Eaton v. Herman Van Noy Drilling, 54557

• Decision Date: 15 December 1981
• Docket Number: No. 54557,54557
• Citation: 637 P.2d 1249
• Parties: Donovan I. EATON, Appellant, v. HERMAN VAN NOY DRILLING, Appellee.
• Court: Oklahoma Supreme Court

Page 1249

637 P.2d 1249

1981 OK 152

Donovan I. EATON, Appellant, v. HERMAN VAN NOY DRILLING, Appellee.

No. 54557.

Supreme Court of Oklahoma.

Dec. 15, 1981.

REVERSED AND REMANDED.

Buck, Merritt & Hoyt, Oklahoma City, for appellant.

Jim W. Lee, Oklahoma City, for appellee.

LAVENDER, Justice:

This is an appeal from an order of the Workers' Compensation Court sitting en banc determining that Donovan I. Eaton, as claimant, was barred from prosecuting a claim against the respondent, Herman Van Noy Drilling Company. The order of the Workers' Compensation Court sitting en banc found that the claimant had suffered the injury complained of in October or November of 1977, and his claim for compensation was not filed with the Workers' Compensation Court until March 5, 1979. That court therefore found and determined the claim to be barred by the running of the statute of limitations and thus the finding of the trial judge was reversed and the claim denied. It is from this ruling that claimant appeals.

Claimant was employed by respondent as a water well driller for a period of eight years prior to his termination in February or March, 1979. His work involved operating a drilling rig, casing and cementing wells, and laying surface pipe. The surface pipe claimant was required to lift weighed between 200 and 300 pounds per length. In setting this pipe, claimant would prop the pipe on his shoulder and stand it up, then carry it to the well hole where he slid the pipe into the hole. Such weight and exertion put considerable strain on claimant's upper arm and shoulder, and resulted in minor pain and occasional discomfort in his shoulder. The pain characteristically subsided and went away in a day or two. Claimant made no report of his recurring pain and discomfort and lost no work as a result thereof until the 10th day of August, 1978, upon which date he experienced a burning and crushing sensation in his shoulder while he was engaged in standing the pipe on his shoulder. Having a doctor's appointment on that day for an unrelated injury, he asked the doctor to examine and treat his shoulder injury and took the rest of the day off from work. The shoulder got progressively worse and claimant was terminated upon his reporting to respondent that he could no longer do the work because of his shoulder.

A Form 3 was filed March 6, 1979, which claimed accidental injury occurred August 10, 1978. The trial court found the claimant was injured on August 10, 1978; that the statute of limitations did not bar claimant's recovery; that respondent had knowledge of the facts surrounding the injury and was not prejudiced by claimant's failure to give respondent the thirty day written notice as provided by statute. Permanent partial disability was awarded, temporary total was denied, and the trial judge found that the claimant was in need of additional medical treatment.

Claimant appealed this decision of the trial judge insofar as the order failed to award sums for past temporary total disability benefits. Respondent and insurance carrier appealed to the court en banc alleging that the trial judge's order was not supported by competent medical evidence, that the same was contrary to the evidence, and alleging the bar of the statute of limitations.

Section 43 of the Workers' Compensation Act (85 O.S.Supp.1977) provides, insofar as it is pertinent to the issues in this case:

"The right to claim compensation under the Worker's Compensation Act shall be forever barred unless, within one (1) year after the injury or death, a claim for compensation thereunder is filed with the Administrator * * *."

Statute of limitations issue is ordinarily a mixed question of law and fact. We held in Munsingwear, Inc. v. Tullis, Okl., 557 P.2d 899 (902) (1976): "If the issue under § 43, supra, depends upon a question of fact, and the trial tribunal has heard evidence thereon, its findings on that fact issue will not be disturbed on review when based on testimony reasonably tending to establish the factual determination made. As a mixed question of law and fact, and even though the factual determination will not be independently reviewed in this court if reasonably supported by the evidence,...