                 IN THE SUPREME COURT OF MISSISSIPPI

                            NO. 2007-CT-00815-SCT

TIMMY PRENTICE

v.

SCHINDLER ELEVATOR COMPANY AND ZURICH
AMERICAN INSURANCE COMPANY


                         ON WRIT OF CERTIORARI


DATE OF JUDGMENT:                    01/16/2007
TRIAL JUDGE:                         HON. W. SWAN YERGER
COURT FROM WHICH APPEALED:           HINDS COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:              PRENTISS M. GRANT
ATTORNEYS FOR APPELLEES:             BENJAMIN U. BOWDEN
                                     ALLYSON L. VAUGHN
NATURE OF THE CASE:                  CIVIL - WORKERS’ COMPENSATION
DISPOSITION:                         THE JUDGMENT OF THE COURT OF
                                     APPEALS IS AFFIRMED. THE JUDGMENT
                                     OF THE CIRCUIT COURT FOR THE FIRST
                                     JUDICIAL DISTRICT OF HINDS COUNTY IS
                                     REVERSED. THIS CASE IS REMANDED TO
                                     THE     MISSISSIPPI       WORKERS’
                                     C OM PEN SA T IO N C O M M ISSIO N FO R
                                     FURTHER PROCEEDINGS CONSISTENT
                                     WITH THIS OPINION - 06/25/2009
MOTION FOR REHEARING FILED:
MANDATE ISSUED:


      EN BANC.

      CARLSON, PRESIDING JUSTICE, FOR THE COURT:

¶1.   Timmy Prentice filed a petition to controvert with the Mississippi Workers’

Compensation Commission (Commission). His employer, Schindler Elevator Company
(Schindler), and its insurance carrier, Zurich American Insurance Company (Zurich), filed

a motion to dismiss based on the statute of limitations. An administrative judge of the

Commission denied the motion, and on review, the full Commission affirmed the

administrative judge’s order denying the employer/carrier’s motion to dismiss. On appeal,

the Circuit Court for the First Judicial District of Hinds County reversed the Commission’s

decision and rendered judgment in favor of the employer/carrier. Prentice appealed, arguing

that, because Schindler is estopped from asserting the statute of limitations as a defense, the

circuit court erred. The Court of Appeals reversed the judgment of the circuit court and

remanded this case to the Commission. While we agreed with the Court of Appeals’

disposition of this appeal, we granted certiorari to clarify that failure to comply with

Mississippi Code Section 71-3-67, alone, does not estop an employer from relying on the

statute of limitations.

                          FACTS AND PROCEDURAL HISTORY

¶2.    On April 23, 1998, Timmy Prentice, while employed by Schindler, was injured at the

worksite when a crane lifted a portable restroom occupied by Prentice approximately fifteen

feet above the ground. While the restroom was suspended in the air, Prentice stepped out and

fell to the construction floor. Prentice informed his supervisor of the injury, and he was

instructed to fax an Alabama “first notice of injury” form to Schindler’s Alabama office;




                                              2
Prentice complied. As determined by the administrative judge and the Court of Appeals,

Prentice missed at least five days of work as a result of his injury.1

¶3.    Prentice left his employment with Schindler but later worked at Schindler’s

Shreveport, Louisiana, location. Initially, some of Prentice’s medical bills were paid,2 but

these payments eventually stopped. Prentice contacted an employee of Zurich, who informed

Prentice that his medical bills would be paid once the paperwork came through.

¶4.    The medical bills never were paid, so in 2002, Prentice filed a petition to controvert

with the Commission. Schindler and Zurich asserted the expiration of the statute of

limitations 3 as a defense and filed a motion to dismiss; however, after a hearing on the matter,




       1
       See Prentice v. Schindler Elevator Co., 2008 Miss. App. LEXIS 376, *5-*6, ¶8-11
(Miss. Ct. App. June 24, 2008).
       2
        Although some medical bills were paid, the employer/carrier paid no indemnity
benefits.
       3
           Mississippi Code Section 71-3-35(1) states:

       No claim for compensation shall be maintained unless, within thirty (30) days
       after the occurrence of the injury, actual notice was received by the employer
       or by an officer, manager, or designated representative of an employer. If no
       representative has been designated by posters placed in one or more
       conspicuous places, then notice received by any superior shall be sufficient.
       Absence of notice shall not bar recovery if it is found that the employer had
       knowledge of the injury and was not prejudiced by the employee's failure to
       give notice. Regardless of whether notice was received, if no payment of
       compensation (other than medical treatment or burial expense) is made and no
       application for benefits filed with the commission within two years from the
       date of the injury or death, the right to compensation therefor shall be barred.

