159 P.2d 726 | Okla. | 1945
Clyde C. Newport filed a claim for compensation before the State Industrial Commission against Sinclair Prairie Oil Company, his employer, and the employer has brought this proceeding in this court to review the award in favor of the employee.
Newport was employed by Sinclair and claims that in the early part of 1928 he received an accidental personal injury, arising out of and in the course of his employment, in the nature of a severe injury to his back. He filed his claim with the State Industrial Commission April 22, 1943. While Sinclair denies that the man received such an injury, the primary issue presented to us is whether the claim was barred by the one-year statute of limitations, 85 Ohio St. 1941 § 43[
Newport's testimony is that at the time he sustained this injury he was residing with his brother, who was district superintendent for Sinclair, and that he was off from work several weeks and received medical treatment, and that the accidental injury was known to his immediate foreman and to his brother. This is contradicted by both these men. His testimony is further that when he felt able to return to work and did do so, he discussed the matter of filing his claim for compensation with his brother and that his brother said to him, in substance, that it would be better for both of them if no claim was filed, and that the company would give the injured employee a lifetime job at duties he could perform, in consideration of his not filing a claim. His brother contradicts this. In any event Newport returned to work for Sinclair and worked for that company at full wages until June 15, 1942. It is undisputed that during all these years he did not perform the laborious duties that he performed up to the time of the claimed injury, but that his work consisted of various types of light work in caring for offices and warehouses and things of that kind. It is undisputed that during all of this time he was suffering from a physical disability and received medical attention therefor, including a trip to Mayo's Hospital in Rochester, Minn., and, despite medical care, his condition became progressively worse. June 15, 1942, his condition was such that the company relieved him of what duties he was then performing and thereafter carried him on what is called the "company sick and gratuity plan" until he filed his claim in April, 1943.
It is Sinclair's contention that the claim is barred by the statute of limitations, supra, and it is Newport's contention that the statute was tolled, (1) because the company did not report the injury; (2) because he was paid remuneration in lieu of compensation within one year of the filing of the claim; and (3) he was lulled into a sense of security by the promise of lifetime employment and by reason thereof did not file his claim until this agreement had been breached.
The theory that the statute might have been tolled by reason of the failure of the employer to file a report of the injury has been expressly rejected by this court in McClanahan v. Oklahoma Railway Co.,
The contention that the company paid him remuneration in lieu of compensation he would have received had he filed *523
his claim with the State Industrial Commission and succeeded in having it allowed, cannot be sustained by this record under the test stated by this court in Sinclair v. Stevens,
The third ground is no basis for lulling into a sense of security. It differs from Ladd v. Hudson,
The award is vacated and the matter is remanded, with directions to dismiss the claim.
GIBSON, C.J., HURST, V.C.J., and OSBORN, WELCH, CORN, DAVISON, and ARNOLD, JJ., concur. RILEY, J., dissents.