IN THE COURT OF APPEALS

OF THE

STATE OF MISSISSIPPI

NO. 1999-CA-01857-COA

LIBERTY MUTUAL INSURANCE COMPANY APPELLANT

v.

JAMES MCKNEELY APPELLEE

DATE OF JUDGMENT: 08/31/1999

TRIAL JUDGE: HON. FRANK G. VOLLOR

COURT FROM WHICH APPEALED: WARREN COUNTY CIRCUIT COURT

ATTORNEY FOR APPELLANT: LAWRENCE D. WADE

ATTORNEY FOR APPELLEE: PAUL KELLY LOYACONO

NATURE OF THE CASE: CIVIL - INSURANCE

TRIAL COURT DISPOSITION: APPELLEE AWARDED $150,000 COMPENSATORY

DAMAGES AND $200,000 PUNITIVE DAMAGES

DISPOSITION: AFFIRMED - 04/17/2001

MOTION FOR REHEARING FILED: 5/1/2001; denied 6/19/2001

CERTIORARI FILED: 6/29/2001; granted 6/6/2002

MANDATE ISSUED:

EN BANC.

LEE, J., FOR THE COURT:

¶1. Pursuant to a bad faith complaint filed by James McKneely against Liberty Mutual Insurance Company,

the trial judge sitting without a jury, entered a final judgment in favor of McKneely in the total sum of $150,

000 in compensatory damages and $200,000 in punitive damages. Feeling aggrieved by this verdict,

Liberty Mutual has filed a timely appeal and presents the following issues as error: (1) whether there was

sufficient evidence presented for the trial court to deny a directed verdict regarding actual and punitive

damages, and (2) whether the verdicts rendered in favor of McKneely for actual and punitive damages

were against the overwhelming weight of the evidence. Finding these issues without merit, we affirm the

holdings of the trial judge regarding the award of actual and punitive damages.

FACTS

¶2. On March 30, 1994, McKneely sustained an on-the-job injury to his back while he was pulling lumber

for his employer, Anderson Tully Company. Liberty Mutual was the workers' compensation insurance

carrier for Anderson Tully at the time of McKneely's injury. At the time of injury, Liberty Mutual conceded

that McKneely had a work-related injury and began paying temporary total disability benefits. The payment

of these benefits continued until McKneely returned to work at Anderson Tully on June 13, 1994.

¶3. Upon McKneely's return to work he testified he was only able to work for approximately eight or nine
days. McKneely informed his supervisor he was unable to continue performing his duties. McKneely

testified that at this time his pain had increased. On July 5, 1994, McKneely once again started receiving

workers' compensation benefits from Liberty Mutual. In December of 1994 workers' compensation

benefits were terminated by Liberty Mutual. On January 9, 1995, McKneely filed a motion for an

emergency hearing at the Workers' Compensation Commission regarding the termination of his temporary

benefits.

¶4. In this motion, McKneely alleged that at the time Liberty Mutual terminated his temporary total benefits

he had been referred by Dr. Weatherly, his treating physician, to Dr. Hensarling. Additionally, he asserted

that Dr. Hensarling was treating him at the time his benefits ceased and had not released him to return to

work. McKneely was granted those benefits by the administrative law judge on August 9, 1996. This order

was later affirmed by the Worker's Compensation Commission. Subsequently, Liberty Mutual sought

termination of temporary total disability benefits. On December 31, 1998, an administrative law judge

determined that McKneely reached maximum medical improvement on October 22, 1998, and benefits for

temporary and permanent disability, as well as payment of necessary medical services and supplies were

awarded. During this sequence of events, on August 15, 1996, McKneely filed a complaint alleging bad

faith by Liberty Mutual for its denial of his benefits and medical treatment. This opinion focuses on the

merits of the bad faith complaint.

