Harper Ex Rel. Harper v. Banks, Finley, White & Co. of Mississippi

IN THE SUPREME COURT OF MISSISSIPPI

NO. 2012-CT-00811-SCT

MILTON HARPER, DECEASED, BY AND
THROUGH HIS DEPENDENTS, MAGGIE
HARPER AND ANDREA HARPER

BANKS, FINLEY, WHITE & CO. OF
MISSISSIPPI, P.C.

ON WRIT OF CERTIORARI

DATE OF JUDGMENT: 09/27/2011
TRIAL JUDGE: HON. WILLIAM A. GOWAN, JR.
TRIAL COURT ATTORNEYS: WILLIE T. ABSTON
PHILLIP ANDREW LAIRD, JR.
DEBRA M. BROWN
COURT FROM WHICH APPEALED: CIRCUIT COURT OF THE FIRST JUDICIAL
DISTRICT OF HINDS COUNTY
ATTORNEY FOR APPELLANTS: WILLIE T. ABSTON
ATTORNEYS FOR APPELLEE: PHILLIP ANDREW LAIRD, JR.
WILLIAM ANTHONY DAVIS, III
H. THOMAS WELLS, III
NATURE OF THE CASE: CIVIL - WORKERS’ COMPENSATION
DISPOSITION: THE JUDGMENT OF THE COURT OF
APPEALS IS AFFIRMED IN PART AND
REVERSED IN PART. THE JUDGMENT OF
THE HINDS COUNTY CIRCUIT COURT IS
AFFIRMED IN PART, REVERSED IN PART,
AND RENDERED IN PART. THE
JUDGMENT OF THE WORKERS’
COMPENSATION COMMISSION IS
AFFIRMED - 07/02/2015
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

EN BANC.

KITCHENS, JUSTICE, FOR THE COURT:
¶1. Milton Harper, the managing partner and president of Banks, Finley, White &

Company of Mississippi (“Banks”), suffered a severe stroke on August 3, 2000, and died of

another stroke on July 10, 2001. His dependents sued Banks for workers’ compensation

benefits. The administrative law judge and the Workers’ Compensation Commission held

that Harper’s injuries and death arose out of the scope and course of his employment at

Banks. On appeal, the Circuit Court of the First Judicial District of Hinds County agreed that

substantial evidence in the record supported the Commission’s conclusion that Harper’s

stroke arose out of his employment, but that court held that Harper’s dependents were barred

from recovering workers’ compensation benefits because Harper had failed to obtain

workers’ compensation insurance for Banks. In turn, the Court of Appeals in Harper v.

Banks, Finley, White & Co. of Mississippi, 136 So. 3d 462, 467 (Miss. Ct. App. 2014), held

that Harper’s dependents were not barred from recovery because Section 71-3-79 of the

Mississippi Code1 allows members of partnerships to exempt themselves from workers’

Acceptance of a premium on a policy securing to an employee compensation,
either alone or in connection with other insurance, shall estop the carrier so
accepting from pleading that the employment of such employee is not covered
under this chapter or that the employment is not carried on for pecuniary gain.

When any member of a partnership, firm, or association who does or does not
perform manual labor, and where there is coverage of fellow employees, elects
to take coverage under the provisions of this chapter, the intent of the insured
as well as acceptance by the carrier shall be shown by endorsement to the
policy. Any such affirmative action by the parties shall entitle said members
or officers to the benefits enjoyed by an employee under this chapter. Every
executive officer elected or appointed and empowered in accordance with a
charter and bylaws of a corporation, other than nonprofit charitable, fraternal,
cultural, or religious corporations or associations, shall be an employee of
such corporation under this chapter, provided that said executive officer may

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compensation coverage by giving notice in writing. Id. at 466. Because Harper had not opted

out of coverage in writing, the Court of Appeals held that Banks was required to provide

workers’ compensation benefits to Harper’s beneficiaries. Id. On writ of certiorari, we hold

that the Court of Appeals erred in applying Section 71-3-79 of the Mississippi Code to the

facts of this case. Because Banks did not have workers’ compensation insurance coverage,

there was no coverage for Harper to opt out of in writing as contemplated by Section 71-3-

79. Instead, we hold that Section 71-3-52 of the Mississippi Code controls the analysis of this

reject said coverage by giving notice in writing to the carrier of this election
not to be covered as an employee.

Any such executive officer of a nonprofit charitable, fraternal, cultural, or
religious corporation or association may, notwithstanding any other provision
of this chapter, be brought within the coverage of its insurance contract by any
such corporation or association by specifically including such executive
officer in such contract of insurance. The election to bring such executive
officer within the coverage shall continue for the period such contract of
insurance is in effect, and during such period such executive officers thus
brought within the coverage of the insurance contract shall be employees of
such corporation or association under this chapter.

Miss. Code Ann. § 71-3-79 (Rev. 2011) (emphasis added).
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The following shall constitute employers subject to the provisions of this
chapter:

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case: because Banks had more than five employees, it was required to obtain workers’

compensation insurance and provide workers’ compensation benefits to its employees.

Moreover, we hold that the Workers’ Compensation Commission’s finding that Harper

suffered a fatal injury through the course of his employment at Banks is supported by

substantial evidence.

FACTS AND PROCEDURAL HISTORY

¶2. The relevant facts are adequately stated in the Court of Appeals’ opinion:

Harper was the managing partner and president of the accounting firm
Banks, Finley, White & Company of Mississippi (Banks). He was first
diagnosed with high blood pressure on January 4, 1995, by Dr. Marvin Jeter.
In October 1995, Harper went to the emergency room after becoming dizzy.
At that time, Dr. Jeter began prescribing him blood-pressure medication.
Harper saw Dr. Jeter four times from 1995 until 1998. During that time,
Harper would intermittently take his blood-pressure medication, which
resulted in his blood pressure ranging from normal to elevated.

