that she had good range of motion in the neck and normal strength, reflexes, and gait. Dr. Smith merely informed Washington that it would take some time to get back into the “swing of things” at work.

¶ 8. Attendance records for May 2003 show that Washington continued to work four-hour days at Woodland despite Dr. Smith’s instruction that she could return to full time after two weeks. Woodland requested that Washington provide medical documentation justifying her limited schedule. In response, Washington forged and hand-delivered a note with Dr. Smith’s signature dated June 2, 2003. This note stated that Washington could only work four-hour days with no pushing or pulling. At her deposition, Washington admitted that she had forged this note by using wording from her copies of Dr. Smith’s medical records and the FCE. Washington submitted two subsequent forgeries to Woodland purporting to be from Dr. Smith. A forgery dated October 11, 2003, asserted that Washington could only work four-hour days with various restrictions. A later forgery dated December 12, 2003, stated that Washington could work only four-hour days, but she also could not work four or five straight days in a row, and she could only work a.m. hours. Washington testified that she submitted these forgeries because she was afraid she could not perform at full duty and was afraid of being terminated for failing to perform at full duty.

¶ 9. During the fall of 2003, Washington continued to see Dr. Smith, and she received lumbar injections and a TENS unit. On December 12, 2003, Dr. Smith recommended that Washington undergo surgery on the disc protrusion on the left side of her lumbar spine. Washington worked eight-hour days on December 24-26, 2003. She testified that this work schedule caused her to suffer severe pain, and she went to the emergency room at her own expense. On January 5, 2004, she saw a new physician, Dr. Rowe Crowder, who instructed her not to work and ordered a cervical MRI. On January 6, 2004, Woodland had a meeting with Washington and requested that she obtain documentation from Dr. Smith certifying that she was able to work while taking prescription medication. On January 24, 2004, she had a follow-up visit with Dr. Smith. He reviewed the MRI obtained by Dr. Crowder and opined that he did not see anything that would warrant further cervical surgery. Dr. Smith stated that while awaiting workers’ compensation authorization for Washington’s lumbar surgery, Washington could return to work at regular duty, but she was restricted from pushing a water cart for two weeks.

¶ 10. Washington never returned to Woodland, and she was terminated in February 2004. Starann Lamier, an administrator at Woodland, testified that Woodland terminated Washington after discovering the forgeries, but otherwise, Woodland would have allowed Washington to work within her restrictions. Another administrator, Faye Hunt, submitted an affidavit swearing that from April 2003 to January 2004, Woodland had forty hours of work per week available to Washington. During the time that she worked four-hour days under the forged restrictions, Washington continued to receive workers’ compensation benefits for a full day, and later for a partial day. On June 27, 2005, Washington pleaded guilty in the Circuit Court of Hancock County to insurance fraud. She was given a three-year suspended sentence with probation and ordered to pay restitution to the carrier. She waived any claim to indemnity benefits paid during that time frame.

¶ 11. On May 27, 2004, Dr. Moses Jones, a neurosurgeon, conducted a medical evaluation of Washington at Woodland’s request. Dr. Jones compared Washington’s preoperative MRIs with a cervical MRI dated January 20, 2004, and a lumbar MRI dated February 2, 2004. Dr. Jones found that Washington’s cervical spine showed degenerative and postoperative changes, with some canal narrowing, but there were no acute changes such as a herniated disk or evidence of nerve root compression. He noted some degenerative changes in the lumbar region but no neural impingement and nothing that correlated with her symptomatology. Dr. Jones opined that surgical intervention would be of no value, and he gave Washington an impairment rating of five percent to the body as a whole attributable to her cervical spine operation. He opined that she could resume all normal activities and return to work without restrictions.

¶ 12. Dr. Smith provided his opinions about Washington’s condition in a July 10, 2004, letter to Woodland’s counsel. Dr. Smith opined that Washington’s diagnosis was cervical and lumbar abnormalities with a poor prognosis for further recovery. He opined that she was a candidate for the surgery he had recommended, but that without further surgery, she had an impairment rating of five percent to the body as a whole. Dr. Smith stated that Washington should not significantly change should she have the surgery. He said if she had the surgery she would be disabled for six weeks, and she could then return to her previous duties with no restrictions.

¶ 13. On June 24, 2004, Washington saw Dr. Jeffrey Oppenheimer, a neurosurgeon, at her own expense on a referral from Dr. Crowder. Washington complained of neck pain, shoulder pain, left-sided arm pain, migraine headaches, and pain and tingling in the left leg. Dr. Oppenheimer noted that Washington had voice problems as the result of the cervical surgery. He ordered a myelogram of the lumbar and cervical spine and nerve conduction studies of the upper and lower extremities. His opinion after these tests concerning the cervical spine was that Washington had significant adjacent level disease at C6-7 which was pressing on her spinal cord. He anticipated that Washington needed a C3-4, C4-5, C5-6, and C6-7 anterior cervical discecto-my and fusion with plating, replacement of her old plate, and replacement of the previous fusion. He also recommended an evaluation by an otorhinolaryngologist to document paralysis of the right vocal cord as the result of the previous surgery. Concerning the lumbar spine, he opined that she had lateral recess stenosis at L3-4 and L4-5. Dr. Oppenheimer recommended a staggered L3 through 5 decom-pressive laminectomy six weeks following the cervical surgery.

¶ 14. The administrative law judge ordered an independent medical evaluation by a neurosurgeon, Dr. Eric Wolfson. Dr. Wolfson saw Washington on February 14, 2005. Washington reported that she had experienced no improvement after her neck surgery, and in fact, her left arm symptoms had worsened. Dr. Wolfson observed marked decreased range of motion in the neck. He reviewed Washington’s cervical and lumbar MRIs and the records of Drs. Smith and Oppenheimer. His impression was persistent cervical radiculo-pathy after her neck surgery, with a postoperative complication affecting her voice, and lumbar discogenic pain syndrome. Dr. Wolfson opined to a reasonable degree of medical certainty that Washington’s intractable cervical condition was the result of the work-related injury of December 14, 2001, and that she needed future cervical surgery secondary to adjacent level disease, which is a common sequella of the type of surgery she underwent with Dr. Smith. Dr. Wolfson opined that Washington’s lumbar condition also resulted from the work-related injury and that she needed future treatments, which may include lower back surgery. Dr. Wolfson recommended further testing in the form of a lumbar discogram prior to surgical management of her lower back condition.

¶ 15. Medical records pertaining to a car accident on March 3, 2000, were admitted into evidence. These records indicated that the car in which Washington was traveling as a passenger was struck from behind by another vehicle. Washington sought medical treatment from Dr. Alan Johnston for her injuries, which included cervical and lumbar pain. A radiologist’s report of a MRI of the cervical and lumbar spine dated June 14, 2000, stated: “C3-4, C4-5 and C5-6 disc protrusions as noted above with cord compression at all those levels and apparent left C5 nerve root impingement at the C4-5 disc level.” Also, mild central protrusion of L5-S1, slightly asymmetric to the left, was apparent. Another record indicated that despite continuing cervical pain and a recommendation that further treatment was necessary, Washington requested to be discharged so that she could return to work. This occurred approximately one month before Washington commenced work at Woodland. When confronted with this MRI reading at his deposition, Dr. Wolf-son opined that it was indicative of abnormalities caused by the car accident, but based upon the onset of symptoms subsequent to Washington’s fall, the fall had aggravated those prior abnormalities.

¶ 16. Washington testified about her desire for further surgery. She testified that it was hard to swallow and that her speech doctors said that the plate from her neck surgery must be removed. Washington testified that she has headaches, her neck is very swollen, and she has problems driving. Additionally, Washington testified that she has back pain radiating to her buttocks and thighs. She said she has difficulty sleeping in bed and must sleep on the sofa, where she can position herself for maximum back support.

