Brown v. F. W. Woolworth Co.

• Court: Mississippi Supreme Court
• Writing for the Court: Before GILLESPIE; LEE; GILLESPIE; GILLESPIE
• Citation: Brown v. F. W. Woolworth Co., 348 So.2d 236 (Miss. 1977)
• Decision Date: 06 July 1977
• Docket Number: No. 49429,49429
• Parties: Geraldine BROWN v. F. W. WOOLWORTH COMPANY and Travelers Insurance Company.

Page 236

348 So.2d 236

Geraldine BROWN v. F. W. WOOLWORTH COMPANY and Travelers Insurance Company.

No. 49429.

Supreme Court of Mississippi.

July 6, 1977.

Burgin, Gholson, Hicks & Nichols, Dewitt T. Hicks, Jr., Robert B. Prather, Columbus, for appellant.

Threadgill & Smith, Taylor B. Smith, Columbus, for appellees.

Before GILLESPIE, C. J., and ROBERTSON and LEE, JJ.

LEE, Justice, for the Court:

The Circuit Court of Lowndes County affirmed an order of the Workmen's Compensation Commission holding that the claim of Geraldine Brown was barred by the one-year statute of limitations, and further holding that, except for her claim being barred, she was entitled to compensation benefits and medical services from F. W. Woolworth Company, employer, and the Travelers Insurance Company, carrier. From that judgment, Geraldine Brown appeals and the employer-carrier cross-appeals.

The only question presented on direct appeal is whether or not the claim is barred by the one-year statute of limitations (Section 21, Mississippi Workmen's Compensation Act).

Claimant (42 years of age) was working as a sales woman for F. W. Woolworth Company, Columbus, Mississippi, December 24, 1968, when she lifted a vacuum cleaner and injured her back. On the next day, she experienced pain and on December 26, a chiropractor treated her. She missed work for eight (8) days and then returned to her employment, although still suffering pain, and worked until November 24, 1969. She was unable to do housework or to engage in other employment, took Darvon and muscle relaxants after her injury, and was treated by the chiropractor until about April, 1970, when he referred her to Dr. William C. Sanders. Dr. Sanders hospitalized claimant, treated her with traction and physical therapy, took X-rays, and performed a myelogram which was negative. In November, 1970, Dr. Sanders recommended surgery, claimant declined the operation because of financial problems and because she was afraid. (A similar operation performed on her husband resulted in him being paralyzed).

On April 28, 1972, claimant filed Forms B-5 and B-11 with the Mississippi Workmen's Compensation Commission, the claim was controverted, appellees setting forth as an affirmative defense that the claim was barred by the statute of limitations. The attorney/referee held that claimant's injury was causally related to her employment with F. W. Woolworth Company, that the statute of limitations did not apply, and that claimant was entitled to full compensation benefits. On appeal to the Commission, the order of the attorney/referee was reversed and an order was entered denying compensation benefits on the ground that the claim was barred by the one-year statute of limitations.

In order to decide whether the one-year statute of limitations bars the claim, we must determine whether claimant's case was closed and whether notice of final settlement and an opportunity to be heard were given claimant, as provided in Mississippi Code Annotated Section 71-3-37(7) (1972), which is as follows:

"(7) Within thirty (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, the total amount of compensation paid, the name of the employee and of any other person to whom compensation has been paid, the date of the injury or death, and the date to which compensation has been paid. If the employer fails so to notify the commission within such time, the commission may assess against such employer a civil penalty in an amount not exceeding one hundred dollars ($100.00). No case shall be closed nor any penalty be assessed without notice to all parties interested and without giving to all such parties an opportunity to be heard." (Emphasis supplied).

Notice was sent to claimant by mailing her a copy of the B-31 Form (Appendix I), the unsigned original of which was mailed to the Workmen's Compensation Commission on the same date. That notice did not state (1) that the case was being closed, or (2) that it was a final report and settlement, or (3) that it constituted a final receipt, or (4) that claimant had the right or opportunity to be heard in the matter.

