Lindsay Logging, Inc. v. Watson, No. 2009-WC-00364-COA (Miss. App. 3/9/2010)

• Court: Mississippi Court of Appeals
• Writing for the Court: Griffis
• Decision Date: 09 March 2010
• Docket Number: No. 2009-WC-00364-COA.,2009-WC-00364-COA.
• Citation: Lindsay Logging, Inc. v. Watson, No. 2009-WC-00364-COA (Miss. App. 3/9/2010), No. 2009-WC-00364-COA. (Miss. App. Mar 09, 2010)
• Parties: LINDSAY LOGGING, INC. AND MISSISSIPPI LOGGERS SELF-INSURED FUND, INC. APPELLANTS v. JAMES TERRY WATSON APPELLEE

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LINDSAY LOGGING, INC. AND MISSISSIPPI LOGGERS SELF-INSURED FUND, INC. APPELLANTS v. JAMES TERRY WATSON APPELLEE

No. 2009-WC-00364-COA.

Court of Appeals of Mississippi.

March 9, 2010.

COURT FROM WHICH APPEALED: ATTALA COUNTY CIRCUIT COURT, TRIAL JUDGE: HON. C.E. MORGAN III, DATE OF JUDGMENT: 01/27/2009.

DISPOSITION: REVERSED AND RENDERED.

ATTORNEYS FOR APPELLANTS: MICHAEL J. MCELHANEY, JR., MATTHEW STEPHEN LOTT, KENDALL STOCKMAN.

ATTORNEY FOR APPELLEE: AL CHADICK III.

BEFORE MYERS, P.J., IRVING AND GRIFFIS, JJ.

GRIFFIS, J., FOR THE COURT:

¶ 1. Lindsay Logging, Inc., the employer, and the Mississippi Loggers Self-Insured Fund, Inc., the carrier, (collectively "Lindsay Logging") appeal the circuit court's decision affirming the Mississippi Workers' Compensation Commission's ("Commission") award of disability benefits to James Terry Watson. Lindsay Logging contends that: (1) Watson's claim for benefits is barred by the two-year statute of limitations, and (2) Watson's back injury was a temporary aggravation of a preexisting condition. We find that Watson's claim is barred by the two-year statute of limitations; therefore, the judgment of the circuit court is reversed and rendered.

FACTS

¶ 2. On March 23, 2001, Watson injured his back while operating a tree cutter as part of his employment with Lindsay Logging. He hit a bump while driving the cutter and felt pain in his back and down both legs. Watson reported the injury to his supervisor, Bubba Steen, but Watson was able to finish his shift. He did not see a doctor for the injury until two weeks later. Steen reported Watson's injury to Clanton Lindsay ("Lindsay"), owner of Lindsay Logging. Lindsay completed a first report of injury on May 9, 2001, noting that Watson notified the employer on March 23, 2001.

¶ 3. Watson's work history is extensive. Following his service in the military, Watson worked as a mechanic for a few years. Then, he was hired to run a skidder and do mechanic work for David Breazeale, Jr. Logging Company. He worked there for about ten years and then worked as an iron worker and welder. In 1995, Watson was hired by Lindsay Logging to operate a tree cutter. The tree cutter is similar to a front-end loader that cuts and holds trees. Watson's duties included running and maintaining the tree cutter.

¶ 4. Watson continued to work for Lindsay Logging for approximately two months after his injury. Watson testified that he quit on May 25, 2001, because of his back pain; however, Lindsay testified that he had to let Watson go because of job-performance issues. Thereafter, Watson took a job as a foreman for Jerry Vowell Logging. As foreman, Watson was able to sit in a truck instead of operating a tree cutter. He remained at Jerry Vowell Logging for approximately one year and then went back to work for Lindsay Logging. Two months later, Lindsay sold his logging equipment to H & C Logging, Inc.; however, Lindsay continued to oversee operations of the business. Watson continued to work for H & C Logging for six months. He quit because he found it confusing to work for two bosses — both H & C Logging and Lindsay.

¶ 5. Watson then returned to work for David Breazeale, Jr. Logging. He worked for a couple of months before he saw his family physician, Dr. Richard Carter, because of his back problems. He was referred to Dr. Mitchell Myers, a neurologist, who then referred Watson to Dr. Adam Lewis, a neurosurgeon. Dr. Lewis took Watson off the job on April 22, 2003. At that point, the Mississippi Loggers Self-Insured Fund began to pay workers' compensation disability benefits to Watson. He received those benefits until October 2004 when he ended his treatment with Dr. Lewis.

¶ 6. In 2003, while he was receiving benefits, Watson took a job running a tree cutter for Lindsay in Arkansas. Although Watson testified that he was not paid for this work, Lindsay testified that he paid Watson in cash because they both knew he was not supposed to work while he was receiving workers' compensation benefits. On October 7, 2003, while working in Arkansas, Watson was injured when a pin from the tree cutter hit him in the face and broke his jaw. Again, because Watson was not supposed to be working, Lindsay advised him to file a claim on Lindsay's general liability insurance.

