REGINA PRATER, CLAIMANT
v.
MAGNOLIA BLUFF CASINO, EMPLOYER
AND
LUBA CASUALTY INSURANCE COMPANY. CARRIER
No. 1807799-R-2965-C
Mississippi Workers Compensation Decisions
The Mississippi Workers' Compensation Commission
July 1, 2021
APPEARING FOR CLAIMANT: Aisha Sanders, Esquire
APPEARING FOR EMPLOYER/CARRIER: J. Andrew Hughes, Esquire
ORDER
OF ADMINISTRATIVE JUDGE DISMISSING CLAIM
JENNIFER F.NICAUD, ADMINISTRATIVE JUDGE
Regina
Prater (hereinafter referred to as "Claimant")
filed a Petition to Controvert on October 29, 2020, alleging
she suffered a work related injury in the course and scope of
her employment on August 4, 2018 with her Employer, Magnolia
Bluff Casino (hereinafter referred to as "
Casino"). Specifically, Claimant alleged she "was
walking on the casino floor and something on the floor caused
her to lose her footing and fall." The Employer and
Carrier filed an Answer on November 24, 2020, admitting said
accident and injury but denying any further liability,
including but not limited to, any disability or loss of wage
earning capacity. The Employer and Carrier asserted several
affirmative defenses including "all statute of
limitations defenses, statutory or otherwise, which may be
shown by proof to be applicable to the premises."
1. On
or about December 9,2020, the Employer and Carrier filed a
Motion to Dismiss. The premises of Employer and Carrier's
Motion to Dismiss is that this claim should be dismissed
pursuant to Mississippi Code Annotated §71-3-35 as the
Claimant's Petition to Controvert (Exhibits 1A, l)was
filed on October 29,2020, over two years from the date of the
injury. The Employer and Carrier's Motion to Dismiss was
initially noticed on December 15,2020, to be heard on March
8, 2021.
2.
Pursuant to Claimant's counsel' s email of March
5,2021, regarding her illness, this matter was continued by
Order on March 8, 2021. On March 15, 2021, the hearing on the
motion was continued to April 7,2021, due to Claimant's
counsel's illness and recuperation. The hearing on the
motion was re-scheduled on athird occasion to May 26, 2021,
at 2:30 p.m. due to medical issues of the Claimant's
counsel who would not be available to represent her client
until May 19,2021. On May 25,2021, pursuant to Claimant's
counsel's email and request, this matter was continued
until June 3, 2021. On June 2, 2021, at 4:36 p.m., Claimant
filed a response to the pending Motion to Dismiss filed on
December 15, 2020. A hearing was held on June 3, 2021;
however, as the Claimant's counsel filed a response which
attached an affidavit of the Claimant on June 2, 2021 at 4:36
p.m, it was determined that an in-person hearing would be
needed to obtain Claimant's testimony in light of
Claimant's argument that her employer was estopped from
asserting a statute of limitations defense as she was mislead
into believing that her employer would pay the indemnity
benefits she alleged were owed without the necessity of
filing a Petition to Controvert. In addition, Claimant
alleged that she never received notice that the
Employer/Carrier denied her claim as the Employer/Carrier
failed to file a B-31 form which also misled the Claimant as
she did not believe the Employer/Carrier denied her claim.
3.On
June 17, 2021, the Employer/Carrier filed an Amended Motion
to Dismiss attaching Exhibits 1-19 which was noticed to be
heard at the United States District Court for the Western
District of Mississippi in Natchez, Mississippi, on June 22,
2021, at 2:00 p.m. To date, Claimant has not filed a response
to the Employer/Carrier's Amended Motion to Dismiss.
ISSUES
1. The
issue before the Court is whether the Claimant's claim is
barred by the two-year statute of limitations.
2.
Whether the Employer/Carrier is estopped from asserting the
statute of limitations as a bar to a claim for benefits due
to the fact that the Employer intended to mislead the
Claimant and the employee reasonably relied on such
statements or actions (or their lack of action).
