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IN THE COURT OF APPEALS 12/17/96 OF THE STATE OF MISSISSIPPI
NO. 94-CC-00429 COA

MISSISSIPPI EMPLOYMENT SECURITY COMMISSION APPELLANT v. BARBARA P. NICK APPELLEE

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B

TRIAL JUDGE: HON. GRAY EVANS COURT FROM WHICH APPEALED: WASHINGTON COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: FRED J. LOTTERHOS ATTORNEY FOR APPELLEE: STEPHEN NICK NATURE OF THE CASE: STATE BOARD AND AGENCY (OTHER THAN WORK COMP)-MESC TRIAL COURT DISPOSITION: UNEMPLOYMENT BENEFITS ALLOWED

BEFORE McMILLIN, P.J., PAYNE AND SOUTHWICK, JJ. McMILLIN, P.J., FOR THE COURT:

This case comes before the Court on an appeal by the Mississippi Employment Security Commission of a decision rendered by the Circuit Court of Washington County. The matter before the circuit court was Barbara P. Nick's appeal under section 71-5-531 of the Mississippi Code of 1972 of the Commission's decision that her weekly unemployment benefits be reduced in an amount equal to the portion of her social security retirement benefits attributable to her prior employment. The circuit court reversed the decision of the Commission, finding that Nick was entitled to full benefits under the State's statutory unemployment program. We conclude that the circuit court decision is not supported by the applicable law and must be set aside. However, under the doctrine of plain error, we further conclude that the Commission committed an error of law when it computed Nick's entitlement to benefits and that Nick is, in fact, entitled to no benefits rather than the reduced amount allowed by the Commission. Nick became eligible for social security retirement benefits in 1990. The Social Security Administration computed the amount of her monthly benefit based upon her work history and contributions to the program and, alternatively, as the eligible wife of her retired husband. See 42 U.S.C.

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Mississippi Law