Lindsay Logging, Inc. v. Watson
| Docket Number: | 2009-WC-00364-COA Linked Case(s): 2009-WC-00364-COA ; 2009-CT-00364-SCT |
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| Court of Appeals: |
Opinion Link Opinion Date: 03-09-2010 Opinion Author: Griffis, J. Holding: Reversed and rendered |
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| Additional Case Information: |
Topic: Workers' compensation - Statute of limitations - Section 71-3-35(1) - Wages in lieu of compensation - Section 71-3-11 Judge(s) Concurring: King, C.J., Lee and Myers, P.JJ., Barnes, Ishee, Roberts and Maxwell, JJ. Non Participating Judge(s): Carlton, J. Dissenting Author : Irving, J., without separate written opinion. Procedural History: Admin or Agency Judgment Nature of the Case: CIVIL - WORKERS’ COMPENSATION |
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| Trial Court: |
Date of Trial Judgment: 01-27-2009 Appealed from: Attala County Circuit Court Judge: Clarence E. Morgan, III Disposition: MISSISSIPPI WORKERS’ COMPENSATION COMMISSION’S AWARD OF BENEFITS AFFIRMED Case Number: 2008-0290-CVM |
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| Note: | Due to a military leave of absence, Hon. Virginia C. Carlton did not participate in this hand down. | |
| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | LINDSAY LOGGING, INC. AND MISSISSIPPI
LOGGERS SELF-INSURED FUND, INC. |
MICHAEL J. MCELHANEY, JR., MATTHEW STEPHEN LOTT, KENDALL STOCKMAN |
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| Appellee: | JAMES TERRY WATSON | AL CHADICK III | ||
Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Workers' compensation - Statute of limitations - Section 71-3-35(1) - Wages in lieu of compensation - Section 71-3-11 |
| Summary of the Facts: | James Watson injured his back while operating a tree cutter as part of his employment with Lindsay Logging, Inc. Watson continued to work for Lindsay Logging for approximately two months after his injury. Watson testified that he quit 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. 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. 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. 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. Watson has not worked since that time. Watson filed his petition to controvert nearly five years after his injury occurred. The administrative law judge 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. 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 appeals. |
| Summary of Opinion Analysis: | 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. Section 71-3-35(1) provides that 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. The ALJ held that Watson’s claim for disability benefits did not arise until Dr. Lewis took Watson off work which did not occur until more than two years after Watson’s injury. The Commission found that the payment of Watson’s salary on the eleven days he missed work to attend his doctor’s appointments related to the injury constituted the payment of salary in lieu of workers’ compensation benefits. Lindsay Logging only paid Watson’s medical bills. Watson never missed more than one day at a time for his doctor’s appointments. In deciding whether the waiting period has been met, there is no requirement that the days of disability be consecutive; however, each case cited by Watson and the Commission for the proposition that the payment of salary was in lieu of benefits has involved a claimant who missed multiple, consecutive days of work due to an injury. The basic test for determining whether wages are paid in lieu of compensation is whether the wages paid after the injury are actually earned and that such is determined by the facts and circumstances of a particular case; the test for treating wages as in lieu of compensation is not whether the claimant does all his prior work, but, rather, the test is whether the wages are earned by such work as the claimant in fact does. There is no evidence in the record to show that Watson did not earn his full wages despite his eleven absences. To the contrary, Lindsay testified that Watson was an excellent tree-cutter operator, and that Watson could do enough work in two days to keep a crew running for four or five days. When an employer elects to continue the payment of the wages of an injured employee and the payment is not in return for work done or services rendered but is either expressly or impliedly in lieu of compensation, the payments may be considered as payments of compensation to the same extent and with like effect as payments otherwise made by an insurance carrier under and in compliance with the Act. There is seldom evidence of the employer’s intention behind the payment; thus, such intention must be inferred from the circumstances surrounding the payment. Here, Lindsay Logging only paid his salary for four of the eleven days. Even if the Court infers that Lindsay Logging’s intent behind these payments was in lieu of compensation, these four days do not satisfy the five-day waiting period required in section 71-3-11. There is no evidence, much less substantial evidence, to uphold the Commission’s finding that Watson’s wages were intended to be made in lieu of compensation. It is possible, under section 71-3-35(1), for an employer to dispute compensability yet provide medical treatment without waiving the statute of limitations. That is exactly what happened here. Because Watson’s wages were not paid in lieu of compensation, his claim is barred by the two-year statute of limitations. |
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