
    Ex parte Jack YOUNGBLOOD. (Re L. W. LIMBAUGH MINING & CONSTRUCTION COMPANY v. Jack YOUNGBLOOD).
    80-883.
    Supreme Court of Alabama.
    April 2, 1982.
    William E. Mitch of Cooper, Mitch & Crawford, Birmingham, for petitioner.
    John W. Clark, Jr. and William T. Mills, II, for Porterfield, Scholl, Bainbridge, Mims, Clark & Harper, Birmingham, for respondent.
   BEATTY, Justice.

We granted certiorari for the second time to determine whether the Court of Civil Appeals misapplied our holding upon remand of this workmen’s compensation case. L. W. Limbaugh Mining & Construction Co. v. Youngblood, Ala.Civ.App., 413 So.2d 1151 (1981). The facts are found in Ex parte Jack Youngblood, Ala., 413 So.2d 1146 (1981).

This case concerns an innocent misrepresentation made by a physician who was retained by the employer to treat the employee. The physician’s statements were responsible for the employee’s failure to file a timely claim. We held that the question of whether the physician was a representative of the employer is one of fact. On remand, however, the Court of Civil Appeals reaffirmed its reversal of the trial court, holding as a matter of law that the physician was not a representative of the employer because the employer exercised no “control” over the physician’s medical treatment of the employee. This observation by the Court of Civil Appeals is irrelevant since the record reveals that the physician was selected by the employer to treat the employee and to make periodic reports to the employer’s insurer regarding the employee’s medical condition. These facts alone are sufficient to support the trial court’s conclusion that the physician was a representative of the employer. The Court of Civil Appeals erred, therefore, in setting aside the trial court’s finding of fact which was clearly supported by the evidence. Rule 52, ARCP.

The judgment of the Court of Civil Appeals is due to be, and is, reversed, and this cause is remanded to that Court for an order not inconsistent with this opinion.

REVERSED AND REMANDED.

MADDOX, FAULKNER, JONES, AL-MON, SHORES, EMBRY and ADAMS, JJ., concur.

TORBERT, C. J., dissents with opinion.

TORBERT, Chief Justice

(dissenting).

I respectfully dissent. At this time I believe it is necessary to reemphasize my dissent in Ex parte Youngblood, 413 So.2d 1146 (Ala.1981). It is apparent that the learned trial judge erred when he found that the physician’s statements lulled Mr. Youngblood into delaying the filing of his lawsuit. Mr. Youngblood, in fact, testified that he knew that he would have some permanent disability in his hip and that Dr. Meyer never gave him advice as to whether he should or should not proceed in filing his lawsuit. Yet, Mr. Youngblood, knowing that he would have permanent problems, still failed to consult an attorney to file a claim.

The majority of this Court held that the physician’s statements did mislead Mr. Youngblood and today holds that Dr. Meyer was a representative of Limbaugh. I believe, as correctly stated by the Court of Civil Appeals, there is no evidence in the record to show that Dr. Meyer was under the control or direction of Limbaugh. He was clearly not a company doctor and the medical opinion expressed by him to Mr. Youngblood was by no means given in a representative capacity for Limbaugh. As stated by the Court of Civil Appeals, “The authority of the statute giving the employer the right to select the physician is not an appointment of the physician as the legal representative of the employer.” It is for these reasons that I would affirm the decision of the Court of Civil Appeals.  