*1 regulations The statutes and fication. situations, number of volved here affect a birth certificate is amended.
where a
Accordingly, appealed the order
affirmed.
All the Justices MOODY,
Wayne W. Claimant Appellant, TYLER, COMBINERS,
L. W. CUSTOM Appellee, Fund American
Fireman’s Insurance
Companies, Appellee. Insurer and
No. 12938.
Supreme Court South Dakota.
Argued April
Decided Oct. Wolfe,
Kayla Lampkin, Bower of McCaf- Tanwater, Okl., for frey City, & Oklahoma George J. McCaf- appellant; claimant and Wolfe, McCaffrey & Tan- frey Lampkin, Okl., water, P. City, Charles Colwill, Schmidt, Schroyer & P. Schroyer of C., Pierre, on brief. Adam, May,
David A. Gerdes of Gerdes Thompson, Pierre, appel- appellee. lee and insurer and WOLLMAN, Justice. Chief judgment Appellant appeals from the affirming, the circuit decision of court de- the Division of Labor and worker’s com- nying appellant’s claim for appellees Tyler, L. W. pensation against Fire- (employer), and Custom Combiners Companies Insurance man’s Fund American (insurer). We reverse and remand. *2 180 Roettele, 36, Meyer 64 purpose.” its v. S.D. are residents of employer and
Appellant 191, began 40, (1935); see also John Appellant 264 N.W. 193 the state of Oklahoma. Co., (S.D. 493 Skelly driver in N.W.2d employer as a truck son v. Oil 288 working for Gregory, 278 combining operations 1980); on Bearshield v. employer’s custom 5, (S.D.1979). The July 1973. in of Kansas. the state
was entered knowledge of claim Employer had 24, 1973, July appellant On injury. injury on of the Ac ant’s the date Martin, Dakota, when he was near South specter having to defend cordingly, the employer’s truck. by run over stale not overshadow against a claim does pelvis, multiple sustained fractures proceedings. these a result of right ankle as lower back and the rea- previously This court has stated years 17 Appellant was accident. the in for the of limitations son of the accident. age at the time cases: “The Compensation Workmen’s 26, 1973, filed an em- for July requiring compen- a claim purpose On injury with the Kan- injured employee, to be an sation filed Authority.1 Compensation protect employ- Workmen’s injury, sas like notice of is to Following proceedings certain before the which cannot be stale claims Compensation Authori- Kansas Workmen’s promptly investigated.” ty, the matter dismissed reason Son, Grossenburg J. 89 Novak C. S.D. compensation the Kansas worker’s 308, 317, 463, 232 468 quot- N.W.2d provide coverage agricultur- for statutes Co., Tegels v. 81 ing Western Chevrolet S.D. combining.2 pursuits, including al custom 281, (1965). 592, 596, What N.W.2d how- proceeding, Prior to dismissal here: “The applicable we said ever, had from insurer employee’s timely law payments benefit under ... in no the way prejudiced claim amounting temporary total its insurer. had notice of the er or Both January 31, disability payments through promptly continually and it was expenses. medical 596, 139 investigated.” at S.D. Divi- February the Dakota at 283. (Division) and Management sion of Labor Although we have characterized fil February received a letter dated ing precedent of a claim as a condition representing the first of a claim prose right injured employee of an appellant under Dakota worker’s compensation, proceedings seeking cute compensation statutes. The Division denied recognized excuses for non- have reasons or on that it appellant’s ground claim the Tegels, supra, and late filing. S.D. not been The decision of filed.3 example, 283. For Division was affirmed the circuit court. Hess, Bailey v. N.W. 69 appeal This followed. employee’s an failure to formal compen rule general grounds is a that worker’s claim was that a excused on liberally sation statutes should be construed the employ settlement between injured employees. employee in favor of “The Work er and filed with Industrial remedial, Act is for Compensation could be substituted Commissioner liberally should be construed to effectuate claim. required compensation (1973). 1. § Kan.Stat.Ann. 44-557 claim thereunder However, department. pay- if either (1973). § Kan.Stat.Ann. 44-505 or reimbursement or hospital expenses of medical and 62-7-35 states: under has been made on account of § right death, may under this title or be a claim shall forever years barred unless within two within two from the date last years injury, after an if or death results payment. death, therefrom, years within two after When, however, and medical constituted the func- ployee have reached an in re- tional Te- of what occurred in gard to the compensation gels. Admittedly, the elements of the Law, filed- insurer to memorandum thereof receipts weekly payments, Commissioner, approval and secured his reports medical are present *3 . . . permit of [t]o however, stant case. What is lacking, liability to thereafter avoid should not overshadow that which is merely because no claim for compensa- present-the knowledge immediate on the tion had been part of the employer of the fact of the Commissioner . .. just would neither be injury; the immediate filing by employ- nor reasonable. er with the Kansas report authorities of the and, injury; important, of most Likewise, S.D. at N.W. at 71. voluntary Watertown, commencement insurer of Middleton v. of payment of substantial benefits on appel- we called Indeed, a lant’s behalf. compensation agreement payment similar “the actual compensation.” speaks of a claim for of more than in benefits as loudly as did the the Te- Tegels we held that where an gels concerning case the insurer’s intention er had notice of an injury and its insurer to continue payments. Accordingly, we made to a the em- support hold that the facts a here determi- ployee’s right to was not very agree- nation that at the least a tacit barred his failure to file a formal claim ment had been regarding compen- reached There, within the statutory period. com- sation. pensation paid was claimant weekly and receipts were with the Industrial Com- question There remains the whether missioner. Correspondence from the insur- Tegels holding inapposite is because the er revealed that claimant was told that filing report injury pay of and the payments would continue until he returned in Kansas rather benefits occurred to work or discharged by was a doctor. than in this state. We conclude not. Al Payments were made for some thirteen it though may requirement be true that the weeks. This series of events created a situ- of a filed claim cannot be avoided on ation tantamount to an pay to equitable estoppel, waiver or grounds of compensation, which the Court held obviat- Menke, supra, Klein v. nevertheless ed the necessity filing of a formal claim. Tegels, Bailey, of our in the however, Appellees argue, that our subse cases, that supra, and Middleton mandates Menke, quent holding in Klein v. 83 S.D. accept compliance a less than literal limited provisions as SDCL 62-7-35 Klein, however, its facts. lacked the ele being jurisdictionally adequate. This is not ment of the voluntary payment of substan a shopping by appellant. of forum case benefits, tial and to that extent is distin was chose the employer and insurer who guishable from Tegels. Accordingly, we de initial forum whose statutes relieved them cline to construe Klein a constituting as liability payment of benefits. upon limitation the increasingly liberal in To hold that the actions of the terpretation this placed upon Court has and insurer vis-a-vis constituted filing those acts that are tantamount to the that satis of a claim under SDCL 62-7-35. fied the SDCL We conclude that underlying purpose of the em- does no violence to the ployer’s report statute, which, the Kan- of that as we stated in No- sas equivalent of our Division of protect employ Labor and vak and supra, extent, and the of substan- stale claims. To that tial sums in way of disability benefits 62-7-35 is more a statute of limita- SDCL which, Graba, trol of an Oklahoma was
tions,
as we held in Arbach v.
who
(1975), is
working
operation
claim within the
following reasons:
1.Appellant seventeen-year-old under the dominion and con- boy,