Spicer's, Inc. v. Burk, 35428
| Decision Date | 31 March 1953 |
| Docket Number | No. 35428,35428 |
| Parties | SPICER'S, Inc. et al. v. BURK et al. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court
Under the circumstances shown by the record herein, the one year period of limitation provided by 85 O.S.1951 § 43, for filing a claim, was tolled during the time the employer voluntarily furnished claimant with medical attention to which he was entitled under the Workmen's Compensation Law.
George E. Fisher, Oklahoma City, for petitioners.
J. W. Murphy and John F. Booth, Jr., both of Oklahoma City, Mac Q. Williamson, Atty. Gen., for respondents.
On February 27, 1951, G. E. Burk, hereinafter called claimant, filed his first notice of injury and claim for compensation stating that on December 26, 1946, he sustained an accidental injury arising out of and in the course of his employment with the petitioner, Spicer's Incorporated, in an automobile collision. On the 1st day of December, 1951, the trial commissioner entered an award. Therein it is found:
'That respondent had actual notice of claimant's injury within 30 days of its occurrence but claimant did not give written notice until February, 1951, which was within one year of the time claimant discovered his condition and respondent and insurance carrier were not prejudiced.
'That claimant was unaware of the damage to his brain, caused by the head injury, until February 11th, 1951, when claimant was operated for a head injury by Dr. Jess Herrmann, despite the fact that claimant was seen several times from December 26th, 1946, until 1949, by respondent's doctors and claimant's doctors.'
On appeal to the commission en banc the award was affirmed. This proceeding is brought to review the award.
Petitioners present the single issue that the State Industrial Commission erred as a matter of law in holding that the claim was not barred by 85 O.S.1951 § 43, which provides that a claim must be filed within one year after the date of the accidental injury or compensation paid in lieu thereof.
Claimant sustained a serious accidental injury December 26, 1946, at 11 o'clock A. M. Dr. Harper Wright filed form 4 attending physician's report on December 28, 1946, stating that claimant had been X-rayed, but that the X-ray showed no fractures or dislocations, but that claimant sustained a contusion of the right shoulder; that it was too early to determine the nature and extent of disability. Claimant testified that at the time of the collision he injured his shoulder, side and head; that he was attended by Dr. Crick of Britton, Oklahoma. Dr. Crick treated claimant from the date of the injury until February, 1947. In February of 1947, Dr. Crick sent claimant to Dr. Rountree. Claimant also saw Dr. Driver in Perry, Oklahoma, and Dr. Chambers of Enid. He went again to Wesley Hospital in Oklahoma City, where he had formerly been treated by Dr. Rountree, and Dr. Lawson of Wesley Hospital sent him to Dr. Bell who performed an appendectomy. This appendectomy proved unnecessary according to the testimony of all the physicians, and gave no satisfactory relief to claimant. Dr. Lawson then sent him to Dr. Hermann. Dr. Herrmann testified that he first saw claimant in 1951 and after examining him performed an operation on his brain. The cause and extent of the disability is not in issue herein and it is not necessary to further detail the extent of the disability and the results of the operation by Dr. Herrmann. There is no evidence that any doctor ever released claimant as cured after the date of his first examination and treatment by Dr. Crick.
A. J. Spicer testified that he is the owner of Spicer's Incorporated; that after the accidental injury claimant was absent from work for some time; that claimant was never himself after the accident and that Spicer finally got claimant's wife to work with him in order for him to properly keep the record necessary in his employment; that when claimant was working he would go home from the place of business and rest; that he quit work for a while and returned to work and worked until May, 1950.
The evidence discloses consent visits to and treatment by physicians and...
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...House v. Town of Dickson, 2007 OK 57, ¶ 16, 193 P.3d 964, 969 (citation omitted). See Spicer's, Inc. v. Burk, 1953 OK 103, ¶ 7, 261 P.2d 222, 224 ("[A]n and insurance carrier may waive the [statutory] requirements... that a claim for compensation under the Workmen's Compensation Act be file......
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