¶ 17. The administrative law judge found that Washington had sustained a work-related aggravation of a cervical condition that had been resolved. The administrative law judge noted the conflicting testimony on the need for further cervical surgery, but the judge determined that even without surgery Washington was at maximum medical improvement. The administrative law judge found that the cost of the contemplated lumbar surgery should not be borne by Woodland “without further development as to whether or not the need for surgery is present, whether or not the claimant is desirous of this surgery, which physician would be asked to perform this surgery and conclusory medical opinions that the surgery is related to the original admitted injury.” The administrative law judge also found that Washington had made no efforts to locate alternative employment although she was at maximum medical improvement. The administrative law judge found from the fact that Woodland would have offered Washington work, but for the forgeries, that there was a presumption of no lost wage-earning capacity and, thus, no permanent disability. Finally, the administrative law judge rejected Woodland’s public policy argument that Washington’s fraud should cause a forfeiture of all her rights to benefits under the Workers’ Compensation Act. The Commission affirmed the administrative law judge’s decision.

STANDARD OF REVIEW

¶ 18. This Court has a limited standard of review of decisions of the Commission. Raytheon Aero. Support Servs. v. Miller, 861 So.2d 330, 335(¶ 9) (Miss.2003). Though it is generally the administrative law judge that hears the live testimony, the Commission is the ultimate fact-finder, and it is the Commission’s decision that is entitled to appellate deference. Walker Mfg. Co. v. Cantrell, 577 So.2d 1243, 1245 (Miss.1991). To the extent that the Commission accepts the administrative law judge’s findings and conclusions, this Court reviews those findings and conclusions as those of the Commission. McDowell v. Smith, 856 So.2d 581, 585(¶ 10) (Miss.Ct.App.2003).

¶ 19. We will not reverse the Commission unless the Commission’s decision was not supported by substantial evidence or was arbitrary and capricious. Id. “Arbitrariness and caprice are in substantial part a function of the presence vel non of credible evidence supporting the agency decision. Where we find such evidence, we have no more authority to interfere with the decision of the Commission than we do in a case of any other administrative body.” Walker Mfg. Co., 577 So.2d at 1247. “It is not the role of the [appellate] courts to determine where the preponderance of evidence lies when the evidence is conflicting, given that it is presumed that the Commission, as trier of fact, has previously determined which evidence is credible and which evidence is not.” Hale v. Ruleville Health Care Ctr., 687 So.2d 1221, 1224-25 (Miss.1997). “The legal effect of the evidence and the ultimate conclusions drawn by the commission from the facts ‘are questions of law, especially where facts are undisputed or overwhelming evidence reflects them.’ ” M. T. Reed Constr. Co. v. Garrett, 249 Miss. 892, 897, 164 So.2d 476, 478 (1964) (quoting Cent. Elec. Power Assn. v. Hicks, 236 Miss. 378, 388-89, 110 So.2d 351, 356 (1959)).

LAW AND ANALYSIS

I. WHETHER THE COMMISSION ERRED AS A MATTER OF LAW IN DECIDING THE ISSUE OF PERMANENT DISABILITY.

II. WHETHER THE COMMISSION ERRED AS A MATTER OF LAW AND FACT IN DETERMINING THAT WASHINGTON WAS NOT ENTITLED TO PERMANENT DISABILITY BENEFITS DUE TO THE FACT THAT SHE DID NOT MAKE REASONABLE EFFORTS TO FIND ALTERNATIVE EMPLOYMENT.

¶ 20. Because Washington makes a single argument pertaining to both of these issues, we address them together. Essentially, Washington argues that the administrative law judge erred by finding that she failed to prove she was permanently disabled because the issue of permanent disability was outside the scope of the hearing. “‘Disability’ means incapacity because of injury to earn the wages which the employee was receiving at the time of the injury in the same or other employment, which incapacity and the extent thereof must be supported by medical findings.” Miss.Code Ann. § 71 — 3—B(i) (Rev.2000). A determination of “permanent disability” is a determination of whether and to what extent the claimant has incurred a permanent loss in wage-earning capacity as a result of the injury. Id.; see Miss.Code Ann. § 71-3-17(a) and (c) (Rev.2000). A claimant bears the burden of proof of lost wage-earning capacity. McCarty Farms, Inc. v. Kelly, 811 So.2d 250, 254(¶ 11) (Miss.Ct.App.2001). We must determine whether the hearing encompassed the issue of permanent disability such that Washington was obliged to present her case on the issue at that time.

¶ 21. At the commencement of the hearing, the administrative law judge gave the following statement concerning the hearing’s scope:

All right, the cause number here is H-5941. What I understand the issues are — are we going back to causation, whether or not a work-related injury occurred on or about the date alleged in the Petition to Controvert, and if so, the existence, nature and extent of disability attributable thereto, inclusive of the fact that additional surgery has been recommended, and whether or not the Employer and Carrier should be responsible for that surgery. And/or any result of disability will have to be the subject of another hearing if such is found to be compensable. Is there anything that I missed ... ?

It was then agreed that the administrative law judge would also address Woodland’s public policy argument that Washington’s fraud caused a forfeiture of workers’ compensation benefits.

¶ 22. Washington argues that the hearing was limited to a determination of whether Washington suffered a work-related injury, whether that injury was com-pensable despite her fraud, and whether the Commission would approve the costs of the additional surgeries recommended by Dr. Smith, Dr. Oppenheimer, and Dr. Wolfson. Washington avers that the issue of permanent disability was outside the scope of the hearing. As an indicator that another hearing was contemplated on the issue of permanent disability, she points to the administrative law judge’s statement that “any result of disability will have to be the subject of another hearing if such is found to be compensable.”

¶ 23. Woodland argues that the issue of permanent disability was within the scope of the hearing. Woodland points to the fact that Washington never amended her pretrial statement of August 28, 2003, which provided that the contested issues included: “the existence/extent of any permanent disability attributable to the injury.” Woodland also asserts that the administrative law judge specifically stated that permanent disability would be determined by reciting the issues as “whether or not a work-related injury occurred on or about the date alleged in the Petition to Controvert, and if so, the existence, nature and extent of disability attributable thereto.”

¶ 24. We review this issue with reference to the case of Monroe v. Broadwater Beach Hotel, 593 So.2d 26 (Miss.1992). In Monroe, the claimant sustained a compen-sable injury to her knee. Id. at 27. Later, Monroe filed a motion under Mississippi Workers’ Compensation Commission General Rule 9 for a hearing on her request for additional medical treatment for her back injury, which she alleged was aggravated by the medical care of her knee injury. Id. at 27, 29. At the hearing, Monroe’s presentation of evidence almost entirely concerned the connection between Monroe’s knee injury and her back injury. Id. at 31. The administrative law judge found that Monroe’s back injury was not work related; thus, she was not entitled to compensation for treatment for her back injury. Id. at 29. However, the administrative law judge made additional findings that Monroe’s knee injury was work related, that she had reached maximum medical recovery for the knee injury, that she had sustained a fifty-percent industrial loss of use of the knee attributable to the employment; the judge also apportioned her benefits and expenses. Id. The Commission affirmed the decision of the administrative law judge, and the circuit court affirmed the Commission’s decision. Id. at 27.

