IN THE SUPREME COURT OF MISSISSIPPI
N O. 2012-CT-00811-SCT MILTON HARPER, DECEASED, BY AND THROUGH HIS DEPENDENTS, MAGGIE HARPER AND ANDREA HARPER

v. BANKS, FINLEY

, WHITE & CO. OF MISSISSIPPI, P.C. ON WRIT OF CERTIORARI DATE OF JUDGMENT: 09/27/2011 TRIAL JUDGE: HON. W ILLIAM A. GOW AN, JR. TRIAL COURT ATTORNEYS: W I LLIE T. ABSTON PHILLIP ANDREW

LAIRD, JR. DEBRA M. BROW

N COURT FROM W HICH APPEALED: CIRCUIT COURT OF THE FIRST JUDICIAL DISTRICT OF HINDS COUNTY ATTORNEY FOR APPELLANTS: W I LLIE T. ABSTON ATTORNEYS FOR APPELLEE: PHILLIP ANDREW LAIRD, JR. W I LLIAM ANTHONY DAVIS, III H. THOMAS W ELLS, III NATURE OF THE CASE: CIVIL - W ORKERS’ 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 W ORKERS’ COMPENSATION COMMISSION IS AFFIRMED - 07/02/2015 MOTION FOR REHEARING FILED: MANDATE ISSUED:
EN BANC. KITCHENS, JUSTICE, FOR THE COURT:¶1. Milton Harper, the m anaging p a r t n e r a n d p r e s i d e n t of Banks, Finley , W hite &

Com pany of Mississippi (“Banks”), suf f ered a severe stroke on August 3, 2000, and died of another stroke on July 10, 2001. H i s d ependents sued Banks f or workers’ com

pensation benef its. The adm inistrative law judge and the W orkers’ Com pensation Com m ission held that Harper’s injuries and death arose out of the s cope and c ourse of h is em ploy m ent at Banks. On appeal, the Circuit C ourt of the First Judicial District of Hinds County agreed that subst a n t ial e vidence in the record supported the Com m ission’s c o nclusion that Harper’s stroke arose out o f his em

ploy m ent, but that court h eld that Harper’s d ependents were barred
f rom recovering workers’ com pensation benef

its because Harper had f ailed t o o btain

w o r k e rs’ com

p ensation insurance f

or Banks. I n turn, the C o urt of Appeals in H arper v . Banks, Finley, W

hite & Co. of

Mississippi , 136 So. 3d 462, 467 (Miss. Ct. App. 2014), held that Harper’s dependents were not barred f r o m recovery because S ection 71-3-79 of the Mississippi Code 1 allows m em bers of partnerships to exem pt thems e l v e s f

r om workers’

1 A c cep t a n ce o f a p r em iu m o n a p o l icy secu rin g to a n em p l o y e e co m

p en satio n , eith er alo n e o r in co n n ectio n w ith o th er in su ran ce, sh all e s t o p t h e carrier so accep tin g f

ro m p lead in g th at th e em

p lo y m en t o f s u ch em

p lo y ee is n o t c o v ered u n d er th is c h ap ter o r t h at th e em p lo y m en t i s n o t carried o n f

o r p ecu n iary g ain

. Wh en an y m em

b er o f a p artn ersh ip , f

irm , o r asso ciatio n w h o d o es o r d o es n o t perf o rm m an u al lab o r, an d w h ere th ere i s co v erag e o f f ello w e m p lo y ees, e l e c t s to t ak e co v erag e u n d er th e p ro v isio n s o f th is c h ap ter, th e in ten t o f th e in su red as w ell as accep tan ce b y th e c arrier sh all b e s h o w n b y en d o rsem e n t to th e p o licy . A n y

su ch af f i rm ativ e actio n b y

th e p arties sh all en title said m e m b ers o r o f f icers to th e b e n ef

its en j o y ed b y an em

p lo y ee u n d er th is ch ap ter. E v ery ex ecu tiv e o f

f icer elected o r ap p o in t ed an d e m p o w ered in acco rd an ce w ith a ch arter an d b y l aw s o f a co rp o ratio n , o t h er th an n o n p ro f it c h aritab l e, f

ratern al, cu ltu ral, o r relig io u s co rp o ratio n s o r asso ciatio n s , sh all b e an em p lo y ee o f su ch co rp o ratio n u n d er th i s ch ap ter, p ro vid ed th a t s a id execu tive o

fficer m a y 2com

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

out of c o verage in writing, the Court of Appeals held that Bank s w a s r e q uired t o provide workers’ com

pensation benef

its to Harper’s benef

iciaries. Id. On writ o f certiorari , we hold that the Court of Appeals erred in apply ing Section 71-3-79 of the Mississippi Code to the
f acts o f this case. Because Banks did not have workers’ com pensation insurance coverage, there was no coverage f

or Harper to opt out of in writing as contem plated by S ection 71-3-
79. Instead, we hold t hat Section 71-3-5 2 of the Mississippi Code controls the analy sis of this

reject s a id co vera g e b

y g ivin g n o tice in w r itin g t o t h e ca rrier o

f th is electio n n o t to b e co vered a s a n em p lo yee. A n y su ch ex ecu tiv e o f

f icer o f a n o n p r o f

i t c h aritab le, f

ratern al, cu ltu ral, o r relig io u s co r

p o ratio n o r a sso ciatio n m ay , n o t w ith stan d i n g an y o th er p ro v isio n o f th is ch ap ter, b e b r o u g h t w ith in th e co v erag e o f its in su ran ce c o n tract b y an y su ch co rp o ratio n o r a s s o ciatio n b y sp ecif ically in clu d in g su ch ex ecu tiv e o f f icer in s u ch co n tract o f in su ran ce. T h e e l e ctio n to b rin g su ch ex ecu tiv e o f f ice r w ith i n th e co v erag e sh all c o n tin u e f o r th e p erio d su ch c o n tract o f in su ran ce i s in ef

f ect, an d d u rin g su ch p erio d su ch ex ecu tiv e o f f icers t h u s b ro u g h t w ith in t h e co v erag e o f th e in su ran ce co n tract sh all b e em p lo y ees o f su ch co rp o ratio n o r asso ciatio n u n d er th is ch ap ter.
M iss. C o d e A n n . § 7 1 -3 -7 9 (R ev . 2 0 1 1 ) (em p h asis ad d ed ).
2 T h e f o l lo w in g sh all co n stitu te em p lo y ers s u b

j ect to th e p r o v i s i o n s o f th is ch ap ter:
E v ery p erso n , f

irm an d p riv ate co rp o ratio n , in clu d i n g a n y p u b lic serv ice co rp o ratio n b u t ex clu d in g , h o w ev e r, a ll n o npr ofit ch aritab le, f ratern al, cu ltu ral, o r r e lig io u s co rp o r atio n s o r asso c iatio n s, th at h av e in serv ice f iv e (5 ) o r m o re w o rk m en o r o p erativ es reg u larly i n th e sam e b u sin ess o r in o r ab o u t th e sam e estab lish m en t u n d er an y co n tract o f

h ire, ex p ress o r im

p lied

.

