Limitation of Actions

The defense of statute of limitations is treated as a true affirmative defense, rather than as a jurisdictional question, and is not independently reviewed by this Court. See Special Indemnity Fund v. Choate, 1993 OK 15, 847 P.2d 796; Leach v. Hamilton Trucking Co., 2002 OK CIV APP 11, 39 P.3d 824. If the determination of the Workers' Compensation Court is reasonably supported by the evidence and not otherwise contrary to law, it will not be disturbed on review. As an affirmative defense, Employer had the burden of proof to show Claimant's request was time-barred. Special Indemnity Fund v. Choate, 847 P.2d at 804.
Lamson & Sessions and Pacific Employers Insurance Co. v. Doyle, 2002 OK 89, 61 P.3d 215 (holding that the filing of Form 3 for back injury tolled the statute of limitations for consequential bowel dysfunction)

1. Timeliness of Filing a Claim (§43A)

The right to claim compensation under the Workers’ Compensation Act shall be forever barred unless, within two (2) years after the date of accidental injury or death, a claim for compensation is filed with the Workers’ Compensation Court. Provided however, a claim may be filed within two (2) years of the last medical treatment which was authorized by the employer or the insurance carrier or payment of any compensation or remuneration paid in lieu of compensation. Provided further however, with respect to disease or injury caused by repeated trauma causally connected with employment, a claim may be filed within two (2) years of the date of last trauma or hazardous exposure. Provided, further however, in the case of asbestosis, silicosis or exposure to nuclear radiation causally connected with employment, a claim may be filed within two (2) years of the date of last hazardous exposure or within two (2) years from the date said condition first becomes manifest by a symptom or condition from which one learned in medicine could, with reasonable accuracy, diagnose such specific condition, whichever last occurs. The filing of any form or report by the employer or insurance carrier shall not toll the above limitations.
85 O.S. §43A.

For consequential injuries, if the original Form 3 is timely filed, additional disability sought for the consequential injury is also timely filed. Lamson & Sessions and Pacific Employers Insurance Co. v. Doyle, 2002 OK 89, ¶10, 61 P.3d 215.

1.1. Authorized Medical Treatment

The employer's authorization of medical treatment for the injured worker tolls the statute even if the bill for treatment is never paid. American Airlines v. Hickman, 2007 OK 59, 164 P.3d 146.

In Hickman the claimant strained his inguinal region on September 10, 2001. He reported it on July 24, 2002, to his supervisor who sent him to MedCenter where he was diagnosed with a hernia. His Form 3 was filed February 10, 2004.

In the earlier case of Ibarra v. Hitch Farms, 2002 OK 41, 48 P.3d 802, the Supreme Court had considered slightly different statutory language than that in effect at the time of the Hickman facts and concluded that the date of last payment of medical expense was the operative event for tolling the statute. In reaching its decision the Court chose between conflicting COCA cases that had construed the ambiguous language of §43 in effect from 1985 to 2005.

Hickman impliedly overruled the last-payment construction of Ibarra. The July1, 2005 amendment of §43A clarified the previously ambiguous statute, and it identified authorization of treatment as the triggering event for tolling the statute. Even though it was not in effect at the time of the Hickman facts, the July 24, 2002 authorization of treatment at MedCenter tolled the statute because the 2005 amendment "clarified what previously appeared doubtful."

Therefore, for injuries occurring at least as early as July 1, 1985, authorization is the tolling event.

1.2. Post-termination Injury Claims

The Oklahoma Supreme Court has declared the six-month statute of limitation provision in 85 O.S. §43A to be unconstitutional. Ponca Iron & Metal, Inc. v. Wilkinson, 2010 OK 75, __ P.3d __.

Disregard the remainder of this subsection 1.2.

Post-termination injury claims shall be filed within six (6) months of termination of employment, provided that nothing herein shall extend any limitation period set forth in this section. 85 O.S. §43A

This added language to 85 O.S. §43A became effective on July 1, 2005. It modified the prior version of §43A which basically limits the filing of claims to two years. No cases from the Oklahoma Supreme Court or Court of Civil Appeals have have interpreted this new provision.

