Ashlock v. Liberty Glass Co.

1987 OK CIV APP 19, 739 P.2d 1025, 1987 Okla. Civ. App. LEXIS 139

Opinions

BACON, Judge.

Worker filed a claim for lung damage two and one-half years after his last hazardous exposure with Employer. Worker left Employer’s employment on March 31, 1983, and filed his claim on January 6, 1986.

When the case came on for trial, the trial judge indicated that he felt that the claim was barred by the two-year statute of limitations as a matter of law. 85 O.S.Supp. 1986 § 43(A). That is, the judge felt that any claim filed after two years is now barred as a matter of law.

Worker then made an offer of proof which consisted of a showing that he first became aware of the fact that his lung problem was job-related when he was told such was the case by a doctor on December 20, 1985. That date would be some two weeks before he filed his claim in January 1986.

We hold that under 85 O.S.Supp.1986 § 43(A), effective November 1, 1985, the statute of limitations is not a bar as a matter of law in all cases. To hold otherwise would be to rule that under no circumstances can the section 43 statute of limitations be tolled or waived. Smedley v. State Industrial Court, 562 P.2d 847 (Okla.1977); Munsingwear, Inc. v. Tullis, 557 P.2d 899 (Okla.1976); Buntin v. Sheffield Steel, 707 P.2d 557 (Okla.Ct.App.1985).

Under the Munsingwear and Buntin cases, the statute of limitations does not commence until the worker is “aware” of the injury and that the injury is job-related. In the present case, Worker offered to prove that he was not aware the injury was job-related until two weeks prior to filing his claim. Under these circumstances, we have no choice but to reverse and remand the case for trial.

Reversed and remanded.

REIF, J., concurs. MEANS, P.J., concurs specially.