Martin v. L. & A. Contracting Co., 42995

• Court: Mississippi Supreme Court
• Writing for the Court: ETHRIDGE
• Citation: Martin v. L. & A. Contracting Co., 162 So.2d 870, 249 Miss. 441 (Miss. 1964)
• Decision Date: 20 April 1964
• Docket Number: No. 42995,42995
• Parties: Sam MARTIN v. L. & A. CONTRACTING CO. et al.

Page 870

162 So.2d 870

249 Miss. 441

Sam MARTIN v. L. & A. CONTRACTING CO. et al.

No. 42995.

Supreme Court of Mississippi.

April 20, 1964.

William R. Bradley, Clarksdale, for appellant.

Brewer, Brewer & Luckett, Clarksdale, for appellee.

ETHRIDGE, Justice.

The Workmen's Compensation Commission, affirming its attorney referee, denied the claim of Sam Martin, appellant, for compensation benefits on the ground the claim was barred by the two-year statute of limitation. The circuit court affirmed. Considering whether the act applies under the particular circumstances, and its tolling by waiver and estoppel to plead it, we hold the statute of limitation does not bar this claim.

In 1956 Martin was employed in this state by L. & A. Contracting Company, Hattiesburg, Mississippi. In January 1959 the company sent him to Florida to do a temporary job, and on March 17, 1959 he was injured while working in that state. After emergency treatment, he was flown to Mississippi in a company plane and taken to his home in Grenada. The Hattiesburg office of the employer completed a notice of injury (on a Mississippi commission form) and submitted it to the Florida Industrial Commission immediately after the accident. Martin was provided medical treatments and received compensation under the Florida act for temporary total disability for 45 weeks at $35 per week, from the date of injury until February 1, 1960. He was then paid 87.5 weeks or 25% of 350 weeks at $35 per week, for a total of $3,062.50, as permanent partial disability benefits under the Florida act. The last payment of compensation was on October 15, 1961. He has been unable to work since the date of his injury to his back. He is 45 years old, with a fourth grade education.

In short, after claimant was injured on March 17, 1959, the employer and carrier filed notice of the injury with the Florida Industrial Commission, and began making voluntary payments of compensation to him under the Florida act, at the rate of $35 a week, which is the same weekly amount payable under the Mississippi act.

After payments of compensation under the Florida act ended on October 15, 1961, claimant wrote U. S. F. & G.'s office in Greenwood, from which payments under the Florida statute had been received, to determine why they were stopped. He consulted an attorney at Grenada, a member of the Mississippi commission, and then employed the attorney of record in this case, who after investigating the matter filed the present claim for compensation with the Mississippi commission on December 27, 1962. Martin testified he did not know he was being paid under the Florida compensation act, and did not remember receiving any form to that offect from the Florida commission. The only document in the record indicating any notice to him that benefits were paid under the Florida act was a notice signed by the insurance carrier to the Florida Industrial Commission, dated March 27, 1959, that payments of compensation to Martin had begun, and on the bottom of that form is 'cc: Sam Martin.' Martin said he did not remember receiving that or any other paper concerning the Florida commission.

On July 3, 1959 claimant wrote the adjuster for U. S. F. & G. in Greenwood, Mississippi inquiring about the reason for his failure to receive compensation checks for three weeks. The adjuster wrote him on July 6, 1959 that his claim was 'currently being handled by our West Palm Beach, Florida office and as such they will be the one to mail your check out.' The adjuster was writing the Florida office to determine why Martin had not received the checks. 'A reply from this office will be forthcoming in the very near future.' The foregoing was the only evidence indicating any notice to Martin of the fact that he was receiving benefits under the Florida compensation act. All checks, with a few exceptions, were sent to him from a Greenwood, Mississippi claim office of U. S. F. & G., the insurance carrier. Payments under the Florida act were voluntary payments. Claimant never signed and instrument relative to any claim in Florida.

Section 28 of the Workmen's Compensation Act (Miss.Code 1942, Rec., Sec. 6998-34) requires the employer to make a report to the Mississippi commission within ten days after the occurrence of an injury, on a form approved by the commission, setting forth certain prescribed facts. The employer and insurance carrier failed to make any such report and notice of injury to the Mississippi commission.

Furthermore, under section 49 of the act (Miss.Code Sec. 6998-55), Martin was entitled to compensation benefits under the Mississippi act. He was hired and regularly employed in this state, and received an injury by accident while temporarily employed out of this state. Section 49 states that the act 'shall apply' to injuries received by an employee within six months after leaving this state. Hence Martin was entitled to compensation benefits under the Mississippi act, and the employer and carrier failed to comply with their statutory duty to give notice of the injury to the Mississippi commission. Instead, they began making voluntary payments of compensation benefits to claimant under the Florida Workmen's Compensation Act, under which weekly benefits were the same as those under the Mississippi act.

The commission held the claim was barred by section 12(a) of the Mississippi act. Miss.Code 1942, Rec., Sec. 6998-18. It first provides that the employer must have actual notice of the injury. Appellees had such notice. The statute then states:

'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.'

It is settled that more than one statute can apply to a single compensable injury, so long as each state has a relevant interest in the case. Accordingly, successive awards can be made in different states, deducting the amount of the first award from the second. Harrison Co. v. Norton, 244 Miss. 752, 146 So.2d 327 (1962); 2 Larson, Workmen's Compensation, Sec. 85 et seq.

First. The two-year limitation comes into effect only upon two conditions: (1) if no payment of compensation (other than medical treatment or burial expense) is made; and (2) if no application for benefits has been filed with the commission within two years from the date of injury or death. The first condition precedent to operation of this limitation statute does not exist here. Payments of compensation were made by appellees, the employer and insurance carrier up through October 15, 1961. The two-year statute of limitations did not begin to run until that date. Section 12 does not restrict the payment of compensation for a...