Staple Cotton Services Ass'n v. Russell

• Decision Date: 27 May 1981
• Docket Number: No. 52636,52636
• Parties: STAPLE COTTON SERVICES ASSOCIATION and Home Insurance Company v. Jessie RUSSELL.
• Court: Mississippi Supreme Court

Page 224

399 So.2d 224

STAPLE COTTON SERVICES ASSOCIATION and Home Insurance

Company v. Jessie RUSSELL.

No. 52636.

Supreme Court of Mississippi.

May 27, 1981.

Joseph T. Wilkins, III, McCoy, Wilkins, Noblin & Anderson, Jackson, for appellant.

Robert L. Crook, Ruleville, for appellee.

Before PATTERSON, C. J., and LEE and HAWKINS, JJ.

HAWKINS, Justice, for the Court:

This is an appeal by the employer Staple Cotton Services Association and the insurance carrier Home Insurance Company from a judgment of the Circuit Court of Washington County affirming the order of the Mississippi Workmen's Compensation Commission awarding claimant Jessie Russell temporary total disability benefits at the rate of $84.00 per week beginning January 8, 1977, until March 21, 1977, and permanent partial disability benefits at the rate of $25.00 a week beginning March 21, 1977, and continuing thereafter for a period of not to exceed 450 weeks, plus medical expenses as provided by Mississippi Code Annotated § 71-3-15 (1972), and sustaining a motion of claimant for a ten percent penalty as provided by Mississippi Code Annotated § 71-3-37 (1972) for failure to make prompt payment of installments of permanent partial disability benefits when due. The full commission had in turn by its order affirmed the previous order of the administrative law judge. The claimant Russell has cross-appealed from the denial to him of total disability benefits under the Act.

We affirm on direct and cross appeals.

The claimant appellee Russell sustained a compensable injury on January 8, 1977, while employed by Staple Cotton. Russell at the time of his injury had been employed with the company longer than six months and was considered a permanent employee. Employee benefits were in effect with the company, embodied in a handbook, which contained the following provisions:

"2. Sick Leave. Permanent employees will be paid full salary during the first 120 consecutive days of absence from work due to sickness, maternity, or injury; one-half salary will be paid for a second 90-day period. After 210 consecutive days of absence, salary will be discontinued.

"Assistance will be provided, however, in obtaining disability benefits through Social Security and the Pension and Retirement Plan, if applicable.

"In the event an employee exercises his rights to sick leave the employer reserves the authority to request a physician's statement as to the condition of the individual."

"5. Workman's Compensation. Full insurance is carried, as required by the Workman's Compensation laws of the State of Mississippi, to cover loss of time and expenses resulting from an injury or illness incurred while performing duties connected with employment. Notice of such accident or illness must be given to the Payroll Department within 12 hours."

Following his injury Russell was paid under the company plan $126.08 per week through June 18, 1977, with the exception of a deduction in the week's payroll of May 28, wherein he was paid $104.02, and finally, on June 25, he was paid $26.79. He was terminated June 20, 1977.

On May 3, 1977, the insurance carrier wrote claimant's attorney at the time, Carver A. Randle, enclosing a report of an examining physician to the effect Russell had reached maximum medical recovery, had no medical impairment, and could pursue any type of work of his choice. Also enclosed in the letter for Russell's signature were three copies of Mississippi Workmen's Compensation Commission Form B-31, the Final Report and Settlement Receipt, with the request that Russell sign all three copies, retain one copy, and return the original and one copy to the insurance carrier for filing with the Commission.

The carrier received no response to this letter, and on June 6, 1977, wrote the Commission a letter in reference to this cause, enclosing three copies of Form B-31, notifying the Commission forms had been previously sent to Russell for his signature, and he failed to return them. The letter requested the Commission file and return two carbon copies to the office of the insurance carrier.

On June 16, 1977, the insurance carrier wrote Russell in care of his attorney Randle, enclosing a copy of Form B-31 and asking him to note that the form was received in the Commission offices on June 9, 1977. The letter concluded with the sentence: "We consider this matter closed at this time."

On June 16, 1978, Russell filed with the Commission Form B-5 and B-11, styled "Application of Claimant for Workmen's Compensation Benefits."

In their answer filed July 24, 1978, the employer and carrier as an affirmative defense pled the one year statute of limitations following transmittal of the Form B-31, and also filed a Plea in Bar setting forth the above facts relative to the mailing of the Form B-31, and claiming the statute began to run on May 3, or at least on June 6, 1977, and therefore the motion to controvert filed June 16, 1978, was barred by § 21 of the Mississippi Workmen's Compensation Act, Mississippi Code Annotated § 71-3-53 (1972).

The first assignment of error on this appeal is the claimed error of the circuit court and commission in not dismissing this case because it was barred by this one year statute.

We again hold that the statute did not begin to run until claimant Russell was advised that the Form B-31 had been filed with the commission. This began with the letter to Russell dated June 16, 1977, and he had one full year after this date within which to file his claim with the commission.

This Court has already spoken on the precise question raised by appellants, but because there has been one change in Rule B-17 of the commission wherein the former requirement to mail the notice to claimant by certified mail has been deleted, we cover the matter again.

Two code sections and a commission rule must be considered together.

Mississippi Code Annotated § 71-3-53 (1972) provides as follows:

"Upon its own initiative or upon the application of any party in interest on the ground of a change in conditions or because of a mistake in a determination of fact, the commission may, at any time prior to one (1) year after date of the last payment of compensation, whether or not a compensation order has been issued, or at any time prior to one (1) year after the rejection of a claim, review a compensation case, ..."

Mississippi Code Annotated § 71-3-37(7) provides as follows:

"(7) Within thirty (30) days after the final payment of compensation has been made, the employer shall send to the commission a notice in accordance with a form prescribed by the commission, stating that such final payment has been made, the total amount of compensation paid, the name of the employee and of any other person to whom compensation has been paid, the date of the injury or death, and the date to which compensation has been paid. If the employer fails so to notify the commission within such time, the commission may assess against such employer a civil penalty in an amount not exceeding one hundred dollars ($100.00). No case shall be closed nor any penalty be assessed without notice to all parties interested and without giving to all such parties an opportunity to be heard.

Finally, Commission Rule B-17 reads as follows:

"CLOSING CASE. The requirement for the filing of Commission Form B-31, Final Report and Settlement Receipt, shall be deemed to have been met upon receipt by the Commission of such form, signed by claimant, provided, however, that the form so filed is in accordance with the requirements of Section 13(g) of the Act and contains the information specified therein. In the event Form B-31 is not signed by claimant, the unsigned form shall be filed with the Commission with notice of such filing given to the claimant. Should the original or any subsequent Form B-31 be filed that does not furnish all medical or...