1.2.1. Addressing Constitutional Issues

The application and interpretation of this amendment has been addressed in the trial courts and on appeal to the court en banc. All of the cases known to this author involve a pre-termination injury followed by firing of the employee or his resignation unaware that he had truncated his time for filing a Form 3. The unconstitutionality (denial of equal protection) of the statutory language was not raised in any of these cases, and the issue could not be considered on appeal.

[T]he record clearly shows the question of the constitutionality of the statute was not presented to the Workers' Compensation Court trial tribunal and no reference appears in the record on appeal. Therefore we will not consider such question on appeal.
Johnson v. City of Woodward, 2001 OK 85, 38 P.3d 218

1.2.2. Approach to Analysis

There are three questions raised in evaluating the issue:

  1. Does the six-month limitation apply only to injuries that occur after termination?
  2. Does the two-year limitation unalterably accrue for injuries occurring before termination?
  3. Is the limitation constitutional?

Question #1 at first appears nonsensical. How can an injury arise after termination of the employment relationship? Interestingly, Oklahoma recognizes such injuries because they arise from the "employment," not from the fact that the worker is "on the clock."

Two weeks after a worker quit his job for a drilling company, he returned to the drilling site to get his final paycheck. In a scuffle started by his former co-workers, he was injured in a fall. The claim was held compensable. Cyrus v. Vierson & Cochran, Inc., 1981 OK CIV APP 40, 631 P.2d 1349; citing Solo Cup Company v. Pate, 1974 OK 131, 528 P.2d 300. He was injured after termination of his employment, and such claims would thus fit the criteria of "post-termination injury claims." A worker so injured would have six months to file a claim. This approach has been adopted by the COCA, Division I, in the case of Ponca Iron & Metal v. Wilkinson, __ OK CIV APP __, __ P.3d __. However, it was disregarded by the COCA, Division III, in Campbell Specialty Co. v. Hacker, __ OK CIV APP __, __ P.3d __. Both of these cases have been accepted for review by the Supreme Court.

Another type of post-termination injury might be a claim for asbestosis, silicosis or nuclear radiation under 85 O.S. §43A. The statute of limitations begins to run from the manifestation of the injury. There is no injury until it becomes symptomatic and these injuries are therefore "post-termination injuries." Likewise, a claim for injury due to hepatitis C exposure is not barred by the statute of limitations until two years after manifestation. Deaconess Hospital v. Ledbetter, 2002 OK CIV APP 29, 41 P.3d 1050.

Thus there are two known types of injury that occur after termination. By simply interpreting the plain language of the statute, an appellate court could conclude that workers injured pre-termination would have a two year statute of limitations, and those injured after termination have a shortened six month limitation. This would be consistent with the rule of judicial construction to give meaning, where possible, to the entire statute without invalidating any part of the statute.

The employers' argument has generally been that termination of the employment agreement triggers a six month filing period and carves down the accrued two-year limitation of the preceding statutory language. They argue use of the word "claim" commonly refers to the Form 3, Employees First Notice of Injury, that initiates the claim process and tolls the statute of limitations for work injuries when it is filed.

However, the term "claim" is not defined in the Workers' Compensation Act, and its use in §43A is itself imprecise. The American Heritage Dictionary of the English Language lists the following definition: claim (n): 1. A demand for something as rightful and due [the Form 3], or; 2. A basis for demanding something, a title or right [the occurrence of injury]. When addressing the issue of claim preclusion, Justice Opala stated:

Defining the term "claim" is the most difficult aspect of applying claim preclusion. In Retherford, we defined claim as: "a legal concept which has no separate existence in the natural order of things. It is what the makers of legal policy, the Legislature and the courts say it is. It exists to satisfy the needs of plaintiffs for a means of redress, of defendants for a conceptual context within which to defend an accusation, and of the courts for a framework within which to administer justice."
Miller v. Miller, 1998 OK 24, 956 P.2d 887.

Retherford actually analyzed the term "cause of action," not "claim," holding:

A cause of action is a legal concept which has no separate existence in the natural order of things. It is what the makers of legal policy, the Legislature and the courts, say it is. It exists to satisfy the needs of plaintiffs for a means of redress, of defendants for a conceptual context within which to defend an accusation, and of the courts for a framework within which to administer justice.

