Am. Tank Co. v. State Indus. Com

• Decision Date: 17 November 1931
• Docket Number: Case Number: 22661
• Citation: 1931 OK 705,5 P.2d 137,153 Okla. 117
• Parties: AMERICAN TANK CO. et al. v. STATE INDUSTRIAL COM. et al.
• Court: Oklahoma Supreme Court

1931 OK 705

5 P.2d 137

153 Okla. 117

AMERICAN TANK CO. et al. v. STATE INDUSTRIAL COM. et al.

Case Number: 22661

Supreme Court of Oklahoma

Decided: November 17, 1931

Syllabus

¶0 1.Master and Servant--Workmen's Compensation--Award for Permanent Partial Disability to Both Hands.

Under the Workmen's Compensation Act, there is a specific provision for the loss of one hand (subdivision 3, section 7290,C. O. S. 1921, as amended, chapter 61, Session Laws of 1923), and another for the loss of both hands (subdivision 1, section 7290,C. O. S. 1921, as amended), and where it appears the claimant has sustained a permanent partial disability to both hands the award should be based upon subdivision 1, section 7290.Maryland Casualty Co. v. State Industrial Commission, 139 Okla. 302, 282 P. 293.

2. Same.

Where it appears the claimant has sustained a permanent partial disability to both hands, the percentage of loss to each hand, as determined by the Commission, should be added together and divided by two; the quotient will be the percentage of permanent partial disability sustained by claimant for the loss to both hands on the basis of 500 weeks.Oklahoma City v. State Industrial Commission, 147 Okla. 261, 298 P. 577.

3.Same -- Award for Permanent Partial Disability to One Foot.

Where it appears claimant has sustained a permanent partial disability to one member only, the compensation shall be 66 2/3 per centum of the average weekly wages and shall be paid to the employee for the period named in the schedule: for loss of a foot, 150 weeks.Subdivision 3, paragraph 12, sec. 6, ch. 61, Session Laws of 1923.

4.Same--Review of Awards--Sufficiency of Evidence.

"In an action to review an award and judgment of the State Industrial Commission, this court will not review conflicting evidence and determine the weight and value thereof, and where the judgment and award of the Industrial Commission is supported by competent evidence, the same will not be disturbed by this court on review."Nash-Finch Co. v. Harned, 141 Okla. 187, 284 P. 633.

Original proceeding in the Supreme Court by the American Tank Company et al. to review an award of the State Industrial Commission in favor of C. A. Shott.Award affirmed in part, reversed in part, and remanded, with directions.

Keaton, Wells, Johnston & Barnes and B. C. Davidson, for petitioners.

J. L. Gowdy, for respondentC. A. Shott.

CULLISON, J.

¶1 This is an original proceeding before this court to review an award of the State Industrial Commission made and entered July 10, 1931, in favor of the claimant, C. A. Shott.

¶2The claimant was injured August 2, 1930, when a fire under a furnace blew out and inflicted burns upon his head, face, and feet.A hearing was had and the Commission entered its order and award in said cause on July 6, 1931, in favor of claimant.(R. 40, 41, 42)The record further shows that the parties hereto entered into a stipulation by the terms of which claimant had received $ 630 for temporary total disability resulting from said injury, from August 3, 1930, to April 8, 1931.(R. 2.)

¶3 It therefore follows that the question of temporary total disability is eliminated from this discussion.It should also be remembered that claimant on May 2, 1931, filed a motion (which may be designated a claim) in which he says:

"Motion.

"Comes now the claimant, C. A. Shott, and for his motion to have this cause set for hearing for the determination of the extent of disability sustained by this claimant, alleges and states: * * * That claimant herein has suffered disability to both feet and both hands as well as permanent and serious scars upon his hands, neck, face, and head due to the burns received as described herein.That the disability complained of is permanent and the disfigurement described is permanent. * * *"(R. 6.)

No award for left foot was made by the Commission and no contention is raised by either party regarding the same.

¶4 At the close of the hearing, July 6, 1931, the Commission made the following finding of facts, conclusions of law, and order.

"Finding No. 3.