 Miss. Code Ann. § 71-3-35(1) (Rev. 2000).

                                               3
the administrative judge ruled that “although the Statute of Limitations has run, the

Employer/Carrier is estopped from raising that affirmative defense because of the failure to

file the statutorily required first report of injury.” The full Commission affirmed the order

of the administrative judge. Schindler and Zurich appealed, and the Circuit Court for the

First Judicial District of Hinds County reversed the decision of the full Commission.

¶5.    On February 7, 2007, Prentice timely appealed, and the case was assigned to the Court

of Appeals. The Court of Appeals reversed the circuit court and remanded this case to the

Commission on June 24, 2008. Prentice v. Schindler Elevator Co., 2008 Miss. App. LEXIS

376 (Miss. Ct. App. June 24, 2008). Schindler and Zurich filed a motion for rehearing,

which the Court of Appeals denied. Prentice v. Schindler Elevator Co., 2008 Miss. App.

LEXIS 795 (Miss. Ct. App. Dec. 16, 2008). Schindler and Zurich subsequently filed their

petition for writ of certiorari, and this Court granted the petition. Prentice v. Schindler

Elevator Co., 2009 Miss. LEXIS 109 (Miss. Mar. 12, 2009).

                                       DISCUSSION

¶6.    Mississippi Code Section 71-3-67(1) states:

       Within ten (10) days after the fatal termination of any injury, the employer, if
       self-insured, or its carrier, shall file a report thereof with the commission on
       a form approved by the commission for this purpose.

       In the event of an injury which shall cause loss of time in excess of the waiting
       period prescribed in Section 71-3-11, a report thereof shall be filed with the
       commission by the employer or carrier, on a form approved by the commission
       for this purpose, within ten (10) days after the prescribed waiting period has
       been satisfied.



                                              4
       Within ten (10) days after the employer or carrier knows, or reasonably should
       know, that an injury has resulted, or likely will result, in permanent disability
       or serious head or facial disfigurement, but which does not cause a loss of time
       in excess of the prescribed waiting period, a report thereof shall be filed with
       the commission on a form approved by the commission for this purpose.

Miss. Code Ann. § 71-3-67(1) (Rev. 2000). In today’s case, the Court of Appeals held that

“Schindler is estopped from asserting the statute of limitations as a defense. Because

Schindler failed to comply with the notice requirements mandated under Martin and section

71-3-67(1), we must reverse the judgment of the circuit court.” Prentice v. Schindler

Elevator Co., 2008 Miss. App. LEXIS 376, *8, ¶12 (Miss. Ct. App. June 24, 2008) (citing

Martin v. L & A Contracting Company, 249 Miss. 441, 162 So. 2d 870, 873 (1964)).

However, the Court of Appeals did not explicitly discuss any other grounds for estopping

Schindler from asserting the defense.

¶7.    In Martin, this Court explicitly stated that “[w]e do not hold that failure to comply

with section 28 (requiring employer to give notice to commission) alone would estop the

employer from relying on the statute of limitation.” Martin, 162 So. 2d at 873. This Court

held that not only failure to file notice with the Commission, but also the fact that

compensation was paid to the claimant, constituted waiver of the statute of limitations

defense. Id. Also, in Holbrook ex rel. Holbrook v. Albright Mobile Homes, Inc., 703 So.

2d 842, 845 (Miss. 1997), this Court held that the trial court had erred in granting summary

judgment in favor of the employer/carrier, since material facts existed on the issue of whether

the statute of limitations was tolled based on the possibility the claimants may have been

misled concerning the existence of workers’ compensation coverage, in addition to failure

                                              5
to file notice. Id. Likewise, this Court has stated that “[w]hile it is true that the failure to file

the required notice by itself does not prevent the employer from raising the statute of

limitations defense, this is a factor to be considered in the overall scheme.” McCrary v. City

of Biloxi, 757 So. 2d 978, 982 (Miss. 2000) (employer told claimant it would file his claim

and engaged in settlement negotiations for a substantial period of time). Furthermore, “[w]e

are reminded that workers’ compensation law is to be liberally and broadly construed,

resolving doubtful cases in favor of compensation so that the beneficent purposes of the act

may be accomplished.” Id. at 981 (citations omitted).

