Thursday, March 12, 2009

Tolling Events Don't Apply to Reopening Claims

In Oklahoma a claimant must diligently pursue a claim for compensation or face the risk of losing his benefits. Statutory time bars for filing, prosecuting and reopening a claim are set out in 85 O.S. §43. The only means to stop a ticking statute-of-limitations clock is by triggering a "tolling" event that restarts it.

The most common tolling event is the payment or authorization of medical treatment. Such an occurrence tolls the statute of limitation for timely filing and for timely prosecution. 85 O.S. §43(A), (B).

In the case of Lang v. Erlanger Tubular Corp., 2009 OK 17, __ P.3d __, the Oklahoma Supreme Court held "the medical treatment rule applies only to the filing of a workers' compensation claim."

Claimant received an award for permanent partial disability and vocational rehabilitation. The last order was entered July 8, 2003 and started the statute of limitations (parties agreed that it was for three years). His condition worsened leading to surgery in October, 2006, which was paid for by the insurance carrier. Later he filed to reopen his claim. Denied by the trial judge, approved by the Court of Appeals, and again denied by the Supreme Court.

This scenario (paid surgery after running of statute) would have been enough to revive the claim if it were a case of failure to file a claim under §43A. That section of the Act has a medical treatment rule imbedded into its language. So does the failure to prosecute section of §43B.

Note: my apologies to my readers who subscribe by email or feed reader; you received a prior draft with an unintelligible title. When I was writing at 5:47am today, I hit the wrong key and sent the post into the blogosphere.

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