Courts, including this one, have at different times, with or without applying labels, used different definitions for a "cause of action". It has been defined by reference to the right or interest infringed upon. See Stone v. Case, 34 Okl. 5, 124 P. 960 (1912). This is the oldest definition of a cause of action and developed at the common law as a result of the process of recognizing new rights and creating new causes of action to protect those rights. California, both by statute and case law, still adheres to the concept that separate causes of action result from the infringement of different rights, i.e., causes of action for injuries to person and property are separate. See Holmes v. David H. Bricker, 70 Cal.2d 786, 76 Cal. Rptr. 431, 452 P.2d 647 (1969).

In more recent times, causes of action have been delineated by reference to the transaction, occurrence or wrongful act from which the litigation arises. Thus evolved the general rule as stated in Greater Oklahoma City Amusements, Inc. v. Moyer, supra, and rephrased in Lowder v. Oklahoma Farm Bureau Mutual Insurance Company, supra, that, "a single wrong gives rise to one cause of action for which only one suit may be maintained to recover all damages which had then accrued because of the commission of such wrong, however numerous the elements or items of damage resulting therefrom." A less accepted position taken by some legal scholars is that a cause of action should be defined [572 P.2d 969] exclusively by reference to convenience in the efficient administration of justice. Clark, Hornbook on Code Pleading, 137 (2d Ed. 1947).
Retherford v. Halliburton Co., 1977 OK 178, 572 P.2d 966.

Miller therefore treats the two terms as synonymous, and in workers' compensation "claim" is closer in definition to the rights that arise from the injury than to the filing of the Form 3.

What did the legislature mean when it used the word "claim?" Did it mean the date of injury or the date of filing the Form 3? Only by interpreting "post-termination injury claims" to apply to injuries occurring after the firing, quitting, retiring or other termination of the employee can the conficts by harmoniously reconciled.

Question #2 asks whether the statute of limitations can be reduced from two years to six months by the employees voluntary or forced termination of employment. It has long been the law in Oklahoma that "the rights of both employee and employer become fixed by law at the time of the injury." Knott v. Halliburton Services, 1988 OK 29. 752 P.2d 812; Spann v. General Motors Corp., 1991 OK CIV APP 36, 813 P.2d 541. It would be anomalous to think that an injured worker who has two years to file a claim might suddenly and unknowingly (through no fault of his own due to being fired without cause) be subject to a six months statute of limitations.

Question #3 presents an issue that is usually difficult to frame in the trial court. Constitutional questions must be raised by one of the parties. Johnson, supra. Does the six-month provision constitute a denial of equal protection by the creation of a special class of workers who are not treated the same as others under like circumstances and like conditions, enjoying the same benefits and privileges as well as the same liabilities? Nordlinger v. Hann, 505 U.S. 1, 112 S.Ct. 2326. Is the classification arbitrary and capricious or does it bear some reasonable or rational relationship to a permissible public policy or goal? Rivas v. Parkland Manor, 2000 OK 68, 12 P.3d 452; Oklahoma Constitution, Art. 5, § 59.

1.2.3. Extra-Statutory Forfeiture of Benefits

Absent very limited circumstances, none of which apply here, the Workers' Compensation Act, 85 O.S. 2001 §11, mandates that employers subject to the act "shall pay" compensation to an employee for an accidental on-the-job injury. The statute does not provide that the requirement to disburse compensation terminates upon the employee's dismissal and we may not interpret it to do so. Otherwise, we would create an extra-statutory forfeiture of benefits in the face of the Legislature's clear prohibition in 85 O.S. 2001 §5 against an employee's discharge for filing a compensation claim. Our statutory structure mandating that employers not be allowed to avoid compensating their employees for their on-the-job injuries through termination, combined with the remedial nature of the statutes and Oklahoma's well-settled jurisprudence that the statutes should be construed in favor of the workers they are intended to benefit, necessitates that we recognize Abbott's right of recovery.
B. E. & K. Construction v. Abbott, 2002 OK 75, 59 P.3d 38

1.3. Manifestation of Injury

Injuries diagnosed as silicosis, asbestosis or nuclear radiation are an exception to the two-year limitation from the date of last exposure rule for occupational diseases. Claims are barred two years after the manifestation of injury or date of last exposure, whichever is the later date.