. . . A n y em

p l o y er m ay elect, b y p r o p e r an d w ritten actio n o f its o w n g o v ern in g au t h o rity , t o b e ex em p t f ro m th e p ro v i sio n s o f t h e W o r k e rs’ C o m p en s atio n L aw as to its so le p ro p rieto r , its p artn er in a p artn e r sh ip o r to 3case: because Banks had m ore than f ive em pl o y e e s , i t was required to obtain workers’

com pensation insurance and provide workers’ com pensation benef

its t o i t s em

ploy ees. Moreover, we h old that the W orker s ’ C o mp ensation Com m ission’s f inding that Harper suf f e red a f atal injury through t h e c ourse of his e m ploy m ent a t Banks i s supported by substantial evidence.
FACTS AND PROCEDURAL HISTORY ¶2. The relevant f

acts are adequately

stated in the Court of

Appeals’ opinion: Harper was the m anaging partner and president of the accounting f irm Banks, Finley , W hite & Com pany of Mis s i s s i p p i (Banks). H e was f irst diagnosed with high blood pressure on January 4, 1995, by Dr. Marvin Jeter. In October 1995, H arper went to t h e e m ergency room af ter b ecom ing dizzy

. At that tim e, Dr. J eter began prescribing him blood-pressure m edication. Harper saw Dr. Jeter f

our tim es f

rom 1995 until 1 998. Dur i n g that tim e, Harper would interm it t ently take his blood-pressure m e dication, which resulted in his blood pressure ranging f rom norm al to elevated.
On August 3, 2 0 00, H a r p e r w a s rushed to the em ergency r oom at St. Dom inic Hospital. Dr. Jeter exam ined Harper, noted that he h a d n o t been taking h i s blood-pressure m edication, and concluded that he had s u f f ered a s troke. Dr. Jeter ref

erred Harper to Dr. Salil Tuwari, a neurologist. A f ter a series o f tests, it was d e t e r mi n ed that Harper had suf f ered m ultiple sm all-vessel strokes in the brain.

its em p lo y ee w h o is t h e o w n er o f f if teen p ercen t (1 5 % ) o r m o re o f its s t o c k in a co rp o ratio n , if su ch so le p ro p rieto r, p artn er o r em p lo y ee also v o lu n tarily ag rees th ereto in w ritin g . A n y so le p r o p r ieto r, p artn er o r em p lo y ee o w n in g f if teen p ercen t (1 5 % ) o r m o re o f th e sto ck o f h is/h er co rp o rate em p lo y e r w h o b eco m es ex em

p t f ro m co v e rag e u n d er th e Wo rk ers’ C o m p en satio n L aw sh all b e ex clu d ed f

r o m th e to tal n u m

b er o f w o rk ers o r o p erativ es to w ard reach in g th e m an d ato ry

co v erag e th resh o ld lev el o f f iv e (5 ).
M iss. C o d e A n n . § 7 1 -3 -5 (R e v . 2 0 1 1 ). 4Af t er resting f

o r two weeks, Harper returned to w ork, i nitially part-tim e and then to his usual f

ull-tim e sched u l e o f 8 : 0 0 a .m . u ntil 6:30 o r 7:30 p.m . However, Harper did not work as m a ny weekends as he did prior to his stroke.
In the early m orning of Sunday , July 8, 2001, Harper woke up to go to the restroom

. W hen he returned, H arper’s wif e, Maggie, asked him a question, and H arper responded with unintelli g ible noises and becam e nonresponsive. Harper was taken b y am bulance to the University o f Mississippi Medical Center, i mmediately put on lif e support in the intensive-care unit, and never regained consciousness. On July 10, 2 001, Harper was taken of f l if e support and died f rom the stroke he had suf

f ered two day s earlier.
On July 2 9, 2 002, Maggie a nd her daughter, Andrea Harper, f iled t wo petitions to controvert with the Com m ission, seeking w orkers’ com pensation benef its f or Harper’s strokes on A u gust 3 , 2000, and July 8, 2001. The adm inistrative judg e (AJ) f ound that Harper’s strokes were t oo proxim ally connected to s eparate and com bined t he cases. The A J h eld a h earing t hat began on Septem

ber 25, 2008, and concluded on Novem ber 12, 2008. The AJ f ound Maggie a nd Andrea p roved that Harper’s work-related stress c aused h is high blood pressure, w h ich, in turn, caused his stroke on August 3, 2000, and his death o n July 10, 2001. The AJ f ound that Maggie and Andrea proved a c om

pensable workers’ com

p ensation c l aim , and t hat B anks did not prove Harper had a p reexisting condition to warrant denial of the claim or apportionm ent. Banks appealed to the Com m ission, w hich heard the case on Decem ber 7, 2009. The Com m issio n a f f irm ed the AJ’s f

indings with regard to the com pensability of the claim

. However, the Com m ission held that Harper had a c learly identif

iable p reexisting condition that m aterially contributed to his death, and it a

pportioned the benef

its by sixty -f

ive percent. One com m i ssioner dissented, stating that he would deny the claim because the stroke was not in any way work related. Banks a ppealed to the Hinds C o u n t y Circuit Court. The circuit court agreed that substantial evidence supported the C om m ission’s f indings that: (1) Harper’s strokes arose o ut of and in the course of em ploy m ent; ( 2) Harper was an of f icer of a corporation; and (3) Harper’s workers’ com p ensation benef

its should be apportioned. But t he circuit c o urt r eversed the C om m ission’s judgm ent b e cause it f

ound that H arper’s decision not to obtain w orkers’ com pensation i nsurance d i s q

u a l i f i e d h i m fr o m r e c e i v ing benef its that he w ould have otherwise been entitled to receive.

5Harper , 136 So. 3d at 464-65.

