The five year provision to the workers' compensation law was added in 1953. 85 O.S.Supp. 1953 § 43[ 85-43]; See also Parsons v. State Industrial Court, 372 P.2d 27, 29 (Okla. 1962). Prior to such time there was an unlimited period of time in which a claimant could move to be awarded permanent disability after an award was entered for temporary disability only.
In Matter of Death of Hendricks, 1991 OK 52,812 P.2d 1361, we said the following: The resolution of this contention is pointed to in the early case of Parsons v. State Industrial Court, 372 P.2d 27 (Okla. 1962). There this Court stated claimant's formal written request was made June 30, 1954, which was within five years after the effective date of the limitation provision.
A Form 9 requesting a hearing was filed on these Form 3A's. After this, Sheila Hendrick's counsel notified the State Insurance Fund by letter that her claim was being dismissed, although the record in this case does not contain that correspondence. For purposes of this opinion we leave aside the problem presented by the two different claimants. The resolution of this contention is pointed to in the early case of Parsons v. State Industrial Court, 372 P.2d 27 (Okla. 1962). There this Court stated claimant's formal written request was made June 30, 1954, which was within five years after the effective date of the limitation provision.
" Filing motion for final hearing within five year period establishes good faith in presenting claim under Section 43, although hearing is not held before expiration of the period Parsons v. State Industrial Court, Okla., 372 P.2d 27. The trial court determined from the evidence that a good faith request had been made to set the cause for final adjudication.
We have held that the filing of a motion within the five year period is sufficient to establish good faith in the prosecution of the claim under 85 O.S. 1961 § 43[ 85-43] although no hearing is held until after the expiration of the five year period. Parsons v. State Industrial Court, Okla., 372 P.2d 27. The Industrial Court correctly held that the claim was not barred by the statute of limitations.
On such basis his claim for compensation could have been denied, but by failing to find and state that petitioner sustained an accidental injury, if in fact he did, petitioner would be deprived of the opportunity to later receive compensation should he have a change of condition for the worse. In Parsons v. State Industrial Court, Okla., 372 P.2d 27, 30, we said: "In Skelly Oil Co. v. Goodwin, 158 Okla. 288, 13 P.2d 135, we stated: `Where an order has been made by the commission denying compensation and said order becomes final, the commission acquires jurisdiction to reopen said cause and order compensation paid, upon a showing that there has been a change of condition for the worse due to the original injury since the former order.'"
In the absence of a clear determination of non-compensability claimant cannot be barred from further benefits on a change affecting the varicosities if such change be shown to result from their accidental aggravation. See, Parsons v. State Industrial Court, Okla., 372 P.2d 27, 30; Gleason v. State Industrial Court, supra; Dudley v. Major Construction Company, Okla., 345 P.2d 881, 885. Aside from its lack of support in the record, employer's argument is untenable for quite another reason.
There is hence no basis upon which to rest an order denying compensation. Bowling v. Blackwell Zinc Co., Okla., 357 P.2d 1009; see also Hamilton v. Midwestern Instruments, Inc., Okla., 371 P.2d 484; Parsons v. State Industrial Court, Okla., 372 P.2d 27, 30. Order denying compensation is accordingly vacated and cause remanded for further proceedings not inconsistent with the views herein expressed.
Our past pronouncements clearly militate against such a conclusion. Parsons v. State Industrial Court, Okla., 372 P.2d 27, 28; Gleason v. State Industrial Court, Okla., 371 P.2d 89. There is a marked distinction between the right to institute a claim, and the right to an award for compensation. The law does not undertake to make the right to institute a claim dependent upon the workman's ability to prove the existence of compensable disability.
There is no evidence of any fact during the relevant time period which would raise a fact question to be adjuciated by the trier of fact. [] The resolution of this contention is pointed to in the early case of Parsons v. State Industrial Court, 372 P.2d 27 (Okl. 1962). There this Court stated claimant's formal written request was made June 30, 1954, which was within five years after the effective date of the limitation provision.