Pine v. State Industrial Commission

• Decision Date: 21 April 1931
• Docket Number: 21858.
• Parties: PINE v. STATE INDUSTRIAL COMMISSION et al. [*]
• Court: Oklahoma Supreme Court

298 P. 276

148 Okla. 200, 1931 OK 158

PINE v. STATE INDUSTRIAL COMMISSION et al. ^[*]

No. 21858.

Supreme Court of Oklahoma

April 21, 1931

Syllabus by the Court.

Provision limiting time for filing compensation claim to one year is limitation on remedy, not upon right itself (Comp. St. 1921 § 7301).

The provision of section 7301, C. O. S. 1921, that the right to claim compensation under the Workmen's Compensation Act shall be forever barred, unless, within one year after the injury, a claim for compensation thereunder shall be filed with the State Industrial Commission, is a limitation on the remedy and not upon the right itself. Atlas Coal Co. v Corrigan (Okl. Sup.) 296 P. 963, not yet reported [in State report].

Original action by W. B. Pine to review an order of the State Industrial Commission awarding compensation to R. A Mitchell.

Award affirmed.

Hiatt & Hannigan, of Okmulgee, for petitioner.

Sid White, of Oklahoma City, for respondents.

RILEY J.

On March 11, 1929, R. A. Mitchell, while engaged in hazardous employment of W. B. Pine, received an accidental injury to his head. His pay at the time was $4 per day. The employer furnished medical attention. The workman returned to labor within five days and continued in his employment until April 2, 1929. From April 2, 1929, to September 1, 1929, the employer paid the workman $16 per week compensation. Beginning anew September 1, 1929, and ending September 30, 1930, the workman labored for the employer as a pumper and received $75 per month. On May 30, 1930, the workman was transferred to a warehouse in Okmulgee and was put to cutting weeds. He quit his employment. Claim for compensation was filed May 31, 1930. On September 11, 1930, the State Industrial Commission entered the order, now reviewed, wherein it is recited: That it is admitted by the respondent that R. A. Mitchell sustained an accidental injury arising out of and in the course of his employment with respondent on March 11, 1921; that the employment was hazardous; that claimant was receiving $4 per day for his labor. That respondent paid claimant compensation (in the amount to which he is entitled) from date of injury until September 1, 1929, and that thereafter, until shortly before the 31st day of May, 1930, respondent paid claimant, in lieu of compensation, the sum of $75 per month; that respondent challenges the jurisdiction of the commission, but that respondent recognized liability to claimant by paying him compensation until September 1, 1929, and by paying wages in lieu of compensation until shortly before the filing of the claim, and by assuring claimant that there was no necessity to file claim; that respondent's liability would be recognized. the award was at the rate of $15.39, from May 25, 1930, the date of last payment, in lieu of compensation, to date of the award, in the sum of $235.98, and continuing at said rate until further order, and for medical treatment furnished by Dr. Cochran.

The employer on review contends: "The Industrial Commission had no jurisdiction over the subject matter for the reason that the claim for compensation was not filed within one year after injury."

Section 7301, C. O. S. 1921, provides: "The right to claim compensation under this Act shall be forever barred unless within one year after the injury, a claim for compensation thereunder shall be filed with the Commission."

It is urged that section 7301, supra, is not a mere statute of limitation affecting the remedy, but is a statute defining a right and fixing jurisdiction of the commission; that the Workman's Compensation Law is a statutory creation, unknown to the common law (Fursman Coal Co. v. St. Indus. Comm. [1925] 105 Okl. 261, 232 P. 802); that the power, authority, and jurisdiction thereunder is purely statutory and limited (Tazewell Coal Co. v. Indus. Com., 287 Ill. 465, 123 N.E. 28). That limitation upon the right conferred is the provision, above set out, as to time in which the benefits may be secured. It is contended that section 7301, supra, is jurisdictional and mandatory. McClenahan v. Okla. Ry. Co. (1928) 131 Okl. 73, 267 P. 657, citing: Haiselden v. Indus. Board of Ill., 275 Ill. 114, 113 N.E. 877; Rubin v. Fisher Body Corp., 205 Mich. 605, 172 N.W. 534; Good v. City of Omaha, 102 Neb. 654, 168 N.W. 639, each case holding that filing of a claim within time provided by statute is jurisdictional.

