American Oil & Refining Co. v. Kincannon

• Decision Date: 13 October 1931
• Docket Number: 22190.
• Citation: 3 P.2d 877,154 Okla. 129,1931 OK 596
• Parties: AMERICAN OIL & REFINING CO. et al. v. KINCANNON et al.
• Court: Oklahoma Supreme Court

3 P.2d 877

154 Okla. 129, 1931 OK 596

AMERICAN OIL & REFINING CO. et al. v. KINCANNON et al.

No. 22190.

Supreme Court of Oklahoma

October 13, 1931

Syllabus by the Court.

When sections 7296, 7297 (as amended by Laws 1923, c. 61, § 8) and 7325 (as amended by Laws 1923, c. 61, § 13), C. O. S 1921, are considered together, it must be held that it was the legislative intent that the commission should have a continuing power and jurisdiction to review its award on the ground of a change in condition only, and, except for a change in condition, the award is final and conclusive upon all questions within its jurisdiction unless suit is commenced in this court within thirty days to review the award or decision. And is likewise final and conclusive upon all such questions after such proceedings shall have been commenced and finally determined in this court, except for a change in condition.

When the evidence wholly fails to show such change of condition and affirmatively shows no such change, in a proceeding for additional compensation commenced after such final determination of the former award in this court, the State Industrial Commission is without power or jurisdiction to allow or award additional compensation.

Original proceeding by the American Oil & Refining Company and another to review an award of the State Industrial Commission in favor of J. B. Kincannon, claimant.

Award reversed, and cause remanded with directions.

KORNEGAY J., LESTER, C.J., CLARK, V. C.J., and HEFNER, J., dissenting.

James C. Cheek and Albert L. McRill, both of Oklahoma City, for petitioners.

J Berry King, Atty. Gen., and Robert D. Crowe, Asst. Atty. Gen., for respondents.

RILEY J.

This is an original proceeding in this court to review an award of compensation in favor of respondent J. B. Kincannon and against petitioner.

It appears that on February 25, 1925, respondent sustained an accidental injury growing out of and in the course of his employment with petitioner herein, American Oil & Refining Company. Thereafter on June 19, 1925, he filed his first notice of injury and claim for compensation with the State Industrial Commission, in which the nature and extent of his injury was stated as "crushed second finger and mashed left hand." It was further stated therein that he had "lost second finger from index and use of left hand," and also "finger was amputated and my left hand is useless for life."

Hearing was had upon the claim, and on October 26, 1926, the commission made its findings, No. 2 of which was: "(2) That claimant has lost the index finger of left hand by amputation as a result of said injury, but that he has no permanent disability to the hand or other fingers."

Compensation was awarded fixed at $18 per week for a period of thirty-five weeks, or $630. Thereafter on November 4, 1926, the attention of the commission having been called to the error in its findings and award, wherein it had found that the claimant had lost the index finger of his left hand, whereas the claim and evidence showed the loss of the second finger, finding No. 2 was stricken, and the following finding substituted therefor: "That as a result of said accidental injury the claimant had lost the middle finger of left hand by amputation and that he has no permanent disability to the hand or other fingers."

Compensation was accordingly reduced from thirty-five to thirty weeks, at $18 per week, or from $630 to $540. Notice of the original award was sent to the parties on October 20, 1926, and the amended or corrected award on November 4, 1926.

Thereafter, and more than thirty days after the notice of original award was sent, Kincannon commenced proceedings in this court to review the award. The proceeding was dismissed because not commenced within thirty days of the date of notice of the original award. 126 Okl. 84, 258 P. 741, 742. In the opinion it was said: "The petitioner herein complains only of that part of the order of the commission wherein they find 'that he has no permanent disability to the hand or other fingers,' and his brief filed in support thereof admits that it was the second finger on the left hand that was amputated and makes no complaint of the order of November 4, 1926, changing the finding of fact to show that it was the second finger lost instead of the index finger, or the change in the amount of the compensation allowed." And: "The action which the commission took in thus making the record speak the truth could in no wise injure or in any manner impair or affect the right of the petitioner, since he seeks a review only of that part of the award that denied compensation for disability to the hand and other finger."