On August 3, 2000, Harper was rushed to the emergency room at St.
Dominic Hospital. Dr. Jeter examined Harper, noted that he had not been
taking his blood-pressure medication, and concluded that he had suffered a
stroke. Dr. Jeter referred Harper to Dr. Salil Tuwari, a neurologist. After a
series of tests, it was determined that Harper had suffered multiple
small-vessel strokes in the brain.

its employee who is the owner of fifteen percent (15%) or more of its stock in
a corporation, if such sole proprietor, partner or employee also voluntarily
agrees thereto in writing. Any sole proprietor, partner or employee owning
fifteen percent (15%) or more of the stock of his/her corporate employer who
becomes exempt from coverage under the Workers’ Compensation Law shall
be excluded from the total number of workers or operatives toward reaching
the mandatory coverage threshold level of five (5).

Miss. Code Ann. § 71-3-5 (Rev. 2011).

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After resting for two weeks, Harper returned to work, initially part-time
and then to his usual full-time schedule of 8:00 a.m. until 6:30 or 7:30 p.m.
However, Harper did not work as many weekends as he did prior to his stroke.

In the early morning of Sunday, July 8, 2001, Harper woke up to go to
the restroom. When he returned, Harper’s wife, Maggie, asked him a question,
and Harper responded with unintelligible noises and became nonresponsive.
Harper was taken by ambulance to the University of Mississippi Medical
Center, immediately put on life support in the intensive-care unit, and never
regained consciousness. On July 10, 2001, Harper was taken off life support
and died from the stroke he had suffered two days earlier.

On July 29, 2002, Maggie and her daughter, Andrea Harper, filed two
petitions to controvert with the Commission, seeking workers’ compensation
benefits for Harper’s strokes on August 3, 2000, and July 8, 2001. The
administrative judge (AJ) found that Harper’s strokes were too proximally
connected to separate and combined the cases. The AJ held a hearing that
began on September 25, 2008, and concluded on November 12, 2008.

The AJ found Maggie and Andrea proved that Harper’s work-related
stress caused his high blood pressure, which, in turn, caused his stroke on
August 3, 2000, and his death on July 10, 2001. The AJ found that Maggie and
Andrea proved a compensable workers’ compensation claim, and that Banks
did not prove Harper had a preexisting condition to warrant denial of the claim
or apportionment.

Banks appealed to the Commission, which heard the case on December
7, 2009. The Commission affirmed the AJ’s findings with regard to the
compensability of the claim. However, the Commission held that Harper had
a clearly identifiable preexisting condition that materially contributed to his
death, and it apportioned the benefits by sixty-five percent. One commissioner
dissented, stating that he would deny the claim because the stroke was not in
any way work related.

Banks appealed to the Hinds County Circuit Court. The circuit court
agreed that substantial evidence supported the Commission’s findings that: (1)
Harper’s strokes arose out of and in the course of employment; (2) Harper was
an officer of a corporation; and (3) Harper’s workers’ compensation benefits
should be apportioned. But the circuit court reversed the Commission’s
judgment because it found that Harper’s decision not to obtain workers’
compensation insurance disqualified him from receiving benefits that he would
have otherwise been entitled to receive.

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Harper, 136 So. 3d at 464-65.

¶3. The Court of Appeals affirmed in part and reversed in part the Hinds County Circuit

Court’s decision. Id. at 465-67. The court found that “[a]s president of Banks, Harper was

responsible for making decisions regarding insurance” and that “Harper erroneously

determined that Banks did not have the requisite number of employees to legally mandate

Banks to purchase workers’ compensation insurance.” Id. at 465. Ultimately, based on an

error in statutory interpretation, Harper chose not to obtain workers’ compensation insurance

for Banks. Id.

¶4. However, the Court of Appeals held that Harper’s decision not to obtain workers’

compensation insurance did not preclude his dependents from recovering workers’

compensation benefits from Banks. Id. at 456. Applying Section 71-3-79 of the Mississippi

Code, the court held that “[the statute] clearly states that an ‘executive officer may reject

[the] coverage by giving notice in writing to the carrier of this election not to be covered as

an employee.”’ Harper, 136 So. 3d at 466 (quoting Miss. Code Ann. § 71-3-79). Thus,

because Harper did not reject workers’ compensation insurance coverage in writing, the

Court of Appeals found that he had not waived coverage by failing to obtain insurance.

Harper, 136 So. 3d at 466.

¶5. Moreover, the Court of Appeals held that evidence in the record supported the

Commission’s decision that Harper’s strokes and subsequent death were caused by his stress

at work. Id. at 456-57.

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¶6. Banks filed with this Court a Petition for Writ of Certiorari. We granted Banks’s

petition to review two issues: (1) whether Section 71-3-79 of the Mississippi Code applies

to the facts of this case and (2) whether the Workers’ Compensation Commission’s finding

that Harper suffered a compensable injury is supported by substantial evidence.

DISCUSSION

I. Whether Section 71-3-79 of the Mississippi Code applies to the facts
of this case.

¶7. In reviewing questions of law, this Court applies a de novo standard of review.

