* P ursuant to 5 TH C IR

. R. 47.5, the court has determined that this opinion should not be published and is not

precedent except under the limited circumstances set forth in 5 TH C IR

. R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 96-60701

(Summary Calendar)

HELEN SIMS,

Plaintiff - Appellant,

versus

HARTFORD ACCIDENT &

INDEMNITY COMPANY,

Defendant - Appellee.

Appeal from the United States District Court

for the Northern District of Mississippi

(4:95-CV-367)

June 30, 1997

Before DAVIS, EMILIO M. GARZA, and STEWART, Circuit Judges.

PER CURIAM: *

Ap p ellant Helen Sims (“Sims”) appeals the district court’s grant of summary judgment in

favor of Hartford Accident and Indemnity Company (“Hartford”). The district court found that Sims

was collaterally estopped from asserting entit lement t o temporary total disability benefits from2

Hartford and Hartford had a legitimate and arguable reason to deny Sims’ claim. Finding there was

no genuine issue of material fact, the district court concluded that Hartford was entitled to judgment

as a matter of law. For the following reasons, we affirm.

BACKGROUND FACTS AND PROCEDURAL HISTORY

Sims is a former employee of Conagra, Inc. (“Conagra”). On or about October 3, 1987, Sims

was injured while on the job. Sims report ed her injury to Conagra who notified its workers’

compe nsation carrier, Hartford. Hartford paid Sims medical bills and on January 15, 1988,

commenced payment of temporary total disability benefits to Sims.

Sims was init ially treated by Dr. Samuel S. Sugg and Dr. Guy T. Vise for her injury, however

on February 4, 1988, she began receiving treatment from Dr. Curtis Slipman. On June 9, 1988, Dr.

Slipman issued a report to Hartford stating that Sims had reached maximum medical improvement

and that she co uld work within certain restrictions. Hartford discontinued payment of Sims’

temporary total workers’ compensation benefits on July 25, 1988 in reliance on Dr. Slipman’s June

9, 1988 report. Hartford did not notify Sims of the suspension of benefits.

At the time o f t he suspension of benefits, Conagra had several jobs within Sims’ medical

restrictions. However, Sims did not reapply for work nor did she contact Conagra’s personnel

department regarding the possibility of returning to work.

Sims filed a Petition to Controvert with the Mississippi Workers’ Compensation Commission

alleging that she was permanently disabled. Hartford disputed whether Sims suffered any lo ss of

wage earning capacity and/or permanent disabili ty under the Mississippi Workers’ Compensation Act.

Pursuant to the Act, Hartford e xercised it s right to have Sims examined by a physician of its3

choosing. Dr. George Truett, orthopedic surgeon, examined Sims on January 24, 1990 and

determined that she could gradually resume her pre-injury employment.

On April 22, 1994, Sims’ workers’ compensation claim was heard by a state Administrative

Law Judge (“ALJ”). On June 23, 1994, the ALJ ruled that Sims was entitled t o t emporary total

disabilit y benefits for the period of Jan uary 15, 1988 through June 9, 1988, and to the payment of

permanent partial disabilit y in t he amo unt of $25.00 per week for 450 weeks. The Mississippi

Workers’ Compensation Commission affirmed the orde r on December 9, 1994. Neither party

appealed from the decision of the Commission.

On October 4, 1995, Sims filed suit against Conagra and Hartford (collectively referred to as

“Defendants”) in state court alleging bad faith handling of her claim for workers’ compensation

benefits. Sims sought compensatory and punitive damages. Defendants removed the case to federal

district court. Conagra filed a motion for summary judgment on the grounds that it did not make any

of the decisions regarding Sims’ claim. The district court granted Conagra’s motion on April 18,

1996, and Sims did not appeal. Subsequently, Hartford filed a motion for summary judgment asking

the court to dismiss Sims’ claim for contractual and punitive damages. The district court granted the

motion on September 13, 1996, concluding among other things, that Sims was collaterally estopped

from challenging the ALJ’s and commissions conclusions. Sims timely appealed.

DISCUSSION

We review a grant of summary judgment under the parameters established by Fed. R. Civ. P.

56. Summary Judgment shall be granted if the record, taken as a whole, “together with affidavits,

if any, show that there is no genuine issue as to any material fact and that the moving party is entitled

to a judgment as a matter of law.” Fed. R. Civ. P. 56. “We review a grant of summary judgment d e1 In Southern Farm Bureau Casualty Ins. Co. v. Holland

, 469 S.2d 55 (Miss. 1984), the Mississippi Supreme

Court concluded that under the Mississippi Workers’ Compensation Act, the statutory penalty for the non-pay ment

of benefits to an injured worker is compensation. I d

. at 58. The act did not contemplate and failed to address separate

and independent torts, thus the independent action of bad faith refusal to pay w or kers’ compensation benefits was

recognized. Id

.

4 novo , applying the same standard used by the district court, and in reviewing the facts, we draw all

inferences most favorable to the party opposing the motion.” M ulberry Square Productions, Inc. v.

State Farm Fire and Casualty, Co.

