Cambron v. Co-Operative Distributing Co., CO-OPERATIVE

• Decision Date: 01 July 1966
• Docket Number: CO-OPERATIVE
• Citation: Cambron v. Co-Operative Distributing Co., 405 S.W.2d 687 (Ky. 1966)
• Parties: Ira CAMBRON, Appellant, v.DISTRIBUTING COMPANY et al., Appellees.
• Court: Supreme Court of Kentucky

Page 687

405 S.W.2d 687

Ira CAMBRON, Appellant, v. CO-OPERATIVE DISTRIBUTING COMPANY et al., Appellees.

Court of Appeals of Kentucky.

July 1, 1966.

Rehearing Denied Sept. 16, 1966.

Allen Schmitt, Louisville, for appellant.

James M. Graves, William P. Swain, Boehl, Stopher, Graves & Deindoerfer, Louisville, for appellees.

MONTGOMERY, Judge.

Ira Cambron appeals from a judgment holding that his workmen's compensation claim is barred by the one-year filing limitation under KRS 342.270(1) on appeal he contends that the actions of the adjuster for the insurance carrier of his employer, Co-Operative Distributing Company, lulled him into thinking that his claim would be piad and thus estopped his employer from asserting the statute of limitation.

Cambron was injured October 29, 1962. He employed an attorney, other than his present counsel, who went to see Cambron at the hospital on February 13, 1963. This attorney was in communication with the insurance adjuster concerning the claim. Appellant's claim for compensation benefits was filed by his attorney on January 20, 1964, eighty-three days after the expiration of the time allowed by KRS 342.270(1) and three hundred and forty-two days after employment of counsel.

Appellant sustained a serious back injury. He had previously received compensation for a similar injury. The last injury necessitated repeated surgical treatment. On the first three hospital visits he paid no deposit. He was admitted upon verification that his was a workmen's compensation case. The hospital refused to admit him on the fourth visit, August 12, 1963, until he signed a note. Appellant described it thus:

'They told me that the insurance company's liability had run out and they made me sign a note before they would admit me.'

Appellant could not be certain of the time but stated that sometime after January 15, 1963, an adjuster from his employer's insurance carrier talked with appellant and made out an injury report. Apparently that was the only conversation between them, and it was had after appellant had been hospitalized the first time. Appellant testified as follows concerning statements made then by the adjuster (Mr. Barrett):

'26--Now what was your conversation with Mr. Barrett at that time?

'A--He came out to make a report of the injury, and he made the injury report.

And I asked him when I would start drawing my compensation checks and he told me that it would be about 2 weeks because it would have to clear the Home Office in Dallas, Texas.'

'39--While you were still talking to Mr. Barrett there did you ask Mr. Barrett for any money or to settle your claim with you at that time?

'A--I told him that I thought I ought to have my money since I didn't have anything to live on. And he siad 'As soon as we get a report from your doctor as to the amount of your disability we will settle with you."

After the employment of counsel the communication was between appellant's counsel and the adjuster. In short, it consisted of statements to the effect that a settlement of the claim would be made when the appellant's disability could be medically determined. In one conversation the adjuster indicated that one problem related to a settlement would be an apportionment between the new injury and the old injury.

Upon this testimony appellant insists that he was lulled into security that his claim would be paid and therefore failed to file an application for benefits within the one year allowed after the accident. Appellant is immediately...