Benoist Elevator Co., Inc. v. Mitchell, 55344

• Decision Date: 12 March 1986
• Docket Number: No. 55344,55344
• Parties: BENOIST ELEVATOR COMPANY, INC. & U.S.F. & G. Co. v. Odell MITCHELL.
• Court: Mississippi Supreme Court

Page 1068

485 So.2d 1068

BENOIST ELEVATOR COMPANY, INC. & U.S.F. & G. Co. v. Odell MITCHELL.

No. 55344.

Supreme Court of Mississippi.

March 12, 1986.

Roy D. Campbell, II, Campbell & DeLong, Greenville, for appellants.

Claud H. Powell, Greenville, for appellee.

Before PATTERSON, C.J., and HAWKINS and PRATHER, JJ.

PATTERSON, Chief Justice, for the Court:

In this workmen's compensation case the Administrative Law Judge awarded benefits to Odell Mitchell. The full commission reversed the order by ruling the statute of limitations barred the claim. On appeal to the Circuit Court of Bolivar County the full commission's decision was reversed and the administrative law judge's award was reinstated.

On June 16, 1959, Odell Mitchell sustained an injury to the second, or middle, finger of his right hand in the course of his employment at Benoit Elevator Company. This injury was reported, treated, and two surgeries were performed to repair tendons which had been severed when Mitchell's hand broke through a glass window after he slipped on beans scattered on the floor. Dr. Greekmore, who performed the surgeries, determined Mitchell had reached maximum medical benefits on about September 1, 1959, with a permanent partial disability to the injured finger of 15 percent. Medical and partial disability payments were made. On September 14, 1959, the final report and settlement form B-31 was signed by Mitchell and filed with the Workmen's Compensation Commission and the insurance carrier.

On or about February 19, 1975, Mitchell once again sought medical attention for the same finger. He was seen by Dr. Love and another surgery was performed. Mitchell acknowledged that throughout the years since the initial injury his finger did not function properly and there was recurring pain; but, he did not seek medical attention until the pain became so severe he could not sleep or work because the finger had become stiff and was without flexibility. Dr. Love's testimony was that the prior injury in 1959 caused this increased pain and lack of mobility. He found, while performing the surgery, no indication of a prior surgery having been successfully performed. Mitchell was temporarily totally disabled from February 19, 1975, until about May 10, 1976, when Dr. Love released him with a prognosis of 50 percent loss of the finger from that point forward for a period of 15 weeks.

In this appeal the appellants assert:

1. This is not a "latent injury" case;

2. The commission's dismissal of the claim was supported by substantial evidence; and

3. Commission Form B-31 was properly filed September 14, 1959, hence the claim was barred two years thereafter.

The facts of the instant case are closely kin to those found in Quaker Oats Co. v. Miller, 370 So.2d 1363 (Miss.1979). Therein the claimant suffered from a progressive disease of which he was aware. He had been in consultation with medical doctors who informed him of the nature and seriousness of his illness. Miller left his work on advice of his doctor for a four month sick leave and later retired. Miller did not know his disability entitled him to payment but regardless, the two year limitation on the claim was held to begin to run on the date he left work for sick leave. Miller knew the source of his illness and that the work he performed aggravated the condition. It is this parallel which the full commission relied on in denying Mitchell's claim and reversing the administrative law judge. The record before this Court clearly indicates Mitchell knew his hand had been injured since 1959 and he had suffered with pain and stiffness throughout the years.

The circuit court, in reversing the full commission, found that Mitchell could not have been aware he had sustained a latent injury until ascertained by medical evidence on February 19, 1975. He seems to rely on Struthers Wells-Gulfport, Inc. v. Bradford, 304 So.2d 645 (Miss.1974), and Tabor Motor Company v. Garrard, 233 So.2d 811 (Miss.1970), as cited to in Quaker Oats, supra. These cases hold the two year statute of limitations will not begin to run until by reasonable care and diligence it is discoverable and apparent that a compensable injury has been sustained.

The facts on review herein are different from those found in Tabor and Struthers. In Tabor, supra, a garage foreman sustained an ear injury when a piece of slag fell from a cutting torch into his ear canal. None of the doctors who treated him were able to recognize this piece of slag as the source of his injury. Even though the slag had fallen into the ear more than two years prior, the statute of limitations did not begin to run until the cause of the injury was discovered. The attorney referee denied disability benefits on the basis they were barred by the statute of limitations. The full commission upheld this decision; it was reversed by the circuit court; and, this Court upheld the compensability of the claim because there was evidence to support the injury and disability were not reasonably apparent to the claimant until the slag in his ear was discovered by the doctors.

In Struthers, supra, the Tabor rule was followed...