Mesothelioma, a cancerous condition caused by exposure to asbestos, does not get the benefit of the extended period of the manifestation rule. Fautheree v. McCaffrey, 2006 OK CIV APP 94, 141 P.3d 570; Zinc Corporation of America v. Reeder, 2007 OK CIV APP 66, 164 P.3d 1132.

Manifestation rule does not apply to single event injuries. McDonald v. Time-DC, Inc., 1989 OK 76, 773 P.2d 1252

1.4. Adding Body Parts

Where, as here, on the date of last exposure to cumulative trauma the claimant is aware of pain in several body parts and elects when he files his Form 3 to schedule some, but not all, of the affected areas, he cannot be later heard to claim the injury as after manifested. The claimant's silence about known pain possesses the potential for delayed or foregone treatment which would facilitate a more timely re-entry into the work force. Since pain is an indicia of injury and the claimant, as the injured party, is in the best position to initially assess the same, he/she must bring the claim for such injury (when it is caused by cumulative trauma) within the two-year statutory limitation period or face assertion of the statutory time-bar by the employer.
Sneed v. McDonnell Douglas, 1999 OK 84, 991 P.2d 1001

1.5. Adding Respondents

For co-employers and principal employers with secondary liability, "the §43 time bar must be viewed as being co-extensive with that which runs against the immediate employer." Wilsey, Bennett Co. v. Grant, 1981 OK 68, 632 P.2d 382 (a 5-4 decision overturning Lane Construction & Plumbing Co. v. Green which held the limitation period does not begin to run against the principal employer until the claimant has discovered that the immediate employer is uninsured because the principal employer's liability is not established until that discovery is made); Banks v. Texhoma Temporary Services, Inc., 1996 OK CIV APP 70, 924 P.2d 784.

2. Failure to Prosecute a Claim (§43B)

When a claim for compensation has been filed with the Administrator as herein provided, unless the claimant shall in good faith request a hearing and final determination thereon within three (3) years from the date of filing thereof or within three (3) years from the date of last payment of compensation or wages in lieu thereof, same shall be barred as the basis of any claim for compensation under the Workers' Compensation Act and shall be dismissed by the Court for want of prosecution, which action shall operate as a final adjudication of the right to claim compensation thereunder.
85 O.S. §43B.

The statute in effect at the time of the filing governs the claim's substantive law. It is unaffected by subsequent amendments. Although § 43(B)appears to bear some characteristics of a statute of limitations, it is not because it determines substantive rights and liabilities of the parties which attach after the claim's filing. Cole v. Silverado Foods, Inc., 2003 OK 81, 78 P.3d 542.

This section is neither statute of limitations nor statute of repose, but a "time limit that conditions the exercise of a right." For discussion, see Cole v. Silverado Foods, Inc., supra, footnotes 23, 24.

A claim will be barred by §43(B) when an injured worker does not, within the limitations period, file in good faith a Form 9 request for a hearing and final determination of his or her claim, unless a claimant falls within an express exception contained in the enactment, or shows acts which operate to toll or arrest the statutory bar.
Key Energy Services, Inc. v. Minyard, 2007 OK 99, ¶11, 173 P.3d 1198

The Oklahoma Supreme Court held in Bowling v. Blackwell Zinc Company, 1959 OK 262, 347 P.2d 1022, "[i]t is well settled that the furnishing of medical treatment to claimant by employer in connection with the injury for which claim was filed is the equivalent of 'payment of compensation,' and is sufficient to toll the statute." See also Rodriquez v. Johnston's Port 33, 2007 OK CIV APP 80, 168 P.3d 253.

Filing a Form 9 that does not request benefits (changing wage rate, attaching medical reports or hospital records) does not toll the statute of limitations under §43B. Ellington v. Horowitz Enterprises, 2003 OK 37, 68 P.3d 983.

Absent a tolling event "the bar of the statute is demonstrated when any five-year [or three-year] period passes after filing a claim in which there has not been a good-faith effort to receive a hearing and final determination." Matter of Death of Hendricks, 1991 OK 52, 812 P.2d 1361. When compensability of a body part is reserved for future hearing, the §43B period of limitations applies and may be raised to bar further benefits under the claim. Ruzika v. Rent City of Altus, 1997 OK CIV APP 17, 939 P.2d 23; .