, 101 F.3d 414 (5th Cir. 1996); Raju v. Rhodes

, 7 F.3d 1210, 1212

(5th Cir. 1993). Where the record taken as a whole could not lead a rational trier of fact to find for

the non-moving party, there is no genuine issue for trial. M atsushita Electric Industry Co. v. Zenith

Radio Corp. , 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

Our review of this diversity case is limit ed to the substantive law of Mississippi. Dial v.

Hartford Accident & Indemnity Co

., 863 F.2d 15 (5th Cir. 1989). Mississippi law allows an

employee to bring a torti ous breach of contract action against his employer’s workers’ compensation

carrier for bad f

ait h refusal to provide benefits. 1 Southern Farm Bureau Casualty Ins. Co. v.

Holland

, 469 S.2d 55 (Miss. 1984); Richards v. Amerisure Ins . Co

. , 935 F.Supp. 863, 869 (S.D.

Miss. 1996); Billingsley v. United Technologies Motor Systems, 895 F.Supp. 119 (S.D. Miss. 1995);

Powers v. Travelers Ins. Co

., 664 F.Supp. 252, 253 (S.D. Miss. 1987). However, “the only route

to the recovery of puniti ve damages under Mississippi law is via a determination of entitlement to

[contractual] benefits in accordance with the Mississippi Workers Compensation Act.” S hepherd v.

Boston Old Colony Ins. Co

., 811 F.Supp. 225

, 232 (S.D. Miss. 1992). Under Mississippi law, the

Workers’ Compensation Commission has exclusive jurisdiction to determi ne the right to

compensation. Powers , 664 F.Supp. at 255.2 In Walker , 793 F.Supp. at 697, this court stated that “it is well settled in the Fifth Circuit that in a federal

diversity case a prior state court judgment cannot be given a greater collateral estoppel effect than the state in which

the court sits would give it apparently because Erie principles require the federal court sitting in diversity to apply the

s tate’s law of collateral estoppel.” Thus, Mississippi law controls the question of whether collateral estoppel is

applicable in this case.

5 Since we find that the district co urt pro perly concluded that Sims’ action was barred by

collateral estoppel, we will confine our discussion to this issue and not address the merits of Sims’

claim.

The crux of Sims’ argument is that Hartford wrongfully terminated her tem porary total

disabilit y benefits on July 25, 1988. It is undisputed that Sims suffered an on-the-job injury on

October 3, 1987 and as a result of that injury, Sims received temporary total disabilit y from January

15, 1988 through July 25, 1988. On the later date, Hartford suspended payment of Sims’ temporary

total disability benefits in reliance upon a letter from Dr. Slipman indicating that Sims had achieved

maximum medical recovery and could return to work with certain restrictions. Sims’ filed a Petition

to Controvert with the Workers’ Compensation Commission where the case was heard by a state

ALJ. The ALJ ruled that Sims’ was entitled to benefits from January 15, 1988 through June 9, 1988

and e n titled to permanent partial disabilit y benefits at a weekly rate of $25.00 per week for 450

weeks. The Workers’ Compensation Commission affirmed the ALJ’s ruling.

Sims now attacks the Commission’s and ALJ’s conclusions. The doctrine of collateral

estoppel, however, prevents her from doing so. In assessing whether an issue has previously been

adjudicated barring subsequent litigation, Mississippi subscribes to th e D unaway test. 2 W alker v.

Kerr McGee

, 793 F.Supp. 688, 694-95 (N.D. Miss. 199 2). Under the D unaway test, collateral

estoppel will bar litigation of an issue where: (1) the plaintiff is seeking to relitigate a specific issue;

(2) the issue has already been litigated in a prior lawsuit; (3) the issue was actually determined in the6

prior lawsuit; and (4) the determination of the issue was essential to the judgment in the prior lawsuit.

Id

. at 695. ( citing Dunaway v. W.H. Hopper & Associates, Inc.

, 422 So.2d 749, 751 (Miss. 1982)).

Sims filed a claim with the Mississippi Workers’ Compensation Commission seeking to

recover permanent total disabilit y benefits for an accident sustained on October 3, 1 987 while

employed at Conagra, Inc. The sole issue determined in that matter was the nature and extent of the

disabilit y Sims suffered in the accident. An ALJ concluded that Sims did not suffer a permanent

disabilit y. The Commission affirmed the ALJ’s finding. In reviewing the evidence and determining

Sims’ eligibilit y, the ALJ and the Commission were forced to examine the nature and extent of Sims’

injuries. After a thorough examination of the record, both entities concluded that Sims was ineligible

for permanent total disability benefits.

Now, Sims asks this court to relitigate the issue and f ind t hat she did, in fact, suffer a

permanent total disabilit

y and is entitled to permanent total disability benefits. Clearly, Sims

introduced the same case to the district court that had been previously presented before the Workers

Compensation Commission. As stated previously, Sims claim for workers’ compensation is within

the exclusive purview of the Mississippi Workers’ Compensation Commission, neither the state courts

of Mississippi nor the federal courts have the authority to determine whether Sims wa s entitled to

contractual damages. Thus, we find that the issue presented to the district court has been previously

determined by the Workers’ Compensation Commission and is barred from relitigation by the doctrine

of collateral estoppel.

AFFIRMED.