¶5. McKneely asserted in his complaint for bad faith against Liberty Mutual that it had intentionally violated

its duty to pay his compensation benefits and medical expenses. As a result of Liberty Mutual's denial of

benefits McKneely claimed that he was unable to meet his household bills and had suffered great emotional

and mental distress over his lack of income and medical treatment. Liberty Mutual answered the complaint

and stated that they had acted in good faith and had an arguable basis for denying the benefits.

¶6. Although McKneely was examined and treated by numerous doctors, he initially received primary

treatment for his on-the-job injury from Dr. Wallace Weatherly. Dr. Weatherly's treatment is of significance

in this case because the testimony at trial revealed that Liberty Mutual and its counsel relied primarily on Dr.

Weatherly's November 30, 1994, letter when they decided to terminate the temporary total disability

benefits in December of 1994. More specific facts surrounding the denial of McKneely's temporary total

disability benefits and his denial of medical treatment will be addressed in this Court's discussion of the

issues.

STANDARD OF REVIEW

¶7. The standard of review regarding the sufficiency of the evidence for motions for directed verdicts,

peremptory instructions, and motions for judgment notwithstanding the verdict (J.N.O.V.) is as follows:

[T]his court will consider the evidence in the light most favorable to the appellee, giving that party the

benefit of all favorable inference that may be reasonably drawn from the evidence. If the facts so

considered point so overwhelmingly in favor of the appellant that reasonable men could not have

arrived at a contrary verdict, we are required to reverse and render. On the other hand if there is

substantial evidence in support of the verdict, that is, evidence of such quality and weight that

reasonable and fair minded jurors in the exercise of impartial judgment might have reached different

conclusions, affirmance is required. The above standards of review, however, are predicated on the

fact that the trial judge applied the correct law.
Steele v. Inn of Vicksburg, 697 So. 2d 373, 376 (Miss. 1997).

¶8. "'A circuit court judge sitting without a jury is accorded the same deference with regard to his findings as

a chancellor,' and his findings are safe on appeal where they are supported by substantial, credible, and

reasonable evidence." Maldonado v. Kelly, 768 So. 2d 906, 908 (¶4) (Miss. 2000) (citing City of

Jackson v. Perry, 764 So. 2d 373, 376 (Miss. 2000) (citing Puckett v. Stuckey, 633 So. 2d 978, 982

(Miss. 1993)). In this instance, those findings of fact will not be set aside on appeal unless manifestly wrong.

Elmore v. Vital Care of Columbus, Ltd., 755 So. 2d 548, 549 (¶7) (Miss. Ct. App. 2000); see also

Cotton v. McConnell, 435 So. 2d 683, 685 (Miss. 1983).

¶9. When reviewing a motion for a new trial, we look at the weight of the evidence. "The Supreme Court

will reverse the lower court's denial of a motion for a new trial only if, by doing so, the court abused its

discretion. We will not order a new trial unless convinced that the verdict is so contrary to the overwhelming

weight of the evidence that, to allow it to stand, would be to sanction an unconscionable injustice." Whitten

v. Cox, 1998-CA-01410-SCT (¶26) (Miss. July 27, 2000) (citations omitted). Additionally, the trial judge

has sole authority to determine the credibility of a witness when sitting as the trier of fact in a bench trial.

Rice Researchers, Inc. v. Hiter, 512 So. 2d 1259, 1265 (Miss. 1987).

DISCUSSION

I. WHETHER THERE WAS SUFFICIENT EVIDENCE PRESENTED FOR THE TRIAL

COURT TO DENY A DIRECTED VERDICT REGARDING ACTUAL AND PUNITIVE

DAMAGES.

AND

II. WHETHER THE VERDICTS RENDERED IN FAVOR OF MCKNEELY FOR

ACTUAL AND PUNITIVE DAMAGES WERE AGAINST THE OVERWHELMING

WEIGHT OF THE EVIDENCE.

