Burnhart v. Dunean Mills
| Decision Date | 04 January 1949 |
| Docket Number | 16164. |
| Citation | 51 S.E.2d 377,214 S.C. 113 |
| Parties | BURNHART v. DUNEAN MILLS et al. |
| Court | South Carolina Supreme Court |
Mann & Arnold, of Greenville, for appellants.
J Robert Martin, of Greenville, for respondent.
This is an appeal by the employer and carrier from an order of the Circuit Court affirming an award of the Industrial Commission in favor of claimant, Mrs. Camilla Burnhart. The only question for determination is whether the claim is barred by the following limitation contained in Section 7035-27 of the Code of 1942: 'The right to compensation under this article shall be forever barred unless a claim is filed with the industrial commission within one year after the accident * * *.'
The following facts may be reasonably inferred from the testimony offered by claimant: About eleven o'clock on Thursday night, December 28, 1944, while engaged in her work at the Dunean Mills, claimant, who was then about thirty years of age, fell and injured her back. This produced a numbing effect but claimant did not regard the injury as a serious one and continued to work that night until the regular quitting time of her shift about an hour later. She worked on Friday and Saturday. On Sunday the numbness which had continued from the time of the accident was succeeded by a pain in the region of her injury. On Monday (January 1 1945), she reported the accident to her overseer. He asked her to continue working, which she did although still suffering pain from her injury. Several months later her father called on the superintendent and advised him of the injury. He stated that he had not heard anything about it and would look into the matter. Shortly thereafter claimant was sent to the first aid room where she was given heat treatments with an electric lamp. During the latter part of March she was requested to go to the office of Dr Northrop, a Greenville physician. Here she received a 'hot pad treatment' daily for one week but did not improve. Sometime during May she suffered a nervous collapse and remained at home for a period of seven or eight weeks. She was attended by Dr. Northrop who stated, according to claimant, that her condition was caused by the accident. She returned to work during the latter part of July, at which time she and her father called on the superintendent of the mill and requested that she be given lighter work. This was done. After resuming her work she inquired of the service manager of the mill whether she would be paid for the time she lost, to which he replied: 'I don't know.' She also said that the superintendent stated to her that there was a check at the office but when she went there, no such check could be found.
On December 23, 1945, approximately one year after the fall in the mill, claimant was in an automobile accident in the city of Greenville. Three or four ribs were injured and she remained in the hospital for about a week.
Claimant continued to work at various jobs in the mill until September, 1946, when she was told that the mill was going to discontinue using the type of machine upon which she was working. She says she was then given a sweeping job which she was unable to do and when the mill refused to give her any other position, she had to quit on September 11th. It is undisputed that from December 28, 1944, the date of the alleged accident, until September 11, 1946, when claimant ceased working at the mill, the only time which she lost was seven weeks in the summer of 1945 when the alleged nervous breakdown occurred. Except during the time she worked as a spare hand, her earnings during this period were at least as much as those received prior to the accident.
After leaving the mill claimant says she tried to obtain other employment but was unsuccessful. She then applied for and received unemployment compensation. In May, 1947, her attorney wrote a letter to the Industrial Commission requesting that a date be set for the hearing of her case. Several weeks later she was examined by a physician at Pickens, S. C. From this examination and the history given him by the claimant, this physician was of the opinion that she had 'a ruptured intervertebral disc in the lumbar region of the back.' He stated that the injury was a permanent one and that claimant would be 'handicapped 50%' in doing manual labor. Although claimant says that the pain caused by the injury received in the mill has never ceased, after being treated by Dr. Northrop during the summer of 1945 no physician was consulted about this injury until the examination at Pickens in June, 1947.
The superintendent of the mill denied stating to claimant that there was a check for her at the mill office. He testified that her father came to see him several times complaining that his daughter was suffering and he suggested that he see the service manager. He said he later told the overseer to give claimant a lighter job. The service manager testified that he was informed by Dr. Northrop that claimant's condition was due to overweight and not to an injury and that claimant told him she had never been able to work in a mill during the summer. He said after returning to work during the summer of 1945, claimant asked him about compensation for the time she had lost and he told her that Dr. Northrop had never made any decision as to whether her case was compensable. The overseer emphatically denied that claimant reported any injury to him on January 1, 1945. He said that the matter was not mentioned to him by her until March 11, 1945, at which time he immediately made a formal report.
On March 29, 1945, the Industrial Commission received from the employer's service manager a report dated March 20, 1945, stating that claimant sustained an accident on December 28, 1944, which was first reported to the employer on March 11, 1945, that the employee had returned to work, and there was no disability. On March 28, 1945, Dr. Northrop made a report which was received by the Industrial Commission on April 7, 1945. He stated in this report that he first treated the claimant on March 26, 1945, that further treatment of from five to seven days would be necessary, and that there would be no loss of time. The next report filed with the Industrial Commission was by the employer on October 17, 1945, in which it was stated that no compensation had been paid. On the same date the Industrial Commission received the following letter from the carrier's adjuster:
'We have your request for Certificate of Termination of Disability, form 14, and closing report, No. 18, on this case.
'We are attaching 60 day report which shows no payment but, of course, the file is still open.'
On February 19, 1946, the Industrial Commission requested the carrier to forward 'copy of 60 day report completely filled out and all other forms necessary to bring this file up to date,' to which the carrier replied on February 21st, as follows:
'We are attaching closing report form 18 which shows no payment on the above case.
'Liability was denied to this claimant as investigation shows that she had no disability as a result of any accident.'
The report attached to this letter stated that it closed the case.
The Industrial Commission, after stating that the employer and carrier were not prejudiced by the delay in filing the claim, held that they had waived the statutory limitation and under the circumstances were also estopped from invoking it. Claimant was awarded temporary total disability benefits and also 'compensation for fifty per cent disability of a general nature.' On appeal by the carrier and employer, this award was affirmed.
It is undisputed that no claim was filed with the Industrial Commission until May, 1947, almost two and a half years after the accident. It is true that the employer had knowledge of the injury but the Act not only requires that the employee give notice to the employer of the accident, 7035-25 and 7035-26 of the 1942 Code, but also that any claim for compensation be made within one year thereafter. The reports heretofore mentioned which were filed with the Industrial Commission by appellants within one year of the accident do not constitute the filing of a claim as required by statute. The employer is required to make these reports even though no claim for benefits has been made. If such reports were always sufficient to constitute the filing of a claim, it would never be necessary for the employee to comply with the statutory requirement as to filing claims within one year after the accident. It seems clear that respondent is barred by the one year limitation unless the circumstances are such as to establish waiver or estoppel. We do not think the evidence is sufficient to avoid application of the statute on either theory. The facts and circumstances relied upon to establish estoppel and waiver will now be briefly reviewed:
(1) It is said that claimant was told after returning to work in the summer of 1945 that there was a check for her at the office, thereby leading her to believe that she would be paid for the seven weeks lost from her work, but any such impression must have been dispelled when shortly thereafter she was informed at the office that there was no check for her. Claimant says that she was told by some lady in the office that 'there was papers that I'd...
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