Summary
In Hale v. General Box Manufacturing Co., [228 Miss. 394, 401, 87 So. 2d 679, 680 (1956),] when the employer filed a B-31 on January 20, 1954, at a time when it "did not consider the payment made in December 1952 as a final payment," the B-31 did not set the one-year period in motion.
Summary of this case from Cleveland v. Advance Auto PartsOpinion
No. 40128.
June 4, 1956. ON SUGGESTION OF ERROR
1. Workmen's Compensation — statutes — one year limitation period — notice of final payment — considered together.
Section 6998-27, Code 1942 which provides that the Commission may, at any time prior to one year after date of last payment of compensation, review a compensation case must be considered with Section 6998-19(g), Code 1942 which provides that within 30 days after final payment of compensation has been made, employer shall send to the Commission a notice, in accordance with form prescribed by the Commission, stating that final payment has been made, along with other information regarding the claim, and when so considered together, before the one year limitations period begins to run there must be a compliance by the employer with the mandatory provisions of Section 6998-19(g).
2. Workmen's Compensation — notice of final payment mandatory — claim for additional benefits — not barred by one year limitation period.
Where employee-claimant sustained injury in course of employment and insurance carrier thereafter paid compensation through December 18, 1952, and on January 5, 1953 notified claimant and Commission that claimant's payments had been suspended but gave no notice that final payment of compensation had been made as required by the mandatory provisions of Sec. 6998-19(g), Code 1942, and carrier in response to a communication from the Commission requesting it to check its file in connection with the claim and if the file was closed to submit final report on required form, notified Commission that it had information that claimant intended to make claim for additional benefits, and delayed filing final report until January 19, 1954, and on February 3, 1954, claimant, through his attorneys, wrote Commission and carrier that carrier had not paid any compensation since December 19, 1952, and demanded a hearing, which hearing was neither granted or refused and the matter lay dormant until February 1955 at which time claimant's motion for appointment of a physician by Commission to determine claimant's disability was entertained by Commission and overruled, and claimant on March 4, 1955 filed claim for additional compensation benefits on form prescribed by Commission, claimant's claim was not barred by one year limitation period, nor had the Commission lost jurisdiction of the case, and the holding of the attorney-referee, the Commission and the Circuit Court to the contrary was error, and judgment appealed from was reversed and remanded.
Headnotes as approved by Hall, J.
APPEAL from the Circuit Court of Lauderdale County; JESSE H. GRAHAM, Judge.
H.C. Watkins, Meridian, for appellant.
I. The Commission should have sustained claimant's motion for the appointment of a physician for a medical examination. Sec. 7(b), Miss. Workmen's Comp. Act.
II. The application of a statute of limitation is not a question of jurisdiction, instead is a matter of affirmative defense and must be affirmatively and timely pleaded and supported by competent evidence. American National Ins. Co. v. Hicks, 35 S.W.2d 128, 75 A.L.R. 623; Bates v. Asbury Iron Bridge Works, 130 N.J.L. 394, 33 A.2d 692; Consolidated Fuel Co. v. State Industrial Comm., 85 Okla. 112, 205 P. 170; C.W. Kettering Mercantile Co. v. Fox, 77 Colo. 90, 234 P. 464; Davis v. Davis, 210 Miss. 182, 49 So.2d 242; Easton National Bank v. American Brick Tile Co., 70 N.J. 732, 64 A. 717; Hill v. United Timber Lbr. Co. (Miss.), 68 So.2d 420; Hoke v. Cherokee County, 216 S.C. 376, 58 S.E.2d 330; Miller Co. v. McLone, 11 Okla. 241, 47 P. 479, 56 L.R.A. 620; Paull v. Preston Theatres Corp., 63 Idaho 594; Red River Lbr. Co. v. Fillsbury, 174 Cal. 37, 161 P. 982; In re Rich's Case, 301 Mass. 545, 17 N.E.2d 903; Rivera v. Johnston (Idaho), 225 P.2d 858; R.W. Hartwell Motor Co. v. Hickerson, 160 Tenn. 513, 26 S.W.2d 152; Valente v. Boggiano, 107 N.J.L. 456, 154 A. 817, 74 A.L.R. 834; Vessar v. Swift Co., 106 Kan. 836, 189 P. 943; Wheeler v. Castor, 92 N.W. 381, 61 L.R.A. 746; Young v. Sonoco Products Co., 210 S.C. 146, 41 S.E.2d 860; Sec. 6998-26, Code 1942; Sec. 21, Miss. Workmen's Comp. Act.
