Shank v. Oklahoma Office & Bank Supply Co.

• Decision Date: 17 December 1963
• Docket Number: No. 40164,40164
• Citation: 387 P.2d 626
• Parties: Edwin S. SHANK, Petitioner, v. OKLAHOMA OFFICE & BANK SUPPLY CO., Utilities Insurance Company and State Industrial Court, Respondents.
• Court: Oklahoma Supreme Court

Page 626

387 P.2d 626

1963 OK 282

Edwin S. SHANK, Petitioner, v. OKLAHOMA OFFICE & BANK SUPPLY CO., Utilities Insurance Company and State Industrial Court, Respondents.

No. 40164.

Supreme Court of Oklahoma.

Dec. 17, 1963.

Syllabus by the Court

1. Where one year has elapsed since an injured employee was furnished medical treatment and paid nothing in lieu of compensation, the right to claim compensation under the Workmen's Compensation Law is forever barred under 85 O.S.1961 § 43, unless tolled or waived, and furnishing medical treatment after the limitation period had expired does not revive the right to prosecute such a claim or constitute a tolling or waiver of the filing of the claim.

2. When the issue of whether statutory limitation has been tolled, or waived, presents a question of fact the finding made thereon by the State Industrial Court will not be disturbed on review, if reasonably supported by competent evidence.

Original proceeding by Edwin S. Shank, claimant to review an order of the State Industrial Court denying an award as against Oklahoma Bank & Supply Company, employer, and its insurance carrier, Utilities Insurance Company. Order sustained.

James H. Werner, Tulsa, for petitioner.

Pierce, Mock, Duncan, Couch & Hendrickson, John R. Couch, James S. Steph, Oklahoma City, Charles R. Nesbitt, Atty. Gen., for respondents.

HALLEY, Vice Chief Justice.

Petitioner, an employee of respondent, Oklahoma Office & Bank Supply Company, sustained an accidental injury to his back on April 11, 1960. He was voluntarily paid compensation at the rate of $23.08 per week during the period he was temporarily totally disabled, until July 15, 1960. He was paid no further compensation or wages in lieu of compensation after this date. He was released from medical treatment by the attending physician August 9, 1960. He did not return to work for the respondent employer but went to work for another company. On September 25, 1961, he sought medical treatment from Dr. M and was treated by Dr. M through September 29, 1961, being released by Dr. M on October 2, 1961. On October 11, 1961, he filed an Employee's First Notice of Injury and Claim for Compensation with the State Industrial Court. The respondents by their answer raised the defense of the Statute of Limitations alleging that the claimant failed to file his claim within one year following the date of his last medical treatment or within the time prescribed by law, and is therefore barred of recovery.

After a regular hearing, the trial judge found that claimant sustained an accidental injury, arising out of and in the course of his hazardous employment with the respondent within the terms and meaning of the Workmen's Compensation Law, on April 11, 1960, consisting of an injury to his back; that he failed to file his claim for compensation within one year from the date of the last medical treatment, August 9, 1960, but that the claim was revived and the defense of the claimant's failure to timely file his claim was waived when the attorney for the respondent and insurance carrier authorized, on or about October 19, 1961, claimant's treatment by Dr. M; and that the conduct of respondent and insurance carrier amounted to a conscious recognition of liability to the claimant, and his claim for compensation should be revived. Based upon this finding the trial judge awarded claimant 10 per cent permanent partial disability to the body as a whole. The award was vacated on appeal to the Industrial Court en banc, which held that the claim was barred by reason of the statute of limitations.

Petitioner seeks vacation of the order of the Industrial Court en banc and reinstatement of the order of the trial judge upon the theory that respondents are barred from relying on the statute of limitations under the doctrine of promissory estoppel or in the alternative that the acts of the respondents constituted a waiver of the statute of limitations.

The contentions thus advanced cause us to briefly review the law relative to the limitations placed upon the filing of a claim for compensation before the State Industrial Court.

The provisions of 85 O.S.1961 § 43, forever bar the right to institute a claim under the Workmen's Compensation Act if not filed with the State Industrial Court within one year from the date of the injury or within one year from the last payment of compensation, or remuneration paid in lieu of compensation. By judicial construction this Court has said that this section is a limitation upon the remedy, not upon the right, and the requirement may be waived; that there is no legal distinction between voluntary payment of compensation and the furnishing of medical treatment, both being indicative of the same thing: the recognition of liability; and during the time the employer voluntarily furnishes the employee medical attention the statute of limitation is tolled. See Oklahoma Furniture Mfg. Co. v. Nolen, 164 Okl. 213, 23 P.2d 381, and cases therein cited.

In those cases since Oklahoma Furniture Mfg. Co. v. Nolen, supra, wherein this Court has held there was a waiver or tolling of the one-year limitation statute due to a furnishing of medical treatment to employee by employer or insurance carrier, it is quite clear there was proof of actual medical care voluntarily furnished by the employer or insurance carrier to the employee within one year from the date of the injury, with continuation thereof, uninterrupted by an interval of more than one year prior to filing of the claim. See Hobart Sales and Service v. Harmon, Okl., 369 P.2d 628; Carey Furniture & Appliance Company v. Carey, Okl., 368 P.2d 493; Fullhart Maytag Company v. Stapleton, Okl., 356 P.2d 350; Drinkwater v. Orkin Exterminating Company, Okl., 349 P.2d 1068; Bowling v. Blackwell Zinc Company, Okl., 347 P.2d 1027; Lee Way Motor Freight v. Pritchard, Okl., 301 P.2d 196; Wilcox Oil Co. v. Fuqua, 203 Okl. 391, 224 P.2d 255.

On the other hand, the law is as equally well settled in this jurisdiction that furnishing of medical care after the limitation period has expired does not revive the right to prosecute such a claim or constitute a tolling or waiver of the requirement relative to the filing of the claim. Bacon v. State Industrial Court, Okl., 352 P.2d 924; National Zinc Company v. Groszek, Okl., 350 P.2d 961; Anchor Plumbing Company v. Linam, Okl., 325 P.2d 962. In Bacon v. State Industrial Court, supra, the rule was thus stated in the syllabus:

'Where one year has elapsed since an injured employee was furnished medical treatment and paid nothing in lieu of compensation, the right to claim compensation under the Workmen's Compensation Law is forever barred under 85 O.S.1951 § 43, unless tolled or waived, and furnishing medical treatment after the limitation period has expired does not revive the right to prosecute such a claim or constitute a tolling or waiver of the filing of the claim.' (Emphasis added.)

Without question the claim in the instant case is barred unless during the period August 9,...