J. R. Kirk & Maryland Casualty Co. v. Sullivan , 213 Ky. 154 ( 1926 )

Opinion of the Court by

Drury, Commissioner

Reversing.

The appellee, whom we will refer to as the plaintiff, began this action against the appellants, whom we will call defendants, before the Workmen’s Compensation Board of Kentucky, which dismissed his application. He petitioned the Mason circuit court for a review of the action of the Workmen’s Compensation Board. He was successful, and the defendants have appealed. The Workmen’s Compensation Board made the following finding of facts:

“It will be noted that the agreed stipulation of facts sets out that the plaintiff got a small piece of steel shaving in his eye on the 9th day of December, 1917, while drilling a. hole through a piece of steel, in the course of his employment, and that he at once notified his employers, who, • in • turn, notified their insurance carrier; that after December 9th, 1917, Sullivan was examined and treated by various eye experts, none of whom ascertained tbe cause of bis trouble or discovered a shaving of steel in bis eye. Dr. I. A. Lederman, an eye specialist, did not believe that tbe condition was the result of a traumatic injury, and so advised tbe defendant.

“On December 25, 1921, four years after tbe accident, a steel shaving or sliver was removed from plaintiff’s eye. From December 25, 1921, to July 3rd, 1923, tbe plaintiff bad full knowledge of tbe cause of tbe trouble to bis eye. On July 3, 1923, nearly six years after tbe date of tbe accident and approximately a year and a half after tbe sliver of steel was removed from bis eye,.the plaintiff filed a claim for compensation before the Workmen’s Compensation Board. Counsel for tbe plaintiff seek to stay tbe statute of limitation because of tbe fraud perpetrated by tbe defendants and their doctors on this claimant. Tbe agreed stipulation of facts sets forth Ghat between December 9th, 1917, and December, 1922, Thomas Sullivan bad said eye examined and treated from time to time by tbe following physicians : Dr. A. O. Taylor, Dr. R. Loval Samuel, Dr. P. G. Smoot, Dr. W. E. Hord, Dr. J. A. Simpson, Dr. George P. Lambert, all. of Maysville, Kentucky, Dr. R. W. Bledsoe, Dr. G. N. Heisel and Dr. James Ryan, all of Covington, Kentucky, Dr. D. T. Vail, Dr. Sidney Lange, Dr. Albert Faller, Dr. H. H. Vail and Dr. Riley, all of Cincinnati, Ohio; that prior to tbe removal of said eye none of said physicians stated positively whether or not tbe pain and loss of sight in said eye resulted from an injury.’

“Thomas Sullivan did everything possible to find out tbe cause of tbe trouble in bis eye. He sought and bad tbe services of tbe most eminent eye specialists, none of whom found tbe sliver of steel in bis eye. Where is tbe fraud? Could it be said that this defendant could have influenced tbe opinions of these eminent eye specialists who were consulted by tbe plaintiff, to misrepresent and mislead him for the purpose of defeating a claim for $1,200.00? Tbe charge of fraud is so flimsy that this board feels that it is unnecessary to further answer it.

“Whether or not all of these eminent eye specialists were mistaken or tbe plaintiff got tbe sliver of steel in his eye subsequent to their examination, is a matter this board cannot answer. The strange fact remains unanswered, that on December 25,1921, the plaintiff had a sliver of steel removed from his eye and did not file a claim for compensation until July 30, 1923, a year and a half after the operation. Whatever may have been the cause of the plaintiff’s failure to file a claim, from the time he claims to have received the injury down to the time that the sliver of steel was removed from his eye, such cause could not be relied upon from the date of the operation until the date that he did file a claim. He was not in ignorance then as to the cause of his condition.

“The one year statute of limitation from the date of the accident for the filing of a claim for compensation is a provision that is mandatory, and effective unless a fraud has been perpetrated by the defendants' upon the injured employee for the purpose of defeating his claim. This record discloses no fraud. The claimant has slept on his rights while the statute of limitation was running against him. He cannot sleep and expect the compensation board to accept his version of a fraud, which is not based on facts, in order that he might receive compensation.”

The Workmen’s Compensation Board made the following order:

“The statute of limitation applied hereto and the application filed herein is dismissed because same was not filed within one year after the date of the accident.”

This- case presents but one question, and that is, did the plaintiff file his application for compensation soon enough? It is admitted that it was not filed until June 3, 1923. The accident happened on December 9, 1917. Section 4914, Kentucky Statutes, is mandatory and controlling. It is suggested that by section 4987 it is provided that this act shall be liberally construed, but to sustain the plaintiff’s claim we must do more than construe. We would have to repeal section 4914, and this we can not do. It is evident that plaintiff had a legitimate claim. It is unfortunate that his claim was not sooner asserted.

The judgment is reversed and the cause remanded for consistent proceedings.