Tabor Motor Co. v. Garrard, 45728

• Decision Date: 06 April 1970
• Docket Number: No. 45728,45728
• Citation: 233 So.2d 811
• Parties: TABOR MOTOR COMPANY v. Sam GARRARD.
• Court: Mississippi Supreme Court

Page 811

233 So.2d 811

TABOR MOTOR COMPANY v. Sam GARRARD.

No. 45728.

Supreme Court of Mississippi.

April 6, 1970.

Mitchell, McNutt & Bush, Wade H. Lagrone, Tupelo, for appellant.

Pyles & Tucker, Jackson, William Liston, Winona, for appellee.

ETHRIDGE, Chief Justice:

This case involves a workmen's compensation claim for disability benefits, a statute limiting the period for filing a claim to two years after the 'injury,' and a latent injury. We hold that the claim period runs from the time compensable injury becomes reasonably apparent, not from the date of the accident only.

Sam Garrard, appellee, filed a claim before the Workmen's Compensation Commission for disability benefits. The attorney-referee denied the claim, and his order was upheld by the Commission, on the ground that the claim was barred by the two-year statute of limitations, which provides:

* * * 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 1942 Ann. § 6998-18(a) (1952); Miss. Laws 1948, Ch. 354, § 12.)

The Circuit Court of Grenada County reversed the Commission's order and held that the claim was not barred by the two-year statute; and that the nature, seriousness, and probable compensable character of the noncompensable accident on October 7, 1964, could not have been reasonable determined by Garrard until a later date, well within two years.

Sam Garrard, born in 1913, began working in 1959 for Tabor Motor Company in Winona as a body repair man. He later became foreman, and from 1959 until October 7, 1964, he lost no time from work. On the latter date, he was welding under an automobile, while lying on the ground, when a supposed hot spark (which later was found to be a piece of slag) from the cutting torch fell in his left ear. The employer sent Garrard to Dr. Middleton, the company physician, who treated him for the accident and did not regard it as of a serious nature. Three days later, on October 10, Garrard returned to work at Tabor Motor Company and worked regularly until September 15, 1965.

In the interim, on October 17, 1964, Garrard returned to Dr. Middleton, who recommended that he see Dr. Nadeau, and ear specialist in Grenada. On October 20, Nadeau examined Garrard, found a perforated left ear drum, and recommended an operation. Dr. Middleton discharged Garrard as cured on October 26, 1964, but saw him occasionally thereafter although he did not anticipate that the patient would suffer any permanent disability as the result of the 1964 accident.

On December 11, 1964, Garrard went to see Dr. Nadeau, complaining of drainage problems with his ear. Nadeau did not consider any treatment warranted at that time and was of the opinion that Garrard could return to work.

On January 22, 1965, Garrard was hospitalized in Winona with pneumonia, under the care of Dr. Middleton, who said that Garrard also complained of headaches and dizziness. In February, March and July 1965, Garrard visited Dr. Middleton and on September 15 and November 8, 1965, he was hospitalized twice for treatment of hernia. Middleton saw him again on October 13, 1965.

On January 28, 1966, Dr. Nadeau treated claimant for an ear infection. On January 31, 1966, Garrard was examined again by Dr. Middleton, who stated that not until that time did he connect the claimant's difficulties with his earlier ear accident, and that he then told claimant that he thought there was a connection between his present condition and the 1964 accident. Drs. Nadeau and Middleton referred Garrard to Dr. Shea of Memphis, a specialist in otology.

On March 14, 1966, Dr. Shea, during an operation on Garrard's left middle ear, found a piece of slag and removed it. He advised claimant that the slag, which apparently had fallen into his left ear on October 7, 1964, was causing his dizziness and related physical problems. This was the first time that Garrard had any knowledge that he was suffering an injury as a result of the 1964 accident. Dr. Shea said that the slag burned a hole in the ear drum and penetrated the middle ear out of the eyesight of examining physicians.

Garrard returned to work on May 11, 1966, at Tabor Motor Company and continued working until October 11, 1966, when he suffered a blackout 'spell' on the job. He returned to work again on November 11, but four days later Dr. Middleton put him in the hospital and transferred him shortly thereafter to a Memphis hospital for further treatment by Dr. Shea. Garrard has not worked since November 15, 1966.

