Workers’ Compensation – Statute of Limitations – Latent Injury

Dillard v. Calvary Assembly of God, [Ms. 2210341, Sep. 23, 2022] __ So. 3d __ (Ala. Civ. App. 2022). The court (Thompson, P.J.; Hanson and Fridy, JJ., concur; Moore, J., concurs specially, with opinion, which Edwards, J., joins) affirms the Morgan Circuit Court’s summary judgment dismissing Ron Dillard’s workers’ compensation action as barred by the two-year statute of limitations in § 25-5-80, Ala. Code 1975. Dillard argues on appeal that “he did not realize the extent of his [September 20, 2017]work-related injury until he had surgery on his lower back in March 2020, and, therefore, he maintains, he suffered a latent injury and his action for workers’ compensation benefits is not barred by the two-year statute of limitations…” Ms. *9. The court rejects Dillard’s argument

[W]e cannot hold that a genuine issue of material fact exists as to whether his injury was a latent injury such that the latent-injury exception to the two-year limitations period applies. The evidence indicates that, from within a few weeks of his work-related injury to his back in September 2017 until his first surgery in March 2020, Dillard suffered from continual lower back pain, sought a variety of treatments for the pain, and received minimal, intermittent relief. The evidence also indicates that Dillard had two surgeries, after which he received no temporary-total-disability benefits and that Dillard never requested any such benefits. The fact that Dillard continued to work until his March 2020 surgery does not negate the fact that, when he discussed his injury with Dr. Cho in December 2017 and learned that surgery was a recommended treatment, Dillard knew or should have known of the compensable character of his injury. Consequently, Dillard’s workers’ compensation claim became ripe in December 2017, not when he actually missed work after the surgery and Calvary refused to pay him compensation.

Ms. **15-16.

In his concurrence, Judge Moore notes that Dillard’s claim for compensation did not accrue at the earliest until he missed time from work after his March 2020 surgery, Ms. *18, and asserts “[i]t is unfair that his claim for workers’ compensation benefits was extinguished by operation of the statute of limitations before the claim had even matured.” Ms. **18-19.

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