White v. Weyerhaeuser Co.

• Decision Date: 02 October 1990
• Docket Number: No. 70601,70601
• Citation: 798 P.2d 623,1990 OK 98
• Parties: Eddie Ray WHITE, Petitioner, v. WEYERHAEUSER COMPANY and The Workers' Compensation Court, Respondents.
• Court: Oklahoma Supreme Court

Page 623

798 P.2d 623

1990 OK 98

Eddie Ray WHITE, Petitioner, v. WEYERHAEUSER COMPANY and The Workers' Compensation Court, Respondents.

No. 70601.

Supreme Court of Oklahoma.

Oct. 2, 1990.

Certiorari to the Court of Appeals, Division No. 2, Appeal from Oklahoma Workers' Compensation Court Three-Judge Panel; Dick Lynn, Trial Judge.

On October 8, 1981, Petitioner, Eddie Ray White was injured when a metal bar flew out of a machine on which he was working at Respondent, Weyerhaeuser Company. He sustained immediate injury to his right eye, cheek and cheek bone. Respondent provided medical treatment and paid compensation during the time he was off work. On October 14, 1981 Respondent filed an Employer's First Notice of Injury (Form 2) with the Workers' Compensation Court. No claim for compensation was filed by Petitioner until July 23, 1987, when he filed an Employee's First Notice of Accidental Injury and Claim for Compensation (Form 3) seeking recovery for a retinal tear in his right eye which occurred in June of 1987 by virtue of a traction band building up in his eye from the time of the initial accident in 1981. Respondent raised the five year statute of limitation found at 85 O.S.1981, § 43 as a defense, arguing Petitioner had five years from the last date of payment of compensation in 1981 for his time off work to request final determination of any claim for compensation. The trial judge held the limitation period had not run and awarded temporary total disability for time off work in 1987 due to surgery to repair the retinal tear. Permanent disability was left open. The three-judge panel reversed, ruling the limitation period had run. The Court of Appeals vacated said decision and reinstated the holding of the trial judge. Held: 85 O.S.1981, § 43 requires a claimant to request a hearing and final determination of any claim for compensation within five years from the date of filing a claim or within five years from the date of last payment of compensation or wages in lieu thereof, whichever last occurs, or be barred from proceeding further thereon.

CERTIORARI PREVIOUSLY GRANTED; COURT OF APPEALS OPINION VACATED; WORKERS' COMPENSATION COURT THREE-JUDGE PANEL ORDER SUSTAINED.

Paul A. Scott, Oklahoma City, for petitioner.

William Robinson, Steve A. Weeks, Bower, Beavin & Weeks, Oklahoma City, for respondent Weyerhaeuser Co.

LAVENDER, Justice

In this case we are asked to decide whether in single-event injury cases the five year statute of limitation found at 85 O.S.1981, § 43 [now 85 O.S.Supp.1986, § 43(B) ], for making a request for final determination of a workers' compensation matter, begins to run when a claimant discovers a latent condition causally connected with his on-the-job accident that manifests itself years after the accident. We answer in the negative.

Petitioner, Eddie Ray White (hereafter White) was involved in a single-event injury on October 8, 1981 while he was employed by Weyerhaeuser Company (hereafter Company). White was struck in the face by a piece of metal which flew out of a machine on which he was working. The metal struck with enough force that White was thrown back six or eight feet and it produced cuts on his right eyelid, injury to his right cheek and cheek bone. After seeing a local doctor he was transported to Paris, Texas for emergency surgery to repair the damage to his eyelid. He saw the doctor who performed the surgery on a few other occasions after being released from the hospital and was told he had no permanent damage to the eye. The testimony of Petitioner also indicates the right eye had historically been a bit stronger than the left and at the time of the last visit vision of the two eyes were almost equal, being 20/20 in both. ¹ The doctor further told Petitioner the right eye probably would get a little stronger over time. Company paid Petitioner's medical bills and temporary total disability for the time he was off work in 1981, approximately three weeks. Company also filed with the Workers' Compensation Court an Employer's First Notice of Injury (Form 2) on October 14, 1981. Petitioner returned to work in early November 1981.