¶3. The Court of A ppeals af f irm ed in part and reversed in p art the Hinds County Circuit
Court’s decision. Id. at 4 65-67. The court f o und that “ [ a ]s p resident of Banks, Harper was responsible f

or m a kin g decisions regarding i nsurance” and that “Harper erroneously determ ined that Banks did not have the requisite num ber o f em ploy e e s to legally m andate Banks t o purchase workers’ com pensation insurance.” Id. at 465. Ultim ately , based on an

error in statutory interpretation, H arper chose not to obtain workers’ com pensation insurance
f or Banks. Id. ¶4. H o w e ver, the Court o f Appeals held t hat Harper’s decision not to obtain w o r k e r s ’

com pensation insurance did not preclude his dependen t s f rom recovering workers’

com pensation benef

its f rom Banks. Id. at 456. Apply ing Section 71-3-79 of the Mississippi Code, the court held that “ [ t he statute] clearly states that an ‘executive of f icer m ay reject [ the] coverage by giving notice i n writing to the carrier of this election not to b e covered as

an em ploy ee.”’ Harper , 136 So. 3d at 4 66 ( q u o t i n g M i ss. Code Ann. § 7 1-3-79). Thus, because Harper did not reject workers’ com pensation insurance coverage i n writing, the
Court of Appeals f

ound that he had not waived coverage by f ailing to o b t a i n i n surance. Harper , 136 So. 3d at 466. ¶5. Moreover, the Court of A ppeals hel d t h a t e v i d e n c e i n the record supported the
Com m i ssion’s decision that H arper’s strokes and subsequent death were caused b y his stress at work. Id. at 456-57.

6¶6. B a n k s f iled with this Court a P etition f or W rit of Certiorari

. W e grante d B a n k s ’ s petition to review two issues: (1) whether Section 71-3-79 of the Mississippi Code applies

to the f acts o f this case and (2) whether the W orkers’ Com pensation C om m ission’s f inding that Harper suf

f ered a com

pensable injury

is supported by

substantial evidence.
DISCUSSION
I. W h e ther Section 71-3-79 of the Mississippi Code applies to the fact s of this case. ¶7. In reviewing questions of law, this Cour t a p p l i e s a d e n o v o s tandard of

review. Natchez Equip. Co., Inc. v. Gibbs , 623 So. 2d 2 70, 273 ( Miss. 1 993). W hen e n g a g i n g in statutory interpretation, t his Court’s duty is “to neit h e r broaden nor restrict the l egislative
act.” Miss. Dep’t of Transp. v. Allred , 9 28 S o. 2d 152, 1 56 (Miss. 2006). A dd itionally , “courts cannot restrict or enlarge t he m e aning o f an unam biguous statute.” Green v. Cleary Water, Sewer & Fire Dist. , 910 So. 2d 1022, 1027 (Miss. 2005). [ W hen] considering a statute p assed by t he Legislature, . . . the f irst question a court s hould decide is whe t h e r t h e statute is am biguous. If it is not am biguous, the court s hould si m p l y apply the statute according t o its plain m eaning and s hould n ot u se principles of statutory construction. W hether the statute i s a mb i g uous or not, the ultim ate goal o f this Court is t o discern and give ef f ect to the legislative intent.
Allred , 928 So. 2d at 154 (quoting City of Natchez v. Sullivan , 612 So. 2d 1 087, 1 089 (Miss. 1992) (citations om itted)). ¶8. Section 71-3-79 of the Mississippi Code, provides: Acceptance of a premium o n a policy securing to an em ploy ee com

pensation, either alone or i n connection with othe r insurance, s hall estop the carrier so accepting f

rom p leading that the em

ploy m ent of such em

p loy ee is not covered under this chapter or that the em ploy m e nt i s not carried on f

or pecuniary gain.

7W h en any m em ber of a partnership, f

irm , or association who does o r d oes not perf orm m anual labor, a nd where there is coverage of fellow employees , elects to t ake coverage under the provisions of this chapter, the intent of the insured as well as accep t a n c e by the carrier shall be shown by endorsem ent to the policy

. Any such af

f irm a tive action b y t h e parties shall e ntitle said m em bers or of f icers to the benefits enjoyed by an employee under this chapter. Every executive o

fficer elected or appoin t e d and em powered in accordance with a charter and by laws of a corporation, other than nonprof it charitable, f

raternal, cultural, or religious corporations or associations, s hall be an employee of such corporation under this chapter , provided that s a id executive o fficer m ay 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

. 2 0 1 1) (em phasis added). Section 71-3-79 is not am biguous. As such, f

or this statute to be applicable, there m ust h ave been ( 1) coverage e xtended by a carrier, (2) which w as provided by t h e e mp l o y e r, and (3) was accepted or denied by

em ploy e es. I n the instant case, none of the prescribed events occurred. There was no policy providing coverage to any Banks em ploy ee. ¶9. T h e W o rkers’ Com pensation C om m ission f

o und that “[ t ]here can b e no a r g u me n t , theref ore, that Mr. Harper e lected not to be covered as an executive of f icer b ecause there was

no policy f

rom w hich he could h a v e o t h e r wise excluded him self .” However, the Court of Appeals, rely i n g o n 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 m isplaced, because workers’ com pensation insurance coverage f or Banks did not exist. ¶10. Coverage m

ust e xist p rior to any em

p loy ee’s “ reject[ ing] said coverage.” Miss. Code
Ann. § 71-3-79 (Rev. 2011). During Harper’s te n u re with the f irm , the f irm chose not to purchase workers’ com

pensation insurance. Thus, neither H a r per nor any e ligible em

ploy ee

8of B anks could “reject said c overage” by wr i t t e n n o t i c e to a c arrier, because there was no

carrier to w h o m H a r p e r o r any eligible em ploy e e could provide w ritten notice to reject nonexistent coverage. ¶11. The r ecord is clear that Banks had not purchased workers’ com p ensation i n s u r ance
coverage f

or any of i ts em

ploy ees at the tim e of Harper’s strokes and s ubsequ e n t death. It also m ust be determ ined whether B anks was an e m ploy er subject to the Act. Section 71-3-5 of the Mississippi Code provides: The f ollowin g shall constitute em ploy e rs subject to the provisions of this chapter: Every person, f

irm and p r ivate corporation, including a ny public service c o r p oration but e xcluding, h owever, all nonprof it cha r i t a b l e , fr a t e r n a l , c u l t u r a l , or religious corporations or associations, that have in service f ive ( 5) or more workmen or operatives regularly in the same business or in or about the sam e establishm ent under any contract of hire, express or im plied.

