dissenting:
¶44 I agree with the lead opinion that Vigos initially invoked the jurisdiction of the Commission when his employer and his physician notified the Commission of Vigos’s accident. However, I disagree with the lead opinion that the Commission thereafter had continuing jurisdiction without any time limit and without Vigos taking any other action. The lead opinion overlooks the six-year statute of limitations contained in section 35-1-99(3), which expressly terminates the continuing jurisdiction of the Commission provided for in section 35-1-78 unless the employee files an application for a hearing on his claim for permanent total disability benefits within six years.
¶ 45 In chapter 116, Laws of Utah 1988, the legislature made extensive amendments to the Workers’ Compensation Act. Section 35-1-99(1) was amended to provide:
If any employee claiming to have suffered an industrial accident in the service of his employer fails to give written notice within 120 calendar days to his employer or the Commission of the time and place where the accident and injury occurred, and of the nature of the accident and injury, the employee’s claim for benefits under this chapter is wholly barred.... Receipt of written notice is presumed if the employer complies with the terms of section 35-1-97 by filing with the Commission an accident report, or if the employer or its insurance carrier pays disability or medical benefits to or on behalf of the injured employee.
The lead opinion correctly concludes that Vigos complied with that requirement.
¶46 A new subsection (2) was added which was the subject of the dispute in Brown & Root Industrial Service v. Industrial Commission, 947 P.2d 671 (Utah 1997). Subsection (2) provides that in nonpermanent total disability cases, an employee’s medical benefit entitlement, which up until the time of that amendment had no time limit, ceased if the employee did not incur and submit for payment any expense for a period of three consecutive years. We observed that this amendment was apparently in response to our decision in Kennecott Copper Corp. v. Industrial Commission, 597 P.2d 875 (Utah 1979), where we held that an employee’s entitlement to medical expenses continued without any time limit. Subsection (2) is not involved in the instant case.
¶ 47 The 1988 amendments also added subsection (3), which is before us in the instant case. It provides that a claim for compensation for permanent total disability benefits is wholly barred unless an application for hearing is filed with the Commission within six years after the date of the accident. This requirement is in addition to the requirement in subsection (1) to give notice of the accident. Both subsection (2) and subsection (3) appear to be part of an attempt by the legislature to place some limit on the continuing exposure of liability on the part of the employer and its insurer.
¶ 48 To make its intent amply clear, the legislature amended section 35-1-78 to limit the continuing jurisdiction of the Commission to modify or change its former findings and *219orders. So far as is pertinent here, that section was amended to read as follows:
(1) The powers and jurisdiction of the Commission over each case shall be continuing. The Commission, after notice and hearing, may, from time to time modify or change its former findings and orders....
(2)....
(3)(a) This section may not be interpreted as modifying in any respect the statutes of limitations contained in other sections of this chapter or chapter 2, title 35, the Utah Occupational Disease Disability Compensation Act.
(b) The Commission has no power to change the statutes of limitation referred to in subsection (2) in any respect.
¶ 49 It is clear to me that the legislature intended to establish a six-year limit on the filing of an application for a hearing for permanent total disability benefits. The legislature did that in response to Mecham v. Industrial Commission, 692 P.2d, 783, 785 (Utah 1984), in which we held that there was no time limitation for filing a claim for permanent total disability benefits, providing the employer had been given timely notice of the accident and the jurisdiction of the Commission initially invoked. The lead opinion erroneously relies on Utah State Insurance Fund v. Dutson, 646 P.2d 707 (Utah 1982); Utah Apex Mining Co. v. Industrial Commission, 116 Utah 305, 209 P.2d 571 (1949), and other pre-1988 cases as still being controlling law. They are not. The lead opinion makes the 1988 amendment a useless act.
¶ 50 The lead opinion has overlooked and has failed to apply the statute of limitations contained in subsection (3). It has also ignored the 1988 amendment to section 35-1-78 which limits the continuing jurisdiction of the Commission to the periods contained in the statute of limitations in 35-1-99(3). This court in United States Smelting, Refining & Mining Co. v. Nielsen, 19 Utah 2d 239, 430 P.2d 162 (1967), held that the continuing jurisdiction of the Commission provided for in section 35-1-78 did not extend beyond the limitations imposed by the statute of limitations in the Workers’ Compensation Act. That case is controlling here.
¶ 51 In summary, Vigos properly invoked the jurisdiction of the Commission when his accident report was filed by his employer and physician. However, that is not dispositive here as the lead opinion assumes. By virtue of section 35-1-9(3), he was required to do more. If he wanted to obtain total permanent disability benefits, he was required to file an application for a hearing within six years following his accident. He did not do that. Like many cases where a statute of limitations prevents recovery, a harsh result sometimes follows. But, the legislature in its wisdom has balanced the rights of employees against the continuing obligation of employers and their insurers to provide compensation for injured workers and has decided that permanent total disability benefits are not available unless applied for within six years.
¶ 52 The administrative law judge, the Industrial Commission, and the court of appeals correctly applied the 1988 amendments to this ease. I would affirm them.