Georgia Pacific Corp. v. Taplin

• Decision Date: 18 September 1991
• Docket Number: No. 90-CC-0415,90-CC-0415
• Citation: 586 So.2d 823
• Parties: GEORGIA PACIFIC CORPORATION v. Louis TAPLIN.
• Court: Mississippi Supreme Court

Page 823

586 So.2d 823

GEORGIA PACIFIC CORPORATION v. Louis TAPLIN.

No. 90-CC-0415.

Supreme Court of Mississippi.

Sept. 18, 1991.

Robert G. Germany, Cothren & Pittman, Jackson, for appellant.

Clyde Ratcliff, McComb, for appellee.

Before HAWKINS, P.J., and PRATHER and ROBERTSON, JJ.

PRATHER, Justice, for the Court:

I. INTRODUCTION

This Workers' Compensation Commission (the Commission) decision arises on the appeal of the employer, Georgia Pacific, from the judgment of the Amite County Circuit Court. Georgia Pacific contends that the administrative judge, Commission, and circuit court erred in holding that Taplin's claim was not barred by Miss.Code Ann. Sec. 71-3-35(1) (Supp.1990), since Taplin filed no application for benefits with the Mississippi Workers' Compensation Commission within two years from the date of his accident. Taplin asserts a latent discovery of a compensable injury.

A. Facts

Taplin has an 11th-grade education and had previously worked in an unlicensed capacity as a plumber, electrician, auto mechanic, and front-end loader and bulldozer operator. He worked for Georgia Pacific Corporation at the time of this injury and had been an employee of Georgia Pacific since 1972. Taplin was injured while working on an elevated platform from which he operated a Hy-Hoe, which pulls logs from a hot-water vat. Part of the machine structure fractured and the platform began to tip; in trying to jump clear, he was caught by a railing and landed on his head and shoulder on the metal, concrete-supported platform below. Taplin was off work August 8-10, returning on August 11. During Taplin's absence he was hospitalized and diagnosed as having sprained his neck. The Georgia Pacific personnel manager testified under cross-examination that, on August 18, 1983, he received a medical report from a Dr. Field linking the claimant's condition to the August 8 fall.

Taplin continued to be treated for neck and back pain. Because he continued to experience pain, although his doctor said he was "all right," he visited a back specialist who also told the claimant "there wasn't anything wrong". Taplin consulted yet a third physician who treated the claimant and referred him to Dr. Donald Fonte. The claimant was treated by Dr. Fonte from the beginning of April through June of 1985, during some of which time the claimant was absent from work. According to Dr. Fonte, the claimant's condition was caused by his August 8, 1983, accident, but his degenerative disk condition would not have been discoverable by the claimant until at least a year after the accident. Dr. Fonte initially prescribed traction and muscle relaxers.

After May of 1985, the claimant continued to see Dr. Fonte, and in August of 1985, Dr. Fonte performed surgery on the claimant's neck vertebrae. On September 4, 1985, the employer's personnel manager received a letter from Dr. Fonte indicating that the claimant had linked his condition to the 1983 fall.

After surgery, Taplin testified that he attempted to return to work several times but was refused work because he had not fully recovered. Dr. Fonte sent periodic reports to Georgia Pacific indicating the claimant's ability to work. On January 15, 1986, the employer asked Taplin to come to the personnel office; when he did, the employer terminated the claimant's employment based on a physical disqualification--a pre-existing back condition which had been identified in the claimant's 1972 employment physical examination. According to the personnel manager, while this condition did not affect the claimant's ability to perform his work at Georgia Pacific, it disqualified him from being employed by Georgia Pacific.

The claimant testified that, following his termination by the employer, he applied for eight jobs, but without filling out a written application for any of them. Taplin testified on cross-examination that his inability to secure full-time employment was due to lack of job openings, not his lessened physical ability. He testified that neither the jobs for which he had unsuccessfully applied nor the part-time jobs he had secured paid seven dollars per hour.

Prior to August 8, 1983, the claimant had not experienced any neck problems. At the time of the administrative hearing, he testified to and indicated restrictions in his neck movement which limited his ability to perform jobs he had previously performed, although he admitted that other, unrelated health problems also interfered.

On August 9, 1985, the claimant filed a Petition to Controvert against the employer, Georgia Pacific Corp., self-insured. The claimant demanded penalties for untimely payment of compensation and medical benefits. The employer answered on August 26, 1985, admitted the claimant's August 8- 10, 1983, temporary disability, but denied any permanent disability or loss of wage-earning capacity. The employer alleged the statute of limitations as an affirmative defense and denied liability for medical services on the grounds that the claimant had not requested treatment from the employer, had not provided a physician's report within the statutory period, had not suffered a work-related injury, and had in fact suffered from a pre-existing condition.