. . . Any employer m a

y e lect, by proper and written a ction o f its own governing authority, to be exempt f rom the provisions of the W orkers’ Com pensation Law as to its sole p roprietor, its partner in a partnership or to i ts e m ploy ee w ho is the owner of

f if teen percent (15%) or m ore of its stock in a corporation, if such sole proprietor, partner or em ploy ee a l so v oluntarily agrees thereto in wri t ing. Any sole p roprietor, partner or em ploy e e owning f

if teen percent (15%) or m o r e of the stock of his/her corporate em ploy er who becom es exem pt f rom coverage under the W orkers’ Com pensation Law s hall be excluded f

rom the t otal num

ber of workers or operatives toward reaching the m andatory coverage threshold level of f ive (5). Miss. Code Ann. § 71-3-5 (Rev. 2011) (em phasis added). ¶12. The W orkers’ Com pensation Com m ission f

ound that Banks em

ploy ed a m i nim

um of
f ive people. The r ecord r ef l ects that Banks Fin l ey em p loy ed at least the f

ollowing people: Milton Harper, Kaiser Brown, David Ewing, Jr., D i an Brown, and R o bert Sultan. Because

9Banks em

ploy ed f ive people, it is c lear that Banks f e ll within the p rovisions of Section 71-3- 5 during the tim e relevant to Harper’s claim

. ¶13. Section 71-3-5 provides a m ethod by which an em

ploy er can exem

p t itself f rom the provisi o ns of workers’ com pensation law, by excluding certain em ploy ees f rom the total

num ber of workers. Nothing i n the record indicates that Banks p rovided any w ritten notice th a t it was electing to exem p t Harper f

rom coverage, nor d id it provide any evidence that Harper agreed with Banks’s exem ption of Harper f rom coverage. ¶14. Chief J ustice W al l e r ’ s dissent, rely ing upon a case f rom Mary land based upon that

s t a t e ’s workers’ com

pensation statutes, avers that Harper waived workers’ com pensat i o n
coverage by f

a iling to obtain workers’ com pensation insurance. Mississippi law m andates that the state’s worker’s com pensation laws apply to “ [ e] very p erson , f

i rm and private corporation, including a ny public service corporation

. . . that h ave in s e rvice f ive (5) or m ore workm en or o peratives r egularly in the s am e business.” Miss. C ode Ann. § 7 1

- 3-5 (Rev. 2011) ( em

phasis added). Harper unequivo c a l l y was c overed by Mississippi’s workers’

com pensation laws at the tim e of his death. ¶15. Furtherm ore, our Legislature provided m eans by which partners such as Harper can waive, through express writing, the applicability of worker s ’ c o mp e n sation c overage. Id. (“Any em ploy e r m ay elect, b y proper and written action of its own governing authority , to be exem pt f rom the provisions of the W orkers’ Com p ensation Law

. . . .”). A com m on rule of statutory construction is expressio unius est e xclusio alterius , which t ra n s l a t e s a s “expression of the o ne is exclusion of the other.” See McCoy v. McRae , 2 04 Miss. 309, 317

1 0(Miss. 1 9 48). This C ourt has explained this venerable principle: “ where a statute enum erates

and specif

ies the s ubject or things upon w hich i t i s to o perate, it i s t o be construed as excluding f

rom its ef

f e ct all those n ot expressly m entioned or under a general clause.”
Southwest D rug C

o. v. Howard Bros. Pharm a cy of Jackson, Inc. , 3 20 So. 2d 776, 779 (Miss. 1975) (citing A kers v. Estate of J o h n s o n , 236 So. 2d 437 (Miss.1970)). Thus, by providing a specif

ic m echanism through which partners can waive t h e applicability of Mississippi’s workers’ com pensation laws, the Legislature has f oreclosed all other f

orm s of waiver, includi n g waiver through inaction. The W aller d issent seeks to superim pose onto Mississippi’s workers’ com pensation statutes a provision f or waiver through inaction, even though this has not been included in the applicable statutory f ram ework. ¶16. Ultim ately , n othing in the record supports the conclusion that the accounting f irm was

exem pt f rom the Act and did not owe benef its to the dependents of

one of its partners.
II. Whether the W o r kers’ Com pensation Com m i ssion’s finding that Harper suffered a com pensable injury is supported by substantial evidence. ¶17. The s tandard of review u tilized by this Court w hen considering an appeal of a decision of the W orkers’ Com

pensation C om m ission is w ell settled: “[ t]he f indings and order of the
W o rkers’ Com

pensation Com m ission are binding o n this Cou r t s o l o n g as t hey are ‘ supported by substantial evidence.’” V ance v. Twin River Hom es, 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 m ore than a “ m ere scintilla” of evidence, Johnson v. Ferguson , 435 So.
2 d 1 191, 1195 ( Miss. 1983), but it does n ot r ise to the level o f “a preponderance of t h e

1 1evidence.” 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 a re bound t o the W orkers’ Com pensation C o m m ission’s f indings of f

a c t e v e n though the evidence would convince us otherwise if we were the ultim ate f act f inder. Barnes

v. Jones Lum ber Co. , 637 So. 2d 8 6 7 , 869 (Miss. 1994). “This Court will overturn a [ C]om m ission decision only f or an error of law or an u nsupportable f inding of f

act.” Georgia Pacific Corp. v. Taplin , 586 So. 2d 823, 826 (Miss. 1991) ( citations om itted); see also Hedge

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

a Com m ission decision unless it f inds that th e d e c i sion was “arbitrary and c apricious.” Taplin , 586 So. 2d at 826. Moreover, even “ [ d]oubtf ul cases should be resolved in f avor of

com pensation, so as to f

ulf ill the benef

icial p urposes” o f statutory law. M iller Transporters, Inc. v. Guthrie , 554 So. 2d 917, 918 (Miss. 1989). ¶19. In workers’ com

pensation cases, the claim ant bears the burden of proving by a “f air preponderance o f the evidence” the f ollowing elem e nts: (1) an a ccidental injury , (2) arising

out of and in the course of em p loy m ent, and (3) a causal connection between the injury and the death or claim ed disability

. Hedge , 641 So. 2d at 13. Thus, we m u st review t h e r e c o r d
f or the purpose of deciding whether there is e v idence supporting the Com m i ssion’s decision.
W e are not t o e n g a g e in a de novo balancing of the evidence, as the Colem a n dissent
encourages us to do here. S e e R.C. Petroleum , Inc. v. Hernandez , 5 55 So. 2d 1017, 1021 (Miss. 1990). Signif

icantly , the adm i nistrativ e l aw judge, the W orkers’ Com pensation
Com m i ssion, the H inds County Circuit Court, and t h e Mississippi Court o f Appeals have

1 2reviewed the record and have decided that there i s substantial evidence in the record

supporting Harper’s claim

. Furtherm ore, the Colem an dissent om i t s a n d t heref ore f ails to consider the bulk of

the evidence supporting the Com m ission’s decision. ¶20. Dr. Tiwari, an expert f or Harper’s benef

iciaries and a phy sician who treated Milton Harper on August 3, 2000, a f ter Harper’s f

irst stroke, testif

ied that Harper did not have any of the habits or conditions that a re likely causes of strokes, including “elevated cholesterol,

sm oking, obesity , sedentary lif esty le, and high blood p ressure.” He averred that “he did have high blood pressure, but it wasn’t terribly high.” He also treated Harper on January 30, 2001, af ter Harper had com

plained of u ncontrollable laughter, an unusual stroke sy m ptom

. Of that visit, D r. Tiwari o p i n e d that, of potential causes f or strokes, “we didn’t identif y any thing

o t h e r t h a n high blood pressure . . . . The diastolic was a hundred, and m a ny tim e s y o u c a n f ind n orm al people t hat go visit a doctor with a bottom n um b er being about a hundred, partly because they ’re stressed.” ¶21. Dr. Jeter, a n expert f o r Harper’s benef

iciaries and Harper’s prim a r y c a r e phy sician who treated his high blood pressure, testif ied that Harper had “labile hy pertension,” or blood
pressure constantly in f

lux due to his environm ent. This doctor reported that H arper’s blood
pressure would f

luctuate

. . . f

rom a norm al range to be elevated.” Dr. Jeter stated that the blood pressure of a person with labile hy pertension will change “when they get uptight

. . .

