Summary
In Turnage, the carrier paid all of Turnage's hospital and accrued medical expenses that he incurred prior to the filing of the Form B-31.
Summary of this case from Cleveland v. Advance Auto PartsOpinion
No. 42847.
December 20, 1963.
1. Workmen's compensation — medical services — barred by limitations.
Where medical services were not furnished or authorized by employer and carrier within one year after final report and settlement receipt was filed, claim for additional compensation was barred by passage of time and it could not be revived or reinstated by subsequent authorizations of medical services. Sec. 6998-27, Code 1942.
Headnote as approved by Ethridge, J.
APPEAL from the Circuit Court of Hinds County; M.M. McGOWAN, Judge.
Bryan Gordon, Pascagoula, for appellant.
I. The lower court erred in affirming the order of the Workmen's Compensation Commission holding that the Commission was without jurisdiction, as more than one year had lapsed since the filing of the B-31 on October 30, 1958, and the filing of the appellant's B-5-11 on October 11, 1961.
A. The employer and carrier furnished medical treatment to the appellant after the filing of the B-31 and thereby tolled the running of the one-year statute of limitations.
B. The employer and carrier are estopped from invoking the statute of limitations on the appellant's claim.
Collation of authorities: Buecker v. Roberts (Mo. App.), 200 S.W.2d 529; Dixon v. Green, 240 Miss. 204, 127 So.2d 662; Graeber Brothers Inc. v. Taylor, 237 Miss. 691, 115 So.2d 735; Grubbs v. Revell Furniture Co., 234 Miss. 319, 106 So.2d 390; Hale v. General Box Manufacturing Co., 228 Miss. 394, 87 So.2d 679; Moss v. Stanbridge, 215 Ala. 237, 110 So. 17; Pepper v. Barrett, 225 Miss. 30, 82 So.2d 580; Pine v. State Industrial Comm., 148 Okla. 200, 78 A.L.R. 1287; Reynolds Metal Co. v. Brumley, 226 Ark. 388, 290 S.W.2d 211; Shainberg's Black White Store v. Prothro, 238 Miss. 444, 118 So.2d 862; Thomas v. Baker-Lockwood Manufacturing Co., 236 Mo. App. 1248; 163 S.W.2d 117; Townsley v. Miami Roofing Sheet Metal Co. (Fla.), 79 So.2d 785; Trehern v. Grafe Auto Co., 232 Miss. 854, 100 So.2d 786; Sec. 6998-27, Code 1942; Mississippi Workmen's Compensation Act, Sec. 28(b); 56 Am. Jur., Waiver, Sec. 24 p. 126; 58 Am. Jur., Workmen's Compensation, Sec. 413; Annos. 15 A.L.R. 2d 525, 24 A.L.R. 2d 1437.
Lawrence W. Rabb, Meridian, for appellee.
I. When the findings of fact of the full Commission are supported by substantial evidence, said findings must be affirmed on appeal. Barry v. Sanders, 211 Miss. 656, 52 So.2d 493; Cole v. Superior Coach Corp., 234 Miss. 287, 106 So.2d 71; Lee v. Haltom Lumber Co., 230 Miss. 655, 93 So.2d 641; Sullivan v. C S Poultry Co., 234 Miss. 126, 105 So.2d 558; United Funeral Homes, Inc. v. Culliver, 240 Miss. 878, 128 So.2d 579.
II. Once a workmen's compensation claim has been barred by the passage of time, it will not be revived, and a new period will not be set in motion by the furnishing of medical services after the claim period has run. California Co. v. State Industrial Court, 350 P.2d 957; Hobart Sales Service v. Harmon, 369 P.2d 628; Igoe v. Slaton Block Co. (Mo.), 329 S.W.2d 39; Indian Drilling Mud Co. v. McGrew, 311 P.2d 247; National Zinc Co. v. Groszek (Okla.), 350 P.2d 961; Riccioni v. American Cyanamid Co., Calso Chemical Div., 26 N.J. Super. 1, 96 A.2d 765; Rutledge v. Sandlin (Kan.), 310 P.2d 950; Solorio v. Wilson (Kan.), 169 P.2d 822; Vaughn v. Shell Pipe Line Co. (Okla.), 228 P.2d 180; Sec. 6998-27, Code 1942; Larson, Workmen's Compensation Law, Sec. 78.43(b); 12 Schneider, Workmen's Compensation, Sec. 2401 p. 71.
