(dissenting). The majority has determined that although no provision of the Worker’s Disability Compensation Act of 1969 or apposite case law would afford Brenda Girlish relief from her failure to comply with the legislatively established notice requirements, the defendant may nevertheless not have the benefit of the applicable statute of limitations because it provided Ms. Girlish with sickness and accident benefits for a reported case of the flu.
I dissent.
I
The statutory scheme established in the compensation act1 requires an employee in plaintiff’s situ*385ation, one who has suffered an injury that is not an occupational disease,2 to provide his or her employer with notice of injury within three months of its happening and further to file a claim for compensation with respect to that injury within six months of its occurrence. The statute explicitly provides, inter alia, that the six-month period for filing the compensation claim is tolled during the period beginning with timely notice of the happening of the injury or the employer’s acquisition of knowledge of the happening of the accident and continuing until the employer files the required report of the injury with the bureau.
The appeal board’s finding in the case at bar was that Ms. Girlish was barred by failure to give notice.
The majority concedes that the compensation *386act is silent as to whether voluntary payment of sickness and accident benefits tolls the statutory period during which an employee is bound to provide notice of an injury or accident. I believe it is too plain to dispute that the statute, which explicitly provides for tolling of the claim period under prescribed circumstances, lends no support to the majority’s unprecedented decision.3
II
Moreover, I am convinced that an examination of the relevant case law should provide Ms. Girlish with no more comfort than the plain language of the statute does.
I believe the majority makes a fundamental error in losing the distinction between the notice and claim requirements.4 The obligations to give notice of an injury and to file claim for compensation are two entirely separate duties imposed on an injured employee.- Although compliance with both requirements may be accomplished simulta*387neously, it need not be.5 6The majority glosses over this distinction, obviating the analysis that would reveal that even under generally accepted legal principles outside of the compensation act, such as waiver and estoppel, there is no basis for relieving Ms. Girlish of her failure to give notice of injury.
The underlying rationale for tolling the statute of limitations is discussed by Professor Larson.
"When an employer voluntarily makes compensation payments, the period for filing a claim usually dates from the last payment. In many statutes, this rule is written into the claim period section itself; it may also be arrived at by the route of waiver or estoppel. The general idea is that an employee who has been receiving compensation for eleven months cannot reasonably be expected to have made claim during that period, and should not, upon cessation of voluntary payments at the end of the eleventh month, be allowed only one month in which to file his claim. [Emphasis supplied; footnotes omitted.]” 3 Larson, Workmen’s Compensation Law, § 78.43(a), pp 15-111, 15-113.
In other words, the purpose of the "other compensation” provisions as enacted in some statutes and the cases applying waiver or estoppel theory is to both protect employees and prevent employers from relying on the limitations period where the employer’s actions are designed to or could be expected to cause an employee to delay filing a claim.6
This logic does not extend to the requirement that notice of the injury be given.7
*388Since the Michigan notice and claim statute does not provide for tolling where "other compensation” is paid, Ms. Girlish must look to other legal principles. Estoppel and implied waiver have been argued.
The majority apparently declines to find the employer estopped from relying on the notice limitation. See footnote 9 of the majority opinion. Implied waiver is, instead, asserted.
Conduct that will constitute an implied waiver is described in Black’s Law Dictionary (4th ed), p 1752.
"A waiver is implied where one party has pursued such a course of conduct with reference to the other party as to evidence an intention to waive his rights or the advantage to which he may be entitled, or where the conduct pursued is inconsistent with any other honest intention than an intention of such waiver, provided that the other party concerned has been induced by such conduct to act upon the belief that there has been a waiver, and has incurred trouble or expense thereby.”
Waiver is defined as the intentional or voluntary relinquishment of a known right.
It is apparent that, as in the case of estoppel, waiver may be found where a party acts with some knowledge of the facts. There is no basis on the *389facts in the case at bar for finding a waiver.* *****8 To establish a rule tolling the notice period whenever an employer provides sickness and accident benefits is unsupportable.
The facts as found by the Worker’s Compensation Appeal Board are that Ms. Girlish simply did not give notice that she had suffered a back injury within the three-month notice period. Indeed, it was found that Ms. Girlish ceased working due to an attack of influenza, that she filed an insurance claim for sickness and accident benefits for her influenza condition and that she did not apprise the defendant of her back condition until after the sickness and accident benefits were terminated. It is absurd to suggest that the defendant waived receipt of notice of a back injury because it provided benefits to Ms. Girlish for her bout with the flu. An employer could not reasonably expect payment of sickness and accident benefits would cause an employee to refrain from filing a claim due to a back injury where it is unaware such a claim exists. The implied waiver theory cannot logically be applied where an employee fails to give notice of the injury for which compensation is claimed.9
It is unfortunate for Ms. Girlish that her claim for compensation is barred (notwithstanding the majority decision) by failure to comply with the notice provision of the compensation act. The apparent harshness of the notice and claim requirements has, however, been alleviated by numerous *390decisions of this Court.10 Ms. Girlish has simply not complied.
