Howard Indus., Inc. v. Hayes

376 So.3d 1201

HOWARD INDUSTRIES, INC.

v.Selina HAYES

NO. 2021-CT-00694-SCT

CONSOLIDATED WITH NO. 2021-CT-00695-SCT

Supreme Court of Mississippi.

10/19/2023

ATTORNEYS FOR APPELLANT: ROBERT P. THOMPSON, LAURA WALSH GIVENS, Ridgeland

ATTORNEYS FOR APPELLEE: ROGER K. DOOLITTLE, Jackson, FLOYD E. DOOLITTLE

EN BANC.

KITCHENS, PRESIDING JUSTICE, FOR THE COURT:

¶1. The Workers’ Compensation Commission imposed a $1,000 sanction against an employer’s attorney for submitting misleading documentation to an Administrative Judge (AJ).¹ The Court of Appeals affirmed the sanction and the Commission’s award of permanent disability benefits to the employee.² On certiorari review, we agree with the Court of Appeals that the sanction should be affirmed.

STATEMENT OF THE FACTS

¶2. Longtime Howard Industries employee Selina Hayes filed two workers’ compensation claims related to injuries incurred during her work as a coil winder.³ The coil winder job required lifting twenty to one hundred pounds of coiled wire above shoulder level. In the first injury, Hayes tripped and fell, injuring her head, neck, shoulder, and back. In the second injury, Hayes injured her right shoulder while lifting wire over her head. The second injury required surgery. Hayes returned to work after reaching maximum medical improvement (MMI). However, due to medical restrictions on her ability to lift weight over her head, Hayes was moved to the position of coil winder trainer. As a further accommodation, Hayes was restricted to working forty hours a week, even though consistent with the union contract, Howard Industries requires coil winder trainers to work overtime for as much as twenty hours a week.

¶3. The AJ’s determination of whether Hayes suffered a loss of earning capacity necessitated comparison of the coil winder position to the position of coil winder trainer. Howard Industries took the position that Hayes did not suffer a loss of wage-earning capacity because she returned to work after the second injury at a higher hourly rate than she had previously earned. Howard Industries hired Peter Mills as an expert to prepare a job analysis of the position of coil winder trainer. Mills’s first report, filed in a pre-hearing statement, included a form titled "Job Analysis Re: Selina Hayes." The form had blank spaces that Mills had filled in. The form listed the "Exact Job Title: Coil Winder Trainer - Dept. 131," "Training Required to Perform Duties," "Essential Job Responsibilities," and the hours required. Mills had filled in "Work Hours (time) 7:00 am to 5:30 pm" "6 days per week" and "Overtime: hrs. per week Subject to overtime - approximately 20 hrs. per week." The form listed the physical requirements of the job. Mills had checked "no" on a box indicating the job could not be modified temporarily or permanently.

¶4. However, Howard Industries attorney Richard Lewis Yoder submitted a supplemental pre-hearing statement with a "corrected Job Analysis." Attached was a modified job analysis form from Mills, again entitled "Job Analysis Re: Selina Hayes." The form was the same in all respects except it altered the time requirements for the coil winder trainer job. It listed "Work Hours (time) 7:00 am to 3:30 pm," "5 days per week." The box for "Overtime: hrs. per week" was left blank. Therefore, the modified form showed five days, not six, and no overtime. It said the job could not be modified temporarily or permanently.

¶5. At the initial hearing on Hayes’s claims before the AJ, Hayes’s attorney questioned Mills on the discrepancy between the two reports. As the Court of Appeals’ opinion summarizes:

¶18. Hayes called Howard Industries’[ ] expert Mills as her first witness. After being questioned about his company, the extent of work done for Howard Industries, and the income received from that work, Mills testified about Exhibit 14, the vocational report that Howard Industries provided on May 2, 2019. In the written portion of that report, Mills said that he was retained to perform "a job analysis of the position of coil winder trainer at Howard Industries, Department 131." He said that he visited the facility on February 26, 2019. During this two-hour visit, Mills spoke to Elton Buxton (supervisor), Walter Todd (supervisor and general foreman), and John Risher (health and safety manager). Mills also observed what coil winder trainers did. Mills said his job was to provide a job analysis of a coil winder trainer, which included an evaluation of the job’s physical demands.