Natchez Equip. Co., Inc. v. Gibbs, 623 So. 2d 270, 273 (Miss. 1993). When engaging in

statutory interpretation, this Court’s duty is “to neither broaden nor restrict the legislative

act.” Miss. Dep’t of Transp. v. Allred, 928 So. 2d 152, 156 (Miss. 2006). Additionally,

“courts cannot restrict or enlarge the meaning of an unambiguous statute.” Green v. Cleary

Water, Sewer & Fire Dist., 910 So. 2d 1022, 1027 (Miss. 2005).

[When] considering a statute passed by the Legislature, . . . the first question
a court should decide is whether the statute is ambiguous. If it is not
ambiguous, the court should simply apply the statute according to its plain
meaning and should not use principles of statutory construction. Whether the
statute is ambiguous or not, the ultimate goal of this Court is to discern and
give effect to the legislative intent.

Allred, 928 So. 2d at 154 (quoting City of Natchez v. Sullivan, 612 So. 2d 1087, 1089 (Miss.

1992) (citations omitted)).

¶8. Section 71-3-79 of the Mississippi Code, provides:

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When any member of a partnership, firm, or association who does or does not
perform manual labor, and where there is coverage of fellow employees, elects
to take coverage under the provisions of this chapter, the intent of the insured
as well as acceptance by the carrier shall be shown by endorsement to the
policy. Any such affirmative action by the parties shall entitle said members
or officers to the benefits enjoyed by an employee under this chapter. Every
executive officer elected or appointed and empowered in accordance with a
charter and bylaws of a corporation, other than nonprofit charitable, fraternal,
cultural, or religious corporations or associations, shall be an employee of such
corporation under this chapter, provided that said executive officer may reject
said coverage by giving notice in writing to the carrier of this election not to
be covered as an employee. . . .

Miss. Code Ann. § 71-3-79 (Rev. 2011) (emphasis added). Section 71-3-79 is not ambiguous.

As such, for this statute to be applicable, there must have been (1) coverage extended by a

carrier, (2) which was provided by the employer, and (3) was accepted or denied by

employees. In the instant case, none of the prescribed events occurred. There was no policy

providing coverage to any Banks employee.

¶9. The Workers’ Compensation Commission found that “[t]here can be no argument,

therefore, that Mr. Harper elected not to be covered as an executive officer because there was

no policy from which he could have otherwise excluded himself.” However, the Court of

Appeals, relying on Section 71-3-79, held that “[a]t no point did Harper reject the coverage

by giving notice in writing.” Harper, 136 So. 3d at 467. The Court of Appeals’ reliance on

Section 71-3-79 is misplaced, because workers’ compensation insurance coverage for Banks

did not exist.

¶10. Coverage must exist prior to any employee’s “reject[ing] said coverage.” Miss. Code

Ann. § 71-3-79 (Rev. 2011). During Harper’s tenure with the firm, the firm chose not to

purchase workers’ compensation insurance. Thus, neither Harper nor any eligible employee

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of Banks could “reject said coverage” by written notice to a carrier, because there was no

carrier to whom Harper or any eligible employee could provide written notice to reject

nonexistent coverage.

¶11. The record is clear that Banks had not purchased workers’ compensation insurance

coverage for any of its employees at the time of Harper’s strokes and subsequent death. It

also must be determined whether Banks was an employer subject to the Act. Section 71-3-5

of the Mississippi Code provides:

The following shall constitute employers subject to the provisions of this
chapter:

Every person, firm and private corporation, including any public service
corporation but excluding, however, all nonprofit charitable, fraternal, cultural,
or religious corporations or associations, that have in service five (5) or more
workmen or operatives regularly in the same business or in or about the same
establishment under any contract of hire, express or implied.
...
Any employer may elect, by proper and written action of its own governing
authority, to be exempt from the provisions of the Workers’ Compensation
Law as to its sole proprietor, its partner in a partnership or to its employee who
is the owner of fifteen percent (15%) or more of its stock in a corporation, if
such sole proprietor, partner or employee also voluntarily agrees thereto in
writing. Any sole proprietor, partner or employee owning fifteen percent
(15%) or more of the stock of his/her corporate employer who becomes
exempt from coverage under the Workers’ Compensation Law shall be
excluded from the total number of workers or operatives toward reaching the
mandatory coverage threshold level of five (5).

Miss. Code Ann. § 71-3-5 (Rev. 2011) (emphasis added).

¶12. The Workers’ Compensation Commission found that Banks employed a minimum of

five people. The record reflects that Banks Finley employed at least the following people:

Milton Harper, Kaiser Brown, David Ewing, Jr., Dian Brown, and Robert Sultan. Because

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Banks employed five people, it is clear that Banks fell within the provisions of Section 71-3-

5 during the time relevant to Harper’s claim.

¶13. Section 71-3-5 provides a method by which an employer can exempt itself from the

provisions of workers’ compensation law, by excluding certain employees from the total

number of workers. Nothing in the record indicates that Banks provided any written notice

that it was electing to exempt Harper from coverage, nor did it provide any evidence that

Harper agreed with Banks’s exemption of Harper from coverage.

¶14. Chief Justice Waller’s dissent, relying upon a case from Maryland based upon that

state’s workers’ compensation statutes, avers that Harper waived workers’ compensation

coverage by failing to obtain workers’ compensation insurance. Mississippi law mandates

that the state’s worker’s compensation laws apply to “[e]very person, firm and private

corporation, including any public service corporation . . . that have in service five (5) or more

workmen or operatives regularly in the same business.” Miss. Code Ann. § 71-3-5 (Rev.

2011) (emphasis added). Harper unequivocally was covered by Mississippi’s workers’

compensation laws at the time of his death.

