Murray v. Ingalls Shipbuilding/NGSS
| Docket Number: | 2009-WC-01221-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 05-25-2010 Opinion Author: Myers, P.J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Workers' compensation - Statute of limitations - Section 71-3-35 - Tolling of statute - Section 71-3-67 Judge(s) Concurring: King, C.J., Lee, P.J., Irving, Griffis, Barnes, Ishee, Roberts and Maxwell, JJ. Procedural History: Admin or Agency Judgment Nature of the Case: CIVIL - WORKERS’ COMPENSATION |
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| Trial Court: |
Date of Trial Judgment: 06-29-2009 Appealed from: Jackson County Circuit Court Judge: Kathy King Jackson Disposition: AFFIRMED COMMISSION’S DECISION DISMISSING CLAIM AS TIME-BARRED Case Number: 2008-00088 |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Francis Murray |
JAMES THOMAS DULIN, JR. |
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| Appellee: | Ingalls Shipbuilding/NGSS and Continental Casualty Company | ANDREW GLEN MCCULLOUGH | ||
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| Topic: | Workers' compensation - Statute of limitations - Section 71-3-35 - Tolling of statute - Section 71-3-67 |
| Summary of the Facts: | In 1999, Francis Murray slipped and fell, striking her head, while working at Ingalls Shipbuilding where she was employed as a logistics analyst. Ingalls and/or Continental Casualty Company treated the incident as compensable and provided medical benefits. In 2004, Murray experienced “vertigo” and “dizzy spell” symptoms and was diagnosed as having “central disequilibrium syndrome with vertigo.” In 2006, Murray filed a petition to controvert. Ingalls filed a motion to dismiss based upon section 71-3-35, the statute of limitations. The ALJ dismissed Murray’s claim, finding it time-barred. The Commission affirmed the ALJ’s order, and the circuit court affirmed the Commission’s decision. Murray appeals. |
| Summary of Opinion Analysis: | Murray argues that the Commission misapplied the two-year statute of limitations, as she was misdiagnosed in April 1999 by her treating physicians following the injury she sustained at Ingalls. She argues that the injury she sustained at Ingalls caused discreet brain damage, and she had no duty to file her petition to controvert until her “latent brain injury” was evaluated, ascertained, and related to her employment. Section 71-3-35 provides that if no payment for compensation is made other than medical treatment or burial expense, and no application for benefits is filed with the Commission within two years from date of the injury or death, the right of compensation shall be barred. In the case of latent compensable injuries, the two-year limitation statute does not begin to run until by reasonable care and diligence it is discoverable and apparent that a compensable injury has been sustained. Here, the ALJ determined that based on the evidence presented, Murray was aware of the existence and appreciated the extent and nature of her injury as a result of the 1999 fall immediately post-injury. The ALJ further found that even if Murray did not fully recognize the nature, seriousness, and probable compensable character of her injury in 1999, she did so at the latest in on May 18, 2004. Therefore, her petition to controvert filed on August 2, 2006, was time-barred. By Murray’s own admission, had an x-ray been taken in 1999, the “brain stem contusion” would have been discovered. Thus, the injury for which Murray contends she was misdiagnosed, reasonably could have been ascertained by medical evidence at the time of the accident. When this factor is coupled with Murray’s testimony stating that the pain associated with the blow to her head has never resolved itself and that the symptoms of dizziness began soon after the injury, there is substantial evidence that Murray did not suffer a latent injury. Murray also argues that the limitations period should be tolled due to Ingalls’s failure to file a first report of injury with the Commission. Section 71-3-67 requires an employer, if self-insured, or its carrier, to file a report to the Commission within ten days of the occurrence of any injury that disables an employee for five days or more, or where the employer or carrier knows, or reasonably should know, that an injury has resulted, or likely will result, in permanent disability or serious head or facial disfigurement, but which does not cause a loss of time in excess of the prescribed waiting period. According to the record, Murray missed approximately four hours of work as a result of the injury, and there is no indication that Ingalls had any reason to suspect that Murray had sustained a permanent disability. There also is no indication that Murray suffered a serious head or facial disfigurement as a result of the fall. According to the evidence presented, Ingalls was not required to report Murray’s injury to the Commission. |
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