On July 3, 1987, the administrative judge found that the claimant had established periods of temporary total and partial disability and that claimant suffered from a permanent disability unrelated to a pre-existing condition and resulting in a lost wage-earning capacity. ¹ On July 21, 1987, the employer petitioned for Commission review.

On June 15, 1989, the Commission affirmed the administrative judge's order but amended it to reflect a 15% permanent impairment as found by a post-hearing medical examination requested by the employer. The Commission also found that Mr. Taplin earned $7.01 per hour at the time of his injury. The employer filed a notice of appeal from the Commission's order to the circuit court which affirmed the Commission's modified order. The employer filed a timely notice of appeal with this Court.

II. ANALYSIS

A. Standard of Review

This Court will overturn a Commission decision only for an error of law, Walker Mfg. Co. v. Cantrell, 577 So.2d 1243, 1247 (Miss.1991); V. Dunn, Mississippi Workmen's Compensation Sec. 272 (3d ed. 1982), or an unsupportable finding of fact, Metal Trims Industries v. Stovall, 562 So.2d 1293, 1297 (Miss.1990). This Court's standard of review when it examines Mississippi Worker's Compensation Commission decisions insures that the Commission's decision is supported by substantial evidence. Upon such a finding, this Court will uphold the Commission's decision. Hardin's Bakeries v. Dependent of Harrell, 566 So.2d 1261, 1264 (Miss.1990); Georgia-Pacific Corp. v. Veal, 484 So.2d 1025, 1027-28 (Miss.1986). This highly deferential standard of review essentially means that this Court will not overturn a Commission decision unless a court finds that the Commission's decision was arbitrary and capricious. Walker Mfg., 577 So.2d at 1247.

B. The Statute of Limitations and Latent Discovery

The decisive issue before this Court is whether the Commission erred by denying that the Worker's Compensation statute of limitations may be invoked by an employer when the claimant/employee clearly knew he had been injured in the subject accident, but did not discover the compensable nature of his injuries until over a year after the accident, and did not file a motion to controvert until over two years after the accident. ²

This state's basic rule for latent discovery in worker's compensation cases was first set out in Tabor Motor Co. v. Garrard, 233 So.2d 811, 817 (Miss.1970): "The claim period begins to run from the time compensable injury becomes reasonably apparent." Relying on Tabor, the Court has noted that the statute is tolled until the claimant has "reason to foresee or ascertain" the likelihood of compensable injury "from which incapacity and its extent can reasonably be ascertained by medical evidence." Struthers Wells-Gulfport, Inc. v. Bradford, 304 So.2d 645, 649 (Miss.1974). In a subsequent case similar to the one at hand, the Court found a latent compensable injury to exist when the claimant knew he had hurt his neck, obtained medical assurance that he had no compensable injury, and then two years later obtained a diagnosis that the initial injury had caused a latent compensable injury in the form of a degenerative disc condition. The Court held that the claimant acted with reasonable care and diligence and that under Tabor and Struthers had sustained a compensable injury. Pepsi Cola Bottling Co. v. Long, 362 So.2d 182, 184-185 (Miss.1978). In Quaker Oats Co. v. Miller, 370 So.2d 1363, 1365-1366 (Miss.1979), the Court adopted the rule that a claimant's awareness should arise from recognizing the "nature, seriousness, and probable compensable character" of the injury. Id. (citing Larson, Workmen's Compensation, Sec. 78.41 (1978)). By way of comparison, in Benoist Elevator Co., Inc. v. Mitchell, 485 So.2d 1068, 1069 (Miss.1986), the claimant was aware of a 1959 injury and significant aggravation it caused, but did not seek treatment until pain and dysfunction became severe in 1975. See also V. Dunn, Mississippi Workmen's Compensation, Sec. 249 (3rd ed. 1982) and (Supp.1990).

In the present case, based on the testimony presented before the administrative judge, the circuit court concluded that the claimant could not have known of the compensable nature of his injuries because, although he continued to seek treatment, even his physicians remained unaware of the compensable nature of his injuries until April of 1985. The claimant clearly knew that he had sustained an injury which continued to require medical attention, but this awareness did not rise to the level of giving him notice of compensability. The fact that Taplin's initial accident was more dramatic than those of the claimants in Struthers or Pepsi-Cola did not give him any greater...