Apple v. State Ins. Fund

• Decision Date: 10 June 1975
• Docket Number: No. 47601,47601
• Citation: 540 P.2d 545
• Parties: Herman APPLE, Petitioner, v. STATE INSURANCE FUND et al., Respondents.
• Court: Oklahoma Supreme Court

Page 545

540 P.2d 545

Herman APPLE, Petitioner, v. STATE INSURANCE FUND et al., Respondents.

No. 47601.

Supreme Court of Oklahoma.

June 10, 1975.

Rehearing Denied Sept. 30, 1975.

Syllabus by the Court

Claim for compensation filed more than one year after injury, hospitalization, treatment, diagnosis of injury as strain, and respondent's physician's release of claimant only for return to light work with advice healing would require a year, and claimant thereafter executed Form 7 settlement for temporary total disability only, which respondents neither filed nor presented for State Industrial Court approval, was not barred by statute of limitations, requirements of 85 O.S.1971 § 43 having been waived by respondents' failure to secure approval of settlement during period of limitations.

Original proceeding to review trial judge's order, affirmed on en banc appeal, denying claim for compensation as barred by 85 O.S.1971 § 43, because not filed within one year after injury; A. R. Swank, Jr., Trial Judge.

Order vacated and cause remanded for further proceedings.

Tim J. Crowley, Enid, for petitioner.

Sam Hill, Fred Nicholas, Jr., Oklahoma City, for respondents.

BARNES, Justice:

A trial judge denied petitioner's claim for compensation, because barred by applicable statute of limitations, 85 O.S.1971 § 43, having been filed more than one year after last medical treatment, or last compensation had been paid. This order was affirmed by State Industrial Court en banc. Petitioner, hereafter claimant, seeks review and vacation of this order upon grounds the statute, supra, had been tolled or waived.

Claimant was injured November 8, 1971, and hospitalized by respondents' physician (Dr. J. A. Mc.) for medical management and conservative treatment. Claimant was discharged November 28, 1971, with final diagnosis of acute back strain, instructions to remain at home with prescribed course of medication and return for follow-up after six days. The physician advised claimant there was no evidence of bone injury, but was discharged with final diagnosis of traumatic, acute back strain, and possibly a year would be required for the injury to heal.

Claimant was released for return to work on December 3, 1971, with limitation against heavy lifting, and resumed regular work, performing lighter duties. On December 8, 1971, claimant executed Form 7, Stipulation and Receipt, acknowledging extent of disability and receipt of ($230.00) compensation for (three weeks and 5 days) temporary total disability until December 6, 1971. Regular performance of duties continued until May 11, 1973, when he terminated employment. Claimant testified he suffered constant pain and required medication during employment, although no further medical treatment had been requested.

Because of his condition, claimant went to his family doctor (Dr. C.) on May 2, 1973, for examination. This physician reported examination disclosed lumbar spine deformity, with associated sclerosis and anterior margianl changes, apparently representing an old, healed bone injury. The injury was a mild crack across the vertebra, which had been aggravated by lack of treatment, and had resulted in total disability.

Claim for compensation was filed July 25, 1973. The claim alleged injury November 8, 1971, which was not disclosed by medical examination and remained a latent condition until discovered May 3, 1973.

Respondent admitted accidental injury, but alleged medical treatment was furnished and compensation paid claimant for lost time; further, claimant had failed to seek further medical treatment or to file claim for compensation within one year, and the claim was barred by limitations. Attached to respondent's answer filed August 1, 1973, was the Form 7 which claimant had executed December 8, 1971. Upon hearing, respondents also introduced into evidence the Physician's Final Report (Form 19) dated December 7, 1971, which had been received and paid by respondent insurer. The Form 7 had not been filed with, or approved by, State Industrial Court as provided by 85 O.S.1971 § 26.

Claimant presents three arguments to support the contention that denial of his claim as barred by statute of limitations is contrary to law and unsupported by evidence. Part of the argument arises from the claim that respondent's physician incorrectly diagnosed claimant's condition and, in view of claimant's reliance thereon, a latent condition went undiscovered. Thus these circumstances justify application of the 'old' rule, typified by Brown & Root v. Dunkelberger, 196 Okl. 116, 162 P.2d 1018, holding the statute does not begin to run against claim for latent injury until discovered.

Respondents defend correctness of this order by reliance upon decisions which strictly apply § 43, supra. These cases declare a workman who is aware, or should be aware, of some effect produced by accidental injury must make claim for compensation within one year. Stillwater Floral Co. v. Murray, Okl., 380 P.2d 694, and Southwest Factories, Inc. v. Eaton, Okl., 453 P.2d 1021. and in Murray, supra, we recognized principles stated in the Dunkelberger case expressly were overruled in Tulsa Hotel v. Sparks, 200 Okl. 636, 198 P.2d 652.

Neither position asserted is entirely definitive of the basic issue, which arises from the fact of execution of the Form 7, and succeeding events relating to failure to file claim. The statute, supra, unequivocally bars claim for compensation not filed within one year, unless waived or tolled by the employer, or someone in his behalf. Southwest Factories, Inc. v. Eaton, supra. Acts or omissions which toll or waive the statute have been considered numerous times. The issue arises principally from situations which present questions whether salary paid was in lieu of compensation, or whether medical treatment was provided voluntarily by an employer. See Swafford v. Schoeb, Okl., 359 P.2d 584; and Cupit v. Dancu Chemical Company, Okl., 316 P.2d 593.

An employee's right to secure, and an employer's obligation to pay, compensation are vested and fixed by law at the time of injury in covered employment. Washabaugh v. Bartlett Collins Glass Co., 177 Okl. 159, 57 P.2d 1162. Anything filed with State Industrial Court which challenges the court's attention and causes it to act puts into motion the process to secure compensation. Pine v. State Industrial Comm., 148 Okl. 200, 298 P. 276, 78 ALR 1287. Failure to file the employer's first report of...