Allegations of misdiagnosis, latent disability do not stop clock
Case name: Murray v. Ingalls Shipbuilding/NGSS, et al., No. 2009-WC-01221-COA (Miss. Ct. App. 05/25/10).
Ruling: The Mississippi Court of Appeals agreed with a lower court that an analyst's claim for benefits was barred by the two-year statute of limitations.
What it means: In Mississippi, if no payment for compensation is made other than medical treatment or burial expenses, and the employee or her representative doesn't apply for benefits with the Workers' Compensation Commission within two years from the date of injury or death, the right to compensation is barred. If an injury is not immediately apparent, the limitations period begins to run when, judged by the standard of a reasonable person, it is discoverable that a compensable injury has been sustained.
Summary: In 2004, five years after she struck her head in a slip and fall accident, a logistics analyst experienced vertigo and dizzy spells and was diagnosed as having "central disequilibrium syndrome with vertigo." She filed a petition to controvert in 2006, more than two years after receiving this diagnosis. In response to the employer's argument that the petition was barred by the two-year statute of limitations, the claimant contended that she was initially misdiagnosed and had no duty to file her petition until her "latent brain injury" was "evaluated, ascertained, and related to her employment" by her doctors. An administrative law judge dismissed her petition as untimely, which was upheld by the commission and a lower court. The Court of Appeals likewise found that the petition was time-barred.
The court highlighted the ALJ's determination that the claimant was aware of and appreciated the extent and nature of her injury immediately after it occurred. Further, even if she was not then fully aware of the seriousness of her condition, the diagnosis she received in 2004 of a "brain stem contusion" and the doctor's association of that condition with the 1999 slip and fall accident should have made her realize the "probable compensable character" of her injury.
Finally, the limitations period was not tolled by the employer's failure to file a first report of injury with the commission. Because the claimant only missed four hours of work after the slip and fall and there was no evidence of permanent disability, the employer was not required to report the injury to the commission.
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August 19, 2010
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