¶8.    In today’s case, Prentice asserts that he “did not make a claim for medical benefits

during the statutory period because the employer led him to believe same would being [sic]

handled until the statutory period had past [sic].” Prentice testified during his deposition that

he did not file a claim for workers’ compensation because he was under the impression that

Schindler had filed it for him. Also, at the hearing before the administrative judge, Prentice

further testified that he did not file a claim for workers’ compensation immediately after his

medical bills began going unpaid because an employee of Zurich had led him to believe that

the insurance was “taking care of it.” 4 Based upon these additional considerations, we affirm

the Court of Appeals’ judgment in today’s case.




       4
        Prentice also sent medical bills to this insurance company employee at the
employee’s direction. The employee stated that she had not received Schindler’s Form B-3,
or notice-of-injury report, and that Prentice’s medical bills would be paid upon receipt of the
form.

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                                       CONCLUSION

¶9.    Although we affirm the Court of Appeals, we granted certiorari to clarify any

uncertainty as to the issue of whether failure to file the statutory notice alone is sufficient to

prohibit the employer from raising the expiration of the statute of limitation as a defense. We

reiterate that lack of notice is but one factor to be considered in making the ultimate

determination of whether an employer and its insurance carrier should be estopped from

asserting the purported expiration of the statute of limitations.

¶10. THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED. THE
JUDGMENT OF THE CIRCUIT COURT FOR THE FIRST JUDICIAL DISTRICT
OF HINDS COUNTY IS REVERSED. THIS CASE IS REMANDED TO THE
MISSISSIPPI WORKERS’ COMPENSATION COMMISSION FOR FURTHER
PROCEEDINGS CONSISTENT WITH THIS OPINION.

     DICKINSON, RANDOLPH, LAMAR AND PIERCE, JJ., CONCUR.
KITCHENS, J., CONCURS IN RESULT ONLY WITH SEPARATE WRITTEN
OPINION JOINED BY WALLER, C.J. GRAVES, P.J., JOINS IN PART.
CHANDLER, J., NOT PARTICIPATING.


       KITCHENS, JUSTICE, CONCURRING IN RESULT ONLY:

¶11.   I agree with the result of today’s decision, which affirms the judgment of the Court

of Appeals in this case. However, because I agree with the unanimous holding of that court

that an employer’s failure to comply with Section 71-3-67's notice requirement estops that

employer from asserting a time-bar defense, I cannot concur with the substance of the

majority opinion.

¶12.   Section 71-3-67 of the Mississippi Code requires a self-insured employer to report to

the Mississippi Workers’ Compensation Commission within ten days the occurrence of any

                                                7
injury that disables an employee for five days or more. Miss. Code Ann. § 71-3-67(1) (Rev.

2000). Our precedent makes clear that failure to comply with this requirement will preclude

the employer from claiming a defense based on the statute of limitations. In Holbrook ex rel.

Holbrook v. Albright Mobile Homes, Inc., 703 So. 2d 842, 845 (Miss. 1997), the justices

unanimously observed that “[t]his Court has previously found that an employer and its

insurance carrier would be estopped from denying that the two-year statute of limitations was

tolled where they failed to comply with the notice requirement of [Section 71-3-67].” Id. at

844. The unanimous Court further observed, and rightly so, that “it would be inconsistent

with the purpose of the [Workers’ Compensation Act] to allow the employer and its

insurance carrier to take advantage of their failure to perform their duty to give notice to the

Commission.” Id. The majority is correct in its assertion that the Holbrook Court also

considered the employers’ misrepresentations regarding insurance coverage before ruling in

favor of the injured employee, Maj. Op. at ¶7; but the justices in Holbrook held as they did,

not because of the combination of those two facts, but rather because each fact independently

required estoppel. See id. (“This Court has also held that the statute of limitations is tolled

where the employer misrepresents the nature and existence of its coverage . . . .”).