Multiple Injury Trust Fund. The time limitations of this section apply to MITF cases, and bar recovery when a request for hearing and final determination occurs more than three years (or five years if last injury occurred before 7-1-2005) after the filing of the latest injury claim or after the last payment of compensation, whichever is later. Multiple Injury Trust Fund v. Wade, 2008 OK 15, 180 P.3d 1205.

3. Reopen Due to Change of Condition (§43C)

The jurisdiction of the Court to reopen any cause upon an application based upon a change in condition for the worse shall extend for three (3) years from the date of the last order, and unless filed within said period of time, shall be forever barred. An order denying an application to reopen a claim shall not extend the period of the time set out herein for reopening the case. [Emphasis added.]
85 O.S. §43C

In Arrow Tool & Gauge v. Mead, 2000 OK 86, 16 P.3d 1120, 1126, the Supreme Court held "an order qualifies as 'last order' within the meaning of §43(C) only if it substantially affects the range of monetary, medical or rehabilitative benefits conferred by the Workers' Compensation Law."

Tolling the limitation period of 85 O.S. §43(C) by timely reopening a claim for one adjudicated body part does not toll the limitations for other adjudicated body parts. Shapiro v. City Beverage Co. LLC, 2010 OK CIV APP 88, __ P.3d __.

Last orders that start the clock on the statute of limitations include orders for permanent partial disability, Fleming v. Owens Illinois, Inc., 2003 OK CIV APP 52, 71 P.3d 51; vocational rehabilitation, Arrow Tool, supra; order for payment of medical expense incurred prior to final award, Gratzer v. Happy Foods, 2001 OK CIV APP 44, 24 P.3d 373; order modifying prior continuing medical order by extending the duration of the order, Jackson v. Cyclo LP Gas, Inc., 2005 OK CIV APP 64, 120 P.3d 888.

Not last orders. Claimant's motion to reopen after a last order for PPD and continuing medical maintenance was denied in Fleming v. Owens Illinois, Inc., 2003 OK CIV APP 52, 71 P.3d 51. Fleming asserted that a court order for payment of a prescription bill under the continuing medical award tolled the limitations period under Arrow, and his reopen motion was therefore timely. This argument was rejected by the COCA which held that the order "merely reinforced or clarified the earlier order," and did not substantially affect the range of benefits conferred by the CMM order.

Likewise, Murphy v. Paragon Industries, Inc., Case No. 105,558, unpublished opinion from Tulsa Division II of COCA, holds that changing the physician named in a CMM order does not substantially affect benefits and therefore is not a last order.

An order allowing claimant's attorney to withdraw is not a "last order." Herman Brothers v. Huffman, 2001 OK CIV APP 61, 23 P.3d 315.


"For determining the length of the statute of limitations, the governing law is that which was in effect at the time the claimant’s condition underwent a change, and not the law in effect at the time of the injury or the law in force at the time of the original award [last order]." Thomas v. University Village Retirement Centers, 2005 OK CIV APP 103, 125 P.3d 692; Arrow Tool & Gauge v. Mead, 2000 OK 86, 16 P.3d 1120, 1122-23.

Claimant has the burden of presenting evidence of the date of his COCW when SOL is an issue. AIM Co. Inc. v. Burns, COCA, Div II, Case No. 103,119 (unpublished).

3.1. After-Manifested Injury

Where, as here, on the date of last exposure to cumulative trauma the claimant is aware of pain in several body parts and elects when he files his Form 3 to schedule some, but not all, of the affected areas, he cannot be later heard to claim the injury as after manifested. The claimant's silence about known pain possesses the potential for delayed or foregone treatment which would facilitate a more timely re-entry into the work force. Since pain is an indicia of injury and the claimant, as the injured party, is in the best position to initially assess the same, he/she must bring the claim for such injury (when it is caused by cumulative trauma) within the two-year statutory limitation period or face assertion of the statutory time-bar by the employer.
Sneed v. McDonnell Douglas, 1999 OK 84, ¶14, 991 P.2d 1001.

After-manifested injury refers to an injury that is unknown to the claimant at the time the Form 3 claim is filed. When a trauma-induced condition manifests itself after filing of the Form 3, §43C sets the time limitation for notifying the employer of the injury by amending the Form 3 or requesting a reopen of the claim. See Benning v. Pennwell Pub. Co., 1994 OK 113, 885 P.2d 652. See also, Sooner State Optical, Inc. v. Blackburn, 2006 OK CIV APP 98, 141 P.3d 577.