The majority is understandably sympathetic to an injured party who may have missed giving notice by a matter of days. The implications of its opinion, however, are quite disturbing. An employee could conceivably receive benefits for some injury or sickness for an extended period of time and, upon recovery from that condition, give notice and claim compensation for an accident far in the past. The possibility for prejudice is great.
The decision of the appeal board should be affirmed.
Coleman and Fitzgerald, JJ., concurred with Ryan, J.MCLA 418.381; MSA 17.237(381) provides:
"(1) No proceedings for compensation for an injury under this act shall he 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 in case of the death of the *385employee, 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. In a case in which the employer has been given notice of the injury, or has notice or knowledge of the same within 3 months after the happening thereof, but the actual injury, disability or incapacity does not develop or make itself apparent within 6 months after the happening of the injury, but does develop and make itself apparent at some date subsequent to 6 months after the happening of the same, claim for compensation may be made within 3 months after the actual injury, disability or incapacity develops or makes itself apparent to the injured employee, but no such claim shall be valid or effectual for any purpose unless made within 3 years from the date the personal injury was sustained. Any time during which an injured employee shall be prevented by reason of his physical or mental incapacity from making a claim shall not be construed to be any part of the 6 months’ limitation mentioned in this section. In a case in which the employer has been given notice of the happening of the injury or has notice or knowledge of the happening of the accident within 3 months after the happening of the same, and fails, neglects or refuses to report the injury to the bureau as required by the provisions of this act, the statute of limitations shall not run against the claim of the injured employee or his dependents, or in favor of the employer or his insurer, until a report of the injury has been filed with the bureau.”
The appeal board found that plaintiff’s disability resulted from a single event injury.
It is interesting to note, as the majority points out, that the relevant statutes in some states specifically provide for tolling when an employer voluntarily pays "compensation”. No case, however, is cited comparable to the case at bar, applying such a statutory tolling provision against an employer who is totally unaware of the nature of the injury for which the employee is seeking compensation. See Part II, infra.
"Notice of injury — the first step in compensation procedure — is normally given to the employer. The period is comparatively short; it may be 'forthwith’ or 'as soon as practicable,’ or a specified period of a few weeks or months. The purpose is dual: First, to enable the employer to provide immediate medical diagnosis' and treatment with a view to minimizing the seriousness of the injury; and second, to facilitate the earliest possible investigation of the facts surrounding the injury.
"The compensation claim itself, however, is normally filed with the administrative agency. The period is usually one or two years. The purpose is the same as that of any limitations statute: to protect the employer against claims too old to be successfully investigated and defended. [Footnotes omitted.]” 3 Larson, Workmen’s Compensation Law, § 78.20, pp 15-27, 15-28.
See, e.g., Norris v Chrysler Corp, 391 Mich 469; 216 NW2d 783 (1974).
I express no opinion on the applicability of waiver or estoppel theory to the compensation act under some other set of facts.
Indeed Professor Larson reports:
"Payment of compensation tolls the statute only as to the injury for which the payment is intended as compensation; it cannot toll the *388statute as to another injury received in a prior accident. [Footnote omitted.]” 3 Larson, supra, § 78.43(a), p 15-119.
And,
"The concept of medical benefits as payment of compensation does not extend to payment of medical bills understood by the parties to be unrelated to the employment or to medical treatment for a nonoccupational condition subsequent to an accident at work. [Footnotes omitted.]” 3 Larson, supra, § 78.43(b), p 15-130.
Cases cited include ones in which the employer is unaware of the nature of the injury for which compensation is claimed.
The majority suggests that an "unsophisticated employee, possibly on the advice of the employer or union representative, is usually operating on the justifiable belief that the alternative benefits received are the correct benefits”.
Nothing in the record in this case is relied on to suggest that Ms. Girlish was misled by the defendant.
The majority finds, that equity requires the rule announced because an unsophisticated employee may be misled "possibly on the advice of the employer”. I would add to that: "possibly based on the notice given by the employee”.
For example, it has been held that the period for giving notice of claim does not begin to run until the employee has or should have knowledge of the disability. Jordan v Michigan Malleable Iron Co, 363 Mich 256; 109 NW2d 832 (1961); Finch v Ford Motor Co, 321 Mich 469; 32 NW2d 712 (1948).
The requirements are further tempered by Lewis v Chrysler Corp, 394 Mich 360; 230 NW2d 538 (1975), in which we held that the period for giving notice will commence to run only if the employee has discovered or by reasonable diligence could discover that his disability may be work-related.
The appeal board found in the case at bar that the notice period commenced to run for Ms. Girlish on March 10, 1971, the date on which she first sought treatment for her back condition.