Armstrong Tire & Rubber Co. v. Franks

• Decision Date: 22 January 1962
• Docket Number: No. 42091,42091
• Citation: 242 Miss. 792,137 So.2d 141
• Parties: ARMSTRONG TIRE & RUBBER CO. et al. v. Earl FRANKS.
• Court: Mississippi Supreme Court

Page 141

137 So.2d 141

242 Miss. 792

ARMSTRONG TIRE & RUBBER CO. et al. v. Earl FRANKS.

No. 42091.

Supreme Court of Mississippi.

Jan. 22, 1962.

Laub, Adams, Forman & Truly, Natchez, for appellants.

Clyde W. Mullins, Natchez, for appellee.

ETHRIDGE, Justice.

The main issue in this case is whether the Mississippi Workmen's Compensation Commission abused its discretion in reopening a compensation claim on the ground of a mistake in a determination of fact. Subsidiary questions are concerned with the effect of a commuted lump sum payment, and a plea by the employer and insurance carrier that claimant was estopped to obtain a reopening. We hold that the commission was amply justified in reopening the claim and refusing to apply the doctrine of estoppel.

Appellee Earl Franks received on May 30, 1958, an accidental injury to his left arm, which arose out of and in the course of his employment for appellant, Armstrong Tire & Rubber Company. He received fractures of both bones of the lower left arm. Franks was paid temporary total disability benefits for sixty weeks. He was not able to use the left arm. It was totally disabled during this period and subsequently up to the time of the hearings in 1960.

The Mississippi Workmen's Compensation Act provides for a system of voluntary payments, unless the employer and insurance carrier controvert the claim. Miss. Code 1942, Rec., Sec. 6998-19; H. C. Moody & Sons v. Dedeaux, 223 Miss. 832, 79 So.2d 225 (1955). All compensation benefits paid to Franks by appellants were voluntary. Franks was treated by Dr. G. S. Hicks, to whom the employer and insurance carrier had sent him. In addition, appellants sent claimant to two orthopedists, who recommended additional surgery on the arm. Dr. Hicks had previously operated, but there was not a fusion of one of the bones. He did not testify. Claimant said Dr. Hicks advised him against a further operation, stating that, if he would get a job, use of the arm and time would probably enable it to get better. Franks had a wife and three minor children, and during the treatment period of over a year, he became deeply in debt. He told the doctor about this condition. On July 24, 1959, Dr. Hicks made a final medical report (Commission Form B-27), which recited that claimant could return to work on that date, and he had a fifty per cent permanent residual disability of the left arm. Accordingly, in August 1959 claimant and appellants signed a Form B-17, 'Supplemental Agreement as to Compensation', which stated that claimant had reached a maximum recovery on July 24, 1959; that he had a fifty per cent permanent disability of the left arm; and that they agreed to pay and to accept compensation for one hundred weeks on that basis. On the bottom of that form, the commission's representative approved that statement. Appellants paid claimant permanent partial benefits for four weeks.

On August 27, 1959, Franks filed with the Commission a Form B-19, entitled 'Application for a Lump Sum Settlement, Section 13, subsection (j), Chapter 354, Laws 1948'. In it he applied for a commuted lump sum payment of his claim 'to pay off accumulated indebtedness'. On September 1, 1959, the commission made an 'order authorizing lump sum settlement'. It recited that one was warranted, and ordered it to be paid by the carrier to claimant, 'in accordance with Section 13(j), commuted as provided by law.'

Subsequently in September 1959, appellants filed with the commission a Form B-31, 'Final report and settlement receipt'. It stated that, pursuant to the order for a 'lump sum settlement', less statutory discount, the carrier had paid Franks that amount based on fifty per cent permanent disability of the left arm. Franks signed this 'final receipt'.

It is well established under earlier decisions that the effect and purpose of a Form B-31 is not contractual. It constitutes notice to claimant that he is receiving his final payment of compensation, as required by Miss. Code 1942 Rec., Sec. 6998-19(g), and that the employer and insurance carrier consider the case closed. It begins the running of the one year statute of limitations in Sec. 21 of the act (Code Sec. 6998-27). H. C. Moody & Sons v. Dedeaux, supra; Hale v. General Box Mfg. Co., 228 Miss. 394, 87 So.2d 679 (1956).