Garrard was examined and treated for his symptoms of dizziness and headaches after October 7, 1964, by three doctors, none of whom told him that his problem was caused by or related to the 1964 accident, until Dr. Middleton reached that conclusion on his examination of January 31, 1966. Garrard had no actual knowledge of the connection until after Dr. Shea's operation of March 14, 1966.

Garrard applied workmen's compensation benefits on April 4, 1967. Although appellant provided Garrard with some medical benefits, he has received no weekly compensation benefits.

Dr. Shea's deposition taken on November 29, 1967, was based on an examination of Garrard on October 6, 1967. He found that Garrard was in a 'very bad condition' with an exacerbation of his prior condition, endolymphatic hydrops, which involves an excessive amount of fluid in the inner ear with a resulting increased pressure. Shea was reasonably certain that this condition was caused by the slag falling into the left ear and burning a hole in the ear drum, and that Garrard was totally disabled. Dr. Shea stated that Garrard was unable to do anything-he could not work or even walk by himself-and that he had no recommendations for further treatment. Shea thought that, although this condition sometimes results in spontaneous remissions, the usual result following a remission is a worsening of the condition. Unless Garrard has a remission, he is permanently disabled. Although a permanent remission is possible the probability is that he will remain in the present condition or the rest of his life.

Under the particular facts of this case, we do not think that the two-year statute of limitations has the effect of barring Garrard's claim for workmen's compensation benefits.

Dr. Middleton's report to the Workmen's Compensation Commission of November 7, 1964, stated that a spark flew in claimant's ear and burned a two-millimeter diameter area in the left ear drum, there was no permanent defect, and he had irrigated the left ear and prescribed ear drops. Although aware there was a possibility of a permanent disability, he did not anticipate it. The 'earliest manifestation of complications' resulting from the accident appeared to him in his examination of January 22, 1965; however, he did not then connect the symptoms causally with the traumatic experience of 1964. The first time he told claimant that his troubles, including dizziness and blackout spells, were caused by the 1964 accident was January 31, 1966. He is of the opinion tha Garrard is permanently and totally disabled.

Dr. Nadeau said that he first saw claimant on October 20, 1964, and found that he had a perforation of the left ear drum. On October 30, 1965, Dr. Nadeau made a report to the Commission in which he described the injury as 'a welder's burn, left ear,' stating that it was not a permanent defect, and that claimant would be able to return to work on December 12, 1965. He saw him on January 31, 1966, on which date claimant had an acute infection in the left ear, the source of which he did not identify. He prescribed an antibiotic and ear drops. He did not think the injury was disabling, and did not relate the conditon to the 1964 accident.

When the slag (then unknown) fell in Garrard's inner ear on October 7, 1964, he was absent from work for only three days. No compensation is allowed for the first five days of disability, except medical benefits. Miss. Code 1942 Ann. § 6998-06 (Supp.1968). Code section 6998-18 dates the two-year limitation period from the date of 'injury,' not from the accident. The Mississippi statute is based on an injury (of accidental character). In 1964 Garrard received what appeared to be a relatively minor injury. Because of the five-day exclusion provision, he received no weekly compensation benefits whatever. Although he had some discomfort and dizziness in succeeding months, those factors were noncompensable. The statute does not date the start of the limitation period from the date of accident. None of the doctors who treated Garrard during the intervening months accociated his symptoms with any major disability to the ear until January 31, 1966, when Dr. Middleton said that he began to suspect that claimant's difficulties, dizziness and blacking out, were associated with his earlier ear accident, and when he apprised claimant of his ideas about this connection. However, not until Dr. Shea operated on claimant's left ear on March 14, 1966, did any of the doctors locate the piece of slag in Garrard's ear. Garrard filed his claim on April 4, 1967, well within a two-year period from the January 1966 examination by Dr. Middleton and the March 1966 surgery by Dr. Shea. On the present record it is undisputed that Garrard is totally and permanently disabled from the 1964 accident.

Under these circumstances, we do not think that the time for a claim to be filed with the Commission began to run until Garrard, as a reasonable man, should have recognized the nature, seriousness, and probable compensable character of his injury. In the interim period he excusably remained ignorant of his right to make a claim. In short, the two-year limitation statute does not begin to run until by reasonable care and diligence it is...