III. The carrier waived its privilege of relying upon the statute of limitations. Curtis v. Slater Constr. Co., 194 Mich. 259, 160 N.W. 569; Greener v. E.I. DuPont DeNemours Co., 188 Tenn. 303, 219 S.W.2d 185; Hints v. Western Electric Co., 75 A.2d 149; James L. McLaughlin Co. v. Ind. Acc. Comm., 26 Cal.2d 346, 159 P.2d 24; Lindblom v. Employer's Liability Assur. Corp., 88 Mont. 488, 295 P. 1007; Mayberry v. Bon Air Chemical Co., 160 Tenn. 459, 26 S.W.2d 148; Roberts v. Charles Wolff Packing Co., 95 Kan. 723, 149 P. 413; Smith v. Heine Safety Boiler Co., 119 Maine 552, 112 A. 516; Webb v. National Pipe Foundry Co., 213 Ala. 605, 105 So. 698; Sec. 13 (a, b, c,), Miss. Workmen's Comp. Act.
IV. The employer and carrier are estopped, in this case, to rely upon the statute of limitations. Baker-Matthews Mfg. Co. v. Grayling Lbr. Co., 134 Ark. 351, 203 S.W. 1021; Ross v. Tomaras, 341 Mich. 540, 217 N.W. 783; Carpenter v. Globe Indemnity Co. (R.I.), 14 A.2d 235, 129 A.L.R. 410; Empire Gas Fuel Co. v. Lindersmith, 131 Okla. 183, 268 P. 218; Goberlle v. Ray's Inc. (R.I.), 14 A.2d 241; H.C. Moody Sons v. Dedeaux, 223 Miss. 832, 79 So.2d 225; Hutson v. Miller, 148 Miss. 783, 114 So. 820; Izard v. Mikell, 173 Miss. 770, 163 So. 498; Nash Miss. Valley Motor Co. v. Childress, 156 Miss. 157, 125 So. 708; Panhandle Constr. Co. v. Hood, 114 N.W.2d 632; Plant Flour Mills Co. v. Sanders Ellis, 172 Miss. 539, 157 So. 713; State ex rel. Oliver v. U.S.F. G. Co., 176 N.C. 598, 97 S.E. 490; Vredenburg v. Bachman (Texas), 11 F.2d 874; Wilson v. Butt, 168 Va. 259, 190, 109 A.L.R. 1434; Sec. 13(g), Miss. Workmen's Comp. Act.
V. This case remained open and active, and the statute of limitations therefore did not begin to run. United Brotherhood of Carpenters Joiners of America v. Barr, 217 Miss. 360, 64 So.2d 150; Sweenye v. Kentucky State Highway Dept., 232 S.W.2d 1018; Volmer v. Hoel, 87 Ohio App. 199, 96 N.E.2d 416; Wood v. Peerey, 179 Miss. 727, 176 So. 721.
VI. If this Court should hold that this case was not active, that the doctrine of estoppel does not apply and the carrier would otherwise be permitted to rely upon the statute of limitation, then in that event, this Court should vacate the judgment of the Lower Court in this cause, and remand the same to the Circuit Court to likewise be remanded to the Commission for further proceeding consistent therewith. Mitchell v. State, 179 Miss. 814, 176 So. 743, 749, 121 A.L.R. 258.
