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McCrary v. City of Biloxi

April 06, 1999

PAUL T. MCCRARY APPELLANT
v.
CITY OF BILOXI APPELLEE



Before McMILLIN, C.j., King, P.j., And Diaz, J.

The opinion of the court was delivered by: McMILLIN, C.j.

DATE OF JUDGMENT: 10/21/97

TRIAL JUDGE: HON. ROBERT H. WALKER

COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT

NATURE OF THE CASE: CIVIL - WORKERS' COMPENSATION TRIAL COURT DISPOSITION: ALJ AND MWCC AFFIRMED; BENEFITS BARRED

DISPOSITION: AFFIRMED - 4/6/99

¶1. This is an appeal from a decision of the Workers' Compensation Commission dismissing Paul McCrary's petition to controvert as being untimely. McCrary acknowledges that his formal petition commencing a contested proceeding before the Commission was not timely filed; however, he urges that his employer, the City of Biloxi, should be equitably estopped from asserting the two-year time bar because City officials represented to him that the City would file his claim with the Commission on his behalf. The circuit court, sitting as an intermediate appellate court, affirmed the action of the Commission and McCrary perfected this appeal. We affirm the decision of the circuit court.

¶2. McCrary, a police officer for the City of Biloxi, was forced to cease his employment because of substantial emotional difficulties associated with mental depression. In a meeting with his superiors on October 10, 1993, he indicated that his depression was work-related and that it was so severe he was disabled from performing the normal duties of his job. He claimed that his mental condition became disabling on August 18, 1993. Responsible city officials received information from McCrary as to his assertions and, acting under the reporting requirements of Section 71-3-67 of the Mississippi Code, forwarded a notice of injury commonly referred to by its form number (Form B-3) to the Commission. The Commission, in accord with standard practice, forwarded a computer-generated notice dated November 25, 1993 to McCrary acknowledging that the report of injury had been received.

¶3. The City and its carrier proceeded to investigate McCrary's claim and there is evidence in the file of considerable correspondence regarding the gathering of medical records and related activity. In January 1994, McCrary retained an attorney to represent him. This attorney informed the City and its carrier of his representation by letter. There is no indication that the attorney took any steps to formally notify the Commission of his involvement in the case until February 5, 1996, when the Commission received a brief letter from the attorney dated January 30, 1996, together with two medical reports. That letter informed the Commission that a "[r]equest for payment of past due benefits has this date been made to the carrier." Despite this activity relating to McCrary's condition, the record is clear that he was not being provided any medical benefits or work-related-disability compensation by the City's workers' compensation carrier during any of this time.

¶4. On April 1, 1996, McCrary filed a formal Petition to Controvert with the Commission. In apparent recognition of the fact that the petition was not timely, McCrary responded to Item 9 of the Petition, which inquires as to "[o]ther matters in dispute" as follows: "Whether employer should be estopped from denying claim was filed."

¶5. McCrary's sole basis for arguing for estoppel before the Commission was that, when he originally told his superior that his disabling depression was job-related, City officials told him that they would file his claim for him with the Commission. He urges that the subsequent receipt from the Commission of an acknowledgment that a report of his injury was received was enough for him to justifiably believe that an "application for benefits" within the meaning of Section 71-3-35(1) had been filed.

¶6. McCrary's reliance on something a city official may have told him as a justification to forbear from formally commencing his claim for benefits for over two years was substantially misplaced. In order to invoke the doctrine of estoppel, the asserting party must show that he has changed his position, to his detriment, in reliance upon the conduct of another. PMZ Oil Co. v. Lucroy, 449 So.2d 201, 206 (Miss. 1984). There is, however, substantial authority for the proposition that the reliance upon this conduct of another must be reasonable. In discussing whether an agency relationship existed under principles of estoppel, the Mississippi Supreme Court

"emphasize[d] that one may be held an agent by estoppel only when from all of the circumstances he realizes or should realize the substantial likelihood that the party suffering the loss will justifiably rely on the tacit representation of agency arising from his conduct. If reliance is only possible, or if reliance is not justifiable in view of the circumstances, including the degree of care exercised by the party suffering the loss, agency by estoppel should not be found to come into play." Alabama Great Southern R.R. v. McVay, 381 So. 2d 607, 612 (Miss. 1980) (emphasis supplied). In

the case of Shogyo International Corporation v. First National Bank of Clarksdale, the supreme court discussed the doctrine of ...


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