Atkins v. Colonial Baking Co.

• Decision Date: 05 July 1955
• Docket Number: No. 36703,36703
• Parties: Gene Lee ATKINS, Petitioner, v. COLONIAL BAKING COMPANY, Royal Indemnity Company, and State Industrial Commission of the State of Oklahoma, Respondents.
• Court: Oklahoma Supreme Court

Page 450

287 P.2d 450

1955 OK 204

Gene Lee ATKINS, Petitioner, v. COLONIAL BAKING COMPANY, Royal Indemnity Company, and State Industrial Commission of the State of Oklahoma, Respondents.

No. 36703.

Supreme Court of Oklahoma.

July 5, 1955.

Rehearing Denied Sept. 13, 1955.

Syllabus by the Court.

1. Under 85 O.S.1951 § 24, the burden is on the injured employee to establish to the satisfaction of the State Industrial Commission that he was unable to give the statutory written notice, or that the employer has not been prejudiced thereby; and where the State Industrial Commission denies an award for failure to give the statutory notice and there is any evidence reasonably tending to support the order denying the award, the decision of the State Industrial Commission will not be disturbed on review.

2. Record examined, and held, that failure of respondent to file answer within ten days after claimant filed claim did not amount to an admission of the claim.

Original Proceeding Brought by Gene Lee Atkins, Claimant, to Review an Order

of the State Industrial Commission on a Claim Filed against Colonial Baking Company, Employer, and its Insurance Carrier, Royal Indemnity Company, Respondents. Order Sustained.

Priest, Belisle & Fauss, Oklahoma City, for petitioner.

Rhodes, Crowe, Hieronymus & Holloway, Oklahoma City, Mac Q. Williamson, Atty. Gen., for respondents.

JACKSON, Justice.

Gene Lee Atkins filed his first notice of injury and claim for compensation stating that on about May 1, 1954, he sustained an accidental injury arising out of and in the course of his employment with the Colonial Baking Company. The respondents duly raised the issue of failure to give notice within the time and manner provided by 85 O.S.1951 § 24.

Claimant testified that he was employed as a salesman and deliveryman for the Colonial Baking Company and had been so employed for three and one-half years. On May 1, 1954, at approximately 7:30 A.M. in front of Dunn Grocery Store in Yukon, Oklahoma, he attempted to lift two boxes weighing approximately 55 pounds from the delivery truck and he strained himself. He first learned that he had sustained a hernia on June 23, 1954, when he applied for employment with General Foods Corporation at which time he was examined by Dr. H. The only indication of any injury prior to this examination was pain in the region at the time the accident occurred. This pain later subsided. He notified the Colonial Baking Company six days after the examination by the doctor. He fixed this date as June 29th. Prior to this time he had told no one of his injury except his wife whom he told when he reached home on the date the injury occurred. On June 29, he talked to the office manager of the bakery who advised him to see the company doctor. He did this and the doctor advised immediate medical treatment. He talked to the agent for the insurance carrier June 30, 1954, explaining to him the details of the accident and the agent expressed doubt that the claim could be allowed because of failure to give notice. Claimant also saw his counsel on this date and went to a second doctor. On July 12, 1954, he was operated on for a bilateral inguinal hernia and there has been a successful recovery. On cross-examination he stated he may have told the doctor for the employer the injury occurred April 25, 1954. He quit work for the Colonial Baking Company July 3, 1954. Claimant also introduced a report of Dr. G. which is the only medical evidence of the cause of the disability which concludes with the following sentence:

'* * * It is impossible to say or to prove how long these hernias have been present.'

At the conclusion of the hearing the State Industrial Commission entered an order, in part, as follows:

'That on May 1, 1954, the claimant was in the employ of the respondent, engaged in a hazardous occupation, within the meaning of the Workmen's Compensation Law of the State of Oklahoma, and on said date sustained an accidental injury, arising out of and in the course of his employment, resulting in a bilateral inguinal hernia.

'That although the claimant was in the continual employ of the respondent up to July 3, 1954, he did not notify said respondent until June 29, 1954; that claimant made no demand for medical treatment.

'That claimant's No. 3 Report of Injury was filed July 7, 1954; that claimant did not notify employer of injury until June 29, 1954; that claimant never made demand for medical attention; that employer's plea of prejudice is sustained.

'That under the plain wording of #24 (sic) Title 85 O.S.A. this claim should be and is hereby denied.

'It Is Therefore Ordered by the Trial Commissioner that the claimant's claim for compensation herein be and the same is hereby denied.'

The claimant brings this proceeding to review the order denying the award and argues that it was the duty of the State Industrial Commission to excuse the giving of the written notice. On this point claimant cites Jones v. Oliver, 204 Okl. 164, 228 P.2d 173, 174. The syllabus therein is as follows:

'Under the provisions of 85 O.S.1941, § 24 the State Industrial Commission is authorized to excuse the giving of the statutory written notice provided therein; and if there is any competent evidence sustaining the finding of the State Industrial Commission that the employer has not been prejudiced by failure to give the statutory written notice, a finding thereon will not be disturbed on review.'

85 O.S.1951 § 24 provides for statutory written notice and concludes as follows:

'* * * The failure to give such notice, unless excused by the Commission either on the ground that notice for some sufficient reason could not have been given, or on the ground that the insurance carrier or employer, as the case may be has not been prejudiced thereby, shall be a bar to any claim under this Act.'

In Morton v. State Industrial Commission, 181 Okl. 157, 73 P.2d 136, 137, it is stated:

'Petitioner as grounds for the vacation of the order urges that his evidence was sufficient to establish the fact that the employer had actual notice of his injury and thus negatived any presumption of prejudice in the absence of proof by the employer that prejudice had nevertheless resulted. In support of this contention petitioner cites and relies upon the cases of Oklahoma Gas & Electric Co. v. Thomas, 115 Okl. 67, 241 P. 820; Maryland Casualty Co. v. Osborn, 166 Okl. 235, 26 P.2d 934; City of Kingfisher v. Jenkins, 168 Okl. 624, 33 P.2d 1094. Had the commission found that the employer had actual notice of petitioner's accidental injury, then the cited cases would be excellent authority for the contention advanced, but, since the commission found contrary to the petitioner's claim, a different situation is presented. The applicable rule is that stated in Turner v. Earl W. Baker & Co.,...