¶19. Hayes’[s] attorney then presented Mills with his initial report, with its initial attachment provided by Howard Industries on April 30, 2019, which was entered into evidence as Exhibit 17. Mills admitted that the attachment to this initial report indicated that trainers work six days a week with approximately twenty hours of overtime, although he said he did not confirm this with the employees he had spoken to at the facility. He testified that Hayes did what all other trainers did, except she was only allowed to work five days a week. Mills agreed that other trainers worked overtime as noted in the initial attachment to his written report and that he did not know, but would not dispute, that coil winder trainers averaged between twenty-one and twenty-three hours a week. Contradicting the written portion of his report that stated lie had been retained to evaluate the job of coil winder trainer, Mills then testified that the first attach-ment to his written report was a "mistake" and that he meant to evaluate the job given to Hayes as a specific accommodation for her alone, not what the general position of coil winder trainer entailed. Mills and Hayes’s attorney continued discussing what Mills then characterized as "clerical errors" made in the first attachment to the report. Mills testified that the hours, days, and overtime worked in the that first attachment were "typographical error[s]" put in accidentally. Mills confirmed that he made no change to the written portion of his report to note that it was "revised" or "amended" in any way to indicate that it was now an evaluation of only the job given to Hayes to accommodate all her restrictions. Mills agreed that using the initial attachment to his report, Hayes could not perform the trainer’s job from the standpoint of hours. Mills also said that he changed the report because Howard Industries’s attorney Yoder called him and told him the information was incorrect. Mills said he no longer had his working notes in the file but that either his secretary or he inadvertently put the work hours and overtime information in the first report incorrectly.⁴

Howard Indus. Inc., — So.3d at ——, 2022 WL 6640398, at * 4. The AJ recessed the hearing to permit the parties to conduct discovery on the overtime requirements of the coil winder training job. Hayes subpoenaed wage records and expanded her number of witnesses to provide relevant testimony on the accurate earnings and overtime requirements for coil winder trainers.

¶6. When the hearing reconvened some months later, Hayes’s attorney solicited additional testimony from Mills in which he acknowledged that the job evaluations he prepares in other worker’s compensation cases are evaluations of the actual job rather than the accommodated job (consistent with his initial report in this case), and that had the AJ accepted his second report on its face, the conclusion would be that Hayes had not suffered a loss of wage-earning capacity. Hayes’s attorney moved to sanction Howard Industries and Yoder.

¶7. The AJ found that Hayes indeed had sustained a loss of wage-earning capacity. The AJ further sanctioned Howard Industries $1,000 for willful delay and ordered Howard Industries to pay Hayes’s attorney fees in the amount of $1,500 incurred because of the delay in the proceedings. The Commission amended the AJ’s order to "reflect that Richard Lewis Yoder, Jr., shall pay both the sanction and the attorney’s fee as the evidence before the Commission establishes that the report was changed at his specific direction and the report was offered into evidence before the Commission by Yoder." The Commission agreed that Hayes sustained a loss of wage-earning capacity but lowered the amount awarded for her permanent partial disability.⁵ Howard Industries appealed and Hayes cross-appealed. The Mississippi Court of Appeals affirmed the Commission, and we granted certiorari to address the limited question of the imposition of the sanction against Yoder.

DISCUSSION

[1–3] ¶8. Appellate courts will affirm the Commission’s findings of fact and order if supported by substantial evidence. Fought v. Stuart C. Irby Co., 523 So. 2d 314, 317 (Miss. 1988). Substantial evidence "means such relevant evidence as reasonable minds might accept as adequate to support a conclusion," evidence that "afford[s] a substantial basis of fact from which the fact in issue can be reasonably inferred." Delta CMI v. Speck, 586 So. 2d 768, 773 (Miss. 1991) (quoting State Oil & Gas Bd. v. Miss. Min. & Royalty Owners Ass’n, 258 So. 2d 767 (Miss. 1971)). An abuse of discretion standard is applied in reviewing a judge’s imposition of sanctions. Ill. Cent. Gulf R.R. Co. v. McLain, 174 So. 3d 1279, 1284 (Miss. 2015).

[4] ¶9. Mississippi Code Section 71-3-59(2) (Rev. 2021) provides:

If the full commission determines that proceedings in respect to a claim have been instituted, continued or delayed, including by way of appeal to the commission, without reasonable ground, the full commission shall require the party who has so instituted, continued or delayed such proceedings or the attorney advising such party, or both, to pay the reasonable expenses, including attorney’s fees, caused by such institution, continuance or delay to the opposing party.

This and similar sanctions are "analogous to Mississippi Rule of Civil Procedure 11." Gamma Healthcare Inc. v. Est. of Grantham, 334 So. 3d 85, 93-94 (Miss. 2022).

¶10. In imposing a $1,000 sanction on the...