3.2. Res Judicata

Generally, every injury from a cumulative trauma which is known to a Claimant, and which accrues on the same date, is deemed to be "at issue" when the issue of permanent disability is tried. Brown v. OXY USA, Inc., 1993 OK CIV APP 63, ¶ 14, 854 P.2d 378, 380. Thus, a claimant who is moving to reopen may not present injuries to body parts that were not adjudicated in the original proceeding; rather, a motion to reopen is limited to seeking benefits for a condition that is "after-manifested" and has progressed since the adjudication of permanent disability. See University of Okla. v. Steinberg, 2001 OK CIV APP 91, ¶ 8, 29 P.3d 618, 620. Consequently, all injuries from a cumulative trauma which accrue on the same day must be considered as one overall injury. See Rhea v. Southwest Cupid, 1998 OK CIV APP 97, ¶ 13, 969 P.2d 1000, 1003.

A claimant is entitled to recover for the worsened condition of an injury or body part which is expressly the subject of a previously adjudicated disability. Tinsley v. Goldenstern and Stolper, 1960 OK 143, ¶ 4, 353 P.2d 6,8. Res judicata only bars relitigation of a claim that was or could have been litigated in a previous proceeding. A compensable change in condition "may be established when a pathology, not fully ascertainable before in terms of its relation to, and effect upon, compensable disability, is shown to have manifested its presence and become detectable through a process of progressive developments occurring subsequent to the last prior order or award." Wade Lahar Constr. Co. v. Howell, 1962 OK 237, ¶ 9, 376 P.2d 221, 224.
Sooner State Optical, Inc. v. Blackburn, 2006 OK CIV APP 98, ¶11,12, 141 P.3d 577

4. Tolling the Statute

Tolling is not an equitable concept, but one recognized as a legitimate part of statutory workers' compensation law. Therefore, worker is entitled to present evidence of employer's actions, whether by conscious recognition of its liability or by some affirmative act of concealment or misrepresentation of liability, in support of his tolling quest. Thompson v. Anchor Glass Container Corp., 2003 OK 39, 73 P.3d 835.

Employer's act of procuring a medical examination to be used at trial does not toll the statute of limitations. Smedley v. State Industrial Court, 1977 OK 55, 562 P.2d 847; Key Energy Services, Inc. v. Minyard, 2007 OK 99, 173 P.3d 1198 (employer's acquiescence or agreement to a court appointed IME is not an employer procured medical examination within the Smedley holding). The specific holding of Minyard finds that "because the workers' compensation court ordered an independent medical examination within the statutory period of §43B, the period was tolled." Minyard @ ¶9. Minyard's failure to request a hearing (Form 9) was the result of judicial delay preventing him from meeting the time restrictions of §43B. Justice Kauger thoroughly discusses how employer's acts amounting to conscious recognition of liability may toll the time limitations.

Arvinmeritor v. Redd, 2008 OK 72, 192 P.3d 1261 (appointment of IME by mutual agreement of the parties tolls the statute of limitations allowing claimant to amend Form 3 and add body part).

The authorized treatment of Claimant's left arm pain due to cumulative trauma injury, although later attributed to a discrete 2004 injury, tolled the running of the statute of limitations. Gilyard v. Cherokee Building Materials of Oklahoma City, Inc., 2009 OK CIV APP 33, 208 P.3d 479.

The "medical treatment rule" of §43A (and §43B?) does not toll the limitations on reopening claims under 85 O.S. §43C. Lang v. Erlanger Tubular Corp., 2009 OK 17, 206 P.3d 589; Matthews v. General Motors, 2009 OK CIV APP 4, 217 P.3d 152.