¶15. Furthermore, our Legislature provided means by which partners such as Harper can

waive, through express writing, the applicability of workers’ compensation coverage. Id.

(“Any employer may elect, by proper and written action of its own governing authority, to

be exempt from the provisions of the Workers’ Compensation Law . . . .”). A common rule

of statutory construction is expressio unius est exclusio alterius, which translates as

“expression of the one is exclusion of the other.” See McCoy v. McRae, 204 Miss. 309, 317

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(Miss. 1948). This Court has explained this venerable principle: “where a statute enumerates

and specifies the subject or things upon which it is to operate, it is to be construed as

excluding from its effect all those not expressly mentioned or under a general clause.”

Southwest Drug Co. v. Howard Bros. Pharmacy of Jackson, Inc., 320 So. 2d 776, 779

(Miss. 1975) (citing Akers v. Estate of Johnson, 236 So. 2d 437 (Miss.1970)). Thus, by

providing a specific mechanism through which partners can waive the applicability of

Mississippi’s workers’ compensation laws, the Legislature has foreclosed all other forms of

waiver, including waiver through inaction. The Waller dissent seeks to superimpose onto

Mississippi’s workers’ compensation statutes a provision for waiver through inaction, even

though this has not been included in the applicable statutory framework.

¶16. Ultimately, nothing in the record supports the conclusion that the accounting firm was

exempt from the Act and did not owe benefits to the dependents of one of its partners.

II. Whether the Workers’ Compensation Commission’s finding that
Harper suffered a compensable injury is supported by substantial
evidence.

¶17. The standard of review utilized by this Court when considering an appeal of a decision

of the Workers’ Compensation Commission is well settled: “[t]he findings and order of the

Workers’ Compensation Commission are binding on this Court so long as they are ‘supported

by substantial evidence.’” Vance v. Twin River Homes, Inc., 641 So. 2d 1176, 1180 (Miss.

1994) (quoting Fought v. Stuart C. Irby Co., 523 So. 2d 314, 317 (Miss. 1988)). Substantial

evidence requires more than a “mere scintilla” of evidence, Johnson v. Ferguson, 435 So.

2d 1191, 1195 (Miss. 1983), but it does not rise to the level of “a preponderance of the

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evidence.” Babcock & Wilcox Co. v. McClain, 149 So. 2d 523, 523-24 (Miss. 1963); accord

Delta CMI v. Speck, 586 So. 2d 768, 773 (Miss. 1991).

¶18. We are bound to the Workers’ Compensation Commission’s findings of fact even

though the evidence would convince us otherwise if we were the ultimate fact finder. Barnes

v. Jones Lumber Co., 637 So. 2d 867, 869 (Miss. 1994). “This Court will overturn a

[C]ommission decision only for an error of law or an unsupportable finding of fact.” Georgia

Pacific Corp. v. Taplin, 586 So. 2d 823, 826 (Miss. 1991) (citations omitted); see also Hedge

v. Leggett & Platt, Inc., 641 So. 2d 9, 12 (Miss. 1994). This Court therefore cannot overturn

a Commission decision unless it finds that the decision was “arbitrary and capricious.”

Taplin, 586 So. 2d at 826. Moreover, even “[d]oubtful cases should be resolved in favor of

compensation, so as to fulfill the beneficial purposes” of statutory law. Miller Transporters,

Inc. v. Guthrie, 554 So. 2d 917, 918 (Miss. 1989).

¶19. In workers’ compensation cases, the claimant bears the burden of proving by a “fair

preponderance of the evidence” the following elements: (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, 641 So. 2d at 13. Thus, we must review the record

for the purpose of deciding whether there is evidence supporting the Commission’s decision.

We are not to engage in a de novo balancing of the evidence, as the Coleman dissent

encourages us to do here. See R.C. Petroleum, Inc. v. Hernandez, 555 So. 2d 1017, 1021

(Miss. 1990). Significantly, the administrative law judge, the Workers’ Compensation

Commission, the Hinds County Circuit Court, and the Mississippi Court of Appeals have

12
reviewed the record and have decided that there is substantial evidence in the record

supporting Harper’s claim. Furthermore, the Coleman dissent omits and therefore fails to

consider the bulk of the evidence supporting the Commission’s decision.

¶20. Dr. Tiwari, an expert for Harper’s beneficiaries and a physician who treated Milton

Harper on August 3, 2000, after Harper’s first stroke, testified that Harper did not have any

of the habits or conditions that are likely causes of strokes, including “elevated cholesterol,

smoking, obesity, sedentary lifestyle, and high blood pressure.” He averred that “he did have

high blood pressure, but it wasn’t terribly high.” He also treated Harper on January 30, 2001,

after Harper had complained of uncontrollable laughter, an unusual stroke symptom. Of that

visit, Dr. Tiwari opined that, of potential causes for strokes, “we didn’t identify anything

other than high blood pressure . . . . The diastolic was a hundred, and many times you can

find normal people that go visit a doctor with a bottom number being about a hundred, partly

because they’re stressed.”

¶21. Dr. Jeter, an expert for Harper’s beneficiaries and Harper’s primary care physician

who treated his high blood pressure, testified that Harper had “labile hypertension,” or blood

pressure constantly in flux due to his environment. This doctor reported that Harper’s blood

pressure would fluctuate . . . from a normal range to be elevated.” Dr. Jeter stated that the

blood pressure of a person with labile hypertension will change “when they get uptight . . .

.” He further testified that there were no obvious contributing causes to Harper’s strokes

other than high blood pressure.