In Carter v. Wrecking Corporation of America, 234 Miss. 559, 107 So.2d 116 (1958), the employee received a B-31 form as notice of final payment, and the one-year period ran. He contended that the notice was insufficient to comply with the statute. This Court stated:

"But it is said that the Form B-31 filed with the commission failed to show that the final payment of $32.14 had actually been made to the appellant, and that nowhere in the record is it shown that the appellant was given notice that the case was being closed. We think there is no merit in this contention. The appellant admitted that he had received along with the check for $32.14, dated February 23, 1950, a copy of the Form B-31 report, entitled 'Final Report and Settlement Sheet,' which showed total compensation payments made to him in the amount of $532.14, and which contained a form 'Final Receipt' for the $32.14 to be executed by him; and also the letter from the insurance carrier, requesting him to sign the final receipt and return it to the carrier. The appellant also admitted that he endorsed the check for $32.14 and retained it in his possession, and that he did not sign the form receipt and return it to the employer or its insurance carrier, as requested in the letter. The appellant admitted that he had received similar checks prior to that time and that they had always been paid, and that he knew that the check for $32.14 would be paid if he presented it for payment; and that he understood from reading the letter that if he signed the receipt which he was requested to sign, it would close the case. We think the appellant had ample notice that the $32.14 check which he received and retained was a final payment and that the case was being closed, and that the failure of the employer and its insurance carrier to state specifically in the report filed by them with the commission that the final payment had been made was due to the appellant's failure to sign and return to the carrier a proper receipt for the $32.14. We therefore hold that the requirements of par. (g) of Section 6998-19 were fully complied with." 234 Miss. at 566-567, 107 So.2d at 120.

In the Carter case, the B-31 form was entitled "Final Report and Settlement Sheet." The receipt at the bottom of Form B-31 was entitled "Final Receipt." Furthermore, a cover letter was forwarded with the B-31 form, Carter admitted he received a check which he knew to be a final payment, and he knew that the case would be closed.

The Court held that under those circumstances, Carter had ample notice that the check was a final payment and that the case was being closed.

In McLemore v. Jackson Tile Mfg. Co., 252 So.2d 781 (Miss.1971), the Court discussed Commission Rule B-17 (Appendix II) which provided the procedure for filing Commission Form B-31 in accordance with the requirements of Section 13(g) of the Act (Mississippi Code Annotated Section 71-3-37(7) (1972)). While the technical aspects and wording of the rule were discussed, it was held that McLemore did not receive the notice as contemplated and required by Section 71-3-37(7), and stated:

"In the case of Carter v. Wrecking Corporation of America, 234 Miss. 559, 107 So.2d 116 (1958) this Court permitted the statute of limitations to be successfully used against the claim of an employee who had received a letter along with two copies of Form B-31 and a check for final payment. However, in that case the employer and carrier clearly notified the employee that the enclosed check was the final payment. The employee was given an opportunity to controvert the contention that the enclosed check was a final payment, but failed to do so within one year from the final payment of compensation provided for in Section 6998-27, Mississippi Code 1942 Annotated (1952).

The Legislature of Mississippi has attempted to provide for due process by requiring that 'no case shall be closed nor any penalty be assessed without notice to all parties interested.' Section 6998-19(g), Mississippi Code 1942 Annotated (1952). This simply means that due process can only be had by giving notice that the case is closed so as to give the parties an opportunity to be heard within the time allowed by law after such notice has been filed with the Commission. We are of the opinion that the alleged notice in the instant case is insufficient." 252 So.2d at 784.

Commission Rule B-17 was amended December 31, 1968. The only changes in the rule as considered in McLemore deleted the words "because of the refusal or negligence of claimant to sign the form," removed the necessity of sending the notice by certified mail, and provided that notice of filing be given to the claimant. Both Rule B-17 and amended Rule B-17 designated Form B-31 as "Final Report and Settlement Receipt." The B-31 form in Carter was entitled "Final Report and Settlement Sheet," whereas, the B-31 form in the present case is entitled simply "Report and Settlement Receipt."

We hold that claimant did not receive the notice and an opportunity to be heard, and that the case was not...