¶10. Liberty Mutual has presented four issues for our review. For the sake of clarity we have consolidated

these issues into two, and will address each in conjunction with the other. Liberty Mutual argues that under

Mississippi law, an insurer such as Liberty Mutual is not liable to McKneely for actual and punitive damages

if it has an arguable reason to deny workers' compensation benefits. McKneely, on the other hand, asserts

that as an insurance carrier, Liberty Mutual, breached its duty to provide workers' compensation benefits

and failed to promptly and adequately investigate his claim before denying those benefits. See Murphree v.

Federal Ins. Co., 707 So. 2d 523, 531 (Miss. 1997).

¶11. The exclusivity provision of Miss. Code Ann. § 71-3-9 (Rev. 2000) of the Workers' Compensation

Act does not bar a claim by the employee against the employer's insurance carrier for the commission of an

intentional tort. Southern Farm Bureau Cas. Ins. v. Holland, 469 So. 2d 55, 59 (Miss. 1984). The

Mississippi Supreme Court has classified the bad faith refusal to pay workers' compensation benefits as an

intentional tort. Id. Having established that McKneely was entitled to pursue his complaint for bad faith, we

now must review the application of the two-tiered test used by the trial judge in deciding whether actual and

punitive damages were properly given to McKneely.

¶12. In the case at bar, the trial judge sat without a jury and was required to employ a two-tiered test to

determine whether McKneely was entitled to actual and punitive damages. Moeller v. American Guar.
and Liability, 707 So. 2d 1062, 1072 (Miss. 1996). The first tier required the trial judge to determine

whether the asserted wrongdoing was so flagrant that punitive damages should even be considered. Id. If

the trial judge determines that the questioned conduct is of a serious nature it must be addressed to the factfinder. Id. As aforementioned, in this instance, no jury was present and the trial judge served as the finder of

fact. Therefore, the trial judge had to address the second tier and determine if the events occurred and

make a correct allocation of money, if any, to deter like conduct. Id.; see also Andrew Jackson Life Ins.

Co. v. Williams, 566 So. 2d 1172, 1182 (Miss. 1996). McKneely carried the burden of proof and was

required to present evidence by a preponderance of the evidence that met both tiers of the test. Moeller v.

American Guar. and Liability, 707 So. 2d 1062, 1073 (Miss. 1996).

¶13. In the case at bar, the alleged wrongdoing is Liberty Mutual's wrongful termination and denial of the

payment of temporary total disability benefits and medical treatment. Therefore, when the trial judge

determines whether the alleged wrongdoing justifies an award of punitive damages he must determine

whether McKneely proved that the insurer lacked a legitimate or an arguable reason for failing to pay his

claim. Moeller v. American Guar. and Liability, 707 So. 2d 1062, 1072 (Miss. 1996). If a legitimate or

arguable reason exists punitive damages will generally not lie. Id. To merit the determination that the denial

of claims is arguably-based the finder of fact must hold that the denial resulted after dealing with the

disputed claim fairly and with good faith. Id. McKneely must show by a preponderance of the evidence that

there was some willful or malicious wrong, gross negligence, or reckless disregard for his rights. Id. at

1072-73.

¶14. Liberty Mutual primarily bases the assertion of an arguable basis for the denial of McKneely's benefits

on a November 30, 1994, letter from Dr. Wallace Weatherly, a treating physician for McKneely. The

November 30, 1994, letter was in response to Nurse Jackie Moore's letter who worked as a Rehabilitation

Consultant Nurse for Liberty Mutual. Dr. Weatherly's letter read as follows:

Dear Jackie:

Re: James McKneely

This is in regard to your later [sic] dated October 28, 1994, regarding James McKneely.

Mr. McKneely's current diagnosis, as far as I am concerned, is neck pain of unknown etiology. Mr.

McKneely had been labeled with the diagnosis of fibromyalgia by Dr. Hensarling.

Mr. McKneely is to follow up with Dr. Hensarling, as I have referred him to Dr. Hensarling.

