Gold v. Moragne

• Decision Date: 01 March 1943
• Docket Number: 15512.
• Citation: 24 S.E.2d 491,202 S.C. 281
• Parties: GOLD v. MORAGNE et al.
• Court: South Carolina Supreme Court

24 S.E.2d 491

202 S.C. 281

GOLD v. MORAGNE et al.

No. 15512.

Supreme Court of South Carolina

March 1, 1943

L Marion Gressette, of St. Matthews, for appellant.

Richard T. Maher, of Columbia, for respondent.

L. D LIDE, Acting Associate Justice.

This is an appeal from an order of the Court of Common Pleas for Richland County reversing an award for disfigurement in the sum of $1,500 made by the Industrial Commission in favor of the plaintiff. The reason assigned in the order of the Circuit Court for the conclusion reached was that the plaintiff's claim in this respect was not filed within one year after the accident and was therefore barred because of the provisions of Section 24(a) of the Workmen's Compensation Act, Section 7035-27 (1), Code 1942. But this conclusion is challenged by the exceptions of the appellant, to which reference will hereinafter be made.

Isaac Gold, the appellant, was a manual laborer in the employment of Davis Moragne, one of the respondents; the other respondent, Hartford Accident & Indemnity Company being his insurance carrier. While so engaged, to wit, on May 27, 1938, the employee sustained a serious injury as the result of the accidental turning over of a truck. It is undisputed that the employee's injury was "by accident arising out of and in the course of the employment"; and, as stated in the record, in addition to minor injuries the lower part of his neck "was broken and dislocated." Immediately after the accident the employee was given medical and hospital treatment by his employer and the insurance carrier, and such treatment seems to have been continued from time to time until June 9, 1939, when according to the medical testimony his injuries reached the maximum healing point.

It is admitted that the parties were subject to the terms and provisions of the Workmen's Compensation Act. And it appears that no written instrument specifically designated as a claim was filed with the Industrial Commission within the period of one year after the accident. But in lieu thereof there was filed an agreement as to compensation signed by all the parties, dated July 20, 1938, and filed with and approved by the Industrial Commission July 22, 1938, less than sixty days after the accident occurred. This agreement gives the date of the injury, the place and cause of the accident, and the nature of the injury, which is described as "broken neck." It further states that the probable length of disability is "undetermined." The agreement is to the effect that the employee shall receive compensation at the rate of $5 per week, payable immediately from and including May 27, 1938, the date of the accident, "until terminated in accordance with the provisions" of the Workmen's Compensation Act.

The weekly disability installments provided by this temporary agreement were paid up to and including June 9, 1939, which was more than a year after the date of the accident, but were then discontinued by the respondents. Up to this time the employee, Isaac Gold, was not represented by an attorney, but after the discontinuance of the disability payments his attorney herein was employed, who promptly took steps to procure a hearing, pursuant to the provisions of Section 57 of the Workmen's Compensation Act, Section 7035-60, Code 1942, and Rule 12 of the Commission. And it appears that this hearing was held on August 2, 1939, before John W. Duncan, Esq., one of the Commissioners, who stated "that the purpose of this hearing is to determine the extent of disability and the average weekly wage." He further stated that there was no denial of liability on the part of the employer, but that the question was "when disability terminated and as to the average weekly wage." Thereupon the attorney for the claimant moved to amend the notice of hearing "so as to determine a reasonable compensation for serious bodily disfigurement," but the motion was then overruled upon the ground that the claimant could call for "another hearing at a later date" on disfigurement. Precisely what occurred in this connection will be hereinafter fully set forth.

The hearing before Commissioner Duncan then proceeded, and ultimately resulted in an opinion and award by the Industrial Commission in favor of the claimant for partial disability at the rate of $2.27 per week; and it is stated in the transcript of record that this question was finally disposed of by order of Court dated May 9, 1942, authorizing a "lump sum" settlement in respect to partial disability.