"That as a further result of said injury the claimant has sustained a permanent partial disability of 10 per cent. of the right hand, 10 per cent. of the left hand, and 10 per cent. of the right ankle. * * *"

"ConclusionNo. 2.

"The Commission is of the further opinion: That, under section 7290, par. 1, Compiled Oklahoma Statutes, 1921, as amended by the Session Laws of 1923, the loss of both hands constitutes a permanent total disability, for which compensation is provided under the law for a period of 500 weeks; that under section 7290, subsection 4(should have been subsection 3), for percentage loss of use is provided for by that portion of the number of weeks as provided in the schedule for the loss of a member which the partial loss of use thereof bears to the total loss of use of such member, or loss of use of a hand; that 10 per cent. loss of use of the right hand and 10 per cent. loss of use of the left hand would be equivalent to the 10 per cent. loss of use of both hands, and the claimant is entitled, under the law, to compensation at the rate of $ 18 per week for a period of 50 weeks, or the sum of $ 900, and that under said section above quoted the claimant is entitled to 25 weeks for the l0 per cent. partial permanent disability to his right foot, as above set out, in the sum of $ 450, making a total period of 75 weeks in the aggregate sum of $ 1,350, said compensation to be paid in monthly payments at the rate of $ 18 per week from the 8th day of April, 1931. * * *"

"OrderNo. 3.

"It is also ordered: That within 15 days from this date, the respondent or insurance carrier herein pay said claimant the sum of $ 231 permanent partial compensation from April 8 1931, to July 6, 1931, 12 weeks and 5 days at $ 18 per week, and that they continue said payments thereafter monthly at the rate of $ 18 per week until a total of 75 weeks' compensation has been paid in the total sum of $ 1,350 on account of the ten per cent. loss of use of claimant's right hand, 10 per cent. loss of use of his left hand, and the 10 per cent. loss of use of his right foot by reason of said accidental injury. * * *"

¶5Petitioners bring the case to this court for review.Petitioners assign two errors which they designate as propositions 1 and 2, both of which are in fact contained in the first proposition, which reads as follows (R. 10):

"Error of the Commission in holding that the loss of both hands constitutes permanent total disability for which compensation is provided under the law, for a period of 500 weeks, and that section 7290, subsection 1 expresses the proper basis on which the percentage of loss is to be ascertained."

¶6 There has been much discussion by members of the legal profession as to the number of weeks which should be used as a basis in computing percentage allowed claimants in cases arising under the Workmen's Compensation Law where it appears that claim ant has sustained a permanent partial disability to both hands, or feet, or legs, or eyes.

¶7This court has many times held that: Under the Workmen's Compensation Act, there is a specific provision for the loss of one hand (subdivision 3, section 7290,C. O. S. 1921, as amended) and another for the loss of both hands (subdivision 1. sec. 7290,C. O. S. 1921, as amended).And where it appears the claimant has sustained a permanent partial disability to both hands, the award should be based upon subdivision 1, sec. 6, c. 61, Session Laws 1923, which relates to permanent total disability of the members therein enumerated, which reads, in part:

"In case of total disability adjudged to be permanent, 66 2/3 per centum of the average weekly wages shall be paid to the employee during the continuance of such total disability not exceeding 500 weeks."

SeeMaryland Casualty Co. v. State Industrial Commission, 139 Okla. 302, 282 P. 293;Capital Drilling Co. v. Cole, 143 Okla. 279, 288 P. 473;Oklahoma City v. State Industrial Commission, 147 Okla. 261, 298 P. 577; and many other cases.

¶8This court in determining the number of weeks upon which an award should be based, holds: Where it appears the claimant has sustained a permanent partial disability to both hands, the percentage of loss to each hand, as determined by the Commission, should be added together, and divided by two; the quotient will be the percentage of the permanent partial disability sustained by claimant for the loss to both hands, on the basis of 500 weeks.

¶9 The compensation allowed by the Commission for permanent partial disability sustained by claimant to both hands based on 500 weeks is affirmed.

¶10Petitioners further contend:

"The award is erroneous in that it allows 10 per cent. loss of use of claimant's

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