Opinion
July 1, 1966. Rehearing Denied September 16, 1966.
Appeal from the Circuit Court (Common Pleas Branch, Seventh Division), Jefferson County, Thomas A. Ballantine, Jr., J.
Allen Schmitt, Louisville, for appellant.
James M. Graves, William P. Swain, Boehl, Stopher, Graves Deindoerfer, Louisville, for appellees.
Ira Cambron appeals from a judgment holding that his workmen's compensation claim is barred by the one-year filing limitation under KRS 342.270(1) on appeal he contends that the actions of the adjuster for the insurance carrier of his employer, Co-Operative Distributing Company, lulled him into thinking that his claim would be paid and thus estopped his employer from asserting the statute of limitation.
Cambron was injured October 29, 1962. He employed an attorney, other than his present counsel, who went to see Cambron at the hospital on February 13, 1963. This attorney was in communication with the insurance adjuster concerning the claim. Appellant's claim for compensation benefits was filed by his attorney on January 20, 1964, eighty-three days after the expiration of the time allowed by KRS 342.270(1) and three hundred and forty-two days after employment of counsel.
Appellant sustained a serious back injury. He had previously received compensation for a similar injury. The last injury necessitated repeated surgical treatment. On the first three hospital visits he paid no deposit. He was admitted upon verification that his was a workmen's compensation case. The hospital refused to admit him on the fourth visit, August 12, 1963, until he signed a note. Appellant described it thus:
"They told me that the insurance company's liability had run out and they made me sign a note before they would admit me."
Appellant could not be certain of the time but stated that sometime after January 15, 1963, an adjuster from his employer's insurance carrier talked with appellant and made out an injury report. Apparently that was the only conversation between them, and it was had after appellant had been hospitalized the first time. Appellant testified as follows concerning statements made then by the adjuster (Mr. Barrett):
"26 — Now what was your conversation with Mr. Barrett at that time?
"A — He came out to make a report of the injury, and he made the injury report. And I asked him when I would start drawing my compensation checks and he told me that it would be about 2 weeks because it would have to clear the Home Office in Dallas, Texas."
* * * * * *
"39 — While you were still talking to Mr. Barrett there did you ask Mr. Barrett for any money or to settle your claim with you at that time?
"A — I told him that I thought I ought to have my money since I didn't have anything to live on. And he said 'As soon as we get a report from your doctor as to the amount of your disability we will settle with you.' "
After the employment of counsel the communication was between appellant's counsel and the adjuster. In short, it consisted of statements to the effect that a settlement of the claim would be made when the appellant's disability could be medically determined. In one conversation the adjuster indicated that one problem related to a settlement would be an apportionment between the new injury and the old injury.
Upon this testimony appellant insists that he was lulled into security that his claim would be paid and therefore failed to file an application for benefits within the one year allowed after the accident. Appellant is immediately met by a number of decisions holding that the provision for filing an application within one year after the accident is mandatory. Laswell v. Carrollton Furniture Mfg. Co., Ky., 251 S.W.2d 296; Pipes Chevrolet Company v. Bryant, Ky., 274 S.W.2d 663; Miles v. General Electric Company, Ky., 280 S.W.2d 529. In the latter two cases actual payment of medical bills was held not to toll the running of the statute of limitation. An offer of settlement did not toll the statute in Jefferson Development Co. v. Olinick, Ky., 272 S.W.2d 676.
In Whitis v. O.P. Link Handle Co., Ky., 378 S.W.2d 612, it was held that the payment of temporary total disability for a given time does not constitute an agreement so as to suspend the running of the statute of limitation. An amendment to KRS 342.270(1) became effective in 1964 following the latter decision. Appellant relies on cases decided prior to 1948 when the statute was changed to include the present one-year-after-accident provision. For this reason those cases are not in point.
Further, appellant is met by Pospisil v. Miller, Ky., 343 S.W.2d 392; Burke v. Blair, Ky., 349 S.W.2d 836; and Cuppy v. General Accident Fire Life Assurance Corp., Ky., 378 S.W.2d 629. In each of these cases it was held that there was no estoppel and that the statute was a bar. As is pointed out in each case the claimant is not entitled to rely on his adversary, the insurance adjuster, in the absence of false representation or a fraudulent concealment. Neither is claimed here. In the present case the facts are stronger than in the last three cases cited because appellant had employed counsel long before the statutory period had expired and further had notice that the insurance company was not assuming liability when he entered the hospital on the fourth visit. Under the facts of this case appellant is not entitled to claim estoppel as a bar to the operation of the limitation provided under KRS 342.270(1). There is no distinction between workmen's compensation insurance cases and other insurance cases, as is urged by appellant.
Judgment affirmed.