¶ 25. Monroe appealed, complaining that the Commission erred by determining issues outside the scope of the hearing, which was limited to a determination of whether the employer was responsible for the medical care of Monroe’s back injury. Id. at 29. The supreme court agreed, and the court reversed and remanded. Id. at 31. The supreme court noted that the administrative law judge had announced the scope of the hearing by stating: “[Ijt’s not a hearing on the merits of the claim. It’s strictly a hearing on the motion for an immediate hearing, under Rule 9 to determine whether the Claimant is suffering from improper or lack of medical treatment.” Id. at 30. The supreme court recognized that while the hearing testimony had focused exclusively on the connection between the knee and back injuries, Monroe had placed depositions into the record that included information outside of the narrow question of whether she needed additional medical treatment. Id. However, the supreme court held that “[t]he introduction of information on matters outside the subject matter of the hearing does not allow the administrative law judge to decide matters beyond the scope of the hearing.” Id. at 30-31. The supreme court stated that:

An administrative law judge may not announce a limited purpose of a hearing, require the litigants to argue under limitation, and then decide the whole of the case including time of maximum recovery apportionment and compensation. A claimant is entitled to know: “This hearing is ‘it’; now is my time to put on my total case and expect a final decision.” The ruling as rendered below assumes totality of evidence and finality of result and indeed leaves us unsure as to additional proof and additional dispositions. The Commission or administrative law judge might not perceive additional evidence or legal precedent, but we have a diligent and imaginative bar. Left unfettered, Monroe’s case may be more completely developed than intended. Certainly, a claimant cannot be [led] into a partial hearing and have the whole claim determined.

Id. at 31. The supreme court emphasized that the issue was whether the claimant had notice that the issue of permanent disability was to be tried, and the presence of evidence pertaining to permanent disability in the hearing record was not determinative of this question. Id.

¶26. In Twine v. City of Gulfport, 833 So.2d 596, 601(¶ 14) (Miss.Ct.App.2002), the claimant argued that the administrative law judge exceeded the scope of a Rule 9 hearing by determining the merits of the ease, including permanent disability. Citing Monroe, Twine argued that she had been unprepared for a full hearing on the merits. Id. Again focusing on the question of notice, this Court rejected Twine’s argument because several factors indicated that Twine was on notice that the hearing would be on the merits. Id. at 601-02 (¶¶ 14-17). First, the Commission’s order granting Twine’s motion for an expedited hearing stated that after sixty days of active discovery, a hearing on the merits of the issue of permanent disability would occur. Id. at 601(¶ 15). Twine never filed an objection to the order. Id. Second, the notice of hearing stated that the hearing was to be on the merits, and Twine never objected to the hearing on the merits or requested rescheduling. Id. Third, Twine’s situation was distinguishable from Monroe because the administrative law judge did not give Twine any indication that the hearing would be anything other than on the. merits of the permanent disability issue. Id. at 602(¶ 16). Based upon this evidence regarding the scope of the hearing, we held that the administrative law judge properly adjudicated the issue of permanent disability. Id. at (¶ 17).

¶ 27. In this case, Washington’s pretrial statement two years before the July 20, 2005, hearing stated that permanent disability was a contested issue. However, in 2004, Washington filed two requests for a Rule 9 hearing to provide medical treatment, one requesting authorization for lumbar injections and one requesting authorization for the lumbar surgery recommended by Dr. Smith. Therefore, the pretrial statement predated Washington’s request for a Rule 9 hearing; the last hearing requested by Washington was a Rule 9 hearing. Because Washington’s latest request was for a Rule 9 hearing, Washington’s earlier pretrial statement is of limited value in determining whether or not she had notice that the hearing encompassed permanent disability.

¶ 28. As in Monroe and Twine, we look to the statement of the administrative law judge to determine whether the administrative law judge gave Washington notice that the hearing would be on the merits of her permanent disability claim, or whether the hearing would merely determine her claim for authorization for medical treatment, as well as the employer’s argument that the injury was not compensable. The administrative law judge’s statement contained two references to disability. In the first reference, the administrative law judge stated that the existence, nature, and extent of disability attributable to any work-related injury, inclusive of the recommendation for additional surgery, would be determined at the hearing; in the second reference, the administrative law judge stated that the result of any com-pensable disability that was found would be the subject of another hearing.

¶ 29. These two references to disability initially appear ambiguous, but a reasonable meaning can be discerned considering them in light of the several meanings of “disability” in workers’ compensation law. “Medical” or “functional” disability relates to a claimant’s actual physical impairment, while “industrial” disability refers to the impact of the physical impairment upon the claimant’s ability to perform the duties of employment. Robinson v. Packard Elec. Div., Gen. Motors Corp., 523 So.2d 329, 331 (Miss.1988). Industrial disability consists of a medical impairment that caused a loss of wage-earning capacity. Id. (citing Miss.Code Ann. § 71-3-3(0). With these principles in mind, the “existence, nature, and extent of disability inclusive of the recommendation for additional surgery” to be determined at the hearing most logically referred to Washington’s medical disability. The “result” of disability to be determined at a later hearing most logically referred to Washington’s industrial disability. That is, if it was determined at the initial hearing that Washington suffered a com-pensable injury, any permanent loss of wage-earning capacity Washington incurred as a result of that compensable injury was to be determined at a later hearing.

¶ 30. We recognize Woodland’s argument is that the statement referring to a second hearing meant that another hearing would occur only if further surgery were authorized and obtained. Because no further surgery was authorized, Woodland argues, the administrative law judge correctly proceeded to the issue of permanent disability. We reject this argument for two reasons. First, the administrative law judge stated that a second hearing was to occur on the “result” of disability if “such [disability]” was found to be compensable, not if further surgery was authorized. Indeed, Washington’s medical disability was found to be compensable, leading to the conclusion that a second hearing would occur on its “result.” Second, we construe any ambiguity inherent in the administrative law judge’s statement in favor of Washington on the basis that “a claimant is entitled to know”: “This hearing is ‘it’; now is my time to put on my total case and expect a final decision.” Monroe, 593 So.2d at 31. The administrative law judge’s statement communicated that a second hearing would occur on the “result” of disability if the injury were found to be compensable; this reasonably communicated to Washington that there was no need to put on evidence of loss of wage-earning capacity until the second hearing.

¶ 31. We find that the administrative law judge erred by prematurely determining the issue of permanent disability because Washington was not on notice that the hearing would encompass the issue of permanent disability. Construing any ambiguity in favor of Washington, it is fairly apparent that the administrative law judge informed the parties that the issue would be determined at a later time. Therefore, we reverse the finding of the Commission that Washington was not permanently disabled. Washington may raise this issue before the Commission at the appropriate time.

III. WHETHER THE COMMISSION ERRED AS A MATTER OF LAW AND FACT IN FINDING THAT WASHINGTON WAS NOT IN NEED OF FURTHER CERVICAL SURGERY.

IV. WHETHER THE COMMISSION ERRED AS A MATTER OF LAW AND FACT IN FINDING THAT WASHINGTON’S CONTEMPLATED LUMBAR SURGERY “SHOULD BE SCRUTINIZED BY THE EMPLOYER AND CARRIER, AND AT PRESENT, ANY LUMBAR SURGERY IS NOT TO BE CONSIDERED THE RESPONSIBILITY OF THE EMPLOYER AND CARRIER.”

¶ 32. Washington argues that the Commission erred by finding that she was not in need of further cervical surgery and that more factual development was necessary before Woodland should be held responsible for lumbar surgery. The administrative law judge stated that “there was sufficient medical evidence that the aggravation of the cervical region had now been resolved.” Washington argues that the finding was clearly erroneous and lacked the support of substantial evidence because three out of the four physicians whose medical records were submitted to the Commission opined that she needed further surgery. Washington acknowledges that Dr. Jones opined that no further surgery was necessary. However, she contends that the opinion of Dr. Jones, who saw Washington only once, was not substantial evidence supporting the Commission’s conclusion because Dr. Smith, Dr. Oppenheimer, and Dr. Wolfson all said she needed a second cervical surgery.

