Bashaw Valley Co-operative Creamery Co. v. Industrial Commission

Stevens, J.

The case presents the question whether the right to compensation is barred because application therefor is not filed within two years from the date of injury.

(1) Sec. 102.12 of the Statutes provides that no claim for compensation shall be maintained unless written notice of injury is given the employer within thirty days from the date of injury. The section contains three exceptions to this broad general rule. First, payment of compensation within this thirty-day period “shall be equivalent to the notice herein required.” Second, failure to give any such written notice shall not bar recovery if “within the thirty-day period actual notice of the injury was given to the employer or to any officer or manager of an employer.” Third, if it is found by the commission that in failing to give notice there was no intention to mislead the employer and he was not in fact misled thereby.

Then follows the provision which it is claimed bars applicant’s right to compensation in this case: “Provided, further, that if no such notice is given and no payment of compensation made, within two years from the date of the accident, the right to compensation therefor shall be wholly barred.”

The case turns upon the meaning of the phrase “such notice” as used in the portion of the statute just quoted. When first enacted the workmen’s compensation act did not provide for actual notice, but required written notice in all cases. Under this statute the phrase “such notice” of necessity referred to written notice alone. The appellant employer contends that this phrase still refers to written notice alone, although in 1921 the statute was so amended as to give to actual notice the same force and effect as if notice in writing had been given.

To hold that after the adoption of the amendment of 1921 this phrase still referred to written notice alone, the court must in effect insert the word “written” in the phrase, so that it will read “such written notice.” To determine whether this was the legislative intent we must consider the purpose of the legislature in making the amendment of 1921. This amendment made actual notice as effective for every purpose as written notice, unless it be as to the single question whether the claim is barred by the two-year statute of limitations. The act of 1921 contains no evidence of any legislative intent to make this distinction between actual and written notice. The act of 1921 was so drafted that the legislature made “actual notice” the immediate antecedent of this phrase “such notice.”

The purpose of notice is to inform the employer of the injury so that he may protect his interests by invéstigating the accident and by giving the injured employee such medical or other care as will tend to minimize disability resulting from injury. That purpose is served equally as well by either actual or written notice.

Giving the statute the liberal construction which should always be given to it in order to effect its beneficent purpose of placing the burden of industrial accidents upon those who enjoy the products of industry, rather than upon the injured employees, it must be held that the phrase in question refers to both written and actual notice.

(2) Under the phrase here in question the right to compensation is barred only in those cases where both “no such notice is given and no payment of compensation made within two years from the date of the accident.” If either such notice is given or compensation paid within two years, the right to compensation is not barred. Actual notice having been given within the thirty-day period, the right to compensation was not barred by the failure to make application therefor within two- years from the date of injury.

By the Court. — Judgment affirmed.