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¶22. Dr. Jeter also testified that Harper’s personality as a “workaholic” was to blame for

the fluctuations of his blood pressure, adding that “[t]he Type A personality . . . puts

themselves under a lot of stress because they have to get everything done.” He said that his

impression of Harper was that he was a “workaholic” and that he was “continually push,

push, push[ing].” Dr. Jeter said that this was “probably contributing to his blood pressure

. . . being elevated.”

¶23. Dr. Jeter discussed at length the interrelationship among vascular disease,

hypertension, and stress. This physician stated that “stress can be an aggravated factor. . .

. [V]ascular changes and stress cause[] increased [blood] pressure, and that can affect the

vascular system.” He characterized stress as a “contributing factor” to Harper’s death.

¶24. Dr. Davis, a neurosurgeon who did not treat Harper, testified on behalf of the

accounting firm, opining that Harper’s strokes were caused by his high blood pressure.

¶25. This medical testimony leads to several conclusions. First, Milton Harper had labile

hypertension, a condition in which stress causes a person’s blood pressure to rise due to

stress. Second, other than high blood pressure, there were no medical causes of Milton

Harper’s stroke. Third, Harper died of a stroke. The only component of a viable worker’s

compensation claim left lacking was a causal connection between the stress causing Harper’s

hypertension and Harper’s work. See Hedge, 641 So. 2d at 13 (requiring proof of an

accidental injury arising out of employment and a causal connection between the injury and

the death or claimed disability).

¶26. Justice Coleman’s dissent relies upon the following testimony of Dr. Jeter:

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Q. And you cannot state to a reasonable degree of medical certainty or
probability that Mr. Harper’s death was caused by his job at any point?

A. As I’ve stated before, the only thing you can say is that stress has an effect
on increasing high blood pressure, and high blood pressure can contribute to
a stroke. Now, those are basic facts.

Q. Okay. We are talking specifically here about Mr. Harper. You cannot say
to a reasonable degree of medical probability that Mr. Harper’s job contributed
to or caused his death?

A. No. It’s a possibility.

¶27. Apparently in reliance upon this lone reference to the record, Justice Coleman’s

dissent summarizes Dr. Jeter’s testimony thusly: “Dr. Jeter testified that it was possible that

Harper’s uncontrolled blood pressure could have caused his fatal stroke. He also testified

that stress could have been a factor in Harper’s death.” Coleman Diss. ¶ 48. This is an

inaccurate representation of Dr. Jeter’s testimony. He plainly testified that it was a possibility

that the stress of Harper’s work contributed to Harper’s death. Dr. Jeter did not equivocate

about the fact that stress causes hypertension and that Harper had no conditions which

typically contribute to strokes other than hypertension. Furthermore, the Coleman dissent

ignores the testimony of the other medical experts who testified at the workers’ compensation

hearing. Strictly speaking, the record does not support Justice Coleman’s characterization of

the expert testimony in this case.

¶28. The Coleman dissent further posits that there was no reliable evidence of causation

in this case. Relying on Betchel Corporation v. Phillips, 591 So. 2d 814 (Miss. 1991), the

dissent opines that “medical evidence is required to prove causation.” Coleman Diss. ¶ 46.

First, as discussed previously, there was expert testimony in this case unequivocally linking

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Harper’s stress to his labile hypertension and to his stroke. The evidence adduced at the

hearing proves that the only known cause of Harper’s stress was his work for Banks. It is

fundamental in our justice system that lay witnesses can testify only with respect to their own

experiences and knowledge. See M.R.E. 701 (requiring first-hand knowledge for the

admissibility of a lay opinion); M.R.E. 703 (“The facts or data in the particular case upon

which an expert bases an opinion or inference may be those perceived by or made known to

the expert at or before the hearing.”). Nowhere in case law from this Court or in Mississippi

statutes can be found the principle espoused by the Coleman dissent that the worker’s

compensation claim must be built upon the testimony of one expert alone. But see R.C.

Petroleum, Inc., 555 So. 2d at 1021 (“Circumstantial evidence may be used to establish the

elements [of a workers’ compensation claim].”); L.B. Priester & Son, Inc. v. Bynum’s

Dependents, 247 Miss. 664, 157 So. 2d 399 (1963) (same). Moreover, this evidentiary

standard advocated by the Coleman dissent, if adopted widely throughout our jurisprudence,

would be unworkable and unrealistic. For example, what murder conviction could stand in

the light of this standard? A forensic pathologist can testify that a decedent’s cause of death

was a shotgun wound to the head. That doctor usually cannot, however, testify about the

shooter’s identity, because that information is outside his knowledge and expertise. The

same is true here. Given that physicians have established that Harper’s high blood pressure

was caused by stress and that his fatal stroke was caused by high blood pressure, we must

look to first-hand witnesses about the causes of Harper’s stress, not entirely to the testimony

of physicians. See M.R.E. 701; R.C. Petroleum, Inc., 555 So. 2d at1021.

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¶29. Milton Harper’s widow, Maggie Harper, testified that Harper was a “workaholic” and

that he was “constantly working.” She also stated that Harper kept saying that he was getting

behind at work and having problems balancing being out of town for audits and trying to

manage the office at the same time. Maggie said that her husband was the type of person

who liked to perform well and who pushed himself at work to receive bonuses. Over the

years, Harper’s work stress began to take a toll on him. When his wife would advise him to

cut back, he would respond that he had “to go make a dollar.” She also testified that he told

her that his stress had nothing to do with her or with their family life.