¶ 33. “Where medical expert testimony is concerned, this Court has held that whenever the expert evidence is conflicting, the Comb will affirm the Commission whether the award is for or against the claimant.” Raytheon Aero. Support Servs., 861 So.2cl at 336(¶ 13) (quoting Kersh v. Greenville Sheet Metal Works, 192 So.2d 266, 269 (Miss.1966)). “Where there is conflicting medical testimony, the Commission has the responsibility to apply its expertise and determine which evidence is more credible. We will uphold that determination unless it is clearly erroneous.” Wesson v. Fred’s Inc., 811 So.2d 464, 469(¶ 23) (Miss.Ct.App.2002). “[A] finding is clearly erroneous when, although there is some slight evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been made by the [Commission in its findings of fact and in its application of the act.” Cent. Elec. Power Ass’n, 236 Miss. at 390, 110 So.2d at 356.

¶34. As discussed above, Dr. Smith performed Washington’s initial cervical surgery. Woodland correctly points out that Dr. Smith never recommended a second cervical surgery as averred by Washington. Rather, Dr. Smith opined that Washington did not need further cervical surgery, and she was at maximum medical improvement from her neck injury, though he later determined that she needed lumbar surgery. The only physicians who determined that Washington needed further cervical surgery were Dr. Oppenheimer, who treated Washington subsequent to Dr. Smith, and Dr. Wolfson, who conducted an independent medical evaluation.

¶ 35. We review the evidence pertaining to the Commission’s finding that Washington needed no further surgery because the aggravation of her cervical injury had been resolved. Dr. Wolfson reviewed Washington’s medical records documenting a prior neck injury that Washington had sustained in a car accident; he opined that the fall had aggravated the prior neck injury. Dr. Jones opined from Washington’s MRIs of the cervical spine that there was “no objective evidence to suggest that any surgical intervention would be of value,” and that Washington “had a good surgical procedure with the normally-expected results.” Dr. Jones testified that Washington could resume all her normal activities. Dr. Smith, Washington’s treating physician for workers’ compensation purposes, opined that Washington’s cervical condition had reached maximum medical improvement, and he did not see anything “that surgery would be of help for” in a post-surgical cervical MRI.

¶ 36. Washington argues that the Commission erred by rejecting the opinion of Dr. Oppenheimer, who treated Washington, and by accepting the testimony of Dr. Jones, who never treated Washington. This argument is without merit because the Commission’s finding that Washington did not need further cervical surgery was also supported by the opinion of her treating physician, Dr. Smith, who stated that she did not need further cervical surgery and that she had reached maximum medical improvement concerning her neck on April 15, 2003. Moreover, the Commission was entitled to rely upon the opinion of Dr. Jones, even though he never treated Washington. This Court has held that “while a treating physician’s opinion is without question of great import, the Commission is not required to abide by it or required to give it any greater weight than other physicians’ opinions.” Richardson v. Johnson Elec. Auto. Inc., 962 So.2d 146, 152(¶ 16) (Miss.Ct.App.2007). The Commission is charged with determining the credibility of the witnesses before it and resolving conflicts in the medical evidence. Id. The opinions of Dr. Smith and Dr. Jones that Washington did not need another cervical surgery did not constitute such slight evidence that the Commission’s reliance upon them was clearly erroneous. We find that the Commission’s decision that Washington did not need further cervical surgery was supported by substantial evidence and was not arbitrary and capricious.

¶ 37. We turn to Washington’s argument that the Commission erred by finding that further factual development was necessary before Woodland was held responsible for providing her with lumbar surgery. Specifically, the administrative law judge stated that no lumbar surgery should be provided “without further development as to whether or not the need for surgery is present, whether or not the claimant is desirous of this surgery, which physician would be asked to perform this surgery and conclusory medical opinions that the surgery is related to the original admitted injury.” Washington argues that Dr. Wolfson’s opinion that the need for lumbar surgery was causally connected to her fall substantially supported her claim for lumbar surgery. Again, there was conflicting medical evidence in the record regarding Washington’s lumbar condition. At his deposition, Dr. Wolfson opined that Washington needed treatment, perhaps surgery, for a lumbar spine injury that she initially incurred during the car accident and later aggravated with the fall at work. Dr. Oppenheimer and Dr. Smith testified that she needed lumbar surgery, but they did not relate her lumbar condition to a work-related injury. Dr. Jones testified that there was no significant abnormality in Washington’s lumbar spine, and she could resume all normal activities. Evidently, the Commission believed that there was a possibility that Washington’s current lumbar problems were attributable to her fall and that she needed surgery, but more evidence was needed in order to make that determination in Washington’s favor. Given the conflicting medical evidence surrounding the issue, we cannot say that this decision was arbitrary and capricious.

ISSUES ON CROSS-APPEAL

I. WHETHER THE COMMISSION ERRED AS A MATTER OF LAW IN FINDING THAT THE CLAIMANT SUSTAINED A WORK-RELATED INJURY ON DECEMBER 14, 2001.

¶ 38. On cross-appeal, Woodland argues that the Commission’s decision that Washington sustained a work-related cervical injury on December 14, 2001, was not supported by substantial evidence. The administrative law judge found that Washington’s version of events was credible, stating that although no one witnessed the accident, this type of injury is common in the nursing home environment, and the claimant is competent to prove her own claim. The Commission agreed, stating that while due to the fraud, Washington’s claim was “doubtful, at best, ... we are duty bound to resolve this doubt in her favor.”

¶ 39. A workers’ compensation claimant must prove the following elements by a fair preponderance of the evidence: “(1) an accidental injury, (2) arising out of and in the course of employment, and (3) a causal connection between the injury and the death or claimed disability.” Hedge v. Leggett & Platt, Inc., 641 So.2d 9, 13 (Miss.1994). Woodland argues that because the evidence before the Commission demonstrated that Washington was untrustworthy, the Commission erred by accepting Washington’s uncorroborated testimony that she sustained an accidental injury at work. Woodland points to the following evidence as indicative of Washington’s untrustworthiness: (1) after her car accident, she obtained a release against medical wishes so she could return to the workforce; (2) she never disclosed her pre-existing injuries from the ear accident to Dr. Wolfson; (3) when Washington was asked to obtain her MRIs from the car accident injuries, they were “conveniently” unable to be located by the hospital; (4) Dr. Smith informed Woodland upon inquiry that he had not prescribed any pain medication for Washington in many months and that the source of her medication should be explored; and (5) Washington’s conviction of insurance fraud in the procurement of workers’ compensation benefits after she forged three medical records in order to remain on part-time, light-duty work. Woodland asserts that Washington’s neck problems actually arose from her prior car accident, not from a work-related injury.

¶ 40. As the administrative law judge recognized, a claimant is competent to prove her own claim; indeed, the Commission may accept the claimant’s testimony without corroboration. Penrod Drilling Co. v. Etheridge, 487 So.2d 1330, 1333 (Miss.1986). The claimant’s uncorroborated testimony should be accepted by the Commission unless it is inherently improbable, incredible, unreasonable, or shown to be untrustworthy; in that circumstance, the Commission may reject it. Id. “[T]he undisputed testimony of a claimant which is not so unreasonable as to be unbelievable, given the factual setting of the claim, generally ought to be accepted as true.” White v. Superior Prods., Inc., 515 So.2d 924, 927 (Miss.1987).

¶ 41. Certainly, Washington’s perpetration of insurance fraud was a most serious matter, and the Commission recognized that it cast doubt upon her general credibility. Nonetheless, Washington’s acts of fraud, while calling her general credibility into question, did not contradict her testimony about how the accident occurred. The administrative law judge found this testimony to be reasonable “given the factual setting of the claim,” and the Commission affirmed this finding. The Commission did not err by determining that the fraud did not render Washington incompetent to prove her own claim. The Commission’s decision that a work-related injury occurred was supported by substantial evidence and, therefore, not arbitrary and capricious.

