(Syllabus.)
Master and Servant — Workmen's Compensation Law — Burden on Claimant to Show Facts Excusing His Failure to Give Statutory Notice of Injuries.
In a cause for compensation under the Workmen's Compensation Act, where the notice as required by the statute (sec. 13358, O. S. 1931) has not been given, the burden is upon the claimant to establish by the evidence (a) some sufficient reason why the required notice should not have been given, or (b) that the insurance carrier or employer, as the case may be, has not been prejudiced by the failure. And where the State Industrial Commission denies compensation for failure of claimant to give the notice required by statute, such denial is equivalent to a negative finding as to conditions (a) and (b), and the order denying compensation will be sustained on review if sustainable by the record.
RILEY, J.
Jim Bennett filed claim on November 23, 1933, for compensation on account of an injury alleged to have occurred August 25, 1933, while claimant was employed by the Highway Construction Company near Caddo, Okla.
It is admitted that claimant failed to give written notice to his employer as required by section 13358, O. S. 1931, and the State Industrial Commission denied compensation for that reason.
The commission made no determination as to whether the evidence was sufficient to excuse the failure of claimant to give written notice, although evidence was adduced upon the issue of employer's actual knowledge of the alleged injury. The claimant did not plead with particularity his case, in so far as notice of the injury was concerned. He is in no position to complain of the respondent's failure in this regard.
The burden in such a case is upon the claimant to establish that the written notice required by statute for some sufficient reason could not have been given, or that the insurance carrier, or employer, as the case may be, has not been prejudiced thereby.
The claimant failed to dicharge this burden satisfactorily to the commission, and the conclusion reached is not without support in the record.
Order sustained.
McNEILL, C. J., OSBORN, V. C. J., and BUSBY, PHELPS, and GIBSON, JJ., concur. BAYLESS, WELCH, and CORN, JJ., absent.