¶30. Harper’s coworker Kaiser Brown testified that Harper took responsibility for most of

the firm’s largest and most complicated engagements. He averred that Harper worked from

8:00 a.m. until 6:30 or 7:00 p.m. on week nights and usually worked some on the weekend.

Kaiser also testified that, around the time of his death, Harper had been having issues with

another partner at Banks about profit sharing and that several heated disagreements between

them had occurred.

¶31. Dian Parkinson, another coworker of Harper’s at the firm, confirmed that Harper

would work from about 8 a.m. until 7 p.m. and stated that Harper had more responsibilities

than anyone else at Banks because he was the president. She also testified that the firm had

started using a new software program in September 2000 and that Harper had been having

a difficult time learning to use the new software.

¶32. In fact, there is no evidence in the record that Harper’s stress was caused by anything

other than his professional life.

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¶33. This is consistent with the findings of the administrative law judge, which were

affirmed on appeal by the Workers’ Compensation Commission:

The dependents of Harper have proven that Harper’s hypertension was caused
by the stresses of work and that such hypertension caused Harper’s stroke on
August 3, 2000, and his death on July 10, 2001. . . . The credible evidence
showed that Harper was under a considerable amount of stress from work
which was more than the usual and everyday work stress, including but not
limited to, (1) working long hours and working seven days a week; (2) having
partners feuding over profit sharing; (3) having problems with a new computer
software program shortly after his August 3, 2000 stroke; and (4) managing the
office simultaneously while performing out-of-town audits and other
accounting work. The evidence as a whole leads to the conclusion that the
stress was such that it caused an increase in Harper’s blood pressure, which in
turn caused the August 3, 2000 stroke and his death on July 10. 2001.

¶34. Harper’s dependents proved that the only source of his stress was his work, that stress

was the cause of his high blood pressure, and that high blood pressure caused his stroke. As

such, “substantial evidence” in the record clearly supports the Commission’s decision, which

was affirmed on this basis by the Hinds County Circuit Court and the Court of Appeals. This

is especially true in light of the fact that we are to be deferential to the Workers’

Compensation Commission’s role as the ultimate fact finder in workers’ compensation cases.

Barnes v. Jones Lumber Co., 637 So. 2d 867, 869 (Miss. 1994).

CONCLUSION

¶35. Section 71-3-79 does not apply to the facts as presented. Because Banks had not

obtained workers’ compensation insurance coverage, no employee, including Harper, had

rejected workers’ compensation insurance coverage in writing. Banks, an accounting firm

with at least five employees, was subject to the provisions of the Workers’ Compensation

Act. Banks therefore is obligated to compensate Harper’s dependents, regardless of the

18
reason the firm had not obtained workers’ compensation insurance coverage. Moreover,

substantial evidence in the record supports the Workers’ Compensation Commission’s

finding that Harper suffered a compensable injury. We therefore affirm in whole the

decision of the Workers’ Compensation Commission, which held that Harper’s fatal stroke

was a compensable injury and that Banks was obligated to provide workers’ compensation

benefits to Harper’s beneficiaries, regardless of whether Harper had erred in failing to

procure workers’ compensation insurance for Banks. We affirm the Hinds County Circuit

Court’s holding that there was substantial evidence in the record supporting the Workers’

Compensation Commission’s finding that Harper had suffered a compensable injury, but we

reverse and render its holding that Harper had waived workers’ compensation benefits by

failing to obtain workers’ compensation insurance for the Banks firm. Finally, we affirm the

Court of Appeals’ holding that there was substantial evidence in the record supporting the

Workers’ Compensation Commission’s finding that Harper’s stroke was a compensable

injury within the course and scope of his employment at Banks. But we hold that the Court

of Appeals erred by applying Section 71-3-79 of the Mississippi Code to this case, because,

under that statute, an entity first must have obtained workers’ compensation insurance in

order for a partner to opt out in writing.

¶36. THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED IN PART
AND REVERSED IN PART. THE JUDGMENT OF THE HINDS COUNTY
CIRCUIT COURT IS AFFIRMED IN PART, REVERSED IN PART, AND
RENDERED IN PART. THE JUDGMENT OF THE WORKERS’ COMPENSATION
COMMISSION IS AFFIRMED.

DICKINSON AND RANDOLPH, P.JJ., LAMAR AND KING, JJ., CONCUR.
WALLER, C.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY

19
CHANDLER, PIERCE AND COLEMAN, JJ. COLEMAN, J., DISSENTS WITH
SEPARATE WRITTEN OPINION JOINED BY WALLER, C.J., AND CHANDLER,
J.

WALLER, CHIEF JUSTICE, DISSENTING:

¶37. Milton Harper, as president of Banks, Finley, White, & Co., P.C., was responsible for

ensuring the firm secured workers’ compensation insurance. See Miss. Code Ann. § 71-3-83

(Rev. 2011). The firm, however, failed to do so. Harper, according to the vice president of

Banks at the time, made the decision not to obtain workers’ compensation coverage. The vice

president and Harper discussed the matter, but, according to the vice president, Harper

ultimately made the decision not to obtain coverage. Moreover, as president of the

corporation, Harper had a statutory duty to ensure the firm carried workers’ compensation

coverage. See Miss. Code Ann. § 71-3-83 (Rev. 2011) (making president of corporation

criminally liable for failure to secure compensation).

¶38. Harper’s beneficiaries now seek the very workers’ compensation benefits Harper

failed to procure. Because I agree with the circuit court that Harper’s beneficiaries are barred

from recovering workers’ compensation benefits in this case, I respectfully dissent.

