Armco, Inc. v. Holcomb

• Decision Date: 22 January 1985
• Docket Number: No. 60934,60934
• Citation: 694 P.2d 937
• Parties: ARMCO, INC., Petitioner-Appellant, v. Richard P. HOLCOMB, Respondent-Appellee, and Workers' Compensation Court, Appellee.
• Court: Oklahoma Supreme Court

Page 937

694 P.2d 937

1985 OK 5

ARMCO, INC., Petitioner-Appellant, v. Richard P. HOLCOMB, Respondent-Appellee and Workers' Compensation Court, Appellee.

No. 60934.

Supreme Court of Oklahoma.

Jan. 22, 1985.

Thomas E. Steichen, Rhodes, Hieronymus, Jones, Tucker & Gable, Tulsa, for petitioner-appellant.

John L. Harlan, Sapulpa, for appellees.

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 forms ³ 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 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 regulations ⁴ adopted governing the implementation of the Workers' Compensation Act and that he has secured the payment of compensation ⁵ to his employees and their dependents in accordance with the Workers' Compensation Act. [Emphasis ours.]

Act, the statute of limitations shall be tolled until such claim is filed.

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 Armco, 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 uncontroverted 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.

OPALA, Justice, dissenting.

The court declares a compensation claim, brought more than twenty-two months after injury, to be timely because the applicable one-year limitation period prescribed in 85 O.S.1981 § 43 remained arrested by the employer's noncompliance with § 8 ¹ of the Act. The opinion is rested on the holding that by the third paragraph of § 8 the employer who has knowledge of an injury stands required, in every instance, to advise the worker personally of the right to file a claim. For the reasons to be stated, I am unable to give the paragraph under consideration the sweeping effect that the court attributes to its language.

I THE ANATOMY OF THE WORKER'S CLAIM

The worker's back injury occurred February 5, 1980, his claim was filed December 18, 1981. The employer's answer invoked the statutory time bar of one year. The trial judge's award found that "the statute of limitations has not run in this matter. 85 O.S. Section 8". So far as pertinent here, the three-judge review panel affirmed the award. The record discloses that: (1) the worker informed his foreman of the February 5, 1980 back injury and was sent to a doctor; (2) no one acting for the employer ever advised the worker personally of his right to file a claim; (3) the worker had previously filed a compensation claim for another injury, was represented by counsel, testified at a hearing and received disability benefits; and (4) no proof was offered by either party to show whether the employer did comply with the § 8 notice-posting requirement.

II THE MEANING OF THE THIRD PARAGRAPH IN § 8

At the heart of this controversy is the meaning of the third paragraph in § 8. That paragraph provides:

"In the event an employer having notice of an injury neglects to advise the injured employee of the right to file a claim ..., the statute of limitations shall be tolled until such claim is filed." (emphasis supplied)

The quoted text may not be construed in total isolation from the provisions that precede it in § 8 or from the rest of the Act. When its language is considered, as it must, ² in conjunction with the first paragraph

                of § 8 and with the notice provisions in § 24, 3 it is at once clear that the employer who "neglects to advise" the injured worker is only he who has failed to comply with the posting requirements in § 8, and the phrase "employer having notice" refers to one who was informed of the worker's injury in a manner prescribed in § 24 or by an acceptable equivalent that is approved by the trial tribunal under the standards set forth in § 24A. 4  So viewed, the critical third paragraph to be construed here applies only to the employer who, by failing to post notice, has violated the first paragraph in § 8.  Nay, the third paragraph constitutes nothing more than a legislatively-authorized sanction imposable for noncompliance with the statute's posting requirement.   It is the offending employer who, upon receiving from the worker the § 24 notice or its equivalent, must then personally advise the worker of his rights.  Were it not for the employer's violation of the command to post notice, these rights would have been communicated to the worker via posting. 5  In sum, posting clearly means advising. 6  An employer who is in compliance with the § 8 posting requirement need not give personal advice to an injured worker who gives him a § 24 notice or its acceptable equivalent.  Only a noncomplying employer must suffer the tolling sanction that is imposable by the third paragraph of § 8, when he fails, on receiving the § 24 notice or its legal counterpart, to advise the worker of his right to bring a claim.  The view expressed by me in this case is in accord with the pronouncements made by the Court of Appeals, Div. 3, in Bruce v. T.G. & Y. Stores, Company, Okl.App., 672 P.2d 329 [1983] 7 and by Div. 2 in Harris v. Osborne Elec. Co., Okl.App., 654 P.2d 1086, 1088 [1982]
                

III

THE § 8

SANCTION DOES NOT APPLY TO THIS CLAIM

The burden to demonstrate the employer's noncompliance with § 8 rests upon the claimant who seeks to avoid the § 43 time There is another reason why, absent a specific finding of prejudice from want of advice, I cannot favor affording to this worker the benefit of the tolling sanction. The record is clear that his past experience as a claimant had made him well informed of an injured worker's right timely to proceed in compensation for an award of statutory benefits. Even if the tolling sanction were indeed applicable to this claim, personal advice to this worker was not necessary in order to afford him protection...