Steffens Ice Cream Co. v. Jarvis (1928) 132 Okl. 300, 270 P. 1103, is sought to be distinguished in that it is said the rule therein announced that no particular form of pleading is required to give the commission jurisdiction is sound, but that the obiter dictum employed, to the effect that an employee who receives all the law allows is not compelled to file a claim in order to give the commission jurisdiction, is unsound for that the filing of a claim, in some form or other in the specified time, is necessary to confer jurisdiction, and without the filing of such a claim, in such time, jurisdiction cannot be conferred by estoppel, waiver, conduct, or consent, either expressed or implied; citing Wilson Drilling Co. v. Beyer (1929) 138 Okl. 248, 280 P. 846, 849, wherein it was held: "Under section 7301, C. O. S. 1921, the right of an injured workman to claim compensation is limited to one year after the injury."

The reason for the rule urged upon us is said to be expressed in The Harrisburg (1886) 119 U.S. 199, 7 S.Ct. 140, 147, 30 L.Ed. 358, as follows: "The statutes create a new legal liability, with the right to a suit for its enforcement, provided the suit is brought within 12 months, and not otherwise. The time within which the suit must be brought operates as a limitation of the liability itself as created, and not of the remedy alone. It is a condition attached to the right to sue at all. *** Time has been made of the essence of the right, and the right is lost if the time is disregarded. The liability and the remedy are created by the same statutes, and the limitations of the remedy are therefore to be treated as limitations of the right."

Such rule as adopted in Vermont is urged. Petraska v. Natl. Acme Co., 95 Vt. 76, 113 A. 536, wherein it was held the six months period allowed for filing the claim was jurisdictional, and that the statute could not be tolled by admissions of liability and it could not be waived by payment of medical expenses, but that the commission's jurisdiction was fixed by law, not to be enlarged, diminished, or destroyed by express consent or waived by act of estoppel.

The Oregon rule is urged, Lough v. St. Industrial Acc. Com., 104 Or. 313, 207 P. 354, wherein it is held that the Workmen's Compensation Law makes provision for the workman unknown to the common law, and that the workman "must accept it in the manner, at the time, and on the terms it is made," and that the limitation of three months for filing claim "is one of the essential ingredients of the contract or offer, so that, the statute, having created the right of recovery, does not merely limit the remedy, but operates as a limitation of the liability itself."

The New York case of Twonko v. Rome Brass & Copper Co., 224 N.Y. 263, 120 N.E. 638, is relied upon, wherein that court held the one-year statute for filing claim jurisdictional.

So also is the rule in Connecticut cited in Simmons v. Holcomb, 98 Conn. 770, 120 A. 510, holding the one-year statute for filing claim, a condition attached to the right of action, limiting liability and not merely the remedy, requiring strict compliance.

The Nebraska rule is furnished in Good v. City of Omaha, 102 Neb. 654, 168 N.W. 639, cited in the McClenahan Case in Oklahoma, supra, and Duhrkopf v. Bennett, 108 Neb. 142, 187 N.W. 813, to the effect that: "Where a right has been created by statute which did not exist at the common law the Legislature may impose restrictions thereon, and the conditions so imposed qualify and are an integral part of the act and must be fully complied with in the manner therein prescribed."

The Georgia rule is cited, Bussey v. Bishop (1929) 169 Ga. 251, 150 S.E. 78, 67 A. L. R. 287, holding: "The Workmen's Compensation Act of this state (Acts 1920, p. 167, as amended) creates a new right of action, one not existing at common law, of which the requirement that actions for the enforcement thereof shall be filed with the Industrial Commission within one year from the date of the accident is an essential ingredient, and the right ceases and terminates where the claim is not so filed." Also U.S. Cas. Co. v. Smith, 162 Ga. 130, 133 S.E. 851.

The Michigan rule is stated in Dane v. Mich. United Traction Co., 200 Mich. 612, 166 N.W. 1017, and in Kalucki v Am. Car & Foundry Co., 200 Mich. 604, 166 N.W. 1011, 1013, it is held: "The 6 months limitation of time fixed by this act for claiming compensation under it is plainly expressed, with no qualification and no latitude given, by proviso or otherwise, to the board administering it for extension of time." And the attitude of the Michigan Supreme Court is recited in Cooke v. Holland Furnace Co., 200 Mich. 192, 166 N.W. 1013, 1014, L. R. A. 1918E, 552: "We must approach this question, having full regard for the fact that, under the division of powers found in the Constitution, our duty is not to enact, but to expound, the law; not to legislate, but to construe legislation, to apply the law as we find it, and to maintain its integrity as it has been written by a coordinate branch of the state government. If the law as written works hardships in a special class of cases, the remedy lies with the branch of the government charged with the duty of enacting laws. If one does not protect himself and his rights under the law as written, it is his misfortune, and this court should not by...