¶39. Banks employed more than five individuals and was subject to Mississippi’s workers’

compensation statutes. See Miss. Code Ann. § 71-3-5 (Rev. 2011). Banks, however, failed

to secure workers’ compensation insurance while Harper was managing partner and

president, and there was no such coverage at the time of his injuries. The majority finds that

Harper’s beneficiaries are entitled to compensation “regardless of the reason the firm had not

obtained workers’ compensation insurance coverage.” In other words, Harper, in the form

20
of his beneficiaries, is not barred from recovering benefits despite Harper’s own failure to

secure workers’s compensation insurance. I disagree.

¶40. While there are no Mississippi cases on point, the Maryland Court of Appeals

considered a similar issue in a workers’ compensation case much like today’s. There, a

corporate officer was injured while at work. Uninsured Employers’ Fund v. Lutter, 342 Md.

334, 337, 676 A.2d 51, 52 (1996). The corporation, which he controlled, failed to obtain

workers’ compensation insurance or opt out of workers’ compensation coverage in writing

as required by Maryland law. Lutter, 676 A.2d at 53, 54. Nevertheless, the officer sought

workers’ compensation benefit’s from the corporation. Id.

¶41. The officer argued “that despite his decision not to purchase insurance for himself,

he did not effectively exempt himself from coverage under the Act because he did not file

written notice of his election to be exempt . . . .” Id. at 54. The Maryland court disagreed. Id.

The court first noted that there was no coverage for the officer to opt out of, so the Maryland

statute allowing officers to exempt themselves from coverage was inapplicable. Id. at 54-55.

¶42. The court then found that, by deciding to forego workers’ compensation insurance,

the officer had waived his right to collect benefits under Maryland’s workers’ compensation

scheme. Id. at 55. The court provided, “As corporate president, [the officer] was . . . the

person who made the decision not to protect himself . . . .” Id. Therefore, “he cannot be

permitted to receive benefits from the [Uninsured Employers’] Fund merely because he

neglected or refused to perform his duty . . . .”3 Id. Moreover, the court continued, an officer

3
Lutter sought compensation from his corporation, but because the corporation
lacked workers’ compensation insurance coverage, any benefits he would have recovered

21
of a corporation who fails to obtain workers’ compensation coverage may be held criminally

liable, and “Allowing him to collect workers’ compensation benefits . . . would violate the

common law principle that one should not be permitted to benefit from his own criminal

conduct.” Id. at 56.

¶43. I find this rationale persuasive and would apply the same reasoning here.4 Harper had

a duty as a corporate officer to secure workers’ compensation insurance coverage. Miss.

Code Ann. § 71-3-83 (Rev. 2011). He failed to do so. In fact, Harper could have been held

criminally and civilly liable for failing to procure workers’ compensation coverage. Id. (“If

the employer is a corporation, the president . . . thereof shall be also severally liable to such

fine or imprisonment as herein provided for the failure of such corporation to secure the

payment of compensation . . . .”). And, like Maryland, Mississippi has long recognized the

common-law principle that “a party shall not derive any benefit in [a] court from his own

wrong.” Buckner v. Calcote, 28 Miss. 432, 571 (Miss. Err. & App. 1855); see also Collins

v. Collins, 625 So. 2d 786, 789 (Miss. 1993). In short, to paraphrase the Maryland court,

Harper was required to discharge the responsibilities of his position or suffer the

consequences. See Lutter, 676 A.2d at 56.

would have been paid by the state’s Uninsured Employers’ Fund. Lutter, 676 A.2d at 53.
4
The Lutter case also turned on Maryland’s notice of exemption statute that allows
an employer to exempt certain officers from the workers’ compensation statutes, and the
court noted it limited its holding to the facts of the case. The issues raised there regarding
that notice and the state’s Uninsured Employers’ Fund are inapplicable to the present case.
The import of the case, however, is clear and persuasive – a corporate officer cannot fail to
execute his duty and then later seek benefits despite this failure.

22
¶44. Accordingly, I would affirm the findings of the Circuit Court of the First Judicial

District of Hinds County that Harper, through his dependents, was barred from recovering

benefits from Banks because of Harper’s failure to obtain workers’ compensation insurance.

CHANDLER, PIERCE AND COLEMAN, JJ., JOIN THIS OPINION.

COLEMAN, JUSTICE, DISSENTING:

¶45. I join Chief Justice Waller’s dissent. I write separately because, regardless of

coverage issues, no competent evidence exists anywhere in the record upon which any

tribunal could rely to reach a valid finding that Harper’s stroke resulted from his work.

Therefore, the Workers’ Compensation Commission award was not supported by substantial

evidence.

¶46. In workers’ compensation cases, we limit our review to determining whether the

Commission’s decision “was supported by substantial evidence, was arbitrary and/or

capricious, was beyond the Commission’s authority to make, or whether a claimant’s

constitutional or statutory rights were violated.” Ladner v. Zachry Constr., 130 So. 3d 1085,

1088 (Miss. 2014). Harper’s dependents bore the burden of proving a causal connection

between his stroke and his work. Bracey v. Packard Elec. Div., Gen. Motors Co., 476 So.

2d 28, 29 (Miss.1985). See also Miss. Code Ann. §§ 71-3-3 and -7 (Rev. 2011); V. Dunn,

Mississippi Workers’ Compensation § 265 (3d ed. 1982); Strickland v. M.H. McMath Gin,

Inc., 457 So. 2d 925, 928 (Miss. 1984).

