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Sagely v. ABC Rail Products Corporation2/25/2000
la. Civ. App. 1997), which states that an employer will be estopped from relying on the statute of limitations as a defense when the employer or its representatives in their dealings with the employee conduct themselves in such a manner as to mislead the employee into believing he can postpone or delay the filing of his claim until the limitations period has expired. It appears that this argument is raised for the first time on appeal; we will not address it. Andrews v. Merritt Oil Co., 612 So. 2d 409 (Ala. 1992). However, we do note that this argument has no merit, because ABC had informed Sagely on at least three different occasions before the limitations period expired that it did not acknowledge his neck injury as a work-related injury and that it disputed the claim.
Sagely also argues that he was incapacitated after his shoulder surgeries and, therefore, that the limitations period should have been extended to a point at least two additional years beyond the date of his last surgery, on July 30, 1996. This argument is without merit. Section 25-5-80 provides that in case of physical or mental incapacity to perform any act required within the time specified under that Code section, the limitations period shall be extended two additional years from the date the incapacity ceases. This court has interpreted the language of § 25-5-80, which permits an extension of the statutory limitations period in cases of incapacity, as follows:
"We interpret this language to provide for an exemption to the statute of limitations in the case of physical or mental incapacity only when such incapacity prevents the employee from taking action to obtain workmen's compensation benefits `within the time in this section specified.' In other words, such incapacity must exist for such a length of time as will prevent the employee from filing suit to obtain benefits within the [two-year] limitations period of § 25-5-80."
Stewart v. Carter Realty Co., 518 So. 2d 122, 124 (Ala. Civ. App 1987). Sagely returned to work in November 1996, following his surgery on July 30, 1996, and he worked continuously until he resigned in July 1997. The two-year limitations period for the injuries complained of expired on October 17, 1997. Nothing in the record indicates that Sagely was incapacitated to the extent that he could not sue to obtain benefits.
OPINION OF DECEMBER 17, 1999, WITHDRAWN; OPINION SUBSTITUTED; APPLICATION FOR REHEARING OVERRULED AND RULE 39(k) MOTION DENIED; AFFIRMED.
Robertson, P.J., and Monroe, Crawley, and Thompson, JJ., concur.
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