Section 21 provides: 'Upon its own initiative, or upon the application of any party in interest on the ground of a change in conditions or because of a mistake in a determination of fact, the commission may, at any time prior to one (1) year after date of the last payment of compensation, whether or not a compensation order has been issued, or at any time prior to one (1) year after the rejection of a claim, review a compensation case, issue a new compensation order which may terminate, continue, reinstate, increase or decrease such compensation, or award compensation. Such new order shall not affect any compensation previously paid, except that an award increasing the compensate rate may be made effective from the date of the injury, and if any part of the compensation due or to become due is unpaid, an award decreasing the compensation rate may be made effective from the date of the injury, and any payment made prior thereto in excess of such decreased rate shall be deducted from any unpaid compensation, in such manner and by such method as may be determined by the commission.'

On November 6, 1959, Franks filed with the commission an application under Sec. 21 to reopen his claim for compensation. There was a hearing on this application, at which defendants offered no testimony, but introduced into evidence the forms discussed above which were executed by claimant, and the order authorizing a commuted lump sum payment on the basis of fifty per cent permanent disability to the left arm. Claimant's testimony is undisputed that he had a total permanent disability in the left arm. He, a co-worker, and his wife verified this. Two doctors who specialize in orthopedic surgery testified in his behalf to the same effect, namely, that he has a one hundred per cent disability in that arm for the same or similar employment. There is no dispute in the evidence on these facts. Therefore the attorney referee held that under Sec. 21 there had been a mistake in a determination of fact by the commission; and that appellants should pay claimant compensation for two hundred weeks for total loss of use of the left arm. The commission adopted the attorney referee's order and the circuit court affirmed the commission.

First. The commission was amply warranted in finding that there had been a mistake by it in a determination of fact, and hence it was justified in reopening the claim under Sec. 21. It is within the sound discretion of the Commission to determine whether or not it will reopen a case. So long as its discretion is not abused, this Court will not interfere. West Estate v. Southern Bell Tel. and Tel. Co., 228 Miss. 890, 894, 90 So.2d 1 (1956); Hudgins v. Marine Welding and Repair Works, 237 Miss. 301, 114 So.2d 767 (1959). In short, if there is any reasonable basis upon which the Commission may have been justified in reopening under Sec. 21, its decision will be affirmed.

In the instant case, the Commission manifestly had previously made a mistake in a determination of fact. It properly sought to correct that mistake. The doctor employed by appellants, and to whom they had sent claimant for treatment, erroneously made a final medical report stating that he had only a fifty per cent permanent disability of the left arm. Based on that final medical report, the Commission approved voluntary payments of fifty per cent disability. In addition, claimant then applied for a commuted lump sum payment under Sec. 13(j) of the act (Code Sec. 6998-19(j)), based upon the same percentage disability, and the Commission's order of September 1, 1959 approved it. Both of these actions of the Commission were manifestly mistakes by it in a determination of fact, namely, the extent of the disability to claimant's left arm. All of the evidence in this record supports the commission's conclusion that these were such mistakes. Hence that agency was correct in rectifying those errors. The purpose of Sec. 21 is to permit such corrections. See 2 Larson, Workmen's Compensation Law (1952), Secs. 81.00 et seq.; 100 C.J.S. Workmen's Compensation Secs. 660, 661 et seq.; 58 Am.Jur., Workmen's Compensation, Secs. 499 et seq.; Anno. 121 A.L.R. 1270 (1939); 12 Schneider, Workmen's Compensation Law (3d ed. 1959), Sec. 2460.

In Roling v. Hatten & Davis Lbr. Co., 226 Miss. 732, 85 So.2d 486 (1956), the attorney referee originally made a finding of fifty per cent disability to claimant's back. No appeal was taken from this order, and payments were made on that basis. About three years later, but within less than one year from the last payment of compensation, claimant filed a petition for redetermination of liability under Sec. 21. The commission found that claimant had a total, permanent disability. Its order was upheld by this Court. The Court said that 'the statute is clear and unambiguous, and makes possible a determination or redetermination of the degree of the injury at anytime short of the running of the period of limitation.' See also Shainberg's Black & White Store v. Prothro, 238 Miss. 444, 118 So.2d 862 (1960); Hale v. General Box Mfg. Co., 228 Miss. 394, 87 So.2d 679 (1956); United Timber & Lumber Co. v. Dependents of Hill, 226 Miss. 540, 552, 84 So.2d 921 (1956); Hill v. United Timber & Lumber Co., 221 Miss. 473, 73 So.2d 247, 62 So.2d 776 (1954); Jackson Ready-Mix Concrete v. Young, 236 Miss. 550, 111 So.2d 255 (1959); Dunn, Mississippi Workmen's Compensation Law (1957), Secs. 209-210.

In Clyde-Mallory Lines v. Cardillo, 22 F.Supp. 40 (D.C.Mass., 1938), the Court was concerned with the reopening provision of the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C.A. Sec. 922, which is similar to Sec. 21 of...