Novak v. Triangle Steel Co. ( 1977 )

Spencer, J.

Triangle Steel Company, defendant, appeals from a compensation award to Donald Novak, plaintiff. He was awarded temporary total and permanent partial disability, hospital and medical expenses, and vocational rehabilitation services. Plaintiff cross-appeals, contending the temporary total disability should have been awarded for a longer period. The question raised by the defendant is the applicability of the statute of limitations. We reverse the judgment and dismiss the action.

On November 29, 1972, plaintiff injured his back as the result of an accident arising out of and in the course of his employment by the defendant. The injury was diagnosed as a herniated disc between the fourth and fifth lumbar vertebrae. A partial hemilaminectomy was performed on December 7, 1972. Plaintiff returned to work for defendant on March 28, 1973, doing the same type of work as before. Plaintiff testified he continued to have soreness in his back following the operation and that he last consulted the doctor about the problem in June 1973.

Plaintiff and defendant entered into a lump sum settlement to compensate plaintiff for the injury. The settlement was approved by the District Court for Douglas County on March 28, 1973. It contained a provision releasing defendant from any further liability arising out of that injury.

Plaintiff was injured again on October 23, 1973, while employed by the defendant. He twisted his ankle in some loose sand while stepping down from a crane and fell, striking his right hip and shoulder. After resting for 20 minutes he returned to work for the day.

The following morning he went to the emergency room of Methodist Hospital for treatment of his ankle and right shoulder. X-rays taken of his ankle and shoulder proved negative. Some 2 or 3 days later plaintiff visited his family physician. Plaintiff testified his back was sore, but he attributed this to his original injury. Defendant’s compensation carrier paid all medical and hospital bills through October 1973.

Plaintiff returned to work on October 30, 1973. He continued to work in the same capacity until December 28, 1973. Plaintiff testified that during this time his feet were numb, he could not lift his left arm, he had cramps, and he eventually could work with only one arm.

Plaintiff consulted a doctor on December 31, 1973, and was placed in the hospital. A myelogram performed on January 5, 1974, revealed an extruded lumbar disc in the lumbosacral space on the right side. Surgery was performed on January 10, 1974, and the disc between the fifth lumbar and the sacrum was removed. The incision for this surgery was made through the scar tissue of the first surgery as the injuries were approximately 2 inches apart. Plaintiff testified that despite inquiries he made, the doctors did not inform him why the second surgery was required. The surgeon could, not recall whether he advised plaintiff that the second injury involved a different disc.

Plaintiff did not return to work for defendant following this surgery. The doctor released him to do light work in June 1974. Plaintiff was unable to obtain permanent employment until August 1975, when he began his present job as a salesman. Plaintiff did not make a compensation claim for the 1974 surgery. He did file an insurance claim with the defendant’s group health carrier, which was paid.

In August 1974, while consulting with an attorney on an unrelated legal matter, plaintiff discussed his back problem. He was referred to his present attorney who investigated the possibility of a malpractice action.

Plaintiff alleges that he was not aware he might have a compensable claim for the back surgery of January 10, 1974, until November 1, 1974. Until that time, he did not know the surgery in 1974 was on a different disc than that removed in November of 1973.

Plaintiff’s attorney sent a letter to defendant on November 25, 1974, informing it for the first time of Novak’s possible compensation claim for a back injury. A copy of this letter was forwarded to the employer’s compensation carrier on December 5, 1974. This action was filed February 6, 1975.

After an award by a single judge of the Workmen’s Compensation Court, defendant gave notice of a waiver of a rehearing before the Nebraska Workmen’s Compensation Court en banc. It appealed directly to the District Court for Douglas County, Nebraska. The District Court affirmed the award.

■ The issue in this appeal is whether Novak’s claim is barred by the provisions of section 48-137, R. R. S. 1943, of the Workmen’s Compensation Act. It provides, so far as material here: “* * * all claims for compensation shall be forever barred unless * * * within one year after the accident, one of the parties shall have filed a petition as provided in section 48-173.”

There is no controversy surrounding the fact that Novak was injured on October 23, 1973, during the course of his employment by defendant. It is also undisputed that the October 23 injury directly necessitated the surgery performed on January 10, 1974. Novak’s testimony that he did not know he had suffered a compensable claim for his back injury of October 1973, until November of 1974, is also undisputed. Novak filed his petition with the Workmen’s Compensation Court on February 5, 1975, or more than 15 months after the injury.

This case is controlled by Raymond v. Buckridge, Inc., 195 Neb. 212, 237 N. W. 2d 412 (1976). In that case we held: “When an employee knows that an injury has occurred and that disability therefrom was due to his employment, the period for making claim and filing action is not extended even though he was ignorant of the application of the Workmen’s Compensation Act to his situation.”

For the purposes of this opinion we accept the conclusion that Novak continued to have problems with his back following his first back surgery. He returned to the hospital in January of 1973, because of drainage problems. He continued seeing the doctor through June of 1973, because of a soreness at the point of the incision and because of a tingling sensation in his lower back. He was told by his doctor that he would just have to live with these problems. When he went to the hospital emergency room after his injury of October 23, 1973, he had treatment on his ankle and his right shoulder. While he testified his back was sore, he made no claim he had any problem with it.