¶ 42. Additionally, the Commission found that Washington’s conduct raised some significant questions, rendering hers a doubtful claim which the Commission was duty-bound to resolve in her favor. Woodland argues that the Commission erred as a matter of law by finding that it was duty-bound to resolve its doubt about Washington’s claim in her favor. However, the Commission’s application of the law was eminently correct. Because the law mandates that “where there is doubt, cases are to be resolved in favor of compensation.” Gen. Elec. Co. v. McKinnon, 507 So.2d 363, 366 (Miss.1987). “[Djoubtful cases are to be resolved in favor of compensation so that the beneficent purposes of the act may be achieved.” Robinson, 523 So.2d at 332. Having found Washington’s claim to be a doubtful one, the Commission properly resolved that doubt in Washington’s favor consistent with the beneficent purposes of the Act.

II. WHETHER THE PUBLIC POLICY OF MISSISSIPPI MANDATES THAT WASHINGTON FORFEITED HER RIGHTS TO FUTURE BENEFITS BY COMMITTING THE CRIME OF WORKERS’ COMPENSATION INSURANCE FRAUD.

¶ 43. Woodland implores this Court to adopt “a public policy exception that allows the termination of benefits when a claimant commits workers’ compensation insurance fraud.” As authority for this Court’s power to declare public policy, Woodland cites McArn v. Allied Bruce-Terminix Co., Inc., 626 So.2d 603, 607 (Miss.1993), in which the supreme court developed a narrow public policy exception to the employment-at-will doctrine. The exception is applicable to situations where an employee refused to participate in an illegal act or was discharged for reporting the illegal acts of his employer. Id. McAm effectively overruled prior case law holding that an employee terminated under those circumstances had no legal recourse. Id.

¶ 44. This Court declines Woodland’s invitation to declare that public policy bars the receipt of workers’ compensation benefits when a claimant has committed workers’ compensation fraud. While McAm is authority for the judiciary’s power to modify the common law, Mississippi’s Workers’ Compensation Law is a legislative creation providing for the payment of insurance benefits to injured workers. Miss.Code Ann. § 71-3-1 (Rev. 2000). The Legislature alone has the power to create and modify statutes. Finn v. State, 978 So.2d 1270, 1272-73(¶ 9) (Miss.2008) (citing Miss. Ethics Comm’n v. Grisham, 957 So.2d 997, 1003(¶ 14) (Miss.2007)). This Court may not insert provisions into a statute that the Legislature did not see fit to enact; to do so would oven-each our judicial authority. Id. In this instance, the Legislature did not include a provision in the Workers’ Compensation Law that would cause the forfeiture of benefits if the claimant committed insurance fraud. Instead, the Legislature vested the Commission with the duty to determine the viability of claims, including the authority to reject claims that are not credible. Miss.Code Ann. § 71-3-1. Because the enactment of such a provision lies firmly within the legislative sphere, we decline to create an exception to the Workers’ Compensation Law that would mandate a forfeiture of benefits. We further note that such a provision would violate the well-established precept that the provisions of the Workers’ Compensation Law are to be construed liberally and doubtful cases are to be resolved in favor of compensation. This issue is without merit.

¶ 45. THE JUDGMENT OF THE CIRCUIT COURT OF HANCOCK COUNTY IS AFFIRMED IN PART AND REVERSED AND REMANDED IN PART TO THE MISSISSIPPI WORKERS’ COMPENSATION COMMISSION FOR PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED EQUALLY BETWEEN THE PARTIES.

LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ., CONCUR.

      . Clearly, this referred to Dr. Smith's prior recommendation for lumbar surgery.

      . Rule 9 provides in part:
      Upon proper showing by any party of interest that the injured employee is suffering from improper medical attention or lack of medical treatment, further medical treatment may be ordered by the Commission or Administrative Judge at the employer's expense. If at any time during such period the injured employee unreasonably refuses to submit to medical or surgical treatment, the Commission or Administrative Judge shall, by order, suspend the payment of further compensation during such time as such refusal continues and no compensation shall be paid at any time during the period of such suspension.
      Any hearing required by the Commission or Administrative Judge under this Rule may, in the discretion of the Commission or Administrative Judge, be held no sooner than five (5) days after notice to determine (1) if compensation payments should be suspended for refusal or failure to submit to a medical examination or to proper medical treatment or (2) that the injured employee is suffering from improper medical attention or lack of medical treatment.


author: LEE, P.J.,

text:
    MISSISSIPPI STATE DEPARTMENT OF HEALTH and City of Cleveland, Appellants, v. MID-SOUTH ASSOCIATES, LLC, Appellee.
    No. 2008-SA-00223-COA.
    Court of Appeals of Mississippi.
    April 21, 2009.
    Rehearing Denied Sept. 29, 2009.
    Certiorari Denied Jan. 21, 2010.

      Donald E. Eicher, Flowood, Sondra McLemore, Thomas L. Kirkland, Andy Lowry, Allison Carter Simpson, Ridgeland, Jamie F. Jacks, Cleveland, attorneys for appellants.
    John L. Maxey, William Holcomb Hus-sey, Jackson, Malenda Meacham, Hernan-do, attorneys for appellee.
    Before LEE, P.J., GRIFFIS and BARNES, JJ.
   LEE, P.J.,

for the Court.

PROCEDURAL HISTORY

¶ 1. In December 2006, Mid-South Associates, LLC (Mid-South) filed a certificate of need (CON) with the Mississippi State Department of Health (MSDH) seeking to relocate seventy-five nursing home beds from Bolivar Health and Rehabilitation Center (BHRC) in Bolivar County to De-Soto County. MSDH staff recommended that the application be denied, finding that the project failed to substantially comply with the overall objectives of the 2007 State Health Plan and the Mississippi Certificate of Need Review Manual, 2006 Revision. Mid-South then requested a hearing on the matter. The City of Cleveland (the City), where BHRC is located, entered an appearance as an interested party and participated in the hearing. We will refer to MSDH and the City collectively as “MSDH” unless specifically noted.

¶ 2. A hearing was held in June 2007. The hearing officer adopted the findings and conclusion submitted by both MSDH and the City and denied Mid-South’s application. The State Health Officer (SHO) adopted the MSDH staff analysis and the findings of the hearing officer and issued his final order disapproving the CON. Mid-South appealed this decision to the DeSoto County Chancery Court. The chancellor set aside the decision by the SHO and authorized the relocation of the seventy-five beds to DeSoto County.

¶ 3. MSDH and the City now appeal, asserting two issues: (1) the chancellor did not follow the correct standard of review, and (2) the rejection of Mid-South’s application was supported by substantial evidence. Finding reversible error in regard to MSDH’s second issue, we decline to review issue one. We will relate pertinent facts as needed in our discussion.

STANDARD OF REVIEW

¶ 4. Judicial review of the SHO’s CON order is limited by Mississippi Code Annotated section 41-7-201 (2)(f) (Rev.2005) which provides, in part:

The order shall not be vacated or set aside, either in whole or in part, except for errors of law, unless the court finds that the order of the State Department of Health is not supported by substantial evidence, is contrary to the manifest weight of the evidence, is in excess of the statutory authority or jurisdiction of the State Department of Health, or violates any vested constitutional rights of any party involved in the appeal.

¶ 5. This Court assigns great deference to decisions of administrative agencies. Delta Reg’l Med. Ctr. v. Miss. State Dep’t of Health, 759 So.2d 1174, 1176(¶ 12) (Miss.1999) (citing Melody Manor Convalescent Ctr. v. Miss. State Dep’t of Health, 546 So.2d 972, 974 (Miss.1989)). There is a rebuttable presumption in favor of the decision rendered by an agency, and the burden of proving the contrary is on the challenging party. His Way Homes, Inc. v. Miss. Gaming Comm’n, 733 So.2d 764, 767(¶ 9) (Miss.1999). Neither this Court nor the chancery court can “substitute its judgment for that of the agency or reweigh the facts of the case.” Id. at (¶ 10). To be reversed on appeal, an administrative agency’s decision must be demonstrated to be arbitrary and capricious and not based on substantial evidence. Id. at 766(¶ 9); Cain v. Miss. State Dep’t of Health, 666 So.2d 506, 510 (Miss.1995).

