Miss. Top Court Allows Worker to Keep Disputed $3K from Settlement with Building Owner

03 Jun, 2024 Frank Ferreri


Hattiesburg, MS (WorkersCompensation.com) -- When litigation overlaps with a workers' compensation claim, what rights do employers, carriers, and TPAs have when a worker settles her case.

In Brent v. Mississippi Department of Human Services, No. 2022-CT-00529-SCT (05/30/24), the highest court in Mississippi held that a worker didn't have to pay $2,887.50 out of a settlement she received.

An employee of a state agency was injured while working in a building owned by a company. The agency's carrier provided the employee with compensation and reasonable and necessary medical expenses for treatment of her injury.

The employee and her husband sued the building owner, and a $750,000 settlement was approved.

The agency and the carrier's TPA obtained an ex parte order allowing intervention months after a settlement was reached.

Workers' Comp 101: An ex parte order is done or made at the instance and for the benefit of one party only, and without notice to, or argument by, anyone having an adverse interest. It is usually for temporary or emergency relief. See Black's Law Dictionary (11th ed., 2019).

The agency and TPA claimed $358,210.77 based on:

+ TTD payments of $44,577.61

+ Medical treatment of $124,138.66

+ Settlement payment of $166,500

+ Vocational rehabilitation of $1,881.48

+ "Expenses" of $21,113.02

In response to the employee's motion to strike the order granting intervention, the agency and TPA reduced their demand to $335,216.27. Following another reduction in the demand, eventually, the parties stipulated that $331,849.40 was payable immediately, leaving $3.137.50 in controversy.

Regarding this amount, the employee denied receiving medical treatment from an employer's medical exam from a psychologist, arguing that it was not treatment under the workers' compensation statute.

The trial court entered an order to establish and settle lien, directing that the employer was entitled to reimbursement of employer medical evaluation expenses.

The employee filed a motion to reconsider, which was denied. On appeal, the appellate court affirmed, and the employee appealed to the Mississippi Supreme Court, challenging the repayment of $2,887.50 for an employer medical evaluation that was paid to a psychologist.

Under Mississippi law, "reasonable and necessary" medical expenses include "such medical, surgical, and other attendance or treatment, nurse and hospital service, medicine, crutches, artificial members, and other apparatus for such period as the nature of the injury or the process of recovery may require."

Acceptance of these benefits by employees involved in third-party litigation allows employers to intervene, and if they choose to do so, they are entitled to repayment of the amount paid by them as compensation and medical expenses from the next proceeds of the action.

Additionally, employers may employees undergo EMEs to evaluate temporary or permanent disability or medical treatment being rendered under reasonable terms and conditions.

The Mississippi Supreme Court determined that the trial court erred by finding that the optional employer medical evaluation was a medical expense within the meaning of the workers' compensation statute.

The psychologist in this case did not provide "such medical, surgical, and other attendance or treatment, nurse and hospital service, medicine, crutches, artificial members, and other apparatus for such period as the nature of the injury or the process of recovery may require" as state law spells out.

As a result, the Mississippi Supreme Court found that the trial court erred by requiring the employee to repay the $2,887.50 and reversed the judgment of the lower courts.

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    About The Author

    • Frank Ferreri

      Frank Ferreri, M.A., J.D. covers workers' compensation legal issues. He has published books, articles, and other material on multiple areas of employment, insurance, and disability law. Frank received his master's degree from the University of South Florida and juris doctor from the University of Florida Levin College of Law. Frank encourages everyone to consider helping out the Kind Souls Foundation and Kids' Chance of America.

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