I do not feel that Mr. McKneely's current problem is related to his injury which was sustained after

pulling heavy lumber. I, in no way, see a relationship between fibromyalgia and pulling of lumber.

Mr. McKneely will be treated by Dr. Hensarling but I suspect he will need some sort of work

hardening program. He will need some psychiatric counselling to see if there is something going on

that might be psychosomatic, as I cannot find anything organic wrong with him at this time.

As far as I am concerned, Mr. McKneely has reached maximum medical improved [sic] as far as any

obvious organic musculoskeletal problem, but the inorganic problems may exist. Dr. Hensarling is to

complete the workup so I will leave this statement for him to answer.
¶15. Liberty Mutual argues that pursuant to the advice of counsel, the following statements contained in Dr.

Weatherly's letter were initially relied on by Liberty Mutual for the denial of McKneely's benefits:

Mr. McKneely's current diagnosis, as far as I am concerned, is neck pain of unknown etiology. . . I

do not feel that Mr. McKneely's current problem is related to his injury which was sustained after

pulling heavy lumber. I, in no way, see a relationship between fibromyalgia and pulling of lumber. . . I

cannot find anything organic wrong with him at this time. As far as I am concerned, Mr. McKneely

has reached maximum medical improved [sic] as far as any obvious organic musculoskeletal problem,

but the inorganic problems may exist. . . .

¶16. As argued by McKneely, the law in Mississippi places a duty on an insurance company to promptly

and adequately investigate all of the relevant facts involved in an insured's claim. Szumigala v. Nationwide

Ins. Co., 853 F.2d 274, 280 (5th Cir. 1988); see also Bankers Life & Cas. Co. v. Crenshaw, 483 So.

2d 254, 276 (Miss. 1985). In order for McKneely to meet his burden in proving a bad faith claim he must

show that the level of negligence was such that if a proper investigation had been conducted, it would easily

reveal evidence that demonstrated that Liberty Mutual's defenses are without merit. Murphree v. Federal

Ins. Co., 707 So. 2d 523, 531 (Miss. 1997). Through testimony presented at trial, McKneely established

that "promptly" and "adequately" are two words which were totally ignored by Liberty Mutual.

¶17. Liberty Mutual defends its position of an arguable basis and lack of investigation on several points.

Liberty Mutual asserted that while fibromyalgia may have been mentioned in Dr. Weatherly's letter, there

was no cause stated. During the trial of this matter, one counsel for Liberty Mutual espoused the view that it

was not their duty to prove McKneely's case for him regarding the cause of his injury. However, we note

that trial counsel has confused his stance with the insurer's duty to investigate as enumerated in cases such

as Szumigala v. Nationwide Ins. Co., 853 F.2d 274, 280 (5th Cir. 1988); see also Bankers Life & Cas.

Co. v. Crenshaw, 483 So. 2d 254, 276 (Miss. 1985). There was additional testimony that McKneely's

denial of benefits was a result of little consideration of his actual case.

¶18. Testimony from Donald Burch, another of Liberty Mutual's counsel in this case, revealed that the

denial occurred as a result of a conversation between him and Ed Knollmeyer, claims supervisor for Liberty

Mutual and was primarily based on the aforementioned select statements in Dr. Weatherly's letter. Burch

went on to comment that while they relied on certain phrases in Dr. Weatherly's letter to deny benefits he

also relied on his past experience with workers' compensation claims. Burch testified that he had handled

fibromyalgia cases before, and that in his experience this was the first fibromyalgia case that he had seen the

Workers' Compensation Commission pay.

¶19. To further support its argument, Liberty Mutual asserts that "it has been held that bad faith cases are

not proper when a physician has given evidence supporting the denial of benefits." (citing Sherrod v.

United States Fidelity and Guar. Co., 518 So. 2d 640, 645 (Miss. 1987); Peel v. American Fidelity

Assur. Co., 680 F.2d 374, 376-77 (5th Cir. 1982); Horton v. Hartford Life Ins. Co., 570 F. Supp.