. ” He f u rther testif

ied that t here were no obvious contributing c auses to Harper’s str o k e s other than high blood pressure.

1 3¶22. Dr. Jeter also t estif ied t hat Harper’s personality as a “workaholic” was to blam e f or the f luctuations of his blood pressure, adding that “[ t]he Ty pe A personality

. . . puts them selves under a lot o f s tress because they have t o get e v ery thing d one.” He said that his
im p ress i o n o f Harper was that he was a “workaholic” and that he was “continually push, push, push[ ing].” Dr. Jete r s a i d t hat this was “probably contributing to his blood pressure . . . being elevated.” ¶23. D r . J e t e r d i s c u s s e d a t l e n g t h t h e i n t e r r elationship am ong vascul a r d i s e a s e , h y pertension, and stress. This phy sician stated that “stress can be an aggravated f act o r . . .

. [ V]ascular changes and stress cause[ ] increased [ blood] pressure, and tha t c a n af f ect the vascular sy stem

. ” He characterized stress as a “contributing f actor” to Harper’s death. ¶24. Dr. Davis, a neurosurgeon who did not tre a t H a r p e r , t e s t i f

i e d on behalf of

the accounting f

irm , opining that Harper’s strokes were caused by his high blood pressure. ¶25. This m edical testim ony leads to several conclusions. F irst, Milton Harper had labile hy p e rtension, a condition in w hich stress causes a p erson’s blood pressure to rise due to
stress. S econd , o t h e r than high blood pressure, there were no m edical causes o f Milton Harper’s stroke. T hird, Harper died of a stroke. T he only com ponent of a viable worker’s

com pensation c laim lef

t lacking was a causal connection between the stress causing Harper’s hy pertensio n a n d H a r per’s work. See Hedge , 641 So. 2d at 13 (requiring proof of an accidental injury a rising out of em ploy m ent and a c ausal connection between the i njury and the death or claim ed disability ). ¶26. Justice Colem a n’s dissent relies upon the f ollowing testim ony

of Dr. Jeter:

1 4Q. And y ou c annot state to a reasonable d eg r e e o f medical certainty or

probability

that Mr. Harper’s death was caused by his job at any point?
A. As I’ve stated bef

ore, the only thing y o u can say is that stress has an ef f ect on increasing high blood pressure, and high blood pressure can contribute to a stroke. Now, those are basic f acts. Q. Okay . W e a re talking specif ically here about M r. Harper. Y ou cannot say to a reasonable degree of m edical probability t hat Mr. Harper’s job contributed to or caused his death? A. No. It’s a possibility

. ¶27. Apparen t l y i n r e l i a n c e u p o n t his lone r ef erence to the record, Justice Colem an’s dissent sum m arizes Dr. Jeter’s testim o ny thusly : “ Dr. Jeter testif ied that it was possible that Harper’s uncontrolled b l o o d p ressure could have caused his f a tal stroke. He also testif ied

t h a t stress could have been a f a ctor in Harper’s death.” Colem an Diss. ¶ 48. This is a n inaccurate representation of Dr. Jeter’s testim ony . He plainly testif ied that it was a p ossibility that t he s tress of Harper’s work contributed to Harper’s death. Dr. Jeter d id n ot equivocate about the f

act that stress caus e s h y

p e r t e nsion a nd that Harper had no conditions which ty pically contribute to s t rokes other than h y pertension. Furtherm o re, the C olem a n dissent ignores the testim ony of t he other m edical experts who testif ied at the workers’ com

pe n s a t i on hearing. Strictly speaking, the record does not s upport Justice Colem an’s characterization of the expert testim ony

in this case. ¶28. The C olem an dissent f u r ther posits that there was no reliable evidence of causation
in this c ase. Rely i ng on Betchel C orporation v. P

hillips , 591 So. 2 d 814 (Miss. 1991), the dissent opines that “m edical evidence is required to prove causation.” Colem an Diss. ¶ 46. First, as discussed previously , there was expert testim ony in this case unequivocally linking

1 5Harper’s s tress to h is labile hy pertension and to h is str o k e . T h e evidence adduced at the hearing proves that the only k n o w n c ause of H a r per’s stress was his work f or B anks. It is
f undam ental in our justice sy s t em that lay witnesses can t estif y only with respect to their own experiences and knowledge. See M.R.E. 701 ( requiring f i rst-hand k

nowledge f

or the adm issibility of a lay opinion); M.R.E. 703 (“The f a c t s o r d a t a in the particular case upon which an expert bases an opinion o r inf erence m ay be those perceived b y or m ade known to the expert at or bef

ore t he hearing.”). Nowhere in case law f r om this Court or in Mississippi

statutes c a n be f

o und the principle e s p o u s e d by t he Colem an dissent t hat the worker’s

com pensation claim m

ust be built upo n the t estim o ny of o ne expert alone. But see R.C.
Petroleum , Inc. , 555 So. 2 d at 1021 (“Circum stantial e vidence m ay be u sed to e stablish the elem ents [ of a w orkers’ com pensation c l a i m ] .”); L.B. Priester & Son, Inc. v. Bynum ’s Dep e n d e n t s , 247 Miss. 664, 157 So. 2d 3 99 (1963) (sam e). Moreover, this evidentiary standard advocated by the Colem an dissent, if adopted widely throughout our jurisprudence, would be unworkable and unrealistic. For exam p le, what m

urder conviction could stand in the l ight of this standard? A f orensic pathologist can testif y that a decedent’s cause of death

was a shotgun wound to the head. That d o c t o r u s u a l l y cannot, however, testif y about the shooter’s identity , because t hat i nf orm ation is outside his k n owledge and expertise. The

sam e is t rue here. Given that phy sicians have established that H arper’s high blood pressure

was caused by stress and that his f at al stroke was c aused by high blood pressure, we m ust look to f irst-hand witnesses about the causes o f Harper’s stress, not entirely to the testim ony of phy sicians. See M .R.E. 701; R.C. Petroleum , Inc. , 555 So. 2d at1021.

