Owens v. FEM Electric Association, Inc.

ZINTER, Justice

(concurring).

[¶ 26.] I concur because Owens was not confused by the June 25, 1999 notice indicating that the insurance company had “paid all benefits to which [Owens was] entitled .. .from the October 16, 1998, injury.” He was obviously not confused because in his “first report of injury” dated May 26, 1999 (relating to the May 5, 1999 incident), he specifically indicated that his doctors had told him that the May 5, 1999 incident was possibly related to his October 1998 motor vehicle accident. Moreover, by May 26, 1999, Owens had also consulted with an orthopedist and a rheu-matologist. Owens now concedes that “[b]oth of those doctors gave [him] the impression it was possible that the condition in his back ... might be related to the October, 1998 truck accident.” Owens had to have understood this to be the case because, according to Owens’ brief, Dr. Rak, a neurosurgeon, saw Owens on June 7, 1999, diagnosed a herniated disc, and stated that his “ ‘problem started in October, 1998’ with the truck accident.” Finally, were there any doubt about this issue, Owens’ deposition clearly confirmed that prior to the June 25, 1999 letter, he understood that his back and leg pain were related to the October 1998 truck accident. He testified:

Counsel: Now on May 5th when you crumpled to the floor, you suspected that that was caused by the October 18th, 1998 event, correct?
Owens: Yes.
Counsel: Because you called your employer right away and told them, didn’t you?
Owens: Yes.
Counsel: And you told them you thought this was caused by the motor vehicle accident?
Owens: Yes.

[¶ 27.] Thus, considering Owens’ own admissions, he cannot now claim that the June 25, 1999 letter from the insurer did not reasonably communicate a denial of coverage for the back injuries. Because Owens also failed to demonstrate any change of condition after the May 5, 1999 incident, the statute of limitations barred his most recent claim.

[¶ 28.] KONENKAMP, Justice, joins this writing.