EXHIBITS
EMPLOYER
AND CARRIER'S EXHIBITS [1]
Exhibit
1A: Petition to Controvert-Attached to the Employer and
Carrier's Motion to Dismiss
Exhibit
2A: Letter dated August 29,2018 from Aisha Sanders to the
Carrier-Attached to the Employer and Carrier's Motion to
Dismiss
Exhibit
1: Petition to Controvert dated October 29, 2020-Attached to
the Employer and Carrier's Amended Motion to Dismiss
Exhibit
2: Receipt from MWCC of First Report of Injury marked
received on September 14,2018 from MWCC Claims Department and
marked "K Raiford 9/11/18, Medical Only"- -Attached
to the Employer and Carrier's Amended Motion to Dismiss
Exhibit
3: First Report of Injury - -Attached to the Employer and
Carrier's Amended Motion to Dismiss
Exhibit
4: Amended First Report of Injury - - Attached to the
Employer and Carrier's Amended Motion to Dismiss
Exhibit
5: Letter of Representation dated August 29, 2018 from Aisha
Sanders to the Carrier/Attention: Katie - Attached to the
Employer and Carrier's Amended Motion to Dismiss
Exhibit
6: Letter from Carrier dated September 5, 2018 from Katie
Raiford to Aisha Sanders acknowledging receipt of letter of
representation- -Attached to the Employer and Carrier's
Amended Motion to Dismiss
Exhibit
7: Email of Katie Raiford to Aisha Sanders dated September
11, 2018 seeking medical records and work status - -Attached
to the Employer and Carrier's Amended Motion to Dismiss
Exhibit
8: Emails and response to Sanders' Email of Jodi Roy
dated September 20, 2018 seeking Claimant's recorded
statement and Aisha Sanders response-Attached to the Employer
and Carrier's Amended Motion to Dismiss
Exhibit
9: November 1, 2018 letter from Katie Raiford to Aisha
Sanders as to Claimant's return to work- -Attached to the
Employer and Carrier's Amended Motion to Dismiss -
-Claimant has objected to this Exhibit as she claims she
never received it. Katie Raiford testified under oath that
she sent the letter. Claimant testified that she returned to
her position at Magnolia Bluff Casino on November 9, 2018.
Attached to the Employer and Carrier's Amended Motion to
Dismiss Exhibit (Claimant objected this Exhibit)
Exhibit
10: Claimant's Timecard record - -Attached to the
Employer and Carrier's Amended Motion to Dismiss
Exhibit
11: Emergency Room records from Merit Health Natchez from
examination of August 15, 2018 by Dr. Scott Wolfe reflecting
that Claimant's symptoms were moderate and improved while
she was in the Emergency Room- -Attached to the Employer and
Carrier's Amended Motion to Dismiss
Exhibit
12: Handwritten note dated August 16,2018 from Dr. England-
-Attached to the Employer and Carrier's Amended Motion to
Dismiss
Exhibit
13: Return to Work Form/Work Excuse provided by
Claimant's counsel to Employer/Carrier's counsel in
June 2021- -Attached to the Employer and Carrier's
Amended Motion to Dismiss2
Exhibit
14: Dr. England's handwritten return to work form dated
August 30, 2018 allowing Claimant to return to work with the
restrictions of light duty and no lifting above five pounds
(the Employer is not specific)- - Attached to the Employer
and Carrier's Amended Motion to Dismiss
Exhibit
15: CT Scan Report dated September 17, 2018 - -Attached to
the Employer and Carrier's Amended Motion to Dismiss
Exhibit
16: Hand written medical records of Dr. England from
examination of September 24, 20183- -Attached to the Employer
and Carrier's Amended Motion to Dismiss
Exhibit
17: Hand written medical records of Dr. England from
examination of November 8, 20184- - Attached to the Employer and
Carrier's Amended Motion to Dismiss
Exhibit
18: December 11,2018 referral to Orthopedic by Dr. England-
-Attached to the Employer and Carrier's Amended Motion to
Dismiss
Exhibit
19: Dr. Monderson's medical records dated January 3, 2019
- April 16, 2019 [5]Attached to the Employer and
Carrier's Amended Motion to Dismiss
CLAIMANT'S
EXHIBITS
Exhibit
1: A composite of Dr. England's medical records
Exhibit
2: August 30, 2018 Letter from MWCC received by Claimant with
the handwritten note by the Claimant stating "Claim
Examiner Katie Raiford 225-289-5822"
SUMMARY
AND REVIEW OF THE EVIDENCE
A
hearing was held on June 22...
