Docket No. 28572.
Decided September 20, 1977. Leave to appeal applied for.
Appeal from Workmen's Compensation Appeal Board. Submitted June 21, 1977, at Detroit. (Docket No. 28572.) Decided September 20, 1977. Leave to appeal applied for.
Claim by James T. Washam against Goodyear Tire Rubber Company and Travelers Insurance Company for workmen's compensation. Benefits denied. The Workmen's Compensation Appeal Board affirmed. Claimant appeals by leave granted. Remanded for further proceedings.
Kelman, Loria, Downing, Schneider Simpson (by Robert W. Howes), for plaintiff.
Wilfred F. Curley, for defendant.
Appeal is taken by plaintiff from a Workmen's Compensation Appeal Board (WCAB) decision affirming a referee's denial of benefits. The referee and WCAB found that plaintiff did not give defendant timely notice of the injury as required by MCLA 418.381; MSA 17.237(381). Additionally, the WCAB found "that plaintiff had reasonable grounds for knowledge of disability and by reasonable diligence could have discovered that his disability might be work-related" more than three months prior to the time he notified defendant.
Plaintiff contends that he did not know, or have reason to know, that his injury was work-related. Alternatively, plaintiff claims that he was incapacitated by his injury from giving notice to defendant within the statutorily prescribed period. A result of such incapacity, plaintiff argues, is that the statutory notice period is tolled, and that notice was given within the required time limit after the incapacity was removed.
We find the former claim of error to be without merit. From our review of the record, we conclude that there is sufficient evidence to support the WCAB finding of fact. See Lewis v Chrysler Corp, 394 Mich. 360, 369-370; 230 N.W.2d 538, 543 (1975). This factual determination, being supported by the evidence, is conclusive absent fraud. MCLA 418.861; MSA 17.237(861), Askew v Macomber, 398 Mich. 212; 247 N.W.2d 288 (1976), Barrett v Bohn Aluminum Brass Co, 69 Mich. App. 636; 245 N.W.2d 147 (1976).
Plaintiff's latter claim presents a question of whether mental or physical incapacity of a claimant will toll the statutory period in which notice of the injury must be communicated to the employer. We hold that it does, but whether a claimant is prevented by incapacity from giving the requisite notice is a question of fact.
That question should be resolved in light of the purposes underlying the notice requirement. Notice enables the employer to investigate the circumstances surrounding the injury while they are still readily accessible. It also gives the employer an opportunity to minimize his losses by providing the injured employee with prompt medical attention. Lewis, supra. The validity of the alleged claim may be ascertained by the employer from an assessment of the facts pertaining to the cause of the injury. McBeth v Chrysler Corp, 48 Mich. App. 399; 210 N.W.2d 384 (1973).
The foregoing purposes contemplate that the employer be given notice of the injury as soon after its occurrence as possible. However, it is also anticipated that the notice be accompanied by a sufficient circumstantial description of the event to facilitate the employer's investigation. These factors, in turn, bear upon the assessment of the claimant's communicative capacity.
Notice need not be given directly from the injured employee. The employee may communicate notice to the employer through an intermediary.
It may be argued that the statutory tolling provisions related to mental and physical incapacity are applicable only to the period in which a claim must be filed. However, reason and fairness mandate the result we reach today. Where an employer has no notice or knowledge of an injury and the injured employee cannot communicate notice because of mental or physical incapacity and the absence of alternative means of communication, it would be contrary to the humanitarian and beneficent objectives of the Worker's Disability Compensation Act to conclude that the employee's claim is time barred after three months.
The pertinent statutory language reads as follows:
"No proceedings for compensation for an injury under this act shall be maintained, unless a notice of the injury has been given to the employer within 3 months after the happening thereof and unless the claim for compensation with respect to the injury, which claim may be either oral or in writing, has been made within 6 months after the occurrence of the same; or on the case of the death of the employee, within 12 months after death; or in the event of his physical or mental incapacity, within the first 6 months during which the injured employee is not physically or mentally incapacitated from making a claim." MCLA 418.381(1); MSA 17.237(381)(1).
A claim of incapacity in giving notice was raised by plaintiff before the WCAB. However, no factual determination was made from the evidence. We, therefore, remand for that specific finding. See Steel v Suits News Co, 398 Mich. 171, 177; 247 N.W.2d 284 (1976).
Remanded. We retain jurisdiction.