PepsiCo, Inc. v. Choate , 802 P.2d 29 ( 1990 )

ORDER

HARGRAVE, Chief Justice.

The facts in this workers’ compensation case are not disputed. Claimant alleged a lower back injury occurred on October 5, 1983, after the truck he was driving bottomed out on a highway under construction. He last received authorized medical treatment and compensation on October 26, 1983. His claim for benefits was filed on March 26, 1986. The trial tribunal and the appellate panel rejected PepsiCo’s statute of limitations defense. PepsiCo was held responsible as the guarantor of the workers’ compensation liabilities of its wholly-owned subsidiary, Lee Way Motor Freight, claimant’s now defunct employer.

PepsiCo argued that the claim was barred by the one-year statute of limitations which was then in effect for single event injuries. Claimant offered nothing that would toll the statute long enough to justify the March 26, 1986 filing. It was his burden to do so. Armco v. Holcomb, 694 P.2d 937, 939 (Okla.1985).

The voluntary furnishing of medical treatment by Lee Way tolled the running of the statute only during the time treatment was furnished. PepsiCo, Inc. v. Allen, 798 P.2d 608 (Okla.1990). Therefore, when treatment ended on October 26, 1983, claimant had one year to file his claim.

Additionally, the record contains no form 2, which would have tolled the statute prior to the 1985 amendment. See Knott v. Halliburton Services, 752 P.2d 812 (Okla.1988). Nor are we persuaded by claimant’s argument that PepsiCo could not assert the limitations defense which was available to Lee Way. See PepsiCo, Inc. v. Alexander, 798 P.2d 609 (Okla.1990).

The claim for compensation for this injury was not timely filed. The orders of the trial tribunal and the appellate panel of the Workers’ Compensation Court are therefore vacated and the cause is remanded with directions to deny the claim.

OPALA, V.C.J., and HODGES, LAVENDER, SIMMS, DOOLIN and SUMMERS, JJ., concur. ALMA WILSON, J„ dissents. KAUGER, J., recused.