DISCUSSION

¶ 6. Mississippi Code Annotated section 41-7-193(1) (Rev.2005) states, in pertinent part, that:

A certificate of need shall not be granted or issued to any person for any proposal, cause or reason, unless the proposal has been reviewed for consistency with the specifications and the criteria established by the State Department of Health and substantially complies with the projection of need as reported in the state health plan in effect at the time the application for the proposal was submitted.

Mississippi’s health planning and health regulatory activities have the following purposes: (1) to prevent unnecessary duplication of healthcare resources; (2) to provide cost containment; (3) to improve the health of Mississippi residents; and (4) to increase the accessibility, acceptability, continuity, and quality of healthcare services. 2007 State Health Plan. While all of the stated purposes are important, cost containment and the prevention of unnecessary duplication of health resources are given primary emphasis in the CON process. Id. The plan also states that the MSDH “intends to disapprove CON applications which fail to confirm that the applicant shall provide a reasonable amount of indigent care, or if the applicant’s admission policies deny or discourage access to care by indigent patients.” Id.

¶ 7. In the hearing officer’s recommendation to deny the CON, which was ultimately adopted by the SHO, the hearing officer found that the relocation of the nursing home would create an unnecessary duplication of health resources. The hearing officer found it unnecessary to build a new facility for the same beds absent a showing of need. The hearing officer further determined that the project failed to meet the applicable need criterion as discussed in detail below. Sam Dawkins, Director of the Office of Health Policy and Planning for the MSDH, testified that the purpose of the plan is not to move beds from one county to another every time one area of the state grows more than the other.

¶ 8. In regard to cost containment, the hearing officer relied upon the testimony of John Hyde, the City’s expert in healthcare planning. Hyde testified that the project would have a negative impact on cost containment and actually cause healthcare costs to increase. Hyde stated that the same services in DeSoto County were likely to cost more than those provided in Bolivar County. There was testimony that the new facility intended to reduce its Medicaid utilization rates from approximately 62% to approximately 33%. However, Dawkins testified that cost containment includes healthcare costs for private pay, insurance pay, and Medicare, not just Medicaid.

¶ 9. The hearing officer stated that there was no testimony either at the hearing or information in the CON application regarding the third objective of improving the health of Mississippi residents. Hyde testified that the relocation would negatively affect the healthcare environment in Bolivar County, an economically depressed and medically underserved area. The hearing officer noted the similarity between the fourth objective, increasing accessibility, acceptability, continuity, and quality of healthcare services, and the third objective and found the testimony supporting these objectives to be inadequate as well. It was noted in the staff analysis that although DeSoto County had a need for the beds, the relocation would “create a void in Bolivar County, a medically underserved area. Residents will either be relocated 105 miles from their families or will be forced to seek [health]care elsewhere.” In their testimonies, Dawkins and Hyde each agreed with the finding in the staff analysis. John Mayo, a Mississippi State representative for District 25, which includes a portion of DeSoto County, testified that those living in rural areas need an easily accessible facility. Representative Mayo stated that in areas with a high poverty rate and elderly population, it is important for the well-being of the patients that they be near their families.

¶ 10. In addition to the need to conform to the State Health Plan, the 2006 Certificate of Need Review Manual lists several criteria to be used by the MSDH for evaluation of projects. General Consideration 100.01(1) states that “[a] project may be denied if the Department determines that the project does not sufficiently meet one or more of the criteria.” Although the staff analysis reviewed the CON application in regard to all the criteria, the staff analysis specifically found that Mid-South’s application failed to comply with General Review Criterion 5 entitled “Need for the Project.” The hearing officer also found that Criterion 5 was the most relevant to the application, specifically sections 5(a), (b), and (e). These particular sections are stated as follows:

a. The need that the population served or to be served has for the services proposed to be offered or expanded and the extent to which all residents of the area — in particular low income persons, racial and ethnic minorities, women, handicapped persons and other under-served groups, and the elderly — are likely to have access to those services. b. In the case of the relocation of a facility or service, the need that the population presently served has for the service, the extent to which that need will be met adequately by the proposed relocation or by alternative arrangements, and the effect of the relocation of the service on the ability of low income persons, racial and ethnic minorities, women, handicapped persons and other underserved groups, and the elderly, to obtain needed health care.
e. The community reaction to the facility will be considered. The applicant may choose to submit endorsements from community officials and individuals expressing their reaction to the proposal. If significant opposition to the proposal is expressed in writing or at a public hearing, the opposition may be considered an adverse factor and weighed against endorsements received.

¶ 11. Mid-South’s argument primarily focuses on the 2007 State Health Plan’s indication that DeSoto County needs 567 additional beds while Bolivar County has 92 more beds than it needs. However, the staff analysis and the hearing officer found that there was substantial evidence to show Bolivar County’s need to keep the seventy-five beds.

¶ 12. In regard to section (a), Jean Beard, an expert for Mid-South, testified that when the MSDH considers a relocation it must consider the population “presently served.” Beard testified that although Bolivar County was determined by the federal government to be a “medically underserved area” (MUA) in 1984, DeSoto County was also determined to be one in 1978. However, Hyde testified that using the formula to calculate present averages, DeSoto County would have an average score of 79.9, placing it out of the MUA designated range of scores below 62. Hyde also testified that the MSDH’s own rankings of counties by the general health of their residents places Bolivar County at number fifty out of eighty-two and DeSoto County at number one, with one being the healthiest.

1Í13. The staff analysis noted that BHRC’s occupancy rate in 2005 was 75.75%. Sherry Davis, the administrator at BHRC, testified that, at the time of the hearing, the facility was 84% occupied. The staff analysis also noted that the occupancy rate in the four other facilities in Bolivar County ranged from 83% to 99%. There was testimony that Bolivar Medical Center’s nursing home was at 97-100% capacity with a waiting list. There was concern that any vacant beds in the area would be filled by BHRC’s patients, creating a waiting list for other patients. The staff analysis stated that although Bolivar County’s population was projected to slightly decrease by 2010, the population of persons over the age of sixty-five was projected to increase. The staff analysis stated that “[wjhile this is a small increase, it does signify that there is a continued need for nursing home beds in the county.”

¶ 14. Hyde testified that the poverty level of Bolivar County has a tremendous impact on determining need. Hyde stated that at-risk, elderly, minority, handicapped, and low-income people typically do not seek or receive preventative care. Dawkins testified that the lack of healthcare access in the region stems from the lack of medical personnel, characteristics of the population, demographics, and payor sources. Dawkins further testified that Bolivar County’s citizens would be harmed by removing these beds. Dawkins also stated that Mid-South plans to decrease its Medicaid utilization rate from 62% to 33% and to decrease its indigent and uncompensated care from 9% to 3%. Mid-South also plans to increase its private pay customers from 0% to 18% and its Medicare-utilization rate from 29% to 46%. Dawkins and Hyde agreed that the reasons for Mid-South’s relocation were primarily financial.

¶ 15. In regard to section (b), Mid-South presented testimony regarding De-Soto County’s population growth and the need for the seventy-five beds. The May- or of Hernando, Chip Johnson, testified as to the area’s population increase. However, Representative Mayo admitted in his testimony that most of the population increase was due to young families moving to the area. Mid-South assumes that all current residents at BHRC can be absorbed into the surrounding facilities with no material impact on the available medical resources. The hearing officer found that Mid-South failed to take into consideration a resident’s or family member’s preference for one nursing home over another. An owner of two Bolivar County nursing homes testified through deposition that his two facilities could absorb any BHRC patients who chose not to relocate. However, both of his facilities had been cited at one time for various deficiencies.

