City of Ardmore v. Wickware

JACKSON, Justice. This is an. original proceeding brought by petitioner, City of Ardmore, Oklahoma, a Municipal Corporation, to ' review an award of the State Industrial Commission in favor of respondent, Roy Wickware, hereinafter referred to as claimant. To vacate the award, it is first urged by petitioner that the Commission was without authority to'enter an award while there was an' outstanding order of the Commission directing claimant to submit to a medical examination by a physicain designated by the Commission, and with which order the claimant had failed to comply. Our attention is invited to 85 O.S.1951 § 25, which provides that if an employee refuses to- submit himself to an examina-tipn as requested by the Commission, his right, to prosecute any proceedings under the Workmen’s Compensation Act shall be suspended. ■ The ¡record in this regard discloses that after hearings were held on the. claim and medical ‘.evidence was submitted by bothclaimant and the petitipner, the claim was-submitted for an. order. on May 24, ,1955 by stipulation. of the .parties. Thereafter, on July 21st, the trial judge entered the order in question directing claimant to appear’before,'a. neutral physician on a sped-' fied date for an' examination at the ex-' pense of the..petitioner. Claimant did not appearfor the‘examination on the sped-' fied date for the reason that petitioner had refused to pay the travel expense. On July. 28th,- petitioner’s ■ attorney advised the Commission by letter that, in his opinion, • the Commission was ■ without authority to order the petitioner to pay such expense. On; August 1st, the "Commission entered the order for permanent disability which the-petitioner herein seeks to vacate. It does not appear that the petitioner had requested the examination which had been ordered by the Commission or th-at it deemed such examination necessary to -its defense of the claim, since it had previously joined in a stipulation submitting the claim for the order of the Commission. It is not shown that the rights of the petitioner were in any way prejudiced by the failure of claimant to appear for the examination and the Commission was -authorized, under these circumstances, to waive compliance with such order. It is next urged that -the Commission was without jurisdiction to enter an award because of claimant’s failure to give written notice of his injury within thirty days thereafter in compliance with sec. 24 of the Workmen’s Compensation Act. The Commission found that such notice was not given, but that the petitioner had actual notice thereof and was not prejudiced, by claimant’s failure to. give such written notice. If petitioner had actual knowledge of the injury, it was only through its foreman and superintendent.' The evidence showed that claimant was employed "by the City of Ardmore in the, water department, and on October 23, 1954, the date -of his injury, he had been using a jack hammer in breaking out a section of concrete paving preparatory to installing á larger water lin'e. He was injured while loading the j ack hammer into a truck-. The only other pe'rson -near the claimant at the time was Sam Williams, a fellow employee, who- testified that- he saw -claimant load: the 1 jack hammer and that immediately thereafter - the - claimant -said,: “That hurt me.” - - • - Claimant continued* to work but suffered from pain in his back., About two d-ays after his injury he .informed his foreman of the circumstances of the injury. He also informed Oliver Lee Todd, who testified that he was employed by ‘ petitioner as the superintendent of the water department, and that about the latter part of October he noticed claimant limping and asked him if he was hurt; that claimant *1091 replied: “Well, I think I strained my back. I threw the jack hammer upon the back of the track about three or four days ago and I think I hurt my back. I believe it will get all right though.” Claimant continued to suffer with his back and he sought medical treatment on his own accord, going first to Dr. R. and later to Dr. K., all of which was known to the water superintendent and the foreman. On December 3rd, Dr. R. sent a medical report of his examination of the claimant to the city engineer advising the circumstances of claimant’s injury. On December 6th, claimant was sent for an examination to Dr. C. by the city attorney, and on December 14th, claimant filed his first notice of injury and claim for compensation. It is contended by petitioner that a foreman’s knowledge of an injury to an employee working under his supervision is not knowledge of the employer. The weight of authority however, does not support petitioner’s contention. In 78 A.L.R. at page 1264, it is stated: “It is generally held that a foreman’s knowledge of an accident or injury is the knowledge of the employer so as to dispense with a formal notice.” This court considered the question here involved in the case of Olson Drilling Co. v. Tryon, 150 Okl. 18, 300 P. 663, 665, wherein the court' said in the body of the opinion: “There is competent evidence in the record to show that the respondent Jim Tryon notified the driller [foreman] that the shrill noise from the escaping steam was injuring his hearing and requested medical attention. There is also competent evidence in the record that it was the duty of the driller to report accidents to the company. The Indus- ' trial Commission found from the evidence that the [petitioner] through its agent, had actual notice -of the accident.” In United Supply Co. v. Lewellen, Okl., 276 P.2d 764, 765, the only evidence to show lack of prejudice was evidence of actual knowledge through the employer’s foreman. In upholding the Commission’s finding that the employer was not prejudiced because it had actual knowledge, the court said in the body of the opinion: “We think the information conveyed to employer’s foreman by respondent immediately after he sustained his injury, the reply of the foreman when considered in connection with the information furnished the foreman a week later was sufficient to impart notice and knowledge to his employer that he claimed to have sustained an injury to his foot as the result of the accident occurring May 15, 1953, and sufficient to sustain the finding .of the Commission as to actual notice.” It seems logical to hold that a foreman under whom an employee works and from whom he receives his orders and instructions, and to whom the proper management of the employer’s work is entrusted, must be considered the agent of the employer. However, in the instant case, there is ample evidence to support the Commission’s finding of “no prejudice” aside from the question of actual knowledge. The purpose of the statute requiring that the employee give written notice of his injury is to furnish prompt information to the employer in order that he may make a proper and timely investigation of the accident in order to determine the cause, nature and extent of the injury, and in order that he might furnish prompt medical treatment to prevent or minimize the resulting disability. Jones v. Oliver, 204 Okl. 164, 228 P.2d 173. All of the witnesses who had any knowledge of the claimant’s injury or the attending circumstances, were available for questioning by the employer after the statutory notice was given and the employer was not prevented from making a full and complete- investigation thereof. ‘ Only a short time elapsed between the expiration of the ■30-day period and the date of giving statutory notice of' the ■ injury.' During that period the claimant was under the observation of physicians oí his own selection. The evidence does not indicate that the recommended medical treatment for claim *1092 ant’s injury would have been more effective in reducing- the disabling effects of the injury if it had been administered prior to the expiration' of the 30-day period. Petitioner’s'final contention that the evidence was insufficient to show that claimant was engaged in a hazardous employment as defined by sec. 2 of the Workmen’s Compensation Act is without merit in view of the undisputed evidence that he was employed in the city water department and at the time of his injury he was engaged in installing a water line. Payton v. City of Anadarko, 179 Okl. 68, 64 P.2d 878. Award sustained. JOHNSON, C. J., WILLIAMS, V. C. J., and DAVISON, HALLEY, BLACKBIRD and HUNT, JJ., concur.