¶13.   Today’s judgment similarly misplaces reliance on Martin v. L. & A. Contracting Co.,

249 Miss. 441, 162 So. 2d 870 (1964). See Maj. Op. at ¶7. The Martin Court, as the majority

correctly contends, “d[id] not hold that failure to comply with [the notice requirement] alone

would estop the employer from relying on the statute of limitation.” Martin,162 So. 2d at

873. But this statement does not demonstrate a requirement of a further showing, as today’s

                                               8
majority purports; rather, the Martin Court merely left for another day the determination of

whether an employer’s failure to notify, standing alone, estopped the employer from

asserting the statute of limitations. If any doubt remained by 1997, then the Holbrook Court

definitively and unanimously settled the question once and for all.5 Indeed, the rule of

Holbrook is so clear that its annotation under Section 71-3-67 summarizes the case thusly:

“Employer was estopped from claiming that two-year statute of limitations on workers’

compensation claim was not tolled, where employer failed to timely file statutorily-required

notice of fatal termination of injury.” Miss. Code Ann. § 71-3-67 (Rev. 2000).

¶14.   This rule comports with our well established view that workers’ compensation law

should be given a liberal interpretation, which serves better to effectuate “the beneficent

purposes of the act . . . .” Robinson v. Packard Elec. Div., 523 So. 2d 329, 332 (Miss. 1988).

But Holbrook was not the product of some blind allegiance to labor over industry; rather, the

unanimous result was a sound, practical policy determination that avoided the possibility of

unfairly punishing injured workers. Although it is true that an employer’s remittance of

compensation payments tolls the statute of limitations, see Parchman v. Amwood Products,

988 So. 2d 346, 351 (Miss. 2008), history has brought to our courthouses cases in which

confusion has arisen over whether given sets of payments qualified as true compensation, id.,



       5
         The rule was reiterated in McCrary v. City of Biloxi, 757 So. 2d 978, 981 (Miss.
2000). While the majority correctly recounts that the McCrary Court observed passingly that
failure to file notice would not, without more, estop an employer from asserting a time-bar,
Maj. Op. at ¶7, the majority appears not to have considered the fact that the McCrary Court
offered that announcement without presentation of any legal support. See id. at 982.

                                              9
or even whether a particular payment was actually a payment at all. See Trehern v. Grafe

Auto Co., 232 Miss. 854, 100 So. 2d 786 (1958).

¶15.   One need not strain the imagination to envision an injured worker receiving monthly

remittances from an employer who fails to file notice but otherwise acts in good faith and

who, after two years, loses all rights to an otherwise valid claim and is left at the mercy of

a company legally unobligated to provide any further assistance. Today’s majority forgoes

the opportunity to avoid that danger and, contrary to the underlying principle of the

Holbrook Court’s ruling, “allow[s] the employer and its insurance carrier to take advantage

of their failure to perform their duty to give notice to the Commission.” Holbrook, 703 So.

2d at 844.

¶16.   In my judgment, therefore, today’s decision goes beyond its stated purpose “to

clarify” Holbrook, Maj. Op. at ¶9, by overturning it. But even if one were convinced by a

review of our precedent that the question was a close one that warranted clarification, which,

with respect, I am not, then our devotion to stare decisis should compel us to accept the result

settled upon years earlier by the bar and the judiciary. Instead, waters that were distilled and

filtered long ago now are muddied with unanswered questions. For example, if failure to

comply with the notice requirement is, in and of itself, not enough to estop an employer from

asserting a time-bar, then what is? How many other misdeeds must the Commission or a trial

court identify before concluding that the statute of limitations has tolled? Should other

factors, such as misrepresentation of insurance coverage, be weighed equally? If not, then

what is the relative weight of an employer’s failure to file notice?

                                              10
¶17.   Therefore, because the analysis underlying today’s judgment conflicts with

longstanding precedent, sound policy judgments, and our fealty to stare decisis, I join today’s

decision in result only. I vote to affirm the judgment of the Court of Appeals, but I

respectfully suggest that our affirmance should be founded upon a holding that an employer’s

failure to provide the statutorily required notice of injury to the Mississippi Workers’

Compensation Commission estops that employer from asserting a defense under the statute

of limitations.

     WALLER, C.J., JOINS THIS OPINION.                      GRAVES, P.J., JOINS THIS
OPINION IN PART.




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