1120, 1123-24 (N. D. Miss. 1983)). However, Liberty Mutual has misinterpreted these cases with this

blanket statement. The aforementioned cases merely once again state that if an insurance carrier has an

arguable basis for denying a claim punitive damages do not lie. This arguable basis may lie in a physician's

testimony. However, in the aforementioned cases, unlike in the case at bar, at the time of the denial of

benefits there was conflicting medical testimony and the insurance carrier conducted a prompt investigation

to confirm or deny the contradictions in the physicians' medical opinions. In the case sub judice, we did not
have conflicting medical reports at the time of McKneely's denial of benefits. To the contrary, we had the

November 30, 1994, letter from Dr. Weatherly regarding musculoskeletal problems, and while Dr.

Weatherly was of the opinion that McKneely had reached maximum medical improvement regarding

obvious organic musculoskeletal problems, he espoused no opinion regarding inorganic problems. Instead,

he had referred McKneely to Dr. Hensarling. Dr. Hensarling was to give an opinion on inorganic problems.

In fact, in Dr. Weatherly's November 30, 1994, letter he states "Dr. Hensarling is to complete the workup

so I leave this statement for him to answer."

¶20. The record further discloses that at the time of McKneely's denial of benefits there existed an October

24, 1994, letter from Dr. Hensarling to Dr. Weatherly. Dr. Hensarling was the rheumatologist whom Dr.

Weatherly deferred to in his November 30, 1994, letter regarding possible inorganic problems. The letter

from Dr. Hensarling revealed that he diagnosed McKneely with a "florid case of fibromyalgia." However,

Dr. Hensarling went on to state that "[his] workup ha[d] been limited by workman's comp . . . ." Testimony

at trial did not disclose that this letter was considered by Liberty Mutual or its counsel at the time of the

denial of benefits.

¶21. At the time of the denial of benefits, Liberty Mutual failed to make further inquiry either with Dr.

Weatherly, Dr. Hensarling, or an independent medical expert to establish that McKneely's fibromyalgia was

not work-related and the payment for further treatment was unnecessary. The record is clear that at the time

McKneely's benefits were denied both Dr. Weatherly and Dr. Hensarling thought additional investigation

and treatment were needed.

¶22. This Court also notes that while the denial of benefits occurred in December of 1994, the deposition

of Dr. Hensarling was not taken regarding the relationship of the diagnosis of fibromyalgia and McKneely's

March 30, 1994, on-the-job injury until February 22, 1996. During his deposition, Dr. Hensarling

espoused that he believed with a reasonable degree of medical probability that the March 30, 1994, workrelated accident was the triggering factor for McKneely's fibromyalgia. Additionally, McKneely was treated

by a second rheumatologist, Dr. Ann Meyers.

¶23. Liberty Mutual contends that their position for denying benefits was supported by Dr. Meyers's

general assertion that the cause of fibromyalgia was unknown. However, we find that this assertion does not

accurately represent Dr. Meyers's deposition testimony.

¶24. Dr. Meyers treated McKneely after Dr. Hensarling. Dr. Meyers stated that she agreed with Dr.

Hensarling's diagnosis of fibromyalgia. Additionally, she testified that in McKneely's case she too felt there

was a historical, causal relationship between his work-related injury and his fibromyalgia.

¶25. An investigation would have disclosed that more treatment was needed for McKneely, and that in

McKneely's case time was of the essence with regards to whether the treatment would be effective.

Instead, Liberty Mutual opted to discuss Dr. Weatherly's November 30, 1994, letter with their counsel

which after reading the letter advised them that it could terminate benefits. Liberty Mutual gave no further

consideration to the open-ended comments of Dr. Weatherly or his referral of McKneely to Dr. Hensarling.

