Bennett v. Scrivner, Inc.

Bennett v. Scrivner, Inc.
1985 OK 4
694 P.2d 932
Case Number: 60851
Decided: 01/22/1985
Supreme Court of Oklahoma

DONALD L. BENNETT, PETITIONER-APPELLANT,
v.
SCRIVNER, INC., AMERICAN MOTORISTS, RESPONDENT-APPELLEE,
and
WORKERS' COMPENSATION COURT, APPELLEE.

Petition for review from the Workers' Compensation Court.

Certiorari to the Court of Appeals, Division No. 1.

¶0 Petitioner-employee sought review of an order of the Workers' Compensation Court barring claim as beyond statute of limitations. Court of Appeals, Division No. 1, affirmed the order holding that employee's signing of Form 2, "Employers First Notice of Injury", arrested tolling of statute of limitations pursuant to 85 O.S. 1981 § 8 .

CERTIORARI GRANTED; DECISION OF COURT OF APPEALS VACATED; ORDER OF WORKERS' COMPENSATION COURT AFFIRMED.

Lew Gravitt, Stipe, Gossett, Stipe, Harper, Estes, McCune & Parks, Oklahoma City, for petitioner-appellant.

Henry F. Featherly, Lamun, Mock, Featherly, Baer & Timberlake, Oklahoma City, for respondents-appellees.

ALMA WILSON, Justice.

[694 P.2d 933]

¶1 When an employer fails to post a notice informing employees of their rights and obligations under the Workers' Compensation Act, and thereafter receives notice of an on-the-job injury, is the employer's statutory duty to advise the injured employee of his right to pursue a workers' compensation claim discharged by requiring the injured employee to sign a Form 2, "Employer's First Notice of Injury?"

¶2 The parties stipulate that on October 1, 1979, the claimant Donald Leroy Bennett, sustained an accidental injury to his left shoulder in the course and scope of his employment.

¶3 Scrivner pleaded and invoked the affirmative defense of the running of the statute of limitations pursuant to 85 O.S. 1981 § 43 .

¶4 In our recent opinion of White v. Loffland Brothers Equipment, 689 P.2d 311 (Okl. 1984), we acknowledged and gave legal force and effect to the express provisions of 85 O.S. 1981 § 8 which states:

"Every employer subject to the provisions of the Workers' Compensation Act shall post and maintain in one or more conspicuous places a notice to its employees covering the rights and obligations of employees under the Workers' Compensation Act. Such notice shall be [694 P.2d 934] prepared by the Administrator and shall be supplied to employers at no cost.

A supply of forms as provided by the office of the Administrator shall be made available to employees by employers subject to the Workers' Compensation Act at no cost to either the employer or employee.

In the event an employer having notice of an injury neglects to advise the injured employee of the right to file a claim under the Workers' Compensation Act, the statute of limitations shall be tolled until such claim is filed." [Emphasis ours]

In conformity with the purpose and intent of its enactment, to minimize the potential of an injured employee being deprived of the opportunity to pursue his claim, we interpreted the general posting requirement of paragraph one and the specific advisement duty of paragraph three as complementary, rather than synonymous methods of informing employees of the right to pursue a workers' compensation claim. If the Legislature had intended only one method of notice to employees, it could easily have used but one term. Thus, giving effect to all provisions of the statute, we held that where an employer has, in fact received actual notice of an employee's injury, paragraph three of 85 O.S. 1981 § 8 requires that the employer advise the injured employee of his right to file a claim under the Workers' Compensation Act; and non-compliance with this directive expressly tolls the statute of limitations until such claim is filed.

¶5 In the present case, the employer, Scrivner, Inc., submits that it discharged its advisement duty in compliance with the statutory directive of paragraph three through the use of a Form 2, "Employer's First Notice of Injury", a form which is furnished to employers by the clerk of the Workers' Compensation Court, and required to be used by employers having knowledge of an employee's injury, for the purpose of effecting a prompt report from the employer to the Workers' Compensation Court to aid and assist the court in carrying out the provisions of the Workers' Compensation Act.

¶6 We delineated the shifting burden of proof applicable to cases such as this in Armco, Inc. v. Holcomb, 694 P.2d 937 (Okl. 1984). The employer's initial burden is to show that the claim was filed beyond the one year statutory limit. Scrivner did so by showing that over three years had passed from the date of last injury or remuneration. The burden then shifted to the claimant, Bennett, to present evidence to establish Scrivner's non-compliance with 85 O.S. 1981 § 8 . Bennett did so with unrefuted testimony that Scrivner had failed to post notice;

Q [By Claimant's Counsel] Did Mr. Bennett make you aware of the October of '79 injury?

A Yes, sir. He signed a Form 2 on October 1, 1979.

Scrivner, however, neither filed the October 1, 1979 Form 2 with the Workers' Compensation Court prior to trial nor offered the October 1, 1979 Form 2 as evidence at trial. At trial, Scrivner agreed to furnish claimant's counsel a copy of the Form 2, but expressed its reservation that it did not want to be put in the position of waiving the statute of limitations by filing it at that time. At the request of claimant's counsel, the Form 2 was ultimately filed in the case as Claimant's Exhibit No. 3.

¶7 On appeal, Scrivner relies upon the Form 2 alone as competent evidence that Bennett had been advised of his right to file a workers' compensation claim. In support of its position, Scrivner emphasizes the following notations at the bottom of Form 2, "Employer's First Notice of Injury", to the Workers' Compensation Court:

"I here declare under penalty of perjury that I have examined this notice, and all statements contained herein, and to the best of my knowledge and belief, they are true, correct and complete.