The myelogram performed on January 5, 1974, revealed an extruded lumbar disc in the lumbosacral space on the right side. Surgery was performed on January 10, 1974, to remove the disc between the fifth lumbar and the sacrum. In the previous surgery a partial hemilaminectomy had been performed. That operation involved the disc at the L4 - L5 interspace, or approximately 2 inches above the veterbrae removed in the subsequent surgery.

The District Court held the action was not barred by the statute of limitations. It concluded that plaintiff had mistakenly believed the second back problem was an aggravation of or the result of the original injury for which he had been compensated. It held this to be a mistake of fact which would prevent the statute of limitations from running until November 1974, when plaintiff became aware that the injuries were unrelated.

We disagree with the trial court’s conclusion. Novak had sufficient facts to put a reasonable man on notice. When he entered the hospital in December 1973, Novak knew he had suffered a disabling injury. He related that injury to the accident of October 23, 1973. He accepted benefits from his employer’s group health carrier for hospitalization and surgical care between December 31, 1973, and January 17, 1974.

When his case history was taken by the doctor, Novak stated that he was injured in a fall on October 23, 1973. His mistake was that he did not know compensation was available to him as a result of the October 23 accident for a new injury. He knew this accident increased his back problem, but believed his injury was not compensable. At trial, Novak testified that he didn’t go to the doctor for his back problem. “I didn’t think it was that severe; and besides, I didn’t have no claim on my back.” Yet, the fact that a myelogram was performed pointed up a possible back problem. The surgery confirmed it.

Plaintiff is placing great reliance on Borowski v. Armco Steel Corp., 188 Neb. 654, 198 N. W. 2d 460 (1972), and Williams v. Dobberstein, 182 Neb. 862, 157 N. W. 2d 776 (1968). Those cases involved lack of knowledge of the seriousness of a latent injury, not the question present herein. Here, we are dealing with the lack of knowledge that a disability sustained from an injury is compensable, which is the type of situation dealt with in Raymond v. Buckridge, Inc., 195 Neb. 212, 237 N. W. 2d 412 (1976).

Novak’s excuse that he didn’t think he could get any more compensation because of the previous lump sum settlement is not a mistake of fact. Rather, it is mistake of law. In certain limited situations it might be possible to recover. Here, however, it is a new injury which is involved.

On the excusability of a mistake of law to prevent the running of the statute of limitations, Larson in his treatise, Workmen’s Compensation Law, Volume 3, section 78.47, states: “A mistake of law is no more an excuse in connection with a late compensation claim than anywhere else, unless expressly made so by statute.”

Novak’s brief has the following alleged quote from Surratt v. Otoe Food Products Co., 146 Neb. 854, 21 N. W. 2d 862 (1946): “The Statute of Limitations commences to run from the time the employee has full knowledge that an accident has caused a compensable claim.” He also has this statement as Proposition of Law III, with the Surratt decision as authority for it: “The Statute of Limitations commences to run from the time the employee has full knowledge that an accident has caused a compensable claim.” The quoted language is not in the Surratt case.

The rule plaintiff is contending for is probably an adaptation of the rule applicable to latent and progressive injuries. Where an injury is latent and progressive, the tolled statute of limitations begins to run against an employee from the time it becomes reasonably apparent, or should have become reasonably apparent, that he has a compensable disability of any class from an accident, if the employee is aware that the disability is due to his employment. Ohnmacht v. Peter Kiewit Sons Co., 178 Neb. 741, 135 N. W. 2d 237 (1965).

Plaintiff does not contend his injury was latent or progressive. His contention is he did not realize he had a compensable injury because he thought the lump sum settlement foreclosed him from making a claim for anything further related to the 1972 back injury.

Plaintiff is now contending that although his back hurt at the time of the 1973 injury, he did not mention it because of the belief that it was not covered. When, however, the myelogram performed on January 5, 1974, revealed an extruded lumbar disc, he had sufficient information to raise a question as to its cause. On January 10, 1974, when the disc between the fifth lumbar and the sacrum was removed, it was unquestionably evident that he had an injury which flowed from an accident. It was then Novak’s obligation to ascertain whether or not there was any relation between this operation and the first injury. Any investigation would have disclosed that the second operation was not in any way related to the first one. The limitation provided by section 48-137, R. R. S. 1943, starts to run from the time it becomes reasonably apparent or should have become reasonably apparent that a compensable claim exists.

To permit a claimant to ignore facts of this nature and to toll the statute of limitations would, in effect, be a repeal of section 48-137, R. R. S. 1943. A moment’s reflection will show the ease with which the intent of the statute could be thwarted. If we sustain Novak’s contentions, all a future claimant would have to do to get around the statute would be to claim that he did not know he had suffered a compensable claim. If the statute is to be repealed, the Legislature should do it.

We reaffirm our holding in Raymond v. Buckridge, Inc., 195 Neb. 212, 237 N. W. 2d 412 (1976). When an employee knows that an injury has occurred and that disability therefrom was due to his employment, the period for making claim and the filing of the action is not extended even though he was ignorant of the application of the Workmen’s Compensation Act to his situation.

The judgment is reversed and the cause dismissed.

Reversed and dismissed.