In the meantime, to wit, on August 7, 1940, the attorney for the employee gave written notice to the Industrial Commission requesting that a hearing be had with reference to compensation for disfigurement resulting to the employee from the injuries in question, such disfigurement being described as facial or head disfigurement and serious bodily disfigurement. Thereupon, for the first time, the employer and the insurance carrier took the position that any claim for disfigurement was barred by the statutory limitations and that the Commission was without jurisdiction to consider the same, and gave notice in writing to that effect on September 3, 1940, to the attorney for the claimant and to the Industrial Commission.

The matter came on for a hearing before John H. Dukes, Esq., who was then Chairman of the Commission, on September 12, 1940, whereupon counsel for the employer and the insurance carrier again registered his protest against the hearing upon the ground that the Industrial Commission had no jurisdiction to hear and determine the question of disfigurement, for the reason that Section 24 of the Act, Section 7035-27, Code 1942, provides that all claims for compensation must be filed within one year after the accident. The hearing Commissioner announced that he would overrule the motion at that time and hear arguments upon the question at the end of the testimony. The testimony of two physicians was then taken, as well as that of the claimant, and after hearing arguments of counsel the matter was taken under advisement. And Commissioner Dukes in and by his opinion and award filed April 16, 1941, held that under the facts as found by him the claim for additional compensation by reason of disfigurement "comes within the limitations" of the Workmen's Compensation Act as contained in Sections 24 (Section 7035-27, Code 1942) and 46 (Section 7035-49, Code 1942) thereof; that is to say, that it was not barred by such limitations. And he also found with reference to disfigurement that the claimant (quoting from his opinion and award) "carries with him at all times a condition about his head which prevents him from moving his head from side to side or from nodding it backward and forward, and besides this limitation of motion of the head he must carry his head in a fixed position, different from the normal position. He also has a fixed expression on his face which is unchanged and gives him the appearance of a person strangely abnormal, which anyone would easily notice upon seeing him." Commissioner Dukes then announced as his conclusion that "Isaac Gold has a serious bodily as well as head and facial disfigurement," and an award in his favor on account thereof in the sum of $1,500 was duly ordered.

The opinion and award of Commissioner Dukes came on for review by the full Commission on May 30, 1941, and the opinion of the full Commission affirming the hearing Commissioner was filed June 12, 1941. Thereupon an appeal was taken by the employer and his insurance carrier to the Court of Common Pleas for Richland County, and the order of the Court reversing the Industrial Commission was handed down March 31, 1942. The Court held that the claim for disfigurement not having been filed with the Commission within one year after the accident was barred by the provisions of Section 24(a) of the Workmen's Compensation Act, Section 7035-27(1), Code 1942. The claimant then brought the case to us by appeal from the order of the Circuit Court upon exceptions which are stated in the argument of counsel for the appellant as raising these questions:

"1. Was there sufficient compliance with Workmen's Compensation Act as to the filing of a claim so as to vest in the Commission jurisdiction to make an award for disfigurement?

"2. Did the employer and insurance carrier, assuming that no formal claim was filed, waive the requirement as to filing of a claim?"

Section 24(a) of the Workmen's Compensation Act, Section 7035-27(1) Code 1942, which is directly involved in this appeal is as follows: "The right to compensation under this Act shall be forever barred unless a claim is filed with the industrial commission within one year after the accident, and if death results from the accident, unless a claim be filed with the commission within one year thereafter."

While it was unquestionably the purpose of the limitations written in the Act to protect employers and insurance carriers against "long delayed demands," as stated in our case of Wallace v. Campbell Limestone Company, 198 S.C. 196, 17 S.E. 2d 309, 311, it is also evident that this Section should be given a liberal construction, especially in view of the fact that in all bona fide cases (except death cases) the claimant is an injured person, and frequently must be confined in a hospital, as was the claimant in this case. And moreover, many of the claimants are without counsel, as was the claimant in this case until after the expiration of the one-year period. Furthermore, the extent of the injury is not always immediately apparent; nor was it in this case.

Hence the Courts construing similar statutory provisions are practically in accord in holding that these statutes do not contemplate the filing of a claim having the same particularity as a formal...