¶26. While we acknowledge that a good faith reliance on advice of counsel may preclude the imposition of

punitive damages it is not an absolute bar. Henderson v. United States Fidelity & Guar. Co., 695 F.2d

109, 113 (5th Cir. 1983). "[I]t is simply not enough for the carrier to say it relied on advice of counsel,

however unfounded, and then expect that valid claims for coverage can be denied with impunity pursuant to
such advice." Szumigala, 853 F.2d 274, 282 (5th Cir. 1988).

¶27. Liberty Mutual failed to promptly pursue clarification of such opened-ended statements as: "neck pain

of unknown etiology, and inorganic problems may exist" as well as not giving weight to the fact that Dr.

Weatherly's statements were qualified with "I," and that he had made a referral for further treatment of

McKneely by Dr. Hensarling. Additionally, Liberty Mutual, without investigation, chose to deny treatment

and a further work up by Dr. Hensarling.

¶28. At the trial of this matter, McKneely presented testimony from Ms. Annette Hitt who ran the pain clinic

for one of McKneely's treating physicians, Dr. Ann Myers. The testimony of Ms. Hitt further revealed

Liberty Mutual's general disregard for McKneely's and others rights. The testimony of Ms. Hitt established

that she had spoken with Bill Paxman, the adjustor managing McKneely's case for Liberty Mutual on

several occasions in an attempt to have treatment approved. Hitt claimed that Paxman denied payment on

these occasions. Hitt explained that she remembered Paxman asserted that benefits were being denied once

because they were going to get a second opinion and once because McKneely's workers' compensation

claim was on appeal. Hitt noted that Paxman never asked for a report from Dr. Myers regarding the

treatment of McKneely. Hitt also explained that while McKneely was undergoing extensive therapy she

requested that Liberty Mutual approve payment of benefits to board McKneely. Liberty Mutual declined.

As a result, McKneely traveled from Vicksburg to Jackson. On one occasion McKneely was involved in

an accident when he ran off the road. This caused further injury and delayed treatment. Hitt also asserted

that in her experience she found that Liberty Mutual was difficult and that they always met requests with a

defensive position -- the patient is malingering. Additionally, Hitt could not recall an instance over the ten

years that she had been working at the pain clinic that Liberty Mutual had ever responded affirmatively to a

first request to approve services.

¶29. When this Court views the evidence in the light most favorable to the appellee (i.e., McKneely) there

was sufficient evidence presented by McKneely regarding a malicious and wrongful denial of benefits by

Liberty Mutual. We concede that the record discloses that in the eleventh hour Liberty Mutual finally began

an investigation. However, this investigation was conducted too late to alleviate the previous breach of good

faith by Liberty Mutual and its effects on McKneely. The record shows that McKneely suffered from

depression and had to receive charity to support his family due to the hasty decision of Liberty Mutual.

¶30. The trial judge had the benefit of all this evidence, as well as observing the demeanor of the witnesses.

We conclude that the trial judge did not err in its finding that "Liberty Mutual Insurance Company made a

selfish financial decision and did not comply with the mandates of fairness and good faith in investigating

McKneely's claim by refusing to follow up with psychiatric counseling and a work hardening program and

also by not allowing a complete work up by Dr. Hensarling." With this in mind, we must now address the

second tier and determine if it was necessary to allocate an award to deter the same future conduct by

Liberty Mutual and others and whether the trial judge made a correct allocation of money.

¶31. "Under Mississippi bad-faith law, punitive damages are awarded not to recompense for loss due to a

personal injury; rather, they are awarded to punish and deter - 'to make an example of the defendant' for a

willful, reckless, or grossly negligent breach of insurance contract." Estate of Wesson v. United States,

843 F. Supp. 1119, 1122 (S. D. Miss. 1994).

¶32. In Andrew Jackson Life Ins. Co. v. Williams, 566 So. 2d 1172, 1190 (Miss. 1990), the Mississippi

Supreme Court discussed four elements to guide the finder of fact in determining the total sum to award for
punitive damages. The elements are as follows: (1) the amount awarded should serve to punish the insurer

and deter the same or similar conduct in the future, (2) the sum awarded should deter others from

committing similar offenses, (3) the amount awarded should coincide with the insurer's economic ability and

financial worth, and (4) the amount is to compensate the litigant for his/her "public service" by bringing the

action. Id.

