Allen v. Russell
| Decision Date | 21 July 1970 |
| Docket Number | No. 43719,43719 |
| Citation | 473 P.2d 228 |
| Parties | W. B. ALLEN and Tri-State Insurance Company, Petitioners, v. Vernon RUSSELL and the State Industrial Court, Respondents. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court
In a cause before the State Industrial Court, where previous award has been made for temporary total disability, and the action before the court is to determine the extent of permanent disability, if any, it is unnecessary for the claimant to prove a change in condition.
Original proceeding to review an award of The State Industrial Court; Keith Cooper, Trial Judge.
Original proceeding to review an order of the State Industrial Court, sitting en banc, affirming an award of the trial judge allowing claimant total permanent compensation for a heart disability. Award sustained.
Robert E. Shelton, Robert W. Pittman, Savage, Gibson, Benefield & Shelton, Oklahoma City, for petitioners.
J. Clark Russell, Oklahoma City, G. T. Blankenship, Atty. Gen., for respondents.
There is involved here for review an award by a trial judge of the State Industrial Court, affirmed by the State Industrial Court, sitting en banc, allowing the respondent, Vernon Russell, claimant below, permanent total disability for a heart disability. Parties will be referred to as they appeared before the State Industrial Court.
Claimant was employed by the respondent as a truck driver during the month of June, 1968. During a period of several days prior to June 13, 1968, claimant had been driving a truck almost continuously, without sufficient rest or sleep. On June 13, 1968, he sustained an attack at his home. He was transported by ambulance to a hospital. His disability was diagnosed as a myocardial infarction of the heart.
It is admitted that the claimant sustained a heart attack during the course of his hazardous employment as a truck driver while working for respondent.
The State Industrial Court on February 11, 1969, entered an order allowing the claimant temporary total compensation and requiring the respondent to furnish claimant with medical treatment. Respondent complied with the order, paid claimant's medical expenses and temporary compensation.
Claimant on May 1, 1969, filed a motion for a further hearing of the case. On June 18, 1969, the trial judge held a hearing for the purpose of determining the amount of claimant's permanent disability. On July 1, 1969, the court entered an award allowing the claimant total permanent compensation for 500 weeks less the amount paid as temporary compensation. The court held that claimant's temporary disability ended on April 26, 1969.
Respondent contends that the award is errorneous in that there is no evidence establishing a change in claimant's condition on April 26, 1969, citing Warden-Pullen Coal Co. v. Cain, 188 Okl. 357, 109 P.2d 487, and State Highway Department v. Rhine, Okl., 411 P.2d 548. The cases cited are not applicable to the facts presented here. In each of the cited cases claimant had secured an award for permanent partial disability and at a second hearing was seeking an increase in the amount of permanent disability because of a change of condition for the worse, while in the present case an award had been entered for only temporary total disability, and claimant is here seeking an award for permanent disability after the period of temporary disability has ended.
We have held that where the previous award is for temporary total disability only, and the action before the court is to determine the amount of permanent partial disability, if any, it is unnecessary for claimant to establish a change of condition. Croxton & Bucklin v. Buchanan, 170 Okl. 170, 39 P.2d 91; Interstate Window Glass Co. v. Candler, 166 Okl. 59, 26 P.2d 198.
Respondent also contends that the award is not sustained by the evidence and is contrary to law.
Claimant testified: He has not returned to work since his heart attack on June 11, 1968, and is unable to work. He continues to sustain chest pains and takes nitroglycerin pills when the pain occurs. When he tries to do anything he has chest pains.
Dr. P examined the claimant on September 20, 1968, and again on March 13, 1969. His written report dated April 26, 1969, was submitted in evidence by the claimant. In his report dated April 26, 1969, Dr. P states:
'Based upon the history presented by this patient, review of the records from the office of Dr. Bledsoe and from the Veteran's Hospital, physical examination and laboratory studies, on two occasions, it is my opinion that Mr. Russell did, on or about June 11, 1968, develop an acute myocardial infarction. The myocardial infarction subsequently was complicated by a complete heart block. Later, as a result of the infarction and the heart block, he developed pulmonary emboli and a bilateral pleural effusion. He was successfully treated for these conditions at the Veteran's Hospital and by his local physician, Dr. Bledsoe, and at this time the condition appears to be at least the acute phase of it, under control.
History would indicate further, and it would be my opinion, that the myocardial...
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