VII. Reasonable failure to recognize character of injury or disease. Acme Body Works v. Keespel, 234 N.W. 756; Alford v. Industrial Acc. Comm., 28 Cal.2d 198, 169 P.2d 641; Anderson v. Constract Trucking Co., 48 N.M. 158, 146 P.2d 873; Baldwin v. Scullion, 50 Wyo. 508, 62 P.2d 531, 108 A.L.R. 304; Baughman v. Vicker's, Inc., 323 Mich. 710, 36 N.W.2d 191; Blassingame v. Southern Asbestos Co., 217 N.C. 223, 7 S.E.2d 478; Cleveland v. Laclede Christy Clay Products Co., 129 S.W.2d 12; Consolidation Coal Co. v. Perter, 64 A.2d 715; Donaldson v. Calvert McBride Printing Co., 232 S.W.2d 651; Fidelity Cas. Co. v. McKay, 73 F.2d 828; Finch v. Ford Motor Co., 321 Mich. 469, 32 N.W.2d 712; Free v. Associated Indemnity Corp., 78 App. 839, 52 S.E.2d 325; Gleeason v. Titanium Pigment Co. (Mo.), 93 S.W.2d 1039; Great American Indemnity Co. v. Britton, 179 F.2d 60; Griffin v. Rustless Iron Steel Co., 187 Md. 524, 51 A.2d 280; Harnischfeger Corp. v. Industrial Comm., 220 Wis. 386, 265 N.W. 215; Hartford Acc. Indemnity Co. v. Industrial Comm., 43 Ariz. 50, 29 P.2d 142; Johnston v. Commerce Pattern Foundry Machine Co., 40 N.W.2d 158; Keenan v. Consumers Public Power Dist., 152 Neb. 54, 54 N.W.2d 261; Kryden v. Omaha Steel Works, 26 N.W.2d 283; Kropp v. Parker, 8 F. Supp. 280; Larkin v. Georgia A. Fuller Co., 71 A.2d 690; Marsh v. Industrial Acc. Comm., 217 Cal. 338, 18 P.2d 933; Pacific Indemnity Co. v. Industrial Acc. Comm., 34 Cal.2d 726, 214 P.2d 530; Reinheld v. Industrial Comm., 253 Wis. 606, 34 N.W.2d 814; Roschak v. Vulcan Iron Works, 157 Pa. 237, 42 A.2d 280; St. Mary's Hospital v. Industrial Comm., 257 Wis. 411, 43 N.W.2d 465; Travelers Ins. Co. v. Mabry, 179 F.2d 216; Trustees Middle River Sanatorium v. Industrial Comm., 224 Wis. 536, 272 N.W. 483; Wheeler v. Missouri Pacific RR. Co., 328 Mo. 888, 42 S.W.2d 579; Larson's Workmen's Comp. Law, Sec. 78.31.
Snow Covington, Meridian, for appellees.
I. It is the duty of the Court to construe the Workmen's Compensation Act as it is written.
II. The Commission lost jurisdiction as more than one year had elapsed from the date of the last payment of compensation under the provisions of the Mississippi Workmen's Compensation Act, Section 6998-27, Mississippi Code of 1942.
III. Section 6998-27, supra, also referred to as Section 21 of the Act, applies so as to bar appellant's claim for further compensation.
IV. The doctrines of waiver or equitable estoppel cannot be invoked against appellees.
Collation of authorities: Brookhaven Steam Laundry v. Watts, 214 Miss. 569, 59 So.2d 294; Campbell Paint Varnish Co. v. Hall, 131 Miss. 671, 95 So. 641; Crooker v. Hollingsworth, 210 Miss. 636, 46 So.2d 541; Davis v. Davis, 210 Miss. 182, 49 So.2d 243; Gault v. Branton, 222 Miss. 111, 75 So.2d 439; Izard v. Mikell, 173 Miss. 770, 163 So. 498; Mississippi Power Light Co. v. Pitts, 181 Miss. 344, 179 So. 363; H.C. Moody Sons v. Dedeaux, 223 Miss. 832, 79 So.2d 225; Plant Flour Mills Co. v. Sanders Ellis, 172 Miss. 539, 157 So. 713; Secs. 6998-19(g), 6998-26, 6998-27, Code 1942; Anno. 165 A.L.R. 276; Rule 7, Miss. Workmen's Comp. Comm.
V. The Court construed the Section 21 of the Act as being a statute of limitations, and that the one-year period began to run on the date of the last payment of compensation, and that if no action is taken by the employee until after the period then the employee is barred.