¶33. Evidence introduced revealed the Liberty Mutual's "net admitted assets" exceeded 19 billion dollars.

This Court hopes that the amount awarded serves to deter this and similar conduct in the future by Liberty

Mutual and others. Nevertheless, in light of the assets held by Liberty Mutual we do not find that the trial

judge abused his discretion in awarding the total sum of $150,000 in compensatory damages and $200,000

in punitive damages. Additionally, the $200,000 amount awarded for punitive damages by the trial judge

clearly coincided with Liberty Mutual's financial worth and economic ability to pay. Furthermore, we find

that the trial judge did not abuse his discretion in determining that this sum afforded adequate compensation

to McKneely for bringing the action. Therefore, we find the issues presented by Liberty Mutual are without

merit. Accordingly, we affirm the decision of the trial judge.

¶34. THE JUDGMENT OF THE CIRCUIT COURT OF WARREN COUNTY IS AFFIRMED.

STATUTORY DAMAGES AND INTEREST ARE AWARDED. ALL COSTS OF THIS

APPEAL ARE ASSESSED TO THE APPELLANT.

KING, P.J., PAYNE, BRIDGES, THOMAS, MYERS AND CHANDLER, JJ., CONCUR.

MCMILLIN, C.J., DISSENTS WITH A SEPARATE WRITTEN OPINION JOINED BY

SOUTHWICK, P.J., AND IRVING, J.

McMILLIN, C.J., DISSENTING:

¶35. I dissent. The burden is on the claimant to establish his entitlement to any form of benefits payable

under this State's workers' compensation laws. Lanterman v. Roadway Exp., Inc., 608 So. 2d 1340,

1347 (Miss. 1992). This would necessarily include payments for temporary total disability during the

worker's convalescence. Miss. Code Ann. § 71-3-17(b) (Rev. 2000). The majority appears to have

adopted a rule that the claimant, by merely alleging a compensable injury, may require the carrier to pay

temporary total disability benefits when the medical evidence as to causation is in conflict, or, more to the

point in this case, when there is no medical evidence suggesting that the claimant is suffering from a workrelated disability.

¶36. In the matter now before the Court, the carrier voluntarily paid temporary total disability payments to

McKneely without any formal determination of compensability until the primary treating physician, Dr.

Weatherly, advised the carrier that he could find no connection between McKneely's medical condition and

an industrial accident at McKneely's employment. Dr. Weatherly did suggest the need for further treatment

of McKneely's symptoms, but that does not establish that those symptoms could be traced to a workplace

injury. To the contrary, Dr. Weatherly specifically voiced his opinion that McKneely's condition - diagnosed

as fibromyalgia by Dr. Hensarling - had no relation to an industrial accident asserted to have occurred in

March 1994.

¶37. Dr. Weatherly also suggested the possibility that McKneely's complaints might be psychosomatic

rather than the consequence of a physical injury, but, in so doing, he gave no indication that the origins of

this psychological condition were traceable to an event at McKneely's employment. There is no authority
for the notion that a carrier, upon learning that a claimant has no detectable physical symptoms consistent

with a reported work-related injury, must nevertheless continue benefits while it explores whether the

employee's complaints are traceable to a psychological condition that (a) may not exist, and (b) even if it

does, shows no indication of having its origins in a job-related event. If the claimant's theory of

compensability is based on an alleged psychological injury, it is the claimant's obligation to advance credible

evidence to prove the claim by clear and convincing evidence. Fought v. Stuart C. Irby Co., 523 So. 2d

314, 317 (Miss. 1988). It is not the carrier's duty to seize on a treating physician's unsupported speculation

and assume both the existence of the psychological injury and its work-related nature until, by its own

investigative efforts, it can affirmatively prove the contrary.