¶ 16. Mid-South also relies on the fact that there are sixty available beds at Shelby Nursing and Rehabilitation Center, located in Bolivar County. However, these beds had been placed in abeyance or not licensed to provide services, and there was no testimony that Shelby Nursing would attempt to have the beds re-licensed at any point in the future. Both Hyde and Beard projected a need for beds in Bolivar County in the next few years. Dawkins also testified that an increase in the population needing nursing home beds in Bolivar County would create a future need for additional beds in Bolivar County. The staff analysis and the hearing officer noted that in light of the moratorium on building new nursing home facilities, no new beds can be added to Bolivar County.

¶ 17. Another one of Mid-South’s proposals for “alternative arrangements” consisted of relocating BHRC’s residents to DeSoto County. Judy Ullery, president of Joy Health and Covenant Dove, the company managing BHRC, testified that it was BHRC’s intention to cease admissions while the new facility was being built. Ul-lery stated that by the time the new facility was completed, the resident population will have been reduced such that only a few residents would need to relocate. However, Dr. Steven Clark, BHRC’s physician and medical director of Bolivar Medical Center’s nursing home, testified that transferring patients even for a short amount of time results in the deterioration of their health. Dr. Clark stated that the “geriatric population doesn’t respond well to changes in environment, particularly if they’ve been cared for in an environment for a long period of time.” Dawkins, Hyde, and John Lindsey — the Chief Administrative Officer for the City of Cleveland — each testified that losing healthcare facilities, especially in an economically depressed area, negatively affects the economy in the area in which it served, either by losing qualified personnel or losing healthcare dollars to other towns in the area.

¶ 18. Willie Lee Simmons, Senator for District 13, which includes Bolivar County, testified that the relocation of the beds would have a devastating effect on Bolivar County, namely because of the difficulty low-income persons have in obtaining needed healthcare. Senator Simmons testified that it is difficult and sometimes impossible for low-income persons to make regular visits to nursing homes.

¶ 19. The hearing officer noted that Bolivar Medical Center, the county hospital, opposed the relocation. The hearing officer found that decreasing the number of available beds in Bolivar County would directly impact the hospital’s ability to provide services. With fewer nursing-home beds to move patients into, the hospital would be required to keep its patients in acute-care beds longer than-is necessary, both harming the financial viability of the hospital and the healthcare of patients in need of acute care.

¶ 20. In regard to section (e), there were testimony and evidence demonstrating significant opposition to the relocation of the beds. The City, the local hospital, and local residents voiced their opposition to the relocation. The City passed an official resolution opposing the project. Staff of BHRC and family members of residents testified in opposition to the relocation. At the time of the staff analysis, over 200 letters of opposition had been written by the residents of Bolivar County. Ultimately, the MSDH received over one thousand additional letters opposing the relocation. There were no letters from Bolivar County residents supporting the relocation. Mid-South questioned the authenticity of the letters, especially the Grenada postmark, but David Work, the May- or of Cleveland, clarified that letters mailed from Cleveland are processed through Grenada before being delivered. Mayor Work also testified that the City offered Mid-South eight acres of land adjacent to BHRC, but Mid-South declined the offer. At the time of the staff analysis, eleven letters had been received in support of the relocation from residents of DeSoto County. The hearing officer found that there was “significant opposition” to the relocation and weighed that opposition against the CON approval.

¶ 21. We find substantial evidence in the record to support the hearing officer’s finding that the relocation project was not consistent with the State Health Plan. There was substantial evidence shown that the relocation of the nursing home beds “would have a significant adverse [ajffect on the ability of an existing facility or service to provide indigent care.” 2007 State Health Plan. We also find that the MSDH did not act arbitrarily or capriciously, outside its authority, or violate any vested constitutional rights. We reverse the chancellor’s judgment granting the CON and render judgment to reinstate the MSDH’s decision to deny the CON.

¶ 22. THE JUDGMENT OF THE DE-SOTO COUNTY CHANCERY COURT IS REVERSED AND RENDERED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE.

KING, C.J., MYERS, P.J., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS AND MAXWELL, JJ., CONCUR. CARLTON, J„ NOT PARTICIPATING.


text:
    Linda STACY, Individually and As Mother and Natural Guardian of Aleigha Triplett, a Minor, Appellant, v. William JOHNSON, M.D., Magnolia Regional Health Center, Alcorn County, Mississippi, by and Through Its Board of Supervisors; and City of Corinth, Appellees.
    NO. 2007-CA-02185-COA.
    Court of Appeals of Mississippi.
    May 12, 2009.
    Rehearing Denied Aug. 4, 2009.
    Certiorari Granted Nov. 12, 2009.
    Certiorari Dismissed as Improvidently Granted Jan. 7, 2010.
    Dana J. Swan, Clarksdale, attorney for Appellant.

      Victoria Smith Rowe, Kimberly Nelson Howland, Jackson, William D. Domico, attorneys for Appellees.
   KING, C.J.,

for the Court.

¶ 1. This appeal is from a final judgment of the Alcorn County Circuit Court dismissing the suit of Linda Stacy, individually and as mother and natural guardian of Aleigha Triplett, a minor, for failure to diligently pursue this cause of action. The sole question on appeal is whether the trial court abused its discretion in dismissing the cause of action for failure to diligently prosecute and follow court orders. Finding no error, we affirm.

FACTS

¶2. On July 15, 1997, Stacy went to Magnolia Regional Medical (Magnolia) with a full-term pregnancy. Stacy was admitted to Magnolia and examined by Dr. William Johnson. As a result of his examination, Dr. Johnson decided to induce Stacy’s labor. Stacy claims that she was given Pitocin to induce or augment her labor without her informed consent. After Stacy exhibited signs of fetal distress and labor continued, Dr. Johnson ordered a Caesarian section. Stacy alleges that she was transported to the operating room, but the doors to the operating room were locked. Stacy alleges that she waited twenty minutes until a key was located to unlock the doors to the operating room. Stacy claims that the wait allowed the baby’s deprivation of oxygen, which resulted in the baby’s very poor condition post delivery. Stacy asserts that due to the negligent acts of Dr. Johnson and the medical personnel at Magnolia, her infant, Aleigha, suffered severe and permanent brain damage. Consequently, on October 16, 1998, Stacy, filed a complaint against Dr. Johnson, Magnolia, the City of Corinth (the City), and Alcorn County (the County), by and through its Board of Supervisors, alleging medical malpractice because Aleigha suffered severe and permanent brain damage and other injuries as a result of the delayed delivery.

¶ 3. On November 17, 1998, Dr. Johnson and representatives or authorized agents of Magnolia, the City, and the County were served with process. In December 1998, Dr. Johnson, Magnolia, the County, and the City filed separate answers and defenses. On December 29, 1998, Stacy filed a notice of service of plaintiffs response to Magnolia’s first requests for admission propounded to the plaintiff. On January 13, 1999, and January 19, 1999, Stacy filed responses to Dr. Johnson’s and Magnolia’s requests for admission and first set of interrogatories and request for production of documents, respectively. On January 19, 1999, the County and the City filed their first set of amended answers and defenses.

¶ 4. On February 22, 1999, Stacy filed a notice to take Dr. Johnson’s deposition. On August 25, 1999, on an ore tenus motion by Stacy, the trial judge ordered the dismissal of the claim against the County and the City with prejudice. On November 21, 2002, Stacy filed another notice to take Dr. Johnson’s deposition. In March 2003, Dr. Johnson filed a motion for substitution of counsel, which the trial court granted. On August 13, 2003, September 2, 2003, November 26, 2003, and January 14, 2004, Stacy filed notices to take Dr. Johnson’s deposition.

