Armco, Inc. v. Holcomb

1985 OK 5, 694 P.2d 937, 1985 Okla. LEXIS 101

• Court: Supreme Court of Oklahoma
• Decided: January 22, 1985
• Docket: 60934
• Status: Published

Opinions

ALMA WILSON, Justice.

The claimant, Richard Paul Holcomb, sustained an accidental back injury while lifting metal posts during the course and scope of his employment on February 5, 1980. Claimant notified his employer, Armco, Inc., of the injury and received immediate medical attention. One year and ten months after the date of injury, Claimant filed a workers’ compensation claim for permanent partial disability benefits. In its answer, Employer affirmatively “allege[d] that the claim is barred by the statute of limitations as provided in Title 85 O.S. § 43”.¹ At the commencement of proceedings before the Workers’ Compensation Court, Claimant raised the issue of notice and asserted 85 O.S.1981 § 8 “as to the statute of limitations”. The provisions of 85 O.S.1981 § 8 prescribe the following requirements:

Every employer subject to the provisions of the Workers’ Compensation Act shall post and maintain in one or more conspicuous places a notice to its employees covering the rights and obligations of employees under the Workers’ Compensation Act. Such notice shall be prepared by the Administrator and shall be supplied to employers at no cost.²

A supply of forms³ as provided by the office of the Administrator shall be made available to employees by employers subject to the Workers’ Compensation Act at no cost to either the employer or employee.

In the event an employer having notice of an injury neglects to advise the injured employee of the right to file a claim under the Workers’ Compensation Act, the statute of limitations shall be tolled until such claim is filed.

Every employer, subject to the provisions of the Workers’ Compensation Act, shall also post and maintain in one or more conspicuous places in or about his places of business notices in a form prescribed by the Administrator stating the fact that he has complied with the rules and regulations⁴ adopted governing the implementation of the Workers’ Compensation Act and that he has secured the payment of compensation⁵ to his employees and their dependents in accordance with the Workers’ Compensation Act. [Emphasis ours.]

Citing 85 O.S.1981 § 8, the trial judge of the Workers’ Compensation Court determined that the statute of limitations had not run in this matter and awarded Claimant Holcomb benefits.

Employer and Claimant filed separate requests for review. A three judge panel of the Workers’ Compensation Court corrected a typographical error as requested by Claimant and affirmed the corrected order. Employer instituted proceedings in this Court for review of the order of the Workers’ Compensation Court. On assignment to the Court of Appeals, Division No. 4, the order was affirmed. We now review by certiorari the opinion of the Court of Appeals.

The burden of proof in workers’ compensation cases rests upon the claimant seeking benefits to establish all the essential elements of his claim,⁶ and upon the employer or insurance carrier to establish facts which bar the claimant’s right to recovery.⁷

In the present case, Employer invoked the statute of limitations in bar of Claimant’s right to recovery. In support thereof, the record establishes on its face that Claimant filed his claim beyond the statutory period of time prescribed by 85 O.S.1981 § 43. The burden of proof therefore devolved upon Claimant to adduce essential facts which would operate to arrest, suspend, toll or waive the statute of limitations,⁸ pursuant to 85 O.S. § 8, to establish his right to recovery beyond the prescribed period.

Claimant, the sole witness at trial, submitted testimony that Employer had notice of his injury, but failed to advise him of the right to file a claim under the Workers’ Compensation Act:

Q. (By Mr. Harlan) Now, Mr. Holcomb, prior to the time that you filed that claim in the Workers’ Compensation Court, did anyone on behalf of Arm-co, or any adjustor — did anyone associated with Armco ever advise you of your right to file a claim in the Workers’ Compensation Court prior to filing this claim?

A. No.

Claimant’s testimony remained uncontro-verted by either opposing testimony or cross-examination.

In the present case, whether the statute of limitations has been tolled or waived is obviously a question of fact. Where it is contended that the statute of limitations has been tolled or waived and that determination is dependent upon a question of fact, the finding of the Workers’ Compensation Court will not be disturbed on appeal when it is based upon testimony tending to show such fact.⁹

We hold the Workers’ Compensation Court’s finding that the statute of limitations had not run in this matter by virtue of the tolling provision of 85 O.S.1981 § 8, is supported by competent evidence, as is the finding of job related accidental injury and notice thereof.

The opinion of the Court of Appeals is vacated and the order of the Workers’ Compensation Court is AFFIRMED.

SIMMS, C.J., DOOLIN, V.C.J., and HODGES, BARNES and KAUGER, JJ„ concur. LAVENDER and HARGRAVE, JJ., concur in result. OPALA, J., dissents.

1 . The statutory time limitation governing the right to claim benefits under the Workers’ Compensation Act absent proof of facts which operate to arrest, suspend, toll or waive the limitation is set forth at 85 O.S.1981 § 43, which in pertinent part states: "The right to claim compensation under the Workers’ Compensation Act shall be forever barred unless, within one (1) year after the injury or death, a claim for compensation thereunder is filed with the Administrator. Provided, however, claims may be filed at any time within one (1) year from the date of last payment of any compensation or remuneration paid in lieu of compensation or within one (1) year from last authorized medical treatment.”

2 . The applicable notice prepared by the Administrator and supplied to employers at no cost states:

TO THE EMPLOYEE

IMPORTANT THINGS TO DO IN CASE OF INJURY

In case of accidental injury or occupational disease, however slight, the employee should IMMEDIATELY notify this employer. If this employer be a partnership then such notice shall be given to any one of the partners, and if this employer be a corporation, then such notice shall be given to any agent or officer thereof upon whom legal process may be served. In either event, whether this employer is a partner-tive or corporation, then such notice shall be given to any agent in charge of business in the place where the injury occurred. IN ALL CASES NOTICE OF INJURY MUST BE GIVEN WITHIN THIRTY DA YS.

In case of accidental injury or occupational disease, you should IMMEDIATELY file your claim for compensation with the Court. The employer is required to furnish the necessary blanks. Use Form 3 for accidental injury and Form 3-b for occupational disease.

Claims for accidental injury not filed with the Court within one year from the date of injury are forever barred. Claims for occupational disease not filed with the Court within eighteen (18) months of either the last hazardous exposure or the date the disease first becomes manifest, whichever last occurs, are forever barred. PROVIDED HOWEVER, claims may be filed at any time within one year from the date of last payment of any compensation or remuneration paid in lieu of compensation or within one year from the date of the last medical treatment provided by the employer.

3 .Forms provided at no cost by the office of the Administrator, required to be furnished by the employer to his employee, for use by employee to implement the right to file a claim under the Workers' Compensation Act include Form 3, the "Employee's First Notice of Accidental Injury and Claim for Compensation". See, 85 O.S.1981 Supp. Ch. 4, App.R. 11.

4 . Rules and Regulations adopted by the Workers’ Compensation Court to govern the implementation of the Workers’ Compensation Act under the authority of 85 O.S.1981 § 77, are found at 85 O.S.1981 Supp. Ch. 4, App. R. 1, et seq.

5 . An employer is required to secure the payment of compensation to his employees in one of the ways specified in 85 O.S.1981 § 61.

6 . Jake's Casing Crews, Inc. v. Grant, 451 P.2d 700 (Okl.1969); Mobley v. Brown, 151 Okl. 167, 2 P.2d 1034 (1931).

7 . Wick v. Gunn, 66 Okl. 316, 169 P. 1087 (1917).

8 . Purdy v. Flint Steel Corporation, 535 P.2d 277 (Okl.1975).

9 . Cupit v. Dancu Chemical Co., 316 P.2d 593 (Okl.1957).