Sanderson Porter v. Crow , 214 Ark. 416 ( 1949 )

There is presented in this appeal the question of the applicability of a portion of 18(a) of the Workmen's Compensation Law of 1939¹ to the claim here involved. On December 6, 1946, L. A. Crow — hereinafter called appellee — filed his claim with the Workmen's Compensation Commission against his former employers, Sanderson Porter, and their insurance carrier, the appellants here. On July 7, 1947, the Workmen's Compensation Commission disallowed appellee's claim, as barred by the limitations contained in 18(a) of the Workmen's Compensation Law of 1939. The Circuit Court, on appeal, reversed the decision of the Commission, and entered judgment allowing appellee's claim. The correctness of that judgment is challenged by the present appeal.

Appellee, while employed by Sanderson Porter at Pine Bluff, Arkansas, sustained a serious and painful injury on May 27, 1942. The nature of his injury was this: he fell on a steel rod which entered his left buttock, penetrated 16 or 18 inches through his pelvis into his abdomen, and pierced his intestines and colon. The physician who treated him stated that the fact that appellee survived was "one of the most miraculous recoveries I have ever seen." Hospitalization and compensation claims were paid by the appellants; and on August 14, 1942, appellee signed a final receipt to appellants, who heard nothing more of appellee until the present claim was filed on December 6, 1946.

It was because of this long delay — from the settlement of August 14, 1942, until the claim of December 6, 1946 — that the appellants invoked 18(a) of the Workmen's Compensation Law of 1939, which reads in part: "The right to compensation for disability under this act shall be barred unless a claim therefor is filed within one year after the time of injury . . . except that if payment for compensation has been made in any case on account of such injury . . . a claim may be filed within one year after the date of the last payment . . ." (italics supplied). Furthermore, appellants defended before the Commission on the additional ground that any present disability of the claimant is not the result of the 1942 injuries; but that question was not reached by the Commission, since it held that the claim was barred under 18(a) as aforesaid, pointing out that appellee received his last payment on August 14, 1942, and filed no further claim until December 6, 1946.

To avoid the applicability of the said 18(a) of the 1939 Workmen's Compensation law, claimant insisted, before the Commission, the Circuit Court and this Court, that his present disability is the result of the latent injuries he sustained in 1942 — that is, he contends that the full effects of his 1942 injuries were not disclosed until shortly before the filing of this present claim. The Workmen's Compensation Commission made findings denying this "latent injury" insistence; and the sufficiency of the evidence to support the Commission's findings on this point is the issue here presented.

The evidence shows that after the claimant executed the final receipt on August 14, 1942, he returned to his home in Alabama; that he began work in September, but was forced to cease working, and to consult a doctor for treatment in October, 1942; that in 1943 he was treated by a doctor for two weeks; that he began working in a shipyard in Mobile in April, 1943, and continued to work until Christmas of that year, but was in the hospital for some time; that on April 24, 1944, he volunteered into the Naval Forces of the United States, and remained in the Navy for seven months, but was discharged on December 5, 1944. This is his testimony concerning his discharge from the Navy: "Q. Were you discharged, you say, in December, 1944? That was after they X-rayed you overseas? A. Yes, sir, X-rayed me overseas. Q. And said you were unfit for active duty? A. He told me when he X-rayed my hip. The doctor said he seemed to think that that rod going into my stomach is, he said, `There ought to be a broken bone showed up there somewhere.' He seemed to think, he said, `I want to X-ray you before you go back home,' and he did X-ray me but never did tell me what was the matter."

After appellee returned from the Navy, he did carpenter work for seven months in 1945, and then worked at a granary in 1946. In June of 1946, he had an attack affecting his back, and his doctor sent him to the Hot Springs Army-Navy Hospital for examination. It was in the latter part of 1946 that his physician and the Army doctors reached the conclusion that appellee's trouble was a herniated disc caused from the injuries he sustained while working for the appellants in 1942. Then this claim was filed.

We have recited the facts in considerable detail, for we hold that these facts are sufficient to support the Commission's finding that the claimant's present disability does not come within the rule of those cases called "latent injury" cases. Those cases hold that the statute of limitations begins to run from the date the injury becomes known. The word "latent" applies to that which is present without showing itself. Some cases on latent injuries are: Lind v. Nebraska National Guard, 144 Neb. 122,12 N.W.2d 652, 150 A.L.R. 1449; and Kurtz v. Sunderland Bros. Co., 124 Neb. 776, 248 N.W. 84.

Even under the "latent injury" cases, when the substantial character of the injury becomes known, then the claimant must file his claim within a specified period of time, or be barred thereafter by the statute of limitations. In Selders v. Cornhusker Oil Co., 111 Neb. 300,196 N.W. 316, it was held that the latent injury became patent — so as to commence the running of the statute of limitations — when an X-ray revealed a bone injury. The case at bar is entirely different from that of Fidelity Casualty Co. v. Meyer, 106 Ark. 91, 152 S.W. 995, 44 L.R.A., N.S. 493, where the injury aggravated a preexisting but latent disease; and the case at bar is also distinguishable from Astuto v. Ray Gould Co., 123 Neb. 138,242 N.W. 375. In that case the employee strained his back while lifting, but the full extent of the trauma did not become visible until later; while, here, the horrible nature of the injury was apparent from the first.

The evidence here shows that the appellee's injuries were not latent, but recurrent, that is, the effects of the May 27, 1942, injury recurred with regularity as evidenced by appellee's frequent visits to physicians. At all events, even if the injury were latent theretofore, certainly when the appellee was X-rayed and discharged from the Navy on December 5, 1944, any latent injury became patent so as to commence the running of the statute of limitations. Instead of filing a claim within a year from the date of the discharge from the Navy, appellee waited two years and one day before filing. There is no evidence that the physician of the appellants who treated appellee in 1942 defrauded him into signing the final receipt. This is not a case of setting aside a release because of fraud; rather, it is a case of undue delay in filing a claim.

The situation here is not comparable with that which existed in Williams Mfg. Co. v. Walker, 206 Ark. 392,175 S.W.2d 380. There, the Workmen's Compensation Law (13(e)) required notice of hernia to be given to the employer within 48 hours; and we held that the knowledge by the employer of the employee's injury was equivalent to notice by the employee. Here, the Workmen's Compensation Law (18(a)) imposes an absolute limitation on the time for filing a claim. In the Williams-Walker case we held that knowledge rendered notice unnecessary; but here we are presented with a case where no claim was filed within the statutory period. Thus, a jurisdictional matter is presented, and not a mere defensive provision of notice as in the Williams-Walker case.

Appellee's lack of knowledge of the law is no defense. He was in full possession of his mental faculties. However meritorious the claim may be, nevertheless, 18(a) of the Workmen's Compensation Law is a bar, since the "latent injury" cases do not apply. While our Compensation Law is liberally construed to effectuate its purposes, still the plain wording of that law is a mandate which we cannot evade.

The judgment of the Circuit Court is reversed, and the cause is remanded to the Circuit Court, with directions to affirm the decision of the Workmen's Compensation Commission.

¹ The Workmen's Compensation Law of 1939 was Act 319. At the General Election in November, 1948, the people adopted Initiated Act No. 4. Section 18 of the 1948 Act is different from 18 of the 1939 Act; but the 1939 Act is the one applicable and under consideration in this case; and references herein are to the 1939 Act.