ON SUGGESTION OF ERROR
On April 23, 1956, we affirmed this case. On consideration of a suggestion of error and the answer thereto we have reached the conclusion that we were in error and the former opinion is therefore withdrawn and the following is substituted as the opinion of the Court.
On December 3, 1951, the appellant sustained an injury which arose out of and in the course of his employment with General Box Manufacturing Company of Meridian, Mississippi. The insurance carrier thereafter paid compensation through December 18, 1952. On January 5, 1953, the carrier notified the claimant that it was suspending compensation payments as of December 19, 1952. A copy of that letter was forwarded to and filed with the Compensation Commission on January 6, 1953, but there was no notice that the final payment of compensation had been made as required by the provisions of Section 6998-19(g), Code of 1942. On June 12, 1953, the Compensation Commission requested the carrier to check its file in connection with the claim and if the file was closed that the carrier submit a final report on Form B-31. On June 15, 1953, the carrier wrote the Commission "We have information to the effect that the employee intends to make further claim for additional benefits under the Workmen's Compensation Act and we do not feel that it is advisable to submit a B-31 report at this time". Finally on January 20, 1954, the carrier filed with the Commission the final report on Form B-31 without the signature of the employee, which signature under the statute is not required. On February 3, 1954, less than a month after the filing of Form B-31, the claimant, through his attorney, wrote a letter to the Workmen's Compensation Commission advising that the carrier had not paid any compensation since December 19, 1952, and request was made that the claimant be granted a hearing to determine whether the employee is entitled to additional compensation. A copy of said request for a hearing was sent to the carrier. No hearing was granted or refused and the matter lay dormant until February 2, 1955, when the attorney for the claimant notified the Commission in writing, with a copy to the carrier, that the claimant had been examined by physicians selected by the carrier but had never had a doctor of his own choosing to examine him. The letter further stated that the claimant was unable to employ a physician and a motion was filed for the appointment of a physician by the Commission to determine the claimant's disability. The formal motion for that purpose was enclosed with the letter and a copy thereof was sent to the carrier. After a hearing on February 22, 1955, the attorney-referee overruled the motion and denied the request for a physicial examination by a doctor of the claimant's choosing. An additional claim on the form prescribed by the Commission was filed on March 4, 1955, and a hearing thereon was had on April 7, 1955, at which time the attorney-referee held that the claimant did not file his Form B-11 controverting the case until February 9, 1955, which was more than one year after the last payment of compensation, and the attorney-referee held that the Commission had lost jurisdiction of the case under Section 21 of the Compensation Act as amended, which is the same as Section 6998-27, Code of 1942. That Act provides that the Commission may, at any time prior to one year after the date of the last payment of compensation review a compensation case.
(Hn 1) In the case of H.C. Moody Sons v. Dedeaux, 79 So.2d 225, not yet reported in the State Reports, we held that Section 6998-27 must be considered in connection with Section 6998-19(g), which provides that within 30 days after the final payment of compensation has been made, the employer shall send to the Commission a notice, in accordance with a form prescribed by the Commission, stating that such final payment has been made, along with other information regarding the claim. The carrier in this case did not comply with that section and apparently did not consider the payment made in December 1952 as a final payment. It never notified the claimant that the payment was final but only notified him that his payments had been suspended. As late as June 15, 1953, the carrier notified the Commission that it had information that the employee intended to make claim for additional benefits and it delayed filing the final report on Form B-31 as prescribed by the Commission, until January 19, 1954. On February 3, 1954, the claimant, through his attorneys, demanded a hearing. When the two sections of the Act are considered together, it is clear that the claimant's cause was not barred and that the Commission had not lost jurisdiction under Section 6998-27, Code of 1942. Before the statute begins to run there must be a compliance with the mandatory provisions of Section 6998-19(g).
(Hn 2) We are therefore of the opinion that the attorney-referee, the Compensation Commission, and the Circuit Court were all in error in holding that the Commission had lost jurisdiction, and the suggestion of error is therefore sustained, and the judgment appealed from will be reversed and remanded.
Suggestion of error sustained and cause reversed and remanded.
McGehee, C.J., and Kyle, Arrington and Gillespie, JJ., concur.