American Trailers, Inc. v. Walker

Decision Date09 July 1974
Docket NumberNo. 46789,46789
Citation526 P.2d 1150
PartiesAMERICAN TRAILERS, INC., and the Travelers Insurance Company, Petitioners, v. Howard L. WALKER and the State Industrial Court, Respondents.
CourtOklahoma Supreme Court

Syllabus by the Court

1. Decision in Town of Ryan v. Poage (Okl.), 394 P.2d 485, construing hernia provisions of 85 O.S.1971, § 22, as requiring medical testimony that further surgery will not provide full relief to claimant, who previously has undergone two hernia operations and declines further surgery, as prerequisite to award of compensation for permanent disability under 'Other Cases' provision of statute, supra, is overruled.

2. Evidence that the claimant has done or is capable of doing light work will not defeat an award of the State Industrial Commission for temporary total disability in workmen's compensation proceedings, if there is competent evidence to support it.

Appeal from the State Industrial Court of Oklahoma; A. L. Voth, Judge.

Original proceedings to review State Industrial Court order awarding compensation for permanent partial disability to claimant who, having undergone two surgeries for repair of hernia in same area, sustained accidental injury resulting in another hernia, but declined operation and sought compensation.

Award sustained.

Ralph R. Smith, Oklahoma City, for petitioners.

Jack E. Gray, Larry Derryberry, Atty. Gen. of Oklahoma, Oklahoma City, for respondents.

BARNES, Justice:

The sole issue for review concerns propriety of a trial judge's order awarding compensation for 10 weeks total temporary disability, and 50% Permanent partial disability to body as a whole, for accidental injury in course of covered employment resulting in left inguinal hernia.

The facts are undisputed. While engaged in hazardous employment for petitioner, respondent herein, claimant sustained accidental injury April 2, 1973, causing hernia. Claimant was referred to respondent's doctors, condition was diagnosed, and a surgeon recommended surgical repair. Respondent authorized surgery and paid total temporary benefits from April 3rd until June 11th, when terminated because claimant failed to report for and declined further surgery.

Claim for compensation, filed May 10, 1973, was heard July 25, 1973. The evidence showed claimant reported to clinic the day following injury as directed, and was referred to a physician who directed claimant to return in two or three days. Upon return to the clinic, Dr. W. advised claimant he had suffered left inguinal hernia requiring surgery, and offered to perform the operation. Claimant recited a history of prior inguinal herniorrhaphys in 1962 and 1965, indicated unwillingness to undergo further surgery, and was advised there would be no point in returning to the clinic. Claimant in fact had suffered three prior hernias in the same area.

Dr. W.'s medical report for respondents, based upon physical examination, recited history of prior bilateral hernia repair and diagnosed claimant's condition as recurrent left inguinal hernia. The report stated the condition could be repaired successfully and claimant returned to full ordinary manual labor.

Claimant introduced medical evidence from two examining physicians. Dr. B. examined claimant April 30th, diagnosed condition as left inguinal hernia, and stated claimant was 50% Permanently disabled for performance of manual labor while in that condition.

Dr. R.'s report included history of prior surgeries on left side and concurrence in another physician's recommendation for surgery. Examination revealed bulging of left inguinal area with scar indicating prior efforts at repair, and stated:

'It is my impression that Mr. Walker would undoubtedly benefit from a successful repair at the inguinal area but in view of prior efforts and another recurrence, the efficacy of such a procedure is less certain than usual. It is my impression that he should be considered temporarily totally disabled for the performance of ordinary manual labor as a result of the above described accidental injury should repair of this disorder be agreed upon and that his period of temporary total disability should continue for a reasonable period of convalescence. If the surgery is unsuccessful or if there is no election for surgical treatment, then it is my impression that he has 50% Partial permanent disability to the whole body for the performance of ordinary manual labor as a result of the above described accidental injury.'

Claimant also introduced deposition testimony of Texas surgeons who performed earlier operations. Dr. T. testified concerning 1962 surgery for repair of recurrent bilateral inguinal hernia upon claimant after earlier hernia surgery. The left hernia was considered a new hernia at time of surgery, and was not expected to produce permanent disability unless there was a recurrence.

Dr. M.'s deposition concerned surgery performed in 1965 in Texas hospital. The physician recalled claimant's case on a personal basis, and considered it the most difficult herniorrhaphy ever performed. The physician testified at length concerning claimant's condition and surgical procedures followed in repairing bilateral inguinal hernia. He stated the operation required an unusual amount of time because of scarring from prior surgeries, and the left hernia was more severe. Culmination of scarring from prior surgeries would interfere with success of any future hernia operation. Each time hernias are repaired the chance for recurrence is greater, and claimant's prognosis for a third operation in the same area would not be good.

This witness' cross-examination disclosed that when released for return to work, claimant was advised never to lift more than 50 pounds the rest of his life. The doctor further stated that, assuming claimant suffered no further injury, no permanent disability resulted, although the likelihood of recurrence was greater for claimant than an average individual.

The trial judge's order (July 31, 1973) awarded 10 weeks temporary compensation already paid, and compensation for permanent partial disability to body as a whole.

Respondents urge three propositions as grounds for concluding the order reviewed must be vacated, and the cause remanded to the State Industrial Court with directions to enter an order awarding claimant only the statutory benefits of 14 weeks compensation and costs of an operation. These are combined for consideration, since each is predicated upon asserted insufficiency of evidence to support this order, which respondents also urge is contrary to law.

One argument is that when injury results in 'a hernia', no compensation can be awarded for disability to the body as a whole in addition to the prescribed statutory award for hernia. Several decisions are cited as authority for this claim. Recognizably, these decisions were expressive of the law prior to the amendment of 85 O.S.1971, § 22, and applied the principle that compensation for accidental injury by hernia was limited to 8 weeks total temporary disability and costs of an operation. The State Industrial Court (then Commission) had no authority to award a greater amount unless injury was found to have resulted in permanent total disability. Pioneer Mills Co. v. Webster, 184 Okl. 49, 84 P.2d 642. In Harter Concrete Products v. Brookey (Okl.), 471 P.2d 908, the syllabus states:

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