RECEIVED Signed this 1 day of Oct., 1979.
Signature of employer or his authorized
OCT 2 1979 representative /s/ J.R. Asbery
Title of person signing Supervisor
PERSONNEL DEPT. Address to which mail or notices should
SCRIVNER, INC. be sent to employer: P.O. Box 26146 OKC, OK

NOTICE: Failure to file a Form 2 Notice of Injury with the Workers' Compensation Court is a misdemeanor punishable by a fine of not more than $500.00.

[694 P.2d 936]

WARNING: State law requires that the employer advises an injured employee that he has the right to file a claim for benefits with the Workers' Compensation Court. Failure to so notify the employee shall toll the statute of limitations on that claim until the employee actually files such claim. It is suggested that the employer have the employee sign this form acknowledging that he has been so informed of his rights and that this form be filed with the court immediately.

I hereby acknowledge that I have been advised by my employer that I have a right to file a claim with the Workers' Compensation Court for benefits as provided by law.

Signed this 1 day of Oct., 1979.
/s/ Donald L. Bennett
Signature of employee."

¶8 Bennett points out that his employer did not comply with applicable provisions of the Workers' Compensation Act which require employers having knowledge of an injury to file Form 2 with the Workers' Compensation Court.

¶9 From our examination of the language and organization of Form 2, we note that the NOTICE and WARNING, directed to the employer, emphasize the dual importance of immediately filing Form 2 with the Workers' Compensation Court. First, the employer is notified of its criminal liability for failure to file Form 2;

¶10 According to the evidence in the record, we conclude that Scrivner did not produce competent evidence to support a finding that it advised Bennett of his rights. An employer, who within one year of the date of injury, procures the signature of an employee on a Form 2, "Employer's First Notice of Injury", which is not placed on file with the Workers' Compensation Court as mandated by statute is estopped from invoking the one-year statute of limitations provided by 85 O.S. 1981 § 43 .

¶11 We vacate the decision of the Court of Appeals and affirm the order of the Workers' Compensation trial court.

¶12 DOOLIN, V.C.J., and HODGES, BARNES and KAUGER, JJ., concur.

¶13 SIMMS, C.J., concurs in result.

¶14 OPALA, J., concurs in judgment.

¶15 LAVENDER and HARGRAVE, JJ., dissent.

Footnotes:

1 By amendment, the claimant abandoned claim for workers' compensation benefits as a result of previous job related injury. Previous injury, although acknowledged by the employer as occurring in the course and scope of employment, does not form an issue herein. Trial came on for stated determination of the claimant's permanent partial disability resulting from his October of 1979 injury pursuant to amended Form 3.

2 85 O.S. 1981 § 43 provides: "The right to claim compensation under the Workers' Compensation Act shall be forever barred unless, within one (1) year after the injury or death, a claim for compensation thereunder is filed with the Administrator. Provided, however, claims may be filed at any time within one (1) year from the date of last payment of any compensation or remuneration paid in lieu of compensation or within one (1) year from last authorized medical treatment. Provided further, however, with respect to disease or disability caused by disease casually connected with employment the right to claim compensation under the Workers' Compensation Act shall be forever barred unless a claim is filed within eighteen (18) months after the last hazardous exposure or within eighteen (18) months after the disease first becomes manifest by a symptom or condition from which one learned in medicine could with reasonable accuracy diagnose this specific disease, whichever last occurs."

3 Form 2, "Employer's First Notice of Injury", comes within the ambit of the following provisions of the Workers' Compensation Act:

85 O.S. 1981 Ch. 4, App. R. 11. Forms-Preparation and Adoption-Use

The court shall prepare and adopt such forms for use in matters before the court as it may deem necessary or advisable. Whenever court forms are prescribed and are applicable, they shall be used. Printed copies of all forms may be procured in reasonable quantities upon request to the clerk of the court.

The following forms have been adopted by the court:

Form 1-a Notice and Instructions to Employers and employees

Form 2-Employer's First Notice of Injury

Form 3-Employee's First Notice of Accidental Injury and Claim for Compensation . . . [Emphasis added.]

85 O.S. 1981 § 102 . Employer's record of injuries-Report to Court-Penalty for neglect

Every employer shall keep a record of injuries, which result in the loss of time beyond the shift or which require medical attention away from the work site, fatal or otherwise, received by his employees in the course of their employment. Within ten (10) days or a reasonable time thereafter, after the occurrence of an accident resulting in personal injury a report thereof shall be made in writing by the employer to the Court upon blanks to be procured from the Court for that purpose. Such reports shall state the name and nature of the business of the employer, the location of his establishment or place of work, the name, address and occupation of the injured employee, the time, nature and cause of the injury and such other information as may be required by the Administrator. Any employer who refuses or neglects to make a report as required by this section shall be guilty of a misdemeanor, punishable by a fine of not more than Five Hundred Dollars ($500.00). [Emphasis added.]

85 O.S. 1981 § 103 . Securing information

Every employer shall furnish the Administrator, upon request, any information required by him to carry out the provisions of the Workers' Compensation Act.

4 Employer offered no proof that it posted notice to its employees covering the rights and obligations of employees under the Workers' Compensation Act, as required by paragraph one of 85 O.S. 1981 § 8 . At trial, the Court inquired "So you are admitting everything but asserting the statute of limitations as a bar?" Employer responded, "Yes, sir." Employer's failure to post is thus not a controverted issue in this case.

5 See note 3, supra.

6 Oklahoma Natural Gas Corp. v. Craig, 193 Okl. 56, 139 P.2d 181 (1942); Robinson v. State Industrial Commission, 176 Okl. 619, 56 P.2d 826 (1936).

7 85 O.S. 1981 § 179 . Prosecution of violations of certain sections

Prosecution of violations of the provisions of Sections 61 and 102 of Title 85 of the Oklahoma Statutes shall be the duty of the district attorney in the district wherein the notices, contracts and reports referred to are to be filed.