Satterfield v. STATE COMPENSATION DEPARTMENT

FORT, J.,

dissenting.

I dissent from that portion of the court’s opinion which holds that under ORS 656.265(4) (a) the burden of proof is upon the employer to show prejudice. The problem is one of statutory construction.

In a workman’s compensation case the burden to prove his claim is, as the court holds, on the claimant. Such has always been the Oregon rule. Larson v. State Ind. Acc. Com., 209 Or 389, 307 P2d 314 (1957). Such is still the rule under the present Act. Coday v. Willamette Tug & Barge, 250 Or 39, 440 P2d 224 (1968). I can find no language in ORS 656.265(4) (a), nor elsewhere in the Act, which, fairly construed, purports to change this burden, as the court does here.

It is helpful in construing the section in question to examine its relevant parts. ORS 656.265 states:

“(1) Notice of an accident resulting in an injury or death shall be given immediately by the work*530man or Ms dependent to the employer, but not later than 30 days after the aeeident. The employer shall acknowledge forthwith receipt of such notice.
CÉ# 3$ & &
“ (4) Failure to give notice as required' by this section bars a claim under ORS 656.001 to 656.794 unless:
“(a) The contributing employer or direct responsibility employer had knowledge of the injury or death, or the department or direct responsibility employer has not been prejudiced by failure to receive the notice; or
“(b) The department or direct responsibility employer has begun payments as required. under ORS 656.001 to 656.794;'or
“(c) The notice is given within one year after the date of the accident and the workman or his beneficiaries establish in a hearing he had good cause for failure to give notice within 30 days after the accident.
C6& # # # * 5?

The first clause of subsection (a), which the majority omits, states that a claim is barred unless “The contributing employer * * * had knowledge of the injury or death * * • *.” Presumably if the burden is on the employer under the second clause, as the court here holds, it is likewise on him under the first. Certainly no reason is advanced which can support construing the statute as placing the burden of proof on one party under the first clause of subsection (a) and on the other party under the second clause of subsection (a). This, then, would require the employer to prove that he did not have such knowledge — a negative. Yet a primary reason advanced by the court in support of shifting the burden to the employer under the second clause is that to do otherwise requires the employe to prove a negative.

*531'll that is not to be the rule, however, the logical alternative is to say that the legislature intended in subsection (a) to place the burden of proof on the employe under the first clause and on the employer under the second clause. I can find nothing in the statute, let alone in subsection (a), to support a construction so gerrymandered that it says the burden of proof is on the employe as to one-lialf of subsection (a) and on the employer on the other, in the absence of a clearly expressed legislative mandate. I do not agree that the general guideline that workmen’s compensation statutes are to be liberally construed in favor of the workman justifies this court to shift the burden of proof from the employe to the employer or to the board under subsection (a).

Finally, it is clear that subsection (c) of OES 656.265(4) places the burden of proof on the claimant to establish he had “good cause for failure to give notice” within the 30-day period.

The court here effectively emasculates this section of the Act — and the burden of the employe thereunder ■ — by first requiring the employer in any case where the notice was not filed within 30 days as required by OES 656.265(1) to demonstrate affirmatively that he has been prejudiced thereby. Only then, it seems to me, would the employe, under the rule here adopted, have any burden to “establish in a hearing he had good cause for failure to give notice within 30 days after the accident” as OES 656.265(4) (c) requires.

Eead together, I am persuaded the legislature said that a workman must file within 30 days of the injury or death unless, under (c), he shows good cause for not doing so, including as a part thereof the obligation to show either that the employer in fact knew of the *532injury, as, for example, by the making of payments mentioned in (4) (b), or has not been prejudiced by the workman’s failure to file within the time provided.

I do not believe that we have the right, however appealing the reasons may be, to adopt a construction of á statute which is clearly at variance with the expressed intention of the legislature.