Dye v. Ed Johnston Grain Co., 37763

• Decision Date: 24 December 1957
• Docket Number: No. 37763,37763
• Citation: 319 P.2d 1004
• Parties: James Lee DYE, Petitioner, v. ED JOHNSTON GRAIN COMPANY and Lumbermen's Mutual Casualty Company and the State Industrial Commission, Respondents.
• Court: Oklahoma Supreme Court

Page 1004

319 P.2d 1004

1957 OK 329

James Lee DYE, Petitioner, v. ED JOHNSTON GRAIN COMPANY and Lumbermen's Mutual Casualty

Company and the State Industrial Commission, Respondents.

No. 37763.

Supreme Court of Oklahoma.

Dec. 24, 1957.

Syllabus by the Court.

Under 85 O.S.1951, sec. 43, where an employer has neither paid compensation nor wages in lieu of compensation, nor furnished medical care or attention for an alleged injury within one year next preceding the filing of a claim therefor, any claim thereafter filed with the Industrial Commission is barred where the employer or some one in his behalf has done nothing to toll or waive the statute.

Original proceeding brought by James Lee Dye, claimant, to review an order of the State Industrial Commission denying an award in a proceeding against Ed Johnston Grain Company and its insurance carrier, Lumbermen's Mutual Casualty Company. Order sustained.

Thomas A. Landrith, Jr., Richard K. McGee, Tulsa, for petitioner.

Rucker, Tabor & Cox, Dennis J. Downing, Tulsa, Mac Q. Williamson, Atty. Gen., for respondents.

DAVISON, Justice.

On July 31, 1956 James Lee Dye, hereinafter called claimant, filed his first notice of injury and claim for compensation stating that on June 9, 1955 he sustained an accidental injury arising out of and in the course of his employment with Ed Johnston Grain Company. On the 18th day of March 1957, the State Industrial Commission entered an order denying an award, the order being substantially as follows:

'Now, on this 18th day of March, 1957, the State Industrial Commission being regularly in session, the above entitled cause comes on for consideration pursuant to hearing at Tulsa, Oklahoma, on February 12, 1957, claimant appearing in person and by R. K. McGee, attorney, and the respondent and insurance carrier appearing by Dennis J. Downing, attorney, before Judge Jess B. Harper, who, being fully advised in the premises, finds:

'That claimant's claim for compensation filed herein on July 31, 1956, against the above named respondent should be denied for the reason that this Commission has no jurisdiction of said cause since the Statute of Limitations had run since the date of injury and since the date of last medical treatment furnished, prior to the date claimant filed his claim.

'It is therefore ordered that claimant's claim for compensation filed herein should be and the same is hereby denied.'

This proceeding is brought by the claimant against the employer and the Lumbermen's Mutual Casualty Company, insurance carrier, to review the order denying the award.

Claimant testified that on the 9th day of June 1955, he was operator for the granary. He was unloading a pickup truck and the truck rolled off the ramp and pinned him against the building crushing his chest and lower abdomen and injuring other parts of his body. He was treated from June 9th to June 27, 1955, by Dr. GH. He never received any other treatment from any other doctor. He returned to work in about thirty days but quit and went to work at a filling station where he worked for approximately three months. He then obtained employment with a refinery in Blackwell, Oklahoma. Although he saw three other doctors after being treated by Dr. GH he was not examined or treated for the injury received June 9, 1955, until after the filing of his claim on July 31, 1956.

One of the doctors he went to see examined him for his employment with the refinery. He went to see another doctor about an injury he sustained while working for the refinery.

After the conclusion of the testimony and before the order denying the award was made the State Industrial Commission entered an order dated February 15, 1957, directing claimant to be examined by a doctor chosen by the State Industrial Commission, the expenses thereof to be paid by respondents.

Claimant first argues that respondents cannot present the issue of the Statute of Limitations because they failed to file their answer raising the issue within ten days as required by the rules of the State Industrial Commission. Respondent first filed a general denial, then after more than ten days from the filing of the claim filed an answer raising the issue of the statute of limitations. The rules of the State Industrial Commission are discussed in Mead Bros., Inc., v. State Industrial Commission, 144 Okl. 279, 291 P. 571, and Wasson v. Tulsa Dairy Supplies, Okl., 315 P.2d 773, in which it is stated that the State Industrial Commission can relax the rules when it sees fit to do so. The respondents were not precluded from raising the issue of the statute of limitations by their first answer and it was properly raised in the subsequent hearing.

Claimant next argues that the question of the statute of limitations was finally determined by the order directing the claimant to be examined at the expense of respondents.

Claimant cites Consolidated Motor Freight Terminal v....