On August 18, 1927, upon consideration of the mandate from this court, the commission ordered same spread of record and further ordered: "* * * That the order heretofore made in this cause on the 16th day of October, 1926, as amended on the 4th day of November, 1926, be and the same is hereby remains in full force and effect."

Thereafter on January 24, 1931, the commission issued notice of hearing, stating: "A hearing in this case has been requested by some of the parties interested on the following grounds. Motion of claimant to determine extent of disability." This notice set the hearing for February 6, 1931, and contained a notation thereon as follows: "Copy of motion to Insurance Carrier."

Hearing was had pursuant to the notice, and on March 2, 1931, the commission made its finding as to injury having been sustained by accident arising out of and in the course of his employment, the injury consisting of crushed finger and mashed left hand, and that the average daily wage of claimant was $6, and: "(3) That the claimant as result of said accidental injury has lost the index finger of his left hand as result of said injury, and that he has permanent disability to the left hand."

Findings 4 and 5 were as to the facts of the former award having been made and corrected and as to the appeal therefrom by claimant and the dismissal of said appeal and the order made upon the return of the mandate affirming the former award in the sum of $540.

The sixth finding is: "(6) That on motion of claimant, to reopen his case, a further hearing was granted, and from medical testimony presented and the Commission finds from said testimony that the claimant has a 50 per cent. permanent partial disability to his left hand by reason of the afore-mentioned accidental injury."

The order and award concludes: "The Commission is of the opinion: That upon consideration of the foregoing facts, that the claimant is entitled to permanent partial disability to his left hand of fifty per cent, computed at the rate of $18.00, for 100 weeks amounts to $1800.00, from which is deducted the former award of $540.00, leaves a balance due claimant of $1260.00, to be paid in lump sum.

It is therefore ordered, that within fifteen days from this date, the respondent or insurance carrier, pay the claimant herein, the sum of $1260.00, the balance due after deducting $540.00, heretofore paid on a former order, from 50 per cent. disability to his left hand amounting to $1800.00, as result of aforementioned accidental injury."

To review this finding and award this proceeding was commenced.

The record does not contain any motion or other application filed by the claimant for the hearing, the notice merely stating that the hearing would be upon the motion of claimant to determine extent of disability. Both parties in the briefs appear to concede that there was no claim made of a change of condition of claimant's hand between the date of the award made October 16, 1926, and the time of the issuing of the notice of hearing January 24, 1931.

The position of petitioner is that the award of the Industrial Commission made in 1926 became final upon the dismissal of the appeal therefrom, and the expiration of thirty days thereafter; that after an award has thus become final it can only be opened upon the ground of a change in condition. It is asserted that no application or motion was filed alleging change of condition, and also that the findings No. 3 and No. 5 are erroneous and not sustained by the evidence.

Respondent apparently relies upon the provisions of section 7325, C. O. S. 1921, as amended by Laws 1923, c. 61, § 13, and cites cases which he contends hold that the Industrial Commission has continuous jurisdiction in each case irrespective of any change of condition of the claimant. He states in his brief: "Therefore, since the Industrial Commission does have continuing jurisdiction, even though a former award has been made and become final, it has jurisdiction in this case to make the award for fifty per cent. permanent partial disability to the left hand, notwithstanding a former order had been made allowing him compensation only for the loss of the second finger."

He makes no contention that the motion for second hearing alleged a change of condition, or that there is evidence in the record showing a change of condition between the dates of the first award in 1926, and the last award March 2, 1931. If he did make the latter contention it could not be upheld. No witness testified as to such change, and respondent himself testified:

"By the Court: Q. Now Mr. Kincannon, was your hand in that condition at both of the hearings before the Commission? A. Yes sir.

Q. The fingers were stiff and ankylosed? A. Yes sir.

Q. And on those hearings was your hand exhibited as an exhibit before the Commission at the time of the hearing? A. Yes sir.

Q. And you had Doctors to testify at that time? A. Yes sir.

Q. What Doctors? A. Doctor Lee and Doctor Boland."

And:

"Q. And you never received any money only for the loss of the second finger

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