¶ 5. Thereafter, the court docket indicates the entry of a letter to the court administrator with reference to expedited handling of this matter dated on July 14, 2004; an order to expedite the handling of this case entered on July 29, 2004; and a letter and order to the parties with reference to the expedited handling of this matter dated August 9, 2004. On December 29, 2004, Stacy filed a motion to order mediation. Dr. Johnson filed a response to the motion on January 31, 2005, and Magnolia joined Dr. Johnson’s response on February 4, 2005. On February 22, 2005, the trial court dismissed this cause of action with prejudice after Stacy failed to show cause for her failure to prosecute. On March 4, 2005, Stacy filed a motion to reconsider and motion to reinstate the cause of action. Stacy explained that her failure to appear at the show cause hearing was because of a miscommunieation with the court administrator. The record reflects an affidavit by the court administrator was submitted stating that on February 18, 2005, she informed Stacy’s attorney it was not necessary to attend the show cause hearing on February 22, 2005, since a motion to compel mediation had been filed.

¶ 6. On March 7, 2005, a designation of expert witness, Dr. Shane Bennoch, was made by Stacy. On March 14, 2005, the trial court set aside the order to dismiss this cause stating that the order was erroneously entered, and the cause of action was returned to the active docket. On June 23, 2005, a redesignation of expert witness, Dr. Howard Cohn, was made. Dr. Cohn submitted an affidavit of expert opinion on February 17, 2006. On July 1, 2006, the trial court again entered an order to expedite the handling of this case. The court docket indicates that a letter was mailed on July 13, 2006, to the parties requiring their presence at a show cause hearing on November 2, 2006. Because Stacy again failed to appear before the trial court to show cause for her failure to proceed with prosecution of this cause of action in an expeditious manner, the trial court dismissed the ease with prejudice on November 2, 2006. In her motion to reinstate filed on December 7, 2006, Stacy asserted that her failure to appear at the second show cause hearing was because she did not receive any notice from the trial court to appear. On August 6, 2007, in an effort to consider reinstating this case, the trial court ordered Stacy to submit a proposed scheduling order within thirty days. Stacy failed to submit the proposed scheduling order by the September 6, 2007, deadline. On September 4, 2007, Dr. Johnson filed a motion and memorandum in opposition to Stacy’s motion to reinstate the case, which Magnolia joined. On October 2, 2007, the trial court denied Stacy’s motion to reinstate the cause and affirmed its prior dismissal. Stacy filed another motion for reconsideration on October 16, 2007, and on October 29, 2007, she filed a motion for an extension of time in which to appeal. The trial court granted the extension of time on October 24, 2007. The trial court subsequently denied the motion for extension of time on November 5, 2007. On December 20, 2007, the trial court set aside the order vacating the order denying Stacy’s motion for extension of time to appeal. On November 1, 2007, the trial court denied Stacy’s motion to reconsider. Feeling aggrieved, Stacy timely filed a notice of appeal on November 28, 2007.

DISCUSSION

Whether the trial court erred in dismissing this cause of action with prejudice

¶ 7. The trial court issued show cause orders for Stacy to appear on February 22, 2005, and November 2, 2006, to explain why her claim of medical negligence should not be dismissed for failure to prosecute. Stacy failed to appear at both show cause hearings.

¶ 8. Stacy argues that dismissal with prejudice is an extremely harsh remedy that should be reserved for the most egregious conduct. Stacy contends that there is nothing in the record to suggest that her conduct was egregious. Furthermore, Stacy asserts that such a sanction would deprive her of the opportunity to pursue her claim. Stacy claims that during the time that the show cause hearings were being ordered, attempts were being made to schedule depositions. Stacy maintains that she was not personally responsible for the delay. Lastly, Stacy contends that the defendants would not be prejudiced by allowing the case to be reinstated.

¶ 9. Mississippi Rule of Civil Procedure 41(d)(1) provides that:

In all civil actions wherein there has been no action of record during the preceding twelve months, the clerk of the court shall mail notice to the attorneys of record that such case will be dismissed by the court for want of prosecution unless within thirty days following said mailing, action of record is taken or an application in writing is made to the court and good cause shown why it should be continued as a pending case. If action of record is not taken or good cause is not shown, the court shall dismiss each such case without prejudice.

¶ 10. “[I]n reviewing a trial court’s decision to dismiss under [Rule] 41(b), this Court may reverse only if it finds that the trial court abused its discretion.” Wallace v. Jones, 572 So.2d 371, 375 (Miss.1990). “Mississippi does not set a time limit for the prosecution of an action once it has been filed.” Hensarling v. Holly, 972 So.2d 716, 720(¶ 8) (Miss.Ct.App.2007). However, “[t]he trial court has the power to dismiss for failure to prosecute as a means necessary to the orderly expedition of justice and the court’s control of its own docket.” Id. at 719(¶ 5). Such cases are dismissed with prejudice “if the record shows that a plaintiff has been guilty of dilatory or contumacious conduct, or has repeatedly disregarded the procedural directives of the court ... and where lesser sanctions would not serve the best interests of justice.” Id. at 720(¶ 8).

¶ 11. In addition to the aforementioned requirements, the court -will also evaluate the following “aggravating factors” to make its determination: “the extent to which the plaintiff, as distinguished from his counsel, was personally responsible for the delay, the degree of actual prejudice to the defendant, and whether the delay was the result of intentional conduct.” Id. at 720(¶ 9).

¶ 12. Reflecting on the conduct and the aggravating factors surrounding this case, we find that the record does suggest conduct which rises to the level of dilatoriness. From December 1998 until February 1999, Stacy made attempts to move this cause toward a resolution. Stacy filed responses to requests for admission, interrogatories, and production of documents. In August 1999, Stacy agreed to dismiss the claim against the County and the City. From September 1999 to November 2002, the record is void of any actions by Stacy to diligently pursue the cause of action.

¶ 13. Stacy filed a notice to take Dr. Johnson’s deposition in November 2002, three notices in the latter part of 2003, and one in January 2004. Notwithstanding that there were four notices to take Dr. Johnson’s deposition, none of the parties have in any way indicated that the deposition was taken. Entries on the clerk’s docket sheet in July 2004 and August 2004 indicate that the trial court notified Stacy’s attorney by letter and order of the need for the expeditious handling of this cause of action. Thus, Stacy was aware that the trial court had a duty to orderly dispose of the cases on its docket, which included this case against Dr. Johnson and Magnolia. On December 29, 2004, Stacy made an effort to resolve this cause by filing a motion to order mediation. However, there is no record of mediation having been ordered. The record fails to reflect any meaningful action taken by Stacy to prosecute this case. Therefore, the trial court scheduled a second show cause hearing. Because Stacy claimed that she did not receive notice of this hearing, the trial court extended her the benefit of the doubt and directed that she submit to the court a scheduling order within thirty days. When Stacy failed to submit the requested scheduling order, the trial court dismissed this case with prejudice.

¶ 14. Clearly, the trial court gave Stacy numerous opportunities to timely prosecute this matter. This Court cannot now say that the trial court abused its discretion in dismissing this case with prejudice.

¶ 15. Therefore, we find that this issue is without merit and affirm the judgment of the trial court.

¶ 16. THE JUDGMENT OF THE CIRCUIT COURT OF ALCORN COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE AND MYERS, P.JJ., GRIFFIS, ISHEE, ROBERTS AND MAXWELL, JJ., CONCUR. IRVING, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. BARNES AND CARLTON, JJ., NOT PARTICIPATING.

      . The record does not contain the letter; however, a photocopy of the clerk's docket, which is part of the record, reveals that a letter sent to the court administrator was filed with the court.

      . Again, the record does not contain this letter; however, a photocopy of the clerk's docket, which is part of the record, reveals that a letter was filed with the court.