1 6¶29. Milton Harper’s widow, M a ggie Harper, testif ied that Harper was a “workaholic” and that he was “constantly working.” She also stated that Harper kept say ing that h e was getting behind at work and having problem s balancing being out of town f or audits a n d t ry ing to

m anage the of

f ice at t he sam e tim e. Maggie sai d t h a t h e r husband was the ty pe of person who l i k e d t o perf

orm well and w ho pushed him self at work t o receive bonuses. Over the
y ears, Harper’s w ork stress began to take a toll on him

. W hen his w if e would advise him to
cut back, he would respond that he had “to go m ake a dollar.” S he also testif ied that he told her that his stress had nothing to do with her or with their f a m ily lif e. ¶30. Harper’s coworker K aiser B rown testif ied that Harper took r esponsibility f or m ost of the f irm ’s largest and m ost com p licated engagem ents. He averred t hat Harper worked f rom 8:00 a .m . until 6:30 or 7:00 p.m . o n week nights and u sually worked som e on the w eekend. Kaiser also testif

i ed that, around the tim e of his death, Harper had been having issues with another partner at Banks a bout prof it sharing and that several heated d isagreem ents between them had occurred. ¶31. Dian P a r k i n s o n , another coworker o f Harper’s at the f irm , conf irm ed that Harper would work f

rom about 8 a .m . until 7 p.m . and s tated that Harper had m ore responsibilities than any one else at Banks because he was the president. She also testif i ed that the f

irm had started using a new sof

tware program

in Septem

ber 2000 and that Harper had been having a dif f icult tim e learning to use the new sof tware. ¶32. In f

act, there is no evidence in the record that Harper’s s tress was caused by any thing other than his prof

essional lif

e.

1 7¶33. This is consistent with t h e f i n d i n g s o f t h e adm inistrative law judge, which were af f irm ed on appeal by

the W orkers’ Com

pensation Com m ission: The dependents of Harper have proven that Harper’s hy pertension was c aused by the stresses of w ork and that such hy pertension c a

used Harper’s s troke on August 3, 2000, and his death on July 10, 2001

. . . . The credible evidence showed that Harper w as under a considerable am oun t o f s tress f rom work w h i c h w a s m ore than the usual and e very day work s tress, including b ut no t lim ited to, (1) working long hours and working seven d ay s a w eek; (2) h aving partners f euding over prof

it sharing; (3) having problem s with a new c o m puter sof tware program shortly af

ter his August 3, 2000 stroke; and (4) m anaging the of f ice sim ultaneously while perf

orm ing out-of

-town audits a n d other accounting w o r k

. T he evidence a s a whole leads to the conclusion that the stress was s uch that it caused an increase in H arper’s blood pressure, w hich 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, t hat stress

was the cause of his high blood pressure, and that high blood pressure caused his stroke. As such, “substantial evidence” i n t he record c learly s u pports the Com m ission’s decision, which

was af f irm ed on this basis by t he Hinds County Circuit Court and the Court o f Appeals. This
i s e s pecially true in light of the f act that we are to be def erential to t he W orker s ’
Com pensation Com m ission’s role as the ultim a te f act f inder i n workers’ com

pensa t i o n c a s es. Barnes v. Jones Lum ber Co. , 637 So. 2d 867, 869 (Miss. 1994).
CONCLUSION ¶35. S e c t i o n 7 1-3-79 does not apply to the f acts as p resented. Because Banks ha d n o t

o b tained workers’ com

pensation insurance c overage, no em ploy ee, including Harper, had rejected workers’ com

pensation i ns u r a n c e c overage in writing. Banks, an accounting f irm with at least f

ive e m p loy ees, was subject to t h e p r o visions of the W orkers’ Com pensation
Act. Banks theref

o re is o b l igated to com

pensate H arper’s dependents, regardless of the

1 8reason the f irm had not obtained workers’ c o mp e n s ation insurance coverage. Moreover,

s u b s t a n tial evidence in the record supports the W orkers’ Com pensation C om m ission’s
f inding that H arper suf

f ered a com

pensable injury

. W e theref ore af f irm i n whole the decision of the W o rkers’ Com pensation Com m i ssion, w hich held t hat Harper’s f a tal stroke

was a com

pensable injury and that Banks was obligated to provide workers’ com pensation benef its to Harper’s benef

iciar i e s , regardless of whether Harper h ad erred in f ailing to procure workers’ com

pensation insurance f

or Banks. W e af

f irm the Hinds County

Circuit
Court’s holding that there was substantial evidence i n the record s u p porting the W orkers’
Com pensation Com m ission’s f inding that Harper h ad suf f ered a com

pensable i njury , but we

reverse and render its holding that Harp e r had waived workers’ com p ensation benef

its by
f ailing to obtain workers’ com pensation insurance f

or the Banks f

irm

. Finally , we af

f irm the
Court of Appeals’ holding that there was substantial e vidence in the record s upporting the Workers’ Com

pensation C om m ission’s f inding that Harper’s stroke w as a com pensable injury within the course and scope of his em p loy m e nt at Banks. But we hold that the Court of A ppeals erred by apply ing Section 71-3-79 of t he Mississippi Code to this case, because, under that statute, an entity f i rst m ust have o btained workers’ com pen sation insurance in order f o r a partner to opt out in writing. ¶36. THE JUDGMENT O F THE COURT OF A PPEALS I S A FFIRMED IN PART AND REVERSED I N PART. THE JUDGMENT OF THE H I N DS COUNTY CIRCUIT COURT IS AFFIRMED I N PART, R E V E RSED I N PART, AND RENDERED IN P ART. THE JUDGMENT O F THE WO R K E R S ’ C O MPENSATION COMMISSION IS AFFIRMED.
DICKINSON A ND RANDOLPH, P.JJ., LAMAR AND KING, JJ., CONCUR. WALLER, C.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY

1 9CHANDLER, PIERCE A ND C OLEMAN, JJ. COLEMAN, J., DISSENTS WITH

SEPARATE WRITTEN O PINION JOINED B Y WALLER, C.J., AND C HANDLER, J. WALLER, CHIEF JUSTICE, DISSENTING: ¶37. Milton Harper, a s president of Banks, Finley , W hite, & C o., P.C., was responsible f or ensuring the f

irm secured workers’ com pensation insurance. See Miss. C ode Ann. § 71-3-83 (Rev. 2011). The f

i rm , however, f

ailed to do so. Harper, according to the vice president of Banks at the tim e, m ade the d ecision not to obtain workers’ com pensation coverage. The vice president and Harper discussed t he m a tter, but , a c c o r d i ng to the v ice president, Harper ultim ately m ade the d ecision not to obtain coverage. Moreover, a s p r e s i d e n t of the corporation, Harper had a statutory duty to e n s ure the f irm carried w orkers’ com pensation

c overage. See Miss. Code Ann. § 71-3-83 (Rev. 2011) (m aking president of corpor a t i o n crim inally

