Tulsa Hotel v. Sparks
| Decision Date | 13 July 1948 |
| Docket Number | 32767. |
| Citation | 198 P.2d 652,200 Okla. 636,1948 OK 178 |
| Parties | TULSA HOTEL et al. v. SPARKS et al. |
| Court | Oklahoma Supreme Court |
Rehearing Denied Oct. 19, 1948.
Original proceeding by Tulsa Hotel and Employers' Casualty Company to review an award of State Industrial Commission awarding compensation to S. C. Sparks.
Award vacated, and cause remanded with directions.
See also 197 Okl. 644, 174 P.2d 920.
Syllabus by the Court.
1. The mere filing of a physician's report with the State Industrial Commission under the Workmen's Compensation Act, stating that an employee had been injured; that he examined and treated such employee but that no disability either temporary or total would result from such injury, will not be treated as a claim for compensation within the meaning of 85 O.S.1941, § 43, nor will the filing of such report dispense with the necessity of the filing of a claim for compensation within one year after the date of the alleged injury as thereby provided.
2. Under 85 O.S.1941, § 43, where an employed 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.
James C. Cheek, Alex Cheek, and John Cheek, all of Oklahoma City for petitioners.
A. M Covington of Tulsa and Mac Q. Williamson, Atty. Gen., for respondents.
This is an original proceeding brought in this court by petitioners Tulsa Hotel and its insurance carrier Employers' Casualty Company, to review an award of the State Industrial Commission awarding compensation to respondent S. C. Sparks.
Respondent filed his first notice of injury and claim for compensation on December 26, 1945, in which he stated that on October 14, 1942, while in the employ of the Tulsa Hotel he sustained an injury to his left foot; that he was advised by Dr. Black, the physician of the Tulsa Hotel that he would sustain no permanent disability from such injury but that he recently discovered that his foot was permanently disabled.
The trial commissioner found that respondent on October 15, 1942, while in the employ of the Tulsa Hotel, owned and operated by the Waslic Corporation and engaged in a hazardous occupation sustained an accidental personal injury arising out of and in the course of his employment consisting of an injury to his left foot; that on the date of the injury his foot was examined and treated by Dr. Black, a physician in the employ of the Tulsa Hotel, and that on November 7, 1942, said physician reported said injury to the commission in writing on form 4 provided by the commission; that the filing of such report vested the commission with jurisdiction to hear and determine said claim.
The trial commission further found that as a result of said injury respondent sustained a 10 per cent permanent partial disability to his left foot which entitles him to compensation in the sum of $270 or 15 weeks at $18 per week and entered an order awarding him compensation accordingly. No appeal was taken from this order to the commission sitting as a whole. This proceeding is brought by petitioners to review the award.
The award is challenged on the sole ground that no claim for compensation was filed by respondent within one year after the date of the alleged injury as provided by 85 O.S.1941 § 43, and the claim is therefore barred by limitation.
The record shows that respondent received his injury on October 14, 1942, and that no claim was filed by him for compensation until December 26, 1945. Therefore in the absence of a showing that some other form of instrument was filed with the commission in the nature of a claim within one year after the date of the injury the claim would be barred by limitation.
The evidence shows that on the date he sustained his injury respondent called on Dr. Black, the house physician of the Tulsa Hotel, who examined him and treated his foot; that the doctor advised him that he would sustain no disability by reason of his injury; that he would lose no time; that on such advice he remained at work and worked for several weeks thereafter for the Tulsa Hotel; that he then left such employment to accept a better position and worked continuously for several different companies until October 18, 1945, at which time the ankle of his foot became swollen and caused him some pain and he was by reason thereof no longer able to continue at his work; that he then consulted Dr. White who, after x-ray examination, advised him that some bones of his foot were broken. He then, and on December 26, 1945, filed his claim for compensation.
The record further shows that on November 7, 1942, Dr. Black filed his physician's report with the Commission in which he stated that he had examined respondent on the 15th day of October, 1942, and found the ankle of his left foot swollen and tender but found no fracture; that he cleansed it with Merthiolate and bandaged the foot; that respondent would lose no time and that his injury would not result in any permanent disability.
Respondent first contends that the filing of this report by the physician should be treated as the filing of a claim for compensation within the meaning of the Workmen's Compensation Act. 85 O.S.1941 § 1 et seq., and therefore sufficient to confer jurisdiction upon the Commission to hear and determine the claim. In support of this contention he relies upon the following cases. Oklahoma Natural Gas Corp. v. Craig, 193 Okl. 56, 139 P.2d 181, 141 P.2d 99; International Supply Co. v. Morrell, 187 Okl. 346, 102 P.2d 846; Oklahoma Furniture Mfg. Co. v. Nolan, 164 Okl. 213, 23 P.2d 381, and other similar cases. These cases do not go to the extent claimed by respondent. None of the cases hold that the mere filing of a physician's report stating that an employee had sustained some injury but that such injury would not result in any disability, temporary or permanent is sufficient to constitute a claim for compensation within the meaning of the Workmen's Compensation Act. These cases simply hold that no particular form of pleading is required to confer jurisdiction upon the State Industrial Commission to hear and determine a claim for compensation but that anything filed before the Commission which directs its attention to the fact that an employee has been injured and that compensation is being claimed by him for such injury or that compensation has been paid him by his employer or that he has been furnished medical treatment by his employer is sufficient to constitute a claim within the meaning of the statute. In harmony with this principle we have held in the above cases that the filing of notice of injury by the employer stating that an employee has been injured and that the employer is furnishing him with medical treatment for such injury or is paying him compensation or where an employer fails to file a notice of injury but pays the employee compensation therefor and files his receipts with the Commission showing such payment is sufficient to invoke the jurisdiction of the Commission and to constitute a claim for compensation within the meaning of the Workmen's Compensation Law. These cases are based on the theory that the filing of such instruments by the employer constitute a conscious recognition on his part of a liability and sufficient to advise the Commission of the fact that an employee has been injured and is claiming or being paid compensation for such injury and therefore sufficient to constitute a claim for compensation. No such state of facts have been shown in the instant case. There is nothing contained in the physician's report...
To continue reading
Request your trial