A claimant’s proof on the issue of causal connection must rise above mere
speculation or possibility, as “where the medical testimony is that it could have
been one way just as well as the other.” Dunn, Mississippi Workmen’s
Compensation § 273 (2d ed. 1978) (footnote omitted). See also Southern

23
Brick & Tile v. Clark, 247 So. 2d 692 (Miss. 1971). Likewise, once the burden
of proof shifts to the employer, the same degree of proof is required in order
to rebut the claimant’s prima facie case. It is not enough to merely state that
causation is possible but that there is insufficient evidence available upon
which a medical conclusion could be based.

Hedge v. Leggett & Platt, Inc., 641 So. 2d 9, 15 (Miss. 1994). Although Rule 2.8 of the

Rules of the Workers’ Compensation Commission states that, for Commission purposes, the

general rules of evidence are relaxed, evidence still must be “competent” to be considered.

Expert medical evidence is required to prove causation. Bechtel Corp. v. Phillips, 591 So.

2d 814, 817 (Miss. 1991).

¶47. In Sonford Products Corp. v. Freels, 495 So. 2d 468 (Miss. 1986), overruled on other

grounds by Bickham v. Department of Mental Health, 592 So. 2d 96 (Miss. 1991), the issue

was whether the workers’ compensation claimant’s exposure to toxic chemicals caused his

lung cancer and subsequent death. Freels, 495 So. 2d at 471. The Freels Court wrote, “In

all cases in which the causal connection would not be obvious to the untrained layman, the

claimant must prove the causal connection between the alleged injury and the alleged

disability by competent medical proof.” Id. In holding that Dr. Anthony J. Verlangieri, a

toxicologist, was competent to give expert causation testimony, the Freels Court cited and

relied upon Prosser, Law of Torts § 41(4th ed.1971), for the following proposition:

Causation is a fact. It is a matter of what has in fact occurred. A cause is a
necessary antecedent: in a very real and practical sense, the term embraces all
things which have so far contributed to the result that without them it would
not have occurred.
...
The plaintiff must introduce evidence which affords a reasonable basis for the
conclusion that it is more likely than not that the [exposure to the chemical]
was a substantial factor in bringing about the result. . . . Where the conclusion

24
is not one within the common knowledge of laymen, expert testimony may
provide a sufficient basis for it.

Freels, 495 So. 2d at 472-473. The factors that cause a stroke cannot be considered to be

within the common knowledge of a layman. While the Rules of Evidence may be relaxed

for purposes of workers’ compensation hearings, proof still must be competent. As the

Freels Court wrote, competent expert medical testimony must be provided to prove

causation, and competent expert medical testimony is that which “affords a reasonable basis

for the conclusion that it is more likely than not” that the claimant’s work “was a substantial

factor in bringing about the result.” Id.

¶48. In short, the evidence before the Commission is devoid of any expert testimony that

affords the necessary reasonable basis for the Commission to have concluded “that it is more

likely than not” that Harper’s work caused his stroke and death. During the hearing before

the administrative judge, Dr. Marvin Jeter, Harper’s treating physician, testified that he first

began treating Harper in January 1995 for hypertension. Dr. Jeter treated Harper’s

hypertension with medication, and Harper responded favorably. Dr. Jeter considered his

hypertension to be well-controlled when he took the medication as prescribed. However,

Harper often was noncompliant. When Harper asked what he could do in lieu of taking

medication, Dr. Jeter informed him that changes in his diet and exercise regime also could

aid in controlling his hypertension. At no time did Dr. Jeter encourage Harper to alter his job

duties. He did testify that Harper reported that he was under stress at his job. Dr. Jeter

testified that stress does tend to increase a person’s blood pressure. Dr. Jeter admitted that

he was not aware of what Harper’s blood pressure was at the time of his death because he

25
last saw Harper in 2000 after his first stroke. Dr. Jeter testified that it was possible that

Harper’s uncontrolled blood pressure could have caused his fatal stroke. He also testified

that stress could have been a factor in Harper’s death.

¶49. On cross-examination, Dr. Jeter testified that he could not state to a reasonable degree

of medical probability that Harper was under stress due to his job or that Harper’s death was

caused by his job.

Q. But, in fact, you cannot state to a reasonable degree of medical probability
that Milton Harper was under stress due to his job on July 8th, 2001, can
you?

A. Not on July the 8th, 2001.

Q. And –

A. Because he –

Q. And you cannot state to a reasonable degree of medical certainty or
probability that Mr. Harper’s death was caused by his job at any point?

A. As I’ve stated before, the only thing you can say is that stress has an effect
on increasing high blood pressure, and high blood pressure can contribute
to a stroke. Now, those are basic facts.

Q. Okay. We are talking specifically here about Mr. Harper. You cannot say
to a reasonable degree of medical probability that Mr. Harper’s job
contributed to or caused his death?

A. No. It’s a possibility.

Q. In fact, you have used that term a lot, it is just a possibility. That is all you
can testify about?

A. Sure.

26
The Harpers offered no other testimony to establish that Harper’s death was a result of his

employment. With all respect to the majority, speculative testimony such as exists in the

instant case does not amount to an unequivocal causal linking, (Maj. Op. at ¶ 27), and while

the majority makes a nonspecific reference to other expert testimony, it identifies none that

meets the requisite standard for competence set out above. Because the Harpers’ evidence

falls well short of the level of competent, they fail to establish a prima facie showing of

causation. No reasonable basis exists for the Commission’s award. Accordingly, I

respectfully dissent.

WALLER, C.J., AND CHANDLER, J., JOIN THIS OPINION.

Harper Ex Rel. Harper v. Banks, Finley, White & Co. of Mississippi

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