liable f or f ailure to secure com

pensation). ¶38. Har p e r ’ s b e n e f

i ciaries now seek the very workers’ c o m pensation b enef

its Harper
f ailed to procure. Because I agree with the circuit court that Harper’s benef iciaries are barred
f rom recovering workers’ com pensation benef

its in this case, I respectf

ully dissent. ¶39. Banks em

ploy ed m ore than f

ive individuals and was s ubject t o Mississippi’s workers’

com pensation statutes. See Miss. Code Ann. § 71-3-5 (Rev. 2011). Banks, however, f ailed

to secure workers’ com pensation insurance w h i l e H arper was m a naging partner and president, and there was n o such coverage at the tim e of his injuries. The m ajority f inds that Harper’s b enef

iciaries are e ntitled to com pensation “regardless of the reason the f irm had not obtained workers’ com

pensation insurance c overage.” In other words, H arper, i n the f orm

2 0of his benef ici aries, i s not barred f

rom recovering b enef

its despite Harper’s own f ailure to secure workers’s com

pensation insurance. I disagree. ¶40. Wh i l e t h e r e a re no Mississippi cases on point, the Mary l and Court o f A p p e a l s conside r e d a sim i lar issue in a workers’ com pensation case m

uch l ike t oday ’s. There, a corporate of

f icer was injured while at work. Uninsured E m ployers’ Fund v. Lutter , 342 Md. 334, 3 37, 676 A.2d 51, 5 2 ( 1996 )

. The corporation, w hich he controlled, f ailed to obtain workers’ com

pensation insurance or opt out of workers’ com pensation coverage in writing

as r equired by Mary land law. Lutter , 676 A .2d at 5 3, 54. Nevertheless , t he o f f icer sought workers’ com

pensation benef

i t’s f rom the corporation. Id. ¶41. The of

f icer argued “that despite his decision not to purchase insurance f or hims elf

, he did not ef

f e ctively exem

p t him sel f f

rom coverage under t he A ct because he did not f ile written notice of his election to b e exem pt

. . . .” Id. at 5 4. The Mary land court disagreed. Id. The c ourt f

irst noted t hat there was no coverage f or the of f i cer to opt out of

, so t he Mary land

statute allowing of

f icers to exem

pt them selves f

rom c overage was inapplicable. Id. at 54-55. ¶42. The c ourt t hen f

ound that, b y d e c iding to f orego workers’ com

pensation insurance, the of f icer had waived his right to collect benef its u nder Mary l and’s workers’ com pensation schem e. Id. at 55. The court p r o v i d e d , “As corporate president, [ the of f i cer] was . . . the
person w ho m ade the decision not to protect him self

. . . .” I d. T heref

ore , “ h e cannot be
perm itted to receive benef its f r o m the [ Uninsured Em

ploy ers’] Fund m erely b ecause he neglected or ref

used to p erf

orm his duty

. . . .” 3 Id. M oreover, the court continued, a n of f icer

3 L u t ter so u g h t co m

p en s atio n f

ro m h i s co rp o ra t i o n , b u t b e c au se th e co rp o ratio n lack ed w o rk ers’ c o m

p en satio n in su ran ce co v erag e, an y b en e f its h e w o u ld h a v e reco v ered 2 1of a corporation who f ails t o obtain workers’ com pensation coverage m ay be h eld crim inally liable, and “Allowing him to collect workers’ com

p ensation benef

its . . . would violate the

com m on la w p r i n c i p l e that one should not be perm itted to benef it f rom his own crim inal conduct.” Id. at 56. ¶43. I f ind this rationale p ersuasive and would a pply the sam e r easoning here. 4 Harper had

a duty as a corporate of

f icer to secure workers’ com pensatio n i n s u r ance coverage. Miss. Code Ann. § 71-3-83 (Rev. 2011). He f ailed to do so. I n f

act, Harper could have been held crim inally and civilly liable f or f ailing to procure workers’ com pensation coverage. Id. (“If the em ploy er is a c orporation, the president

. . . t hereof shall be also severally liable to such
f ine or im prisonm ent a s herein provided f or t he f ailure of such corporation to secure the
pay m ent of com

pensation

. . . .”). And, like Mary land, Mississippi has long r ecognized the

com m on-law principle that “ a p a rty shall not derive any benef it in [ a] court f

rom his own wrong.” Buckner v. Calcote , 28 Miss. 432, 571 (Miss. Err. & App. 1855); see a lso Collins

v. C o llins , 625 So. 2d 786, 7 8 9 ( Miss. 1993). In short, to p araphrase the Mary land court, Harper was required to discharge the r esponsibilities of his position or s u f f er the
consequences. See Lutter , 676 A.2d at 56.

w o u l d h av e b een p aid b y th e state’s U n in su red E m p lo y ers’ F u n d

. L u tter , 6 7 6 A .2 d at 5 3

. 4 T h e L u tter case also tu r n ed o n M a ry lan d ’s n o tice o f ex e m p tio n statu te t h at allo w s an em p l o y er t o ex e m

p t certain o f

f icers f ro m t h e w o r k e rs’ co m

p en satio n statu tes, an d th e co u rt n o ted it lim ited its h o l d i n g to th e f acts o f th e case. T h e issu es raised th ere reg ard i n g th at n o t ice an d t h e state’s U n in su red E m p lo y ers’ F u n d are in ap p licab le to th e p r esen t case. T h e im p o rt o f th e case, h o w e v er, is clear an d p ersu asiv e

– a c o r p o r ate o f f icer can n o t f

a i l to ex ecu te h i s d u ty

an d th en later seek b en ef its d esp ite th is f

ailu re. 2 2¶44. Accordingly , I would af f irm the f indings of the Circuit Co u r t o f t h e F irst Judicial District of Hinds County that H arper, through his dependents, was barred f rom r ecovering benef its f rom Banks b ecause of Harper’s f ailure to obtain w orkers’ c om pensation insurance. CHANDLER, PIERCE AND COLEMAN, JJ., JOIN THIS OPINION. COLEMAN, JUSTICE, DISSENTING: ¶45. I j o i n C h i e f J u stice W aller’s dissent. I write separately because, r e g a r d l e s s o f
coverage issu e s , no com petent evidence exists any where in the record upon w hich any tribunal could r ely to reach a valid f inding that Harper’s s troke resulted f rom his work. Theref ore, the W orkers’ Com

pensation Com m i ssion award was not supported by s u bstantial evidence. ¶46. In workers’ com

pensation cases, we li mi t o u r r e v i ew to determ ining whether the
Com m i ssion’s de c i s i o n “was s u pported by substantial evidence, was arbitrary and/or capricious, was bey ond th e C o mmi s sion’s a uthority to m ake, or whether a claim ant’s constitutional or statutory rights were violated.” Ladner v. Zachry Constr. , 130 So. 3d 1085,
1088 (Miss. 2014). H arper’s dependents bore the burden of proving a c a u s a l 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 W

orkers’ Compensation § 265 (3d e d. 1982); Strickland v. M .H. McMath Gin,
Inc. , 457 So. 2d 925, 928 (Miss. 1984).
A cl aim a nt’s p roof o n the issue of causal connection m u st r ise above m ere speculation or possibility , a s “where the m edical testim ony i s t hat it c ould have been one way j ust as well as the other.” Dunn, Mississi p p i Wo rkmen’s Compensation § 2 73 (2d ed. 1978) ( f ootnote om itted). See a lso Southern

