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Wedgeworth v. McCarty Farms

February 11, 1998

LENA WEDGEWORTH, APPELLANT
v.
MCCARTY FARMS, INCINC. AND UNITED, APPELLEES STATES FIDELITY & GUARANTY COMPANY



DATE OF JUDGMENT: 10/30/95 TRIAL JUDGE: HON. ROBERT G. EVANS COURT FROM WHICH APPEALED: SIMPSON COUNTY CIRCUIT COURT

TRIAL COURT DISPOSITION: AFFIRMED THE FULL COMMISSION ORDER WHICH DISMISSED APPELLANT'S CLAIM BECAUSE IT WAS BARRED BY TWO-YEAR STATUTE OF LIMITATIONS DISPOSITION AFFIRMED - 2/10/98

Before Bridges, C.j., Coleman, And Southwick, JJ.

The opinion of the court was delivered by: Coleman, J., For The Court

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B

NATURE OF THE CASE: CIVIL - CLAIM FOR WORKERS' COMPENSATION BENEFITS

Lena Wedgeworth appeals from an order of the Circuit Court of Simpson County which affirmed the full commission order of the Mississippi Workers' Compensation Commission. The full commission order had in turn affirmed the order of administrative Judge which dismissed with prejudice Wedgeworth's petition to controvert because she had failed "to controvert the claim within the two year statute of limitations." We affirm the order of the Simpson County Circuit Court.

I. FACTS

On April 23, 1991, while she was gathering eggs in the course of her employment at McCarty Farms in Magee, a rooster pecked Lena Wedgeworth on the lateral area of her right leg just above her ankle. The rooster's pecking caused multiple small puncture wounds, which Wedgeworth's niece, also an employee of McCarty Farms, immediately cleaned. Later that afternoon, another McCarty employee, Dale Crocker, instructed Wedgeworth to go to McCarty Farm's main office to seek medical treatment. Patty Rhodes, whom Ms. Wedgeworth described as the bookkeeper, but who also served as the plant's nurse, treated Ms. Wedgeworth's wound, which the rooster had pecked, with some samples of salve which she would rub on the wound. Ms. Rhodes also gave Ms. Wedgeworth two Tylenol tablets.

Three weeks after her injury, Ms. Wedgeworth consulted Dr. Amnuey Chiemprabha, a family- practice physician and general surgeon in Mendenhall on May 4, 1991. Dr. Chiemprabha treated the wound, which he described in his deposition as red, inflamed, and infected, and provided Ms. Wedgeworth with some cream to put on her wounds. McCarty Farms sent Ms. Wedgeworth to see Dr. Frank Wade, another family practitioner in Mendenhall. In his chart for his treatment of Ms. Wedgeworth on January 27, 1992, Dr. Wade described Ms. Wedgeworth's wound as "a raised rash[,] not red" and defined the condition as "contact dermatitis" or an inflammation of the skin. Ms. Wedgeworth returned to Dr. Wade for further treatment of her injury on February 18, 1992, but afterwards, she resumed seeing Dr. Chiemprabha because she felt Dr. Wade's treatment was not helping her at all. On June 4, 1992, Ms. Wedgeworth returned to Dr. Chiemprabha, and she complained to him that her leg "itched" where the rooster had pecked her. Dr. Chiemprabha gave her some ointment to decrease the itching. In his deposition, Dr. Chiemprabha testified that to the best of his knowledge Ms. Wedgeworth was still working and that he had never taken her off of work because of her injury inflicted by the rooster. Dr. Chiemprabha saw Wedgeworth several more times about her leg's itching, but the doctor explained that he did not place any physical restrictions on her. Dr. Chiemprabha did not believe that she had any permanent disability.

Wedgeworth argues that the itching became unbearable and as result she was unable to continue working at McCarty Farms. Ms. Wedgeworth and McCarty Farms dispute the date she left her employment at McCarty Farms. Wedgeworth testified that she left in August 1992, but McCarty Farms maintains that she quit in August 1991. To this Court, the most singularly important fact is that Ms. Wedgeworth never received any disability payment under the workers' compensation act, whether temporary or permanent.

II. LITIGATION

On October 4, 1993, almost two-and-one-half years after her injury occurred, Ms. Wedgeworth filed a motion to controvert with the Mississippi Workers' Compensation Commission against her employer, McCarty Farms, Inc., and its insurance carrier, United States Fidelity and Guaranty Company (USF&G). Four days after McCarty Farms and USF&G filed their answer to Ms. Wedgeworth's motion to controvert, they filed a motion to dismiss in which they asserted that Ms. Wedgeworth's claim was barred by Section 71-3-35(1) of the Mississippi Code. *fn1

At the hearing, Wedgeworth testified to the facts surrounding her injury and testified that a check was sent to the pharmacy from USF&G for the medicine which was prescribed by her physicians. Wedgeworth admitted that she had never been paid either permanent or temporary disability benefits after her injury on April 23, 1991. John Goforth, a representative of USF&G, testified that his company received official notification of Wedgeworth's injury during the month of May 1991 from McCarty Farms. He continued that USF&G had paid Ms. Wedgeworth's medical bills which she incurred for the treatment of the rooster's pecking wounds, but he also testified, as we noted that Ms. Wedgeworth also testified, that USF&G had not paid any disability compensation to Ms. Wedgeworth.

After the hearing on the motion to controvert, the administrative law Judge ordered that Wedgeworth's claim against McCarty Farms and USF&G "be dismissed with prejudice pursuant to Miss Code Ann. ยง 71-3-35(1) (1972), for [Ms. Wedgeworth's] failure to controvert the claim within the two year statute of limitations." As we previously related, the Commission affirmed the order of administrative Judge which had dismissed with prejudice Ms. Wedgeworth's motion to ...


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