¶38. Even had the carrier sought out Dr. Hensarling and verified his opinion that McKneely suffered from

fibromyalgia and that the condition had been caused or exacerbated by a work-related event, there is no

basis to hold that the carrier was obligated to accept Dr. Hensarling's view of the case over Dr. Weatherly's

contrary opinion. The proper forum to resolve such differences of opinion of the medical experts is before

the Mississippi Workers' Compensation Commission. That is what ultimately occurred in this case and there

is no contention that the carrier has wilfully refused to abide by the Commission's order, once the issue was

decided.

¶39. When a carrier finds that it has relied upon medical evidence that is ultimately rejected by the

Commission in favor of evidence more favorable to the claimant, the carrier is exposed to sanctions in the

form of penalties for its "poor judgment." Miss. Code Ann. § 71-3-37(5) (Rev. 2000). Such sanctions

were, in fact, imposed in this case for the unpaid temporary total disability payments ultimately ordered by

the Commission. It is an entirely different thing, however, to say that reliance on competent medical

evidence tending to show that the claimant is no longer suffering from a work-related disability can be an act

of bad faith merely because another medical expert harbors a different view.

¶40. Finally, it must be noted that the workers' compensation statutes provided McKneely with an

adequate remedy to timely address his dissatisfaction with the termination of his temporary total disability

payments. Section 71-3-17(b) provides, in part, that

if there arises a conflict in medical opinions of whether or not the claimant has reached maximum

medical recovery and the claimant's benefits have [been] terminated by the carrier, then the claimant

may demand an immediate hearing before the commission upon five (5) days' notice to the carrier for

a determination by the commission of whether or not in fact the claimant has reached maximum

recovery.

Miss. Code Ann. § 71-3-17(b) (Rev. 2000). The record shows, in fact, that within three days of the

carrier's decision to terminate McKneely's temporary total disability benefits, his attorney filed a motion for

just such a hearing and obtained a setting on the motion for February 13, 1995 - just over one month after

the carrier's decision. However, on February 6, 1995, McKneely's attorney sought a continuance of that

hearing based on a scheduling conflict. For reasons left unexplained in this record, there was no further

attempt to pursue this remedy that, on its face, was entirely adequate to address McKneely's dissatisfaction

with the carrier's decision to end his temporary total disability benefits.

¶41. The trial court based its award of substantial damages on a finding that McKneely "was financially

destitute, living on charity and welfare from termination on December 20, 1994, until benefits were

reinstated on April 9, 1997." Remarkably absent from the court's findings was any discussion of the fact
that, during that entire period, McKneely had a completely adequate remedy - which he commenced in

early 1995 then inexplicably abandoned - to seek to have his temporary total disability payments reinstated,

the only prerequisite being that he have sufficient proof to persuade the Commission of his entitlement to the

benefits. That failure to pursue such a readily-available remedy for a perceived wrong is inexcusable and a

sufficient basis, standing alone, to deny this bad faith claim.

¶42. I would reverse and render this judgment based on two separate theories, either of which is sufficient

to defeat McKneely's bad faith claim. First, it is beyond dispute that the evidence was insufficient to support

a finding of bad faith in the carrier's decision to terminate temporary total disability payments because there

existed competent medical evidence that McKneely's complaints were not traceable to a work-related

event. In fact, at the time the decision to end temporary total disability payments was made, there was no

evidence before the carrier that McKneely's condition was traceable to an industrial accident. Alternatively,

it is unconscionable that McKneely should be heard to complain about a temporary hiatus in his disability

payments when he failed to avail himself of a readily available and entirely adequate statutory remedy to

promptly resolve that grievance before the Workers' Compensation Commission immediately after his

grievance arose.

SOUTHWICK, P.J., AND IRVING, J., JOIN THIS SEPARATE WRITTEN OPINION.