"Tolling" is a term of art which refers to the temporary suspension of the statutory time bar for bringing a suit because of either: 1) some "disability" on the part of the plaintiff which prevents that person from commencing the action; or 2) some activity on the part of the defendant forestalling prosecution of the claim against the defendant. Tolling of the time bar in §43 has been allowed where the employer's actions demonstrate a "conscious recognition of liability" for the injury sustained by: 1) the provision of medical treatment; 2) payment for medical treatment; and 3) other acts in conscious recognition of liability. The trial judge has the authority to determine whether circumstances operate to toll the time bar, and we review its determination de novo.
Key Energy Services, Inc. v. Minyard, 2007 OK 99, 173 P.3d 1198

Given [the] unity of liability and immunity between an employer and its workers' compensation insurance carrier, we agree with the courts of the other jurisdictions, and hold that, under §43(A), the payment of benefits by either one of an employer's successive insurers tolls the statute of limitations for commencement of a workers' compensation claim.
Supercuts v. Briggs, 2008 OK CIV APP 48, 184 P.3d 1089.

Tolling has been in the mainstream of workers' compensation jurisprudence since the 1930's. It has been allowed where the employer's actions evince a "conscious recognition of liability" for the injury sustained: (a) by the provision of medical treatment - Smedley v. State Industrial Court, 1977 OK 55, 562 P.2d 847; Hobart Sales and Service v. Harmon, 1962 OK 54, 369 P.2d 628; Oklahoma City v. Hardy, 1958 OK 264, 332 P.2d 13; Bethlehem Supply Co. v. Ambrister, 1957 OK 228, 316 P.2d 588; Wilcox Oil Co. v. Fuqua, 1950 OK 164, 224 P.2d 255, 203 Okl. 391; Domestic Laundry & Dry Cleaning Co. v. Weston, 1947 OK 384, 190 P.2d 460, 200 Okl. 13; Oklahoma Furniture Mfg. Co. v. Nolen Munsingwear, 1933 OK 305, 23 P.2d 381; Atlas Coal Co. v. Corrigan, 1931 OK 31, 296 P. 963, 148 Okl. 36; (b) by payment for medical treatment - California Co. v. State Industrial Court, 1960 OK 80, 350 P.2d 957; Continental Oil Co. v. Wilkerson, 1933 OK 356, 22 P.2d 1004; and (c) by other acts in conscious recognition of liability - Indian Drilling Mud Co. v. McGrew, 1957 OK 115, 311 P.2d 247.
Thompson v. Anchor Glass Container Corp., 2003 OK 39, 73 P.3d 835, fn16.

4.1. Tolling Examples

Mental incompetence. 85 O.S. §106; United Brick & Tile v. Roy, 1960 OK 174, 356 P.2d 107 (even if the incompetence arises after the injury but before expiration of the statutory period).

Minority of worker. 85 O.S. §106.

Payment of medical treatment through health insurance or HMO. Dismang v. Slagle Manufacturing, 1997 OK CIV APP 13, 939 P.2d 31 (absent Employer's knowledge that Claimant was receiving any continued treatment for the job related injury).

Promise of lifetime employment. Sinclair Prairie Oil Co. v. Newport, 1945 OK 199, 159 P.2d 726.

Payment of medical expenses under an order for continuing medical maintenance does not toll the limitations for reopening a claim under 85 O.S. §43C. Pickett v. Dept. of Human Services, 1996 OK CIV APP 142, 932 P.2d 543.

Filing a Form 9 that does not request benefits (changing wage rate, attaching medical reports or hospital records) does not toll the statute of limitations under §43B. Ellington v. Horowitz Enterprises, 2003 OK 37, 68 P.3d 983.

5. Payment of Medical Expenses

Statute of limitations for medical services expires three years after the date of the last services provided for treatment of the medical condition or three years after the date the condition is determined to be compensable.

The three year limitations period provided in 12 O.S. §95(2) applies to a medical provider's Form 19 claim for payment. Fortenbacher v. Guardsmark, Inc., 1993 OK CIV APP 489, 867 P.2d 487. The limitations period does not begin to run until all elements are present to pursue a request for payment to a successful conclusion. Chumley v. Climate Master, Inc., 1999 OK CIV APP 34, 979 P.2d 759, 761. "It is only after a claim/notice has been filed, Workers' Compensation Court jurisdiction has been assumed, and an adjudication has been made that the injury was work-related, that a medical care provider may seek in the Workers' Compensation Court reimbursement for services rendered." Romero v. Workers' Compensation Court, 1993 OK CIV APP 150, 863 P.2d 1251, 1254 (Okla. 1993).
Roberts v. The University of Iowa Hospitals and Clinics, 2003 OK 33, 66 P.3d 453

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