Wood v. Oklahoma Osteopathic Hospital
| Decision Date | 26 June 1973 |
| Docket Number | No. 45916,45916 |
| Citation | 512 P.2d 135 |
| Parties | Violet V. WOOD, Petitioner, v. OKLAHOMA OSTEOPATHIC HOSPITAL et al., Respondents. |
| Court | Oklahoma Supreme Court |
Harry V. Rouse, Tulsa, for petitioner.
Covington, Gibbon & Poe by A. M. Covington, Tulsa, for respondents.
Petitioner filed claim for compensation on July 12, 1971, alleging an accidental back injury occurred July 26, 1970, while lifting a patient during course of duties as an aide in respondent hospital. Respondent answered by general denial, and specifically denied engagement in hazardous employment within the Act, 85 O.S.1971 § 1 et seq., injury within course of employment, or disability attributable to accidental injury. The respondent did not plead lack of notice.
Upon hearing the parties stipulated respondent carried a Workmen's Compensation policy of insurance, and was estopped to deny petitioner was in hazardous employment. The case was heard only as to temporary total disability, involving questions of fact relating to alleged accidental injury and ensuing disability from date of injury.
The trial judge (February 16, 1972) entered the following order denying compensation:
'That Claimant's failure to give actual notice of said injury and failure to give thirty-day statutory written notice of said injury did prejudice the substantial rights of respondent and insurance carrier, and claimant's claim for benefits under the Workmen's Compensation Law is hereby denied.'
On appeal en banc this order was affirmed by divided vote, and this proceeding for review was initiated.
The sole issue concerns propriety of the order denying compensation for failure to give written notice required by 85 O.S.1971 § 24, and finding failure to give actual notice of injury prejudiced substantial rights of respondents.
Petitioner seeks vacation of the order upon grounds statutory notice is not jurisdictional and, absent presentation of an issue as to lack of notice, the trial court is not required to make a finding thereon. Since adoption (Sec. 8, Art. 2, c. 246, S.L.1915) (Sec. 7282, C.O.S.1921) the notice provision of the Act, supra, has been held not jurisdictional. Consolidated Fuel Co. v. Ind. Comm., 85 Okl. 112, 205 P. 170. Because not jurisdictional, failure to give notice cannot be set up as a defense in absence of placing such question in issue.
Respondent relies upon Simmons v. Okla. Cement Co., Okl., 394 P.2d 462, as presenting an almost perfectly analogous situation to the present case. That decision does not support respondent's argument. In that case the answer specifically alleged lack of notice and resulting prejudice to the employer, and evidence as to...
To continue reading
Request your trial
-
Booker v. Duke Medical Center
...131 Ga.App. 858, 207 S.E.2d 255 (1974); Paull v. Preston Theatres Corp., 63 Idaho 594, 124 P.2d 562 (1942); Wood v. Oklahoma Osteopathic Hospital, 512 P.2d 135 (Okl.1973); Stewart v. Barr, 471 P.2d 462 (Okl.1970); United States Steel Corp. v. Workmen's Compensation Appeal Board, 9 Pa.Cmwlth......
-
Anglen v. E.L. Powell & Sons, 71479
...added.)5 Since adoption, the notice requirement in repealed § 24 has been held as non-jurisdictional. Wood v. Oklahoma Osteopathic Hospital, 512 P.2d 135, 136 (Okla.1973), and McConnell v. Y.M.C.A. of Greater Oklahoma, 515 P.2d 575, 577 (Okla.1973). Prior to the 1986 amendments, there was n......
-
AMF Tubescope Co. v. Hatchel
...required by State Industrial Court Rule 10. In this connection, however, attention is directed to recent decisions in Wood v. Osteopathic Hospital (Okl.), 512 P.2d 135, and Cook v. Clinkenbeard (Okl.), 524 P.2d Respondents' principal contention urges the claim was barred by the one-year sta......
-
Goombi v. Trent
...and properly presented an issue relating to presumed prejudice resulting from lack of statutory notice. See: Wood v. Osteopathic Hospital, Okl., 512 P.2d 135 (1973), concerning the necessity to allege defensive claims concerning failure of notice, and prejudice allegedly resulting from On r......