The record indicates that between his return to work in 1981 and June 1987 he had no problems with the right eye. In June 1987 he began having vision problems with the eye and was seen by a doctor on June 15, 1987. He was diagnosed as having a detached retina and had surgery to reattach it. Petitioner was off work from mid-June 1987 to August 10, 1987. Petitioner filed an Employee's First Notice of Injury and Claim for Compensation on July 23, 1987. The matter was heard on December 1, 1987 as to total temporary disability (permanent disability has apparently been left open) and Company raised as a defense the five year statute of limitation found at 85 O.S.1981, § 43. ² The evidence was virtually undisputed the retinal tear was caused by a traction band forming in the eye over time which constricted to such an extent that it pulled off the retina and the forming of the traction band was very likely a result of the accident in October 1981.

The trial judge ruled the statute of limitation had not run and awarded temporary total disability for the time Petitioner was off work in the summer of 1987. Company appealed to the Workers' Compensation Court En Banc. That three-judge panel held the statute of limitation had run and, accordingly, vacated the order of the trial court. On review by the Court of Appeals the decision of the en banc panel was vacated and the order of the trial judge was reinstated. The Court of Appeals ruled the five year statute of limitation "does not begin to run for the type of extraordinary, latent condition as involved here, until the Claimant knows or as a reasonably prudent person should know, that he has the condition for which the claim is brought and that the condition stems from a job-related injury." It formulated a discovery rule for cases of this type ostensibly relying on the discovery rule found in certain tort cases such as Seitz v. Jones, 370 P.2d 300 (Okl.1961) (medical malpractice concerning leaving a foreign object in a patient during surgery) and Sloan v. Canadian Valley Animal Clinic, Inc., 719 P.2d 474 (Okl.Ct.App., Div. 1, 1985) (Brucellosis from exposure to cattle not diagnosed until four months after plaintiff began feeling ill). We granted certiorari to decide whether such a discovery rule applies to the five year limitation period found in § 43.

85 O.S.1981, § 43 provides in pertinent part as follows:

When a claim for compensation has been filed with the Administrator as herein provided, unless the claimant shall in good faith request a hearing and final determination thereon within five (5) years from the date of filing thereof or within five (5) years from the date of last payment of compensation or wages in lieu thereof, same shall be barred as the basis of any claim for compensation under the Workers' Compensation Act and shall be dismissed by the Court for want of prosecution, which action shall operate as a final adjudication of the right to claim compensation thereunder. Provided, that any claims heretofore filed and pending on the effective date of the Workers' Compensation Act before the State Industrial Court shall likewise be barred after the expiration of five (5) years from filing date or within five (5) years from the date of last payment of compensation or wages in lieu thereof. (emphasis added).

As noted above no Form 3 was filed by White in this case until July 1987, about five years and eight months from the last payment of compensation to him by Company as a result of the accident in October 1981. ³ Both parties agree in this case the one year statute of limitation found in § 43 was satisfied by the filing by Company of an Employer's First Notice of Injury (Form 2) in October 1981. ⁴ This Court has previously held the filing of a Form 2 is sufficient to vest the Workers' Compensation Court with jurisdiction of a claim without the necessity of the employee filing his First Notice of Accidental Injury and Claim for Compensation. See Bennett v. Scrivner, Inc., 694 P.2d 932, 936 (Okl.1985); Oklahoma Natural Gas Corp. v. Craig, 193 Okl. 56, 139 P.2d 181, 182 (1942), dissenting opinion 193 Okl. 56, 141 P.2d 99 (1943). ⁵ The question then becomes whether the five year period of § 43 as set out above for making a request for final determination of the matter began to run from the date of Company's last payment of compensation to White in 1981 or, instead, the five year period did not begin to run until White discovered or should have discovered his yet to unfold eye problem caused by the formation of the previously undetected traction band which resulted in his detached retina and that said condition stemmed from the October 1981 accident.

We have ruled the bar of § 43 requiring dismissal of a claim for compensation when a claimant fails to request a hearing and final determination within five years is positive "and unless a claimant brings himself within an express exception contained in the enactment, or shows acts which operate to toll or arrest the statutory bar, the provisions of the statute are mandatory...." Beatty v. Scott, 362 P.2d 699, 701 (Okl.1961). We have further ruled the claim does not have to be determined in the five year period, only that a request be made within the specified period of time. Purdy v. Flint Steel Corporation, 535 P.2d 277, 280 (Okl.1975). White, in essence, contends and the Court of Appeals approved of the view, that the limitation period was tolled because of the latent nature of the traction band which did not become apparent or manifest itself until his retina detached in 1987. We do not agree with this view.

In the case of McDonald v. Time-DC, Inc., 773 P.2d 1252 (Okl.1989), we rejected a tort-like discovery rule in single-event injury cases as to when the initial one year statute of limitation of § 43 would begin to run. Id....