This workmen's compensation case involves an interpretation of one aspect of section 21 of the Mississippi act. Miss. Code 1942, Rec., § 6998-27. It provides that "the commission may, at any time prior to one year after date of the last payment of compensation," issue a new compensation order which may terminate, reinstate or award compensation. The issues are whether the commission was warranted in finding the claim had been barred by the passage of time, and it could not be revived or reinstated by subsequent authorizations of medical services. We affirm the commission's order and the judgment of the circuit court approving it.
On July 23, 1958 Preston Mills Turnage, claimant and appellant, slipped and injured his right shoulder while at work building a swimming pool. He was treated by doctors, and on August 21, 1958 Dr. Leslie Rush filed a final medical report, Form B-27, and another form required by the commission. Based on these reports and the fact that Turnage returned to work on October 15, 1958, the carrier paid him compensation to that date, his hospital expenses and accrued medical expenses. Turnage accepted a check marked "final payment for this injury," and signed a Final Report and Settlement Receipt, Form B-31. It was duly filed and a copy mailed to claimant.
Following execution of the B-31 on October 30, 1958, there was conflicting evidence concerning whether the carrier or employer authorized medical services for Turnage within one year after that date. The commission found (affirming the attorney referee) that claimant did not file his claim for additional compensation benefits until October 11, 1961, almost three years after he signed the final settlement receipt; and that more than one year had elapsed between the last payment of compensation and filing of the B-31, and the filing of the claim in 1961. The claim was barred by the one-year limitation statute.
After a careful examination of the record, we conclude that there was substantial evidence to support the commission's finding that no medical payments were either authorized or made during one year after October 30, 1958 (date of final settlement receipt, B-31). There is some evidence to indicate that, after the one-year period had transpired, a claims adjuster for appellees authorized, at least by implication, further medical treatment. But it is well settled that once a workmen's compensation claim has been barred by the passage of time, it will not be revived and a new period will not be set in motion by the furnishing of medical services after the claim period has run under section 21 of the act. 2 Larson, Workmen's Compensation Law, § 78.43(b), pp. 271-272, summarizes the prevailing view:
"Once the claim has been barred by the passage of time, it will not be revived and a new period will not be set in motion by the furnishing of an isolated bit of medical service years after the injury. The objective of the statute being to protect the claimant who reasonably refrains from making claim because of the receipt of benefits voluntarily supplied, no claimant can allege that his failure to make timely application was excused by something that happened after the claim was already barred. Moreover, since the employer was under no obligation to furnish such benefits once the right to them was barred, it cannot be said that he provided them as voluntary compensation payments." Vaughan v. Shell Pipe Line Corp., 204 Okla. 175, 228 P.2d 180 (1951); National Zinc Co. v. Groszek, 350 P.2d 961 (Okla. 1960); Graham v. Pomeroy, 143 Kan. 974, 57 P.2d 19 (1936); Riccioni v. American Cyanamid Co., 26 N.J. Super. 1, 96 A.2d 765 (1953); Igoe v. Slaton Block Co., 239 S.W.2d 39 (Mo. 1959); Rutledge v. Sandlin, 181 Kan. 369, 310 P.2d 950 (1957); Wohlsen v. New Rochelle Coal Lbr. Co., 14 A.D.2d 661, 219 N.Y.S.2d 124 (1961); Youngelman v. City of New York, 217 N.Y.S.2d 83, 9 N.Y.2d 905 (1961).
In contrast with the foregoing rule are those cases where medical benefits are supplied or authorized within the one year allowed for reopening compensation cases. Such action tolls the statute. Dunn, Miss. Workmen's Compensation (1957), § 218.1. The cases to date from this jurisdiction deal specifically with the latter rule, in which medical services were furnished within the one year period. See Shainberg's Black White Store v. Prothro, 238 Miss. 444, 118 So.2d 862 (1960); Trehern v. Grafe Auto Co., 232 Miss. 854, 100 So.2d 786 (1958); Graeber Bros. Inc. v. Taylor, 237 Miss. 691, 115 So.2d 735, 117 So.2d 469 (1959).
(Hn 1) The commission found in effect that medical services were not furnished or authorized by appellees within one year after the B-31 was duly filed. Once the claim had been barred by the passage of the one-year period, as the commission determined, it could not be revived and reinstated by authorization of additional medical benefits thereafter.
Affirmed.
McGehee, C.J., and Kyle, Rodgers and Jones, JJ., concur.