¶ 7. In August 2004, Watson was sent to Dr. Howard Katz for an employer's medical evaluation. Dr. Katz advised Watson that he could return to work. Watson went back to work for Lindsay, whose company was now named Quality Hardwood, Inc. Watson worked for one year until his back pain worsened. In December 2005, Watson returned to Dr. Carter who determined that Watson was totally disabled.

¶ 8. Watson has not worked since that time. He receives medical treatment at the Veterans Administration and receives $ 1,476 a month in social security disability benefits. Watson testified that he cannot return to his job as a tree cutter because his leg gives out regularly.

¶ 9. Watson has had previous back problems. In 1992, he suffered an injury to his back and had a spinal back fusion performed by a neurosurgeon, Dr. W. Lynn Stringer. Dr. Stringer released Watson for work in February 1993, and Watson was able to work without significant limitation until his March 23, 2001, injury at issue in this case.

¶ 10. Watson filed his petition to controvert on February 3, 2006 — nearly five years after his injury occurred. The administrative law judge ("ALJ") found that Watson's claim was not barred by the two-year statute of limitations, nor was it the temporary aggravation of a preexisting condition. Watson was awarded temporary total disability benefits from April 22, 2003, through August 23, 2004, with credit given to Lindsay Logging for wages Watson earned during this time. Watson also received permanent partial disability benefits from the time he finished his last job in September 2004 for a period not to exceed 450 weeks.

¶ 11. The Commission found that, on the days Watson was absent from work for medical treatment of his injury, Watson was paid his full wages in lieu of compensation benefits; thus, the two-year statute of limitations was erased just as if statutory workers' compensation benefits had been paid. The ALJ's decision awarding benefits to Watson was affirmed. Lindsay Logging filed a motion to reconsider, and the Commission reaffirmed its prior holding. The Commission's judgment was affirmed by the circuit court. Lindsay Logging now appeals.

STANDARD OF REVIEW

¶ 12. This Court's scope of review in workers' compensation cases is limited to a determination of whether the decision of the Commission is supported by substantial evidence. Westmoreland v. Landmark Furniture, Inc., 752 So. 2d 444, 447 (¶7) (Miss. Ct. App. 1999). The Commission sits as the ultimate finder of fact; its findings are "subject to normal, deferential standards upon review." Natchez Equip. Co. v. Gibbs, 623 So. 2d 270, 273 (Miss. 1993). We will only reverse the Commission's ruling when its findings of fact are unsupported by substantial evidence or the decision was arbitrary and capricious. Hale v. Ruleville Health Care Ctr., 687 So. 2d 1221, 1224-25 (Miss. 1997). "Matters of law are reviewed under the de novo standard of review." Westmoreland, 752 So. 2d at 448 (¶8).

ANALYSIS

Whether Watson's claim for workers' compensation disability benefits is barred by the two-year statute of limitations codified at Mississippi Code Annotated section 71-3-35(1) (Rev. 2000).

¶ 13. Lindsay Logging argues that Watson's claim is time-barred because Watson failed to file his petition to controvert within two years of the date of his injury. Additionally, Lindsay Logging claims that Watson did not receive any workers' compensation benefits except medical benefits until May 14, 2003 — more than two years after the date of his injury.

¶ 14. Section 71-3-35(1) states the following:

No claim for compensation shall be maintained unless, within thirty (30) days after the occurrence of the injury, actual notice was received by the employer or by an officer, manager, or designated representative of an employer. If no representative has been designated by posters placed in one or more conspicuous places, then notice received by any superior shall be sufficient. Absence of notice shall not bar recovery if it is found that the employer had knowledge of the injury and was not prejudiced by the employee's failure to give notice. Regardless of whether notice was received, if no payment of compensation (other than medical treatment or burial expense) is made and no application for benefits filed with the commission within two years from the date of the injury or death, the right to compensation therefor shall be barred.

Miss. Code Ann. § 71-3-35(1) (emphasis added). Watson responds that this statute of limitations does not apply because payment of compensation was made. Specifically, he claims that Lindsay Logging continued to pay his regular salary in lieu of compensation for the days that Watson was absent from work due to the injury.

¶ 15. The ALJ made the following finding regarding the two-year statute of limitations:

Mr. Watson clearly had a work-connected medical disability that began on or about March 23, 2001, but the symptoms did not become severe enough for a physician to pronounce him occupationally disabled (temporarily totally disabled from work) until Dr. Lewis took him off work on April 22, 2003. Although Mr. Watson knew that his back pain and associated leg pain and numbness were work-related, he was able to continue his regular work. The employer/carrier provided all medical benefits, and Mr. Watson simply had no claim for workers' compensation disability benefits until Dr. Lewis took him off work. At that point, the Loggers Self-Insured Fund began paying workers' compensation disability benefits immediately. He did not need to file a claim then, because the Fund paid the benefits voluntarily, according to the workers'...