2 3Brick & Tile v. Clark , 247 So. 2d 692 (Miss. 1971). Likewise, once the burden

of proof shif ts to the em

ploy er, the sam e degree of proof is required in order to rebut the claim ant’s prim a f acie case. I t i s n o t e nough to m erely state t hat causation i s p ossible but that there is insuf f icient evidence a vailable upon which a m edical conclusion could be based. Hedge v. Leggett & P

latt, Inc. , 641 So. 2d 9, 1 5 (Miss. 1994). Although Rule 2 .8 of the Rules of the W orkers’ Com p ensation Com m i ssion states that, f or Com m i ssion purposes, the general rules of evidence a re relaxed, evidence still m u st be “com

petent” to be c onsidered. Expert m edical evidence is required to prove c a usation. Bechtel C

orp. v. Phillips , 591 So. 2d 814, 817 (Miss. 1991). ¶47. In S

onford Products Corp. v. Freels , 495 So. 2d 468 (Miss. 1 986), overruled on other grounds b y Bickham v. Departm e nt of Mental Health , 5 92 So. 2d 96 (Miss. 1991), the issue

was whether the workers’ c om pensation claim ant’s exposure to toxic chem i cals 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 w ould not be o bvious to the untrained lay m an, the claim ant m

u s t p r o v e t he causal connection between the alleged i njury and the alleged disability by com

petent m edical proof

.” Id. In h olding that Dr

. A n thony J. Verlangieri, a toxicologist, was com

petent to give expert causation testim ony , the Freels Court cited and relied upon Prosser, Law of Torts § 41(4th ed.1971), f or the f ollowing proposition: Causation i s a f

act. It is a m atter of w hat has in f act occurre d. A cause is a necessary antecedent: in a v ery real a nd practical sense, t he term em b races all things which h ave so f

ar contributed to the r esult t h at w ithout them it w ould not have occurred.

. . . The plaintif

f m ust introduce evidence which a f f o rds a reasonable basis f

or the conclusion that i t i s mo r e likely than not that the [ exposure to the chem ical] was a substantial f

actor in bringing about the result.

. . . W here t he conclusion

2 4is not one w ithin the com m on knowledge of l ay m e n, expert testimo n y ma y provide a suf

f icient basis f

or it.
Freels , 4 95 So. 2d at 472-473. The f actors that cause a stroke c an not be considered t o be within t he c o mmo n knowledge of a lay m an. W hile the Rules of Evidence m ay b e relaxed
f or purposes of workers’ com pensation hearings, p r o o f s till m ust be com

petent. As the
Freels Court wrote, com petent expert m edical testim ony m u s t b e p rovided to prove causation, and com

petent expert m edical testim ony is t hat which “af f o rds a reasonable basis
f or the conclusion that it is m ore likely than not” that the claim a n t’s work “was a s u bstantial
f actor in bringing about the result.” Id. ¶48. In short, the evidence bef ore the Com m ission is devoid of any expert testim ony that af f ords the necessary reasonable basis f o r the Com m ission to h ave concluded “that it is m ore likely than not” t hat H arper’s work caused his stroke and death. During the hearing bef ore the adm i nistrative judge, Dr. Marvin Jeter, Harper’s treating phy sician, testif ied that he f

irst began treating Harper i n J anuary 1995 f or hy pertension. D r . Jeter treated H a r p er’s hy pertension with m e dication, and Harper responded f a vorably

. D r . Jeter considered his hy pertension to be w ell-con t r o l l e d when he t ook t he m edication as prescribed. However, Harper of ten was noncom

p l iant. W hen Harper a sked what h e could d o i n l i eu of taking

m edication, Dr. Jeter inf

o r m ed him that changes in his diet and exercise regim e also could aid in controlling his h y

pertension. At no t im e did Dr. Jeter e n courage Harper to a l ter his job duties. H e d i d t estif

y t hat Harper reported that he was under stress a t his job. Dr. Jeter testif i ed that stress does tend to increase a person’s blood pressure. Dr. J eter adm itted that he was n ot aware of what Harper’s blood p r e s s u r e was at t he tim e o f his d eath b ecause he

2 5last saw Harper in 2000 af ter his f irst stroke. Dr. Jeter testif ied that it was p o s s i b l e t h a t Harper’s unc o n t r o l l e d blood pressure could have caused his f a tal stroke. He also testif ied that stress could have been a f actor in Harper’s death. ¶49. On cross-exam ination, Dr. Jeter t estif ied that h e could not state t o a reasonable degree of m edical probability t hat Harper was under stress due to his job o r that Harper’s death was caused by his job. Q. But, in f

act, y ou cannot state to a reasonable degree of m edical probability that M ilton Harper w as under stress due to his job on J uly 8th, 2 001, can y ou?
A. Not on July

the 8th, 2001. Q. And –
A. Because he – Q. And y ou cannot state to a reason able degree o f m edical certainty or probability

that Mr. Harper’s death was caused by his job at any point?
A. As I’ve s tated bef

o r e, t he only thing y ou c a n say is that stress has a n ef f ect on increasing high blood pressure, a nd high blood pressure c an contribute to a stroke. Now, those are basic f a c ts. Q. Okay

. W e are talking specif ically here about Mr. Harper. You cannot say to a reasonable degree of m edica l p r o b a b ility that Mr. Harper’s job contributed to or caused his death?
A. No. It’s a possibility

. Q. In f act, y ou have used that term a lot, it is just a possibility

. T hat is all y ou can testif y about?
A. Sure.

2 6The Harpers of f ered n o o ther testim ony to establish that Harper’s death was a result of his

em ploy m ent. W ith all respect t o t h e ma j ority , speculative testim ony such a s exists in the instant case does not am ount to an unequivocal causal linking, (Maj. Op. at ¶ 27), and while the m ajority m akes a nonspecif ic ref erence to other expert testim ony , it identif ies none that

m eets the requisite s tandard f or com petence set out above. B ecause the Harpers’ evidence
f alls well short of the level of c o mp e tent, they f ail to establish a prima facie showing of causation. No reasonable basis exists f o r t h e Com m ission’s award. Accordingly , I respectf ully dissent. WALLER, C.J., AND CHANDLER, J., JOIN THIS OPINION.

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