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03/31/95 AMERICAN CYANAMID v. RONNIE L. SHEPHERD

March 31, 1995

AMERICAN CYANAMID
v.
RONNIE L. SHEPHERD



Appeal from Mobile Circuit Court. (CV-93-1689). Robert G. Kendall, TRIAL JUDGE.

Rehearing Overruled May 5, 1995, . Certiorari Denied August 11, 1995. Released For Publication February 5, 1996.

Crawley, Judge, Thigpen and Yates, JJ., concur. Robertson, P.j., concurs in result. Monroe, J., Dissents.

The opinion of the court was delivered by: Crawley

CRAWLEY, Judge

This is a workmen's compensation case.

In 1984, Shepherd suffered an on-the-job injury, which required a number of stitches to his hand. He missed no time from work but was given lighter duties for three months. He received full pay for the lighter work. American Cyanamid paid his medical expenses.

In 1990, the scar on Shepherd's hand began to bother him and, on February 5, 1991, he consulted a doctor. The doctor recommended a course of treatment with antibiotics and, if that did not work, then surgery to remove what the doctor suspected might be a foreign body in the old wound. Again, Shepherd missed no time from work. American Cyanamid paid all his medical expenses.

In April 1993, Shepherd had surgery on his hand. American Cyanamid paid for the surgery. Shepherd missed eight and one-half weeks of work, for which American Cyanamid paid him no workmen's compensation benefits. Before he returned to work on June 15, 1993, Shepherd sued to recover those benefits on May 28, 1993. The trial court ruled that Shepherd was entitled to compensation. American Cyanamid appeals.

The only issue on appeal is whether the statute of limitations barred Shepherd's claim. American Cyanamid argues that Shepherd's claim is barred because he did not bring his action within two years of the 1984 injury or within two years of the 1990 "flare-up" of that injury.

The claim period can begin to run only when there is in fact something to claim. Shepherd's medical bills were paid, and he lost no time from work for two years after his 1984 injury, so he had no basis for a compensable claim then. When he did lose time from work in 1993, he had a compensable claim, but, under traditional "time of the injury" analysis, the statutory limitations period had long since run.

American Cyanamid suggests that Shepherd should have filed his complaint, at the latest, within two years of February 5, 1991, the date on which he saw a doctor for the "flare-up" of his old hand injury. On that date, however, and up to the time of his surgery in April 1993, Shepherd still had not missed any time from work and his medical expenses had been paid. Until he lost time from work and American Cyanamid failed to pay him compensation benefits for the period from April 22 to June 15, 1993, there was nothing upon which a claim could be made. See Williams v. Dobberstein, 182 Neb. 862, 157 N.W.2d 776 (1968).

Calculating the beginning of the limitations period at the date of the "accident" or "injury" is overly rigid and unfair in a situation, like this one, in which the worker has a latent injury. This court has previously recognized as much. In Gattis v. NTN-Bower Corp., 627 So. 2d 437 (Ala. Civ. App. 1993), Presiding Judge Robertson's opinion for the court quoted from Professor Larson as follows:

"'A rigid claims period may operate unfairly not only because the nature, seriousness, and work-connection of the injury could not reasonably be recognized by the claimant, or perhaps even by his doctor, but in many cases because the injury itself does not exist in compensable degree during the claims period. This latent or delayed injury problem presents in the sharpest relief the senselessness of uncompromising time periods. The classic illustration is that of the apparently trivial accident that matures into a disabling injury after the claim period has expired. A workman is struck in the eye by a metal chip, but both he and the company doctors dismiss the accident as a petty one, and of course no claim is made, since there is no present injury or disability. Eighteen months later a cataract develops as the direct result of the accident. If the statute bars claims filed more than one year after the 'accident,' and if the court applies the statutory language ...


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